DATED 9 APRIL 2020 - purecircle.com · DATED 9 APRIL 2020 INGREDION SRSS HOLDINGS LIMITED - and –...
Transcript of DATED 9 APRIL 2020 - purecircle.com · DATED 9 APRIL 2020 INGREDION SRSS HOLDINGS LIMITED - and –...
DATED 9 APRIL 2020
INGREDION SRSS HOLDINGS LIMITED
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PURECIRCLE LIMITED
IMPLEMENTATION AGREEMENT
Matter ref: 759815.000011
C1KJD/MEM/6677594.5
Hogan Lovells International LLP
Atlantic House, Holborn Viaduct, London EC1A 2FG
CONTENTS
CLAUSE PAGE
1. DEFINITIONS AND INTERPRETATION 1
2. PUBLICATION OF THE ANNOUNCEMENT 6
3. UNDERTAKINGS TO SATISFY THE CONDITIONS 7
4. IMPLEMENTATION OF THE SCHEME AND RIGHT TO SWITCH 9
5. SCHEME DOCUMENTATION 9
6. RESPONSIBILITY FOR INFORMATION 10
7. APPLICATION OF THE CODE AND APPOINTMENT OF CODE EXPERT 10
8. CONDUCT PENDING COMPLETION OF THE ACQUISITION 15
9. PURECIRCLE SHARE RIGHTS 16
10. TERMINATION 16
11. REPRESENTATIONS AND WARRANTIES 17
12. D&O INSURANCE 17
13. MISCELLANEOUS PROVISIONS 17
14. GOVERNING LAW AND JURISDICTION 20
SCHEDULES
1. ANNOUNCEMENT 22
2. THE PURECIRCLE SHARE RIGHTS 23
THIS AGREEMENT is made on 9 April 2020
BETWEEN:
(1) Ingredion SRSS Holdings Limited, a company incorporated in England and Wales with
registered number 12542326 and whose registered office is at Ingredion House
Manchester Green, 339 Styal Road, Manchester, United Kingdom, M22 5LW ("Bidco"),
and
(2) PureCircle Limited, a company incorporated in Bermuda with registered number 40431
and whose registered office is at Clarendon House 2 Church Street, Hamilton HM11,
Bermuda ("PureCircle").
RECITALS:
(A) Bidco, a company wholly-owned by Ingredion (as defined further below), wishes to acquire
the entire issued and to be issued share capital of PureCircle (the "Acquisition") on the
terms and subject to the conditions set out in the Announcement.
(B) The Parties intend the Acquisition to be implemented by means of the Scheme provided
that Bidco reserves the right, as set out in the Announcement, to elect to implement the
Acquisition by means of a Takeover Offer.
(C) The Parties have agreed to enter into this Agreement to set out certain mutual
commitments to regulate the basis on which they are willing to implement the Acquisition
and to record their respective obligations relating to such matters.
IT IS AGREED THAT:
1. DEFINITIONS AND INTERPRETATION
1.1 In this Agreement, unless the context otherwise requires:
"2008 LTIP" means the PureCircle long-term incentive plan with a commencement date of
10 June 2008 and an expiry date of 9 June 2018;
"2017 LTIP" means the PureCircle long-term incentive plan adopted on 1 December 2017;
"Acquisition" shall have the meaning given in Recital (A);
"Action" means any legal, arbitral, administrative, regulatory or other action or proceeding;
"Advisers" means in relation to Bidco, each of Hogan Lovells International LLP and Hogan
Lovells US LLP and, in relation to PureCircle, Baker & McKenzie LLP, including (unless
the context requires otherwise) partners in and directors, members and employees of such
advisers;
"Announcement" means the press announcement in the agreed form set out in Schedule
1;
"Bermuda Companies Act" means the Bermuda Companies Act 1981, as amended;
"Bidco Appointees" has the meaning given to it in clause 7.4;
"Bidco Directors" means the directors of Bidco from time to time;
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"Bidco Group" means Bidco and its subsidiaries and subsidiary undertakings from time to
time and, where the context permits, each of them;
"Business Day" means a day (not being a Saturday) on which banks are open for general
banking business in the City of London;
"Bye-Laws" means the bye-laws of PureCircle as adopted by the shareholders on 19
October 2019;
"Cash Offer" means for each PureCircle Share 100 pence in cash;
"Clearance(s)" means all merger control, competition and regulatory approvals, consents,
clearances, permissions, waivers and “no objection” statements referred to in the
Conditions and all waiting periods that may need to have expired, from or under the laws,
regulations or practices applied by any relevant Regulatory Authority in connection with the
Acquisition or its implementation, and any reference to Clearances having been "satisfied"
shall be construed as meaning that the foregoing have been obtained or, where
appropriate, made or expired;
"Code" means the City Code on Takeovers and Mergers as from time to time amended
and interpreted by the Panel;
"Code Application Proposal" has the meaning given to it in clause 7.12;
"Code Committee" means the committee established pursuant to clause 7.4;
"Code Expert" means the expert who may be appointed in accordance with clause 7.11;
"Code Expert Prescribed Remedy" has the meaning given to it in clause 7.18;
"Code Question" has the meaning given to it in clause 7.11;
"Code Ruling" has the meaning given to it in clause 7.13;
"Conditions" means:
(a) for so long as the Acquisition is being implemented by means of the Scheme, the
conditions to the implementation of the Scheme as set out in Part A of Appendix 1
to the Announcement, as may be amended in writing by the Parties, and any other
conditions which are agreed in writing by the Parties; and
(b) for so long as the Acquisition is being implemented by means of a Takeover Offer,
the terms and conditions referred to in (a) above as agreed in writing by the Parties
in the Offer Document;
"Confidentiality Agreement" means the confidentiality letter between Ingredion and
PureCircle dated 11 January 2020;
"Court" means the Supreme Court of Bermuda;
"Court Hearing" means the hearing by the Court to sanction the Scheme and, if such
hearing is adjourned, references to the commencement of any such hearing shall mean
the commencement of the final adjournment thereof;
"Court Meeting" means the meeting of PureCircle Shareholders to be convened pursuant
to an order of the Court under section 99(1) of the Bermuda Companies Act for the purpose
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of considering and, if thought fit, approving the Scheme (with or without amendment),
including any adjournment thereof, notice of which is to be contained in the Scheme
Document;
"Defaulting Party" has the meaning given to it in clause 7.18;
"Effective" means in the context of the Acquisition:
(a) if the Acquisition is implemented by way of the Scheme, the Scheme having
become effective pursuant to its terms; or
(b) if the Acquisition is implemented by way of a Takeover Offer, such Takeover Offer
having been declared or become unconditional in all respects in accordance with
its terms;
"Effective Date" means the date upon which either:
(a) the Scheme becomes effective in accordance with its terms; or
(b) if Bidco elects to implement the Acquisition by means of a Takeover Offer in
accordance with clause 4.1, the Takeover Offer becoming or being declared
unconditional in all respects in accordance with its terms;
"Financial Adviser" means as used in relation to Bidco, Citi or its affiliates and, in relation
to PureCircle, means KPMG LLP, including (unless the context otherwise requires)
directors, officers and employees thereof;
"General Meeting" means the general meeting (or any adjournment, postponement or
reconvention thereof) of PureCircle to be convened in connection with the Acquisition;
"Ingredion" means Ingredion Incorporated a corporation incorporated in the State of
Delaware, USA;
"Law" means any applicable statute, common law, rule, regulation, ordinance, code, order,
judgement, injunction, writ, decree, directive, governmental guidelines or interpretations
having force of law or bylaws, in each case issued, administered or enforced by any
Regulatory Authority;
"Long Stop Date" means 5.00 pm on 30 November 2020 (or such later date (if any) as
may be agreed in writing between Bidco and PureCircle (as the Court may approve (if such
approval(s) are required);
"Loyalty Plan" means the retention awards granted to certain PureCircle Employees in
January and February 2020 (as amended from time to time);
"Non-Defaulting Party" has the meaning given to it in clause 7.18;
"Offer Document" means the offer document published by or on behalf of Bidco in
connection with any Takeover Offer to be sent to, among others, PureCircle Shareholders,
including any revised offer document, which will contain, among other things, the terms
and conditions of the Takeover Offer;
"Panel" means the Panel on Takeovers and Mergers;
"Parties" means Bidco and PureCircle;
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"PureCircle Appointees" has the meaning given to it in clause 7.4;
"PureCircle Board" means the board of directors of PureCircle from time to time;
"PureCircle Board Recommendation" means the unanimous recommendation of the
PureCircle Directors to the PureCircle Shareholders to vote or procure votes in favour of
the Scheme at the Court Meeting and the Resolutions to be proposed at the General
Meeting (for the avoidance of doubt, this does not include any recommendation or opinion
on the Share Alternative);
"PureCircle Directors" means the directors of PureCircle at the time of the Announcement
or, where the context so requires, from time to time;
"PureCircle Group" means PureCircle and its subsidiaries and subsidiary undertakings
from time to time and, where the context permits, each of them;
"PureCircle Remuneration Committee" means the remuneration committee formed
under the authority of the PureCircle Board;
"PureCircle Share Rights" means awards under the PureCircle Share Plans and, if the
board of PureCircle so determines, awards that are to be settled in shares under the Loyalty
Plan and in relation to the salary of the Chief Executive Officer of PureCircle;
"PureCircle Shares" means the existing unconditionally allotted or issued and fully paid
ordinary shares of US$0.10 each in the capital of PureCircle and any further such ordinary
shares as are unconditionally allotted or issued before the Acquisition becomes Effective;
"PureCircle Shareholders" means the holders of PureCircle Shares from time to time;
"PureCircle Share Plans" means the 2008 LTIP and the 2017 LTIP;
"Quorum" has the meaning given to it in clause 7.6;
"Regulatory Approvals" means:
(a) so long as the Acquisition is being implemented by means of the Scheme, the
conditions and approvals described in Condition(s) 3(a)-(d) (inclusive) of Part A of
Appendix 1 to the Announcement and any other regulatory and/or anti-trust
conditions and approvals that are required in connection with the Acquisition; and
(b) for so long as the Acquisition is being implemented by means of a Takeover Offer,
the conditions and approvals referred to in (a) above as agreed in writing by the
Parties in the Offer Document;
"Regulatory Authority" means any court or competition, anti-trust, national, supranational
or supervisory body or other government, governmental, trade or regulatory agency or
body, in each case in any jurisdiction, including the US Securities and Exchange
Commission, the European Commission, and the US Federal Trade Commission or the
Antitrust Division of the US Department of Justice, as the case may be under the Hart-
Scott-Rodino Antitrust Improvements Act of 1976, as amended;
"Relevant Period" means the period between the date of this Agreement and the earlier
to occur of: (i) the Effective Date, and (ii) the date of termination of this Agreement in
accordance with clause 10;
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"Representatives" means in relation to each Party, its Financial Advisers, Advisers,
directors, officers, employees, agents and consultants, and any individuals seconded to
work for such Party (including persons who, at the relevant time, occupied such position);
"Resolutions" means the resolutions to be proposed by PureCircle at the General Meeting
in connection with, amongst other things, the approval of the Scheme, the amendment of
PureCircle's Bye-Laws and such other matters as may be necessary to implement the
Scheme;
"Right to Switch" shall have the meaning given to it in clause 4.2;
"Scheme" means the scheme of arrangement proposed to be made under section 99 of
the Bermuda Companies Act between PureCircle and the PureCircle Shareholders to
implement the Acquisition, with or subject to any modification, addition or condition
approved or imposed by the Court (where applicable) and agreed by PureCircle and Bidco;
"Scheme Approval Condition" means the conditions and approvals to the implementation
of the Scheme as set out in condition 1 of Appendix 1 of the Announcement;
"Scheme Document" means the circular to be sent to PureCircle Shareholders containing,
amongst other things, information about the Scheme and the notices convening the Court
Meeting and the General Meeting;
"Share Alternative" means the Bidco share alternative that is described in the
Announcement under which eligible PureCircle Shareholders may elect to receive for each
PureCircle Share, one Acquisition Shares in lieu of the full cash consideration to which they
would otherwise be entitled under the Acquisition (subject to scaling back in accordance
with the terms of the Announcement);
"Takeover Offer" means in the event that Bidco exercises its Right to Switch, as set out in
the Announcement, to elect to implement the Acquisition by means of an offer made in
accordance with the provisions of the Bermuda Companies Act and the PureCircle Bye-
laws, such offer, including any subsequent revision, variation, extension or renewal of such
offer and includes any election available in connection with such offer;
"UK Companies Act" means the Companies Act 2006, as amended;
"United Kingdom" or "UK" means the United Kingdom of Great Britain and Northern
Ireland; and
"United States" or "US" means the United States of America, its territories and
possessions, any state of the United States of America, the District of Columbia and all
other areas subject to its jurisdiction and any political sub-division thereof.
1.2 The following shall apply to this Agreement (but not to the Announcement):
(a) terms and expressions used but not expressly defined in this Agreement shall,
unless the context otherwise requires, have the meanings given in the
Announcement;
(b) terms and expressions defined in the UK Companies Act and not expressly defined
in this Agreement, including the expressions "subsidiary" and "subsidiary
undertaking", shall, unless the context otherwise requires, have the meanings given
in the UK Companies Act;
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(c) when used in this Agreement, the expressions "acting in concert" and "offer" shall
have the meanings given in the Code;
(d) any reference to this Agreement includes the Schedules to it, each of which forms
part of this Agreement for all purposes;
(e) a reference to an enactment or statutory provision shall be construed as a reference
to any subordinate legislation made under the relevant enactment or statutory
provision and shall be construed as a reference to that enactment, statutory
provision or subordinate legislation as from time to time amended, consolidated,
modified, re-enacted or replaced (except to the extent that any statute, statutory
provision or subordinated legislation made or enacted after the date of this
Agreement would create or increase a liability of the relevant Party under this
Agreement);
(f) words in the singular shall include the plural and vice versa;
(g) references to one gender include each other gender;
(h) references to a "party" or "Party" means a party to this Agreement and includes its
successors in title, personal representatives and permitted assigns;
(i) references to a "company" or "person" shall be construed so as to include any
company, corporation or other body corporate, wherever and however incorporated
or established;
(j) a reference to a Recital, clause or Schedule (other than to a schedule to a statutory
provision) shall be a reference to a Recital, clause or Schedule (as the case may
be) of or to this Agreement;
(k) a reference to "includes" or "including" shall mean "includes without limitation" or
"including without limitation";
(l) references to documents "in the agreed form" or any similar expression shall be to
documents agreed between the Parties, annexed to this Agreement and initialled
for identification by or on behalf of Bidco and PureCircle;
(m) the headings in this Agreement are for convenience only and shall not affect its
interpretation;
(n) a reference to any other document referred to in this Agreement is a reference to
that other document as amended, varied, novated or supplemented at any time;
and
(o) references to this Agreement include this Agreement as amended or supplemented
in accordance with its terms.
2. PUBLICATION OF THE ANNOUNCEMENT
The obligations of the Parties under this Agreement, other than this clause 2 and clauses
1, 8, 11, 13 and 14, shall be conditional on the release of the Announcement via a
Regulatory Information Service at or before 4.30 pm on 9 April 2020 or such later time and
date as the Parties may agree This clause 2 and clauses 1, 8, 11, 13 and 14, shall take
effect on and from execution of this Agreement. The Parties agree that the Announcement
shall constitute, for the purposes of the Code, as applied pursuant to clause 7.2, an
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announcement by Bidco of a firm intention to make an offer for PureCircle under Rule 2.7
of the Code.
3. UNDERTAKINGS TO SATISFY THE CONDITIONS
3.1 The obligation of Bidco to complete the Scheme (or, if Bidco exercises its Right to Switch
pursuant to clause 4.2, the Takeover Offer) is subject to satisfaction or, where required or
permitted under this Agreement, waiver of the Conditions by Bidco. Bidco shall instruct
counsel to appear on its behalf at the Court Hearing and undertake to the Court to be bound
by the terms of the Scheme (insofar as it relates to Bidco) to the extent that all the
Conditions (other than the Scheme Approval Condition and any other Condition capable of
satisfaction only at or after the Court Hearing) have been satisfied.
3.2 Notwithstanding clause 3.1, Bidco undertakes to waive all of the Conditions that are not
then satisfied by 9.00 am (Bermuda time) on the date of the Court Hearing unless either (i)
Bidco would be permitted to invoke a Condition under Rule 13 of the Code (as if the Code
applied to PureCircle); or (ii) such Condition is any of the Conditions in paragraphs 2(a)-
(e) (inclusive) of Part A of Appendix 1 of the Announcement (and, accordingly are not
capable of being waived) or, is any of the Conditions in paragraphs 3(k)-(m) (inclusive) of
Part A of Appendix 1 of the Announcement.
3.3 Bidco undertakes that by 9.00 a.m. (Bermuda time) on the date of the Court Hearing, it
shall deliver a notice in writing to PureCircle either: (i) confirming the satisfaction or waiver
of all Conditions; or (ii) confirming its intention to invoke a Condition and, if (ii), it shall in
such notice identify the Condition or Conditions which it considers it is entitled to invoke
and provide reasonable details of the event which has occurred, or circumstance which
has arisen, which it considers entitle it to invoke that Condition or those Conditions.
3.4 The Parties shall use reasonable endeavours regarding the Regulatory Approvals as soon
as reasonably practicable and in any event to enable the Acquisition to complete before
the Long Stop Date and in particular the Parties shall make (or procure the making of) as
promptly as reasonably practicable, such submissions, notifications and/or filings to all
appropriate Regulatory Authorities, in consultation with the other Party, as necessary or
appropriate in connection with any Clearances (and to the extent such submissions,
notifications or filings have not already been taken prior to the date hereof).
3.5 PureCircle undertakes to work co-operatively and reasonably with Bidco and its Advisers,
and Bidco undertakes to work co-operatively and reasonably with PureCircle and its
Advisers, regarding the Regulatory Approvals and to assist Bidco and its advisers or
PureCircle and its Advisers (as the case may be) in communicating with any Regulatory
Authority for the purposes of obtaining all Clearances and to promptly provide such
information and assistance to Bidco or its advisers as Bidco or its Advisers, or PureCircle
or its Advisers as PureCircle or its Advisers (as the case may be), may reasonably require
for the purposes of obtaining any Clearance and making a submission, filing or notification
to any relevant Regulatory Authority (including for the purposes of responding to requests
for additional information) as soon as practicable. The parties shall consult together, acting
reasonably and in good faith and in a timely manner upon the strategy to obtain the
Clearances, with Bidco making all final determinations on such strategy provided that any
such determination shall be consistent with, and without prejudice to the parties’ obligations
under, the other provisions of this clause 3.
3.6 Bidco and PureCircle shall:
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(a) respond as promptly as reasonably practicable (and in any event, use reasonable
endeavours to respond in accordance with any relevant time limit) to any request
for information or documentation from any Regulatory Authority, including attending
any meetings or telephone calls with the relevant Regulatory Authority as may be
necessary;
(b) as promptly as reasonably practicable notify the other Party (or advisers nominated
by the other Party) of any material communications, or communications that are
reasonably likely to be material received, from any Regulatory Authority including
in respect of progress towards satisfaction of the Conditions and, unless expressly
not permitted by the Regulatory Authority concerned, provide the other Party or its
nominated advisers with copies thereof (and in the case of non-written
communications, summaries of material non-written communications) (in each
case unless any such communication has been independently or simultaneously
supplied to the other Party or the other Party's Advisers);
(c) give the other Party or advisers nominated by the other Party reasonable notice of
and the opportunity for that other Party or its external Advisers to attend all
meetings and participate in all material telephone calls with any Regulatory
Authority, and make oral submissions at such meetings or telephone calls, unless
expressly not permitted by the Regulatory Authority concerned;
(d) where reasonable, make representatives available for meetings and material
telephone calls requested by any Regulatory Authority in connection with the
obtaining of all requisite Clearances and the implementation of the Acquisition;
(e) provide the other Party or advisers nominated by the other Party with, or procure
the provision of, drafts of all filings, submissions, material written communications
intended to be sent to any Regulatory Authority in relation to the satisfaction of the
Conditions and, so far as practicable, give the other Party or advisers nominated
by the other Party (including its Advisers) reasonable time to comment thereon (and
to take any such comments reasonably into account) before they are submitted,
sent or made and (subject to clause 3.7 below) provide the other Party or advisers
nominated by the other Party (including its Advisers) with final copies of all such
filings, submissions and communications in the form finally submitted or sent
(including, in the case of non-written communications, summaries of material non-
written communications);
(f) have regard in good faith and take due consideration of comments made by the
other Party (and its Advisers) on the filings, notifications, submissions, responses
and communications provided pursuant to clause 3.6(e);
(g) keep the other Party and its Advisers reasonably informed as to the progress of
any notification submitted to a Regulatory Authority pursuant to this Agreement;
(h) keep the other Party and its Advisers nominated by the other Party promptly
informed of developments which are material or reasonably likely to be material to
the satisfaction of the Conditions; and
(i) not withdraw a filing, submission or notification made to any Regulatory Authority
pursuant to this Agreement without the prior consent of the other Party, not to be
unreasonably withheld, conditioned or delayed.
3.7 Nothing in this clause 3 shall require either Party to disclose any information:
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(a) which is commercially sensitive or confidential information or business secrets
which have not been previously disclosed to the other Party or nominated advisers
of the other Party;
(b) which the disclosing Party is prohibited from disclosing by Law or the terms of an
existing contract; or
(c) where such disclosure would result in the loss of privilege that subsists in relation
to such information (including legal or professional privilege),
and in the case of clause 3.7(a) this information is to be communicated between Bidco's
counsel and PureCircle's counsel on an "external counsel only" basis as appropriate, and
expressly marked as such, or if necessary, in a suitably aggregated or anonymised format
such that disclosure of such information will not result in any breach of Law, confidentiality
obligation or other relevant restrictions on the disclosure of such information or pursuant to
additional procedures agreed between Bidco and PureCircle.
4. IMPLEMENTATION OF THE SCHEME AND RIGHT TO SWITCH
4.1 Bidco intends to implement the Acquisition by way of the acquisition by Bidco of the entire
issued and to be issued share capital of PureCircle by way of the Scheme.
4.2 Bidco reserves the right in its absolute discretion, as set out in the Announcement, to elect
to implement the Acquisition by means of a Takeover Offer at any time as an alternative to
the Scheme (the "Right to Switch"). If the Right to Switch is exercised, the Code
Committee or Code Expert shall determine the timetable that shall apply to the Takeover
Offer.
4.3 If Bidco validly exercises its Right to Switch in accordance with clause 4.2 (but not
otherwise), then PureCircle shall promptly withdraw the Scheme and the provisions of this
Agreement shall be amended with immediate effect (without the need for the Parties to
enter into any amendment agreement) such that the same terms and conditions shall apply
and the Parties' obligations shall be deemed to apply, in each case in a manner which is
commensurate with the Acquisition being implemented by means of a Takeover Offer in
place of the Scheme.
5. SCHEME DOCUMENTATION
5.1 Bidco agrees:
(a) to promptly provide PureCircle with all such information about itself and the Bidco
Directors and the Bidco Group as may reasonably be requested and which is
required by PureCircle (having regard to the Law) for inclusion in the Scheme
Document and to provide all such other assistance and access as may reasonably
be required in connection with the preparation and publication of the Scheme
Document and any other document required by Law to be published in connection
with the Scheme, including access to, and ensuring the provision of reasonable
assistance by, Bidco and its relevant advisers, provided that, PureCircle submits,
or procures the submission of, drafts and revised drafts of the Scheme Document
to Bidco for review and considers its reasonable comments in relation thereto; and
(b) that, if any supplemental circular or document is required to be published by
PureCircle in connection with the Acquisition or, subject to the prior written consent
of Bidco, any variation or amendment to the Acquisition (a “Supplement”), Bidco
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shall, as soon as reasonably practicable, provide such co-operation and
information (including such information as is necessary for the Supplement to
comply with all applicable legal and regulatory provisions) as PureCircle may
reasonably request in order to finalise the relevant Supplement, provided that,
PureCircle submits, or procures the submission of, drafts and revised drafts of the
Supplement to Bidco for review and considers its reasonable comments in relation
thereto.
5.2 If Bidco validly exercises its Right to Switch in accordance with clause 4.2 and PureCircle
provides Bidco with such information and cooperation as may reasonably be requested by
Bidco in connection therewith (any dispute in that regard being determined by the Code
Expert in accordance with clause 7), Bidco shall prepare the Offer Document (in the case
of a Takeover Offer only) and any required supplemental document and shall submit, or
procure the submission of, drafts and revised drafts of the same to PureCircle for review,
and will consider reasonable comments in relation thereto.
5.3 The provisions of clause 3.7 shall apply mutatis mutandis to any information otherwise
required to be disclosed pursuant to this clause 5.
6. RESPONSIBILITY FOR INFORMATION
6.1 If the Acquisition is implemented by way of:
(a) the Scheme, Bidco will procure that the Bidco Directors accept responsibility for all
the information in the Scheme Document relating to Bidco, other members of the
Bidco Group and their respective directors; or
(b) a Takeover Offer following the exercise of the Right to Switch, Bidco will procure
that the Bidco Directors will accept responsibility for all information in the Offer
Document other than that information for which the PureCircle Directors accept
responsibility under clause 6.2(b).
6.2 If the Acquisition is implemented by way of:
(a) the Scheme, PureCircle will procure that the PureCircle Directors accept
responsibility for their views set out in the Scheme Document and all information in
the Scheme Document other than information for which responsibility is accepted
by Bidco Directors under clause 6.1(a); or
(b) a Takeover Offer following the exercise of the Right to Switch, PureCircle will
procure that the PureCircle Directors will accept responsibility for their views set
out in the Offer Document relating to PureCircle and the PureCircle Group and their
respective directors, other than that information for which the Bidco Directors
accept responsibility for under clause 6.1(b).
7. APPLICATION OF THE CODE AND APPOINTMENT OF CODE EXPERT
7.1 The Parties acknowledge and agree that the Code does not (as a matter of Law) apply to
PureCircle, the PureCircle Directors, Bidco or the Bidco Directors in connection with the
Acquisition.
7.2 Notwithstanding clause 7.1, the Parties agree that clause 7.3 shall set out the provisions
of the Code that shall apply to the Acquisition (in each case as may be modified herein)
and that they shall observe and comply with such provisions of the Code in relation to the
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conduct and execution of the Acquisition (and to the exercise of each Party’s rights and
performance of its obligations under this Agreement and the Scheme) as though PureCircle
were subject to the Code, provided that the Parties acknowledge that the Panel does not
have jurisdiction over them or in relation to the Acquisition.
7.3 Subject to clause 7.2, the Parties agree that:
(a) the Announcement shall constitute a firm intention to make an offer for PureCircle
as if Rule 2.7 of the Code applied;
(b) the Offer Document shall include a valuation for the Acquisition Shares as if Rule
24.11 of the Code applied;
(c) the Offer Document shall include a cash confirmation as if Rules 2.7(d) and 24.8 of
the Code applied;
(d) they expect that no profit forecast (to be determined as if Rule 28 of the Code
applied) will be given by PureCircle in the Announcement or during the Relevant
Period (or reported on for the purposes of Rule 28.1(a)) of the Code and PureCircle
hereby confirms that it shall not make any such profit forecast save to the extent
that the same has been first approved by the Code Committee or, in the absence
of agreement in accordance with the terms of this Agreement, by the Code Expert;
(e) appropriate proposals shall be made to participants with PureCircle Share Rights
(in accordance with clause 9 and Schedule 2 of this Agreement) as if Rule 15 of
the Code applied;
(f) PureCircle shall not be permitted to do any matter that would be akin to a frustrating
action as if Rule 21.1 of the Code applied, subject to certain exceptions as set out
in clause 8.1;
(g) the Offer Document shall include a statement as to Bidco's post-Acquisition
intentions as if Rule 24.2 of the Code applied; and
(h) that Rule 13 of the Code shall apply to the Scheme such that Bidco will only be
able to rely on a Condition (other than the Scheme Approval Condition and the
Regulatory Approvals) so as to cause the Acquisition to lapse if the circumstances
giving rise to the right to invoke the Condition are of material significance to Bidco
in the context of the Acquisition, save that, it is agreed that each of the Conditions
specified in paragraphs 3(k)-(m) (inclusive) of Part A of Appendix 1 of the
Announcement are of material significance to Bidco such that Bidco is entitled to
terminate the Acquisition (including following the satisfaction of the Scheme
Approval Condition) if any such Condition is not satisfied or waived by Bidco by the
Long Stop Date, or any such Condition is no longer true and correct, on the
Effective Date.
7.4 The Parties hereby establish the Code Committee, which shall be responsible for
determining the application and interpretation of the Code as it applies to them or in relation
to the Acquisition (and to the exercise of each Party’s rights and performance of its
obligations under this Agreement or the Scheme) by reason of clause 7.2 and 7.3 (subject
to any reference to the Code Expert pursuant to clauses 7.11 to 7.18 (inclusive). The Code
Committee shall be comprised of the Chief Executive Officer, the Chief Financial Officer
and the General Counsel of each of PureCircle and Ingredion (as the case may be) from
time to time (the “PureCircle Appointees” and the “Bidco Appointees”). Each of
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PureCircle and Bidco shall be entitled to appoint one individual from each of its Advisers
and one individual from each of its Financial Advisers to attend and speak (but not vote) at
meetings of the Code Committee.
7.5 A Bidco Appointee or a PureCircle Appointee shall be entitled to convene a meeting of the
Code Committee upon no less than 24 hours’ written notice (including, for these purposes,
by way of email) being provided by him or her to other members of the Code Committee,
setting out the time and place for the proposed meeting, dial-in details for those wishing to
participate by way of teleconference, the agenda for the meeting and any materials they
wish to circulate to the members of the Code Committee ahead of the meeting.
7.6 The quorum for the transaction of business at any meeting of the Code Committee
(including at an adjourned meeting) shall be two Bidco Appointees (or their alternates) and
two PureCircle Appointees (or their alternates) present (which, for the purpose of this
clause 7, includes by way of teleconference) at the time when the relevant business is
transacted (“Quorum”). If such Quorum is not present within one hour from the time
appointed for the meeting, or if during the meeting such a Quorum ceases to be present,
the meeting shall be adjourned to the same time and place on the following Business Day
(or to such other place, or for such shorter period of time, as may be agreed by the
PureCircle Appointees and the Bidco Appointees) and notice thereof shall be given to all
members of the Code Committee.
7.7 All matters to be decided by the Code Committee shall require the affirmative consent of a
majority of the total number of votes held by PureCircle Appointees and Bidco Appointees
present at a duly convened and quorate meeting.
7.8 If any PureCircle Appointee or Bidco Appointee is unable to attend a meeting of the Code
Committee, he or she may appoint an alternate to attend the relevant meeting on his or her
behalf by delivering 3 hours’ written notice (including, for these purposes, by way of email)
to other members of the Code Committee confirming that fact and the name and contact
details of the alternate that will attend the meeting on his or her behalf.
7.9 Each PureCircle Appointee and each Bidco Appointee shall be entitled to cast one vote at
any meeting of the Code Committee. If any of the:
(a) PureCircle Appointees are absent from a Code Committee meeting and a validly
appointed alternate or alternates is not in attendance, the attending PureCircle
Appointee(s) (or their alternates) shall be entitled to such number of separate votes
in addition to their own as shall result in all of the attending PureCircle Appointees;
or
(b) Bidco Appointees are absent from a Code Committee meeting and a validly
appointed alternate or alternates is not in attendance, the attending Bidco
Appointee(s) shall be entitled to such number of separate votes in addition to their
own as shall result in all of the attending Bidco Appointees,
together being entitled to cast three votes.
7.10 The Code Committee may act by unanimous written consent in lieu of a meeting and must
provide facilities for participation in any meeting by teleconference; provided that, in the
case of meetings held by teleconference, all actions and resolutions of the Code
Committee are documented and approved by one PureCircle Appointee and one Bidco
Appointee.
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7.11 In the event that the Code Committee is unable to resolve any question regarding the
application and interpretation of the Code (as applied pursuant to clause 7.2 and 7.3) or
any consequential matter within two Business Days of the first notice convening a meeting
of the Code Committee to consider it (including by reason of a failure to achieve a Quorum
at such meeting), either Bidco or PureCircle may refer the matter (each such instance, a
“Code Question”) to the Code Expert for determination. The Code Committee shall
determine the individual to serve as the Code Expert in the aforementioned meeting or, if
it is unable to agree on an individual to serve as the Code Expert, then Bidco may, by
written notice to PureCircle, nominate up to five candidates provided that (a) each nominee
must have served (including as a secondee) as a Director, Secretary and/or Case Officer
of the Panel within the previous 20 years; and (b) PureCircle may reject for any reason up
to two of the candidates by notice to Bidco within two Business Days of receipt of Bidco’s
notice. If Bidco does not nominate any candidates to act as the Code Expert then
PureCircle may request Bidco to do so and if it does not within two Business Days of such
request (or it does and PureCircle validly rejects all such nominees), then PureCircle may
nominate the candidate of its choice to serve as the Code Expert provided that (i) they
served (including as a secondee) as a Director, Secretary or Case Officer of the Panel
within the previous 20 years; and (ii) Bidco may reject for any reason up to two of the
candidates by notice to PureCircle within two Business Days of receipt of PureCircle’s
notice. The parties shall then seek to jointly appoint (as soon as practicable) one of the
non-rejected candidates (of the nominating party’s choice) on terms consistent with the
provisions of this clause 7 and otherwise, including in respect of costs, that the nominating
party (acting reasonably) considers fair. If, for any reason, none of the nominated, non-
rejected candidates is able or willing to serve as the Code Expert or a Code Expert
becomes unable or unwilling to serve in that capacity, then the nomination and appointment
process set out in this clause 7.11 may be repeated in order to nominate and appoint an
alternative individual.
7.12 If a Code Question is referred to the Code Expert, then on or before two Business Days
following such referral, each Party that wishes to shall present to the Code Expert and to
the other Party a proposal for the application or interpretation of the Code with respect the
relevant matter (a “Code Application Proposal”), together with any materials it wishes to
present to justify such Code Application Proposal. Each Party may present to the Code
Expert and to the other Party a written submission in reply within one Business Day of their
respective receipt of the other Party’s timely submission of its Code Application Proposal.
The Parties shall agree, and in the absence of agreement the Code Expert shall make any
further directions for the conduct of the reference, including at the request of a Party,
arrangements for a hearing at which the Parties may make oral submissions and respond
to questions from the Code Expert. Each Party shall adhere to the Code (in particular
Paragraph 9 of the Introduction to the Code) when dealing with the Code Expert, as if the
Code Expert was the Panel.
7.13 The Code Expert shall determine how the provisions of the Code set out in clause 7.2
would be interpreted and applied by the Panel with respect to the relevant matter had
PureCircle been subject to the Code. The Code Expert shall make his or her determination
as soon as reasonably practicable after receipt of all written (and, if applicable, oral)
submissions and the conclusion of any further investigations as the Code Expert shall
consider necessary. In any event, the Code Expert shall endeavour to issue a decision
within one Business Day from exchange of the written submissions (or conclusion of any
hearing) referred to in clause 7.12. The Code Expert shall notify the Code Committee orally
or in writing of his or her determination, which determination (in the absence of fraud or a
manifest error), shall be final and binding on the Parties and may include a direction in
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respect of any consequential matter (including, if the Code Expert so determines, an
extension to the timetable for the Acquisition or any deadline under this Agreement or under
the Code and the award of any remedy that the Panel would have been competent to award
had PureCircle been subject to the Code) (the "Code Ruling”). In the absence of fraud or
a manifest error, the Parties agree to observe and comply with all Code Rulings. If at any
time the Parties agree on the Code Question, then, notwithstanding this clause 7, the Code
Question shall be as so agreed and the Code Expert procedures in this clause 7 shall be
promptly discontinued.
7.14 The Code Expert shall act as an expert and not as an arbitrator.
7.15 The Code Expert shall be entitled to: (i) obtain any independent legal or other expert advice;
(ii) obtain secretarial assistance; and (iii) hold such hearings, order the production of such
documents and call for the attendance of such witnesses which, in each case, he or she
considers reasonably necessary.
7.16 The costs of the Code Expert (including the costs of any independent legal or other expert
advice as he or she may reasonably require, and any secretarial assistance as is
reasonably necessary) shall be shared as to 50 per cent. by PureCircle and as to 50 per
cent. by Bidco, unless the Code Expert determines, in his or her absolute discretion, that
any Party was acting unreasonably, in which case the costs shall be borne by the Party
that acted, in the Code Expert’s view, unreasonably. Each Party shall bear its own costs in
respect of all Code Application Proposals.
7.17 Each Party agrees that, except in the case of fraud or wilful default on the part of the Code
Expert, neither that Party nor any of its subsidiaries or subsidiary undertakings nor any of
its or their respective Representatives or shareholders (including any beneficial owner of
shares or any interest in shares) or creditors (including any beneficial owner of any debt
securities) shall have any claim of any nature whatsoever against the Code Expert arising
out of or in connection with his or her determination.
7.18 The Parties agree that any disagreement or dispute as to how the Code would be
interpreted and applied by the Panel with respect to the relevant matter had PureCircle
been subject to the Code, shall be determined by the Code Committee or the Code Expert
in accordance with this clause 7. The Code Expert shall be entitled to determine whether
he or she has jurisdiction, pursuant to the terms of this Agreement, to settle any
disagreement or dispute of the Parties as to the interpretation and application of the Code
to the Acquisition. To the extent that any Party (the “Defaulting Party”) does not comply
with or adhere to such Code Ruling, the other Party (the “Non-Defaulting Party") may
refer such non-compliance or non-adherence to the Code Expert who shall determine what
(if any) remedy, enforcement or disciplinary action the Panel would have awarded or taken
in respect of such non-compliance or non-adherence by the Defaulting Party as though
PureCircle were subject to the Code and shall, accordingly, deliver a Code Ruling that the
Defaulting Party is so disciplined or that it is subject to such enforcement action (a "Code
Expert Prescribed Remedy”). Neither Party shall be entitled to bring any claim or
commence any Action against the other Party in respect of any breach or alleged breach
of clause 7.2 and 7.3 or any other provision of this Agreement that requires any Party to
observe and comply with the Code unless: (i) such breach or alleged breach has been
referred to the Code Expert and a Code Expert Prescribed Remedy has been issued by
the Code Expert in respect of such breach or alleged breach, or (ii) such breach or alleged
breach has been referred to the Code Expert and the Code Expert has informed the Parties
that he or she is unable or unwilling to consider such referral, or (iii) the Code Expert
provides his or her written consent. If the Defaulting Party fails to observe and comply with
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the terms of any Code Expert Prescribed Remedy, the Non-Defaulting Party shall be
entitled to seek (and the Defaulting Party agrees to consent and not to object to) an order
of specific performance (which, for the purpose of this clause 7.18, includes an injunction)
requiring the Defaulting Party to so comply provided that such order of specific
performance may be sought only in respect of the Defaulting Party’s non-observance or
non-compliance with the Code Expert Prescribed Remedy. If and only if an order of specific
performance is not, for whatever reason, granted in favour of, or otherwise readily
enforceable in any jurisdiction where enforcement is likely to be sought by, the Non-
Defaulting Party (or if the Defaulting Party fails to comply with an order of specific
performance or challenges or objects to the enforcement of the order against it in any
jurisdiction), the Non-Defaulting Party shall then be entitled to bring any Action it deems fit
against the Defaulting Party provided that such Action may only be brought in respect of
the Defaulting Party’s non-observance or non-compliance with the Code Expert Prescribed
Remedy (as well as the underlying breach of this Agreement arising therefrom and any
breach by the Defaulting Party of its obligations hereunder and in relation to any order of
specific performance so granted). Notwithstanding anything contained in this clause 7.18
to the contrary, if the Code Expert fails, or is unable or unwilling, to act in relation to a
referral made to it pursuant to this clause 7.18, or in relation to any Code Question, then
the Party making such referral shall be entitled to commence such Action as it deems fit to
preserve and enforce its rights under this Agreement.
8. CONDUCT PENDING COMPLETION OF THE ACQUISITION
8.1 During the Relevant Period, PureCircle shall not, and shall procure that members of the
PureCircle Group shall not, take any action which would be prohibited by Rule 21.1 of the
Code if the Code applied to PureCircle on the basis set out in clause 7.2 and 7.3 without
such action being (i) approved in writing by Bidco in advance (including as set out in this
Agreement), (ii) with the consent of the Code Committee or the Code Expert (performing
the role that the Panel would have under Rule 21.1 of the Code), or (iii) approved by
PureCircle Shareholders in a general meeting in accordance with the requirements of Rule
21.1 of the Code. This clause 8.1 shall not apply to (a) any action reasonably required to
give effect to the Scheme or the Acquisition; or (b) the issuance of any shares under, and
in accordance with the terms and conditions of, any PureCircle Share Rights; or (c) the
grant or amendment of any awards under the PureCircle Share Plans after the Long Stop
Date.
8.2 During the Relevant Period, PureCircle shall, and shall procure that members of the
PureCircle Group shall, use its reasonable endeavours to provide Bidco with such
documentation and information that may be reasonably requested by Ingredion, Bidco and
Bidco's Representatives in connection with the proposed management and integration of
the PureCircle Wider Group with Ingredion and/or the Bidco Group after the Effective Time
(for the avoidance of doubt, it is understood that some such requests may be for
outstanding documentation and information that was previously requested as part of the
due diligence investigation), provided, in all circumstances, that the sharing of such
documentation and information takes place in accordance with applicable anti-trust laws.
8.3 During the Relevant Period, PureCircle shall notify Bidco immediately if it becomes aware
of a fact, circumstance or event which it expects to cause, or to be reasonably likely to
cause, the Conditions in paragraphs 2(a)-(e) (inclusive), 3(a)-(d) (inclusive) and/or 3(k)-(m)
(inclusive) of Part A of Appendix 1 of the Announcement to not be satisfied. The Parties
agree that for the purposes of the Condition set out in paragraph 3(l) of Part A of Appendix
2 of the Announcement, an amount of more than USD$12,500,000 (individually and/or in
aggregate) is material.
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8.4 If Ingredion and/or Bidco (as the case may be) is required by any applicable law or by any
competent authority (including the Securities Exchange Commission (the "SEC")) to
disclose in any statement or filing (including in any SEC filing) any financial accounts of
PureCircle (including consolidated accounts of the PureCircle Group), then, if such
financial accounts have previously (or contemporaneously) been made available to the
public by or behalf of PureCircle, PureCircle hereby expressly authorises Ingredion and/or
Bidco to include such financial accounts in the applicable statement or filing, including
where such statement or filing is available to the public.
9. PURECIRCLE SHARE RIGHTS
9.1 The Parties agree that they shall work in co-operation, in accordance with the terms of
Schedule 2 to this Agreement, to inform participants with PureCircle Share Rights of their
rights and to make appropriate proposals as if Rule 15 of the Code applied.
10. TERMINATION
10.1 Subject to clause 10.2 and except where expressly stated to the contrary, the provisions
of this Agreement shall terminate with immediate effect and all rights and obligations of the
Parties under this Agreement shall cease forthwith if:
(a) the Announcement is not released on or before 4.30 pm on 9 April 2020 (unless
prior to that the time the Parties have agreed another time and date in accordance
with clause 2);
(b) if the Scheme Document (or Offer Document, as the case may be) and (if different)
the document convening the General Meeting does not include the PureCircle
Board Recommendation, or PureCircle makes an announcement prior to the
publication of such document(s) that:
(i) the PureCircle Directors no longer intend to make such recommendation;
(ii) it will not convene the Court Hearing or the General Meeting; or
(iii) it intends not to post the Scheme Document or (if different) the document
convening the General Meeting;
(c) the PureCircle Directors withdraw, adversely modify or adversely qualify the
PureCircle Board Recommendation;
(d) the Scheme (or the Takeover Offer as the case may be) is withdrawn or lapses
(other than where such lapse or withdrawal is a result of the exercise of the Right
to Switch or is otherwise to be followed soon after by firm intention to offer
announcement (as if Rule 2.7 of the Code applied to PureCircle) in connection with
Bidco or a person acting in concert with Bidco, to implement the Acquisition by a
different takeover offer or scheme of arrangement on substantially the same or
improved terms in favour of the PureCircle Shareholders);
(e) the Scheme has not become effective by the Long Stop Date (other than as a result
of the exercise of the Right to Switch or where the Long Stop Date is to be followed
soon after by firm intention to offer announcement (as if Rule 2.7 of the Code
applied to PureCircle) made by Bidco or a person acting in concert with Bidco to
implement the Acquisition by a different takeover offer or scheme of arrangement
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on substantially the same or improved terms in favour of the PureCircle
Shareholders);
(f) upon service of written notice by or on behalf of either Party to the other Party (or
the nominated advisers of the other Party), where any Condition becomes
incapable of satisfaction or is invoked so as to cause the Acquisition not to proceed;
or
(g) agreed in writing between the Parties at any time prior to the Effective Date.
10.2 Termination of this Acquisition shall be without prejudice to the rights of the Parties which
have arisen prior to termination, including any claim in respect of a breach of this
Agreement.
10.3 Clauses 1 and 14 shall survive termination of this Agreement.
11. REPRESENTATIONS AND WARRANTIES
11.1 Bidco warrants to PureCircle and PureCircle warrants to Bidco on the date of this
Agreement that:
(a) it has the requisite power and authority to enter into and perform its obligations
under this Agreement;
(b) this Agreement constitutes its legal, valid and binding obligations in accordance
with its terms; and
(c) the execution and delivery of, and performance of its obligations under, this
Agreement will not:
(i) result in a breach of any provision of its constitutional documents;
(ii) result in a breach of, or constitute a default under, any instrument to which
it is a Party or by which it is bound; or
(iii) result in a breach of any order, judgment or decree of any court or
governmental agency to which it is a Party or by which it is bound.
11.2 No Party shall have any claim against the other for breach of warranty after the Effective
Date (without prejudice to any liability for fraudulent misrepresentation or fraudulent
misstatement).
12. D&O INSURANCE
12.1 PureCircle undertakes that it shall, prior to 30 June 2020, renew or replace (in either case,
with substantially the same coverage in respect of amount and breadth) its current existing
directors' and officers' liability insurance policy(ies) for both current and former directors
and officers of PureCircle and any other PureCircle Group member.
13. MISCELLANEOUS PROVISIONS
13.1 Assignment
No Party is permitted to assign charge or otherwise dispose of any of its rights or benefits
under this Agreement or grant or create any third party interest in any of its rights under
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this Agreement (including holding an interest on trust for another) without the prior written
consent of the other Party.
13.2 Severance/unenforceable provisions
If any provision or part of this Agreement is void or unenforceable due to any applicable
law, it shall be deemed to be deleted and the remaining provisions of this Agreement shall
continue in full force and effect.
13.3 Variation
No variation to this Agreement shall be effective unless made in writing (which for this
purpose, does not include email) and executed by each of the Parties. The expression
"variation" includes any variation, amendment, supplement, deletion, replacement or
waiver, however effected.
13.4 No Partnership
Nothing in this Agreement or in any document referred to in it or any action taken by the
Parties under it or any document referred to in it shall constitute any partnership,
association or joint venture between the Parties, or makes a Party the agent of the other
Party for any purpose (and a Party has no authority or power to bind, to contract in the
name of, or to create a liability for the other Party in any way or for any purpose)
13.5 Entire Agreement
(a) This Agreement, the Announcement and the Confidentiality Agreement together
represent the entire understanding, and constitutes the whole agreement, in
relation to their subject matter at the date of this Agreement and supersedes any
previous agreement between the Parties with respect thereto and, without
prejudice to the generality of the foregoing, excludes any warranty, condition or
other undertaking implied at law or by custom.
(b) Each Party confirms that, except as provided in this Agreement, no Party has relied
on any undertaking, representation, warranty or other assurance which is not
contained in this Agreement and, without prejudice to any liability for fraudulent
misrepresentation or fraudulent misstatement, no Party shall be under any liability
or shall have any remedy in respect of any misrepresentation or untrue statement
unless and to the extent that a claim lies under this Agreement.
13.6 Counterparts
(a) This Agreement may be executed in any number of counterparts and by the
different Parties on separate counterparts, each of which when executed and
delivered shall constitute a duplicate original, but all the counterparts shall together
constitute the one agreement.
(b) Transmission of the executed signature page of a counterpart of this Agreement by
(a) fax or (b) email (in PDF, JPEG or other agreed format) shall take effect as
delivery of an executed counterpart of this Agreement. If either method of delivery
is adopted, without prejudice to the validity of the Agreement thus made, each Party
shall provide the others with the original of such counterpart as soon as reasonably
possible thereafter.
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13.7 Notices
A notice, approval, consent or other communication in connection with this Agreement
must be in writing and must be left at the address of the addressee, or sent by pre-paid
registered post to the address of the addressee or sent by e-mail to the e-mail address of
the addressee which is specified in this clause 13.7 or to such other address or e-mail
address as may be notified by such addressee by giving notice in accordance with this
clause 13.7. The address and e-mail address of each Party is:
(a) in the case of Bidco:
c/- Ingredion Incorporated
Address: Westbrook Corporate Center, Westchester, IL 60154 USA
E-mail address: [email protected]
For the attention of: James Gray
With a copy (which shall not constitute notice) to:
The General Counsel of Ingredion:
Address: 5 Westbrook Corporate Center, Westchester, IL 60154
E-mail address: [email protected]
For the attention of: Janet Bawcom
Address: Hogan Lovells International LLP, Atlantic House, 50 Holborn Viaduct,
London EC1A 2FG
E-mail address: [email protected]
For the attention of: Maegen Morrison
(b) in the case of PureCircle:
Address: 200 West Jackson Blvd., 8th Floor, Chicago, IL 60606, USA
E-mail address: [email protected]
For the attention of: Tiah Oon Su
With a copy (which shall not constitute notice) to:
Address: Baker & McKenzie LLP, 100 New Bridge Street, London, EC4V 6JA
E-mail address: Nicholas.O'[email protected] and
For the attention of: Nick O'Donnell and Kiki Tienstra
(c) A notice given under clause 13.7 shall conclusively be deemed to have been
received one Business Day after posting, if sent by registered mail, at the time of
delivery if delivered personally and when despatched (subject to confirmation of
delivery by a delivery receipt) if sent by e-mail.
13.8 Waivers, rights and remedies
(a) The rights and remedies provided for in this Agreement are cumulative and not
exclusive of any other rights or remedies, whether provided by Law or otherwise.
(b) No failure to exercise, or delay in exercising, any right under this Agreement or
provided by Law shall affect that right or operate as a waiver of the right. The single
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or partial exercise of any right under this Agreement or provided by Law shall not
preclude any further exercise of it.
(c) Without prejudice to any other rights or remedies that the other Party may have,
each Party acknowledges and agrees that damages may not be an adequate
remedy for any breach by it of this Agreement and that accordingly the other Party
may be entitled, without proof of special damages, to the remedies of injunction,
specific performance or other equitable relief for any threatened or actual breach
of this Agreement by any Party and no proof of special damages shall be necessary
for the enforcement by any Party of the rights under this Agreement to the
requesting Parties.
(d) In no event shall either Party be liable to the other Party for any indirect or
consequential loss or damages including, without limitation, loss of profits.
13.9 Further assurances
Each Party shall (and shall procure that members of its group shall and shall use
reasonable endeavours to procure that any necessary third party shall) execute such
documents and do such acts and things as the requesting Party may reasonably require
for the purpose of giving the full benefit of this Agreement to the requesting Party.
13.10 Costs and expenses
Unless a clause of this Agreement specifically provides otherwise, each Party shall bear
all costs incurred by it in connection with the preparation, negotiation and entry into this
Agreement and the documents to be entered into pursuant to it.
13.11 Rights of Third Parties
Save in respect of clause 8.4 which can be enforced by Ingredion, no term of this
Agreement is enforceable under the Contracts (Rights of Third Parties) Act 1999 by a
person who is not a Party to this Agreement.
14. GOVERNING LAW AND JURISDICTION
14.1 Without prejudice to the Code Expert procedure prescribed in clauses 7.11 to 7.18,
(inclusive), this Agreement and any dispute or claim arising out of or in connection with it
or its subject matter, existence, negotiation, validity, termination or enforceability (including
non-contractual disputes or claims) shall be governed by and construed in accordance with
English law.
14.2 Each Party irrevocably agrees that the Courts of England shall have exclusive jurisdiction
in relation to any dispute or claim arising out of or in connection with this Agreement or its
subject matter, existence, negotiation, validity, termination or enforceability (including non-
contractual disputes or claims).
14.3 Each Party irrevocably waives any right that it may have to object to an action being brought
in those Courts, to claim that the action has been brought in an inconvenient forum, or to
claim that those Courts do not have jurisdiction.
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SCHEDULE 2
The PureCircle Share Rights
In this Schedule:
"CEO Agreement" means the employment agreement between PureCircle and the current
Chief Executive Officer of PureCircle under which the PureCircle Remuneration Committee
has the discretion to settle 50% of the CEO Salary in PureCircle Shares at the PureCircle
Share Price, in accordance with the terms of the CEO Agreement (as amended).
"CEO Salary" means the salary of USD 600,000 to be paid to the Chief Executive Officer
of PureCircle in a combination of shares and cash in accordance with the CEO Agreement.
"Currency Exchange Rate" means the Bank of England spot rate for conversion of
Sterling into US Dollars on the day that is five trading days before the allotment date of any
PureCircle Shares allotted pursuant to the CEO Agreement.
"Loyalty Awards" means the awards over cash and PureCircle Shares granted pursuant
to the Loyalty Plan.
"Loyalty Plan" means the retention awards granted to certain PureCircle Employees in
January and February 2020 (as amended from time to time).
"PureCircle Employee" means any employee of the PureCircle Group, including
PureCircle Directors.
"PureCircle Share Price" means a price of £1.35/share for the first quarterly share
allotment pursuant to the CEO Agreement and thereafter the price in Sterling based on the
VWAP five trading days before the allotment date.
"PureCircle Share Rights" means awards under the PureCircle Share Plans and, if the
PureCircle Remuneration Committee so determines, Loyalty Awards settled in PureCircle
Shares and any part of the CEO Salary settled in PureCircle Shares.
"Scheme Record Time" means the scheme record time to be specified in the Scheme
Document.
1. PROPOSALS TO PARTICIPANTS IN THE PURECIRCLE SHARE PLANS
1.1 PureCircle confirms that conditional share awards over 824,794 PureCircle Shares were
outstanding under the PureCircle Share Plans as at 1 April 2020. In addition, the PureCircle
Remuneration Committee may decide to issue PureCircle Shares pursuant to the Loyalty
Plan and the CEO Agreement.
1.2 PureCircle confirms that, save as specified in paragraph 1.1 above, there are no
outstanding options, awards, or any other rights existing pursuant to which any PureCircle
employee may be entitled to receive PureCircle Shares by way of remuneration for their
employment.
1.3 PureCircle confirms that is has not made further awards under the PureCircle Share Plans,
the Loyalty Plan or otherwise since 20 March 2020 and that it will not make further awards
under the PureCircle Share Plans, the Loyalty Plan or otherwise on or before the Effective
Date, provided that the Effective Date occurs on or before the Long Stop Date. If the
Effective Date has not occurred by the Long Stop Date, PureCircle may grant or amend
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any awards under the PureCircle Share Plans after the Long Stop Date and in relation to
that PureCircle agrees to provide full details to Bidco of any such new awards which are
granted or details of the amendments.
1.4 Bidco acknowledges and agrees that, prior to the Effective Date the PureCircle
Remuneration Committee may operate the PureCircle Share Plans and exercise its
discretion with respect to the Loyalty Plan and the CEO Agreement as they consider
appropriate in accordance with the existing rules of the applicable PureCircle Share Plan
and the Loyalty Plan, and the terms of the CEO Agreement including:
(a) determining the extent to which any applicable performance conditions relating to
FY2020 have been met;
(b) satisfying the vesting of awards under the PureCircle Share Plans by issuing new
PureCircle Shares, transferring (or directing the transfer of) market purchase
PureCircle Shares or treasury PureCircle Shares, or paying cash or equivalent
value;
(c) determining the treatment of awards for participants in the PureCircle Share Plans
who cease employment prior to the Effective Date; and
(d) determining the extent to which the Loyalty Awards and 50% of the CEO Salary will
be paid in PureCircle Shares (and, to the extent that it is determined that PureCircle
Shares shall be issued, issuing those PureCircle Shares),
and to the extent that any PureCircle Shares are issued, allotted or otherwise acquired by
any participant in the PureCircle Share Plans or the Loyalty Plan, or the PureCircle CEO,
PureCircle shall procure that such PureCircle Shares are recorded in the PureCircle
register of members prior to the Scheme Record Time.
1.5 PureCircle and Bidco acknowledge and agree that the Scheme Record Time shall take
place after the day of the Court Hearing to allow sufficient time for the PureCircle
Remuneration Committee to issue any and all PureCircle Shares required to be issued in
order to satisfy PureCircle Share Rights.
1.6 Awards granted under the PureCircle Share Plans shall vest in accordance with the rules
of the PureCircle Share Plans. PureCircle confirms that any outstanding awards under the
PureCircle Share Plans shall vest on or before the date of the Court Hearing. Loyalty
Awards shall be payable in accordance with the Loyalty Plan. The CEO Salary shall be
payable in accordance with the CEO Agreement.
1.7 PureCircle Shares issued on or before the Scheme Record Time in relation to the
PureCircle Share Plans, Loyalty Plan and the CEO Agreement will participate in the
Scheme. PureCircle Shares issued after the Scheme Record Time are to be acquired by
Bidco pursuant to the Bye-Laws as amended by the Resolutions.
1.8 PureCircle confirms to Bidco that, to the extent the PureCircle Remuneration Committee
determines to settle part of the CEO Salary in PureCircle Shares, it will calculate the number
of PureCircle Shares to be issued to the CEO pursuant to the CEO Agreement by reference
to the relevant PureCircle Share Price as converted into US Dollars using the Currency
Exchange Rate.
1.9 PureCircle confirms to Bidco that it has provided to Bidco details of its proposed approach
as follows:
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(a) in relation to the treatment of awards granted under the PureCircle Share Plans
and the Loyalty Awards, all awards will vest and all PureCircle Shares issued
pursuant to such awards will be Scheme Shares resulting in the issue of up to a
maximum of 1,411,050 PureCircle Shares; and
(b) in relation to the CEO Salary, PureCircle's proposal is to issue PureCircle Shares
rather than settle in cash to the extent that it has the discretion to do so resulting in
the issue of a maximum number of PureCircle Shares as may be determined in
accordance with the CEO Agreement (as amended).
1.10 PureCircle and Bidco agree that prior to making any amendment to the existing PureCircle
Share Plans or exercising any discretion in relation to such PureCircle Share Rights
(excluding discretions exercised in the ordinary course in relation to individuals (other than
directors) leaving employment and such actions as envisaged by this Agreement),
PureCircle shall notify Bidco prior to such amendment or exercise of discretion being
considered by PureCircle and PureCircle agrees (i) to consult with Bidco in good faith in
relation to the exercise of such amendments or discretions and (ii) that Bidco shall be
entitled to make representations to PureCircle, including to the PureCircle Remuneration
Committee, of which PureCircle and the PureCircle Remuneration Committee will take due
account, in each case for at least 7 days prior to making any such amendment or exercising
any such discretion. Bidco acknowledges that the PureCircle Remuneration Committee
should not be obliged to act in accordance with Bidco's representations.
1.11 PureCircle and Bidco shall use their reasonable endeavours to ensure that where permitted
by the rules of the relevant PureCircle Share Plans, Loyalty Plan and CEO Agreement,
holders of PureCircle Share Rights shall be permitted to receive PureCircle Shares in
satisfaction of such PureCircle Share Rights at such time as would enable PureCircle (or
the relevant employing company) to receive a UK corporation tax deduction under Part 12
Corporation Tax Act 2009 in relation to the vesting of awards/receipt of PureCircle Shares
under the PureCircle Share Plan, Loyalty Plan or CEO Agreement.
1.12 PureCircle and Bidco agree that the General Meeting Resolutions shall propose an
amendment to the Bye-Laws of PureCircle by the adoption and inclusion of a new article
under which any PureCircle Shares issued on or before the Scheme Record Time shall be
Scheme Shares and therefore shall be acquired by Bidco pursuant to the Scheme, and
any PureCircle Shares issued after the Scheme Record Time shall be immediately
transferred to Bidco (or as it may direct) in exchange for the same cash price as is due in
respect of Scheme Shares under the Scheme.
2. COMMUNICATION TO PARTICIPANTS WITH PURECIRCLE SHARE RIGHTS
Bidco and PureCircle shall co-operate with each other to prepare, in a form to be agreed
between Bidco and PureCircle, communications (or, if applicable, multiple series of
communications) to each of the holders of outstanding PureCircle Share Rights to enable
Bidco to comply with its obligations under the Bermuda Companies Act in respect of the
Acquisition and to send, or arrange for the sending of such communications (or series of
communications) at the appropriate time(s) (such time(s) to be agreed between the
Parties). Bidco and PureCircle further agree that a summary of these proposals will be set
out in the Scheme Document.