Certain Governmental Approvals. (a) Subject to the terms and conditions set forth in this Agreement, each of the parties hereto shall use its reasonable best efforts (subject to, and in accordance with, Regulatory Law) to take, or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable under applicable Regulatory Laws to consummate and make effective the transactions contemplated by this Agreement, as promptly as practicable. (b) Without limiting the generality of the undertakings pursuant to Section 5.3(a) above: (i) Seller and Buyer shall, as promptly as practicable, but in no event later than (x) ten (10) Business Days after the date hereof, file the notification and report form pursuant to the HSR Act and (y) fifteen (15) Business Days after the date hereof, effect all other necessary notifications, or registrations to obtain the Required Antitrust Approvals, in each case as required for the transactions contemplated hereby; (ii) Seller and Buyer shall use reasonable best efforts to cooperate with each other in (A) determining whether any filings are required to be made with, or consents, permits, authorizations, waivers or approvals are required to be obtained from, any third parties or other Governmental Authorities under any other applicable Regulatory Law in connection with the execution and delivery of this Agreement and the consummation of the transactions contemplated by this Agreement and (B) timely making all such filings and timely seeking all such consents, permits, authorizations or approvals; (iii) Seller and Buyer shall use reasonable best efforts to make, as promptly as practicable following the date hereof, any filings or notifications with the State Department’s Directorate of Defense Trade Controls that are required under ITAR, including applicable notifications contemplated under 22 C.F.R. § 122.4. (iv) Seller and Buyer shall keep each other apprised of the status of matters relating to the completion of the transactions contemplated by this Agreement and promptly furnish the other with copies of notices or other communications (or, in the case of material oral communications, advise the other orally of such communications) between Seller or Buyer and their representatives and counsel, as the case may be, or any of their respective Subsidiaries, and any Governmental Authority with respect to such transactions. Seller and Buyer shall keep each other timely apprised of any inquiries or requests for additional information from any Governmental Authority pursuant to any Regulatory Law, and shall comply promptly with any such reasonable inquiry or request. Seller and Buyer shall permit counsel for the other party reasonable opportunity to review in advance, and consider in good faith the views of the other party in connection with, any proposed written communication to any Governmental Authority. Each of Seller and Buyer agrees not to participate in any substantive meeting or discussion, either in person or by telephone, with any Governmental Authority in connection with the transactions contemplated by this Agreement unless it consults with the other party in advance and, to the extent not prohibited by such Governmental Authority, gives the other party the opportunity to attend and participate. Neither party shall consent to any voluntary extension of any statutory deadline or waiting period or to any voluntary delay of the consummation of the transactions contemplated by this Agreement or withdraw its notification and report form pursuant to the HSR Act or any other filing made pursuant to any Regulatory Law unless the other party has given its prior written consent to such extension or delay; and (v) without limiting Section 5.3(b)(iv) above, each of Seller and Buyer, in the event that any permanent or preliminary injunction or other order is entered or becomes reasonably foreseeable to be entered in any proceeding that would make consummation of the acquisition of the FH Shares, the Acquired FH Assets or the other transactions contemplated hereby in accordance with the terms of this Agreement unlawful or that would prevent or delay consummation of the acquisition of the FH Shares, the Acquired FH Assets or the other transactions contemplated by this Agreement, shall use its reasonable best efforts necessary to vacate, modify or suspend such injunction or order so as to permit such consummation on a schedule as close as possible to that contemplated by this Agreement unless, by mutual agreement, Seller and Buyer decide that litigation is not in their respective best interests. (c) In the event that (i) any Non-Material Antitrust Approval of any Governmental Authority is not obtained on or prior to the Closing Date or (ii) there exists, at such time as the conditions to the Closing shall have been satisfied or waived (other than those conditions that are satisfied by action taken at the Closing, provided, that such conditions would be so satisfied), any Regulatory Law (except with respect to the Required Antitrust Approvals) that makes illegal or enjoins or prevents in any respect the consummation of the transactions contemplated by this Agreement (each of clauses (i) and (ii), a “Delayed Antitrust Approval”), then Seller and Buyer shall effect the Closing (including payment of the entire Preliminary Purchase Price), subject to the terms of this Agreement (including, but not limited to, Section 8.1(b)), with respect to all FH Shares, the Acquired FH Assets and Assumed Liabilities outside of the jurisdiction of any such Governmental Authority or such Regulatory Law; provided, however, that the obligations of the parties hereto set forth in this Section 5.3 shall continue with respect to each such Delayed Antitrust Approval until such Delayed Antitrust Approval is obtained, and upon receipt of such Delayed Antitrust Approval, the parties hereto shall effect the transfer of the affected FH Shares, Acquired FH Assets and Assumed Liabilities in accordance with this Agreement and the applicable Local Purchase Agreement. Each such transfer, upon occurrence, shall be retroactive to and be deemed to have occurred on the Closing Date. Furthermore, as of the Closing Date, Seller and Buyer shall, subject to applicable Law, enter into mutually agreeable alternative business arrangements consistent with the terms of this Agreement or other arrangements which provide Buyer with the net economic benefit or loss (after taking into account any adverse Tax consequences to Seller) of, and liability for, the affected FH Shares, the FH Assets and Assumed Liabilities from and after the Closing Date and continuing until each Delayed Antitrust Approval is obtained. Notwithstanding the foregoing, in the event that any Delayed Antitrust Approval has not been obtained within twenty-four (24) months of the Closing Date, Seller shall have the right at any time thereafter, in its sole discretion, to sell any of the affected FH Shares, the FH Assets or Assumed Liabilities to a third party at a price determined in good faith by Seller to be a commercially reasonable price, and upon consummation of any such sale, (x) Seller shall pay the proceeds of such sale to Buyer (provided that Seller may reduce such payment by an amount equal to its fees and expenses (or an estimate thereof) and any Taxes payable as a result of such sale) and (y) the obligations of the parties pursuant to this Section 5.3(c) (other than pursuant to the preceding clause (x)) with respect to such FH Shares, the FH Assets or Assumed Liabilities shall cease. (d) None of Buyer or the Subsidiaries of Buyer shall, and shall not cause any Person to, without the prior consent of Seller, acquire (whether via merger, consolidation, stock or asset purchase or otherwise), or enter into any definitive agreement to so acquire, any assets of or any equity in any other Person or any business or division thereof (excluding, for the avoidance of doubt, any acquisition of any goods or services in the ordinary course of business), unless that acquisition or agreement would not reasonably be expected to, in any material respect, (x) increase the risk of not obtaining any authorizations, consents, orders, declarations or approvals of any Governmental Authority necessary to consummate the transactions contemplated by this Agreement or the expiration or termination of any waiting period under any Regulatory Law; (y) increase the risk of any Governmental Authority entering an order prohibiting the consummation of the transactions contemplated by this Agreement, or materially increase the risk of not being able to remove any such order on appeal or otherwise; or (z) delay or prevent the consummation of the transactions contemplated by this Agreement. (e) Buyer shall use reasonable best efforts to cause the shares of Buyer Common Stock constituting the Buyer Stock Consideration to be approved for listing on the NYSE, with such listing to be effective as of the Closing, subject only to official notice of issuance.
Appears in 2 contracts
Samples: Purchase Agreement (Colfax CORP), Purchase Agreement (Circor International Inc)
Certain Governmental Approvals. (a) Subject to the terms and conditions set forth in this Agreement, each of the parties hereto Seller shall use its reasonable best efforts (subject to, and in accordance with, Regulatory Law) to take, or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable under applicable Regulatory Laws to consummate and make effective the transactions contemplated by this Agreement, as promptly as practicable.
(b) Without limiting the generality of the undertakings pursuant to Section 5.3(a) above:
(i) Seller Buyer and Buyer shall, as promptly as practicable, but in no event later than (x) ten (10) Business Days will use all commercially reasonable efforts after the date hereof, file the notification and report form pursuant to the HSR Act and (y) fifteen (15) Business Days after the date hereof, effect all other necessary notifications, or registrations Closing to obtain the Required Antitrust Approvalsunconditional approval by the MMS, in each case as required for the transactions contemplated hereby;
(ii) Seller and Buyer shall use reasonable best efforts to cooperate with each other in (A) determining whether any filings are required to be made with, or consents, permits, authorizations, waivers or approvals are required to be obtained from, any third parties or other Governmental Authorities under any other applicable Regulatory Law in connection with the execution and delivery of this Agreement BLM and the consummation SMB of the transactions contemplated by this Agreement assignments and (Bconveyances of lease(s) timely making all such filings attached hereto as Exhibits "B-1", "B-2", "B-4", "B-5", "B-6" and timely seeking all such consents, permits, authorizations or approvals;
(iii) Seller and Buyer shall use reasonable best efforts to make, as promptly as practicable following the date hereof, any filings or notifications with the State Department’s Directorate of Defense Trade Controls that are required under ITAR, including applicable notifications contemplated under 22 C.F.R. § 122.4.
(iv) Seller and Buyer shall keep each other apprised of the status of matters relating to the completion of the transactions contemplated by this Agreement and promptly furnish the other with copies of notices or other communications (or, in the case of material oral communications, advise the other orally of such communications) between Seller or Buyer and their representatives and counsel, as the case may be, or any of their respective Subsidiaries, and any Governmental Authority with respect to such transactions"B-7". Seller and Buyer shall keep each other timely apprised of any inquiries or requests for additional information from any Governmental Authority pursuant to any Regulatory Law, and shall comply promptly with any such reasonable inquiry or request. Seller and Buyer shall permit counsel for the other party reasonable opportunity to review in advance, and consider in good faith the views of the other party in connection with, any proposed written communication to any Governmental Authority. Each of Seller and Buyer agrees not to participate in any substantive meeting or discussion, either in person or by telephone, with any Governmental Authority in connection with the transactions contemplated by this Agreement unless it consults with the other party in advance and, to the extent not prohibited by such Governmental Authority, gives the other party the opportunity to attend and participate. Neither party shall consent to any voluntary extension of any statutory deadline or waiting period or to any voluntary delay of the consummation of the transactions contemplated by this Agreement or withdraw its notification and report form pursuant to the HSR Act or any other filing made pursuant to any Regulatory Law unless the other party has given its prior written consent to such extension or delay; and
(v) without limiting Section 5.3(b)(iv) above, each of Seller and Buyer, in the event that any permanent or preliminary injunction or other order is entered or becomes reasonably foreseeable to be entered in any proceeding that would make consummation of the acquisition of the FH Shares, the Acquired FH Assets or the other transactions contemplated hereby in accordance with the terms of this Agreement unlawful or that would prevent or delay consummation of the acquisition of the FH Shares, the Acquired FH Assets or the other transactions contemplated by this Agreement, shall use its reasonable best efforts necessary to vacate, modify or suspend such injunction or order so as to permit such consummation on a schedule as close as possible to that contemplated by this Agreement unless, by mutual agreement, Seller and Buyer decide that litigation is not in their respective best interests.
(c) In the event that (i) Buyer operates or is elected successor operator under the operating agreements applicable to any Non-Material Antitrust Approval of any Governmental Authority is not obtained on or prior the Leases, if applicable, Buyer also obligates itself to make application to the Closing Date MMS to qualify or continue (iiif any further qualification is necessary or required by MMS) there exists, at such time as the conditions to the Closing shall have been satisfied or waived (other than those conditions that are satisfied by action taken at the Closing, provided, that such conditions would be so satisfied), any Regulatory Law (except operator with respect to the Required Antitrust Approvals) that makes illegal or enjoins or prevents in any respect Assets, as well as for a right of use and easement as to the consummation of the transactions contemplated by this Agreement (each of clauses (ipipeline(s) and (ii), a “Delayed Antitrust Approval”), then Seller and platforms included in the Assets. Buyer shall effect take any actions reasonably required of Buyer by the Closing (MMS or any other regulatory agencies or Governmental Body to obtain all requisite regulatory approvals, including payment of the entire Preliminary Purchase Price), subject to the terms of this Agreement (including, but not limited to, Section 8.1(bthe purchase and posting of any and all bonds, supplemental bonds or other securities which may be required of Buyer pursuant to 30 CFR Parts 250 and 256 in excess of any existing lease, pipeline or area-wide bond(s)), . Until all of the governmental approvals with respect to all FH Shares, the Acquired FH Assets and Assumed Liabilities outside of the jurisdiction of any such Governmental Authority or such Regulatory Law; providedassignments described in this Section 17.1 are obtained, however, that the obligations following shall occur:
17.1.1 As necessary, Seller shall continue to hold record title to the Assets as nominee for Buyer;
17.1.2 Buyer's indemnity under Section 13.3.1 shall include any and all Claims, costs and expenses of any kind or character relating to such Assets accruing after Closing;
17.1.3 Seller shall act as Buyer's nominee but shall be authorized to act only upon and in accordance with Buyer's specific written instructions, and Seller shall have no authority, responsibility or discretion to perform any tasks or functions with respect to the parties hereto Assets other than those which are purely administrative or ministerial in nature, unless otherwise specifically requested and authorized by Buyer in writing; and
17.1.4 Buyer shall continue to maintain and provide at its cost the insurance coverages with minimum limits of liability as set forth in this Section 5.3 shall continue with respect to each such Delayed Antitrust Approval until such Delayed Antitrust Approval is obtained, and upon receipt 10.1.5 of such Delayed Antitrust Approval, the parties hereto shall effect the transfer of the affected FH Shares, Acquired FH Assets and Assumed Liabilities in accordance with this Agreement and the applicable Local Purchase Agreement. Each such transfer, upon occurrence, shall be retroactive to and be deemed to have occurred on the Closing Date. Furthermore, as of the Closing Date, Seller and Buyer shall, subject to applicable Law, enter into mutually agreeable alternative business arrangements consistent with the terms of this Agreement or other arrangements which provide Buyer with the net economic benefit or loss (after taking into account any adverse Tax consequences to Seller) of, and liability for, the affected FH Shares, the FH Assets and Assumed Liabilities from and after the Closing Date and continuing until each Delayed Antitrust Approval is obtained. Notwithstanding the foregoing, in the event that any Delayed Antitrust Approval has not been obtained within twenty-four (24) months of the Closing Date, Seller shall have the right at any time thereafter, in its sole discretion, to sell any of the affected FH Shares, the FH Assets or Assumed Liabilities to a third party at a price determined in good faith by Seller to be a commercially reasonable price, and upon consummation of any such sale, (x) Seller shall pay the proceeds of such sale to Buyer (provided that Seller may reduce such payment by an amount equal to its fees and expenses (or an estimate thereof) and any Taxes payable as a result of such sale) and (y) the obligations of the parties pursuant to this Section 5.3(c) (other than pursuant to the preceding clause (x)) with respect to such FH Shares, the FH Assets or Assumed Liabilities shall cease.
(d) None of Buyer or the Subsidiaries of Buyer shall, and shall not cause any Person to, without the prior consent of Seller, acquire (whether via merger, consolidation, stock or asset purchase or otherwise), or enter into any definitive agreement to so acquire, any assets of or any equity in any other Person or any business or division thereof (excluding, for the avoidance of doubt, any acquisition of any goods or services in the ordinary course of business), unless that acquisition or agreement would not reasonably be expected to, in any material respect, (x) increase the risk of not obtaining any authorizations, consents, orders, declarations or approvals of any Governmental Authority necessary to consummate the transactions contemplated by this Agreement or the expiration or termination of any waiting period under any Regulatory Law; (y) increase the risk of any Governmental Authority entering an order prohibiting the consummation of the transactions contemplated by this Agreement, or materially increase the risk of not being able to remove any such order on appeal or otherwise; or (z) delay or prevent the consummation of the transactions contemplated by this Agreement.
(e) Buyer shall use reasonable best efforts to cause the shares of Buyer Common Stock constituting the Buyer Stock Consideration to be approved for listing on the NYSE, with such listing to be effective as of the Closing, subject only to official notice of issuance.
Appears in 2 contracts
Samples: Purchase and Sale Agreement (Energy Partners LTD), Purchase and Sale Agreement (Energy Partners LTD)
Certain Governmental Approvals. (a) Subject to the terms and conditions set forth in this Agreement, each of the parties hereto Buyer shall use its reasonable best efforts (subject to, and in accordance with, Regulatory Law) after Closing to take, or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate with obtain the other parties in doing, all things necessary, proper or advisable under applicable Regulatory Laws to consummate and make effective unconditional approval by the transactions contemplated by this Agreement, as promptly as practicable.
(b) Without limiting the generality MMS of the undertakings pursuant to Section 5.3(a) above:
(i) Seller the Assignments of Record Title to Oil and Buyer shall, Gas Lease(s) in the form attached hereto as promptly as practicable, but in no event later than (x) ten (10) Business Days after the date hereof, file the notification and report form pursuant to the HSR Act and (y) fifteen (15) Business Days after the date hereof, effect all other necessary notifications, or registrations to obtain the Required Antitrust Approvals, in each case as required for the transactions contemplated hereby;
Exhibit C; (ii) Seller the Assignments of Oil and Buyer shall use reasonable best efforts to cooperate with each other Gas Lease Operating Rights in (A) determining whether any filings are required to be made with, or consents, permits, authorizations, waivers or approvals are required to be obtained from, any third parties or other Governmental Authorities under any other applicable Regulatory Law in connection with the execution form attached hereto as Exhibit D; and delivery of this Agreement and the consummation of the transactions contemplated by this Agreement and (B) timely making all such filings and timely seeking all such consents, permits, authorizations or approvals;
(iii) Seller and the Assignments of Rights of Way in the form attached hereto as Exhibit E. In the event Buyer shall use reasonable best efforts or its nominated operator is elected successor operator under the operating agreements applicable to make, as promptly as practicable following the date hereof, any filings or notifications with the State Department’s Directorate of Defense Trade Controls that are required under ITAR, including applicable notifications contemplated under 22 C.F.R. § 122.4.
(iv) Seller and Buyer shall keep each other apprised of the status of matters relating Leases, Buyer also obligates itself to ensure that it or the successor operator makes application to the completion of the transactions contemplated by this Agreement and promptly furnish the other with copies of notices or other communications (or, in the case of material oral communications, advise the other orally of such communications) between Seller or Buyer and their representatives and counsel, MMS to qualify as the case may be, or any of their respective Subsidiaries, and any Governmental Authority operator with respect to such transactionsthat portion of the Assets it will operate. Seller and Buyer shall keep each other timely apprised take any actions reasonably required of any inquiries or requests for additional information from any Governmental Authority pursuant to any Regulatory Law, and shall comply promptly with any such reasonable inquiry or request. Seller and Buyer shall permit counsel for it by the other party reasonable opportunity to review in advance, and consider in good faith the views of the other party in connection with, any proposed written communication to any Governmental Authority. Each of Seller and Buyer agrees not to participate in any substantive meeting or discussion, either in person or by telephone, with any Governmental Authority in connection with the transactions contemplated by this Agreement unless it consults with the other party in advance and, to the extent not prohibited by such Governmental Authority, gives the other party the opportunity to attend and participate. Neither party shall consent to any voluntary extension of any statutory deadline or waiting period or to any voluntary delay of the consummation of the transactions contemplated by this Agreement or withdraw its notification and report form pursuant to the HSR Act MMS or any other filing made pursuant regulatory agencies to any Regulatory Law unless the other party has given its prior written consent to such extension or delay; and
(v) without limiting Section 5.3(b)(iv) aboveobtain all requisite regulatory approvals, each of Seller and Buyer, in the event that any permanent or preliminary injunction or other order is entered or becomes reasonably foreseeable to be entered in any proceeding that would make consummation of the acquisition of the FH Shares, the Acquired FH Assets or the other transactions contemplated hereby in accordance with the terms of this Agreement unlawful or that would prevent or delay consummation of the acquisition of the FH Shares, the Acquired FH Assets or the other transactions contemplated by this Agreement, shall use its reasonable best efforts necessary to vacate, modify or suspend such injunction or order so as to permit such consummation on a schedule as close as possible to that contemplated by this Agreement unless, by mutual agreement, Seller and Buyer decide that litigation is not in their respective best interests.
(c) In the event that (i) any Non-Material Antitrust Approval of any Governmental Authority is not obtained on or prior to the Closing Date or (ii) there exists, at such time as the conditions to the Closing shall have been satisfied or waived (other than those conditions that are satisfied by action taken at the Closing, provided, that such conditions would be so satisfied), any Regulatory Law (except with respect to the Required Antitrust Approvals) that makes illegal or enjoins or prevents in any respect the consummation of the transactions contemplated by this Agreement (each of clauses (i) and (ii), a “Delayed Antitrust Approval”), then Seller and Buyer shall effect the Closing (including payment of the entire Preliminary Purchase Price), subject to the terms of this Agreement (including, but not limited to, Section 8.1(bthe purchase and posting of any and all bonds, supplemental bonds or other securities which may be required of it pursuant to OPA and 30 C.F.R §§ 250.7, 256.58, 256.59, and 256.61 in excess of any existing lease, pipeline or area-wide bond(s)), . Until the governmental approval with respect to all FH Shares, the Acquired FH Assets and Assumed Liabilities outside of the jurisdiction of any such Governmental Authority or such Regulatory Law; providedan assignment described in this Section 15.18 is obtained, however, that the obligations of the parties hereto set forth in this Section 5.3 following shall occur:
(a) Seller shall continue to hold the operating rights and record title to the applicable Assets as nominee for Buyer;
(b) Buyer’s indemnity under Section 13.3 shall include any and all claims, expenses of any kind or character relating to the Assets accruing after the Effective Time including but not limited to any bonding or regulatory costs incurred by Seller;
(c) Seller shall act as Buyer’s nominee with respect to each such Delayed Antitrust Approval until such Delayed Antitrust Approval is obtained, the Assets but shall be authorized to act only upon and upon receipt of such Delayed Antitrust Approval, the parties hereto shall effect the transfer of the affected FH Shares, Acquired FH Assets and Assumed Liabilities in accordance with Buyer’s specific written instructions, and Seller shall have no authority, responsibility or discretion to perform any tasks or functions with respect to the Assets other than those which are purely administrative or ministerial in nature, unless otherwise specifically requested and authorized by Buyer in writing; and
(d) Buyer shall continue to maintain and provide at its cost the insurance coverages as reviewed by Seller under Section 8.7 of this Agreement and the applicable Local Purchase Agreement. Each such transferIf the MMS does not, upon occurrence, shall be retroactive to and be deemed to have occurred on the Closing Date. Furthermore, as of within twelve months from the Closing Date, Seller approve all (i) the Assignments of Record Title of the Leases into Buyer, (ii) the Assignments of Oil and Buyer shall, subject to applicable Law, enter Gas Lease Operating Rights into mutually agreeable alternative business arrangements consistent with the terms of this Agreement or other arrangements which provide Buyer with the net economic benefit or loss (after taking into account any adverse Tax consequences to Seller) ofBuyer, and liability for, the affected FH Shares, the FH Assets and Assumed Liabilities from and after the Closing Date and continuing until each Delayed Antitrust Approval is obtained. Notwithstanding the foregoing, in the event that any Delayed Antitrust Approval has not been obtained within twenty-four (24) months of the Closing Date, Seller shall have the right at any time thereafter, in its sole discretion, to sell any of the affected FH Shares, the FH Assets or Assumed Liabilities to a third party at a price determined in good faith by Seller to be a commercially reasonable price, and upon consummation of any such sale, (x) Seller shall pay the proceeds of such sale to Buyer (provided that Seller may reduce such payment by an amount equal to its fees and expenses (or an estimate thereof) and any Taxes payable as a result of such sale) and (yiii) the obligations Assignments of the parties pursuant to this Section 5.3(c) (other than pursuant to the preceding clause (x)) with respect to such FH SharesRights of Way into Buyer, the FH Assets or Assumed Liabilities shall cease.
(d) None of Buyer or the Subsidiaries of Buyer shall, and shall not cause any Person to, without the prior consent of Seller, acquire (whether via merger, consolidation, stock or asset purchase or otherwise), or enter into any definitive agreement to so acquire, any assets of or any equity in any other Person or any business or division thereof (excluding, for the avoidance of doubt, any acquisition of any goods or services in the ordinary course of business), unless that acquisition or agreement would not reasonably be expected to, in any material respect, (x) increase the risk of not obtaining any authorizations, consents, orders, declarations or approvals of any Governmental Authority necessary to consummate the transactions contemplated by this Agreement or the expiration or termination of any waiting period under any Regulatory Law; (y) increase the risk of any Governmental Authority entering an order prohibiting the consummation of the transactions contemplated by this Agreement, or materially increase the risk of not being able to remove any such order on appeal or otherwise; or (z) delay or prevent the consummation of the transactions contemplated by this Agreement.
(e) Buyer shall use reasonable best efforts to cause the shares of Buyer Common Stock constituting the Buyer Stock Consideration to be approved for listing on the NYSE, with such listing to be effective as of the Closing, subject only to official notice of issuance.then:
Appears in 2 contracts
Samples: Purchase and Sale Agreement (Houston Exploration Co), Purchase and Sale Agreement (Houston Exploration Co)
Certain Governmental Approvals. (a) Subject to the terms and conditions set forth in this Agreement, each of the parties hereto shall Parties will use its reasonable best efforts (subject to, and in accordance with, Regulatory Law) to take, take (or cause to be taken, ) all actions, and to do, do (or cause to be done), and to assist and cooperate with the other parties Parties in doing, all things necessary, proper proper, or advisable under applicable Regulatory Laws to consummate and make effective the transactions contemplated by this AgreementContemplated Transactions, as promptly as practicable, including (i) obtaining all necessary actions, waivers, consents and approvals from Governmental Authorities and the making of all necessary registrations and filings and the taking of all steps as may be necessary to obtain an approval or waiver from, or to avoid an Action by, any Governmental Authority in connection with any Regulatory Law, (ii) complying with all legal requirements that may be imposed on it with respect to this Agreement or the Contemplated Transactions, (iii) litigating (or defending) against any administrative or judicial action or proceeding (including any proceeding seeking a temporary restraining order or preliminary injunction and any appeal) challenging the Contemplated Transactions as violative of any Law, and (iv) executing and delivering any additional instruments necessary to consummate the Contemplated Transactions.
(b) Without limiting the generality of the undertakings pursuant to Section 5.3(a) above:5.4(a):
(i) Seller The Company, Holdco, Sellers, and Buyer shall, as promptly as practicable, but in no event later than (x) ten (10) Business Days after the date hereof, file the notification and report form pursuant to the HSR Act and (y) fifteen (15) Business Days after the date hereof, will effect all other necessary notifications, notifications or registrations to obtain the Required Antitrust ApprovalsApprovals as promptly as practicable, and, with respect to the HSR Act, no later than five (5) Business Days after the date of this Agreement, in each case as required for the transactions contemplated herebyContemplated Transactions;
(ii) Seller The Company, Holdco, Sellers, and Buyer shall will use reasonable best efforts to cooperate with each other in (A) determining whether any filings are required to be made with, or consents, permits, authorizations, waivers or approvals are required to be obtained from, any third parties or other Governmental Authorities under any other applicable Regulatory Law in connection with the execution and delivery of this Agreement and the consummation of the transactions contemplated by this Agreement Contemplated Transactions and (B) timely making all such filings and timely seeking all such consents, permits, authorizations or approvalsapprovals (including requesting early termination of the applicable waiting periods under the HSR Act);
(iii) Seller The Company, Xxxxxx, Sellers, and Buyer shall use reasonable best efforts to make, as promptly as practicable following the date hereof, any filings or notifications with the State Department’s Directorate of Defense Trade Controls that are required under ITAR, including applicable notifications contemplated under 22 C.F.R. § 122.4.
(iv) Seller and Buyer shall Xxxxx will keep each other apprised of the status of matters relating to the completion of the transactions contemplated Contemplated Transactions and, to the extent permitted by this Agreement and Law, promptly furnish the each other with copies of notices or other communications (or, in the case of material oral communications, advise the other orally provide written summaries of such communications) between Seller or among the Company, Holdco, Sellers, or Buyer and or any of their representatives and counselRepresentatives, as the case may be, or any of their respective Subsidiaries, and any Governmental Authority with respect to such transactionsContemplated Transactions. Seller The Company, Holdco, Sellers, and Buyer shall will keep each other timely apprised of any inquiries or requests for additional information from any Governmental Authority pursuant to any Regulatory Law, Law and shall will comply promptly with any such reasonable inquiry or request. Seller The Company, Holdco, Sellers, and Buyer shall Xxxxx will, to the extent permitted by Law, permit counsel for the other party reasonable Party or Parties the opportunity to review in advance, and will consider in good faith the views of the other party Party or Parties in connection with, any proposed written communication to any Governmental Authority. Each of Seller the Company, Xxxxxx, Sellers, and Buyer Xxxxx agrees not to participate in any substantive meeting or discussion, either in person or by telephone, with any Governmental Authority in connection with the transactions contemplated by this Agreement Contemplated Transactions unless it consults with the other party Parties in advance and, to the extent not prohibited by such Governmental Authority, gives the other party Parties the opportunity to attend and participate. Neither party Without limiting the foregoing, neither Buyer, the Company, Holdco, Sellers nor their respective Affiliates shall consent to take any voluntary extension action that has or may have the effect of extending any statutory deadline or waiting period or comparable period under any Regulatory Law or enter into any agreement with any Governmental Authority not to any voluntary delay consummate the Contemplated Transactions, except with the prior written consent of the consummation other Parties. No Party will be required to share with any other Party, other than on an outside counsel only basis, any competitively sensitive information or information relating to valuation. Further, Buyer shall not take any action that may reasonably have the effect of delaying, impairing, or impeding the expiration or early termination of the transactions contemplated by this Agreement or withdraw its notification and report form pursuant to waiting period under the HSR Act or any other filing made pursuant to any Regulatory Law unless the other party has given its prior written consent to such extension or delay; and
(v) without limiting Section 5.3(b)(iv) above, each of Seller and Buyer, in the event that any permanent or preliminary injunction or other order is entered or becomes reasonably foreseeable to be entered in any proceeding that would make consummation of the acquisition of the FH Shares, the Acquired FH Assets or the other transactions contemplated hereby in accordance with the terms of this Agreement unlawful or that would prevent or delay consummation of the acquisition of the FH Shares, the Acquired FH Assets or the other transactions contemplated by this Agreement, shall use its reasonable best efforts necessary to vacate, modify or suspend such injunction or order so as to permit such consummation on a schedule as close as possible to that contemplated by this Agreement unless, by mutual agreement, Seller and Buyer decide that litigation is not in their respective best interests.
(c) In the event that (i) any Non-Material Required Antitrust Approval of any from a Governmental Authority is not obtained on or prior to the Closing Date or (ii) there existsAuthority, at such time as the conditions to the Closing shall have been satisfied or waived (other than those conditions that are satisfied by action taken at the Closing, provided, that such conditions would be so satisfied), any Regulatory Law (except with respect to the Required Antitrust Approvals) that makes illegal or enjoins or prevents in any respect the consummation of the transactions contemplated by this Agreement (each of clauses (i) and (ii), a “Delayed Antitrust Approval”), then Seller and Buyer shall effect the Closing (including payment of the entire Preliminary Purchase Price), subject to the terms of this Agreement (including, but not limited to, Section 8.1(b)), with respect acquiring or agreeing to all FH Shares, acquire the Acquired FH Assets and Assumed Liabilities outside of the jurisdiction entities or assets of any such other business which competes with the Company;
(iv) If an action is threatened or instituted by any Governmental Authority or such Regulatory Law; provided, however, that the obligations of the parties hereto set forth in this Section 5.3 shall continue with respect to each such Delayed Antitrust Approval until such Delayed Antitrust Approval is obtained, and upon receipt of such Delayed Antitrust Approval, the parties hereto shall effect the transfer of the affected FH Shares, Acquired FH Assets and Assumed Liabilities in accordance with this Agreement and the applicable Local Purchase Agreement. Each such transfer, upon occurrence, shall be retroactive to and be deemed to have occurred on the Closing Date. Furthermore, as of the Closing Date, Seller and Buyer shall, subject to applicable Law, enter into mutually agreeable alternative business arrangements consistent with the terms of this Agreement or other arrangements which provide Buyer with the net economic benefit or loss (after taking into account any adverse Tax consequences to Seller) of, and liability for, the affected FH Shares, the FH Assets and Assumed Liabilities from and after the Closing Date and continuing until each Delayed Antitrust Approval is obtained. Notwithstanding the foregoing, in the event that any Delayed Antitrust Approval has not been obtained within twenty-four (24) months of the Closing Date, Seller shall have the right at any time thereafter, in its sole discretion, to sell any of the affected FH Shares, the FH Assets or Assumed Liabilities to a third party at a price determined in good faith by Seller to be a commercially reasonable price, and upon consummation of any such sale, (x) Seller shall pay the proceeds of such sale to Buyer (provided that Seller may reduce such payment by an amount equal to its fees and expenses (or an estimate thereof) and any Taxes payable as a result of such sale) and (y) the obligations of the parties pursuant to this Section 5.3(c) (other than pursuant to the preceding clause (x)) with respect to such FH Shares, the FH Assets or Assumed Liabilities shall cease.
(d) None of Buyer or the Subsidiaries of Buyer shall, and shall not cause any Person to, without the prior consent of Seller, acquire (whether via merger, consolidation, stock or asset purchase or otherwise), or enter into any definitive agreement to so acquire, any assets of or any equity in any other Person challenging the validity or any business legality or division thereof (excluding, for the avoidance of doubt, any acquisition of any goods or services in the ordinary course of business), unless that acquisition or agreement would not reasonably be expected to, in any material respect, (x) increase the risk of not obtaining any authorizations, consents, orders, declarations or approvals of any Governmental Authority necessary seeking to consummate the transactions contemplated by this Agreement or the expiration or termination of any waiting period under any Regulatory Law; (y) increase the risk of any Governmental Authority entering an order prohibiting restrain the consummation of the transactions contemplated by this Agreement, or materially increase the risk of not being able to remove any such order on appeal or otherwise; or (z) delay or prevent the consummation of the transactions contemplated by this Agreement.
(e) Buyer shall use its reasonable best efforts to cause avoid, resist, resolve or, if necessary, defend such action, including exhausting all available administrative and judicial appeals, and shall afford Sellers, Holdco, and the shares of Buyer Common Stock constituting Company a reasonable opportunity to participate therein. The Sellers, Holdco and the Company shall diligently assist and cooperate with the Buyer Stock Consideration in preparing and filing any and all written communications that are to be approved submitted to any Governmental Authorities in connection with the transactions contemplated hereby and in obtaining any governmental or third-party consents, waivers, authorizations or approvals which may be required by the Parties to be obtained in connection with the transactions contemplated hereby, which assistance and cooperation shall include timely furnishing to the Buyer all information concerning the Company and/or its Affiliates that counsel to the Buyer reasonably determines is required to be included in such documents or would be helpful in obtaining such required consent, waiver, authorization or approval. Each Party shall, and shall cause its Affiliates to, coordinate with the other Parties regarding the development and implementation of any strategy with respect to obtaining the Required Antitrust Approvals (including the expiration or termination of all applicable waiting periods under the HSR Act) including, but not limited to, (v) the process and strategy for listing responding to any formal or informal request for additional information and documents (including any second request issued under the HSR Act), (w) the content of, and analysis contained in, any filings, notifications or communications (whether written or oral) with any Governmental Authority, (x) whether to “pull-and-refile,” pursuant to 16 C.F.R. § 803.12, any filing made under the HSR Act, (y) whether to extend or restart the waiting, review or investigation period under any applicable Regulatory Law, and (z) whether to offer, negotiate or enter into any commitment or agreement, including any timing agreement, with any Governmental Authority to delay the consummation of, to extend the review or investigation period applicable to, or not to close before a certain date, any of the Contemplated Transactions.
(v) Notwithstanding anything to the contrary in this Agreement (including this Section 5.4), none of the parties or any of its respective Affiliates shall be required to, and the Company may not, without the prior written consent of Buyer, become subject to, consent to or offer or agree to, or otherwise take any action with respect to, any requirement, condition, limitation, understanding, agreement or order to (A) sell, license, assign, transfer, divest, hold separate or otherwise dispose of any assets, business or any portion of business of the Company, Buyer or any Buyer Subsidiary of any of the foregoing, (B) conduct, restrict, operate, invest or otherwise change the assets, the business or any portion of the business of the Company, Buyer or any Buyer Subsidiary in any manner or (C) impose any restriction, requirement or limitation on the NYSE, with such listing to be effective as operation of the Closingbusiness or portion of the business of the Company, Buyer or any Buyer Subsidiary; provided that, if requested in writing by Buyer, then the Company will become subject to, consent to or offer or agree to, or otherwise take any action with respect to, any such requirement, condition, limitation, understanding, agreement or order so long as such requirement, condition, limitation, understanding, agreement or order is only binding on the Company if the Closing occurs.
(vi) Except as otherwise set forth in this Agreement, including this Section 5.4, nothing contained in this Agreement shall give Buyer or any of its Affiliates, directly or indirectly, the right to official notice control, supervise or direct the operations of issuancethe Business, Company, Holdco, or any Seller prior to the Closing Date. Prior to the Closing Date, the Company shall exercise, consistent with the terms and conditions of this Agreement, complete unilateral control, supervision and direction over the Business; and
(vii) Buyer shall pay, at the time of filing, all applicable fees relating to the Required Antitrust Approvals.
Appears in 1 contract
Samples: Securities Purchase Agreement (Masonite International Corp)
Certain Governmental Approvals. (a) Subject to the terms and conditions set forth in this AgreementAgreement and including Section 5.1(b)(vi) below, each of the parties hereto Fermat and Descartes shall use its their respective reasonable best efforts (subject to, and in accordance with, Regulatory LawAntitrust Laws) to take, or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable under any applicable Regulatory Laws Antitrust Law to consummate and make effective in the most expeditious manner possible the Acquisitions and the other transactions contemplated by this Agreement, including (i) the preparation and filing of all forms, registrations and notices required to be filed to consummate the Acquisitions and the other transactions contemplated by this Agreement, (ii) subject to Section 5.1(b)(vi), taking all actions necessary to obtain (and cooperating with each other in obtaining) any Approval of any third party, including any Governmental Entity (which actions shall include furnishing all information as promptly as practicablemay be required in connection with Approvals under Antitrust Laws) required to be obtained or made by Fermat or Descartes or any of their respective Subsidiaries in connection with the Acquisitions or the other transactions contemplated by this Agreement, and (iii) subject to Section 5.1(b)(vi), the execution and delivery of any additional instruments necessary to consummate the Acquisitions and the other transactions contemplated by this Agreement and to fully carry out the purposes of this Agreement.
(b) Without limiting the generality of the undertakings undertaking pursuant to Section 5.3(a5.1(a) above:
(i) Seller Fermat and Buyer Descartes shall each keep the other apprised of the status of matters relating to the completion of the Acquisitions and the other transactions contemplated by this Agreement and work cooperatively in connection with obtaining all required Ag Regulatory Approvals and H&N Regulatory Approvals. In that regard, subject to the Non-Disclosure Agreement and Section 5.4, each party shall promptly consult with the other party to this Agreement to provide any necessary information with respect to (and, in the case of correspondence, provide the other party (or their counsel) copies of) all filings made by such party with any Governmental Entity or any other information supplied by such party to, or correspondence with, a Governmental Entity in connection with this Agreement, the Acquisitions and the other transactions contemplated by this Agreement. Subject to the Non-Disclosure Agreement and Section 5.4 of this Agreement, each party shall promptly inform the other party, and if in writing, furnish the other party with copies 1414958.12A-NYCSR03A - MSW of (or, in the case of oral communications, advise the other party orally and in writing of) any communication from or with any Governmental Entity regarding the Acquisitions and the other transactions contemplated by this Agreement, and permit the other party to review and discuss in advance, and consider in good faith the views of the other party in connection with, any proposed communication (whether written or oral) with any such Governmental Entity. If either party or any Representative of such party receives a request for additional information or documentary material from any Governmental Entity with respect to either of the Acquisitions or the other transactions contemplated by this Agreement, then such party will use its reasonable best efforts to make, or cause to be made, promptly and after consultation with the other party, an appropriate response in compliance with such request. Neither party hereto nor its Representatives shall participate in any substantive meeting or discussion with any Governmental Entity or representative thereof in connection with this Agreement, either of the Acquisitions or any of the other transactions contemplated by this Agreement (or make oral submissions at meetings or in telephone or other conversations) unless it consults with the other party in advance and, to the extent not prohibited by such Governmental Entity, gives the other party the opportunity to attend and participate thereat. Subject to the Non-Disclosure Agreement and Section 5.4, each party shall furnish the other party with copies of all correspondence, filings and communications (and memoranda setting forth the substance thereof) between it and any such Governmental Entity with respect to this Agreement, either of the Acquisitions or any of the other transactions contemplated by this Agreement, and furnish the other party with such necessary information and reasonable assistance as the other party may reasonably request in connection with its preparation of filings or submissions of information to any such Governmental Entity. Fermat and Descartes may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section 5.1 as “outside counsel only.” Such materials and the information contained therein shall be given only to the outside legal counsel of the recipient and will 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 (Fermat or Descartes, as the case may be); provided that materials provided pursuant to this Section 5.1(b) may be redacted (i) to remove references concerning the valuation of or future plans for the Ag Business or the H&N Business, as applicable, (ii) as necessary to comply with contractual obligations, and (iii) as necessary to address reasonable privilege concerns.
(ii) Fermat and Descartes shall, as promptly as practicable, but in no event later than (xA) ten fifteen (1015) Business Days after the date hereof, file the notification and report form pursuant to the HSR Act and (yB) fifteen as promptly as reasonably practicable (15and in any event within twenty (20) Business Days Days) after the date hereof, effect submit all other necessary notificationsnotifications (in final form or, where applicable, draft form) or registrations to obtain the Required Antitrust Ag Regulatory Approvals and H&N Regulatory Approvals, in each case as required for the transactions contemplated hereby;; 1414958.12A-NYCSR03A - MSW
(iiiii) Seller Fermat and Buyer Descartes shall use reasonable best efforts to cooperate with each other in (A) determining whether any filings are required to be made with, or consents, permits, authorizations, waivers or approvals are required to be obtained from, any third parties or other Governmental Authorities Entities under any other applicable Regulatory Antitrust Law in connection with the execution and delivery of this Agreement and the consummation of the transactions contemplated by this Agreement (including any post-Closing filings) and (B) timely making all such filings and timely seeking all such consents, permits, authorizations or approvals;
(iiiiv) Seller Each of Fermat and Buyer Descartes shall use their respective reasonable best efforts to makeresolve such objections, if any, as promptly as practicable following may be asserted by any Governmental Entity with respect to the date hereofAg Acquisition, the H&N Acquisition, or any filings or notifications with the State Department’s Directorate of Defense Trade Controls that are required under ITAR, including applicable notifications contemplated under 22 C.F.R. § 122.4.
(iv) Seller and Buyer shall keep each other apprised of the status of matters relating other transactions contemplated by this Agreement under any Antitrust Laws. In connection therewith, if any Proceeding, audit, review, inquiry, examination, or investigation (“Action”) is instituted (or threatened to the completion be instituted) challenging any of the transactions contemplated by this Agreement as violative of any Antitrust Laws, each of Fermat and promptly furnish Descartes shall cooperate and use their respective reasonable best efforts to vigorously contest and resist any such Action, and to have vacated, lifted, reversed, or overturned any Judgment whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents, or restricts consummation of the other with copies of notices or other communications (orAg Acquisition, in the case of material oral communications, advise the other orally of such communications) between Seller or Buyer and their representatives and counsel, as the case may beH&N Acquisition, or any of their respective Subsidiaries, and any Governmental Authority with respect to such transactions. Seller and Buyer shall keep each other timely apprised of any inquiries or requests for additional information from any Governmental Authority pursuant to any Regulatory Law, and shall comply promptly with any such reasonable inquiry or request. Seller and Buyer shall permit counsel for the other party transactions contemplated by this Agreement, including by vigorously pursuing all available avenues of administrative and judicial appeal.
(v) Fermat shall, at Fermat’s sole cost, use its reasonable opportunity best efforts to review in advancetake, and consider in good faith the views of the other party in connection withor cause to be taken, any proposed written communication and all actions and do, or cause to be done, any Governmental Authority. Each of Seller and Buyer agrees not all things necessary, proper or advisable to participate in any substantive meeting or discussionavoid, either in person or by telephone, with any Governmental Authority eliminate and resolve each and every impediment and obtain all Ag Regulatory Approvals in connection with the transactions contemplated by this Agreement unless it consults consummation of the Ag Acquisition, as promptly as practicable, and all H&N Regulatory Approvals in connection with the consummation of the H&N Acquisition, as promptly as practicable. Notwithstanding the foregoing, Fermat shall proffer to, and shall, and shall cause its Subsidiaries to, (A) sell or otherwise dispose of, or hold separate and agree to sell or otherwise dispose of specific assets or categories of assets or businesses constituting the Acquired Ag Assets or any other party in advance assets or businesses now owned or presently or hereafter sought to be acquired by Fermat or its Subsidiaries; (B) terminate any existing relationships and contractual rights and obligations; (C) amend or terminate such existing licenses or other intellectual property agreements and enter into such new licenses or other intellectual property agreements (and, in each case, enter into agreements with the relevant Governmental Entity giving effect thereto); (D) take any and all actions and make any and all behavioral commitments, whether or not they limit or modify Fermat’s or its Subsidiaries’ rights of ownership in, or ability to conduct the business of, one or more of its or their operations, divisions, businesses, product lines, customers or assets, including, after the Closing, the Ag Business or any of the Acquired Ag Assets; and (E) enter into agreements, including with the relevant Governmental Entity, giving effect to the extent not prohibited by foregoing clauses (A) through (D), in each case as promptly as practicable (but in any event prior to the Outside Date) 1414958.12A-NYCSR03A - MSW after it is determined that such Governmental Authority, gives the other party the opportunity action is necessary to attend and participate. Neither party shall consent to any voluntary extension of any statutory deadline or waiting period or to any voluntary delay of the obtain approval for consummation of the transactions contemplated by this Agreement by any Governmental Entity. In furtherance of the foregoing, Fermat shall, and shall cause its Subsidiaries to, keep Descartes fully informed of all matters, discussions and activities relating to any of the matters described in or withdraw its notification and report form pursuant contemplated by clauses (A) through (E) of this Section 5.1(b)(v);
(vi) Without limiting Section 5.1(b)(v) in any respect, subject to the HSR Act or any other filing made pursuant to any Regulatory Law unless the other party has given its prior written consent to such extension or delay; and
(v) without limiting Section 5.3(b)(iv) above, each of Seller and Buyer, proviso in the event that any permanent or preliminary injunction or other order is entered or becomes reasonably foreseeable to be entered in any proceeding that would make consummation of the acquisition of the FH Sharesnext succeeding sentence, the Acquired FH Assets or the other transactions contemplated hereby in accordance with the terms of this Agreement unlawful or that would prevent or delay consummation of the acquisition of the FH SharesDescartes shall, the Acquired FH Assets or the other transactions contemplated by this Agreementat Descartes’s sole cost, shall use its reasonable best efforts necessary to vacatetake, or cause to be taken, any and all actions and do, or cause to be done, any and all things necessary, proper or advisable to avoid, eliminate and resolve each and every impediment and obtain all H&N Regulatory Approvals in connection with the consummation of the H&N Acquisition, as promptly as practicable, and all Ag Regulatory Approvals in connection with the consummation of the Ag Acquisition, as promptly as practicable. In furtherance of the foregoing, Descartes shall proffer to, and shall, and shall cause its Subsidiaries to, (A) sell or otherwise dispose of, or hold separate and agree to sell or otherwise dispose of specific assets or categories of assets or businesses constituting the Acquired H&N Assets or any other assets or businesses now owned or presently or hereafter sought to be acquired by Descartes or its Subsidiaries; (B) terminate any existing relationships and contractual rights and obligations; (C) amend or terminate such existing licenses or other intellectual property agreements and enter into such new licenses or other intellectual property agreements (and, in each case, enter into agreements with the relevant Governmental Entity giving effect thereto); (D) take any and all actions and make any and all behavioral commitments, whether or not they limit or modify Descartes’s or suspend such injunction its Subsidiaries’ rights of ownership in, or order so ability to conduct the business of, one or more of its or their operations, divisions, businesses, product lines, customers or assets, including, after the Closing, the H&N Business or any of the Acquired H&N Assets; and (E) enter into agreements, including with the relevant Governmental Entity, giving effect to the foregoing clauses (A) through (D), in each case as to permit such consummation on a schedule promptly as close as possible to that contemplated by this Agreement unless, by mutual agreement, Seller and Buyer decide that litigation is not practicable (but in their respective best interests.
(c) In the any event that (i) any Non-Material Antitrust Approval of any Governmental Authority is not obtained on or prior to the Closing Date or (iiOutside Date) there exists, at such time as the conditions to the Closing shall have been satisfied or waived (other than those conditions that are satisfied by action taken at the Closing, provided, after it is determined that such conditions would be so satisfied), any Regulatory Law (except with respect action is necessary to the Required Antitrust Approvals) that makes illegal or enjoins or prevents in any respect the obtain approval for consummation of the transactions contemplated by this Agreement by any Governmental Entity (each of the actions described in clauses (iA) and through (iiE), a collectively, the (“Delayed Antitrust ApprovalH&N Divestiture Actions”), then Seller and Buyer shall effect the Closing (including payment of the entire Preliminary Purchase Price), subject to the terms of this Agreement (including, but not limited to, Section 8.1(b)), with respect to all FH Shares, the Acquired FH Assets and Assumed Liabilities outside of the jurisdiction of any such Governmental Authority or such Regulatory Law; provided, however, that the obligations in no event shall Descartes or any of the parties hereto set forth in this Section 5.3 shall continue its Subsidiaries be required to take any H&N Divestiture Action if such H&N Divestiture Action, taken together with all other H&N Divestiture Actions undertaken with respect to each the matters contemplated by this Section 5.1(b)(vi) (and not undertaken with respect to the Ag Acquisition or in connection with obtaining any Ag Regulatory Approvals) would reasonably be likely to result in the one-year loss of revenues to Descartes, DowDuPont Inc., their respective Subsidiaries or the H&N Business (as measured by annual revenues in the fiscal year ended December 31, 2016) in excess of $350 million in the aggregate (such Delayed Antitrust Approval until such Delayed Antitrust Approval is obtaineda result, and upon receipt a (“Substantial Detriment”). In furtherance of such Delayed Antitrust Approval, the parties hereto shall effect the transfer of the affected FH Shares, Acquired FH Assets and Assumed Liabilities in accordance with this Agreement and the applicable Local Purchase Agreement. Each such transfer, upon occurrence, shall be retroactive to and be deemed to have occurred on the Closing Date. Furthermore, as of the Closing Date, Seller and Buyer shall, subject to applicable Law, enter into mutually agreeable alternative business arrangements consistent with the terms of this Agreement or other arrangements which provide Buyer with the net economic benefit or loss (after taking into account any adverse Tax consequences to Seller) of, and liability for, the affected FH Shares, the FH Assets and Assumed Liabilities from and after the Closing Date and continuing until each Delayed Antitrust Approval is obtained. Notwithstanding the foregoing, in the event that any Delayed Antitrust Approval has not been obtained within twenty-four (24) months of the Closing Date, Seller shall have the right at any time thereafter, in its sole discretion, to sell any of the affected FH Shares, the FH Assets or Assumed Liabilities to a third party at a price determined in good faith by Seller to be a commercially reasonable price, and upon consummation of any such sale, (x) Seller shall pay the proceeds of such sale to Buyer (provided that Seller may reduce such payment by an amount equal to its fees and expenses (or an estimate thereof) and any Taxes payable as a result of such sale) and (y) the obligations of the parties pursuant to this Section 5.3(c) (other than pursuant to the preceding clause (x)) with respect to such FH Shares, the FH Assets or Assumed Liabilities shall cease.
(d) None of Buyer or the Subsidiaries of Buyer Descartes shall, and shall not cause any Person its Subsidiaries to, without keep Fermat fully informed of all matters, 1414958.12A-NYCSR03A - MSW discussions and activities relating to any of the prior consent of Seller, acquire (whether via merger, consolidation, stock matters described in or asset purchase or otherwise), or enter into any definitive agreement to so acquire, any assets of or any equity in any other Person or any business or division thereof (excluding, for the avoidance of doubt, any acquisition of any goods or services in the ordinary course of business), unless that acquisition or agreement would not reasonably be expected to, in any material respect, (x) increase the risk of not obtaining any authorizations, consents, orders, declarations or approvals of any Governmental Authority necessary to consummate the transactions contemplated by clauses (A) through (E) of this Agreement or the expiration or termination of any waiting period under any Regulatory Law; (y) increase the risk of any Governmental Authority entering an order prohibiting the consummation of the transactions contemplated by this Agreement, or materially increase the risk of not being able to remove any such order on appeal or otherwise; or (z) delay or prevent the consummation of the transactions contemplated by this AgreementSection 5.1(b)(vi).
(e) Buyer shall use reasonable best efforts to cause the shares of Buyer Common Stock constituting the Buyer Stock Consideration to be approved for listing on the NYSE, with such listing to be effective as of the Closing, subject only to official notice of issuance.
Appears in 1 contract
Certain Governmental Approvals. (a) Subject to the terms and conditions set forth in this Agreement, each of the parties hereto shall use its reasonable best efforts (subject to, and in accordance with, Regulatory Law) to take, or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable under applicable Regulatory Laws to consummate and make effective the transactions contemplated by this Agreement, as promptly as practicable.
. (b) Without limiting the generality of the undertakings pursuant to Section 5.3(a) above:
: (i) Seller and Buyer shall, as promptly as practicable, but in no event later than (x) ten (10) Business Days after the date hereof, file the notification and report form pursuant to the HSR Act and (y) fifteen (15) Business Days after the date hereof, effect all other necessary notifications, or registrations to obtain the Required Antitrust Approvals, in each case as required for the transactions contemplated hereby;
; (ii) Seller and Buyer shall use reasonable best efforts to cooperate with each other in (A) determining whether any filings are required to be made with, or consents, permits, authorizations, waivers or approvals are required to be obtained from, any third parties or other Governmental Authorities under any other applicable Regulatory Law in connection with the execution and delivery of this Agreement and the consummation of the transactions contemplated by this Agreement and (B) timely making all such filings and timely seeking all such consents, permits, authorizations or approvals;
; (iii) Seller and Buyer shall use reasonable best efforts to make, as promptly as practicable following the date hereof, any filings or notifications with the State Department’s Directorate of Defense Trade Controls that are required under ITAR, including applicable notifications contemplated under 22 C.F.R. § 122.4.
(iv) Seller and Buyer shall keep each other apprised of the status of matters relating to the completion of the transactions contemplated by this Agreement and promptly furnish the other with copies of notices or other communications (or, in the case of material oral communications, advise the other orally of such communications) between Seller or Buyer and their representatives and counsel, as the case may be, or any of their respective Subsidiaries, and any Governmental Authority with respect to such transactions. Seller and Buyer shall keep each other timely apprised of any inquiries or requests for additional information from any Governmental Authority pursuant to any Regulatory Law, and shall comply promptly with any such reasonable inquiry or request. Seller and Buyer shall permit counsel for the other party reasonable opportunity to review in advance, and consider in good faith the views of the other party in connection with, any proposed written communication to any Governmental Authority. Each of Seller and Buyer agrees not to participate in any substantive meeting or discussion, either in person or by telephone, with any Governmental Authority in connection with the transactions contemplated by this Agreement unless it consults with the other party in advance and, to the extent not prohibited by such Governmental Authority, gives the other party the opportunity to attend and participate. Neither party shall consent to any voluntary extension of any statutory deadline or waiting period or to any voluntary delay of the consummation of the transactions contemplated by this Agreement or withdraw its notification and report form pursuant to the HSR Act or any other filing made pursuant to any Regulatory Law unless the other party has given its prior written consent to such extension or delay; and
(v) without limiting Section 5.3(b)(iv) above, each of Seller and Buyer, in the event that any permanent or preliminary injunction or other order is entered or becomes reasonably foreseeable to be entered in any proceeding that would make consummation of the acquisition of the FH Shares, the Acquired FH Assets or the other transactions contemplated hereby in accordance with the terms of this Agreement unlawful or that would prevent or delay consummation of the acquisition of the FH Shares, the Acquired FH Assets or the other transactions contemplated by this Agreement, shall use its reasonable best efforts necessary to vacate, modify or suspend such injunction or order so as to permit such consummation on a schedule as close as possible to that contemplated by this Agreement unless, by mutual agreement, Seller and Buyer decide that litigation is not in their respective best interests.
(c) In the event that (i) any Non-Material Antitrust Approval of any Governmental Authority is not obtained on or prior to the Closing Date or (ii) there exists, at such time as the conditions to the Closing shall have been satisfied or waived (other than those conditions that are satisfied by action taken at the Closing, provided, that such conditions would be so satisfied), any Regulatory Law (except with respect to the Required Antitrust Approvals) that makes illegal or enjoins or prevents in any respect the consummation of the transactions contemplated by this Agreement (each of clauses (i) and (ii), a “Delayed Antitrust Approval”), then Seller and Buyer shall effect the Closing (including payment of the entire Preliminary Purchase Price), subject to the terms of this Agreement (including, but not limited to, Section 8.1(b)), with respect to all FH Shares, the Acquired FH Assets and Assumed Liabilities outside of the jurisdiction of any such Governmental Authority or such Regulatory Law; provided, however, that the obligations of the parties hereto set forth in this Section 5.3 shall continue with respect to each such Delayed Antitrust Approval until such Delayed Antitrust Approval is obtained, and upon receipt of such Delayed Antitrust Approval, the parties hereto shall effect the transfer of the affected FH Shares, Acquired FH Assets and Assumed Liabilities in accordance with this Agreement and the applicable Local Purchase Agreement. Each such transfer, upon occurrence, shall be retroactive to and be deemed to have occurred on the Closing Date. Furthermore, as of the Closing Date, Seller and Buyer shall, subject to applicable Law, enter into mutually agreeable alternative business arrangements consistent with the terms of this Agreement or other arrangements which provide Buyer with the net economic benefit or loss (after taking into account any adverse Tax consequences to Seller) of, and liability for, the affected FH Shares, the FH Assets and Assumed Liabilities from and after the Closing Date and continuing until each Delayed Antitrust Approval is obtained. Notwithstanding the foregoing, in the event that any Delayed Antitrust Approval has not been obtained within twenty-four (24) months of the Closing Date, Seller shall have the right at any time thereafter, in its sole discretion, to sell any of the affected FH Shares, the FH Assets or Assumed Liabilities to a third party at a price determined in good faith by Seller to be a commercially reasonable price, and upon consummation of any such sale, (x) Seller shall pay the proceeds of such sale to Buyer (provided that Seller may reduce such payment by an amount equal to its fees and expenses (or an estimate thereof) and any Taxes payable as a result of such sale) and (y) the obligations of the parties pursuant to this Section 5.3(c) (other than pursuant to the preceding clause (x)) with respect to such FH Shares, the FH Assets or Assumed Liabilities shall cease.
(d) None of Buyer or the Subsidiaries of Buyer shall, and shall not cause any Person to, without the prior consent of Seller, acquire (whether via merger, consolidation, stock or asset purchase or otherwise), or enter into any definitive agreement to so acquire, any assets of or any equity in any other Person or any business or division thereof (excluding, for the avoidance of doubt, any acquisition of any goods or services in the ordinary course of business), unless that acquisition or agreement would not reasonably be expected to, in any material respect, (x) increase the risk of not obtaining any authorizations, consents, orders, declarations or approvals of any Governmental Authority necessary to consummate the transactions contemplated by this Agreement or the expiration or termination of any waiting period under any Regulatory Law; (y) increase the risk of any Governmental Authority entering an order prohibiting the consummation of the transactions contemplated by this Agreement, or materially increase the risk of not being able to remove any such order on appeal or otherwise; or (z) delay or prevent the consummation of the transactions contemplated by this Agreement.
(e) Buyer shall use reasonable best efforts to cause the shares of Buyer Common Stock constituting the Buyer Stock Consideration to be approved for listing on the NYSE, with such listing to be effective as of the Closing, subject only to official notice of issuance.
Appears in 1 contract
Samples: Purchase Agreement
Certain Governmental Approvals. (a) Subject to the terms and conditions set forth in this AgreementAgreement and without limiting Section 5.3(b)(iv) below, each of the parties hereto shall, and, in the case of Buyer, shall cause Carlyle Partners V Cayman, L.P. and CEP III Participations S.à.x.x. XXXXX (the “Sponsor Parties”) to, use its reasonable best efforts (subject to, and in accordance with, Regulatory Law) to take, or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable under applicable Regulatory Laws to consummate and make effective the transactions contemplated by this Agreement, as promptly as practicable, including (a) the obtaining of all necessary actions, waivers, consents and approvals from Governmental Authorities, and the making of all necessary registrations and filings and the taking of all steps as may be necessary to obtain an approval or waiver from, or to avoid an Action by, any Governmental Authority in connection with any Regulatory Law, including the transfer (or, if not transferable, the reissuance) to Buyer, Buyer’s designee or any Transferred DPC Company or Subsidiary thereof of any Environmental Permits required for the lawful operation of the DPC Business by the Transferred DPC Companies and their Subsidiaries as of Closing, (b) the defending of any Actions, whether judicial or administrative, brought under, pursuant to or relating to any Regulatory Law challenging this Agreement or the consummation of the transactions contemplated by this Agreement and (c) the execution and delivery of any additional instruments reasonably requested by the other Party hereto necessary to consummate the transactions contemplated by this Agreement, save that none of the foregoing shall require any application to be made to the UK Pensions Regulator for clearance in connection with the transactions contemplated by this Agreement (it being agreed that if DuPont or any Retained Subsidiary chooses to seek clearance from the UK Pensions Regulator in connection with any of the transactions contemplated by this Agreement, the mitigation required by the UK Pensions Regulator as a condition to granting such clearance shall be at and for the sole cost of DuPont or any such Retained Subsidiary and, notwithstanding anything to the contrary in Section 2.4, no such mitigation shall increase the Pension Assets for purposes of Section 2.4).
(b) Without limiting the generality of the undertakings pursuant to Section 5.3(a) above:):
(i) Seller DuPont and Buyer shall, as promptly as practicable, but in no event later than (x) ten fifteen (1015) Business Days after the date hereof, file (or in the case of Buyer, cause the Person(s) controlling Buyer to file) the notification and report form pursuant to the HSR Act and (y) fifteen thirty (1530) Business Days after the date hereofhereof to the extent reasonably practicable, effect all other necessary notifications, or registrations to obtain the Required Antitrust Approvalsapprovals and consents required under any Regulatory Law, in each case as required for the transactions contemplated hereby;
(ii) Seller DuPont and Buyer shall use reasonable best efforts to cooperate with each other in (A) determining whether any filings are required to be made with, or consents, permitspermits (including Environmental Permits), authorizations, waivers or approvals are required to be obtained from, any third parties or other Governmental Authorities under any other applicable Regulatory Law in connection with the execution and delivery of this Agreement and the consummation of the transactions contemplated by this Agreement and (B) timely making all such filings and timely seeking all such consents, permits, authorizations or approvals;
(iii) Seller and Buyer shall use reasonable best efforts to make, as promptly as practicable following the date hereof, any filings or notifications with the State Department’s Directorate of Defense Trade Controls that are required under ITAR, including applicable notifications contemplated under 22 C.F.R. § 122.4.
(iv) Seller DuPont and Buyer shall keep each other apprised of the status of matters relating to the completion of the transactions contemplated by this Agreement and promptly furnish the other with copies of notices or other communications (or, in the case of material oral communications, advise the other orally of such communications) between Seller DuPont or Buyer and their representatives and counsel, as the case may be, or any of their respective SubsidiariesSubsidiaries (or in the case of Buyer, Affiliates), and any Governmental Authority with respect to such transactions. Seller DuPont and Buyer shall keep each other timely apprised of any inquiries or requests for additional information from any Governmental Authority pursuant to any Regulatory Law, and shall comply promptly with any such reasonable inquiry or request. Seller DuPont and Buyer shall permit counsel for the other party reasonable opportunity to review in advance, and consider in good faith the views of the other party in connection with, any proposed written communication to any Governmental Authority. Each of Seller DuPont and Buyer agrees not to participate in any substantive meeting or discussion, either in person or by telephone, with any Governmental Authority in connection with the transactions contemplated by this Agreement unless it consults with the other party in advance and, to the extent not prohibited by such Governmental Authority, gives the other party the opportunity to attend and participate. Neither party shall consent to any voluntary extension of any statutory deadline or waiting period or to any voluntary delay of the consummation of the transactions contemplated by this Agreement or withdraw its notification and report form pursuant to the HSR Act or any other filing made pursuant to any Regulatory Law unless the other party has given its prior written consent to such extension or delay;
(iv) Without limiting the immediately following sentence, Buyer shall, and shall cause the Sponsor Parties to, in each case at Buyer’s sole cost, use its reasonable best efforts to take, or cause to be taken, any and all actions and do, or cause to be done, any and all things necessary, proper or advisable to avoid, eliminate and resolve each and every impediment and to obtain all Required Antitrust Approvals in connection with the consummation of the transactions contemplated by this Agreement in order to permit the Closing to occur by February 1, 2013. Buyer shall, and shall cause the Sponsor Parties to, proffer to, and shall and shall cause the Sponsor Parties to, (A) sell or otherwise dispose of, or hold separate and agree to sell or otherwise dispose of specific assets or categories of assets or businesses of the Transferred DPC Companies, any of their Subsidiaries, the Joint Venture Interests or any of Buyer’s or any of the Sponsor Parties’ other assets or businesses now owned or presently or hereafter sought to be acquired by Buyer or the Sponsor Parties; (B) terminate any existing relationships and contractual rights and obligations; (C) amend or terminate such existing licenses or other intellectual property agreements and to enter into such new licenses or other intellectual property agreements; (D) take any and all actions and make any and all behavioral commitments, whether or not they limit or modify Buyer’s or any of the Sponsor Parties’, the Transferred DPC Companies’ or any of their Subsidiaries’ rights of ownership in, or ability to conduct the business of, one or more of its operations, divisions, businesses, product lines, customers or assets, including, after the Closing, the DPC Business or any of the DPC Assets; and (E) enter into agreements, including with the relevant Governmental Authority, giving effect to the foregoing clauses (A) through (D), in each case, after it is determined that such action is necessary to obtain approval for consummation of the transactions contemplated by this Agreement from any Governmental Authority prior to February 1, 2013. In furtherance of the foregoing, Buyer shall keep DuPont fully informed of all matters, discussions and activities relating to any of the matters described in or contemplated by clauses (A) through (E) of this Section 5.3(b)(iv); and
(v) without limiting Section 5.3(b)(iv) above), each of Seller DuPont, Buyer and Buyerthe Sponsor Parties, in the event that any permanent or preliminary injunction or other order is entered or becomes reasonably foreseeable to be entered in any proceeding that would make consummation of the acquisition of the FH DPC Shares, the Acquired FH Assets Minority Investment Interests or the Joint Venture Interests or the other transactions contemplated hereby in accordance with the terms of this Agreement unlawful or that would prevent or delay consummation of the acquisition of the FH Shares, DPC Shares or the Acquired FH Assets Joint Venture Interests or the other transactions contemplated by this Agreement, shall use its reasonable best efforts necessary to vacate, modify or suspend such injunction or order so as to permit such consummation on a schedule as close as possible to that contemplated by this Agreement unless, by mutual agreement, Seller DuPont and Buyer decide that litigation is not in their respective best interests.
(c) In the event that either (i) any Non-Material Antitrust Approval of any Governmental Authority set forth on Section 5.3(c) of the Seller’s Disclosure Schedule is not obtained on or prior to the Closing Date or (ii) there exists, at such time as the conditions to the Closing shall have been satisfied or waived (other than those conditions that are satisfied by action taken at the Closing, provided, provided that such conditions would be so satisfied), any Regulatory Law (except with respect to the Required Antitrust Approvals) that makes illegal or enjoins or prevents in any respect the consummation of the transactions contemplated by this Agreement with respect to DuPont Freeworld (Pty.) Ltd (each of clauses (i) and (ii), a “Delayed Antitrust Approval”), then Seller DuPont and Buyer shall effect the Closing (including payment of the entire Preliminary Purchase Price), subject to the terms of this Agreement (including, but not limited to, Section 8.1(b7.1(b)), with respect to all FH DPC Shares, the Acquired FH Assets and Minority Investment Interests, Assumed Liabilities outside of and Transferred DPC Joint Venture Interests other than the jurisdiction of any such Governmental Authority or such Regulatory Lawequity interests in DuPont Freeworld (Pty.) Ltd; provided, however, that the obligations of the parties hereto set forth in this Section 5.3 shall continue with respect to each such Delayed Antitrust Approval until such Delayed Antitrust Approval is obtained, and upon receipt of such Delayed Antitrust Approval, the parties hereto shall effect the transfer of the affected FH DPC Shares, Acquired FH Assets and Minority Investment Interests, Assumed Liabilities and Transferred DPC Joint Venture Interests in accordance with this Agreement and the applicable Local Purchase Agreement. Each such transfer, upon occurrence, shall be retroactive to and be deemed to have occurred on the Closing Date. Furthermore, as of the Closing Date, Seller DuPont and Buyer shall, subject to applicable Law, enter into mutually agreeable alternative business arrangements consistent with the terms of this Agreement or other arrangements which provide Buyer with the net economic benefit or loss (after taking into account any adverse Tax consequences to SellerDuPont) of, and liability for, the affected FH DPC Shares, the FH Assets and Minority Investment Interests, Assumed Liabilities and Transferred DPC Joint Venture Interests from and after the Closing Date and continuing until each Delayed Antitrust Approval is obtained. Without limiting the foregoing, such arrangements shall include, to the extent permissible under applicable Law (i) a covenant by DuPont to, and to cause any relevant Subsidiary to, conduct the business of the relevant Transferred DPC Company or its Subsidiaries or, to the extent within DuPont’s control, the relevant Joint Venture or its Subsidiary, in the ordinary course consistent with past practice and to not take certain material actions specified on Exhibit BB without the consent of Buyer and (ii) upon receipt of any cash distributions received from, or in respect of the DPC shares, Minority Investment Interests or Transferred DPC Joint Venture Interests, promptly use such cash distributions to pay any Assumed Liability or pay such amount to Buyer (in each case net of any Tax liability as a result of the receipt of such distribution). Notwithstanding the foregoing, in the event that any Delayed Antitrust Approval has not been obtained within twenty-four (24) months of the Closing Date, Seller shall have subject to the right consent of Buyer (such consent not to be unreasonably withheld, conditioned or delayed), at any time thereafter, in its sole discretion, to DuPont may sell any of the affected FH DPC Shares, the FH Assets or Minority Investment Interests, Assumed Liabilities or Transferred DPC Joint Venture Interests to a third party reasonably acceptable to Buyer at a price determined in good faith by Seller to be a commercially reasonable price, and upon consummation of any such sale, (x) Seller DuPont shall pay the proceeds of such sale to Buyer (provided that Seller DuPont may reduce such payment by an amount equal to its out-of-pocket fees and expenses (or an estimate thereof) and any incremental Taxes payable as a result of such sale) and (y) the obligations of the parties pursuant to this Section 5.3(c) (other than pursuant to the preceding clause (x)) with respect to such FH DPC Shares, the FH Assets or Minority Investment Interests, Assumed Liabilities or Transferred DPC Joint Venture Interests shall cease.
(d) None During the period from the date of this Agreement until the Closing Date, except as required by this Agreement, Buyer and its Affiliates shall not, without the prior written consent of DuPont, engage in any action or enter into any transaction or permit any action to be taken or transaction to be entered into by Buyer or any of its Affiliates, that would reasonably be expected to have a Buyer Material Adverse Effect. Without limiting the generality of the foregoing, none of Buyer, the Subsidiaries of Buyer Buyer, or their respective Affiliates shall, and shall not cause any Person to, without the prior consent of Seller, acquire (whether via merger, consolidation, stock or asset purchase or otherwise), or enter into any definitive agreement agree to so acquire, any assets of or any equity in any other Person or any business or division thereof (excludingthereof, for the avoidance of doubt, any acquisition of any goods or services in the ordinary course of business), unless if that acquisition or agreement would not reasonably be expected to, in any material respect, to (x) materially increase the risk of not obtaining any authorizations, consents, orders, declarations or approvals of any Governmental Authority necessary to consummate the transactions contemplated by this Agreement Required Antitrust Approval or the expiration or termination of any waiting period under any Regulatory Lawin connection with Required Antitrust Approvals; (y) materially increase the risk of any Governmental Authority entering an order prohibiting the consummation of the transactions contemplated by this Agreement, or materially increase the risk of not being able to remove any such order on appeal or otherwise; or (z) prevent or materially delay or prevent the consummation receipt of the transactions contemplated by this Agreementany Required Antitrust Approval.
(e) Buyer shall use reasonable best efforts to cause the shares of Buyer Common Stock constituting the Buyer Stock Consideration to be approved for listing on the NYSE, with such listing to be effective as of the Closing, subject only to official notice of issuance.
Appears in 1 contract
Certain Governmental Approvals. (a) Subject to In the terms and conditions set forth in this Agreement, each of the parties hereto shall use its reasonable best efforts (subject to, and in accordance with, Regulatory Law) to take, or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable under applicable Regulatory Laws to consummate and make effective the transactions contemplated by this Agreement, as promptly as practicable.
(b) Without limiting the generality of the undertakings pursuant to Section 5.3(a) above:
(i) Seller and Buyer shall, as promptly as practicable, but in no event later than that (x) ten (10) Business Days after the date hereof, file the notification and report form pursuant all conditions ------------------------------ to the HSR Act and (y) fifteen (15) Business Days after the date hereof, effect all other necessary notifications, or registrations to obtain the Required Antitrust Approvals, in each case as required for the transactions contemplated hereby;
(ii) Seller and Buyer shall use reasonable best efforts to cooperate with each other in (A) determining whether any filings are required to be made with, or consents, permits, authorizations, waivers or approvals are required to be obtained from, any third parties or other Governmental Authorities under any other applicable Regulatory Law in connection with the execution and delivery of this Agreement and the consummation closing of the transactions contemplated by this the UCI Stock Purchase Agreement have been satisfied or, to the extent permitted, waived (subject to the limitation on waivers contained in the equity commitment letters referred to below), and (By) timely making the Investors are obligated to fund the Company in accordance with their respective equity commitment letters, dated July 21, 1999, delivered to Universal Studios, Inc. but for the fact that one or more Investors have failed to receive all such filings and timely seeking all such consentsregulatory approvals, permitsincluding, authorizations or approvals;
(iii) Seller and Buyer shall use reasonable best efforts to make, as promptly as practicable following the date hereofwithout limitation, any filings required by the HSR Act (a "Regulatory Issue"), and such Regulatory Issue would ---------------- not be present if the Investor acquired some or notifications all of the Company securities to be issued to it in the form of non-voting securities, then each Investor shall nonetheless be required to close its investment in the Company, subject to the following adjustments: (a) each Investor with a Regulatory Issue shall determine the greatest number of voting securities ("Voting Securities") that it can ----------------- acquire measured as a ratio of (i) the number of Voting Securities that the Investor may acquire without causing a Regulatory Issue to (ii) the total number of such securities that the Investor is required to purchase hereunder (such ratio, the "Voting Ratio"); (b) if it has not already done so, the Company shall ------------ authorize non-voting securities that are otherwise identical in all substantive respects to its related Voting Securities and in any event in form and substance reasonably satisfactory to each Investor, and are convertible into such Voting Securities on a share-for-share basis at the election of the holder (the "Non- --- Voting Shares"); (c) each Investor shall then close its investment in the ------------- Company and pay the aggregate cash purchase price due and payable at Closing, whereupon the Company will issue to each Investor that was otherwise to have acquired Voting Securities a combination of Voting Securities and Non-Voting Securities in accordance with the State Department’s Directorate of Defense Trade Controls that are required under ITAR, including applicable notifications contemplated under 22 C.F.R. § 122.4.
Voting Ratio; and (ivd) Seller each Investor will be deemed to have covenanted and Buyer shall keep agreed with each other Investor not to convert any Non-Voting Shares into Voting Shares unless each Investor has resolved its Regulatory Issue and all shares can be so converted by all Investors. Each Investor agrees that it will keep the Company and each other Investor apprised of the status of matters relating to the completion of the transactions contemplated by this Agreement and promptly furnish the other with copies of notices or other communications (or, in the case of material oral communications, advise the other orally of such communications) between Seller or Buyer and their representatives and counsel, as the case may be, or any of their respective Subsidiaries, and any Governmental Authority with respect to such transactions. Seller and Buyer shall keep each other timely apprised of any inquiries or requests for additional information from any Governmental Authority pursuant to any Regulatory LawIssue applicable to it, and shall comply promptly with any such reasonable inquiry or request. Seller and Buyer shall permit counsel for the other party reasonable opportunity to review in advance, and consider in good faith the views of the other party in connection with, any proposed written communication to any Governmental Authority. Each of Seller and Buyer agrees not to participate in any substantive meeting or discussion, either in person or by telephone, with any Governmental Authority in connection with the transactions contemplated by this Agreement unless it consults with the other party in advance and, to the extent not prohibited by such Governmental Authority, gives the other party the opportunity to attend and participate. Neither party shall consent to any voluntary extension of any statutory deadline or waiting period or to any voluntary delay of the consummation of the transactions contemplated by this Agreement or withdraw its notification and report form pursuant to the HSR Act or any other filing made pursuant to any Regulatory Law unless the other party has given its prior written consent to such extension or delay; and
(v) without limiting Section 5.3(b)(iv) above, each of Seller and Buyer, in the event that any permanent or preliminary injunction or other order is entered or becomes reasonably foreseeable advice to be entered confirmed in any proceeding that would make consummation of the acquisition of the FH Shares, the Acquired FH Assets or the other transactions contemplated hereby in accordance with the terms of this Agreement unlawful or that would prevent or delay consummation of the acquisition of the FH Shares, the Acquired FH Assets or the other transactions contemplated by this Agreement, shall use its reasonable best efforts necessary to vacate, modify or suspend such injunction or order so as to permit such consummation on a schedule as close as possible to that contemplated by this Agreement unless, by mutual agreement, Seller and Buyer decide that litigation is not in their respective best interestswriting upon request.
(c) In the event that (i) any Non-Material Antitrust Approval of any Governmental Authority is not obtained on or prior to the Closing Date or (ii) there exists, at such time as the conditions to the Closing shall have been satisfied or waived (other than those conditions that are satisfied by action taken at the Closing, provided, that such conditions would be so satisfied), any Regulatory Law (except with respect to the Required Antitrust Approvals) that makes illegal or enjoins or prevents in any respect the consummation of the transactions contemplated by this Agreement (each of clauses (i) and (ii), a “Delayed Antitrust Approval”), then Seller and Buyer shall effect the Closing (including payment of the entire Preliminary Purchase Price), subject to the terms of this Agreement (including, but not limited to, Section 8.1(b)), with respect to all FH Shares, the Acquired FH Assets and Assumed Liabilities outside of the jurisdiction of any such Governmental Authority or such Regulatory Law; provided, however, that the obligations of the parties hereto set forth in this Section 5.3 shall continue with respect to each such Delayed Antitrust Approval until such Delayed Antitrust Approval is obtained, and upon receipt of such Delayed Antitrust Approval, the parties hereto shall effect the transfer of the affected FH Shares, Acquired FH Assets and Assumed Liabilities in accordance with this Agreement and the applicable Local Purchase Agreement. Each such transfer, upon occurrence, shall be retroactive to and be deemed to have occurred on the Closing Date. Furthermore, as of the Closing Date, Seller and Buyer shall, subject to applicable Law, enter into mutually agreeable alternative business arrangements consistent with the terms of this Agreement or other arrangements which provide Buyer with the net economic benefit or loss (after taking into account any adverse Tax consequences to Seller) of, and liability for, the affected FH Shares, the FH Assets and Assumed Liabilities from and after the Closing Date and continuing until each Delayed Antitrust Approval is obtained. Notwithstanding the foregoing, in the event that any Delayed Antitrust Approval has not been obtained within twenty-four (24) months of the Closing Date, Seller shall have the right at any time thereafter, in its sole discretion, to sell any of the affected FH Shares, the FH Assets or Assumed Liabilities to a third party at a price determined in good faith by Seller to be a commercially reasonable price, and upon consummation of any such sale, (x) Seller shall pay the proceeds of such sale to Buyer (provided that Seller may reduce such payment by an amount equal to its fees and expenses (or an estimate thereof) and any Taxes payable as a result of such sale) and (y) the obligations of the parties pursuant to this Section 5.3(c) (other than pursuant to the preceding clause (x)) with respect to such FH Shares, the FH Assets or Assumed Liabilities shall cease.
(d) None of Buyer or the Subsidiaries of Buyer shall, and shall not cause any Person to, without the prior consent of Seller, acquire (whether via merger, consolidation, stock or asset purchase or otherwise), or enter into any definitive agreement to so acquire, any assets of or any equity in any other Person or any business or division thereof (excluding, for the avoidance of doubt, any acquisition of any goods or services in the ordinary course of business), unless that acquisition or agreement would not reasonably be expected to, in any material respect, (x) increase the risk of not obtaining any authorizations, consents, orders, declarations or approvals of any Governmental Authority necessary to consummate the transactions contemplated by this Agreement or the expiration or termination of any waiting period under any Regulatory Law; (y) increase the risk of any Governmental Authority entering an order prohibiting the consummation of the transactions contemplated by this Agreement, or materially increase the risk of not being able to remove any such order on appeal or otherwise; or (z) delay or prevent the consummation of the transactions contemplated by this Agreement.
(e) Buyer shall use reasonable best efforts to cause the shares of Buyer Common Stock constituting the Buyer Stock Consideration to be approved for listing on the NYSE, with such listing to be effective as of the Closing, subject only to official notice of issuance.
Appears in 1 contract
Certain Governmental Approvals. (a) Subject to the terms and conditions set forth in this AgreementAgreement and without limiting Section 5.3(b)(iv) below, each of the parties hereto shall use its reasonable best efforts (subject to, and in accordance with, Regulatory Law) to take, or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable under applicable Regulatory Laws to consummate and make effective the transactions contemplated by this Agreement, as promptly as practicable, including (a) the obtaining of all necessary actions, waivers, consents and approvals from Governmental Authorities, and the making of all necessary registrations and filings and the taking of all steps as may be necessary to obtain an approval or waiver from, or to avoid an Action by, any Governmental Authority in connection with any Regulatory Law, (b) the defending of any Actions, whether judicial or administrative, brought under, pursuant to or relating to any Regulatory Law challenging this Agreement or the consummation of the transactions contemplated by this Agreement, (c) the compliance with all legal requirements that may be imposed on it with respect to this Agreement or the transactions contemplated hereby and (d) the execution and delivery of any additional instruments necessary to consummate the transactions contemplated by this Agreement.
(b) Without limiting the generality of the undertakings pursuant to Section 5.3(a) above:):
(i) Seller TDY and Buyer shall, as promptly as practicable, but in no event later than (x) ten fifteen (1015) Business Days after the date hereof, file the notification and report form pursuant to the HSR Act and (y) fifteen twenty (1520) Business Days after the date hereof, effect all other necessary notifications, or registrations pursuant to any applicable Regulatory Law, including to obtain the Required Antitrust Approvals, in each case as required for the transactions contemplated hereby;
(ii) Seller TDY and Buyer shall use reasonable best efforts to cooperate with each other in (A) determining whether any filings are required to be made with, or consents, permits, authorizations, waivers or approvals are required to be obtained from, any third parties or other Governmental Authorities under any other applicable Regulatory Law (other than the HSR Act, which is the subject of Section 5.3(b)(i)) in connection with the execution and delivery of this Agreement and the consummation of the transactions contemplated by this Agreement and (B) timely making all such filings and timely seeking all such consents, permits, authorizations or approvals;
(iii) Seller and Buyer shall use reasonable best efforts to make, as promptly as practicable following the date hereof, any filings or notifications with the State Department’s Directorate of Defense Trade Controls that are required under ITAR, including applicable notifications contemplated under 22 C.F.R. § 122.4.
(iv) Seller TDY and Buyer shall keep each other apprised of the status of matters relating to the completion of the transactions contemplated by this Agreement and and, to the extent permitted by Law, promptly furnish the other with copies of notices or other communications (or, in the case of material oral communications, advise the other orally of such communicationscommunications (orally or otherwise)) between Seller TDY or Buyer and their representatives and counselRepresentatives, as the case may be, or any of their respective Subsidiaries, and any Governmental Authority with respect to such transactions. Seller TDY and Buyer shall keep each other timely apprised of any inquiries or requests for additional information from any Governmental Authority pursuant to any Regulatory Law, and shall comply promptly with any such reasonable inquiry or request. Seller TDY and Buyer shall shall, to the extent permitted by Law, permit counsel for the other party reasonable opportunity to review in advance, and consider in good faith the views of the other party in connection with, any proposed written communication to any Governmental Authority. Each Authority relating to the completion of Seller and Buyer agrees not to participate in any substantive meeting or discussion, either in person or by telephone, with any Governmental Authority in connection with the transactions contemplated by this Agreement unless it consults Agreement. TDY and Buyer each agree, to the extent possible, to consult with the other party in advance of, and, to the extent not prohibited by such Governmental Authority, gives to give the other party the opportunity to attend and participateto participate in any meeting, telephone conference or other oral communication with any Governmental Authority relating to the transactions contemplated by this Agreement. Neither party shall consent to any voluntary extension of any statutory deadline or waiting period or to any voluntary delay of the consummation of the transactions contemplated by this Agreement or withdraw its notification and report form pursuant to the HSR Act or any other filing made pursuant to any Regulatory Law unless the other party has given its prior written consent to such extension or delay;
(iv) Buyer shall, at Buyer's sole cost, take, or cause to be taken, any and all actions and do, or cause to be done, any and all things necessary, proper or advisable to avoid, eliminate and resolve each and every impediment and obtain all Required Antitrust Approvals in connection with the consummation of the transactions contemplated by this Agreement, as promptly as practicable (but in any event at least five (5) Business Days prior to the Outside Date). The actions required by the preceding sentence will be limited as follows: Buyer shall not be required to, and shall not be required to cause its Affiliates to, (A) sell or otherwise dispose of, or hold separate and agree to sell or otherwise dispose of any assets or businesses now owned or presently sought to be acquired pursuant to the transaction contemplated hereby by Buyer or its Affiliates consisting of assets valued in excess of $60,000,000, individually or in the aggregate; (B) terminate any existing relationship, contractual right or obligation related to any assets or businesses now owned or presently sought to be acquired pursuant to the transaction contemplated hereby by Buyer or its Affiliates with a value in excess of $60,000,000 over the life of such relationship, contractual right or obligation, individually or in the aggregate; or (C) enter into agreements, including with the relevant Governmental Authority, giving effect to the foregoing clauses (A) or (B). Buyer shall, and shall cause its Affiliates to, keep TDY fully informed of all matters, discussions and activities relating to any of the matters described in or contemplated by clauses (A) through (C) of this Section 5.3(b)(iv); and
(v) without limiting Section 5.3(b)(iv) above), each of Seller TDY and BuyerBuyer (and each shall cause its Affiliates to), in the event that any permanent or preliminary injunction or other order is entered or becomes reasonably foreseeable to be entered in any proceeding that would make consummation of the acquisition of the FH Shares, the Acquired FH Tungsten Materials Assets or the other transactions contemplated hereby in accordance with the terms of this Agreement unlawful or that would prevent or delay consummation of the acquisition of the FH Shares, the Acquired FH Tungsten Materials Assets or the other transactions contemplated by this Agreement, shall use its reasonable best efforts necessary to avoid, vacate, modify or suspend such injunction or order so as to permit such consummation on a schedule as close as possible to that contemplated by this Agreement unless, by mutual agreement, Seller TDY and Buyer decide that litigation action is not in their respective best interests.
(c) In the event that (i) any Non-Material Antitrust Approval of any Governmental Authority is not obtained on or prior to the Closing Date or (ii) there exists, at such time as the conditions to the Closing shall have been satisfied or waived (other than those conditions that are satisfied by action taken at the Closing, provided, provided that such conditions would be so satisfied), any Regulatory Law (except with respect to the Required Antitrust Approvals) that makes illegal or enjoins or prevents in any respect the consummation of the transactions contemplated by this Agreement (each of clauses (i) and (ii), a “"Delayed Antitrust Approval”"), then Seller TDY and Buyer shall effect the Closing (including payment of the entire Preliminary Purchase Price), subject to the terms of this Agreement (including, but not limited to, Section 8.1(b7.1(b)), with respect to all FH Shares, the Acquired FH Tungsten Materials Assets and Assumed Liabilities outside of the jurisdiction of any such Governmental Authority or such Regulatory Law; provided, however, that the obligations of the parties hereto set forth in this Section 5.3 5.3(c) shall continue with respect to each such Delayed Antitrust Approval until such Delayed Antitrust Approval is obtained, and upon receipt of such Delayed Antitrust Approval, the parties hereto shall effect the transfer of the affected FH Shares, Acquired FH Tungsten Materials Assets and Assumed Liabilities in accordance with this Agreement and the applicable Local Purchase Agreement. Each such transfer, upon occurrence, shall be retroactive to and be deemed to have occurred on the Closing Date. Furthermore, as of the Closing Date, Seller TDY and Buyer shall, subject to applicable Law, enter into mutually agreeable alternative business arrangements consistent with the terms of this Agreement or other arrangements which provide Buyer with the net economic benefit or loss (after taking into account any adverse Tax consequences to SellerTDY or ATI) of, and liability for, the affected FH Shares, the FH Tungsten Materials Assets and Assumed Liabilities from and after the Closing Date and continuing until each Delayed Antitrust Approval is obtained. Notwithstanding the foregoing, in the event that any Delayed Antitrust Approval has not been obtained within twenty-four (24) months of the Closing Date, Seller TDY shall have the right at any time thereafter, in its sole discretion, to sell any of the affected FH SharesTungsten Materials Assets, the FH Assets Shares or Assumed Liabilities to a third party at a price determined in good faith by Seller TDY to be a commercially reasonable price, and upon consummation of any such sale, (x) Seller TDY shall pay the proceeds of such sale to Buyer (provided that Seller TDY may reduce such payment by an amount equal to its fees and expenses (or an estimate thereof) and any incremental Taxes payable as a result of such sale) and (y) the obligations of the parties pursuant to this Section 5.3(c) (other than pursuant to the preceding clause (x)) with respect to such FH Shares, the FH Tungsten Materials Assets or Assumed Liabilities shall cease.
(d) None During the period from the date of this Agreement until the Closing Date (or such later date on which all transfers of the Tungsten Materials Business and Tungsten Materials Assets contemplated by Section 5.18 have been completed), except as required by this Agreement, Buyer and its Affiliates shall not, without the prior written consent of TDY, engage in any action or enter into any transaction or permit any action to be taken or transaction to be entered into, that would reasonably be expected to have a Buyer Material Adverse Effect. Without limiting the generality of the foregoing, none of Buyer or the Subsidiaries of Buyer its Affiliates shall, and shall not cause any Person to, without the prior consent of Seller, acquire (whether via merger, consolidation, stock or asset purchase or otherwise), or enter into any definitive agreement agree to so acquire, any assets of or any equity in any other Person or any business or division thereof (excluding, for the avoidance of doubt, any acquisition of any goods or services in the ordinary course of business)thereof, unless that acquisition or agreement would not reasonably be expected to, in any material respect, to materially (x) increase the risk of not obtaining any authorizations, consents, orders, declarations or approvals of any Governmental Authority necessary to consummate the transactions contemplated by this Agreement or the expiration or termination of any waiting period under any Regulatory Law; (y) increase the risk of any Governmental Authority entering an order prohibiting the consummation of the transactions contemplated by this Agreement, or materially increase the risk of not being able to remove any such order on appeal or otherwise; or (z) delay or prevent the consummation of the transactions contemplated by this Agreement.
(e) Subject to the terms and conditions set forth in this Agreement, Buyer shall, and shall cause its Affiliates to, use reasonable best efforts to cause obtain all Permits, if any, relating to any Export Control and Import Laws necessary for Buyer and its Affiliates, as applicable, to operate the shares of Tungsten Materials Business in their respective names, as the case may be, and TDY shall cooperate with Buyer Common Stock constituting the Buyer Stock Consideration and its Affiliates in their efforts to be approved for listing on the NYSE, with obtain such listing to be effective as of the Closing, subject only to official notice of issuancePermits.
Appears in 1 contract
Samples: Purchase Agreement (Kennametal Inc)
Certain Governmental Approvals. (a) Subject to the terms and conditions set forth in this AgreementAgreement and including Section 5.1(f) below, each of the parties hereto Seller and Buyer shall use its their respective reasonable best efforts (subject to, and in accordance with, Regulatory LawLaws) to take, or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable under applicable Regulatory Laws to consummate and make effective in the most expeditious manner possible the Acquisition and the other transactions contemplated by this Agreement, including (i) the preparation and filing of all forms, registrations and notices required to be filed to consummate the Acquisition and the other transactions contemplated by this Agreement, (ii) subject to Section 5.1(f), taking all actions necessary to obtain (and cooperating with each other in obtaining) any Approval of any third party, including any Governmental Entity (which actions shall include furnishing all information as promptly as practicablemay be required in connection with consents, permits, authorizations, waivers or approvals under Regulatory Laws) required to be obtained or made by Seller or Buyer or any of their respective Subsidiaries in connection with the Acquisition or the other transactions contemplated by this Agreement, (iii) causing the expiration or termination of any applicable waiting periods under the HSR Act or any other applicable Regulatory Law, (iv) avoiding or eliminating each and every impediment under the Regulatory Laws that may be asserted by any Governmental Entity or any other Person and (v) subject to Section 5.1(f) and Section 5.20, the execution and delivery of any additional instruments necessary to consummate the Acquisition and the other transactions contemplated by this Agreement and to fully carry out the purposes of this Agreement. Unless otherwise expressly agreed herein, neither Seller nor the Company nor any of their respective Affiliates shall be obligated to grant any consideration, or pay any fee or other similar payment to any third party from whom consent or approval is required or requested from or by such third Person in connection with the consummation of the transactions contemplated by this Agreement in order to obtain any such consent or approval.
(b) Without limiting the generality of the undertakings undertaking pursuant to Section 5.3(a5.1(a), Seller and Buyer shall each keep the other apprised of the status of matters relating to the completion of the Acquisition and the other transactions contemplated by this Agreement and work cooperatively in connection with obtaining all required Regulatory Approvals and causing the expiration or termination of any applicable waiting periods under the HSR Act or any other applicable Regulatory Law. In that regard, subject to the Non-Disclosure Agreement and Section 5.3, each Party shall promptly consult with the other Party to this Agreement to provide any necessary information with respect to (and, in the case of correspondence, provide the other Party (or their counsel) above:copies of) all filings made by such Party with any Governmental Entity or any other information supplied by such Party to, or correspondence with, a Governmental Entity in connection with this Agreement, the Acquisition and the other transactions contemplated by this Agreement. Subject to the Non-Disclosure Agreement and Section 5.3 of this Agreement, each Party shall promptly inform the other Party, and if in writing, furnish the other Party with copies of (or, in the case of oral communications, advise the other Party orally and in writing of) any communication from or with any Governmental Entity regarding the Acquisition and the other transactions contemplated by this Agreement, and permit the other Party to review and discuss in advance, and consider in good faith the views of the other Party in connection with, any proposed communication (whether written or oral) with any such Governmental Entity. If either Party or any Representative of such Party receives a request for additional information or documentary material from any Governmental Entity with respect to the Acquisition or the other transactions contemplated by this Agreement, then such Party will use its reasonable best efforts to make, or cause to be made, promptly and after consultation with the other Party, an appropriate response in compliance with such request (and in any event, within ninety (90) days “substantially comply,” and as soon as reasonably practicable certify substantial compliance, with any request for additional information (also known as a “second request”) issued pursuant to the HSR Act unless otherwise agreed to by the other Party in writing). Neither Party hereto nor its Representatives shall participate in any substantive meeting or discussion with any Governmental Entity or representative thereof in connection with this Agreement, the Acquisition or any of the other transactions contemplated by this Agreement (or make oral submissions at meetings or in telephone or other conversations) unless it consults with the other Party in advance and, to the extent not prohibited by such Governmental Entity, gives the other Party the opportunity to attend and participate thereat. Subject to the Non-Disclosure Agreement and Section 5.3, each Party shall furnish the other Party with copies of all correspondence, filings and communications (and memoranda setting forth the substance thereof) between it and any such Governmental Entity with respect to this Agreement, the Acquisition or any of the other transactions contemplated by this Agreement, and furnish the other Party with such necessary information and reasonable assistance as the other Party may reasonably request in connection with its preparation of filings or submissions of information to any such Governmental Entity. Seller and Buyer may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section 5.1 as “outside counsel only.” Such materials and the information contained therein shall be given only to the outside legal counsel of the recipient and will 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 (Seller or Buyer, as the case may be); provided that materials provided pursuant to this Section 5.1(b) may be redacted (i) to remove references concerning the valuation of or future plans for the Business, (ii) as necessary to comply with contractual obligations, and (iii) as necessary to address reasonable privilege concerns. Seller and Buyer shall jointly develop, determine and cooperate with one another with respect to (i) the strategy for obtaining any approvals under Regulatory Laws or responding to any request from, inquiry by, or investigation by (including directing the timing, nature and substance of all such responses) any Governmental Entity in connection with this Agreement and the transactions contemplated hereby, including determining the strategy, timing, form and content of any registrations, filings, agreements, forms, notices, petitions, statements, submissions of information, applications and other documents, communications and correspondence contemplated by, made in accordance with, or subject to this Section 5.1 (including directing the timing, nature and substance of all such responses, including any analyses, appearances, presentations, memoranda, briefs, arguments, opinions and proposals made or submitted by or on behalf of any Party in connection with the subject matter of this Section 5.1) and the strategy, timing, form and content of any divestitures or other remedial undertakings made for the purpose of securing any required consents, permits, authorizations, waivers or approvals under Regulatory Laws and (ii) the defense and settlement of any action brought by or before any Governmental Entity that has authority to enforce any Regulatory Laws; provided, however, that in the event of any disagreement between the Parties with respect to the matters described in the foregoing clause (i) or (ii), the General Counsel of Buyer and the General Counsel of Dublin shall seek to resolve such disagreement reasonably and in good faith; provided, that if the General Counsels of the Parties cannot resolve any such disagreement, the determination of the General Counsel of Buyer shall prevail (for the avoidance of doubt, this proviso shall not modify the obligations of the Parties pursuant to this Section 5.1). Notwithstanding the foregoing, the Parties agree no Party shall extend, directly or indirectly, any waiting period under the HSR Act (including by withdrawing its filing under the HSR Act) or any other Regulatory Laws or enter into any agreement with any Governmental Entity to delay, or otherwise not to consummate as soon as practicable, any of the transactions contemplated by this Agreement except with the prior written consent of the other Parties.
(ic) Seller and Buyer shall, as promptly as practicable, but in no event later than (xA) ten fifteen (1015) Business Days after the date hereof, file the notification and report form pursuant to the HSR Act and (yB) fifteen to the extent possible, within thirty (1530) Business Days Days, but in any event as soon as practicable after the date hereof, effect submit all other necessary notificationsnotifications (in final form or, where applicable, draft form) or registrations to obtain the Required Antitrust Regulatory Approvals, in each case as required for the transactions contemplated hereby;.
(iid) Seller and Buyer shall use reasonable best efforts to cooperate with each other in (A) determining whether any filings are required to be made with, or consents, permits, authorizations, waivers or approvals are required to be obtained from, any third parties or other Governmental Authorities Entities under any other applicable Regulatory Law in connection with the execution and delivery of this Agreement and the consummation of the transactions contemplated by this Agreement (including any post-Closing filings) and (B) timely making all such filings and timely seeking all such consents, permits, authorizations or approvals;.
(iiie) Each of Seller and Buyer shall use their respective reasonable best efforts to makeresolve such objections, if any, as promptly as practicable following may be asserted by any Governmental Entity with respect to the date hereof, Acquisition or any filings or notifications with the State Department’s Directorate of Defense Trade Controls that are required under ITAR, including applicable notifications contemplated under 22 C.F.R. § 122.4.
(iv) Seller and Buyer shall keep each other apprised of the status of matters relating other transactions contemplated by this Agreement under any Regulatory Laws. In connection therewith, if any Proceeding, audit, review, inquiry, examination, or investigation (“Action”) is instituted (or threatened to the completion be instituted) challenging any of the transactions contemplated by this Agreement and promptly furnish the other with copies as violative of notices or other communications (orany Regulatory Laws, in the case each of material oral communications, advise the other orally of such communications) between Seller or Buyer and their representatives and counsel, as the case may be, or any of their respective Subsidiaries, and any Governmental Authority with respect to such transactions. Seller and Buyer shall keep each other timely apprised of cooperate and use their respective reasonable best efforts to vigorously contest and resist any inquiries or requests for additional information from any Governmental Authority pursuant to any Regulatory Lawsuch Action, and shall comply promptly with to have vacated, lifted, reversed, or overturned any such reasonable inquiry Judgment whether temporary, preliminary or request. Seller permanent, that is in effect and Buyer shall permit counsel for that prohibits, prevents, or restricts consummation of the other party reasonable opportunity to review in advance, and consider in good faith the views Acquisition or any of the other party transactions contemplated by this Agreement, including by vigorously pursuing all available avenues of administrative and judicial appeal.
(f) Without limiting Section 5.1(e) in connection withany respect, Buyer shall, at Buyer’s sole cost, use its reasonable best efforts to take, or cause to be taken, any proposed written communication and all actions and do, or cause to be done, any Governmental Authority. Each of Seller and Buyer agrees not all things necessary, proper or advisable to participate in avoid, eliminate and resolve each and every impediment and obtain all Regulatory Approvals (and cause to expire or terminate all applicable waiting periods under the HSR Act or any substantive meeting or discussion, either in person or by telephone, with any Governmental Authority other applicable Regulatory Law) in connection with the transactions contemplated consummation of the Acquisition, as promptly as practicable. In furtherance of the foregoing, Buyer shall proffer to, and shall, and shall cause its Affiliates to, (A) sell or otherwise dispose of, or hold separate and agree to sell or otherwise dispose of specific assets or categories of assets or businesses constituting the Acquired Assets or any other assets or businesses now owned or presently or hereafter sought to be acquired by this Agreement unless it consults Buyer or its Affiliates; (B) creating, terminating or divesting relationships, contractual rights or obligations of the Business or Buyer or any of its Affiliates; (C) take any and all actions and make any and all behavioral commitments, whether or not they limit or modify Buyer’s or its Subsidiaries’ rights of ownership in, or ability to conduct the business of, one or more of its or their operations, divisions, businesses, product lines, customers or assets, including, after the Closing, the Business or any of the Acquired Assets; and (D) enter into agreements, including with the other party in advance andrelevant Governmental Entity, giving effect to the extent not prohibited by foregoing clauses (A) through (C), in each case as promptly as practicable (but in any event prior to the Outside Date) after it is determined that such Governmental Authority, gives the other party the opportunity action is necessary to attend and participate. Neither party shall consent to any voluntary extension of any statutory deadline or waiting period or to any voluntary delay of the obtain approval for consummation of the transactions contemplated by this Agreement or withdraw by any Governmental Entity; provided that any such action described in the foregoing clauses (A) through (C) may, at the discretion of Buyer, be conditioned upon the Closing. In furtherance of the foregoing, Buyer shall, and shall cause its notification Subsidiaries to, keep Seller fully informed of all matters, discussions and report form pursuant to the HSR Act or any other filing made pursuant activities relating to any Regulatory Law unless of the other party has given its prior written consent to such extension matters described in or delay; andcontemplated by clauses (A) through (D) of this Section 5.1(f).
(vg) without limiting Section 5.3(b)(iv) above, each of Seller and Buyer, in During the event that any permanent or preliminary injunction or other order is entered or becomes reasonably foreseeable to be entered in any proceeding that would make consummation of period from the acquisition of the FH Shares, the Acquired FH Assets or the other transactions contemplated hereby in accordance with the terms date of this Agreement unlawful until the Closing Date (or that would prevent or delay consummation such later date on which all transfers of the acquisition of the FH SharesBusiness and Acquired Assets contemplated by Section 5.17 have been completed), the Acquired FH Assets or the other transactions contemplated except as required by this Agreement, Buyer and its Affiliates shall use its reasonable best efforts necessary not, without the prior written consent of Seller, engage in any action or enter into any transaction or permit any action to vacate, modify be taken or suspend such injunction or order so as transaction to permit such consummation on a schedule as close as possible to that contemplated by this Agreement unless, by mutual agreement, Seller and Buyer decide that litigation is not in their respective best interests.
(c) In the event that (i) any Non-Material Antitrust Approval of any Governmental Authority is not obtained on or prior to the Closing Date or (ii) there exists, at such time as the conditions to the Closing shall have been satisfied or waived (other than those conditions that are satisfied by action taken at the Closing, providedbe entered into, that such conditions would reasonably be so satisfied), any Regulatory Law (except with respect to the Required Antitrust Approvals) that makes illegal or enjoins or prevents in any respect the consummation of the transactions contemplated by this Agreement (each of clauses (i) and (ii), a “Delayed Antitrust Approval”), then Seller and Buyer shall effect the Closing (including payment of the entire Preliminary Purchase Price), subject to the terms of this Agreement (including, but not limited to, Section 8.1(b)), with respect to all FH Shares, the Acquired FH Assets and Assumed Liabilities outside of the jurisdiction of any such Governmental Authority or such Regulatory Law; provided, however, that the obligations of the parties hereto set forth in this Section 5.3 shall continue with respect to each such Delayed Antitrust Approval until such Delayed Antitrust Approval is obtained, and upon receipt of such Delayed Antitrust Approval, the parties hereto shall effect the transfer of the affected FH Shares, Acquired FH Assets and Assumed Liabilities in accordance with this Agreement and the applicable Local Purchase Agreement. Each such transfer, upon occurrence, shall be retroactive to and be deemed expected to have occurred on a Buyer Material Adverse Effect. Without limiting the Closing Date. Furthermore, as generality of the Closing Date, Seller and Buyer shall, subject to applicable Law, enter into mutually agreeable alternative business arrangements consistent with the terms of this Agreement or other arrangements which provide Buyer with the net economic benefit or loss (after taking into account any adverse Tax consequences to Seller) of, and liability for, the affected FH Shares, the FH Assets and Assumed Liabilities from and after the Closing Date and continuing until each Delayed Antitrust Approval is obtained. Notwithstanding the foregoing, in the event that any Delayed Antitrust Approval has not been obtained within twenty-four (24) months of the Closing Date, Seller shall have the right at any time thereafter, in its sole discretion, to sell any of the affected FH Shares, the FH Assets or Assumed Liabilities to a third party at a price determined in good faith by Seller to be a commercially reasonable price, and upon consummation of any such sale, (x) Seller shall pay the proceeds of such sale to Buyer (provided that Seller may reduce such payment by an amount equal to its fees and expenses (or an estimate thereof) and any Taxes payable as a result of such sale) and (y) the obligations of the parties pursuant to this Section 5.3(c) (other than pursuant to the preceding clause (x)) with respect to such FH Shares, the FH Assets or Assumed Liabilities shall cease.
(d) None none of Buyer or the Subsidiaries of Buyer its Affiliates shall, and shall not cause any Person to, without the prior consent of Seller, acquire (whether via merger, consolidation, stock or asset purchase or otherwise), or enter into any definitive agreement agree to so acquire, any assets of or any equity in any other Person or any business or division thereof (excluding, for the avoidance of doubt, any acquisition of any goods or services in the ordinary course of business)thereof, unless that acquisition or agreement would not reasonably be expected to, in any material respect, to (x) increase the risk of not obtaining failing to obtain any authorizations, consents, orders, declarations or approvals of any Governmental Authority Entity necessary to consummate the transactions contemplated by this Agreement or the expiration or termination of any waiting period under any Regulatory Law; (y) increase the risk of any Governmental Authority Entity entering an order prohibiting the consummation of the transactions contemplated by this Agreement, or materially increase the risk of not being able to remove any such order on appeal or otherwise; or (z) delay or prevent the consummation of the transactions contemplated by this Agreement.
(e) Buyer shall use reasonable best efforts to cause the shares of Buyer Common Stock constituting the Buyer Stock Consideration to be approved for listing on the NYSE, with such listing to be effective as of the Closing, subject only to official notice of issuance.
Appears in 1 contract
Certain Governmental Approvals. (a) Subject to the terms and conditions set forth in this AgreementAgreement and without limiting Section 6.3(b)(iv) below, each of the parties hereto shall use its reasonable best efforts (subject to, and in accordance with, Regulatory Law) to take, or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable under applicable Regulatory Laws to consummate and make effective the transactions contemplated by this Agreement, as promptly as practicable, including (a) the obtaining of all necessary actions, waivers, consents and approvals from Governmental Authorities, and the making of all necessary registrations and filings and the taking of all steps as may be necessary to obtain an approval or waiver from, or to avoid an Action by, any Governmental Authority in connection with any Regulatory Law, (b) the defending of any Actions, whether judicial or administrative, brought under, pursuant to or relating to any Regulatory Law challenging this Agreement or the consummation of the transactions contemplated by this Agreement, (c) the compliance with all legal requirements that may be imposed on it with respect to this Agreement or the transactions contemplated hereby and (d) the execution and delivery of any additional instruments necessary to consummate the transactions contemplated by this Agreement.
(b) Without limiting the generality of the undertakings pursuant to Section 5.3(a) above:6.3(a):
(i) Seller CECity and Buyer shall, as promptly as practicableon August 3, but in no event later than (x) ten (10) Business Days after the date hereof2015, file the notification and report form pursuant to the HSR Act and (y) fifteen (15) Business Days after the date hereof, effect all other necessary notifications, or registrations to obtain the Required Antitrust Approvals, in each case as required for the transactions contemplated hereby, and request early termination of such filing;
(ii) Seller CECity and Buyer shall use reasonable best efforts to cooperate with each other in (A) determining whether any filings are required to be made with, or consents, permits, authorizations, waivers or approvals are required to be obtained from, any third parties or other Governmental Authorities under any other applicable Regulatory Law in connection with the execution and delivery of this Agreement and the consummation of the transactions contemplated by this Agreement and (B) timely making all such filings and timely seeking all such consents, permits, authorizations or approvals;
(iii) Seller and Buyer shall use reasonable best efforts to make, as promptly as practicable following the date hereof, any filings or notifications with the State Department’s Directorate of Defense Trade Controls that are required under ITAR, including applicable notifications contemplated under 22 C.F.R. § 122.4.
(iv) Seller CECity and Buyer shall keep each other apprised of the status of matters relating to the completion of the transactions contemplated by this Agreement and and, to the extent permitted by Law, promptly furnish the other with copies of notices or other communications (or, in the case of material oral communications, advise the other orally of such communications) between Seller CECity or Buyer and their representatives respective Representatives and counsel, as the case may be, or any of their respective Subsidiaries, and any Governmental Authority with respect to such transactions. Seller CECity and Buyer shall keep each other timely apprised of any inquiries or requests for additional information from any Governmental Authority pursuant to any Regulatory Law, and shall comply promptly with any such reasonable inquiry or request. Seller CECity and Buyer shall shall, to the extent permitted by Law, permit counsel for the other party reasonable opportunity to review in advance, and consider in good faith the views of the other party in connection with, any proposed written communication to any Governmental Authority. Each of Seller CECity and Buyer agrees not to participate in any substantive meeting or discussion, either in person or by telephone, with any Governmental Authority in connection with the transactions contemplated by this Agreement unless it consults with the other party in advance and, to the extent not prohibited by such Governmental Authority, gives the other party the opportunity to attend and participate. Neither party shall consent to any voluntary extension of any statutory deadline or waiting period or to any voluntary delay of the consummation of the transactions contemplated by this Agreement or withdraw its notification and report form pursuant to the HSR Act or any other filing made pursuant to any Regulatory Law unless the other party has given its prior written consent to such extension or delay, which consent shall not be unreasonably withheld, conditioned or delayed;
(iv) Buyer shall take or cause to be taken any and all action reasonably necessary, including but not limited to (A) selling or otherwise disposing of, or holding separate and agreeing to sell or otherwise dispose of, assets, categories of assets or businesses of the Buyer or its Subsidiaries; (B) terminating existing relationships, contractual rights or obligations of the Buyer or its Subsidiaries; (C) terminating any venture or other arrangement; (D) creating any relationship, contractual rights or obligations of the Buyer or its Subsidiaries or (E) effectuating any other change or restructuring of the Buyer or its subsidiaries (and, in each case, to enter into agreements or stipulate to the entry of an order or decree or file appropriate applications with any Governmental Authority in connection with any of the foregoing) (each a “Divestiture Action”) to ensure that no Governmental Authority enters any order, decision, judgment, decree, ruling, injunction (preliminary or permanent), or establishes any law, rule, regulation or other action preliminarily or permanently restraining, enjoining or prohibiting the consummation of the transactions contemplated by this Agreement, or to ensure that no Governmental Authority with the authority to clear, authorize or otherwise approve the consummation of the transactions contemplated by this Agreement, fails to do so by the Outside Date. In the event that any action is threatened or instituted challenging the transactions contemplated by this Agreement as violative of any antitrust Law, Buyer shall take all action reasonably necessary, including but not limited to any Divestiture Action to avoid or resolve such action. In furtherance of the foregoing, Buyer shall, and shall cause its Affiliates to, keep CECity fully informed of all matters, discussions and activities relating to any of the matters described in or contemplated by clauses (A) through (E) of this Section 6.3(b)(iv); and
(v) without limiting Section 5.3(b)(iv) above6.3(b)(iv), each of Seller CECity and BuyerBuyer (and Buyer shall cause its Affiliates to), in the event that any permanent or preliminary injunction or other order is entered or becomes reasonably foreseeable to be entered in any proceeding that would make consummation of the acquisition of the FH Shares, the Acquired FH Assets Shares or the other transactions contemplated hereby in accordance with the terms of this Agreement unlawful or that would prevent or delay consummation of the acquisition of the FH Shares, the Acquired FH Assets Shares or the other transactions contemplated by this Agreement, shall use its reasonable best efforts necessary to avoid, vacate, modify or suspend such injunction or order so as to permit such consummation on a schedule as close as possible to that contemplated by this Agreement unless, by mutual agreement, Seller and Buyer decide that litigation is not in their respective best interestsno later than the Outside Date.
(c) In During the event that (i) any Non-Material Antitrust Approval period from the date of any Governmental Authority is not obtained on or prior to this Agreement until the Closing Date Date, except as required by this Agreement, Buyer and its Affiliates, on the one hand, and CECity, the Shareholders, the Shareholders’ Representative and their Affiliates, on the other hand, shall not, without the prior written consent of CECity or (ii) there existsBuyer, at such time as the conditions to the Closing shall have been satisfied or waived (other than those conditions that are satisfied by action taken at the Closingrespectively, provided, that such conditions would be so satisfied), any Regulatory Law (except with respect to the Required Antitrust Approvals) that makes illegal or enjoins or prevents engage in any respect action or enter into any transaction or permit any action to be taken or transaction to be entered into, which would reasonably be likely to prevent or materially delay the consummation by Buyer of the transactions contemplated by this Agreement (each of clauses (i) and (ii), a “Delayed Antitrust Approval”), then Seller and Buyer shall effect the Closing (including payment of the entire Preliminary Purchase Price), subject to the terms of this Agreement (including, but not limited to, Section 8.1(b)), with respect to all FH Shares, the Acquired FH Assets and Assumed Liabilities outside of the jurisdiction of any such Governmental Authority or such Regulatory Law; provided, however, that the obligations of the parties hereto set forth in this Section 5.3 shall continue with respect to each such Delayed Antitrust Approval until such Delayed Antitrust Approval is obtained, and upon receipt of such Delayed Antitrust Approval, the parties hereto shall effect the transfer of the affected FH Shares, Acquired FH Assets and Assumed Liabilities in accordance with this Agreement and the applicable Local Purchase Agreement. Each such transfer, upon occurrence, shall be retroactive to and be deemed to have occurred on Without limiting the Closing Date. Furthermore, as generality of the Closing Date, Seller and Buyer shall, subject to applicable Law, enter into mutually agreeable alternative business arrangements consistent with the terms of this Agreement or other arrangements which provide Buyer with the net economic benefit or loss (after taking into account any adverse Tax consequences to Seller) of, and liability for, the affected FH Shares, the FH Assets and Assumed Liabilities from and after the Closing Date and continuing until each Delayed Antitrust Approval is obtained. Notwithstanding the foregoing, in the event that any Delayed Antitrust Approval has not been obtained within twenty-four (24) months of the Closing Date, Seller shall have the right at any time thereafter, in its sole discretion, to sell any of the affected FH Shares, the FH Assets or Assumed Liabilities to a third party at a price determined in good faith by Seller to be a commercially reasonable price, and upon consummation of any such sale, (x) Seller shall pay the proceeds of such sale to Buyer (provided that Seller may reduce such payment by an amount equal to its fees and expenses (or an estimate thereof) and any Taxes payable as a result of such sale) and (y) the obligations of the parties pursuant to this Section 5.3(c) (other than pursuant to the preceding clause (x)) with respect to such FH Shares, the FH Assets or Assumed Liabilities shall cease.
(d) None none of Buyer or the Subsidiaries of Buyer its Affiliates shall, and shall not cause any Person to, without the prior consent of Seller, acquire (whether via merger, consolidation, stock or asset purchase or otherwise), or enter into any definitive agreement agree to so acquire, any assets of or any equity in any other Person or any business or division thereof (excluding, for the avoidance of doubt, any acquisition of any goods or services in the ordinary course of business)thereof, unless that acquisition or agreement would not reasonably be expected to, in any material respect, likely to (x) materially increase the risk of not obtaining any authorizations, consents, orders, declarations or approvals of any Governmental Authority necessary to consummate the transactions contemplated by this Agreement or the expiration or termination of any waiting period under any Regulatory Law; (y) materially increase the risk of any Governmental Authority entering an order prohibiting the consummation of the transactions contemplated by this Agreement, or materially increase the risk of not being able to remove any such order on appeal or otherwise; or (z) delay or prevent the consummation of the transactions contemplated by this Agreement.
(e) Buyer shall use reasonable best efforts to cause the shares of Buyer Common Stock constituting the Buyer Stock Consideration to be approved for listing on the NYSE, with such listing to be effective as of the Closing, subject only to official notice of issuance.
Appears in 1 contract
Certain Governmental Approvals. (a) Subject to the terms and conditions set forth in this AgreementAgreement and without limiting Section 5.3(b)(iv) below, each of the parties hereto shall use its reasonable best efforts (subject to, and in accordance with, Regulatory Law) to take, or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable under applicable Regulatory Laws to consummate and make effective the transactions contemplated by this Agreement, as promptly as practicable, including (a) the obtaining of all necessary actions, waivers, consents and approvals from Governmental Authorities, and the making of all necessary registrations and filings and the taking of all steps as may be necessary to obtain an approval or waiver from, or to avoid an Action by, any Governmental Authority in connection with any Regulatory Law, (b) the defending of any Actions, whether judicial or administrative, brought under, pursuant to or relating to any Regulatory Law challenging this Agreement or the consummation of the transactions contemplated by this Agreement, (c) the compliance with all legal requirements that may be imposed on it with respect to this Agreement or the transactions contemplated hereby and (d) the execution and delivery of any additional instruments necessary to consummate the transactions contemplated by this Agreement.
(b) Without limiting the generality of the undertakings pursuant to Section 5.3(a) above:):
(i) Seller TDY and Buyer shall, as promptly as practicable, but in no event later than (x) ten fifteen (1015) Business Days after the date hereof, file the notification and report form pursuant to the HSR Act and (y) fifteen twenty (1520) Business Days after the date hereof, effect all other necessary notifications, or registrations pursuant to any applicable Regulatory Law, including to obtain the Required Antitrust Approvals, in each case as required for the transactions contemplated hereby;
(ii) Seller TDY and Buyer shall use reasonable best efforts to cooperate with each other in (A) determining whether any filings are required to be made with, or consents, permits, authorizations, waivers or approvals are required to be obtained from, any third parties or other Governmental Authorities under any other applicable Regulatory Law (other than the HSR Act, which is the subject of Section 5.3(b)(i)) in connection with the execution and delivery of this Agreement and the consummation of the transactions contemplated by this Agreement and (B) timely making all such filings and timely seeking all such consents, permits, authorizations or approvals;
(iii) Seller and Buyer shall use reasonable best efforts to make, as promptly as practicable following the date hereof, any filings or notifications with the State Department’s Directorate of Defense Trade Controls that are required under ITAR, including applicable notifications contemplated under 22 C.F.R. § 122.4.
(iv) Seller TDY and Buyer shall keep each other apprised of the status of matters relating to the completion of the transactions contemplated by this Agreement and and, to the extent permitted by Law, promptly furnish the other with copies of notices or other communications (or, in the case of material oral communications, advise the other orally of such communicationscommunications (orally or otherwise)) between Seller TDY or Buyer and their representatives and counselRepresentatives, as the case may be, or any of their respective Subsidiaries, and any Governmental Authority with respect to such transactions. Seller TDY and Buyer shall keep each other timely apprised of any inquiries or requests for additional information from any Governmental Authority pursuant to any Regulatory Law, and shall comply promptly with any such reasonable inquiry or request. Seller TDY and Buyer shall shall, to the extent permitted by Law, permit counsel for the other party reasonable opportunity to review in advance, and consider in good faith the views of the other party in connection with, any proposed written communication to any Governmental Authority. Each Authority relating to the completion of Seller and Buyer agrees not to participate in any substantive meeting or discussion, either in person or by telephone, with any Governmental Authority in connection with the transactions contemplated by this Agreement unless it consults Agreement. TDY and Buyer each agree, to the extent possible, to consult with the other party in advance of, and, to the extent not prohibited by such Governmental Authority, gives to give the other party the opportunity to attend and participateto participate in any meeting, telephone conference or other oral communication with any Governmental Authority relating to the transactions contemplated by this Agreement. Neither party shall consent to any voluntary extension of any statutory deadline or waiting period or to any voluntary delay of the consummation of the transactions contemplated by this Agreement or withdraw its notification and report form pursuant to the HSR Act or any other filing made pursuant to any Regulatory Law unless the other party has given its prior written consent to such extension or delay;
(iv) Buyer shall, at Buyer’s sole cost, take, or cause to be taken, any and all actions and do, or cause to be done, any and all things necessary, proper or advisable to avoid, eliminate and resolve each and every impediment and obtain all Required Antitrust Approvals in connection with the consummation of the transactions contemplated by this Agreement, as promptly as practicable (but in any event at least five (5) Business Days prior to the Outside Date). The actions required by the preceding sentence will be limited as follows: Buyer shall not be required to, and shall not be required to cause its Affiliates to, (A) sell or otherwise dispose of, or hold separate and agree to sell or otherwise dispose of any assets or businesses now owned or presently sought to be acquired pursuant to the transaction contemplated hereby by Buyer or its Affiliates consisting of assets valued in excess of $60,000,000, individually or in the aggregate; (B) terminate any existing relationship, contractual right or obligation related to any assets or businesses now owned or presently sought to be acquired pursuant to the transaction contemplated hereby by Buyer or its Affiliates with a value in excess of $60,000,000 over the life of such relationship, contractual right or obligation, individually or in the aggregate; or (C) enter into agreements, including with the relevant Governmental Authority, giving effect to the foregoing clauses (A) or (B). Buyer shall, and shall cause its Affiliates to, keep TDY fully informed of all matters, discussions and activities relating to any of the matters described in or contemplated by clauses (A) through (C) of this Section 5.3(b)(iv); and
(v) without limiting Section 5.3(b)(iv) above), each of Seller TDY and BuyerBuyer (and each shall cause its Affiliates to), in the event that any permanent or preliminary injunction or other order is entered or becomes reasonably foreseeable to be entered in any proceeding that would make consummation of the acquisition of the FH Shares, the Acquired FH Tungsten Materials Assets or the other transactions contemplated hereby in accordance with the terms of this Agreement unlawful or that would prevent or delay consummation of the acquisition of the FH Shares, the Acquired FH Tungsten Materials Assets or the other transactions contemplated by this Agreement, shall use its reasonable best efforts necessary to avoid, vacate, modify or suspend such injunction or order so as to permit such consummation on a schedule as close as possible to that contemplated by this Agreement unless, by mutual agreement, Seller TDY and Buyer decide that litigation action is not in their respective best interests.
(c) In the event that (i) any Non-Material Antitrust Approval of any Governmental Authority is not obtained on or prior to the Closing Date or (ii) there exists, at such time as the conditions to the Closing shall have been satisfied or waived (other than those conditions that are satisfied by action taken at the Closing, provided, provided that such conditions would be so satisfied), any Regulatory Law (except with respect to the Required Antitrust Approvals) that makes illegal or enjoins or prevents in any respect the consummation of the transactions contemplated by this Agreement (each of clauses (i) and (ii), a “Delayed Antitrust Approval”), then Seller TDY and Buyer shall effect the Closing (including payment of the entire Preliminary Purchase Price), subject to the terms of this Agreement (including, but not limited to, Section 8.1(b7.1(b)), with respect to all FH Shares, the Acquired FH Tungsten Materials Assets and Assumed Liabilities outside of the jurisdiction of any such Governmental Authority or such Regulatory Law; provided, however, that the obligations of the parties hereto set forth in this Section 5.3 5.3(c) shall continue with respect to each such Delayed Antitrust Approval until such Delayed Antitrust Approval is obtained, and upon receipt of such Delayed Antitrust Approval, the parties hereto shall effect the transfer of the affected FH Shares, Acquired FH Tungsten Materials Assets and Assumed Liabilities in accordance with this Agreement and the applicable Local Purchase Agreement. Each such transfer, upon occurrence, shall be retroactive to and be deemed to have occurred on the Closing Date. Furthermore, as of the Closing Date, Seller TDY and Buyer shall, subject to applicable Law, enter into mutually agreeable alternative business arrangements consistent with the terms of this Agreement or other arrangements which provide Buyer with the net economic benefit or loss (after taking into account any adverse Tax consequences to SellerTDY or ATI) of, and liability for, the affected FH Shares, the FH Tungsten Materials Assets and Assumed Liabilities from and after the Closing Date and continuing until each Delayed Antitrust Approval is obtained. Notwithstanding the foregoing, in the event that any Delayed Antitrust Approval has not been obtained within twenty-four (24) months of the Closing Date, Seller TDY shall have the right at any time thereafter, in its sole discretion, to sell any of the affected FH SharesTungsten Materials Assets, the FH Assets Shares or Assumed Liabilities to a third party at a price determined in good faith by Seller TDY to be a commercially reasonable price, and upon consummation of any such sale, (x) Seller TDY shall pay the proceeds of such sale to Buyer (provided that Seller TDY may reduce such payment by an amount equal to its fees and expenses (or an estimate thereof) and any incremental Taxes payable as a result of such sale) and (y) the obligations of the parties pursuant to this Section 5.3(c) (other than pursuant to the preceding clause (x)) with respect to such FH Shares, the FH Tungsten Materials Assets or Assumed Liabilities shall cease.
(d) None During the period from the date of this Agreement until the Closing Date (or such later date on which all transfers of the Tungsten Materials Business and Tungsten Materials Assets contemplated by Section 5.18 have been completed), except as required by this Agreement, Buyer and its Affiliates shall not, without the prior written consent of TDY, engage in any action or enter into any transaction or permit any action to be taken or transaction to be entered into, that would reasonably be expected to have a Buyer Material Adverse Effect. Without limiting the generality of the foregoing, none of Buyer or the Subsidiaries of Buyer its Affiliates shall, and shall not cause any Person to, without the prior consent of Seller, acquire (whether via merger, consolidation, stock or asset purchase or otherwise), or enter into any definitive agreement agree to so acquire, any assets of or any equity in any other Person or any business or division thereof (excluding, for the avoidance of doubt, any acquisition of any goods or services in the ordinary course of business)thereof, unless that acquisition or agreement would not reasonably be expected to, in any material respect, to materially (x) increase the risk of not obtaining any authorizations, consents, orders, declarations or approvals of any Governmental Authority necessary to consummate the transactions contemplated by this Agreement or the expiration or termination of any waiting period under any Regulatory Law; (y) increase the risk of any Governmental Authority entering an order prohibiting the consummation of the transactions contemplated by this Agreement, or materially increase the risk of not being able to remove any such order on appeal or otherwise; or (z) delay or prevent the consummation of the transactions contemplated by this Agreement.
(e) Subject to the terms and conditions set forth in this Agreement, Buyer shall, and shall cause its Affiliates to, use reasonable best efforts to cause obtain all Permits, if any, relating to any Export Control and Import Laws necessary for Buyer and its Affiliates, as applicable, to operate the shares of Tungsten Materials Business in their respective names, as the case may be, and TDY shall cooperate with Buyer Common Stock constituting the Buyer Stock Consideration and its Affiliates in their efforts to be approved for listing on the NYSE, with obtain such listing to be effective as of the Closing, subject only to official notice of issuancePermits.
Appears in 1 contract
Certain Governmental Approvals. (a) Except as otherwise required by Law, all filings pursuant to this Clause 7.3 shall be finalised and submitted by Buyer; provided that such filings shall require the prior written consent of VPI. Notwithstanding the foregoing, if Buyer is in default of finalising and submitting any merger control filing required, then VPI, upon two (2) weeks' prior notice, is entitled to finalise and submit such filings.
(b) Subject to the terms and conditions set forth in this Agreement, each of the parties hereto shall use its reasonable best efforts (subject to, and in accordance with, Regulatory Law) endeavors to take, or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable under applicable Regulatory Laws to consummate and make effective the transactions contemplated by this Agreement, as promptly as practicable, including (i) the obtaining of all necessary actions, waivers, consents and approvals from Governmental Authorities, and the making of all necessary registrations and filings and the taking of all steps as may be necessary to obtain an approval or waiver from, or to avoid an Action by, any Governmental Authority, (ii) the obtaining of all necessary consents, approvals or waivers from third parties required to be obtained by VPI or Buyer, or their respective Subsidiaries in connection with the transactions contemplated by this Agreement, (iii) the defending of any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the transactions contemplated by this Agreement and (iv) the execution and delivery of any additional instruments necessary to consummate the transactions contemplated by this Agreement, provided, however, in the case of each (i) through (iv) above, Buyer shall be solely responsible for any costs and expenses incurred by VPI or any of the other Sellers and Buyer in connection therewith (other than the costs and expenses of VPI's counsel in connection therewith).
(bc) Without Subject to the terms and conditions in this Agreement and without limiting the generality of the undertakings pursuant to Section 5.3(a) aboveforegoing:
(i) Seller VPI and Buyer shall, as promptly as practicable, but in no event later than (x) ten (10) Business Days after the date hereof, file the notification and report form pursuant to the HSR Act and (y) fifteen (15) Business Days after the date hereof, effect hereof file all other necessary notifications, or registrations to obtain the Required Antitrust Approvals, in each case as required for the transactions contemplated hereby;; provided that Buyer shall pay all filing fees and other expenses to be paid in connection with obtaining any of the Required Antitrust Approvals (other than the costs and expenses of VPI's counsel in connection therewith).
(ii) Seller VPI and Buyer shall use reasonable best efforts endeavors to cooperate with each other in (A) determining whether any filings are required to be made with, or consents, permits, authorizations, waivers or approvals are required to be obtained from, any third parties or other Governmental Authorities under any other applicable Regulatory anti-trust and competition Law in connection with the execution and delivery of this Agreement and the consummation of the transactions contemplated by this Agreement and (B) timely making all such filings and timely seeking all such consents, permits, authorizations or approvals;; provided, however, that Buyer shall be solely responsible for any costs and expenses necessary to obtain any such consent, permit, authorization, waiver or approval incurred by VPI or any other Seller in its capacity as Buyer's agent in connection herewith (other than the costs and expenses of VPI's counsel in connection therewith).
(iii) Seller and Buyer shall use reasonable best efforts to make, as promptly as practicable following the date hereof, any filings or notifications with the State Department’s Directorate of Defense Trade Controls that are required under ITAR, including applicable notifications contemplated under 22 C.F.R. § 122.4.
(iv) Seller VPI and Buyer shall keep each other apprised of the status of matters relating to the completion of the transactions contemplated by this Agreement and promptly furnish the other with copies of notices or other communications (or, in the case of material oral communications, advise the other orally of such communications) between Seller VPI or Buyer and their representatives and counsel, as the case may be, or any of their respective Subsidiaries, and any third party and/or any Governmental Authority with respect to such transactions. Seller Each of VPI and Buyer shall use all reasonable endeavors to take such action as may be required to cause the expiration of the waiting periods under the applicable anti-trust and competition Laws with respect to such transactions as promptly as possible after the execution of this Agreement. VPI and Buyer shall keep each other timely apprised appraised of any inquiries or requests for additional information from any Governmental Authority pursuant to any Regulatory applicable anti-trust and competition Law, and shall comply promptly with any such reasonable inquiry or request. Seller VPI and Buyer shall permit counsel for the other party reasonable opportunity to review in advance, and consider in good faith the views of the other party in connection with, any proposed written communication to any Governmental Authority. Each of Seller VPI and Buyer agrees not to participate in any substantive meeting or discussion, either in person or by telephone, with any Governmental Authority in connection with the transactions contemplated by this Agreement unless it consults with the other party in advance and, to the extent not prohibited by such Governmental Authority, gives the other party the opportunity to attend and participate. Neither party shall consent ;
(d) If such action is necessary to any voluntary extension of any statutory deadline or waiting period or to any voluntary delay of the obtain approval for consummation of the transactions contemplated by this Agreement by any Governmental Authority under applicable antitrust and competition Law, Buyer shall (i) divest of any assets or withdraw its notification and report form pursuant to the HSR Act or any other filing made pursuant to any Regulatory Law unless the other party has given its prior written consent to such extension or delay; and
(v) without limiting Section 5.3(b)(iv) above, each businesses of Seller and Buyer, in the event that any permanent or preliminary injunction or other order is entered or becomes reasonably foreseeable to be entered in any proceeding that would make consummation of the acquisition of the FH Shares, the Acquired FH Assets Buyer or the other transactions contemplated hereby in accordance with the terms WEEMEA Companies (ii) hold any assets or businesses of this Agreement unlawful or that would prevent or delay consummation of the acquisition of the FH Shares, the Acquired FH Assets Buyer or the other transactions contemplated by this AgreementWEEMEA Companies separate, or (iii) terminate or amend any existing licenses, contractual arrangements or intellectual property agreements of Buyer or the WEEMEA Companies; Buyer shall use its reasonable best efforts necessary be required to vacatetake such required actions unless such required actions are reasonably likely to result in a Material Detrimental Effect. If the Buyer reasonably determines that required actions are reasonably likely to result in a Material Detrimental Effect, modify or suspend such injunction or order so as then Buyer shall not be required to permit such consummation on a schedule as close as possible to that contemplated by this Agreement unless, by mutual agreement, Seller and Buyer decide that litigation is not in their respective best intereststake any further actions.
(ce) In the event that (i) any Non-Material Antitrust Approval approval of any a Governmental Authority is not obtained on or prior to the Closing Date Date, or (ii) there exists, at such time as the conditions to the Closing shall have been satisfied or waived (other than those conditions that are satisfied by action taken at the Closing, provided, that such conditions would be so satisfied), exists any Regulatory anti-trust and competition Law (except with respect to the Required Antitrust Approvals) that makes illegal or enjoins or prevents in any respect the consummation of the transactions contemplated by this Agreement (each except with respect of clauses (i) and (ii), a “Delayed the Required Antitrust Approval”)Approvals, then Seller VPI and Buyer shall effect the Closing (including payment of the entire Preliminary Purchase Price), subject to the terms of this Agreement (including, but not limited to, Section 8.1(b8.1(a)), with respect to all FH Transferred Shares, the Acquired FH Transferred Assets and Assumed Liabilities outside of the jurisdiction of any such Governmental Authority or such Regulatory anti-trust and competition Law; provided, however, that the obligations of the parties hereto set forth in this Section 5.3 7.3 shall continue with respect to each any such Delayed Antitrust Approval compliance with Law, approval or action until such Delayed Antitrust Approval compliance with Law, approval or action is obtainedobtained or taken, as the case may be, and upon receipt the occurrence of such Delayed Antitrust Approvalcompliance with Law, approval or action, the parties hereto shall effect the transfer of the affected FH SharesWEEMEA Company or Subsidiary of WEEMEA Company, Acquired FH Transferred Assets and Assumed Liabilities in accordance with this Agreement and the applicable Local Purchase Agreement. Each such transfer, upon occurrence, shall be retroactive to and be deemed to have occurred on the Closing Date. Furthermore, as of the Closing Date, Seller VPI and Buyer shall, subject to applicable Law, enter into mutually agreeable alternative business arrangements consistent with the terms of this Agreement or other arrangements which provide Buyer with the net economic benefit or loss (after taking into account any adverse Tax consequences to Seller) ofloss, and liability forliability, of the affected FH Transferred Shares, the FH Transferred Assets and Assumed Liabilities from and after the Closing Date and continuing until each Delayed Antitrust Approval is obtained. Notwithstanding the foregoing, in the event that any Delayed Antitrust Approval has not been obtained within twenty-four (24) months of the Closing Date, Seller shall have the right at any time thereafter, in its sole discretion, to sell any of the affected FH Shares, the FH Assets or Assumed Liabilities to a third party at a price determined in good faith by Seller to be a commercially reasonable price, and upon consummation of any such sale, (x) Seller shall pay the proceeds of such sale to Buyer (provided that Seller may reduce such payment by an amount equal to its fees and expenses (approval or an estimate thereof) and any Taxes payable as a result of such sale) and (y) the obligations of the parties pursuant to this Section 5.3(c) (other than pursuant to the preceding clause (x)) with respect to such FH Shares, the FH Assets action is obtained or Assumed Liabilities shall ceasetaken.
(d) None of Buyer or the Subsidiaries of Buyer shall, and shall not cause any Person to, without the prior consent of Seller, acquire (whether via merger, consolidation, stock or asset purchase or otherwise), or enter into any definitive agreement to so acquire, any assets of or any equity in any other Person or any business or division thereof (excluding, for the avoidance of doubt, any acquisition of any goods or services in the ordinary course of business), unless that acquisition or agreement would not reasonably be expected to, in any material respect, (x) increase the risk of not obtaining any authorizations, consents, orders, declarations or approvals of any Governmental Authority necessary to consummate the transactions contemplated by this Agreement or the expiration or termination of any waiting period under any Regulatory Law; (y) increase the risk of any Governmental Authority entering an order prohibiting the consummation of the transactions contemplated by this Agreement, or materially increase the risk of not being able to remove any such order on appeal or otherwise; or (z) delay or prevent the consummation of the transactions contemplated by this Agreement.
(e) Buyer shall use reasonable best efforts to cause the shares of Buyer Common Stock constituting the Buyer Stock Consideration to be approved for listing on the NYSE, with such listing to be effective as of the Closing, subject only to official notice of issuance.
Appears in 1 contract
Samples: Acquisition Agreement (Valeant Pharmaceuticals International)
Certain Governmental Approvals. (a) Subject to the terms and conditions set forth in this AgreementAgreement and without limiting Section 5.3(b) below, each of the parties hereto shall use its reasonable best efforts (subject to, and in accordance with, Regulatory Law) to take, or cause to be taken, all actions, and use its reasonable best efforts to do, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable under applicable Regulatory Laws to consummate and make effective the transactions contemplated by this Agreement, as promptly as practicablepracticable and in any event prior to the Outside Date, including using reasonable best efforts to (i) obtain all necessary actions, waivers, consents, approvals, and other Permits from Governmental Authorities, and the making of all necessary registrations and filings and the taking of all steps as may be necessary to obtain an approval or waiver from, or to avoid an Action by, any Governmental Authority in connection with any Required Governmental Approval, (ii) defend through the Outside Date any Actions, whether judicial or administrative, brought under, pursuant to, or relating to any Regulatory Law challenging this Agreement or the consummation of the transactions contemplated by this Agreement, (iii) comply with all legal requirements under applicable Regulatory Law that may be imposed on it with respect to this Agreement or the transactions contemplated hereby, and (iv) execute and deliver of any additional instruments reasonably necessary to consummate the transactions contemplated by this Agreement on the terms and conditions contemplated hereby. Buyer and SEE shall each bear one half of all filing fees to any Governmental Authority required pursuant to applicable Regulatory Laws and all other costs incurred by SEE or Buyer in connection with any required waiver, consent, or approval of any Governmental Authority required pursuant to applicable Regulatory Laws, including pursuant to Section 5.3(b).
(b) Without limiting the generality of the undertakings pursuant to Section 5.3(a) aboveuntil the earlier to occur of the Closing Date or the termination of this Agreement in accordance with its terms:
(i) Seller SEE and Buyer shall, in each case, as required for the transactions contemplated hereby, (A) file the notification and report form pursuant to the HSR Act as promptly as practicable, but in no event later than (x) ten (10) Business Days after the date hereof, file the notification and report form pursuant to the HSR Act and (y) fifteen (15) Business Days after the date hereof, (B) effect all other necessary notifications, or registrations (or drafts as applicable) to obtain the Required Antitrust Governmental Approvals, as promptly as practicable, and in each case any event prior to the Outside Date, and (C) submit, as required for promptly as practicable, any additional information and documentary material that may be requested pursuant to the transactions contemplated herebyHSR Act or in connection with any other Required Governmental Approvals;
(ii) Seller SEE and Buyer shall use reasonable best efforts to cooperate with each other in (A) determining whether any merger control filings are required to be made with, or consents, permits, authorizations, waivers or approvals are required to be obtained from, any third parties or other Governmental Authorities under any other applicable Regulatory Law in connection with the execution and delivery of this Agreement and the consummation of the transactions contemplated by this Agreement Agreement, and (B) timely making all such filings and timely seeking all such consents, permits, authorizations authorizations, waivers or approvals;
(iii) Seller SEE and Buyer shall (and shall cause their respective Affiliates to) use reasonable best efforts to make(A) promptly provide to the other all information, as promptly as practicable following documents, cooperation or assistance including access to personnel that is reasonably requested for the date hereof, preparation of any filings or notifications submissions to, or responses to requests for information from, the relevant Governmental Authorities, (B) cooperate with each other in good faith to take all steps as may be reasonably necessary to obtain all necessary consents, permits, authorizations, waivers, or approvals from any Governmental Authority in connection with any Required Governmental Approvals, (C) consult in advance with each other and in good faith take the State Departmentother party’s Directorate views into account regarding the overall strategic direction of Defense Trade Controls obtaining such Required Governmental Approvals; provided that are required under ITARthe final determination as to the appropriate course of action shall be made by Buyer acting reasonably if SEE and Buyer cannot mutually agree, including applicable notifications contemplated under 22 C.F.R. § 122.4.and (D) consult with each other prior to taking any material substantive position in any written submissions or, to the extent practicable, in any material discussions with any Governmental Authority with respect to such Required Governmental Approvals;
(iv) Seller SEE and Buyer shall keep each other apprised of the status of matters relating to the completion of the transactions contemplated by this Agreement and reasonably promptly furnish the other with copies of notices or other material communications (or, in the case of material oral communications, advise the other orally of such communications) between Seller SEE or Buyer and or any of their respective Subsidiaries (or their respective representatives and counsel, as the case may be, or any of their respective Subsidiaries), and any Governmental Authority with respect to such transactionscommunications; provided that such materials may be redacted as necessary (A) to address good faith legal privilege or confidentiality concerns or (B) to comply with applicable Law, or otherwise shared with Buyer’s external advisors on an “outside-counsel” basis. Seller SEE and Buyer shall keep reasonably promptly notify each other timely apprised of any material inquiries or requests for additional information from any Governmental Authority pursuant to any Regulatory Law, and shall use reasonable best efforts to comply promptly with any such reasonable inquiry or request. Seller SEE and Buyer shall permit counsel for the other party reasonable opportunity to review in advance, and consider in good faith the views of the other party in connection with, any proposed submissions or written communication to any Governmental Authority, including, but not limited to, analyses, presentations, memoranda, briefs, written arguments, opinions, and written proposals, along with any supporting materials; provided, however, that materials may be redacted (1) to remove references concerning the valuation of the Acquired Diversey Assets, the Transferred Diversey Companies, and the Diversey Business, as applicable; (2) as necessary to comply with any Contract or applicable Laws or orders; and (3) as necessary to address reasonable attorney-client or other legal privilege concerns, or otherwise shared with Buyer’s external advisors on an “outside-counsel” basis. Each of Seller SEE and Buyer agrees not to participate in any substantive material meeting or material discussion, either in person or by telephone, with any Governmental Authority in connection with the transactions contemplated by this Agreement unless it consults with the other party in advance and, to the extent not prohibited by such Governmental Authority, gives the other party the opportunity to attend and participate. Neither party shall consent to any voluntary extension of any statutory deadline or waiting period or to any voluntary delay of the consummation of the transactions contemplated by this Agreement or withdraw its notification and report form pursuant to the HSR Act or any other filing made pursuant to any Regulatory Law unless the other party has given its prior written consent to such extension or delay, such consent not to be unreasonably withheld;
(v) Buyer shall, at Buyer’s sole cost, use reasonable best efforts to take, or cause to be taken, any and all actions and use reasonable best efforts to do, or cause to be done, any and all things necessary, proper or advisable to obtain all Required Governmental Approvals in connection with the consummation of the transactions contemplated by this Agreement on the terms and conditions herein, as promptly as practicable. Without limiting the foregoing, Buyer shall proffer to, and shall use reasonable best efforts to: (A) sell or otherwise dispose of, or hold separate and agree to sell or otherwise dispose of, specific assets or categories of assets or businesses of the Transferred Diversey Companies and any of their Subsidiaries; (B) terminate any existing relationships and contractual rights and obligations of the Transferred Diversey Companies or any Subsidiaries or any Diversey Share Buyers or Diversey Asset Buyers; (C) amend or terminate existing licenses or other Intellectual Property agreements and enter into new licenses or other Intellectual Property agreements of the Transferred Diversey Companies or any Subsidiaries or any Diversey Share Buyers or Diversey Asset Buyers; (D) make any behavioral commitments, whether or not they limit or modify the Diversey Share Buyers’, Diversey Asset Buyers’, Transferred Diversey Companies’ or any Subsidiaries’ rights of ownership in, or ability to conduct the business of, one or more of the operations, divisions, businesses, product lines, customers, or assets of the Transferred Diversey Companies or Diversey Business; and (E) enter into agreements, including with the relevant Governmental Authority, giving effect to the foregoing clauses (A) through (D), in each case, as promptly as possible (but in any event at least five (5) Business Days prior to the Outside Date) after it is reasonably determined that such action is reasonably necessary to obtain approval for consummation of the transactions contemplated by this Agreement by any Governmental Authority. In furtherance of the foregoing, Buyer shall keep SEE reasonably informed of all matters, discussions, and activities relating to any of the matters described in or contemplated by clauses (A) through (D) of this Section 5.3(b)(v); and
(vvi) without limiting Section 5.3(b)(iv) above5.3(b)(v), each of Seller SEE and Buyer, in the event that any permanent or preliminary injunction or other order is entered or becomes reasonably foreseeable to be entered in any proceeding brought by any Governmental Authority that would make consummation of the acquisition of the FH Shares, the Acquired FH Assets Diversey Shares or the other transactions contemplated hereby in accordance with the terms of this Agreement unlawful or that would prevent or delay consummation of the acquisition of the FH Shares, the Acquired FH Assets Diversey Shares or the other transactions contemplated by this Agreement, shall use its reasonable best efforts necessary to vacate, modify modify, or suspend such injunction or order so as to permit such consummation on a schedule as close as possible to that contemplated by this Agreement unless, by mutual agreement, Seller SEE and Buyer decide that litigation is not in their respective best interests.
(c) In During the event that (i) any Non-Material Antitrust Approval period from the date of any Governmental Authority is not obtained on this Agreement until the earlier of the termination of this Agreement or prior to the Closing Date (or (ii) there exists, at such time as the conditions to the Closing shall have been satisfied or waived (other than those conditions that are satisfied by action taken at the Closing, provided, that such conditions would be so satisfied), any Regulatory Law (except with respect to the Required Antitrust Approvals) that makes illegal applicable entities or enjoins or prevents in any respect the consummation assets, such later date on which all transfers of the transactions Transferred Diversey Companies contemplated by this Agreement (each of clauses (i) and (iiSection 5.16 have been completed), a “Delayed Antitrust Approval”)except as required by this Agreement, then Seller Buyer and Buyer its Affiliates shall effect not, without the Closing (including payment prior written consent of the entire Preliminary Purchase Price)SEE, subject to the terms of this Agreement (including, but not limited to, Section 8.1(b)), with respect to all FH Shares, the Acquired FH Assets and Assumed Liabilities outside of the jurisdiction of engage in or enter into any such Governmental Authority or such Regulatory Law; provided, however, transaction that the obligations of the parties hereto set forth in this Section 5.3 shall continue with respect to each such Delayed Antitrust Approval until such Delayed Antitrust Approval is obtained, and upon receipt of such Delayed Antitrust Approval, the parties hereto shall effect the transfer of the affected FH Shares, Acquired FH Assets and Assumed Liabilities in accordance with this Agreement and the applicable Local Purchase Agreement. Each such transfer, upon occurrence, shall would reasonably be retroactive to and be deemed expected to have occurred on a Buyer Material Adverse Effect. Without limiting the Closing Date. Furthermore, as generality of the Closing Date, Seller and Buyer shall, subject to applicable Law, enter into mutually agreeable alternative business arrangements consistent with the terms of this Agreement or other arrangements which provide Buyer with the net economic benefit or loss (after taking into account any adverse Tax consequences to Seller) of, and liability for, the affected FH Shares, the FH Assets and Assumed Liabilities from and after the Closing Date and continuing until each Delayed Antitrust Approval is obtained. Notwithstanding the foregoing, in the event that any Delayed Antitrust Approval has not been obtained within twenty-four (24) months none of the Closing DateBuyer, Seller shall have the right at any time thereafter, in its sole discretion, to sell any of the affected FH Shares, the FH Assets or Assumed Liabilities to a third party at a price determined in good faith by Seller to be a commercially reasonable price, and upon consummation of any such sale, (x) Seller shall pay the proceeds of such sale to Buyer (provided that Seller may reduce such payment by an amount equal to its fees and expenses (or an estimate thereof) and any Taxes payable as a result of such sale) and (y) the obligations of the parties pursuant to this Section 5.3(c) (other than pursuant to the preceding clause (x)) with respect to such FH Shares, the FH Assets or Assumed Liabilities shall cease.
(d) None of Buyer or the Subsidiaries of Buyer Buyer, or their respective Affiliates shall, and none of the foregoing shall not cause any Person to, without the prior consent of Seller, acquire (whether via by merger, consolidation, stock or asset purchase or otherwise), or enter into any definitive agreement agree to so acquire, any assets of or any equity in of any other Person or any business or division thereof (excludingthereof, for the avoidance of doubt, any acquisition of any goods or services in the ordinary course of business), unless if that acquisition or agreement would not reasonably be expected to, in any material respect, (x) increase the risk of not obtaining any authorizations, consents, orders, declarations or approvals of any Governmental Authority necessary to consummate the transactions contemplated by this Agreement or the expiration or termination of any waiting period under any Regulatory Law; (y) increase the risk of any Governmental Authority entering an order prohibiting the consummation of the transactions contemplated by this Agreement, or materially increase the risk of not being able to remove any such order on appeal or otherwise; or (z) delay or prevent the consummation of the transactions contemplated by this Agreement. This Section 5.3 shall be Buyer’s sole obligations with respect to approvals required under Regulatory Laws.
(e) Buyer shall use reasonable best efforts to cause the shares of Buyer Common Stock constituting the Buyer Stock Consideration to be approved for listing on the NYSE, with such listing to be effective as of the Closing, subject only to official notice of issuance.
Appears in 1 contract
Certain Governmental Approvals. (a) Subject to the terms and conditions set forth in this Agreement, each of the parties hereto Buyer shall use its commercially reasonable best efforts (subject to, and in accordance with, Regulatory Law) after Closing to take, or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate with obtain the other parties in doing, all things necessary, proper or advisable under applicable Regulatory Laws to consummate and make effective unconditional approval by the transactions contemplated by this Agreement, as promptly as practicable.
(b) Without limiting the generality MMS of the undertakings pursuant to Section 5.3(a) above:
(i) Seller the Assignments of Record Title to Oil and Buyer shall, Gas Lease(s) (Offshore) in the form attached hereto as promptly as practicable, but in no event later than (x) ten (10) Business Days after the date hereof, file the notification and report form pursuant to the HSR Act and (y) fifteen (15) Business Days after the date hereof, effect all other necessary notifications, or registrations to obtain the Required Antitrust Approvals, in each case as required for the transactions contemplated hereby;
Exhibit "E"; (ii) Seller the Assignments of Oil and Buyer shall use reasonable best efforts to cooperate with each other Gas Lease Operating Rights (Offshore) in (A) determining whether any filings are required to be made with, or consents, permits, authorizations, waivers or approvals are required to be obtained from, any third parties or other Governmental Authorities under any other applicable Regulatory Law in connection with the execution form attached hereto as Exhibit "F"; and delivery of this Agreement and the consummation of the transactions contemplated by this Agreement and (B) timely making all such filings and timely seeking all such consents, permits, authorizations or approvals;
(iii) Seller and the Assignments of Rights of Way (Offshore) in the form attached hereto as Exhibit "H". In the event Buyer shall use reasonable best efforts or its nominated operator is elected successor operator under the operating agreements applicable to make, as promptly as practicable following the date hereof, any filings or notifications with the State Department’s Directorate of Defense Trade Controls that are required under ITAR, including applicable notifications contemplated under 22 C.F.R. § 122.4.
(iv) Seller and Buyer shall keep each other apprised of the status of matters relating Leases, Buyer also obligates itself to ensure that it or the successor operator makes application to the completion of the transactions contemplated by this Agreement and promptly furnish the other with copies of notices or other communications (or, in the case of material oral communications, advise the other orally of such communications) between Seller or Buyer and their representatives and counsel, MMS to qualify as the case may be, or any of their respective Subsidiaries, and any Governmental Authority operator with respect to such transactionsthat portion of the Assets it will operate. Seller and Buyer shall keep each other timely apprised take any actions reasonably required of any inquiries or requests for additional information from any Governmental Authority pursuant to any Regulatory Law, and shall comply promptly with any such reasonable inquiry or request. Seller and Buyer shall permit counsel for it by the other party reasonable opportunity to review in advance, and consider in good faith the views of the other party in connection with, any proposed written communication to any Governmental Authority. Each of Seller and Buyer agrees not to participate in any substantive meeting or discussion, either in person or by telephone, with any Governmental Authority in connection with the transactions contemplated by this Agreement unless it consults with the other party in advance and, to the extent not prohibited by such Governmental Authority, gives the other party the opportunity to attend and participate. Neither party shall consent to any voluntary extension of any statutory deadline or waiting period or to any voluntary delay of the consummation of the transactions contemplated by this Agreement or withdraw its notification and report form pursuant to the HSR Act MMS or any other filing made pursuant regulatory agencies to any Regulatory Law unless the other party has given its prior written consent to such extension or delay; and
(v) without limiting Section 5.3(b)(iv) aboveobtain all requisite regulatory approvals, each of Seller and Buyer, in the event that any permanent or preliminary injunction or other order is entered or becomes reasonably foreseeable to be entered in any proceeding that would make consummation of the acquisition of the FH Shares, the Acquired FH Assets or the other transactions contemplated hereby in accordance with the terms of this Agreement unlawful or that would prevent or delay consummation of the acquisition of the FH Shares, the Acquired FH Assets or the other transactions contemplated by this Agreement, shall use its reasonable best efforts necessary to vacate, modify or suspend such injunction or order so as to permit such consummation on a schedule as close as possible to that contemplated by this Agreement unless, by mutual agreement, Seller and Buyer decide that litigation is not in their respective best interests.
(c) In the event that (i) any Non-Material Antitrust Approval of any Governmental Authority is not obtained on or prior to the Closing Date or (ii) there exists, at such time as the conditions to the Closing shall have been satisfied or waived (other than those conditions that are satisfied by action taken at the Closing, provided, that such conditions would be so satisfied), any Regulatory Law (except with respect to the Required Antitrust Approvals) that makes illegal or enjoins or prevents in any respect the consummation of the transactions contemplated by this Agreement (each of clauses (i) and (ii), a “Delayed Antitrust Approval”), then Seller and Buyer shall effect the Closing (including payment of the entire Preliminary Purchase Price), subject to the terms of this Agreement (including, but not limited to, Section 8.1(bthe purchase and posting of any and all bonds, supplemental bonds or other securities which may be required of it pursuant to OPA and 30 C.F.R Sections 250.7, 256.58, 256.59, and 256.61 in excess of any existing lease, pipeline or area-wide bond(s)), . Until the governmental approval with respect to all FH Shares, the Acquired FH Assets and Assumed Liabilities outside of the jurisdiction of any such Governmental Authority or such Regulatory Law; providedan assignment described in this Section 17.1 is obtained, however, that the obligations following shall occur:
(a) Sellers shall continue to hold the operating rights and record title to the applicable Assets as nominee for Buyer;
(b) Buyer's indemnity under Section 13.3 shall include any and all claims, expenses of any kind or character relating to such Assets accruing after the parties hereto Effective Time including but not limited to any bonding or regulatory costs incurred by Sellers;
(c) Sellers shall act as Buyer's nominee with respect to such Assets but shall be authorized to act only upon and in accordance with Buyer's specific written instructions, and Sellers shall have no authority, responsibility or discretion to perform any tasks or functions with respect to the Assets other than those which are purely administrative or ministerial in nature, unless otherwise specifically requested and authorized by Buyer in writing; and
(d) Buyer shall continue to maintain and provide at its cost the insurance coverages with minimum limits of liability as set forth in Section 10.1(f) and (g) of this Section 5.3 shall continue with respect to each such Delayed Antitrust Approval until such Delayed Antitrust Approval is obtained, and upon receipt of such Delayed Antitrust Approval, the parties hereto shall effect the transfer of the affected FH Shares, Acquired FH Assets and Assumed Liabilities in accordance with this Agreement and the applicable Local Purchase Agreement. Each such transferIf the MMS does not, upon occurrence, shall be retroactive to and be deemed to have occurred on the Closing Date. Furthermore, as of within nine (9) months from the Closing Date, Seller approve all (i) the Assignments of Record Title of the Leases (Offshore) into Buyer, (ii) the Assignments of Oil and Buyer shall, subject to applicable Law, enter Gas Lease Operating Rights (Offshore) into mutually agreeable alternative business arrangements consistent with the terms of this Agreement or other arrangements which provide Buyer with the net economic benefit or loss (after taking into account any adverse Tax consequences to Seller) ofBuyer, and liability for, the affected FH Shares, the FH Assets and Assumed Liabilities from and after the Closing Date and continuing until each Delayed Antitrust Approval is obtained. Notwithstanding the foregoing, in the event that any Delayed Antitrust Approval has not been obtained within twenty-four (24) months of the Closing Date, Seller shall have the right at any time thereafter, in its sole discretion, to sell any of the affected FH Shares, the FH Assets or Assumed Liabilities to a third party at a price determined in good faith by Seller to be a commercially reasonable price, and upon consummation of any such sale, (x) Seller shall pay the proceeds of such sale to Buyer (provided that Seller may reduce such payment by an amount equal to its fees and expenses (or an estimate thereof) and any Taxes payable as a result of such sale) and (yiii) the obligations Assignments of the parties pursuant to this Section 5.3(cRights of Way (Offshore) (other than pursuant to the preceding clause (x)) with respect to such FH Sharesinto Buyer, the FH Assets or Assumed Liabilities shall cease.
(d) None of Buyer or the Subsidiaries of Buyer shall, and shall not cause any Person to, without the prior consent of Seller, acquire (whether via merger, consolidation, stock or asset purchase or otherwise), or enter into any definitive agreement to so acquire, any assets of or any equity in any other Person or any business or division thereof (excluding, for the avoidance of doubt, any acquisition of any goods or services in the ordinary course of business), unless that acquisition or agreement would not reasonably be expected to, in any material respect, (x) increase the risk of not obtaining any authorizations, consents, orders, declarations or approvals of any Governmental Authority necessary to consummate the transactions contemplated by this Agreement or the expiration or termination of any waiting period under any Regulatory Law; (y) increase the risk of any Governmental Authority entering an order prohibiting the consummation of the transactions contemplated by this Agreement, or materially increase the risk of not being able to remove any such order on appeal or otherwise; or (z) delay or prevent the consummation of the transactions contemplated by this Agreement.
(e) Buyer shall use reasonable best efforts to cause the shares of Buyer Common Stock constituting the Buyer Stock Consideration to be approved for listing on the NYSE, with such listing to be effective as of the Closing, subject only to official notice of issuance.then:
Appears in 1 contract
Samples: Purchase and Sale Agreement (Houston Exploration Co)
Certain Governmental Approvals. (a) Subject to the terms and conditions set forth in this Agreement, each of the parties hereto shall use its reasonable best efforts (subject to, and in accordance with, Regulatory Law) to take, or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable under applicable Regulatory Laws to consummate and make effective the transactions contemplated by this Agreement, as promptly as practicablepracticable (whether before or after the Closing Date), including (a) the obtaining of all necessary actions, waivers, consents, assignments and approvals from Governmental Authorities, and the making of all necessary registrations and filings and the taking of all steps as may be necessary to obtain an approval or waiver from, or to avoid an Action by, any Governmental Authority, (b) the obtaining of all necessary consents, approvals or waivers from third parties required to be obtained by ASD or Buyers, or their respective Subsidiaries in connection with the transactions contemplated by this Agreement, (c) the defending of any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the transactions contemplated by this Agreement and (d) the execution and delivery of any additional instruments necessary to consummate the transactions contemplated by this Agreement.
(b) Without Subject to the terms and conditions in this Agreement and without limiting the generality of the undertakings pursuant to Section 5.3(a) aboveforegoing:
(i) Seller ASD and Buyer Buyers shall, as promptly as practicable, but in no event later than (x) ten fifteen (1015) Business Days after the date hereof, hereof file the notification and report form pursuant to the HSR Act and (y) fifteen thirty (1530) Business Days after the date hereof, hereof effect all other necessary notifications, or registrations to obtain the Required Antitrust Approvals, in each case as required for the transactions contemplated hereby;
(ii) Seller ASD and Buyer Buyers shall use reasonable best efforts to cooperate with each other in (A) determining whether any filings are required to be made with, or consents, permits, authorizations, waivers or approvals are required to be obtained from, any third parties or other Governmental Authorities under any other applicable Regulatory Law in connection with the execution and delivery of this Agreement and the consummation of the transactions contemplated by this Agreement and (B) timely making all such filings and timely seeking all such consents, permits, authorizations or approvals;
(iii) Seller ASD and Buyer shall use reasonable best efforts to make, as promptly as practicable following the date hereof, any filings or notifications with the State Department’s Directorate of Defense Trade Controls that are required under ITAR, including applicable notifications contemplated under 22 C.F.R. § 122.4.
(iv) Seller and Buyer Buyers shall keep each other apprised of the status of matters relating to the completion of the transactions contemplated by this Agreement and promptly furnish the other with copies of notices or other communications (or, in between ASD or the case of material oral communications, advise the other orally of such communications) between Seller or Buyer Buyers and their representatives and counsel, as the case may be, or any of their respective Subsidiaries, and any third party and/or any Governmental Authority with respect to such transactions. Seller Each of ASD and Buyer Buyers shall use its reasonable best efforts to take such action as may be required to cause the expiration of the waiting periods under the Regulatory Laws with respect to such transactions as promptly as possible after the execution of this Agreement. ASD and Buyers shall keep each other timely apprised of any inquiries or requests for additional information from any Governmental Authority pursuant to any Regulatory Law, and shall comply promptly with any such reasonable inquiry or request. Seller ASD and Buyer Buyers shall permit counsel for the other party reasonable opportunity to review in advance, and consider in good faith the views of the other party in connection with, any proposed written communication to any Governmental Authority. Each of Seller ASD and Buyer agrees the Buyers agree not to participate in any substantive meeting or discussion, either in person or by telephone, with any Governmental Authority in connection with the transactions contemplated by this Agreement unless it consults with the other party in advance and, to the extent not prohibited by such Governmental Authority, gives the other party the opportunity to attend and participate. Neither party ;
(iv) Buyers shall consent proffer to, (i) sell or otherwise dispose of, or hold separate and agree to any voluntary extension sell or otherwise dispose of any statutory deadline specific assets or waiting period categories of assets or to any voluntary delay businesses of the B&K Companies, any of their Subsidiaries and the Purchased Assets or any of Buyers’ other assets or businesses now owned or presently or hereafter sought to be acquired by Buyers; (ii) terminate any existing relationships and contractual rights and obligations of the B&K Business; and (iii) amend or terminate such existing licenses or other intellectual property agreements of the B&K Business and to enter into such new licenses or other intellectual property agreements (and, in each case, to enter into agreements with the relevant Governmental Authority giving effect thereto), in each case with respect to the foregoing clauses (i), (ii) or (iii) if such action (1) is necessary to obtain approval for consummation of the transactions contemplated by this Agreement by any Governmental Authority under Regulatory Law and (2) would not, individually or withdraw its notification in the aggregate, have a Material Adverse Effect on Buyers and report form their Subsidiaries (after giving effect to the sale of the B&K Business to the Buyers pursuant to the HSR Act or any other filing made pursuant to any Regulatory Law unless the other party has given its prior written consent to such extension or delay; andthis Agreement);
(v) without limiting Subject to Section 5.3(b)(iv) above7.3(b)(iv), each of Seller ASD and BuyerBuyers, in the event that any permanent or preliminary injunction or other order is entered or becomes reasonably foreseeable to be entered in any proceeding that would make consummation of the acquisition of the FH Shares, B&K Companies Stock or the Acquired FH Purchased Assets or the other transactions contemplated hereby in accordance with the terms of this Agreement unlawful or that would prevent or delay consummation of the acquisition of the FH Shares, B&K Companies Stock or the Acquired FH Purchased Assets or the other transactions contemplated by this Agreement, shall use its reasonable best efforts necessary to vacate, modify or suspend such injunction or order so as to permit such consummation on a schedule as close as possible to that contemplated by this Agreement unless, by mutual agreement, Seller ASD and Buyer Buyers decide that litigation is not in their respective best interests.
(c) In the event that (i) any Non-Non Material Antitrust Approval of any Governmental Authority is not obtained on or prior to the Closing Date Date, or (ii) there exists, at such time as the conditions to the Closing shall have been satisfied or waived (other than those conditions that are satisfied by action taken at the Closing, provided, that such conditions would be so satisfied), exists any Regulatory Law (except with respect to the Required Antitrust Approvals) that makes illegal or enjoins or prevents in any respect the consummation of the transactions contemplated by this Agreement (each except with respect of clauses (i) and (ii), a “Delayed the Required Antitrust Approval”)Approvals, then Seller ASD and Buyer Buyers shall effect the Closing (including payment of the entire Preliminary Purchase Price), subject to the terms of this Agreement (including, but not limited to, Section 8.1(b8.1(a)), with respect to all FH SharesB&K Companies Stock, the Acquired FH Purchased Assets and Assumed Liabilities outside of the jurisdiction of any such Governmental Authority or such Regulatory Law; provided, however, that the obligations of the parties hereto set forth in this Section 5.3 7.3 shall continue with respect to each any such Delayed Antitrust Approval compliance with Law, approval or action until such Delayed Antitrust Approval compliance with Law, approval or action is obtainedobtained or taken, as the case may be, and upon receipt the occurrence of such Delayed Antitrust Approvalcompliance with Law, approval or action, the parties hereto shall effect the transfer of the affected FH SharesB&K Company, Acquired FH Purchased Assets and Assumed Liabilities in accordance with this Agreement and the applicable Local Purchase Agreement. Each such transfer, upon occurrence, shall be retroactive to and be deemed to have occurred on the Closing Date. Furthermore, as of the Closing Date, Seller ASD and Buyer Buyers shall, subject to applicable Law, enter into mutually agreeable alternative business arrangements consistent with the terms of this Agreement or other arrangements which provide Buyer Buyers with the net economic benefit or loss (after taking into account any adverse Tax consequences to Seller) of, and liability for, of the affected FH SharesB&K Companies Stock, the FH Purchased Assets and Assumed Liabilities from and after the Closing Date and continuing until each Delayed Antitrust Approval is obtained. Notwithstanding the foregoing, in the event that any Delayed Antitrust Approval has not been obtained within twenty-four (24) months of the Closing Date, Seller shall have the right at any time thereafter, in its sole discretion, to sell any of the affected FH Shares, the FH Assets or Assumed Liabilities to a third party at a price determined in good faith by Seller to be a commercially reasonable price, and upon consummation of any such sale, (x) Seller shall pay the proceeds of such sale to Buyer (provided that Seller may reduce such payment by an amount equal to its fees and expenses (approval or an estimate thereof) and any Taxes payable as a result of such sale) and (y) the obligations of the parties pursuant to this Section 5.3(c) (other than pursuant to the preceding clause (x)) with respect to such FH Shares, the FH Assets action is obtained or Assumed Liabilities shall ceasetaken.
(d) None During the period from the date of this Agreement and continuing until the earlier of the termination of this Agreement or the Closing, except as required by this Agreement, Buyers and its European Affiliates shall not, without the prior written consent of ASD, engage in any action or enter into any transaction or permit any action to be taken or transaction to be entered into, that would have a Buyer Material Adverse Effect. Without limiting the generality of the foregoing, none of Buyers, or the Subsidiaries of Buyer the Buyers or their respective European Affiliates shall, and shall not cause any Person to, without the prior consent of Seller, acquire (whether via merger, consolidation, stock or asset purchase or otherwise), or enter into any definitive agreement agree to so acquire, any material amounts of assets of or any equity in any other Person or any business or division thereof (excluding, for the avoidance of doubt, any acquisition of any goods or services in the ordinary course of business)thereof, unless that acquisition or agreement would not reasonably be expected to, in any material respect, to (xi) materially increase the risk of not obtaining any authorizations, consents, orders, declarations or approvals of any Governmental Authority necessary to consummate the transactions contemplated by this Agreement or the expiration or termination of any waiting period under any Regulatory Law; or (yii) materially increase the risk of any Governmental Authority entering an order prohibiting the consummation of the transactions contemplated by this Agreement, or materially increase the risk of not being able to remove any such order on appeal or otherwise; or (z) delay or prevent the consummation of the transactions contemplated by this Agreement.
(e) Buyer shall use reasonable best efforts to cause the shares of Buyer Common Stock constituting the Buyer Stock Consideration to be approved for listing on the NYSE, with such listing to be effective as of the Closing, subject only to official notice of issuance.
Appears in 1 contract
Samples: Stock and Asset Purchase Agreement (American Standard Companies Inc)
Certain Governmental Approvals. (a) Subject to the terms and conditions set forth in this AgreementAgreement and without limiting Section 7.3(b)(iv) below, each of the parties hereto shall use its reasonable best efforts (subject to, and in accordance with, Regulatory Law) to take, or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable under applicable Regulatory Laws to consummate and make effective the transactions contemplated by this Agreement and the Arrangement Agreement, as promptly as practicable, including (a) the obtaining of all necessary actions, waivers, consents and approvals from Governmental Authorities, and the making of all necessary registrations and filings and the taking of all steps as may be necessary to obtain an approval or waiver from, or to avoid an Action by, any Governmental Authority in connection with any Regulatory Law and (b) the execution and delivery of any additional instruments reasonably requested by the other party hereto necessary to consummate the transactions contemplated by this Agreement.
(b) Without limiting the generality of the undertakings pursuant to Section 5.3(a) above:7.3(a):
(i) Seller and Buyer the parties shall, as promptly as practicable, but in no event later than (x) ten (10) Business Days after the date hereof, file the notification and report form pursuant to the HSR Act and (y) fifteen (15) Business Days after make the date hereof, effect filings required to obtain all other necessary notifications, or registrations to obtain the Required Antitrust Approvals, in each case as required for the transactions contemplated hereby;
(ii) Seller and Buyer the parties shall use reasonable best efforts to cooperate with each other in (A) determining whether any filings are required to be made with, or consents, permits, authorizations, waivers or approvals are required to be obtained from, any third parties or other Governmental Authorities under any other applicable Regulatory Law in connection with the execution and delivery of this Agreement and the consummation of the transactions contemplated by this Agreement and (B) timely making all such filings and timely seeking all such consents, permits, authorizations authorizations, waivers or approvals;
(iii) Seller Delta and Buyer shall use reasonable best efforts to make, as promptly as practicable following the date hereof, any filings or notifications with the State Department’s Directorate of Defense Trade Controls that are required under ITAR, including applicable notifications contemplated under 22 C.F.R. § 122.4.
(iv) Seller and Buyer JLL Holdco shall keep each other apprised of the status of matters relating to the completion of the transactions contemplated by this Agreement and promptly furnish the other with copies of notices or other communications (or, in the case of material oral communications, advise the other orally of such communications) between Seller Delta or Buyer JLL Holdco and their representatives Representatives and counsel, as the case may be, or any of their respective SubsidiariesAffiliates, and any Governmental Authority with respect to such transactions. Seller JLL Holdco and Buyer Delta shall keep each other timely apprised of any inquiries or requests for additional information from any Governmental Authority pursuant to any Regulatory LawLaw in connection with the transactions contemplated by this Agreement, and shall comply promptly with any such reasonable inquiry or request. Seller JLL Holdco and Buyer Delta shall permit counsel for the other party parties reasonable opportunity to review in advance, and consider in good faith the views of the other party in connection with, any proposed written communication to any Governmental AuthorityAuthority in connection with the transactions contemplated by this Agreement. Each of Seller JLL Holdco and Buyer Delta agrees not to participate in any substantive meeting or discussion, either in person or by telephone, with any Governmental Authority in connection with the transactions contemplated by this Agreement unless it consults with the other party in advance and, to the extent not prohibited by such Governmental Authority, gives the other party the opportunity to attend and participate. Neither No party shall consent to any voluntary extension of any statutory deadline or waiting period or to any voluntary delay of the consummation of the transactions contemplated by this Agreement or withdraw its notification and report form pursuant to the HSR Act or any other filing made pursuant to any Regulatory Law in connection with the transactions contemplated by this Agreement, unless the each other party has given its prior written consent to such extension or delay; and
(viv) without limiting any other provision of this Section 5.3(b)(iv) above7.3, each of Seller and Buyer, in the event that any permanent or preliminary injunction or other order is entered or becomes reasonably foreseeable to be entered in any proceeding that would make consummation of the acquisition of the FH Shares, the Acquired FH Assets or the other transactions contemplated hereby in accordance with the terms of this Agreement unlawful or that would prevent or delay consummation of the acquisition of the FH Shares, the Acquired FH Assets or the other transactions contemplated by this Agreement, parties hereto shall use its respective reasonable best efforts necessary to vacate, modify or suspend such injunction or order so as to permit such consummation on a schedule as close as possible to that contemplated by this Agreement unless, by mutual agreement, Seller and Buyer decide that litigation is not in their respective best interests.
(c) In the event that efforts: (i) to avoid the entry of, or to have vacated or terminated, any Non-Material Antitrust Approval of order, writ, injunction, judgment, decree, ruling, settlement or stipulation or other similar requirement enacted, adopted, promulgated or applied by a Governmental Authority that would restrain, prevent, delay, unwind, declare void or unlawful, or otherwise temporarily or permanently prohibit the Closing and the transactions contemplated hereby, including defending through litigation on the merits any claim asserted in any Governmental Authority is not obtained on or prior to the Closing Date or by any Person; and (ii) there existsto avoid or eliminate each and every impediment under any antitrust, at such time as the conditions to the Closing shall have been satisfied competition or waived (other than those conditions trade regulation Law that are satisfied may be asserted by action taken at the Closing, provided, that such conditions would be so satisfied), any Regulatory Law (except Governmental Authority with respect to the Required Antitrust Approvals) that makes illegal or enjoins or prevents in any respect the consummation of Closing and the transactions contemplated by hereby. Despite anything to the contrary contained in this Agreement (each of clauses (i) and (ii)Section 7.3, a “Delayed Antitrust Approval”), then Seller and Buyer shall effect the Closing (including payment covenants of the entire Preliminary Purchase Price)parties contained in this Section 7.3 shall not require the parties to make or agree to any undertaking, subject agreement, remedy or action that would have a substantial negative financial impact on, or impose a substantial negative financial burden on, Newco or its Affiliates or the Transferred DPP Companies or their Subsidiaries or the value thereof, in each case, relative to the terms fair market value of the JLL Contribution and the Delta Contribution. Nothing in this Agreement Section 7.3 shall be construed as requiring Delta (includingor any of its Retained Subsidiaries or their respective Affiliates or direct or indirect equity holders) to (A) sell, but not limited todivest, Section 8.1(b))hold separate, license, cause a third party to acquire, or otherwise dispose of or agree to do any of the foregoing with respect to all FH Sharesany Retained Subsidiary, the Acquired FH Assets and Assumed Liabilities outside of the jurisdiction of any such Governmental Authority Excluded Business or such Regulatory Law; provided, however, that the obligations of the parties hereto set forth in this Section 5.3 shall continue with respect to each such Delayed Antitrust Approval until such Delayed Antitrust Approval is obtained, and upon receipt of such Delayed Antitrust Approval, the parties hereto shall effect the transfer of the affected FH Shares, Acquired FH Assets and Assumed Liabilities in accordance with this Agreement and the applicable Local Purchase Agreement. Each such transfer, upon occurrence, shall be retroactive to and be deemed to have occurred on the Closing Date. Furthermore, as of the Closing Date, Seller and Buyer shall, subject to applicable Law, enter into mutually agreeable alternative business arrangements consistent with the terms of this Agreement or other arrangements which provide Buyer with the net economic benefit or loss (after taking into account any adverse Tax consequences to Seller) of, and liability for, the affected FH Shares, the FH Assets and Assumed Liabilities from and after the Closing Date and continuing until each Delayed Antitrust Approval is obtained. Notwithstanding the foregoing, in the event that any Delayed Antitrust Approval has not been obtained within twenty-four (24) months of the Closing Date, Seller shall have the right at any time thereafter, in its sole discretion, to sell any of the affected FH Shares, the FH Assets or Assumed Liabilities to a third party at a price determined in good faith by Seller to be a commercially reasonable price, and upon consummation of any such sale, (x) Seller shall pay the proceeds of such sale to Buyer (provided that Seller may reduce such payment by an amount equal to its fees and expenses (or an estimate thereof) and any Taxes payable as a result of such sale) and (y) the obligations of the parties pursuant to this Section 5.3(c) Asset (other than pursuant the DPP Assets) or (B) conduct the Excluded Businesses in a specified manner or modify, amend or terminate any commercial, governance, liquidity or other arrangement to which it is a party that is not included in the preceding clause (x)) with respect to such FH Shares, the FH DPP Assets or Assumed Liabilities shall cease.
(d) None of Buyer agree to conduct the Excluded Businesses in a specified manner or the Subsidiaries of Buyer shallmodify, and shall amend or terminate such commercial, governance, liquidity or other arrangement that is not cause any Person to, without the prior consent of Seller, acquire (whether via merger, consolidation, stock or asset purchase or otherwise), or enter into any definitive agreement to so acquire, any assets of or any equity in any other Person or any business or division thereof (excluding, for the avoidance of doubt, any acquisition of any goods or services included in the ordinary course of business), unless that acquisition or agreement would not reasonably be expected to, in any material respect, (x) increase the risk of not obtaining any authorizations, consents, orders, declarations or approvals of any Governmental Authority necessary to consummate the transactions contemplated by this Agreement or the expiration or termination of any waiting period under any Regulatory Law; (y) increase the risk of any Governmental Authority entering an order prohibiting the consummation of the transactions contemplated by this Agreement, or materially increase the risk of not being able to remove any such order on appeal or otherwise; or (z) delay or prevent the consummation of the transactions contemplated by this AgreementDPP Assets.
(e) Buyer shall use reasonable best efforts to cause the shares of Buyer Common Stock constituting the Buyer Stock Consideration to be approved for listing on the NYSE, with such listing to be effective as of the Closing, subject only to official notice of issuance.
Appears in 1 contract
Samples: Contribution Agreement (Patheon Inc)
Certain Governmental Approvals. (a) Subject to the terms Section 5.3(b)(iv) and conditions set forth in this Agreement(b)(v) below, each of the parties hereto shall use its reasonable best efforts (subject to, and in accordance with, Regulatory Law) to take, or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable under applicable Regulatory Laws to consummate and make effective the transactions contemplated by this Agreement, as promptly as practicable, including (i) the obtaining of all necessary actions, waivers, consents and approvals from Governmental Authorities, and the making of all necessary registrations and filings and the taking of all steps as may be necessary to obtain an approval or waiver from, or to avoid an Action by, any Governmental Authority in connection with any Regulatory Law, (ii) the defending of any Actions, whether judicial or administrative, brought under, pursuant to or relating to any Regulatory Law challenging this Agreement or the consummation of the transactions contemplated by this Agreement, (iii) the compliance with all legal requirements that may be imposed on it with respect to this Agreement or the transactions contemplated hereby and (iv) the execution and delivery of any additional instruments necessary to consummate the transactions contemplated by this Agreement.
(b) Without limiting the generality of the undertakings pursuant to Section 5.3(a) above:
(i) Seller APD and Buyer shall, as promptly as practicable, but in no event later than (x) ten (10) Business Days after the date hereof, file the notification and report form pursuant to the HSR Act and (y) fifteen (15) Business Days after the date hereof, effect all other necessary notifications, or registrations to obtain the Required Antitrust Governmental Approvals, in each case as required for the transactions contemplated herebyhereby and to supply as promptly as practicable any additional information and documentary material that may be requested pursuant to the HSR Act and any other filings required in connection with any other Required Governmental Approvals or Regulatory Law;
(ii) Seller APD and Buyer shall use reasonable best efforts to cooperate with each other in (A) determining whether any filings are required to be made with, or consents, permits, authorizations, waivers or approvals are required to be obtained from, any third parties or other Governmental Authorities under any other applicable Regulatory Law in connection with the execution and delivery of this Agreement and the consummation of the transactions contemplated by this Agreement and (B) timely making all such filings and timely seeking all such consents, permits, authorizations or approvals;
(iii) Seller and Buyer shall use reasonable best efforts be entitled to makedirect the antitrust defense of the transactions contemplated by this Agreement in any investigation or litigation or negotiations with any Governmental Authority or any other Person related to the regulatory filings, as promptly as practicable following provided that Buyer shall consult with and consider in good faith the date hereof, any filings or notifications with the State Department’s Directorate views of Defense Trade Controls that are required under ITAR, including applicable notifications contemplated under 22 C.F.R. § 122.4.
(iv) Seller APD. APD and Buyer shall keep each other apprised of the status of matters relating to the completion of the transactions contemplated by this Agreement and promptly furnish the other with copies of notices or other communications (or, in the case of material oral communications, advise the other orally of such communications) between Seller APD or Buyer and their representatives and counsel, as the case may be, or any of their respective Subsidiaries, and any Governmental Authority with respect to such transactions. Seller APD and Buyer shall keep each other timely apprised of any inquiries or requests for additional information from any Governmental Authority pursuant to any Regulatory Law, and shall comply promptly with any such reasonable inquiry or request. Seller APD and Buyer shall permit counsel for the other party reasonable opportunity to review in advance, and consider in good faith the views of the other party in connection with, any proposed written communication to any Governmental Authority. Each of Seller APD and Buyer agrees not to participate in any substantive meeting or discussion, either in person or by telephone, with any Governmental Authority in connection with the transactions contemplated by this Agreement unless it consults with the other party in advance and, to the extent not prohibited by such Governmental Authority, gives the other party the opportunity to attend and participate. Neither party shall consent to any voluntary extension of any statutory deadline or waiting period or to any voluntary delay of the consummation of the transactions contemplated by this Agreement or withdraw its notification and report form pursuant to the HSR Act or any other filing made pursuant to any Regulatory Law unless the other party has given its prior written consent to such extension or delay, such consent not to be unreasonably conditioned, withheld or delayed;
(iv) With respect to the assets, businesses, operations and product lines described in Section 5.3(b)(iv) of the Seller’s Disclosure Schedule Buyer shall, at Buyer’s sole cost, use its best efforts to take, or cause to be taken, any and all actions and to do, or cause to be done, any and all things necessary, proper or advisable to avoid, eliminate and resolve each and every impediment and obtain all Required Governmental Approvals in connection with the consummation of the transactions contemplated by this Agreement, as promptly as practicable. In furtherance of the foregoing, Buyer shall use its best efforts to proffer to, and shall, use its best efforts to (A) sell or otherwise dispose of, or hold separate and agree to sell or otherwise dispose of specific assets or categories of assets or businesses of the Transferred PMD Companies or any of Buyer’s other assets or businesses now owned or presently or hereafter sought to be acquired by Buyer (including pursuant to this Agreement); (B) terminate any existing relationships and contractual rights and obligations; (C) amend or terminate such existing licenses or other intellectual property agreements and to enter into such new licenses or other intellectual property agreements; (D) take any and all actions and make any and all behavioral commitments, whether or not they limit or modify Buyer’s or the Transferred PMD Companies’ rights of ownership in, or ability to conduct the business of, one or more of its operations, divisions, businesses, product lines, customers or assets, including, after the Closing, the PMD Business or any of the PMD Assets; and (E) enter into agreements, including with the relevant Governmental Authority, giving effect to the foregoing clauses (A) through (D), in each case as promptly as possible (but in any event at least five (5) Business Days prior to the Outside Date) after it is determined that such action is necessary to obtain approval for consummation of the transactions contemplated by this Agreement by any Governmental Authority. For purposes of this Section 5.3(b)(iv), “best efforts” shall include taking each of the actions set forth in the foregoing clauses (A) through (E) above within Buyer’s control, including selling or otherwise disposing of assets or categories of assets or businesses at any price, on any terms and to any buyer, if necessary to obtain approval for the consummation of the transactions contemplated by this Agreement by any Governmental Authority. Notwithstanding the foregoing, Buyer shall not be required to take any such action under this paragraph (iv) the effectiveness of which would not be conditioned upon and subject to Closing;
(v) With respect to any assets, businesses, operations or product lines of APD or Buyer other than those described in paragraph (iv) above, Buyer shall, at Buyer’s sole cost, take, or cause to be taken, any and all actions and do, or cause to be done, any and all things necessary, proper or advisable to avoid, eliminate and resolve each and every impediment and obtain all Required Governmental Approvals in connection with the consummation of the transactions contemplated by this Agreement, as promptly as practicable; provided, that nothing in this Section 5.3(b)(v) shall require Buyer to sell or divest any assets, businesses or product lines that would result in a Regulatory MAE. In furtherance of the foregoing, Buyer shall proffer to, and shall, (A) sell or otherwise dispose of, or hold separate and agree to sell or otherwise dispose of specific assets or categories of assets or businesses of the Transferred PMD Companies or any of Buyer’s other assets or businesses now owned or presently or hereafter sought to be acquired by Buyer (including pursuant to this Agreement); (B) terminate any existing relationships and contractual rights and obligations; (C) amend or terminate such existing licenses or other intellectual property agreements and to enter into such new licenses or other intellectual property agreements; (D) take any and all actions and make any and all behavioral commitments, whether or not they limit or modify Buyer’s or the Transferred PMD Companies’ rights of ownership in, or ability to conduct the business of, one or more of its operations, divisions, businesses, product lines, customers or assets, including, after the Closing, the PMD Business or any of the PMD Assets; and (E) enter into agreements, including with the relevant Governmental Authority, giving effect to the foregoing clauses (A) through (D), in each case as promptly as possible (but in any event at least five (5) Business Days prior to the Outside Date) after it is determined that such action is necessary to obtain approval for consummation of the transactions contemplated by this Agreement by any Governmental Authority; provided, however, that Buyer shall not be required to take any such action the effectiveness of which would not be conditioned upon and subject to Closing;
(vi) APD will not in connection with obtaining Required Governmental Approvals take or agree to take any action identified in the immediately preceding Section 5.3(a), without the prior written consent of Buyer, and if so requested by Buyer will use reasonable best efforts to effectuate any license, divestiture, disposition, hold separate, or any other action of any of the PMD Assets or the PMD Businesses necessary to obtain Required Governmental Approvals; provided, that, such action is conditioned on the consummation of the transactions contemplated by this Agreement; and
(vvii) without limiting Section 5.3(b)(iv) above), each of Seller APD and Buyer, in the event that any permanent or preliminary injunction or other order is entered or becomes reasonably foreseeable to be entered in any proceeding that would make consummation of the acquisition of the FH Shares, the Acquired FH Assets PMD Shares or the other transactions contemplated hereby in accordance with the terms of this Agreement unlawful or that would prevent or delay consummation of the acquisition of the FH Shares, the Acquired FH Assets PMD Shares or the other transactions contemplated by this Agreement, shall use its reasonable best efforts necessary to vacate, modify or suspend such injunction or order so as to permit such consummation on a schedule as close as possible to that contemplated by this Agreement unless, by mutual agreement, Seller APD and Buyer decide that litigation is not in their respective best interests.
(c) In During the event that (i) any Non-Material Antitrust Approval of any Governmental Authority is not obtained on or prior to period from the Closing Date or (ii) there exists, at such time as the conditions to the Closing shall have been satisfied or waived (other than those conditions that are satisfied by action taken at the Closing, provided, that such conditions would be so satisfied), any Regulatory Law (except with respect to the Required Antitrust Approvals) that makes illegal or enjoins or prevents in any respect the consummation of the transactions contemplated by this Agreement (each of clauses (i) and (ii), a “Delayed Antitrust Approval”), then Seller and Buyer shall effect the Closing (including payment of the entire Preliminary Purchase Price), subject to the terms date of this Agreement (including, but not limited to, Section 8.1(b)), with respect to all FH Shares, the Acquired FH Assets and Assumed Liabilities outside of the jurisdiction of any such Governmental Authority or such Regulatory Law; provided, however, that the obligations of the parties hereto set forth in this Section 5.3 shall continue with respect to each such Delayed Antitrust Approval until such Delayed Antitrust Approval is obtained, and upon receipt of such Delayed Antitrust Approval, the parties hereto shall effect the transfer of the affected FH Shares, Acquired FH Assets and Assumed Liabilities in accordance with this Agreement and the applicable Local Purchase Agreement. Each such transfer, upon occurrence, shall be retroactive to and be deemed to have occurred on the Closing Date. Furthermore, as of the Closing Date, Seller except as required by this Agreement, Buyer and Buyer shallits Affiliates shall not, subject to applicable Lawwithout the prior written consent of APD, engage in any action or enter into mutually agreeable alternative business arrangements consistent with any transaction or permit any action to be taken or transaction to be entered into, that would, individually or in the terms aggregate, reasonably be expected to have a Buyer Material Adverse Effect. Without limiting the generality of this Agreement or other arrangements which provide Buyer with the net economic benefit or loss (after taking into account any adverse Tax consequences to Seller) of, and liability for, the affected FH Shares, the FH Assets and Assumed Liabilities from and after the Closing Date and continuing until each Delayed Antitrust Approval is obtained. Notwithstanding the foregoing, in the event that any Delayed Antitrust Approval has not been obtained within twenty-four (24) months none of the Closing DateBuyer, Seller shall have the right at any time thereafter, in its sole discretion, to sell any of the affected FH Shares, the FH Assets or Assumed Liabilities to a third party at a price determined in good faith by Seller to be a commercially reasonable price, and upon consummation of any such sale, (x) Seller shall pay the proceeds of such sale to Buyer (provided that Seller may reduce such payment by an amount equal to its fees and expenses (or an estimate thereof) and any Taxes payable as a result of such sale) and (y) the obligations of the parties pursuant to this Section 5.3(c) (other than pursuant to the preceding clause (x)) with respect to such FH Shares, the FH Assets or Assumed Liabilities shall cease.
(d) None of Buyer or the Subsidiaries of Buyer Buyer, or their respective Affiliates shall, and shall not cause any Person to, without the prior consent of Seller, acquire (whether via merger, consolidation, stock or asset purchase or otherwise), or enter into any definitive agreement agree to so acquire, any assets of or any equity in any other Person or any business or division thereof (excluding, for the avoidance of doubt, any acquisition of any goods or services in the ordinary course of business)thereof, unless that acquisition or agreement would not reasonably be expected to, in any material respect, to (xi) increase the risk of not obtaining obtaining, or cause a delay in obtaining, any authorizations, consents, orders, declarations or approvals of any Governmental Authority necessary to consummate the transactions contemplated by this Agreement or the expiration or termination of any waiting period under any Regulatory Law; (yii) increase the risk of any Governmental Authority entering an order prohibiting the consummation of the transactions contemplated by this Agreement, or materially increase the risk of not being able to remove any such order on appeal or otherwise; or (ziii) delay or prevent the consummation of the transactions contemplated by this Agreement.
(ed) Buyer shall use reasonable best efforts will pay APD a termination fee of $190,000,000 in immediately available funds within two (2) Business Days following the termination of this Agreement if terminated: (i) by APD pursuant to cause the shares Section 8.1(c) with respect to Regulatory Laws, (ii) by APD pursuant to Section 8.1(e) as a result of Buyer’s material breach of this Section 5.3 or (iii) by APD or Buyer Common Stock constituting the Buyer Stock Consideration pursuant to be approved for listing on the NYSESection 8.1(b) if, with such listing to be effective as of the ClosingOutside Date, subject only the condition in Section 7.1(a) (if the failure to official notice satisfy such condition is as a result of issuancea Regulatory Law) or Section 7.1(b) had not been satisfied. For the avoidance of doubt, the termination fee shall be APD’s exclusive remedy for Buyer’s failure to obtain all Required Governmental Approvals if Buyer has complied with its obligations under this Section 5.3.
Appears in 1 contract
Samples: Purchase Agreement (Air Products & Chemicals Inc /De/)
