Agreements to Implement. 4.1 AerCap and the Purchaser agree to use reasonable best efforts to take the steps necessary, proper or advisable (including in connection with any requirement of any anti-trust, competition or anti-monopoly Governmental Authority, agreeing to divest Company Group assets or any business or assets of the Purchaser Group) to obtain or cause to be obtained as promptly as practicable after the Signing Date (which shall not be later than any date required by applicable Law) all Governmental Approvals that are necessary to complete and make effective the transactions contemplated by the Transaction Agreements, including the regulatory and anti-trust approvals listed in Schedule 5 and Schedule 6. 4.2 The Seller and the Purchaser and each of their respective Affiliates shall, and the Seller shall cause the Company to, contest or otherwise resist any Action, including any Action by a private party, challenging any of the transactions contemplated by the Transaction Agreements. 4.3 No party shall take any action that it is aware or should reasonably be aware would have the effect of delaying, impairing or impeding the receipt of the Governmental Approvals that are necessary, proper or advisable under the Transaction Agreements and applicable to complete and make effective the transactions contemplated by the Transaction Agreements. 4.4 Subject to the restrictions set forth in clause 8.1, the Parent and the Seller agree to use reasonable best efforts to take the steps necessary, proper or advisable to obtain or cause to be obtained as promptly as practicable after the Signing Date all Governmental Approvals that are necessary to complete and make effective the transactions contemplated by the Transaction Agreements, including the regulatory and antitrust approvals listed in Schedule 5 and Schedule 6. 4.5 AerCap and the Purchaser, on the one hand, and the Parent and the Seller, on the other hand, shall promptly make or cause to be made as soon as practicable after the Signing Date with all due dispatch all filings and notifications with all Governmental Authorities that are necessary to complete and make effective the transactions contemplated by the Transaction Agreements. Subject to the confidentiality provisions of the Confidentiality Agreement and/or the confidentiality provisions set forth in clause 17 herein and except where prohibited by applicable Law, each party shall promptly supply the other parties with any information which may be required in order to effectuate any filings (including applications) pursuant to (and to otherwise comply with its obligations set forth in) clause 4.1 hereof. Except where prohibited by applicable Laws or any Governmental Authority, and subject to the confidentiality provisions of the Confidentiality Agreement and/or the confidentiality provisions set forth in clause 17 herein, each of the parties shall, and shall use reasonable best efforts to procure that their respective Affiliates and shall use reasonable best efforts to procure that their respective Representatives: (a) promptly inform the other parties of any communication to or from any Governmental Authority, in each case regarding the Transaction or in connection with an investigation regarding the Transaction; (b) consult with the other parties prior to making any filing, taking a position with respect to any filing, or communicating with any Governmental Authority regarding the Transaction or in connection with an investigation regarding the Transaction; (c) permit the other party to review and discuss in advance, and consider in good faith the views of the other parties in connection with, any analyses, appearances, presentations, memoranda, briefs, white papers, arguments, opinions and proposals before making or submitting any of the foregoing to any Governmental Authority by or on behalf of any party in connection with any legal proceeding related to this Agreement, the Transaction or in connection with an investigation regarding the Transaction (including any such legal proceeding relating to any anti-trust Law); (d) coordinate and cooperate fully with the other party in preparing and exchanging such information and providing such assistance as the other party might reasonably request; (e) to the extent permitted by any Governmental Authority, permit the other parties or its counsel to attend and participate at each meeting or conference regarding the Transaction or in connection with an investigation regarding the Transaction; and (f) promptly provide the other party (and its counsel) with copies of all correspondence, filings, notices, analyses, presentations, memoranda, briefs, white papers, opinions, proposals and other submissions (and a summary of any oral presentations) made or submitted by such party or any of its Affiliates or Representatives with or to any Governmental Authority related to this Agreement or the Transaction or in connection with an investigation regarding the Transaction; provided that the foregoing shall not require any party or any of their respective Affiliates or Representatives to disclose: (x) any information that in the reasonable judgment of such party would result in the disclosure of any trade secrets of third parties or violate any of its obligations with respect to confidentiality; or (y) any privileged information or confidential competitive information of any party. Each party may, as each deems advisable and necessary, reasonably designate any competitively sensitive or any confidential business material provided to the other under this clause 4.5 as “outside counsel only.” Such materials and the information contained therein shall be given only to the outside legal counsel of the recipient and shall not be disclosed by such outside counsel to employees, officers or directors of the recipient unless express permission is obtained in advance from the source of the materials or its legal counsel. 4.6 Each party agrees to supply promptly any additional information and documentary material that may be requested by any Governmental Authority in connection with the aforementioned or any other applicable Laws. 4.7 Subject to the terms and conditions set out in this Agreement, and without limiting the generality of the other undertakings contained in this clause 4, each of the Parent, the Seller, AerCap and the Purchaser agrees to promptly provide to any relevant Governmental Authority all information, documents or testimony reasonably requested by such Governmental Authority or that are reasonably necessary, proper or advisable to permit completion of the transactions contemplated by this Agreement or the other Transaction Agreements. 4.8 The Seller and the Parent on the one hand and AerCap and the Purchaser on the other undertake to disclose in writing to the other anything of which they become aware which, will or will be reasonably likely to, prevent any of the Conditions set out in clause 3.1 from being satisfied on or prior to the Long-Stop Date, as applicable, as soon as reasonably practicable after it comes to the notice of any of them. 4.9 The Seller and the Parent shall use their reasonable best efforts to provide, and to procure that the Company Group provides, promptly, all co-operation, information, documentation and assistance which is necessary or reasonably requested by the Purchaser in connection with: (a) fulfillment of the Conditions set out in clauses 3.1(a), (c), (d), (l), (m), (o) and (p); (b) making submissions, applications, notifications or filings to, providing information to, engaging in discussions, negotiations, or any other communication with, or obtaining any permission, approval, consent, waiver or other determination (whether binding or not) from (in each case) any Governmental Authority, or evaluating or assessing any matter in connection with any Condition, or otherwise in connection with the Transaction; which co-operation, information, documentation and assistance shall include: (c) the provision of information about the Parent, the Seller, any of their respective Affiliates, members of the Company Group and any of their directors or managers; (d) making submissions, applications, notifications or filings (whether or not joint) to, providing information to, or engaging in discussions, negotiations, or any other communication with, any Governmental Authority; and (e) providing access to, and ensuring that assistance is provided by, its professional advisers, including all assistance reasonably required or necessary. The Parent and the Seller further agree that all information and documentation provided by them pursuant to this clause 4.9 shall be prepared in good faith and shall not be misleading in any material respect. 4.10 As promptly as practicable after the Signing Date, the Seller and the Purchaser shall make, or cause to be made, a joint voluntary notice to the Committee on Foreign Investment in the United States (“CFIUS”) pursuant to the U.S. Defense Production Act of 1950, 50 U.S.C. App. 2061, as amended by the Foreign Investment and National Security Act of 2007, 50 U.S.C. App. 2170, and the rules and regulations promulgated thereunder, as the same may be amended from time to time (“FINSA”), with respect to the transactions contemplated by this Agreement. Each of the Seller and the Purchaser shall provide, or cause to be provided, to CFIUS any additional or supplemental information, documents, submissions or materials requested by CFIUS or its member agencies that are required or related to such CFIUS notice and any subsequent investigation and, in cooperation with each other, shall use their reasonable best efforts to finally and successfully complete, as promptly as practicable, the CFIUS review process and make such undertakings as may be required or appropriate in connection therewith, including adoption of such measures as may be required or requested by CFIUS. 4.11 AerCap and the Purchaser shall use reasonable best efforts to provide, promptly, all co-operation, information, documentation and assistance which is necessary or reasonably requested by the Parent in connection with: (a) fulfillment of the Conditions set out in clauses 3.1(b), (c), (n) and (o); (b) making submissions, applications, notifications or filings to, providing information to, engaging in discussions, negotiations, or any other communication with, or obtaining any permission, approval, consent, waiver or other determination (whether binding or not) from (in each case) any Governmental Authority, or evaluating or assessing any matter in connection with the Conditions referred to in clauses 3.1(a), (b) and (c); which co-operation, information, documentation and assistance shall include: (c) the provision of information about AerCap, the Purchaser, any of their respective Affiliates and any of their directors or managers; (d) making submissions, applications, notifications or filings (whether or not joint) to, providing information to, or engaging in discussions, negotiations or any other communication with, any Governmental Authority; and (e) providing access to, and ensuring that assistance is provided by, its professional advisers, including all assistance reasonably required or necessary. AerCap and the Purchaser further agree that all information and documentation provided by them pursuant to this clause 4.11 shall be prepared in good faith and shall not be misleading in any material respect. 4.12 Neither AerCap nor the Purchaser shall be in breach of any provision of this clause 4 in the event that the circumstances that would otherwise constitute a breach arise, directly or indirectly, as a result of a failure by the Seller and/or the Parent to comply with its obligations under clauses 4.3, 4.4, 4.5, 4.6, 4.7, 4.8, 4.9 or 4.10 or otherwise as a consequence of information on the Company Group or the Parent or its Affiliates that is required not being made available to AerCap, the Purchaser and/or any Governmental Authority. 4.13 Neither the Seller nor the Parent shall be in breach of any provision of this clause 4 in the event that the circumstances that would otherwise constitute a breach arise, directly or indirectly, as a result of a failure by AerCap and/or the Purchaser to comply with its obligations under clauses 4.1, 4.3¸ 4.5, 4.6, 4.7, 4.8, 4.10 or 4.11 or otherwise as a consequence of information on AerCap or the Purchaser or their respective Affiliates that is required not being made available to the Parent, the Seller and/or any Governmental Authority.
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Samples: Share Purchase Agreement (AerCap Holdings N.V.), Share Purchase Agreement (American International Group Inc)
Agreements to Implement. 4.1 AerCap and the Purchaser AerCap Entities agree to use reasonable best efforts to take the steps necessary, proper or advisable (including commercial negotiations or concessions or, in connection with any requirement of any regulatory or anti-trust, competition or anti-monopoly Governmental Authority, committing to take any action, including agreeing to divest Company Group assets or any business or assets of the Purchaser AerCap Group) to obtain or cause to be obtained as promptly as practicable after the Signing Date (which shall not be later than any date required by applicable Law) all Governmental Approvals that are necessary to complete and make effective the transactions contemplated by the Transaction AgreementsDocuments, including the regulatory and anti-trust approvals listed in Schedule 5 and Schedule 65. Notwithstanding anything to the contrary herein, neither party will be required to agree to divest, sell, dispose of, hold separate or otherwise take or commit to take any action that limits such party’s freedom of action that (x) is not conditioned on the Completion, (y) when combined with other actions taken pursuant to this clause 4.1, would reasonably be expected to have an adverse impact that is material to the Business, taken as a whole, or if such action is imposed on the AerCap Business, an adverse impact that is material to the AerCap Business, taken as a whole, or (z) is in respect of assets or businesses of the Parent Group other than the Business (any such action, an “Excluded Action”).
4.2 The Seller Parent and the Purchaser AerCap and each of their respective Affiliates shall, and the Seller Existing Shareholders shall cause the Company Companies to, contest or otherwise resist any Action, including any Action by a private party, challenging any of the transactions contemplated by the Transaction AgreementsDocuments.
4.3 No party shall take any action that it is aware or should reasonably be aware would have the effect of delaying, impairing or impeding the receipt of the Governmental Approvals that are necessary, proper or advisable under the Transaction Agreements Documents and applicable to complete and make effective the transactions contemplated by the Transaction AgreementsDocuments.
4.4 Subject to the restrictions set forth in clause 8.1, the Parent and the Seller Existing Shareholders agree to use reasonable best efforts to take the steps necessary, proper or advisable to obtain or cause to be obtained as promptly as practicable after the Signing Date all Governmental Approvals that are necessary to complete and make effective the transactions contemplated by the Transaction AgreementsDocuments, including the regulatory and antitrust anti-trust approvals listed in Schedule 5 and Schedule 65.
4.5 AerCap and the PurchaserAerCap Entities, on the one hand, and the Parent and the SellerExisting Shareholders, on the other hand, shall promptly make or cause to be made as soon as practicable after the Signing Date with all due dispatch all filings and notifications with all Governmental Authorities that are necessary to complete and make effective the transactions contemplated by the Transaction AgreementsDocuments. Subject to the confidentiality provisions of the Confidentiality Agreement and/or the confidentiality provisions set forth in clause 17 herein and except where prohibited by applicable Law, each party shall promptly supply the other parties with any information which may be required in order to effectuate any filings (including applications) pursuant to (and to otherwise comply with its obligations set forth in) clause 4.1 hereof. Except where prohibited by applicable Laws or any Governmental Authority, and subject to the confidentiality provisions of the Confidentiality Agreement and/or the confidentiality provisions set forth in clause 17 herein, each of the parties shall, and shall use reasonable best efforts to procure that their respective Affiliates and shall use reasonable best efforts to procure that their respective Representatives: (a) promptly inform the other parties of any communication to or from any Governmental Authority, in each case regarding the Transaction or in connection with an investigation regarding the Transaction; (b) consult with the other parties prior to making any filing, taking a position with respect to any filing, or communicating with any Governmental Authority regarding the Transaction or in connection with an investigation regarding the Transaction; (c) permit the other party to review and discuss in advance, and consider in good faith the views of the other parties in connection with, any analyses, appearances, presentations, memoranda, briefs, white papers, arguments, opinions and proposals before making or submitting any of the foregoing to any Governmental Authority by or on behalf of any party in connection with any legal proceeding related to this Agreement, the Transaction or in connection with an investigation regarding the Transaction (including any such legal proceeding relating to any anti-trust Law); (d) coordinate and cooperate fully with the other party in preparing and exchanging such information and providing such assistance as the other party might reasonably request; (e) to the extent permitted by any Governmental Authority, permit the other parties or its counsel to attend and participate at each meeting or conference regarding the Transaction or in connection with an investigation regarding the Transaction; and (f) promptly provide the other party (and its counsel) with copies of all correspondence, filings, notices, analyses, presentations, memoranda, briefs, white papers, opinions, proposals and other submissions (and a summary of any oral presentations) made or submitted by such party or any of its Affiliates or Representatives with or to any Governmental Authority related to this Agreement or the Transaction or in connection with an investigation regarding the Transaction; provided that the foregoing shall not require any party or any of their respective Affiliates or Representatives to disclose: (x) any information that in the reasonable judgment of such party would result in the disclosure of any trade secrets of third parties or violate any of its obligations with respect to confidentiality; or (y) any privileged information or confidential competitive information of any party. Each party may, as each deems advisable and necessary, reasonably designate any competitively sensitive or any confidential business material provided to the other under this clause 4.5 as “outside counsel only.” Such materials and the information contained therein shall be given only to the outside legal counsel of the recipient and shall not be disclosed by such outside counsel to employees, officers or directors of the recipient unless express permission is obtained in advance from the source of the materials or its legal counsel.
4.6 Each party agrees to supply promptly any additional information and documentary material that may be requested by any Governmental Authority in connection with the aforementioned or any other applicable Laws.
4.7 Subject to the terms and conditions set out in this Agreement, and without limiting the generality of the other undertakings contained in this clause 4, each of the Parent, the SellerExisting Shareholders, AerCap and the Purchaser AerCap Entities agrees to promptly provide to any relevant Governmental Authority all information, documents or testimony reasonably requested by such Governmental Authority or that are reasonably necessary, proper or advisable to permit completion of the transactions contemplated by this Agreement or the other Transaction AgreementsDocuments.
4.8 The Seller Existing Shareholders and the Parent on the one hand and AerCap and the Purchaser AerCap Entities on the other undertake to disclose in writing to the other anything of which they become aware which, will or will be reasonably likely to, prevent any of the Conditions set out in clause 3.1 from being satisfied on or prior to the Long-Stop Date, as applicable, as soon as reasonably practicable after it comes to the notice of any of them.
4.9 The Seller Subject to clause 4.1, the Existing Shareholders and the Parent shall use their reasonable best efforts to provide, and to procure that the Company Group provides, promptly, all co-operation, information, documentation and assistance which is necessary or reasonably requested by AerCap or the Purchaser AerCap Entities in connection with:
(a) fulfillment of the Conditions set out in clauses 3.1(a), (b), (c), (dk), (l), (m), (on) and (po);
(b) making submissions, applications, notifications or filings to, providing information to, engaging in discussions, negotiations, or any other communication with, or obtaining any permission, approval, consent, waiver or other determination (whether binding or not) from (in each case) any Governmental Authority, or evaluating or assessing any matter in connection with any Condition, or otherwise in connection with the Transaction; which co-operation, information, documentation and assistance shall include:
(c) the provision of information about the Parent, the SellerExisting Shareholders, any of their respective Affiliates, members of the Company Group Members and any of their directors or managers;
(d) making submissions, applications, notifications or filings (whether or not joint) to, providing information to, or engaging in discussions, negotiations, or any other communication with, any Governmental Authority; and;
(e) providing access to, and ensuring that assistance is provided by, its professional advisers, including all assistance reasonably required or necessary; and
(f) signing any shareholder resolutions and agreeing to the early appointment (subject to appropriate safeguards) of the Ireland Subscriber’s nominees to the board of each of the Ireland Companies and its relevant Subsidiaries to facilitate fulfilment of the condition set out at clause 3.1(o). The Parent and the Seller Existing Shareholders further agree that all information and documentation provided by them pursuant to this clause 4.9 shall be prepared in good faith and shall not not, to their knowledge, be misleading in any material respect.
4.10 As promptly as practicable after the Signing Date, the Seller Parent and the Purchaser AerCap shall makesubmit, or cause to be submitted, (i) a draft of the joint notice to CFIUS (“CFIUS Notice”) contemplated under 31 C.F.R. § 800.501(g) with respect to the Transaction, (ii) as promptly as practicable after receiving feedback from CFIUS regarding the draft CFIUS Notice referenced in clause (i), a formal CFIUS Notice as contemplated by 31 C.F.R. § 800.501(a), and (iii) promptly (and in any event in accordance with applicable regulatory requirements) any other submissions that are formally requested by CFIUS to be made, a joint voluntary notice or which the Parent and AerCap mutually agree should be made, in each case in connection with this Agreement and the Transaction. The Parent and AerCap shall cooperate with each other in connection with any such filing or the provision of any such information (including, to the Committee on Foreign Investment extent permitted by Law, providing copies of all such documents to the non-filing party prior to filing and considering in good faith all reasonable additions, deletions or changes suggested in connection therewith) and in connection with resolving any investigation or other inquiry under Section 721 with respect to any such filing or the Transaction. Further, AerCap shall enter into such reasonable assurances or agreements as are requested or required by CFIUS or the President of the United States to obtain the CFIUS Approval, provided however that AerCap shall not be required to take any Excluded Action.
4.11 Notwithstanding anything to the contrary in this clause 4, as promptly as practicable after the Signing Date, the Parent shall submit, and AerCap shall cause its Subsidiary, Cash Manager Limited, to submit, notifications in the required form to the Central Bank of Ireland (“CFIUSCBI”) pursuant to Section 39 of the U.S. Defense Production Investment Intermediaries Act 1995 of 1950, 50 U.S.C. App. 2061, Ireland (as amended by the Foreign Investment and National Security Act of 2007, 50 U.S.C. App. 2170, and the rules and regulations promulgated thereunder, as the same may be amended from time to time (“FINSA”), amended) with respect to the transactions contemplated acquisition by this Agreement. Each the Parent of an indirect qualifying holding in Cash Manager Limited by virtue of the Seller Transaction. The Parent and the Purchaser AerCap shall provide, or cause to be provided, to CFIUS any additional or supplemental information, documents, submissions or materials requested by CFIUS or its member agencies that are required or related to such CFIUS notice and any subsequent investigation and, in cooperation cooperate with each other, shall use their reasonable best efforts to finally and successfully complete, as promptly as practicable, the CFIUS review process and make such undertakings as may be required or appropriate other in connection therewith, including adoption with the making of such measures as may be notifications and with respect to the timely provision of any further information requested or required or requested by CFIUSCBI.
4.11 4.12 Subject to clause 4.1, AerCap and the Purchaser AerCap Entities shall use reasonable best efforts to provide, promptly, all co-operation, information, documentation and assistance which is necessary or reasonably requested by the Parent or Existing Shareholders in connection with:
(a) fulfillment of the Conditions set out in clauses 3.1(b3.1(a), (cb), (nm) and (on);
(b) making submissions, applications, notifications or filings to, providing information to, engaging in discussions, negotiations, or any other communication with, or obtaining any permission, approval, consent, waiver or other determination (whether binding or not) from (in each case) any Governmental Authority, or evaluating or assessing any matter in connection with any Condition, or otherwise in connection with the Conditions referred to in clauses 3.1(a), (b) and (c)Transaction; which co-operation, information, documentation and assistance shall include:
(c) the provision of information about AerCap, the PurchaserAerCap Entities, any of their respective Affiliates and any of their directors or managers;
(d) making submissions, applications, notifications or filings (whether or not joint) to, providing information to, or engaging in discussions, negotiations or any other communication with, any Governmental Authority; and
(e) providing access to, and ensuring that assistance is provided by, its professional advisers, including all assistance reasonably required or necessary. AerCap and the Purchaser AerCap Entities further agree that all information and documentation provided by them pursuant to this clause 4.11 4.12 shall be prepared in good faith and shall not not, to their knowledge, be misleading in any material respect.
4.12 Neither 4.13 (a) Prior to Completion, each of AerCap and the Parent shall cooperate with each other and shall, and shall cause each of their respective Affiliates, to use their respective reasonable best efforts to give all notices, and obtain all Consents required or necessary pursuant to any Contract or any Permit in connection with the consummation of the transactions contemplated by this Agreement; provided, however, that neither AerCap nor the Purchaser Parent shall be have any obligation to, or any obligation to cause any of their respective Affiliates to, (i) amend or modify any Contract or otherwise relinquish or forbear any rights under any such Contract, in breach each case unless such amendment, modification, relinquishment or forbearance is conditioned upon the Completion, (ii) pay any consideration to any Person for the purpose of obtaining any such Consent or (iii) pay any costs and expenses of any provision other Person (other than ordinary course out-of-pocket costs and expenses, including attorney’s fees) resulting from the process of obtaining such Consent, unless, in the case of clauses (ii) or (iii) the other party agrees to bear such costs and expenses; provided, further, that in no event shall the failure to obtain any such Consent by AerCap, the Parent or any of their respective Affiliates, as applicable, in and of itself constitute a breach of this clause 4 in 4.13(a) so long as AerCap or the event that the circumstances that would otherwise constitute a breach arise, directly or indirectlyParent, as a result of a failure by the Seller and/or the Parent to comply applicable, has otherwise complied with its obligations under clauses 4.3, 4.4, 4.5, 4.6, 4.7, 4.8, 4.9 or 4.10 or otherwise as a consequence of information on the Company Group or the Parent or its Affiliates that is required not being made available to AerCap, the Purchaser and/or any Governmental Authority.
4.13 Neither the Seller nor the Parent shall be in breach of any provision of this clause 4 in the event that the circumstances that would otherwise constitute a breach arise, directly or indirectly, as a result of a failure by AerCap and/or the Purchaser to comply with its obligations under clauses 4.1, 4.3¸ 4.5, 4.6, 4.7, 4.8, 4.10 or 4.11 or otherwise as a consequence of information on AerCap or the Purchaser or their respective Affiliates that is required not being made available to the Parent, the Seller and/or any Governmental Authority4.13(a).
Appears in 1 contract
Agreements to Implement. 4.1 AerCap and the The Purchaser agree agrees to use reasonable best efforts endeavours to take the steps necessary, proper or advisable (including in connection with any requirement of any anti-trustincluding, competition or anti-monopoly Governmental Authoritywithout limitation, agreeing to divest Company AIA Group assets or any business or assets of the Purchaser GroupPurchaser, Prudential or any of their respective Affiliates) (i) to obtain or cause to be obtained as promptly as practicable after the Signing Date (which shall not be later than any date required by applicable Law) all Governmental Approvals that are necessary to complete and make effective the transactions contemplated by the Transaction Agreements, including but not limited to the regulatory and anti-trust approvals listed in Part A and Part AA of Schedule 5 7 (Regulatory and Schedule 6anti-trust approvals), save that the Purchaser shall not be obliged to agree to any action that would contravene any applicable Law, and (ii) to fulfil or procure the fulfilment of the Conditions set forth in clauses 3.1(c), (d) and (e), provided that in the case of (ii), the Purchaser’s best endeavours obligations under this clause 4.1 shall in relation to the Board Recommendation always be subject to clause 4.13 with the consequence that in the event of a Change of Recommendation the Purchaser shall cease to be required to endeavour to obtain the votes of Prudential’s shareholders in favour of the Resolutions, but shall remain obligated to fulfil its other covenants under this clause 4.
4.2 The Seller and the Purchaser and each of their respective Affiliates shall, and the Seller shall cause the Company to, contest or otherwise resist any Action, including any Action by a private party, challenging any of the transactions contemplated by the Transaction Agreements.
4.3 No party shall take any action that it is aware or should reasonably be aware would have the effect of delaying, impairing or impeding the receipt of the Governmental Approvals that are necessary, proper or advisable under the Transaction Agreements and applicable to complete and make effective the transactions contemplated by the Transaction Agreements.
4.4 Subject to the restrictions set forth in clause 8.1, the 4.3 The Parent and the Seller agree agrees to use reasonable best efforts endeavours to take the steps necessary, proper or advisable to obtain or cause to be obtained as promptly as practicable after the Signing Date all Governmental Approvals that are necessary to complete and make effective the transactions contemplated by the Transaction Agreements, including but not limited to the regulatory and antitrust approvals listed in Part B of Schedule 5 7 (Regulatory and Schedule 6anti-trust approvals), save that the Parent shall not be obliged to agree any action that would contravene any applicable Law.
4.5 AerCap 4.4 The Purchaser and the Purchaser, Prudential on the one hand, hand and the Parent and the Seller, Seller on the other hand, shall promptly make or cause to be made as soon as practicable after the Signing Date with all due dispatch all filings and notifications with all 29 Governmental Authorities that are necessary to complete and make effective the transactions contemplated by the Transaction Agreements. Subject Before making or causing to be made any of the foregoing filings or notifications, subject to applicable Laws relating to the confidentiality provisions sharing of information, the relevant party shall provide the other with a draft of the Confidentiality Agreement and/or the confidentiality provisions set forth in clause 17 herein filing or notification and except where prohibited by applicable Law, each party shall promptly supply the other parties with any information which may be required in order a reasonable opportunity to effectuate any filings (including applications) pursuant to (and to otherwise comply with its obligations set forth in) clause 4.1 hereof. Except where prohibited by applicable Laws or any Governmental Authority, and subject to the confidentiality provisions of the Confidentiality Agreement and/or the confidentiality provisions set forth in clause 17 herein, each of the parties shallreview such draft, and shall use reasonable best efforts to procure that their respective Affiliates and shall use reasonable best efforts to procure that their respective Representatives: (a) promptly inform the other parties of any communication to or from any Governmental Authority, in each case regarding the Transaction or in connection with an investigation regarding the Transaction; (b) consult with the other parties prior to making any filing, taking a position with respect to any filing, or communicating with any Governmental Authority regarding the Transaction or in connection with an investigation regarding the Transaction; (c) permit the other party to review and discuss in advance, and consider in good faith the views of the such other parties in connection with, any analyses, appearances, presentations, memoranda, briefs, white papers, arguments, opinions and proposals before making party regarding such filing or submitting notification. Promptly after any of the foregoing to any Governmental Authority by filings or on behalf of any party in connection with any legal proceeding related to this Agreementnotifications have been made, the Transaction or in connection with an investigation regarding the Transaction (including any such legal proceeding relating to any anti-trust Law); (d) coordinate and cooperate fully with the other relevant party in preparing and exchanging such information and providing such assistance as the other party might reasonably request; (e) shall provide a copy thereof to the extent permitted by any Governmental Authority, permit the other parties or its counsel to attend and participate at each meeting or conference regarding the Transaction or in connection with an investigation regarding the Transaction; and (f) promptly provide the other party (and its counsel) with copies of all correspondence, filings, notices, analyses, presentations, memoranda, briefs, white papers, opinions, proposals and other submissions (and a summary of any oral presentations) made or submitted by such party or any of its Affiliates or Representatives with or to any Governmental Authority related to this Agreement or the Transaction or in connection with an investigation regarding the Transaction; provided that the foregoing shall not require any party or any of their respective Affiliates or Representatives to disclose: (x) any information that in the reasonable judgment of such party would result in the disclosure of any trade secrets of third parties or violate any of its obligations with respect to confidentiality; or (y) any privileged information or confidential competitive information of any party. Each party may, as each deems advisable and necessary, reasonably designate any competitively sensitive or any confidential business material provided to the other under this clause 4.5 as “outside counsel only.” Such materials and the information contained therein shall be given only to the outside legal counsel of the recipient and shall not be disclosed by such outside counsel to employees, officers or directors of the recipient unless express permission is obtained in advance from the source of the materials or its legal counselother.
4.6 4.5 Each party agrees to supply promptly any additional information and documentary material that may be requested by any Governmental Authority in connection with the aforementioned or any other applicable Laws. The Purchaser shall have responsibility for the filing fees associated with any change of control applications and market share notifications required in respect of the Condition set out in clause 3.1(a), including but not limited to any fees relating to such applications and notifications. The Parent shall have responsibility for the filing fees associated with any change of control applications and market share notifications required in respect of the Condition set out in clause 3.1(b), including but not limited to any fees relating to such applications and notifications.
4.7 4.6 Subject to the terms and conditions set out in this Agreementagreement, and without limiting the generality of the other undertakings contained in this clause 4, each of the Parent, the Seller, AerCap Parent and the Purchaser agrees to promptly provide to any relevant Governmental Authority all information, documents or testimony reasonably requested by such Governmental Authority or that are reasonably necessary, proper or advisable to permit completion of the transactions contemplated by this Agreement agreement or the other Transaction Agreements.
4.8 The 4.7 Subject to applicable Law, the Purchaser and Prudential on the one hand and the Seller and the Parent on the one hand and AerCap and the Purchaser on other shall provide the other undertake to disclose with copies of all correspondence, filings or communications between such party or any of its Affiliates or Representatives and any Governmental Authority, in writing each case to the extent relating to the matters that are the subject of this agreement.
4.8 Subject to applicable Law, no party shall, and shall procure that none of its Affiliates shall, agree to participate in any meeting with any Governmental Authority relating to the matters that are the subject of this agreement unless it consults with the other anything of which they become aware whichparties in advance and, will to the extent permitted by such Governmental Authority, gives such other parties the opportunity to attend and participate at such meeting. Each party shall, and shall procure that their respective Affiliates and Representatives shall, coordinate and cooperate fully with each other in exchanging such information and providing such assistance 30 as the other party may reasonably request in connection with the foregoing, provided that the foregoing shall not require any party or will be reasonably likely to, prevent any of the Conditions set out in clause 3.1 from being satisfied on their respective Affiliates or prior Representatives to the Long-Stop Date, as applicable, as soon as reasonably practicable after it comes to the notice of any of them.
4.9 The Seller and the Parent shall use their reasonable best efforts to provide, and to procure that the Company Group provides, promptly, all co-operation, information, documentation and assistance which is necessary or reasonably requested by the Purchaser in connection withdisclose:
(a) fulfillment any information that in the reasonable judgment of such party would result in the Conditions set out in clauses 3.1(a), (c), (d), (l), (m), (o) and (p);disclosure of any trade secrets of third parties or violate any of its obligations with respect to confidentiality; or
(b) making submissionsany privileged information or confidential competitive information of any party.
4.9 If, applicationsand to the extent, notifications or filings to, providing information to, engaging in discussions, negotiations, or any other communication with, or obtaining any permission, approval, consent, waiver or other determination (whether binding or not) from (in each case) the Purchaser fails to obtain any Governmental Authority, or evaluating or assessing any matter in connection with any Condition, or otherwise Approvals necessary in connection with the Transaction; which co-operationtransactions contemplated hereby or by the other Transaction Agreements, informationafter complying with its obligations under clause 4.1 and its other obligations under this agreement, documentation or determines in good faith that any such Governmental Approval will not be forthcoming, and assistance shall include:
(c) failure to obtain any such Governmental Approval would in the provision event of information about Completion result in the ParentPurchaser being in violation of applicable Law, the SellerPurchaser shall, any of their respective Affiliatesat its sole cost, members of the Company Group and any of their directors or managers;
(d) making submissions, applications, notifications or filings (whether or not joint) to, providing information to, or engaging in discussions, negotiations, or any other communication with, any Governmental Authority; and
(e) providing access use best endeavours to, and ensuring that assistance is provided by, its professional advisers, including all assistance reasonably required or necessary. The the Parent and the Seller further agree shall use best endeavours to cooperate to, take such actions as promptly as practicable as are necessary such that all information and documentation provided by them pursuant to Completion can occur without the Purchaser being in violation of applicable Law. For the avoidance of doubt, no actions taken under this clause 4.9 shall be prepared in good faith and shall not be misleading in any way reduce the Purchase Price or alter the form or mix of consideration to be paid by the Purchaser upon Completion. The Purchaser shall indemnify on an after tax basis the Parent and the Seller on demand against any material respectTaxes, other costs, expenses or liabilities incurred by the Parent or the Seller in connection with actions taken by or at the request of the Purchaser under this clause 4.9.
4.10 As promptly as practicable after the Signing Date, the Seller and the The Purchaser shall make, or cause agrees to be made, a joint voluntary notice to the Committee on Foreign Investment in the United States (“CFIUS”) pursuant to the U.S. Defense Production Act of 1950, 50 U.S.C. App. 2061, as amended by the Foreign Investment and National Security Act of 2007, 50 U.S.C. App. 2170, and the rules and regulations promulgated thereunder, as the same may be amended from time to time (“FINSA”), with respect to the transactions contemplated by this Agreement. Each of the Seller and the Purchaser shall provide, or cause to be provided, to CFIUS any additional or supplemental information, documents, submissions or materials requested by CFIUS or its member agencies that are required or related to such CFIUS notice and any subsequent investigation and, in cooperation with each other, shall use their reasonable best efforts to finally and successfully complete, as promptly as practicable, the CFIUS review process and make such undertakings as may be required or appropriate in connection therewith, including adoption of such measures as may be required or requested by CFIUS.
4.11 AerCap and the Purchaser shall use reasonable best efforts to provide, promptly, all co-operation, information, documentation and assistance which is necessary or reasonably requested by the Parent in connection withendeavours to:
(a) fulfillment prepare a prospectus as required by the Act in connection with the admission of the Conditions set out in clauses 3.1(bPurchaser Ordinary Shares to Listing and Trading (the “Purchaser Prospectus”), (c), (n) and (o);; and
(b) making submissions, applications, notifications or filings to, providing information to, engaging in discussions, negotiations, or any other communication with, or obtaining any permission, approval, consent, waiver or other determination (whether binding or not) from (in each case) any Governmental Authority, or evaluating or assessing any matter in connection with the Conditions referred to in clauses 3.1(a), (b) and (c); which co-operation, information, documentation and assistance shall include:
(c) the provision of information about AerCap, the Purchaser, any of their respective Affiliates and any of their directors or managers;
(d) making submissions, applications, notifications or filings (whether or not joint) to, providing information to, or engaging in discussions, negotiations or any other communication with, any Governmental Authority; and
(e) providing access to, and ensuring that assistance is provided by, its professional advisers, including all assistance reasonably required or necessary. AerCap and publish the Purchaser further agree that all information and documentation provided Prospectus by them pursuant to this clause 4.11 shall be prepared in good faith and shall not be misleading in any material respect30 April 2010.
4.12 Neither AerCap nor the Purchaser shall be in breach of any provision of this clause 4 in the event that the circumstances that would otherwise constitute a breach arise, directly or indirectly, as a result of a failure by the Seller and/or the Parent to comply with its obligations under clauses 4.3, 4.4, 4.5, 4.6, 4.7, 4.8, 4.9 or 4.10 or otherwise as a consequence of information on the Company Group or the Parent or its Affiliates that is required not being made available to AerCap, the Purchaser and/or any Governmental Authority.
4.13 Neither the Seller nor the Parent shall be in breach of any provision of this clause 4 in the event that the circumstances that would otherwise constitute a breach arise, directly or indirectly, as a result of a failure by AerCap and/or the Purchaser to comply with its obligations under clauses 4.1, 4.3¸ 4.5, 4.6, 4.7, 4.8, 4.10 or 4.11 or otherwise as a consequence of information on AerCap or the Purchaser or their respective Affiliates that is required not being made available to the Parent, the Seller and/or any Governmental Authority.
Appears in 1 contract
Samples: Share Purchase Agreement
Agreements to Implement. 4.1 AerCap and the Purchaser AerCap Entities agree to use reasonable best efforts to take the steps necessary, proper or advisable (including commercial negotiations or concessions or, in connection with any requirement of any regulatory or anti-trust, competition or anti-monopoly Governmental Authority, committing to take any action, including agreeing to divest Company Group assets or any business or assets of the Purchaser AerCap Group) to obtain or cause to be obtained as promptly as practicable after the Signing Date (which shall not be later than any date required by applicable Law) all Governmental Approvals that are necessary to complete and make effective the transactions contemplated by the Transaction AgreementsDocuments, including the regulatory and anti-trust approvals listed in Schedule 5 and Schedule 65. Notwithstanding anything to the contrary herein, neither party will be required to agree to divest, sell, dispose of, hold separate or otherwise take or commit to take any action that limits such party’s freedom of action that (x) is not conditioned on the Completion, (y) when combined with other actions taken pursuant to this clause 4.1, would reasonably be expected to have an adverse impact that is material to the Business, taken as a whole, or if such action is imposed on the AerCap Business, an adverse impact that is material to the AerCap Business, taken as a whole, or (z) is in respect of assets or businesses of the Parent Group other than the Business (any such action, an “Excluded Action”).
4.2 The Seller Parent and the Purchaser AerCap and each of their respective Affiliates shall, and the Seller Existing Shareholders shall cause the Company Companies to, contest or otherwise resist any Action, including any Action by a private party, challenging any of the transactions contemplated by the Transaction AgreementsDocuments.
4.3 No party shall take any action that it is aware or should reasonably be aware would have the effect of delaying, impairing or impeding the receipt of the Governmental Approvals that are necessary, proper or advisable under the Transaction Agreements Documents and applicable to complete and make effective the transactions contemplated by the Transaction AgreementsDocuments.
4.4 Subject to the restrictions set forth in clause 8.1, the Parent and the Seller Existing Shareholders agree to use reasonable best efforts to take the steps necessary, proper or advisable to obtain or cause to be obtained as promptly as practicable after the Signing Date all Governmental Approvals that are necessary to complete and make effective the transactions contemplated by the Transaction AgreementsDocuments, including the regulatory and antitrust anti-trust approvals listed in Schedule 5 and Schedule 65.
4.5 AerCap and the PurchaserAerCap Entities, on the one hand, and the Parent and the SellerExisting Shareholders, on the other hand, shall promptly make or cause to be made as soon as practicable after the Signing Date with all due dispatch all filings and notifications with all Governmental Authorities that are necessary to complete and make effective the transactions contemplated by the Transaction AgreementsDocuments. Subject to the confidentiality provisions of the Confidentiality Agreement and/or the confidentiality provisions set forth in clause 17 herein and except where prohibited by applicable Law, each party shall promptly supply the other parties with any information which may be required in order to effectuate any filings (including applications) pursuant to (and to otherwise comply with its obligations set forth in) clause 4.1 hereof. Except where prohibited by applicable Laws or any Governmental Authority, and subject to the confidentiality provisions of the Confidentiality Agreement and/or the confidentiality provisions set forth in clause 17 herein, each of the parties shall, and shall use reasonable best efforts to procure that their respective Affiliates and shall use reasonable best efforts to procure that their respective Representatives: (a) promptly inform the other parties of any communication to or from any Governmental Authority, in each case regarding the Transaction or in connection with an investigation regarding the Transaction; (b) consult with the other parties prior to making any filing, taking a position with respect to any filing, or communicating with any Governmental Authority regarding the Transaction or in connection with an investigation regarding the Transaction; (c) permit the other party to review and discuss in advance, and consider in good faith the views of the other parties in connection with, any analyses, appearances, presentations, memoranda, briefs, white papers, arguments, opinions and proposals before making or submitting any of the foregoing to any Governmental Authority by or on behalf of any party in connection with any legal proceeding related to this Agreement, the Transaction or in connection with an investigation regarding the Transaction (including any such legal proceeding relating to any anti-trust Law); (d) coordinate and cooperate fully with the other party in preparing and exchanging such information and providing such assistance as the other party might reasonably request; (e) to the extent permitted by any Governmental Authority, permit the other parties or its counsel to attend and participate at each meeting or conference regarding the Transaction or in connection with an investigation regarding the Transaction; and (f) promptly provide the other party (and its counsel) with copies of all correspondence, filings, notices, analyses, presentations, memoranda, briefs, white papers, opinions, proposals and other submissions (and a summary of any oral presentations) made or submitted by such party or any of its Affiliates or Representatives with or to any Governmental Authority related to this Agreement or the Transaction or in connection with an investigation regarding the Transaction; provided that the foregoing shall not require any party or any of their respective Affiliates or Representatives to disclose: (x) any information that in the reasonable judgment of such party would result in the disclosure of any trade secrets of third parties or violate any of its obligations with respect to confidentiality; or (y) any privileged information or confidential competitive information of any party. Each party may, as each deems advisable and necessary, reasonably designate any competitively sensitive or any confidential business material provided to the other under this clause 4.5 as “outside counsel only.” Such materials and the information contained therein shall be given only to the outside legal counsel of the recipient and shall not be disclosed by such outside counsel to employees, officers or directors of the recipient unless express permission is obtained in advance from the source of the materials or its legal counsel.
4.6 Each party agrees to supply promptly any additional information and documentary material that may be requested by any Governmental Authority in connection with the aforementioned or any other applicable Laws.
4.7 Subject to the terms and conditions set out in this Agreement, and without limiting the generality of the other undertakings contained in this clause 4, each of the Parent, the SellerExisting Shareholders, AerCap and the Purchaser AerCap Entities agrees to promptly provide to any relevant Governmental Authority all information, documents or testimony reasonably requested by such Governmental Authority or that are reasonably necessary, proper or advisable to permit completion of the transactions contemplated by this Agreement or the other Transaction AgreementsDocuments.
4.8 The Seller Existing Shareholders and the Parent on the one hand and AerCap and the Purchaser AerCap Entities on the other undertake to disclose in writing to the other anything of which they become aware which, will or will be reasonably likely to, prevent any of the Conditions set out in clause 3.1 from being satisfied on or prior to the Long-Stop Date, as applicable, as soon as reasonably practicable after it comes to the notice of any of them.
4.9 The Seller Subject to clause 4.1, the Existing Shareholders and the Parent shall use their reasonable best efforts to provide, and to procure that the Company Group provides, promptly, all co-operation, information, documentation and assistance which is necessary or reasonably requested by AerCap or the Purchaser AerCap Entities in connection with:
(a) fulfillment of the Conditions set out in clauses 3.1(a), (b), (c), (dk), (l), (m), (on) and (po);
(b) making submissions, applications, notifications or filings to, providing information to, engaging in discussions, negotiations, or any other communication with, or obtaining any permission, approval, consent, waiver or other determination (whether binding or not) from (in each case) any Governmental Authority, or evaluating or assessing any matter in connection with any Condition, or otherwise in connection with the Transaction; which co-operation, information, documentation and assistance shall include:
(c) the provision of information about the Parent, the SellerExisting Shareholders, any of their respective Affiliates, members of the Company Group Members and any of their directors or managers;
(d) making submissions, applications, notifications or filings (whether or not joint) to, providing information to, or engaging in discussions, negotiations, or any other communication with, any Governmental Authority; and;
(e) providing access to, and ensuring that assistance is provided by, its professional advisers, including all assistance reasonably required or necessary; and
(f) signing any shareholder resolutions and agreeing to the early appointment (subject to appropriate safeguards) of the Ireland Subscriber’s nominees to the board of each of the Ireland Companies and its relevant Subsidiaries to facilitate fulfilment of the condition set out at clause 3.1(o). The Parent and the Seller Existing Shareholders further agree that all information and documentation provided by them pursuant to this clause 4.9 shall be prepared in good faith and shall not not, to their knowledge, be misleading in any material respect.
4.10 As promptly as practicable after the Signing Date, the Seller Parent and the Purchaser AerCap shall makesubmit, or cause to be submitted, (i) a draft of the joint notice to CFIUS (“CFIUS Notice”) contemplated under 31 C.F.R. § 800.501(g) with respect to the Transaction, (ii) as promptly as practicable after receiving feedback from CFIUS regarding the draft CFIUS Notice referenced in clause (i), a formal CFIUS Notice as contemplated by 31 C.F.R. § 800.501(a), and (iii) promptly (and in any event in accordance with applicable regulatory requirements) any other submissions that are formally requested by CFIUS to be made, a joint voluntary notice or which the Parent and AerCap mutually agree should be made, in each case in connection with this Agreement and the Transaction. The Parent and AerCap shall cooperate with each other in connection with any such filing or the provision of any such information (including, to the Committee on Foreign Investment extent permitted by Law, providing copies of all such documents to the non-filing party prior to filing and considering in good faith all reasonable additions, deletions or changes suggested in connection therewith) and in connection with resolving any investigation or other inquiry under Section 721 with respect to any such filing or the Transaction. Further, AerCap shall enter into such reasonable assurances or agreements as are requested or required by CFIUS or the President of the United States to obtain the CFIUS Approval, provided however that AerCap shall not be required to take any Excluded Action.
4.11 Notwithstanding anything to the contrary in this clause 4, as promptly as practicable after the Signing Date, the Parent shall submit, and AerCap shall cause its Subsidiary, Cash Manager Limited, to submit, notifications in the required form to the Central Bank of Ireland (“CFIUSCBI”) pursuant to Section 39 of the U.S. Defense Production Investment Intermediaries Act 1995 of 1950, 50 U.S.C. App. 2061, Ireland (as amended by the Foreign Investment and National Security Act of 2007, 50 U.S.C. App. 2170, and the rules and regulations promulgated thereunder, as the same may be amended from time to time (“FINSA”), amended) with respect to the transactions contemplated acquisition by this Agreement. Each the Parent of an indirect qualifying holding in Cash Manager Limited by virtue of the Seller Transaction. The Parent and the Purchaser AerCap shall provide, or cause to be provided, to CFIUS any additional or supplemental information, documents, submissions or materials requested by CFIUS or its member agencies that are required or related to such CFIUS notice and any subsequent investigation and, in cooperation cooperate with each other, shall use their reasonable best efforts to finally and successfully complete, as promptly as practicable, the CFIUS review process and make such undertakings as may be required or appropriate other in connection therewith, including adoption with the making of such measures as may be notifications and with respect to the timely provision of any further information requested or required or requested by CFIUSCBI.
4.11 4.12 Subject to clause 4.1, AerCap and the Purchaser AerCap Entities shall use reasonable best efforts to provide, promptly, all co-operation, information, documentation and assistance which is necessary or reasonably requested by the Parent or Existing Shareholders in connection with:
(a) fulfillment of the Conditions set out in clauses 3.1(b3.1(a), (cb), (nm) and (on);
(b) making submissions, applications, notifications or filings to, providing information to, engaging in discussions, negotiations, or any other communication with, or obtaining any permission, approval, consent, waiver or other determination (whether binding or not) from (in each case) any Governmental Authority, or evaluating or assessing any matter in connection with any Condition, or otherwise in connection with the Conditions referred to in clauses 3.1(a), (b) and (c)Transaction; which co-operation, information, documentation and assistance shall include:
(c) the provision of information about AerCap, the PurchaserAerCap Entities, any of their respective Affiliates and any of their directors or managers;
(d) making submissions, applications, notifications or filings (whether or not joint) to, providing information to, or engaging in discussions, negotiations or any other communication with, any Governmental Authority; and
(e) providing access to, and ensuring that assistance is provided by, its professional advisers, including all assistance reasonably required or necessary. AerCap and the Purchaser AerCap Entities further agree that all information and documentation provided by them pursuant to this clause 4.11 4.12 shall be prepared in good faith and shall not not, to their knowledge, be misleading in any material respect.
4.12 Neither 4.13 (a) Prior to Completion, each of AerCap and the Parent shall cooperate with each other and shall, and shall cause each of their respective Affiliates, to use their respective reasonable best efforts to give all notices, and obtain all Consents required or necessary pursuant to any Contract or any Permit in connection with the consummation of the transactions contemplated by this Agreement; provided, however, that neither AerCap nor the Purchaser Parent shall be have any obligation to, or any obligation to cause any of their respective Affiliates to, (i) amend or modify any Contract or otherwise relinquish or forbear any rights under any such Contract, in breach each case unless such amendment, modification, relinquishment or forbearance is conditioned upon the Completion, (ii) pay any consideration to any Person for the purpose of obtaining any such Consent or (iii) pay any costs and expenses of any provision other Person (other than ordinary course out-of-pocket costs and expenses, including attorney’s fees) resulting from the process of obtaining such Consent, unless, in the case of clauses (ii) or (iii) the other party agrees to bear such costs and expenses; provided, further, that in no event shall the failure to obtain any such Consent by AerCap, the Parent or any of their respective Affiliates, as applicable, in and of itself constitute a breach of this clause 4 in 4.13(a) so long as AerCap or the event that the circumstances that would otherwise constitute a breach arise, directly or indirectlyParent, as a result of a failure by the Seller and/or the Parent to comply applicable, has otherwise complied with its obligations under clauses 4.3, 4.4, 4.5, 4.6, 4.7, 4.8, 4.9 or 4.10 or otherwise as a consequence of information on the Company Group or the Parent or its Affiliates that is required not being made available to AerCap, the Purchaser and/or any Governmental Authority.
4.13 Neither the Seller nor the Parent shall be in breach of any provision of this clause 4 in the event that the circumstances that would otherwise constitute a breach arise, directly or indirectly, as a result of a failure by AerCap and/or the Purchaser to comply with its obligations under clauses 4.1, 4.3¸ 4.5, 4.6, 4.7, 4.8, 4.10 or 4.11 or otherwise as a consequence of information on AerCap or the Purchaser or their respective Affiliates that is required not being made available to the Parent, the Seller and/or any Governmental Authority4.13(a).
Appears in 1 contract
Agreements to Implement. 4.1 AerCap and the The Purchaser agree agrees to use reasonable best efforts endeavours to take the steps necessary, proper or advisable (including in connection with any requirement of any anti-trustincluding, competition or anti-monopoly Governmental Authoritywithout limitation, agreeing to divest Company AIA Group assets or any business or assets of the Purchaser GroupPurchaser, Prudential or any of their respective Affiliates) (i) to obtain or cause to be obtained as promptly as practicable after the Signing Date (which shall not be later than any date required by applicable Law) all Governmental Approvals that are necessary to complete and make effective the transactions contemplated by the Transaction Agreements, including but not limited to the regulatory and anti-trust approvals listed in Part A and Part AA of Schedule 5 7 (Regulatory and Schedule 6anti-trust approvals), save that the Purchaser shall not be obliged to agree to any action that would contravene any applicable Law, and (ii) to fulfil or procure the fulfilment of the Conditions set forth in clauses 3.1(c), (d) and (e), provided that in the case of (ii), the Purchaser’s best endeavours obligations under this clause 4.1 shall in relation to the Board Recommendation always be subject to clause 4.13 with the consequence that in the event of a Change of Recommendation the Purchaser shall cease to be required to endeavour to obtain the votes of Prudential’s shareholders in favour of the Resolutions, but shall remain obligated to fulfil its other covenants under this clause 4.
4.2 The Seller and the Purchaser and each of their respective Affiliates shall, and the Seller shall cause the Company to, contest or otherwise resist any Action, including any Action by a private party, challenging any of the transactions contemplated by the Transaction Agreements.
4.3 No party shall take any action that it is aware or should reasonably be aware would have the effect of delaying, impairing or impeding the receipt of the Governmental Approvals that are necessary, proper or advisable under the Transaction Agreements and applicable to complete and make effective the transactions contemplated by the Transaction Agreements.
4.4 Subject to the restrictions set forth in clause 8.1, the 4.3 The Parent and the Seller agree agrees to use reasonable best efforts endeavours to take the steps necessary, proper or advisable to obtain or cause to be obtained as promptly as practicable after the Signing Date all Governmental Approvals that are necessary to complete and make effective the transactions contemplated by the Transaction Agreements, including but not limited to the regulatory and antitrust approvals listed in Part B of Schedule 5 7 (Regulatory and Schedule 6anti-trust approvals), save that the Parent shall not be obliged to agree any action that would contravene any applicable Law.
4.5 AerCap 4.4 The Purchaser and the Purchaser, Prudential on the one hand, hand and the Parent and the Seller, Seller on the other hand, shall promptly make or cause to be made as soon as practicable after the Signing Date with all due dispatch all filings and notifications with all Governmental Authorities that are necessary to complete and make effective the transactions contemplated by the Transaction Agreements. Subject Before making or causing to be made any of the foregoing filings or notifications, subject to applicable Laws relating to the confidentiality provisions sharing of information, the relevant party shall provide the other with a draft of the Confidentiality Agreement and/or the confidentiality provisions set forth in clause 17 herein filing or notification and except where prohibited by applicable Law, each party shall promptly supply the other parties with any information which may be required in order a reasonable opportunity to effectuate any filings (including applications) pursuant to (and to otherwise comply with its obligations set forth in) clause 4.1 hereof. Except where prohibited by applicable Laws or any Governmental Authority, and subject to the confidentiality provisions of the Confidentiality Agreement and/or the confidentiality provisions set forth in clause 17 herein, each of the parties shallreview such draft, and shall use reasonable best efforts to procure that their respective Affiliates and shall use reasonable best efforts to procure that their respective Representatives: (a) promptly inform the other parties of any communication to or from any Governmental Authority, in each case regarding the Transaction or in connection with an investigation regarding the Transaction; (b) consult with the other parties prior to making any filing, taking a position with respect to any filing, or communicating with any Governmental Authority regarding the Transaction or in connection with an investigation regarding the Transaction; (c) permit the other party to review and discuss in advance, and consider in good faith the views of the such other parties in connection with, any analyses, appearances, presentations, memoranda, briefs, white papers, arguments, opinions and proposals before making party regarding such filing or submitting notification. Promptly after any of the foregoing to any Governmental Authority by filings or on behalf of any party in connection with any legal proceeding related to this Agreementnotifications have been made, the Transaction or in connection with an investigation regarding the Transaction (including any such legal proceeding relating to any anti-trust Law); (d) coordinate and cooperate fully with the other relevant party in preparing and exchanging such information and providing such assistance as the other party might reasonably request; (e) shall provide a copy thereof to the extent permitted by any Governmental Authority, permit the other parties or its counsel to attend and participate at each meeting or conference regarding the Transaction or in connection with an investigation regarding the Transaction; and (f) promptly provide the other party (and its counsel) with copies of all correspondence, filings, notices, analyses, presentations, memoranda, briefs, white papers, opinions, proposals and other submissions (and a summary of any oral presentations) made or submitted by such party or any of its Affiliates or Representatives with or to any Governmental Authority related to this Agreement or the Transaction or in connection with an investigation regarding the Transaction; provided that the foregoing shall not require any party or any of their respective Affiliates or Representatives to disclose: (x) any information that in the reasonable judgment of such party would result in the disclosure of any trade secrets of third parties or violate any of its obligations with respect to confidentiality; or (y) any privileged information or confidential competitive information of any party. Each party may, as each deems advisable and necessary, reasonably designate any competitively sensitive or any confidential business material provided to the other under this clause 4.5 as “outside counsel only.” Such materials and the information contained therein shall be given only to the outside legal counsel of the recipient and shall not be disclosed by such outside counsel to employees, officers or directors of the recipient unless express permission is obtained in advance from the source of the materials or its legal counselother.
4.6 4.5 Each party agrees to supply promptly any additional information and documentary material that may be requested by any Governmental Authority in connection with the aforementioned or any other applicable Laws. The Purchaser shall have responsibility for the filing fees associated with any change of control applications and market share notifications required in respect of the Condition set out in clause 3.1(a), including but not limited to any fees relating to such applications and notifications. The Parent shall have responsibility for the filing fees associated with any change of control applications and market share notifications required in respect of the Condition set out in clause 3.1(b), including but not limited to any fees relating to such applications and notifications.
4.7 4.6 Subject to the terms and conditions set out in this Agreementagreement, and without limiting the generality of the other undertakings contained in this clause 4, each of the Parent, the Seller, AerCap Parent and the Purchaser agrees to promptly provide to any relevant Governmental Authority all information, documents or testimony reasonably requested by such Governmental Authority or that are reasonably necessary, proper or advisable to permit completion of the transactions contemplated by this Agreement agreement or the other Transaction Agreements.
4.8 The 4.7 Subject to applicable Law, the Purchaser and Prudential on the one hand and the Seller and the Parent on the one hand and AerCap and the Purchaser on other shall provide the other undertake to disclose with copies of all correspondence, filings or communications between such party or any of its Affiliates or Representatives and any Governmental Authority, in writing each case to the extent relating to the matters that are the subject of this agreement.
4.8 Subject to applicable Law, no party shall, and shall procure that none of its Affiliates shall, agree to participate in any meeting with any Governmental Authority relating to the matters that are the subject of this agreement unless it consults with the other anything of which they become aware whichparties in advance and, will to the extent permitted by such Governmental Authority, gives such other parties the opportunity to attend and participate at such meeting. Each party shall, and shall procure that their respective Affiliates and Representatives 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, provided that the foregoing shall not require any party or will be reasonably likely to, prevent any of the Conditions set out in clause 3.1 from being satisfied on their respective Affiliates or prior Representatives to the Long-Stop Date, as applicable, as soon as reasonably practicable after it comes to the notice of any of them.
4.9 The Seller and the Parent shall use their reasonable best efforts to provide, and to procure that the Company Group provides, promptly, all co-operation, information, documentation and assistance which is necessary or reasonably requested by the Purchaser in connection withdisclose:
(a) fulfillment any information that in the reasonable judgment of such party would result in the Conditions set out in clauses 3.1(a), (c), (d), (l), (m), (o) and (p);disclosure of any trade secrets of third parties or violate any of its obligations with respect to confidentiality; or
(b) making submissionsany privileged information or confidential competitive information of any party.
4.9 If, applicationsand to the extent, notifications or filings to, providing information to, engaging in discussions, negotiations, or any other communication with, or obtaining any permission, approval, consent, waiver or other determination (whether binding or not) from (in each case) the Purchaser fails to obtain any Governmental Authority, or evaluating or assessing any matter in connection with any Condition, or otherwise Approvals necessary in connection with the Transaction; which co-operationtransactions contemplated hereby or by the other Transaction Agreements, informationafter complying with its obligations under clause 4.1 and its other obligations under this agreement, documentation or determines in good faith that any such Governmental Approval will not be forthcoming, and assistance shall include:
(c) failure to obtain any such Governmental Approval would in the provision event of information about Completion result in the ParentPurchaser being in violation of applicable Law, the SellerPurchaser shall, any of their respective Affiliatesat its sole cost, members of the Company Group and any of their directors or managers;
(d) making submissions, applications, notifications or filings (whether or not joint) to, providing information to, or engaging in discussions, negotiations, or any other communication with, any Governmental Authority; and
(e) providing access use best endeavours to, and ensuring that assistance is provided by, its professional advisers, including all assistance reasonably required or necessary. The the Parent and the Seller further agree shall use best endeavours to cooperate to, take such actions as promptly as practicable as are necessary such that all information and documentation provided by them pursuant to Completion can occur without the Purchaser being in violation of applicable Law. For the avoidance of doubt, no actions taken under this clause 4.9 shall be prepared in good faith and shall not be misleading in any way reduce the Purchase Price or alter the form or mix of consideration to be paid by the Purchaser upon Completion. The Purchaser shall indemnify on an after tax basis the Parent and the Seller on demand against any material respectTaxes, other costs, expenses or liabilities incurred by the Parent or the Seller in connection with actions taken by or at the request of the Purchaser under this clause 4.9.
4.10 As promptly as practicable after the Signing Date, the Seller and the The Purchaser shall make, or cause agrees to be made, a joint voluntary notice to the Committee on Foreign Investment in the United States (“CFIUS”) pursuant to the U.S. Defense Production Act of 1950, 50 U.S.C. App. 2061, as amended by the Foreign Investment and National Security Act of 2007, 50 U.S.C. App. 2170, and the rules and regulations promulgated thereunder, as the same may be amended from time to time (“FINSA”), with respect to the transactions contemplated by this Agreement. Each of the Seller and the Purchaser shall provide, or cause to be provided, to CFIUS any additional or supplemental information, documents, submissions or materials requested by CFIUS or its member agencies that are required or related to such CFIUS notice and any subsequent investigation and, in cooperation with each other, shall use their reasonable best efforts to finally and successfully complete, as promptly as practicable, the CFIUS review process and make such undertakings as may be required or appropriate in connection therewith, including adoption of such measures as may be required or requested by CFIUS.
4.11 AerCap and the Purchaser shall use reasonable best efforts to provide, promptly, all co-operation, information, documentation and assistance which is necessary or reasonably requested by the Parent in connection withendeavours to:
(a) fulfillment prepare a prospectus as required by the Act in connection with the admission of the Conditions set out in clauses 3.1(bPurchaser Ordinary Shares to Listing and Trading (the “Purchaser Prospectus”), (c), (n) and (o);; and
(b) making submissions, applications, notifications or filings to, providing information to, engaging in discussions, negotiations, or any other communication with, or obtaining any permission, approval, consent, waiver or other determination (whether binding or not) from (in each case) any Governmental Authority, or evaluating or assessing any matter in connection with the Conditions referred to in clauses 3.1(a), (b) and (c); which co-operation, information, documentation and assistance shall include:
(c) the provision of information about AerCap, the Purchaser, any of their respective Affiliates and any of their directors or managers;
(d) making submissions, applications, notifications or filings (whether or not joint) to, providing information to, or engaging in discussions, negotiations or any other communication with, any Governmental Authority; and
(e) providing access to, and ensuring that assistance is provided by, its professional advisers, including all assistance reasonably required or necessary. AerCap and publish the Purchaser further agree that all information and documentation provided Prospectus by them pursuant to this clause 4.11 shall be prepared in good faith and shall not be misleading in any material respect30 April 2010.
4.12 Neither AerCap nor the Purchaser shall be in breach of any provision of this clause 4 in the event that the circumstances that would otherwise constitute a breach arise, directly or indirectly, as a result of a failure by the Seller and/or the Parent to comply with its obligations under clauses 4.3, 4.4, 4.5, 4.6, 4.7, 4.8, 4.9 or 4.10 or otherwise as a consequence of information on the Company Group or the Parent or its Affiliates that is required not being made available to AerCap, the Purchaser and/or any Governmental Authority.
4.13 Neither the Seller nor the Parent shall be in breach of any provision of this clause 4 in the event that the circumstances that would otherwise constitute a breach arise, directly or indirectly, as a result of a failure by AerCap and/or the Purchaser to comply with its obligations under clauses 4.1, 4.3¸ 4.5, 4.6, 4.7, 4.8, 4.10 or 4.11 or otherwise as a consequence of information on AerCap or the Purchaser or their respective Affiliates that is required not being made available to the Parent, the Seller and/or any Governmental Authority.
Appears in 1 contract
Samples: Share Purchase Agreement (American International Group Inc)
