Clause | Page | |||
1. Arsenal Exchange | 2 | |||
1.1 Authorization of Additional Arsenal Shares; Arsenal Exchange; Newco Merger | 2 | |||
1.2 Cooperation of Arsenal | 3 | |||
2. Coniston Transaction | 3 | |||
2.1 Repurchase of Exchange Shares | 3 | |||
2.2 Public Secondary Offering | 4 | |||
2.3 Coniston Closing | 9 | |||
2.4 Coniston Closing Deliveries | 9 | |||
2.5 Withholding Taxes | 10 | |||
3. Contingent Repurchase Transaction | 10 | |||
3.1 Contingent Repurchase of Arsenal Shares | 10 | |||
3.2 Contingent Repurchase Closing | 11 | |||
3.3 Contingent Repurchase Closing Deliveries | 11 | |||
4. Representations and Warranties of Manchester | 11 | |||
4.1 Organization; Authority; Execution and Delivery; Enforceability | 11 | |||
4.2 No Conflicts; Consents | 12 | |||
4.3 Litigation | 13 | |||
4.4 Repurchase Shares; Contingent Repurchase Shares | 13 | |||
4.5 Newco Capitalization; No Liabilities or Obligations | 14 | |||
4.6 The Newco Shares; Arsenal Shares Owned by Newco | 15 | |||
4.7 Brokers | 16 | |||
4.8 Taxes | 16 | |||
5. Representations and Warranties of Arsenal | 16 | |||
5.1 Organization; Authority; Execution and Delivery; Enforceability | 16 | |||
5.2 No Conflicts; Consents | 17 | |||
5.3 Litigation | 18 | |||
5.4 Change of Control | 18 | |||
5.5 The Exchange Shares | 19 | |||
5.6 Financial Capability | 19 | |||
5.7 Brokers | 20 | |||
5.8 Emerald Definitive Agreement | 20 | |||
6. Additional Agreements | 20 | |||
6.1 Arsenal Financing | 20 | |||
6.2 Emerald Merger | 21 | |||
6.3 Manchester Shareholder Circular | 21 | |||
6.4 Amendment to Arsenal By-laws | 22 | |||
6.5 Appointment of Arsenal Directors and Arsenal Chairman | 22 | |||
6.6 Voting Agreement | 22 | |||
6.7 Public Announcements | 23 | |||
6.8 Further Assurances | 23 | |||
6.9 Use of Names | 24 | |||
6.10 Section 16 Matters | 24 | |||
6.11 Termination of Stock Repurchase Agreement | 24 | |||
6.12 Patriot Merger Agreement | 24 | |||
6.13 India Migration | 25 | |||
6.14 Arsenal Exchange Sub | 26 |
Clause | Page | |||
7. Conditions Precedent | 26 | |||
7.1 Conditions Precedent to the Coniston Closing | 26 | |||
7.2 Conditions Precedent to the Contingent Repurchase Closing | 27 | |||
8. Termination | 28 | |||
8.1 Termination Prior to Coniston Closing | 28 | |||
8.2 Effect of Termination | 29 | |||
9. Survival; Indemnification | 29 | |||
9.1 Survival | 29 | |||
9.2 Indemnification by Arsenal | 29 | |||
9.3 Indemnification by Manchester | 30 | |||
9.4 No Consequential Losses | 30 | |||
9.5 Indemnification Procedures | 30 | |||
9.6 Indemnification Payments | 31 | |||
10. Tax Matters | 31 | |||
10.1 Tax Indemnification | 31 | |||
10.2 IRS Private Letter Ruling | 32 | |||
10.3 Tax Returns | 35 | |||
10.4 Refunds and Credits | 35 | |||
10.5 Cooperation | 36 | |||
10.6 Taxes on Parties | 36 | |||
10.7 Franchise Taxes | 37 | |||
10.8 Contests | 37 | |||
10.9 Further Tax Assurances | 37 | |||
10.10 Tax Indemnity Credit Support | 39 | |||
10.11 Expenses | 43 | |||
10.12 Predecessors and Successors | 43 | |||
10.13 Survival | 43 | |||
11. Miscellaneous | 43 | |||
11.1 Notices | 43 | |||
11.2 Amendments and Waivers | 45 | |||
11.3 Expenses | 45 | |||
11.4 Successors and Assigns | 46 | |||
11.5 Governing Law | 46 | |||
11.6 Enforcement; Consent to Jurisdiction | 46 | |||
11.7 WAIVER OF JURY TRIAL | 47 | |||
11.8 Counterparts; Third-Party Beneficiaries | 47 | |||
11.9 Severability | 48 | |||
11.10 Entire Agreement | 48 | |||
11.11 Construction | 49 | |||
11.12 Headings and Captions; Exhibits and Schedules | 49 | |||
Signatories | 50 | |||
Exhibits | ||||
Exhibit 1 Form of Amendment to Arsenal Second Amended and Restated Certificate of Incorporation | ||||
Exhibit 2 Form of Amendment to Arsenal Third Amended and Restated Certificate of Incorporation |
Clause | Page | |||
Exhibit 3 Commitment Letter | ||||
Exhibit 4 Form of Emerald Definitive Agreement | ||||
Exhibit 5 Form of Amendment to Arsenal By-laws | ||||
Exhibit 6 Voting Agreement | ||||
Exhibit 7 Form of Manchester Announcement of Coniston Transaction | ||||
Exhibit 8 Form of Joint Announcement of Emerald Transaction | ||||
Exhibit 9 Form of Section 16 Resolutions | ||||
Exhibit 10 Arbitration Procedures | ||||
Exhibit 11 Form of Bank Guarantee | ||||
Exhibit 12 Form of Amended and Restated Relationship Agreement | ||||
Exhibit 13 Registration Rights Agreement | ||||
Exhibit 14 Form of Transitional Services Agreement |
(1) | MISYS PLC, a public limited company formed under the Laws of England and Wales (Manchester), and | |
(2) | ALLSCRIPTS-MISYS HEALTHCARE SOLUTIONS, INC., a Delaware corporation (Arsenal), | |
together, theParties. |
(A) | Manchester currently owns, indirectly through its Subsidiaries Kapiti Limited (Kapiti) and ACT Sigmex Limited (ACTS), one hundred percent (100%) of the partnership interests of Misys US DGP (DGP). | |
(B) | Manchester currently owns, indirectly through its Subsidiaries Misys Patriot US Holdings LLC (MPUSH) and Misys Patriot Limited (MPL), 79,811,511 Arsenal Shares as of the date hereof. | |
(C) | Manchester is in the process of implementing an internal reorganization of its US corporate structure (theUS Reorganization). | |
(D) | In connection with the US Reorganization, DGP will acquire 61,308,295 Arsenal Shares from MPUSH and will be converted from a Delaware general partnership into a Delaware corporation (Newco). | |
(E) | After completion of the US Reorganization, Kapiti and ACTS will own one hundred percent (100%) of the issued and outstanding shares of common stock of Newco (theNewco Shares) and Newco will own 61,308,295 Arsenal Shares. | |
(F) | After completion of the US Reorganization, Kapiti and ACTS desire to transfer the Newco Shares to Arsenal in exchange for 61,308,295 newly issued Arsenal Shares (such newly issued Arsenal Shares, theExchange Shares, and the transfer of the Newco Shares to Arsenal in exchange for the Exchange Shares, theArsenal Exchange). | |
(G) | Simultaneously with the consummation of the Arsenal Exchange, Manchester and Arsenal desire to effect the following transactions: (i) a repurchase by Arsenal of the Arsenal Shares owned by MPL and a portion of the Exchange Shares from Kapiti and ACTS; (ii) a secondary public offering by Kapiti and ACTS of additional Exchange Shares (theSecondary Offering Shares, and the transactions described in clauses (i) and (ii) together being theConiston Transaction); and (iii) upon the closing of the Emerald Transaction (as defined below) (theEmerald Closing), if Manchester so elects, a repurchase by Arsenal from Kapiti and ACTS of the Contingent Repurchase Shares (as defined below). | |
(H) | Manchester and Arsenal acknowledge that the Repurchase Consideration (as defined below) includes consideration for the agreement by Manchester to divest its Control over Arsenal. | |
(I) | Concurrently with the execution of this Agreement, Arsenal is entering into a Merger Agreement with Eclipsys Corporation (Emerald) pursuant to and subject to the terms and conditions of which the stockholders of Emerald would receive newly issued Arsenal Shares as consideration (theEmerald |
1
Transaction), it being understood that under no circumstances would the Emerald Transaction be consummated prior to the Coniston Closing (as defined below), and it being further understood that the failure of the Emerald Transaction will in no way prejudice the consummation of the Coniston Transaction. |
(J) | Concurrently with the closing of the Coniston Transaction, Manchester and Arsenal intend to amend and restate the Relationship Agreement (as defined below) and Arsenal intends to amend and restate the Arsenal Constitutional Documents (as defined below) as provided herein. | |
(K) | The Audit Committee of the Arsenal Board of Directors has approved this Agreement and the other Transaction Documents and the transactions contemplated hereby and thereby. | |
(L) | In furtherance of the objectives set forth above, Manchester and Arsenal desire to enter into this Agreement and the other Transaction Documents to govern the Arsenal Exchange, the Coniston Transaction, the Contingent Repurchase (as defined below) and the other transactions contemplated hereby and thereby. |
1. | ARSENAL EXCHANGE | |
1.1 | Authorization of Additional Arsenal Shares; Arsenal Exchange; Newco Merger |
(a) | As promptly as reasonably practicable after the date hereof (or, if the Parties so agree in writing, upon the record date for the Arsenal stockholder meeting held for the purpose of obtaining the Arsenal Stockholder Approval), Manchester shall cause its direct and indirect Subsidiaries as holders of Arsenal Shares to act by written consent in lieu of a meeting to (i) approve an amendment to the Arsenal Second Amended and Restated Certificate of Incorporation (in the form attached asExhibit 1) to authorize 350 million Arsenal Shares and (ii) approve the issuance to Kapiti and ACTS of the Exchange Shares (theArsenal Written Consent). As promptly as reasonably practicable after the date hereof (or, if the Parties so agree in writing, upon the record date for the Arsenal stockholder meeting held for the purpose of obtaining the Arsenal Stockholder Approval), Manchester shall cause its direct and indirect Subsidiaries as holders of Arsenal Shares to act by written consent in lieu of a meeting to approve amendments to Arsenal’s Third Amended and Restated Certificate of Incorporation (in the form attached asExhibit 2) to become effective immediately following the Coniston Closing (except as otherwise set forth therein) (theAdditional Written Consent, and collectively with the Arsenal Written Consent, theWritten Consents). Notwithstanding anything to the contrary contained herein, Arsenal shall not file Arsenal’s Fourth Amended and Restated Certificate of Incorporation until after the Coniston Closing. | |
(b) | On the Coniston Closing Date (as defined below), upon the terms and subject to the conditions contained herein, Manchester shall cause Kapiti and ACTS to transfer, convey and deliver the Newco Shares to Arsenal, free and clear of all Liens (other than any Liens or restrictions imposed solely by virtue of applicable securities laws), and in exchange therefor Arsenal shall issue to Kapiti and ACTS the Exchange Shares, free and clear of all Liens (other than any Liens or restrictions imposed solely by virtue of applicable securities laws). | |
(c) | If a ruling substantially to the effect of Core Ruling (4) is received as part of the IRS Private Letter Ruling, immediately following the receipt of such IRS Private Letter Ruling (but in no event prior to the Coniston Closing Date), in the manner set forth in the IRS Private Letter Ruling, Arsenal shall cause |
2
Newco to merge with and into a newly formed, wholly owned Subsidiary of Arsenal that is, or otherwise elects to be, disregarded as an entity separate from its owner for US federal tax purposes (Exchange Sub), with Exchange Sub continuing as the surviving entity. This Agreement shall constitute a plan of reorganization pursuant to which, if such merger occurs, the Arsenal Exchange and such merger, taken together, are intended to constitute a “reorganization” under Code section 368(a), of which Arsenal and Newco are parties. |
(d) | If a ruling substantially to the effect of Core Ruling (4) is not received as part of an IRS Private Letter Ruling, Arsenal shall not cause Newco to merge with and into Exchange Sub or liquidate Newco and will not consider such a merger or liquidation any earlier than the two-year anniversary of the Coniston Closing Date. | |
1.2 | Cooperation of Arsenal | |
(a) | Arsenal and Manchester shall cooperate, and take, or use their respective commercially reasonable efforts to cause to be taken, all actions, and to do, or use their respective commercially reasonable efforts to cause to be done, all things necessary, proper or advisable under applicable Laws to consummate and give effect to the transactions contemplated bySection 1.1 in accordance with the terms of this Agreement. | |
(b) | Without limiting the foregoing, by a date as soon after the execution of this Agreement as is reasonably practicable, which date the Parties currently expect will be within ten (10) business days after the date hereof, Arsenal shall prepare and file with the SEC an information statement meeting the requirements of Regulation 14C under the Exchange Act and shall prepare any other notice required under the General Corporation Law of the State of Delaware, if any, to be sent to Arsenal stockholders to the extent required to give effect to the actions taken by the Written Consents. Arsenal shall respond to any comments or requests for additional information from the SEC or its staff as soon as practicable after receipt of any such comments or requests, and shall cause the information statement to be mailed to its stockholders at the earliest practicable time (and in no event later than five (5) business days after indication from the SEC staff that no further comments on the information statement will be forthcoming). Arsenal shall notify Manchester promptly upon the receipt of any comments from the SEC or its staff or any other government officials and of any request by the SEC or its staff or any other government officials for amendments or supplements to the information statement. Arsenal shall supply Manchester with copies of all correspondence between Arsenal or any of its representatives, on the one hand, and the SEC or its staff or any other government officials, on the other hand, with respect to the information statement. Prior to responding to any such comments or requests or the filing or mailing of the information statement, Arsenal shall provide Manchester with a reasonable opportunity to review and comment on any drafts of the information statement and all related correspondence and filings and shall give reasonable consideration to all comments proposed by Manchester. Manchester shall use all commercially reasonable efforts to cooperate with Arsenal and its advisers to provide as promptly as reasonably practicable any information or responses to comments or other assistance reasonably requested by Arsenal in connection with the foregoing. | |
2. | CONISTON TRANSACTION | |
2.1 | Repurchase of Exchange Shares | |
Upon the terms and subject to the conditions of this Agreement, at the Coniston Closing, Manchester shall cause MPL, Kapiti and ACTS to sell, transfer, convey and deliver to Arsenal, free and clear of all Liens (other than any Liens or restrictions imposed solely by virtue of applicable securities laws) and |
3
Arsenal shall buy from MPL, Kapiti and ACTS, 24,442,083 Arsenal Shares held by MPL, Kapiti and ACTS (theRepurchase Shares) for an aggregate consideration of $577.4 million (theRepurchase Consideration) at a price per Arsenal Share equal to $23.62. The Repurchase Consideration includes consideration in the amount of $4.80 per Arsenal Share for the agreement by Manchester to divest its Control over Arsenal, which consideration is an integral part of this Agreement without which the Parties would not have entered into this Agreement or the transactions contemplated hereby. The Repurchase Consideration shall be paid in U.S. dollars by wire transfer of immediately available funds to the Manchester Bank Account. |
2.2 | Public Secondary Offering | |
(a) | Upon the terms and subject to the conditions of this Agreement (including satisfaction of the Offering Conditions), Manchester shall use commercially reasonable efforts to, and shall cause Kapiti and ACTS to use their respective commercially reasonable efforts to, conduct a secondary public offering of the Secondary Offering Shares (theSecondary Offering) pursuant to which Kapiti and ACTS shall sell to the Lead Underwriters (as defined herein) and one or more of the underwriters set forth onSchedule 2.2(a) (theUnderwriters), together with any syndicate established by such Underwriters, pursuant to a customary underwriting agreement, subject to the immediately following sentence, no fewer than 36,000,000 Secondary Offering Shares or such greater number of Secondary Offering Shares that in the reasonable good faith judgment of the board of directors of Manchester is necessary to maintain compliance immediately after the Coniston Closing with Sections LR 9.2.2A and LR 6.1.4(2) of the Listing Rules (UK) of the UK Listing Authority and London Stock Exchange (theMinimum Secondary Offering Shares), which number of Secondary Offering Shares shall be determined prior to the Launch Date and sold to the public by the Underwriters at the maximum price achievable under the circumstances but in any event at a price to the public of not less than $16.50 per Secondary Offering Share (theFloor Price). Subject toSection 2.2(b) below, the aggregate number of Secondary Offering Shares sold by Kapiti and ACTS to the Underwriters in the Secondary Offering shall not, when combined with the Repurchase Shares, result in Manchester holding, directly or indirectly, fewer than 15.5 million Arsenal Shares (or such lesser number of Arsenal Shares as may be agreed by the Audit Committee of the Arsenal Board of Directors) prior to any exercise of the Underwriters’ over-allotment option (theGreenshoe). | |
(b) | To the extent the sale by Kapiti and ACTS of Arsenal Shares to the Underwriters pursuant to the Greenshoe would result in Manchester’s direct or indirect shareholding in Arsenal falling below 15.5 million Arsenal Shares (or such lesser number of Arsenal Shares as may be agreed by the Audit Committee of the Arsenal Board of Directors) (theManchester Greenshoe Limit) then Arsenal shall have a right of first refusal to issue and sell pursuant to the Greenshoe such number of Arsenal Shares as is equal to the difference between the number of Arsenal Shares required to satisfy the Greenshoe and the number of Arsenal Shares that Manchester may sell without falling below the Manchester Greenshoe Limit (theArsenal Right of First Refusal). Arsenal shall notify Manchester and the Lead Underwriters in writing within two (2) business days after Arsenal receives the Launch Notice (as defined below) as to whether it wishes to exercise the Arsenal Right of First Refusal in the event the Underwriters exercise the Greenshoe. If Arsenal fails to so notify Manchester and the Lead Underwriters of its intention to exercise the Arsenal Right of First Refusal or notifies Manchester and the Lead Underwriters that it does not wish to exercise the Arsenal Right of First Refusal, Manchester shall be entitled to fully participate in the Greenshoe notwithstanding the Manchester Greenshoe Limit. | |
(c) | Subject to paragraph (g) below, upon the terms and subject to the conditions of this Agreement and the Relevant Provisions (as defined below) of the Registration Rights Agreement, prior to the receipt of both (x) the Emerald Stockholder Approval and (y) the Arsenal Stockholder Approval, Manchester shall |
4
determine in its commercially reasonable discretion the date of the launch of the Secondary Offering (theLaunch Date). In exercising its commercially reasonable discretion in selecting a Launch Date, Manchester agrees to consult regularly with the joint book running Underwriters of the Secondary Offering designated as such onSchedule 2.2(c) (theLead Underwriters) to determine the earliest date reasonably practicable at which the Lead Underwriters believe market conditions and legal and regulatory requirements, including satisfaction of the Offering Conditions, would permit the Minimum Secondary Offering Shares to be sold to the public by the Underwriters at the maximum price achievable during the offering period provided for herein, but in any event at a price to the public of not less than the Floor Price. If Manchester selects a Launch Date pursuant to thisSection 2.2(c), then Manchester shall notify Arsenal of such Launch Date as well as the number of Minimum Secondary Offering Shares (and the information relied upon by the board of directors of Manchester in determining the number of the Minimum Secondary Offering Shares) by written notice given not less than five (5) business days prior to the intended Launch Date (theLaunch Notice). |
(d) | If a Launch Notice is delivered pursuant to paragraph (c) above, and prior to the Launch Date Manchester reasonably determines that it would not be feasible or in the best interests of Manchester to proceed on the then scheduled Launch Date or if the Offering Conditions no longer continue to be met on or after the then scheduled Launch Date, Manchester shall notify Arsenal of the postponement of the then scheduled Launch Date or Secondary Offering and shall deliver to Arsenal a new Launch Notice establishing a new Launch Date and the process set forth in paragraphs (c), (e), (g), (i) and the penultimate sentence of paragraph (b) of thisSection 2.2 shall apply in respect of such new Launch Datemutatis mutandis. | |
(e) | Upon the terms and subject to the conditions of this Agreement and the Relevant Provisions of the Registration Rights Agreement, after the receipt of both (x) the Emerald Stockholder Approval and (y) the Arsenal Stockholder Approval, so long as (i) the Manchester Shareholder Approval has been obtained, (ii) the actual five (5) trading day volume weighted average price of the Arsenal Shares has exceeded and continues to exceed the Floor Price and (iii) each of the Offering Conditions (other than clause (iv) of the definition of “Market Disruption” and clauses (vii) and (viii) of the definition of “Offering Conditions” (collectively, theSpecial Offering Conditions)) is met, then Arsenal shall be entitled to deliver to Manchester a written demand that Manchester proceed with the Secondary Offering (aLaunch Demand). Within two (2) business days after receipt by Manchester of such Launch Demand, Manchester shall, if each of the Offering Conditions (including the Special Offering Conditions) continues to be met, select a Launch Date within the subsequent five (5) trading day period that Manchester reasonably determines after consultation with the Lead Underwriters is the most likely date during such five (5) trading day period to result in a sale to the public by the Underwriters of the Minimum Secondary Offering Shares at the maximum price achievable during such offering period, but in any event at a price to the public of not less than the Floor Price;provided, that, if the Launch Demand is delivered during the Market Holiday or within five (5) trading days prior to the commencement of the Market Holiday, then Manchester shall select as the Launch Date the first trading day after the expiration of the Market Holiday. If Manchester selects a Launch Date pursuant to thisSection 2.2(e), then Manchester shall promptly notify Arsenal of such Launch Date as well as the number of Minimum Secondary Offering Shares (and the information relied upon by the board of directors of Manchester in determining the number of Minimum Secondary Offering Shares) by written notice (also referred to herein as the Launch Notice). If following receipt of a Launch Demand, Manchester fails to select a Launch Date, postpones a then scheduled Launch Date or Secondary Offering or fails thereafter to establish a new Launch Date, in each case because of a failure of any of the Offering Conditions to be met, Manchester shall, within one (1) business day of such failure or postponement, provide Arsenal and Emerald with the information relied upon by the board of directors |
5
of Manchester in determining that any such Offering Condition fails to be met, including the material information and advice provided to Manchester by any of the Lead Underwriters relating to such matter. |
(f) | If a Launch Notice is delivered pursuant to paragraph (e) above and (x) prior to the then scheduled Launch Date the board of directors of Manchester determines in its reasonable good faith judgment to postpone such Launch Date because either (1) prior to such Launch Date the Offering Conditions no longer continue to be met or (2) the board of directors of Manchester determines in its reasonable good faith judgment that the Offering Conditions will not be met during the eight (8) business days immediately following such Launch Date or (y) after the Launch Date the board of directors of Manchester determines in its reasonable good faith judgment to postpone the Secondary Offering because the Offering Conditions no longer continue to be met, Manchester shall notify Arsenal of the postponement of the then scheduled Launch Date (in the case of subclause (x)) or Secondary Offering (in the case of subclause (y)) and shall deliver to Arsenal a new Launch Notice establishing a new Launch Date at the earliest date reasonably practicable thereafter at which the Offering Conditions are expected to be satisfied and market conditions and legal and regulatory requirements would permit the Minimum Secondary Offering Shares to be sold to the public by the Underwriters at a price of not less than the Floor Price and the process set forth in paragraphs (e), (i) and the penultimate sentence of paragraph (b) of thisSection 2.2 shall apply in respect of such new Launch Datemutatis mutandis. | |
(g) | Upon the terms and subject to the conditions of this Agreement and the Relevant Provisions of the Registration Rights Agreement, if the Emerald Definitive Agreement is terminated in accordance with its terms, after the date of such termination, so long as (i) the Manchester Shareholder Approval has been obtained, (ii) the actual five (5) trading day volume weighted average price of the Arsenal Shares has exceeded and continues to exceed the Floor Price and (iii) each of the Offering Conditions (other than the Special Offering Conditions) is met, then Arsenal shall be entitled to deliver to Manchester a Launch Demand (aTermination Launch Demand). Within two (2) business days after receipt by Manchester of such Termination Launch Demand, Manchester shall, if each of the Offering Conditions (including the Special Offering Conditions) continues to be met, select a Launch Date within the subsequent twenty (20) trading day period that Manchester reasonably determines after consultation with the Lead Underwriters is the most likely date during such twenty (20) trading day period to result in a sale to the public by the Underwriters of the Minimum Secondary Offering Shares at the maximum price achievable during such offering period, but in any event at a price to the public of not less than the Floor Price;provided, that, if the Termination Launch Demand is delivered during the Market Holiday or within five (5) trading days prior to the commencement of the Market Holiday, then Manchester shall select a Launch Date within the ten (10) trading day period after the expiration of the Market Holiday. If Manchester selects a Launch Date pursuant to thisSection 2.2(g), then Manchester shall promptly notify Arsenal of such Launch Date as well as the number of Minimum Secondary Offering Shares (and the information relied upon by the board of directors of Manchester in determining the number of Minimum Secondary Offering Shares) by written notice (also referred to herein as the Launch Notice). If following receipt of a Termination Launch Demand, Manchester fails to select a Launch Date, postpones a then scheduled Launch Date or Secondary Offering or fails thereafter to establish a new Launch Date, in each case because of a failure of any of the Offering Conditions to be met, Manchester shall, within one (1) business day of such failure or postponement, provide Arsenal with the information relied upon by the board of directors of Manchester in determining that any such Offering Condition fails to be met, including the material information and advice provided to Manchester by any of the Lead Underwriters relating to such matter. | |
(h) | If a Launch Notice is delivered pursuant to paragraph (g) above and (x) prior to the then scheduled Launch Date the board of directors of Manchester determines in its reasonable good faith judgment to postpone such Launch Date because either (1) prior to such Launch Date the Offering Conditions no |
6
longer continue to be met or (2) the board of directors of Manchester determines in its reasonable good faith judgment that the Offering Conditions will not be met during the eight (8) business days immediately following such Launch Date or (y) after the Launch Date the board of directors of Manchester determines in its reasonable good faith judgment to postpone the Secondary Offering because the Offering Conditions no longer continue to be met, Manchester shall notify Arsenal of the postponement of the then scheduled Launch Date (in the case of subclause (x)) or Secondary Offering (in the case of subclause (y)) and shall deliver to Arsenal a new Launch Notice establishing a new Launch Date at the earliest date reasonably practicable thereafter at which the Offering Conditions are expected to be satisfied and market conditions and legal and regulatory requirements would permit the Minimum Secondary Offering Shares to be sold to the public by the Underwriters at a price of not less than the Floor Price and the process set forth in paragraph (i) and the penultimate sentence of paragraph (b) of thisSection 2.2 shall apply in respect of such new Launch Datemutatis mutandis. |
(i) | Unless the Launch Date specified in a Launch Notice or in response to a Launch Demand has been rescheduled in accordance withSection 2.2(d),(f) or(h), on the Launch Date specified in a Launch Notice or in response to a Launch Demand, Manchester shall request that Arsenal (and Arsenal shall), and Manchester and Arsenal shall use their respective commercially reasonable efforts to cause, the Lead Underwriters to publicly announce the commencement on the Launch Date of and conduct a road show that lasts not more than five (5) business days beginning on the Launch Date assuming full-time participation by Arsenal’s CEO and CFO during that period in accordance withSection 2.2(k). At the end of such five (5) business day period (or such lesser period as agreed to by Manchester after consultation with the Lead Underwriters), assuming continued satisfaction of the Offering Conditions, Manchester shall formally request, and shall use its commercially reasonable efforts to cause, the Lead Underwriters to execute and deliver an underwriting agreement in reasonably customary form, reasonably satisfactory to the Lead Underwriters and that contains terms not inconsistent with Section 2.4(m) and 2.5(a) of the Registration Rights Agreement, for a firm commitment, fixed price underwritten public offering that includes the highest price the Lead Underwriters are prepared to offer to the public for the Minimum Secondary Offering Shares, which price is equal to or greater than the Floor Price (anAcceptable Underwriting Agreement). If the Lead Underwriters present Manchester and Arsenal with an Acceptable Underwriting Agreement, then Manchester and Arsenal shall promptly execute and deliver, and Manchester shall cause Kapiti and ACTS to execute and deliver, such Acceptable Underwriting Agreement and agree to be bound thereby, and thereafter Manchester and Arsenal shall comply with such Acceptable Underwriting Agreement and shall use their respective commercially reasonable efforts to cause the Secondary Offering to be completed. Manchester and Arsenal shall not execute an Acceptable Underwriting Agreement that prevents either Manchester or Arsenal from complying with its obligations under thisSection 2.2. | |
(j) | Offering Conditionsshall mean (i) a shelf registration statement has been filed with the SEC and is effective that permits Manchester, Kapiti and ACTS to conduct the Secondary Offering (theSecondary Offering Registration Statement), (ii) Arsenal has complied with its obligations underSection 2.2(k) and the Relevant Provisions of the Registration Rights Agreement (except for any failures that have not had and would not reasonably be expected to have a material adverse effect on the Secondary Offering, including by affecting the ability of the Lead Underwriters to enter into an Acceptable Underwriting Agreement), (iii) Arsenal has advised Manchester that the Secondary Offering Registration Statement, the related prospectus and any documents incorporated or deemed to be incorporated therein by reference (x) are appropriately responsive in all material respects to the requirements of the Securities Act and/or the Exchange Act, as applicable, and (y) do not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (iv) Arsenal has advised Manchester that it is prepared to enter into an underwriting agreement satisfactory to the Underwriters and is able to cause to be delivered the opinions |
7
of counsel and “cold comfort” letters from its independent certified public accountants, in each case as contemplated by such underwriting agreement and Section 2.4(m) of the Registration Rights Agreement, (v) no Market Disruption is then in effect, (vi) no SEC stop order that would suspend the effectiveness of the Secondary Offering Registration Statement is in effect and no proceedings for the issuance of an SEC stop order have been initiated, (vii) no pending earnings announcement or other material disclosure regarding Arsenal or Emerald is determined by the board of directors of Manchester, in its reasonable good faith judgment after receipt of advice from the Lead Underwriters, to warrant a delay in such offering because a failure to so delay is expected to materially interfere with the ability to sell the Minimum Secondary Offering Shares at or above the Floor Price and (viii) the actual five (5) trading day volume weighted average price of the Arsenal Shares is not determined by the board of directors of Manchester, in its reasonable good faith judgment after receipt of advice from the Lead Underwriters, to fail to exceed or continue to exceed the Floor Price by an amount sufficient to permit the Secondary Offering to be completed at or above the Floor Price.Relevant Provisionsof the Registration Rights Agreement means Sections 2.1, 2.3(a), 2.4, 2.7, 2.8 and 2.9(a) and (b) thereof. |
(k) | Without limiting in any way Manchester’s rights under the Relevant Provisions of the Registration Rights Agreement, from the date of this Agreement until the Coniston Closing, Arsenal shall, and shall cause its Affiliates and each of its and their respective representatives to, and shall use its commercially reasonable efforts to cause Emerald and its Affiliates and each of their respective representatives to, use each of their commercially reasonable efforts to provide all cooperation reasonably requested by Manchester or the Underwriters in connection with the Secondary Offering, including using commercially reasonable efforts to (a) cause appropriate executive officers and employees of Arsenal and Emerald (i) to be reasonably available to meet with the Underwriters, rating agencies and prospective investors in meetings, presentations, road shows and due diligence sessions (it being understood, and Arsenal agrees, that during the road show that occurs after the Launch Date, the participation of Arsenal’s CEO and CFO shall be required on a full-time basis including travel to meet prospective and current investors), (ii) to provide reasonable and customary management and legal representations to auditors and (iii) to provide reasonable and timely assistance with the preparation of business projections and similar materials, (b) otherwise reasonably cooperate with the marketing efforts of Manchester and the Underwriters for the Secondary Offering, (c) furnish Manchester and the Underwriters and their respective counsel promptly with all reasonable and customary financial information regarding Arsenal and Emerald and all documents reasonably necessary for their due diligence review as shall exist (or if not existing, using commercially reasonable efforts to prepare such reasonable and customary financial information) and as may be reasonably requested by Manchester or the Underwriters, (d) promptly prepare a registration statement, prospectus and prospectus supplement for the Secondary Offering and provide Manchester and the Underwriters and their respective counsel with a reasonable opportunity to review and comment thereon, (e) obtain customary comfort letters from the auditors of Arsenal and Emerald and consent from such auditors for use of any of their audit reports (including but not limited to by including such reports in any offering or information documents for the Secondary Offering, including any registration statement or related prospectus) and SAS 100 reviews, (f) obtain customary legal opinions or other certificates or documents of Arsenal and Emerald as may reasonably be requested by Manchester or the Underwriters, (g) prepare any financial information as required by the rules and regulations of the SEC and (h) take such reasonable and customary further actions that the Underwriters or their counsel deem reasonably necessary or required in order to consummate the Secondary Offering, in each case as promptly as reasonably practicable and to the greatest extent practicable to permit the Secondary Offering to be launched on or prior to the Launch Date in accordance with the Registration Rights Agreement. From the date of this Agreement until the Coniston Closing, Manchester shall, and shall cause its Affiliates and each of its and their respective representatives to, use commercially reasonable efforts to provide all cooperation reasonably requested |
8
by Arsenal and the Underwriters in connection with the Secondary Offering, including using commercially reasonable efforts to (a) furnish Arsenal promptly with all reasonable and customary information regarding Manchester required in connection with the registration statement and prospectus for the Secondary Offering and (b) obtain customary legal opinions or other certificates or documents as may reasonably be requested by Arsenal or the Underwriters, in each case as promptly as reasonably practicable and to the greatest extent practicable to permit the Secondary Offering to be launched on or prior to the Launch Date in accordance with the Registration Rights Agreement. |
(l) | If notwithstanding compliance with the provisions of thisSection 2.2 the Lead Underwriters do not offer an Acceptable Underwriting Agreement at the end of the scheduled road show following a Launch Date, then until this Agreement terminates or expires in accordance with its terms the process set forth in paragraphs (e), (g) and (i) of thisSection 2.2 shall apply in respect of any new Launch Datemutatis mutandis. | |
(m) | The closing of the Greenshoe (theGreenshoe Closing) shall take place at the time and in the manner provided in, and upon the terms and subject to the conditions of, the Underwriting Agreement. | |
(n) | For avoidance of doubt, notwithstanding anything to the contrary contained herein, the Parties acknowledge and agree that (A) while Manchester agrees to use its commercially reasonable efforts to cause the Lead Underwriters to do so, Manchester is unable to cause the Lead Underwriters to offer to execute an Acceptable Underwriting Agreement and nothing herein is intended to (x) imply any commitment on the part of the Lead Underwriters to do so or (y) represent the ability of the Lead Underwriters to sell the Minimum Secondary Offering Shares at a price to the public of not less than the Floor Price and (B) the execution by the Lead Underwriters of an Acceptable Underwriting Agreement is a condition to the Secondary Offering. | |
(o) | For avoidance of doubt, notwithstanding anything to the contrary contained herein or in the Registration Rights Agreement, the Parties acknowledge and agree that Arsenal is entitled to file an automatic universal shelf promptly after execution of this Agreement, copies of which have been made available to Manchester. | |
2.3 | Coniston Closing | |
The closing of the Arsenal Exchange and the Coniston Transaction (theConiston Closing) shall take place as soon as reasonably practicable, but in no event later than three (3) business days following the satisfaction of all conditions precedent to closing of the Coniston Transaction set forth inSection 7.1 (other than those conditions that by their nature are to be satisfied at the Coniston Closing, but subject to the satisfaction of those conditions), or at such other time and date as shall be mutually agreed between Manchester and Arsenal (theConiston Closing Date). | ||
2.4 | Coniston Closing Deliveries | |
At the Coniston Closing: |
(a) | Manchester shall cause Kapiti and ACTS to transfer, convey and deliver to Arsenal the Newco Shares, free and clear of all Liens (other than any Liens or restrictions imposed solely by virtue of applicable securities laws); | ||
(b) | Arsenal shall issue to Kapiti and ACTS the Exchange Shares, free and clear of all Liens (other than any Liens or restrictions imposed solely by virtue of applicable securities laws); |
9
(c) | Manchester shall cause MPL, Kapiti and ACTS to sell, transfer, convey and deliver to Arsenal the Repurchase Shares, free and clear of all Liens (other than any Liens or restrictions imposed solely by virtue of applicable securities laws); | ||
(d) | Arsenal shall deliver to Manchester the Repurchase Consideration; | ||
(e) | Manchester shall deliver to Arsenal the resignations of Manchester’s current nominees to the Arsenal Board of Directors (other than those being nominated by Manchester pursuant to the Amended and Restated Relationship Agreement); | ||
(f) | Arsenal shall deliver to Manchester the certificate called for inSection 7.1(b)(vi) and(vii), and Manchester shall deliver to Arsenal the certificate called for inSection 7.1(c)(v) and(vi); | ||
(g) | Each Party shall deliver to the other Party duly executed counterparts of each Transaction Document that is to be entered into on the Coniston Closing Date; | ||
(h) | Manchester shall deliver to Arsenal a statement from Newco as provided for under the Code and applicable Treasury regulations certifying that Newco is not, and has not been, a “United States real property holding corporation”; | ||
(i) | Manchester shall deliver to Arsenal the corporate books and records of Newco, including true and correct copies of all documents relating to the US Reorganization; and | ||
(j) | Manchester shall cause the PLR Bank Guarantee and the Historic Bank Guarantee to be delivered to Arsenal. |
2.5 | Withholding Taxes | |
All consideration delivered pursuant to thisSection 2 orSection 3 shall not be reduced by, and shall be made free and clear of, any withholding or similar Taxes (provided that the statement described inSection 2.4(h) shall have been delivered). | ||
3. | CONTINGENT REPURCHASE TRANSACTION | |
3.1 | Contingent Repurchase of Arsenal Shares | |
Upon the satisfaction of all conditions precedent necessary for closing of the Emerald Transaction (other than that the Coniston Closing shall have occurred and other than those conditions that by their nature are to be satisfied on the date of the closing of the Emerald Transaction), Arsenal shall provide written notice stating the same to Manchester in the form of a certificate signed by duly authorized representatives of both Arsenal and Emerald. Manchester shall have ten (10) business days after receipt of such certificate to provide a written notice (theContingent Repurchase Election Notice) to Arsenal requiring it to purchase the Contingent Repurchase Shares (theContingent Repurchase). If Manchester provides the Contingent Repurchase Election Notice, then the Contingent Repurchase Consideration shall be paid by Arsenal at the Contingent Repurchase Closing in U.S. dollars by wire transfer of immediately available funds to the Manchester Bank Account. |
10
3.2 | Contingent Repurchase Closing | |
The closing of the Contingent Repurchase (theContingent Repurchase Closing) shall take place on the later of (i) the second business day after the Emerald Closing and (ii) the fifth business day after Manchester has provided the Contingent Repurchase Election Notice, or at such other time and date as shall be mutually agreed between Manchester and Arsenal (theContingent Repurchase Closing Date), in either case subject to the satisfaction of all conditions precedent to the Contingent Repurchase Closing set forth inSection 7.2. | ||
3.3 | Contingent Repurchase Closing Deliveries | |
At the Contingent Repurchase Closing: |
(a) | Manchester shall cause Kapiti and ACTS to sell, transfer, convey and deliver to Arsenal the Contingent Repurchase Shares, free and clear of all Liens (other than any Liens or restrictions imposed solely by virtue of applicable securities laws); and | ||
(b) | Arsenal shall deliver to Manchester the Contingent Repurchase Consideration. |
4. | REPRESENTATIONS AND WARRANTIES OF MANCHESTER | |
Manchester represents and warrants to Arsenal that: | ||
4.1 | Organization; Authority; Execution and Delivery; Enforceability |
(a) | Manchester is a public limited company duly formed and validly existing under the Laws of England and Wales. | |
(b) | Manchester has all necessary corporate power and authority to enter into this Agreement and each Transaction Document to which it is, or will be, a party, and, subject to obtaining the Manchester Shareholder Approval, to perform its obligations under this Agreement and each such Transaction Document and to complete the Coniston Transaction and the Contingent Repurchase. The execution, delivery and performance by Manchester of this Agreement, each of the Written Consents and each Transaction Document to which it is, or will be a party, and, subject to obtaining the Manchester Shareholder Approval, the completion of the Coniston Transaction and the Contingent Repurchase have been duly authorized and all necessary corporate proceedings on the part of Manchester have been taken. This Agreement has been, and each of the Written Consents and each Transaction Document to which Manchester is, or will be, a party has been or will be, duly executed and delivered by Manchester, and assuming the due authorization, execution and delivery by each other party, constitutes a legal, valid and binding obligation of Manchester, enforceable in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, moratorium or other similar laws of general application relating to or affecting creditors’ rights generally and except for the limitations imposed by general principles of equity. | |
(c) | Kapiti is a limited company duly formed and validly existing under the Laws of England and Wales and a Subsidiary of Manchester. ACTS is a limited company duly formed and validly existing under the Laws of England and Wales and a Subsidiary of Manchester. MPL is a limited company duly formed and validly existing under the Laws of England and Wales and a Subsidiary of Manchester. Each of Kapiti and ACTS have all necessary corporate power and authority to complete the Arsenal Exchange, the Coniston Transaction and the Contingent Repurchase. MPL has all necessary corporate power and |
11
authority to complete the Coniston Transaction. The completion of the Arsenal Exchange, the Coniston Transaction and the Contingent Repurchase have been duly authorized and all necessary corporate proceedings on the part of each of Kapiti and ACTS have been taken. The completion of the Coniston Transaction has been duly authorized and all necessary corporate proceedings on the part of MPL have been taken. |
(d) | At the Coniston Closing Date, Newco will be a corporation duly formed and validly existing under the Laws of the State of Delaware. At the Coniston Closing date, Newco will have full power and authority to own or lease and to operate and use its assets and properties and to conduct its business as then conducted. True and complete copies of the certificate of incorporation and all amendments thereto and of the by-laws, as amended to date, of Newco will have been delivered to Arsenal on or prior to the Coniston Closing Date. | |
(e) | Immediately prior to the date of this Agreement, the board of directors of Manchester (or a duly constituted committee thereof), at a meeting duly called and held, duly adopted resolutions resolving to: (i) recommend that Manchester’s shareholders approve the transactions contemplated by this Agreement in the manner required by LR13.3.1R(5) of the Listing Rules of the Financial Service Authority; and (ii) approve this Agreement, each Transaction Document to which Manchester is, or will be, a party and the transactions contemplated hereby and thereby, including the Coniston Transaction and the Contingent Repurchase. | |
4.2 | No Conflicts; Consents | |
(a) | The execution, delivery and, subject to obtaining the Manchester Shareholder Approval, performance of this Agreement by Manchester and of each of the Written Consents and each Transaction Document to which it is, or will be, a party do not, and, subject to obtaining the Manchester Shareholder Approval, the completion of the Coniston Transaction and the Contingent Repurchase will not, (i) conflict with or violate the articles of association of Manchester, (ii) conflict with or violate any applicable Law or Order applicable to Manchester or its assets or (iii) breach or constitute a default (or an event that with notice or lapse of time or both would become a default) under, or give to others any rights of termination, amendment, acceleration or cancellation of, or result in any loss of any benefit under, or the creation or imposition of any Lien on any of Manchester’s assets pursuant to, any material Contract or other instrument or obligation to which Manchester is a party or by which Manchester or its assets are otherwise bound; except, in the case of clauses (ii) and (iii), for any breach, violation, termination, default, acceleration, creation or change that would not, individually or in the aggregate, materially impair the ability of Manchester to perform its obligations hereunder or prevent the consummation of any of the transactions contemplated hereby by Manchester. | |
(b) | The completion of the Arsenal Exchange, the Coniston Transaction and the Contingent Repurchase will not, (i) conflict with or violate the articles of association of Kapiti or ACTS, (ii) conflict with or violate any applicable Law or Order applicable to Kapiti or ACTS or their respective assets (including the Newco Shares), or (iii) breach or constitute a default (or an event that with notice or lapse of time or both would become a default) under, or give to others any rights of termination, amendment, acceleration or cancellation of, or result in any loss of any benefit under, or the creation or imposition of any Lien on any of the assets of Kapiti or ACTS (including the Newco Shares) pursuant to, any material Contract or other instrument or obligation to which Kapiti or ACTS is a party or by which Kapiti or ACTS or their respective assets (including the Newco Shares) are otherwise bound; except, in the case of clauses (ii) and (iii), for any breach, violation, termination, default, acceleration, creation or change that would not, individually or in the aggregate, materially impair the ability of Kapiti or ACTS to |
12
perform its respective obligations hereunder or prevent the consummation of any of the transactions contemplated hereby by Kapiti or ACTS. |
(c) | The completion of the Coniston Transaction will not, (i) conflict with or violate the articles of association of MPL, (ii) conflict with or violate any applicable Law or Order applicable to MPL or its assets or (iii) breach or constitute a default (or an event that with notice or lapse of time or both would become a default) under, or give to others any rights of termination, amendment, acceleration or cancellation of, or result in any loss of any benefit under, or the creation or imposition of any Lien on any of the assets of MPL pursuant to, any material Contract or other instrument or obligation to which MPL is a party or by which MPL or its assets are otherwise bound; except, in the case of clauses (ii) and (iii), for any breach, violation, termination, default, acceleration, creation or change that would not, individually or in the aggregate, materially impair the ability of MPL to perform its obligations hereunder or prevent the consummation of any of the transactions contemplated hereby by MPL. | |
(d) | Other than the filing with the UK Listing Authority of the Circular, the execution, delivery and performance by Manchester of this Agreement and each Transaction Document to which it is, or will be, a party do not, and the completion of the Coniston Transaction and the Contingent Repurchase will not, require any Governmental Authorization to be obtained by Manchester, Kapiti, ACTS, MPL or Newco or any filing with any Governmental Authority to be made by Manchester, Kapiti, ACTS, MPL or Newco. | |
4.3 | Litigation | |
As of the date of this Agreement, there are not any (a) Proceedings pending or, to the Knowledge of Manchester, threatened against or affecting Manchester, Kapiti, ACTS, MPL, Newco or any of their respective Affiliates or (b) investigations by any Governmental Authority that are pending or, to the Knowledge of Manchester, threatened against or affecting Manchester, Kapiti, ACTS, MPL, Newco or any of their respective Affiliates that, in either case, would, individually or in the aggregate, materially adversely affect the ability of Manchester to perform its obligations under this Agreement or any Transaction Document to which it is, or will be, a party or affect the ability of Manchester, Kapiti, ACTS, MPL, Newco or any of their respective Affiliates to complete the Arsenal Exchange, the Coniston Transaction or the Contingent Repurchase in accordance with the terms hereof. | ||
4.4 | Repurchase Shares; Contingent Repurchase Shares | |
(a) | Assuming Arsenal complies with its obligations under this Agreement and is not in breach of its representations and warranties inSection 5.5, at the Coniston Closing Date, MPL, Kapiti and ACTS will own, in the aggregate, at least 79,811,511 Arsenal Shares free of any “adverse claim” (within the meaning of Section 8-102(1) of the UCC). Assuming Arsenal complies with its obligations under this Agreement and is not in breach of its representations and warranties inSection 5.5, at the Coniston Closing Date, the Repurchase Shares (a) will not be subject to any Liens, claims, charges, mortgages, security interests, pledges, reversions or other property interests and (b) will not be subject to, and none of MPL, Kapiti or ACTS will be party to or otherwise bound by, any options, voting proxies, other voting arrangements, arrangements to sell, assign or transfer, preemptive, subscription, call, put or other similar rights relating to the Repurchase Shares that purport to (i) prohibit MPL, Kapiti or ACTS from transferring the Repurchase Shares to Arsenal as contemplated by this Agreement or (ii) affect the Repurchase Shares or Arsenal after such transfer. Assuming Arsenal complies with its obligations under this Agreement and is not in breach of its representations and warranties inSection 5.5, upon delivery of the Repurchase Shares in exchange for the Repurchase Consideration on the Coniston Closing Date, Arsenal will acquire good, valid and marketable title to all of the Repurchase Shares free and clear of all |
13
Liens, other than any Liens or restrictions imposed on the Repurchase Shares solely by virtue of applicable securities laws. |
(b) | Assuming Arsenal complies with its obligations under this Agreement and is not in breach of its representations and warranties inSection 5.5, at the Contingent Repurchase Closing Date, Kapiti and ACTS will own, in the aggregate, at least the number of Arsenal Shares set forth in the Contingent Repurchase Election Notice free of any “adverse claim” (within the meaning of Section 8-102(1) of the UCC). Assuming Arsenal complies with its obligations under this Agreement and is not in breach of its representations and warranties inSection 5.5, at the Contingent Repurchase Closing Date, the Contingent Repurchase Shares (a) will not be subject to any Liens, claims, charges, mortgages, security interests, pledges, reversions or other property interests and (b) will not be subject to, and neither Kapiti nor ACTS will be party to or otherwise bound by, any options, voting proxies, other voting arrangements, arrangements to sell, assign or transfer, preemptive, subscription, call, put or other similar rights relating to the Contingent Repurchase Shares that purport to (i) prohibit Kapiti or ACTS from transferring the Contingent Repurchase Shares to Arsenal as contemplated by this Agreement or (ii) affect the Contingent Repurchase Shares or Arsenal after such transfer. Assuming Arsenal complies with its obligations under this Agreement and is not in breach of its representations and warranties inSection 5.5, upon delivery of the Contingent Repurchase Shares in exchange for the Contingent Repurchase Consideration on the Contingent Repurchase Closing Date, Arsenal will acquire good, valid and marketable title to all of the Contingent Repurchase Shares free and clear of all Liens, other than any Liens or restrictions imposed on the Contingent Repurchase Shares solely by virtue of applicable securities laws. | |
4.5 | Newco Capitalization; No Liabilities or Obligations | |
(a) | At the Coniston Closing Date, the authorized capital stock of Newco will consist of one hundred thousand (100,000) common shares, par value $0.01 per share, of which sixty-one thousand three hundred eight (61,308) common shares, constituting the Newco Shares, will be issued and outstanding. At the Coniston Closing Date, except for the Newco Shares, there will be no shares of capital stock or other equity securities of Newco issued, reserved for issuance, held by Newco as treasury stock or outstanding. At the Coniston Closing Date, the Newco Shares will be duly authorized, validly issued, fully paid and nonassessable and will not be subject to or issued in violation of any purchase option, warrant, call option, right of first refusal, preemptive right, subscription right or any similar right under any provision of the General Corporation Law of the State of Delaware, the certificate of incorporation or bylaws of Newco or any Contract to which Newco is a party or Newco or the Newco Shares are otherwise bound. At the Coniston Closing Date, there will not be any bonds, debentures, notes or other indebtedness of Newco having the right to vote (or convertible into, or exchangeable for, securities having the right to vote) on any matters on which holders of Newco Shares may vote. At the Coniston Closing Date, there will not be any options, warrants, rights, convertible or exchangeable securities, “phantom” stock rights, stock appreciation rights, stock-based performance units, commitments, Contracts, arrangements or undertakings of any kind to which Newco is a party or by which Newco or the Newco Shares are bound (i) obligating Newco to issue, deliver or sell, or cause to be issued, delivered or sold, additional shares of capital stock or other equity interests in, or any security convertible or exercisable for or exchangeable into any capital stock of or other equity interest in, Newco, (ii) obligating Newco to issue, grant, extend or enter into any such option, warrant, call, right, security, commitment, Contract, arrangement or undertaking or (iii) that give any Person the right to receive any economic benefit or right similar to or derived from the economic benefits and rights accruing to holders of Newco Shares. At the Coniston Closing Date, there will not be any outstanding contractual obligations of Newco to repurchase, redeem or otherwise acquire any shares of capital stock of Newco. |
14
(b) | At the Coniston Closing Date, except for the Arsenal Shares owned by it, Newco will not, directly or indirectly, (i) own, of record or beneficially, any outstanding voting securities or other equity interests in any corporation, partnership, limited liability company, joint venture or other entity or (ii) Control any corporation, partnership, limited liability company, joint venture or other entity. From and after June 1, 2010, except for the Arsenal Shares owned directly or indirectly by it and the Subsidiaries listed onSchedule 4.5(b) (which have no operations), Newco will not, directly or indirectly, (i) own, of record or beneficially, any outstanding voting securities or other equity interests in any corporation, partnership, limited liability company, joint venture or other entity or (ii) Control any corporation, partnership, limited liability company, joint venture or other entity. True and correct copies of any Contracts relating to the previously completed steps contemplated by the Restructuring Slides have been provided to Arsenal. | |
(c) | At the Coniston Closing Date, other than the ownership of capital stock of its Subsidiaries and Arsenal Shares, neither Newco nor any predecessor of Newco will have (i) conducted any business activities within the five (5) years prior to the date thereof, (ii) any liabilities (whether absolute, contingent or accrued) other than liabilities related to any Tax, (iii) any Contracts binding upon it other than those pursuant to this Agreement, the Transaction Documents and the transactions contemplated hereby and thereby, (iv) any operations of any kind whatsoever or (v) any obligations other than obligations related to any Tax, routine corporate filings in the State of Delaware or those pursuant to this Agreement, the Transaction Documents and the transactions contemplated hereby and thereby. No other business entity has been merged into Newco or any predecessor of Newco within the past five (5) years. | |
4.6 | The Newco Shares; Arsenal Shares Owned by Newco | |
(a) | At the Coniston Closing Date, Kapiti and ACTS will own, in the aggregate, 100% of the Newco Shares free of any “adverse claim” (within the meaning of Section 8-102(1) of the UCC). At the Coniston Closing Date, the Newco Shares (a) will not be subject to any Liens, claims, charges, mortgages, security interests, pledges, reversions or other property interests and (b) will not be subject to, and neither Kapiti nor ACTS will be party to or otherwise bound by, any options, voting proxies, other voting arrangements, arrangements to sell, assign or transfer, preemptive, subscription, call, put or other similar rights relating to the Newco Shares that purport to (i) prohibit Kapiti or ACTS from transferring the Newco Shares to Arsenal as contemplated by this Agreement or (ii) affect the Newco Shares or Arsenal after such transfer. Upon delivery of the Newco Shares in exchange for the Exchange Shares on the Coniston Closing Date, Arsenal will acquire good, valid and marketable title to all of the Newco Shares free and clear of all Liens, other than any Liens or restrictions imposed on the Newco Shares solely by virtue of applicable securities laws. | |
(b) | At the Coniston Closing Date, Newco will own 61,308,295 Arsenal Shares free of any “adverse claim” (within the meaning of Section 8-102(1) of the UCC). At the Coniston Closing Date, the Arsenal Shares owned by Newco (a) will not be subject to any Liens, claims, charges, mortgages, security interests, pledges, reversions or other property interests and (b) will not be subject to, and Newco will not be party to or otherwise bound by, any options, voting proxies, other voting arrangements, arrangements to sell, assign or transfer, preemptive, subscription, call, put or other similar rights relating to the Arsenal Shares owned by it that purport to affect the Arsenal Shares owned by Newco or Arsenal after the Coniston Closing Date. Upon delivery of the Newco Shares in exchange for the Exchange Shares on the Coniston Closing Date, Newco will continue to have good, valid and marketable title to all of the Arsenal Shares owned by it free and clear of all Liens, other than any Liens or restrictions imposed on the Arsenal Shares owned by Newco solely by virtue of applicable securities laws. |
15
4.7 | Brokers | |
Other than as set forth onSchedule 4.7, the fees and expenses of which shall be paid by Manchester, no Person has or will have, as a result of the Coniston Transaction or the Contingent Repurchase, any right, interest or valid claim against or upon any Party for any commission, fee or other compensation as a finder or broker because of any act or omission by Manchester, Kapiti, ACTS, MPL, Newco, their respective Affiliates or any of their respective representatives. | ||
4.8 | Taxes | |
Except as set forth on Schedule 4.8, to the Knowledge of Manchester: | ||
(a) | all material Taxes (whether or not shown on any Tax Return) owed by Newco or any Company Group, or for which Newco or any Company Group may otherwise be liable, have been timely paid; | |
(b) | each of Newco and each Company Group has filed all material Tax Returns required to be filed by it and has paid all Taxes shown thereon to be payable; | |
(c) | all such Tax Returns are complete and accurate in all material respects and disclose all material Taxes required to be paid by Newco and each Company Group for the periods covered thereby; | |
(d) | Newco has not been a member of any Company Group other than the one of which it is presently the common parent, and Newco does not have any liability for Taxes of another Person under Treasury Regulation § 1.1502-6 (or any similar provision of state, local or foreign law) under any tax indemnification arrangement, as transferee or successor; and | |
(e) | during the last five (5) years, neither Newco nor any current or former Subsidiary of Newco nor any member of any Company Group has been a party to any transaction treated by the parties thereto as one to which Section 355 of the Code (or any similar provision of state, local or foreign law) applied. | |
For purposes of thisSection 4.8, all references to Newco shall include any predecessor of Newco. | ||
5. | REPRESENTATIONS AND WARRANTIES OF ARSENAL | |
Arsenal represents and warrants to Manchester that: | ||
5.1 | Organization; Authority; Execution and Delivery; Enforceability | |
(a) | Arsenal is a corporation duly incorporated, validly existing and in good standing under the Laws of the State of Delaware. | |
(b) | Arsenal has all necessary corporate power and authority to (i) enter into this Agreement and each Transaction Document to which it is, or will be, a party, (ii) subject to obtaining and the effectiveness of the Arsenal Written Consent, perform its obligations under this Agreement and each such Transaction Document and to complete the Arsenal Exchange, the Coniston Transaction and the Contingent Repurchase and (iii) subject to obtaining and the effectiveness of the Written Consents and obtaining the Arsenal Stockholder Approval, complete the Emerald Transaction. The execution, delivery and performance by Arsenal of this Agreement and each Transaction Document to which it is, or will be a party, and, subject to obtaining the Arsenal Written Consent, the completion of the Arsenal Exchange, the Coniston Transaction and the Contingent Repurchase and, subject to obtaining and the effectiveness |
16
of the Written Consents and obtaining the Arsenal Stockholder Approval, the Emerald Transaction, have been duly authorized and all necessary corporate proceedings on the part of Arsenal have been taken. This Agreement has been, and each Transaction Document to which Arsenal is, or will be, a party has been or will be, duly executed and delivered by Arsenal, and assuming the due authorization, execution and delivery by each other party, constitutes a legal, valid and binding obligation of Arsenal, enforceable in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, moratorium or other similar laws of general application relating to or affecting creditors’ rights generally and except for the limitations imposed by general principles of equity. |
(c) | The board of directors and the Audit Committee of Arsenal, at a meeting duly called and held, duly adopted resolutions resolving to: (i) recommend that Arsenal’s stockholders approve the transactions contemplated by this Agreement and the Emerald Definitive Agreement; and (ii) approve this Agreement, the Emerald Definitive Agreement, each Transaction Document to which Arsenal is, or will be, a party and the transactions contemplated hereby and thereby, including the Coniston Transaction, the Emerald Transaction and the Contingent Repurchase, in the manner required by the General Corporation Law of the State of Delaware and Arsenal’s Second Amended and Restated Certificate of Incorporation and Bylaws. | |
5.2 | No Conflicts; Consents | |
(a) | Other than as set forth onSchedule 5.2(a), the execution, delivery and performance of this Agreement by Arsenal and of each Transaction Document to which it is, or will be, a party do not, and the completion of the Arsenal Exchange and the Coniston Transaction will not, (i) assuming Manchester complies with its obligations under this Agreement, conflict with or violate the certificate of incorporation, bylaws or other organizational documents of Arsenal, (ii) conflict with or violate any applicable Law or Order applicable to Arsenal or its assets or (iii) breach or constitute a default (or an event that with notice or lapse of time or both would become a default) under, or give to others any rights of termination, amendment, acceleration or cancellation of, or result in any loss of any benefit under, or the creation or imposition of any Lien on any of Arsenal’s assets pursuant to, any material Contract or other instrument or obligation to which Arsenal is a party or by which Arsenal or its assets are otherwise bound; except, in the case of clauses (ii) and (iii), for any breach, violation, termination, default, acceleration, creation or change that would not, individually or in the aggregate, materially impair the ability of Arsenal to perform its obligations hereunder or prevent the consummation of any of the transactions contemplated hereby by Arsenal. | |
(b) | Assuming that all consents, approvals, authorizations and other actions described inSection 5.2(e) have been obtained and all filings and obligations described inSection 5.2(e) have been made, the completion of the Emerald Transaction and the Contingent Repurchase will not, other than as set forth onSchedule 5.2(a), (i) assuming Manchester complies with its obligations under this Agreement, conflict with or violate the certificate of incorporation, bylaws or other organizational documents of Arsenal, (ii) conflict with or violate any applicable Law or Order applicable to Arsenal or its assets or (iii) breach or constitute a default (or an event that with notice or lapse of time or both would become a default) under, or give to others any rights of termination, amendment, acceleration or cancellation of, or result in any loss of any benefit under, or the creation or imposition of any Lien on any of Arsenal’s assets pursuant to, any material Contract or other instrument or obligation to which Arsenal is a party or by which Arsenal or its assets are otherwise bound; except, in the case of clauses (ii) and (iii) as they relate to the Emerald Transaction, for any breach, violation, termination, default, acceleration, creation or change that would not, individually or in the aggregate, have an Arsenal Material Adverse Effect or materially impair the ability of Arsenal to perform its obligations hereunder or under the Emerald Definitive |
17
Agreement or prevent the consummation of any of the transactions contemplated hereby or thereby by Arsenal. | ||
(c) | The completion of the merger with Newco will not, (i) conflict with or violate the certificate of incorporation or bylaws of Exchange Sub, (ii) conflict with or violate any applicable Law or Order applicable to Exchange Sub or its assets or (iii) breach or constitute a default (or an event that with notice or lapse of time or both would become a default) under, or give to others any rights of termination, amendment, acceleration or cancellation of, or result in any loss of any benefit under, or the creation or imposition of any Lien on any of the assets of Exchange Sub pursuant to, any material Contract or other instrument or obligation to which Exchange Sub is a party or by which Exchange Sub or its assets are otherwise bound. | |
(d) | Other than filings with the SEC and the filing of the amendments to Arsenal’s certificate of incorporation with the Secretary of State of the State of Delaware, the execution, delivery and performance by Arsenal of this Agreement and each Transaction Document to which it is, or will be, a party do not, and the completion of the Arsenal Exchange and the Coniston Transaction will not, require any Governmental Authorization to be obtained by Arsenal or Exchange Sub or any filing with any Governmental Authority to be made by Arsenal or Exchange Sub. | |
(e) | No filing or registration with, or authorization, consent or approval of, any Governmental Authority is required by or with respect to the completion by Arsenal of the Emerald Transaction and the Contingent Repurchase, except (i) in connection, or in compliance, with the provisions of the HSR Act, the Securities Act and the Exchange Act, (ii) for the filing of the amendments to Arsenal’s certificate of incorporation and the certificate of merger with the Secretary of State of the State of Delaware and appropriate documents with the relevant authorities of other states in which Arsenal or any of its Subsidiaries is qualified to do business, (iii) such filings, authorizations, orders and approvals as may be required by applicable Takeover Laws, (iv) applicable requirements, if any, of state securities or “blue sky” laws and Nasdaq, (v) applicable requirements, if any, under foreign or supranational laws relating to antitrust and to competition clearances and (vi) such other consents, orders, authorizations, registrations, declarations and filings the failure of which to be obtained or made would not, individually or in the aggregate, have an Arsenal Material Adverse Effect or materially impair the ability of Arsenal to perform its obligations under the Emerald Definitive Agreement or prevent the consummation of any of the transactions contemplated thereby by Arsenal. | |
5.3 | Litigation | |
As of the date of this Agreement, there are not any (a) Proceedings pending or, to the Knowledge of Arsenal, threatened against or affecting Arsenal, Exchange Sub or any of their respective Affiliates or (b) investigations by any Governmental Authority that are pending or, to the Knowledge of Arsenal, threatened against or affecting Arsenal, Exchange Sub or any of their respective Affiliates that, in either case, would, individually or in the aggregate, materially adversely affect the ability of Arsenal to perform its obligations under this Agreement or any Transaction Document to which it is, or will be, a party or affect the ability of Arsenal, Exchange Sub or any of their respective Affiliates to complete the Arsenal Exchange, the Coniston Transaction or the Contingent Repurchase in accordance with the terms hereof or the Emerald Transaction in accordance with the terms of the Emerald Definitive Agreement. | ||
5.4 | Change of Control | |
No Contract with any employee, officer or director of Arsenal or its Subsidiaries to which Arsenal or any of its Subsidiaries is a party or is otherwise bound contains any “change of control” or similar |
18
provision that would be triggered, in whole or in part, or that would otherwise give rise to any payment or acceleration of any benefit to such employee, officer or director, or loss of any benefit to Arsenal or its Subsidiaries, as a result of the completion of the Coniston Transaction, the Emerald Transaction or the Contingent Repurchase. |
5.5 | The Exchange Shares | |
At the Coniston Closing Date, the Exchange Shares will have been duly authorized, validly issued and be fully paid and non-assessable. At the Coniston Closing Date, the Exchange Shares (a) will not be subject to any Liens, claims, charges, mortgages, security interests, pledges, reversions or other property interests and (b) will not be subject to, and Arsenal will not be party to or otherwise bound by, any options, voting proxies, other voting arrangements, arrangements to sell, assign or transfer, preemptive, subscription, call, put or other similar rights relating to the Exchange Shares that purport to (i) prohibit Arsenal from transferring the Exchange Shares to Kapiti and ACTS as contemplated by this Agreement or (ii) affect the Exchange Shares or Kapiti or ACTS after such transfer. Upon delivery of the Exchange Shares in exchange for the Newco Shares on the Coniston Closing Date, Kapiti and ACTS will acquire good, valid and marketable title to all of the Exchange Shares, which will be fully paid, nonassessable and free and clear of all Liens, other than any Liens or restrictions imposed on the Exchange Shares solely by virtue of applicable securities laws. | ||
5.6 | Financial Capability | |
(a) | Attached asExhibit 3 hereto is a true and complete copy of a commitment letter (theCommitment Letter), pursuant to which J.P. Morgan Securities Inc., JPMorgan Chase Bank, N.A., Barclays Bank PLC, Barclays Capital, UBS Securities LLC and UBS Loan Finance LLC (theFinancing Source) have agreed, subject to the terms and conditions set forth therein, to provide financing in the aggregate amount set forth therein (theFinancing). | |
(b) | As of the date hereof, except as set forth in the Commitment Letter, there are no conditions precedent to the obligations of the Financing Source to provide the Financing or that would permit the Financing Source to cancel or reduce the total amount of the Financing. | |
(c) | As of the date hereof, subject to its terms and conditions, the Financing, if funded in accordance with the Commitment Letter, together with available cash, would provide Arsenal with acquisition financing (i) on the Coniston Closing Date sufficient for Arsenal to complete the purchase of the Repurchase Shares at the Coniston Closing and to pay related fees and expenses incurred by Arsenal or for which Arsenal is responsible and (ii) on the Contingent Repurchase Closing Date sufficient for Arsenal to complete the purchase of the Contingent Repurchase Shares at the Contingent Repurchase Closing and to pay related fees and expenses incurred by Arsenal or for which Arsenal is responsible, in each case on the terms and subject to the conditions contemplated hereby and thereby. | |
(d) | As of the date hereof, the Commitment Letter, in the form so delivered, is a legal, valid and binding obligation of Arsenal and, to the Knowledge of Arsenal, the Financing Source, and (assuming that the Commitment Letter constitutes such obligation of the Financing Source) is in full force and effect and enforceable in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, moratorium or other similar laws of general application relating to or affecting creditors’ rights generally and except for the limitations imposed by general principles of equity. |
19
5.7 | Brokers | |
Other than as set forth onSchedule 5.7, the fees and expenses of which shall be paid by Arsenal, no Person has or will have, as a result of the Coniston Transaction, the Emerald Transaction or the Contingent Repurchase, any right, interest or valid claim against or upon any Party for any commission, fee or other compensation as a finder or broker because of any act or omission by Arsenal, any of its Affiliates or any of its or their respective representatives. | ||
5.8 | Emerald Definitive Agreement | |
Attached asExhibit 4 is a true, complete and correct copy of the Emerald Definitive Agreement. As of the date of this Agreement, (i) the Emerald Definitive Agreement has not been amended, supplemented or modified in any respect and (ii) except to the extent enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar Laws affecting the enforcement of creditors’ rights generally and by the effect of general principles of equity (regardless of whether enforcement is considered in a proceeding in equity or at Law), the Emerald Definitive Agreement, upon execution by the parties thereto, will be in full force and effect, and will be a valid and binding obligation of Arsenal and Merger Sub (assuming the valid authorization, execution and delivery of the Emerald Definitive Agreement by Emerald and the validity and binding effect of the Emerald Definitive Agreement on Emerald, which to the Knowledge of Arsenal is the case) and, to the Knowledge of Arsenal, Emerald and the other parties thereto. There are no conditions precedent related to the Emerald Transaction, other than as set forth in the Emerald Definitive Agreement. No state of facts exists or event has occurred which, with or without notice, lapse of time or both, would constitute a breach or default on the part of Arsenal or Merger Sub under any term or condition of the Emerald Definitive Agreement that would, with or without notice, lapse of time or both, result in the failure to satisfy the condition set forth in Section 6.2(a) of the Emerald Definitive Agreement. | ||
6. | ADDITIONAL AGREEMENTS | |
6.1 | Arsenal Financing | |
Without limiting any of its obligations under this Agreement and/or the Commitment Letter, during the period from the date hereof to the earlier of (i) the Contingent Repurchase Closing Date or, if Manchester elects not to require Arsenal to complete the Contingent Repurchase, the Coniston Closing Date and (ii) that date on which this Agreement is terminated, (a) Arsenal shall pay, or cause to be paid, the commitment fees specified in the Commitment Letter as and when due and shall use commercially reasonable efforts to comply with its obligations and enforce its rights under the Commitment Letter in a timely manner, including, if necessary, taking legal action in connection therewith, (b) without the consent of Manchester (which consent shall not be unreasonably withheld), Arsenal shall not agree to any material amendment or modification to the Commitment Letter, or any waiver of any provision or remedy thereunder, if such amendment, modification, waiver or remedy adds new (or adversely modifies existing) conditions to the consummation of the financings contemplated by the Commitment Letter or reduces the aggregate amount of the Financing in any material respect (without a corresponding increase in another portion of the Financing);provided that Arsenal may amend or modify the Commitment Letter (i) to add lenders, lead arrangers, book runners, syndication agents or similar entities that had not executed the Commitment Letter as of the date hereof or (ii) otherwise so long as the terms would not, taken as a whole, adversely impact the ability of Arsenal to consummate the transactions contemplated by this Agreement or the other Transaction Documents, (c) if any portion of the Financing becomes unavailable on the terms and conditions contemplated in the Commitment Letter, Arsenal shall use its commercially reasonable efforts to arrange for the unavailable portion of the |
20
Financing to be provided from alternative sources as promptly as practicable in an amount sufficient to consummate the purchase of the Repurchase Shares and the Contingent Repurchase;provided that Arsenal shall not be required to enter into any financing arrangements on terms that, taken as a whole, are less favorable to Arsenal in any material respect than those contemplated by the Commitment Letter and (d) Arsenal shall keep Manchester reasonably and promptly informed with respect to all material activity concerning the status of the Financing contemplated by the Commitment Letter and shall give prompt notice to Manchester of any material adverse change with respect to such Financing of which Arsenal becomes aware. Without limiting the foregoing, Arsenal shall notify Manchester promptly, and in any event within two (2) business days, if at any time (i) the Commitment Letter shall expire or be terminated for any reason, (ii) the Financing Source notifies Arsenal that it no longer intends to provide part or all of the Financing to Arsenal on the terms set forth therein or (iii) for any reason Arsenal no longer believes in good faith that it will be able to obtain all or any portion of the Financing contemplated by the Commitment Letter on the terms described therein. Manchester shall, and shall cause its Affiliates and each of its and their respective representatives to, provide all cooperation reasonably requested by Arsenal, the Financing Source or their respective representatives in connection with the Financing. Except for the transactions contemplated by this Agreement and the Transaction Documents, Arsenal shall not, and shall not permit any of its Affiliates to, without the prior written consent of Manchester (which consent shall not be unreasonably withheld), enter into any transaction, including any merger, acquisition, joint venture, disposition, lease, contract or debt or equity financing, which transaction at the time of such transaction is reasonably expected to materially impair, delay or prevent consummation of the Financing contemplated by the Commitment Letter. |
6.2 | Emerald Merger | |
Notwithstanding anything contained herein or in the Registration Rights Agreement to the contrary, until the Coniston Closing, Arsenal shall under no circumstances (a) waive the Coniston Condition or (b) agree to any other material amendment to the Emerald Definitive Agreement. | ||
6.3 | Manchester Shareholder Circular | |
To the extent Manchester has not already done so, by a date as soon after the execution of this Agreement as is reasonably practicable, but in any event no later than five (5) business days after the date hereof, Manchester shall file with the UK Listing Authority a draft of the form of circular to be posted to the shareholders of Manchester in connection with the Manchester Shareholders Meeting (as defined below) (theCircular). Not more than two (2) business days after the SEC has cleared the Form S-4 Registration Statement relating to the Emerald Transaction, Manchester shall file with the UK Listing Authority an updated draft of the Circular and request the document be approved for mailing and thereafter Manchester shall use commercially reasonable efforts to procure that as promptly as reasonably practicable, the approval of the UK Listing Authority for the Circular is obtained, and, subject to their fiduciary duties arising under the UK Companies Act 2006 and under English Law and their obligations under the Listing Rules issued by the UK Listing Authority, the board of directors of Manchester (or a duly appointed committee thereof) shall recommend that Manchester’s shareholders approve the Coniston Transaction and the Contingent Repurchase and that statements of such recommendation are included in the Circular. As soon as reasonably practicable (and in any event within one (1) business day) after the approval by the UK Listing Authority of the form of the Circular, Manchester shall mail the Circular to the shareholders of Manchester in order to call, give notice of, convene and hold a meeting of its shareholders or any adjournment or postponement thereof (theManchester Shareholders Meeting) for the purpose of obtaining a resolution that is passed by a simple majority of those present in person or by proxy and entitled to vote on approving the Coniston Transaction and the Contingent Repurchase (theManchester Shareholder Approval). The Circular |
21
6.4 | Amendment to Arsenal By-laws |
6.5 | Appointment of Arsenal Directors and Arsenal Chairman |
6.6 | Voting Agreement |
22
6.7 | Public Announcements |
6.8 | Further Assurances |
(a) | Arsenal and Manchester shall each use their commercially reasonable efforts to (i) obtain as promptly as practicable all Governmental Authorizations set forth onSchedule 6.8(a) and (ii) make, as promptly as practicable, all filings and other submissions to Governmental Authorities in connection with this Agreement and the Transaction Documents and the consummation of the transactions contemplated hereby and thereby, in each case, as may be required under applicable Law;provided that each of Arsenal and Manchester shall consult and cooperate with each other in connection with the making of all such filings, including subject to any restrictions imposed by applicable Law, providing copies of all such documents to the non-filing party and its respective advisors prior to filing. |
(b) | To the extent permitted by applicable Law, each Party shall promptly notify the other Party and Emerald of any communication it or any of its Affiliates receives from any Governmental Authority relating to the matters that are the subject of this Agreement or any Transaction Document, and permit the other Party to review in advance any proposed communication by such Party to any such Governmental Authority. No Party shall agree to participate in any meeting with any Governmental Authority in respect of any filing, investigation or other inquiry related to the transactions contemplated by this Agreement or any Transaction Document unless it consults with the other Party in advance and, to the extent permitted by such Governmental Authority, gives the other Party the opportunity to attend and participate at such meeting. Subject to any applicable confidentiality agreements, to the extent permitted by applicable Law, the Parties shall coordinate and cooperate fully with each other in exchanging such information and providing such assistance as the other Party may reasonably request in connection with the foregoing. Subject to any applicable confidentiality agreements, to the extent permitted by applicable Law, the Parties will provide each other with copies of all correspondence, filings or communications between them or any of their representatives, on the one hand, and any Governmental Authority or member of the staff of any Governmental Authority, on the other hand, with respect to this Agreement, the Transaction Documents and the transactions contemplated hereby and thereby. Notwithstanding the foregoing, other than as set forth inSection 6.3, Manchester shall not be required to involve Arsenal or Emerald in the process of obtaining the approval of the UK Listing Authority for the Circular or any clearance, notification or filing that Manchester may be required or may elect to make with HM Revenue & Customs in the UK, other than keeping Arsenal and Emerald reasonably informed with respect to the foregoing. |
(c) | Arsenal and Manchester shall cooperate, and use their commercially reasonable efforts to take, or cause to be taken, all actions, and to do, or cause to be done, all things necessary, proper or advisable to consummate the transactions contemplated by this Agreement and the Transaction Documents as promptly as reasonably practicable. Arsenal shall use its commercially reasonable efforts to ensure that the conditions set forth inSections 7.1(a),7.1(b) and7.2 are satisfied, insofar as such matters are within the control of Arsenal, including by executing a customary underwriting agreement containing terms |
23
6.9 | Use of Names |
6.10 | Section 16 Matters |
6.11 | Termination of Stock Repurchase Agreement |
6.12 | Patriot Merger Agreement |
24
6.13 | India Migration |
(a) | As soon as reasonably practicable after the date of this Agreement, the Parties shall negotiate in good faith a definitive agreement (theIndia Migration Plan) to implement: (i) the transfer of employment of Manchester India Employees from the relevant Manchester Group Member to Arsenal (or any of its Affiliates); (ii) the novation and assignment of the India Lease from the relevant Manchester Group Member to Arsenal (or any of its Affiliates); and (iii) the transfer (in a manner to be determined between the Parties in the India Migration Plan) of the benefits and obligations of the relevant Manchester Group Member under the HP Mercury Licence as they relate to the software development activities of Arsenal (and its Affiliates) undertaken in India as at the date of this Agreement. Each Party shall use its respective commercially reasonable efforts to obtain any necessary third Person consents or approvals in connection with the India Migration Plan. | |
(b) | If the Parties enter into the India Migration Plan, Schedule B to the Transitional Services Agreement shall cease (in accordance with the terms of the Transitional Services Agreement), and the relevant provisions of paragraphs (c) and (d) of thisSection 6.13 shall apply, with respect to each transfer contemplated inSection 6.13(a) from the date such transfer is completed in accordance with the India Migration Plan. | |
(c) | If the Parties enter into the India Migration Plan, from and after the date on which the relevant transfer is completed, Arsenal shall indemnify and hold harmless Manchester (or the relevant Manchester Group Member) against all Losses relating to or arising from: (i) Manchester India Employees, with respect to the transfer of their employment to Arsenal (or any of its Affiliates) or to their subsequent employment (or any termination thereof) by Arsenal (or any of its Affiliates); (ii) the India Lease, with respect to any act or omission of Arsenal (or its Affiliates) thereunder that occurs after the novation and assignment of the India Lease in accordance with the India Migration Plan; and (iii) the assumption by Arsenal (or its Affiliates) of the benefits and obligations under the HP Mercury Licence or any act or omission of Arsenal (or its Affiliates) with respect thereto that occurs after the date of such assumption. | |
(d) | If the Parties enter into the India Migration Plan, from and after the date on which the relevant transfer is completed, Manchester shall indemnify and hold harmless Arsenal (or the relevant Arsenal Group Member) against all Losses relating to or arising from: (i) Manchester India Employees, with respect to the period prior to the transfer of their employment to Arsenal (or any of its Affiliates); (ii) the India Lease, with respect to any act or omission of Manchester (or its Affiliates) thereunder that occurs prior to the novation and assignment of the India Lease in accordance with the India Migration Plan; and (iii) the HP Mercury Licence, with respect to any act or omission of Manchester (or its Affiliates) with respect thereto that occurs prior to the date of assumption by Arsenal (or its Affiliates) of the benefits and obligations under such license. | |
(e) | Under the India Migration Plan: (i) as part of the novation and assignment of the India Lease, Arsenal shall assume the obligation to pay the lease deposit to the landlord in respect of the India Lease if the landlord gives written consent therefor;provided, that if the consent of the landlord is not obtained, Arsenal shall pay Manchester (or its relevant Affiliates) the amount of such deposit so long as the landlord has given written consent or acknowledgement to Arsenal and Manchester that the lease deposit held by the landlord belongs to Arsenal and not to Manchester; (ii) Arsenal shall have the right, but not the obligation, to notify Manchester that it wishes to purchase, at net book value as at the date of such notice, all PCs, telephones and other equipment owned by Manchester (or its relevant Affiliates) and used by Manchester India Employees as at the date of such notice; (iii) Manchester shall provide (and shall procure that its relevant Affiliates provide) reasonable IT resources and project management capabilities to enable Arsenal to execute and complete the India Migration Plan;provided, that |
25
6.14 | Arsenal Exchange Sub |
7. | CONDITIONS PRECEDENT |
7.1 | Conditions Precedent to the Coniston Closing |
(a) | Neither Party shall be obligated to complete the Coniston Closing if, on the Coniston Closing Date, any Law, injunction or other legal prohibition preventing the closing of the Coniston Transaction shall be in effect;provided, that if any such Law, injunction or other legal prohibition preventing the Coniston Transaction is in effect, then the Parties shall use their respective commercially reasonable efforts to remove such injunction or other legal prohibition and proceed with the Coniston Closing. | |
(b) | The obligation of Manchester to complete the Coniston Closing is subject to the satisfaction on or prior to the Coniston Closing Date of the following conditions: |
(i) | Manchester shall have, concurrently with and as part of the Coniston Closing, completed the Secondary Offering (A) of no fewer than the Minimum Secondary Offering Sharesand (B) at a price to the public per Secondary Offering Share of not less than the Floor Price; | ||
(ii) | the Manchester Shareholder Approval shall have been obtained; | ||
(iii) | each of the Transaction Documents required to be delivered by Arsenal at the Coniston Closing shall have been duly executed and delivered by Arsenal; | ||
(iv) | the Financing contemplated by the Commitment Letter shall have been consummated in all material respects in accordance with the terms of the Commitment Letter; | ||
(v) | there shall have been no material changes to the Emerald Definitive Agreement that were not approved by Manchester; | ||
(vi) | the representations and warranties of Arsenal made in this Agreement that are qualified as to materiality shall be true and correct, and those not so qualified shall be true and correct in all material respects, in each case as of the date of this Agreement and the Coniston Closing Date as though made as of such time, except to the extent such representations and warranties expressly relate to an earlier date (in which case such representations and warranties qualified as to |
26
materiality shall be true and correct, and those not so qualified shall be true and correct in all material respects, on and as of such earlier date), and Manchester shall have received a certificate signed by an authorized officer of Arsenal to such effect; and | |||
(vii) | Arsenal shall have performed or complied in all material respects with all obligations and covenants (other thanSection 6.2, which Arsenal shall have performed or complied with in all respects) required by this Agreement and the Relevant Provisions of the Registration Rights Agreement to be performed or complied with by Arsenal by the Coniston Closing Date, and Manchester shall have received a certificate signed by an authorized officer of Arsenal to such effect. |
(c) | The obligation of Arsenal to complete the Coniston Closing is subject to the satisfaction on or prior to the Coniston Closing Date of the following conditions: |
(i) | each of the Transaction Documents required to be delivered by Manchester at the Coniston Closing shall have been duly executed and delivered by Manchester; | ||
(ii) | the Financing contemplated by the Commitment Letter shall have been consummated in all material respects in accordance with the terms of the Commitment Letter; | ||
(iii) | Manchester shall have, concurrently with and as part of the Coniston Closing, completed the Secondary Offering of no fewer than the Minimum Secondary Offering Shares; | ||
(iv) | Arsenal shall have received the Solvency Letter and such letter shall not have been withdrawn or modified in any material respect; | ||
(v) | the representations and warranties of Manchester made in this Agreement that are qualified as to materiality shall be true and correct, and those not so qualified shall be true and correct in all material respects, in each case (other thanSection 4.4(b)) as of the date of this Agreement and the Coniston Closing Date (and, in the case ofSection 4.4(b), as of the date of this Agreement and the Contingent Repurchase Closing Date) as though made as of such time, except to the extent such representations and warranties expressly relate to an earlier date (in which case such representations and warranties qualified as to materiality shall be true and correct, and those not so qualified shall be true and correct in all material respects, on and as of such earlier date), and Arsenal shall have received a certificate signed by an authorized officer of Manchester to such effect; and | ||
(vi) | Manchester shall have performed or complied in all material respects with all obligations and covenants required by this Agreement to be performed or complied with by Manchester by the Coniston Closing Date, and Arsenal shall have received a certificate signed by an authorized officer of Manchester to such effect. |
7.2 | Conditions Precedent to the Contingent Repurchase Closing |
(a) | Manchester shall have elected to require Arsenal to complete the Contingent Repurchase in accordance withSection 3.1; |
27
(b) | the Emerald Transaction shall have been completed; and | ||
(c) | no Law, injunction or other legal prohibition preventing the Contingent Repurchase Closing shall be in effect; |
8. | TERMINATION |
8.1 | Termination Prior to Coniston Closing |
(a) | This Agreement and the transactions contemplated hereby may be terminated at any time prior to the Coniston Closing: |
(i) | by Manchester or Arsenal, if the Coniston Closing has not been completed on or prior to December 9, 2010 (theOutside Date); | ||
(ii) | by Manchester or Arsenal, if the Manchester Shareholder Approval shall not have been obtained at the Manchester Shareholders Meeting, or at any adjournment or postponement thereof, at which the final vote thereon was taken; | ||
(iii) | by Manchester, if any of the conditions set forth inSections 7.1(b)(vi) or7.1(b)(vii) shall have become incapable of fulfilment;provided, that Manchester shall provide Arsenal and Emerald ten (10) business days’ prior written notice stating its intention to terminate pursuant to thisSection 8.1(a)(iii) and the basis for such termination (it being understood that Manchester shall be obligated to provide such written notice as soon as reasonably practicable after Manchester becomes aware of such breach); | ||
(iv) | by Arsenal, if any of the conditions set forth inSections 7.1(c)(v) or7.1(c)(vi) shall have become incapable of fulfilment;provided, that Arsenal shall provide Manchester ten (10) business days’ prior written notice stating its intention to terminate pursuant to thisSection 8.1(a)(iv) and the basis for such termination (it being understood that Arsenal shall be obligated to provide such written notice as soon as reasonably practicable after Arsenal becomes aware of such breach); | ||
(v) | by either Manchester or Arsenal in the event that any Governmental Authority shall have issued an Order or taken any other action permanently enjoining or otherwise permanently prohibiting the Coniston Transaction and such Order or other action shall have become final and nonappealable; or | ||
(vi) | by the mutual written consent of Arsenal and Manchester (and with the written consent of Emerald), which consent, in the case of Arsenal prior to the Coniston Closing, shall be approved by the Audit Committee of the Arsenal Board of Directors; |
28
(b) | In the event of termination by Manchester or Arsenal pursuant to thisSection 8.1, written notice thereof shall forthwith be given to the other Party and this Agreement and the Coniston Transaction shall be terminated, without further action by either Party. |
8.2 | Effect of Termination |
9. | SURVIVAL; INDEMNIFICATION |
9.1 | Survival |
(a) | The representations and warranties of the Parties contained in this Agreement or in any certificate or other writing delivered pursuant to this Agreement or in connection with this Agreement shall not survive the Coniston Closing;provided that, in the event the Coniston Closing occurs, the representations and warranties contained inSections 4.1,4.4,4.5,4.6,4.7,5.1,5.5, and5.7 (and the certificates delivered in accordance withSections 7.1(b)(vi) and7.1(c)(v) related thereto) and the representation delivered pursuant toSection 10.10(a)(i) shall survive indefinitely. | |
(b) | The obligations of the Parties under this Agreement that by their terms contemplate performance after the Coniston Closing (including those set forth in thisSection 9) shall survive the Coniston Closing Date until the performance thereof in accordance therewith. | |
(c) | Except with respect to any claims that cannot be waived as a matter of law, after the Coniston Closing, the indemnification expressly provided for herein (includingSection 10) shall be the sole and exclusive remedy for monetary damages for any breach of warranties, covenants or agreements herein by either Party or otherwise arising out of the transactions contemplated hereby, and no Party shall have any right of rescission;provided,however, that the foregoing shall not limit the right of either Party to seek specific performance or injunctive or similar relief for a breach by any other Party of its obligations under this Agreement. No Person shall be entitled to indemnification for a breach of representation or warranty hereunder if, on the date hereof, such Person had Knowledge of the actual breach of the representation or warranty with respect to which such Person is seeking indemnification hereunder. |
9.2 | Indemnification by Arsenal |
29
9.3 | Indemnification by Manchester |
(a) | In the event the Coniston Closing occurs, from and after the Coniston Closing in perpetuity, Manchester shall indemnify each Arsenal Group Member from and against and shall hold each such Arsenal Group Member harmless from any and all Losses incurred or suffered by such Arsenal Group Member arising out of any breach of (i) the representations and warranties contained inSections 4.1,4.4,4.5,4.6, and4.7 (and the certificate delivered in accordance withSection 7.1(b)(vi) related thereto) and the representation delivered pursuant toSection 10.10(a)(i) or (ii) any covenant, in either case, made or to be performed by Manchester pursuant to this Agreement. | |
(b) | In the event the Arsenal Exchange occurs, from and after the Coniston Closing Date in perpetuity, Manchester shall indemnify each Arsenal Group Member from and against and shall hold each such Arsenal Group Member harmless from any liabilities or obligations of Newco and all Losses incurred or suffered by such Arsenal Group Member in connection with Newco, in each case arising at or prior to the Coniston Closing Date or relating to the period at or prior to the Coniston Closing Date. | |
(c) | Except as otherwise provided in this Agreement, the sole provision of this Agreement relating to indemnification for Taxes shall beSection 10. |
9.4 | No Consequential Losses |
9.5 | Indemnification Procedures |
(a) | Any Arsenal Group Member or Manchester Group Member (theIndemnified Party) seeking indemnification hereunder shall give to the Party obligated to provide indemnification to such Indemnified Party (theIndemnitor) prompt notice (aClaim Notice) describing in reasonable detail the facts giving rise to any claim for indemnification hereunder and shall include in such Claim Notice the amount or the method of computation of the amount of such claim, and a reference to the provision of this Agreement upon which such claim is based. After the giving of any Claim Notice pursuant hereto, the amount of indemnification to which an Indemnified Party shall be entitled under thisSection 9 shall be determined: (i) by written agreement between the Indemnified Party and the Indemnitor; (ii) by a final judgment or decree of any court of competent jurisdiction; or (iii) by any other means to which the Indemnified Party and the Indemnitor shall agree. | |
(b) | The Indemnified Party shall have the right to conduct and control, through counsel of its choosing, the defense, compromise or settlement of any pending or threatened action at law or suit in equity by or against a third Person (aThird Person Claim) as to which indemnification will be sought against such Indemnified Party, and in any such case the Indemnitor shall cooperate in connection therewith and shall furnish such records, information and testimony and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnified Party in connection therewith. The Indemnitor may participate, through counsel chosen by it and at its own expense, in the defense of any such Third Person Claim as to which the Indemnified Party has so elected to conduct and control the defense thereof. The Indemnified Party shall not, without the consent of the Indemnitor (which consent shall not be unreasonably withheld), pay, compromise or settle any such Third Person Claim. Notwithstanding the foregoing, the Indemnified Party shall have the right to pay, settle or compromise any such Third Person Claim without such consent (if required), provided that in such event |
30
the Indemnified Party shall waive any right to indemnity therefor hereunder unless such consent is unreasonably withheld. |
9.6 | Indemnification Payments |
10. | TAX MATTERS |
10.1 | Tax Indemnification |
(a) | In the event the Arsenal Exchange occurs, from and after the Coniston Closing Date, Manchester shall be liable for and shall pay, and shall indemnify each Arsenal Group Member from and against and hold each of them harmless from (i) Taxes imposed on Newco, or for which Newco may otherwise be liable, as a result of having been a member of a Company Group (including Taxes for which Newco may be liable pursuant to Treas. Reg. 1.1502-6 or similar provisions of state, local or foreign Law as a result of having been a member of a Company Group), (ii) Taxes imposed on Newco, or for which Newco may otherwise be liable, for any taxable year or period that ends on or before the Coniston Closing Date and, with respect to any Straddle Period, the portion of the Straddle Period ending on and including the Coniston Closing Date (determined on a “closing of the books basis” by assuming that the books of Newco were closed at the close of the Coniston Closing Date), (iii) Transaction Taxes and (iv) Taxes imposed on any Arsenal Group Member (or for which any Arsenal Group Member would otherwise be liable) as a result of any failure by Manchester to comply with its obligations pursuant to this Agreement. | |
(b) | In the event the Arsenal Exchange occurs, from and after the Coniston Closing Date, Arsenal shall be liable for and shall pay, and shall indemnify each Manchester Group Member from and against and hold each of them harmless from (i) Taxes imposed on Newco, or for which Newco may otherwise be liable, for any taxable year or period that begins after the Coniston Closing Date and, with respect to any Straddle Period, the portion of the Straddle Period beginning after the Coniston Closing Date and (ii) Taxes imposed on any Manchester Group Member (or for which any Manchester Group Member would otherwise be liable) as a result of any failure by Arsenal to comply with its obligations pursuant to this Agreement;provided,however, that, without limiting Arsenal’s liability pursuant toSection 10.1(b)(ii), Arsenal shall not be liable for or pay and shall not indemnify any Manchester Group Member from or against or hold any of them harmless from any Taxes for which Manchester is liable pursuant toSection 10.1(a) or otherwise pursuant to this Agreement. | |
(c) | Manchester or Arsenal, as the case may be, shall provide reimbursement for any Tax paid by one Party, all or a portion of which is the responsibility of the other Party pursuant to thisSection 10. Payment by the indemnifying Party of any amount due under thisSection 10 shall be made within ten (10) calendar |
31
days following written notice by the indemnified Party that payment of such amount is due; provided, that if the indemnified Party is required to make a payment to a Taxing Authority, the indemnifying Party shall not be required to make any payment earlier than three (3) calendar days before such payment is due, unless the Tax liability is otherwise contested with the relevant Taxing Authority, in which case the payment shall be made not later than three (3) calendar days before the date any Taxes owed as a result of the settlement or resolution of the contested Tax are required to be paid. In no event shall Arsenal or any of its Affiliates be obligated under this Agreement to pay any Tax in anticipation of Manchester filing a claim for a refund therefor. This Section 10.1(c) shall in all respects be subject to Section 10.10. |
10.2 | IRS Private Letter Ruling |
(a) | As soon as is reasonably practicable, Manchester shall prepare and file with the IRS the IRS Private Letter Ruling Request seeking an IRS Private Letter Ruling that contains the Core Rulings, the Alternative Core Rulings (if applicable) and the Non-Core Rulings. | |
(b) | Arsenal shall be afforded a reasonable opportunity to review and comment on all submissions to the IRS relating to such IRS Private Letter Ruling and any such comments received in a timely manner shall be reasonably considered by Manchester prior to filing the IRS Private Letter Ruling Request or such other submissions with the IRS. Manchester shall provide Arsenal with a copy of the IRS Private Letter Ruling Request and each other submission relating to the IRS Private Letter Ruling within three (3) business days after its submission to the IRS. | |
(c) | Manchester shall, promptly upon receipt (but no later than three (3) business days after receipt), provide Arsenal with copies of all written correspondence received from the IRS in relation to the IRS Private Letter Ruling Request, any supplemental submission relating thereto or the IRS Private Letter Ruling and shall promptly update Arsenal with respect to any other relevant communications and/or correspondence with the IRS related to the IRS Private Letter Ruling Request, any supplemental submission relating thereto or the IRS Private Letter Ruling. | |
(d) | Manchester shall afford the officers, employees and authorized representatives of Arsenal (including independent public accountants and attorneys) reasonable access during normal business hours to the employees and business and financial records and documents of Manchester, Newco or any of their respective Affiliates that may be relevant and reasonably required to verify the accuracy and completeness of material facts, representations and requested rulings included in any submission related to the IRS Private Letter Ruling and to otherwise assess whether the IRS Private Letter Ruling complies or is expected to comply with thisSection 10.2. Arsenal agrees that such investigation shall be conducted in such a manner as not to interfere unreasonably with the operations of Manchester, Newco or their respective Affiliates. No investigation made by Arsenal or its representatives hereunder shall affect Manchester’s liability hereunder nor affect Arsenal’s ability to provide an Objection Notice or Rejection Notice. | |
(e) | Arsenal shall be entitled, subject to required IRS consent, to have two individual representatives, selected by Arsenal and reasonably acceptable to Manchester, participate (solely as observers) in any conference (including any previously scheduled teleconference) Manchester or its representatives may have with the IRS in connection with the IRS Private Letter Ruling Request, any supplemental submission relating thereto or the IRS Private Letter Ruling (including, without limitation, any pre-submission conference with the IRS). With respect to any conference or previously scheduled teleconference, Manchester shall provide notice thereof to Arsenal a reasonable amount of time in advance thereof. |
32
(f) | Notwithstanding any other provisions of this Agreement, Arsenal shall be granted no less than ten (10) business days to review and comment on the IRS Private Letter Ruling Request to be submitted to the IRS by Manchester prior to its submission, and during such period Manchester shall afford the officers, employees and authorized representatives of Arsenal (including independent public accountants and attorneys) access pursuant toSection 10.2(d). | |
(g) | Promptly following the date hereof, the Parties shall begin the process of selecting an Independent Arbitrator pursuant to the arbitration procedures set forth inExhibit 10, and within thirty (30) calendar days thereafter shall select an Independent Arbitrator in accordance withExhibit 10, and shall provide such Independent Arbitrator for review copies of the IRS Private Letter Ruling Request and any supplemental submissions relating thereto, in order for the Independent Arbitrator to familiarize himself or herself with the contents of the IRS Private Letter Ruling Request and any supplemental submission to prepare, if required under this Agreement, to act as the Independent Arbitrator in accordance withExhibit 10 should any Objection Notice or Rejection Notice be delivered pursuant to thisSection 10.2. The costs and expenses of the Independent Arbitrator prior to the delivery of any Objection Notice or Rejection Notice shall be shared equally by the Parties. | |
(h) | At any time prior to the issuance of the IRS Private Letter Ruling, Arsenal shall be permitted to provide one or more written notices to Manchester (each, anObjection Notice) stating that it believes that the IRS Private Letter Ruling Request (or the form of IRS Private Letter Ruling Request provided to Arsenal pursuant toSection 10.2(f)) or any supplement thereto (i) may omit a substantially material ruling or rulings not reflected as a Core Ruling or (as applicable) an Alternative Core Ruling inSchedule 10.2, (ii) may require a modification of one or more Core Rulings or (as applicable) Alternative Core Rulings or (iii) may be based on assumptions or representations with respect to which there is material uncertainty, may contain any material misstatement of fact or law or may fail to state material relevant facts or law, in each case that would materially undermine or frustrate the purpose of seeking the IRS Private Letter Ruling as that purpose is reflected inSchedule 10.2, and in each case stating with specificity the facts and circumstances giving rise to such belief (subclause (i), (ii) and (iii), each aClaimed Defect);provided,however, that no Objection Notice shall be delivered after the submission of the IRS Private Letter Ruling Request except (x) based on a request by the IRS for information or representations related to the IRS Private Letter Ruling, IRS Private Letter Ruling Request or any supplement thereto or (y) based on a change in facts or based on new considerations, in each case relating to the IRS Private Letter Ruling, IRS Private Letter Ruling Request or supplement thereto;provided,however, that no Objection Notice shall impair Manchester’s ability to comply with any request by the IRS relating to the IRS Private Letter Ruling, IRS Private Letter Ruling Request or supplement thereto or with any requirements of Law. If Arsenal shall have delivered an Objection Notice after the submission of the IRS Private Letter Ruling Request and Manchester shall dispute whether the Objection Notice was properly delivered under the first proviso of the preceding sentence and shall have so notified Arsenal in writing within two (2) business days of receipt by Manchester of such Objection Notice, in the absence of an agreement between the Parties, the Parties shall engage in the arbitration procedures set forth inExhibit 10. | |
(i) | Within two (2) business days following delivery of an Objection Notice, or, in the event of a dispute as to the ability of Arsenal to deliver such Objection Notice pursuant to the first proviso ofSection 10.2(h), then not later than two (2) days following the resolution of such dispute, Arsenal and Manchester shall consult in good faith with each other in an attempt to reach a common view of whether, as a result of the circumstances set forth in the Objection Notice, the IRS Private Letter Ruling Request (or form thereof) or supplement thereto has the Claimed Defect stated in the Objection Notice. The delivery of an Objection Notice prior to the submission of the IRS Private Letter Ruling Request shall not preclude Manchester from making such submission. |
33
(j) | If, within five (5) business days following delivery of the Objection Notice, the Parties are unable to (1) agree whether, as a result of the circumstances described in the Objection Notice, the IRS Private Letter Ruling Request (or form thereof) or supplement thereto does have the Claimed Defect stated in the Objection Notice or (2) agree on amendments to the IRS Private Letter Ruling Request (or changes to the form of IRS Private Letter Ruling Request to be submitted) or any supplement thereto to address the Claimed Defect stated in the Objection Notice, the Parties shall engage in the arbitration procedures set forth inExhibit 10. | |
(k) | Any Objection Notice that the parties agree in writing is, or that the arbitrator determines is, valid shall constitute aValid Objection Notice, and any Objection Notice that the parties agree in writing is not, or that the arbitrator determines is not, valid shall constitute aDismissed Objection Notice. In the case of any Valid Objection Notice, Manchester shall make such amendments to the IRS Private Letter Ruling Request (or changes to the form of IRS Private Letter Ruling Request to be submitted) or supplements thereto to address the Claimed Defect stated in the Valid Objection Notice. Any rulings added or modified in resolving any Objection Notice shall constitute Core Rulings or (as applicable) Alternative Core Rulings andSchedule 10.2 shall be deemed amended accordingly. | |
(l) | Within five (5) business days following issuance of the IRS Private Letter Ruling, Manchester shall provide a copy thereof to Arsenal. If Arsenal believes that (1) the IRS Private Letter Ruling does not contain the Core Rulings or (as applicable) the Alternative Core Rulings and does not meet the purpose of obtaining such IRS Private Letter Ruling, as that purpose is reflected inSchedule 10.2 or (2) there is a Valid Objection Notice and Arsenal believes that Manchester has not made amendments to the IRS Private Letter Ruling Request (or changes to the form of IRS Private Letter Ruling Request to be submitted) or supplements thereto to address the relevant Claimed Defect stated in the Valid Objection Notice, then it must, within five (5) business days following receipt of the copy of the IRS Private Letter Ruling, deliver to Manchester written notice that the IRS Private Letter Ruling does not meet such requirements (aRejection Notice). If, within such period, Arsenal does not deliver to Manchester a Rejection Notice, Arsenal shall be deemed to have accepted the IRS Private Letter Ruling. | |
(m) | If Arsenal shall have delivered to Manchester the Rejection Notice, the Parties shall engage in the arbitration procedures set forth inExhibit 10 to determine (1) whether the IRS Private Letter Ruling contains the Core Rulings or (as applicable) the Alternative Core Rulings or otherwise meets the purpose of obtaining such IRS Private Letter Ruling, as that purpose is reflected inSchedule 10.2 and (2) if there is a Valid Objection Notice, whether Manchester has made amendments to the IRS Private Letter Ruling or the IRS Private Letter Ruling Request (or changes to the form of IRS Private Letter Ruling Request) or supplements thereto to address the relevant Claimed Defect stated in the Valid Objection Notice. | |
(n) | The IRS Private Letter Ruling, as accepted pursuant toSection 10.2(l) or as approved pursuant to the arbitration procedures set forth inExhibit 10, shall constitute theAccepted IRS Private Letter Ruling. | |
(o) | Prior to the issuance of the IRS Private Letter Ruling, Arsenal shall not, except as otherwise provided in this Agreement, and after the date of the issuance of the IRS Private Letter Ruling neither Arsenal nor Manchester shall, make any supplemental submissions to, or otherwise communicate with, the IRS relating to the IRS Private Letter Ruling or any IRS Private Letter Ruling Request or other submission to the IRS relating thereto without the prior written consent of the other Party (such written consent not to be unreasonably withheld). | |
(p) | From and after the date hereof (whether before or after the Coniston Closing Date), neither Manchester nor Arsenal shall take or fail to take, and neither shall cause or permit its respective Affiliates to take or |
34
fail to take, in each case any action contrary to any fact, representation or other statement in the IRS Private Letter Ruling, IRS Private Letter Ruling Request or other submission to the IRS relating thereto, without the prior written consent of the other Party (such written consent not to be unreasonably withheld) or except as required by Law. |
(q) | After the Coniston Closing Date, neither Manchester nor Arsenal shall file, and neither shall cause or permit its respective Affiliates or Newco to file, any Tax Return that is inconsistent with the IRS Private Letter Ruling, IRS Private Letter Ruling Request or other submission to the IRS relating thereto or the IRS Private Letter Ruling, except with the prior written consent of the other Party (such written consent not to be unreasonably withheld) or except as required by Law. |
10.3 | Tax Returns |
(a) | Manchester shall timely file or cause to be timely filed when due (except as provided inSection 10.3(d), taking into account all extensions properly obtained and taking into account all opportunities to accelerate the due date of such returns) all Tax Returns that are required to be filed by or with respect to Newco or any Subsidiary of Newco for any tax periods ending on or prior to the Coniston Closing Date. In each case, Manchester shall remit or cause to be remitted any Taxes due in respect of such Tax Returns. Except as otherwise required by applicable Law, all Tax Returns required to be filed in accordance with thisSection 10.3(a) shall be prepared and filed in a manner consistent with past practice and in accordance withSection 10.2(q) andSection 10.9(e). Prior to Manchester filing such Tax Returns, Arsenal shall have a reasonable opportunity to review and comment on such Tax Returns. | |
(b) | Manchester shall timely file or cause to be filed complete and correct 2010 and 2011 US federal income Tax Returns for Newco on or before the respective due dates for the filing of such Tax Returns (in accordance withSection 10.3(d)) and (i) with respect to each such filing shall make the disclosure required by, and otherwise comply with, Section 6662(i)(2) the Code and (ii) if it chooses to do so, provide disclosure and otherwise comply withSection 10.10(a)(i). Not later than ten (10) business days prior to filing Newco’s 2010 and 2011 US federal income Tax Returns, Manchester shall provide a correct and complete copy of such Tax Returns (including all schedules and attachments thereto) to Arsenal, and Arsenal shall have a reasonable opportunity to review and comment on such Tax Returns. | |
(c) | Arsenal shall timely file or cause to be timely filed when due (taking into account all extensions properly obtained) all Tax Returns that are required to be filed by or with respect to Newco for any Straddle Periods. Except as otherwise required by applicable Law, all Tax Returns required to be filed in accordance with thisSection 10.3(c) shall be prepared and filed in a manner consistent with past practice and in accordance withSection 10.2(q) andSection 10.9(e). Prior to Arsenal filing such Tax Returns, Manchester shall have a reasonable opportunity to review and comment on such Tax Returns. | |
(d) | Notwithstanding anything herein to the contrary, (i) the 2011 US federal income Tax Return for Newco shall be timely filed without regard to any extensions and (ii) the 2010 US federal income Tax Return for Newco shall be timely filed taking into account extensions pursuant to the Code not in excess of six (6) months in the aggregate;provided, that in no event shall the due date for the 2010 US federal income Tax Return (taking into account extensions) be later than March 1, 2011. |
10.4 | Refunds and Credits |
35
10.5 | Cooperation |
(a) | timely sign and deliver such certificates or forms as may be necessary or appropriate to establish an exemption from (or otherwise eliminate, reduce or mitigate), or file Tax Returns or other reports with respect to, Transfer Taxes; | |
(b) | furnish or cause to be furnished to each other, as promptly as reasonably practicable, such information and assistance relating to Newco (to the extent within the control of such Party), including access to books and records in any forum or medium, as is reasonably necessary for the preparation and filing of all Tax Returns (including the timely execution of any Tax Returns) underSection 10.3; | |
(c) | cooperate with each other in the conduct of any audit or other Proceeding relating to Taxes involving Newco (including executing any powers of attorney or other authorizations reasonably requested to allow a party responsible for defending against or handling the Proceeding to represent Newco in the Proceeding but not to take any action contrary to this Agreement). Notwithstanding any other provision of this Agreement to the contrary, the Parties will preserve all information, records or documents relating to the liability for Taxes relating to the operations of Newco with respect to Pre-Closing Tax Periods until the earlier of (i) ninety-one (91) days after the expiration of any applicable statute of limitations or extensions thereof and (ii) six (6) years following the Coniston Closing Date; | |
(d) | make available as reasonably requested all information, records and documents relating to Taxes of Newco attributable to any Pre-Closing Tax Period, Transaction Taxes or Post-Closing Franchise Taxes; and | |
(e) | furnish the other Party with copies of all correspondence received from any Taxing Authority in connection with any Tax audit or information request related to Taxes of Newco with respect to any such taxable period or such identified Taxes. |
10.6 | Taxes on Parties |
(a) | Subject to and without limiting the provisions ofSection 10.1, in the event the Arsenal Exchange occurs, Manchester shall be liable for and shall pay, and shall indemnify each Arsenal Group Member from and against and hold each of them harmless from (i) any Taxes imposed on any Arsenal Group Member or for which any Arsenal Group Member may otherwise be liable as a direct result of the Arsenal Exchange (excluding, in each case, Newco) and (ii) Taxes imposed by withholding (including any liability for failure to withhold such Taxes) on the delivery of the Exchange Shares or the payment of the Repurchase Consideration, the Contingent Repurchase Consideration or any other consideration delivered pursuant to the transactions contemplated by this Agreement. |
36
(b) | Subject to and without limiting the provisions ofSection 10.1 orSection 10.6(a) above, all Transfer Taxes imposed on either Party as a result of the transactions contemplated by this Agreement shall be borne by the Party required by Law to pay such Taxes. |
10.7 | Franchise Taxes |
10.8 | Contests |
(a) | If written notice of any pending or threatened Proceeding, audit, notice or assessment with respect to the IRS Private Letter Ruling or Taxes or Tax Returns of Newco, in each case, (i) for any Taxable period ending on or prior to the Coniston Closing Date or (ii) with respect to any Tax for which Manchester could reasonably be expected to have an indemnification obligation under this Agreement, is received by Arsenal, its Affiliates or Newco (aTax Claim), Arsenal shall, and shall cause its Affiliates and/or Newco to, notify Manchester promptly in writing of such Tax Claim. | |
(b) | The failure of a party to notify another pursuant to any provision of thisSection 10.8 shall not constitute a waiver of any claim to indemnification under this Agreement except to the extent of any prejudice to the indemnifying party. | |
(c) | Manchester, at its expense, shall have the right to defend Newco in connection with any such Tax Claim and to control the discussions and other proceedings that may occur in an effort to resolve any such Tax Claim;provided, that Manchester shall have no right to represent Newco’s interests in any Tax Proceeding, audit, notice or assessment unless Manchester has first (i) notified Arsenal in writing of Manchester’s intention to do so and (ii) agreed with Arsenal in writing that as between Manchester and Arsenal, Manchester shall be liable for any Taxes that result from such Tax Claim;provided,further, that Manchester, on a timely basis, shall keep Arsenal reasonably informed of the progress of any such Tax Claim and shall permit Arsenal and its representatives (at Arsenal’s cost and expense) to participate (solely as observers) in the discussions and other proceedings that may occur in an effort to resolve any such Tax Claim and shall not settle or compromise any such Tax Claim (to the extent such settlement or compromise would increase any Tax of Newco or any Arsenal Group Member attributable to a Post-Closing Tax Period) without the consent of Arsenal (such consent not to be unreasonably withheld). |
10.9 | Further Tax Assurances |
(a) | Arsenal shall not make, and shall cause its Affiliates not to make, an election under section 338(g) of the Code with respect to Newco. | |
(b) | Neither Manchester nor Arsenal shall, and each shall not cause or permit its respective Affiliates or Newco to, formally or informally, amend, re-file or otherwise modify any Tax Return of Newco relating to a Pre-Closing Tax Period, or any Tax period with respect to which Transaction Taxes are or may be payable, without the prior written consent of the other Party, which consent shall not be unreasonably withheld;provided,however, that if as a result of any such amendment, re-filing or modification the |
37
statute of limitations for a taxable period would be extended beyond a relevant Fixed Release Date provided for inSection 10.10(a) or(b), then Arsenal shall be entitled to withhold its consent in its discretion unless the Parties delay the Fixed Release Date to a date that is coterminous with the expiration of the extended statute of limitations. |
(c) | Without limiting anything to the contrary in this Agreement, after the date hereof, neither Manchester nor Arsenal shall, and each shall not cause or permit its respective Affiliates or Newco to, agree to, or cause, any waiver, extension or suspension of the statute of limitations relating to any Taxes of Newco, or for which Newco could be liable, for any Pre-Closing Tax period, or any Tax period with respect to which Transaction Taxes are or may be payable, without the prior written consent of the other Party, which consent shall not be unreasonably withheld;provided,however, that if as a result of any such waiver, extension or suspension the statute of limitations for a taxable period would be extended beyond a relevant Fixed Release Date provided for inSection 10.10(a) or(b), then Arsenal shall be entitled to withhold its consent in its discretion unless the Parties delay the Fixed Release Date to a date that is coterminous with the expiration of the extended statute of limitations. | |
(d) | Neither Manchester nor Arsenal shall file any Tax Return, make any Tax refund claim, carryback or carryforward any Tax items, or otherwise take any action that would cause any Tax Return of Newco or any of its Affiliates or any Tax item related thereto (to the extent relating to any Taxable period ending on or prior to the Coniston Closing Date or any Straddle Period, or to any period with respect to which a Transaction Tax may be imposed) to be subject to examination or challenge by any Taxing Authority if there otherwise could be no further challenge by such Taxing Authority in respect thereof, and neither Manchester nor Arsenal shall violate or otherwise take any action inconsistent with any condition or other term of any closing agreement or similar document relating to any such period. | |
(e) | Except as otherwise required by applicable Law, without the consent of Arsenal, Newco shall not, and shall cause its Subsidiaries not to, claim any federal or state income tax deductions, losses or credits in computing its federal, New York State or other material state taxable income for its 2010 and 2011 taxable years that are materially in excess of or different in type from those set forth onSchedule 10.9. Except as otherwise required by Law, without the consent of Manchester, Newco shall, and shall cause its Subsidiaries to, file its federal, New York State and other material state Tax Returns for any Post-Closing Tax Period in a manner consistent with past practice andSchedule 10.9, to the extent that failure to do so could adversely impact the Tax Returns of Newco and its Subsidiaries filed for any Pre-Closing Tax Periods. | |
(f) | Each of Manchester and Arsenal shall, and shall cause each of their respective Affiliates and Newco to, promptly deliver to the other Party all IRS Forms and other relevant Tax documents referred to inSection 10.10 that it receives that could reasonably be expected to be relevant to such other Party in connection with any termination or release of, or demand for payment pursuant to, the PLR Bank Guarantee or Historic Bank Guarantee pursuant toSection 10.10. | |
(g) | With respect to any release of the PLR Bank Guarantee pursuant toSection 10.10(a) or any release of the Historic Bank Guarantee pursuant toSection 10.10(b), which release is predicated on the receipt of Audit Closing Evidence, Manchester shall endeavor in good faith to obtain Audit Closing Evidence consisting of an IRS Form 870-AD or IRS Form 866. | |
(h) | Provided that Newco has timely filed complete 2010 and 2011 US federal income Tax Returns (in accordance withSection 10.3(d)) and such Tax Returns include disclosure with respect to the potential Transaction Tax intended to meet the requirements of Section 6501(e)(1)(B)(ii) of the Code, Arsenal shall seek, as promptly as reasonably practicable thereafter, to obtain an opinion from KPMG (or other |
38
nationally recognized accounting firm selected by Arsenal and reasonably acceptable to Manchester), in form and substance reasonably satisfactory to Arsenal, that the requirements of Section 6501(e)(1)(B)(ii) of the Code have been satisfied. |
10.10 | Tax Indemnity Credit Support |
(a) | Manchester shall, at or prior to the Coniston Closing, obtain a bank guarantee from one of the banks listed onSchedule 10.10(a) (thePLR Bank Guarantor) in favor of Arsenal (substantially in the form attached asExhibit 11) in an aggregate amount of US$168 million (thePLR Bank Guarantee). Arsenal shall not demand payment under the PLR Bank Guarantee unless and until each of the Transaction Tax Conditions or the Post-Closing Franchise Tax Conditions, as the case may be, shall have been satisfied following receipt by Manchester from Arsenal of a request for payment in accordance with the Transaction Tax Condition or Post-Closing Franchise Tax Condition, as the case may be. The PLR Bank Guarantee shall be fully released and terminated ten (10) business days after receipt by Arsenal of a written notice from Manchester (which notice shall be sent concurrently by Manchester by facsimile to the PLR Bank Guarantor) that the earliest of the following has occurred (such notice specifying the event giving rise to such permitted release and termination, including a copy of the applicable IRS form or other relevant documentation in the case of subclause (x)): (w) receipt by Manchester of the Accepted IRS Private Letter Ruling, (x) the closing of the IRS examination of each of Newco’s 2010 and 2011 US federal income tax return (as evidenced by Manchester’s receipt of an IRS Form 870, IRS Form 870-AD for all items and without exceptions, IRS Form 866 or closing agreement or similar written evidence of closing (Audit Closing Evidence)) and (y) March 15, 2017 (each, a condition for the release and termination of the PLR Bank Guarantee);provided,however, that: |
(i) | the date in clause (y) shall be March 15, 2014 (in lieu of March 15, 2017), provided (A) Newco timely files complete 2010 and 2011 US federal income Tax Returns (in accordance with Section 10.3(d)), (B) such Tax Returns include disclosure with respect to the potential Transaction Tax sufficient to meet the requirements of Section 6501(e)(1)(B)(ii) of the Code and, not later than ten (10) business days prior to March 15, 2014, Arsenal shall have received, at Arsenal’s expense, an opinion from KPMG (or other nationally recognized accounting firm selected by Arsenal and reasonably acceptable to Manchester), in form and substance reasonably satisfactory to Arsenal, that such requirements have been satisfied and (C) Manchester provides a written representation to Arsenal on March 15, 2014 that neither it nor any of its Affiliates has taken any action prohibited bySection 10.9(b) orSection 10.9(c) that would result in any waiver, extension or suspension of the statute of limitations with respect to the Newco 2010 or 2011 US federal income Tax Return; | ||
(ii) | if a ruling substantially to the effect of Core Ruling (4) is not received as part of any IRS Private Letter Ruling, any release or termination pursuant to thisSection 10.10(a) shall not reduce the PLR Bank Guarantee to an amount less than US$3 million prior to April 15, 2011 or less than US$1.5 million prior to April 15, 2012; and | ||
(iii) | any release or termination pursuant to thisSection 10.10(a) shall not reduce the PLR Bank Guarantee to an amount less than the sum of (i) any amount with respect to which Arsenal has requested payment from Manchester under the Transaction Tax Conditions (which remains unpaid) and (ii) the amount, set forth in a written notice from Arsenal to Manchester, of Transaction Taxes with respect to which Newco or any Arsenal Group Member has received a written notice of proposed adjustment, a written revenue agent’s report, a written notice of deficiency or other written assertion of a specific adjustment or deficiency (including reasonably estimated penalties and interest);provided,however, that the limitation in thisSection |
39
10.10(a)(iii) shall not apply with respect to any release or termination resulting from the receipt by Manchester of the Accepted IRS Private Letter Ruling in accordance with thisSection 10.10(a). |
(b) | Manchester shall, at or prior to the Coniston Closing, obtain a bank guarantee from one of the banks listed onSchedule 10.10(a) (theHistoric Bank Guarantor) in favor of Arsenal (substantially in the form attached asExhibit 11) in an aggregate amount of US$45 million (theHistoric Bank Guarantee). Arsenal shall not demand payment under the Historic Bank Guarantee unless and until each of the Historic Tax Conditions shall have been satisfied and Manchester shall have received a written notice from Arsenal that each such Historic Tax Condition has been satisfied. The Historic Bank Guarantee shall be reduced by the following amounts (paragraphs (i) through (iv), each, aTranche): |
(i) | US$27 million (or Tranche Amount, if different) ten (10) business days after the receipt by Arsenal of a written notice from Manchester (which notice shall be sent concurrently by Manchester by facsimile to the Historic Bank Guarantor) that the earlier of the following has occurred (such notice specifying the event giving rise to such permitted reduction, including a copy of the applicable IRS form or other relevant documentation in the case of subclause (x)): (x) the closing of the IRS examination of all of Newco’s 2007 to 2009 US federal income Tax |
40
Returns (as evidenced by the receipt of Audit Closing Evidence for each such year) and (y) March 15, 2014; |
(ii) | US$6.75 million (or Tranche Amount, if different) ten (10) business days after the receipt by Arsenal of a written notice from Manchester (which notice shall be sent concurrently by Manchester by facsimile to the Historic Bank Guarantor) that the earlier of the following has occurred (such notice specifying the event giving rise to such permitted reduction, including a copy of the applicable IRS form or other relevant documentation in the case of subclause (x)): (x) the closing of the IRS examination of Newco’s 2010 US federal income Tax Return (as evidenced by the receipt of Audit Closing Evidence for such year) and (y) March 15, 2017; | ||
(iii) | US$5.40 million (or Tranche Amount, if different) ten (10) business days after the receipt by Arsenal of a written notice from Manchester (which notice shall be sent concurrently by Manchester by facsimile to the Historic Bank Guarantor) that the earliest of the following has occurred (such notice specifying the event giving rise to such permitted reduction, including a copy of the applicable IRS form or other relevant documentation in the case of subclause (x) or (y)): (x) the filing by Newco of amended 2009 New York State Tax Returns reflecting and in accordance with the closing of the IRS examination of the corresponding Newco 2009 US federal income Tax Return and payment of any and all New York State Taxes shown as owing thereon (y) the closing of such IRS examination without the need to file such amended 2009 New York State Tax Return reflecting such closing (in the case of subclause (x) or (y) as evidenced by the receipt of Audit Closing Evidence with respect to such federal income Tax Return for such year) and (z) March 15, 2014; and | ||
(iv) | US$5.85 million (or Tranche Amount, if different) ten (10) business days after the receipt by Arsenal of a written notice from Manchester (which notice shall be sent concurrently by Manchester by facsimile to the Historic Bank Guarantor) that the earlier of the following has occurred: (x) the closing of the examination by the relevant Taxing Authority of all of Newco’s New York State Tax Returns for taxable years ended May 31, 2007 to May 31, 2009 and North Carolina State Tax Returns for taxable years ended May 31, 2007 to May 31, 2009 (as evidenced by the receipt of a North Carolina Department of Revenue Notice of Tax Assessment, executed NY State Department of Taxation and Finance Form DO-356, or closing agreement or similar written evidence of closing) and (y) December 31, 2014; |
41
(c) | Transaction Tax Conditionsshall mean (i) there has been an assessment of such Tax pursuant to section 6201 of the Code, an IRS Form 870, an IRS Form 870-AD for all items and without exceptions, closing agreement or similar written evidence of closing, a reduction in an otherwise allowable refund (to the extent such refund is not otherwise for the account of Manchester) or a “determination” under section 1313(a) of the Code, in each case with respect to a Transaction Tax imposed on Newco or any |
42
other Arsenal Group Member, or for which Newco or any other Arsenal Group Member is liable, under applicable Law and (ii) Manchester has failed to make payment of such Tax to or on behalf of Newco or such other Arsenal Group Member within seven (7) business days after a request by Arsenal therefor (which request shall be sent concurrently by Arsenal by facsimile to the PLR Bank Guarantor).Historic Tax Conditionsshall mean (i) there has been an assessment of such Tax pursuant to section 6201 of the Code, an IRS Form 870, an IRS Form 870-AD for all items and without exceptions, closing agreement or similar written evidence of closing, a reduction in an otherwise allowable refund (to the extent such refund is not otherwise for the account of Manchester) or a “determination” under section 1313(a) of the Code (or similar provision or form of relevant state or local Tax Law, including a North Carolina Department of Revenue Notice of Tax Assessment or executed NY State Department of Taxation and Finance Form DO-356), in each case with respect to a Tax described in Section 10.1(a) (other than a Transaction Tax) imposed on Newco or any other Arsenal Group Member, or for which Newco or any other Arsenal Group Member is liable, under applicable Law and (ii) Manchester has failed to make payment of such Tax to or on behalf of Newco or such other Arsenal Group Member within seven (7) business days after a request by Arsenal therefor (which request shall be sent concurrently by Arsenal by facsimile to the Historic Bank Guarantor).Post-Closing Franchise Tax Conditionsshall mean (i) Manchester has failed to make a payment of Post-Closing Franchise Taxes to Arsenal within seven (7) business days after a written demand by Arsenal therefor delivered not earlier than ten (10) business days prior to the due date therefor (which request shall be sent concurrently by Arsenal by facsimile to the PLR Bank Guarantor). |
10.11 | Expenses |
10.12 | Predecessors and Successors |
10.13 | Survival |
11. | MISCELLANEOUS |
11.1 | Notices |
43
One Kingdom Street
Paddington
London W2 6BL, UK
Telephone: +44 (0)20 3320 5000
Fax: +44 (0)20 3320 1771
Attention: General Counsel
1221 Avenue of the Americas
New York, NY 10020
Telephone: +1 212 610 6471
Fax: +1 212 610 6399
Attention: A. Peter Harwich
222 Merchandise Mart Plaza, Suite 2024
Chicago, IL 60654
Telephone: +1 800 654 0889
Fax: +1 312 506 1208
Attention: General Counsel
One South Dearborn
Chicago, IL 60603
Telephone: +1 312 853 7000
Fax: +1 312 853 7036
Attention: Frederick C. Lowinger; Gary D. Gerstman
35 W. Wacker Drive
Chicago, IL 60601
Telephone: +1 312 558 5600
Fax: +1 312 558 5700
Attention: Robert F. Wall
44
Three Ravinia Drive
Atlanta, GA 30348
Telephone: +1 404 847 5000
Fax: +1 404 847 5777
Attention: General Counsel
Chief Financial Officer
1180 Peachtree Street, NE
Atlanta, GA 30309
Telephone: +1 404 572 4600
Fax: +1 404 572 5133
Attention: John D. Capers, Jr.; C. William Baxley
11.2 | Amendments and Waivers |
(a) | Any provision of this Agreement may be amended or waived if, but only if, such amendment or waiver is in writing and is signed, in the case of an amendment, by each Party and Emerald (in the case of the provisions with respect to which Emerald is a third party beneficiary), or in the case of a waiver, by the Party against whom the waiver is to be effective and, in the case of a waiver or amendment by Arsenal prior to the Coniston Closing, approved by the Audit Committee of the Arsenal Board of Directors. | |
(b) | Any waiver of any term or condition of this Agreement shall not be construed as a waiver of any subsequent breach, or a subsequent waiver of the same term or condition or a waiver of any other term or condition, of this Agreement. The failure of either Party to assert any of its rights hereunder shall not constitute a waiver of any of such rights. No failure or delay by either Party in exercising any right, power or privilege under this Agreement shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege. Other than as expressly set forth herein, the rights and remedies provided in this Agreement shall be cumulative and not exclusive of any rights or remedies provided by Law. |
11.3 | Expenses |
45
11.4 | Successors and Assigns |
11.5 | Governing Law |
11.6 | Enforcement; Consent to Jurisdiction |
(a) | The Parties agree that irreparable damage would occur in the event that any of the provisions of this Agreement were not performed in accordance with their specific terms or were otherwise breached. It is accordingly agreed that the Parties shall be entitled to seek an injunction or injunctions or other appropriate equitable relief to prevent breaches of this Agreement and to enforce specifically the terms and provisions of this Agreement in the Delaware Court of Chancery (unless such court shall lack subject matter jurisdiction over such action, in which case, in any state or federal court located in Delaware), this being in addition to any other remedy to which they are entitled at law or in equity, and the Parties hereby waive in any such proceeding the defense of adequacy of a remedy at law and any requirement for the securing or posting of any bond or any other security related to such equitable relief. | |
(b) | Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of the Delaware Court of Chancery, or if such court is unavailable, any state or federal courts located in Delaware, for the purposes of any suit, action or other proceeding arising out of this Agreement or the transactions contemplated hereby. Each Party hereby agrees that it will not bring any action relating to this Agreement or the transactions contemplated hereby in any court other than the Delaware Court of Chancery (unless such court shall lack subject matter jurisdiction over such action, in which case, in any state or federal court located in Delaware). Each Party hereby waives formal service of process and agrees that service of any process, summons, notice or document by U.S. registered mail to such Party’s respective address set forth above shall be effective service of process for any action, suit or proceeding |
46
in Delaware with respect to any matters to which it has submitted to jurisdiction in thisSection 11.6. Each Party irrevocably and unconditionally waives any objection to the laying of venue of any action, suit or proceeding arising out of this Agreement or the transactions contemplated hereby in such courts and hereby and thereby further irrevocably and unconditionally waives and agrees not to plead or claim in any such court that any such action, suit or proceeding brought in any such court has been brought in an inconvenient forum. | ||
(c) | Notwithstanding the foregoing, each of the Parties agrees that it will not bring or support any action, cause of action, claim, cross-claim or third-party claim of any kind or description, whether in law or in equity, whether in contract or in tort or otherwise, against the Financing Source in any way relating to this Agreement or any of the transactions contemplated hereby, including but not limited to any dispute arising out of or relating in any way to the Commitment Letter or the performance thereof, in any forum other than the Supreme Court of the State of New York, County of New York, or, if under applicable Law exclusive jurisdiction is vested in the Federal courts, the United States District Court for the Southern District of New York (and appellate courts thereof). | |
(d) | Notwithstanding any other provision of this Agreement or any Transaction Document to the contrary, in the event that, prior to the Coniston Closing or, if the Coniston Closing does not occur, at any time after the date hereof (i) there is any action or determination to be made by Arsenal hereunder that would require approval of the Arsenal Board of Directors or any committee thereof, (ii) there is any action, suit, proceeding, litigation or arbitration between Arsenal and Manchester or (iii) there is any disputed claim or demand (including any claim or demand relating to enforcing any remedy under this Agreement or any Transaction Document) by Arsenal against Manchester, or by Manchester against Arsenal, all actions or determinations of Arsenal prior to the Coniston Closing or, if the Coniston Closing does not occur, at any time after the date hereof or any determinations of Arsenal relating to any such action, suit, proceeding, litigation, arbitration, claim or demand (including all determinations by Arsenal whether to institute, compromise or settle any such action, suit, proceeding, litigation, arbitration, claim or demand and all determinations by Arsenal relating to the prosecution or defense thereof), shall be made and approved by the Audit Committee of the Arsenal Board of Directors. | |
11.7 | WAIVER OF JURY TRIAL | |
EACH PARTY HEREBY EXPRESSLY AND IRREVOCABLY WAIVES TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT TO ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) DIRECTLY OR INDIRECTLY RELATING TO ANY DISPUTE ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY. Each Party (a) certifies that no representative, agent or attorney of the other Party has represented, expressly or otherwise, that such other Party would not, in the event of litigation, seek to enforce the foregoing waiver and (b) acknowledges that it and the other Party have been induced to enter into this Agreement by, among other things, the mutual waivers and certifications in thisSection 11.7. | ||
11.8 | Counterparts; Third-Party Beneficiaries | |
This Agreement may be signed in any number of counterparts (including by fax or other electronic signature), each of which shall be an original, with the same effect as if the signatures were upon the same instrument. This Agreement shall become effective when each Party shall have received a counterpart of this Agreement signed by the other Party. Prior to the Emerald Closing, Emerald shall be, subject to compliance by Emerald withSection 11 of this Agreement, a third party beneficiary of |
47
Sections 1,2,4,6.3,6.4,6.7,6.8,6.13,8.1(a)(vi),10.2, the first sentence of10.10(a), the first sentence of10.10(b),11 and, only as such provisions relate to actions to be taken prior to the Coniston Closing,10.3,10.9(b),10.9(c) and10.9(d) of this Agreement;provided, that any claim brought by or on behalf of Emerald against Manchester or Arsenal prior to the Emerald Closing shall be subject to the limitations on liability described in the final sentence ofSection 9.1(c),Section 9.4 and the final sentence ofSection 9.6 and,provided,further, that notwithstanding anything herein to the contrary, if the Termination Fee (as defined in the Emerald Definitive Agreement) is paid in full and accepted by Emerald in accordance with Section 5.5(g) of the Emerald Definitive Agreement, such payment shall be the sole and exclusive remedy (other than the right to seek specific performance or injunctive relief pursuant toSection 11.6(a)) of Emerald and its Affiliates under this Agreement or any Transaction Document (or with respect to any claims or disputes arising out of or related to this Agreement or any Transaction Document or the transactions contemplated hereby or thereby or to the inducement of any party (including Emerald) to enter into this Agreement or any Transaction Document, whether for breach of contract, tortious conduct or otherwise and whether predicated on common law, statute or otherwise), and Emerald and its Affiliates shall be precluded from any other remedy (or seeking any other remedy) against Arsenal, Manchester and their respective Affiliates for monetary damages under this Agreement or any Transaction Document (or with respect to any claims or disputes arising out of or related to this Agreement or any Transaction Document or the transactions contemplated hereby or thereby or to the inducement of any party (including Emerald) to enter into this Agreement or any Transaction Document, whether for breach of contract, tortious conduct or otherwise and whether predicated on common law, statute or otherwise). Except as provided in the immediately foregoing sentence, this Agreement is for the sole benefit of the Parties and their successors and permitted assigns and nothing express or implied in this Agreement is intended or shall be construed to confer upon any Person other than the Parties any legal or equitable rights or remedies under this Agreement. | ||
11.9 | Severability | |
If any provision of this Agreement (or any portion thereof) or the application of any such provision (or any portion thereof) to any Person or circumstance shall be held invalid, illegal or unenforceable in any respect by a court of competent jurisdiction, such invalidity, illegality or unenforceability shall not affect any other provision of this Agreement (or the remaining portion thereof) or the application of such provision to any other Person or circumstances. Upon such determination that any term or other provision is invalid, illegal or incapable of being enforced, the Parties shall negotiate in good faith to modify this Agreement so as to effect the original intent of the Parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby are completed as originally contemplated to the greatest extent possible. Notwithstanding the foregoing, the Parties intend and agree that all provisions regarding consideration to be paid hereunder (includingSections 2.1 and3.1) are an integral part of this Agreement without which there would be no agreement and are not severable herefrom. | ||
11.10 | Entire Agreement | |
This Agreement and the Transaction Documents constitute the entire agreement and understanding between the Parties with respect to the subject matter of this Agreement and the Transaction Documents and supersede all prior agreements and understandings, both oral and written, between Manchester and Arsenal with respect to the subject matter of this Agreement and the Transaction Documents, including the Proposed Deal Structure dated February 5, 2010. The Exhibits and Schedules are an integral part of this Agreement and are incorporated by reference into this Agreement for all purposes. |
48
11.11 | Construction | |
Unless the context of this Agreement otherwise clearly requires, (i) references to the plural include the singular, and references to the singular include the plural, (ii) references to any gender include the other genders, (iii) the words “include,” “includes” and “including” do not limit the preceding terms or words and shall be deemed to be followed by the words “without limitation”, (iv) the terms “hereof”, “herein”, “hereunder”, “hereto” and similar terms in this Agreement refer to this Agreement as a whole and not to any particular provision of this Agreement, (v) the terms “day” and “days” mean and refer to calendar day(s) and (vi) the terms “year” and “years” mean and refer to calendar year(s). | ||
11.12 | Headings and Captions; Exhibits and Schedules | |
The headings and captions in this Agreement and in the table of contents are included for convenience of reference only and shall be ignored in the construction or interpretation of this Agreement. All Annexes, Exhibits and Schedules to this Agreement are integral parts of this Agreement and are incorporated in and made a part of this Agreement as if set forth in full. Certain terms used in this Agreement shall have the meanings ascribed to such terms inAnnex 1 hereto. Any capitalized terms used in any Schedule or Exhibit but not otherwise defined therein shall have the meanings as defined in this Agreement. All references to Sections or Exhibits contained in this Agreement shall be to Sections or Exhibits of or to this Agreement unless otherwise stated. |
49
MISYS PLC | ||||
By: | /s/ J. Michael Lawrie | |||
Name: | J. Michael Lawrie | |||
Title: | Chief Executive Officer | |||
ALLSCRIPTS-MISYS HEALTHCARE SOLUTIONS, INC. | ||||
By: | /s/ Lee A. Shapiro | |||
Name: | Lee A. Shapiro | |||
Title: | President | |||
ECLIPSYS CORPORATION, solely in its capacity as a third party beneficiary in accordance withSection 11.8 hereof | ||||
By: | /s/ Philip M. Pead | |||
Name: | Philip M. Pead | |||
Title: | President and CEO |
50
51
52
53
54
55
Bank Name: | National Westminster Bank PLC | |||
Branch: | City of London | |||
SWIFT: | NWBKGB2L | |||
Account Name: | Misys plc — Treasury Account | |||
Account Number: | 42060915 | |||
Currency: | USD | |||
Correspondent Bank: | JP Morgan Chase Bank, New York (ABA Routing No. 021000021) | |||
SWIFT: CHASUS33 |
56
57
58
59
60
61
Form of Amendment to Arsenal Second Amended and Restated Certificate of Incorporation
62
CERTIFICATE OF INCORPORATION
OF
ALLSCRIPTS-MISYS HEALTHCARE SOLUTIONS, INC.
ALLSCRIPTS-MISYS HEALTHCARE SOLUTIONS, INC. | ||||
By: | ||||
Name: | ||||
Title: |
CERTIFICATE OF INCORPORATION
OF
ALLSCRIPTS-MISYS HEALTHCARE SOLUTIONS, INC.
(the “Certificate of Incorporation”)
4
5
6
7
8
9
10
11
12
13
Form of Amendment to Arsenal Third Amended and Restated Certificate of Incorporation
63
CERTIFICATE OF INCORPORATION
OF
ALLSCRIPTS-MISYS HEALTHCARE SOLUTIONS, INC.
ALLSCRIPTS-MISYS HEALTHCARE SOLUTIONS, INC. | ||||
By: | ||||
Name: | ||||
Title: |
CERTIFICATE OF INCORPORATION
OF
ALLSCRIPTS HEALTHCARE SOLUTIONS, INC.
(the “Certificate of Incorporation”)
4
5
6
7
8
9
10
11
12
13
14
Commitment Letter
64
J.P. MORGAN SECURITIES | BARCLAYS BANK PLC | UBS SECURITIES LLC | ||
INC. | BARCLAYS CAPITAL | 299 Park Avenue | ||
JPMORGAN CHASE BANK, | 745 Seventh Avenue | New York, NY 10171 | ||
N.A. | New York, New York 10019 | UBS LOAN FINANCE LLC | ||
270 Park Avenue | 677 Washington Boulevard | |||
New York, New York 10017 | Stamford, CT 06901 |
222 Merchandise Mart, Suite 2024
Chicago, IL 60654
Senior Secured Credit Facilities
Commitment Letter
2
3
4
5
6
7
8
9
J.P. MORGAN SECURITIES INC. | ||||
By: | /s/ James McHugh | |||
Name: | James McHugh | |||
Title: | Executive Director | |||
JPMORGAN CHASE BANK, N.A. | ||||
By: | /s/ Krys Szremski | |||
Name: | Krys Szremski | |||
Title: | Vice President | |||
BARCLAYS BANK PLC | ||||
By: | /s/ John Skorbe | |||
Name: | John Skorbe | |||
Title: | Managing Director | |||
UBS SECURITIES LLC | ||||
By: | /s/ David W. Barth | |||
Name: | David W. Barth | |||
Title: | Managing Director High Yield Capital Markets | |||
By: | /s/ Michael Lawton | |||
Name: | Michael Lawton | |||
Title: | Director | |||
UBS LOAN FINANCE LLC | ||||
By: | /s/ David W. Barth | |||
Name: | David W. Barth | |||
Title: | Managing Director High Yield Capital Markets | |||
By: | /s/ Michael Lawton | |||
Name: | Michael Lawton | |||
Title: | Director | |||
the date first written above by:
SOLUTIONS, INC.
By: | /s/ William J. Davis | |||||
Name: | William J. Davis | |||||
Title: | Chief Financial Officer |
Sources: | ||||||||||
Term Loans | $ | 570,000,000 | ||||||||
Revolving Loans1 | $ | 0 | ||||||||
Cash on Hand | $ | 30,300,000 | ||||||||
Total Sources | $ | 600,300,000 | ||||||||
Uses: | ||||||||||
Initial Share Repurchase | $ | 577,400,000 | ||||||||
Payment of Fees and Expenses2 | $ | 22,900,000 | ||||||||
Total Uses | $ | 600,300,000 | ||||||||
1 | $150,000,000 availability. | |
2 | Includes estimated OID. |
Form of Emerald Definitive Agreement
65
Page | ||||
ARTICLE I THE MERGER | 2 | |||
Section 1.1 The Merger | 2 | |||
Section 1.2 Effective Time | 2 | |||
Section 1.3 Effects of the Merger | 3 | |||
Section 1.4 Charter and Bylaws; Directors and Officers | 3 | |||
Section 1.5 Conversion of Securities | 3 | |||
Section 1.6 Parent to Make Certificates Available | 4 | |||
Section 1.7 Dividends; Transfer Taxes; Withholding | 5 | |||
Section 1.8 No Fractional Securities | 5 | |||
Section 1.9 Return of Exchange Fund | 6 | |||
Section 1.10 Adjustment of Per Share Merger Consideration | 6 | |||
Section 1.11 No Further Ownership Rights in Company Common Stock | 6 | |||
Section 1.12 Closing of Company Transfer Books | 7 | |||
Section 1.13 Lost Certificates | 7 | |||
Section 1.14 Further Assurances | 7 | |||
Section 1.15 Closing; Closing Deliveries | 7 | |||
ARTICLE II REPRESENTATIONS AND WARRANTIES OF PARENT AND MERGER SUB | 9 | |||
Section 2.1 Organization, Standing and Power | 9 | |||
Section 2.2 Capital Structure | 9 | |||
Section 2.3 Authority | 11 | |||
Section 2.4 Consents and Approvals; No Violation | 12 | |||
Section 2.5 SEC Documents and Other Reports; Internal Controls and Procedures | 12 | |||
Section 2.6 Registration Statement and Joint Proxy Statement | 14 | |||
Section 2.7 No Undisclosed Liabilities | 14 | |||
Section 2.8 Absence of Certain Changes or Events | 14 | |||
Section 2.9 Permits and Compliance | 15 | |||
Section 2.10 Tax Matters | 15 | |||
Section 2.11 Actions and Proceedings | 16 | |||
Section 2.12 Certain Agreements | 16 | |||
Section 2.13 Employee Benefits | 18 | |||
Section 2.14 Compliance with Worker Safety and Environmental Laws | 19 | |||
Section 2.15 Labor Matters | 19 | |||
Section 2.16 Intellectual Property | 20 |
i
Page | ||||
Section 2.17 Opinion of Financial Advisor | 21 | |||
Section 2.18 State Takeover Statutes | 21 | |||
Section 2.19 Required Vote of Parent Stockholders; Merger Sub Approval | 22 | |||
Section 2.20 Reorganization | 22 | |||
Section 2.21 Brokers | 22 | |||
Section 2.22 Operations of Merger Sub | 22 | |||
Section 2.23 Coniston Transaction | 22 | |||
ARTICLE III REPRESENTATIONS AND WARRANTIES OF THE COMPANY | 24 | |||
Section 3.1 Organization, Standing and Power | 24 | |||
Section 3.2 Capital Structure | 25 | |||
Section 3.3 Authority | 26 | |||
Section 3.4 Consents and Approvals; No Violation | 27 | |||
Section 3.5 SEC Documents and Other Reports; Internal Controls and Procedures | 27 | |||
Section 3.6 Registration Statement and Joint Proxy Statement | 29 | |||
Section 3.7 No Undisclosed Liabilities | 29 | |||
Section 3.8 Absence of Certain Changes or Events | 29 | |||
Section 3.9 Permits and Compliance | 30 | |||
Section 3.10 Tax Matters | 30 | |||
Section 3.11 Actions and Proceedings | 31 | |||
Section 3.12 Certain Agreements | 31 | |||
Section 3.13 Employee Benefits | 33 | |||
Section 3.14 Compliance with Worker Safety and Environmental Laws | 34 | |||
Section 3.15 Labor Matters | 35 | |||
Section 3.16 Intellectual Property | 35 | |||
Section 3.17 Opinion of Financial Advisor | 36 | |||
Section 3.18 State Takeover Statutes | 37 | |||
Section 3.19 Required Vote of Company Stockholders | 37 | |||
Section 3.20 Reorganization | 37 | |||
Section 3.21 Brokers | 37 | |||
ARTICLE IV COVENANTS RELATING TO CONDUCT OF BUSINESS | 37 | |||
Section 4.1 Conduct of Business Pending the Merger | 37 | |||
Section 4.2 No Solicitation With Respect to Company | 44 | |||
Section 4.3 No Solicitation With Respect to Parent | 45 | |||
Section 4.4 Third Party Standstill Agreements | 47 | |||
ARTICLE V ADDITIONAL AGREEMENTS | 47 | |||
Section 5.1 Preparation of the Registration Statement and the Joint Proxy Statement | 47 | |||
Section 5.2 Stockholder Meetings | 48 | |||
Section 5.3 Access to Information | 51 | |||
Section 5.4 Current Nasdaq Quotation | 51 |
ii
Page | ||||
Section 5.5 Fees and Expenses | 51 | |||
Section 5.6 Company Stock Plans and Company Stock Purchase Plan | 55 | |||
Section 5.7 Commercially Reasonable Efforts | 56 | |||
Section 5.8 Public Announcements | 57 | |||
Section 5.9 State Takeover Laws | 58 | |||
Section 5.10 Indemnification; Directors and Officers Insurance | 58 | |||
Section 5.11 Notification of Certain Matters | 60 | |||
Section 5.12 Employee Benefit Plans and Agreements | 60 | |||
Section 5.13 Tax-Free Reorganization Treatment | 61 | |||
Section 5.14 Nasdaq | 61 | |||
Section 5.15 Certain Corporate Governance and Other Matters | 62 | |||
Section 5.16 Section 16 Matters | 63 | |||
Section 5.17 Transaction Litigation | 63 | |||
Section 5.18 Coniston Transaction | 63 | |||
Section 5.19 Control of Operations | 67 | |||
Section 5.20 Debt Retirement | 67 | |||
ARTICLE VI CONDITIONS PRECEDENT TO THE MERGER | 67 | |||
Section 6.1 Conditions to Each Party’s Obligation to Effect the Merger | 67 | |||
Section 6.2 Conditions to Obligation of the Company to Effect the Merger | 68 | |||
Section 6.3 Conditions to Obligations of Parent and Sub to Effect the Merger | 69 | |||
ARTICLE VII TERMINATION, AMENDMENT AND WAIVER | 70 | |||
Section 7.1 Termination | 70 | |||
Section 7.2 Effect of Termination | 73 | |||
Section 7.3 Amendment | 73 | |||
Section 7.4 Waiver | 73 | |||
ARTICLE VIII GENERAL PROVISIONS | 73 | |||
Section 8.1 Non-Survival of Representations and Warranties | 73 | |||
Section 8.2 Notices | 73 | |||
Section 8.3 Interpretation | 74 | |||
Section 8.4 Counterparts | 75 | |||
Section 8.5 Entire Agreement; No Third-Party Beneficiaries | 75 | |||
Section 8.6 Governing Law | 75 | |||
Section 8.7 Specific Performance; Submission To Jurisdiction; Venue | 75 | |||
Section 8.8 Waiver of Jury Trial | 76 | |||
Section 8.9 Assignment | 77 | |||
Section 8.10 Severability | 77 | |||
Section 8.11 Actions and Disputes | 77 | |||
ARTICLE IX DEFINITIONS | 77 | |||
Section 9.1 Definitions | 77 |
iii
Exhibit A | Form of Voting Agreement | |
Exhibit B | Form of Parent Voting Undertaking | |
Exhibit C | Form of Company Voting Undertaking | |
Exhibit D | Form of Amended and Restated Certificate of Incorporation of Parent | |
Exhibit E | Form of Amended and Restated Bylaws of Parent | |
Exhibit F | Certain Corporate Governance and Other Matters | |
Exhibit G | Parent Tax Certificate | |
Exhibit H | Company Tax Certificate | |
Schedule A | List of Signatories to Parent Voting Undertakings | |
Schedule B | List of Signatories to Company Voting Undertakings |
iv
-1-
-2-
-3-
-4-
-5-
-6-
-7-
-8-
-9-
-10-
-11-
-12-
-13-
-14-
-15-
-16-
-17-
-18-
-19-
-20-
-21-
-22-
-23-
-24-
-25-
-26-
-27-
-28-
-29-
-30-
-31-
-32-
-33-
-34-
-35-
-36-
-37-
-38-
-39-
-40-
-41-
-42-
-43-
-44-
-45-
-46-
-47-
-48-
-49-
-50-
-51-
-52-
-53-
-54-
-55-
-56-
-57-
-58-
-59-
-60-
-61-
-62-
-63-
-64-
-65-
-66-
-67-
-68-
-69-
-70-
-71-
-72-
-73-
222 Merchandise Mart Plaza, Suite 2024
Chicago, IL 60654
Attention: General Counsel
Facsimile No.: (312) 506-1208
One South Dearborn
Chicago, Illinois 60603
Attention: Frederick C. Lowinger
Gary D. Gerstman
Facsimile No.: (312) 853-7036
Three Ravinia Drive
Atlanta, GA 30348
Attention: General Counsel
Chief Financial Officer
Facsimile No.: (404) 847-5777
1180 Peachtree Street, NE
Atlanta, Georgia 30309
Attention: John D. Capers, Jr.
C. William Baxley
Facsimile No.: (404) 572-5133
-74-
-75-
-76-
-77-
-78-
-79-
-80-
-81-
-82-
-83-
-84-
-85-
-86-
Defined Term | Section | |
Agreement | Introduction | |
Alternative Financing | 5.18(b) | |
Blue Sky Laws | 2.4 | |
Certificate of Merger | 1.2 | |
Certificates | 1.5(c) | |
Closing | 1.15(a) | |
Closing Date | 1.15(a) | |
Company | Introduction | |
Company 2010 Plan | 4.1(a)(ix) | |
Company Adverse Recommendation Change | 5.2(e) | |
Company Bonus Plans | 5.12(e) | |
Company Business Personnel | 3.15 | |
Company Bylaws | 1.15(d)(ii) | |
Company Charter | 1.15(d)(ii) | |
Company Common Stock | Recitals | |
Company Contract | 3.12 | |
Company Disclosure Letter | Article III | |
Company Foreign Benefit Plan | 3.13(e) | |
Company Owned Intellectual Property Rights | 3.16(d) | |
Company Permits | 3.9 | |
Company Recommendation | 3.3 | |
Company SEC Disclosure | Article III | |
Company SEC Documents | 3.5(a) | |
Company Stockholder Approval | 3.19 | |
Company Stockholder Meeting | 5.2(a) | |
Company Top 100 Customer | 3.12(a) | |
Company Voting Undertakings | Recitals | |
Company’s Current Premium | 5.10(d) | |
Confidentiality Agreement | 5.3 | |
Coniston Transaction | Recitals | |
Constituent Corporations | Introduction | |
Continuing Employees | 5.12 | |
D&O Tail Policy | 5.10(c) | |
Debt Financing | 2.23(b) | |
Debt Financing Agreements | 5.18(c) | |
Debt Financing Commitments | 2.23(b) | |
Debt Financing Conditions | 5.18(c) | |
DGCL | 1.1 | |
Environmental Laws | 2.14 | |
ERISA | 2.13(a) | |
Exchange Act | 2.4 | |
Exchange Agent | 1.6(a) |
-87-
Defined Term | Section | |
Exchange Fund | 1.6(a) | |
Exchange Ratio | 1.5(c) | |
Framework Agreement | Recitals | |
GAAP | 2.5(a) | |
Governmental Entity | 2.4 | |
HSR Act | 2.4 | |
Indemnified Party | 5.10(b) | |
Independent Director | 5.15(b) | |
Information Statement | 5.18(a) | |
Intellectual Property Rights | 2.16(a) | |
Intended Tax Treatment | Recitals | |
IRS | 2.10 | |
Joint Proxy Statement | 2.6 | |
Key Company Customers | 3.8(b) | |
Key Parent Customers | 2.8(b) | |
Lenders | 2.23(b) | |
Manchester | Recitals | |
Merger | Recitals | |
Merger Sub | Introduction | |
Nasdaq | 1.8 | |
Outside Date | 7.1(d) | |
Parent | Introduction | |
Parent Adverse Recommendation Change | 5.2(b) | |
Parent Business Personnel | 2.15 | |
Parent Bylaws | 2.3 | |
Parent Charter | 2.3 | |
Parent Common Stock | Recitals | |
Parent Contracts | 2.12(a) | |
Parent Disclosure Letter | Article II | |
Parent Foreign Benefit Plan | 2.13(e) | |
Parent Owned Intellectual Property Rights | 2.16(d) | |
Parent Permits | 2.9 | |
Parent Recommendation | 2.3 | |
Parent SEC Disclosure | Article II | |
Parent SEC Documents | 2.5(a) | |
Parent Stockholder Approval | 2.19 | |
Parent Stockholder Meeting | 5.2(a) | |
Parent Top 100 Customer | 2.12(a) | |
Parent Voting Undertakings | Recitals | |
Paying Party | 5.5(g) | |
Per Share Merger Consideration | 1.5(c) | |
Receiving Party | 5.5(g) | |
Registration Statement | 2.3 | |
Representatives | 4.2(a) | |
Sarbanes-Oxley Act | 2.5(b) | |
SEC | 2.2(b) |
-88-
Defined Term | Section | |
Securities Act | 2.3 | |
Share Issuance | 2.3 | |
State Takeover Approvals | 2.4 | |
Stockholder Meetings | 5.2(a) | |
Substitute Option | 5.6(a) | |
Surviving Corporation | 1.1 | |
Takeover Laws | 2.18 | |
Terminating Company Breach | 7.1(b) | |
Terminating Parent Breach | 7.1(c) | |
Termination Date | 4.1 | |
Termination Fee Period | 5.5(g) | |
Transmittal Letter | 1.6(b) | |
Voting Agreement | Recitals | |
Worker Safety Laws | 2.14 |
-89-
ALLSCRIPTS-MISYS HEALTHCARE SOLUTIONS, INC. | ||||
By: | ||||
Name: | ||||
Its: | ||||
ARSENAL MERGER CORP. | ||||
By: | ||||
Name: | ||||
Its: | ||||
ECLIPSYS CORPORATION | ||||
By: | ||||
Name: | ||||
Its: |
-90-
1. | Glen E. Tulman | ||
2. | Michael Lawrie | ||
3. | Sir Dominic Cadbury | ||
4. | Marcel L. Gamache | ||
5. | Philip D. Green | ||
6. | John G. King | ||
7. | Michael J. Kluger |
1. | Philip M. Pead | ||
2. | Eugene V. Fife | ||
3. | Edward A. Kangas |
Form of Amendment to Arsenal By-laws
66
OF
ALLSCRIPTS HEALTHCARE SOLUTIONS, INC.
(the “By-Laws”)
2
3
4
5
6
7
8
9
10
11
12
13
67
Form of Manchester Announcement of Coniston Transaction
68
![(MISYS LOGO)](https://capedge.com/proxy/SC 13DA/0000950123-10-057321/y85014y8501400.gif)
MISYS plc
Misys takes decisive steps to realise shareholder value
Return of over $1 billion (£0.7 billion) to shareholders
Allscripts merger with Eclipsys
• | Misys will realise significant value for shareholders through the sale, in a placing of shares and through buybacks by Allscripts. Based on illustrative placing and buyback assumptions, the sale of approximately 68 million of its Allscripts shares would raise over $1.3 billion (£0.9 billion) and would leave a remaining Misys holding of approximately 12 million Allscripts shares. | |
• | Allscripts will merge with Eclipsys, creating what the Allscripts management believe will be the clear leader in healthcare information technology, with the most comprehensive solution offering for healthcare organisations of every size and setting. The merger will be accretive to earnings per share in Calendar 2011. Eclipsys shareholders will receive $1.3 billion in Allscripts shares, representing 1.2 Allscripts shares for each share of Eclipsys that they own. Misys expects to retain a maximum of 10% of Allscripts-Eclipsys shares, following the merger of the two companies. | |
• | The proceeds from the sale of Allscripts shares, after transaction fees and debt paydown, will be returned to Misys shareholders in due course, intended to be through a Proposed Tender Offer for their shares. | |
• | Significant enhancement to Misys earnings per share upon completion of Proposed Sale and Proposed Tender Offer. | |
• | Greater visibility of the inherent value in Misys’ Banking and Treasury & Capital Markets divisions. |
Analyst / investor inquiries | Media inquiries | |
Phil Branston | Carl Gibson | |
T: +44 (0) 203 320 5503 | T: +44 (0) 203 320 5526 | |
M: +44 (0) 789 906 5115 | M: +44 (0) 782 523 6473 | |
Email: phil.branston@misys.com | Email: carl.gibson@misys.com |
(i) | ThePlacing.Market placing of between 36 million and approximately 40 million Allscripts shares held by Misys, with the actual price and offering size to be determined at the time of the placing. | ||
(ii) | TheBuyback.Share buyback by Allscripts of 24.4 million Allscripts shares from Misys for an aggregate consideration of US$577 million, at a price per Allscripts share of US$23.62 which includes a US$117 million premium in recognition of Misys relinquishing control. | ||
(iii) | TheAdditional Buyback.Upon successful completion of the Allscripts-Eclipsys Merger, Misys will have an option to sell to Allscripts an additional 5.3 million of its Allscripts shares for a consideration of US$102 million. |
(i) | successful completion of the Placing and Buyback by Misys | ||
(ii) | necessary approvals from Allscripts’ and Eclipsys’ shareholders | ||
(iii) | relevant Securities and Exchange Commission and anti-trust approvals |
£m, pro-forma, adjusted1 | Year ended 31 May 2009 | |||
Revenue | 344 | |||
Adjusted Operating Profit before Depreciation & Amortisation | 63 | |||
Adjusted Operating Profit | 52 | |||
Adjusted Operating Profit Margin | 15 | % | ||
Adjusted Pre-Tax Profit | 40 | |||
Adjusted After-Tax Profit | 31 |
1 | Before exceptional items, gains and losses on embedded derivatives, amortisation of acquired intangible assets and translation exchange differences recycled from reserves. |
June to July 2010 | Filings to UK Listing Authority and the US Securities and Exchange Commission, followed by review and approval. Other regulatory approvals sought for Allscripts-Eclipsys Merger | |
August 2010 | Circulars to Misys, Allscripts and Eclipsys shareholders | |
September to October 2010 | Misys, Allscripts and Eclipsys shareholder meetings Placing of Misys-owned Allscripts shares and Buyback by Allscripts Closing of Allscripts-Eclipsys Merger Misys Additional Buyback option exercisable within 10 business days of the Allscripts-Eclipsys Merger closing | |
November to December 2010 | Return of net proceeds to Misys shareholders via Proposed Tender Offer |
69
70
(a) | If Arsenal shall have delivered to Manchester an Objection Notice or a Rejection Notice (each, anArbitration Notice), the Parties shall select an Independent Arbitrator and resolve the issue or issues in controversy described in such Arbitration Notice pursuant to mandatory and binding arbitration in accordance with thisExhibit 10. | |
(b) | Any Arbitration Notice shall include three names of individuals (Arsenal Arbitration Candidates) who meet the qualifications to be the Independent Arbitrator and are acceptable to Arsenal. If Manchester accepts any of the Arsenal Arbitration Candidates, Manchester shall so notify Arsenal within three (3) business days of receipt of the Arbitration Notice identifying the Arsenal Arbitration Candidate acceptable to Manchester, who shall thereupon be the Independent Arbitrator. If Manchester does not accept any of the Arsenal Arbitration Candidates, then Manchester shall within three (3) business days of receipt of the Arbitration Notice propose three individuals who meet the qualifications to be the Independent Arbitrator and are acceptable to Manchester (Manchester Arbitration Candidates). If Arsenal accepts any of the Manchester Arbitration Candidates, Arsenal shall so notify Manchester within three (3) business days of receipt of the names of the Manchester Arbitration Candidates identifying the Manchester Arbitration Candidate acceptable to Arsenal, who shall thereupon be the Independent Arbitrator. If Arsenal does not accept any of the Manchester Arbitration Candidates, Arsenal shall so notify Manchester within three (3) business days of the receipt of the names of the Manchester Arbitration Candidates whereupon within one (1) business day one of the Arsenal Arbitration Candidates and one of the Manchester Arbitration Candidates, in each case selected by the other Party, shall be instructed to agree within two (2) business days upon the identity of an individual who meets the qualifications to be the Independent Arbitrator. Notwithstanding anything to the contrary contained herein, in the event the Parties have previously submitted a dispute to arbitration in accordance with thisExhibit 10 or selected an Independent Arbitrator pursuant toSection 10.2(g), the Independent Arbitrator from such previous arbitration proceeding or selected pursuant toSection 10.2(g) shall be the Independent Arbitrator for all subsequent arbitration proceedings relating to any Objection Notice or Rejection Notice unless either Arsenal or Manchester objects to the use of such Independent Arbitrator in any such subsequent arbitration proceeding, in which case the Parties shall select a new Independent Arbitrator in accordance with this paragraph (b). | |
(c) | The Independent Arbitrator shall be instructed by Arsenal and Manchester to use its best efforts to make a reasoned final written determination within fifteen (15) business days after such selection, binding on the Parties, as to the issue or issues in controversy described in the relevant Arbitration Notice. The Independent Arbitrator shall review written submissions of the Parties with respect to the matters at issue and shall be entitled to seek clarifications or back-up information related thereto from the Parties, as well as in-person joint meetings with the Parties, but shall not undertake an independent investigation. Each Party shall be entitled to a single brief to be submitted within five (5) business days of the selection of the Independent Arbitrator and a single written rebuttal to be submitted within three (3) business days of submission of briefs. Notwithstanding anything to the contrary contained herein, neither Arsenal nor Manchester (nor any of their respective Affiliates or representatives) shall have any ex parte communications or meetings with the Independent Arbitrator without the prior consent of the other Party. |
71
(d) | If Manchester shall have delivered to Arsenal a Reduction Notice, an Excess PLR Guarantee Notice or an Excess Historic Guarantee Notice, the Parties shall negotiate in good faith to select as promptly as reasonably practicable a qualified arbitrator (who for the avoidance of doubt need not be an Independent Arbitrator) reasonably acceptable to each of the Parties and resolve the issue or issues in controversy described in such Reduction Notice, Excess PLR Guarantee Notice or Excess Historic Guarantee Notice pursuant to mandatory and binding arbitration in accordance with thisExhibit 10. | |
(e) | Any determination reached by the Independent Arbitrator or the arbitrator selected pursuant to paragraph (d), as the case may be, will be final, conclusive and binding upon the Parties and any judgment thereon may be entered and enforced in any court of competent jurisdiction. The Party that is unsuccessful in the arbitration shall pay all fees, costs and expenses of the Independent Arbitrator or the arbitrator selected pursuant to paragraph (d), as the case may be, and all reasonable out-of-pocket fees, costs and expenses of the other Party, including fees payable to attorneys, experts and witnesses for the other Party. In addition, in connection with any Proceeding to compel arbitration pursuant to this Agreement or to confirm, vacate or enforce any award rendered by the Independent Arbitrator or the arbitrator selected pursuant to paragraph (d), as the case may be, the prevailing Party in such a Proceeding will be entitled to recover reasonable fees, costs and expenses incurred in connection with such Proceeding, in addition to any other relief to which it may be entitled. Without limiting the foregoing, Manchester’s costs in connection with this paragraph (d) shall include all out-of-pocket fees, costs and expenses incurred to financial institutions in connection with the PLR Bank Guarantee or Historic Bank Guarantee, as the case may be, remaining outstanding from the date it otherwise would have been released pursuant toSection 10.10 through the date on which it is actually released. |
72
Form of Bank Guarantee
73
Allscripts-Misys Healthcare Solutions, Inc. | [DATE] | |
222 Merchandise Mart Plaza, Suite 2024 | ||
Chicago, IL 60654 | ||
USA |
1. | Our liability under this guarantee is limited to an amount or amounts not exceeding in aggregate US$[•] million (the “Maximum Guarantee Amount”) as reduced from time to time by a notice from Misys in the form of Exhibit B hereto (including all attachments required by paragraph 3 of Exhibit B) (a “Reduction Notice”). |
2. | This guarantee will come into force on [date of Coniston Closing]. |
3. | This guarantee will expire upon our receipt of a duly executed certificate of the Chief Executive Officer of Misys certifying that this guarantee is terminated in the form of Exhibit C hereto (including all attachments required by paragraph 3 of Exhibit C) (a “Release Notice”). |
FORM OF DEMAND NOTICE
To: | [BANK] | |
[ADDRESS] | ||
Attn: |
1. | We hereby demand payment in the amount of $ . | |
2. | We hereby certify that each of the [Transaction Tax Conditions or Post-Closing Franchise Tax Conditions] [NOTE:PLR Bank Guarantee only] [Historic Tax Conditions] [NOTE:Historic Bank Guarantee only] (as defined in the Framework Agreement) has been satisfied. |
3. | We hereby certify that attached hereto is a copy of resolutions adopted by the Board of Directors of Allscripts affirming that the Board of Directors of Allscripts has determined that each of the [Transaction Tax Conditions or Post-Closing Franchise Tax Conditions] [NOTE: PLR Bank Guarantee only] [Historic Tax Conditions] [NOTE:Historic Bank Guarantee only] (as defined in the Framework Agreement) has been satisfied, which resolutions are complete and accurate and were duly passed by the Board of Directors of Allscripts and have not been altered, amended or rescinded and remain in full force and effect as of the date of this Demand Notice. |
4. | We hereby certify that the amount hereby demanded, when aggregated with any other amount or amounts previously demanded under the Guarantee, does not exceed the Maximum Guarantee Amount available under the Guarantee on the date hereof, as determined in accordance with the terms of the Guarantee. |
5. | Payment by the Issuing Bank pursuant to this demand notice shall be made to , ABA Number , Account Number , Attention: , Re: . |
ALLSCRIPTS-MISYS HEALTHCARE SOLUTIONS, INC. | ||||
By: | ||||
Name: | [•] | |||
Title: | [•] | |||
Date: | [•] |
FORM OF REDUCTION NOTICE
To: | [BANK] | |
[ADDRESS] | ||
Attn: |
1. | We hereby request that the Maximum Guarantee Amount be reduced to $ . |
2. | We hereby certify that the conditions set forth in Section [•] of the Framework Agreement for the reduction of the Maximum Guarantee Amount as requested in paragraph 1 above have been satisfied. |
3. | We hereby certify that attached hereto is a copy of resolutions adopted by the Board of Directors of Misys affirming that the conditions set forth in Section [•] of the Framework Agreement for the reduction of the Maximum Guarantee Amount as requested in paragraph 1 above have been satisfied, which resolutions are complete and accurate and were duly passed by the Board of Directors of Misys and have not been altered, amended or rescinded and remain in full force and effect as of the date of this reduction notice. |
MISYS PLC | ||||
By: | ||||
Name: | [•] | |||
Title: | [•] | |||
Date: | [•] |
FORM OF RELEASE NOTICE
To: | [BANK] | |
[ADDRESS] | ||
Attn: |
1. | We hereby request that the Guarantee be terminated with immediate effect. |
2. | We hereby certify that one of the conditions set forth in Section [•] of the Framework Agreement for the full release and termination of the Guarantee has been satisfied (without any required reduction of the released amount under Section [•] of the Framework Agreement). |
3. | We hereby certify that attached hereto is a copy of resolutions adopted by the Board of Directors of Misys affirming that one of the conditions set forth in Section [•] of the Framework Agreement for the full release and termination of the Guarantee has been satisfied (without any required reduction of the released amount under Section [•] of the Framework Agreement), which resolutions are complete and accurate and were duly passed by the Board of Directors of Misys and have not been altered, amended or rescinded and remain in full force and effect as of the date of this release notice. |
MISYS PLC | ||||
By: | ||||
Name: | [•] | |||
Title: | [•] | |||
Date: | [•] |
FORM OF BANK NOTICE
To: | Misys plc | |
One Kingdom Street | ||
Paddington | ||
London W2 6BL, UK | ||
Attention: General Counsel | ||
Facsimile number: +44 (0)20 3320 1771 | ||
Cc: | [BANK] | |
[ADDRESS] | ||
Attn: | ||
Facsimile number [ ] |
1. | [Reason for payment to be specified in accordance with Section 10.10 of the Framework Agreement and appropriate evidence (if any) to be attached]. |
2. | Misys has agreed to indemnify Newco or such Allscripts Group Member from the [Transaction Tax] [Historic Tax] [Post-Closing Franchise Tax] described in paragraph 1 above pursuant to Section [•] of the Framework Agreement. |
3. | We therefore hereby request that Misys make payment in the amount of $ in satisfaction of the [Transaction Tax] [Historic Tax] [Post-Closing Franchise Tax] described in paragraph 1 above to or on behalf of Newco or such Allscripts Group Member within seven (7) business days after receipt by Misys of this notice. |
4. | If Misys fails to make the payment requested in paragraph 3 above within seven (7) business days after receipt of this notice, we intend to demand payment of the amount set forth in paragraph 3 above pursuant to a Demand Notice to be delivered in person to [BANK]. |
ALLSCRIPTS-MISYS HEALTHCARE SOLUTIONS, INC. | ||||
By: | ||||
Name: | [•] | |||
Title: | [•] | |||
Date: | [•] |
FORM OF BANK NOTICE
To: | Allscripts-Misys Healthcare Solutions, Inc. | |
222 Merchandise Mart Plaza, Suite 2024 | ||
Chicago, IL 60654 | ||
Attention: General Counsel | ||
Facsimile number: +1 312 506 1208 | ||
Cc: | [BANK] | |
[ADDRESS] | ||
Attn: | ||
Facsimile number [ ] |
[For any reduction of a guarantee:] |
1. | [Reason for reduction to be specified in accordance with Section 10.10 of the Framework Agreement and appropriate evidence (if any) to be attached]. |
2. | The occurrence of the event described in paragraph 1 above satisfies the conditions for the reduction of the amount of the [PLR Bank Guarantee] [Historic Tax Guarantee] set forth in Section [•] of the Framework Agreement. |
3. | We therefore intend to deliver to [BANK], ten (10) business days after receipt by Allscripts of this notice, a Reduction Notice instructing [BANK] to reduce the maximum guarantee amount of the [PLR Bank Guarantee] [Historic Tax Guarantee] to $ in accordance with Section [•] of the Framework Agreement. |
1. | [Reason for termination to be specified in accordance with Section 10.10 of the Framework Agreement and appropriate evidence (if any) to be attached]. |
2. | The occurrence of the event described in paragraph 1 above satisfies the conditions for the full release and termination of the [PLR Bank Guarantee] [Historic Tax Guarantee] set forth in Section [•] of the Framework Agreement (without any required reduction of the released amount under Section [•] of the Framework Agreement). |
3. | We therefore intend to deliver to [BANK], ten (10) business days after receipt by Allscripts of this notice, a Release Notice instructing [BANK] to fully release and terminate the [PLR Bank Guarantee] [Historic Tax Guarantee] in accordance with Section [•] of the Framework Agreement (without any required reduction of the released amount under Section [•] of the Framework Agreement). |
MISYS PLC | ||||
By: | ||||
Name: | [•] | |||
Title: | [•] | |||
Date: | [•] |
ADDRESSES FOR ALLSCRIPTS AND MISYS
222 Merchandise Mart Plaza, Suite 2024
Chicago, IL 60654
Telephone: +1 800 654 0889
Fax: +1 312 506 1208
Attn: General Counsel
One Kingdom Street
Paddington
London W2 6BL, UK
Telephone: +44 (0)20 3320 5000
Fax: +44 (0)20 3320 1771
Attn: General Counsel
74
75
76