Clearances. 3.1 Except where otherwise required by Law, Barrick shall: (a) jointly with Randgold, determine the strategy or decisions for obtaining the Clearances, including: (i) the determination, timing and sequencing regarding any discussion, offer or agreement of Remedies, if any are required, with any Government Authorities; and (ii) the determination of any Remedies discussed with, offered to or agreed with any Government Authorities, save that in the event of any disagreement between Barrick and Randgold over strategy or decisions in relation to, or the offer or agreement of Remedies to satisfy, any Regulatory Condition or to complete the COMESA filing, Barrick may solely determine such strategy or decisions and may solely determine such offer or agreement of Remedies, except where such Remedies would have a material adverse effect on the Barrick Group following the consummation of the Merger; (b) subject to clause 3.5, promptly contact and correspond with the Government Authorities in relation to Clearances (including submitting and preparing all necessary filings, notifications and submissions); and (c) be responsible for the payment of all fees required in connection with obtaining the Clearances to satisfy any Regulatory Condition or to complete the COMESA filing. 3.2 Subject to clause 3.1, Barrick shall: (a) take, or cause to be taken, all reasonable action and do, or cause to be done, all things reasonably necessary or advisable to secure the Clearances required in relation to the Regulatory Conditions or to complete the COMESA filing, in each case by the Longstop Date or such earlier date as is required by law; (b) offer to the relevant Government Authorities (and not withdraw) within a reasonable time period any Remedies necessary or advisable (in the reasonable opinion of Barrick) for the purpose of securing the Clearances required in relation to the Regulatory Conditions or to complete the COMESA filing; (c) perform or implement without undue delay any such Remedies that are offered to and accepted by the relevant Government Authorities for the purpose of securing the Clearances required in relation to the Regulatory Conditions or to complete the COMESA filing; (d) use reasonable efforts to avoid (i) any declarations of incompleteness by any Government Authority and (ii) any suspension of review period by a Government Authority, in each case in respect of the Clearances required in relation to the Regulatory Conditions or to complete the COMESA filing; (e) use reasonable efforts to ensure the Clearances required in relation to the Regulatory Conditions or to complete the COMESA filing are obtained promptly by each relevant Government Authority, including, if necessary, entering into a hold separate arrangement with a Government Authority; and (f) use reasonable efforts to procure that no Government Authority in respect of the Clearances required in relation to the Regulatory Conditions or to complete the COMESA filing seeks to issue, or issues any measure that prevents, or purports to prevent, completion of the Merger. 3.3 Subject to clause 3.1, the parties shall: (a) provide to each other, in a timely manner, such information and assistance as may be required for: (i) the parties to determine in which jurisdictions any merger control, regulatory or other filing, notification, submission or engagement with a Government Authority is necessary or advisable for the purposes of obtaining the Clearances; (ii) the parties to make any filings, notifications or submissions to the Government Authorities as are necessary in connection with the obtaining of Clearances, taking into account all applicable waiting periods; (iii) the identification, structuring and preparation of any Remedies or proposed Remedies; and (iv) responding to any inquiries from other Government Authorities concerning the application or potential application of any Laws to the Merger; and (b) ensure that all information necessary: (i) for the making of (or responding to any requests for further information consequent upon) any such filings, notifications, submissions or engagements (including draft versions) necessary for the purpose of obtaining the Clearances; and (ii) the identification, structuring and preparation of any Remedies, and that is in the possession of, or reasonably obtainable by the parties (including from third parties through the exercise of contractual rights) is supplied accurately and as promptly as reasonably practicable. 3.4 Randgold shall: (a) not offer or agree to any Remedies without the express written approval of Barrick; (b) subject to clause 3.5, not discuss the terms or potential terms of any Remedies without the express written approval of Barrick; and (c) in relation to any Regulatory Condition, or to complete the COMESA filing, agree to any Remedies (provided that the determination of such Remedies is made in accordance with clause 3.1) which Barrick requests Randgold to be party to; provided, however, that Randgold’s fulfilment of any obligations under such Remedies shall be conditioned on the consummation of the Merger. 3.5 Except to the extent that to do so is prohibited by Law and subject to clauses 3.1 and 3.7: (a) Barrick, Randgold or Barrick and Randgold jointly, as may be required by Law, will engage with and/or submit a filing, notification or submission (as required) to each relevant Government Authority as soon as is reasonably practicable after the signing of this Agreement and in any event within any applicable mandatory time periods where it is necessary, desirable, appropriate or expedient to do so to obtain the Clearances and shall make the initial filings for the Regulatory Conditions as soon as is reasonably practicable and in any event by no later than 15 Business Days from the date of this Agreement; (b) Barrick and Randgold shall agree on which of them shall manage communications with any Government Authority and shall agree on the principles of the approach (it being further agreed that Randgold will lead all communications with Government Authorities in the Randgold Home Jurisdictions and Barrick will not contact any Government Authority in those jurisdictions without prior consultation with Randgold); (c) each party shall provide in a timely manner such cooperation as is reasonably required by the other in connection with the preparation of all such filings, notifications, submissions or engagements referred to in clause 3.5(a) and in relation to the preparation of any other Communications with or to any Government Authority in connection with the Clearances, taking into account all applicable waiting periods; (d) each party shall provide, or procure the provision of, draft copies of all Communications (including, in the case of material non-written Communications, reasonably detailed summaries of the material non-written Communications) intended to be sent or communicated to any Government Authority in relation to any Clearances to the other party and its legal advisers at such time as will allow the receiving party a reasonable opportunity to provide comments on such Communications before they are submitted, sent or made, save that, in the case of Randgold and the Randgold Home Jurisdictions, where the parties have agreed the principles of an approach to a Government Authority and the Communication is consistent with those agreed principles, Randgold shall not be required to share, or procure the sharing of, drafts of any Communications to Barrick prior to such Communications being submitted, sent or made; (e) each party shall provide the other party with copies of all Communications in the form finally submitted or sent to any Government Authority in relation to any Clearances (including, in the case of material non-written Communications, reasonably detailed summaries of the material non-written Communications); (f) each party shall consider in good faith comments made in a timely manner by the other party on draft copies of Communications provided pursuant to clause 3.5(d); (g) each party shall notify the other party, and provide copies (including, in the case of material non-written Communications, reasonably detailed summaries of the material non-written Communications), in a timely manner, of any Communication from or with any Government Authority in relation to the Merger or any Clearance; (h) each party shall keep the other party reasonably informed as to the progress of any filing, notification and submission submitted pursuant to clause 3.5(a) and shall give the other reasonable prior notice of any meetings or calls with any Government Authority or other persons or bodies relating to any Clearance (including at pre-notification stage) and, to the extent reasonably practicable, shall allow representatives or advisers nominated by the other: (i) to attend all meetings or calls with any Government Authority (unless prohibited by the Government Authority or Law) relating to any Clearance; and (ii) to make reasonable oral submissions at such meetings or calls; and (i) where reasonably requested by a party, and insofar as permitted by a Government Authority, the other party shall make available appropriate representatives for meetings and calls with any Government Authority in connection with any Clearances. 3.6 Each party undertakes to keep the other party informed promptly of: (a) developments which are material or reasonably likely to be material to the obtaining of a Clearance; and (b) the satisfaction of the Regulatory Conditions. 3.7 Subject to clause 3.1, each party undertakes not to: (a) submit a filing, submission or notification to, or, otherwise engage with, any Government Authority in a jurisdiction where a Clearance is neither required nor determined by Barrick and Randgold to be appropriate or advisable for the Merger to be completed; or (b) withdraw a filing, submission or notification made to any Government Authority whose Clearance is required or determined by Barrick and Randgold to be appropriate or advisable for the Merger to be completed; or (c) other than as required by Law to be paid in respect of any filing, submission or notification to any Government Authority that is required to be made by it pursuant to the terms of this clause 3, make any payment of any amount to any Government Authority in connection with the Merger, in each case, without the prior written consent of the other party. 3.8 If a provision of this Agreement obliges the parties to disclose any information to the other which the disclosing party reasonably considers to be commercially or competitively sensitive, the disclosing party shall disclose the relevant information to the other party pursuant to appropriate clean team arrangements (including on an external counsel only basis) or as the disclosing party and the other party may otherwise agree.
Appears in 1 contract
Samples: Cooperation Agreement
Clearances. 3.1 Bidco, after having consulted in good faith and on a timely basis with, and reasonably considering in good faith comments from, IMImobile, shall be responsible for determining the strategy to be pursued for satisfying the Regulatory Conditions and dealing with any Relevant Authority with respect to the Acquisition (whether for the purpose of satisfying the Regulatory Conditions or otherwise).
3.2 Each party undertakes to co-operate with the other party in relation to the Clearances and each party, subject to clause 3.10 below, undertakes to use all reasonable endeavours to secure or to assist to secure (as the case may be) the Clearances as soon as reasonably practicable following the date of this Agreement and in any event in sufficient time to enable the Effective Date to occur by the Longstop Date.
3.3 Except where otherwise required by LawLaw or a Relevant Authority, Barrick shall:
(a) jointly with Randgold, determine the strategy or decisions for obtaining the Clearances, including:
(i) the determination, timing and sequencing regarding any discussion, offer or agreement of Remedies, if any are required, with any Government Authorities; and
(ii) the determination of any Remedies discussed with, offered to or agreed with any Government Authorities, save that in the event of any disagreement between Barrick and Randgold over strategy or decisions in relation to, or the offer or agreement of Remedies to satisfy, any Regulatory Condition or to complete the COMESA filing, Barrick may solely determine such strategy or decisions and may solely determine such offer or agreement of Remedies, except where such Remedies would have a material adverse effect on the Barrick Group following the consummation of the Merger;
(b) subject to clause 3.5, promptly contact and correspond with the Government Authorities in relation to Clearances (including submitting and preparing all necessary filings, notifications and submissions); and
(c) Bidco shall be responsible for the payment of all filing fees required in connection with obtaining the Clearances to satisfy any Regulatory Condition or to complete the COMESA filingClearances.
3.2 Subject 3.4 Save to clause 3.1, Barrick shallthe extent prohibited by Law or the Relevant Authority:
(a) take3.4.1 IMImobile undertakes to Bidco that it shall provide as soon as reasonably practicable, or cause to be taken, all reasonable action and do, or cause to be done, all things reasonably necessary or advisable to secure the Clearances required in relation to the Regulatory Conditions or to complete the COMESA filing, in each case by the Longstop Date or such earlier date as is required by law;
(b) offer to the relevant Government Authorities (and not withdraw) within a reasonable time period following any Remedies necessary or advisable (in the reasonable opinion of Barrick) request for the purpose of securing the Clearances required in relation to the Regulatory Conditions or to complete the COMESA filing;
(c) perform or implement without undue delay any such Remedies that are offered to and accepted by the relevant Government Authorities for the purpose of securing the Clearances required in relation to the Regulatory Conditions or to complete the COMESA filing;
(d) use reasonable efforts to avoid (i) any declarations of incompleteness by any Government Authority and (ii) any suspension of review period by a Government Authority, in each case in respect of the Clearances required in relation to the Regulatory Conditions or to complete the COMESA filing;
(e) use reasonable efforts to ensure the Clearances required in relation to the Regulatory Conditions or to complete the COMESA filing are obtained promptly by each relevant Government Authority, including, if necessary, entering into a hold separate arrangement with a Government Authority; and
(f) use reasonable efforts to procure that no Government Authority in respect of the Clearances required in relation to the Regulatory Conditions or to complete the COMESA filing seeks to issue, or issues any measure that prevents, or purports to prevent, completion of the Merger.
3.3 Subject to clause 3.1, the parties shall:
(a) provide to each other, in a timely mannersame, such information and assistance as may be reasonably required for:
(ia) the parties Bidco to determine determine, in consultation with IMImobile, in which jurisdictions any merger control, regulatory or other filing, notification, notification or submission or engagement with a Government Relevant Authority is may be necessary or advisable expedient for the purposes of obtaining the Clearances;
(iib) the parties to make any filings, notifications or submissions that Bidco (acting reasonably and having consulted IMImobile) considers are necessary to be made to the Government Relevant Authorities as are necessary in connection with the obtaining of the Clearances, taking into account all applicable waiting periods;
(iii) the identification, structuring and preparation of or for inclusion in any Remedies responses to any requests for further information consequent upon such filings, notifications or proposed Remediessubmissions; and
(ivc) responding to any inquiries from other Government the purposes of obtaining the Clearances (including assistance in connection with such informal or pre-notification contacts with the Relevant Authorities concerning the application as Xxxxx considers desirable or potential application of any Laws appropriate), in all circumstances only to the Mergerextent that Xxxxx, acting reasonably, requests, having consulted in good faith and on a timely basis with, and reasonably considering in good faith comments from, XXXxxxxxx; and
(b) 3.4.2 each party undertakes to the other to use its best endeavours to ensure that all information necessary:
(i) necessary for the making of (or responding to any requests for further information consequent upon) any such filings, notifications, submissions or engagements (including draft versions) versions necessary for the purpose of obtaining the Clearances; and
(ii) or that is otherwise required for the identification, structuring and preparation purposes of any Remediesobtaining the Clearances, and that is in the possession of, or is reasonably obtainable by the parties such party (including from third parties through the reasonable exercise of contractual rights) is supplied accurately and as promptly as reasonably practicable.
3.4 Randgold shall3.5 For the purposes of clause 3.4, the parties acknowledge that:
3.5.1 a party shall not be in breach of clause 3.4 as a consequence of any inaccuracies in any information originating from a third party (a) not offer being a person other than a member, officer or agree to any Remedies without employee of the express written approval of Barrickparty's Group);
(b) 3.5.2 legally privileged information does not have to be disclosed unless the disclosing party consents; and
3.5.3 the provision of information is subject to clause 3.5, not discuss the terms or potential terms of any Remedies without the express written approval of Barrick; and
(c) in relation to any Regulatory Condition, or to complete the COMESA filing, agree to any Remedies (provided that the determination of such Remedies is made in accordance with clause 3.1) which Barrick requests Randgold to be party to; provided, however, that Randgold’s fulfilment of any obligations under such Remedies shall be conditioned on the consummation of the Merger3.9.
3.5 3.6 Except to the extent that to do so is prohibited by Law and subject to clauses 3.1 and 3.7clause 3.9:
(a) Barrick, Randgold or Barrick 3.6.1 Bidco to the extent required and Randgold jointlyreasonably considered necessary or, as may be required by applicable Law, will engage with and/or IMImobile and Bidco jointly, or as reasonably required by IMImobile, IMImobile (as the case may be) shall submit a any draft filing, filing, notification or submission (as required) to each relevant Government Relevant Authority in connection with obtaining the Clearances, subject to each party complying in full with the obligation in clause 3.6.2, as soon as is reasonably practicable after the signing of this Agreement and in any event within any applicable mandatory time periods period where it is necessary, desirable, appropriate necessary or expedient to do so to obtain the Clearances and shall make the initial filings for the Regulatory Conditions as soon as is reasonably practicable and in any event by no later than 15 Business Days from the date of this AgreementClearances;
(b) Barrick and Randgold shall agree on which of them shall manage communications with any Government Authority and shall agree on the principles of the approach (it being further agreed that Randgold will lead all communications with Government Authorities in the Randgold Home Jurisdictions and Barrick will not contact any Government Authority in those jurisdictions without prior consultation with Randgold);
(c) 3.6.2 each party shall provide in a timely manner such cooperation as is reasonably required by the other party in connection with the preparation of all such filings, notifications, notifications or submissions or engagements (as required) referred to in clause 3.5(a) 3.6.1 and in relation to the preparation of any other Communications with submissions, material correspondence or material communications to any Government Relevant Authority in connection with the Clearances, taking into account all applicable waiting periodsClearances (including at the pre-notification stage);
(d) 3.6.3 each party shall provide, or procure the provision of, draft copies of all Communications notifications, filings, submissions, material correspondence and material communications (including, in the case of material non-written Communicationscommunications, reasonably detailed summaries of the material non-written Communicationssuch communications) intended to be sent or communicated to any Government Relevant Authority in relation to obtaining any Clearances (including at the pre-notification stage) to the other party and its legal advisers at such time as will allow the receiving party a reasonable opportunity to provide comments on such Communications filings, notifications, submissions, material correspondence and material communications before they are submitted, sent or made, save that, in the case of Randgold made and the Randgold Home Jurisdictions, where the parties have agreed the principles of an approach to a Government Authority and the Communication is consistent with those agreed principles, Randgold shall not be required to share, or procure the sharing of, drafts of any Communications to Barrick prior to such Communications being submitted, sent or made;
(e) each party shall provide the other party with copies of all Communications such filings, submissions, material correspondence and material communications in the form finally submitted or sent to any Government Authority in relation to any Clearances (including, in the case of material non-written Communicationscommunications, reasonably detailed summaries of the material non-written Communicationssuch communications);
(f) 3.6.4 each party shall consider have regard in good faith to comments made in a timely manner by the other party on draft copies of Communications filings, notifications, submissions, material correspondence and material communications provided pursuant to clause 3.5(d)3.6.3;
(g) 3.6.5 each party shall notify the other party, and provide copies (including, in the case of material non-written Communicationscommunications, reasonably detailed summaries of the material non-written Communicationssuch communications), in a timely manner, manner of any Communication material correspondence or material communication received from or with any Government Relevant Authority in relation to obtaining any Clearance (including at the Merger or any Clearancepre-notification stage);
(h) 3.6.6 each party shall keep the other party reasonably informed as to the progress of any filing, notification and submission submitted pursuant to clause 3.5(a) 3.6.1 and shall give will reasonably consider requests by the other reasonable prior notice of party and/or its advisers: (i) to attend any meetings meeting or calls material call with any Government Relevant Authority or other persons or bodies (unless prohibited by the Relevant Authority, Law or other person or body) relating to obtaining any Clearance (including at the pre-notification stage) and, to the extent reasonably practicable, shall allow representatives or advisers nominated by the other: (i) to attend all meetings or calls with any Government Authority (unless prohibited by the Government Authority or Law) relating to any Clearance); and (ii) to make reasonable oral submissions at any such meetings meeting or callscall; and
(i) 3.6.7 where reasonably requested by a party, and insofar as permitted by a Government the Relevant Authority, the other party shall make available appropriate representatives for meetings and calls with any Government Relevant Authority in connection with the obtaining of any ClearancesClearances (including at the pre- notification stage).
3.6 3.7 Each party undertakes to keep the other party informed promptly as soon as reasonably practicable of: (ai) developments which are material or reasonably likely to be material to the obtaining of a Clearance; and (bii) the satisfaction or waiver of the Regulatory Conditions.
3.7 Subject to clause 3.1, each 3.8 Each party undertakes not to:
(a) submit a filing, submission or notification to, or, otherwise engage with, any Government Authority in a jurisdiction where a Clearance is neither required nor determined by Barrick and Randgold to be appropriate or advisable for the Merger to be completed; or
(b) withdraw a filing, submission or notification made to any Government Relevant Authority whose in connection with obtaining a Clearance is required or determined by Barrick without first notifying the other party in advance and Randgold seeking input from that other party, such input to be appropriate or advisable for reasonably taken into account before withdrawing the Merger to be completed; or
(c) other than as required by Law to be paid in respect of any filing, submission or notification to any Government Authority that is required to be made by it pursuant to the terms of this clause 3, make any payment of any amount to any Government Authority in connection with the Merger, in each case, without the prior written consent of the other partynotification.
3.8 3.9 If a provision of this Agreement obliges a party (the parties "disclosing party") to disclose any information to the other other:
3.9.1 that is personally identifiable information of a director, partner, officer or employee of the disclosing party or any member of its Group or any of their respective affiliates, unless that information can reasonably be anonymised (in which case the disclosing party shall provide the relevant information on an anonymous basis);
3.9.2 which the disclosing party reasonably considers to be commercially or competitively sensitive; or
3.9.3 which the disclosing party is prohibited from disclosing by Law or the terms of an existing contract, the disclosing party shall shall, to the extent permitted by Law, disclose the relevant information information:
(a) to the other party pursuant to appropriate clean team arrangements as may be agreed between the parties to ensure compliance with Law (including including, as applicable, Competition Law and the practices of any Relevant Authority);
(b) where deemed appropriate by the disclosing party, to the other party’s legal counsel and, to the extent reasonably necessary in connection with any competition Clearance, its other advisers on an “external counsel only basisonly” basis (where applicable, in accordance with the requirements of Practice Statement No 30 published by the Panel); or
(c) or as where, in the sole discretion of the disclosing party, disclosure in a manner contemplated by this Agreement would be contrary to the disclosing party's interest, directly to a Relevant Authority (and in such circumstances, the disclosing party and may to the extent reasonably practicable provide, or procure the provision of, to the other party may a redacted version or summary of such information).
3.10 Notwithstanding any other provision of this Agreement to the contrary, nothing contained in this Agreement shall require Bidco (or any person acting in concert or deemed to be acting in concert) to take, or cause to be taken, any action with respect to the divestiture of assets, properties or businesses of the Bidco Group or the IMImobile Group, or any combination thereof, or agree to any conditions, measures, commitments or undertakings or any other limitations on the business of the Bidco Group, except as otherwise agreeagreed by the parties.
Appears in 1 contract
Samples: Cooperation Agreement
Clearances. 3.1 Except where otherwise required by Law, Barrick shall:
(a) jointly with Randgold, determine the strategy or decisions for obtaining the Clearances, including:
(i) the determination, timing Each of Cobham and sequencing regarding any discussion, offer or agreement of Remedies, if any are required, with any Government Authorities; and
(ii) the determination of any Remedies discussed with, offered to or agreed with any Government Authorities, save that in the event of any disagreement between Barrick and Randgold over strategy or decisions in relation to, or the offer or agreement of Remedies to satisfy, any Regulatory Condition or to complete the COMESA filing, Barrick may solely determine such strategy or decisions and may solely determine such offer or agreement of Remedies, except where such Remedies would have a material adverse effect on the Barrick Group following the consummation of the Merger;
(b) subject to clause 3.5, promptly contact and correspond with the Government Authorities in relation to Clearances (including submitting and preparing all necessary filings, notifications and submissions); and
(c) be responsible for the payment of all fees required in connection with obtaining the Clearances to satisfy any Regulatory Condition or to complete the COMESA filing.
3.2 Subject to clause 3.1, Barrick shall:
(a) Cobham Parent shall take, or cause to be taken, all reasonable action required, necessary or advisable steps (as applicable) to promptly secure the Clearances as soon as reasonably practicable following the date of this Agreement and, in any event, in sufficient time to enable the Effective Date to occur by the Longstop Date.
3.2 Notwithstanding any other provision of this Agreement to the contrary, each of Cobham and do, Cobham Parent acknowledges and agrees that its obligation to take or cause to be donetaken all required, all things reasonably necessary or advisable steps pursuant to secure Clause 3.1 requires it to promptly offer, agree and execute (and/or, if applicable, to procure the offer, agreement and execution of) any Remedies that are required, necessary or advisable, or can reasonably be expected to be required, necessary or advisable, to obtain the Clearances required in relation as soon as reasonably practicable and within any Phase 1 (or equivalent initial) review period, provided that to the Regulatory Conditions extent that it is not possible to obtain a Clearance within a Phase 1 (or equivalent initial) review period, each of Cobham and Cobham Parent shall take or cause to complete be taken the COMESA filingsteps set out in this Clause 3.2 to obtain the relevant Clearance within any Phase 2 (or equivalent additional or subsequent review period or periods), and provided always that each of Cobham and Cobham Parent shall take or cause to be taken the steps set out in this Clause 3.2 to obtain the Clearances as soon as reasonably practicable following the date of this Agreement and, in each case any event, in sufficient time to enable the Effective Date to occur by the Longstop Date Date.
3.3 Without prejudice to the generality of Clause 3.1, each of Cobham and Cobham Parent shall submit to the Relevant Authorities (in draft or such earlier date in final form, as is the case may be) any filings, notifications or submissions as are necessary in connection with the Clearances which it has a responsibility to make under applicable Law (or if otherwise required by law;
(b) offer to the relevant Government Authorities (and not withdrawa Relevant Authority) within a reasonable any applicable mandatory time period periods and, in any Remedies event, as regards the filings, notifications or submissions as are necessary or expedient to satisfy the Regulatory Conditions, as soon as reasonably practicable after the execution of this Agreement, unless otherwise agreed between the parties (acting in good faith) and, in respect of any such filing, notification or submission, shall (subject to Clause 3.1) take all required, necessary or advisable (in the reasonable opinion of Barrick) for the purpose of securing the Clearances required in relation steps to the Regulatory Conditions or to complete the COMESA filing;avoid:
(c) perform or implement without undue delay any such Remedies that are offered to and accepted by the relevant Government Authorities for the purpose of securing the Clearances required in relation to the Regulatory Conditions or to complete the COMESA filing;
(d) use reasonable efforts to avoid (i) any declarations declaration of incompleteness by any Government Authority Relevant Authority; and (ii) any suspension of any review period by any Relevant Authority.
3.4 Except where otherwise required by applicable Law or a Government Relevant Authority, each of Cobham and Cobham Parent shall:
3.4.1 after prior consultation with Ultra and having considered (acting in each case good faith) reasonable requests in respect connection therewith (noting that, for the avoidance of doubt, Cobham shall be under no obligation to accept any such requests), determine the strategy for obtaining the Clearances required in relation to and (if applicable) the Regulatory Conditions or to complete the COMESA filing;
(e) use reasonable efforts to ensure the Clearances required in relation to the Regulatory Conditions or to complete the COMESA filing are obtained promptly by each relevant Government AuthorityAdditional UK Clearance, including, if necessary, entering into a hold separate arrangement with a Government Authority; and
(f) use reasonable efforts to procure that no Government Authority in respect of the Clearances required in relation to the Regulatory Conditions or to complete the COMESA filing seeks to issue, or issues any measure that prevents, or purports to prevent, completion of the Merger.
3.3 Subject to clause 3.1, the parties shall:
(a) the timing and sequencing for: (i) contacting and corresponding with the Relevant Authorities; and (ii) offering to, or agreeing with, the Relevant Authorities any Remedies required, necessary or advisable in order to secure a Clearance or (if applicable) the Additional UK Clearance;
(b) determining any Remedies required, necessary or advisable in order to secure a Clearance or (if applicable) the Additional UK Clearance;
(c) determining to the extent reasonably practicable the content of any material communications with, and any material submissions to, any Relevant Authority with respect to the Transaction; and
(d) the defence and settlement of any litigation, action, suit, investigation or proceeding brought by or before any Relevant Authority in connection with the Clearances and (if applicable) the Additional UK Clearance;
3.4.2 subject to Clause 3.4.1, lead all meetings and communications (including negotiations) with any Relevant Authority in connection with obtaining the Clearances and (if applicable) the Additional UK Clearance;
3.4.3 subject to Clause 3.4.1, control the defence and settlement of any litigation, action, suit, investigation or proceeding brought by or before any Relevant Authority in connection with the Clearances and (if applicable) the Additional UK Clearance;
3.4.4 promptly contact, correspond and maintain appropriate regular and ongoing dialogue with the Relevant Authorities in relation to the Clearances and (if applicable) the Additional UK Clearance, including submitting and preparing, with the reasonable assistance of Ultra in accordance with this Agreement, all necessary filings, notifications and submissions;
3.4.5 be responsible for the payment of all filing fees required in connection with the Clearances and (if applicable) the Additional UK Clearance; and
3.4.6 to the extent necessary to obtain the Clearances, submit a mandatory notification under the UK NS&I Act within four Business Days after the date on which the UK NS&I Act comes fully into force.
3.5 Save to the extent prohibited by applicable Law or a Relevant Authority:
3.5.1 Ultra shall provide to Cobham and Cobham Parent, and each otherof Cobham and Cobham Parent shall provide Ultra, in a timely mannereach case as soon as reasonably practicable and in any event before any deadline or due date imposed by applicable Law, all such information (that is in the possession of, or reasonably obtainable by, the relevant party) and reasonable assistance as may reasonably be required for:
(ia) the parties Cobham and/or Cobham Parent to determine in which jurisdictions any merger control, regulatory or other filing, notification, notification or submission or engagement with a Government Relevant Authority is may be necessary or advisable expedient in addition to those required for the Clearances, provided always that Cobham and Cobham Parent agree that any such additional filings would not be considered material for the purposes of the Code;
(b) inclusion in any filings, notifications or submissions to any Relevant Authority for the purposes of obtaining the Clearances;
(ii) the parties to make , or for inclusion in any filings, notifications or submissions to the Government Authorities as are necessary in connection with the obtaining of Clearances, taking into account all applicable waiting periods;
(iii) the identification, structuring and preparation of any Remedies or proposed Remedies; and
(iv) responding to any inquiries from other Government Authorities concerning the application or potential application of any Laws to the Merger; and
(b) ensure that all information necessary:
(i) for the making of (or responding responses to any requests for further information consequent upon) any upon such filings, notifications, submissions notifications or engagements submissions; and
(including draft versionsc) necessary for the purpose purposes of obtaining the Clearances; and
(ii) , including assistance in connection with the identificationpre-notification contacts with the Relevant Authorities, and the identifying, structuring and preparation of any Remedies, and that is in the possession of, or reasonably obtainable by the parties (including from third parties through the exercise of contractual rights) is supplied accurately and as promptly as reasonably practicable.
3.4 Randgold shall:
(a) not offer or agree to any Remedies without the express written approval of Barrick;
(b) subject to clause 3.5, not discuss the terms or potential terms of any Remedies without the express written approval of Barrick; and
(c) in relation to any Regulatory Condition3.5.2 Ultra shall provide Cobham and Cobham Parent, or to complete the COMESA filing, agree to any Remedies (provided that the determination of such Remedies is made in accordance with clause 3.1) which Barrick requests Randgold to be party to; provided, however, that Randgold’s fulfilment of any obligations under such Remedies and Cobham and Cobham Parent shall be conditioned on the consummation of the Merger.
3.5 Except to the extent that to do so is prohibited by Law and subject to clauses 3.1 and 3.7:
(a) Barrick, Randgold or Barrick and Randgold jointlyprovide Ultra, as soon as reasonably practicable such information and access to their respective management and employees as Cobham, Cobham Parent, Ultra or any Relevant Authority may be required by Law, will engage with and/or submit reasonably require for the purposes of making a filing, notification or submission (as required) to each relevant Government Authority as soon as is reasonably practicable after the signing of this Agreement and in any event within any applicable mandatory time periods where it is necessary, desirable, appropriate or expedient to do so to obtain the Clearances and shall make the initial filings for the Regulatory Conditions as soon as is reasonably practicable and in any event by no later than 15 Business Days from the date of this Agreement;
(b) Barrick and Randgold shall agree on which of them shall manage communications with any Government Authority and shall agree on the principles of the approach (it being further agreed that Randgold will lead all communications with Government Authorities in the Randgold Home Jurisdictions and Barrick will not contact any Government Authority in those jurisdictions without prior consultation with Randgold);
(c) each party shall provide in a timely manner such cooperation as is reasonably required by the other in connection with the preparation of all such filings, notifications, submissions or engagements referred to in clause 3.5(a) and in relation to the preparation of any other Communications with or to any Government Relevant Authority in connection with the Clearances.
3.6 Save to the extent prohibited by applicable Law or a Relevant Authority, taking into account all applicable waiting periods;each of Cobham and Cobham Parent undertakes to Ultra (and Ultra undertakes to Cobham and Cobham Parent) to:
(d) each party shall 3.6.1 provide, or procure the provision of, to the other party (and/or its legal advisers) draft copies of all Communications filings, notifications, submissions, material correspondence and material communications (including, in the case of material non-written Communicationscorrespondence or communications, reasonably detailed summaries of the material non-written Communications) such correspondence or communications), other than those of a purely administrative nature intended to be submitted, sent or communicated to any Government Relevant Authority in relation to connection with obtaining any Clearances to Clearance or (if applicable) the other party and its legal advisers Additional UK Clearance, at such time as will allow the receiving other party a (and/or its legal advisers) reasonable opportunity to provide review and comment thereon;
3.6.2 take into account reasonable comments made by the other party (and/or its legal advisers) on such Communications before they are draft copies of filings, notifications, submissions, material correspondence and material communications provided pursuant to Clause 3.6.1;
3.6.3 as soon as reasonably practicable provide, or procure the provision of, to the other party (and/or its legal advisers) copies of all filings, notifications, submissions, material correspondence and material communications in the form finally submitted, sent or made, save thatcommunicated to any Relevant Authority in connection with obtaining any Clearance or (if applicable) the Additional UK Clearance (including, in the case of Randgold and the Randgold Home Jurisdictionsmaterial non- written correspondence or communications, where the parties have agreed the principles reasonably detailed summaries of an approach to a Government Authority and the Communication is consistent with those agreed principles, Randgold shall not be required to share, such correspondence or procure the sharing of, drafts of any Communications to Barrick prior to such Communications being submitted, sent or madecommunications);
(e) each party shall provide 3.6.4 as soon as reasonably practicable notify the other party with (and/or its legal advisers) of, and provide copies of all Communications in the form finally submitted or sent to of, any Government Authority in relation to any Clearances material correspondence and material communications (including, in the case of material non-written Communicationscorrespondence or communications, reasonably detailed summaries of such correspondence or communications) received from any Relevant Authority in connection with obtaining the material non-written Communications)Clearances and (if applicable) the Additional UK Clearance;
(f) each party shall consider in good faith comments made in a timely manner by 3.6.5 give the other party on draft copies (and/or its legal advisers) reasonable notice of Communications provided pursuant any meetings, hearings or scheduled telephone calls, other than those of a purely administrative nature, with any Relevant Authority in connection with obtaining the Clearances and (if applicable) the Additional UK Clearance, and allow the other party (and/or its legal advisers) to clause 3.5(d)attend and make reasonable oral submissions during any such material meetings, hearings or telephone calls (provided, to the extent practicable, such oral submissions have been discussed by the parties in advance) and, where such attendance and participation is not permitted by applicable Law or the Relevant Authority, to provide, to the extent so permitted, the other party with a written summary of such meeting, hearing or telephone call as soon as reasonably practicable following the meeting, hearing or telephone call;
(g) each party shall notify the other party, and provide copies (including, in the case of material non-written Communications, reasonably detailed summaries of the material non-written Communications), in a timely manner, of any Communication from or with any Government Authority in relation to the Merger or any Clearance;
(h) each party shall 3.6.6 keep the other party reasonably (and/or its legal advisers) informed as to the progress soon as reasonably practicable of any filing, notification and submission submitted pursuant to clause 3.5(a) and shall give the other reasonable prior notice of any meetings or calls with any Government Authority or other persons or bodies relating to any Clearance (including at pre-notification stage) and, to the extent reasonably practicable, shall allow representatives or advisers nominated by the other: (i) to attend all meetings or calls with any Government Authority (unless prohibited by the Government Authority or Law) relating to any Clearance; and (ii) to make reasonable oral submissions at such meetings or calls; and
(i) where reasonably requested by a party, and insofar as permitted by a Government Authority, the other party shall make available appropriate representatives for meetings and calls with any Government Authority in connection with any Clearances.
3.6 Each party undertakes to keep the other party informed promptly of: (a) developments which are material or reasonably likely to be potentially material to the obtaining of a Clearance; and (b) the satisfaction any of the Regulatory Conditions.Clearances; and
3.7 Subject 3.6.7 not to clause 3.1, each party undertakes not to:
(a) submit a filing, submission or notification to, or, otherwise engage with, any Government Authority in a jurisdiction where a Clearance is neither required nor determined by Barrick and Randgold to be appropriate or advisable for the Merger to be completed; or
(b) withdraw a filing, submission or notification made to any Government Authority whose Clearance is required or determined by Barrick and Randgold to be appropriate or advisable for the Merger to be completed; or
(c) other than as required by Law to be paid in respect of any filing, submission or notification to any Government Authority that is required to be made by it pursuant to the terms of this clause 3, make any payment of any amount to any Government Relevant Authority in connection with obtaining any of the Merger, in each case, Clearances without the prior written consent of the other party.
3.8 3.7 If a provision of this Agreement obliges Cobham, Cobham Parent or Ultra Disclosing Party another party:
3.7.1 that is personally identifiable information of a director, officer or employee of the parties to disclose any Disclosing Party, unless that information to can be reasonably anonymised (in which case the other Disclosing Party shall provide the relevant information on an anonymous basis);
3.7.2 which the disclosing party Disclosing Party reasonably considers to be commercially or competitively sensitive, ;
3.7.3 which the disclosing party shall is prohibited from disclosing by applicable Law or the terms of an existing contract;
3.7.4 where such disclosure would result in the loss of privilege that subsists in relation to such information, including legal professional privilege; or
3.7.5 where such disclosure would result in the relevant information being required to be disclosed to a competing bidder pursuant to Rule 21.3 of the Code, the Disclosing Party shall, to the extent permitted by applicable Law (and, if relevant, the Code), disclose the relevant information to the other party party:
3.7.6 on an outside counsel basis pursuant to appropriate clean team arrangements (including on an external counsel only basis) or as the disclosing party and JDA; or
3.7.7 where disclosure to the other party may would reasonably be expected to have a material the Relevant Authority (and in such circumstances, the Disclosing Party shall provide, or procure the provision of, a non-confidential version of such information to the other party), but provided always that nothing in this Agreement shall oblige the Disclosing Party to disclose any information where such disclosure would result in the loss of privilege that subsists in relation to such information (including legal professional privilege).
3.8 Except with the prior written consent of Ultra, until the Effective Date: (a) Cobham and Cobham Parent shall not, and shall procure that each member of the Cobham Group shall not; and (b) AIC shall procure that the funds comprising Advent GPE IX do not, and shall not cause any member of the AIC Group to, in each case, directly or indirectly:
3.8.1 take, or permit or cause to be taken, any action; or
3.8.2 acquire or commit to acquire any business, the acquisition of which would, in either case, be reasonably likely to preclude, impede, prejudice or materially delay receipt of the Clearances or satisfaction of the Regulatory Conditions or prevent, impede, prejudice or materially delay completion of the Transaction at the earliest practicable date and, to the extent that: (i) the approval of any member of the AIC Group is required in respect of any such action and/or acquisition (as applicable), it shall exercise its rights (insofar as it is able to do so), directly or indirectly, to procure that such approval is not provided; and/or (ii) any member of the AIC Group is entitled to exercise voting rights in connection with the approval of such action and/or acquisition (as applicable) it shall procure (insofar as it is able to do so) that such voting rights are voted against such action and/or acquisition (as applicable).
3.9 AIC undertakes to exercise all of its rights and powers to cause the relevant member or members of the Cobham Group to agree, execute and implement any Remedy that is required by any Relevant Authority to be offered, agreed or implemented in connection with obtaining the Clearances as soon as reasonably practicable following the date of this Agreement and in sufficient time so as to enable the Effective Date to occur prior to the Longstop Date, including by the giving of undertakings in respect of the Cobham Group and/or the Ultra Group or any of their respective business(es) to the extent required to enable Cobham and Cobham Parent to comply with their obligations under clause 3.1 and 3.2 of this Agreement.
3.10 Notwithstanding any other provision of this Agreement to the contrary, nothing contained in this Agreement shall require a party (or any person acting in concert or deemed to be acting in concert) to take, or cause to be taken, any action with respect to the divestiture of assets, properties or businesses of the Ultra Group, or any combination thereof, that is not conditional on completion of the Transaction, except as otherwise agreeagreed by the parties and with the consent of the Panel (if required).
Appears in 1 contract
Samples: Cooperation Agreement
Clearances. 3.1 Except where otherwise required by LawLaw or Government Authority, Barrick Taptica shall:
(a) jointly with RandgoldRhythmOne, determine the strategy or decisions for obtaining the Clearances, including:
(i) the determination, timing and sequencing regarding any discussion, offer or agreement of Remedies, if any are required, with any Government Authorities; and
(ii) the determination of any Remedies discussed with, offered to or agreed with any Government Authorities, save that in the event of any disagreement between Barrick Taptica and Randgold RhythmOne over strategy or decisions in relation to, or the offer or agreement of Remedies to satisfy, any Regulatory Condition or to complete the COMESA filingCondition, Barrick Taptica may solely determine such strategy or decisions and may solely determine such offer or agreement of Remedies, except where such Remedies would have a material adverse effect on the Barrick Taptica Group following the consummation of the MergerAcquisition;
(b) subject to clause 3.5Clause 3.4, promptly contact and correspond with the Government Authorities in relation to Clearances (including submitting and preparing all necessary filings, notifications and submissions); and
(c) be responsible for the payment of all fees required in connection with obtaining the Clearances to satisfy any Regulatory Condition or to complete the COMESA filingCondition.
3.2 Subject to clause 3.1, Barrick shall:
(a) take, or cause to be taken, all reasonable action and do, or cause to be done, all things reasonably necessary or advisable to secure the Clearances required in relation to the Regulatory Conditions or to complete the COMESA filing, in each case by the Longstop Date or such earlier date as is required by law;
(b) offer to the relevant Government Authorities (and not withdraw) within a reasonable time period any Remedies necessary or advisable (in the reasonable opinion of Barrick) for the purpose of securing the Clearances required in relation to the Regulatory Conditions or to complete the COMESA filing;
(c) perform or implement without undue delay any such Remedies that are offered to and accepted by the relevant Government Authorities for the purpose of securing the Clearances required in relation to the Regulatory Conditions or to complete the COMESA filing;
(d) use reasonable efforts to avoid (i) any declarations of incompleteness by any Government Authority and (ii) any suspension of review period by a Government Authority, in each case in respect of the Clearances required in relation to the Regulatory Conditions or to complete the COMESA filing;
(e) use reasonable efforts to ensure the Clearances required in relation to the Regulatory Conditions or to complete the COMESA filing are obtained promptly by each relevant Government Authority, including, if necessary, entering into a hold separate arrangement with a Government Authority; and
(f) use reasonable efforts to procure that no Government Authority in respect of the Clearances required in relation to the Regulatory Conditions or to complete the COMESA filing seeks to issue, or issues any measure that prevents, or purports to prevent, completion of the Merger.
3.3 Subject to clause Clause 3.1, the parties shallshall use their respective best endeavours:
(a) provide to each other, in a timely manner, such information and assistance as may be required for:
(i) the parties to determine in which jurisdictions any merger control, regulatory or other filing, notification, submission or engagement with a Government Authority is necessary or advisable for the purposes of obtaining the Clearances;
(ii) the parties to make any filings, notifications or submissions to the Government Authorities as are necessary in connection with the obtaining of Clearances, taking into account all applicable waiting periods;
(iii) the identification, structuring and preparation of any Remedies or proposed Remedies; and
(iv) responding to any inquiries from other Government Authorities concerning the application or potential application of any Laws to the MergerAcquisition; and
(b) ensure that all information necessary:
(i) for the making of (or responding to any requests for further information consequent upon) any such filings, notifications, submissions or engagements (including draft versions) necessary for the purpose of obtaining the Clearances; and
(ii) the identification, structuring and preparation of any Remedies, and that is in the possession of, or reasonably obtainable by the parties (including from third parties through the exercise of contractual rights) is supplied accurately and as promptly as reasonably practicable.,
3.4 Randgold 3.3 RhythmOne shall:
(a) not offer or agree to any Remedies without the express written approval of BarrickTaptica;
(b) subject to clause 3.5Clause 3.4, not discuss the terms or potential terms of any Remedies without the express written approval of BarrickTaptica; and
(c) in relation to any Regulatory Condition, or to complete the COMESA filing, agree to any Remedies (provided that the determination of such Remedies is made in accordance with clause Clause 3.1) to which Barrick Taptica requests Randgold RhythmOne to be party to; provided, however, that RandgoldRhythmOne’s fulfilment of any obligations under such Remedies shall be conditioned on the consummation of the MergerAcquisition.
3.5 3.4 Except to the extent that to do so is prohibited by Law and subject to clauses Clauses 3.1 and 3.73.6:
(a) BarrickTaptica, Randgold RhythmOne or Barrick Taptica and Randgold RhythmOne jointly, as may be required by Lawrequired, will engage with and/or submit a filing, notification or submission (as required) to each relevant Government Authority as soon as is reasonably practicable after the signing of this Agreement and in any event within any applicable mandatory time periods where it is necessary, desirable, appropriate or expedient to do so to obtain the Clearances and shall make the initial filings for the Regulatory Conditions as soon as is reasonably practicable and in any event by no later than 15 Business Days from the date of this AgreementClearances;
(b) Barrick and Randgold shall agree on which of them shall manage communications with any Government Authority and shall agree on the principles of the approach (it being further agreed that Randgold will lead all communications with Government Authorities in the Randgold Home Jurisdictions and Barrick will not contact any Government Authority in those jurisdictions without prior consultation with Randgold);
(c) each party shall provide in a timely manner such cooperation as is reasonably required by the other in connection with the preparation of all such filings, notifications, submissions or engagements referred to in clause 3.5(aClause 3.4(a) and in relation to the preparation of any other Communications with or to any Government Authority in connection with the Clearances, taking into account all applicable waiting periods;
(dc) each party shall provide, or procure the provision of, draft copies of all Communications (including, in the case of material non-written Communications, reasonably detailed summaries of the material non-written Communications) intended to be sent or communicated to any Government Authority in relation to any Clearances to the other party and its legal advisers at such time as will allow the receiving party a reasonable opportunity to provide comments on such Communications before they are submitted, sent or made, save that, in the case of Randgold and the Randgold Home Jurisdictions, where the parties have agreed the principles of an approach to a Government Authority and the Communication is consistent with those agreed principles, Randgold shall not be required to share, or procure the sharing of, drafts of any Communications to Barrick prior to such Communications being submitted, sent or made;
(ed) each party shall provide the other party with copies of all Communications in the form finally submitted or sent to any Government Authority in relation to any Clearances (including, in the case of material non-written Communications, reasonably detailed summaries of the material non-written Communications);
(fe) each party shall consider in good faith comments made in a timely manner by the other party on draft copies of Communications provided pursuant to clause 3.5(d)Clause 3.4(c) and shall provide such supporting documentation as the other party may request;
(gf) each party shall notify the other party, and provide copies (including, in the case of material non-written Communications, reasonably detailed summaries of the material non-written Communications), in a timely manner, of any Communication from or with any Government Authority in relation to the Merger Acquisition or any Clearance;
(hg) each party shall keep the other party reasonably informed as to the progress of any filing, notification and submission submitted pursuant to clause 3.5(aClause 3.4(a) and shall give the other reasonable prior notice of any meetings or calls with any Government Authority or other persons or bodies relating to any Clearance (including at pre-notification stage) and, to the extent reasonably practicable, shall reasonably consider requests by the other party to allow their representatives or advisers nominated by the othernominated: (i) to attend all meetings or calls with any Government Authority (unless prohibited by the Government Authority or Law) relating to any Clearance; and (ii) to make reasonable oral submissions at such meetings or callscalls (provided that such oral submissions have been discussed in advance); and
(ih) where reasonably requested by a party, and insofar as permitted by a Government Authority, the other party shall make available appropriate representatives for meetings and calls with any Government Authority in connection with any Clearances.
3.6 3.5 Each party undertakes to keep the other party informed promptly of: :
(a) developments which are material or reasonably likely to be material to the obtaining of a Clearance; and (b) the satisfaction of the Regulatory Conditions.
3.7 3.6 Subject to clause Clause 3.1, each party undertakes not to:
(a) submit a filing, submission or notification to, or, otherwise engage with, any Government Authority in a jurisdiction where a Clearance is neither required nor determined by Barrick Taptica and Randgold RhythmOne to be appropriate or advisable for the Merger Acquisition to be completed; or
(b) withdraw a filing, submission or notification made to any Government Authority whose Clearance is required or determined by Barrick Taptica and Randgold RhythmOne to be appropriate or advisable for the Merger Acquisition to be completed; or
(c) other than as required by Law to be paid in respect of any filing, submission or notification to any Government Authority that is required to be made by it pursuant to the terms of this clause Clause 3, make any payment of any amount to any Government Authority in connection with the MergerAcquisition, in each case, without the prior written consent of the other party.
3.8 3.7 If a provision of this Agreement obliges the parties to disclose any information to the other other:
(a) which the disclosing party reasonably considers to be commercially or competitively sensitive;
(b) which the disclosing party is prohibited from disclosing by Law or the terms of an existing contract; or
(c) where such disclosure would result in the loss of privilege that subsists in relation to such information (including legal professional privilege), the disclosing party shall disclose the relevant information to the other party other: (i) pursuant to appropriate clean team arrangements as may be agreed between the parties; or (including ii) where disclosure in a manner contemplated by Clause 3.4(a) would reasonably be expected to have a material adverse effect on an external counsel only basis) or as the disclosing party's legitimate business interest, directly to a Government Authority (and in such circumstances, the disclosing party and shall provide to the other party a non-confidential version of such information).
3.8 To the extent that:
(a) RhythmOne provides Taptica with any information, assistance and/or access to RhythmOne's senior management for the purposes of preparing for and monitoring the integration of the businesses of the Taptica Group and the RhythmOne Group after the Effective Date (which RhythmOne is under no obligation to provide); or
(b) Taptica provides RhythmOne with any information, assistance and/or access to Taptica' senior management for the purposes of preparing for and monitoring the integration of the businesses of the Taptica Group and the RhythmOne Group after the Effective Date (which Taptica is under no obligation to provide), any competitively sensitive information shall be provided pursuant to appropriate arrangements as may otherwise agreebe agreed between the parties.
3.9 For the avoidance of doubt, nothing in this Agreement shall oblige Taptica to offer or agree any Remedy or to waive or satisfy any Regulatory Condition.
Appears in 1 contract
Samples: Cooperation Agreement
Clearances. 3.1
6.1 The Bidder undertakes to the Target to take all reasonable steps necessary to secure the Clearances as soon as is reasonably practicable.
6.2 Except where otherwise required by Lawlaw or a Relevant Authority, Barrick shallthe Bidder shall in good faith:
(a) jointly with Randgold6.2.1 determine, determine having consulted the Target in a timely manner, the strategy or decisions to be pursued for obtaining the Clearances, including:
(i) the determination, timing and sequencing regarding any discussion, offer or agreement of Remedies, if any are required, with any Government Authorities; and
(ii) the determination of any Remedies discussed with, offered to or agreed with any Government Authorities, save that in the event of any disagreement between Barrick and Randgold over strategy or decisions in relation to, or the offer or agreement of Remedies to satisfy, any Regulatory Condition or to complete the COMESA filing, Barrick may solely determine such strategy or decisions and may solely determine such offer or agreement of Remedies, except where such Remedies would have a material adverse effect on the Barrick Group following the consummation of the Merger;
(b) subject to clause 3.5, promptly contact and correspond with the Government Authorities in relation to Clearances (including submitting and preparing all necessary filings, notifications and submissions); and
(c) 6.2.2 be responsible for the payment of all filing fees required in connection with obtaining the Clearances to satisfy any Regulatory Condition or to complete the COMESA filingClearances.
3.2 Subject to clause 3.1, Barrick shall:
(a) take, or cause to be taken, all reasonable action and do, or cause to be done, all things reasonably necessary or advisable to secure the Clearances required 6.3 The parties shall co-operate with each other in relation to the Regulatory Conditions obtaining of any necessary or to complete the COMESA filingexpedient Clearances and, in each case by the Longstop Date or such earlier date as is required by law;
(b) offer without prejudice to the relevant Government Authorities (and not withdraw) within a reasonable time period any Remedies necessary or advisable (in the reasonable opinion of Barrick) for the purpose of securing the Clearances required in relation to the Regulatory Conditions or to complete the COMESA filing;
(c) perform or implement without undue delay any such Remedies that are offered to and accepted by the relevant Government Authorities for the purpose of securing the Clearances required in relation to the Regulatory Conditions or to complete the COMESA filing;
(d) use reasonable efforts to avoid (i) any declarations of incompleteness by any Government Authority and (ii) any suspension of review period by a Government Authority, in each case in respect generality of the Clearances required in relation to the Regulatory Conditions or to complete the COMESA filing;
(e) use reasonable efforts to ensure the Clearances required in relation to the Regulatory Conditions or to complete the COMESA filing are obtained promptly by each relevant Government Authorityforegoing, including, if necessary, entering into a hold separate arrangement with a Government Authority; and
(f) use reasonable efforts to procure that no Government Authority in respect of the Clearances required in relation to the Regulatory Conditions or to complete the COMESA filing seeks to issue, or issues any measure that prevents, or purports to prevent, completion of the Merger.
3.3 Subject to clause 3.1, the parties shall:
(a) provide to 6.3.1 assist each other, in a timely manner, other with the provision of such information and assistance as may be required for:
(i) 6.3.1.1 the parties Bidder to determine in which jurisdictions any merger control, regulatory or other filing, notification, notification or submission or engagement with a Government Relevant Authority is necessary or advisable for the purposes of obtaining the Clearances;
(ii) 6.3.1.2 the parties Bidder to make any filings, notifications or submissions to the Government Relevant Authorities (and/or to respond to any requests for further information in relation thereto) as are necessary in connection with obtaining the obtaining of Clearances, taking into account all applicable waiting periods;
(iii) the identification, structuring and preparation of any Remedies or proposed Remedies; and
(iv) responding to any inquiries from other Government Authorities concerning the application or potential application of any Laws to the Merger; and
(b) ensure that all information necessary:
(i) for the making of (or responding to any requests for further information consequent upon) any such filings, notifications, submissions or engagements (including draft versions) necessary for the purpose of obtaining the Clearances; and
(ii) 6.3.1.3 the identification, structuring and preparation of any Remedies, and if it can reasonably be expected that is any will be required to secure a Clearance;
6.3.2 assist in making such filings with any Relevant Authority, jointly or separately, as are necessary for the purposes of obtaining the Clearances;
6.3.3 assist in the possession provision, or procuring the provision of, to the other party (and/or its advisers):
6.3.3.1 draft copies of all filings, notifications, submissions, material correspondence and material communications intended to be submitted, sent or reasonably obtainable by the parties (including from third parties through the exercise of contractual rights) is supplied accurately and as promptly as reasonably practicable.
3.4 Randgold shall:
(a) not offer or agree communicated to any Remedies without the express written approval of Barrick;
(b) subject to clause 3.5, not discuss the terms or potential terms of any Remedies without the express written approval of Barrick; and
(c) in relation to any Regulatory Condition, or to complete the COMESA filing, agree to any Remedies (provided that the determination of such Remedies is made in accordance with clause 3.1) which Barrick requests Randgold to be party to; provided, however, that Randgold’s fulfilment of any obligations under such Remedies shall be conditioned on the consummation of the Merger.
3.5 Except to the extent that to do so is prohibited by Law and subject to clauses 3.1 and 3.7:
(a) Barrick, Randgold or Barrick and Randgold jointly, as may be required by Law, will engage with and/or submit a filing, notification or submission (as required) to each relevant Government Relevant Authority as soon as is reasonably practicable after the signing of this Agreement and in any event within any applicable mandatory time periods where it is necessary, desirable, appropriate or expedient to do so to obtain the Clearances and shall make the initial filings for the Regulatory Conditions as soon as is reasonably practicable and in any event by no later than 15 Business Days from the date of this Agreement;
(b) Barrick and Randgold shall agree on which of them shall manage communications with any Government Authority and shall agree on the principles of the approach (it being further agreed that Randgold will lead all communications with Government Authorities in the Randgold Home Jurisdictions and Barrick will not contact any Government Authority in those jurisdictions without prior consultation with Randgold);
(c) each party shall provide in a timely manner such cooperation as is reasonably required by the other in connection with obtaining any Clearance, at such time as will allow the preparation of all other party (and/or its advisers) reasonable opportunity to review and comment on such filings, notifications, submissions submissions, correspondence and communications before they are submitted, sent or engagements referred to in clause 3.5(a) and in relation to the preparation of any other Communications with or to any Government Authority in connection with the Clearances, taking into account all applicable waiting periods;communicated; and
(d) each party shall provide, or procure the provision of, draft 6.3.3.2 copies of all Communications (filings, notifications, submissions, material correspondence and material communications sent or submitted to any Relevant Authority in the form finally submitted, sent or communicated, including, in each case, in the case of material non-written Communicationscorrespondence or communications, reasonably detailed summaries of the material non-written Communications) intended to be sent such correspondence or communicated to any Government Authority in relation to any Clearances to the other party and its legal advisers at such time as will allow the receiving party a reasonable opportunity to provide comments on such Communications before they are submitted, sent or made, save that, in the case of Randgold and the Randgold Home Jurisdictions, where the parties have agreed the principles of an approach to a Government Authority and the Communication is consistent with those agreed principles, Randgold shall not be required to share, or procure the sharing of, drafts of any Communications to Barrick prior to such Communications being submitted, sent or madecommunications;
(e) each party shall provide the other party with copies of all Communications in the form finally submitted or sent to any Government Authority in relation to any Clearances (including, in the case of material non-written Communications, reasonably detailed summaries of the material non-written Communications);
(f) each party shall consider 6.3.4 have regard in good faith to such comments made in a timely manner provided by the other party on draft copies of Communications provided pursuant in accordance with Clause 6.3.3 as are reasonable, and where it is reasonably practicable to clause 3.5(d)do so within the applicable deadline or due date;
(g) each party shall 6.3.5 notify the other party, and provide copies (including, in the case of material non-written Communicationscommunications, reasonably detailed summaries of the material non-written Communicationscommunications), in a timely manner, of any Communication material correspondence or material communication from or with any Government Relevant Authority in relation to the Merger or obtaining any Clearance;
6.3.6 unless prohibited by the Relevant Authority, give the other party and its advisers reasonable notice of (hincluding providing any agendas to the extent available) any meetings, hearings or telephone calls with any Relevant Authority in connection with obtaining the Clearances and allow the other party and its advisers to attend and make reasonable oral submissions during any such material meetings, hearings or telephone calls (provided such oral submissions have been discussed by the parties in advance and to the extent permitted by the Relevant Authority);
6.3.7 each party shall keep promptly inform the other party reasonably informed as to of the progress content of any filing, notification and submission submitted pursuant to clause 3.5(a) and shall give the other reasonable prior notice of any such material meetings or calls with any Government a Relevant Authority or other persons or bodies relating to any Clearance (including at pre-notification stage) and, to the extent reasonably practicable, shall allow representatives or advisers nominated by the other: (i) to attend all meetings or calls that party was not present;
6.3.8 co-operate in any dealings with any Government Relevant Authority (unless prohibited by including without prejudice to the Government generality of the foregoing where reasonably required, jointly attending meetings and conference calls) and deal with all requests and enquiries from any such Relevant Authority or Law) relating in consultation with the other party;
6.3.9 assist in the provision to any Clearance; and (ii) to make reasonable oral submissions at Relevant Authority such meetings or calls; and
(i) where information as may be reasonably requested required by a party, and insofar as permitted by a Government Authority, the other party shall make available appropriate representatives for meetings and calls with any Government such Relevant Authority in connection with any Clearances.
3.6 Each party undertakes to keep authorisations, clearances or consents required or expedient in the other party informed promptly of: (a) developments which are material or reasonably likely to be material to the obtaining of a Clearance; and (b) the satisfaction context of the Regulatory Conditions.Acquisition; and
3.7 Subject to clause 3.16.3.10 if necessary, each party undertakes not to:
(a) submit a filing, submission or notification to, or, otherwise engage with, negotiate with any Government Relevant Authority in a jurisdiction where a Clearance is neither required nor determined by Barrick and Randgold to be appropriate or advisable for the Merger to be completed; or
(b) withdraw a filing, submission or notification made relation to any Government undertakings, orders or agreements which such Relevant Authority whose Clearance is required requires to facilitate the Acquisition (whether or determined by Barrick and Randgold to be appropriate or advisable for not the Merger to be completed; or
(c) other than as required by Law to be paid in respect consent of any filing, submission or notification to any Government Authority that authority is required to satisfy any Condition) provided that this Clause 6.3.10 shall not require any party to agree to any such undertakings, orders or agreements, in each case ensuring all such information, assistance and access is supplied accurately and in a timely manner (taking into account applicable waiting periods), provided that the co-operation will be made by it pursuant conducted in a manner reasonably designed to preserve applicable lawyer/client and lawyer work product privileges and to limit the terms of this clause 3, make any payment exchange of any amount to any Government Authority commercially or competitively sensitive information in connection accordance with the Merger, in each case, without the prior written consent provisions of the other partyclause 6.4.
3.8 6.4 If a provision of this Agreement Clause 6 (Clearances) obliges the parties a party to disclose any information to the other other:
6.4.1 which the disclosing party reasonably considers to be commercially or competitively sensitive;
6.4.2 which the disclosing party is prohibited from disclosing by Applicable Law or the terms of an existing contract; or
6.4.3 where such disclosure would result in the loss of privilege that subsists in relation to it (including, without limitation, legal professional privilege), then, unless the parties agree otherwise, the disclosing party shall (to the extent permitted by Applicable Law) disclose the relevant information to the other party party:
6.4.3.1 pursuant to appropriate confidential information sharing procedures (including clean team arrangements (including agreements and on an external counsel only basis) or as ); and
6.4.3.2 where disclosure in a manner contemplated by Clause 6.3.2 would reasonably be expected to have a material adverse effect on the disclosing party’s legitimate business interest, directly to a Relevant Authority (and in such circumstances, the disclosing party and shall provide to the other party may otherwise agreea redacted version of such information).
6.5 The Bidder undertakes to the Target that until the Clearances have been obtained, and any conditions attached to any Clearances have been fulfilled, neither it nor any other member of the Bidder Group shall enter into an agreement for, or consummate, any acquisition or other transaction that would, or might reasonably be expected to, have the effect of preventing or delaying the obtaining of the Clearances or the fulfilment of any conditions attached to any Clearances.
Appears in 1 contract
Samples: Bid Conduct Agreement
Clearances. 3.1 Except where otherwise required by Law, Barrick shall:
(a) jointly with Randgold, determine the strategy or decisions for obtaining the Clearances, including:
(i) the determination, timing and sequencing regarding any discussion, offer or agreement of Remedies, if any are required, with any Government Authorities; and
(ii) the determination of any Remedies discussed with, offered to or agreed with any Government Authorities, save that in the event of any disagreement between Barrick and Randgold over strategy or decisions in relation to, or the offer or agreement of Remedies to satisfy, any Regulatory Condition or to complete the COMESA filing, Barrick may solely determine such strategy or decisions and may solely determine such offer or agreement of Remedies, except where such Remedies would have a material adverse effect on the Barrick Group following the consummation of the Merger;
(b) subject to clause 3.5, promptly contact and correspond with the Government Authorities in relation to Clearances (including submitting and preparing all necessary filings, notifications and submissions); and
(c) be responsible for the payment of all fees required in connection with obtaining the Clearances to satisfy any Regulatory Condition or to complete the COMESA filing.
3.2 Subject to clause 3.1, Barrick shall:
(a) take, or cause to be taken, all reasonable action and do, or cause to be done, all things reasonably necessary or advisable to secure the Clearances required in relation to the Regulatory Conditions or to complete the COMESA filing, in each case by the Longstop Date or such earlier date as is required by law;
(b) offer to the relevant Government Authorities (and not withdraw) within a reasonable time period any Remedies necessary or advisable (in the reasonable opinion of Barrick) for the purpose of securing the Clearances required in relation to the Regulatory Conditions or to complete the COMESA filing;
(c) perform or implement without undue delay any such Remedies that are offered to and accepted by the relevant Government Authorities for the purpose of securing the Clearances required in relation to the Regulatory Conditions or to complete the COMESA filing;
(d) use reasonable efforts to avoid (i) any declarations of incompleteness by any Government Authority and (ii) any suspension of review period by a Government Authority, in each case in respect of the Clearances required in relation to the Regulatory Conditions or to complete the COMESA filing;
(e) use reasonable efforts to ensure the Clearances required in relation to the Regulatory Conditions or to complete the COMESA filing are obtained promptly by each relevant Government Authority, including, if necessary, entering into a hold separate arrangement with a Government Authority; and
and (f) use reasonable efforts to procure that no Government Authority in respect of the Clearances required in relation to the Regulatory Conditions or to complete the COMESA filing seeks to issue, or issues any measure that prevents, or purports to prevent, completion of the Merger.
3.3 Subject to clause 3.1, the parties shall:
(a) provide to each other, in a timely manner, such information and assistance as may be required for:
(i) the parties to determine in which jurisdictions any merger control, regulatory or other filing, notification, submission or engagement with a Government Authority is necessary or advisable for the purposes of obtaining the Clearances;
(ii) the parties to make any filings, notifications or submissions to the Government Authorities as are necessary in connection with the obtaining of Clearances, taking into account all applicable waiting periods;
(iii) the identification, structuring and preparation of any Remedies or proposed Remedies; and
(iv) responding to any inquiries from other Government Authorities concerning the application or potential application of any Laws to the Merger; and
(b) ensure that all information necessary:
(i) for the making of (or responding to any requests for further information consequent upon) any such filings, notifications, submissions or engagements (including draft versions) necessary for the purpose of obtaining the Clearances; and
(ii) the identification, structuring and preparation of any Remedies, and that is in the possession of, or reasonably obtainable by the parties (including from third parties through the exercise of contractual rights) is supplied accurately and as promptly as reasonably practicable.
3.4 Randgold shall:
(a) not offer or agree to any Remedies without the express written approval of Barrick;
(b) subject to clause 3.5, not discuss the terms or potential terms of any Remedies without the express written approval of Barrick; and
(c) in relation to any Regulatory Condition, or to complete the COMESA filing, agree to any Remedies (provided that the determination of such Remedies is made in accordance with clause 3.1) which Barrick requests Randgold to be party to; provided, however, that Randgold’s fulfilment of any obligations under such Remedies shall be conditioned on the consummation of the Merger.
3.5 Except to the extent that to do so is prohibited by Law and subject to clauses 3.1 and 3.7:
(a) Barrick, Randgold or Barrick and Randgold jointly, as may be required by Law, will engage with and/or submit a filing, notification or submission (as required) to each relevant Government Authority as soon as is reasonably practicable after the signing of this Agreement and in any event within any applicable mandatory time periods where it is necessary, desirable, appropriate or expedient to do so to obtain the Clearances and shall make the initial filings for the Regulatory Conditions as soon as is reasonably practicable and in any event by no later than 15 Business Days from the date of this Agreement;
(b) Barrick and Randgold shall agree on which of them shall manage communications with any Government Authority and shall agree on the principles of the approach (it being further agreed that Randgold will lead all communications with Government Authorities in the Randgold Home Jurisdictions and Barrick will not contact any Government Authority in those jurisdictions without prior consultation with Randgold);
(c) each party shall provide in a timely manner such cooperation as is reasonably required by the other in connection with the preparation of all such filings, notifications, submissions or engagements referred to in clause 3.5(a) and in relation to the preparation of any other Communications with or to any Government Authority in connection with the Clearances, taking into account all applicable waiting periods;
(d) each party shall provide, or procure the provision of, draft copies of all Communications (including, in the case of material non-written Communications, reasonably detailed summaries of the material non-written Communications) intended to be sent or communicated to any Government Authority in relation to any Clearances to the other party and its legal advisers at such time as will allow the receiving party a reasonable opportunity to provide comments on such Communications before they are submitted, sent or made, save that, in the case of Randgold and the Randgold Home Jurisdictions, where the parties have agreed the principles of an approach to a Government Authority and the Communication is consistent with those agreed principles, Randgold shall not be required to share, or procure the sharing of, drafts of any Communications to Barrick prior to such Communications being submitted, sent or made;
(e) each party shall provide the other party with copies of all Communications in the form finally submitted or sent to any Government Authority in relation to any Clearances (including, in the case of material non-written Communications, reasonably detailed summaries of the material non-written Communications);
(f) each party shall consider in good faith comments made in a timely manner by the other party on draft copies of Communications provided pursuant to clause 3.5(d);
(g) each party shall notify the other party, and provide copies (including, in the case of material non-written Communications, reasonably detailed summaries of the material non-written Communications), in a timely manner, of any Communication from or with any Government Authority in relation to the Merger or any Clearance;
(h) each party shall keep the other party reasonably informed as to the progress of any filing, notification and submission submitted pursuant to clause 3.5(a) and shall give the other reasonable prior notice of any meetings or calls with any Government Authority or other persons or bodies relating to any Clearance (including at pre-notification stage) and, to the extent reasonably practicable, shall allow representatives or advisers nominated by the other: (i) to attend all meetings or calls with any Government Authority (unless prohibited by the Government Authority or Law) relating to any Clearance; and (ii) to make reasonable oral submissions at such meetings or calls; and
(i) where reasonably requested by a party, and insofar as permitted by a Government Authority, the other party shall make available appropriate representatives for meetings and calls with any Government Authority in connection with any Clearances.
3.6 Each party undertakes to keep the other party informed promptly of: (a) developments which are material or reasonably likely to be material to the obtaining of a Clearance; and (b) the satisfaction of the Regulatory Conditions.
3.7 Subject to clause 3.1, each party undertakes not to:
(a) submit a filing, submission or notification to, or, otherwise engage with, any Government Authority in a jurisdiction where a Clearance is neither required nor determined by Barrick and Randgold to be appropriate or advisable for the Merger to be completed; or
(b) withdraw a filing, submission or notification made to any Government Authority whose Clearance is required or determined by Barrick and Randgold to be appropriate or advisable for the Merger to be completed; or
(c) other than as required by Law to be paid in respect of any filing, submission or notification to any Government Authority that is required to be made by it pursuant to the terms of this clause 3, make any payment of any amount to any Government Authority in connection with the Merger, in each case, without the prior written consent of the other party.
3.8 If a provision of this Agreement obliges the parties to disclose any information to the other which the disclosing party reasonably considers to be commercially or competitively sensitive, the disclosing party shall disclose the relevant information to the other party pursuant to appropriate clean team arrangements (including on an external counsel only basis) or as the disclosing party and the other party may otherwise agree.
Appears in 1 contract
Clearances. 3.1 Apex undertakes to work co-operatively and reasonably with Sanne and its advisers to satisfy the Regulatory Conditions and take such actions in respect of the Regulatory Conditions and certain other regulatory matters as soon as reasonably practicable following the date of this Agreement, and in particular:
(a) to make as promptly as practicable such submissions, filings or notifications (including in draft where applicable) with the relevant Relevant Authority as are necessary or expedient for the implementation of the Acquisition; and
(b) to provide as promptly as practicable such information as the relevant Relevant Authority may reasonably require for the purposes of making a submission, filing or notification to any Relevant Authority.
3.2 Each party undertakes to co-operate with the other party in relation to the Clearances and each party, subject to clause 3.9 and 3.10 below, undertakes to use all reasonable endeavours to secure or to assist to secure (as the case may be) the Clearances as soon as reasonably practicable following the date of this Agreement and in any event in sufficient time to enable the Effective Date to occur by the Longstop Date.
3.3 Except where otherwise required by LawLaw or a Relevant Authority, Barrick shall:
(a) jointly with Randgold, determine the strategy or decisions for obtaining the Clearances, including:
(i) the determination, timing and sequencing regarding any discussion, offer or agreement of Remedies, if any are required, with any Government Authorities; and
(ii) the determination of any Remedies discussed with, offered to or agreed with any Government Authorities, save that in the event of any disagreement between Barrick and Randgold over strategy or decisions in relation to, or the offer or agreement of Remedies to satisfy, any Regulatory Condition or to complete the COMESA filing, Barrick may solely determine such strategy or decisions and may solely determine such offer or agreement of Remedies, except where such Remedies would have a material adverse effect on the Barrick Group following the consummation of the Merger;
(b) subject to clause 3.5, promptly contact and correspond with the Government Authorities in relation to Clearances (including submitting and preparing all necessary filings, notifications and submissions); and
(c) Apex shall be responsible for the payment of all filing fees required in connection with obtaining the Clearances to satisfy any Regulatory Condition or to complete the COMESA filingClearances.
3.2 Subject 3.4 Save to clause 3.1, Barrick shallthe extent prohibited by Law or the Relevant Authority:
(a) takeSanne undertakes to Apex that it shall provide as soon as reasonably practicable, or cause to be taken, all reasonable action and do, or cause to be done, all things reasonably necessary or advisable to secure the Clearances required in relation to the Regulatory Conditions or to complete the COMESA filing, in each case by the Longstop Date or such earlier date as is required by law;
(b) offer to the relevant Government Authorities (and not withdraw) within a reasonable time period following any Remedies necessary or advisable (in the reasonable opinion of Barrick) request for the purpose of securing the Clearances required in relation to the Regulatory Conditions or to complete the COMESA filing;
(c) perform or implement without undue delay any such Remedies that are offered to and accepted by the relevant Government Authorities for the purpose of securing the Clearances required in relation to the Regulatory Conditions or to complete the COMESA filing;
(d) use reasonable efforts to avoid (i) any declarations of incompleteness by any Government Authority and (ii) any suspension of review period by a Government Authority, in each case in respect of the Clearances required in relation to the Regulatory Conditions or to complete the COMESA filing;
(e) use reasonable efforts to ensure the Clearances required in relation to the Regulatory Conditions or to complete the COMESA filing are obtained promptly by each relevant Government Authority, including, if necessary, entering into a hold separate arrangement with a Government Authority; and
(f) use reasonable efforts to procure that no Government Authority in respect of the Clearances required in relation to the Regulatory Conditions or to complete the COMESA filing seeks to issue, or issues any measure that prevents, or purports to prevent, completion of the Merger.
3.3 Subject to clause 3.1, the parties shall:
(a) provide to each other, in a timely mannersame, such information and assistance as may be reasonably required for:
(i) the parties Apex to determine determine, in consultation with Sanne, in which jurisdictions any merger control, regulatory or other filing, notification, notification or submission or engagement with a Government Relevant Authority is may be necessary or advisable expedient for the purposes of obtaining the Clearances;
(ii) the parties to make any filings, notifications or submissions that Apex (acting reasonably and having consulted Sanne) considers are necessary to be made to the Government Relevant Authorities as are necessary in connection with the obtaining of the Clearances, taking into account all applicable waiting periods;, or for inclusion in any responses to any requests for further information consequent upon such filings, notifications or submissions; and
(iii) all such other assistance as may reasonably be required for the identification, structuring purposes of obtaining the Clearances (including assistance in connection with such pre- notification contacts with the Relevant Authorities as Apex and preparation of any Remedies Sanne agree (each acting reasonably) are desirable or proposed Remedies; and
(iv) responding to any inquiries from other Government Authorities concerning appropriate in the application or potential application of any Laws to the Mergercircumstances); and
(b) each party undertakes to the other to ensure that all information necessary:
(i) necessary for the making of (or responding to any requests for further information consequent upon) any such filings, notifications, submissions or engagements (including draft versions) versions necessary for the purpose of obtaining the Clearances; and
(ii) or that is otherwise required for the identification, structuring and preparation purposes of any Remediesobtaining the Clearances, and that is in the possession of, or is reasonably obtainable by the parties such party (including from third parties through the reasonable exercise of contractual rights) is supplied accurately and as promptly as reasonably practicable.
3.4 Randgold shall3.5 For the purposes of clause 3.4, the parties acknowledge that:
(a) a party shall not offer be in breach of clause 3.4 as a consequence of any inaccuracies in any information originating from a third party (being a person other than a member, officer or agree to any Remedies without employee of the express written approval of Barrickparty's Group);
(b) subject such information and assistance will be supplied in a manner reasonably designed to clause 3.5, not discuss the terms or potential terms of any Remedies without the express written approval of Barrickpreserve applicable legal professional privilege; and
(c) in relation the provision of information is subject to any Regulatory Condition, or to complete the COMESA filing, agree to any Remedies (provided that the determination of such Remedies is made in accordance with clause 3.1) which Barrick requests Randgold to be party to; provided, however, that Randgold’s fulfilment of any obligations under such Remedies shall be conditioned on the consummation of the Merger3.9.
3.5 3.6 Except to the extent that to do so is prohibited by Law and subject to clauses 3.1 and 3.7clause 3.9:
(a) Barrick, Randgold or Barrick Apex to the extent required and Randgold jointlyreasonably considered necessary or, as may be required by applicable Law, will engage with and/or Sanne and Apex jointly, or as reasonably required by Sanne, Sanne (as the case may be) shall submit a any draft filing, filing, notification or submission (as required) to each relevant Government Relevant Authority in connection with obtaining the Clearances, subject to each party complying in full with the obligation in clause 3.6(b), as soon as is reasonably practicable after the signing of this Agreement and in any event within any applicable mandatory time periods period where it is necessary, desirable, appropriate necessary or expedient to do so to obtain the Clearances and shall make the initial filings for the Regulatory Conditions as soon as is reasonably practicable and in any event by no later than 15 Business Days from the date of this AgreementClearances;
(b) Barrick and Randgold shall agree on which of them shall manage communications with any Government Authority and shall agree on the principles of the approach (it being further agreed that Randgold will lead all communications with Government Authorities in the Randgold Home Jurisdictions and Barrick will not contact any Government Authority in those jurisdictions without prior consultation with Randgold);
(c) each party shall provide in a timely manner such cooperation as is reasonably required by the other party in connection with the preparation of all such filings, notifications, notifications or submissions or engagements (as required) referred to in clause 3.5(a3.6(a) and in relation to the preparation of any other Communications with submissions, material correspondence or material communications to any Government Relevant Authority in connection with the Clearances, taking into account all applicable waiting periodsClearances (including at the pre-notification stage);
(dc) each party shall provide, or procure the provision of, draft copies of all Communications notifications, filings, submissions, material correspondence and material communications (including, in the case of material non-written Communicationscommunications, reasonably detailed summaries of the material non-written Communicationssuch communications) intended to be sent or communicated to any Government Relevant Authority in relation to obtaining any Clearances (including at the pre-notification stage) to the other party and its legal advisers at such time as will allow the receiving party a reasonable opportunity to provide comments on such Communications filings, notifications, submissions, material correspondence and material communications before they are submitted, sent or made, save that, in the case of Randgold made and the Randgold Home Jurisdictions, where the parties have agreed the principles of an approach to a Government Authority and the Communication is consistent with those agreed principles, Randgold shall not be required to share, or procure the sharing of, drafts of any Communications to Barrick prior to such Communications being submitted, sent or made;
(e) each party shall provide the other party with copies of all Communications such filings, submissions, material correspondence and material communications in the form finally submitted or sent to any Government Authority in relation to any Clearances (including, in the case of material non-written Communicationscommunications, reasonably detailed summaries of the material non-written Communicationssuch communications);
(fd) each party shall consider have regard in good faith to comments made in a timely manner by the other party on draft copies of Communications filings, notifications, submissions, material correspondence and material communications provided pursuant to clause 3.5(d3.6(c);
(ge) each party shall notify the other party, and provide copies (including, in the case of material non-written Communicationscommunications, reasonably detailed summaries of the material non-written Communicationssuch communications), in a timely manner, manner of any Communication material correspondence or material communication received from or with any Government Relevant Authority in relation to obtaining any Clearance (including at the Merger or any Clearancepre-notification stage);
(hf) each party shall keep the other party reasonably informed as to the progress of any filing, notification and submission submitted pursuant to clause 3.5(a3.6(a) and shall give will reasonably consider requests by the other reasonable prior notice of party and/or its advisers:
(i) to attend any meetings meeting or calls material call with any Government Relevant Authority or other persons or bodies (unless prohibited by the Relevant Authority, Law or other person or body) relating to obtaining any Clearance (including at pre-the pre- notification stage) ); and, to the extent reasonably practicable, shall allow representatives or advisers nominated by the other: (i) to attend all meetings or calls with any Government Authority (unless prohibited by the Government Authority or Law) relating to any Clearance; and
(ii) to make reasonable oral submissions at any such meetings meeting or callscall; and
(ig) where reasonably requested by a party, and insofar as permitted by a Government the Relevant Authority, the other party shall make available appropriate representatives for meetings and calls with any Government Relevant Authority in connection with the obtaining of any ClearancesClearances (including at the pre-notification stage).
3.6 3.7 Each party undertakes to keep the other party informed promptly as soon as reasonably practicable of: :
(a) developments which are material or reasonably likely to be material to the obtaining of a Clearance; and and
(b) the satisfaction or waiver of the Regulatory Conditions.
3.7 Subject to clause 3.1, each 3.8 Each party undertakes not to:
(a) submit a filing, submission or notification to, or, otherwise engage with, any Government Authority in a jurisdiction where a Clearance is neither required nor determined by Barrick and Randgold to be appropriate or advisable for the Merger to be completed; or
(b) withdraw a filing, submission or notification made to any Government Relevant Authority whose in connection with obtaining a Clearance is required or determined by Barrick without first notifying the other party in advance and Randgold seeking input from that other party, such input to be appropriate or advisable for reasonably taken into account before withdrawing the Merger to be completed; or
(c) other than as required by Law to be paid in respect of any filing, submission or notification to any Government Authority that is required to be made by it pursuant to the terms of this clause 3, make any payment of any amount to any Government Authority in connection with the Merger, in each case, without the prior written consent of the other partynotification.
3.8 3.9 If a provision of this Agreement obliges a party (the parties disclosing party) to disclose any information to the other other:
(a) that is personally identifiable information of a director, partner, officer or employee of the disclosing party or any member of its Group or any of their respective affiliates, unless that information can reasonably be anonymised (in which case the disclosing party shall provide the relevant information on an anonymous basis);
(b) which the disclosing party reasonably considers to be commercially or competitively sensitive;
(c) which the disclosing party is prohibited from disclosing by Law or the terms of an existing contract; or
(d) where such disclosure would result in the loss of privilege that subsists in relation to such information (including legal professional privilege), the disclosing party shall shall, to the extent permitted by Law, disclose the relevant information information:
(i) to the other party pursuant to appropriate clean team arrangements as may be agreed between the parties to ensure compliance with Law (including including, as applicable, competition Law and the practices of any Relevant Authority);
(ii) to the other party’s legal counsel and, to the extent reasonably necessary in connection with any competition Clearance, its other advisers on an “external counsel only basisonly” basis (where applicable, in accordance with the requirements of Practice Statement No 30 published by the Panel); or
(iii) or as where disclosure in a manner contemplated by this Agreement would reasonably be expected to have a material adverse effect on the disclosing party's legitimate business interest, directly to a Relevant Authority (and in such circumstances, the disclosing party and shall to the extent reasonably practicable provide, or procure the provision of, to the other party may a redacted version of such information).
3.10 Notwithstanding any other provision of this Agreement to the contrary, nothing contained in this Agreement shall require Apex or the Apex Investors (or any person acting in concert or deemed to be acting in concert with Apex) to take, or cause to be taken, any action with respect to the divestiture of assets, properties or businesses of the Apex Group or the Sanne Group or any other company or business which is controlled by funds or entities managed, advised or sub- advised by the Apex Investors or in which any fund or entity managed, advised or sub-advised by the Apex Investors has a direct or indirect interest, or any combination thereof, or agree to any conditions, measures, commitments or undertakings or any other limitations on the business of the Apex Group or any other company or business which is controlled by funds or entities managed, advised or sub-advised by the Apex Investors or in which any fund or entity managed, advised or sub-advised by the Apex Investors has a direct or indirect interest, except as otherwise agreeagreed by the parties.
Appears in 1 contract
Samples: Cooperation Agreement
