Competition Filings. (a) Seller Parent and Buyer shall, to the extent required by any applicable Law and, if so required, in no event later than ten Business Days following the Agreement Date, file or cause their respective ultimate parent entities to file, with the Federal Trade Commission (“FTC”) and the Department of Justice (“DOJ”) the notification and report form required for the transactions contemplated by this Agreement and any supplemental information requested in connection therewith pursuant to the HSR Act. Seller Parent and Buyer shall furnish to the other such necessary information and reasonable assistance as the other may request in connection with its preparation of any filing or submission which is necessary under the HSR Act. Seller Parent and Buyer shall keep each other apprised of the status of any communications with, and any inquiries or requests for additional information from, the FTC and the DOJ and shall comply promptly with any such inquiry or request. Seller Parent and Buyer shall use their commercially reasonable efforts to obtain any clearance required under the HSR Act for the transactions contemplated by this Agreement. (b) The parties shall each cooperate reasonably with one another in connection with resolving any inquiry or investigation by the Governmental Authority relating to the transactions contemplated hereby. Without limiting the foregoing, each party shall use their commercially reasonable efforts to (i) promptly inform the other party of any written or oral communication received from the Governmental Authority relating to the transactions contemplated hereby (and if in writing, furnish the other party with a copy of such communication); (ii) respond as promptly as practicable to any request from the Governmental Authority for information, documents or other materials in connection with the transactions contemplated hereby; (iii) provide to the other party, and permit the other party to review and comment in advance of submission, considering in good faith the views of the other party, and incorporate the other party’s reasonable comments, all proposed correspondence, filings, and written communications to the Governmental Authority with respect to the transactions contemplated hereby, provided that such material (A) may be redacted as necessary (1) to comply with contractual arrangements, (2) to address legal privilege concerns or (3) to remove references concerning the valuation of the parties or (B) designated as “outside counsel only,” which materials and the information contained therein shall be given only to outside counsel and previously-agreed outside economic consultants of the recipient and will not be disclosed by such outside counsel or outside economic consultants to employees, officers, or directors of the recipient without the advance written consent of the party providing such materials; and (iv) not participate in any substantive meeting, communication, or discussion with the Governmental Authority in respect of investigation or inquiry concerning the transactions contemplated hereby unless it consults with the other party in advance and, except as prohibited by applicable Law or the FTC or DOJ, gives the other party the opportunity to attend and participate therein. Neither Buyer nor Seller Parent shall stay, toll, or extend any applicable waiting period under the HSR Act without the advance written agreement of other Party, and Buyer shall not pull or refile any filing made under the HSR Act without advance notice to Seller Parent. (c) Notwithstanding anything to the contrary contained in this Agreement, nothing in this Agreement will require or obligate Buyer or any of its Affiliates to (and in no event shall any representation, warranty or covenant of Buyer contained in this Agreement be breached or deemed breached as a result of the failure of Buyer to take any of the following actions): (i) agree to or otherwise become subject to any limitations on (A) the right of Buyer effectively to control or operate its business (including the Business after the Closing) or assets (including the Purchased Assets) or (B) the right of Buyer to exercise its full rights of ownership of its business (including the Business after the Closing) or assets (including the Purchased Assets); (ii) agree or be required to sell or otherwise dispose of, hold separate (through the establishment of a trust or otherwise), or divest itself of all or any portion of the business, assets or operations of Buyer or any of its Affiliates or the Business after the Closing or the Purchased Assets; (iii) terminate, modify, or assign existing relationships, Contracts, or obligations of Buyer or any of its Affiliates or those relating to the Business after the Closing or the Purchased Assets; (iv) change or modify any course of conduct regarding future operations of Buyer or any its Affiliates or the Business after the Closing or the Purchased Assets; (v) litigate or contest any administrative or judicial action or proceeding or any Order; or (vi) otherwise take any steps to avoid or eliminate any impediment that may be asserted under any Antitrust Law. In regard to any Governmental Authority, neither Seller Parent nor Seller shall, without Xxxxx’s prior written consent in Buyer’s sole discretion, discuss or commit to any divestiture transaction, or discuss or commit to alter any of their businesses or commercial practices in any way, or otherwise discuss, take or commit to take any action that limits Buyer’s freedom of action with respect to, or Buyer’s ability to retain any of the businesses, product or service lines or assets of, the Business or otherwise limits Buyer’s ability to receive the full benefits of this Agreement. (d) Xxxxx shall lead all communications, strategy and efforts to obtain all necessary clearances, actions or non-actions and consents from Governmental Authorities under Antitrust Laws in connection with the transactions contemplated hereby and any litigation matters relating to the Antitrust Laws, subject to good faith consultations with Seller Parent and the inclusion of Seller Parent at meetings with Governmental Authorities with respect to any discussion related to the transactions contemplated hereby under the Antitrust Laws. (e) Buyer shall pay 100% of any filing fees payable under the HSR Act. (f) Each party hereto shall, as promptly as possible, use its commercially reasonable efforts to obtain, or cause to be obtained, all other Consents and orders from all Governmental Authorities and make, or cause to be made, all filings required by Law to be made by it to consummate the transactions contemplated hereby that may be or become necessary for its execution and delivery of this Agreement and the performance of its obligations pursuant to this Agreement and the other Ancillary Agreements. Each party shall cooperate with each other Party and its Affiliates in promptly seeking to obtain all such other Consents and orders that the other is required by Law to make. The parties hereto shall not willfully take any action that will have the effect of delaying, impairing or impeding the receipt of any required Consents and orders that the other is required by Law to make.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Opko Health, Inc.), Asset Purchase Agreement (Opko Health, Inc.)
Competition Filings. (a) Seller In furtherance of the respective obligations of Buyer and Parent contained in Section 4.4, Parent and Buyer shallshall (i) as promptly as practicable, to the extent required by any applicable Law and, if so required, but in no event later than ten (10) Business Days Days, following the Agreement Dateexecution and delivery of this Agreement, file or cause their respective ultimate parent entities to file, be filed with the Federal Trade Commission (“FTC”) and the United States Department of Justice (“DOJ”) the initial notification and report form under the HSR Act required for the transactions contemplated hereby, (ii) if required by any Applicable Non-U.S. Antitrust Law, as promptly as practicable following the date of this Agreement Agreement, notify the transactions contemplated hereby to any other Governmental Authority with competent jurisdiction to review the transactions contemplated hereby pursuant to such Applicable Non-U.S. Antitrust Laws, (iii) cooperate (and any supplemental shall cause their respective Affiliates to cooperate) in promptly responding to and promptly providing the information requested in connection therewith by (A) any request for additional information and documentary material under the HSR Act or (B) any requests for information from any Governmental Authority pursuant to any Applicable Non-U.S. Antitrust Law, (iv) seek to terminate any waiting periods under the HSR Act. Seller Parent Act or applicable suspensory periods during which the Closing cannot occur under any other applicable Antitrust Laws as soon as practicable, (v) obtain any required consents or approvals pursuant to any Applicable Non-U.S. Antitrust Law, and Buyer shall (vi) furnish to the other party and the other party’s counsel as promptly as practicable with all such necessary information and reasonable assistance as may be reasonably required in order to effectuate the other may request in connection with its preparation foregoing actions. Neither party to this Agreement shall agree to any voluntary extension or delay of any filing waiting periods or submission applicable suspensory periods during which is necessary the Closing cannot occur under the HSR Act. Seller Act or under any Applicable Non-U.S. Antitrust Law, or otherwise withdraw its notification and report form under either the HSR Act or any Applicable Non-U.S. Antitrust Law, in each case, unless both Parent and Buyer shall keep each other apprised of the status of any communications withhave given their prior written consent to such extension, delay or withdrawal.
(b) Buyer and any inquiries or requests for additional information from, the FTC and the DOJ and shall comply promptly with any such inquiry or request. Seller Parent and Buyer shall use their commercially reasonable efforts to obtain defend any clearance required challenge, administrative process or litigation brought by any Governmental Authority or third person seeking to restrain or prohibit any of the transactions contemplated by this Agreement under any Antitrust Laws, and to vacate any relevant restraining order, injunction or adverse decision that prohibits the HSR Act for consummation of the transactions contemplated by this Agreement, in each case, so as to permit the transactions contemplated by this Agreement to be consummated as expeditiously as possible.
(bc) The parties shall each cooperate reasonably with one another in connection with resolving any inquiry or investigation Subject to the terms and conditions herein provided, and without limitation by the foregoing, Buyer shall offer to take, or cause to be taken, all commercially reasonable actions and do, or cause to be done, all other commercially reasonable things necessary, proper or advisable to eliminate any objection that any Governmental Authority relating has to the transactions contemplated herebyby this Agreement under applicable Antitrust Laws and to consummate the transactions contemplated by this Agreement, in each case, as expeditiously as possible.
(d) Subject to applicable Legal Requirements, the preservation of the attorney-client privilege and the instructions of any Governmental Authority, Parent and Buyer shall each keep the other informed of the status of matters relating to the completion of the transactions contemplated by this Agreement, including promptly furnishing the other with copies of notices or other communications between Parent or Buyer, as the case may be, or any of their respective Affiliates (with any competitively sensitive information being provided on an external counsel basis only and excluding any internal business documents of Buyer), and any third Person and/or any Governmental Authority with respect to such transactions. Without limiting the foregoing, each party Parent and Buyer shall use their commercially reasonable efforts to (i) promptly inform permit counsel for the other party of any written or oral communication received from the Governmental Authority relating reasonable opportunity to the transactions contemplated hereby (and if review in writing, furnish the other party with a copy of such communication); (ii) respond as promptly as practicable to any request from the Governmental Authority for information, documents or other materials in connection with the transactions contemplated hereby; (iii) provide to the other partyadvance, and permit the other party to review and comment in advance of submission, considering consider in good faith the views of the other partyparty in connection with, and incorporate the other party’s reasonable comments, all any proposed correspondence, filings, and written communications communication to the any Governmental Authority with respect to the transactions contemplated hereby, provided that such material (A) may be redacted as necessary (1) transactions. Parent and Buyer each agree not to comply with contractual arrangements, (2) to address legal privilege concerns or (3) to remove references concerning the valuation of the parties or (B) designated as “outside counsel only,” which materials and the information contained therein shall be given only to outside counsel and previously-agreed outside economic consultants of the recipient and will not be disclosed by such outside counsel or outside economic consultants to employees, officers, or directors of the recipient without the advance written consent of the party providing such materials; and (iv) not participate in any substantive meetingmeeting or discussion, communicationeither in person or by telephone, or discussion with the any Governmental Authority in respect of investigation or inquiry concerning connection with the transactions contemplated hereby by this Agreement unless it consults with the other party in advance and, except as to the extent not prohibited by applicable Law or the FTC or DOJsuch Governmental Authority, gives the other party the opportunity to attend and participate therein. Neither Buyer nor Seller Parent shall stay, toll, or extend any applicable waiting period under the HSR Act without the advance written agreement of other Party, and Buyer shall not pull or refile any filing made under the HSR Act without advance notice to Seller Parentparticipate.
(c) Notwithstanding anything to the contrary contained in this Agreement, nothing in this Agreement will require or obligate Buyer or any of its Affiliates to (and in no event shall any representation, warranty or covenant of Buyer contained in this Agreement be breached or deemed breached as a result of the failure of Buyer to take any of the following actions): (i) agree to or otherwise become subject to any limitations on (A) the right of Buyer effectively to control or operate its business (including the Business after the Closing) or assets (including the Purchased Assets) or (B) the right of Buyer to exercise its full rights of ownership of its business (including the Business after the Closing) or assets (including the Purchased Assets); (ii) agree or be required to sell or otherwise dispose of, hold separate (through the establishment of a trust or otherwise), or divest itself of all or any portion of the business, assets or operations of Buyer or any of its Affiliates or the Business after the Closing or the Purchased Assets; (iii) terminate, modify, or assign existing relationships, Contracts, or obligations of Buyer or any of its Affiliates or those relating to the Business after the Closing or the Purchased Assets; (iv) change or modify any course of conduct regarding future operations of Buyer or any its Affiliates or the Business after the Closing or the Purchased Assets; (v) litigate or contest any administrative or judicial action or proceeding or any Order; or (vi) otherwise take any steps to avoid or eliminate any impediment that may be asserted under any Antitrust Law. In regard to any Governmental Authority, neither Seller Parent nor Seller shall, without Xxxxx’s prior written consent in Buyer’s sole discretion, discuss or commit to any divestiture transaction, or discuss or commit to alter any of their businesses or commercial practices in any way, or otherwise discuss, take or commit to take any action that limits Buyer’s freedom of action with respect to, or Buyer’s ability to retain any of the businesses, product or service lines or assets of, the Business or otherwise limits Buyer’s ability to receive the full benefits of this Agreement.
(d) Xxxxx shall lead all communications, strategy and efforts to obtain all necessary clearances, actions or non-actions and consents from Governmental Authorities under Antitrust Laws in connection with the transactions contemplated hereby and any litigation matters relating to the Antitrust Laws, subject to good faith consultations with Seller Parent and the inclusion of Seller Parent at meetings with Governmental Authorities with respect to any discussion related to the transactions contemplated hereby under the Antitrust Laws.
(e) Buyer shall pay 100% of any filing fees payable under the HSR Act.
(f) Each party hereto shall, as promptly as possible, use its commercially reasonable efforts to obtain, or cause to be obtained, all other Consents and orders from all Governmental Authorities and make, or cause to be made, all filings required by Law to be made by it to consummate the transactions contemplated hereby that may be or become necessary for its execution and delivery of this Agreement and the performance of its obligations pursuant to this Agreement and the other Ancillary Agreements. Each party shall cooperate with each other Party and its Affiliates in promptly seeking to obtain all such other Consents and orders that the other is required by Law to make. The parties hereto shall not willfully take any action that will have the effect of delaying, impairing or impeding the receipt of any required Consents and orders that the other is required by Law to make.
Appears in 2 contracts
Samples: Stock Purchase Agreement, Stock Purchase Agreement (Rockwood Holdings, Inc.)
Competition Filings. In furtherance of the respective obligations of Buyer and Seller contained in Section 4.4, Seller and Buyer shall (a) Seller Parent and Buyer shallas promptly as practicable, to the extent required by any applicable Law and, if so required, but in no event later than ten (10) Business Days Days, following the Agreement Dateexecution and delivery of this Agreement, file or cause their respective ultimate parent entities to file, be filed with the Federal Trade Commission (“FTC”) and the United States Department of Justice (“DOJ”) the initial notification and report form under the HSR Act required for the transactions contemplated by this Agreement hereby, (b) as promptly as practicable prepare and file or cause to be filed all Non-US Antitrust Approvals, (c) cooperate in responding promptly to any supplemental information requested in connection therewith pursuant to the HSR Act. Seller Parent Request for Additional Information and Buyer shall furnish to the other such necessary information and reasonable assistance as the other may request in connection with its preparation of any filing or submission which is necessary under the HSR Act. Seller Parent and Buyer shall keep each other apprised of the status of any communications with, and any inquiries or requests for additional information from, the FTC and the DOJ and shall comply promptly with any such inquiry or request. Seller Parent and Buyer shall use their commercially reasonable efforts to obtain any clearance required Documentary Material under the HSR Act or other request for further information from any Governmental Authority in respect of such filings and the transactions contemplated by this Agreement.
, (bd) The parties shall each cooperate seek to terminate any waiting periods under the HSR Act or applicable to Non-US Antitrust Approvals as soon as practicable and (e) furnish the other party and the other party’s counsel as promptly as practicable with all such information and reasonable assistance as may be reasonably with one another required in connection with resolving any inquiry or investigation by order to effectuate the Governmental Authority relating foregoing actions. Subject to the transactions contemplated hereby. Without terms and conditions herein provided and without limiting the foregoing, each party hereto shall use their commercially reasonable efforts to (i) promptly inform take, or cause to be taken, all other actions and do, or cause to be done, all other things necessary, proper or advisable to consummate and make effective the transactions contemplated hereby, including taking all such further action as reasonably may be necessary to resolve such objections, if any, as the FTC, the DOJ or any other party of any written or oral communication received from the Governmental Authority relating may assert under Antitrust Laws with respect to the transactions contemplated hereby, and to avoid or eliminate each and every impediment under any Law that may be asserted by any Governmental Authority with respect to the transactions contemplated hereby so as to enable the Closing to occur as soon as expeditiously possible. In furtherance thereof, the parties agree that if any administrative or judicial action or proceeding, including any action or proceeding by a private party, is instituted (or threatened to be instituted) challenging any transaction contemplated by this Agreement as violative of any Antitrust Law, Seller and if Buyer shall cooperate in writingall respects with each other and shall use their respective best efforts to contest and resist any such action or proceeding and to have vacated, furnish lifted, reversed or overturned any decree, judgment, injunction or other order, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents or restricts consummation of the transactions contemplated by this Agreement. Notwithstanding anything to the contrary contained herein, in no event will Buyer, the Transferred Companies or any of their respective Affiliates be required to make any proposals, execute or carry out any agreements or submit to any Antitrust Law seeking to impose any limitations on the ability of Buyer, the Transferred Companies or any of their respective Affiliates to acquire, operate or hold, or to require Buyer, the Transferred Companies or any of their respective Affiliates to dispose of or hold separate, any portion of their assets or business. Subject to applicable Law, the preservation of the attorney-client privilege and the instructions of any Governmental Authority, Seller and Buyer shall each keep the other informed of the status of matters relating to the completion of the transactions contemplated thereby, including promptly furnishing the other with copies of notices or other communications between Seller or Buyer, as the case may be, or any of their respective Affiliates (with any competitively sensitive information being provided on an external counsel basis only), and any third party and/or any Governmental Authority with respect to such transactions. Seller and Buyer shall permit counsel for the other party with a copy of such communication); (ii) respond as promptly as practicable reasonable opportunity to any request from the Governmental Authority for information, documents or other materials review in connection with the transactions contemplated hereby; (iii) provide to the other partyadvance, and permit the other party to review and comment in advance of submission, considering consider in good faith the views of the other partyparty in connection with, and incorporate the other party’s reasonable comments, all any proposed correspondence, filings, and written communications communication to the any Governmental Authority with respect to the transactions contemplated hereby, provided that such material (A) may be redacted as necessary (1) transaction. Seller and Buyer each agree not to comply with contractual arrangements, (2) to address legal privilege concerns or (3) to remove references concerning the valuation of the parties or (B) designated as “outside counsel only,” which materials and the information contained therein shall be given only to outside counsel and previously-agreed outside economic consultants of the recipient and will not be disclosed by such outside counsel or outside economic consultants to employees, officers, or directors of the recipient without the advance written consent of the party providing such materials; and (iv) not participate in any substantive meetingmeeting or discussion, communicationeither in person or by telephone, or discussion with the any Governmental Authority in respect connection with Buyer’s proposed purchase of investigation or inquiry concerning the transactions contemplated hereby Transferred Companies unless it consults with the other party in advance and, except as to the extent not prohibited by applicable Law or the FTC or DOJsuch Governmental Authority, gives the other party the opportunity to attend and participate therein. Neither Buyer nor Seller Parent shall stay, toll, or extend any applicable waiting period under the HSR Act without the advance written agreement of other Party, and Buyer shall not pull or refile any filing made under the HSR Act without advance notice to Seller Parentparticipate.
(c) Notwithstanding anything to the contrary contained in this Agreement, nothing in this Agreement will require or obligate Buyer or any of its Affiliates to (and in no event shall any representation, warranty or covenant of Buyer contained in this Agreement be breached or deemed breached as a result of the failure of Buyer to take any of the following actions): (i) agree to or otherwise become subject to any limitations on (A) the right of Buyer effectively to control or operate its business (including the Business after the Closing) or assets (including the Purchased Assets) or (B) the right of Buyer to exercise its full rights of ownership of its business (including the Business after the Closing) or assets (including the Purchased Assets); (ii) agree or be required to sell or otherwise dispose of, hold separate (through the establishment of a trust or otherwise), or divest itself of all or any portion of the business, assets or operations of Buyer or any of its Affiliates or the Business after the Closing or the Purchased Assets; (iii) terminate, modify, or assign existing relationships, Contracts, or obligations of Buyer or any of its Affiliates or those relating to the Business after the Closing or the Purchased Assets; (iv) change or modify any course of conduct regarding future operations of Buyer or any its Affiliates or the Business after the Closing or the Purchased Assets; (v) litigate or contest any administrative or judicial action or proceeding or any Order; or (vi) otherwise take any steps to avoid or eliminate any impediment that may be asserted under any Antitrust Law. In regard to any Governmental Authority, neither Seller Parent nor Seller shall, without Xxxxx’s prior written consent in Buyer’s sole discretion, discuss or commit to any divestiture transaction, or discuss or commit to alter any of their businesses or commercial practices in any way, or otherwise discuss, take or commit to take any action that limits Buyer’s freedom of action with respect to, or Buyer’s ability to retain any of the businesses, product or service lines or assets of, the Business or otherwise limits Buyer’s ability to receive the full benefits of this Agreement.
(d) Xxxxx shall lead all communications, strategy and efforts to obtain all necessary clearances, actions or non-actions and consents from Governmental Authorities under Antitrust Laws in connection with the transactions contemplated hereby and any litigation matters relating to the Antitrust Laws, subject to good faith consultations with Seller Parent and the inclusion of Seller Parent at meetings with Governmental Authorities with respect to any discussion related to the transactions contemplated hereby under the Antitrust Laws.
(e) Buyer shall pay 100% of any filing fees payable under the HSR Act.
(f) Each party hereto shall, as promptly as possible, use its commercially reasonable efforts to obtain, or cause to be obtained, all other Consents and orders from all Governmental Authorities and make, or cause to be made, all filings required by Law to be made by it to consummate the transactions contemplated hereby that may be or become necessary for its execution and delivery of this Agreement and the performance of its obligations pursuant to this Agreement and the other Ancillary Agreements. Each party shall cooperate with each other Party and its Affiliates in promptly seeking to obtain all such other Consents and orders that the other is required by Law to make. The parties hereto shall not willfully take any action that will have the effect of delaying, impairing or impeding the receipt of any required Consents and orders that the other is required by Law to make.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Om Group Inc), Stock Purchase Agreement (Rockwood Specialties Group Inc)
Competition Filings. (a) Seller Parent and Buyer shall, to the extent required by any applicable Law and, if so required, in shall (i) no event later than ten Business Days twenty-one (21) days following the Agreement Dateexecution and delivery of this Agreement, file or cause their respective ultimate parent entities to file, be filed with the United States Federal Trade Commission (“FTC”) and the United States Department of Justice (“DOJ”) the notification and report form required for the transactions contemplated by this Agreement and any supplemental information requested in connection therewith pursuant to the HSR Act. Seller Parent and Buyer shall furnish to the other such necessary information and reasonable assistance as the other may request in connection with its preparation of any filing or submission which is necessary under the HSR Act. Seller Parent and Buyer shall keep each other apprised of the status of any communications with, and any inquiries or requests for additional information from, the FTC and the DOJ and shall comply promptly with any such inquiry or request. Seller Parent and Buyer shall use their commercially reasonable efforts to obtain any clearance required under the HSR Act for the transactions contemplated by hereby, (ii) no later than twenty-one (21) days following the execution and delivery of this Agreement, file or provide the first draft of the required Form CO related to notifying the transactions contemplated hereby to the European Commission pursuant to the EMR, (iii) notify the transactions contemplated hereby under Antitrust Laws to the applicable Governmental Authorities in respect of the Non-U.S. Antitrust Approvals set forth on Schedule 4.5(a) of the Disclosure Letter (the “Required Non-U.S. Antitrust Approvals”), (iv) cooperate (and shall cause their respective Affiliates and Representatives to cooperate) in responding to (A) any requests for information from the DOJ or FTC or, if applicable, the information requested by any Request for Additional Information and Documentary Material or application under the HSR Act, (B) any requests for information from the European Commission pursuant to the EMR, or (C) any requests for information from any Governmental Authority in connection with any Non-U.S. Antitrust Approvals under Antitrust Laws, and (v) furnish the other party and the other party’s counsel as promptly as practicable with all such information and reasonable assistance as may be reasonably required in order to effectuate the foregoing actions. Neither Buyer nor Parent shall agree to any extension or delay of any waiting periods or applicable suspensory periods during which the Closing cannot occur under the HSR Act, the EMR or in respect of any Required Non-U.S. Antitrust Approval, or otherwise withdraw its notification and report form under either the HSR Act, the EMR or in respect of any Required Non-U.S. Antitrust Approval, unless both Parent and Buyer have given their prior written consent to such extension, delay or withdrawal.
(b) The parties Subject to the terms and conditions herein provided, (i) Buyer and Parent shall each cooperate reasonably use their reasonable best efforts (A) to terminate any waiting periods under the HSR Act or applicable suspensory periods during which the Closing cannot occur under any Required Non-U.S. Antitrust Approvals, obtain from the European Commission a decision under the EMR declaring the transactions contemplated by this Agreement compatible with one another in connection with resolving the EU Common Market, obtain any inquiry or investigation Required Non-U.S. Antitrust Approvals, and defend any Proceeding brought by the any Governmental Authority relating seeking to restrain or prohibit any of the transactions contemplated by this Agreement under the U.S. Antitrust Laws or the EMR, and (B) to vacate any Order under or related to any Antitrust Laws that prohibits the consummation of the transactions contemplated by this Agreement, in each case, so as to permit the transactions contemplated by this Agreement to be consummated; and (ii) Buyer shall use its reasonable best efforts to offer to take, or cause to be taken, all other actions and do, or cause to be done, all other things necessary, proper or advisable to eliminate any objection that any Governmental Authority has to the transactions contemplated hereby. Without limiting by this Agreement under the U.S. Antitrust Laws or the EMR and to consummate the transactions contemplated by this Agreement; provided, however, that notwithstanding the foregoing, each party shall use their commercially reasonable efforts Buyer may resist or seek to (i) promptly inform reduce the other party scope of any written or oral communication received from the requirement proposed by any Governmental Authority relating even if it delays (or is likely to delay) the Closing, to a date not beyond the Outside Date (as the same may be extended pursuant to Section 7.1(e)). For purposes of this Section 4.5, “reasonable best efforts” by Buyer shall include an obligation (x) to enter into effective as of the Closing Date and conditioned upon the Closing a Divestiture Arrangement with a Qualified Party (a “Divestiture Action”) and (y) to enter into a settlement, undertaking, consent decree, stipulation or other agreement (a “Settlement”) with the FTC, DOJ or European Commission that requires Buyer to take a Divestiture Action, in each case with respect to clause (x) and (y), to the extent necessary to secure Approval of the transactions contemplated hereby by any such Governmental Authority under Antitrust Laws. Notwithstanding any provision of this Agreement, in no event shall Buyer or any of its Subsidiaries or Affiliates be required to propose, offer or agree to (A) sell, transfer, divest, license, hold separate or otherwise dispose of, or allow a third Person to utilize, any portion of the respective businesses, assets or Contracts of Buyer, Parent, the Business, any Transferred Company, any Non-Controlled Company or any of their respective Affiliates, other than a Divestiture Action; or (B) take any other action that may be required or requested by any Governmental Authority in connection with obtaining the Approvals contemplated by this Section 4.5 other than a Divestiture Action.
(c) Parent and if in writing, furnish Buyer shall each cooperate with the other party with a copy as reasonably necessary and advisable to satisfy each party’s obligations set forth in Section 4.5(b). Subject to applicable Legal Requirements, the preservation of such communication); (ii) respond as promptly as practicable the attorney-client privilege and the instructions of any Governmental Authority, Parent and Buyer shall each keep the other informed of the status of matters relating to the obtaining of Approval under any request from the Governmental Authority for information, documents or other materials in connection with Antitrust Laws of the transactions contemplated hereby; (iii) provide to by this Agreement, including promptly furnishing the other partywith copies of notices or other communications between Parent or Buyer, as the case may be, or any of their respective Affiliates (with any competitively sensitive information being provided on an external counsel basis only), and any Governmental Authority under or related to any Antitrust Laws with respect to such transactions. Parent and Buyer shall permit counsel for the other party reasonable opportunity to review in advance, and comment in advance of submission, considering shall consider in good faith the views of the other party, and incorporate the other party’s reasonable comments, all party in connection with any proposed correspondence, filings, and written communications communication to the any Governmental Authority with respect to the transactions contemplated hereby, provided that such material (A) may be redacted as necessary (1) to comply with contractual arrangements, (2) to address legal privilege concerns or (3) to remove references concerning by this Agreement. Buyer and Parent shall obtain the valuation of the parties or (B) designated as “outside counsel only,” which materials and the information contained therein shall be given only to outside counsel and previously-agreed outside economic consultants of the recipient and will not be disclosed by such outside counsel or outside economic consultants to employees, officers, or directors of the recipient without the advance written consent of the party providing such materials; other (which consent shall not be unreasonably withheld, conditioned or delayed), if it selects or retains outside experts or economists to assist the parties with any review or investigation initiated by a Governmental Authority under Antitrust Laws of the transactions contemplated by this Agreement. Parent and (iv) Buyer each agree to not participate in any substantive meetingmeeting or discussion, communicationeither in person or by telephone, or discussion with the any Governmental Authority in respect of investigation or inquiry concerning connection with the transactions contemplated hereby by this Agreement unless it consults with the other party in advance and, except as to the extent not prohibited by applicable Law or the FTC or DOJsuch Governmental Authority, gives the other party the opportunity to attend and participate therein. Neither Buyer nor Seller Parent shall stay, toll, or extend any applicable waiting period under the HSR Act without the advance written agreement of other Party, and Buyer shall not pull or refile any filing made under the HSR Act without advance notice to Seller Parent.
(c) Notwithstanding anything to the contrary contained in this Agreement, nothing in this Agreement will require or obligate Buyer or any of its Affiliates to (and in no event shall any representation, warranty or covenant of Buyer contained in this Agreement be breached or deemed breached as a result of the failure of Buyer to take any of the following actions): (i) agree to or otherwise become subject to any limitations on (A) the right of Buyer effectively to control or operate its business (including the Business after the Closing) or assets (including the Purchased Assets) or (B) the right of Buyer to exercise its full rights of ownership of its business (including the Business after the Closing) or assets (including the Purchased Assets); (ii) agree or be required to sell or otherwise dispose of, hold separate (through the establishment of a trust or otherwise), or divest itself of all or any portion of the business, assets or operations of Buyer or any of its Affiliates or the Business after the Closing or the Purchased Assets; (iii) terminate, modify, or assign existing relationships, Contracts, or obligations of Buyer or any of its Affiliates or those relating to the Business after the Closing or the Purchased Assets; (iv) change or modify any course of conduct regarding future operations of Buyer or any its Affiliates or the Business after the Closing or the Purchased Assets; (v) litigate or contest any administrative or judicial action or proceeding or any Order; or (vi) otherwise take any steps to avoid or eliminate any impediment that may be asserted under any Antitrust Law. In regard to any Governmental Authority, neither Seller Parent nor Seller shall, without Xxxxx’s prior written consent in Buyer’s sole discretion, discuss or commit to any divestiture transaction, or discuss or commit to alter any of their businesses or commercial practices in any way, or otherwise discuss, take or commit to take any action that limits Buyer’s freedom of action with respect to, or Buyer’s ability to retain any of the businesses, product or service lines or assets of, the Business or otherwise limits Buyer’s ability to receive the full benefits of this Agreementparticipate.
(d) Xxxxx shall lead all communicationsEach of the parties will consult and cooperate with the other and consider in good faith the views of the other party in connection with any filing, strategy and efforts analysis, presentation or argument to obtain all necessary clearancesbe made or submitted to the FTC, actions DOJ, the European Commission or non-actions and consents from other Governmental Authorities under Authority relating to Antitrust Laws or Antitrust Approvals in connection with the transactions contemplated hereby and any litigation matters relating by this Agreement. Notwithstanding anything to the Antitrust Lawscontrary in this Agreement, subject to it is understood and agreed that Buyer shall, in good faith consultations and in consultation with Seller Parent (as provided in Sections 4.5(c) and (d)), be entitled to direct and make all final decisions in determining, managing and implementing the strategy and timing for taking any actions and the inclusion of Seller Parent at meetings negotiations and communications with any Governmental Authorities Authority with respect to any discussion related to the transactions contemplated hereby under the Antitrust Lawsactions set forth in Section 4.5.
(e) Buyer shall pay 100% of any filing fees payable under the HSR Act.
(f) Each party hereto shall, as promptly as possible, use its commercially reasonable efforts to obtain, or cause to be obtained, all other Consents and orders from all Governmental Authorities and make, or cause to be made, all filings required by Law to be made by it to consummate the transactions contemplated hereby that may be or become necessary for its execution and delivery of this Agreement and the performance of its obligations pursuant to this Agreement and the other Ancillary Agreements. Each party shall cooperate with each other Party and its Affiliates in promptly seeking to obtain all such other Consents and orders that the other is required by Law to make. The parties hereto shall not willfully take any action that will have the effect of delaying, impairing or impeding the receipt of any required Consents and orders that the other is required by Law to make.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Rockwood Holdings, Inc.), Stock Purchase Agreement (Huntsman International LLC)
Competition Filings. From the date of this Agreement through the Effective Time:
(a) Seller each of Parent and Buyer shallthe Company agrees to make an appropriate filing of a Notification and Report Form pursuant to the HSR Act, and request early termination of the waiting period under the HSR Act, with respect to the transactions contemplated hereby as promptly as practicable and in any event within 15 Business Days after the date hereof, to the extent make such other filings with any similar antitrust or competition law authorities of any other jurisdiction, foreign or multinational (collectively, “Foreign Antitrust Authorities”), as may be required by under any applicable similar foreign law (the “Foreign Antitrust Laws”) as promptly as practicable after the date hereof, to supply as promptly as practicable any additional information and documentary material that may be requested pursuant to the HSR Act and any Foreign Antitrust Law andand to take all other actions necessary to cause the expiration or termination of the applicable waiting periods under the HSR Act and any Foreign Antitrust Law, if so requiredor any consent or approval required under any Foreign Antitrust Law, in no event later than ten Business Days following each case as soon as practicable;
(b) in connection with the Agreement Dateefforts referenced in Section 5.5(a), file each of Parent and the Company shall (i) cooperate in all material respects with the other in connection with any filing or cause their respective ultimate parent entities to filesubmission and in connection with any investigation or other inquiry, with including any proceeding initiated by a private party, (ii) keep the other party informed of any material communication received by such party from, or given by such party to, the Federal Trade Commission (the “FTC”) and ), the Antitrust Division of the Department of Justice (the “DOJ”) the notification or any Foreign Antitrust Authority and report form required for of any material communication received or given in connection with any proceeding by a private party, in each case regarding any of the transactions contemplated by this Agreement hereby and any supplemental information requested in connection therewith pursuant to the HSR Act. Seller Parent and Buyer shall furnish to (iii) permit the other party, through its legal advisors, to (A) review any material communication given by it to, and consult with each other in advance of any meeting or conference with, the FTC, the DOJ or any such necessary information and reasonable assistance as the other may request Governmental Entity or (B) in connection with its preparation any proceeding by a private party, consult with each other in advance of any filing meeting or submission which is necessary under conference with such private party; and
(c) in connection with the HSR Act. Seller efforts referenced in Section 5.5(a), each of Parent and Buyer the Company shall keep each other apprised of the status of any communications with, and any inquiries or requests for additional information from, the FTC and the DOJ and shall comply promptly with any such inquiry or request. Seller Parent and Buyer shall use their exercise its commercially reasonable efforts to obtain prevent the entry in any clearance required under claim, action, suit, audit, assessment, arbitration, inquiry, proceeding or investigation, by or before any Governmental Entity by the HSR Act for Antitrust Division of the DOJ, the FTC or any United States or Foreign Antitrust Authorities, or any other Person of any order, writ, rule, judgment, injunction, decree, stipulation, determination or award entered by or with any Governmental Entity which would prohibit, make unlawful or delay the consummation of the transactions contemplated by this Agreement.
(b) The parties shall each cooperate reasonably with one another in connection with resolving any inquiry or investigation by the Governmental Authority relating to the transactions contemplated hereby. Without limiting the foregoing, each party shall use their commercially reasonable efforts to (i) promptly inform the other party of any written or oral communication received from the Governmental Authority relating to the transactions contemplated hereby (and if in writing, furnish the other party with a copy of such communication); (ii) respond as promptly as practicable to any request from the Governmental Authority for information, documents or other materials in connection with the transactions contemplated hereby; (iii) provide to the other party, and permit the other party to review and comment in advance of submission, considering in good faith the views of the other party, and incorporate the other party’s reasonable comments, all proposed correspondence, filings, and written communications to the Governmental Authority with respect to the transactions contemplated hereby, provided that such material (A) may be redacted as necessary (1) to comply with contractual arrangements, (2) to address legal privilege concerns or (3) to remove references concerning the valuation of the parties or (B) designated as “outside counsel only,” which materials and the information contained therein shall be given only to outside counsel and previously-agreed outside economic consultants of the recipient and will not be disclosed by such outside counsel or outside economic consultants to employees, officers, or directors of the recipient without the advance written consent of the party providing such materials; and (iv) not participate in any substantive meeting, communication, or discussion with the Governmental Authority in respect of investigation or inquiry concerning the transactions contemplated hereby unless it consults with the other party in advance and, except as prohibited by applicable Law or the FTC or DOJ, gives the other party the opportunity to attend and participate therein. Neither Buyer nor Seller Parent shall stay, toll, or extend any applicable waiting period under the HSR Act without the advance written agreement of other Party, and Buyer shall not pull or refile any filing made under the HSR Act without advance notice to Seller Parent.
(c) Notwithstanding anything to the contrary contained in this Agreement, nothing in this Agreement will require or obligate Buyer or any of its Affiliates to (and in no event shall any representation, warranty or covenant of Buyer contained in this Agreement be breached or deemed breached as a result of the failure of Buyer to take any of the following actions): (i) agree to or otherwise become subject to any limitations on (A) the right of Buyer effectively to control or operate its business (including the Business after the Closing) or assets (including the Purchased Assets) or (B) the right of Buyer to exercise its full rights of ownership of its business (including the Business after the Closing) or assets (including the Purchased Assets); (ii) agree or be required to sell or otherwise dispose of, hold separate (through the establishment of a trust or otherwise), or divest itself of all or any portion of the business, assets or operations of Buyer or any of its Affiliates or the Business after the Closing or the Purchased Assets; (iii) terminate, modify, or assign existing relationships, Contracts, or obligations of Buyer or any of its Affiliates or those relating to the Business after the Closing or the Purchased Assets; (iv) change or modify any course of conduct regarding future operations of Buyer or any its Affiliates or the Business after the Closing or the Purchased Assets; (v) litigate or contest any administrative or judicial action or proceeding or any Order; or (vi) otherwise take any steps to avoid or eliminate any impediment that may be asserted under any Antitrust Law. In regard to any Governmental Authority, neither Seller Parent nor Seller shall, without Xxxxx’s prior written consent in Buyer’s sole discretion, discuss or commit to any divestiture transaction, or discuss or commit to alter any of their businesses or commercial practices in any way, or otherwise discuss, take or commit to take any action that limits Buyer’s freedom of action with respect to, or Buyer’s ability to retain any of the businesses, product or service lines or assets of, the Business or otherwise limits Buyer’s ability to receive the full benefits of this Agreement.
(d) Xxxxx shall lead all communications, strategy and efforts to obtain all necessary clearances, actions or non-actions and consents from Governmental Authorities under Antitrust Laws in connection with the transactions contemplated hereby and any litigation matters relating to the Antitrust Laws, subject to good faith consultations with Seller Parent and the inclusion of Seller Parent at meetings with Governmental Authorities with respect to any discussion related to the transactions contemplated hereby under the Antitrust Laws.
(e) Buyer shall pay 100% of any filing fees payable under the HSR Act.
(f) Each party hereto shall, as promptly as possible, use its commercially reasonable efforts to obtain, or cause to be obtained, all other Consents and orders from all Governmental Authorities and make, or cause to be made, all filings required by Law to be made by it to consummate the transactions contemplated hereby that may be or become necessary for its execution and delivery of this Agreement and the performance of its obligations pursuant to this Agreement and the other Ancillary Agreements. Each party shall cooperate with each other Party and its Affiliates in promptly seeking to obtain all such other Consents and orders that the other is required by Law to make. The parties hereto shall not willfully take any action that will have the effect of delaying, impairing or impeding the receipt of any required Consents and orders that the other is required by Law to make.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Carpenter Technology Corp), Merger Agreement (Carpenter Technology Corp)
Competition Filings. (a) Seller Parent Subject to the terms and Buyer conditions of this Agreement, each Party will use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under applicable Laws to consummate the transactions contemplated herein as soon as practicable after the date hereof, including (i) preparing and filing or pre-filing where required as the case may be, in consultation with the other Party and as promptly as practicable and advisable after the date hereof, all documents necessary to obtain as promptly as practicable all waiting period expirations or terminations, consents, clearances, waivers, approvals and authorizations necessary or advisable to be obtained from any Governmental Authority in order to consummate the transactions contemplated herein (“Competition Filings”) and (ii) taking all steps as may be necessary to obtain all such waiting period expirations or terminations, consents, clearances, waivers, authorizations and approvals. In furtherance of the foregoing, each Party agrees to cause its ultimate parent entity make an appropriate filing of a Notification and Report Form pursuant to the HSR Act with respect to the transactions contemplated herein (“HSR Filing”) as promptly as practicable, and in any event within ten (10) Business Days after the date hereof (unless a later date is mutually agreed between the Parties), and to supply as promptly as practicable and advisable any additional information and documentary material that may be requested in connection with the HSR Filing and to take all other actions necessary to cause the expiration or termination of the applicable waiting periods under the HSR Act with respect to the contemplated transaction as soon as reasonably practicable. Also in furtherance of the foregoing, each Party agrees to make, as soon as reasonably practicable, but no later than thirty (30) Business Days after the date hereof (unless a later date is mutually agreed between the Parties or unless an earlier date is required by applicable Laws) such other appropriate Competition Filings with respect to jurisdictions outside the United States as are reasonably necessary under any applicable Laws regarding competitive or antitrust matters or relating to the control or approval of mergers or other business combinations as may be in effect in any applicable jurisdiction (together with the HSR Act, “Competition Laws”) to obtain all waiting period expirations or terminations, consents, clearances, waivers, authorizations and approvals required for the consummation of the transactions contemplated herein, and to supply as promptly as practicable and advisable any additional information and documentary material that may be requested in connection with any such Competition Filing, and to take all other actions necessary to cause any approval or clearance to be obtained in connection with any such Competition Filing as soon as practicable.
(b) Each Party shall, in connection with the efforts referenced in Section 6.7(a), (i) cooperate in all respects and consult with each other Party in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by a private party, including by allowing counsel for the other Parties to have a reasonable opportunity to review in advance and comment on drafts of filings and submissions, (ii) promptly inform counsel for the extent required other Parties of any communication received by any applicable Law andsuch Party from, if so requiredor given by such Party to, in no event later than ten Business Days following the Agreement DateAntitrust Division of the Department of Justice (the “DOJ”), file or cause their respective ultimate parent entities to file, with the Federal Trade Commission (the “FTC”) and the Department of Justice (“DOJ”) the notification and report form required or any other Governmental Authority, by promptly providing copies to counsel for the transactions contemplated by this Agreement other Parties of any such written communications, and of any supplemental information requested in connection therewith pursuant to the HSR Act. Seller Parent and Buyer shall furnish to the other such necessary information and reasonable assistance as the other may request material communication received or given in connection with its preparation any proceeding by a private party; provided, however, that materials may be redacted as necessary to comply with contractual arrangements and as necessary to address reasonable privilege or confidentiality concerns, (iii) permit counsel for the other Parties to review in advance any communication that it gives to, and consult with each other in advance of any filing meeting, substantive telephone call or submission which is necessary under the HSR Act. Seller Parent and Buyer shall keep each other apprised of the status of any communications conference with, and any inquiries or requests for additional information fromthe DOJ, the FTC and the DOJ and shall comply promptly with or any such inquiry or request. Seller Parent and Buyer shall use their commercially reasonable efforts to obtain any clearance required under the HSR Act for the transactions contemplated by this Agreement.
(b) The parties shall each cooperate reasonably with one another other Governmental Authority, or, in connection with resolving any inquiry proceeding by a private party, with any other person (provided, however, that materials may be redacted as necessary to comply with contractual arrangements and as necessary to address reasonable privilege or investigation confidentiality concerns) and (iv) to the extent permitted by the DOJ, the FTC or any other applicable Governmental Authority relating or other person, give counsel for the other Parties the opportunity to attend and participate in any in-person meetings with the DOJ, the FTC or any other Authority or other person. In furtherance of the covenants of the Parties contained in Section 6.7(a) and this Section 6.7(b), each Party shall use its reasonable best efforts to resolve objections, if any, as may be asserted with respect to the transactions contemplated hereby. Without limiting herein under any Competition Law including agreeing to any terms, conditions or modifications (including the foregoingBuyer, each party shall use the Share Sellers or any of their commercially reasonable efforts respective Affiliates having to (i) promptly inform the other party cease operating, licensing, selling or otherwise disposing of any written assets or oral communication received from businesses (including the Governmental Authority relating requirement that any such assets or businesses be held separate)) with respect to obtaining the transactions contemplated hereby (and if in writingexpiration or termination of any waiting period or any consents, furnish the other party with a copy of such communication); (ii) respond as promptly as practicable to any request from the Governmental Authority for informationclearances, documents waivers, approvals or other materials authorizations in connection with the consummation of the transactions contemplated herebyherein; (iiiprovided, however, that the Share Sellers shall not be required to take such actions under this Section 6.7(b) provide that would result in, or would be reasonably likely to result in, either individually or in the aggregate, a material adverse effect on the Share Sellers and their other businesses. Nothing in this Section 6.7(b) shall require a Party or its Affiliates to take or agree to take any action with respect to its business or operations unless the effectiveness of such agreement or action is conditioned upon the Closing. The Buyer shall, on behalf of the Parties, control and lead all communications and strategy relating to the other partyCompetition Laws in consultation with the Share Sellers; provided, that, the Share Sellers are not constrained from complying with applicable Law, and permit provided, further, that counsel for the other party to review Parties shall consult and comment in advance of submissioncooperate with one another, considering and consider in good faith the views of one another regarding the other partyform and content of any analyses, appearances, presentations, memoranda, briefs, arguments, opinions and incorporate proposals made or submitted by or on behalf of any Party in connection with proceedings under or relating to any Competition Law or Competition Filing prior to their submission.
(c) Each Party shall use its reasonable best efforts to obtain the other party’s reasonable commentsexpiration or termination of all waiting periods and all consents, waivers, authorizations and approvals of all proposed correspondenceGovernmental Authorities, filingsnecessary, proper or advisable for the consummation of the transactions contemplated herein; provided, that, without the prior written consent of the Buyer, the Share Sellers and written communications their Affiliates shall not incur any significant expense or liability, enter into any significant new commitment or agreement or agree to the Governmental Authority any significant modification to any contractual arrangement, in each case with respect to the transactions contemplated herebyBusiness, provided to obtain such consents or approvals that such material (A) may be redacted as necessary (1) to comply with contractual arrangements, (2) to address legal privilege concerns or (3) to remove references concerning the valuation of the parties or (B) designated as “outside counsel only,” which materials and the information contained therein shall be given only to outside counsel and previously-agreed outside economic consultants of the recipient and will not be disclosed by such outside counsel or outside economic consultants to employees, officers, or directors of the recipient without the advance written consent of the party providing such materials; and (iv) not participate in any substantive meeting, communication, or discussion with the Governmental Authority in respect of investigation or inquiry concerning the transactions contemplated hereby unless it consults with the other party in advance and, except as prohibited by applicable Law or the FTC or DOJ, gives the other party the opportunity to attend and participate therein. Neither Buyer nor Seller Parent shall stay, toll, or extend any applicable waiting period under the HSR Act without the advance written agreement of other Party, and Buyer shall not pull or refile any filing made under the HSR Act without advance notice to Seller Parentwould have a Material Adverse Effect.
(cd) Notwithstanding anything to the contrary contained in this Section 6.7 or elsewhere in this Agreement, nothing in this Agreement will require or obligate the Buyer or any of its respective Affiliates shall not be required to agree to the imposition of any limitation on the ability of Buyer or its Affiliates to (and conduct their respective businesses or the business of the Share Sellers that would result in, or would be reasonably likely to result in, either individually or in no event shall any representationthe aggregate, warranty a material adverse effect on the Buyer, taken as a whole. Nothing in this Section 6.7 or covenant of Buyer contained elsewhere in this Agreement be breached or deemed breached as a result of the failure of Buyer to take any of the following actions): (i) agree to or otherwise become subject to any limitations on (A) the right of Buyer effectively to control or operate its business (including the Business after the Closing) or assets (including the Purchased Assets) or (B) the right of Buyer to exercise its full rights of ownership of its business (including the Business after the Closing) or assets (including the Purchased Assets); (ii) agree or be required to sell or otherwise dispose of, hold separate (through the establishment of a trust or otherwise), or divest itself of all or any portion of the business, assets or operations of shall require Buyer or any of its Affiliates or the Business after the Closing or the Purchased Assets; (iii) terminate, modify, or assign existing relationships, Contracts, or obligations of Buyer other Party or any of its their respective Affiliates or those relating to the Business after the Closing or the Purchased Assets; (iv) change or modify litigate with any course of conduct regarding future operations of Buyer or any its Affiliates or the Business after the Closing or the Purchased Assets; (v) litigate or contest any administrative or judicial action or proceeding or any Order; or (vi) otherwise take any steps to avoid or eliminate any impediment that may be asserted under any Antitrust Law. In regard to third party, including without limitation, any Governmental Authority, neither Seller Parent nor Seller shall, without Xxxxx’s prior written consent in Buyer’s sole discretion, discuss Authority or commit to any divestiture transaction, or discuss or commit to alter any of their businesses or commercial practices in any way, or otherwise discuss, take or commit to take any action that limits Buyer’s freedom of action with respect to, or Buyer’s ability to retain any of the businesses, product or service lines or assets of, the Business or otherwise limits Buyer’s ability to receive the full benefits of this Agreement.
(d) Xxxxx shall lead all communications, strategy and efforts to obtain all necessary clearances, actions or non-actions and consents from Governmental Authorities under Antitrust Laws in connection with the transactions contemplated hereby and any litigation matters relating to the Antitrust Laws, subject to good faith consultations with Seller Parent and the inclusion of Seller Parent at meetings with Governmental Authorities with respect to any discussion related to the transactions contemplated hereby under the Antitrust Lawsprivate party.
(e) The Buyer shall pay 100% not (and shall not permit any of its Affiliates to) enter into any transaction, or any agreement to effect any transaction involving any merger or acquisition of shares or assets of any filing fees payable entity engaged in a business which is directly competitive with the Business that might reasonably be expected to make it more difficult, or to increase the time required, to (i) obtain the expiration or termination of the waiting period under the HSR Act.
(f) Each party hereto shall, as promptly as possible, use its commercially reasonable efforts to obtain, or cause in connection with any other Competition Filing, applicable to be obtainedthe transactions contemplated by this Agreement, all other Consents and orders from all Governmental Authorities and make(ii) avoid the entry of, the commencement of litigation seeking the entry of, or cause to be madeeffect the dissolution of, all filings required by Law to be made by it to consummate any injunction, temporary restraining order or other order that would materially delay or prevent the consummation of the transactions contemplated hereby that may be or become (iii) obtain all authorizations, consents, waivers, and approvals of Governmental Authorities necessary for its execution and delivery the consummation of this Agreement and the performance of its obligations pursuant to this Agreement and the other Ancillary Agreements. Each party shall cooperate with each other Party and its Affiliates in promptly seeking to obtain all such other Consents and orders that the other is required by Law to make. The parties hereto shall not willfully take any action that will have the effect of delaying, impairing or impeding the receipt of any required Consents and orders that the other is required by Law to maketransactions contemplated hereby.
Appears in 1 contract
Competition Filings. (a) Seller Parent and Buyer shall, to Each of the extent required by any applicable Law and, if so required, in no event later than ten Business Days following the Agreement Date, file or cause their respective ultimate parent entities to file, with the Federal Trade Commission (“FTC”) Purchaser and the Department of Justice (“DOJ”) the notification and report form required for the transactions contemplated by this Agreement and any supplemental information requested in connection therewith pursuant Companies agrees to the HSR Act. Seller Parent and Buyer shall furnish to the other such necessary information and reasonable assistance as the other may request in connection with its preparation of any filing or submission which is necessary under the HSR Act. Seller Parent and Buyer shall keep each other apprised of the status of any communications with, and any inquiries or requests for additional information from, the FTC and the DOJ and shall comply promptly with any such inquiry or request. Seller Parent and Buyer shall use their commercially reasonable efforts to obtain any clearance required under the HSR Act for the transactions contemplated by this Agreement.
(b) The parties shall each cooperate reasonably with one another in connection with resolving any inquiry or investigation by the Governmental Authority relating to the transactions contemplated hereby. Without limiting the foregoing, each party shall use their commercially reasonable efforts to (i) promptly inform the other party of any written or oral communication received from the Governmental Authority relating to the transactions contemplated hereby (and if in writing, furnish the other party with a copy of such communication); (ii) respond as promptly as practicable to any request from the Governmental Authority for information, documents or other materials in connection with the transactions contemplated hereby; (iii) provide to the other party, and permit the other party to review and comment in advance of submission, considering in good faith the views of the other party, and incorporate the other party’s reasonable comments, all proposed correspondence, filings, and written communications to the Governmental Authority with respect to the transactions contemplated hereby, provided that such material (A) may be redacted as necessary (1) to comply with contractual arrangements, (2) to address legal privilege concerns or (3) to remove references concerning the valuation of the parties or (B) designated as “outside counsel only,” which materials and the information contained therein shall be given only to outside counsel and previously-agreed outside economic consultants of the recipient and will not be disclosed by such outside counsel or outside economic consultants to employees, officers, or directors of the recipient without the advance written consent of the party providing such materials; and (iv) not participate in any substantive meeting, communication, or discussion with the Governmental Authority in respect of investigation or inquiry concerning the transactions contemplated hereby unless it consults with the other party in advance and, except as prohibited by applicable Law or the FTC or DOJ, gives the other party the opportunity to attend and participate therein. Neither Buyer nor Seller Parent shall stay, toll, or extend any applicable waiting period under the HSR Act without the advance written agreement of other Party, and Buyer shall not pull or refile any filing made under the HSR Act without advance notice to Seller Parent.
(c) Notwithstanding anything to the contrary contained in this Agreement, nothing in this Agreement will require or obligate Buyer or any of its Affiliates to (and in no event shall any representation, warranty or covenant of Buyer contained in this Agreement be breached or deemed breached as a result of the failure of Buyer to take any of the following actions): (i) agree to or otherwise become subject to any limitations on (A) the right of Buyer effectively to control or operate its business (including the Business after the Closing) or assets (including the Purchased Assets) or (B) the right of Buyer to exercise its full rights of ownership of its business (including the Business after the Closing) or assets (including the Purchased Assets); (ii) agree or be required to sell or otherwise dispose of, hold separate (through the establishment of a trust or otherwise), or divest itself of all or any portion of the business, assets or operations of Buyer or any of its Affiliates or the Business after the Closing or the Purchased Assets; (iii) terminate, modify, or assign existing relationships, Contracts, or obligations of Buyer or any of its Affiliates or those relating to the Business after the Closing or the Purchased Assets; (iv) change or modify any course of conduct regarding future operations of Buyer or any its Affiliates or the Business after the Closing or the Purchased Assets; (v) litigate or contest any administrative or judicial action or proceeding or any Order; or (vi) otherwise take any steps to avoid or eliminate any impediment that may be asserted under any Antitrust Law. In regard to any Governmental Authority, neither Seller Parent nor Seller shall, without Xxxxx’s prior written consent in Buyer’s sole discretion, discuss or commit to any divestiture transaction, or discuss or commit to alter any of their businesses or commercial practices in any way, or otherwise discuss, take or commit to take any action that limits Buyer’s freedom of action with respect to, or Buyer’s ability to retain any of the businesses, product or service lines or assets of, the Business or otherwise limits Buyer’s ability to receive the full benefits of this Agreement.
(d) Xxxxx shall lead all communications, strategy and efforts to obtain all necessary clearances, actions or non-actions and consents from Governmental Authorities under Antitrust Laws in connection with the transactions contemplated hereby and any litigation matters relating to the Antitrust Laws, subject to good faith consultations with Seller Parent and the inclusion of Seller Parent at meetings with Governmental Authorities with respect to any discussion related to the transactions contemplated hereby under the Antitrust Laws.
(e) Buyer shall pay 100% of any filing fees payable under the HSR Act.
(f) Each party hereto shall, as promptly as possible, use its commercially reasonable efforts to obtain, or cause to be obtained, all other Consents and orders from all Governmental Authorities and make, or cause to be made, their respective HSR Filings as promptly as practicable and in any event within ten (10) Business Days of the date hereof. Each of the Purchaser and the Companies agree to supply, or cause to be supplied, as promptly as practicable any additional information and documentary material that may be requested pursuant to the HSR Act and to take all actions necessary to cause the expiration or termination of the applicable waiting periods under the HSR Act as soon as practicable. The Purchaser and, to the extent required, the Companies, also agree to make, or cause to be made, the submission of an initial draft Form CO to the European Commission pursuant to the EUMR within twenty (20) Business Days of the date hereof and any other filings required by Law under other Competition Laws, including the Additional Filings, as promptly as practicable and in any event within thirty (30) Business Days of the date hereof. The Seller shall, and shall procure that the Companies and their Affiliates shall, cooperate with the Purchaser in furnishing such information as may be required to make the HSR Filings, the Additional Filings and any other filings and any additional information or documentary material that may be made by it required under the HSR Act or other Competition Laws in a timely and efficient manner (provided that the Companies may provide confidential information directly to any Governmental Authority with an advance copy to the Purchaser’s counsel on an outside counsel only basis consistent with Section 7.2(a)). The Purchaser and the Companies shall not (A) extend any waiting period or agree to re-file under the HSR Act (except with the prior written consent of the other party hereto, which consent shall not be unreasonably withheld, conditioned or delayed) or (B) enter into any agreement with any Governmental Authority agreeing not to consummate the transactions contemplated hereby Transactions.
(b) Each of the Purchaser and the Companies shall use their reasonable best efforts to take, or cause to be taken, and to do, or cause to be done, any and all steps necessary, proper, or advisable to avoid or eliminate each and every impediment under the HSR Act and any other Competition Laws that may be asserted by any Governmental Authority or become any third Person so as to enable the parties hereto to consummate the Transactions as promptly as practicable, and in any event prior to the Outside Date; provided, however, that in no event shall the Purchaser be required to sell, divest or dispose of assets, properties or businesses (including assets, properties or businesses to be acquired by it under this Agreement) that generated total worldwide revenues in excess of $35,000,000 in calendar year 2013. In addition, until the Outside Date, the Purchaser shall use its reasonable best efforts to defend through any Action on the merits, including through appeal, any claim asserted in court by any party in order to avoid entry of, or to have vacated or terminated, any Order (whether temporary, preliminary or permanent) that would prevent the Closing prior to the Outside Date.
(c) The Purchaser shall not enter into any transaction, or any agreement to effect any transaction (including any merger or acquisition), that might reasonably be expected to make it materially more difficult, or to materially increase the time required, to (i) obtain the expiration and termination of the waiting period under the HSR Act or other Competition Laws applicable to the Transactions, (ii) avoid the entry of, the commencement of any Action seeking the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other Order that would materially delay or prevent the completion of the Transactions, or (iii) obtain all authorizations, consent orders and approvals of Governmental Authorities necessary for its execution and delivery the consummation of this Agreement the Transactions.
(d) The Purchaser and the performance Companies shall pay, or cause to be paid, in equal proportions, all filing or other fees incurred in connection with the HSR Filing, the Additional Filings and any other filings under other Competition Laws required for the consummation of its obligations pursuant to this Agreement and the other Ancillary Agreements. Each party shall cooperate with each other Party and its Affiliates in promptly seeking to obtain all such other Consents and orders that the other is required by Law to make. The parties hereto shall not willfully take any action that will have the effect of delaying, impairing or impeding the receipt of any required Consents and orders that the other is required by Law to makeTransactions.
Appears in 1 contract
Samples: Share Purchase Agreement (Alcoa Inc)
Competition Filings. (a) In furtherance of the respective obligations of Buyer and Seller Parent contained in Section 4.4, Seller and Buyer shallshall (i) as promptly as practicable, to the extent required by any applicable Law and, if so required, but in no event later than ten Business Days Days, following the Agreement Dateexecution and delivery of this Agreement, file or cause their respective ultimate parent entities to file, be filed with the Federal Trade Commission (“FTC”) and the United States Department of Justice (“DOJ”) the initial notification and report form under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the “HSR Act”) required for the transactions contemplated hereby, (ii) if required by any Applicable Non-U.S. Antitrust Law, as promptly as practicable following the date of this Agreement, notify the transactions contemplated hereby to any other Governmental Authority with competent jurisdiction to review the transactions contemplated hereby pursuant to such Applicable Non-U.S. Antitrust Laws, (iii) cooperate (and shall cause their respective Affiliates to cooperate) in promptly responding to and promptly providing the information requested by (A) any request for additional information and documentary material under the HSR Act, or (B) any requests for information from any Governmental Authority pursuant to any Applicable Non-U.S. Antitrust Law, (iv) seek to terminate any waiting periods under the HSR Act or applicable suspensory periods during which the Closing cannot occur under any other applicable Antitrust Laws as soon as practicable, (v) use reasonable best efforts to obtain any required consents or approvals pursuant to any Antitrust Law, and (vi) furnish the other party and the other party’s counsel as promptly as practicable with all such information and reasonable assistance as may be reasonably required in order to effectuate the foregoing actions. Neither party to this Agreement shall agree to any voluntary extension or delay of any waiting periods or applicable suspensory periods during which the Closing cannot occur under the HSR Act or under any Applicable Non-U.S. Antitrust Law, or otherwise withdraw its notification and report form under either the HSR Act or any Applicable Non-U.S. Antitrust Law, unless both Seller and Buyer have given their prior written consent to such extension, delay or withdrawal.
(b) Buyer and Seller shall use their reasonable best efforts to defend any challenge, administrative process or litigation brought by any Governmental Authority or third person seeking to restrain or prohibit any of the transactions contemplated by this Agreement and under any supplemental information requested in connection therewith pursuant to the HSR Act. Seller Parent and Buyer shall furnish to the other such necessary information and reasonable assistance as the other may request in connection with its preparation of any filing or submission which is necessary under the HSR Act. Seller Parent and Buyer shall keep each other apprised of the status of any communications withAntitrust Laws, and to vacate any inquiries relevant restraining order, injunction or requests for additional information from, adverse decision that prohibits the FTC and the DOJ and shall comply promptly with any such inquiry or request. Seller Parent and Buyer shall use their commercially reasonable efforts to obtain any clearance required under the HSR Act for consummation of the transactions contemplated by this Agreement, in each case, so as to permit the transactions contemplated by this Agreement to be consummated as expeditiously as possible.
(bc) The parties shall each cooperate reasonably with one another in connection with resolving any inquiry or investigation Subject to the terms and conditions herein provided, and without limitation by the foregoing, Buyer shall use its reasonable best efforts to offer to take, or cause to be taken, all other actions and do, or cause to be done, all other things necessary, proper or advisable to eliminate any objection that any Governmental Authority relating has to the transactions contemplated herebyby this Agreement under applicable Antitrust Laws and to consummate the transactions contemplated by this Agreement, in each case, as expeditiously as possible. Without limiting the foregoing, each party Buyer’s reasonable best efforts shall use their commercially reasonable efforts to include (i) promptly inform proposing, negotiating, committing to and effecting, by consent decree, hold separate order or otherwise, the sale, divestiture or disposition of the Assets or businesses of Buyer or its Affiliates or of the Assets or businesses to be acquired by Buyer under this Agreement, or (ii) otherwise taking or committing to take actions that after the Closing Date would limit the freedom of Buyer or its Affiliates’ (including the Transferred Companies’) freedom of action with respect to, or its ability to retain, one or more of its or such Affiliates’ businesses, product lines or Assets, including the businesses, product lines or Assets of the Transferred Companies, in each case as may be required in order to avoid the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other party order in any suit or proceeding which would otherwise have the effect of any written preventing or oral communication received from materially delaying the Governmental Authority relating consummation of the transactions contemplated by this Agreement; provided, however, that, notwithstanding anything to the contrary contained in this Agreement, no such action shall be (A) required unless contingent upon the occurrence of the Closing, or (B) required to be agreed to by Buyer or its Affiliates if such action would have a material adverse effect on the combined business, financial condition, or results of operation of the Transferred Companies and Parent Guarantor and its Subsidiaries (taken as a whole, after giving effect to the transactions contemplated hereby by this Agreement).
(d) Subject to applicable Legal Requirements, the preservation of the attorney-client privilege and if in writingthe instructions of any Governmental Authority, furnish Seller and Buyer shall each keep the other informed of the status of matters relating to the completion of the transactions contemplated by this Agreement, including promptly furnishing the other with copies of notices or other communications between Seller or Buyer, as the case may be, or any of their respective Affiliates (with any competitively sensitive information being provided on an external counsel basis only), and any third Person and/or any Governmental Authority with respect to such transactions. Seller and Buyer shall permit counsel for the other party with a copy of such communication); (ii) respond as promptly as practicable reasonable opportunity to any request from the Governmental Authority for information, documents or other materials review in connection with the transactions contemplated hereby; (iii) provide to the other partyadvance, and permit the other party to review and comment in advance of submission, considering consider in good faith the views of the other partyparty in connection with, and incorporate the other party’s reasonable comments, all any proposed correspondence, filings, and written communications communication to the any Governmental Authority with respect to the transactions contemplated hereby, provided that such material (A) may be redacted as necessary (1) transactions. Seller and Buyer each agree not to comply with contractual arrangements, (2) to address legal privilege concerns or (3) to remove references concerning the valuation of the parties or (B) designated as “outside counsel only,” which materials and the information contained therein shall be given only to outside counsel and previously-agreed outside economic consultants of the recipient and will not be disclosed by such outside counsel or outside economic consultants to employees, officers, or directors of the recipient without the advance written consent of the party providing such materials; and (iv) not participate in any substantive meetingmeeting or discussion, communicationeither in person or by telephone, or discussion with the any Governmental Authority in respect of investigation or inquiry concerning connection with the transactions contemplated hereby by this Agreement unless it consults with the other party in advance and, except as to the extent not prohibited by applicable Law or the FTC or DOJsuch Governmental Authority, gives the other party the opportunity to attend and participate therein. Neither Buyer nor Seller Parent shall stay, toll, or extend any applicable waiting period under the HSR Act without the advance written agreement of other Party, and Buyer shall not pull or refile any filing made under the HSR Act without advance notice to Seller Parent.
(c) Notwithstanding anything to the contrary contained in this Agreement, nothing in this Agreement will require or obligate Buyer or any of its Affiliates to (and in no event shall any representation, warranty or covenant of Buyer contained in this Agreement be breached or deemed breached as a result of the failure of Buyer to take any of the following actions): (i) agree to or otherwise become subject to any limitations on (A) the right of Buyer effectively to control or operate its business (including the Business after the Closing) or assets (including the Purchased Assets) or (B) the right of Buyer to exercise its full rights of ownership of its business (including the Business after the Closing) or assets (including the Purchased Assets); (ii) agree or be required to sell or otherwise dispose of, hold separate (through the establishment of a trust or otherwise), or divest itself of all or any portion of the business, assets or operations of Buyer or any of its Affiliates or the Business after the Closing or the Purchased Assets; (iii) terminate, modify, or assign existing relationships, Contracts, or obligations of Buyer or any of its Affiliates or those relating to the Business after the Closing or the Purchased Assets; (iv) change or modify any course of conduct regarding future operations of Buyer or any its Affiliates or the Business after the Closing or the Purchased Assets; (v) litigate or contest any administrative or judicial action or proceeding or any Order; or (vi) otherwise take any steps to avoid or eliminate any impediment that may be asserted under any Antitrust Law. In regard to any Governmental Authority, neither Seller Parent nor Seller shall, without Xxxxx’s prior written consent in Buyer’s sole discretion, discuss or commit to any divestiture transaction, or discuss or commit to alter any of their businesses or commercial practices in any way, or otherwise discuss, take or commit to take any action that limits Buyer’s freedom of action with respect to, or Buyer’s ability to retain any of the businesses, product or service lines or assets of, the Business or otherwise limits Buyer’s ability to receive the full benefits of this Agreement.
(d) Xxxxx shall lead all communications, strategy and efforts to obtain all necessary clearances, actions or non-actions and consents from Governmental Authorities under Antitrust Laws in connection with the transactions contemplated hereby and any litigation matters relating to the Antitrust Laws, subject to good faith consultations with Seller Parent and the inclusion of Seller Parent at meetings with Governmental Authorities with respect to any discussion related to the transactions contemplated hereby under the Antitrust Lawsparticipate.
(e) Buyer shall pay 100% of not, and shall cause its Affiliates not to, enter into any filing fees payable under the HSR Act.
(f) Each party hereto shall, as promptly as possible, use its commercially reasonable efforts to obtaintransaction, or cause any agreement to effect any transaction (including any merger or acquisition) that might reasonably be obtained, all other Consents and orders from all Governmental Authorities and makeexpected to make it more difficult, or cause to be madeincrease the time required, all filings required by Law to be made by it (i) obtain the expiration or termination of the waiting period under applicable Antitrust Law, (ii) avoid the entry of, the commencement of litigation seeking the entry of, or to consummate effect the dissolution of, any injunction, temporary restraining order or other order that would materially delay or prevent the consummation of the transactions contemplated hereby that may be by this Agreement, or become (iii) obtain any other Approvals necessary for its execution and delivery the consummation of the transactions contemplated by this Agreement and the performance of its obligations pursuant to this Agreement and the other Ancillary Agreements. Each party shall cooperate with each other Party and its Affiliates in promptly seeking to obtain all such other Consents and orders that the other is required by Law to make. The parties hereto shall not willfully take any action that will have the effect of delaying, impairing or impeding the receipt of any required Consents and orders that the other is required by Law to makeAgreement.
Appears in 1 contract
Samples: Share Purchase Agreement (Laboratory Corp of America Holdings)
