Consents and Approvals. (a) Subject to the terms and conditions of this Agreement, each of Parent and GFI 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 Law to consummate the Transactions, including, preparing and filing as promptly as practicable all documentation to effect all necessary filings, notices, petitions, statements, registrations, submissions of information, applications and other documents necessary and appropriate to consummate the Transactions. In furtherance and not in limitation of the foregoing, each of Parent and GFI shall (i) make or cause to be made the filings required of such party under the Foreign Competition Laws (including those set forth in Section 3.4(b)(i) of the Parent Disclosure Letter) with respect to the Transactions as promptly as practicable after the date of this Agreement; (ii) take all actions to obtain and make the Regulatory Approvals set forth in Section 3.4(b)(ii) of the Parent Disclosure Letter as promptly as practicable after the date of this Agreement; (iii) comply at the earliest practicable date with any request under any Governmental Entity (including under any Foreign Competition Laws) in respect of such filings or such Transaction; and (iv) act in good faith and reasonably cooperate with the other Party in connection with any such filings and in connection with resolving any investigation or other inquiry of any such agency or other Governmental Entity under any of the HSR Act, the Foreign Competition Laws, the Xxxxxxx Act, the Xxxxxxx Act and any other Laws or Orders that are designed to prohibit, restrict or regulate actions having the purpose or effect of monopolization or restraint of trade (collectively, the “Antitrust Laws”) with respect to any such filing or any such Transaction. To the extent not prohibited by applicable Law, the Parties shall use reasonable best efforts to furnish to each other all information required for any application or other filing to be made pursuant to any applicable Law in connection with the Transactions. Each Party shall give each other reasonable prior notice of any substantive communication with, and any proposed understanding, undertaking or agreement with, any Governmental Entity regarding any such filings or any such Transaction. No Party shall independently participate in any meeting, or engage in any substantive conversation, with any Governmental Entity in respect of any such filings, investigation or other inquiry without giving the other Parties prior notice of the meeting or conversation and, unless prohibited by such any Governmental Entity, the opportunity to attend or participate. The Parties contemplate that as a general matter both Parent and GFI shall be represented at in-person meetings with any Governmental Entity. The Parties will consult and cooperate with one another in connection with any analyses, appearances, presentations, memoranda, briefs, arguments, opinions and proposals made or submitted by or on behalf of any Party in connection with proceedings under or relating to the HSR Act, the Foreign Competition Laws or other Antitrust Laws. (b) Without limiting the general obligations of Parent and GFI under Section 5.3(a) (Consents and Approvals), each of Parent and GFI shall use its reasonable best efforts to resolve such objections, if any, as may be asserted by any Governmental Entity with respect to the Transactions under the Antitrust Laws. In connection therewith and subject to Section 5.3(a) (Consents and Approvals), if any Proceeding is instituted (or threatened to be instituted) challenging any of the Transactions as inconsistent with or violative of any Antitrust Law, each of Parent and GFI shall cooperate and use its reasonable best efforts vigorously to contest and resist (by negotiation, litigation or otherwise) any such Proceeding and to have vacated, lifted, reversed or overturned any Order whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents, delays or restricts consummation of the Transactions, unless Parent reasonably and in good faith determines that litigation is not in its best interests. Notwithstanding the foregoing or any other provision of this Agreement, nothing in this Section 5.3(b) shall limit the right of a Party to terminate this Agreement pursuant to Section 7.1 (Termination), so long as such Party has until that time complied in all material respects with its obligations under this Section 5.3. Each of Parent and GFI shall use its reasonable best efforts to take such action as may be required to cause the expiration of the notice periods or to obtain the necessary approvals under the HSR Act, the Foreign Competition Laws or any other Antitrust Laws with respect to the Transactions as promptly as possible after the execution of this Agreement. (c) Notwithstanding anything to the contrary in this Agreement, nothing in this Agreement shall be deemed to require Parent or any Parent Subsidiary to agree to or take any action that would result in any Burdensome Condition. None of GFI or any GFI Subsidiary shall agree to or take any action that would result in any Burdensome Condition without the prior written consent of Parent. For purposes of this Agreement, a “Burdensome Condition” shall mean making proposals, executing or carrying out agreements (including consent decrees) or submitting to Laws (i) providing for the transfer, license, sale or other disposition or holding separate (through the establishment of a trust or otherwise) of any assets or categories of assets of Parent, GFI or any of their respective Subsidiaries or the holding separate (through the establishment of a trust or otherwise) of the Securities of any Parent Subsidiary or GFI Subsidiary or (ii) imposing or seeking to impose any limitation on the ability of Parent, GFI or any of their respective Subsidiaries to conduct their respective businesses (including with respect to market practices and structure) or own such assets or to acquire, hold or exercise full rights of ownership of the business of GFI, the GFI Subsidiaries, Parent or the Parent Subsidiaries, in each case other than (x) with respect to Antitrust Laws, any such proposals, executing or carrying out agreements (including consent decrees) or submitting to Laws that would not impair in any material respect the expected benefits of Parent and the Parent Subsidiaries from or relating to the Transactions, or (y) with respect to Regulatory Approvals, any immaterial administrative or ministerial obligations of Parent or any Parent Subsidiary.
Appears in 5 contracts
Samples: Tender Offer Agreement (BGC Partners, Inc.), Tender Offer Agreement (BGC Partners, Inc.), Tender Offer Agreement (BGC Partners, Inc.)
Consents and Approvals. (a) Subject Seller and TOPIII, as the case may be, will use Commercially Reasonable Efforts to obtain all authorizations, consents, Orders, variances, approvals and applications listed on Schedule 5.3(a) “Seller’s and TOPIII’s Required Consents and Approvals” for the transfer and assignment of the Assets to Purchaser and all consents and approvals for the transfer and assignment of all Permits, Permit Applications and Assigned Contracts (“Seller’s Required Consents” and “TOPIII’s Required Consents”). Notwithstanding anything herein to the terms and conditions contrary, in connection with obtaining the assignment of this the Fuel Agreement, each of Parent and GFI will use its reasonable best efforts to take, Commercially Reasonable Efforts shall not require any action or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under applicable Law to consummate the Transactions, including, preparing and filing as promptly as practicable all documentation to effect all necessary filings, notices, petitions, statements, registrations, submissions of information, applications and other documents necessary and appropriate to consummate the Transactions. In furtherance and not in limitation of the foregoing, each of Parent and GFI shall (i) make or cause to be made the filings required of such party under the Foreign Competition Laws (including those set forth in Section 3.4(b)(i) of the Parent Disclosure Letter) inaction with respect to the Transactions as promptly as practicable after pending litigation involving the date of this Agreement; (ii) Disputes or any settlement that may take all actions to obtain and make the Regulatory Approvals set forth in Section 3.4(b)(ii) of the Parent Disclosure Letter as promptly as practicable after the date of this Agreement; (iii) comply at the earliest practicable date with any request under any Governmental Entity (including under any Foreign Competition Laws) in respect of such filings or such Transaction; and (iv) act in good faith and reasonably cooperate with the other Party place in connection with any such filings and in connection with resolving any investigation or other inquiry of any such agency or other Governmental Entity under any of the HSR Act, the Foreign Competition Laws, the Xxxxxxx Act, the Xxxxxxx Act and any other Laws or Orders that are designed to prohibit, restrict or regulate actions having the purpose or effect of monopolization or restraint of trade (collectively, the “Antitrust Laws”) with respect to any such filing or any such Transaction. To the extent not prohibited by applicable Law, the Parties shall use reasonable best efforts to furnish to each other all information required for any application or other filing to be made pursuant to any applicable Law in connection with the Transactions. Each Party shall give each other reasonable prior notice of any substantive communication with, and any proposed understanding, undertaking or agreement with, any Governmental Entity regarding any such filings or any such Transaction. No Party shall independently participate in any meeting, or engage in any substantive conversation, with any Governmental Entity in respect of any such filings, investigation or other inquiry without giving the other Parties prior notice of the meeting or conversation and, unless prohibited by such any Governmental Entity, the opportunity to attend or participate. The Parties contemplate that as a general matter both Parent and GFI shall be represented at in-person meetings with any Governmental Entity. The Parties will consult and cooperate with one another in connection with any analyses, appearances, presentations, memoranda, briefs, arguments, opinions and proposals made or submitted by or on behalf of any Party in connection with proceedings under or relating to the HSR Act, the Foreign Competition Laws or other Antitrust Lawstherewith.
(b) Without limiting the general obligations of Parent and GFI under Section 5.3(a) (In connection with obtaining any Seller’s Required Consents and Approvals)or TOPIII’s Required Consents from Third Parties, each Party will use Commercially Reasonable Efforts to obtain a release of Parent Seller or TOPIII and GFI shall use its reasonable best efforts to resolve such objections, if anyany of their Affiliates, as applicable, as the case may be asserted by be, from any Governmental Entity and all liabilities and obligations to Third Parties under the Asset being assigned or transferred arising in respect of any period occurring after the Closing. In the event a release of Sempra and any of its Affiliates, as applicable, is not obtained with respect to the Transactions under the Antitrust Laws. In connection therewith Fuel Agreement and subject to any related agreements and Seller waives its condition precedent in Section 5.3(a) (Consents and Approvals)7.12, if any Proceeding is instituted (or threatened to be instituted) challenging any of the Transactions as inconsistent with or violative of any Antitrust Law, each of then Purchaser’s Parent and GFI shall cooperate and use its reasonable best efforts vigorously to contest and resist (by negotiation, litigation or otherwise) any such Proceeding and to have vacated, lifted, reversed or overturned any Order whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents, delays or restricts consummation of the Transactions, unless Parent reasonably and in good faith determines that litigation is not in its best interests. Notwithstanding the foregoing or any other provision of this Agreement, nothing in this Section 5.3(b) shall limit the right of a Party to terminate this Agreement pursuant to Section 7.1 (Termination), so long as such Party has until that time complied in all material respects with its obligations under this Section 5.3. Each of Parent and GFI shall use its reasonable best efforts to take such action as may be required to cause the expiration indemnify, defend and hold harmless Sempra Energy and any of the notice periods its Affiliates, as applicable, for any payment, loss, liability or to obtain the necessary approvals expense incurred by Sempra Energy or any of its Affiliates, as applicable, under the HSR Act, the Foreign Competition Laws Fuel Agreement or any other Antitrust Laws related agreements for any claim made in respect of any period after the Closing Date. Purchaser will not reject any transfer (or, as applicable, reissuance) of any Permit, approval or application held by Seller or TOPIII with respect to the Transactions as promptly as possible after the execution of this Agreement.
(c) Notwithstanding anything to the contrary in this Agreement, nothing in this Agreement shall be deemed to require Parent or any Parent Subsidiary to agree to or take any action that would result in any Burdensome Condition. None of GFI or any GFI Subsidiary shall agree to or take any action that would result in any Burdensome Condition without the prior written consent of Parent. For purposes of this Agreement, a “Burdensome Condition” shall mean making proposals, executing or carrying out agreements (including consent decrees) or submitting to Laws (i) providing for the transfer, license, sale or other disposition or holding separate (through the establishment of a trust or otherwise) of any assets or categories of assets of Parent, GFI or any of their respective Subsidiaries or the holding separate (through the establishment of a trust or otherwise) of the Securities of any Parent Subsidiary or GFI Subsidiary or (ii) imposing or seeking to impose any limitation on the ability of Parent, GFI or any of their respective Subsidiaries to conduct their respective businesses (including Facility with respect to market practices terms and structure) or own such assets or to acquire, hold or exercise full rights of ownership of the business of GFI, the GFI Subsidiaries, Parent or the Parent Subsidiaries, in each case other than (x) with respect to Antitrust Laws, any such proposals, executing or carrying out agreements (including consent decrees) or submitting to Laws that would not impair in any material respect the expected benefits of Parent and the Parent Subsidiaries from or relating to the Transactions, or (y) with respect to Regulatory Approvals, any immaterial administrative or ministerial obligations of Parent or any Parent Subsidiary.conditions substantially similar to
Appears in 3 contracts
Samples: Purchase and Sale Agreement (Public Service Co of New Mexico), Purchase and Sale Agreement (Public Service Co of New Mexico), Purchase and Sale Agreement (Public Service Co of New Mexico)
Consents and Approvals. (a) Subject to the terms and conditions of this AgreementAgreement (including Section 5.2(e)), each of Parent Party shall, and GFI will shall cause its wholly-owned Subsidiaries to, use its commercially reasonable best efforts to take, or cause to be taken, all actions actions, and to do, or cause to be done, all things necessary, proper or advisable under applicable Law and to consummate the Transactions, including, preparing assist and filing as promptly as practicable all documentation to effect all necessary filings, notices, petitions, statements, registrations, submissions of information, applications and other documents necessary and appropriate to consummate the Transactions. In furtherance and not in limitation of the foregoing, each of Parent and GFI shall (i) make or cause to be made the filings required of such party under the Foreign Competition Laws (including those set forth in Section 3.4(b)(i) of the Parent Disclosure Letter) with respect to the Transactions as promptly as practicable after the date of this Agreement; (ii) take all actions to obtain and make the Regulatory Approvals set forth in Section 3.4(b)(ii) of the Parent Disclosure Letter as promptly as practicable after the date of this Agreement; (iii) comply at the earliest practicable date with any request under any Governmental Entity (including under any Foreign Competition Laws) in respect of such filings or such Transaction; and (iv) act in good faith and reasonably cooperate with the other Party in connection with doing, all things required or reasonably necessary to consummate and make effective the Transaction as promptly as practicable, including:
(i) as promptly as practicable, obtain from any such Governmental Authority all waivers, consents, clearances and approvals, including the Required Regulatory Approvals, required or reasonably necessary to consummate the Transaction;
(ii) as promptly as reasonably practicable, make all filings and submissions that are required or reasonably necessary to consummate the Transaction and thereafter make any other required or appropriate submissions including, without limiting the foregoing, (A) all filings and submissions required in connection with resolving the Required Regulatory Approvals, and (B) an application by QLT for an Advance Ruling Certificate or no-action letter under the Competition Act (to the extent the Competition Act Approval is required under applicable Law in respect of the Transaction); and
(iii) as promptly as reasonably practicable, take reasonable actions to provide notice to any investigation third party, or obtain from any third party any waivers, consents and approvals required or reasonably necessary to consummate the Transaction; provided, however, that notwithstanding anything in this Agreement to the contrary, in no event shall QLT and Auxilium or any of their respective Subsidiaries be required to pay, prior to the Closing, any fee, penalty or other inquiry consideration to any third party for any waiver, consent or approval required in connection with the consummation of any the Transaction.
(b) Subject to the terms and conditions hereof, including Section 5.2(e), each of the Parties agrees, and shall cause each of their respective Subsidiaries, to cooperate and to use commercially reasonable efforts to (i) provide such agency notices and obtain such waivers, consents, clearances and approvals as are required or other Governmental Entity reasonably necessary to consummate the Transaction under any of the HSR Act, the Foreign Competition Laws, Act (to the Xxxxxxx Act, extent the Xxxxxxx Competition Act Approval is required under applicable Law in respect of the Transaction) and any other Laws federal, provincial, state or Orders that are foreign Law designed to prohibit, restrict or regulate actions having the purpose or effect of relating to monopolization or restraint of trade or foreign investment (collectively, the “Antitrust "Relevant Laws”"), and (ii) with respect respond to any such filing requests of any Governmental Authority for information or documentary material under any such Transaction. To the extent not prohibited by applicable Relevant Law, the Parties shall use reasonable best efforts and to furnish to each other all information required for contest and resist any application action, including any legislative, administrative or other filing to be made pursuant to any applicable Law in connection with the Transactions. Each Party shall give each other reasonable prior notice of any substantive communication withjudicial action, and to have vacated, lifted, reversed or overturned any proposed understandingOrder (whether temporary, undertaking preliminary or agreement withpermanent) that restricts, any Governmental Entity regarding any such filings prevents or any such Transaction. No Party shall independently participate in any meeting, or engage in any substantive conversation, with any Governmental Entity in respect of any such filings, investigation or other inquiry without giving prohibits the other Parties prior notice consummation of the meeting or conversation and, unless prohibited by such Transaction under any Governmental Entity, the opportunity to attend or participateRelevant Law. The Parties contemplate that as a general matter both Parent and GFI shall be represented at in-person meetings with any Governmental Entity. The Parties will consult and cooperate with one another another, and consider in connection with good faith the views of one another, regarding the form and content of any analyses, appearances, presentations, memoranda, briefs, arguments, opinions and proposals made or submitted by or on behalf of any Party in connection with proceedings under or relating to the HSR Act, the Foreign Competition Laws or other Antitrust Laws.
(b) Without limiting the general obligations of Parent and GFI under Section 5.3(a) (Consents and Approvals), each of Parent and GFI shall use its reasonable best efforts any Relevant Law prior to resolve such objections, if any, as may be asserted by any Governmental Entity with respect to the Transactions under the Antitrust Laws. In connection therewith and subject to Section 5.3(a) (Consents and Approvals), if any Proceeding is instituted (or threatened to be instituted) challenging any of the Transactions as inconsistent with or violative of any Antitrust Law, each of Parent and GFI shall cooperate and use its reasonable best efforts vigorously to contest and resist (by negotiation, litigation or otherwise) any such Proceeding and to have vacated, lifted, reversed or overturned any Order whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents, delays or restricts consummation of the Transactions, unless Parent reasonably and in good faith determines that litigation is not in its best interests. Notwithstanding the foregoing or any other provision of this Agreement, nothing in this Section 5.3(b) shall limit the right of a Party to terminate this Agreement pursuant to Section 7.1 (Termination), so long as such Party has until that time complied in all material respects with its obligations under this Section 5.3. Each of Parent and GFI shall use its reasonable best efforts to take such action as may be required to cause the expiration of the notice periods or to obtain the necessary approvals under the HSR Act, the Foreign Competition Laws or any other Antitrust Laws with respect to the Transactions as promptly as possible after the execution of this Agreementtheir submission.
(c) Notwithstanding anything to Each of QLT and Auxilium shall, other than in respect of routine correspondence and dealings with the contrary in this Agreement, nothing in this Agreement shall be deemed to require Parent or any Parent Subsidiary to agree to or take any action that would result in any Burdensome Condition. None of GFI or any GFI Subsidiary shall agree to or take any action that would result in any Burdensome Condition without TSX and NASDAQ regarding the prior written consent of Parent. For purposes of this Agreement, a “Burdensome Condition” shall mean making proposals, executing or carrying out agreements (including consent decrees) or submitting to Laws Transaction: (i) providing for the transfer, license, sale or promptly advise each other disposition or holding separate (through the establishment of a trust or otherwise) of any assets written or categories of assets of Parent, GFI or any of oral communication (including communications received by their respective Subsidiaries Subsidiaries) from any Governmental Authority or third party from whom a waiver, consent or approval is required or reasonably necessary to consummate the holding separate (through the establishment of a trust or otherwise) of the Securities of any Parent Subsidiary or GFI Subsidiary or Transaction; (ii) imposing not participate in any meeting or seeking discussion with any Governmental Authority in respect of any filing, investigation, or enquiry concerning this Agreement or the Transaction unless it consults with the other Party in advance, and, unless prohibited by such Governmental Authority, gives the other Party the opportunity to impose any limitation attend; and (iii) promptly furnish the other Party with copies of all correspondence, filings, and written communications between them and their Subsidiaries and Representatives, on the ability of Parentone hand, GFI and any Governmental Authority or any of their respective Subsidiaries to conduct their respective businesses (including its staff, on the other hand, with respect to market practices and structure) or own such assets or to acquire, hold or exercise full rights of ownership of the business of GFI, the GFI Subsidiaries, Parent or the Parent Subsidiaries, in each case other than (x) with respect to Antitrust Laws, any such proposals, executing or carrying out agreements (including consent decrees) or submitting to Laws that would not impair in any material respect the expected benefits of Parent this Agreement and the Parent Subsidiaries from or relating Transaction, except that materials may be redacted as necessary to the Transactionsaddress reasonable privilege, competitively sensitive information, or (y) with respect to Regulatory Approvals, any immaterial administrative or ministerial obligations of Parent or any Parent Subsidiaryconfidentiality concerns.
Appears in 3 contracts
Samples: Merger Agreement (QLT Inc/Bc), Merger Agreement (QLT Inc/Bc), Merger Agreement (Auxilium Pharmaceuticals Inc)
Consents and Approvals. (a) Subject to Upon the terms and subject to the conditions of this Agreement, each of Parent the parties hereto agrees to use, and GFI will cause its Affiliates to use its commercially reasonable best efforts to take, or cause to be taken, all actions actions, and to do, or cause to be done, all things necessary or advisable under Applicable Law and regulations to consummate and make effective the transactions contemplated by this Agreement as promptly as practicable including the preparation and filing of all forms, registrations and notices required to be filed by such party in order to consummate the transactions contemplated by this Agreement, the taking of all appropriate action necessary, proper or advisable under applicable Law to satisfy each of the conditions to Closing that are to be satisfied by that party or any of its Affiliates and the taking of such actions as are necessary to obtain any approvals, consents, orders, exemptions or waivers of Governmental Authorities and any other Person required to be obtained by such party in order to consummate the Transactions, including, preparing and filing as promptly as practicable all documentation to effect all necessary filings, notices, petitions, statements, registrations, submissions of information, applications and other documents necessary and appropriate to consummate the Transactions. In furtherance and not in limitation of the foregoing, each of Parent and GFI shall (i) make or cause to be made the filings required of such party under the Foreign Competition Laws (including those set forth in Section 3.4(b)(i) of the Parent Disclosure Letter) with respect to the Transactions as promptly as practicable after the date of transactions contemplated by this Agreement; (ii) take all actions to obtain and make the Regulatory Approvals set forth in Section 3.4(b)(ii) of the Parent Disclosure Letter as promptly as practicable after the date of this Agreement; (iii) comply at the earliest practicable date with any request under any Governmental Entity (including under any Foreign Competition Laws) in respect of such filings or such Transaction; and (iv) act in good faith and reasonably cooperate with the other Party in connection with any such filings and in connection with resolving any investigation or other inquiry of any such agency or other Governmental Entity under any of the HSR Act, the Foreign Competition Laws, the Xxxxxxx Act, the Xxxxxxx Act and any other Laws or Orders that are designed to prohibit, restrict or regulate actions having the purpose or effect of monopolization or restraint of trade (collectively, the “Antitrust Laws”) with respect to any such filing or any such Transaction. To the extent not prohibited by applicable Law, the Parties shall use reasonable best efforts to furnish to each other all information required for any application or other filing to be made pursuant to any applicable Law in connection with the Transactions. Each Party shall give each other reasonable prior notice of any substantive communication with, and any proposed understanding, undertaking or agreement with, any Governmental Entity regarding any such filings or any such Transaction. No Party shall independently participate in any meeting, or engage in any substantive conversation, with any Governmental Entity in respect of any such filings, investigation or other inquiry without giving the other Parties prior notice of the meeting or conversation and, unless prohibited by such any Governmental Entity, the opportunity to attend or participate. The Parties contemplate that as a general matter both Parent and GFI shall be represented at in-person meetings with any Governmental Entity. The Parties will consult and cooperate with one another in connection with any analyses, appearances, presentations, memoranda, briefs, arguments, opinions and proposals made or submitted by or on behalf of any Party in connection with proceedings under or relating to the HSR Act, the Foreign Competition Laws or other Antitrust Laws.
(b) Without limiting Each party shall, and shall cause their respective Affiliates to, with respect to a threatened or pending preliminary or permanent injunction or other order, decree or ruling or statute, rule, regulation or executive order that would adversely affect the general obligations ability of Parent and GFI under Section 5.3(a) (Consents and Approvals)any party to this Agreement to consummate the transactions contemplated hereby or those contemplated by the CCE Acquisition Agreement, each of Parent and GFI shall use its their respective commercially reasonable best efforts to resolve such objectionsprevent the entry, if anyenactment or promulgation thereof, as the case may be asserted (including by pursuing any available appeal process). Each of ETP and CCE shall use its respective commercially reasonable best efforts to, and shall cause their respective Affiliates to use their commercially reasonable best efforts to, promptly take or cause to be taken all actions necessary to comply with any requests made, or conditions set, by a Governmental Authority to consummate the transactions contemplated by this Agreement or the CCE Acquisition Agreement. Each party agrees to use its commercially reasonable best efforts to procure any third-party consents required in the preceding sentence. Notwithstanding the foregoing, in no event shall the term “commercially reasonable best efforts” require a party to agree to any divestiture, agreement, condition, restriction or requirement requested by any Governmental Entity to avoid the entry, enactment or promulgation of any threatened preliminary or permanent injunction or other order, decree or ruling or statute, rule, regulation or executive order that would constitute a material adverse effect on the financial condition, results of operations or prospects of such party and its Affiliates (including, with respect to the Transactions under the Antitrust Laws. In connection therewith and subject to Section 5.3(a) (Consents and ApprovalsETP, TPC), if any Proceeding is instituted taken as a whole (or threatened a “Burdensome Condition”). All cooperation shall be conducted in such a manner so as to be institutedpreserve all applicable privileges.
(c) challenging any By the later of (i) the seventh Business Day after the date hereof and (ii) the fifth Business Day after the approval by the FCC of the Transactions as inconsistent with or violative transfer of any Antitrust Law, each of Parent and GFI shall cooperate and use its reasonable best efforts vigorously to contest and resist (control contemplated by negotiation, litigation or otherwise) any such Proceeding and to have vacated, lifted, reversed or overturned any Order whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents, delays or restricts consummation of the Transactions, unless Parent reasonably and in good faith determines that litigation is not in its best interests. Notwithstanding the foregoing or any other provision of this CCE Acquisition Agreement, nothing in this Section 5.3(b) CCE and ETP shall limit file applications with the right of a Party to terminate this Agreement pursuant to Section 7.1 (Termination), so long as such Party has until that time complied in all material respects with its obligations under this Section 5.3. Each of Parent and GFI shall use its reasonable best efforts to take such action as may be required to cause the expiration of the notice periods or to obtain the necessary approvals under the HSR Act, the Foreign Competition Laws or any other Antitrust Laws with respect FCC for consent to the Transactions transfer of control of CCE and its Affiliates as promptly as possible after the execution of contemplated by this Agreement.
(cd) Notwithstanding anything to the contrary in this Agreement, nothing in this Agreement shall be deemed to require Parent or any Parent Subsidiary to agree to or take any action that would result in any Burdensome Condition. None of GFI or any GFI Subsidiary shall agree to or take any action that would result in any Burdensome Condition without the prior written consent of Parent. For purposes of this AgreementSection 5.3, each party shall require their respective counsel to cooperate to the same extent as each party is required to cooperate with the other party.
(e) Without limiting the generality of the undertakings pursuant to this Section 5.3 and subject to appropriate confidentiality protections and limitations set forth in Section 5.3(b) above, CCE, ETP and their respective Affiliates shall each furnish to the parties to this Agreement such necessary information and reasonable assistance a “Burdensome Condition” party may request in connection with the foregoing and, upon reasonable request shall mean making proposalseach provide counsel for the other party with copies of all filings made by such party or such Affiliate, executing and all correspondence between such party or carrying out agreements such Affiliate (including consent decreesand its advisors) or submitting with any Governmental Authority and any other information supplied by such party and such party’s Affiliates to Laws a Governmental Authority in connection with this Agreement and the transactions contemplated hereby, provided, however, that materials may be redacted (i) providing for to remove references concerning the transfervaluation of TPC, license, sale or other disposition or holding separate (through the establishment of a trust or otherwise) of any assets or categories of assets of Parent, GFI or any of their respective Subsidiaries or the holding separate (through the establishment of a trust or otherwise) of the Securities of any Parent Subsidiary or GFI Subsidiary or (ii) imposing or seeking as necessary to impose any limitation on comply with contractual arrangements and (iii) to remove information that is proprietary; and provided further, that information protected by the ability of Parentattorney client, GFI work product privilege, or any of their respective Subsidiaries other applicable privilege, shall be exchanged in a manner so as to conduct their respective businesses (including with respect to market practices and structure) or own such assets or to acquire, hold or exercise full rights of ownership of the business of GFI, the GFI Subsidiaries, Parent or the Parent Subsidiaries, in each case other than (x) with respect to Antitrust Laws, preserve any such proposals, executing or carrying out agreements (including consent decrees) or submitting privilege. CCE and ETP agree to Laws that would not impair in inform each other of all communications with any material respect the expected benefits of Parent and the Parent Subsidiaries from or relating to the Transactions, or (y) with respect to Regulatory Approvals, any immaterial administrative or ministerial obligations of Parent or any Parent SubsidiaryGovernmental Authority.
Appears in 3 contracts
Samples: Redemption Agreement (Southern Union Co), Redemption Agreement (Energy Transfer Equity, L.P.), Redemption Agreement (Energy Transfer Equity, L.P.)
Consents and Approvals. (a) Subject to the terms and conditions of this Agreement, each of Parent and GFI will The Sellers shall use its their reasonable best efforts to take, obtain all Consents required by the Bankruptcy Code or cause other Applicable Law to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under applicable Law to consummate obtained by the Transactions, including, preparing and filing as promptly as practicable all documentation Sellers to effect all necessary filings, notices, petitions, statements, registrations, submissions of information, applications and other documents necessary and appropriate to consummate the Transactionstransactions contemplated hereby. In furtherance and not in limitation of Without limiting the foregoing, each of Parent and GFI shall (i) make or cause to be made the filings required of such party under the Foreign Competition Laws (including those set forth in Section 3.4(b)(i) of the Parent Disclosure Letter) with respect to the Transactions as promptly soon as practicable after the date of this Agreement; (ii) take all actions to obtain and make the Regulatory Approvals set forth in Section 3.4(b)(ii) of the Parent Disclosure Letter as promptly as practicable after the date of this Agreement; (iii) comply at the earliest practicable date with any request under any Governmental Entity (including under any Foreign Competition Laws) in respect of such filings or such Transaction; and (iv) act in good faith and reasonably cooperate with the other Party in connection with any such filings and in connection with resolving any investigation or other inquiry of any such agency or other Governmental Entity under any of the HSR Act, the Foreign Competition Laws, the Xxxxxxx Act, the Xxxxxxx Act and any other Laws Sellers shall make or Orders that are designed to prohibit, restrict or regulate actions having the purpose or effect of monopolization or restraint of trade (collectively, the “Antitrust Laws”) with respect to any such filing or any such Transaction. To the extent not prohibited by applicable Law, the Parties shall use reasonable best efforts to furnish to each other all information required for any application or other filing cause to be made pursuant all such further filings and submissions, and take or cause to any applicable Law be taken such further action, as may reasonably be required in connection with the Transactions. Each Party shall give each other reasonable prior notice of any substantive communication with, and any proposed understanding, undertaking or agreement with, any Governmental Entity regarding any such filings or any such Transaction. No Party shall independently participate in any meeting, or engage in any substantive conversation, with any Governmental Entity in respect of any such filings, investigation or other inquiry without giving the other Parties prior notice of the meeting or conversation and, unless prohibited by such any Governmental Entity, the opportunity to attend or participate. The Parties contemplate that as therewith on a general matter both Parent and GFI shall be represented at in-person meetings with any Governmental Entity. The Parties will consult and cooperate with one another in connection with any analyses, appearances, presentations, memoranda, briefs, arguments, opinions and proposals made or submitted by or on behalf of any Party in connection with proceedings under or relating to the HSR Act, the Foreign Competition Laws or other Antitrust Lawstimely basis.
(b) Without limiting the general obligations generality of Parent and GFI under Section 5.3(a) (Consents and Approvals6.7(a), the Sellers and the Buyer shall comply fully with all applicable notification, reporting and other requirements of the HSR Act. The Sellers and the Buyer, within five (5) Business Days after the date of this Agreement, shall file the required notifications with the Federal Trade Commission (the “FTC”) and the Antitrust Division of the Department of Justice (the “Antitrust Division”) pursuant to and in compliance with the HSR Act, and seek early termination of the waiting period thereunder. The Buyer and the Sellers shall each of Parent pay fifty percent (50%) the applicable HSR Act filing fee. The Sellers and GFI the Buyer shall use its reasonable best efforts to resolve such objections, if any, as may be asserted by any Governmental Entity cooperate with each other with respect to such filing, and shall respond as promptly as reasonably practicable to any inquiries received from the Transactions under FTC or the Antitrust LawsDivision for additional information or documentation and to all inquiries and requests received from any other Governmental Authority in connection therewith. In connection therewith and Each Party shall (i) subject to Section 5.3(a) (Consents and Approvals)Applicable Laws, if promptly notify the other Party of any Proceeding is instituted (written communication to that Party from the FTC, the Antitrust Division or threatened any other Governmental Authority relating to be instituted) challenging this Agreement and, subject to Applicable Laws, permit the other Party to review in advance any proposed written communication to any of the Transactions as inconsistent foregoing relating to this Agreement; (ii) to the extent permitted by Applicable Laws, not agree to participate in any substantive meeting or discussion with or violative any Governmental Authority in respect of any Antitrust Lawfilings, each of Parent and GFI shall cooperate and use its reasonable best efforts vigorously to contest and resist (by negotiation, litigation investigation or otherwise) any such Proceeding and to have vacated, lifted, reversed or overturned any Order whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents, delays or restricts consummation of the Transactions, unless Parent reasonably and in good faith determines that litigation is not in its best interests. Notwithstanding the foregoing or any other provision of this Agreement, nothing in this Section 5.3(b) shall limit the right of a Party to terminate inquiry concerning this Agreement pursuant unless it consults with the other Party in advance and, to Section 7.1 the extent permitted by such Governmental Authority, gives the other Party the opportunity to attend and participate thereat; and (Termination)iii) to the extent permitted by Applicable Laws, so long as furnish the other Party with copies of all correspondence, filings and communications between such Party has until that time complied in all material respects with and its obligations under this Section 5.3. Each of Parent Affiliates and GFI shall use its reasonable best efforts to take such action as may be required to cause their respective representatives on the expiration of one hand, and any Governmental Authority or their respective staffs on the notice periods or to obtain the necessary approvals under the HSR Actother hand, the Foreign Competition Laws or any other Antitrust Laws with respect to the Transactions as promptly as possible after the execution of this Agreement.
(c) Notwithstanding anything to the contrary in this Agreement, nothing in this Agreement shall be deemed to require Parent or any Parent Subsidiary to agree to or take any action that would result in any Burdensome Condition. None of GFI or any GFI Subsidiary shall agree to or take any action that would result in any Burdensome Condition without the prior written consent of Parent. For purposes of this Agreement, a “Burdensome Condition” shall mean making proposals, executing or carrying out agreements (including consent decrees) or submitting to Laws (i) providing for the transfer, license, sale or other disposition or holding separate (through the establishment of a trust or otherwise) of any assets or categories of assets of Parent, GFI or any of their respective Subsidiaries or the holding separate (through the establishment of a trust or otherwise) of the Securities of any Parent Subsidiary or GFI Subsidiary or (ii) imposing or seeking to impose any limitation on the ability of Parent, GFI or any of their respective Subsidiaries to conduct their respective businesses (including with respect to market practices and structure) or own such assets or to acquire, hold or exercise full rights of ownership of the business of GFI, the GFI Subsidiaries, Parent or the Parent Subsidiaries, in each case other than (x) with respect to Antitrust Laws, any such proposals, executing or carrying out agreements (including consent decrees) or submitting to Laws that would not impair in any material respect the expected benefits of Parent and the Parent Subsidiaries from or relating to the Transactions, or (y) with respect to Regulatory Approvals, any immaterial administrative or ministerial obligations of Parent or any Parent Subsidiarytransactions contemplated hereby.
Appears in 3 contracts
Samples: Asset Purchase Agreement (Borders Group Inc), Asset Purchase Agreement, Asset Purchase Agreement
Consents and Approvals. (a) Subject to On the terms and subject to the conditions of this Agreement, each of Parent and GFI 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 Law to consummate the Transactions, including, preparing and filing as promptly as practicable all documentation to effect all necessary filings, notices, petitions, statements, registrations, submissions of information, applications and other documents necessary and appropriate to consummate the Transactions. In furtherance and not in limitation of the foregoing, each of Parent and GFI shall (i) make or cause to be made the filings required of such party under the Foreign Competition Laws (including those set forth in Section 3.4(b)(i) of the Parent Disclosure Letter) with respect to the Transactions as promptly as practicable after the date of this Agreement; (ii) take all actions to obtain and make the Regulatory Approvals set forth in Section 3.4(b)(ii) of the Parent Disclosure Letter as promptly as practicable after the date of this Agreement; (iii) comply at the earliest practicable date with any request under any Governmental Entity (including under any Foreign Competition Laws) in respect of such filings or such Transaction; and (iv) act in good faith and reasonably cooperate with the other Party in connection with any such filings and in connection with resolving any investigation or other inquiry of any such agency or other Governmental Entity under any of the HSR Act, the Foreign Competition Laws, the Xxxxxxx Act, the Xxxxxxx Act and any other Laws or Orders that are designed to prohibit, restrict or regulate actions having the purpose or effect of monopolization or restraint of trade (collectively, the “Antitrust Laws”) with respect to any such filing or any such Transaction. To the extent not prohibited by applicable Law, the Parties shall use reasonable best efforts to furnish to each other all information required for any application or other filing to be made pursuant to any applicable Law in connection with the Transactions. Each Party shall give each other reasonable prior notice of any substantive communication with, and any proposed understanding, undertaking or agreement with, any Governmental Entity regarding any such filings or any such Transaction. No Party shall independently participate in any meeting, or engage in any substantive conversation, with any Governmental Entity in respect of any such filings, investigation or other inquiry without giving the other Parties prior notice of the meeting or conversation and, unless prohibited by such any Governmental Entity, the opportunity to attend or participate. The Parties contemplate that as a general matter both Parent and GFI shall be represented at in-person meetings with any Governmental Entity. The Parties will consult and cooperate with one another in connection with any analyses, appearances, presentations, memoranda, briefs, arguments, opinions and proposals made or submitted by or on behalf of any Party in connection with proceedings under or relating to the HSR Act, the Foreign Competition Laws or other Antitrust Laws.
(b) Without limiting the general obligations of Parent and GFI under Section 5.3(a) (Consents and Approvals), each of Parent and GFI shall use its reasonable best efforts to resolve such objectionscause the Closing to occur, if any, as including taking all reasonable actions necessary (i) to comply promptly with all legal requirements that may be asserted by imposed on it or any Governmental Entity of its Affiliates with respect to the Transactions under Closing, including complying with the Antitrust LawsHSR Compliance and the Mexican FCC Filing Requirement, and (ii) to obtain or make each other Consent of or with a Governmental Authority which if not obtained or made would reasonably be expected to have a material adverse effect on the ability of the parties to consummate the transactions contemplated hereby. In connection therewith For purposes of this Section 6.3, the “reasonable best efforts” of the Purchasers and Xxxxxxx shall include, as applicable, (i) opposing any motion or action for a temporary, preliminary or permanent injunction against or other prohibition of the Closing and (ii) entering into a consent decree, other order or other agreement, or giving an assurance, commitment or undertaking, containing the applicable Purchaser’s or Xxxxxxx’x agreement to hold separate and divest (pursuant to any terms as may be required by any Governmental Authority) the business, products and assets of any product or service lines of the Business and/or any other business, product line, service line, division or Subsidiary of such Purchaser or Xxxxxxx and/or any Affiliate of such Purchaser or Xxxxxxx and otherwise to take such other action as may be required by any Governmental Authority; provided, however, that, subject to Section 5.3(a) (Consents and Approvals6.3(f), neither any Purchaser nor Xxxxxxx shall be required to hold separate and divest any assets, business, product line, service line or subsidiary if such divestiture would reasonably be expected to have (x) a material adverse effect on the Purchasers and Xxxxxxx, as a whole or (y) a Business Material Adverse Effect. Subject to the foregoing proviso, for these purposes, and without limiting the foregoing, if in the opinion of MCI or Xxxxxxx acting in good faith, any Proceeding Governmental Authority will only, or is instituted only likely to, give any Consent promptly, or at all, if such Governmental Authority shall receive assurances, commitments, undertakings or consent decrees (each, a “Relevant Assurance”) from the Purchasers or threatened Xxxxxxx, then the Purchasers or Xxxxxxx shall, in consultation with MCI, as soon as practicable, prepare and submit for approval to such Governmental Authority all such Relevant Assurances, having afforded MCI the opportunity to review any such draft Relevant Assurance before submission, execution, publication or release to the relevant Governmental Authority and with a view to there being as much time as possible available for review, comment and agreement with MCI. The Purchasers shall be responsible for transferring, applying for, or otherwise obtaining (in the name of the Purchasers or any Affiliate of the Purchasers) all Permits that are required for the conduct of the Business by the Purchasers from and after the Closing, including the Permits set forth on Schedule 4.14 and the Environmental Permits set forth on Schedule 4.21(b), within the period of time required by any Law or Governmental Authority.
(b) In furtherance and not limitation of the provisions of Section 6.3(a), each Seller and each Purchaser shall cooperate with the other parties with respect to obtaining and making the Consents of Governmental Authorities. Each Seller and each Purchaser shall promptly provide drafts to the other parties, allow reasonably adequate time for comment by the other parties and consult promptly with the other parties with respect to the contents of all notifications, filings, submissions, further documentation and evidence to be institutedsubmitted to all relevant Governmental Authorities. Each Seller and each Purchaser shall, in each case where permitted by the relevant Governmental Authority, allow Persons nominated by the other parties to attend all meetings with Governmental Authorities and, where appropriate, to make oral submissions at such meetings. Each Purchaser and each Seller shall (i) challenging furnish to the other such necessary information and reasonable assistance as the other may require in connection with its preparation of any notification, filing, submission or further documentation or evidence that is necessary in obtaining and making Consents of Governmental Authorities and (ii) promptly disclose to the other all correspondence received from or sent to any relevant Governmental Authority in connection herewith and shall keep the other fully informed of any other related communication in whatever form with any of the Transactions as inconsistent relevant Governmental Authorities. Each Purchaser and each Seller shall comply promptly with any inquiry or violative request for additional information from any relevant Governmental Authority in connection herewith and shall promptly provide any supplemental information requested in connection with the notifications, filings and/or submissions made hereunder for the purposes of any Antitrust Lawobtaining and making the Consents of Governmental Authorities.
(c) Each party shall, each of Parent and GFI shall cooperate and cause its Affiliates to, use its reasonable best efforts vigorously (at its own expense) to contest obtain, and resist to cooperate in obtaining, all Consents from third parties in respect of Purchased Contracts to the extent such Purchased Contracts require such Consents as a result of the transactions contemplated hereby; provided, however, that the parties shall not be required to pay or commit to pay any amount to (by negotiation, litigation or otherwiseincur any obligation in favor of) any Person from whom any such Proceeding and to have vacated, lifted, reversed or overturned any Order whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents, delays or restricts consummation of the Transactions, unless Parent reasonably and in good faith determines that litigation is not in its best interests. Notwithstanding the foregoing or any other provision of this Agreement, nothing in this Section 5.3(b) shall limit the right of a Party to terminate this Agreement pursuant to Section 7.1 (Termination), so long as such Party has until that time complied in all material respects with its obligations under this Section 5.3. Each of Parent and GFI shall use its reasonable best efforts to take such action as Consent may be required (other than nominal filing or application fees) except that the parties shall share equally the consent or transfer fees applicable to cause the expiration of the notice periods or to obtain the necessary approvals contracts set forth on Schedule 4.3(b) under the HSR Act, the Foreign Competition Laws or any other Antitrust Laws heading “IT Contracts”. The Purchasers acknowledge that certain Consents with respect to the Transactions as promptly as possible after the execution of this Agreement.
(c) Notwithstanding anything to the contrary in this Agreement, nothing in transactions contemplated by this Agreement shall may be deemed required from parties to require Parent or any Parent Subsidiary Contracts and that such consents and waivers have not been obtained. Subject to agree to or take any action that would result in any Burdensome Condition. None of GFI or any GFI Subsidiary shall agree to or take any action that would result in any Burdensome Condition without the prior written consent of Parent. For purposes of this AgreementSection 2.3, a “Burdensome Condition” shall mean making proposals, executing or carrying out agreements (including consent decrees) or submitting to Laws (i) providing for the transfer, license, sale or other disposition or holding separate (through the establishment of a trust or otherwise) of any assets or categories of assets of Parent, GFI no Seller or any of their respective Subsidiaries or Affiliates shall have any liability whatsoever to the holding separate (through the establishment Purchasers arising out of a trust or otherwise) of the Securities of any Parent Subsidiary or GFI Subsidiary or (ii) imposing or seeking to impose any limitation on the ability of Parent, GFI or any of their respective Subsidiaries to conduct their respective businesses (including with respect to market practices and structure) or own such assets or to acquire, hold or exercise full rights of ownership of the business of GFI, the GFI Subsidiaries, Parent or the Parent Subsidiaries, in each case other than (x) with respect to Antitrust Laws, any such proposals, executing or carrying out agreements (including consent decrees) or submitting to Laws that would not impair in any material respect the expected benefits of Parent and the Parent Subsidiaries from or relating to the Transactionsfailure to obtain any Consents that may be required in connection with the transactions contemplated by this Agreement or because of the termination of any Purchased Contract as a result thereof.
(d) Without limiting the terms of this Section 6.3, MCI and the U.S. Purchaser shall (i) within ten (10) days after the date of this Agreement file with the Antitrust Division and the FTC the notification and report form, if required by the HSR Act, for the transactions contemplated hereunder, requesting early termination of the waiting period thereunder, (ii) respond promptly to inquiries from the Antitrust Division or the FTC in connection with such filings, including providing any supplemental information that may be requested by the Antitrust Division or the FTC, and (yiii) provide to the other party copies of any filings made under the HSR Act at the time they are filed with the Antitrust Division or the FTC.
(e) Without limiting the terms of this Section 6.3, the applicable Seller and the applicable Purchaser will (i) within ten (10) days after the date of this Agreement file with the Mexican FCC the notification, if required by the Mexican Competition Law, for the transactions contemplated hereunder, and (ii) respond promptly to inquiries from the Mexican FCC in connection with such filings, including providing any supplemental information that may be requested by the Mexican FCC, and (iii) provide to the other party copies of any filings made under the Mexican Competition Law at the time they are filed with the Mexican FCC.
(f) Notwithstanding anything in this Agreement to the contrary, Xxxxxxx and the Purchasers acknowledge and agree that Xxxxxxx and the Purchasers bear the sole responsibility to obtain any approvals required under the Mexican Competition Law. Xxxxxxx and the Purchasers further acknowledge and agree that neither the absence of such approvals nor any action taken or required by the Mexican FCC or any other Governmental Authority in Mexico shall:
(i) reduce the amount of the Purchase Price; or
(ii) prevent or delay the Closing of the transactions contemplated herein, except that, in the case of an injunction or other legal restraint issued after the date hereof by a Governmental Authority preventing consummation of those transactions (or portions of transactions) with respect substantive effects in Mexico (the “Prevented Mexican Transactions”), (A) Xxxxxxx (on behalf of the Purchasers) shall nevertheless pay the full amount of the Purchase Price to Regulatory Approvalsthe Sellers at the Closing in accordance with Section 3.1, any immaterial administrative (B) the Prevented Mexican Transactions shall be consummated upon the expiration of such injunction or ministerial obligations other legal restraint or as soon as practicable thereafter and (C) the Closing Working Capital shall be determined in accordance with the terms of Parent or any Parent Subsidiarythis Agreement as if the Prevented Mexican Transactions had been consummated at the Closing.
Appears in 3 contracts
Samples: Supply Agreement (Marconi Corp PLC), Supply Agreement (Marconi Corp PLC), Supply Agreement (Telent PLC)
Consents and Approvals. (a) Subject to the terms and conditions of this Agreement, each of Parent and GFI 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 Law to consummate the Transactions, including, preparing and filing Except as promptly as practicable all documentation to effect all necessary filings, notices, petitions, statements, registrations, submissions of information, applications and other documents necessary and appropriate to consummate the Transactions. In furtherance and not in limitation of the foregoing, each of Parent and GFI shall (i) make or cause to be made the filings required of such party under the Foreign Competition Laws (including those set forth in Section 3.4(b)(i) 5.4 of the Parent Disclosure Letter) Schedule, no Consents of, or filings or registrations with, any Governmental Entity or with respect to any third Person are necessary in connection with the Transactions as promptly as practicable after the date execution and delivery by Parent or Merger Sub of this Agreement; (ii) take all actions to obtain and make Agreement or the Regulatory Approvals set forth in Section 3.4(b)(ii) consummation by Parent or Merger Sub of the transactions contemplated hereby, including the Merger and the Parent Disclosure Letter as promptly as practicable after Stock Issuance, except for (a) any notices required to be filed under the date of this Agreement; HSR Act, (iiib) comply at the earliest practicable date Consents from, or registrations, declarations, notices or filings made to or with any request under the Federal FCC, or any Governmental Entity (including under any Foreign Competition LawsState Regulators) and local cable franchise authorities) (other than with respect to securities, antitrust, competition, trade regulation or similar laws), in respect of such filings or such Transaction; and (iv) act in good faith and reasonably cooperate with the other Party each case as may be required in connection with this Agreement, the Merger, the Parent Stock Issuance or the other transactions contemplated by this Agreement and are required with respect to mergers, business combinations or changes in control of telecommunications companies generally, (c) the filing with the SEC of the Proxy Statement/Prospectus as well as any other filings required to be made with the SEC pursuant to the Securities Act or the Exchange Act, (d) the filing of the Certificate of Merger and related certificates with the Delaware Secretary pursuant to the DGCL, (e) such filings and in connection with resolving any investigation or other inquiry of any such agency or other Governmental Entity under any of the HSR Act, the Foreign Competition Laws, the Xxxxxxx Act, the Xxxxxxx Act and any other Laws or Orders that are designed to prohibit, restrict or regulate actions having the purpose or effect of monopolization or restraint of trade (collectively, the “Antitrust Laws”) with respect to any such filing or any such Transaction. To the extent not prohibited by applicable Law, the Parties shall use reasonable best efforts to furnish to each other all information approvals as may be required for any application or other filing to be made pursuant to any applicable Law under the state blue sky or securities Laws or various states in connection with the Transactions. Each Party shall give each other reasonable prior notice of any substantive communication withParent Stock Issuance, and any proposed understanding, undertaking or agreement with, any Governmental Entity regarding any (f) such filings or any such Transaction. No Party shall independently participate in any meeting, or engage in any substantive conversation, with any Governmental Entity in respect of any such filings, investigation or other inquiry without giving the other Parties prior notice of the meeting or conversation and, unless prohibited by such any Governmental Entity, the opportunity to attend or participate. The Parties contemplate that as a general matter both Parent and GFI shall be represented at in-person meetings with any Governmental Entity. The Parties will consult and cooperate with one another in connection with any analyses, appearances, presentations, memoranda, briefs, arguments, opinions and proposals made or submitted by or on behalf of any Party in connection with proceedings under or relating to the HSR Act, the Foreign Competition Laws or other Antitrust Laws.
(b) Without limiting the general obligations of Parent and GFI under Section 5.3(a) (Consents and Approvals), each of Parent and GFI shall use its reasonable best efforts to resolve such objections, if any, as may be asserted by any Governmental Entity with respect to the Transactions under the Antitrust Laws. In connection therewith and subject to Section 5.3(a) (Consents and Approvals), if any Proceeding is instituted (or threatened to be instituted) challenging any of the Transactions as inconsistent with or violative of any Antitrust Law, each of Parent and GFI shall cooperate and use its reasonable best efforts vigorously to contest and resist (by negotiation, litigation or otherwise) any such Proceeding and to have vacated, lifted, reversed or overturned any Order whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents, delays or restricts consummation of the Transactions, unless Parent reasonably and in good faith determines that litigation is not in its best interests. Notwithstanding the foregoing or any other provision of this Agreement, nothing in this Section 5.3(b) shall limit the right of a Party to terminate this Agreement pursuant to Section 7.1 (Termination), so long as such Party has until that time complied in all material respects with its obligations under this Section 5.3. Each of Parent and GFI shall use its reasonable best efforts to take such action as may be required to cause the expiration shares of the notice periods or Parent Stock to obtain the necessary approvals under the HSR Act, the Foreign Competition Laws or any other Antitrust Laws with respect to the Transactions as promptly as possible after the execution of this Agreement.
(c) Notwithstanding anything to the contrary in this Agreement, nothing in be issued pursuant this Agreement shall to be deemed to require Parent or any Parent Subsidiary to agree to or take any action that would result approved for listing on the NASDAQ Global Select Market and (g) except as set forth in any Burdensome Condition. None of GFI or any GFI Subsidiary shall agree to or take any action that would result in any Burdensome Condition without the prior written consent of Parent. For purposes of this Agreement, a “Burdensome Condition” shall mean making proposals, executing or carrying out agreements (including consent decrees) or submitting to Laws (i) providing for the transfer, license, sale or other disposition or holding separate (through the establishment of a trust or otherwise) of any assets or categories of assets of Parent, GFI or any of their respective Subsidiaries or the holding separate (through the establishment of a trust or otherwiseSection 5.4(g) of the Securities of any Parent Subsidiary Disclosure Schedule, other consents or GFI Subsidiary approvals of, or (ii) imposing filings or seeking to impose any limitation on the ability of Parentregistrations with, GFI Governmental Entities or any of their respective Subsidiaries to conduct their respective businesses (including with respect to market practices and structure) or own such assets or to acquire, hold or exercise full rights of ownership of the business of GFIthird parties, the GFI Subsidiaries, Parent failure of which to be obtained or the Parent Subsidiaries, in each case other than (x) with respect to Antitrust Laws, any such proposals, executing or carrying out agreements (including consent decrees) or submitting to Laws that made would not impair be reasonably expected to result in, individually or in any material respect the expected benefits of aggregate, a Parent and the Parent Subsidiaries from or relating to the Transactions, or (y) with respect to Regulatory Approvals, any immaterial administrative or ministerial obligations of Parent or any Parent SubsidiaryMaterial Adverse Effect.
Appears in 3 contracts
Samples: Merger Agreement (Fairpoint Communications Inc), Merger Agreement (Consolidated Communications Holdings, Inc.), Merger Agreement
Consents and Approvals. (a) Subject to the terms and conditions of this Agreement, each of Parent and GFI the Company 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 Law to consummate the Transactions, includingincluding obtaining as promptly as reasonably practicable any necessary consents, preparing approvals, waivers, licenses, permits, franchises, certificates, registrations, variances, exemptions and filing authorizations of, and actions or nonactions by, and making as promptly as practicable all documentation to effect all necessary filings, noticessubmissions and declarations with, petitionsany Governmental Entity, statements, registrations, submissions Self-Regulatory Organization or other third party necessary in connection with the consummation of information, applications and other documents necessary and appropriate to consummate the Transactions. In furtherance and not in limitation of the foregoing, each of Parent and GFI the Company shall (i) make or cause to be made the filings filings, submissions and declarations required of such party under the HSR Act and the Foreign Competition Laws (including those set forth in Section 3.4(b)(i) of the Parent Disclosure Letter) with respect to the Transactions as promptly as practicable after the date of this Agreement; Agreement (ii) take all actions to obtain and make in any event, in the Regulatory Approvals set forth in Section 3.4(b)(ii) case of the Parent Disclosure Letter as promptly as practicable HSR Act, within 10 Business Days after the date of this Agreement; ), (iiiii) comply at the earliest practicable date with any request under the HSR Act for additional information, documents or other materials received by such party from the FTC, the Antitrust Division of the U.S. Department of Justice (the “Antitrust Division”) or by any other Governmental Entity (including under any Foreign Competition Laws) in respect of such filings filings, submissions and declarations or such Transaction; the Transactions and (iviii) act in good faith and reasonably cooperate with the other Party in connection with any such filings filings, submissions and declarations and in connection with resolving resolving, and use reasonable best efforts to resolve, any investigation or other inquiry of any such agency or other Governmental Entity under any of the HSR Act, the Foreign Competition Laws, the Xxxxxxx Act, the Xxxxxxx Act and any other Laws or Orders that are designed to prohibit, restrict or regulate actions having the purpose or effect of monopolization or restraint of trade (collectively, the “Antitrust Laws”) with respect to any such filing filings, submissions and declarations or any such Transactionof the Transactions. In addition, from the date hereof, if the Transactions are subject to ISRA, the Company shall undertake all steps necessary to comply with the requirements of ISRA imposed on account of the execution of this Agreement and consummation of the Transactions, including making or causing to be made any filings required thereunder within five days of the date hereof. To the extent not prohibited by applicable Law, the Parties shall use reasonable best efforts Company, on the one hand, will provide Parent, and Parent, on the other hand, will provide the Company, with copies of any material correspondence, filing or communication between such Party or any of its Representatives, on the one hand, and any Governmental Entity or members of their respective staffs, on the other hand, with respect to furnish to each other all information required for any application or other filing to be made pursuant to any applicable Law in connection with this Agreement and the Transactions. Each Prior to submitting or making any such correspondence, filing or communication to any such Governmental Entity or members of their respective staffs, the Parties shall, to the extent permitted by applicable Law, first provide the other Party shall with a copy of such correspondence, filing or communication in draft form and give each such other Party a reasonable prior notice of any substantive communication withopportunity to discuss its content before it is submitted or filed with the relevant Governmental Entities, and any proposed understanding, undertaking or agreement with, any Governmental Entity regarding any such filings or any such Transaction. No Party shall independently participate in any meeting, or engage in any substantive conversation, with any Governmental Entity in respect consider and take account of any such filings, investigation or other inquiry without giving all reasonable comments timely made by the other Parties prior notice Party with respect thereto. To the extent permitted by applicable Law, each of the meeting or conversation and, unless prohibited by such any Governmental Entity, Parties shall ensure that the other Party is given the opportunity to attend or participate. The Parties contemplate that as a general matter both Parent and GFI shall be represented at in-person any meetings with any Governmental Entity. The Parties will consult and cooperate with one another in connection with any analyses, appearances, presentations, memoranda, briefs, arguments, opinions and proposals made or submitted by or on behalf of any Party in connection with proceedings under or relating to the HSR Act, the Foreign Competition Laws or other Antitrust Laws.
(b) Without limiting the general obligations of Parent and GFI under Section 5.3(a) (Consents and Approvals), each of Parent and GFI shall use its reasonable best efforts to resolve such objections, if any, as may be asserted by appearances before any Governmental Entity with respect to the Transactions under Transactions. Neither Party shall agree to any voluntary extension of any statutory deadline or waiting period or to any voluntary delay of the Antitrust Laws. In connection therewith and subject to Section 5.3(a) (Consents and Approvals), if any Proceeding is instituted (or threatened to be instituted) challenging any consummation of the Transactions as inconsistent with or violative at the behest of any Governmental Entity (including the Antitrust Law, each of Parent and GFI shall cooperate and use its reasonable best efforts vigorously to contest and resist (by negotiation, litigation or otherwiseDivision) any such Proceeding and to have vacated, lifted, reversed or overturned any Order whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents, delays or restricts consummation of the Transactions, unless Parent reasonably and in good faith determines that litigation is not in its best interests. Notwithstanding the foregoing or any other provision of this Agreement, nothing in this Section 5.3(b) shall limit the right of a Party to terminate this Agreement pursuant to Section 7.1 (Termination), so long as such Party has until that time complied in all material respects with its obligations under this Section 5.3. Each of Parent and GFI shall use its reasonable best efforts to take such action as may be required to cause the expiration of the notice periods or to obtain the necessary approvals under the HSR Act, the Foreign Competition Laws or any other Antitrust Laws with respect to the Transactions as promptly as possible after the execution of this Agreement.
(c) Notwithstanding anything to the contrary in this Agreement, nothing in this Agreement shall be deemed to require Parent or any Parent Subsidiary to agree to or take any action that would result in any Burdensome Condition. None of GFI or any GFI Subsidiary shall agree to or take any action that would result in any Burdensome Condition without the prior written consent of Parent. the other Party (such consent not to be unreasonably withheld, conditioned or delayed).
(b) For purposes of this AgreementSection 7.4, a “Burdensome Conditionreasonable best efforts” shall mean making proposalsinclude, executing or carrying out agreements (including consent decrees) or submitting to Laws solely at Parent’s election, (i) providing for vigorously defending, contesting and objecting to any Proceedings challenging this Agreement or the transferTransactions or that would otherwise prevent or materially impede, licenseinterfere with, sale hinder or delay the consummation of the Transactions, (ii) executing settlements, undertakings, consent decrees, stipulations or other disposition or agreements, (iii) selling, divesting, holding separate (through the establishment of a trust or otherwise) of otherwise conveying, or agreeing to sell, divest, hold separate or otherwise convey, any particular assets or categories of assets or businesses of Parent, GFI any Parent Subsidiary, the Company or any of their respective Subsidiaries Company Subsidiary, (iv) terminating, relinquishing, modifying or the holding separate (through the establishment of a trust waiving, or otherwise) of the Securities of any Parent Subsidiary agreeing to terminate, relinquish, modify or GFI Subsidiary waive, existing relationships, ventures, contractual rights, obligations or (ii) imposing or seeking to impose any limitation on the ability other arrangements of Parent, GFI any Parent Subsidiary, the Company or any Company Subsidiary, (v) creating, or agreeing to create, any relationships, ventures, contractual rights, obligations or other arrangements of their respective Subsidiaries Parent, any Parent Subsidiary, the Company or any Company Subsidiary, (vi) taking or committing to conduct their respective businesses take actions that after the Closing Date would limit the freedom of action of Parent or its Affiliates (including with respect to market practices and structure) or own such assets or to acquire, hold or exercise full rights of ownership of the business of GFI, the GFI Subsidiaries, Parent or the Parent Subsidiaries, in each case other than (xSurviving Corporation) with respect to, or its or their ability to Antitrust Lawsretain, one or more of its or their businesses, product lines or assets and (vii) taking any other action as may be required by a Governmental Entity in order to (A) obtain all necessary consents, approvals, waivers, licenses, permits, franchises, certificates, registrations, variances, exemptions and authorizations of, and actions and non-actions by, any such proposalsGovernmental Entity or other third party as promptly as reasonably possible, executing or carrying out agreements (including consent decrees) or submitting to Laws that would not impair but in any material respect event before the expected benefits of Parent and the Parent Subsidiaries from or relating to the TransactionsOutside Date, or (yB) with respect to Regulatory Approvalseffect the expiration or termination of any waiting period, any immaterial administrative which would otherwise have the effect of preventing or ministerial obligations of Parent or delaying the Closing beyond the Outside Date; provided, however, that no action contemplated by clauses (i) through (vii) may be taken if such action would bind Parent, any Parent Subsidiary, the Company or any Company Subsidiary if the Closing does not occur.
Appears in 3 contracts
Samples: Agreement and Plan of Merger (Progenics Pharmaceuticals Inc), Agreement and Plan of Merger (Lantheus Holdings, Inc.), Merger Agreement (Lantheus Holdings, Inc.)
Consents and Approvals. (a) Subject to the terms C&W and conditions of this Agreement, each of Parent and GFI 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 Law to consummate the Transactions, including, preparing and filing as promptly as practicable all documentation to effect all necessary filings, notices, petitions, statements, registrations, submissions of information, applications and other documents necessary and appropriate to consummate the Transactions. In furtherance and not in limitation of the foregoing, each of Parent and GFI Buyer shall (i) make or cause promptly prepare and file all necessary documentation, (ii) effect all necessary applications, notices, petitions and filings and execute all agreements and documents, (iii) use all reasonable efforts to be made obtain all necessary permits, consents, approvals and authorizations of all governmental bodies and (iv) use all reasonable efforts to obtain all necessary permits, consents, approvals and authorizations of all other parties, in the filings required case of such party under C&W, as specified on Schedule 3.4 and, in the Foreign Competition Laws case of Buyer, as specified on Schedule 4.4 (including those set forth in Section 3.4(b)(i) without limitation any approval required from the shareholders of Buyer and the holders of the Parent Disclosure Letter) debt of the Buyer), together with any other approvals or consents identified by the parties after the signing of this Agreement as being required in order, respectively, for C&W to sell, and for Buyer to acquire, the CIBBV Shares, and, respectively, for Buyer to issue to C&W, and for C&W to acquire, the Buyer Shares. Each of Buyer and C&W shall provide reasonable assistance to the other in order to obtain the consents and approvals referred to herein. Each of C&W and Buyer shall have the right to review and be consulted in advance as to all characterizations of the information relating to the transactions contemplated by this Agreement which appear in any filing made in connection with the transactions contemplated hereby. The parties hereto agree that they will consult with each other with respect to the Transactions as promptly as practicable after the date obtaining of this Agreement; (ii) take all actions to obtain such necessary permits, consents, approvals and make the Regulatory Approvals set forth in Section 3.4(b)(ii) authorizations of the Parent Disclosure Letter as promptly as practicable after the date of this Agreement; (iii) comply at the earliest practicable date with any request under any Governmental Entity (including under any Foreign Competition Laws) in respect of such filings or such Transaction; all third parties and (iv) act in good faith and reasonably cooperate with the other Party in connection with any such filings and in connection with resolving any investigation or other inquiry of any such agency or other Governmental Entity under any of the HSR Act, the Foreign Competition Laws, the Xxxxxxx Act, the Xxxxxxx Act and any other Laws or Orders that are designed to prohibit, restrict or regulate actions having the purpose or effect of monopolization or restraint of trade (collectively, the “Antitrust Laws”) with respect to any such filing or any such Transaction. To the extent not prohibited by applicable Law, the Parties shall use reasonable best efforts to furnish to each other all information required for any application or other filing to be made pursuant to any applicable Law in connection with the Transactions. Each Party shall give each other reasonable prior notice of any substantive communication with, and any proposed understanding, undertaking or agreement with, any Governmental Entity regarding any such filings or any such Transaction. No Party shall independently participate in any meeting, or engage in any substantive conversation, with any Governmental Entity in respect of any such filings, investigation or other inquiry without giving the other Parties prior notice of the meeting or conversation and, unless prohibited by such any Governmental Entity, the opportunity to attend or participate. The Parties contemplate that as a general matter both Parent and GFI shall be represented at in-person meetings with any Governmental Entity. The Parties will consult and cooperate with one another in connection with any analyses, appearances, presentations, memoranda, briefs, arguments, opinions and proposals made or submitted by or on behalf of any Party in connection with proceedings under or relating to the HSR Act, the Foreign Competition Laws or other Antitrust Lawsgovernmental bodies.
(b) Without limiting The parties hereto shall consult with each other prior to proposing or entering into any stipulation or agreement with any foreign or United States governmental authority or agency or any third party in connection with any foreign or United States governmental consents and approvals legally required for the general obligations of Parent and GFI under Section 5.3(a) (Consents and Approvals), each of Parent and GFI shall use its reasonable best efforts to resolve such objections, if any, as may be asserted by any Governmental Entity with respect to the Transactions under the Antitrust Laws. In connection therewith and subject to Section 5.3(a) (Consents and Approvals), if any Proceeding is instituted (or threatened to be instituted) challenging any of the Transactions as inconsistent with or violative of any Antitrust Law, each of Parent and GFI shall cooperate and use its reasonable best efforts vigorously to contest and resist (by negotiation, litigation or otherwise) any such Proceeding and to have vacated, lifted, reversed or overturned any Order whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents, delays or restricts consummation of the Transactions, unless Parent reasonably transactions contemplated hereby and in good faith determines that litigation is shall not in its best interests. Notwithstanding the foregoing propose or enter into any other provision of this Agreement, nothing in this Section 5.3(b) shall limit the right of a Party to terminate this Agreement pursuant to Section 7.1 (Termination), so long as such Party has until that time complied in all material respects with its obligations under this Section 5.3. Each of Parent and GFI shall use its reasonable best efforts to take such action as may be required to cause the expiration of the notice periods stipulation or to obtain the necessary approvals under the HSR Act, the Foreign Competition Laws or any other Antitrust Laws with respect to the Transactions as promptly as possible after the execution of this Agreement.
(c) Notwithstanding anything to the contrary in this Agreement, nothing in this Agreement shall be deemed to require Parent or any Parent Subsidiary to agree to or take any action that would result in any Burdensome Condition. None of GFI or any GFI Subsidiary shall agree to or take any action that would result in any Burdensome Condition agreement without the other party's prior written consent, which consent of Parent. For purposes of this Agreement, a “Burdensome Condition” shall mean making proposals, executing or carrying out agreements (including consent decrees) or submitting to Laws (i) providing for the transfer, license, sale or other disposition or holding separate (through the establishment of a trust or otherwise) of any assets or categories of assets of Parent, GFI or any of their respective Subsidiaries or the holding separate (through the establishment of a trust or otherwise) of the Securities of any Parent Subsidiary or GFI Subsidiary or (ii) imposing or seeking to impose any limitation on the ability of Parent, GFI or any of their respective Subsidiaries to conduct their respective businesses (including with respect to market practices and structure) or own such assets or to acquire, hold or exercise full rights of ownership of the business of GFI, the GFI Subsidiaries, Parent or the Parent Subsidiaries, in each case other than (x) with respect to Antitrust Laws, any such proposals, executing or carrying out agreements (including consent decrees) or submitting to Laws that would not impair in any material respect the expected benefits of Parent and the Parent Subsidiaries from or relating to the Transactions, or (y) with respect to Regulatory Approvals, any immaterial administrative or ministerial obligations of Parent or any Parent Subsidiarybe unreasonably withheld.
Appears in 3 contracts
Samples: Stock Purchase Agreement (News America Inc), Stock Purchase Agreement (Cable & Wireless PLC), Stock Purchase Agreement (PLD Telekom Inc)
Consents and Approvals. (a) Subject to Upon the terms and subject to the conditions of set forth in this Agreement, each of Parent and GFI will the Parties shall use its reasonable best efforts Commercially Reasonable Efforts (unless, with respect to any action, another standard is set forth herein) to take, or cause to be taken, all actions actions, and to do, or cause to be done, and to assist and cooperate with the other Parties in doing, all things necessary, proper or advisable under applicable Law or pursuant to any contract or agreement to consummate and make effective, as promptly as practicable, the Transactions, including using Commercially Reasonable Efforts (i) to cause the conditions to Closing set forth in Article VII to be satisfied, (ii) to obtain all necessary actions or nonactions, waiting period expirations or terminations, waivers, consents, authorizations and approvals from Governmental Entities or other Persons necessary in connection with the consummation of the Transactions, including, preparing and filing as promptly as practicable all documentation with respect to effect all necessary filingsthe Vornado Parties, notices, petitions, statements, registrations, submissions of information, applications and other documents necessary and appropriate to consummate the Transactions. In furtherance and not in limitation of the foregoing, each of Parent and GFI shall (i) make or cause to be made the filings required of such party under the Foreign Competition Laws (including those set forth in consents listed on Section 3.4(b)(i3.5(a) of the Parent Vornado Disclosure Letter and with respect to the JBG Parties, the consents listed on Section 4.3 of the JBG Disclosure Letter, and the making of all necessary registrations and filings (including filings with Governmental Entities, if any) to obtain an approval, waiting period expirations or terminations or waiver from, or to avoid an action or proceeding by, any Governmental Entity or other Persons necessary in connection with the consummation of the Transactions, (iii) to defend any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the Transactions, including seeking to have any stay or temporary restraining order entered by any court or other Governmental Entity vacated or reversed, and avoid each and every impediment under any antitrust, merger control, competition or trade regulation Law that may be asserted by any Governmental Entity with respect to the Transactions so as promptly to enable the Closing to occur as practicable after the date of this Agreement; (ii) take all actions to obtain and make the Regulatory Approvals set forth in Section 3.4(b)(ii) of the Parent Disclosure Letter soon as promptly as practicable after the date of this Agreement; (iii) comply at the earliest practicable date with any request under any Governmental Entity (including under any Foreign Competition Laws) in respect of such filings or such Transaction; reasonably possible, and (iv) act in good faith to execute and reasonably cooperate with deliver any additional instruments necessary to consummate the Transactions and to fully carry out the purposes of this Agreement. Each Group shall keep the other Party Group reasonably apprised of the status of the matters related to the completion of the Transactions, including with respect to obtaining the Required Consents, and shall afford the other Group a reasonable opportunity to participate in discussions with lenders, Joint Venture Partners, ground lessors and other third parties with respect to the Required Consents.
(b) In connection with and without limiting the foregoing, each Party shall give (or shall cause to be given) any such filings notices to any Person, and in connection with resolving the Parties shall use, and cause each of their respective Affiliates to use, Commercially Reasonable Efforts to obtain any investigation consents, terminations, waivers, authorizations and approvals not covered by Section 5.2(a) that are proper or other inquiry of any such agency or other Governmental Entity under any advisable to consummate the Transactions.
(c) Any material notices pursuant to Sections 5.2(a) and (b) shall be subject to the review and consent of the HSR Actother Group, the Foreign Competition Lawssuch consent not to be unreasonably withheld, the Xxxxxxx Act, the Xxxxxxx Act and any other Laws delayed or Orders that are designed to prohibit, restrict or regulate actions having the purpose or effect of monopolization or restraint of trade (collectively, the “Antitrust Laws”) conditioned. Any material notice with respect to any waiver, consent, authorization or approval shall be subject to the review and consent of the other Group, such filing consent not to be unreasonably withheld, delayed or conditioned.
(d) The members of each Group will furnish to the other such necessary information and reasonable assistance as the other Group may request in connection with the preparation of any required governmental filings or submissions and will cooperate in responding to any inquiry from a Governmental Entity, including promptly informing the other Group of such Transactioninquiry, consulting in advance before making any presentations or submissions to a Governmental Entity, and supplying each other with copies of all material correspondence, filings, productions or communications between either Group and any Governmental Entity with respect to this Agreement. To the extent not prohibited by applicable Lawreasonably practicable, the other Group or its Representatives shall have the right to review in advance and each of the Parties shall use reasonable best efforts will consult the other Group on, all the information relating to furnish to the other Group and each other all information required for of its Affiliates that appears in any application filing made with, or other filing to be made pursuant to written materials submitted to, any applicable Law Governmental Entity in connection with the Transactions, except that confidential competitively sensitive business information may be redacted from such exchanges. Each The Parties may, as they deem advisable and necessary, designate any commercially sensitive materials provided to the other Group under this Section 5.2 as “outside counsel only”. Such materials and the information contained therein shall be given only to outside counsel of the recipient and will not be disclosed by such outside counsel to employees, officers, or directors of the recipient without the advance written consent of the Party providing such materials. To the extent reasonably practicable, neither the Vornado Parties nor the JBG Parties shall, nor shall give each other reasonable prior notice of any substantive communication withthey permit their respective Representatives to, and any proposed understanding, undertaking or agreement with, any Governmental Entity regarding any such filings or any such Transaction. No Party shall participate independently participate in any meeting, meeting or engage in any substantive conversation, conversation with any Governmental Entity in respect of any such filingsfiling, investigation or other inquiry relating to the Transactions without giving the other Parties Group prior notice of the such meeting or conversation and, unless prohibited to the extent permitted by such any applicable Law and the Governmental Entity, without giving the other Group the opportunity to attend or participate. The Parties contemplate that as a general matter both Parent and GFI shall be represented at in-person meetings participate (whether by telephone or in person) in any such meeting with any such Governmental Entity. The Parties Subject to applicable law, each Party will consult and cooperate with one another the other Group in connection with any analyses, appearances, presentations, memoranda, briefs, arguments, opinions and proposals made or submitted by or on behalf of to any Party in connection with proceedings under or relating to Governmental Entity regarding the HSR Act, the Foreign Competition Laws or other Antitrust LawsTransactions.
(be) Without limiting The Vornado Parties and the general obligations of Parent and GFI under Section 5.3(aJBG Parties agree: (i) (Consents and Approvals)to make, each of Parent and GFI shall use its reasonable best efforts or cause their ultimate parent entities as that term is defined in the HSR Act to resolve such objectionsmake, if any, as may be asserted by any Governmental Entity with respect to the Transactions under the Antitrust Laws. In connection therewith and subject to Section 5.3(a) (Consents and Approvals), if any Proceeding is instituted (or threatened cause to be instituted) challenging any made, appropriate filings of the Transactions as inconsistent with or violative of any Antitrust Law, each of Parent Notification and GFI shall cooperate and use its reasonable best efforts vigorously to contest and resist (by negotiation, litigation or otherwise) any such Proceeding and to have vacated, lifted, reversed or overturned any Order whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents, delays or restricts consummation of the Transactions, unless Parent reasonably and in good faith determines that litigation is not in its best interests. Notwithstanding the foregoing or any other provision of this Agreement, nothing in this Section 5.3(b) shall limit the right of a Party to terminate this Agreement pursuant to Section 7.1 (Termination), so long as such Party has until that time complied in all material respects with its obligations under this Section 5.3. Each of Parent and GFI shall use its reasonable best efforts to take such action as may be required to cause the expiration of the notice periods or to obtain the necessary approvals Report Form under the HSR ActAct if applicable, the Foreign Competition Laws or any other Antitrust Laws with respect to the Transactions as promptly as possible after the execution of this Agreement.
(c) Notwithstanding anything to the contrary in this Agreement, nothing in this Agreement shall be deemed to require Parent or any Parent Subsidiary to agree to or take any action that would result in any Burdensome Condition. None of GFI or any GFI Subsidiary shall agree to or take any action that would result in any Burdensome Condition without the prior written consent of Parent. For purposes of this Agreement, a “Burdensome Condition” shall mean making proposals, executing or carrying out agreements (including consent decrees) or submitting to Laws (i) providing for the transfer, license, sale or other disposition or holding separate (through the establishment of a trust or otherwise) of any assets or categories of assets of Parent, GFI or any of their respective Subsidiaries or the holding separate (through the establishment of a trust or otherwise) of the Securities of any Parent Subsidiary or GFI Subsidiary or practicable; and (ii) imposing to take all other actions reasonably necessary to cause the expiration or seeking termination of the applicable waiting periods under the HSR Act as soon as practicable. The responsibility for the payment of any filings fees in connection with any filings under the HSR Act shall be apportioned between the JBG Parties and the Vornado Parties in proportion to impose any limitation the relative aggregate Asset Values of their Included Assets on the ability of Parent, GFI or any of their respective Subsidiaries to conduct their respective businesses (including with respect to market practices and structure) or own such assets or to acquire, hold or exercise full rights of ownership of the business of GFI, the GFI Subsidiaries, Parent or the Parent Subsidiariesdate hereof, in each case other than (x) with respect to Antitrust Lawscase, including any such proposals, executing or carrying out agreements (including consent decrees) or submitting to Laws that would not impair in any material respect the expected benefits of Parent and the Parent Subsidiaries from or relating to the Transactions, or (y) with respect to Regulatory Approvals, any immaterial administrative or ministerial obligations of Parent or any Parent SubsidiaryKickout Interests.
Appears in 2 contracts
Samples: Master Transaction Agreement (JBG SMITH Properties), Master Transaction Agreement (Vornado Realty Lp)
Consents and Approvals. (a) Subject to Upon the terms and subject to the conditions of set forth in this Agreement, each of Parent the Company and GFI will PECO shall and shall cause their respective Subsidiaries, to use its reasonable best efforts to take, or cause to be taken, all actions actions, and to do, or cause to be done, and to assist and cooperate with the other Party in doing, all things necessary, proper or advisable under applicable Law or pursuant to any Contract to consummate the Transactionsand make effective, including, preparing and filing as promptly as practicable all documentation to effect all necessary filingspracticable, noticesthe Mergers and the other Transactions, petitions, statements, registrations, submissions of information, applications and other documents necessary and appropriate to consummate the Transactions. In furtherance and not in limitation of the foregoing, each of Parent and GFI shall including (i) make or the taking of all actions necessary to cause the conditions to be made the filings required of such party under the Foreign Competition Laws (including those Closing set forth in Section 3.4(b)(i) of the Parent Disclosure Letter) with respect Article VII to the Transactions as promptly as practicable after the date of this Agreement; be satisfied, (ii) take the obtaining of all necessary actions or nonactions, waivers, consents and approvals from Governmental Entities or other Persons necessary in connection with the consummation of the Mergers and the other Transactions and the making of all necessary registrations and filings (including filings with Governmental Entities, if any) and the taking of all reasonable steps as may be necessary to obtain and make an approval or waiver from, or to avoid an action or proceeding by, any Governmental Entity or other Persons necessary in connection with the Regulatory Approvals set forth in Section 3.4(b)(ii) consummation of the Parent Disclosure Letter as promptly as practicable after Mergers and the date of this Agreement; other Transactions, (iii) comply at the earliest practicable date with defending of any request under any Governmental Entity (including under any Foreign Competition Laws) in respect Proceedings, whether judicial or administrative, challenging this Agreement or the consummation of such filings the Mergers or such Transaction; and (iv) act in good faith and reasonably cooperate with the other Party in connection with Transactions, including seeking to have any such filings and in connection with resolving any investigation stay or temporary restraining order or other inquiry of Judgment entered by any such agency court or other Governmental Entity vacated or reversed, the avoidance of each and every impediment under any of the HSR Actantitrust, the Foreign Competition Lawsmerger control, the Xxxxxxx Act, the Xxxxxxx Act and any other Laws competition or Orders trade regulation Law that are designed to prohibit, restrict or regulate actions having the purpose or effect of monopolization or restraint of trade (collectively, the “Antitrust Laws”) with respect to any such filing or any such Transaction. To the extent not prohibited by applicable Law, the Parties shall use reasonable best efforts to furnish to each other all information required for any application or other filing to be made pursuant to any applicable Law in connection with the Transactions. Each Party shall give each other reasonable prior notice of any substantive communication with, and any proposed understanding, undertaking or agreement with, any Governmental Entity regarding any such filings or any such Transaction. No Party shall independently participate in any meeting, or engage in any substantive conversation, with any Governmental Entity in respect of any such filings, investigation or other inquiry without giving the other Parties prior notice of the meeting or conversation and, unless prohibited by such any Governmental Entity, the opportunity to attend or participate. The Parties contemplate that as a general matter both Parent and GFI shall be represented at in-person meetings with any Governmental Entity. The Parties will consult and cooperate with one another in connection with any analyses, appearances, presentations, memoranda, briefs, arguments, opinions and proposals made or submitted by or on behalf of any Party in connection with proceedings under or relating to the HSR Act, the Foreign Competition Laws or other Antitrust Laws.
(b) Without limiting the general obligations of Parent and GFI under Section 5.3(a) (Consents and Approvals), each of Parent and GFI shall use its reasonable best efforts to resolve such objections, if any, as may be asserted by any Governmental Entity with respect to the Transactions under Mergers so as to enable the Antitrust Laws. In connection therewith Closing to occur as soon as reasonably possible, and subject to Section 5.3(a(iv) (Consents the execution and Approvals), if any Proceeding is instituted (or threatened to be instituted) challenging any of the Transactions as inconsistent with or violative delivery of any Antitrust Law, each of Parent additional instruments necessary to consummate the Mergers and GFI shall cooperate and use its reasonable best efforts vigorously to contest and resist (by negotiation, litigation or otherwise) any such Proceeding the other Transactions and to have vacated, lifted, reversed or overturned any Order whether temporary, preliminary or permanentfully carry out the purposes of this Agreement; provided, that is in effect and that prohibits, prevents, delays or restricts consummation of the Transactions, unless Parent reasonably and in good faith determines that litigation is not in its best interests. Notwithstanding notwithstanding the foregoing or any other provision provisions of this Agreement, nothing contained in this Agreement (including this Section 5.3(b6.2(a)) shall limit require or obligate PECO or any of its Affiliates to, and the right Company shall not, without the prior written consent of PECO, in each case in connection with obtaining any approval or consent from any Governmental Entity with respect to the Mergers, (A) commence or defend any litigation with any Governmental Entity or private party, (B) pay or commit to pay any material amount of cash or other consideration, or incur or commit to incur any material liability or other obligation, including any agreement to delay the Closing, in connection with obtaining any authorization, consent, Judgment, registration or approval of a Party Governmental Entity or (C) agree or otherwise be required to terminate this Agreement pursuant sell, divest, dispose of, license, hold separate, or take or commit to Section 7.1 take any action that limits in any respect its freedom of action with respect to, or its ability to retain, any businesses, products, rights, services, licenses, or assets of PECO, the Company or any of their respective Subsidiaries, or any interest or interests therein.
(Termination)b) In connection with and without limiting the foregoing, so long as such Party has until that time complied in all material respects with its obligations under this Section 5.3. Each each of Parent PECO and GFI the Company shall use its give (or shall cause to be given) any notices to any Person, and each of PECO and the Company shall use, and cause each of their respective Affiliates to use, reasonable best efforts to take such action as may be required obtain any Consents from any Person not covered by Section 6.2(a) that are necessary, proper or advisable to cause consummate the expiration Mergers. Each of the notice periods Parties will furnish to the other such necessary information and reasonable assistance as the other Party may request in connection with the preparation of any required Filings and will cooperate in responding to any inquiry from a Governmental Entity, including promptly informing the other Party of such inquiry, consulting in advance before making any presentations or submissions to obtain the necessary approvals under the HSR Acta Governmental Entity, the Foreign Competition Laws and supplying each other with copies of all material correspondence, Filings or communications between either Party and any other Antitrust Laws Governmental Entity with respect to the Transactions as promptly as possible after the execution of this Agreement. To the extent reasonably practicable, the Parties or their respective Representatives shall have the right to review in advance, and each of the Parties will consult the others on, all the information relating to the other and each of their respective Affiliates that appears in any Filing made with, or written materials submitted to, any Governmental Entity in connection with the Mergers and the other Transactions, except that confidential competitively sensitive business information may be redacted from such exchanges. To the extent reasonably practicable, neither the Company nor PECO shall, nor shall they permit their respective Representatives to, participate independently in any meeting or engage in any substantive conversation with any Governmental Entity in respect of any Filing, investigation or other inquiry without giving the other Party prior notice of such Filing, meeting or conversation and, to the extent permitted by applicable Law, without giving the other Party the opportunity to attend or participate (whether by telephone or in person) in any such meeting or conversation with such Governmental Entity.
(c) Notwithstanding anything to the contrary in this Agreement, nothing in this Agreement shall be deemed connection with obtaining any Consent from any Person (other than any Governmental Entity) with respect to require Parent the Mergers, none of the Company or any Parent Subsidiary to agree to or take any action that would result in any Burdensome Condition. None of GFI the Company Subsidiaries, PECO or any GFI Subsidiary shall agree to or take any action that would result in any Burdensome Condition without the prior written consent of Parent. For purposes of this Agreement, a “Burdensome Condition” shall mean making proposals, executing or carrying out agreements (including consent decrees) or submitting to Laws (i) providing for the transfer, license, sale or other disposition or holding separate (through the establishment of a trust or otherwise) of any assets or categories of assets of Parent, GFI its Subsidiaries or any of their respective Subsidiaries Representatives, shall be obligated to pay or commit to pay to such Person whose approval or consent is being solicited any cash or other consideration, make any accommodation or commitment or incur any liability or other obligation to such Person prior to the holding separate (through Company Merger Effective Time, other than processing and consent fees in connection with obtaining any Debt Consents and Amendments. Subject to the establishment of a trust or otherwise) of foregoing sentence, the Securities of any Parent Subsidiary or GFI Subsidiary or (ii) imposing or seeking to impose any limitation on the ability of Parent, GFI or any of their respective Subsidiaries to conduct their respective businesses (including Parties shall cooperate with respect to market practices reasonable accommodations that may be requested or appropriate to obtain such consents.
(d) PECO shall take the lead in coordinating communications with any Governmental Entity, developing strategy for responding to any investigation or other inquiry by any Governmental Entity and structureformulating proposals to any Governmental Entity related to the Consents or any other matter described in this Section 6.2. PECO shall consult in advance with the Company and take Company’s views into account in making any such determination.
(e) or own such assets or to acquireNotwithstanding the foregoing in this Section 6.2, hold or exercise full rights of ownership of the business of GFI, the GFI Subsidiaries, Parent or the Parent Subsidiaries, in each case other than (x) with respect to Antitrust Lawsobtaining the Debt Consents and Amendments, PECO shall take the lead in coordinating communications and negotiating with the various lenders, servicers and agents in connection with obtaining the Debt Consents and Amendments necessary to consummate the Transactions, including entering into amendments and/or modifications to the loan documents in connection therewith; provided, that the effectiveness of any such proposalsamendments and/or modifications relating to any Company Debt Consents and Amendments shall be conditioned upon the consummation of the Mergers. PECO shall keep the Company’s counsel reasonably informed of such negotiations, executing or carrying out agreements (including consent decrees) or submitting to Laws sharing draft copies of all such loan amendments and/or modifications for review by the Company. PECO agrees that would not impair in any material respect the expected benefits of Parent it shall bear all costs, fees and the Parent Subsidiaries from or expenses relating to the TransactionsPECO Debt Consents and Amendments, and the Company agrees that it shall bear all costs, fees and expenses related to obtaining the Company Debt Consents and Amendments. PECO shall use reasonable best efforts (subject to cooperation by the Company) to obtain the Debt Consents and Amendments prior to the Closing Date. The Company shall use reasonable best efforts to cooperate with all customary and reasonable requests of PECO and PECO OP in obtaining the Debt Consents and Amendments (including providing replacement guarantors and indemnitors and executing amendments and/or modifications to the loan documents). Neither PECO nor PECO OP shall, nor shall PECO or (y) PECO OP permit any of its Representatives to, agree to, amend, modify, supplement or waive the terms and conditions of the outstanding Indebtedness or guarantees thereof for which the Debt Consents and Amendments of such lenders or servicers are required, if such amendment, modification, supplement or waiver material increases the net worth, liquidity or reserve requirements with respect to Regulatory Approvalssuch applicable Indebtedness without the prior consent of the Company (which consent shall not be unreasonably withheld, any immaterial administrative conditioned or ministerial obligations of Parent or any Parent Subsidiarydelayed).
Appears in 2 contracts
Samples: Merger Agreement, Merger Agreement (Phillips Edison Grocery Center Reit Ii, Inc.)
Consents and Approvals. (a) Subject to Each of the terms and conditions of this AgreementCompany, each of Parent and GFI will Purchaser shall use its reasonable best efforts to (i) take, or cause to be taken, all actions appropriate action, and to do, or cause to be done, all things necessary, proper or advisable under any applicable Law law or otherwise to consummate and make effective the Transactions as promptly as reasonably practicable, (ii) obtain from any Governmental Entities any consents, licenses, permits, waivers, clearances, approvals, authorizations or orders required to be obtained or made by Parent, Purchaser or the Company or any of their respective Subsidiaries, or avoid any action or proceeding by any Governmental Entity (including, without limitation, those in connection with the Required Governmental Approvals), in connection with the authorization, execution and delivery of this Agreement and the consummation of the Transactions, including, preparing and filing as promptly as practicable all documentation to effect all necessary filings, notices, petitions, statements, registrations, submissions of information, applications and other documents necessary and appropriate to consummate the Transactions. In furtherance and not in limitation of the foregoing, each of Parent and GFI shall (iiii) make or cause to be made the applications or filings required to be made by Parent, Purchaser or the Company or any of such party their respective Subsidiaries under the Foreign Competition Laws (including those set forth in Section 3.4(b)(i) of the Parent Disclosure Letter) or with respect to the Transactions Required Governmental Approvals or any other applicable laws in connection with the authorization, execution and delivery of this Agreement and the consummation of the Transactions, and pay any fees due in connection with such applications or filings, as promptly as practicable is reasonably practicable, and in any event within ten (10) business days after the date of this Agreement; hereof, (ii) take all actions to obtain and make the Regulatory Approvals set forth in Section 3.4(b)(ii) of the Parent Disclosure Letter as promptly as practicable after the date of this Agreement; (iiiiv) comply at the earliest reasonably practicable date with any request under or with respect to the Required Governmental Approvals and any such other applicable laws for additional information, documents or other materials received by Parent or the Company or any of their respective Subsidiaries from the Federal Trade Commission or the Department of Justice or any other Governmental Entity (including under any Foreign Competition Laws) in respect of such filings or such Transaction; and (iv) act in good faith and reasonably cooperate with the other Party in connection with such applications or filings or the Transactions and (v) coordinate and cooperate with, and give due consideration to all reasonable additions, deletions or changes suggested by the other party in connection with, making (A) any filing under or with respect to the Required Governmental Approvals or any such filings other applicable laws and in connection with (B) any filings, conferences or other submissions related to resolving any investigation or other inquiry of by any such agency or other Governmental Entity under any Entity. Each of the HSR ActCompany and Parent shall, and shall cause their respective Subsidiaries to, furnish to the Foreign Competition Laws, the Xxxxxxx Act, the Xxxxxxx Act and any other Laws or Orders that are designed to prohibit, restrict or regulate actions having the purpose or effect of monopolization or restraint of trade (collectively, the “Antitrust Laws”) with respect to party all information necessary for any such filing or any such Transaction. To the extent not prohibited by applicable Law, the Parties shall use reasonable best efforts to furnish to each other all information required for any application or other filing to be made pursuant to any applicable Law in connection with the Transactions. Each Party of the Company and Parent shall give each promptly inform the other reasonable prior notice of any substantive material communication with, and any proposed understanding, undertaking or agreement with, any Governmental Entity regarding any such filings application or any such Transactionfiling. No Party shall If a party hereto intends to independently participate in any meeting, or engage in any substantive conversation, meeting with any Governmental Entity in respect of any such filings, investigation or other inquiry without giving inquiry, then such party shall give the other Parties party reasonable prior notice of such meeting and invite Representatives of the other party to participate in the meeting or conversation and, with the Governmental Entity unless prohibited by such any Governmental Entity, the opportunity to attend or participate. The Parties contemplate that as a general matter both Parent and GFI shall be represented at in-person meetings with any Governmental Entity. The Parties will consult parties shall coordinate and cooperate with one another in connection with any analyses, appearances, presentations, memoranda, briefs, arguments, opinions and proposals made or submitted by or on behalf of any Party party in connection with all meetings, actions and proceedings under or relating to the HSR Act, the Foreign Competition Laws any such application or other Antitrust Lawsfiling.
(b) Without limiting The Company and Parent shall give (or shall cause their respective Subsidiaries to give) any notices to third parties, and use, and cause their respective Subsidiaries to use, reasonable efforts to obtain any material third party consents necessary, proper or advisable to consummate the general obligations Transactions; provided, however, that the Company and Parent shall coordinate and cooperate in determining whether any actions, notices, consents, approvals or waivers are required to be given or obtained, or should be given or obtained, from parties to any Company Material Agreements in connection with consummation of the Transactions and seeking any such actions, notices, consents, approvals or waivers. Notwithstanding the foregoing, neither Parent nor Purchaser shall be required to, and GFI under Section 5.3(aneither the Company nor any Company Subsidiary will without the written consent of Parent, make any material payment to any third party or agree to any limitation on the conduct of its business, in order to obtain any such consent.
(c) (Consents and Approvals)From the date of this Agreement until the consummation of the Offer, each of Parent Purchaser and GFI the Company shall use its reasonable best efforts promptly notify the other in writing of any pending or, to resolve such objectionsthe knowledge of Purchaser or the Company (as the case may be), if anythreatened action, as may be asserted suit, arbitration or other proceeding or investigation by any Governmental Entity or any other Person (i) challenging or seeking material damages in connection with the Transactions or (ii) seeking to restrain or prohibit the consummation of the Transactions or otherwise limit in any material respect the right of Purchaser or any affiliate of Purchaser to own or operate all or any portion of the businesses or assets of the Company or any Company Subsidiary. The Company shall give Parent the opportunity to consult with the Company regarding the defense or settlement of any such stockholder litigation and shall consider Parent's views with respect to such stockholder litigation and shall not settle any such stockholder litigation without the Transactions under prior written consent of Parent. Notwithstanding the Antitrust Laws. In connection therewith and subject foregoing, the Company shall not be required to Section 5.3(aprovide any notice or information to Parent the provision of which the Company in good faith determines is reasonably likely to adversely affect the Company's or any other person's attorney client or other privilege with respect to such information.
(d) (Consents and Approvals), if If any Proceeding administrative or judicial action or proceeding is instituted (or threatened to be instituted) by a Governmental Entity challenging any of the Transactions as inconsistent with or violative of any Antitrust Lawapplicable law, each of Parent the Company and GFI Purchaser shall, and shall cause their respective affiliates to, cooperate and use its their reasonable best efforts vigorously to contest and resist (by negotiationresist, litigation or otherwise) except insofar as the Company and Purchaser may otherwise agree, any such Proceeding and to have vacatedaction or proceeding, liftedincluding any action or proceeding that seeks a temporary restraining order or preliminary injunction that would prohibit, reversed prevent or overturned any Order whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents, delays or restricts restrict consummation of the Transactions, unless Parent reasonably and in good faith determines that litigation is not in its best interests. Notwithstanding the foregoing or any other provision of this Agreement, nothing in this Section 5.3(b) shall limit the right of a Party to terminate this Agreement pursuant to Section 7.1 (Termination), so long as such Party has until that time complied in all material respects with its obligations under this Section 5.3. Each of Parent and GFI shall use its reasonable best efforts to take such action as may be required to cause the expiration of the notice periods or to obtain the necessary approvals under the HSR Act, the Foreign Competition Laws or any other Antitrust Laws with respect to the Transactions as promptly as possible after the execution of this Agreement.
(ce) Notwithstanding anything to the contrary set forth in this Agreement, nothing contained in this Agreement shall be deemed to require give Parent or Purchaser, directly or indirectly, the right to control or direct the operations of the Company prior to the consummation of the Offer. Prior to the consummation of the Offer, the Company shall exercise, consistent with the terms and conditions of this Agreement, control and supervision over its business operations.
(f) Notwithstanding anything set forth in Section 6.3 and any Parent Subsidiary other provision hereof, in connection with the receipt of any necessary governmental approvals or clearances (including under the HSR Act), none of Parent, the Company or their respective Subsidiaries shall be required to agree to any Divestiture and neither the Company nor any of its Subsidiaries shall offer or take any action that would result in any Burdensome Condition. None of GFI or any GFI Subsidiary shall agree to or take any action that would result in any Burdensome Condition Divestiture without the prior written consent of Parent. For purposes .
(g) To the extent applicable, Parent shall vote all of the shares of capital stock of Purchaser beneficially owned by it, or sign a written consent in lieu of a meeting of the stockholders of Purchaser, in favor of the adoption of this Agreement, a “Burdensome Condition” shall mean making proposals, executing or carrying out agreements (including consent decrees) or submitting to Laws (i) providing for the transfer, license, sale or other disposition or holding separate (through the establishment of a trust or otherwise) of any assets or categories of assets of Parent, GFI or any of their respective Subsidiaries or the holding separate (through the establishment of a trust or otherwise) of the Securities of any Parent Subsidiary or GFI Subsidiary or (ii) imposing or seeking to impose any limitation on the ability of Parent, GFI or any of their respective Subsidiaries to conduct their respective businesses (including Agreement in accordance with respect to market practices and structure) or own such assets or to acquire, hold or exercise full rights of ownership of the business of GFI, the GFI Subsidiaries, Parent or the Parent Subsidiaries, in each case other than (x) with respect to Antitrust Laws, any such proposals, executing or carrying out agreements (including consent decrees) or submitting to Laws that would not impair in any material respect the expected benefits of Parent and the Parent Subsidiaries from or relating to the Transactions, or (y) with respect to Regulatory Approvals, any immaterial administrative or ministerial obligations of Parent or any Parent Subsidiary.applicable law. Section 6.4
Appears in 2 contracts
Samples: Merger Agreement (Hewlett Packard Co), Merger Agreement (Opsware Inc)
Consents and Approvals. (a) Subject to the terms and conditions of this Agreement, each of Parent CME Group and GFI NYMEX Holdings will use its commercially 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 Law to consummate the TransactionsMerger and the other transactions contemplated by this Agreement, including, including preparing and filing as promptly as practicable all documentation to effect all necessary filings, notices, petitions, statements, registrations, submissions of information, applications and other documents necessary and appropriate to consummate the TransactionsMerger and the other transactions contemplated by this Agreement. In furtherance and not in limitation of the foregoing, each of Parent CME Group and GFI NYMEX Holdings shall (i) make or cause to be made the filings required of such party under the HSR Act, the Commodity Exchange Act and the Foreign Competition Laws (including those set forth in Section 3.4(b)(i) of the Parent Disclosure Letter) with respect to the Transactions transactions contemplated by this Agreement as promptly as practicable after the date of this Agreement; , (ii) take all actions to obtain and make the Regulatory Approvals set forth in Section 3.4(b)(ii) of the Parent Disclosure Letter as promptly as practicable after the date of this Agreement; (iii) comply at the earliest practicable date with any request under the HSR Act for additional information, documents or other materials received by such party from the U.S. Federal Trade Commission (“FTC”), the Antitrust Division of the U.S. Department of Justice (the “Antitrust Division”) or by any other Governmental Entity (including under any Foreign Competition Laws) in respect of such filings or such Transaction; transactions and (iviii) act in good faith and reasonably cooperate with the other Party in connection with any such filings (including, if requested by the other party, to accept all reasonable additions, deletions or changes suggested by the other party in connection therewith) and in connection with resolving any investigation or other inquiry of any such agency or other Governmental Entity under any of the HSR Act, the Foreign Competition Laws, the Xxxxxxx Act, the Xxxxxxx Act, the Commodity Exchange Act and any other Laws or Orders that are designed to prohibit, restrict or regulate actions having the purpose or effect of monopolization or restraint of trade (collectively, the “Antitrust Laws”) with respect to any such filing or any such Transactiontransaction. To the extent not prohibited by applicable Law, the Parties shall use all commercially reasonable best efforts to furnish to each other all information required for any application or other filing to be made pursuant to any applicable Law in connection with the Transactionstransactions contemplated by this Agreement. Each Party shall give each other Party reasonable prior notice of any substantive communication with, and any proposed understanding, undertaking or agreement with, any Governmental Entity regarding any such filings or any such Transactiontransaction. No Party shall independently participate in any meeting, or engage in any substantive conversation, with any Governmental Entity in respect of any such filings, investigation or other inquiry without giving the other Parties Party prior notice of the meeting or conversation and, unless prohibited by such any Governmental Entity, the opportunity to attend or participate. The Parties contemplate that as a general matter both Parent CME Group shall take the lead in determining strategy for and GFI shall be represented at in-person meetings with any Governmental Entityconducting such meetings. The Parties will consult and cooperate with one another in connection with any analyses, appearances, presentations, memoranda, briefs, arguments, opinions and proposals made or submitted by or on behalf of any Party in connection with proceedings under or relating to the HSR Act, the Foreign Competition Laws Laws, Commodity Exchange Act or other Antitrust Laws. Subject to the foregoing, CME Group shall take the lead in scheduling and conducting any meeting with any Governmental Entity, coordinating any filings, obtaining any necessary approvals, and resolving any investigation or other inquiry of any such agency or other Governmental Entity under the HSR Act, the Foreign Competition Laws, Commodity Exchange Act or any other Antitrust Laws, including the timing of the initial filing, which will be made as promptly as practicable after the date of this Agreement.
(b) Without limiting the general obligations of Parent and GFI under Subject to Section 5.3(a) (Consents and Approvals6.5(a), each of Parent CME Group and GFI NYMEX Holdings shall use its commercially reasonable best efforts to resolve such objections, if any, as may be asserted by any Governmental Entity with respect to the Transactions transactions contemplated by this Agreement under the Antitrust Laws. In connection therewith and subject to Section 5.3(a) (Consents and Approvals6.5(a), if any Proceeding is instituted (or threatened to be instituted) challenging any of the Transactions transaction contemplated by this Agreement as inconsistent with or violative of any Antitrust Law, each of Parent CME Group and GFI NYMEX Holdings shall cooperate and use its commercially reasonable best efforts vigorously to contest and resist (by negotiation, litigation or otherwise) any such Proceeding action or proceeding, including any administrative or judicial action, and to have vacated, lifted, reversed or overturned any Order whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents, delays or restricts consummation of the Transactionstransactions contemplated by this Agreement, unless Parent reasonably and CME Group determines, in good faith determines its reasonable discretion after consulting with NYMEX Holdings, that litigation is not in its best interests or unless NYMEX Holdings determines, in its reasonable discretion after consulting with CME Group, that litigation is not in its best interests. Notwithstanding the foregoing or any other provision of this Agreement, nothing in this Section 5.3(b) shall limit the right of a Party to terminate this Agreement pursuant to Section 7.1 (Termination), so long as such Party has until that time complied in all material respects with its obligations under this Section 5.3. Each of Parent CME Group and GFI NYMEX Holdings shall use its commercially reasonable best efforts to take such action as may be required to cause the expiration of the notice periods or to obtain the necessary approvals under the HSR Act, the Foreign Competition Laws or any other Antitrust Laws with respect to the Transactions transactions contemplated hereby as promptly as possible after the execution of this Agreement.
(c) Notwithstanding anything to the contrary in this Agreement, nothing in this Agreement shall be deemed to require Parent CME Group or NYMEX Holdings or any Parent Subsidiary of their respective Subsidiaries to agree to or take any action that would result in any Burdensome Condition. None of GFI or any GFI Subsidiary shall agree to or take any action that would result in any Burdensome Condition without the prior written consent of Parent. For purposes of this Agreement, a “Burdensome Condition” shall mean making proposals, executing or carrying out agreements (including consent decrees) or submitting to Laws (i) providing for the transfer, license, sale or other disposition or holding separate (through the establishment of a trust or otherwise) of any assets or categories of assets of ParentCME Group, GFI NYMEX Holdings or any of their respective Subsidiaries or the holding separate (through of the establishment capital stock of a trust NYMEX Holdings Subsidiary, except as, individually or otherwise) in the aggregate, would not have more than an immaterial impact on the business or results of operations of NYMEX Holdings and the Securities of NYMEX Holdings Subsidiaries, or CME Group and the CME Group Subsidiaries, or would impair in any Parent Subsidiary or GFI Subsidiary material respect the expected benefits from the transactions contemplated by this Agreement or (ii) imposing or seeking to impose any limitation on the ability of ParentCME Group, GFI NYMEX Holdings or any of their respective Subsidiaries to conduct their respective businesses (including including, with respect to to, market practices and structure) or own such assets or to acquire, hold or exercise full rights of ownership of the business of GFINYMEX Holdings, the GFI NYMEX Holdings Subsidiaries, Parent CME Group or the Parent CME Group Subsidiaries, in each case other than (x) with respect to Antitrust Laws, any such proposals, executing or carrying out agreements (including consent decrees) or submitting to Laws that would not impair in any material respect the expected benefits of Parent and the Parent Subsidiaries from or relating to the Transactions, or (y) with respect to Regulatory Approvals, any immaterial administrative or ministerial obligations of Parent or any Parent Subsidiary.
Appears in 2 contracts
Samples: Merger Agreement (Cme Group Inc.), Merger Agreement (Nymex Holdings Inc)
Consents and Approvals. (a) Subject The parties hereto shall cooperate with each other and, subject to the terms and conditions of this Agreement, each of Parent and GFI will use its reasonable best efforts to takepromptly (i) prepare and file all necessary documentation, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under applicable Law to consummate the Transactions, including, preparing and filing as promptly as practicable all documentation to (ii) effect all necessary filingsapplications, notices, petitionspetitions and filings (including, statementsto the extent necessary, registrationsany notification required by the HSR Act, submissions as more specifically addressed in Section 7.12) and (iii) obtain all permits, consents, approvals and authorizations of information, applications all third parties and other documents Governmental Authorities that are reasonably deemed necessary and appropriate or advisable to consummate the Transactions. In furtherance and not in limitation of the foregoing, each of Parent and GFI The Company shall (i) make or cause also use its reasonable best efforts to obtain all consents required to be made the filings required of such party under the Foreign Competition Laws (including those set forth in listed on Section 3.4(b)(i4.5(a) of the Parent Disclosure Letter; provided, however, that the Company shall not be required prior to the Acceptance Time to pay any consent or other similar fee, “profit sharing” or other similar payment or other consideration (including increased rent or other similar payments or any amendments, supplements or other modifications to (or waivers of) the existing terms of any Contract), or the provision of additional security (including a guaranty) to obtain the consent, waiver or approval of any Person under any Contract. The parties hereto shall consult with each other with respect to the Transactions as promptly as practicable after obtaining of all such permits, consents, approvals and authorizations, and each party will keep the date other apprised of the status of matters relating to completion of the Transactions. Parent and the Company shall each, subject to the terms and conditions of this Agreement; (ii) take all actions to obtain and make the Regulatory Approvals set forth in Section 3.4(b)(ii) of the Parent Disclosure Letter as promptly as practicable after the date of this Agreement; (iii) comply at the earliest practicable date with any request under any Governmental Entity (including under any Foreign Competition Laws) in respect of such filings or such Transaction; and (iv) act in good faith and reasonably cooperate with the other Party in connection with any such filings and in connection with resolving any investigation or other inquiry of any such agency or other Governmental Entity under any of the HSR Act, the Foreign Competition Laws, the Xxxxxxx Act, the Xxxxxxx Act and any other Laws or Orders that are designed to prohibit, restrict or regulate actions having the purpose or effect of monopolization or restraint of trade (collectively, the “Antitrust Laws”) with respect to any such filing or any such Transaction. To the extent not prohibited by applicable Law, the Parties shall use reasonable best efforts to furnish to each other all information required for any application or other filing to be made pursuant to any applicable Law in connection with the Transactions. Each Party shall give each other reasonable prior notice of any substantive communication with, and any proposed understanding, undertaking or agreement with, any Governmental Entity regarding any such filings or any such Transaction. No Party shall independently participate in any meeting, or engage in any substantive conversation, with any Governmental Entity in respect of any such filings, investigation or other inquiry without giving the other Parties prior notice of the meeting or conversation and, unless prohibited by such any Governmental Entity, the opportunity to attend or participate. The Parties contemplate that as a general matter both Parent and GFI shall be represented at in-person meetings with any Governmental Entity. The Parties will consult and cooperate with one another in connection with any analyses, appearances, presentations, memoranda, briefs, arguments, opinions and proposals made or submitted by or on behalf of any Party in connection with proceedings under or relating to the HSR Act, the Foreign Competition Laws or other Antitrust Laws.
(b) Without limiting the general obligations of Parent and GFI under Section 5.3(a) (Consents and Approvals), each of Parent and GFI shall use its reasonable best efforts to resolve such objections, if any, as any objections that may be asserted by any Governmental Entity Authority with respect to this Agreement or the Transactions under Transactions. Parent and the Antitrust Laws. In connection therewith Company, with respect to any threatened or pending preliminary or permanent injunction or other order, decree or ruling or statute, rule, regulation or executive order that would adversely affect the ability of the parties hereto to consummate the transactions contemplated hereby, shall use reasonable best efforts to prevent the entry, enactment or promulgation thereof, as the case may be.
(b) Parent and subject to Section 5.3(a) (Consents and Approvals), if the Company shall promptly advise each other upon receiving any Proceeding communication from any Governmental Authority whose consent or approval is instituted (or threatened to be instituted) challenging required for consummation of any of the Transactions as inconsistent with or violative of any Antitrust Law, each of Parent and GFI shall cooperate and use its reasonable best efforts vigorously relating to contest and resist (by negotiation, litigation or otherwise) any such Proceeding and to have vacated, lifted, reversed consent or overturned any Order whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents, delays or restricts consummation of the Transactions, unless Parent reasonably and in good faith determines that litigation is not in its best interests. Notwithstanding the foregoing or any other provision of this Agreement, nothing in this Section 5.3(b) shall limit the right of a Party to terminate this Agreement pursuant to Section 7.1 (Termination), so long as such Party has until that time complied in all material respects with its obligations under this Section 5.3. Each of Parent and GFI shall use its reasonable best efforts to take such action as may be required to cause the expiration of the notice periods or to obtain the necessary approvals under the HSR Act, the Foreign Competition Laws or any other Antitrust Laws with respect to the Transactions as promptly as possible after the execution of this Agreementapproval.
(c) Notwithstanding anything to the contrary This Section 7.11 is subject to, in this Agreement, nothing in this Agreement shall be deemed to require Parent or any Parent Subsidiary to agree to or take any action that would result in any Burdensome Condition. None of GFI or any GFI Subsidiary shall agree to or take any action that would result in any Burdensome Condition without the prior written consent of Parent. For purposes of this Agreement, a “Burdensome Condition” shall mean making proposals, executing or carrying out agreements (including consent decrees) or submitting to Laws (i) providing for the transfer, license, sale or other disposition or holding separate (through the establishment of a trust or otherwise) of any assets or categories of assets of Parent, GFI or any of their respective Subsidiaries or the holding separate (through the establishment of a trust or otherwise) of the Securities of any Parent Subsidiary or GFI Subsidiary or (ii) imposing or seeking to impose any limitation on the ability of Parent, GFI or any of their respective Subsidiaries to conduct their respective businesses (including with respect to market practices and structure) or own such assets or to acquire, hold or exercise full rights of ownership of the business of GFIall respects, the GFI Subsidiaries, Parent or the Parent Subsidiaries, in each case other than (xprovisions of Section 7.12(c) with respect to Antitrust Laws, any such proposals, executing or carrying out agreements (including consent decrees) or submitting to Laws that would not impair in any material respect the expected benefits of Parent and the Parent Subsidiaries from or relating to the Transactions, or (y) with respect to Regulatory Approvals, any immaterial administrative or ministerial obligations of Parent or any Parent Subsidiarybelow.
Appears in 2 contracts
Samples: Merger Agreement (Actel Corp), Merger Agreement (Microsemi Corp)
Consents and Approvals. (a) Subject to Upon the terms and subject to the conditions of set forth in this Agreement, each of Parent the REIT, the Manager and GFI will the Contributor shall and shall cause their respective Subsidiaries, to use its reasonable best efforts to take, or cause to be taken, all actions actions, and to do, or cause to be done, and to assist and cooperate with the other parties hereto, all things necessary, proper or and advisable under applicable Law or pursuant to any Contract to consummate and make effective, as promptly as practicable, the Transactions, includingincluding (i) the taking of all actions necessary to cause the conditions to Closing set forth in Article II to be satisfied, (ii) the preparing and filing as promptly as practicable of all documentation to effect all necessary required filings, notices, petitions, statements, registrations, submissions of information, and applications and the obtaining of all necessary actions or nonactions, waivers, consents, authorizations and approvals from Governmental Authorities or other documents Persons necessary in connection with the consummation of the Transactions and appropriate the making of all necessary registrations and filings (including filings with Governmental Authorities, if any) and the taking of all reasonable steps as may be necessary to obtain an approval or waiver from, or to avoid legal proceeding by, any Governmental Authority or other Persons necessary in connection with the consummation of the Transactions, (iii) the defending of any legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the Transactions, including seeking to have any stay or temporary restraining order entered by any court or other Governmental Authority vacated or reversed, the avoidance of each and every impediment under any antitrust, merger control, competition or trade regulation Law that may be asserted by any Governmental Authority with respect to the Transactions so as to enable the Closing to occur as soon as reasonably possible, and (iv) the execution and delivery of any additional instruments necessary to consummate the Transactions and to fully carry out the purposes of this Agreement.
(b) In connection with and without limiting the foregoing, each of the REIT, the Manager and the Contributor shall give (or shall cause to be given) any notices to any Person, and each of the REIT, the Manager and the Contributor shall use, and cause each of their respective Affiliates to use, its reasonable best efforts to obtain any consents from any Person not covered by Section 4.03(a) that are necessary, proper and advisable to consummate the Transactions. In furtherance and not in limitation Each of the foregoingREIT, each the Manager and the Contributor will furnish to the others such necessary information and reasonable assistance as the others may request in connection with the preparation of Parent any required governmental filings or submissions and GFI shall (i) make or cause will cooperate in responding to be made any inquiry from a Governmental Authority, including promptly informing the filings required other parties of such inquiry, consulting in advance before making any presentations or submissions to a Governmental Authority, and supplying each other with copies of all material correspondence, filings or communications between any party under the Foreign Competition Laws (including those set forth in Section 3.4(b)(i) of the Parent Disclosure Letter) and any Governmental Authority with respect to the Transactions as promptly as practicable after the date of this Agreement; (ii) take all actions to obtain and make the Regulatory Approvals set forth in Section 3.4(b)(ii) of the Parent Disclosure Letter as promptly as practicable after the date of this Agreement; (iii) comply at the earliest practicable date with any request under any Governmental Entity (including under any Foreign Competition Laws) in respect of such filings or such Transaction; and (iv) act in good faith and reasonably cooperate with the other Party in connection with any such filings and in connection with resolving any investigation or other inquiry of any such agency or other Governmental Entity under any of the HSR Act, the Foreign Competition Laws, the Xxxxxxx Act, the Xxxxxxx Act and any other Laws or Orders that are designed to prohibit, restrict or regulate actions having the purpose or effect of monopolization or restraint of trade (collectively, the “Antitrust Laws”) with respect to any such filing or any such Transaction. To the extent not prohibited by applicable Lawreasonably practicable, the Parties REIT, the Manager and the Contributor or their respective representatives shall use reasonable best efforts have the right to furnish review in advance and each of the parties will consult the others on, all the information relating to the other and each other all information required for of their Affiliates that appears in any application filing made with, or other filing to be made pursuant to written materials submitted to, any applicable Law Governmental Authority in connection with the Transactions, except that confidential competitively sensitive business information may be redacted from such exchanges. Each Party To the extent reasonably practicable, neither the REIT, the Manager nor the Contributor shall, nor shall give each other reasonable prior notice of any substantive communication withthey permit their respective representatives to, and any proposed understanding, undertaking or agreement with, any Governmental Entity regarding any such filings or any such Transaction. No Party shall participate independently participate in any meeting, meeting or engage in any substantive conversation, conversation with any Governmental Entity Authority in respect of any such filingsfiling, investigation or other inquiry without giving the other Parties parties prior notice of the such meeting or conversation and, unless prohibited to the extent permitted by such any Governmental Entityapplicable Law, without giving the other parties the opportunity to attend or participate. The Parties contemplate that as a general matter both Parent and GFI shall be represented at in-person meetings with any Governmental Entity. The Parties will consult and cooperate with one another participate (whether by telephone or in connection with any analyses, appearances, presentations, memoranda, briefs, arguments, opinions and proposals made or submitted by or on behalf of any Party person) in connection with proceedings under or relating to the HSR Act, the Foreign Competition Laws or other Antitrust Laws.
(b) Without limiting the general obligations of Parent and GFI under Section 5.3(a) (Consents and Approvals), each of Parent and GFI shall use its reasonable best efforts to resolve such objections, if any, as may be asserted by any Governmental Entity with respect to the Transactions under the Antitrust Laws. In connection therewith and subject to Section 5.3(a) (Consents and Approvals), if any Proceeding is instituted (or threatened to be instituted) challenging any of the Transactions as inconsistent with or violative of any Antitrust Law, each of Parent and GFI shall cooperate and use its reasonable best efforts vigorously to contest and resist (by negotiation, litigation or otherwise) any such Proceeding and to have vacated, lifted, reversed or overturned any Order whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents, delays or restricts consummation of the Transactions, unless Parent reasonably and in good faith determines that litigation is not in its best interestsmeeting with such Governmental Authority. Notwithstanding the foregoing foregoing, obtaining any approval or consent from any other provision of this Agreement, nothing in Person pursuant to this Section 5.3(b4.03(b) shall limit not be a condition to the right of a Party to terminate this Agreement pursuant to Section 7.1 (Termination), so long as such Party has until that time complied in all material respects with its obligations under this Section 5.3. Each of Parent and GFI shall use its reasonable best efforts to take such action as may be required to cause the expiration of the notice periods or parties to obtain consummate the necessary approvals under the HSR Act, the Foreign Competition Laws or any other Antitrust Laws with respect to the Transactions as promptly as possible after the execution of this AgreementTransactions.
(c) Notwithstanding anything to the contrary in this Agreement, nothing in this Agreement shall be deemed connection with obtaining any approval or consent from any Person (other than any Governmental Authority) with respect to require Parent the Transactions, none of the REIT, the Manager or any Parent Subsidiary to agree to or take any action that would result in any Burdensome Condition. None of GFI or any GFI Subsidiary shall agree to or take any action that would result in any Burdensome Condition without the prior written consent of Parent. For purposes of this Agreement, a “Burdensome Condition” shall mean making proposals, executing or carrying out agreements (including consent decrees) or submitting to Laws (i) providing for the transfer, license, sale or other disposition or holding separate (through the establishment of a trust or otherwise) of any assets or categories of assets of Parent, GFI Contributor or any of their respective Subsidiaries or the holding separate (through the establishment of a trust Representatives shall be obligated to pay or otherwise) of the Securities of commit to pay to such Person whose approval or consent is being solicited any Parent Subsidiary cash or GFI Subsidiary other consideration, make any accommodation or (ii) imposing commitment or seeking incur any liability or other obligation to impose any limitation on the ability of Parent, GFI or any of their respective Subsidiaries to conduct their respective businesses (including with respect to market practices and structure) or own such assets or to acquire, hold or exercise full rights of ownership of the business of GFI, the GFI Subsidiaries, Parent or the Parent SubsidiariesPerson, in each case other than (x) that is not conditioned upon the occurrence of the Closing. Subject to the immediately foregoing sentence, the parties shall cooperate with respect to Antitrust Lawsreasonable accommodations that may be requested or appropriate to obtain such consents. The REIT, the Manager and the Contributor acknowledge and agree that no approval or consent of any such proposals, executing or carrying out agreements (including consent decrees) or submitting to Laws that would not impair in any material respect the expected benefits of Parent and the Parent Subsidiaries from or relating Person is a condition to the Transactions, or (y) with respect to Regulatory Approvals, any immaterial administrative or ministerial obligations of Parent or any Parent Subsidiaryparty to effect the Transactions.
Appears in 2 contracts
Samples: Contribution Agreement, Contribution Agreement (Starwood Waypoint Residential Trust)
Consents and Approvals. (a) Subject to As promptly as advisable after the terms and conditions date of execution of this Agreement, DLC and each of Parent and GFI will use its reasonable best efforts to take, the FE Subsidiaries shall file or cause to be takenfiled with the Federal Trade Commission and the United States Department of Justice any notifications required to be filed under the HSR Act and the rules and regulations promulgated thereunder with respect to the transactions contemplated hereby. The Parties shall use their respective best efforts to respond promptly to any requests for additional information made by either of such agencies, all actions and to do, cause the waiting periods under the HSR Act to terminate or cause expire at the earliest possible date after the date of filing of such notification. Each Acquiring Party will pay all filing fees under the HSR Act relating to the Exchange Assets to be doneacquired thereby, all things necessarybut each Party will bear its own costs of the preparation of any such filing.
(b) As promptly as advisable after the date of this Agreement, proper or advisable under applicable Law DLC and the FE Subsidiaries, as applicable, shall make any filings required by the Federal Power Act. Prior to consummate filings with the TransactionsFERC, including, the filing Party shall submit such filings to the other Party for review and comment and shall incorporate into the application any revisions reasonably requested. The Party making the filing shall be solely responsible for the cost of preparing and filing as the application, any petition(s) for rehearing, or any reapplication. If the initial filing is rejected by the FERC, the Party that made the filing agrees to petition the FERC for rehearing and/or to re-submit an application with the FERC, provided that in either case this action does not create a Material Adverse Effect with respect to the Party that made the filing and has been approved by the other Party.
(c) As promptly as practicable all documentation to effect all necessary filingsadvisable, noticesand in any case within sixty (60) days after the date of this Agreement, petitionsthe Parties, statementsas applicable, registrations, submissions of information, applications and other documents necessary and appropriate to consummate the Transactions. In furtherance and not in limitation of the foregoing, each of Parent and GFI shall (i) make or cause to be made the any filings required of such party under by law with the Foreign Competition Laws (including those set forth in Section 3.4(b)(i) of the Parent Disclosure Letter) PUCO, PaPUC and any other Governmental Authority, and make or cause to be made any other filings required to be made with respect to the Transactions as transactions contemplated hereby. The Parties shall respond promptly as practicable to any requests for additional information made by such agencies, and use their respective commercially reasonable efforts to cause regulatory approval to be obtained at the earliest possible date after the date of this Agreement; (ii) take all actions to obtain and make the Regulatory Approvals set forth in Section 3.4(b)(ii) any such filing. Each Party will bear its own costs of the Parent Disclosure Letter as promptly as practicable after the date of this Agreement; (iii) comply at the earliest practicable date with any request under any Governmental Entity (including under any Foreign Competition Laws) in respect of such filings or such Transaction; and (iv) act in good faith and reasonably cooperate with the other Party in connection with any such filings and in connection with resolving any investigation or other inquiry preparation of any such agency or other Governmental Entity under any of the HSR Act, the Foreign Competition Laws, the Xxxxxxx Act, the Xxxxxxx Act and any other Laws or Orders that are designed to prohibit, restrict or regulate actions having the purpose or effect of monopolization or restraint of trade filing.
(collectively, the “Antitrust Laws”d) with respect to any such filing or any such Transaction. To the extent not prohibited by applicable Law, the The Parties shall use reasonable best efforts to furnish to cooperate with each other all information required for any application or other filing to be made pursuant to any applicable Law in connection with the Transactions. Each Party shall give each other reasonable prior notice of any substantive communication and promptly prepare and file notifications with, and any proposed understandingrequest Tax clearances from, undertaking or agreement with, any Governmental Entity regarding any such filings or any such Transaction. No Party shall independently participate state and local taxing authorities in any meeting, or engage jurisdictions in any substantive conversation, with any Governmental Entity in respect of any such filings, investigation or other inquiry without giving the other Parties prior notice which a portion of the meeting or conversation and, unless prohibited by such any Governmental Entity, the opportunity to attend or participate. The Parties contemplate that as a general matter both Parent and GFI shall be represented at in-person meetings with any Governmental Entity. The Parties will consult and cooperate with one another in connection with any analyses, appearances, presentations, memoranda, briefs, arguments, opinions and proposals made or submitted by or on behalf of any Party in connection with proceedings under or relating to the HSR Act, the Foreign Competition Laws or other Antitrust Laws.
(b) Without limiting the general obligations of Parent and GFI under Section 5.3(a) (Consents and Approvals), each of Parent and GFI shall use its reasonable best efforts to resolve such objections, if any, as may be asserted by any Governmental Entity with respect to the Transactions under the Antitrust Laws. In connection therewith and subject to Section 5.3(a) (Consents and Approvals), if any Proceeding is instituted (or threatened to be instituted) challenging any of the Transactions as inconsistent with or violative of any Antitrust Law, each of Parent and GFI shall cooperate and use its reasonable best efforts vigorously to contest and resist (by negotiation, litigation or otherwise) any such Proceeding and to have vacated, lifted, reversed or overturned any Order whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents, delays or restricts consummation of the Transactions, unless Parent reasonably and in good faith determines that litigation is not in its best interests. Notwithstanding the foregoing or any other provision of this Agreement, nothing in this Section 5.3(b) shall limit the right of a Party to terminate this Agreement pursuant to Section 7.1 (Termination), so long as such Party has until that time complied in all material respects with its obligations under this Section 5.3. Each of Parent and GFI shall use its reasonable best efforts to take such action as Closing Payment may be required to cause be withheld or in which the expiration Acquiring Party would otherwise be liable for any Tax liabilities of the notice periods or Conveying Party pursuant to obtain the necessary approvals under the HSR Act, the Foreign Competition Laws or any other Antitrust Laws with respect to the Transactions as promptly as possible after the execution of this Agreementsuch state and local Tax law.
(ce) Notwithstanding anything to Each Acquiring Party shall have the contrary in this Agreement, nothing in this Agreement shall be deemed to require Parent or any Parent Subsidiary to agree to or take any action that would result in any Burdensome Condition. None of GFI or any GFI Subsidiary shall agree to or take any action that would result in any Burdensome Condition without the prior written consent of Parent. For purposes of this Agreement, a “Burdensome Condition” shall mean making proposals, executing or carrying out agreements (including consent decrees) or submitting to Laws (i) providing primary responsibility for securing the transfer, license, sale reissuance or procurement of the Permits and Environmental Permits (other disposition than Transferable Permits) effective as of the Exchange Closing Date. Each Conveying Party shall cooperate with the Acquiring Party's efforts in this regard and assist in any transfer or holding separate (through the establishment reissuance of a trust Permit or otherwise) Environmental Permit held by such Conveying Party or the procurement of any assets other Permit or categories of assets of Parent, GFI or any of their respective Subsidiaries or Environmental Permit when so requested by the holding separate (through the establishment of a trust or otherwise) of the Securities of any Parent Subsidiary or GFI Subsidiary or (ii) imposing or seeking to impose any limitation on the ability of Parent, GFI or any of their respective Subsidiaries to conduct their respective businesses (including with respect to market practices and structure) or own such assets or to acquire, hold or exercise full rights of ownership of the business of GFI, the GFI Subsidiaries, Parent or the Parent Subsidiaries, in each case other than (x) with respect to Antitrust Laws, any such proposals, executing or carrying out agreements (including consent decrees) or submitting to Laws that would not impair in any material respect the expected benefits of Parent and the Parent Subsidiaries from or relating to the Transactions, or (y) with respect to Regulatory Approvals, any immaterial administrative or ministerial obligations of Parent or any Parent SubsidiaryAcquiring Party.
Appears in 2 contracts
Samples: Generation Exchange Agreement (Dqe Inc), Generation Exchange Agreement (Duquesne Light Co)
Consents and Approvals. (a) Subject to Upon the terms and subject to the conditions of set forth in this Agreement, each of the Company and the Parent Parties shall and GFI will shall cause their respective Subsidiaries, to use its reasonable best efforts to take, or cause to be taken, all actions actions, and to do, or cause to be done, and to assist and cooperate with the other Parties in doing, all things necessary, proper or advisable under applicable Law or pursuant to any contract or agreement to consummate and make effective, as promptly as practicable, the Merger and the other Transactions, including (i) the taking of all actions necessary to cause the conditions to Closing set forth in Article VIII to be satisfied, (ii) the obtaining of all necessary actions or nonactions, waivers, consents and approvals from Governmental Entities or other Persons necessary in connection with the consummation of the Merger and the other Transactions and the making of all necessary registrations and filings (including filings with Governmental Entities, if any) and the taking of all reasonable steps as may be necessary to obtain an approval or waiver from, or to avoid an action or proceeding by, any Governmental Entity or other Persons necessary in connection with the consummation of the Merger and the other Transactions, (iii) the defending of any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the Merger or the other Transactions, and (iv) the execution and delivery of any additional instruments necessary to consummate the Transactions, including, preparing Merger and filing as promptly as practicable all documentation the other Transactions and to effect all necessary filings, notices, petitions, statements, registrations, submissions fully carry out the purposes of information, applications this Agreement.
(b) In connection with and other documents necessary and appropriate to consummate the Transactions. In furtherance and not in limitation of without limiting the foregoing, each of the Parent Parties and GFI the Company shall give (ior shall cause the other Parent Entities or the other Company Entities, respectively, to give) make or cause any notices to be made the filings required of such party under the Foreign Competition Laws (including those set forth in Section 3.4(b)(i) any Person, and each of the Parent Disclosure LetterParties and the Company shall use, and cause each of their respective Affiliates to use, its commercially reasonable efforts to obtain any consents from any Person not covered by Section 7.2(a) that are necessary, proper or advisable to consummate the Merger, the other Transactions or the Healthcare Properties Sale. Each of the Parties will furnish to the other such necessary information and reasonable assistance as the other may request in connection with the preparation of any required governmental filings or submissions and will cooperate in responding to any inquiry from a Governmental Entity, including promptly informing the other Party of such inquiry, consulting in advance before making any presentations or submissions to a Governmental Entity, and supplying each other with copies of all material correspondence, filings or communications between either Party and any Governmental Entity with respect to the Transactions as promptly as practicable after the date of this Agreement; (ii) take all actions to obtain and make the Regulatory Approvals set forth in Section 3.4(b)(ii) of the Parent Disclosure Letter as promptly as practicable after the date of this Agreement; (iii) comply at the earliest practicable date with any request under any Governmental Entity (including under any Foreign Competition Laws) in respect of such filings or such Transaction; and (iv) act in good faith and reasonably cooperate with the other Party in connection with any such filings and in connection with resolving any investigation or other inquiry of any such agency or other Governmental Entity under any of the HSR Act, the Foreign Competition Laws, the Xxxxxxx Act, the Xxxxxxx Act and any other Laws or Orders that are designed to prohibit, restrict or regulate actions having the purpose or effect of monopolization or restraint of trade (collectively, the “Antitrust Laws”) with respect to any such filing or any such Transaction. To the extent not prohibited by applicable Lawreasonably practicable, the Parties or their Representatives shall use reasonable best efforts have the right to furnish review in advance, and each of the Parties will consult the others on, all the information relating to the other and each other all information required for of their Affiliates that appears in any application filing made with, or other filing to be made pursuant to written materials submitted to, any applicable Law Governmental Entity in connection with the Merger or the other Transactions, except that confidential competitively sensitive business information may be redacted from such exchanges. Each Party To the extent reasonably practicable, neither the Company nor the Parent Parties shall, nor shall give each other reasonable prior notice of any substantive communication withthey permit their respective Representatives to, and any proposed understanding, undertaking or agreement with, any Governmental Entity regarding any such filings or any such Transaction. No Party shall participate independently participate in any meeting, meeting or engage in any substantive conversation, conversation with any Governmental Entity in respect of any such filingsfiling, investigation or other inquiry without giving the other Parties Party prior notice of the such meeting or conversation and, unless prohibited to the extent permitted by such any Governmental Entityapplicable Law, without giving the other Party the opportunity to attend or participate. The Parties contemplate that as a general matter both Parent and GFI shall be represented at in-person meetings participate (whether by telephone or in person) in any such meeting with any such Governmental Entity. The Parties will consult and cooperate with one another Notwithstanding the foregoing, except as set forth in connection with Section 8.2(g), obtaining any analyses, appearances, presentations, memoranda, briefs, arguments, opinions and proposals made approval or submitted by or on behalf of consent from any Party in connection with proceedings under or relating Person pursuant to this Section 7.2(b) shall not be a condition to the HSR Act, the Foreign Competition Laws or other Antitrust Laws.
(b) Without limiting the general obligations of Parent and GFI under Section 5.3(a) (Consents and Approvals), each of Parent and GFI shall use its reasonable best efforts the Parties to resolve such objections, if any, as may be asserted by any Governmental Entity with respect to consummate the Transactions under the Antitrust Laws. In connection therewith and subject to Section 5.3(a) (Consents and Approvals), if any Proceeding is instituted (or threatened to be instituted) challenging any of the Transactions as inconsistent with or violative of any Antitrust Law, each of Parent and GFI shall cooperate and use its reasonable best efforts vigorously to contest and resist (by negotiation, litigation or otherwise) any such Proceeding and to have vacated, lifted, reversed or overturned any Order whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents, delays or restricts consummation of the Transactions, unless Parent reasonably and in good faith determines that litigation is not in its best interests. Notwithstanding the foregoing or any other provision of this Agreement, nothing in this Section 5.3(b) shall limit the right of a Party to terminate this Agreement pursuant to Section 7.1 (Termination), so long as such Party has until that time complied in all material respects with its obligations under this Section 5.3. Each of Parent and GFI shall use its reasonable best efforts to take such action as may be required to cause the expiration of the notice periods or to obtain the necessary approvals under the HSR Act, the Foreign Competition Laws or any other Antitrust Laws with respect to the Transactions as promptly as possible after the execution of this AgreementMerger.
(c) Notwithstanding anything In connection with obtaining any approval or consent from any Person (other than any Governmental Entity) with respect to the contrary in this AgreementMerger or the other Transactions, nothing in this Agreement shall be deemed to require Parent none of the Parties or any Parent Subsidiary to agree to or take any action that would result in any Burdensome Condition. None of GFI or any GFI Subsidiary shall agree to or take any action that would result in any Burdensome Condition without the prior written consent of Parent. For purposes of this Agreementtheir Subsidiaries, a “Burdensome Condition” shall mean making proposals, executing or carrying out agreements (including consent decrees) or submitting to Laws (i) providing for the transfer, license, sale or other disposition or holding separate (through the establishment of a trust or otherwise) of any assets or categories of assets of Parent, GFI or any of their respective Subsidiaries Representatives, shall be obligated to pay or commit to pay to such Person whose approval or consent is being solicited any cash or other consideration, make any accommodation or commitment or incur any liability or other obligation to such Person prior to the holding separate (through the establishment of a trust or otherwise) of the Securities of any Parent Subsidiary or GFI Subsidiary or (ii) imposing or seeking to impose any limitation on the ability of Parent, GFI or any of their respective Subsidiaries to conduct their respective businesses (including Effective Time. The Parties shall cooperate with respect to market practices and structure) accommodations that may be requested or own appropriate to obtain such assets or to acquire, hold or exercise full rights of ownership of the business of GFI, the GFI Subsidiaries, Parent or the Parent Subsidiaries, in each case other than (x) with respect to Antitrust Laws, any such proposals, executing or carrying out agreements (including consent decrees) or submitting to Laws that would not impair in any material respect the expected benefits of Parent and the Parent Subsidiaries from or relating to the Transactions, or (y) with respect to Regulatory Approvals, any immaterial administrative or ministerial obligations of Parent or any Parent Subsidiaryconsents.
Appears in 2 contracts
Samples: Merger Agreement (Cole Corporate Income Trust, Inc.), Merger Agreement (Select Income REIT)
Consents and Approvals. (a) Subject to Upon the terms and subject to the conditions of set forth in this Agreement, each of the Company and Parent shall and GFI will shall cause their respective Subsidiaries, to use its reasonable best efforts to take, or cause to be taken, all actions actions, and to do, or cause to be done, and to assist and cooperate with the other Party in doing, all things necessary, proper or advisable under applicable Law or pursuant to any Contract to consummate the Transactionsand make effective, including, preparing and filing as promptly as practicable all documentation to effect all necessary filingspracticable, noticesthe Mergers and the other Transactions, petitions, statements, registrations, submissions of information, applications and other documents necessary and appropriate to consummate the Transactions. In furtherance and not in limitation of the foregoing, each of Parent and GFI shall including (i) make or the taking of all actions necessary to cause the conditions to be made the filings required of such party under the Foreign Competition Laws (including those Closing set forth in Section 3.4(b)(i) of the Parent Disclosure Letter) with respect Article VII to the Transactions as promptly as practicable after the date of this Agreement; be satisfied, (ii) take the obtaining of all necessary actions or nonactions, waivers, consents and approvals from Governmental Entities or other Persons necessary in connection with the consummation of the Mergers and the other Transactions and the making of all necessary registrations and filings (including filings with Governmental Entities, if any) and the taking of all reasonable steps as may be necessary to obtain and make an approval or waiver from, or to avoid an action or proceeding by, any Governmental Entity or other Persons necessary in connection with the Regulatory Approvals set forth in Section 3.4(b)(ii) consummation of the Parent Disclosure Letter as promptly as practicable after Mergers and the date of this Agreement; other Transactions, (iii) comply at the earliest practicable date with defending of any request under any Governmental Entity (including under any Foreign Competition Laws) in respect Legal Proceedings, whether judicial or administrative, challenging this Agreement or the consummation of such filings the Mergers or such Transaction; and (iv) act in good faith and reasonably cooperate with the other Party in connection with Transactions, including seeking to have any such filings and in connection with resolving stay or temporary restraining Order entered by any investigation or other inquiry of any such agency court or other Governmental Entity vacated or reversed, the avoidance of each and every impediment under any of the HSR Actantitrust, the Foreign Competition Lawsmerger control, the Xxxxxxx Act, the Xxxxxxx Act and any other Laws competition or Orders trade regulation Law that are designed to prohibit, restrict or regulate actions having the purpose or effect of monopolization or restraint of trade (collectively, the “Antitrust Laws”) with respect to any such filing or any such Transaction. To the extent not prohibited by applicable Law, the Parties shall use reasonable best efforts to furnish to each other all information required for any application or other filing to be made pursuant to any applicable Law in connection with the Transactions. Each Party shall give each other reasonable prior notice of any substantive communication with, and any proposed understanding, undertaking or agreement with, any Governmental Entity regarding any such filings or any such Transaction. No Party shall independently participate in any meeting, or engage in any substantive conversation, with any Governmental Entity in respect of any such filings, investigation or other inquiry without giving the other Parties prior notice of the meeting or conversation and, unless prohibited by such any Governmental Entity, the opportunity to attend or participate. The Parties contemplate that as a general matter both Parent and GFI shall be represented at in-person meetings with any Governmental Entity. The Parties will consult and cooperate with one another in connection with any analyses, appearances, presentations, memoranda, briefs, arguments, opinions and proposals made or submitted by or on behalf of any Party in connection with proceedings under or relating to the HSR Act, the Foreign Competition Laws or other Antitrust Laws.
(b) Without limiting the general obligations of Parent and GFI under Section 5.3(a) (Consents and Approvals), each of Parent and GFI shall use its reasonable best efforts to resolve such objections, if any, as may be asserted by any Governmental Entity with respect to the Mergers so as to enable the Closing to occur as soon as reasonably possible, and (iv) the execution and delivery of any additional instruments necessary to consummate the Mergers and the other Transactions under and to fully carry out the Antitrust Laws. In purposes of this Agreement; provided, that notwithstanding the foregoing or any other provisions of this Agreement, nothing contained in this Agreement (including this Section 6.2(a)) shall require or obligate Parent or any of its affiliates to, and the Company shall not, without the prior written consent of Parent, in each case in connection therewith and subject with obtaining any approval or consent from any Governmental Entity with respect to Section 5.3(athe Mergers, (A) pay or commit to pay any material amount of cash or other consideration, or incur or commit to incur any material liability or other obligation, in connection with obtaining any authorization, consent, Order, registration or approval of a Governmental Entity or (Consents and Approvals)B) agree or otherwise be required to sell, divest, dispose of, license, hold separate, or take or commit to take any action that limits in any respect its freedom of action with respect to, or its ability to retain, any businesses, products, rights, services, licenses, or assets of Parent, the Company or any of their respective Subsidiaries, or any interest or interests therein, if any Proceeding is instituted such action set forth in clauses (A) or threatened (B) would reasonably be expected to be institutedhave (x) challenging any a material adverse effect on the business of the Transactions Company and its Subsidiaries, taken as inconsistent a whole, or (y) a material adverse effect on Parent or its affiliates (determined by reference to the magnitude of the business of the Company being acquired by Parent pursuant hereto).
(b) In connection with or violative of any Antitrust Lawand without limiting the foregoing, each of Parent and GFI the Company shall cooperate and use its reasonable best efforts vigorously give (or shall cause to contest and resist (by negotiation, litigation or otherwisebe given) any such Proceeding notices to any Person, and to have vacated, lifted, reversed or overturned any Order whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents, delays or restricts consummation of the Transactions, unless Parent reasonably and in good faith determines that litigation is not in its best interests. Notwithstanding the foregoing or any other provision of this Agreement, nothing in this Section 5.3(b) shall limit the right of a Party to terminate this Agreement pursuant to Section 7.1 (Termination), so long as such Party has until that time complied in all material respects with its obligations under this Section 5.3. Each each of Parent and GFI the Company shall use use, and cause each of their respective affiliates to use, its reasonable best efforts to take such action as may be required obtain any consents from any Person not covered by Section 6.2(a) that are necessary, proper or advisable to cause consummate the expiration Mergers. Each of the notice periods Parties will furnish to the other such necessary information and reasonable assistance as the other may request in connection with the preparation of any required governmental filings or submissions and will cooperate in responding to obtain any inquiry from a Governmental Entity, including promptly informing the necessary approvals under the HSR Actother Party of such inquiry, the Foreign Competition Laws consulting in advance before making any presentations or submissions to a Governmental Entity, and supplying each other with copies of all material correspondence, filings or communications between either Party and any other Antitrust Laws Governmental Entity with respect to the Transactions as promptly as possible after the execution of this Agreement. To the extent reasonably practicable, the Parties or their Representatives shall have the right to review in advance and each of the Parties will consult the others on, all the information relating to the other and each of their affiliates that appears in any filing made with, or written materials submitted to, any Governmental Entity in connection with the Mergers and the other Transactions, except that confidential competitively sensitive business information may be redacted from such exchanges. To the extent reasonably practicable, neither the Company nor Parent shall, nor shall they permit their respective Representatives to, participate independently in any meeting or engage in any substantive conversation with any Governmental Entity in respect of any filing, investigation or other inquiry without giving the other Party prior notice of such meeting or conversation and, to the extent permitted by applicable Law, without giving the other Party the opportunity to attend or participate (whether by telephone or in person) in any such meeting with such Governmental Entity. Notwithstanding the foregoing, obtaining any approval or consent from any Person pursuant to this Section 6.2(b) shall not be a condition to the obligations of the Parties to consummate the Mergers.
(c) Notwithstanding anything to the contrary in this Agreement, nothing in this Agreement shall be deemed connection with obtaining any approval or consent from any Person (other than any Governmental Entity) with respect to require the Mergers, none of the Company or any of the Company Subsidiaries, Parent or any Parent Subsidiary to agree to or take any action that would result in any Burdensome Condition. None of GFI or any GFI Subsidiary shall agree to or take any action that would result in any Burdensome Condition without the prior written consent of Parent. For purposes of this Agreement, a “Burdensome Condition” shall mean making proposals, executing or carrying out agreements (including consent decrees) or submitting to Laws (i) providing for the transfer, license, sale or other disposition or holding separate (through the establishment of a trust or otherwise) of any assets or categories of assets of Parent, GFI its Subsidiaries or any of their respective Subsidiaries Representatives, shall be obligated to pay or commit to pay to such Person whose approval or consent is being solicited any cash or other consideration, make any accommodation or commitment or incur any liability or other obligation to such Person prior to the holding separate (through Company Merger Effective Time. Subject to the establishment of a trust or otherwise) of foregoing sentence, the Securities of any Parent Subsidiary or GFI Subsidiary or (ii) imposing or seeking to impose any limitation on the ability of Parent, GFI or any of their respective Subsidiaries to conduct their respective businesses (including Parties shall cooperate with respect to market practices reasonable accommodations that may be requested or appropriate to obtain such consents. The Parties acknowledge and structure) agree that no approval or own such assets or to acquire, hold or exercise full rights consent of ownership of the business of GFI, the GFI Subsidiaries, Parent or the Parent Subsidiaries, in each case other than (x) with respect to Antitrust Laws, any such proposals, executing or carrying out agreements (including consent decrees) or submitting to Laws that would not impair in any material respect the expected benefits of Parent and the Parent Subsidiaries from or relating Person is a condition to the Transactions, or (y) with respect to Regulatory Approvals, any immaterial administrative or ministerial obligations of Parent or any Parent SubsidiaryParty to effect the Mergers.
Appears in 2 contracts
Samples: Merger Agreement (Griffin-American Healthcare REIT II, Inc.), Merger Agreement (Northstar Realty Finance Corp.)
Consents and Approvals. Without limiting the generality of Section 7.3(a):
(a) Subject to As promptly as practicable after the terms and conditions date of this Agreement, Seller, PECO and PSEG shall each file or cause to be filed with the Federal Trade Commission and the United States Department of Parent Justice all notifications required to be filed under the HSR Act and GFI will the rules and regulations promulgated thereunder, as amended from time to time, with respect to the transactions contemplated hereby and by the Additional Agreements. The Parties shall use their Commercially Reasonable Efforts to respond promptly to any requests for additional information made by, either of such agencies, and to cause the applicable waiting period under the HSR Act relating to the Purchased Assets to terminate or expire at the earliest possible date after the date of filing of such notification. PECO and PSEG shall each pay one-half of all filing fees payable under the HSR Act but each Party shall bear its reasonable best efforts to own costs and expenses of the preparation of any filing.
(b) As promptly as practicable after the date of this Agreement, Seller, PECO and PSEG shall take, or cause to be taken, all actions actions, and to do, or cause to be done, all things necessary, proper or advisable under applicable Law Laws to consummate the Transactions, including, preparing obtain all required consents and filing as promptly as practicable all documentation to effect all necessary filings, notices, petitions, statements, registrations, submissions of information, applications and other documents necessary and appropriate to consummate the Transactions. In furtherance and not in limitation approvals of the foregoingPaPUC, each of Parent the SEC and GFI shall (i) all other Governmental Authorities, and make or cause all other filings and give all other notices required to be made prior to the filings required of such party under the Foreign Competition Laws (including those set forth in Section 3.4(b)(i) of the Parent Disclosure Letter) Closing with respect to the Transactions transactions contemplated hereby and by the Additional Agreements. The Parties shall respond promptly to any requests for additional information made by such Persons, and use their respective Commercially Reasonable Efforts to cause all such consents and approvals to be obtained or waived at the earliest possible date after the date of filing. Each Party will bear its own costs of the preparation of any such filing or notice.
(c) Seller, PECO and PSEG shall cooperate with each other and promptly prepare and file notifications with, and request Tax clearances from, state and local taxing authorities in jurisdictions in which a portion of the Purchase Price may be required to be withheld or in which PECO or PSEG would otherwise be liable for any Tax liabilities of Seller pursuant to state or local Tax Law.
(d) Without limiting the generality of Section 7.4(b), as promptly as practicable after the date of this Agreement; , PECO and PSEG shall make all filings required by the Federal Power Act, individually or jointly with Seller, as reasonably determined by the Parties. Prior to filing any application with the FERC, PECO and PSEG shall submit each such application to Seller for review and comment and shall incorporate into such application all revisions reasonably requested. If any filing is rejected by the FERC, PECO and PSEG shall petition the FERC for rehearing or permission to re-submit an application with the FERC, provided that, in either case, such action has been approved by Seller.
(iie) take all actions to obtain and make Without limiting the Regulatory Approvals set forth in generality of Section 3.4(b)(ii) of the Parent Disclosure Letter 7.4(b), as promptly as practicable after the date of this Agreement; (iii) comply hereof, Seller and PECO shall jointly submit the PECO NRC Applications requesting the PECO NRC Approvals. Seller and PECO shall respond promptly to any requests for additional information made by the NRC, cooperate in connection with any presentation or proceeding associated with such PECO NRC Applications and use their respective Commercially Reasonable Efforts to cause the PECO NRC Approvals to be obtained at the earliest practicable date with any request under any Governmental Entity (including under any Foreign Competition Laws) after the date of filing. Seller and PECO each shall bear its own costs relating to the PECO NRC Applications and shall pay one-half of all NRC fees payable in respect of such filings or such Transaction; and (iv) act in good faith and reasonably cooperate connection with the other Party PECO NRC Applications and the PECO NRC Approvals, provided that, notwithstanding the foregoing, PECO shall, at its sole expense, comply with all conditions and requirements imposed by the NRC relating to the amount, including the sufficiency and adequacy, of the Decommissioning Funds and similar such external trust funds of PECO.
(f) Without limiting the generality of Section 7.4(b), as promptly as practicable after the date hereof, Seller and PSEG shall jointly submit the PSEG NRC Applications requesting the PSEG NRC Approvals. Seller and PSEG shall respond promptly to any requests for additional information made by the NRC, cooperate in connection with any presentation or proceeding associated with such filings PSEG NRC Applications and in connection with resolving any investigation or other inquiry of any such agency or other Governmental Entity under any of use their respective Commercially Reasonable Efforts to cause the HSR Act, the Foreign Competition Laws, the Xxxxxxx Act, the Xxxxxxx Act and any other Laws or Orders that are designed to prohibit, restrict or regulate actions having the purpose or effect of monopolization or restraint of trade (collectively, the “Antitrust Laws”) with respect to any such filing or any such Transaction. To the extent not prohibited by applicable Law, the Parties shall use reasonable best efforts to furnish to each other all information required for any application or other filing PSEG NRC Approvals to be made pursuant obtained at the earliest practicable date after the date of filing. Seller and PSEG each shall bear its own costs relating to any applicable Law the PSEG NRC Applications and shall pay one-half of all NRC fees payable in connection with the Transactions. Each Party shall give each other reasonable prior notice of any substantive communication withPSEG NRC Applications and the PSEG NRC Approvals, provided that, notwithstanding the foregoing, PSEG shall, at its sole expense, comply with all conditions and any proposed understanding, undertaking or agreement with, any Governmental Entity regarding any such filings or any such Transaction. No Party shall independently participate in any meeting, or engage in any substantive conversation, with any Governmental Entity in respect of any such filings, investigation or other inquiry without giving requirements imposed by the other Parties prior notice of the meeting or conversation and, unless prohibited by such any Governmental Entity, the opportunity to attend or participate. The Parties contemplate that as a general matter both Parent and GFI shall be represented at in-person meetings with any Governmental Entity. The Parties will consult and cooperate with one another in connection with any analyses, appearances, presentations, memoranda, briefs, arguments, opinions and proposals made or submitted by or on behalf of any Party in connection with proceedings under or NRC relating to the HSR Actamount, including the Foreign Competition Laws or other Antitrust Laws.
(b) Without limiting the general obligations of Parent sufficiency and GFI under Section 5.3(a) (Consents and Approvals)adequacy, each of Parent and GFI shall use its reasonable best efforts to resolve such objections, if any, as may be asserted by any Governmental Entity with respect to the Transactions under the Antitrust Laws. In connection therewith and subject to Section 5.3(a) (Consents and Approvals), if any Proceeding is instituted (or threatened to be instituted) challenging any of the Transactions as inconsistent with or violative Decommissioning Funds and similar such external trust funds of any Antitrust Law, each of Parent and GFI shall cooperate and use its reasonable best efforts vigorously to contest and resist (by negotiation, litigation or otherwise) any such Proceeding and to have vacated, lifted, reversed or overturned any Order whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents, delays or restricts consummation of the Transactions, unless Parent reasonably and in good faith determines that litigation is not in its best interests. Notwithstanding the foregoing or any other provision of this Agreement, nothing in this Section 5.3(b) shall limit the right of a Party to terminate this Agreement pursuant to Section 7.1 (Termination), so long as such Party has until that time complied in all material respects with its obligations under this Section 5.3. Each of Parent and GFI shall use its reasonable best efforts to take such action as may be required to cause the expiration of the notice periods or to obtain the necessary approvals under the HSR Act, the Foreign Competition Laws or any other Antitrust Laws with respect to the Transactions as promptly as possible after the execution of this AgreementPSEG.
(c) Notwithstanding anything to the contrary in this Agreement, nothing in this Agreement shall be deemed to require Parent or any Parent Subsidiary to agree to or take any action that would result in any Burdensome Condition. None of GFI or any GFI Subsidiary shall agree to or take any action that would result in any Burdensome Condition without the prior written consent of Parent. For purposes of this Agreement, a “Burdensome Condition” shall mean making proposals, executing or carrying out agreements (including consent decrees) or submitting to Laws (i) providing for the transfer, license, sale or other disposition or holding separate (through the establishment of a trust or otherwise) of any assets or categories of assets of Parent, GFI or any of their respective Subsidiaries or the holding separate (through the establishment of a trust or otherwise) of the Securities of any Parent Subsidiary or GFI Subsidiary or (ii) imposing or seeking to impose any limitation on the ability of Parent, GFI or any of their respective Subsidiaries to conduct their respective businesses (including with respect to market practices and structure) or own such assets or to acquire, hold or exercise full rights of ownership of the business of GFI, the GFI Subsidiaries, Parent or the Parent Subsidiaries, in each case other than (x) with respect to Antitrust Laws, any such proposals, executing or carrying out agreements (including consent decrees) or submitting to Laws that would not impair in any material respect the expected benefits of Parent and the Parent Subsidiaries from or relating to the Transactions, or (y) with respect to Regulatory Approvals, any immaterial administrative or ministerial obligations of Parent or any Parent Subsidiary.
Appears in 2 contracts
Samples: Purchase Agreement (Conectiv), Purchase Agreement (Conectiv)
Consents and Approvals. (a) Subject PLD and News America shall cooperate with each other and (i) promptly prepare and file all necessary documentation, (ii) effect all necessary applications, notices, petitions and filings and execute all agreements and documents, (iii) use all reasonable efforts to obtain all necessary permits, consents, approvals and authorizations of all governmental bodies and (iv) use all reasonable efforts to obtain all necessary Permits, consents, approvals and authorizations of all other parties, in the terms and conditions case of this Agreement, each of Parent the foregoing clauses (i), (ii) and GFI will use its reasonable best efforts to take(iii), or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper necessary or advisable under applicable Law to consummate the Transactionstransactions contemplated by this Agreement or required by the terms of any note, includingbond, preparing mortgage, indenture, deed of trust, license, franchise, permit, concession, contract, lease or other instrument to which PLD, Holdings, PeterStar or News America or any of their subsidiaries are a party or by which any of them is bound. PLD shall have the right to review and filing as promptly as practicable approve in advance all documentation to effect all necessary filings, notices, petitions, statements, registrations, submissions of information, applications and other documents necessary and appropriate to consummate the Transactions. In furtherance and not in limitation characteristics of the foregoing, information relating to PLD or PeterStar; and each of Parent PLD and GFI News America shall (i) make or cause have the right to be made the filings required of such party under the Foreign Competition Laws (including those set forth review and approve in Section 3.4(b)(i) advance all characterizations of the Parent Disclosure Letter) information relating to the transactions contemplated by this Agreement which appear in any filing made in connection with the transactions contemplated hereby. The parties hereto agree that they will consult with each other with respect to the Transactions as promptly as practicable after the date obtaining of this Agreement; (ii) take all actions to obtain such necessary Permits, consents, approvals and make the Regulatory Approvals set forth in Section 3.4(b)(ii) authorizations of the Parent Disclosure Letter as promptly as practicable after the date all third parties and governmental bodies. Each of this Agreement; (iii) comply at the earliest practicable date with any request under any Governmental Entity (including under any Foreign Competition Laws) in respect of such filings or such Transaction; PLD and (iv) act in good faith and reasonably cooperate with the other Party in connection with any such filings and in connection with resolving any investigation or other inquiry of any such agency or other Governmental Entity under any of the HSR Act, the Foreign Competition Laws, the Xxxxxxx Act, the Xxxxxxx Act and any other Laws or Orders that are designed to prohibit, restrict or regulate actions having the purpose or effect of monopolization or restraint of trade (collectively, the “Antitrust Laws”) News America shall designate separate counsel with respect to any such filing all applications, notices, petitions and filings (joint or any such Transaction. To otherwise) relating to this Agreement and the extent not prohibited by applicable Law, the Parties shall use reasonable best efforts to furnish to each other all information required for any application or other filing to be made pursuant to any applicable Law in connection with the Transactions. Each Party shall give each other reasonable prior notice of any substantive communication with, and any proposed understanding, undertaking or agreement with, any Governmental Entity regarding any such filings or any such Transaction. No Party shall independently participate in any meeting, or engage in any substantive conversation, with any Governmental Entity in respect of any such filings, investigation or other inquiry without giving the other Parties prior notice of the meeting or conversation and, unless prohibited by such any Governmental Entity, the opportunity to attend or participate. The Parties contemplate that as a general matter both Parent and GFI shall be represented at in-person meetings with any Governmental Entity. The Parties will consult and cooperate with one another in connection with any analyses, appearances, presentations, memoranda, briefs, arguments, opinions and proposals made or submitted by or transactions contemplated hereby on behalf of any Party in connection PLD, on the one hand and News America on the other hand, with proceedings under or relating to the HSR Act, the Foreign Competition Laws or other Antitrust Lawsall governmental bodies.
(b) Without limiting The parties hereto shall consult with each other prior to proposing or entering into any stipulation or agreement with any foreign or United States governmental authority or agency or any third party in connection with any foreign or United States governmental consents and approvals legally required for the general obligations of Parent and GFI under Section 5.3(a) (Consents and Approvals), each of Parent and GFI shall use its reasonable best efforts to resolve such objections, if any, as may be asserted by any Governmental Entity with respect to the Transactions under the Antitrust Laws. In connection therewith and subject to Section 5.3(a) (Consents and Approvals), if any Proceeding is instituted (or threatened to be instituted) challenging any of the Transactions as inconsistent with or violative of any Antitrust Law, each of Parent and GFI shall cooperate and use its reasonable best efforts vigorously to contest and resist (by negotiation, litigation or otherwise) any such Proceeding and to have vacated, lifted, reversed or overturned any Order whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents, delays or restricts consummation of the Transactions, unless Parent reasonably transactions contemplated hereby and in good faith determines that litigation is shall not in its best interests. Notwithstanding the foregoing propose or enter into any other provision of this Agreement, nothing in this Section 5.3(b) shall limit the right of a Party to terminate this Agreement pursuant to Section 7.1 (Termination), so long as such Party has until that time complied in all material respects with its obligations under this Section 5.3. Each of Parent and GFI shall use its reasonable best efforts to take such action as may be required to cause the expiration of the notice periods stipulation or to obtain the necessary approvals under the HSR Act, the Foreign Competition Laws or any other Antitrust Laws with respect to the Transactions as promptly as possible after the execution of this Agreement.
(c) Notwithstanding anything to the contrary in this Agreement, nothing in this Agreement shall be deemed to require Parent or any Parent Subsidiary to agree to or take any action that would result in any Burdensome Condition. None of GFI or any GFI Subsidiary shall agree to or take any action that would result in any Burdensome Condition agreement without the other party's prior written consent, which consent of Parent. For purposes of this Agreement, a “Burdensome Condition” shall mean making proposals, executing or carrying out agreements (including consent decrees) or submitting to Laws (i) providing for the transfer, license, sale or other disposition or holding separate (through the establishment of a trust or otherwise) of any assets or categories of assets of Parent, GFI or any of their respective Subsidiaries or the holding separate (through the establishment of a trust or otherwise) of the Securities of any Parent Subsidiary or GFI Subsidiary or (ii) imposing or seeking to impose any limitation on the ability of Parent, GFI or any of their respective Subsidiaries to conduct their respective businesses (including with respect to market practices and structure) or own such assets or to acquire, hold or exercise full rights of ownership of the business of GFI, the GFI Subsidiaries, Parent or the Parent Subsidiaries, in each case other than (x) with respect to Antitrust Laws, any such proposals, executing or carrying out agreements (including consent decrees) or submitting to Laws that would not impair in any material respect the expected benefits of Parent and the Parent Subsidiaries from or relating to the Transactions, or (y) with respect to Regulatory Approvals, any immaterial administrative or ministerial obligations of Parent or any Parent Subsidiarybe unreasonably withheld.
Appears in 2 contracts
Samples: Asset Exchange Agreement (PLD Telekom Inc), Asset Exchange Agreement (News America Inc)
Consents and Approvals. (a) Subject to the terms and conditions of this AgreementThe Company, each of Parent and GFI will use its reasonable best efforts to take, Merger Sub shall each file or cause to be taken, all actions filed with the Federal Trade Commission and to do, or cause the United States Department of Justice any notifications required to be done, all things necessary, proper or advisable under applicable Law to consummate the Transactions, including, preparing and filing as promptly as practicable all documentation to effect all necessary filings, notices, petitions, statements, registrations, submissions of information, applications and other documents necessary and appropriate to consummate the Transactions. In furtherance and not in limitation of the foregoing, each of Parent and GFI shall (i) make or cause to be made the filings required of such party filed under the Foreign Competition Laws (including those set forth in Section 3.4(b)(i) of HSR Act and the Parent Disclosure Letter) rules and regulations promulgated thereunder with respect to the Transactions transactions contemplated hereby. The parties shall consult with each other as to the appropriate time of filing such notifications and shall use their best efforts to make such filings at the agreed upon time, to respond promptly as practicable to any requests for additional information made by either of such agencies, and to cause the waiting periods under the HSR Act to terminate or expire at the earliest possible date after the date of this Agreement; (ii) take all actions to obtain and make the Regulatory Approvals set forth in Section 3.4(b)(ii) of the Parent Disclosure Letter as promptly as practicable after the date of this Agreement; (iii) comply at the earliest practicable date with any request under any Governmental Entity (including under any Foreign Competition Laws) in respect of such filings or such Transaction; and (iv) act in good faith and reasonably cooperate with the other Party in connection with any such filings and in connection with resolving any investigation or other inquiry of any such agency or other Governmental Entity under any of the HSR Act, the Foreign Competition Laws, the Xxxxxxx Act, the Xxxxxxx Act and any other Laws or Orders that are designed to prohibit, restrict or regulate actions having the purpose or effect of monopolization or restraint of trade (collectively, the “Antitrust Laws”) with respect to any such filing or any such Transaction. To the extent not prohibited by applicable Law, the Parties shall use reasonable best efforts to furnish to each other all information required for any application or other filing to be made pursuant to any applicable Law in connection with the Transactions. Each Party shall give each other reasonable prior notice of any substantive communication with, and any proposed understanding, undertaking or agreement with, any Governmental Entity regarding any such filings or any such Transaction. No Party shall independently participate in any meeting, or engage in any substantive conversation, with any Governmental Entity in respect of any such filings, investigation or other inquiry without giving the other Parties prior notice of the meeting or conversation and, unless prohibited by such any Governmental Entity, the opportunity to attend or participate. The Parties contemplate that as a general matter both Parent and GFI shall be represented at in-person meetings with any Governmental Entity. The Parties will consult and cooperate with one another in connection with any analyses, appearances, presentations, memoranda, briefs, arguments, opinions and proposals made or submitted by or on behalf of any Party in connection with proceedings under or relating to the HSR Act, the Foreign Competition Laws or other Antitrust Lawsfiling.
(b) Without limiting the general obligations of The Company, Parent and GFI under Section 5.3(a) (Consents and Approvals), each of Parent and GFI shall use its reasonable best efforts to resolve such objections, if any, as may be asserted by any Governmental Entity with respect to the Transactions under the Antitrust Laws. In connection therewith and subject to Section 5.3(a) (Consents and Approvals), if any Proceeding is instituted (or threatened to be instituted) challenging any of the Transactions as inconsistent with or violative of any Antitrust Law, each of Parent and GFI Merger Sub shall cooperate with each other and use its reasonable best efforts vigorously to contest and resist (by negotiation, litigation or otherwise) any such Proceeding and to have vacated, lifted, reversed or overturned any Order whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents, delays or restricts consummation of the Transactions, unless Parent reasonably and in good faith determines that litigation is not in its best interests. Notwithstanding the foregoing or any other provision of this Agreement, nothing in this Section 5.3(b) shall limit the right of a Party to terminate this Agreement pursuant to Section 7.1 (Termination), so long as such Party has until that time complied in all material respects with its obligations under this Section 5.3. Each of Parent and GFI shall use its reasonable best efforts to take such action as may be required to cause the expiration of the notice periods or to obtain the necessary approvals under the HSR Act, the Foreign Competition Laws or any other Antitrust Laws with respect to the Transactions as promptly as possible after the execution of this Agreement.
(c) Notwithstanding anything to the contrary in this Agreement, nothing in this Agreement shall be deemed to require Parent or any Parent Subsidiary to agree to or take any action that would result in any Burdensome Condition. None of GFI or any GFI Subsidiary shall agree to or take any action that would result in any Burdensome Condition without the prior written consent of Parent. For purposes of this Agreement, a “Burdensome Condition” shall mean making proposals, executing or carrying out agreements (including consent decrees) or submitting to Laws (i) providing for promptly prepare and file all necessary documentation, (ii) effect all necessary applications, notices, petitions and filings and execute all agreements and documents, (iii) use all reasonable efforts to obtain all necessary permits, consents, approvals and authorizations of all governmental bodies and (iv) use all reasonable efforts to obtain all necessary Permits, consents, approvals and authorizations of all other parties, in the transfercase of each of the foregoing clauses (i), (ii), (iii) and (iv), necessary or advisable to consummate the transactions contemplated by this Agreement or required by the terms of any note, bond, mortgage, indenture, deed of trust, license, sale franchise, permit, concession, contract, lease or other disposition or holding separate (through instrument to which the establishment of a trust or otherwise) of any assets or categories of assets of ParentCompany, GFI Merger Sub, Parent or any of their respective subsidiaries is a party or by which any of them is bound; PROVIDED, HOWEVER, that no note, bond, mortgage, indenture, deed of trust, license, franchise, permit, concession, contract, lease or other instrument shall be amended or modified to increase materially the amount payable thereunder or to be otherwise materially more burdensome to the Company and the Company Subsidiaries considered as one enterprise in order to obtain any permit, consent, approval or authorization without first obtaining the holding separate (through written approval of Parent. The Company shall have the establishment of a trust or otherwise) right to review and approve in advance all characterizations of the Securities of any information relating to the Company; Parent Subsidiary or GFI Subsidiary or (ii) imposing or seeking shall have the right to impose any limitation on the ability of Parent, GFI or any of their respective Subsidiaries to conduct their respective businesses (including with respect to market practices review and structure) or own such assets or to acquire, hold or exercise full rights of ownership approve in advance all characterizations of the business of GFI, the GFI Subsidiaries, information relating to Parent or Merger Sub; and each of the Company and Parent Subsidiariesshall have the right to review and approve in advance all characterizations of the information relating to the transactions contemplated by this Agreement, in each case which appear in any filing (including, without limitation, the Proxy Statement) made in connection with the transactions contemplated hereby. The Company, Parent and Merger Sub agree that they will consult with each other than (x) with respect to Antitrust Lawsthe obtaining of all such necessary Permits, any such proposalsconsents, executing or carrying out agreements (including consent decrees) or submitting to Laws that would not impair in any material respect the expected benefits approvals and authorizations of Parent all third parties and the Parent Subsidiaries from or relating to the Transactions, or (y) with respect to Regulatory Approvals, any immaterial administrative or ministerial obligations of Parent or any Parent Subsidiarygovernmental bodies.
Appears in 2 contracts
Samples: Merger Agreement (Oea Inc /De/), Agreement and Plan of Merger (Autoliv Inc)
Consents and Approvals. (a) Subject to Upon the terms and subject to the conditions of set forth in this Agreement, each of Parent the REIT, the Manager and GFI will the Contributors shall and shall cause their respective Subsidiaries, to use its reasonable best efforts to take, or cause to be taken, all actions actions, and to do, or cause to be done, and to assist and cooperate with the other parties hereto, all things necessary, proper or and advisable under applicable Law or pursuant to any Contract to consummate and make effective, as promptly as practicable, the Transactions, includingincluding (i) the taking of all actions necessary to cause the conditions to Closing set forth in Article II to be satisfied, (ii) the preparing and filing as promptly as practicable of all documentation to effect all necessary required filings, notices, petitions, statements, registrations, submissions of information, and applications and the obtaining of all necessary actions or nonactions, waivers, consents, authorizations and approvals from Governmental Authorities or other documents Persons necessary in connection with the consummation of the Transactions and appropriate the making of all necessary registrations and filings (including filings with Governmental Authorities, if any) and the taking of all reasonable steps as may be necessary to obtain an approval or waiver from, or to avoid legal proceeding by, any Governmental Authority or other Persons necessary in connection with the consummation of the Transactions, (iii) the defending of any legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the Transactions, including seeking to have any stay or temporary restraining order entered by any court or other Governmental Authority vacated or reversed, the avoidance of each and every impediment under any antitrust, merger control, competition or trade regulation Law that may be asserted by any Governmental Authority with respect to the Transactions so as to enable the Closing to occur as soon as reasonably possible, and (iv) the execution and delivery of any additional instruments necessary to consummate the Transactions and to fully carry out the purposes of this Agreement.
(b) In connection with and without limiting the foregoing, each of the REIT, the Manager and the Contributors shall give (or shall cause to be given) any notices to any Person, and each of the REIT, the Manager and the Contributors shall use, and cause each of their respective Affiliates to use, its reasonable best efforts to obtain any consents from any Person not covered by Section 4.03(a) that are necessary, proper and advisable to consummate the Transactions. In furtherance and not in limitation Each of the foregoingREIT, each the Manager and the Contributors will furnish to the others such necessary information and reasonable assistance as the others may request in connection with the preparation of Parent any required governmental filings or submissions and GFI shall (i) make or cause will cooperate in responding to be made any inquiry from a Governmental Authority, including promptly informing the filings required other parties of such inquiry, consulting in advance before making any presentations or submissions to a Governmental Authority, and supplying each other with copies of all material correspondence, filings or communications between any party under the Foreign Competition Laws (including those set forth in Section 3.4(b)(i) of the Parent Disclosure Letter) and any Governmental Authority with respect to the Transactions as promptly as practicable after the date of this Agreement; (ii) take all actions to obtain and make the Regulatory Approvals set forth in Section 3.4(b)(ii) of the Parent Disclosure Letter as promptly as practicable after the date of this Agreement; (iii) comply at the earliest practicable date with any request under any Governmental Entity (including under any Foreign Competition Laws) in respect of such filings or such Transaction; and (iv) act in good faith and reasonably cooperate with the other Party in connection with any such filings and in connection with resolving any investigation or other inquiry of any such agency or other Governmental Entity under any of the HSR Act, the Foreign Competition Laws, the Xxxxxxx Act, the Xxxxxxx Act and any other Laws or Orders that are designed to prohibit, restrict or regulate actions having the purpose or effect of monopolization or restraint of trade (collectively, the “Antitrust Laws”) with respect to any such filing or any such Transaction. To the extent not prohibited by applicable Lawreasonably practicable, the Parties REIT, the Manager and the Contributors or their respective representatives shall use reasonable best efforts have the right to furnish review in advance and each of the parties will consult the others on, all the information relating to the other and each other all information required for of their Affiliates that appears in any application filing made with, or other filing to be made pursuant to written materials submitted to, any applicable Law Governmental Authority in connection with the Transactions, except that confidential competitively sensitive business information may be redacted from such exchanges. Each Party To the extent reasonably practicable, neither the REIT, the Manager nor the Contributors shall, nor shall give each other reasonable prior notice of any substantive communication withthey permit their respective representatives to, and any proposed understanding, undertaking or agreement with, any Governmental Entity regarding any such filings or any such Transaction. No Party shall participate independently participate in any meeting, meeting or engage in any substantive conversation, conversation with any Governmental Entity Authority in respect of any such filingsfiling, investigation or other inquiry without giving the other Parties parties prior notice of the such meeting or conversation and, unless prohibited to the extent permitted by such any Governmental Entityapplicable Law, without giving the other parties the opportunity to attend or participate. The Parties contemplate that as a general matter both Parent and GFI shall be represented at in-person meetings with any Governmental Entity. The Parties will consult and cooperate with one another participate (whether by telephone or in connection with any analyses, appearances, presentations, memoranda, briefs, arguments, opinions and proposals made or submitted by or on behalf of any Party person) in connection with proceedings under or relating to the HSR Act, the Foreign Competition Laws or other Antitrust Laws.
(b) Without limiting the general obligations of Parent and GFI under Section 5.3(a) (Consents and Approvals), each of Parent and GFI shall use its reasonable best efforts to resolve such objections, if any, as may be asserted by any Governmental Entity with respect to the Transactions under the Antitrust Laws. In connection therewith and subject to Section 5.3(a) (Consents and Approvals), if any Proceeding is instituted (or threatened to be instituted) challenging any of the Transactions as inconsistent with or violative of any Antitrust Law, each of Parent and GFI shall cooperate and use its reasonable best efforts vigorously to contest and resist (by negotiation, litigation or otherwise) any such Proceeding and to have vacated, lifted, reversed or overturned any Order whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents, delays or restricts consummation of the Transactions, unless Parent reasonably and in good faith determines that litigation is not in its best interestsmeeting with such Governmental Authority. Notwithstanding the foregoing foregoing, obtaining any approval or consent from any other provision of this Agreement, nothing in Person pursuant to this Section 5.3(b4.03(b) shall limit not be a condition to the right of a Party to terminate this Agreement pursuant to Section 7.1 (Termination), so long as such Party has until that time complied in all material respects with its obligations under this Section 5.3. Each of Parent and GFI shall use its reasonable best efforts to take such action as may be required to cause the expiration of the notice periods or parties to obtain consummate the necessary approvals under the HSR Act, the Foreign Competition Laws or any other Antitrust Laws with respect to the Transactions as promptly as possible after the execution of this AgreementTransactions.
(c) Notwithstanding anything to the contrary in this Agreement, nothing in this Agreement shall be deemed connection with obtaining any approval or consent from any Person (other than any Governmental Authority) with respect to require Parent the Transactions, none of the REIT, the Manager or any Parent Subsidiary to agree to or take any action that would result in any Burdensome Condition. None of GFI or any GFI Subsidiary shall agree to or take any action that would result in any Burdensome Condition without the prior written consent of Parent. For purposes of this Agreement, a “Burdensome Condition” shall mean making proposals, executing or carrying out agreements (including consent decrees) or submitting to Laws (i) providing for the transfer, license, sale or other disposition or holding separate (through the establishment of a trust or otherwise) of any assets or categories of assets of Parent, GFI Contributors or any of their respective Subsidiaries or the holding separate (through the establishment of a trust Representatives shall be obligated to pay or otherwise) of the Securities of commit to pay to such Person whose approval or consent is being solicited any Parent Subsidiary cash or GFI Subsidiary other consideration, make any accommodation or (ii) imposing commitment or seeking incur any liability or other obligation to impose any limitation on the ability of Parent, GFI or any of their respective Subsidiaries to conduct their respective businesses (including with respect to market practices and structure) or own such assets or to acquire, hold or exercise full rights of ownership of the business of GFI, the GFI Subsidiaries, Parent or the Parent SubsidiariesPerson, in each case other than (x) that is not conditioned upon the occurrence of the Closing. Subject to the immediately foregoing sentence, the parties shall cooperate with respect to Antitrust Lawsreasonable accommodations that may be requested or appropriate to obtain such consents. The REIT, the Manager and the Contributors acknowledge and agree that no approval or consent of any such proposals, executing or carrying out agreements (including consent decrees) or submitting to Laws that would not impair in any material respect the expected benefits of Parent and the Parent Subsidiaries from or relating Person is a condition to the Transactions, or (y) with respect to Regulatory Approvals, any immaterial administrative or ministerial obligations of Parent or any Parent Subsidiaryparty to effect the Transactions.
Appears in 2 contracts
Samples: Contribution Agreement (CorEnergy Infrastructure Trust, Inc.), Contribution Agreement (CorEnergy Infrastructure Trust, Inc.)
Consents and Approvals. (a) Subject Each of Parent, the Purchaser and the Company will take all reasonable actions necessary to the terms and conditions of this Agreement, each of Parent and GFI will use its reasonable best efforts to take, or cause to comply promptly with all legal requirements which may be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under applicable Law to consummate the Transactions, including, preparing and filing as promptly as practicable all documentation to effect all necessary filings, notices, petitions, statements, registrations, submissions of information, applications and other documents necessary and appropriate to consummate the Transactions. In furtherance and not in limitation of the foregoing, each of Parent and GFI shall (i) make or cause to be made the filings required of such party under the Foreign Competition Laws (including those set forth in Section 3.4(b)(i) of the Parent Disclosure Letter) imposed on it with respect to this Agreement and the Transactions as promptly as practicable after (which actions shall include, without limitation, furnishing all information required under the date HSR Act and in connection with approvals of this Agreement; (ii) take all actions to obtain and make the Regulatory Approvals set forth in Section 3.4(b)(ii) of the Parent Disclosure Letter as promptly as practicable after the date of this Agreement; (iii) comply at the earliest practicable date or filings with any request under any other Governmental Entity (including under any Foreign Competition LawsEntity) in respect of such filings or such Transaction; and (iv) act in good faith and reasonably will promptly cooperate with the and furnish information to each other Party in connection with any such filings and requirements imposed upon any of them or any of their Subsidiaries in connection with resolving any investigation or other inquiry of any such agency or other Governmental Entity under any of the HSR Act, the Foreign Competition Laws, the Xxxxxxx Act, the Xxxxxxx Act this Agreement and any other Laws or Orders that are designed to prohibit, restrict or regulate actions having the purpose or effect of monopolization or restraint of trade (collectively, the “Antitrust Laws”) with respect to any such filing or any such Transaction. To the extent not prohibited by applicable Law, the Parties shall use reasonable best efforts to furnish to each other all information required for any application or other filing to be made pursuant to any applicable Law in connection with the Transactions. Each Party shall give of the Company, Parent and the Purchaser will, and will cause each of its respective Subsidiaries to, take all reasonable actions necessary to obtain (and will cooperate with each other reasonable prior notice of in obtaining) any substantive communication withconsent, and authorization, order or approval of, or any proposed understanding, undertaking or agreement withexemption by, any Governmental Entity regarding any such filings or any such Transaction. No Party shall independently participate in any meeting, or engage in any substantive conversation, with any Governmental Entity in respect of any such filings, investigation or other inquiry without giving the other Parties prior notice of the meeting public or conversation and, unless prohibited private third party required to be obtained or made by such any Governmental EntityParent, the opportunity to attend or participate. The Parties contemplate that as a general matter both Parent and GFI shall be represented at in-person meetings with any Governmental Entity. The Parties will consult and cooperate with one another in connection with any analyses, appearances, presentations, memoranda, briefs, arguments, opinions and proposals made or submitted by or on behalf of any Party in connection with proceedings under or relating to the HSR ActPurchaser, the Foreign Competition Laws or other Antitrust Laws.
(b) Without limiting the general obligations of Parent and GFI under Section 5.3(a) (Consents and Approvals), each of Parent and GFI shall use its reasonable best efforts to resolve such objections, if any, as may be asserted by any Governmental Entity with respect to the Transactions under the Antitrust Laws. In connection therewith and subject to Section 5.3(a) (Consents and Approvals), if any Proceeding is instituted (or threatened to be instituted) challenging any of the Transactions as inconsistent with or violative of any Antitrust Law, each of Parent and GFI shall cooperate and use its reasonable best efforts vigorously to contest and resist (by negotiation, litigation or otherwise) any such Proceeding and to have vacated, lifted, reversed or overturned any Order whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents, delays or restricts consummation of the Transactions, unless Parent reasonably and in good faith determines that litigation is not in its best interests. Notwithstanding the foregoing or any other provision of this Agreement, nothing in this Section 5.3(b) shall limit the right of a Party to terminate this Agreement pursuant to Section 7.1 (Termination), so long as such Party has until that time complied in all material respects with its obligations under this Section 5.3. Each of Parent and GFI shall use its reasonable best efforts to take such action as may be required to cause the expiration of the notice periods or to obtain the necessary approvals under the HSR Act, the Foreign Competition Laws or any other Antitrust Laws with respect to the Transactions as promptly as possible after the execution of this Agreement.
(c) Notwithstanding anything to the contrary in this Agreement, nothing in this Agreement shall be deemed to require Parent or any Parent Subsidiary to agree to or take any action that would result in any Burdensome Condition. None of GFI or any GFI Subsidiary shall agree to or take any action that would result in any Burdensome Condition without the prior written consent of Parent. For purposes of this Agreement, a “Burdensome Condition” shall mean making proposals, executing or carrying out agreements (including consent decrees) or submitting to Laws (i) providing for the transfer, license, sale or other disposition or holding separate (through the establishment of a trust or otherwise) of any assets or categories of assets of Parent, GFI Company or any of their respective Subsidiaries in connection with the Transactions or the holding separate taking of any action contemplated thereby or by this Agreement.
(through b) The Company and Parent shall take all reasonable actions necessary to file on the establishment of a trust or otherwise) date this Agreement is executed notifications under the HSR Act and to respond as promptly as practicable to any inquiries received from the Federal Trade Commission and the Antitrust Division of the Securities Department of Justice for additional information or documentation and to respond as promptly as practicable to all inquiries and requests received from any Parent Subsidiary State Attorney General or GFI Subsidiary other Governmental Entity in connection with antitrust matters.
(c) All costs and expenses of obtaining or (ii) imposing or seeking to impose effecting any limitation on the ability of Parent, GFI or any of their respective Subsidiaries to conduct their respective businesses (including with respect to market practices and structure) or own such assets or to acquire, hold or exercise full rights of ownership all of the business of GFIconsents, approvals, orders, authorizations, waivers, declarations, filings and registrations referred to in this Section 6.4 shall be borne by the GFI Subsidiariesparty incurring the same, except that Parent or hereby agrees to pay any applicable filing fee (and limited strictly to such filing fee) related to notification under the Parent Subsidiaries, in each case other than (x) with respect to Antitrust Laws, any such proposals, executing or carrying out agreements (including consent decrees) or submitting to Laws that would not impair in any material respect the expected benefits of Parent and the Parent Subsidiaries from or relating to the Transactions, or (y) with respect to Regulatory Approvals, any immaterial administrative or ministerial obligations of Parent or any Parent SubsidiaryHSR Act.
Appears in 2 contracts
Samples: Acquisition Agreement (Intervoice Inc), Acquisition Agreement (Brite Voice Systems Inc)
Consents and Approvals. (a) Subject to the terms and conditions of this AgreementAgreement (including Section 5.2(e)), each of Parent Party shall, and GFI will shall cause its wholly-owned Subsidiaries to, use its commercially reasonable best efforts to take, or cause to be taken, all actions actions, and to do, or cause to be done, all things necessary, proper or advisable under applicable Law and to consummate the Transactions, including, preparing assist and filing as promptly as practicable all documentation to effect all necessary filings, notices, petitions, statements, registrations, submissions of information, applications and other documents necessary and appropriate to consummate the Transactions. In furtherance and not in limitation of the foregoing, each of Parent and GFI shall (i) make or cause to be made the filings required of such party under the Foreign Competition Laws (including those set forth in Section 3.4(b)(i) of the Parent Disclosure Letter) with respect to the Transactions as promptly as practicable after the date of this Agreement; (ii) take all actions to obtain and make the Regulatory Approvals set forth in Section 3.4(b)(ii) of the Parent Disclosure Letter as promptly as practicable after the date of this Agreement; (iii) comply at the earliest practicable date with any request under any Governmental Entity (including under any Foreign Competition Laws) in respect of such filings or such Transaction; and (iv) act in good faith and reasonably cooperate with the other Party in connection with doing, all things required or reasonably necessary to consummate and make effective the transactions contemplated by this Agreement as promptly as practicable, including:
(i) as promptly as practicable, obtain from any such Governmental Authority all waivers, consents, clearances and approvals, including the Required Regulatory Approvals, required or reasonably necessary to consummate the transactions contemplated by this Agreement;
(ii) as promptly as practicable, make all filings and submissions that are required or reasonably necessary to consummate the transactions contemplated by this Agreement and thereafter make any other required or appropriate submissions including, without limiting the foregoing, all filings and submissions required in connection with resolving the Required Regulatory Approvals; and
(iii) as promptly as practicable, take reasonable actions to provide notice to any investigation third party, or obtain from any third party any waivers, consents and approvals, required or reasonably necessary to consummate the transactions contemplated by this Agreement; provided, however, that, notwithstanding anything in this Agreement to the contrary, in no event shall Tribute and Pozen or any of their respective Subsidiaries be required to pay, prior to the Closing, any fee, penalty or other inquiry consideration to any third party for any waiver, consent or approval required in connection with the consummation of the transactions contemplated by this Agreement. In no event shall the receipt of any such agency third party waiver, consent or approval (other Governmental Entity than the Required Regulatory Approvals) be a condition to any Party’s obligations hereunder.
(b) Subject to the terms and conditions hereof, including Section 5.2(e), each of the Parties agrees, and shall cause each of their respective Subsidiaries, to cooperate and to use commercially reasonable efforts to (i) provide such notices and obtain such waivers, consents, clearances and approvals as are required or reasonably necessary to consummate the transactions contemplated by this Agreement under any of the HSR Act, the Foreign Competition Laws, the Xxxxxxx Act, the Xxxxxxx Act and any other Laws federal, provincial, state or Orders that are foreign Law designed to prohibit, restrict or regulate actions having the purpose or effect of relating to monopolization or restraint of trade or foreign investment (collectively, the “Antitrust Relevant Competition Laws”), and (ii) with respect respond to any such filing requests of any Governmental Authority for information or documentary material under any such Transaction. To the extent not prohibited by applicable Relevant Competition Law, the Parties shall use reasonable best efforts and to furnish to each other all information required for contest and resist any application action, including any legislative, administrative or other filing to be made pursuant to any applicable Law in connection with the Transactions. Each Party shall give each other reasonable prior notice of any substantive communication withjudicial action, and to have vacated, lifted, reversed or overturned any proposed understandingOrder (whether temporary, undertaking preliminary or agreement withpermanent) that restricts, any Governmental Entity regarding any such filings prevents or any such Transaction. No Party shall independently participate in any meeting, or engage in any substantive conversation, with any Governmental Entity in respect of any such filings, investigation or other inquiry without giving prohibits the other Parties prior notice consummation of the meeting or conversation andtransactions contemplated by this Agreement under any Relevant Competition Law. Pozen, unless prohibited by such any Governmental Entity, the opportunity to attend or participate. The Parties contemplate that as a general matter both Parent and GFI Tribute shall be represented at in-person meetings with any Governmental Entity. The Parties will consult and cooperate with one another another, and consider in connection with good faith the views of one another, regarding the form and content of any analyses, appearances, presentations, memoranda, briefs, arguments, opinions and or proposals made or submitted by or on behalf of any Party in connection with proceedings under or relating to the HSR Act, the Foreign any Relevant Competition Laws or other Antitrust LawsLaw prior to their submission.
(bc) Without limiting Each of Parent, Pozen and Tribute shall, other than in respect of routine correspondence and dealings with NASDAQ and the general obligations TSXV regarding the transactions contemplated by this Agreement: (i) promptly advise each other of Parent any written or oral substantive communication (including substantive communications received by their respective Subsidiaries) from any Governmental Authority or third party from whom a waiver, consent or approval is required or reasonably necessary to consummate the transactions contemplated by this Agreement; (ii) not participate in any meeting or substantive discussion with any Governmental Authority in respect of any filing, investigation or inquiry concerning this Agreement or the transactions contemplated by this Agreement, unless it consults with the other Party in advance and, unless prohibited by such Governmental Authority, gives the other Party the opportunity to attend; and GFI under (iii) promptly furnish the other Party with copies of all substantive correspondence, filings and written communications between them and their Subsidiaries and Representatives, on the one hand, and any Governmental Authority or its staff, on the other hand, with respect to this Agreement and the transactions contemplated by this Agreement, except that materials may be redacted as necessary to address reasonable privilege, competitively sensitive information or confidentiality concerns.
(d) Each Party will provide as promptly as practicable such information and documentary material as may reasonably be requested by a Governmental Authority following any such filing or notification.
(e) In furtherance and not in limitation of the other covenants contained in this Section 5.3(a) (Consents and Approvals5.2, but subject to the last sentence of this Section 5.2(e), each of Parent Tribute and GFI shall use Pozen agrees to take, or cause to be taken (including by its reasonable best efforts respective Subsidiaries), any and all steps and to make, or cause to be made (including by its respective Subsidiaries), any and all undertakings necessary to resolve such objectionsany objections that a Governmental Authority may assert under any Relevant Competition Law with respect to the Arrangement or the Merger, if any, as and to avoid or eliminate each and every impediment under any Relevant Competition Law that may be asserted by any Governmental Entity Authority with respect to the Transactions under Arrangement and the Antitrust Laws. In connection therewith Merger, in each case, so as to enable the Arrangement Effective Time and subject the Merger Effective Time to Section 5.3(aoccur as promptly as practicable and in any event no later than the Outside Date, including (i) proposing, negotiating, committing to and effecting, by consent decree, hold separate order or otherwise, the sale, divestiture or disposition of any businesses, assets, equity interests, product lines or properties of Tribute or Pozen (Consents and Approvalsor any of their respective Subsidiaries) or any equity interest in any Joint Venture held by Tribute or Pozen (or any of their respective Subsidiaries), if (ii) creating, terminating, or divesting relationships, ventures, contractual rights or obligations of Tribute or Pozen or their respective Subsidiaries and (iii) otherwise taking or committing to take any Proceeding is instituted action that would limit Pozen’s or Tribute’s freedom of action with respect to, or its ability to retain or hold, directly or indirectly, any businesses, assets, equity interests, product lines or properties of Tribute or Pozen (or threatened to be instituted) challenging including any of the Transactions as inconsistent with or violative of any Antitrust Law, each of Parent and GFI shall cooperate and use its reasonable best efforts vigorously to contest and resist (by negotiation, litigation or otherwise) any such Proceeding and to have vacated, lifted, reversed or overturned any Order whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents, delays or restricts consummation of the Transactions, unless Parent reasonably and in good faith determines that litigation is not in its best interests. Notwithstanding the foregoing or any other provision of this Agreement, nothing in this Section 5.3(b) shall limit the right of a Party to terminate this Agreement pursuant to Section 7.1 (Terminationtheir respective Subsidiaries), so long as such Party has until that time complied in all material respects with its obligations under this Section 5.3. Each of Parent and GFI shall use its reasonable best efforts to take such action each case as may be required in order to cause the expiration of the notice periods obtain all waivers, consents, clearances or approvals required directly or indirectly under any Relevant Competition Law or to obtain avoid the necessary approvals commencement of any action by a Governmental Authority to prohibit the Arrangement or the Merger under any Relevant Competition Law, or to avoid the HSR Actentry of, or to effect the Foreign Competition Laws dissolution of, any Order in any Proceeding seeking to prohibit the Arrangement or any other Antitrust Laws with respect the Merger or delay the Arrangement Effective Time or the Merger Effective Time beyond the Outside Date. Notwithstanding anything in this Agreement to the Transactions as promptly as possible after the execution of this Agreement.
(c) Notwithstanding anything to the contrary in this Agreementcontrary, nothing in this Agreement shall require, or be deemed to require Parent require, Tribute or any Parent Subsidiary to agree to or take any action that would result in any Burdensome Condition. None of GFI or any GFI Subsidiary shall agree to or take any action that would result in any Burdensome Condition without the prior written consent of Parent. For purposes of this Agreement, a “Burdensome Condition” shall mean making proposals, executing or carrying out agreements Pozen (including consent decrees) or submitting to Laws (i) providing for the transfer, license, sale or other disposition or holding separate (through the establishment of a trust or otherwise) of any assets or categories of assets of Parent, GFI or any of their respective Subsidiaries Subsidiaries) to take any action, agree to take any action or consent to the holding separate (through the establishment of a trust or otherwise) of the Securities taking of any Parent Subsidiary or GFI Subsidiary or (ii) imposing or seeking to impose any limitation on the ability of Parent, GFI or any of their respective Subsidiaries to conduct their respective businesses action (including with respect to market practices and structure) selling, holding separate or own such otherwise disposing of any business or assets or conducting its (or their Subsidiaries) business in any specified manner) if doing so would, individually or in the aggregate, reasonably be expected to acquirehave a Material Adverse Effect on either Tribute or Pozen, hold or exercise full rights of ownership of the business of GFIas applicable, the GFI Subsidiaries, Parent or the Parent Subsidiaries, in each case other than (x) with respect to Antitrust Laws, any such proposalsaction that would, executing individually or carrying out agreements (including consent decrees) or submitting in the aggregate, reasonably be expected to Laws that would not impair in any material respect the expected benefits of Parent and the Parent Subsidiaries from or relating to the Transactionshave a Material Adverse Effect, or (y) with respect to Regulatory Approvals, any immaterial administrative or ministerial obligations of Parent or any Parent Subsidiarya “Restraint”).
Appears in 2 contracts
Samples: Merger Agreement (Tribute Pharmaceuticals Canada Inc.), Agreement and Plan of Merger and Arrangement (Pozen Inc /Nc)
Consents and Approvals. (a) Subject to Upon the terms and subject to the conditions of this Agreement, each of Parent the parties hereto agrees to use, and GFI will cause its Affiliates to use its reasonable best efforts to take, or cause to be taken, all actions actions, and to do, or cause to be done, all things necessary, proper necessary or advisable under applicable Applicable Law to consummate and make effective the Transactions, including, preparing and filing transactions contemplated by this Agreement as promptly as practicable including the preparation and filing of all documentation forms, registrations and notices required to effect all necessary filings, notices, petitions, statements, registrations, submissions of information, applications and other documents necessary and appropriate be filed by such party in order to consummate the Transactions. In furtherance transactions contemplated by this Agreement and not in limitation the taking of the foregoingsuch actions as are necessary to obtain any approvals, each consents, orders, exemptions or waivers of Parent and GFI shall (i) make or cause Governmental Authorities required to be made the filings required of obtained by such party under in order to consummate the Foreign Competition Laws (including those set forth in Section 3.4(b)(i) of the Parent Disclosure Letter) with respect to the Transactions as promptly as practicable after the date of transactions contemplated by this Agreement; (ii) take all actions to obtain and make the Regulatory Approvals set forth in Section 3.4(b)(ii) of the Parent Disclosure Letter as . Each party shall promptly as practicable after the date of this Agreement; (iii) comply at the earliest practicable date with any request under any Governmental Entity (including under any Foreign Competition Laws) in respect of such filings or such Transaction; and (iv) act in good faith and reasonably cooperate consult with the other Party in connection with any such filings and in connection with resolving any investigation or other inquiry of any such agency or other Governmental Entity under any of the HSR Act, the Foreign Competition Laws, the Xxxxxxx Act, the Xxxxxxx Act and any other Laws or Orders that are designed to prohibit, restrict or regulate actions having the purpose or effect of monopolization or restraint of trade (collectively, the “Antitrust Laws”) with respect to to, provide any such filing or any such Transaction. To the extent not prohibited by applicable Law, the Parties shall use reasonable best efforts to furnish to each other all necessary information required for any application or other filing to be made pursuant to any applicable Law in connection with the Transactions. Each Party shall give each other reasonable prior notice of any substantive communication withrespect to, and any proposed understanding, undertaking or agreement with, any Governmental Entity regarding any provide copies of all filings made by such filings or any such Transaction. No Party shall independently participate in any meeting, or engage in any substantive conversation, party with any Governmental Entity in respect of or any such filings, investigation or other inquiry without giving the other Parties prior notice of the meeting or conversation and, unless prohibited information supplied by such any party to a Governmental Entity, the opportunity to attend or participate. The Parties contemplate that as a general matter both Parent and GFI shall be represented at in-person meetings with any Governmental Entity. The Parties will consult and cooperate with one another Entity in connection with any analyses, appearances, presentations, memoranda, briefs, arguments, opinions this Agreement and proposals made or submitted by or on behalf of any Party in connection with proceedings under or relating to the HSR Act, Transition Services Agreement and the Foreign Competition Laws or other Antitrust Lawstransactions contemplated hereby and thereby.
(b) Without limiting If any objections are asserted with respect to the general obligations transactions contemplated by this Agreement or the Transition Services Agreement under any anti-competition Law or if any suit or proceeding is instituted or threatened by any Governmental Entity or any private party challenging any of Parent and GFI under Section 5.3(a) (Consents and Approvals)the transactions contemplated by this Agreement or the Transition Services Agreement as violative of any anti-competition Law, each of Parent Seller and GFI Buyer shall use its reasonable best efforts to promptly resolve such objections, if any, as may be asserted by any Governmental Entity with respect to the Transactions under the Antitrust Laws. In connection therewith and subject to Section 5.3(a) (Consents and Approvals), if any Proceeding is instituted (or threatened to be instituted) challenging any of the Transactions as inconsistent with or violative of any Antitrust Law, each of Parent and GFI shall cooperate and use its reasonable best efforts vigorously to contest and resist (by negotiation, litigation or otherwise) any such Proceeding and to have vacated, lifted, reversed or overturned any Order whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents, delays or restricts consummation of the Transactions, unless Parent reasonably and in good faith determines that litigation is not in its best interests. Notwithstanding the foregoing or any other provision of this Agreement, nothing in this Section 5.3(b) shall limit the right of a Party to terminate this Agreement pursuant to Section 7.1 (Termination), so long as such Party has until that time complied in all material respects with its obligations under this Section 5.3. Each of Parent and GFI shall use its reasonable best efforts to take such action as may be required to cause the expiration of the notice periods or to obtain the necessary approvals under the HSR Act, the Foreign Competition Laws or any other Antitrust Laws with respect to the Transactions as promptly as possible after the execution of this Agreement.
(c) Notwithstanding anything to the contrary in this Agreement, nothing in this Agreement shall be deemed to require Parent none of Seller or any Parent Subsidiary of its Affiliates shall have any obligation to agree to hold separate or take divest any action that would result in any Burdensome Condition. None property or assets of GFI Seller or any GFI Subsidiary of its Affiliates in connection with any such claim under anti-competition law. In furtherance of the foregoing, Buyer shall, and shall agree cause its Affiliates to, take all action, including agreeing to hold separate or take to divest any action that would result in of the businesses or properties or assets of Buyer or any Burdensome Condition without the prior written consent of Parent. For purposes of this Agreement, a “Burdensome Condition” shall mean making proposals, executing or carrying out agreements its Affiliates (including consent decreesthe Equity Interests) or submitting and to Laws terminate any existing relationships and contractual rights and obligations, as may be required (i) providing for by the transfer, license, sale or other disposition or holding separate (through the establishment of a trust or otherwise) of applicable Governmental Entity in order to resolve such objections as such Governmental Entity may have to such transactions under any assets or categories of assets of Parent, GFI or any of their respective Subsidiaries or the holding separate (through the establishment of a trust or otherwise) of the Securities of any Parent Subsidiary or GFI Subsidiary anti-competition Law or (ii) imposing by any domestic or seeking foreign court or other tribunal, in any action or proceeding brought by a private party or Governmental Entity challenging such transactions as violative of any anti-competition Law, in order to impose avoid the entry of, or to effect the dissolution, vacating, lifting, altering or reversal of, any limitation on order that has the ability effect of Parentrestricting, GFI preventing or prohibiting the consummation of the transactions contemplated by this Agreement or the Transition Services Agreement. In addition, Buyer shall, and shall cause its Affiliates to, vigorously defend any action or proceeding brought by a private party or Governmental Entity challenging the transactions contemplated hereby or by the Transition Services Agreement as violative of their respective Subsidiaries any anti-competition Law, in order to conduct their respective businesses avoid the entry of, or to effect the dissolution, vacating, lifting, altering or reversal of, any order that has the effect of restricting, preventing or prohibiting the consummation of the transactions contemplated by this Agreement or the Transition Services Agreement (including with respect to market practices and structure) or own such assets or to acquire, hold or exercise full rights of ownership of the business of GFI, the GFI Subsidiaries, Parent or the Parent Subsidiaries, in each case other than (x) with respect to Antitrust Laws, by pursuing any such proposals, executing or carrying out agreements (including consent decrees) or submitting to Laws that would not impair in any material respect the expected benefits of Parent and the Parent Subsidiaries from or relating to the Transactions, or (y) with respect to Regulatory Approvals, any immaterial administrative or ministerial obligations of Parent or any Parent Subsidiaryavailable appeal process).
Appears in 2 contracts
Samples: Purchase and Sale Agreement (CMS Energy Corp), Agreement of Purchase and Sale (Consumers Energy Co)
Consents and Approvals. (a) Subject to Each of the terms Sellers and conditions of this Agreement, each of Parent and GFI will the Offeror shall use its reasonable best efforts to take, take or cause to be taken, taken all actions and to do, or cause to be done, all things action necessary, proper or advisable under applicable Law to consummate launch the TransactionsOffer in the most expeditious manner possible and in any event no later than the Outside Date, including, including preparing and filing as promptly as practicable all documentation to effect all necessary filings, notices, petitionsreports and other filings and to obtain as promptly as practicable, statementsall consents, registrations, submissions of informationapprovals, applications waivers, orders, interpretive guidance, exemptions, Permits and other documents authorizations necessary and appropriate to consummate the Transactions. In furtherance and not in limitation of the foregoing, each of Parent and GFI shall be obtained from any Governmental Entity; provided that (i) under no circumstances shall the Sellers or the Offeror be required to make any payment to any Person to secure such person’s consent or cause be obliged to be made the filings required of such party under the Foreign Competition Laws (including those set forth in Section 3.4(b)(i) of the Parent Disclosure Letter) with respect to the Transactions as promptly as practicable after the date of this Agreement; sell, lease, license, dispose or hold separate of, or accept a restriction or limitation on, any assets, operations, rights, product lines, licenses or other interests therein, and (ii) take all actions the Sellers and the Offeror agree to obtain and make the Regulatory Approvals set forth reasonably consult with each other in Section 3.4(b)(ii) advance of the Parent Disclosure Letter as promptly as practicable after the date of this Agreement; (iii) comply at the earliest practicable date with any request under any Governmental Entity (including under any Foreign Competition Laws) in respect of such filings or such Transaction; relevant filing and (iv) act in good faith agree to consider and reasonably cooperate with take into account the views of the other Party in connection with any such filings and in connection with resolving any investigation or other inquiry of any such agency or other Governmental Entity under any of the HSR Act, the Foreign Competition Laws, the Xxxxxxx Act, the Xxxxxxx Act and any other Laws or Orders that are designed to prohibit, restrict or regulate actions having the purpose or effect of monopolization or restraint of trade (collectively, the “Antitrust Laws”) with respect to any such filing or any such Transaction. To the extent not prohibited by applicable Law, the Parties shall use reasonable best efforts to furnish to each other all information required for any application or other filing to be made pursuant to any applicable Law in connection with the Transactions. Each Party shall give each other reasonable prior notice of any substantive communication with, and any proposed understanding, undertaking or agreement with, any Governmental Entity regarding any such filings or any such Transaction. No Party shall independently participate in any meeting, or engage in any substantive conversation, with any Governmental Entity in respect of any such filings, investigation or other inquiry without giving the other Parties prior notice of the meeting or conversation and, unless prohibited by such any Governmental Entity, the opportunity to attend or participate. The Parties contemplate that as a general matter both Parent and GFI shall be represented at in-person meetings with any Governmental Entity. The Parties will consult and cooperate with one another in connection with any analyses, appearances, presentations, memoranda, briefs, arguments, opinions and proposals made or submitted by or on behalf of any Party in connection with proceedings under or relating to the HSR Act, the Foreign Competition Laws or other Antitrust Lawsfiling.
(b) Without limiting Each party to this Agreement shall (i) cooperate with each other and shall furnish to the general obligations other such necessary information and assistance as the other party may reasonably request in connection with the preparation of Parent any necessary Filings or submissions for any Governmental Entity, (ii) promptly provide to each and GFI under Section 5.3(a) (Consents every Governmental Entity with jurisdiction over enforcement of any applicable Laws such information and Approvals), each of Parent and GFI shall use its reasonable best efforts to resolve such objections, if any, documents as may be asserted requested by such Governmental Entity or that are necessary, proper or advisable to permit consummation of the transactions contemplated by this Agreement, after receipt of the request therefor, (iii) to the extent permitted by applicable Law, keep each other apprised of the status of matters relating to completion of the transactions contemplated by this Agreement, including promptly furnishing the other with copies of any material notices or other communications received by the Offeror, the Sellers or any of the Sellers or their respective Representatives from any Governmental Entity with respect to the Transactions under transactions contemplated by this Agreement and (iv) give prompt notice to each other of any development or combination of developments that, individually or in the Antitrust Laws. In connection therewith and subject aggregate, is reasonably likely to Section 5.3(a) (Consents and Approvals)prevent, if any Proceeding is instituted (materially delay or threatened materially impair its ability to be instituted) challenging consummate the transactions contemplated in the Transaction Documents; provided that no such notification shall affect any of the Transactions as inconsistent with representations, warranties, covenants or violative of any Antitrust Law, each of Parent and GFI shall cooperate and use its reasonable best efforts vigorously to contest and resist (by negotiation, litigation or otherwise) any such Proceeding and to have vacated, lifted, reversed or overturned any Order whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents, delays or restricts consummation agreements of the Transactions, unless Parent reasonably and in good faith determines that litigation is not in its best interests. Notwithstanding Parties or the foregoing or any other provision of this Agreement, nothing in this Section 5.3(b) shall limit conditions to the right of a Party to terminate this Agreement pursuant to Section 7.1 (Termination), so long as such Party has until that time complied in all material respects with its obligations under this Section 5.3. Each of Parent and GFI shall use its reasonable best efforts to take such action as may be required to cause the expiration of the notice periods or to obtain the necessary approvals Parties under the HSR Act, the Foreign Competition Laws or any other Antitrust Laws with respect to the Transactions as promptly as possible after the execution of this Agreement.
(c) Notwithstanding anything The Offeror acknowledges that the Company is registered with the U.S. Securities and Exchange Commission (“SEC”) and has American Depositary Shares listed in the New York Stock Exchange (“NYSE”) and as such, is subject to certain specific laws and regulations, in particular, Persons launching tender offers for the acquisition of securities listed in the United States of America need to comply with the regulations of tender offers enacted by the SEC (“U.S. Tender Offer Rules”). Accordingly, the Offeror shall comply with the US Tender Offer Rules applicable to the contrary in Offeror.
(d) The Sellers and the Offeror acknowledge that it may become necessary or advisable after the date of this Agreement, nothing Agreement to adjust or modify the structure of the various transactions described in this Agreement shall be deemed to require Parent or any Parent Subsidiary to and agree to cooperate in good faith to consider and, to the extent mutually agreed, effectuate the adjustments or take modifications reasonably requested by the Offeror or the Sellers, as the case may be, required by any action Governmental Authority or necessary or advisable to fully effect the transactions contemplated hereby; provided, that would result in any Burdensome Condition. None no such adjustment or modification shall reasonably be expected to prevent or materially delay the consummation of GFI or any GFI Subsidiary shall agree to or take any action that would result in any Burdensome Condition without the prior written consent of Parent. For purposes of transactions contemplated by this Agreement, a “Burdensome Condition” shall mean making proposals, executing or carrying out agreements (including consent decrees) or submitting to Laws (i) providing for the transfer, license, sale or other disposition or holding separate (through the establishment of a trust or otherwise) of any assets or categories of assets of Parent, GFI or any of their respective Subsidiaries or the holding separate (through the establishment of a trust or otherwise) of the Securities of any Parent Subsidiary or GFI Subsidiary or (ii) imposing or seeking to impose any limitation on the ability of Parent, GFI or any of their respective Subsidiaries to conduct their respective businesses (including with respect to market practices and structure) or own such assets or to acquire, hold or exercise full rights of ownership of the business of GFI, the GFI Subsidiaries, Parent or the Parent Subsidiaries, in each case other than (x) with respect to Antitrust Laws, any such proposals, executing or carrying out agreements (including consent decrees) or submitting to Laws that would not impair in any material respect the expected benefits of Parent and the Parent Subsidiaries from or relating to the Transactions, or (y) with respect to Regulatory Approvals, any immaterial administrative or ministerial obligations of Parent or any Parent Subsidiary.
Appears in 2 contracts
Samples: Tender Offer Support Agreement (IG4 Capital Infrastructure Investments LP), Tender Offer Support Agreement (IG4 Capital Infrastructure Investments LP)
Consents and Approvals. (a) Subject to Upon the terms and subject to the conditions of set forth in this Agreement, each of the Company and Parent shall and shall cause their respective Subsidiaries, to use reasonable best efforts to take, or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate with the other Party in doing, all things necessary, proper or advisable under applicable Law or pursuant to any Contract to consummate and make effective, as promptly as practicable, the Merger and the other Transactions, including (i) the taking of all actions necessary to cause the conditions to Closing set forth in Article VII to be satisfied, (ii) the preparing and filing of all documentation to effect all required filings, notices, petitions, statements, registrations, submissions and applications and the obtaining of all necessary actions or non-actions, waivers, consents, authorizations and approvals from Governmental Entities or other Persons necessary in connection with the consummation of the Merger and the other Transactions and the making of all necessary registrations and filings (including filings with Governmental Entities, if any) and the taking of all reasonable steps as may be necessary to obtain an approval or waiver from, or to avoid Legal Proceeding by, any Governmental Authority or other Persons necessary in connection with the consummation of the Merger and the other Transactions, (iii) the defending of any Legal Proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the Merger or the other Transactions, including seeking to have any stay or temporary restraining Order entered by any court or other Governmental Authority vacated or reversed, the avoidance of each and every impediment under any antitrust, merger control, competition or trade regulation Law that may be asserted by any Governmental Authority with respect to the Merger so as to enable the Closing to occur as soon as reasonably possible, and (iv) the execution and delivery of any additional instruments necessary to consummate the Merger and the other Transactions and to fully carry out the purposes of this Agreement.
(b) In connection with and without limiting the foregoing, each of Parent and GFI the Company shall give (or shall cause to be given) any notices to any Person, and each of Parent and the Company shall use, and cause each of their respective Affiliates to use, its reasonable best efforts to obtain any consents from any Person not covered by Section 6.2(a) that are necessary, proper or advisable to consummate the Merger. Each of the Parties will furnish to the other such necessary information and reasonable assistance as the other may request in connection with the preparation of any required governmental filings or submissions and will cooperate in responding to any inquiry from a Governmental Authority, including promptly informing the other Party of such inquiry, consulting in advance before making any presentations or submissions to a Governmental Authority, and supplying each other with copies of all material correspondence, filings or communications between either Party and any Governmental Authority with respect to this Agreement. To the extent reasonably practicable, the Parties or their Representatives shall have the right to review in advance and each of the Parties will consult the others on, all the information relating to the other and each of their Affiliates that appears in any filing made with, or written materials submitted to, any Governmental Authority in connection with the Merger and the other Transactions, except that confidential competitively sensitive business information may be redacted from such exchanges. To the extent reasonably practicable, neither the Company nor Parent shall, nor shall they permit their respective Representatives to, participate independently in any meeting or engage in any substantive conversation with any Governmental Authority in respect of any filing, investigation or other inquiry without giving the other Party prior notice of such meeting or conversation and, to the extent permitted by applicable Law, without giving the other Party the opportunity to attend or participate (whether by telephone or in person) in any such meeting with such Governmental Authority. Notwithstanding the foregoing, obtaining any approval or consent from any Person pursuant to this Section 6.2(b) shall not be a condition to the obligations of the Parties to consummate the Merger, except as described in Section 7.2(e).
(c) Notwithstanding anything to the contrary in this Agreement, in connection with obtaining any approval or consent from any Person (other than any Governmental Authority) with respect to the Merger, none of the Company or any of the Company Subsidiaries, Parent or any of its Subsidiaries or any of their respective Representatives, shall be obligated to pay or commit to pay to such Person whose approval or consent is being solicited any cash or other consideration, make any accommodation or commitment or incur any liability or other obligation to such Person, in each case that is not conditioned upon the occurrence of the Closing. Subject to the foregoing sentence, the Parties shall cooperate with respect to reasonable accommodations that may be requested or appropriate to obtain such consents. The Parties acknowledge and agree that no approval or consent of any such Person is a condition to the obligations of any Party to effect the Merger, except as described in Section 7.2(e).
(d) Each of the Parent Parties shall use its reasonable best efforts to take, or cause to be taken, all actions actions, and to do, or cause to be done, all things necessary, proper or advisable under applicable Law to consummate the Transactions, including, preparing and filing as promptly as practicable all documentation to effect all necessary filings, notices, petitions, statements, registrations, submissions of information, applications and other documents necessary and appropriate to consummate the Transactions. In furtherance and not in limitation of the foregoing, each of Parent and GFI shall (i) make or cause to be made the filings required of such party under the Foreign Competition Laws (including those set forth in Section 3.4(b)(i) by using their respective reasonable best efforts to cause each of the Parent Disclosure Letter) with respect Subsidiaries to the Transactions as promptly as practicable after the date of this Agreement; (ii) take all actions and do all things to) obtain all approvals, consents, authorizations and other confirmations required to obtain and make be obtained pursuant to the Regulatory Approvals terms of the agreements set forth in on Section 3.4(b)(ii4.5(a) of the Parent Disclosure Letter as promptly as practicable after the date of this Agreement; (iii) comply at the earliest practicable date with any request under any Governmental Entity (including under any Foreign Competition Laws) in respect of such filings or such Transaction; and (iv) act in good faith and reasonably cooperate with the other Party in connection with any such filings and in connection with resolving any investigation or other inquiry of any such agency or other Governmental Entity under any of the HSR Act, the Foreign Competition Laws, the Xxxxxxx Act, the Xxxxxxx Act and any other Laws or Orders that are designed to prohibit, restrict or regulate actions having the purpose or effect of monopolization or restraint of trade (collectively, the “Antitrust Laws”) with respect to any such filing or any such Transaction. To the extent not prohibited by applicable Law, the Parties shall use reasonable best efforts to furnish to each other all information required for any application or other filing to be made pursuant to any applicable Law in connection with the Transactions. Each Party shall give each other reasonable prior notice of any substantive communication with, Merger and any proposed understanding, undertaking or agreement with, any Governmental Entity regarding any such filings or any such Transaction. No Party shall independently participate in any meeting, or engage in any substantive conversation, with any Governmental Entity in respect of any such filings, investigation or other inquiry without giving the other Parties prior notice of the meeting or conversation and, unless prohibited by such any Governmental Entity, the opportunity to attend or participate. The Parties contemplate that as a general matter both Parent and GFI shall be represented at in-person meetings with any Governmental Entity. The Parties will consult and cooperate with one another in connection with any analyses, appearances, presentations, memoranda, briefs, arguments, opinions and proposals made or submitted by or on behalf of any Party in connection with proceedings under or relating to the HSR Act, the Foreign Competition Laws or other Antitrust LawsTransactions.
(be) Without limiting Each of the general obligations of Parent and GFI under Section 5.3(a) (Consents and Approvals), each of Parent and GFI Company Parties shall use its reasonable best efforts to resolve such objectionstake, if any, as may be asserted by any Governmental Entity with respect to the Transactions under the Antitrust Laws. In connection therewith and subject to Section 5.3(a) (Consents and Approvals), if any Proceeding is instituted (or threatened cause to be instituted) challenging any of the Transactions as inconsistent with or violative of any Antitrust Lawtaken, each of Parent and GFI shall cooperate and use its reasonable best efforts vigorously to contest and resist (by negotiationall actions, litigation or otherwise) any such Proceeding and to have vacateddo, liftedor cause to be done, reversed all things necessary, proper or overturned any Order whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents, delays or restricts consummation of the Transactions, unless Parent reasonably and in good faith determines that litigation is not in its best interests. Notwithstanding the foregoing or any other provision of this Agreement, nothing in this Section 5.3(b) shall limit the right of a Party to terminate this Agreement pursuant to Section 7.1 (Termination), so long as such Party has until that time complied in all material respects with its obligations under this Section 5.3. Each of Parent and GFI shall use its reasonable best efforts to take such action as may be required advisable to cause the expiration termination of the notice periods or to obtain the necessary approvals under the HSR Act, the Foreign Competition Laws or any other Antitrust Laws with respect to the Transactions as promptly as possible after the execution of this Agreement.
(c) Notwithstanding anything to the contrary in this Agreement, nothing in this Agreement shall be deemed to require Parent or any Parent Subsidiary to agree to or take any action that would result in any Burdensome Condition. None of GFI or any GFI Subsidiary shall agree to or take any action that would result in any Burdensome Condition without the prior written consent of Parent. For purposes of this Agreement, a “Burdensome Condition” shall mean making proposals, executing or carrying out agreements (including consent decrees) or submitting to Laws (i) providing for the transfer, license, sale or other disposition or holding separate (through the establishment of a trust or otherwise) of any assets or categories of assets of Parent, GFI or any of their respective Subsidiaries or the holding separate (through the establishment of a trust or otherwiseagreement listed on Section 6.2(e) of the Securities of any Parent Subsidiary Company Disclosure Letter concurrent with or GFI Subsidiary or (ii) imposing or seeking prior to impose any limitation on the ability of Parent, GFI or any of their respective Subsidiaries to conduct their respective businesses (including with respect to market practices and structure) or own such assets or to acquire, hold or exercise full rights of ownership of the business of GFI, the GFI Subsidiaries, Parent or the Parent Subsidiaries, in each case other than (x) with respect to Antitrust Laws, any such proposals, executing or carrying out agreements (including consent decrees) or submitting to Laws that would not impair in any material respect the expected benefits of Parent and the Parent Subsidiaries from or relating to the Transactions, or (y) with respect to Regulatory Approvals, any immaterial administrative or ministerial obligations of Parent or any Parent SubsidiaryClosing.
Appears in 2 contracts
Samples: Merger Agreement (OHI Healthcare Properties Limited Partnership), Merger Agreement (MedEquities Realty Trust, Inc.)
Consents and Approvals. (a) Subject to the terms and conditions of this AgreementThe Company, each of Parent and GFI will use its reasonable best efforts to takeMerger Sub shall each, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under applicable Law to consummate the Transactions, including, preparing and filing as promptly as practicable all documentation to effect all necessary filings, notices, petitions, statements, registrations, submissions of information, applications and other documents necessary and appropriate to consummate the Transactions. In furtherance and not in limitation of the foregoing, each of Parent and GFI shall (i) make or cause to be made the filings required of such party under the Foreign Competition Laws (including those set forth in Section 3.4(b)(i) of the Parent Disclosure Letter) with respect to the Transactions as promptly as practicable after the date of this Agreement; (ii) take all actions , file or cause to obtain be filed with the Federal Trade Commission and make the Regulatory Approvals set forth in Section 3.4(b)(ii) United States Department of Justice any notifications required to be filed under the Parent Disclosure Letter as HSR Act with respect to the transactions contemplated hereby. The parties shall use commercially reasonable efforts to respond promptly as practicable to any requests for additional information made by either of such agencies, and to cause the waiting periods under the HSR Act to terminate or expire at the earliest possible date after the date of this Agreement; (iii) comply at the earliest practicable date with any request under any Governmental Entity (including under any Foreign Competition Laws) in respect of such filings or such Transaction; and (iv) act in good faith and reasonably cooperate with the other Party in connection with any such filings and in connection with resolving any investigation or other inquiry of any such agency or other Governmental Entity under any of the HSR Act, the Foreign Competition Laws, the Xxxxxxx Act, the Xxxxxxx Act and any other Laws or Orders that are designed to prohibit, restrict or regulate actions having the purpose or effect of monopolization or restraint of trade (collectively, the “Antitrust Laws”) with respect to any such filing or any such Transaction. To the extent not prohibited by applicable Law, the Parties shall use reasonable best efforts to furnish to each other all information required for any application or other filing to be made pursuant to any applicable Law in connection with the Transactions. Each Party shall give each other reasonable prior notice of any substantive communication with, and any proposed understanding, undertaking or agreement with, any Governmental Entity regarding any such filings or any such Transaction. No Party shall independently participate in any meeting, or engage in any substantive conversation, with any Governmental Entity in respect of any such filings, investigation or other inquiry without giving the other Parties prior notice of the meeting or conversation and, unless prohibited by such any Governmental Entity, the opportunity to attend or participate. The Parties contemplate that as a general matter both Parent and GFI shall be represented at in-person meetings with any Governmental Entity. The Parties will consult and cooperate with one another in connection with any analyses, appearances, presentations, memoranda, briefs, arguments, opinions and proposals made or submitted by or on behalf of any Party in connection with proceedings under or relating to the HSR Act, the Foreign Competition Laws or other Antitrust Lawsfiling.
(b) Without limiting the general obligations of The Company, Parent and GFI under Section 5.3(a) (Consents and Approvals), each of Parent and GFI shall use its reasonable best efforts to resolve such objections, if any, as may be asserted by any Governmental Entity with respect to the Transactions under the Antitrust Laws. In connection therewith and subject to Section 5.3(a) (Consents and Approvals), if any Proceeding is instituted (or threatened to be instituted) challenging any of the Transactions as inconsistent with or violative of any Antitrust Law, each of Parent and GFI Merger Sub shall cooperate with each other and use its reasonable best efforts vigorously to contest and resist (by negotiation, litigation or otherwise) any such Proceeding and to have vacated, lifted, reversed or overturned any Order whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents, delays or restricts consummation of the Transactions, unless Parent reasonably and in good faith determines that litigation is not in its best interests. Notwithstanding the foregoing or any other provision of this Agreement, nothing in this Section 5.3(b) shall limit the right of a Party to terminate this Agreement pursuant to Section 7.1 (Termination), so long as such Party has until that time complied in all material respects with its obligations under this Section 5.3. Each of Parent and GFI shall use its reasonable best efforts to take such action as may be required to cause the expiration of the notice periods or to obtain the necessary approvals under the HSR Act, the Foreign Competition Laws or any other Antitrust Laws with respect to the Transactions as promptly as possible after the execution of this Agreement.
(c) Notwithstanding anything to the contrary in this Agreement, nothing in this Agreement shall be deemed to require Parent or any Parent Subsidiary to agree to or take any action that would result in any Burdensome Condition. None of GFI or any GFI Subsidiary shall agree to or take any action that would result in any Burdensome Condition without the prior written consent of Parent. For purposes of this Agreement, a “Burdensome Condition” shall mean making proposals, executing or carrying out agreements (including consent decrees) or submitting to Laws (i) providing for promptly prepare and file all necessary documentation, (ii) effect all necessary applications, notices, petitions and filings and execute all agreements and documents, (iii) use all reasonable efforts to obtain all necessary permits, consents, approvals and authorizations of all governmental bodies and (iv) use all commercially reasonable efforts to obtain all necessary permits, consents, approvals and authorizations of all other parties, in the transfercase of each of the foregoing clauses (i), (ii), (iii) and (iv), necessary to consummate the transactions contemplated by this Agreement or required by the terms of any note, bond, mortgage, indenture, deed of trust, license, sale franchise, permit, concession, contract, lease or other disposition or holding separate (through instrument to which the establishment of a trust or otherwise) of any assets or categories of assets of ParentCompany, GFI Merger Sub, Parent or any of their respective Subsidiaries is a party or the holding separate (through the establishment of a trust or otherwise) of the Securities of any Parent Subsidiary or GFI Subsidiary or (ii) imposing or seeking to impose any limitation on the ability of Parent, GFI or by which any of their respective Subsidiaries them is bound; provided, however, that no note, bond, mortgage, indenture, deed of trust, license, franchise, permit, concession, contract, lease or other instrument shall be amended or modified to conduct their respective businesses (including with respect to market practices and structure) or own such assets or to acquire, hold or exercise full rights of ownership of the business of GFI, the GFI Subsidiaries, Parent or the Parent Subsidiaries, in each case other than (x) with respect to Antitrust Laws, any such proposals, executing or carrying out agreements (including consent decrees) or submitting to Laws that would not impair increase in any material respect the expected benefits of Parent amount payable thereunder or to be otherwise more burdensome, or less favorable, in each case in any material respect, to the Company and the Parent Company Subsidiaries from considered as one enterprise in order to obtain any permit, consent, approval or authorization without first obtaining the written consent of Parent, which consent shall not be unreasonably withheld or delayed. The Company shall have the right to review and approve in advance all characterizations of the information relating to the TransactionsCompany; Parent shall have the right to review and approve in advance all characterizations of the information relating to Parent or Merger Sub; and each of the Company and Parent shall have the right to review and approve in advance all characterizations of the information relating to the transactions contemplated by this Agreement, or in each case which appear in any material filing (yincluding the Joint Proxy Statement) made in connection with the transactions contemplated hereby. The Company, Parent and Merger Sub agree that they will consult with each other with respect to Regulatory Approvalsthe obtaining of all such necessary permits, any immaterial administrative or ministerial obligations consents, approvals and authorizations of Parent or any Parent Subsidiaryall third parties and governmental bodies.
Appears in 2 contracts
Samples: Merger Agreement (Arena Resources Inc), Merger Agreement (Sandridge Energy Inc)
Consents and Approvals. (a) Subject Assuming the accuracy of the Investors’ representations and warranties in Section 4, no consent, approval, authorization, order, registration or qualification of or with any court or governmental agency or body having jurisdiction over the Company or any of its subsidiaries or any of its properties is required for the distribution of the Rights, the sale, issuance and delivery of the Notes upon exercise of the Rights, the issuance, sale and delivery of Unsubscribed Notes to the terms Investors hereunder, the consummation of the Rights Offering by the Company and conditions the execution and delivery by the Company of this Agreement or the Plan and performance of and compliance by it with all of the provisions hereof and thereof (including payment of the Put Option Premium and Transaction Expenses of the Investors, as applicable, as required hereby) and the consummation of the Restructuring, except (i) the entry of the Confirmation Order and the PSA Approval Order, if applicable, (ii) any applicable filings under Antitrust laws, if required, and (iii) such consents, approvals, authorizations, registrations or qualifications required for the transactions contemplated by this Agreement the absence of which would not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect. For purposes of this Agreement, each “Antitrust laws” means the Hxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of Parent 1976, as amended, and GFI will use its reasonable best efforts to take, or cause to be taken, all actions the rules and to do, or cause to be done, all things necessary, proper or advisable under applicable Law to consummate the Transactions, including, preparing regulations promulgated thereunder and filing as promptly as practicable all documentation to effect all necessary filings, notices, petitions, statements, registrations, submissions of information, applications and other documents necessary and appropriate to consummate the Transactions. In furtherance and not in limitation of the foregoing, each of Parent and GFI shall (i) make or cause to be made the filings required of such party under the Foreign Competition Laws (including those set forth in Section 3.4(b)(i) of the Parent Disclosure Letter) with respect to the Transactions as promptly as practicable after the date of this Agreement; (ii) take all actions to obtain and make the Regulatory Approvals set forth in Section 3.4(b)(ii) of the Parent Disclosure Letter as promptly as practicable after the date of this Agreement; (iii) comply at the earliest practicable date with any request under similar law enforced by any Governmental Entity (including under any Foreign Competition Laws) in respect of such filings or such Transaction; and (iv) act in good faith and reasonably cooperate with the other Party in connection with any such filings and in connection with resolving any investigation or other inquiry governmental antitrust entity of any such agency jurisdiction (foreign or other Governmental Entity under any domestic) regarding pre-acquisition notifications for the purpose of competition reviews of mergers and acquisitions, the HSR Sxxxxxx Act, the Foreign Competition Lawsas amended, the Xxxxxxx Cxxxxxx Act, as amended, the Xxxxxxx Act Federal Trade Commission Act, as amended, and any all other Laws or Orders applicable laws that are designed or intended to prohibit, restrict or regulate actions or transactions having the purpose or effect of monopolization or restraint of trade (collectively, the “Antitrust Laws”) with respect to any such filing or any such Transaction. To the extent not prohibited by applicable Law, the Parties shall use reasonable best efforts to furnish to each other all information required for any application lessening of competition through merger or other filing to be made pursuant to any applicable Law in connection with the Transactions. Each Party shall give each other reasonable prior notice of any substantive communication with, and any proposed understanding, undertaking acquisition or agreement with, any Governmental Entity regarding any such filings or any such Transaction. No Party shall independently participate in any meeting, or engage in any substantive conversation, with any Governmental Entity in respect of any such filings, investigation or other inquiry without giving the other Parties prior notice of the meeting or conversation and, unless prohibited by such any Governmental Entity, the opportunity to attend or participate. The Parties contemplate that as a general matter both Parent and GFI shall be represented at in-person meetings with any Governmental Entity. The Parties will consult and cooperate with one another in connection with any analyses, appearances, presentations, memoranda, briefs, arguments, opinions and proposals made or submitted by or on behalf of any Party in connection with proceedings under or relating to the HSR Act, the Foreign Competition Laws or other Antitrust Lawseffectuating foreign investment.
(b) Without limiting the general obligations of Parent and GFI under Section 5.3(a) (Consents and Approvals), each of Parent and GFI shall use its reasonable best efforts to resolve such objections, if any, as may be asserted by any Governmental Entity with respect to the Transactions under the Antitrust Laws. In connection therewith and subject to Section 5.3(a) (Consents and Approvals), if any Proceeding is instituted (or threatened to be instituted) challenging any of the Transactions as inconsistent with or violative of any Antitrust Law, each of Parent and GFI shall cooperate and use its reasonable best efforts vigorously to contest and resist (by negotiation, litigation or otherwise) any such Proceeding and to have vacated, lifted, reversed or overturned any Order whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents, delays or restricts consummation of the Transactions, unless Parent reasonably and in good faith determines that litigation is not in its best interests. Notwithstanding the foregoing or any other provision of this Agreement, nothing in this Section 5.3(b) shall limit the right of a Party to terminate this Agreement pursuant to Section 7.1 (Termination), so long as such Party has until that time complied in all material respects with its obligations under this Section 5.3. Each of Parent and GFI shall use its reasonable best efforts to take such action as may be required to cause the expiration of the notice periods or to obtain the necessary approvals under the HSR Act, the Foreign Competition Laws or any other Antitrust Laws with respect to the Transactions as promptly as possible after the execution of this Agreement.
(c) Notwithstanding anything to the contrary in this Agreement, nothing in this Agreement shall be deemed to require Parent or any Parent Subsidiary to agree to or take any action that would result in any Burdensome Condition. None of GFI or any GFI Subsidiary shall agree to or take any action that would result in any Burdensome Condition without the prior written consent of Parent. For purposes of this Agreement, a “Burdensome Condition” shall mean making proposals, executing or carrying out agreements (including consent decrees) or submitting to Laws (i) providing for the transfer, license, sale or other disposition or holding separate (through the establishment of a trust or otherwise) of any assets or categories of assets of Parent, GFI or any of their respective Subsidiaries or the holding separate (through the establishment of a trust or otherwise) of the Securities of any Parent Subsidiary or GFI Subsidiary or (ii) imposing or seeking to impose any limitation on the ability of Parent, GFI or any of their respective Subsidiaries to conduct their respective businesses (including with respect to market practices and structure) or own such assets or to acquire, hold or exercise full rights of ownership of the business of GFI, the GFI Subsidiaries, Parent or the Parent Subsidiaries, in each case other than (x) with respect to Antitrust Laws, any such proposals, executing or carrying out agreements (including consent decrees) or submitting to Laws that would not impair in any material respect the expected benefits of Parent and the Parent Subsidiaries from or relating to the Transactions, or (y) with respect to Regulatory Approvals, any immaterial administrative or ministerial obligations of Parent or any Parent Subsidiary.
Appears in 2 contracts
Samples: Plan Support Agreement (CHC Group Ltd.), Backstop Agreement (CHC Group Ltd.)
Consents and Approvals. Without limiting the generality of Section 6.5(a):
(a) Subject to the terms and conditions of this Agreement, each of Parent and GFI will The Parties shall use its reasonable best efforts Commercially Reasonable Efforts to take, or cause to be taken, all actions actions, and to do, or cause to be done, all things necessary, proper or advisable under applicable Law Laws to consummate the Transactions, including, preparing obtain all required consents and filing as promptly as practicable approvals of all documentation to effect all necessary filings, notices, petitions, statements, registrations, submissions of information, applications and other documents necessary and appropriate to consummate the Transactions. In furtherance and not in limitation of the foregoing, each of Parent and GFI shall (i) make or cause to be made the filings required of such party under the Foreign Competition Laws (including those set forth in Section 3.4(b)(i) of the Parent Disclosure Letter) with respect to the Transactions Governmental Authorities as promptly as practicable after the date of this Agreement; (ii) take all actions to obtain hereof, including the VSCC, and make all other filings and give all other notices required to be made prior to the Closing with respect to the transactions contemplated hereby and by the Additional Agreements, including with respect to the Seller's Required Regulatory Approvals set forth in Section 3.4(b)(ii) and Buyer's Required Regulatory Approvals. The Parties shall respond promptly to any requests for additional information made by such Persons, and use their respective Commercially Reasonable Efforts to cause all such consents and approvals, without conditions, to be obtained or waived at the earliest possible date after the date of filing. Each Party shall bear its own costs and expenses of the Parent Disclosure Letter preparation of any such filing or notice.
(b) The Parties shall use Commercially Reasonable Efforts to make all filings with the VSCC required by such Party under the applicable Laws of Virginia as promptly as practicable after the date hereof, but in any event within forty-five (45) days after the date of this Agreement; (iii) comply at the earliest practicable date with . Prior to filing any request under any Governmental Entity (including under any Foreign Competition Laws) in respect of such filings or such Transaction; and (iv) act in good faith and reasonably cooperate application with the other Party in connection with any such filings and in connection with resolving any investigation or other inquiry of any such agency or other Governmental Entity under any of the HSR Act, the Foreign Competition Laws, the Xxxxxxx Act, the Xxxxxxx Act and any other Laws or Orders that are designed to prohibit, restrict or regulate actions having the purpose or effect of monopolization or restraint of trade (collectively, the “Antitrust Laws”) with respect to any such filing or any such Transaction. To the extent not prohibited VSCC for an approval required by applicable Lawboth Parties, the Parties shall use reasonable best efforts to furnish to each jointly prepare such application and shall incorporate into such application all revisions reasonably requested by the other all information required for any application or other filing to be made pursuant to any applicable Law in connection with the TransactionsParty. Each Party shall give each other reasonable prior notice be solely responsible for its own cost of preparing and filing such application, as well as any substantive communication with, petitions for rehearing and any proposed understanding, undertaking or agreement with, any Governmental Entity regarding any such filings or any such Transaction. No Party shall independently participate in any meeting, or engage in any substantive conversation, with any Governmental Entity in respect of any such filings, investigation or other inquiry without giving the other Parties prior notice of the meeting or conversation and, unless prohibited by such any Governmental Entity, the opportunity to attend or participate. The Parties contemplate that as a general matter both Parent and GFI shall be represented at in-person meetings with any Governmental Entity. The Parties will consult and cooperate with one another in connection with any analyses, appearances, presentations, memoranda, briefs, arguments, opinions and proposals made or submitted by or on behalf of any Party in connection with proceedings under or relating to the HSR Act, the Foreign Competition Laws or other Antitrust Lawsreapplications.
(b) Without limiting the general obligations of Parent and GFI under Section 5.3(a) (Consents and Approvals), each of Parent and GFI shall use its reasonable best efforts to resolve such objections, if any, as may be asserted by any Governmental Entity with respect to the Transactions under the Antitrust Laws. In connection therewith and subject to Section 5.3(a) (Consents and Approvals), if any Proceeding is instituted (or threatened to be instituted) challenging any of the Transactions as inconsistent with or violative of any Antitrust Law, each of Parent and GFI shall cooperate and use its reasonable best efforts vigorously to contest and resist (by negotiation, litigation or otherwise) any such Proceeding and to have vacated, lifted, reversed or overturned any Order whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents, delays or restricts consummation of the Transactions, unless Parent reasonably and in good faith determines that litigation is not in its best interests. Notwithstanding the foregoing or any other provision of this Agreement, nothing in this Section 5.3(b) shall limit the right of a Party to terminate this Agreement pursuant to Section 7.1 (Termination), so long as such Party has until that time complied in all material respects with its obligations under this Section 5.3. Each of Parent and GFI shall use its reasonable best efforts to take such action as may be required to cause the expiration of the notice periods or to obtain the necessary approvals under the HSR Act, the Foreign Competition Laws or any other Antitrust Laws with respect to the Transactions as promptly as possible after the execution of this Agreement.
(c) Notwithstanding anything to the contrary in this Agreement, nothing in this Agreement shall be deemed to require Parent or any Parent Subsidiary to agree to or take any action that would result in any Burdensome Condition. None of GFI or any GFI Subsidiary shall agree to or take any action that would result in any Burdensome Condition without the prior written consent of Parent. For purposes of this Agreement, a “Burdensome Condition” shall mean making proposals, executing or carrying out agreements (including consent decrees) or submitting to Laws (i) providing for the transfer, license, sale or other disposition or holding separate (through the establishment of a trust or otherwise) of any assets or categories of assets of Parent, GFI or any of their respective Subsidiaries or the holding separate (through the establishment of a trust or otherwise) of the Securities of any Parent Subsidiary or GFI Subsidiary or (ii) imposing or seeking to impose any limitation on the ability of Parent, GFI or any of their respective Subsidiaries to conduct their respective businesses (including with respect to market practices and structure) or own such assets or to acquire, hold or exercise full rights of ownership of the business of GFI, the GFI Subsidiaries, Parent or the Parent Subsidiaries, in each case other than (x) with respect to Antitrust Laws, any such proposals, executing or carrying out agreements (including consent decrees) or submitting to Laws that would not impair in any material respect the expected benefits of Parent and the Parent Subsidiaries from or relating to the Transactions, or (y) with respect to Regulatory Approvals, any immaterial administrative or ministerial obligations of Parent or any Parent Subsidiary.
Appears in 2 contracts
Samples: Transmission Purchase and Sale Agreement (Potomac Electric Power Co), Purchase and Sale Agreement (Potomac Electric Power Co)
Consents and Approvals. (a) Subject to the terms Investor and conditions of this Agreement, ETE shall each of Parent and GFI will use its all commercially 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 Law to consummate the Transactions, including, preparing and filing as promptly as practicable all documentation to effect obtain all necessary filingsconsents, noticeswaivers, petitions, statements, registrations, submissions authorizations and approvals of information, applications all Governmental Authorities and of all other documents necessary and appropriate to consummate the Transactions. In furtherance and not in limitation of the foregoing, each of Parent and GFI shall (i) make or cause to be made the filings Persons required of such party under the Foreign Competition Laws (including those set forth in Section 3.4(b)(i) of the Parent Disclosure Letter) with respect to the Transactions as promptly as practicable after the date of this Agreement; (ii) take all actions to obtain and make the Regulatory Approvals set forth in Section 3.4(b)(ii) of the Parent Disclosure Letter as promptly as practicable after the date of this Agreement; (iii) comply at the earliest practicable date with any request under any Governmental Entity (including under any Foreign Competition Laws) in respect of such filings or such Transaction; and (iv) act in good faith and reasonably cooperate with the other Party in connection with any such filings and in connection with resolving any investigation or other inquiry of any such agency or other Governmental Entity under any of the HSR Act, the Foreign Competition Laws, the Xxxxxxx Act, the Xxxxxxx Act and any other Laws or Orders that are designed to prohibit, restrict or regulate actions having the purpose or effect of monopolization or restraint of trade (collectively, the “Antitrust Laws”) with respect to any such filing or any such Transaction. To the extent not prohibited by applicable Law, the Parties shall use reasonable best efforts to furnish to each other all information required for any application or other filing to be made pursuant to any applicable Law in connection with the Transactions. Each Party shall give execution and delivery by such party of this Agreement and the Purchase Agreement and the consummation of the transactions contemplated by this Agreement and the Purchase Agreement, and the Investor and ETE will cooperate fully with each other reasonable prior notice of any substantive communication within promptly seeking to obtain all such authorizations, consents, orders and any proposed understandingapprovals, undertaking or agreement with, any Governmental Entity regarding any to give such filings or any such Transaction. No Party shall independently participate in any meeting, or engage in any substantive conversation, with any Governmental Entity in respect of any notices and to make such filings, investigation or other inquiry without giving the other Parties prior notice of the meeting or conversation and, unless prohibited by such any Governmental Entity, the opportunity to attend or participate. The Parties contemplate that as a general matter both Parent and GFI shall be represented at in-person meetings with any Governmental Entity. The Parties will consult and cooperate with one another in connection with any analyses, appearances, presentations, memoranda, briefs, arguments, opinions and proposals made or submitted by or on behalf of any Party in connection with proceedings under or relating to the HSR Act, the Foreign Competition Laws or other Antitrust Laws.
(b) Without limiting Investor and ETE shall, in connection with their efforts to obtain all requisite material approvals and authorizations for the general obligations of Parent transactions contemplated by this Agreement and GFI under Section 5.3(a) (Consents and Approvals)the Purchase Agreement, each of Parent and GFI shall use its commercially reasonable best efforts to resolve such objections(i) supply promptly any information and documentary materials requested by, if anyand cooperate with, as may be asserted by any Antitrust Investigation, (ii) promptly inform the other party of any communication received from, or given to, any Governmental Entity with respect to the Transactions under the Antitrust Laws. In connection therewith Authority and subject to Section 5.3(a) (Consents and Approvals), if any Proceeding is instituted (or threatened to be instituted) challenging any of the Transactions as inconsistent with or violative of any material communication received or given in connection with any Antitrust LawInvestigation, each of Parent and GFI shall cooperate (iii) permit the other party to review any communication given by it to, and use its reasonable best efforts vigorously consult with other parties in advance of, any meeting or conference with, any Governmental Authority and give the other parties the opportunity to contest attend and resist (by negotiation, litigation or otherwise) any participate in such Proceeding meetings and to have vacated, lifted, reversed or overturned any Order whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents, delays or restricts consummation of the Transactions, unless Parent reasonably and in good faith determines that litigation is not in its best interests. Notwithstanding the foregoing or any other provision of this Agreement, nothing in this Section 5.3(b) shall limit the right of a Party to terminate this Agreement pursuant to Section 7.1 (Termination), so long as such Party has until that time complied in all material respects with its obligations under this Section 5.3. Each of Parent and GFI shall use its reasonable best efforts to take such action as may be required to cause the expiration of the notice periods or to obtain the necessary approvals under the HSR Act, the Foreign Competition Laws or any other Antitrust Laws with respect to the Transactions as promptly as possible after the execution of this Agreementconferences.
(c) Notwithstanding anything to the contrary in Section 6.01(a) or elsewhere in this Agreement, nothing in this Agreement shall be deemed to require Parent or any Parent Subsidiary to agree to or take any action that would result in any Burdensome Condition. None of GFI or any GFI Subsidiary shall agree to or take any action that would result in any Burdensome Condition without the prior written consent of Parent. For purposes of this Agreementobligate ETE, a “Burdensome Condition” shall mean making proposals, executing or carrying out agreements (including consent decrees) or submitting to Laws (i) providing for the transfer, license, sale or other disposition or holding separate (through the establishment of a trust or otherwise) of any assets or categories of assets of Parent, GFI ETP or any of their respective Subsidiaries subsidiaries to divest, accept any condition, take any action or the holding separate (through the establishment agree to any limitation with respect to any of its business, operations or assets, each, a trust “Divestiture Action”, in order to resolve any Antitrust Investigation or otherwise.
(d) of In the Securities of event any Parent Subsidiary or GFI Subsidiary or (ii) imposing or seeking to impose any limitation on the ability of ParentGovernmental Authority requires ETE, GFI ETP, or any of their respective Subsidiaries subsidiaries to conduct take any Divestiture Action and ETE, ETP or any of their respective businesses subsidiaries takes any such actions to resolve any Antitrust Investigation, Investor hereby agrees to indemnify and hold harmless ETE, ETP and their respective subsidiaries against any and all fines, penalties, expenses, damages and losses incurred by ETE, ETP or any of their respective subsidiaries (including all consequential damages, but excluding any punitive or exemplary damages) in connection with respect such Divestiture Action (“Divestiture Losses”). Projected cash flows obtained in connection with the acquisition of alternative assets directly or indirectly with the proceeds of any such Divestiture Action compared to market practices and structure) or own such assets or to acquire, hold or exercise full rights of ownership the projected cash flows of the business assets divested may be considered in connection with the determination of GFIthe amount of damages and losses. In addition, the GFI Subsidiariesstrategic value of any asset subject to a Divestiture Action by ETE, Parent ETP or any of their respective subsidiaries, including any consequential diminution in value of any other assets of ETE, ETP or any of their respective subsidiaries, may be considered in determining the Parent Subsidiariesamount of damages or loss incurred by ETE, ETP and their respective subsidiaries in each case other than (x) connection with respect to Antitrust Laws, any such proposalsDivestiture Action. ETE shall not be entitled to multiple recovery for any Divestiture Losses, executing including any indirect Losses to ETE for which EPE has compensated ETP or carrying out agreements (including consent decrees) or submitting to Laws that would not impair in any material respect the expected benefits of Parent and the Parent Subsidiaries from or relating to the Transactions, or (y) with respect to Regulatory Approvals, any immaterial administrative or ministerial obligations of Parent or any Parent Subsidiaryits subsidiaries directly.
Appears in 2 contracts
Samples: Unitholder Rights and Restrictions Agreement (Energy Transfer Equity, L.P.), Unitholder Rights and Restrictions Agreement (Enterprise GP Holdings L.P.)
Consents and Approvals. (a) Subject to Upon the terms and subject to the conditions of set forth in this Agreement, each of the Company and Parent shall and GFI will shall cause their respective Subsidiaries, to use its reasonable best efforts to take, or cause to be taken, all actions actions, and to do, or cause to be done, and to assist and cooperate with the other Party in doing, all things necessary, proper or advisable under applicable Law or pursuant to any Contract to consummate and make effective, as promptly as practicable, the Merger and the other Transactions, includingincluding (i) the taking of all actions necessary to cause the conditions to Closing set forth in Article VII to be satisfied, (ii) the preparing and filing as promptly as practicable of all documentation to effect all necessary required filings, notices, petitions, statements, registrations, submissions of information, and applications and the obtaining of all necessary actions or nonactions, waivers, consents, authorizations and approvals from Governmental Entities or other documents Persons necessary and appropriate to consummate in connection with the Transactions. In furtherance and not in limitation consummation of the foregoing, each Merger and the other Transactions and the making of Parent all necessary registrations and GFI shall (i) make or cause to be made the filings required of such party under the Foreign Competition Laws (including those set forth filings with Governmental Entities, if any) and the taking of all reasonable steps as may be necessary to obtain an approval or waiver from, or to avoid Legal Proceeding by, any Governmental Entity or other Persons necessary in Section 3.4(b)(i) connection with the consummation of the Parent Disclosure Letter) with respect to Merger and the Transactions as promptly as practicable after the date of this Agreement; (ii) take all actions to obtain and make the Regulatory Approvals set forth in Section 3.4(b)(ii) of the Parent Disclosure Letter as promptly as practicable after the date of this Agreement; other Transactions, (iii) comply at the earliest practicable date with defending of any request under any Governmental Entity (including under any Foreign Competition Laws) in respect Legal Proceedings, whether judicial or administrative, challenging this Agreement or the consummation of such filings the Merger or such Transaction; and (iv) act in good faith and reasonably cooperate with the other Party in connection with Transactions, including seeking to have any such filings and in connection with resolving stay or temporary restraining Order entered by any investigation or other inquiry of any such agency court or other Governmental Entity vacated or reversed, the avoidance of each and every impediment under any of the HSR Actantitrust, the Foreign Competition Lawsmerger control, the Xxxxxxx Act, the Xxxxxxx Act and any other Laws competition or Orders trade regulation Law that are designed to prohibit, restrict or regulate actions having the purpose or effect of monopolization or restraint of trade (collectively, the “Antitrust Laws”) with respect to any such filing or any such Transaction. To the extent not prohibited by applicable Law, the Parties shall use reasonable best efforts to furnish to each other all information required for any application or other filing to be made pursuant to any applicable Law in connection with the Transactions. Each Party shall give each other reasonable prior notice of any substantive communication with, and any proposed understanding, undertaking or agreement with, any Governmental Entity regarding any such filings or any such Transaction. No Party shall independently participate in any meeting, or engage in any substantive conversation, with any Governmental Entity in respect of any such filings, investigation or other inquiry without giving the other Parties prior notice of the meeting or conversation and, unless prohibited by such any Governmental Entity, the opportunity to attend or participate. The Parties contemplate that as a general matter both Parent and GFI shall be represented at in-person meetings with any Governmental Entity. The Parties will consult and cooperate with one another in connection with any analyses, appearances, presentations, memoranda, briefs, arguments, opinions and proposals made or submitted by or on behalf of any Party in connection with proceedings under or relating to the HSR Act, the Foreign Competition Laws or other Antitrust Laws.
(b) Without limiting the general obligations of Parent and GFI under Section 5.3(a) (Consents and Approvals), each of Parent and GFI shall use its reasonable best efforts to resolve such objections, if any, as may be asserted by any Governmental Entity with respect to the Merger so as to enable the Closing to occur as soon as reasonably possible, and (iv) the execution and delivery of any additional instruments necessary to consummate the Merger and the other Transactions under and to fully carry out the Antitrust Laws. purposes of this Agreement.
(b) In connection therewith with and subject to Section 5.3(a) (Consents and Approvals), if any Proceeding is instituted (or threatened to be instituted) challenging any of without limiting the Transactions as inconsistent with or violative of any Antitrust Lawforegoing, each of Parent and GFI the Company shall cooperate and use its reasonable best efforts vigorously give (or shall cause to contest and resist (by negotiation, litigation or otherwisebe given) any such Proceeding notices to any Person, and to have vacated, lifted, reversed or overturned any Order whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents, delays or restricts consummation of the Transactions, unless Parent reasonably and in good faith determines that litigation is not in its best interests. Notwithstanding the foregoing or any other provision of this Agreement, nothing in this Section 5.3(b) shall limit the right of a Party to terminate this Agreement pursuant to Section 7.1 (Termination), so long as such Party has until that time complied in all material respects with its obligations under this Section 5.3. Each each of Parent and GFI the Company shall use use, and cause each of their respective affiliates to use, its reasonable best efforts to take such action as may be required obtain any consents from any Person not covered by Section 6.2(a) that are necessary, proper or advisable to cause consummate the expiration Merger. Each of the notice periods Parties will furnish to the other such necessary information and reasonable assistance as the other may request in connection with the preparation of any required governmental filings or submissions and will cooperate in responding to obtain any inquiry from a Governmental Entity, including promptly informing the necessary approvals under the HSR Actother Party of such inquiry, the Foreign Competition Laws consulting in advance before making any presentations or submissions to a Governmental Entity, and supplying each other with copies of all material correspondence, filings or communications between either Party and any other Antitrust Laws Governmental Entity with respect to the Transactions as promptly as possible after the execution of this Agreement. To the extent reasonably practicable, the Parties or their Representatives shall have the right to review in advance and each of the Parties will consult the others on, all the information relating to the other and each of their affiliates that appears in any filing made with, or written materials submitted to, any Governmental Entity in connection with the Merger and the other Transactions, except that confidential competitively sensitive business information may be redacted from such exchanges. To the extent reasonably practicable, neither the Company nor Parent shall, nor shall they permit their respective Representatives to, participate independently in any meeting or engage in any substantive conversation with any Governmental Entity in respect of any filing, investigation or other inquiry without giving the other Party prior notice of such meeting or conversation and, to the extent permitted by applicable Law, without giving the other Party the opportunity to attend or participate (whether by telephone or in person) in any such meeting with such Governmental Entity. Notwithstanding the foregoing, obtaining any approval or consent from any Person pursuant to this Section 6.2(b) shall not be a condition to the obligations of the Parties to consummate the Merger.
(c) Notwithstanding anything to the contrary in this Agreement, nothing in this Agreement shall be deemed connection with obtaining any approval or consent from any Person (other than any Governmental Entity) with respect to require the Merger, none of the Company or any of the Company Subsidiaries, Parent or any Parent Subsidiary to agree to or take any action that would result in any Burdensome Condition. None of GFI or any GFI Subsidiary shall agree to or take any action that would result in any Burdensome Condition without the prior written consent of Parent. For purposes of this Agreement, a “Burdensome Condition” shall mean making proposals, executing or carrying out agreements (including consent decrees) or submitting to Laws (i) providing for the transfer, license, sale or other disposition or holding separate (through the establishment of a trust or otherwise) of any assets or categories of assets of Parent, GFI its Subsidiaries or any of their respective Subsidiaries Representatives, shall be obligated to pay or the holding separate (through the establishment of a trust commit to pay to such Person whose approval or otherwise) of the Securities of consent is being solicited any Parent Subsidiary cash or GFI Subsidiary other consideration, make any accommodation or (ii) imposing commitment or seeking incur any liability or other obligation to impose any limitation on the ability of Parent, GFI or any of their respective Subsidiaries to conduct their respective businesses (including with respect to market practices and structure) or own such assets or to acquire, hold or exercise full rights of ownership of the business of GFI, the GFI Subsidiaries, Parent or the Parent SubsidiariesPerson, in each case other than (x) that is not conditioned upon the occurrence of the Closing. Subject to the foregoing sentence, the Parties shall cooperate with respect to Antitrust Laws, reasonable accommodations that may be requested or appropriate to obtain such consents. The Parties acknowledge and agree that no approval or consent of any such proposals, executing or carrying out agreements (including consent decrees) or submitting to Laws that would not impair in any material respect the expected benefits of Parent and the Parent Subsidiaries from or relating Person is a condition to the Transactions, or (y) with respect to Regulatory Approvals, any immaterial administrative or ministerial obligations of Parent or any Parent SubsidiaryParty to effect the Merger.
Appears in 2 contracts
Samples: Merger Agreement (Omega Healthcare Investors Inc), Merger Agreement (Aviv Reit, Inc.)
Consents and Approvals. (a) Subject to the terms Seller and conditions of this Agreement, each of Parent and GFI will Purchaser shall use its commercially reasonable best efforts to take, or cause to be taken, obtain all actions Consents and Permits and to do, or cause to be done, obtain all things necessary, proper or advisable under applicable Law to consummate the Transactions, including, preparing and filing as promptly as practicable all documentation to effect all necessary filings, notices, petitions, statements, registrations, submissions of information, applications certificates and other documents necessary and appropriate to consummate the Transactions. In furtherance and not in limitation of the foregoingdocuments, each of Parent and GFI shall (i) make or cause to be made the filings required of such party under the Foreign Competition Laws (including those set forth in Section 3.4(b)(i) of the Parent Disclosure Letter) with respect to the Transactions as promptly as practicable after the date of this Agreement; (ii) take all actions to obtain and make the Regulatory Approvals set forth in Section 3.4(b)(ii) of the Parent Disclosure Letter as promptly as practicable after the date of this Agreement; (iii) comply at the earliest practicable date with any request under any Governmental Entity (including under any Foreign Competition Laws) in respect of such filings or such Transaction; and (iv) act in good faith and reasonably cooperate with the other Party in connection with any such filings and in connection with resolving any investigation or other inquiry of any such agency or other Governmental Entity under any of the HSR Act, the Foreign Competition Laws, the Xxxxxxx Act, the Xxxxxxx Act and any other Laws or Orders that are designed to prohibit, restrict or regulate actions having the purpose or effect of monopolization or restraint of trade (collectively, the “Antitrust Laws”) with respect to any such filing or any such Transaction. To the extent not prohibited by applicable Law, the Parties shall use reasonable best efforts to furnish to each other all information required for any application or other filing to be made pursuant to any applicable Law in connection with the Transactionsperformance by it of this Agreement and its Related Agreements and the consummation by it of the transactions contemplated hereby and thereby. Each Party Seller shall give each other reasonable prior notice of any substantive communication with, and any proposed understanding, undertaking or agreement with, any Governmental Entity regarding any such filings or any such Transaction. No Party shall independently participate in any meeting, or engage in any substantive conversation, with any Governmental Entity in respect of any such promptly make all filings, investigation or applications, notifications, statements and reports to all Governmental Authorities and other inquiry without giving the other Parties prior notice of the meeting or conversation and, unless prohibited by such any Governmental Entity, the opportunity Persons that are required to attend or participate. The Parties contemplate that as a general matter both Parent and GFI shall be represented at in-person meetings with any Governmental Entity. The Parties will consult and cooperate with one another in connection with any analyses, appearances, presentations, memoranda, briefs, arguments, opinions and proposals made or submitted by or on behalf of Seller pursuant to any Party applicable Law, Order or Contract in connection with proceedings under or relating to the HSR Actthis Agreement (including, without limitation, the Foreign Competition Laws Transition Plan), its Related Agreements and the transactions contemplated hereby and thereby, including applications for Consents required from the Federal Communications Commission and state public utility commissions. Purchaser shall promptly make all filings, applications, notifications, statements and reports to all Governmental Authorities and other Persons by or other Antitrust Lawson behalf of Purchaser or any of its Affiliates pursuant to any applicable Law, Order or Contract in connection with this Agreement (including, without limitation, the Transition Plan), its Related Agreements (including, without limitation, the Transition Plan) and the transactions contemplated hereby and thereby.
(b) Without limiting the general obligations of Parent and GFI under Section 5.3(a) (Consents and Approvals), each of Parent and GFI shall use its reasonable best efforts If a Consent is required from any third party to resolve such objections, if any, as may be asserted by any Governmental Entity with respect to the Transactions under the Antitrust Laws. In connection therewith and subject to Section 5.3(a) (Consents and Approvals), if any Proceeding is instituted (or threatened to be instituted) challenging any of the Transactions as inconsistent with Acquired Contracts (other than Customer Contracts) until such Consent is obtained, or violative of any Antitrust Lawif an attempted transfer, each of Parent and GFI conveyance or assignment is ineffective, Seller shall cooperate and use its with Purchaser in any commercially reasonable best efforts vigorously to contest and resist (arrangement requested by negotiation, litigation or otherwise) any such Proceeding and to have vacated, lifted, reversed or overturned any Order whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents, delays or restricts consummation of the Transactions, unless Parent reasonably and in good faith determines that litigation is not in its best interests. Notwithstanding the foregoing or any other provision of this Agreement, nothing in this Section 5.3(b) shall limit the right of a Party to terminate this Agreement pursuant to Section 7.1 (Termination), Purchaser for so long as such Party has until Acquired Contract is in effect that time complied in all material respects with its (i) provides to Purchaser the benefits under any such Acquired Contract, (ii) imposes on Purchaser the obligations and liabilities under this Section 5.3. Each of Parent such Acquired Contract and GFI shall use its reasonable best efforts to take (iii) protects Seller from liability under such action as may be required to cause the expiration of the notice periods or to obtain the necessary approvals under the HSR Act, the Foreign Competition Laws or any other Antitrust Laws with respect to the Transactions as promptly as possible after the execution of this AgreementAcquired Contract.
(c) Notwithstanding anything to the contrary in this Agreement, nothing in this Agreement shall be deemed to require Parent or any Parent Subsidiary to agree to or take any action that would result in any Burdensome Condition. None of GFI or any GFI Subsidiary shall agree to or take any action that would result in any Burdensome Condition without the prior written consent of Parent. For purposes Promptly after execution of this Agreement, Seller and Purchaser jointly will prepare and distribute to each Customer written notification of the contemplated transfer of its Customer Contract to Purchaser that will include a “Burdensome Condition” request for Consent of the Customer Contract, as needed. Purchaser and Seller agree that if a Customer denies Consent in writing, its Customer Contract will not be transferred to Purchaser, and that in all other cases, subject to the other provisions of this Agreement, such Customer Contract will be transferred to Purchaser. Except for a breach by Seller of its obligations specifically set forth in this Section 6.3, Purchaser acknowledges and agrees that Seller shall mean making proposals, executing have no liability to Purchaser or carrying out agreements (including consent decrees) or submitting any third party as a result of the failure to Laws (i) providing for the transfer, license, sale or other disposition or holding separate (through the establishment receive a Consent of a trust or otherwise) of Customer to transfer any assets or categories of assets of Parent, GFI or any of their respective Subsidiaries or the holding separate (through the establishment of a trust or otherwise) of the Securities of any Parent Subsidiary or GFI Subsidiary or (ii) imposing or seeking Customer Contract to impose any limitation on the ability of Parent, GFI or any of their respective Subsidiaries to conduct their respective businesses (including with respect to market practices and structure) or own such assets or to acquire, hold or exercise full rights of ownership of the business of GFI, the GFI Subsidiaries, Parent or the Parent Subsidiaries, in each case other than (x) with respect to Antitrust Laws, any such proposals, executing or carrying out agreements (including consent decrees) or submitting to Laws that would not impair in any material respect the expected benefits of Parent and the Parent Subsidiaries from or relating to the Transactions, or (y) with respect to Regulatory Approvals, any immaterial administrative or ministerial obligations of Parent or any Parent SubsidiaryPurchaser.
Appears in 2 contracts
Samples: Customer Transfer Agreement (Primus Telecommunications Group Inc), Customer Transfer Agreement (Primus Telecommunications Group Inc)
Consents and Approvals. (a) Subject to The Sellers and the terms and conditions of this Agreement, Buyer shall each of Parent and GFI will use its reasonable best efforts to take, file or cause to be taken, all actions filed with the Federal Trade Commission and to do, or cause the United States Department of Justice any notifications required to be done, all things necessary, proper or advisable under applicable Law to consummate the Transactions, including, preparing and filing as promptly as practicable all documentation to effect all necessary filings, notices, petitions, statements, registrations, submissions of information, applications and other documents necessary and appropriate to consummate the Transactions. In furtherance and not in limitation of the foregoing, each of Parent and GFI shall (i) make or cause to be made the filings required of such party filed under the Foreign Competition Laws (including those set forth in Section 3.4(b)(i) of HSR Act and the Parent Disclosure Letter) rules and regulations promulgated thereunder with respect to the Transactions transactions contemplated hereby. The parties shall consult with each other as to the appropriate time of filing such notifications and shall use their best efforts to make such filings at the agreed upon time, to respond promptly as practicable to any requests for additional information made by either of such agencies, and to cause the waiting periods under the HSR Act to terminate or expire at the earliest possible date after the date of this Agreement; (ii) take all actions to obtain and make the Regulatory Approvals set forth in Section 3.4(b)(ii) of the Parent Disclosure Letter as promptly as practicable after the date of this Agreement; (iii) comply at the earliest practicable date with any request under any Governmental Entity (including under any Foreign Competition Laws) in respect of such filings or such Transaction; and (iv) act in good faith and reasonably cooperate with the other Party in connection with any such filings and in connection with resolving any investigation or other inquiry of any such agency or other Governmental Entity under any of the HSR Act, the Foreign Competition Laws, the Xxxxxxx Act, the Xxxxxxx Act and any other Laws or Orders that are designed to prohibit, restrict or regulate actions having the purpose or effect of monopolization or restraint of trade (collectively, the “Antitrust Laws”) with respect to any such filing or any such Transaction. To the extent not prohibited by applicable Law, the Parties shall use reasonable best efforts to furnish to each other all information required for any application or other filing to be made pursuant to any applicable Law in connection with the Transactions. Each Party shall give each other reasonable prior notice of any substantive communication with, and any proposed understanding, undertaking or agreement with, any Governmental Entity regarding any such filings or any such Transaction. No Party shall independently participate in any meeting, or engage in any substantive conversation, with any Governmental Entity in respect of any such filings, investigation or other inquiry without giving the other Parties prior notice of the meeting or conversation and, unless prohibited by such any Governmental Entity, the opportunity to attend or participate. The Parties contemplate that as a general matter both Parent and GFI shall be represented at in-person meetings with any Governmental Entity. The Parties will consult and cooperate with one another in connection with any analyses, appearances, presentations, memoranda, briefs, arguments, opinions and proposals made or submitted by or on behalf of any Party in connection with proceedings under or relating to the HSR Act, the Foreign Competition Laws or other Antitrust Lawsfiling.
(b) Without limiting The Sellers and the general obligations Buyer shall cooperate with each other and (i) promptly prepare and file all necessary documentation, (ii) effect all necessary applications, notices, petitions and filings and execute all agreements and documents, (iii) use all commercially reasonable efforts to obtain the transfer or reissuance to the Buyer of Parent all necessary Transferable Permits, consents, approvals and GFI under Section 5.3(aauthorizations of all governmental bodies and (iv) use all commercially reasonable efforts to obtain all necessary consents, approvals and authorizations of all other parties, in the case of each of the foregoing clauses (Consents and Approvalsi), each of Parent and GFI shall use its reasonable best efforts to resolve such objections, if any, as may be asserted by any Governmental Entity with respect to the Transactions under the Antitrust Laws. In connection therewith and subject to Section 5.3(a) (Consents and Approvalsii), if (iii) and (iv), necessary or advisable to consummate the transactions contemplated by this Agreement (including, without limitation, the Sellers Required Regulatory Approvals and the Buyer Required Regulatory Approvals) or required by the terms of any Proceeding note, bond, mortgage, indenture, deed of trust, license, franchise, permit, concession, contract, lease or other instrument to which the Sellers or the Buyer is instituted (a party or threatened to be instituted) challenging by which any of the Transactions as inconsistent with or violative of any Antitrust Law, each of Parent and GFI shall cooperate and use its reasonable best efforts vigorously to contest and resist (by negotiation, litigation or otherwise) any such Proceeding and to have vacated, lifted, reversed or overturned any Order whether temporary, preliminary or permanent, that them is in effect and that prohibits, prevents, delays or restricts consummation of the Transactions, unless Parent reasonably and in good faith determines that litigation is not in its best interests. Notwithstanding the foregoing or any other provision of this Agreement, nothing in this Section 5.3(b) shall limit the right of a Party to terminate this Agreement pursuant to Section 7.1 (Termination), so long as such Party has until that time complied in all material respects with its obligations under this Section 5.3bound. Each of Parent the Sellers and GFI the Buyer shall use its reasonable best efforts have the right to take such action as may be required to cause the expiration review in advance all characterizations of the notice periods or to obtain the necessary approvals under the HSR Act, the Foreign Competition Laws or any other Antitrust Laws with respect information relating to the Transactions as promptly as possible after transactions contemplated by this Agreement which appear in any filing made in connection with the execution of this Agreementtransactions contemplated hereby.
(c) Notwithstanding anything to The Sellers and the contrary Buyer shall cooperate with each other and promptly prepare and file notifications with, and request Tax clearances from, state and local taxing authorities in this Agreement, nothing jurisdictions in this Agreement shall be deemed to require Parent or any Parent Subsidiary to agree to or take any action that would result in any Burdensome Condition. None of GFI or any GFI Subsidiary shall agree to or take any action that would result in any Burdensome Condition without the prior written consent of Parent. For purposes of this Agreement, which a “Burdensome Condition” shall mean making proposals, executing or carrying out agreements (including consent decrees) or submitting to Laws (i) providing for the transfer, license, sale or other disposition or holding separate (through the establishment of a trust or otherwise) of any assets or categories of assets of Parent, GFI or any of their respective Subsidiaries or the holding separate (through the establishment of a trust or otherwise) portion of the Securities of Purchase Price may be required to be withheld or in which the Buyer would otherwise be liable for any Parent Subsidiary or GFI Subsidiary or (ii) imposing or seeking to impose any limitation on the ability of Parent, GFI or any of their respective Subsidiaries to conduct their respective businesses (including with respect to market practices and structure) or own such assets or to acquire, hold or exercise full rights of ownership Tax liabilities of the business of GFI, the GFI Subsidiaries, Parent or the Parent Subsidiaries, in each case other than (x) with respect Sellers pursuant to Antitrust Laws, any such proposals, executing or carrying out agreements (including consent decrees) or submitting to Laws that would not impair in any material respect the expected benefits of Parent state and the Parent Subsidiaries from or relating to the Transactions, or (y) with respect to Regulatory Approvals, any immaterial administrative or ministerial obligations of Parent or any Parent Subsidiarylocal Tax law.
Appears in 2 contracts
Samples: Asset Purchase Agreement (New England Electric System), Asset Purchase Agreement (Pg&e Corp)
Consents and Approvals. (a) Subject to the terms requirements of applicable antitrust laws, the Company, Parent and conditions Merger Sub shall each, as promptly as practicable (and in any event within five Business days) after the date of this Agreement, each of Parent and GFI will use its reasonable best efforts to take, file or cause to be taken, all actions filed with (i) the Federal Trade Commission (the “FTC”) and to do, or cause the United States Department of Justice (the “DOJ”) any notifications required to be donefiled under the HSR Act; and (ii) the Competition Bureau any notifications required to be filed under the Competition Act with respect to the transactions contemplated by this Agreement.
(b) Subject to the requirements of applicable antitrust laws, the Company, Parent and Merger Sub shall cooperate with each other and (i) promptly prepare and file all things necessarynecessary documentation, proper or advisable under applicable Law (ii) effect all necessary applications, notices, petitions and filings and execute all agreements and documents, (iii) use all reasonable efforts to obtain all necessary permits, consents, approvals and authorizations of all Governmental Authorities and (iv) use all reasonable efforts to obtain all necessary Permits, consents, approvals and authorizations of all other parties, in the case of each of the foregoing clauses (i), (ii), (iii) and (iv), necessary to consummate the Transactionstransactions contemplated by this Agreement or required by the terms of any note, includingbond, preparing mortgage, indenture, deed of trust, license, franchise, permit, concession, contract, lease or other instrument to which the Company, Merger Sub, Parent or any of their respective Subsidiaries is a party or by which any of them is bound; provided, however, that no note, bond, mortgage, indenture, deed of trust, license, franchise, permit, concession, contract, lease or other instrument shall be amended or modified to increase in any material respect the amount payable thereunder or to be otherwise more burdensome, or less favorable, in each case in any material respect, to the Company and the Company Subsidiaries considered as one enterprise in order to obtain any permit, consent, approval or authorization without first obtaining the written consent of Parent, which consent shall not be unreasonably withheld or delayed. The Company shall have the right to review and approve in advance all characterizations of the information relating to the Company; Parent shall have the right to review and approve in advance all characterizations of the information relating to Parent or Merger Sub; and each of the Company and Parent shall have the right to review and approve in advance all characterizations of the information relating to the transactions contemplated by this Agreement, in each case which appear in any material filing as promptly as practicable (including the Proxy Statement) made in connection with the transactions contemplated hereby. The Company, Parent and Merger Sub agree that they will consult with each other with respect to the obtaining of all documentation to effect such necessary Permits, consents, approvals and authorizations of all necessary filings, notices, petitions, statements, registrations, submissions of information, applications third parties and other documents necessary and appropriate to consummate the Transactions. Governmental Authorities.
(c) In furtherance of, and not in limitation of the foregoingforegoing or Section 5.5, each of Parent the parties shall use their respective best efforts to respond promptly to any requests for additional information made by either the FTC or the DOJ, and GFI shall (i) make or to cause to be made the filings required of such party waiting periods under the Foreign Competition Laws (including those set forth in Section 3.4(b)(i) of HSR Act to terminate or expire at the Parent Disclosure Letter) with respect to the Transactions as promptly as practicable earliest possible date after the date of this Agreement; (ii) take all actions filing. The parties hereto agree not to obtain extend directly or indirectly any waiting period under the HSR Act or enter into any agreement with a Governmental Authority to delay or not to consummate the Merger and make the Regulatory Approvals set forth in Section 3.4(b)(ii) other Transactions, except with the prior written consent of the other parties hereto. Each of Parent Disclosure Letter as and Merger Sub and the Company will (x) promptly as practicable after notify the date other party of this Agreement; (iii) comply at the earliest practicable date with any request under written communication to that party from any Governmental Entity (including under any Foreign Competition Laws) in respect of such filings or such Transaction; and (iv) act in good faith and reasonably cooperate with Authority and, subject to applicable Law, permit the other Party party to review in connection advance any proposed written communication to any such Governmental Authority and incorporate the other party’s reasonable comments, (y) not agree to participate in any substantive meeting or discussion with any such filings and in connection with resolving any investigation or other inquiry of any such agency or other Governmental Entity under any of the HSR Act, the Foreign Competition Laws, the Xxxxxxx Act, the Xxxxxxx Act and any other Laws or Orders that are designed to prohibit, restrict or regulate actions having the purpose or effect of monopolization or restraint of trade (collectively, the “Antitrust Laws”) with respect to any such filing or any such Transaction. To the extent not prohibited by applicable Law, the Parties shall use reasonable best efforts to furnish to each other all information required for any application or other filing to be made pursuant to any applicable Law in connection with the Transactions. Each Party shall give each other reasonable prior notice of any substantive communication with, and any proposed understanding, undertaking or agreement with, any Governmental Entity regarding any such filings or any such Transaction. No Party shall independently participate in any meeting, or engage in any substantive conversation, with any Governmental Entity Authority in respect of any such filingsfiling, investigation or other inquiry without giving concerning this Agreement, the Merger or the other Parties prior notice of Transactions unless it consults with the meeting or conversation other party in advance and, unless prohibited to the extent permitted by such any Governmental EntityAuthority, gives the other party the opportunity to attend attend, and (z) furnish the other party with copies of all correspondence, filings and written communications between them and their affiliates and their respective representatives on one hand, and any such Governmental Authority or participate. The Parties contemplate that as a general matter both Parent and GFI shall be represented at in-person meetings with any Governmental Entity. The Parties will consult and cooperate with one another in connection with any analysesits staff on the other hand, appearances, presentations, memoranda, briefs, arguments, opinions and proposals made or submitted by or on behalf of any Party in connection with proceedings under or relating to the HSR Act, the Foreign Competition Laws or other Antitrust Laws.
(b) Without limiting the general obligations of Parent and GFI under Section 5.3(a) (Consents and Approvals), each of Parent and GFI shall use its reasonable best efforts to resolve such objections, if any, as may be asserted by any Governmental Entity with respect to this Agreement, the Transactions under Merger and the Antitrust Lawsother Transactions. In connection therewith and subject to Section 5.3(a) (Consents and Approvals), if If any Proceeding administrative or judicial action or proceeding is instituted (or threatened to be instituted) challenging any of the Merger or the Transactions contemplated by this Agreement as inconsistent with or violative of any Antitrust Lawantitrust law, or if any judgment, ruling, order, writ, injunction, decree, statute, law, rule or regulation applicable to the Company that would make the Merger or the other transactions contemplated by this Agreement illegal or would otherwise prohibit or materially impair or delay the consummation of the Merger or the other transactions contemplated by this Agreement, each of Parent and GFI Merger Sub shall cooperate and use its reasonable best efforts vigorously efforts, including selling, holding separate or otherwise disposing of or conducting its business in a specified manner, or agreeing to sell, hold separate or otherwise dispose of or conduct its business in a specified manner or permitting the sale, holding separate or other disposition of, any assets of Parent and Merger Sub or their respective subsidiaries, or after the Closing, the Company or the Company Subsidiaries, or the conducting of its business in a specified manner, to contest and resist (by negotiation, litigation or otherwise) any such Proceeding action or proceeding and shall use its best efforts to have vacated, lifted, reversed or overturned any Order decree, judgment, injunction or other order, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents, delays prevents or restricts consummation of the TransactionsMerger or the other Transactions and to have such statute, unless Parent reasonably rule, regulation, executive order, decree, injunction or administrative order repealed, rescinded or made inapplicable so as to permit consummation of the Merger and in good faith determines that litigation is not in its best interests. Notwithstanding the foregoing or any other provision of transactions contemplated by this Agreement. The Company will cooperate with Parent and Merger Sub in all respects in Parent’s and Merger Sub’s implementation of any of the measures described in the preceding sentence that is undertaken in order to permit consummation of the Merger or the Transactions (including entering into agreements or taking such other actions prior to the Closing as Parent and Merger Sub reasonably request to dispose of assets of the Company and the Company Subsidiaries; provided, nothing in that neither the Company nor any the Company Subsidiary shall be required pursuant to this Section 5.3(b) shall limit the right of a Party 5.3 to terminate this Agreement pursuant to Section 7.1 (Termination), so long as such Party has until that time complied in all material respects with its obligations under this Section 5.3. Each of Parent and GFI shall use its reasonable best efforts to take such action as may be required to cause the expiration complete any disposition of the notice periods assets of the Company or to obtain the necessary approvals under the HSR Act, the Foreign Competition Laws or any other Antitrust Laws with respect a Company Subsidiary prior to the Transactions as promptly as possible after the execution of this Agreement.
(c) Notwithstanding anything to the contrary in this Agreement, nothing in this Agreement shall be deemed to require Parent Closing or enter into any Parent Subsidiary to agree to or take any action that would result in any Burdensome Condition. None of GFI or any GFI Subsidiary shall agree to or take any action that would result in any Burdensome Condition without the prior written consent of Parent. For purposes of this Agreement, a “Burdensome Condition” shall mean making proposals, executing or carrying out agreements (including consent decrees) or submitting to Laws (i) providing for the transfer, license, sale agreement or other arrangement for a disposition or holding separate (through the establishment of a trust or otherwise) of any assets or categories of assets of Parent, GFI or any of their respective Subsidiaries or the holding separate (through the establishment of a trust or otherwise) of the Securities of any Parent Company or a Company Subsidiary that does not expressly provide that the Company’s obligation to complete such disposition is subject to the prior or GFI Subsidiary or (ii) imposing or seeking to impose any limitation on the ability of Parent, GFI or any of their respective Subsidiaries to conduct their respective businesses (including with respect to market practices and structure) or own such assets or to acquire, hold or exercise full rights of ownership simultaneous occurrence of the business of GFI, the GFI Subsidiaries, Parent or the Parent Subsidiaries, in each case other than (x) with respect to Antitrust Laws, any such proposals, executing or carrying out agreements (including consent decrees) or submitting to Laws that would not impair in any material respect the expected benefits of Parent and the Parent Subsidiaries from or relating to the Transactions, or (y) with respect to Regulatory Approvals, any immaterial administrative or ministerial obligations of Parent or any Parent SubsidiaryClosing).
Appears in 2 contracts
Samples: Merger Agreement (Kerr McGee Corp /De), Merger Agreement (Anadarko Petroleum Corp)
Consents and Approvals. (a) Subject to Upon the terms and subject to the conditions of set forth in this Agreement, each of the Company and Parent shall and GFI will shall cause their respective Subsidiaries, to use its commercially reasonable best efforts to take, or cause to be taken, all actions actions, and to do, or cause to be done, and to assist and cooperate with the other Party in doing, all things necessary, proper or advisable under applicable Law or pursuant to any contract or agreement to consummate the Transactionsand make effective, including, preparing and filing as promptly as practicable all documentation to effect all necessary filingspracticable, noticesthe Mergers and the other Transactions, petitions, statements, registrations, submissions of information, applications and other documents necessary and appropriate to consummate the Transactions. In furtherance and not in limitation of the foregoing, each of Parent and GFI shall including (i) make or the taking of all actions necessary to cause the conditions to be made the filings required of such party under the Foreign Competition Laws (including those Closing set forth in Section 3.4(b)(i) of the Parent Disclosure Letter) with respect Article VII to the Transactions as promptly as practicable after the date of this Agreement; be satisfied, (ii) take the obtaining of all necessary actions or nonactions, waivers, consents and approvals from Governmental Entities or other Persons necessary in connection with the consummation of the Mergers and the other Transactions and the making of all necessary registrations and filings (including filings with Governmental Entities, if any) and the taking of all reasonable steps as may be necessary to obtain and make an approval or waiver from, or to avoid an action or proceeding by, any Governmental Entity or other Persons necessary in connection with the Regulatory Approvals set forth in Section 3.4(b)(ii) consummation of the Parent Disclosure Letter as promptly as practicable after Mergers and the date of this Agreement; other Transactions, (iii) comply at the earliest practicable date with defending of any request under any Governmental Entity (including under any Foreign Competition Laws) in respect lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of such filings the Mergers or such Transaction; the other Transactions so as to enable the Closing to occur as soon as reasonably practicable, and (iv) act in good faith the execution and reasonably cooperate with delivery of any additional instruments necessary to consummate the Mergers and the other Party in connection with any such filings Transactions and in connection with resolving any investigation or other inquiry to fully carry out the purposes of any such agency or other Governmental Entity under any this Agreement.
(b) Each of the HSR Act, the Foreign Competition Laws, the Xxxxxxx Act, the Xxxxxxx Act and any other Laws or Orders that are designed to prohibit, restrict or regulate actions having the purpose or effect of monopolization or restraint of trade (collectively, the “Antitrust Laws”) with respect to any such filing or any such Transaction. To the extent not prohibited by applicable Law, the Parties shall use reasonable best efforts to will furnish to each the other all such necessary information required for any application or and reasonable assistance as the other filing to be made pursuant to any applicable Law may request in connection with the Transactions. Each preparation of any required governmental filings or submissions and will cooperate in responding to any inquiry from a Governmental Entity, including promptly informing the other Party shall give of such inquiry, consulting in advance before making any presentations or submissions to a Governmental Entity, and supplying each other reasonable prior notice with copies of all material correspondence, filings or communications between either Party and any substantive communication withGovernmental Entity with respect to this Agreement. The Parties or their Representatives shall have the right to review in advance, and each of the Parties will consult the others on, any proposed understanding, undertaking written or agreement withoral communications to, any Governmental Entity regarding any in connection with the Mergers and the other Transactions (other than Tax Returns), except that confidential competitively sensitive business information may be redacted from such filings or any such Transaction. No exchanges, provided, however, that outside counsel to the receiving Party shall be permitted to review complete, unredacted materials. Neither the Company nor Parent shall, nor shall they permit their respective Representatives to, participate independently participate in any meeting, meeting or engage in any substantive conversation, conversation with any Governmental Entity in respect of any such filingsfiling, investigation or other inquiry in connection with the Mergers and the other Transactions without giving the other Parties Party prior notice of the such meeting or conversation and, unless prohibited to the extent permitted by applicable Law and such any Governmental Entity, giving the other Party the opportunity to attend or participate. The Parties contemplate that as a general matter both Parent and GFI shall be represented at in-person meetings with any Governmental Entity. The Parties will consult and cooperate with one another participate (whether by telephone or in connection with any analyses, appearances, presentations, memoranda, briefs, arguments, opinions and proposals made or submitted by or on behalf of any Party person) in connection with proceedings under or relating to the HSR Act, the Foreign Competition Laws or other Antitrust Laws.
(b) Without limiting the general obligations of Parent and GFI under Section 5.3(a) (Consents and Approvals), each of Parent and GFI shall use its reasonable best efforts to resolve such objections, if any, as may be asserted by any Governmental Entity with respect to the Transactions under the Antitrust Laws. In connection therewith and subject to Section 5.3(a) (Consents and Approvals), if any Proceeding is instituted (or threatened to be instituted) challenging any of the Transactions as inconsistent with or violative of any Antitrust Law, each of Parent and GFI shall cooperate and use its reasonable best efforts vigorously to contest and resist (by negotiation, litigation or otherwise) any such Proceeding and to have vacated, lifted, reversed or overturned any Order whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents, delays or restricts consummation of the Transactions, unless Parent reasonably and in good faith determines that litigation is not in its best interests. Notwithstanding the foregoing or any other provision of this Agreement, nothing in this Section 5.3(b) shall limit the right of a Party to terminate this Agreement pursuant to Section 7.1 (Termination), so long as such Party has until that time complied in all material respects with its obligations under this Section 5.3. Each of Parent and GFI shall use its reasonable best efforts to take such action as may be required to cause the expiration of the notice periods or to obtain the necessary approvals under the HSR Act, the Foreign Competition Laws or any other Antitrust Laws with respect to the Transactions as promptly as possible after the execution of this Agreementmeeting.
(c) Notwithstanding anything to the contrary in this Agreement, nothing in this Agreement shall be deemed to require Parent connection with obtaining any approval or consent from any Parent Subsidiary to agree to or take any action that would result in any Burdensome Condition. None of GFI or any GFI Subsidiary shall agree to or take any action that would result in any Burdensome Condition without the prior written consent of Parent. For purposes of this Agreement, a “Burdensome Condition” shall mean making proposals, executing or carrying out agreements Person (including consent decrees) or submitting to Laws (i) providing for the transfer, license, sale or other disposition or holding separate (through the establishment of a trust or otherwise) of any assets or categories of assets of Parent, GFI or any of their respective Subsidiaries or the holding separate (through the establishment of a trust or otherwise) of the Securities of any Parent Subsidiary or GFI Subsidiary or (ii) imposing or seeking to impose any limitation on the ability of Parent, GFI or any of their respective Subsidiaries to conduct their respective businesses (including with respect to market practices and structure) or own such assets or to acquire, hold or exercise full rights of ownership of the business of GFI, the GFI Subsidiaries, Parent or the Parent Subsidiaries, in each case other than (xany Governmental Entity) with respect to Antitrust Lawsthe Mergers, the Company, the Company Subsidiaries and their respective Representatives shall not be obligated to, and shall not without the consent of Parent, pay or commit to pay to such Person whose approval or consent is being solicited any cash or other consideration, make any accommodation or commitment or incur any liability or other obligation to such proposals, executing or carrying out agreements (including consent decrees) or submitting to Laws that would not impair in any material respect the expected benefits of Parent and the Parent Subsidiaries from or relating to the Transactions, or (y) Person. The Parties shall cooperate with respect to Regulatory Approvals, any immaterial administrative accommodations that may be requested or ministerial obligations of Parent or any Parent Subsidiaryappropriate to obtain such consents.
Appears in 2 contracts
Samples: Merger Agreement (Apollo Residential Mortgage, Inc.), Merger Agreement (Apollo Commercial Real Estate Finance, Inc.)
Consents and Approvals. (a) Subject to the terms and conditions of set forth in this Agreement, each of Parent and GFI will the parties hereto shall use its reasonable best efforts to take, or cause to be taken, all actions actions, and to do, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable under applicable Law Laws and regulations or otherwise to consummate and make effective the Transactions as promptly as practicable, including using commercially reasonable efforts to (i) obtain all necessary actions or nonactions, waivers, consents, clearances, approvals, and expirations or terminations of waiting periods, including the Company Approvals and the Parent Approvals, from Governmental Entities and make all necessary registrations and filings with the applicable Governmental Entities, including in connection with any Regulatory Law (all of the foregoing, collectively, the “Governmental Consents”), (ii) obtain all necessary consents, approvals or waivers from third parties and (iii) defend any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the Transactions; provided that in no event shall any party be required to pay any fee, includingpenalty or other consideration to any third party for any consent or approval required for the consummation of the Transactions under any Contract.
(b) Subject to the terms and conditions herein provided and without limiting the foregoing, preparing the Company and filing Parent shall reasonably cooperate with each other in (i) determining whether any filings are required to be made with, or Governmental Consents are required to be obtained from, any Governmental Entities (including in any foreign jurisdiction in which the Company or its Subsidiaries are operating any business) and (ii) to the extent not made prior to the date hereof, timely making or causing to be made all such applications and filings as reasonably determined by Parent and the Company as promptly as practicable (and in any event within ten (10) Business Days after the date hereof with respect to filings or submissions required under the HSR Act). Each party shall supply as promptly as reasonably practicable such information, documentation, other material or testimony that may be requested by any Governmental Entity, including by complying at the earliest reasonably practicable date with any request under or with respect to the HSR Act, any other Governmental Consent and any such other applicable Laws for additional information, documents or other materials received by Parent or the Company or any of their respective Subsidiaries from the Federal Trade Commission or the Department of Justice, or any other Governmental Entity in connection with such applications or filings or the Merger.
(c) Without limiting any of its other obligations hereunder, the Company, Parent and Merger Sub shall use reasonable best efforts to resolve such objections, if any, as the United States Federal Trade Commission, the Antitrust Division of the United States Department of Justice, state antitrust enforcement authorities, or competition authorities of any other nation or other jurisdiction (including multinational or supranational), or any other Person, may assert under any Law with respect to the transactions contemplated herein, and to avoid or eliminate each and every impediment under any Law that may be asserted by any Person with respect to the Merger, in each case so as to enable the Merger and the Transactions to occur as soon as possible (and in any event no later than the Termination Date).
(d) Neither Parent nor the Merger Sub shall, nor shall they permit their respective Subsidiaries to, acquire or agree to acquire (whether by merger, consolidation, acquisition of stock or otherwise) of any interest in any Person or any business, line of business or division thereof, or a material portion of the assets of any Person, if such acquisition would reasonably be expected to materially increase the risk of not obtaining any applicable, clearance, consent, approval or waiver under any Regulatory Law with respect to the Transactions.
(e) Without limiting the foregoing and subject to applicable legal limitations and the instructions of any Governmental Entity, each of the Company and Parent agrees (i) to reasonably cooperate and consult with each other in connection with the making of all documentation to effect all necessary registrations, filings, noticesnotifications, petitions, statements, registrationscommunications, submissions and any other material actions pursuant to this Section 5.6, (ii) to furnish to the other such necessary information and assistance as the other may reasonably request in connection with its preparation of informationany notifications or filings, applications and (iii) to keep each other documents necessary and appropriate reasonably apprised of the status of matters relating to consummate the completion of the transactions contemplated therein, including promptly furnishing the other with copies of notices or other communications received by such party from, or given by such party to, any third party and/or any Governmental Entity with respect to the Transactions, (iv) to permit the other party to review and to incorporate the other party’s reasonable comments in any communication to be given by it to any Governmental Entity with respect to obtaining the necessary approvals for the Transactions, and (v) not to participate in any substantive meeting or discussion in person or by telephone expected to address substantive matters related to the transactions contemplated herein with any Governmental Entity in connection with the Transactions unless, to the extent practicable, it gives the other party reasonable notice thereof and the opportunity to attend. The parties shall take reasonable efforts to share information protected from disclosure under the attorney-client privilege, work product doctrine, joint defense privilege or any other privilege pursuant to this Section 5.6 in a manner so as to preserve any applicable privilege. Parent and the Company may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section 5.6(d) as “Antitrust Counsel Only Material.” Such materials and the information contained therein shall be given only to the outside antitrust counsel of the recipient and will not be disclosed by such outside counsel to employees, officers or directors of the recipient unless express permission is obtained in advance from the source of the materials (Parent or the Company, as the case may be) or its legal counsel.
(f) In furtherance and not in limitation of the foregoingcovenants of the parties contained in this Section 5.6, if any administrative or judicial action or proceeding, including any proceeding by a Governmental Entity or any other Person is instituted (or threatened to be instituted) challenging any of the Transactions as violative of any Law, each of the Company and Parent shall use reasonable best efforts to contest and GFI shall (i) make resist any such action or cause proceeding and to be made have vacated, 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 filings required of such party under Transactions, including, without limiting the Foreign Competition Laws (including those foregoing, taking the actions set forth in Section 3.4(b)(i5.6(c).
(g) of the Parent Disclosure Letter) with respect to the Transactions as promptly as practicable after the date For purposes of this Agreement; (ii) take all actions to obtain and make , “Regulatory Law” means the Regulatory Approvals set forth in Section 3.4(b)(ii) of the Parent Disclosure Letter as promptly as practicable after the date of this Agreement; (iii) comply at the earliest practicable date with any request under any Governmental Entity (including under any Foreign Competition Laws) in respect of such filings or such Transaction; and (iv) act in good faith and reasonably cooperate with the other Party in connection with any such filings and in connection with resolving any investigation or other inquiry of any such agency or other Governmental Entity under any of the HSR Xxxxxxx Act, the Foreign Competition Laws, the Xxxxxxx Act, the Xxxxxxx Act HSR Act, the Federal Trade Commission Act, the EC Merger Regulation, and all other federal, state, foreign, multinational or supranational statutes, rules, regulations, orders, decrees, administrative and judicial doctrines and other Laws, including any other Laws antitrust, competition or Orders trade regulation Laws, that are designed or intended to prohibit, restrict or regulate actions having the purpose or effect of monopolization or restraint of trade (collectively, the “Antitrust Laws”) with respect to any such filing or any such Transaction. To the extent not prohibited by applicable Law, the Parties shall use reasonable best efforts to furnish to each other all information required for any application lessening competition through merger or other filing to be made pursuant to any applicable Law in connection with the Transactions. Each Party shall give each other reasonable prior notice of any substantive communication with, and any proposed understanding, undertaking or agreement with, any Governmental Entity regarding any such filings or any such Transaction. No Party shall independently participate in any meeting, or engage in any substantive conversation, with any Governmental Entity in respect of any such filings, investigation or other inquiry without giving the other Parties prior notice of the meeting or conversation and, unless prohibited by such any Governmental Entity, the opportunity to attend or participate. The Parties contemplate that as a general matter both Parent and GFI shall be represented at in-person meetings with any Governmental Entity. The Parties will consult and cooperate with one another in connection with any analyses, appearances, presentations, memoranda, briefs, arguments, opinions and proposals made or submitted by or on behalf of any Party in connection with proceedings under or relating to the HSR Act, the Foreign Competition Laws or other Antitrust Lawsacquisition.
(b) Without limiting the general obligations of Parent and GFI under Section 5.3(a) (Consents and Approvals), each of Parent and GFI shall use its reasonable best efforts to resolve such objections, if any, as may be asserted by any Governmental Entity with respect to the Transactions under the Antitrust Laws. In connection therewith and subject to Section 5.3(a) (Consents and Approvals), if any Proceeding is instituted (or threatened to be instituted) challenging any of the Transactions as inconsistent with or violative of any Antitrust Law, each of Parent and GFI shall cooperate and use its reasonable best efforts vigorously to contest and resist (by negotiation, litigation or otherwise) any such Proceeding and to have vacated, lifted, reversed or overturned any Order whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents, delays or restricts consummation of the Transactions, unless Parent reasonably and in good faith determines that litigation is not in its best interests. Notwithstanding the foregoing or any other provision of this Agreement, nothing in this Section 5.3(b) shall limit the right of a Party to terminate this Agreement pursuant to Section 7.1 (Termination), so long as such Party has until that time complied in all material respects with its obligations under this Section 5.3. Each of Parent and GFI shall use its reasonable best efforts to take such action as may be required to cause the expiration of the notice periods or to obtain the necessary approvals under the HSR Act, the Foreign Competition Laws or any other Antitrust Laws with respect to the Transactions as promptly as possible after the execution of this Agreement.
(c) Notwithstanding anything to the contrary in this Agreement, nothing in this Agreement shall be deemed to require Parent or any Parent Subsidiary to agree to or take any action that would result in any Burdensome Condition. None of GFI or any GFI Subsidiary shall agree to or take any action that would result in any Burdensome Condition without the prior written consent of Parent. For purposes of this Agreement, a “Burdensome Condition” shall mean making proposals, executing or carrying out agreements (including consent decrees) or submitting to Laws (i) providing for the transfer, license, sale or other disposition or holding separate (through the establishment of a trust or otherwise) of any assets or categories of assets of Parent, GFI or any of their respective Subsidiaries or the holding separate (through the establishment of a trust or otherwise) of the Securities of any Parent Subsidiary or GFI Subsidiary or (ii) imposing or seeking to impose any limitation on the ability of Parent, GFI or any of their respective Subsidiaries to conduct their respective businesses (including with respect to market practices and structure) or own such assets or to acquire, hold or exercise full rights of ownership of the business of GFI, the GFI Subsidiaries, Parent or the Parent Subsidiaries, in each case other than (x) with respect to Antitrust Laws, any such proposals, executing or carrying out agreements (including consent decrees) or submitting to Laws that would not impair in any material respect the expected benefits of Parent and the Parent Subsidiaries from or relating to the Transactions, or (y) with respect to Regulatory Approvals, any immaterial administrative or ministerial obligations of Parent or any Parent Subsidiary.
Appears in 2 contracts
Samples: Merger Agreement (MWI Veterinary Supply, Inc.), Merger Agreement (Amerisourcebergen Corp)
Consents and Approvals. (a) Subject to the terms and conditions of this Agreement, each of Parent and GFI will Seller shall use its commercially reasonable best efforts to takeobtain all consents, or cause to be takenapprovals, all actions orders, authorizations and to dowaivers of, or cause to be done, all things necessary, proper or advisable under applicable Law to consummate the Transactions, including, preparing and filing as promptly as practicable all documentation to effect all declarations, filings and registrations with, all third parties (including Governmental Entities) that are necessary filings, notices, petitions, statements, registrations, submissions of information, applications or required to satisfy the conditions to Closing in Section 8.1 and other documents necessary and appropriate to otherwise consummate the Transactionstransactions contemplated hereby. In furtherance All costs and not in limitation expenses of obtaining or effecting any and all of the foregoingconsents, each of Parent and GFI shall (i) make or cause to be made the filings required of such party under the Foreign Competition Laws (including those set forth in Section 3.4(b)(i) of the Parent Disclosure Letter) with respect to the Transactions as promptly as practicable after the date of this Agreement; (ii) take all actions to obtain and make the Regulatory Approvals set forth in Section 3.4(b)(ii) of the Parent Disclosure Letter as promptly as practicable after the date of this Agreement; (iii) comply at the earliest practicable date with any request under any Governmental Entity (including under any Foreign Competition Laws) in respect of such filings or such Transaction; and (iv) act in good faith and reasonably cooperate with the other Party in connection with any such approvals, orders, authorizations, waivers, declarations, filings and registrations referred to in connection with resolving any investigation or other inquiry of any such agency or other Governmental Entity under any of the HSR Act, the Foreign Competition Laws, the Xxxxxxx Act, the Xxxxxxx Act and any other Laws or Orders that are designed to prohibit, restrict or regulate actions having the purpose or effect of monopolization or restraint of trade (collectively, the “Antitrust Laws”) with respect to any such filing or any such Transaction. To the extent not prohibited by applicable Law, the Parties shall use reasonable best efforts to furnish to each other all information required for any application or other filing to be made pursuant to any applicable Law in connection with the Transactions. Each Party shall give each other reasonable prior notice of any substantive communication with, and any proposed understanding, undertaking or agreement with, any Governmental Entity regarding any such filings or any such Transaction. No Party shall independently participate in any meeting, or engage in any substantive conversation, with any Governmental Entity in respect of any such filings, investigation or other inquiry without giving the other Parties prior notice of the meeting or conversation and, unless prohibited by such any Governmental Entity, the opportunity to attend or participate. The Parties contemplate that as a general matter both Parent and GFI this Section 7.5 shall be represented at in-person meetings with any Governmental Entity. The Parties will consult and cooperate with one another in connection with any analyses, appearances, presentations, memoranda, briefs, arguments, opinions and proposals made or submitted borne by or on behalf of any Party in connection with proceedings under or relating to the HSR Act, the Foreign Competition Laws or other Antitrust LawsSeller.
(b) Without limiting Should a third party fail to exercise its preferential right to purchase as to any portion of the general obligations Assets prior to Closing and the time for exercise or waiver has not yet expired, subject to the remaining provisions of Parent this Section 7.5, such Assets shall be included in the transaction at Closing and GFI under Section 5.3(athe following procedures shall be applicable:
(i) (Consents and Approvals)Seller shall, each of Parent and GFI shall at its sole expense, continue to use its commercially reasonable best efforts to resolve obtain the waiver of the preferential rights and shall continue to be responsible for the compliance therewith; and
(ii) Should the holder of the preferential right exercise same, (y) Purchaser shall cause the affected Assets to be transferred to such objections, if any, as may holder on the terms and provisions set out herein and in the applicable preferential right provision and Purchaser shall be asserted entitled to retain the consideration paid by any Governmental Entity the third party and (z) Seller shall assume all obligations assumed by Purchaser with respect to such Assets under Section 9.3, and shall indemnify, defend and hold harmless Purchaser from any and all claims, obligations, actions, liabilities, damages or expenses incurred by Purchaser caused by or arising out of or resulting from the Transactions under ownership, use or operation of such Assets from the Antitrust Laws. In connection therewith and subject Closing Date to Section 5.3(a) (Consents and Approvals), if any Proceeding is instituted (or threatened to be instituted) challenging any the date of the Transactions as inconsistent with or violative of any Antitrust Law, each of Parent and GFI shall cooperate and use its reasonable best efforts vigorously to contest and resist (by negotiation, litigation or otherwise) any such Proceeding and to have vacated, lifted, reversed or overturned any Order whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents, delays or restricts consummation of the Transactions, unless Parent reasonably and in good faith determines that litigation is not in its best interests. Notwithstanding the foregoing or any other provision of this Agreement, nothing in this Section 5.3(b) shall limit the right of a Party to terminate this Agreement pursuant to Section 7.1 (Termination), so long as such Party has until that time complied in all material respects with its obligations under this Section 5.3. Each of Parent and GFI shall use its reasonable best efforts to take such action as may be required to cause the expiration of the notice periods or to obtain the necessary approvals under the HSR Act, the Foreign Competition Laws or any other Antitrust Laws with respect to the Transactions as promptly as possible after the execution of this Agreementreconveyance.
(c) Notwithstanding anything Should any third party bring any suit, action or other proceeding seeking to restrain, enjoin or otherwise prohibit the consummation of the transactions contemplated hereby in connection with a claim to enforce preferential rights, or, in the event the applicable preferential right provision prohibits transfer prior to the contrary in this Agreementwaiver or expiration of such right, nothing in this Agreement the Asset affected by such suit, action or other proceeding shall be deemed to require Parent or excluded from the Assets transferred at Closing and the Purchase Price shall be reduced by the Allocated Value of any Parent Subsidiary to agree to or take any affected Producing Properties. Promptly after the suit, action that would result in any Burdensome Condition. None of GFI or any GFI Subsidiary shall agree to or take any action that would result in any Burdensome Condition without the prior written consent of Parent. For purposes of this Agreement, a “Burdensome Condition” shall mean making proposals, executing or carrying out agreements (including consent decrees) or submitting to Laws (i) providing for the transfer, license, sale or other disposition proceeding is dismissed or holding separate (through the establishment of settled or a trust or otherwise) of any assets or categories of assets of Parentjudgment is rendered, GFI or any of their respective Subsidiaries or the holding separate (through right is waived or expires, Seller shall sell to Purchaser and Purchaser shall purchase from Seller all such Assets not being sold to the establishment of third party for a trust or otherwise) purchase price equal to the Allocated Value of the Securities of any Parent Subsidiary or GFI Subsidiary or (ii) imposing or seeking to impose any limitation on the ability of Parentaffected Producing Properties, GFI or any of their respective Subsidiaries to conduct their respective businesses (including with respect to market practices and structure) or own such assets or to acquire, hold or exercise full rights of ownership of the business of GFI, the GFI Subsidiaries, Parent or the Parent Subsidiaries, adjusted as provided in each case other than (x) with respect to Antitrust Laws, any such proposals, executing or carrying out agreements (including consent decrees) or submitting to Laws that would not impair in any material respect the expected benefits of Parent and the Parent Subsidiaries from or relating to the Transactions, or (y) with respect to Regulatory Approvals, any immaterial administrative or ministerial obligations of Parent or any Parent SubsidiarySection 2.3.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Jones Energy, Inc.), Asset Purchase Agreement (Jones Energy, Inc.)
Consents and Approvals. (a) Subject to Upon the terms and subject to the conditions of this Agreement, each of Parent Seller and GFI Purchaser will cooperate and use its commercially reasonable best efforts to takefulfill the conditions precedent to the other parties’ obligations under this Agreement, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under applicable Law to consummate the Transactions, including, preparing and filing including securing as promptly as practicable all documentation Required Consents; provided, that Seller shall not be required to effect all necessary filings, notices, petitions, statements, registrations, submissions make any payment to any third party to secure any such Required Consents and Purchaser shall not be required to agree to any significant amendment to or modification of information, applications and other documents necessary and appropriate to consummate the Transactionsany Scheduled Contract or any Permit. In furtherance and not in limitation of Without limiting the foregoing, each of Parent and GFI the parties to this Agreement shall cooperate with one another: (i) make or cause to be made in the prompt preparation and filing of any filings required of such party under the Foreign Competition Laws HSR Act (including those set forth in Section 3.4(b)(i) of the Parent Disclosure Letter) with respect to the Transactions as promptly as practicable which filing shall occur no later than 10 days after the date of this Agreement), if any, and any other required filings with any Governmental Authority, and the parties shall cooperate with each other in connection with the making of all such filings, including providing copies of all such documents to the non-filing party and its advisors prior to filing and, if requested, to accept all reasonable additions, deletions or changes suggested in connection therewith; (ii) take all actions to obtain and make the Regulatory Approvals set forth in Section 3.4(b)(ii) of the Parent Disclosure Letter as promptly as practicable after the date of this Agreement; (iii) comply at the earliest practicable date with any request under determining whether action by or in respect of, or filing with, any Governmental Entity (including under Authority is required, proper or advisable or any Foreign Competition Laws) in respect of such filings actions or such Transaction; and (iv) act in good faith and reasonably cooperate with the other Party in connection with any such filings and in connection with resolving any investigation or other inquiry of any such agency or other Governmental Entity under any of the HSR Act, the Foreign Competition Laws, the Xxxxxxx Act, the Xxxxxxx Act and any other Laws or Orders that Consents are designed required to prohibit, restrict or regulate actions having the purpose or effect of monopolization or restraint of trade (collectively, the “Antitrust Laws”) with respect be obtained from parties to any such filing or any such Transaction. To the extent not prohibited by applicable LawContracts, the Parties shall use reasonable best efforts to furnish to each other all information required for any application or other filing to be made pursuant to any applicable Law in connection with the Contemplated Transactions. Each Party shall give each other reasonable prior notice of any substantive communication with, ; and any proposed understanding, undertaking or agreement with, any Governmental Entity regarding (iii) in seeking timely to obtain any such filings actions or any such Transaction. No Party shall independently participate in any meeting, Consents or engage in any substantive conversation, with any Governmental Entity in respect of to make any such filings, investigation . In case at any time after the Closing any further action is necessary or other inquiry without giving desirable to carry out the other Parties prior notice purposes of the meeting or conversation and, unless prohibited by such any Governmental Entitythis Agreement, the opportunity proper officers and directors of each party to attend or participate. The Parties contemplate that as a general matter both Parent and GFI this Agreement shall be represented at in-person meetings with any Governmental Entity. The Parties will consult and cooperate with one another in connection with any analyses, appearances, presentations, memoranda, briefs, arguments, opinions and proposals made or submitted by or on behalf of any Party in connection with proceedings under or relating take all such necessary action according to the HSR Act, the Foreign Competition Laws or other Antitrust LawsSection 10.02.
(b) Without limiting Seller and Purchaser agree to use their commercially reasonable efforts (including, without limitation, the general obligations of Parent and GFI under actions specified in this Section 5.3(a5.03(b)) (Consents and Approvals), each of Parent and GFI shall use its reasonable best efforts to resolve such objections, if any, as may be asserted by any Governmental Entity with respect to the Contemplated Transactions under the Antitrust Laws. In connection therewith and subject to Section 5.3(a) (Consents and Approvals), if any Proceeding is instituted (or threatened to be instituted) challenging any of the Transactions as inconsistent with or violative of any Antitrust Law, each of Parent and GFI shall cooperate and use its reasonable best efforts vigorously to contest and resist (by negotiation, litigation or otherwise) any such Proceeding and to have vacated, lifted, reversed or overturned any Order whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents, delays or restricts consummation of the Transactions, unless Parent reasonably and in good faith determines that litigation is not in its best interests. Notwithstanding the foregoing HSR Act or any other provision antitrust Law. In furtherance and not in limitation of this Agreementthe foregoing, nothing in this Section 5.3(b) shall limit the right of a Party to terminate this Agreement pursuant to Section 7.1 (Termination), so long as such Party has until that time complied in all material respects with its obligations under this Section 5.3. Each of Parent and GFI shall use its reasonable best efforts Purchaser agrees to take such commercially reasonable action as may be required to cause by any domestic court or similar tribunal in any suit brought or threatened by a Governmental Authority or brought or threatened by a private party challenging the expiration Contemplated Transactions contemplated hereby as violative of the notice periods or to obtain the necessary approvals under the HSR Act, the Foreign Competition Laws Act or any other Antitrust Laws with respect antitrust Law to avoid the Transactions as promptly as possible after entry of, or to effect the execution dissolution, modification or suspension of, any injunction, temporary restraining order or other Order that has the effect of this Agreementpreventing or delaying the consummation of the Contemplated Transaction (including the appeal thereof, provided, that, Purchaser shall not be required to post any bond); provided, that, Purchaser shall not be required to sell or otherwise dispose of, or hold separate and agree to sell or otherwise dispose of any Assets or businesses of the Acquired Company and the Subsidiaries.
(c) Notwithstanding anything All filing fees required in connection with any filings under the HSR Act or with any other Governmental Authority shall be borne by Purchaser. All other fees, expenses and disbursements incurred in connection with the matters referred to in this Section 5.03 hereof shall be borne by Purchaser if incurred by or on its behalf and by Seller if incurred by or on behalf of Seller, the Acquired Company or any Subsidiary.
(d) If the Acquired Company or any Subsidiary has not obtained by Closing any of the Required Consents in connection with a direct or indirect change in ownership resulting from the Contemplated Transactions, then, to the contrary in this Agreementextent reasonably practicable (and without material cost or liability to Seller), nothing in this Agreement the parties shall use commercially reasonable efforts to enter into an alternative, lawful arrangement under which Purchaser shall have the benefit from and after Closing of such Contract or Permit for which the Required Consent was not able to be deemed obtained prior to require Parent or any Parent Subsidiary to agree to or take any action that would result in any Burdensome Condition. None of GFI or any GFI Subsidiary shall agree to or take any action that would result in any Burdensome Condition without the prior written consent of ParentClosing. For purposes the avoidance of doubt, the provisions of this Agreement, a “Burdensome Condition” Section 5.03(d) shall mean making proposals, executing or carrying out agreements (including consent decrees) or submitting to Laws (i) providing for not supersede the transfer, license, sale or other disposition or holding separate (through the establishment provisions of a trust or otherwise) of any assets or categories of assets of Parent, GFI or any of their respective Subsidiaries or the holding separate (through the establishment of a trust or otherwise) of the Securities of any Parent Subsidiary or GFI Subsidiary or (ii) imposing or seeking to impose any limitation on the ability of Parent, GFI or any of their respective Subsidiaries to conduct their respective businesses (including with respect to market practices and structure) or own such assets or to acquire, hold or exercise full rights of ownership of the business of GFI, the GFI Subsidiaries, Parent or the Parent Subsidiaries, in each case other than (x) with respect to Antitrust Laws, any such proposals, executing or carrying out agreements (including consent decrees) or submitting to Laws that would not impair in any material respect the expected benefits of Parent and the Parent Subsidiaries from or relating to the Transactions, or (y) with respect to Regulatory Approvals, any immaterial administrative or ministerial obligations of Parent or any Parent SubsidiarySection 6.02(i).
Appears in 2 contracts
Samples: Stock Purchase Agreement (Laidlaw International Inc), Stock Purchase Agreement (Laidlaw International Inc)
Consents and Approvals. (a) Subject Each of Parent, Merger Sub and the Company and Majority Shareholder shall take all reasonable actions necessary to the terms and conditions of comply promptly with all legal requirements which may be imposed on it with respect to this Agreement, the Stock Purchase Agreement and the Transactions (which actions shall include, without limitation, furnishing all information required in connection with approvals of or filings with any other Governmental Authority) and shall promptly cooperate with and furnish information to each other or their counsel in connection with any such requirements imposed upon any of them or any of their Subsidiaries in connection with this Agreement, the Stock Purchase Agreement and the Transactions. Each of the Company and Majority Shareholder and Parent and GFI will use Merger Sub shall, and shall cause their respective Subsidiaries to, take all reasonable actions necessary to obtain (and shall cooperate with each other in obtaining) any consent, authorization, order or approval of, or any exemption by, any Governmental Authority or other public or private third party required to be obtained or made by Parent, Merger Sub, the Company or any of their respective Subsidiaries in connection with the Transactions or the taking of any action contemplated thereby or by this Agreement, the Stock Option Agreement or the Stock Purchase Agreement, including without limitation obtaining estoppel certificates in respect of the Construction Contracts set forth on Schedule 3.8(m).
(b) Nothing in this Agreement shall require, or be construed to require, Parent or Merger Sub, in connection with the receipt of any regulatory approval, to proffer to, or agree to sell or hold separate and agree to sell, divest, discontinue or limit, before or after the Effective Time, any assets, businesses, or interest in any assets or businesses of Parent, Merger Sub, the Company or any of their respective affiliates or enter into any consent decree or other agreement that would restrict Parent or the Company in the conduct of its reasonable best efforts respective businesses as heretofore conducted.
(c) Prior to takethe Stock Purchase Closing, each party shall promptly consult with the other parties hereto with respect to, provide any necessary information with respect to, and provide the other (or its counsel) copies of, all filings made by such party with any Governmental Authority or any other information supplied by such party to a Governmental Authority in connection with this Agreement, the Stock Option Agreement, the Stock Purchase Agreement and the Transactions. Each party hereto shall promptly inform the other of any communication from any Governmental Authority regarding any of the Transactions unless otherwise prohibited by Law. If any party hereto or affiliate thereof receives a request for additional information or documentary material from any such Government Authority with respect to the Transactions, then such party shall endeavor in good faith to make, or cause to be takenmade, all actions as soon as reasonably practicable and to do, or cause to be done, all things necessary, proper or advisable under applicable Law to consummate the Transactions, including, preparing and filing as promptly as practicable all documentation to effect all necessary filings, notices, petitions, statements, registrations, submissions of information, applications and other documents necessary and appropriate to consummate the Transactions. In furtherance and not in limitation of the foregoing, each of Parent and GFI shall (i) make or cause to be made the filings required of such party under the Foreign Competition Laws (including those set forth in Section 3.4(b)(i) of the Parent Disclosure Letter) with respect to the Transactions as promptly as practicable after the date of this Agreement; (ii) take all actions to obtain and make the Regulatory Approvals set forth in Section 3.4(b)(ii) of the Parent Disclosure Letter as promptly as practicable after the date of this Agreement; (iii) comply at the earliest practicable date with any request under any Governmental Entity (including under any Foreign Competition Laws) in respect of such filings or such Transaction; and (iv) act in good faith and reasonably cooperate consultation with the other Party party, an appropriate response in connection compliance with any such filings and in connection with resolving any investigation or other inquiry of any such agency or other Governmental Entity under any of the HSR Act, the Foreign Competition Laws, the Xxxxxxx Act, the Xxxxxxx Act and any other Laws or Orders that are designed to prohibit, restrict or regulate actions having the purpose or effect of monopolization or restraint of trade (collectively, the “Antitrust Laws”) with respect to any such filing or any such Transactionrequest. To the extent not prohibited by applicable Lawthat transfers, amendments or modifications of permits (including environmental permits) are required as a result of the execution of this Agreement, the Parties shall use reasonable best efforts to furnish to each other all information required for any application Stock Option Agreement, the Stock Purchase Agreement or other filing to be made pursuant to any applicable Law in connection with consummation of the Transactions. Each Party shall give each other reasonable prior notice of any substantive communication with, and any proposed understanding, undertaking or agreement with, any Governmental Entity regarding any such filings or any such Transaction. No Party shall independently participate in any meeting, or engage in any substantive conversation, with any Governmental Entity in respect of any such filings, investigation or other inquiry without giving the other Parties prior notice of the meeting or conversation and, unless prohibited by such any Governmental Entity, the opportunity to attend or participate. The Parties contemplate that as a general matter both Parent and GFI shall be represented at in-person meetings with any Governmental Entity. The Parties will consult and cooperate with one another in connection with any analyses, appearances, presentations, memoranda, briefs, arguments, opinions and proposals made or submitted by or on behalf of any Party in connection with proceedings under or relating to the HSR Act, the Foreign Competition Laws or other Antitrust Laws.
(b) Without limiting the general obligations of Parent and GFI under Section 5.3(a) (Consents and Approvals), each of Parent and GFI Company shall use its reasonable best efforts to resolve effect such objections, if any, as may be asserted by any Governmental Entity with respect to the Transactions under the Antitrust Laws. In connection therewith and subject to Section 5.3(a) (Consents and Approvals), if any Proceeding is instituted (or threatened to be instituted) challenging any of the Transactions as inconsistent with or violative of any Antitrust Law, each of Parent and GFI shall cooperate and use its reasonable best efforts vigorously to contest and resist (by negotiation, litigation or otherwise) any such Proceeding and to have vacated, lifted, reversed or overturned any Order whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents, delays or restricts consummation of the Transactions, unless Parent reasonably and in good faith determines that litigation is not in its best interests. Notwithstanding the foregoing or any other provision of this Agreement, nothing in this Section 5.3(b) shall limit the right of a Party to terminate this Agreement pursuant to Section 7.1 (Termination), so long as such Party has until that time complied in all material respects with its obligations under this Section 5.3. Each of Parent and GFI shall use its reasonable best efforts to take such action as may be required to cause the expiration of the notice periods or to obtain the necessary approvals under the HSR Act, the Foreign Competition Laws or any other Antitrust Laws with respect to the Transactions as promptly as possible after the execution of this Agreementtransfers.
(c) Notwithstanding anything to the contrary in this Agreement, nothing in this Agreement shall be deemed to require Parent or any Parent Subsidiary to agree to or take any action that would result in any Burdensome Condition. None of GFI or any GFI Subsidiary shall agree to or take any action that would result in any Burdensome Condition without the prior written consent of Parent. For purposes of this Agreement, a “Burdensome Condition” shall mean making proposals, executing or carrying out agreements (including consent decrees) or submitting to Laws (i) providing for the transfer, license, sale or other disposition or holding separate (through the establishment of a trust or otherwise) of any assets or categories of assets of Parent, GFI or any of their respective Subsidiaries or the holding separate (through the establishment of a trust or otherwise) of the Securities of any Parent Subsidiary or GFI Subsidiary or (ii) imposing or seeking to impose any limitation on the ability of Parent, GFI or any of their respective Subsidiaries to conduct their respective businesses (including with respect to market practices and structure) or own such assets or to acquire, hold or exercise full rights of ownership of the business of GFI, the GFI Subsidiaries, Parent or the Parent Subsidiaries, in each case other than (x) with respect to Antitrust Laws, any such proposals, executing or carrying out agreements (including consent decrees) or submitting to Laws that would not impair in any material respect the expected benefits of Parent and the Parent Subsidiaries from or relating to the Transactions, or (y) with respect to Regulatory Approvals, any immaterial administrative or ministerial obligations of Parent or any Parent Subsidiary.
Appears in 2 contracts
Samples: Agreement and Plan of Merger and Reorganization (Trendwest Resorts Inc), Agreement and Plan of Merger and Reorganization (Cendant Corp)
Consents and Approvals. (a) Subject to the terms and conditions of this Agreement, each of Parent BGCP and GFI 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 Law to consummate the Transactions, including, preparing and filing as promptly as practicable all documentation to effect all necessary filings, notices, petitions, statements, registrations, submissions of information, applications and other documents necessary and appropriate to consummate the Transactions. In furtherance and not in limitation of the foregoing, each of Parent BGCP and GFI shall (i) make or cause to be made the filings required of such party under the Foreign Competition Laws (including those set forth in Section 3.4(b)(i) of the Parent Disclosure Letter) with respect to the Transactions as promptly as practicable after the date of this Agreement; (ii) take all actions to obtain and make the Regulatory Approvals set forth in Section 3.4(b)(ii3.4(b) of the Parent BGCP Disclosure Letter as promptly as practicable after the date of this Agreement; (iii) comply at the earliest practicable date with any request under any Governmental Entity (including under any Foreign Competition Laws) in respect of such filings or such Transaction; and (iv) act in good faith and reasonably cooperate with the other Party in connection with any such filings and in connection with resolving any investigation or other inquiry of any such agency or other Governmental Entity under any of the HSR Act, the Foreign Competition Laws, the Xxxxxxx Act, the Xxxxxxx Act and any other Laws or Orders that are designed to prohibit, restrict or regulate actions having the purpose or effect of monopolization or restraint of trade (collectively, the “Antitrust Laws”) with respect to any such filing or any such Transaction. To the extent not prohibited by applicable Law, the Parties shall use reasonable best efforts to furnish to each other all information required for any application or other filing to be made pursuant to any applicable Law in connection with the Transactions. Each Party shall give each other reasonable prior notice of any substantive communication with, and any proposed understanding, undertaking or agreement with, any Governmental Entity regarding any such filings or any such Transaction. No Party shall independently participate in any meeting, or engage in any substantive conversation, with any Governmental Entity in respect of any such filings, investigation or other inquiry without giving the other Parties prior notice of the meeting or conversation and, unless prohibited by such any Governmental Entity, the opportunity to attend or participate. The Parties contemplate that as a general matter both Parent BGCP and GFI shall be represented at in-person meetings with any Governmental Entity. The Parties will consult and cooperate with one another in connection with any analyses, appearances, presentations, memoranda, briefs, arguments, opinions and proposals made or submitted by or on behalf of any Party in connection with proceedings under or relating to the HSR Act, the Foreign Competition Laws or other Antitrust Laws.
(b) Without limiting the general obligations of Parent BGCP and GFI under Section 5.3(a) (Consents and Approvals), each of Parent BGCP and GFI shall use its reasonable best efforts to resolve such objections, if any, as may be asserted by any Governmental Entity with respect to the Transactions under the Antitrust Laws. In connection therewith and subject to Section 5.3(a) (Consents and Approvals), if any Proceeding is instituted (or threatened to be instituted) challenging any of the Transactions as inconsistent with or violative of any Antitrust Law, each of Parent BGCP and GFI shall cooperate and use its reasonable best efforts vigorously to contest and resist (by negotiation, litigation or otherwise) any such Proceeding and to have vacated, lifted, reversed or overturned any Order whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents, delays or restricts consummation of the Transactions, unless Parent BGCP reasonably and in good faith determines that litigation is not in its best interests. Notwithstanding the foregoing or any other provision of this Agreement, nothing in this Section 5.3(b) shall limit the right of a Party to terminate this Agreement pursuant to Section 7.1 (Termination), so long as such Party has until that time complied in all material respects with its obligations under this Section 5.3. Each of Parent BGCP and GFI shall use its reasonable best efforts to take such action as may be required to cause the expiration of the notice periods or to obtain the necessary approvals under the HSR Act, the Foreign Competition Laws or any other Antitrust Laws with respect to the Transactions as promptly as possible after the execution of this Agreement.
(c) Notwithstanding anything to the contrary in this Agreement, nothing in this Agreement shall be deemed to require Parent BGCP or any Parent BGCP Subsidiary to agree to or take any action that would result in any Burdensome Condition. None of GFI or any GFI Subsidiary shall agree to or take any action that would result in any Burdensome Condition without the prior written consent of Parent. For purposes of this Agreement, a “Burdensome Condition” shall mean making proposals, executing or carrying out agreements (including consent decrees) or submitting to Laws (i) providing for the transfer, license, sale or other disposition or holding separate (through the establishment of a trust or otherwise) of any assets or categories of assets of Parent, GFI or any of their respective Subsidiaries or the holding separate (through the establishment of a trust or otherwise) of the Securities of any Parent Subsidiary or GFI Subsidiary or (ii) imposing or seeking to impose any limitation on the ability of Parent, GFI or any of their respective Subsidiaries to conduct their respective businesses (including with respect to market practices and structure) or own such assets or to acquire, hold or exercise full rights of ownership of the business of GFI, the GFI Subsidiaries, Parent or the Parent Subsidiaries, in each case other than (x) with respect to Antitrust Laws, any such proposals, executing or carrying out agreements (including consent decrees) or submitting to Laws that would not impair in any material respect the expected benefits of Parent and the Parent Subsidiaries from or relating to the Transactions, or (y) with respect to Regulatory Approvals, any immaterial administrative or ministerial obligations of Parent or any Parent Subsidiary.
Appears in 2 contracts
Samples: Tender Offer Agreement (BGC Partners, Inc.), Tender Offer Agreement (BGC Partners, Inc.)
Consents and Approvals. (a) Subject Each of Parent, the ---------------------- Purchaser and the Company shall take all reasonable actions necessary to the terms and conditions of this Agreement, each of Parent and GFI will use its reasonable best efforts to take, or cause to comply promptly with all legal requirements which may be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under applicable Law to consummate the Transactions, including, preparing and filing as promptly as practicable all documentation to effect all necessary filings, notices, petitions, statements, registrations, submissions of information, applications and other documents necessary and appropriate to consummate the Transactions. In furtherance and not in limitation of the foregoing, each of Parent and GFI shall (i) make or cause to be made the filings required of such party under the Foreign Competition Laws (including those set forth in Section 3.4(b)(i) of the Parent Disclosure Letter) imposed on it with respect to this Agreement and the Transactions as promptly as practicable after (which actions shall include, without limitation, furnishing all information required under the date HSR Act and in connection with approvals of this Agreement; (ii) take all actions to obtain and make the Regulatory Approvals set forth in Section 3.4(b)(ii) of the Parent Disclosure Letter as promptly as practicable after the date of this Agreement; (iii) comply at the earliest practicable date or filings with any request under any other Governmental Entity (including under any Foreign Competition LawsEntity) in respect of such filings or such Transaction; and (iv) act in good faith and reasonably shall promptly cooperate with the and, subject to such confidentiality agreements as may be reasonably necessary or requested, furnish information to each other Party or their counsel in connection with any such filings and requirements imposed upon any of them or any of their Subsidiaries in connection with resolving any investigation or other inquiry of any such agency or other Governmental Entity under any of the HSR Act, the Foreign Competition Laws, the Xxxxxxx Act, the Xxxxxxx Act this Agreement and any other Laws or Orders that are designed to prohibit, restrict or regulate actions having the purpose or effect of monopolization or restraint of trade (collectively, the “Antitrust Laws”) with respect to any such filing or any such Transaction. To the extent not prohibited by applicable Law, the Parties shall use reasonable best efforts to furnish to each other all information required for any application or other filing to be made pursuant to any applicable Law in connection with the Transactions. Each Party of the Company, Parent and the Purchaser shall, and shall give cause respective Subsidiaries to, take all reasonable actions necessary to obtain (and shall cooperate with each other reasonable prior notice of in obtaining) any substantive communication withconsent, and authorization, order or approval of, or any proposed understanding, undertaking or agreement withexemption by, any Governmental Entity regarding any such filings or any such Transaction. No Party shall independently participate in any meeting, or engage in any substantive conversation, with any Governmental Entity in respect of any such filings, investigation or other inquiry without giving the other Parties prior notice of the meeting public or conversation and, unless prohibited private third party required to be obtained or made by such any Governmental EntityParent, the opportunity to attend or participate. The Parties contemplate that as a general matter both Parent and GFI shall be represented at in-person meetings with any Governmental Entity. The Parties will consult and cooperate with one another in connection with any analyses, appearances, presentations, memoranda, briefs, arguments, opinions and proposals made or submitted by or on behalf of any Party in connection with proceedings under or relating to the HSR ActPurchaser, the Foreign Competition Laws or other Antitrust Laws.
(b) Without limiting the general obligations of Parent and GFI under Section 5.3(a) (Consents and Approvals), each of Parent and GFI shall use its reasonable best efforts to resolve such objections, if any, as may be asserted by any Governmental Entity with respect to the Transactions under the Antitrust Laws. In connection therewith and subject to Section 5.3(a) (Consents and Approvals), if any Proceeding is instituted (or threatened to be instituted) challenging any of the Transactions as inconsistent with or violative of any Antitrust Law, each of Parent and GFI shall cooperate and use its reasonable best efforts vigorously to contest and resist (by negotiation, litigation or otherwise) any such Proceeding and to have vacated, lifted, reversed or overturned any Order whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents, delays or restricts consummation of the Transactions, unless Parent reasonably and in good faith determines that litigation is not in its best interests. Notwithstanding the foregoing or any other provision of this Agreement, nothing in this Section 5.3(b) shall limit the right of a Party to terminate this Agreement pursuant to Section 7.1 (Termination), so long as such Party has until that time complied in all material respects with its obligations under this Section 5.3. Each of Parent and GFI shall use its reasonable best efforts to take such action as may be required to cause the expiration of the notice periods or to obtain the necessary approvals under the HSR Act, the Foreign Competition Laws or any other Antitrust Laws with respect to the Transactions as promptly as possible after the execution of this Agreement.
(c) Notwithstanding anything to the contrary in this Agreement, nothing in this Agreement shall be deemed to require Parent or any Parent Subsidiary to agree to or take any action that would result in any Burdensome Condition. None of GFI or any GFI Subsidiary shall agree to or take any action that would result in any Burdensome Condition without the prior written consent of Parent. For purposes of this Agreement, a “Burdensome Condition” shall mean making proposals, executing or carrying out agreements (including consent decrees) or submitting to Laws (i) providing for the transfer, license, sale or other disposition or holding separate (through the establishment of a trust or otherwise) of any assets or categories of assets of Parent, GFI Company or any of their respective Subsidiaries in connection with the Transactions or the holding separate taking of any action contemplated thereby or by this Agreement.
(through the establishment of a trust or otherwiseb) Each of the Securities Company, the Purchaser and Parent shall take all reasonable actions necessary to file as soon as practicable following the date hereof notifications under the HSR Act, or under comparable merger notification laws under foreign jurisdictions, and to respond as promptly as practicable to any inquiries received from the Federal Trade Commission or the Antitrust Division of the Department of Justice or any authorities of such other foreign jurisdictions for additional information or documentation and to respond as promptly as practicable to all inquiries and requests received from any State Attorney General or other Governmental Entity in connection with antitrust or competition matters. Notwithstanding the foregoing, or any other covenant herein contained, in connection with the receipt of any necessary approvals under the HSR Act or any comparable provisions under any applicable pre-merger notification laws or regulations of foreign jurisdictions, neither Parent Subsidiary or GFI Subsidiary or nor the Company shall be required to (i) divest, (ii) imposing hold separate or seeking (iii) otherwise take or commit to impose take any limitation on the action that limits (x) their respective freedoms of action with respect to or (y) their respective ability of Parent, GFI to retain: (A) themselves as an entity or any material portions thereof or (B) any of their respective Subsidiaries to conduct their respective businesses (including with respect to market practices and structure) businesses, product lines, properties or own such assets or to acquire, hold or exercise full rights of ownership of the business of GFI, the GFI Subsidiaries, Parent or the Parent Subsidiaries, in each case other than (x) with respect to Antitrust Laws, any such proposals, executing or carrying out agreements (including consent decrees) or submitting to Laws that would not impair in any material respect the expected benefits of Parent and the Parent Subsidiaries from or relating to the Transactions, or (y) with respect to Regulatory Approvals, any immaterial administrative or ministerial obligations of Parent or any Parent Subsidiaryassets.
Appears in 2 contracts
Samples: Merger Agreement (Cheap Tickets Inc), Merger Agreement (Cendant Corp)
Consents and Approvals. (a) Subject to the terms and conditions of this AgreementThe Company, each of Parent and GFI will use its reasonable best efforts to takeMerger Sub shall each, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under applicable Law to consummate the Transactions, including, preparing and filing as promptly as practicable all documentation to effect all necessary filings, notices, petitions, statements, registrations, submissions of information, applications and other documents necessary and appropriate to consummate the Transactions. In furtherance and not in limitation of the foregoing, each of Parent and GFI shall (i) make or cause to be made the filings required of such party under the Foreign Competition Laws (including those set forth in Section 3.4(b)(i) of the Parent Disclosure Letter) with respect to the Transactions as promptly as practicable after the date of this Agreement; (ii) take all actions , file or cause to obtain and make the Regulatory Approvals set forth in Section 3.4(b)(ii) of the Parent Disclosure Letter as promptly as practicable after the date of this Agreement; (iii) comply at the earliest practicable date with any request under any Governmental Entity (including under any Foreign Competition Laws) in respect of such filings or such Transaction; and (iv) act in good faith and reasonably cooperate be filed with the other Party in connection with Federal Trade Commission and the United States Department of Justice any such filings and in connection with resolving any investigation or other inquiry of any such agency or other Governmental Entity notifications required to be filed under any of the HSR Act, the Foreign Competition Laws, the Xxxxxxx Act, the Xxxxxxx Act and any other Laws or Orders that are designed to prohibit, restrict or regulate actions having the purpose or effect of monopolization or restraint of trade (collectively, the “Antitrust Laws”) with respect to any such filing or any such Transactionthe transactions contemplated hereby. To the extent not prohibited by applicable Law, the Parties The parties shall use reasonable best efforts to furnish to each other all information required for any application or other filing to be made pursuant respond promptly to any applicable Law in connection with the Transactions. Each Party shall give each other reasonable prior notice requests for additional information made by either of any substantive communication withsuch agencies, and any proposed understanding, undertaking or agreement with, any Governmental Entity regarding any such filings or any such Transaction. No Party shall independently participate in any meeting, or engage in any substantive conversation, with any Governmental Entity in respect of any such filings, investigation or other inquiry without giving to cause the other Parties prior notice of the meeting or conversation and, unless prohibited by such any Governmental Entity, the opportunity to attend or participate. The Parties contemplate that as a general matter both Parent and GFI shall be represented at in-person meetings with any Governmental Entity. The Parties will consult and cooperate with one another in connection with any analyses, appearances, presentations, memoranda, briefs, arguments, opinions and proposals made or submitted by or on behalf of any Party in connection with proceedings waiting periods under or relating to the HSR Act, Act to terminate or expire at the Foreign Competition Laws or other Antitrust Lawsearliest possible date after the date of filing.
(b) Without limiting the general obligations of The Company, Parent and GFI under Section 5.3(a) (Consents and Approvals), each of Parent and GFI shall use its reasonable best efforts to resolve such objections, if any, as may be asserted by any Governmental Entity with respect to the Transactions under the Antitrust Laws. In connection therewith and subject to Section 5.3(a) (Consents and Approvals), if any Proceeding is instituted (or threatened to be instituted) challenging any of the Transactions as inconsistent with or violative of any Antitrust Law, each of Parent and GFI Merger Sub shall cooperate with each other and use its reasonable best efforts vigorously to contest and resist (by negotiation, litigation or otherwise) any such Proceeding and to have vacated, lifted, reversed or overturned any Order whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents, delays or restricts consummation of the Transactions, unless Parent reasonably and in good faith determines that litigation is not in its best interests. Notwithstanding the foregoing or any other provision of this Agreement, nothing in this Section 5.3(b) shall limit the right of a Party to terminate this Agreement pursuant to Section 7.1 (Termination), so long as such Party has until that time complied in all material respects with its obligations under this Section 5.3. Each of Parent and GFI shall use its reasonable best efforts to take such action as may be required to cause the expiration of the notice periods or to obtain the necessary approvals under the HSR Act, the Foreign Competition Laws or any other Antitrust Laws with respect to the Transactions as promptly as possible after the execution of this Agreement.
(c) Notwithstanding anything to the contrary in this Agreement, nothing in this Agreement shall be deemed to require Parent or any Parent Subsidiary to agree to or take any action that would result in any Burdensome Condition. None of GFI or any GFI Subsidiary shall agree to or take any action that would result in any Burdensome Condition without the prior written consent of Parent. For purposes of this Agreement, a “Burdensome Condition” shall mean making proposals, executing or carrying out agreements (including consent decrees) or submitting to Laws (i) providing for promptly prepare and file all necessary documentation, (ii) effect all necessary applications, notices, petitions and filings and execute all agreements and documents, (iii) use all reasonable efforts to obtain all necessary permits, consents, approvals and authorizations of all governmental bodies and (iv) use all reasonable efforts to obtain all necessary Permits, consents, approvals and authorizations of all other parties, in the transfercase of each of the foregoing clauses (i), (ii), (iii) and (iv), necessary to consummate the transactions contemplated by this Agreement or required by the terms of any note, bond, mortgage, indenture, deed of trust, license, sale franchise, permit, concession, contract, lease or other disposition or holding separate (through instrument to which the establishment of a trust or otherwise) of any assets or categories of assets of ParentCompany, GFI Merger Sub, Parent or any of their respective Subsidiaries is a party or the holding separate (through the establishment of a trust or otherwise) of the Securities of any Parent Subsidiary or GFI Subsidiary or (ii) imposing or seeking to impose any limitation on the ability of Parent, GFI or by which any of their respective Subsidiaries them is bound; provided, however, that no note, bond, mortgage, indenture, deed of trust, license, franchise, permit, concession, contract, lease or other instrument shall be amended or modified to conduct their respective businesses (including with respect to market practices and structure) or own such assets or to acquire, hold or exercise full rights of ownership of the business of GFI, the GFI Subsidiaries, Parent or the Parent Subsidiaries, in each case other than (x) with respect to Antitrust Laws, any such proposals, executing or carrying out agreements (including consent decrees) or submitting to Laws that would not impair increase in any material respect the expected benefits of Parent amount payable thereunder or to be otherwise more burdensome, or less favorable, in each case in any material respect, to the Company and the Parent Company Subsidiaries from considered as one enterprise in order to obtain any permit, consent, approval or authorization without first obtaining the written consent of Parent, which consent shall not be unreasonably withheld or delayed. The Company shall have the right to review and approve in advance all characterizations of the information relating to the TransactionsCompany; Parent shall have the right to review and approve in advance all characterizations of the information relating to Parent or Merger Sub; and each of the Company and Parent shall have the right to review and approve in advance all characterizations of the information relating to the transactions contemplated by this Agreement, or in each case which appear in any material filing (yincluding the Joint Proxy Statement) made in connection with the transactions contemplated hereby. The Company, Parent and Merger Sub agree that they will consult with each other with respect to Regulatory Approvalsthe obtaining of all such necessary Permits, any immaterial administrative or ministerial obligations consents, approvals and authorizations of Parent or any Parent Subsidiaryall third parties and governmental bodies.
Appears in 2 contracts
Samples: Merger Agreement (Westport Resources Corp /Nv/), Agreement and Plan of Merger (Kerr McGee Corp /De)
Consents and Approvals. (a) Subject to the terms and conditions of this Agreement, each of Parent and GFI will the parties shall use its reasonable best efforts to take, or cause to be taken, all actions actions, to file, or cause to be filed, all documents and to do, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable under applicable Antitrust Laws or other Applicable Law to consummate and make effective the Transactionstransactions contemplated by this Agreement as soon as reasonably practicable, including, preparing including using reasonable best efforts to (i) obtain the Required Regulatory Approvals and filing as promptly as practicable all documentation to effect make all necessary filingsregistrations and filings and take all steps as may be reasonably necessary to obtain the Required Regulatory Approvals from, noticesor to avoid an action or proceeding by, petitionsany Governmental Authority in connection with any Antitrust Law; (ii) obtain all other approvals, statementsconsents, registrationsratifications, submissions of informationpermissions, applications waivers or authorizations from Governmental Authorities or other Third Parties necessary, proper or advisable in connection with the transactions contemplated by this Agreement; and other documents (iii) execute and deliver any additional instruments necessary and appropriate to consummate the Transactions. In furtherance and not transactions contemplated by this Agreement; provided that, in limitation connection with any of the foregoingforegoing clauses (i) through (iii), the Company shall not agree to (x) make any payment of a consent fee, “profit sharing” payment or other consideration (including increased or accelerated payment) or concede anything of material monetary or economic value or (y) amend, supplement or modify any Contract in any manner that would be materially adverse to the interest of the Company or, after the Merger, Parent and its Subsidiaries, in each case, without the prior written consent of Parent (such consent not to be unreasonably withheld, conditioned or delayed).
(b) The parties agree to use their reasonable best efforts to promptly take, and cause their Affiliates to take, all actions and steps requested or required by any Governmental Authority as a condition to granting any Required Regulatory Approval, including causing the prompt expiration or termination of any applicable waiting period and to resolve objections, if any, of the U.S. Federal Trade Commission (the “FTC”) or U.S. Department of Justice (“DOJ”), or other Governmental Authorities of any other jurisdiction for which consents, permits, authorizations, waivers, clearances, approvals and expirations or terminations of waiting periods are required with respect to the transactions contemplated hereby, so as to obtain such Required Regulatory Approvals, and to avoid the entry of, or to effect the dissolution of, any order in any action or legal proceeding which would otherwise have the effect of preventing the Closing or delaying the Closing beyond the End Date, including defending through litigation, contending or appealing, any claim asserted in any court with respect to the proposed transaction by any person (including the FTC, the DOJ, or any other Governmental Authority). Such reasonable best efforts by the parties and/or their Affiliates shall include (1) proposing, negotiating, committing to and effecting, by consent decree, hold separate order or otherwise, the sale, divestiture, lease, license, transfer or other disposition of such businesses, product lines or assets of the Company, Parent or any of their respective Subsidiaries, (2) terminating, modifying or assigning existing relationships, contracts or obligations of Parent or any of its Subsidiaries or those relating to any assets, properties or businesses of the Company or any of its Subsidiaries, (3) agreeing to other structural, behavioral or conduct relief, or changing or modifying any course of conduct regarding future operations of the Company, Parent or any of their respective Subsidiaries or the assets, properties or businesses of the Company or any of its Subsidiaries, and (4) otherwise taking or committing to take any other action that would limit Parent’s or any of its Subsidiaries’ freedom of action with respect to, or their ability to retain, one or more of their respective operations, divisions, businesses, product lines, customers, assets or rights or interests, or their freedom of action with respect to the assets, properties or businesses of the Company or any of its Subsidiaries, in each case, as may be required in order to enable the consummation of the transactions contemplated hereby to occur as soon as reasonably practicable (and in any event no later than the End Date) (the actions referred to in clauses (1), (2), (3) and (4), “Remedy Actions”); provided, however, that neither Parent nor any of its Affiliates shall be required to propose, negotiate, commit to or effect any Remedy Action with respect to (A) any assets, categories of assets or portions of any business of Parent, the Company or any of their respective Subsidiaries if any such Remedy Action would, individually or in the aggregate, reasonably be expected to result in a material adverse effect on Parent and its Subsidiaries and the Company and its Subsidiaries, taken as a whole as a combined company (provided that for both of these purposes, a material adverse effect shall be measured relative to the size of the Company and its Subsidiaries, taken as a whole, regardless of whether such actions are imposed on, or affect Parent, the Company or any of their respective Subsidiaries) (a “Burdensome Condition”); and provided, that the Company shall only be permitted to propose, negotiate, commit to or effect any Remedy Action with the prior written consent of Parent; provided, further, that in no event shall Parent, the Company or their respective Subsidiaries be required to propose, negotiate, commit to or effect any Remedy Action unless such Remedy Action is conditioned upon the consummation of the Merger. Each of Parent and the Company shall not undertake any acquisition, joint venture or other business combination transaction, whether by merging or consolidating with, or by purchasing a substantial portion of the assets of or equity in, any Person or portion thereof or otherwise, if such actions would reasonably be expected to (i) materially delay or make materially more difficult the obtaining of any Required Regulatory Approvals or (ii) otherwise materially delay, impede or prevent the consummation of the Merger.
(c) Subject to the terms and conditions of this Agreement, each of Parent the parties shall (and GFI shall cause their respective Affiliates, if applicable, to) promptly, (i) make or cause to be made an appropriate filing of all Notification and Report forms as required by the filings required of such party under the Foreign Competition Laws (including those set forth in Section 3.4(b)(i) of the Parent Disclosure Letter) HSR Act with respect to the Transactions as promptly as practicable after transactions contemplated by this Agreement and (ii) make appropriate filings in respect of the other Required Regulatory Approvals, formally or in draft form (where pre-filing consultation is required).
(d) Without limiting the generality of anything contained in this Section 8.01, from the date of hereof until the Effective Time or the termination or this Agreement; Agreement in accordance with its terms, each of the Company and Parent (on its and Merger Subsidiary’s behalf) shall use its reasonable best efforts to (i) cooperate in all respects and consult with each other in connection with any filing or submission in connection with any investigation or other inquiry, including allowing the other party to have a reasonable opportunity to review in advance and comment on drafts of filings and submissions, (ii) take all actions to obtain and make give the Regulatory Approvals set forth in Section 3.4(b)(ii) other party prompt notice of the Parent Disclosure Letter as promptly as practicable after making or commencement of any request, inquiry, investigation, action or legal proceeding brought by a Governmental Authority or brought by a Third Party before any Governmental Authority, in each case, with respect to the date of transactions contemplated by this Agreement; , (iii) comply at keep the earliest practicable date with other party promptly informed as to the status of any request under any Governmental Entity (including under any Foreign Competition Laws) in respect of such filings request, inquiry, investigation, action or such Transaction; and legal proceeding, (iv) act in good faith and reasonably cooperate with promptly inform the other Party party of any substantive communication to or from the FTC, DOJ or any other Governmental Authority in connection with any such filings request, inquiry, investigation, action or legal proceeding, (v) promptly furnish to the other party, subject to an appropriate confidentiality agreement to limit disclosure to outside counsel and consultants retained by such counsel, with copies of documents provided to or received from any Governmental Authority in connection with resolving any investigation such request, inquiry, investigation, action or legal proceeding, (vi) subject to an appropriate confidentiality agreement to limit disclosure to counsel and outside consultants retained by such counsel, consult in advance and cooperate with the other party and consider in good faith the views of the other party in connection with any substantive communication, analysis, appearance, presentation, memorandum, brief, argument, opinion or proposal to be made or submitted in connection with any such request, inquiry, investigation, action or legal proceeding, and (vii) except as may be prohibited by any Governmental Authority or by Applicable Law, in connection with any such request, inquiry, investigation, action or legal proceeding in respect of the transactions contemplated by this Agreement, each party shall provide advance notice of and permit authorized Representatives of the other party to be present at each material meeting or conference, including any virtual or telephonic meetings, relating to such request, inquiry, investigation, action or legal proceeding and to have access to and be consulted in advance in connection with any argument, opinion or proposal to be made or submitted to any Governmental Authority in connection with such request, inquiry, investigation, action or legal proceeding; provided, however, that materials required to provided pursuant to this Section 8.01(d) may be redacted (A) to remove references concerning the valuation of Parent, Merger Subsidiary, the Company, or any of their respective Subsidiaries or assets, (B) as necessary to comply with contractual arrangements, and (C) as necessary to address reasonable privilege concerns. Each party shall supply as promptly as practicable such information, documentation, other material or testimony that may be reasonably requested by any Governmental Authority, including by complying at the earliest reasonably practicable date with any reasonable request for additional information, documents or other inquiry materials received by any party or any of their respective Subsidiaries from any Governmental Authority in connection with such applications or filings for the transactions contemplated by this Agreement. Parent shall pay all filing fees under the HSR Act and other Antitrust Laws, but the Company shall bear its own costs for the preparation of any such agency or other Governmental Entity under any filings.
(e) Parent and the Company shall jointly develop, and each of the HSR Actparties shall consult and cooperate in all respects with one another, and consider in good faith the Foreign Competition Lawsviews of one another, the Xxxxxxx Act, the Xxxxxxx Act and any other Laws or Orders that are designed to prohibit, restrict or regulate actions having the purpose or effect of monopolization or restraint of trade (collectively, the “Antitrust Laws”) with respect to any such filing or any such Transaction. To the extent not prohibited by applicable Law, the Parties shall use reasonable best efforts to furnish to each other all information required for any application or other filing to be made pursuant to any applicable Law in connection with the Transactions. Each Party shall give each other reasonable prior notice timing, form and content of any substantive communication withfiling, and any proposed understanding, undertaking or agreement with, any Governmental Entity regarding any such filings or any such Transaction. No Party shall independently participate in any meeting, or engage in any substantive conversation, with any Governmental Entity in respect of any such filings, investigation or other inquiry without giving the other Parties prior notice of the meeting or conversation and, unless prohibited by such any Governmental Entity, the opportunity to attend or participate. The Parties contemplate that as a general matter both Parent and GFI shall be represented at in-person meetings with any Governmental Entity. The Parties will consult and cooperate with one another in connection with any analyses, appearances, communications, presentations, memoranda, briefs, arguments, opinions and proposals made or submitted by or on behalf of any Party party, hereto in connection with proceedings under or relating efforts to obtain the Required Regulatory Approvals; provided, however that in the event of a dispute over strategy, the final determination as to the HSR Act, appropriate course of action shall be made by Parent after consulting and considering in good faith the Foreign Competition Laws or other Antitrust Laws.
(b) Without limiting views of the general obligations of Parent and GFI under Section 5.3(a) (Consents and Approvals), each of Parent and GFI shall use its reasonable best efforts to resolve such objections, if any, as may be asserted by any Governmental Entity with respect to the Transactions under the Antitrust Laws. In connection therewith Company and subject to the terms of Section 5.3(a) (Consents and Approvals), if any Proceeding is instituted (or threatened to be instituted) challenging any of the Transactions as inconsistent with or violative of any Antitrust Law, each of Parent and GFI shall cooperate and use its reasonable best efforts vigorously to contest and resist (by negotiation, litigation or otherwise) any such Proceeding and to have vacated, lifted, reversed or overturned any Order whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents, delays or restricts consummation of the Transactions, unless Parent reasonably and in good faith determines that litigation is not in its best interests8.01. Notwithstanding the foregoing or any other provision of this Agreement, nothing in this Section 5.3(b) shall limit the right of a Party to terminate this Agreement pursuant to Section 7.1 (Termination), so long as such Party has until that time complied in all material respects with its obligations under this Section 5.3. Each of Parent and GFI shall use its reasonable best efforts to take such action as may be required to cause the expiration of the notice periods or to obtain the necessary approvals under the HSR Act, the Foreign Competition Laws or any other Antitrust Laws with respect to the Transactions as promptly as possible after the execution of this Agreement.
(c) Notwithstanding anything to the contrary in this Agreement, nothing in this Agreement to the contrary, no party shall be deemed to require Parent (or shall permit any Parent Subsidiary to agree to or take of its Affiliates to) enter into any action that would result in any Burdensome Condition. None timing agreement with a Governmental Authority regarding the timing of GFI or any GFI Subsidiary shall agree to or take any action that would result in any Burdensome Condition the Closing, without the prior written consent of Parent. For purposes of this Agreementthe other parties, a “Burdensome Condition” which consent shall mean making proposalsnot be unreasonably withheld, executing or carrying out agreements (including consent decrees) or submitting to Laws (i) providing for the transfer, license, sale or other disposition or holding separate (through the establishment of a trust or otherwise) of any assets or categories of assets of Parent, GFI or any of their respective Subsidiaries or the holding separate (through the establishment of a trust or otherwise) of the Securities of any Parent Subsidiary or GFI Subsidiary or (ii) imposing or seeking to impose any limitation on the ability of Parent, GFI or any of their respective Subsidiaries to conduct their respective businesses (including with respect to market practices and structure) or own such assets or to acquire, hold or exercise full rights of ownership of the business of GFI, the GFI Subsidiaries, Parent or the Parent Subsidiaries, in each case other than (x) with respect to Antitrust Laws, any such proposals, executing or carrying out agreements (including consent decrees) or submitting to Laws that would not impair in any material respect the expected benefits of Parent and the Parent Subsidiaries from or relating to the Transactionsconditioned, or (y) with respect to Regulatory Approvals, any immaterial administrative or ministerial obligations of Parent or any Parent Subsidiarydelayed.
Appears in 2 contracts
Samples: Merger Agreement (Juniper Networks Inc), Merger Agreement (Hewlett Packard Enterprise Co)
Consents and Approvals. (a) Subject to Each of the terms and conditions of this AgreementCompany, each of Parent and GFI will Merger Sub shall use its reasonable best efforts to take(i) obtain from any Governmental Authority any consents, licenses, permits, waivers, clearances approvals, authorizations or orders required to be obtained or made by Parent, Merger Sub or the Company or any of their respective Subsidiaries, or cause to be takenavoid any action or proceeding by any Governmental Authority (including, all actions without limitation, those in connection with the HSR Act), in connection with the authorization, execution and to do, or cause to be done, all things necessary, proper or advisable under applicable Law to consummate delivery of this Agreement and the consummation of the Transactions, including, preparing and filing as promptly as practicable all documentation to effect all necessary filings, notices, petitions, statements, registrations, submissions of information, applications and other documents necessary and appropriate to consummate the Transactions. In furtherance and not in limitation of the foregoing, each of Parent and GFI shall (iii) make or cause to be made the applications or filings required to be made by Parent, Merger Sub or the Company or any of such party their respective Subsidiaries under the Foreign Competition Laws (including those set forth in Section 3.4(b)(i) of the Parent Disclosure Letter) or with respect to the Transactions HSR Act or any other applicable Laws in connection with the authorization, execution and delivery of this Agreement and the consummation of the Transactions, and pay any fees due in connection with such applications or filings, as promptly as practicable is reasonably practicable, and in any event within ten (10) business days after the date of this Agreement; (ii) take all actions to obtain and make the Regulatory Approvals set forth in Section 3.4(b)(ii) of the Parent Disclosure Letter as promptly as practicable after the date of this Agreement; hereof, (iii) comply at the earliest practicable date with any request under or with respect to the HSR Act and any such other applicable Laws for additional information, documents or other materials received by Parent or the Company or any of their respective Subsidiaries from the Federal Trade Commission or the Department of Justice or any other Governmental Entity (including under any Foreign Competition Laws) Authority in respect of connection with such applications or filings or such Transaction; the Transactions and (iv) act in good faith coordinate and reasonably cooperate with with, and give due consideration to all reasonable additions, deletions or changes suggested by the other Party party in connection with, making (A) any filing under or with respect to the HSR Act or any such filings other applicable Laws and in connection with (B) any filings, conferences or other submissions related to resolving any investigation or other inquiry of by any such agency or other Governmental Entity under any Authority. Each of the HSR ActCompany and Parent shall, and shall cause their respective affiliates and Representatives to, furnish to the Foreign Competition Laws, the Xxxxxxx Act, the Xxxxxxx Act and any other Laws or Orders that are designed to prohibit, restrict or regulate actions having the purpose or effect of monopolization or restraint of trade (collectively, the “Antitrust Laws”) with respect to party all information necessary for any such filing or any such Transaction. To the extent not prohibited by applicable Law, the Parties shall use reasonable best efforts to furnish to each other all information required for any application or other filing to be made pursuant to any applicable Law in connection with the Transactions. Each Party of the Company and Parent shall give each promptly inform the other reasonable prior notice of any substantive material communication with, and any proposed understanding, undertaking or agreement with, any Governmental Entity Authority regarding any such filings application or any such Transactionfiling. No Party shall If a party hereto intends to independently participate in any meeting, or engage in any substantive conversation, meeting with any Governmental Entity Authority in respect of any such filings, investigation or other inquiry without giving inquiry, then such party shall give the other Parties party reasonable prior notice of such meeting and invite Representatives of the other party to participate in the meeting or conversation and, with the Governmental Authority unless prohibited by such any Governmental Entity, the opportunity to attend or participateAuthority. The Parties contemplate that as a general matter both Parent and GFI parties shall be represented at in-person meetings with any Governmental Entity. The Parties will consult coordinate and cooperate with one another in connection with any analyses, appearances, presentations, memoranda, briefs, arguments, opinions and proposals made or submitted by or on behalf of any Party party in connection with all meetings, actions and proceedings under or relating to the HSR Act, the Foreign Competition Laws any such application or other Antitrust Lawsfiling.
(b) Without limiting the general obligations of Parent The Company shall give (or shall cause its Subsidiaries to give) any notices to third parties, and GFI under Section 5.3(a) (Consents use, and Approvals)cause its Subsidiaries to use, each of Parent and GFI shall use its reasonable best efforts to resolve obtain any third party consents, (i) necessary to consummate the Transactions or (ii) required to prevent a Company Material Adverse Effect from occurring prior to or after the Effective Time; provided, however, that the Company and Parent shall coordinate and reasonably cooperate in determining whether any actions, notices, consents, approvals or waivers are required to be given or obtained, or should be given or obtained, from parties to any Company Agreements in connection with consummation of the Transactions and seeking any such objectionsactions, notices, consents, approvals or waivers. Notwithstanding the foregoing, neither Parent nor Merger Sub shall be required to, and neither the Company nor any Company Subsidiary shall be required to, prior to the Effective Time, make or commit to make any material payment to any third party or agree to any material amendment, waiver or modification to any Company Agreement or any limitation on the conduct of its business, in order to obtain any such consent, approval or waiver unless Parent shall agree to reimburse the Company for such payment, and any such amendment, waiver or modification will not be effective if anythe Effective Time does not occur.
(c) From the date hereof until the Effective Time, each of Parent, Merger Sub and the Company shall promptly notify the other in writing of any pending or, to the knowledge of Parent, Merger Sub or the Company (as the case may be asserted be), threatened action, suit, arbitration or other proceeding or investigation by any Governmental Entity Authority or any other Person (i) challenging or seeking material damages in connection with respect to the Transactions under or (ii) seeking to restrain or prohibit the Antitrust Laws. In connection therewith and subject consummation of the Transactions or otherwise limit in any material respect the right of Merger Sub or any affiliate of Merger Sub to Section 5.3(aown or operate all or any portion of the businesses or assets of the Company or any Company Subsidiary.
(d) (Consents and Approvals), if If any Proceeding administrative or judicial action or proceeding is instituted (or threatened to be instituted) by or before a Governmental Authority challenging any of the Transactions as inconsistent with violating any applicable Laws, each of the Company, Parent and Merger Sub shall, and shall cause their respective affiliates to, cooperate and use their reasonable best efforts to contest and resist, except insofar as the Company, Parent and Merger Sub may otherwise agree, any such action or violative proceeding, including any action or proceeding that seeks a temporary restraining order or preliminary injunction that would prohibit, prevent or restrict consummation of, or impose a materially adverse condition upon, the Transactions.
(e) If necessary to obtain from any Governmental Authority any consents, licenses, permits, waivers, clearances approvals, authorizations or orders required to be obtained or made by Parent or the Company or any of any Antitrust Lawtheir respective Subsidiaries, under the HSR Act, each of Parent and GFI the Company shall cooperate with each other and use its reasonable best efforts vigorously to contest and resist (by negotiation, litigation or otherwise) any resolve such Proceeding and to have vacated, lifted, reversed or overturned any Order whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents, delays or restricts consummation of the Transactions, unless Parent reasonably and in good faith determines that litigation is not in its best interests. Notwithstanding the foregoing or any other provision of this Agreement, nothing in this Section 5.3(b) shall limit the right of a Party to terminate this Agreement pursuant to Section 7.1 (Termination), so long as such Party has until that time complied in all material respects with its obligations under this Section 5.3. Each of Parent and GFI shall use its reasonable best efforts to take such action objections as may be required to cause the expiration of the notice periods or to obtain the necessary approvals under the HSR Act, the Foreign Competition Laws or asserted by any other Antitrust Laws with respect to the Transactions as promptly as possible after the execution of this Agreement.
(c) Governmental Authority. Notwithstanding anything to the contrary in this Agreement, nothing in this Agreement connection with any filing or submission required or action to be taken by either Parent and the Merger Sub, on the one hand, or the Company, on the other hand, to consummate the Transactions, in no event shall be deemed to require Parent or any Parent Subsidiary to agree to or take any action that would result in any Burdensome Condition. None of GFI or any GFI Subsidiary shall agree to or take any action that would result in any Burdensome Condition without the prior written consent of Parent. For purposes of this Agreement, a “Burdensome Condition” shall mean making proposals, executing or carrying out agreements (including consent decrees) or submitting to Laws (i) providing for the transfer, license, sale or other disposition or holding separate (through the establishment of a trust or otherwise) of any assets or categories of assets of Parent, GFI Merger Sub or the Company or any of their respective Subsidiaries or affiliates be obligated to propose or agree to accept any undertaking or condition, to enter into any consent decree, to make any divestiture or accept any operational restriction, or take or commit to take any action (i) the holding separate (through effectiveness or consummation of which is not conditional on the establishment of a trust or otherwise) consummation of the Securities of any Parent Subsidiary or GFI Subsidiary Merger or (ii) imposing that may have a materially detrimental effect or seeking to impose any limitation impact on the ability current or future business models, plans or structures of Parent, GFI Merger Sub or the Company or any of their respective Subsidiaries Subsidiaries, or which would be prohibited by the Financing, provided that Parent uses its reasonable best efforts to conduct their respective businesses (including with respect to market practices and structure) or own such assets or to acquire, hold or exercise full rights of ownership obtain the consent of the business of GFI, the GFI Subsidiaries, Parent or the Parent Subsidiaries, in each case other than (x) with respect to Antitrust Laws, any such proposals, executing or carrying out agreements (including consent decrees) or submitting to Laws that would not impair in any material respect the expected benefits of Parent and the Parent Subsidiaries from or relating to the Transactions, or (y) with respect to Regulatory Approvals, any immaterial administrative or ministerial obligations of Parent or any Parent SubsidiaryFinancing Sources thereto.
Appears in 2 contracts
Samples: Merger Agreement (Gentiva Health Services Inc), Merger Agreement (Odyssey Healthcare Inc)
Consents and Approvals. (a) Subject to the terms and conditions of this AgreementAgreement (including Section 5.2(e)), each of Parent Party shall, and GFI will shall cause its wholly owned Subsidiaries to, use its commercially reasonable best efforts to take, or cause to be taken, all actions actions, and to do, or cause to be done, all things necessary, proper or advisable under applicable Law and to consummate the Transactions, including, preparing assist and filing as promptly as practicable all documentation to effect all necessary filings, notices, petitions, statements, registrations, submissions of information, applications and other documents necessary and appropriate to consummate the Transactions. In furtherance and not in limitation of the foregoing, each of Parent and GFI shall (i) make or cause to be made the filings required of such party under the Foreign Competition Laws (including those set forth in Section 3.4(b)(i) of the Parent Disclosure Letter) with respect to the Transactions as promptly as practicable after the date of this Agreement; (ii) take all actions to obtain and make the Regulatory Approvals set forth in Section 3.4(b)(ii) of the Parent Disclosure Letter as promptly as practicable after the date of this Agreement; (iii) comply at the earliest practicable date with any request under any Governmental Entity (including under any Foreign Competition Laws) in respect of such filings or such Transaction; and (iv) act in good faith and reasonably cooperate with the other Party in connection with doing, all things required or reasonably necessary to consummate and make effective the transactions contemplated by this Agreement as promptly as practicable, including:
(i) as promptly as practicable, obtain from any such Governmental Authority all waivers, consents, clearances and approvals, including the Required Regulatory Approvals, required or reasonably necessary to consummate the transactions contemplated by this Agreement;
(ii) as promptly as practicable, make all filings and submissions that are required or reasonably necessary to consummate the transactions contemplated by this Agreement and thereafter make any other required or appropriate submissions including, without limiting the foregoing, all filings and submissions required in connection with resolving the Required Regulatory Approvals; and
(iii) as promptly as practicable, take reasonable actions to provide notice to any investigation third party, or obtain from any third party any waivers, consents and approvals, required or reasonably necessary to consummate the transactions contemplated by this Agreement; provided, however, that, notwithstanding anything in this Agreement to the contrary, in no event shall Endo and Auxilium or any of their respective Subsidiaries be required to pay, prior to the Closing, any fee, penalty or other inquiry consideration to any third party for any waiver, consent or approval required in connection with the consummation of the transactions contemplated by this Agreement. In no event shall the receipt of any such agency third party waiver, consent or approval (other Governmental Entity under than the Required Regulatory Approvals) be a condition to any Party’s obligations hereunder.
(b) Subject to the terms and conditions hereof, including Section 5.2(e), each of the Parties agrees, and shall cause each of their respective Subsidiaries, to cooperate and to use commercially reasonable efforts to (i) provide such notices and obtain such waivers, consents, clearances and approvals as are required or reasonably necessary to consummate the transactions contemplated by this Agreement under the HSR Act, the Foreign Competition Laws, the Xxxxxxx Act, the Xxxxxxx Act and any other Laws federal, provincial, state or Orders that are foreign Law designed to prohibit, restrict or regulate actions having the purpose or effect of relating to monopolization or restraint of trade or foreign investment (collectively, the “Antitrust Relevant Laws”), and (ii) with respect respond to any such filing requests of any Governmental Authority for information or documentary material under any such Transaction. To the extent not prohibited by applicable Relevant Law, the Parties shall use reasonable best efforts and to furnish to each other all information required for contest and resist any application action, including any legislative, administrative or other filing to be made pursuant to any applicable Law in connection with the Transactions. Each Party shall give each other reasonable prior notice of any substantive communication withjudicial action, and to have vacated, lifted, reversed or overturned any proposed understandingOrder (whether temporary, undertaking preliminary or agreement withpermanent) that restricts, any Governmental Entity regarding any such filings prevents or any such Transaction. No Party shall independently participate in any meeting, or engage in any substantive conversation, with any Governmental Entity in respect of any such filings, investigation or other inquiry without giving prohibits the other Parties prior notice consummation of the meeting or conversation and, unless prohibited transactions contemplated by such this Agreement under any Governmental Entity, the opportunity to attend or participateRelevant Law. The Parties contemplate that as a general matter both Parent and GFI shall be represented at in-person meetings with any Governmental Entity. The Parties will consult and cooperate with one another another, and consider in connection with good faith the views of one another, regarding the form and content of any analyses, appearances, presentations, memoranda, briefs, arguments, opinions and or proposals made or submitted by or on behalf of any Party in connection with proceedings under or relating to the HSR Act, the Foreign Competition Laws or other Antitrust Lawsany Relevant Law prior to their submission.
(bc) Without limiting Each of Endo and Auxilium shall, other than in respect of routine correspondence and dealings with the general obligations TSX and NASDAQ regarding the transactions contemplated by this Agreement: (i) promptly advise each other of Parent any written or oral substantive communication (including substantive communications received by their respective Subsidiaries) from any Governmental Authority or third party from whom a waiver, consent or approval is required or reasonably necessary to consummate the transactions contemplated by this Agreement; (ii) not participate in any meeting or substantive discussion with any Governmental Authority in respect of any filing, investigation or inquiry concerning this Agreement or the transactions contemplated by this Agreement, unless it consults with the other Party in advance and, unless prohibited by such Governmental Authority, gives the other Party the opportunity to attend; and GFI under (iii) promptly furnish the other Party with copies of all substantive correspondence, filings and written communications between them and their Subsidiaries and Representatives, on the one hand, and any Governmental Authority or its staff, on the other hand, with respect to this Agreement and the transactions contemplated by this Agreement, except that materials may be redacted as necessary to address reasonable privilege, competitively sensitive information or confidentiality concerns.
(d) Each Party will provide as promptly as practicable such information and documentary material as may be requested by a Governmental Authority following any such filing or notification.
(e) In furtherance and not in limitation of the other covenants contained in this Section 5.3(a) (Consents and Approvals5.2, but subject to the last sentence of this Section 5.2(e), each of Parent Endo and GFI shall use Auxilium agrees to take, or cause to be taken (including by its reasonable best efforts Subsidiaries), any and all steps and to make, or cause to be made (including by its Subsidiaries), any and all undertakings necessary to resolve such objectionsany objections that a Governmental Authority may assert under any Relevant Law with respect to the Merger, if any, as and to avoid or eliminate each and every impediment under any Relevant Law that may be asserted by any Governmental Entity Authority with respect to the Transactions under Merger, so as to enable the Antitrust Laws. In connection therewith Merger Effective Time to occur as promptly as practicable and subject in any event no later than the Outside Date, including (i) proposing, negotiating, committing to Section 5.3(aand effecting, by consent decree, hold separate order or otherwise, the sale, divestiture or disposition of any businesses, assets, equity interests, product lines or properties of Endo or Auxilium (or any of their respective Subsidiaries) or any equity interest in any Joint Venture held by Endo or Auxilium (Consents and Approvalsor any of their respective Subsidiaries), if (ii) creating, terminating, or divesting relationships, ventures, contractual rights or obligations of Endo or Auxilium or their respective Subsidiaries and (iii) otherwise taking or committing to take any Proceeding is instituted action that would limit Auxilium’s or Endo’s freedom of action with respect to, or its ability to retain or hold, directly or indirectly, any businesses, assets, equity interests, product lines or properties of Endo or Auxilium (or threatened to be instituted) challenging including any of the Transactions as inconsistent with or violative of any Antitrust Law, each of Parent and GFI shall cooperate and use its reasonable best efforts vigorously to contest and resist (by negotiation, litigation or otherwise) any such Proceeding and to have vacated, lifted, reversed or overturned any Order whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents, delays or restricts consummation of the Transactions, unless Parent reasonably and in good faith determines that litigation is not in its best interests. Notwithstanding the foregoing or any other provision of this Agreement, nothing in this Section 5.3(b) shall limit the right of a Party to terminate this Agreement pursuant to Section 7.1 (Terminationtheir respective Subsidiaries), so long as such Party has until that time complied in all material respects with its obligations under this Section 5.3. Each of Parent and GFI shall use its reasonable best efforts to take such action each case as may be required in order to cause the expiration of the notice periods obtain all waivers, consents, clearances or approvals required directly or indirectly under any Relevant Law or to obtain avoid the necessary approvals commencement of any action by a Governmental Authority to prohibit the Merger under any Relevant Law, or to avoid the HSR Actentry of, or to effect the Foreign Competition Laws dissolution of, any Order in any Proceeding seeking to prohibit the Merger or any other Antitrust Laws with respect delay the Merger Effective Time beyond the Outside Date. Notwithstanding anything in this Agreement to the Transactions as promptly as possible after the execution of this Agreement.
(c) Notwithstanding anything to the contrary in this Agreementcontrary, nothing in this Agreement shall require, or be deemed to require Parent require, Endo or any Parent Subsidiary to agree to or take any action that would result in any Burdensome Condition. None of GFI or any GFI Subsidiary shall agree to or take any action that would result in any Burdensome Condition without the prior written consent of Parent. For purposes of this Agreement, a “Burdensome Condition” shall mean making proposals, executing or carrying out agreements Auxilium (including consent decrees) or submitting to Laws (i) providing for the transfer, license, sale or other disposition or holding separate (through the establishment of a trust or otherwise) of any assets or categories of assets of Parent, GFI or any of their respective Subsidiaries Subsidiaries) to take any action, agree to take any action or consent to the holding separate (through the establishment of a trust or otherwise) of the Securities taking of any Parent Subsidiary or GFI Subsidiary or (ii) imposing or seeking to impose any limitation on the ability of Parent, GFI or any of their respective Subsidiaries to conduct their respective businesses action (including with respect to market practices and structure) selling, holding separate or own such otherwise disposing of any business or assets or conducting its (or their Subsidiaries) business in any specified manner) if doing so would, individually or in the aggregate, reasonably be expected to acquire, hold have a Material Adverse Effect on either Endo or exercise full rights of ownership of the business of GFI, the GFI Subsidiaries, Parent or the Parent Subsidiaries, in each case other than Auxilium (x) with respect to Antitrust Laws, any such proposalsaction that would, executing individually or carrying out agreements (including consent decrees) or submitting in the aggregate, reasonably be expected to Laws that would not impair in any material respect the expected benefits of Parent and the Parent Subsidiaries from or relating to the Transactionshave a Material Adverse Effect, or (y) with respect to Regulatory Approvals, any immaterial administrative or ministerial obligations of Parent or any Parent Subsidiarya “Restraint”).
Appears in 2 contracts
Samples: Merger Agreement (Endo International PLC), Merger Agreement (Auxilium Pharmaceuticals Inc)
Consents and Approvals. (a) Subject Seller (or Parent, if necessary) and the Buyer (or the ultimate parent entity of Buyer, if necessary) shall each file or cause to be filed with the Federal Trade Commission and the United States Department of Justice any notifications required to be filed under the HSR Act and the rules and regulations promulgated thereunder with respect to the transactions contemplated hereby. The parties shall consult with each other as to the appropriate time of filing such notifications (which time shall be no later than 60 days from the date of this Agreement) and shall use their reasonable best efforts to make such filings at such time, to respond promptly to any requests for additional information made by either of such agencies, and to cause the waiting periods under the HSR Act to terminate or expire at the earliest possible date after the date of filing.
(b) The Seller and the Buyer shall cooperate with each other and (i) promptly prepare and file all necessary documentation, (ii) effect all necessary applications, notices, petitions and filings and execute all agreements and documents, (iii) use reasonable best efforts to promptly obtain the transfer or reissuance to the Buyer of all necessary Permits, consents, approvals and authorizations of all Governmental Entities and (iv) use reasonable best efforts to obtain all necessary consents, approvals and authorizations of all other parties, in the case of each of the foregoing clauses (i), (ii), (iii) and (iv), necessary or advisable to consummate the transactions contemplated by this Agreement (including, without limitation, the Seller Required Regulatory Approvals and the Buyer Required Regulatory Approvals (other than incident to the Tariff Restructuring, which is the subject of Section 7.6(c)) or required by the terms of any note, bond, mortgage, indenture, deed of trust, license, franchise, permit, concession, contract, lease or other instrument to which the Seller or the Buyer is a party or by which either of them is bound. Notwithstanding the foregoing, in connection with seeking and conditions obtaining the approval of the Public Service Commission of the transactions contemplated hereby, none of the Seller, the Buyer, the Company, any Company Subsidiary or any of their respective Affiliates shall be required to (i) proffer or agree to any obligation, undertaking, commitment, or any other limitation with respect to or restriction or condition that would reasonably be expected to result in an adverse economic impact (collectively, “Restrictions”) on the West Virginia Gas Distribution Business (including its tariffs (other than incident to the Tariff Restructuring, which is the subject of Section 7.6(c)) and operations) or any of the businesses or operations of the Buyer, the Buyer’s Affiliates or Seller or its Affiliates, in each case that is materially different from the Restrictions on the West Virginia Gas Distribution Business or such other business or operations of the Buyer’s Affiliates or Seller or its Affiliates as of the date of this Agreement, except to the extent (A) the Restriction is explicitly offered or proposed in any stipulation or other formal representation (whether in a petition, application, motion, written testimony, acknowledgement or acceptance, or otherwise) presented for approval to the Public Service Commission in connection with efforts to secure the Public Service Commission’s approval of the Tariff Restructuring, the transactions contemplated by this Agreement, or otherwise (a “Written Acceptance”); and (B) the party that would (or the Affiliates of which would) be subject to the Restriction (which in the case of a Restriction to which the Company shall be subject, shall be Buyer) has presented or otherwise formally advanced a Written Acceptance that offers or proposes such Restriction; or (ii) proffer or agree to any Restriction on the West Virginia Gas Distribution Business (including its tariffs (other than incident to the Tariff Restructuring, which is the subject of Section 7.6(c)) and operations) or any of the businesses or operations of the Buyer’s Affiliates or Seller or its Affiliates, in each case of Parent any nature whatsoever to the extent such Restriction is not included in any Written Acceptance presented or otherwise formally advanced by the party that would (or the affiliates of which would) be subject to such Restriction (which in the case of a Restriction to which the Company shall be subject, shall be Buyer). From and GFI will after the date of this Agreement through the Closing, Seller shall not, and shall cause the Company not to, proffer or agree to any Restriction on the West Virginia Gas Distribution Business (including its tariffs and operations) that is materially different from the Restrictions on the West Virginia Gas Distribution Business as of the date of this Agreement, in connection with seeking or obtaining the approval of the Public Service Commission of the transactions contemplated hereby, the Tariff Restructuring or otherwise, without the prior consent of the Buyer, except as Seller and Buyer specifically agree to include in any Written Acceptance.
(c) Without limiting the generality of Section 7.6(b), the Seller and the Buyer shall cooperate with each other and use its reasonable best efforts to take, or cause to be taken, all actions actions, and do, or cause to be done, all things necessary, proper or advisable to prepare and file the Tariff Restructuring with the Public Service Commission as promptly as practicable after the date of this Agreement. From and after the date of such initial filing, the Seller and the Buyer shall cooperate with each other and use reasonable best efforts to take, or cause to be taken, all actions, and do, or cause to be done, all things necessary, proper or advisable under applicable Law Laws to consummate cause the TransactionsPublic Service Commission to issue a final and nonappealable order approving the Tariff Restructuring at the earliest possible time, includingincluding without limitation, preparing and filing as promptly as practicable all documentation to effect all necessary filings, notices, petitions, statements, registrations, submissions of information, applications and other documents necessary and appropriate to consummate the Transactions. In furtherance and not in limitation of the foregoing, each of Parent and GFI shall (i) make or cause making the appropriate personnel, representatives and advisors available at all reasonable times, (ii) making all other filings and giving all other notices required to be made prior to the filings required of such party under the Foreign Competition Laws (including those set forth in Section 3.4(b)(i) of the Parent Disclosure Letter) Closing with respect to the Transactions as promptly as practicable after the date of this Agreement; (ii) take all actions to obtain and make the Regulatory Approvals set forth in Section 3.4(b)(ii) of the Parent Disclosure Letter as promptly as practicable after the date of this Agreement; Tariff Restructuring, (iii) comply at responding promptly to any requests for additional applicable information made by (A) the earliest practicable date with Public Service Commission, (B) the Buyer or the Seller, (C) any request under other Person involved in any Governmental Entity proceeding relating to the Tariff Restructuring or (including under D) any Foreign Competition Laws) other Person involved in respect the preparation and filing of such filings or such Transaction; the Tariff Restructuring, and (iv) act in good faith and reasonably cooperate with the other Party in connection with avoiding taking any such filings and in connection with resolving any investigation action or other inquiry of any such agency or other Governmental Entity under any of the HSR Act, the Foreign Competition Laws, the Xxxxxxx Act, the Xxxxxxx Act and any other Laws or Orders that are designed failing to prohibit, restrict or regulate actions having the purpose or effect of monopolization or restraint of trade (collectively, the “Antitrust Laws”) with respect to any such filing or any such Transaction. To the extent not prohibited by applicable Law, the Parties shall use reasonable best efforts to furnish to each other all information required for any application or other filing to be made pursuant to any applicable Law in connection with the Transactions. Each Party shall give each other reasonable prior notice of any substantive communication with, and any proposed understanding, undertaking or agreement with, any Governmental Entity regarding any such filings or any such Transaction. No Party shall independently participate in any meeting, or engage in any substantive conversation, with any Governmental Entity in respect of any such filings, investigation or other inquiry without giving the other Parties prior notice of the meeting or conversation and, unless prohibited by such any Governmental Entity, the opportunity to attend or participate. The Parties contemplate that as a general matter both Parent and GFI shall be represented at in-person meetings with any Governmental Entity. The Parties will consult and cooperate with one another in connection with any analyses, appearances, presentations, memoranda, briefs, arguments, opinions and proposals made or submitted by or on behalf of any Party in connection with proceedings under or relating to the HSR Act, the Foreign Competition Laws or other Antitrust Laws.
(b) Without limiting the general obligations of Parent and GFI under Section 5.3(a) (Consents and Approvals), each of Parent and GFI shall use its reasonable best efforts to resolve such objections, if any, as may be asserted by any Governmental Entity with respect to the Transactions under the Antitrust Laws. In connection therewith and subject to Section 5.3(a) (Consents and Approvals), if any Proceeding is instituted (or threatened to be instituted) challenging any of the Transactions as inconsistent with or violative of any Antitrust Law, each of Parent and GFI shall cooperate and use its reasonable best efforts vigorously to contest and resist (by negotiation, litigation or otherwise) any such Proceeding and to have vacated, lifted, reversed or overturned any Order whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents, delays or restricts consummation of the Transactions, unless Parent reasonably and in good faith determines that litigation is not in its best interests. Notwithstanding the foregoing or any other provision of this Agreement, nothing in this Section 5.3(b) shall limit the right of a Party to terminate this Agreement pursuant to Section 7.1 (Termination), so long as such Party has until that time complied in all material respects with its obligations under this Section 5.3. Each of Parent and GFI shall use its reasonable best efforts to take such action as may be required to cause the expiration of the notice periods or to obtain the necessary approvals under the HSR Act, the Foreign Competition Laws or any other Antitrust Laws with respect to the Transactions as promptly as possible after the execution of this Agreement.
(c) Notwithstanding anything to the contrary in this Agreement, nothing in this Agreement shall be deemed to require Parent or any Parent Subsidiary to agree to or take any action that would result in any Burdensome Condition. None reasonably be expected to have the effect of GFI delaying, conditioning, or any GFI Subsidiary shall agree to or take any action that would result in any Burdensome Condition without reducing the prior written consent likelihood of Parent. For purposes of this Agreement, a “Burdensome Condition” shall mean making proposals, executing or carrying out agreements (including consent decrees) or submitting to Laws (i) providing for the transfer, license, sale or other disposition or holding separate (through the establishment of a trust or otherwise) of any assets or categories of assets of Parent, GFI or any of their respective Subsidiaries or the holding separate (through the establishment of a trust or otherwise) obtaining an order of the Securities of any Parent Subsidiary Public Service Commission approving the Tariff Restructuring; provided, however, that nothing in this Section 7.6(c) shall require, or GFI Subsidiary or (ii) imposing or seeking be construed to impose any limitation on the ability of Parentrequire, GFI or any of their respective Subsidiaries to conduct their respective businesses (including with respect to market practices and structure) or own such assets or to acquire, hold or exercise full rights of ownership of the business of GFI, the GFI Subsidiaries, Parent or the Parent Subsidiaries, in each case other than (x) the Seller or its Affiliates to proffer or agree to any moratorium or rate change with respect to Antitrust Lawsto, or any other Restrictions on, any such proposals, executing business or carrying out agreements (including consent decrees) activities other than the West Virginia Gas Distribution Business or submitting any actions that could cause a failure of any condition to Laws that would not impair in Closing or give rise to any material respect the expected benefits claim for indemnification or breach of Parent and the Parent Subsidiaries from any representation or relating to the Transactions, warranty or (y) with respect the Buyer or its Affiliates to Regulatory Approvals, proffer or agree to any immaterial administrative or ministerial obligations of Parent Restriction on the West Virginia Gas Distribution Business (including its tariffs and operations) or any Parent Subsidiaryof the businesses or operations of the Buyer’s Affiliates that in each case is materially different from the Restrictions on the West Virginia Gas Distribution Business or such other business or operations of the Buyer’s Affiliates as of the date of this Agreement or any actions that could cause a failure of any condition to Closing or give rise to any claim for indemnification or breach of any representation or warranty, except as Seller and Buyer specifically agree to include in any Written Acceptance. The Buyer will bear all costs and expenses of the preparation of any filing or notice required in connection with the Tariff Restructuring, provided that the Seller shall bear its own costs and expenses in connection with making its personnel, representatives and advisors available in order to comply with Seller’s obligations set forth in this Section 7.6(c).
(d) The Seller and the Buyer shall cooperate with each other and promptly prepare and file notifications with, and request Tax clearances from, state and local taxing authorities in jurisdictions in which a portion of the Purchase Price may be required to be withheld pursuant to such state and local Tax law.
Appears in 2 contracts
Samples: Acquisition Agreement (Monongahela Power Co /Oh/), Acquisition Agreement (Allegheny Energy Inc)
Consents and Approvals. (a) Subject to Buyer and the terms and conditions of this AgreementSeller shall each, each of Parent and GFI 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 Law to consummate the Transactions, including, preparing and filing as promptly as practicable all documentation to effect all necessary filings, notices, petitions, statements, registrations, submissions of information, applications and other documents necessary and appropriate to consummate the Transactions. In furtherance and not in limitation of the foregoing, each of Parent and GFI shall (i) make or cause to be made the filings required of such party under the Foreign Competition Laws (including those set forth in Section 3.4(b)(i) of the Parent Disclosure Letter) with respect to the Transactions as promptly as practicable after the date of this Agreement; (ii) take all actions , file or cause to obtain be filed with the Federal Trade Commission and make the Regulatory Approvals set forth in Section 3.4(b)(ii) United States Department of Justice any notifications required to be filed under the Parent Disclosure Letter as HSR Act with respect to the transactions contemplated hereby. The parties shall use commercially reasonable efforts to respond promptly as practicable to any requests for additional information made by either of such agencies, and to cause the waiting periods under the HSR Act to terminate or expire at the earliest possible date after the date of this Agreement; (iii) comply at the earliest practicable date with any request under any Governmental Entity (including under any Foreign Competition Laws) in respect of such filings or such Transaction; and (iv) act in good faith and reasonably cooperate with the other Party in connection with any such filings and in connection with resolving any investigation or other inquiry of any such agency or other Governmental Entity under any of the HSR Act, the Foreign Competition Laws, the Xxxxxxx Act, the Xxxxxxx Act and any other Laws or Orders that are designed to prohibit, restrict or regulate actions having the purpose or effect of monopolization or restraint of trade (collectively, the “Antitrust Laws”) with respect to any such filing or any such Transaction. To the extent not prohibited by applicable Law, the Parties shall use reasonable best efforts to furnish to each other all information required for any application or other filing to be made pursuant to any applicable Law in connection with the Transactions. Each Party shall give each other reasonable prior notice of any substantive communication with, and any proposed understanding, undertaking or agreement with, any Governmental Entity regarding any such filings or any such Transaction. No Party shall independently participate in any meeting, or engage in any substantive conversation, with any Governmental Entity in respect of any such filings, investigation or other inquiry without giving the other Parties prior notice of the meeting or conversation and, unless prohibited by such any Governmental Entity, the opportunity to attend or participate. The Parties contemplate that as a general matter both Parent and GFI shall be represented at in-person meetings with any Governmental Entity. The Parties will consult and cooperate with one another in connection with any analyses, appearances, presentations, memoranda, briefs, arguments, opinions and proposals made or submitted by or on behalf of any Party in connection with proceedings under or relating to the HSR Act, the Foreign Competition Laws or other Antitrust Lawsfiling.
(b) Without limiting Buyer and the general obligations of Parent Seller shall, and GFI under Section 5.3(a) (Consents shall cause their respective affiliates to, cooperate with each other and Approvals), each of Parent and GFI shall use its reasonable best efforts to resolve such objections, if any, as may be asserted by any Governmental Entity with respect to the Transactions under the Antitrust Laws. In connection therewith and subject to Section 5.3(a) (Consents and Approvals), if any Proceeding is instituted (or threatened to be instituted) challenging any of the Transactions as inconsistent with or violative of any Antitrust Law, each of Parent and GFI shall cooperate and use its reasonable best efforts vigorously to contest and resist (by negotiation, litigation or otherwise) any such Proceeding and to have vacated, lifted, reversed or overturned any Order whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents, delays or restricts consummation of the Transactions, unless Parent reasonably and in good faith determines that litigation is not in its best interests. Notwithstanding the foregoing or any other provision of this Agreement, nothing in this Section 5.3(b) shall limit the right of a Party to terminate this Agreement pursuant to Section 7.1 (Termination), so long as such Party has until that time complied in all material respects with its obligations under this Section 5.3. Each of Parent and GFI shall use its reasonable best efforts to take such action as may be required to cause the expiration of the notice periods or to obtain the necessary approvals under the HSR Act, the Foreign Competition Laws or any other Antitrust Laws with respect to the Transactions as promptly as possible after the execution of this Agreement.
(c) Notwithstanding anything to the contrary in this Agreement, nothing in this Agreement shall be deemed to require Parent or any Parent Subsidiary to agree to or take any action that would result in any Burdensome Condition. None of GFI or any GFI Subsidiary shall agree to or take any action that would result in any Burdensome Condition without the prior written consent of Parent. For purposes of this Agreement, a “Burdensome Condition” shall mean making proposals, executing or carrying out agreements (including consent decrees) or submitting to Laws (i) providing for promptly prepare and file all necessary documentation, (ii) effect all necessary applications, notices, petitions and filings and execute all agreements and documents, (iii) use all reasonable efforts to obtain all necessary permits, consents, approvals and authorizations of all governmental bodies and (iv) use all commercially reasonable efforts to obtain all necessary permits, consents, approvals and authorizations of all other parties, in the transfercase of each of the foregoing clauses (i), (ii), (iii) and (iv), necessary to consummate the transactions contemplated by this Agreement or required by the terms of any note, bond, mortgage, indenture, deed of trust, license, sale franchise, permit, concession, contract, lease or other disposition instrument to which Buyer, the Company or holding separate (through the establishment of a trust or otherwise) of any assets or categories of assets of Parent, GFI Seller or any of their respective Subsidiaries is a party or the holding separate (through the establishment of a trust or otherwise) of the Securities of any Parent Subsidiary or GFI Subsidiary or (ii) imposing or seeking to impose any limitation on the ability of Parent, GFI or by which any of their respective Subsidiaries them is bound; provided, however, that no note, bond, mortgage, indenture, deed of trust, license, franchise, permit, concession, contract, lease or other instrument shall be amended or modified to conduct their respective businesses (including with respect to market practices and structure) or own such assets or to acquire, hold or exercise full rights of ownership of the business of GFI, the GFI Subsidiaries, Parent or the Parent Subsidiaries, in each case other than (x) with respect to Antitrust Laws, any such proposals, executing or carrying out agreements (including consent decrees) or submitting to Laws that would not impair increase in any material respect the expected benefits of Parent amount payable thereunder or to be otherwise more burdensome, or less favorable, in each case in any material respect, to the Company and the Parent Company Subsidiaries from considered as one enterprise in order to obtain any permit, consent, approval or authorization without first obtaining the written consent of Buyer, which consent shall not be unreasonably withheld or delayed; provided, further, that the Seller shall have no obligation to make any expenditure or payment to any third party in order to obtain any such permit, consent, approval or authorization. The Seller shall have the right to review and approve in advance all characterizations of the information relating to the TransactionsSeller and the Company; Buyer shall have the right to review and approve in advance all characterizations of the information relating to Buyer or any Buyer Subsidiary; and each of the Seller and Buyer shall have the right to review and approve in advance all characterizations of the information relating to the transactions contemplated by this Agreement, or (y) in each case which appear in any material filing made in connection with the transactions contemplated hereby. Buyer and the Seller agree that they will consult with each other with respect to Regulatory Approvalsthe obtaining of all such necessary permits, any immaterial administrative or ministerial obligations consents, approvals and authorizations of Parent or any Parent Subsidiaryall third parties and governmental bodies.
Appears in 2 contracts
Samples: Equity Purchase Agreement, Equity Purchase Agreement (Sandridge Energy Inc)
Consents and Approvals. (a) Subject From the date of this Agreement until the Final Closing Date, each Seller shall, and, subject to applicable Law and the Minority Equity Holder Rights, shall cause each Acquired Company until, (i) with respect to any Initial Acquired Company or any Subsequent Acquired Company, the applicable Closing Date, (ii) with respect to any Retained Company, the applicable Retained Company Determination Date, (iii) with respect to any Section 6.29 Retained Company, the applicable Section 6.29 Retained Company Determination Date and (iv) with respect to any ROFR Company, the applicable ROFR Determination Date, to use its best efforts to obtain all consents, approvals, certificates and other documents required in connection with the performance by it of this Agreement and its Related Agreements and the consummation by it of the transactions contemplated hereby and thereby. From the date of this Agreement until the Final Closing Date, Purchaser shall and shall cause its Subsidiaries to, use best efforts to obtain all consents, approvals, certificates and other documents required in connection with the performance by it of this Agreement and its Related Agreements and the consummation by it of the transactions contemplated hereby and thereby. Each Seller shall and, subject to applicable Law and the Minority Equity Holder Rights, shall cause each Acquired Company to, promptly make all filings, applications, statements and reports to all Governmental Authorities and other Persons that are required to be made prior to the terms applicable Closing Date with respect to such Acquired Company by or on behalf of Sellers or the Acquired Companies pursuant to any applicable Law (including Required Regulatory Approvals) or Contract in connection with this Agreement, its Related Agreements and conditions the transactions contemplated hereby and thereby. Purchaser (A) shall promptly (and in any event, within ten (10) Business Days following the date of this Agreement) notify Seller of all filings, each applications, statements and reports to all Governmental Authorities and other Persons that are required to be made prior to the Initial Closing Date or any Subsequent Closing Date by or on behalf of Parent Purchaser or any of its Affiliates pursuant to any applicable Law (including Required Regulatory Approvals) or Contract in connection with this Agreement, its Related Agreements and GFI will the transactions contemplated hereby and thereby, and (B) shall promptly make, or cause its Subsidiaries to make, all such filings, applications, statements and reports.
(b) In addition to Purchaser’s obligations pursuant to Section 6.5(a), Purchaser shall, and shall cause its Subsidiaries to, 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 Law to consummate the Transactions, including, preparing and filing obtain as promptly soon as practicable all documentation to effect all necessary filings, notices, petitions, statements, registrations, submissions of information, applications and other documents necessary and appropriate to consummate the TransactionsRequired Regulatory Approvals. In furtherance and not in limitation Without limiting the generality of the foregoing, each of Parent and GFI the parties to this Agreement shall cooperate with one another: (i) make or cause to be made in the filings required of such party under the Foreign Competition Laws prompt preparation and filing (including those set forth in Section 3.4(b)(i) of the Parent Disclosure Letter) with respect to the Transactions as promptly soon as practicable and in any event no later than thirty (30) days after the date of this Agreement) of any and all instruments, agreements or other documents required to be filed in connection with any Required Regulatory Approvals; (ii) take all actions in determining whether action by or in respect of, or filing with, any Governmental Authority is required, proper or advisable or any actions, consents, waivers or approvals are required to obtain and make be obtained from parties to any Contracts in connection with the Regulatory Approvals set forth in Section 3.4(b)(ii) of the Parent Disclosure Letter as promptly as practicable after the date of transactions contemplated by this Agreement; (iii) comply at in keeping the earliest practicable date other party apprised of communications to or from Governmental Authorities; with respect to the submission, prosecution or obtaining of the Required Regulatory Approvals; (iv) in the prompt notification and meeting with any request under any appropriate Governmental Entity (including under any Foreign Competition Laws) in respect of such filings or such TransactionAuthority; and (v) in seeking timely to obtain any such actions, consents or waivers or to make any such filings subject with respect to each of clause (i), (ii), (iii) and (iv), in the case of Sellers, to the Minority Equity Holder Rights. No party hereto shall (and Purchaser shall not permit any of its Subsidiaries to) act consummate another transaction or enter into an agreement with respect to another transaction or take any other action if the intent or reasonably anticipated consequence of such transaction or action is, or would be, to cause any Governmental Authority not to grant approval of any Required Regulatory Approval or materially delay either such approval or the consummation of the assignment or transfer of control of the Communications Licenses. In addition, if required by a Governmental Authority of competent jurisdiction, Purchaser shall and, if applicable, shall cause its Subsidiaries to, take or accept one or more Actions of Divestiture in order to resolve with the minimum practicable delay any objections such authority may have to the transactions contemplated by this Agreement under applicable Laws; provided, however, that Purchaser shall not be required to take or accept (or cause any of its Subsidiaries to take or accept) any such Actions of Divestiture with regard to the Argentinian Acquired Company or the Chilean Acquired Company if the Action of Divestiture Fair Value of all of the Actions of Divestiture required by any final and nonappealable Governmental Order in connection with the Argentinian Acquired Company and the Chilean Acquired Company exceeds, in the aggregate, the threshold set forth in Schedule 6.5(b) (the “Action of Divestiture Threshold”); provided, however, that, in each case, any adverse economic consequences with respect to any synergies, cost reductions or benefits from (or any synergies, cost reductions or benefits expected or anticipated to result from) from the combination or consolidation of Purchaser and its Affiliates with one or more Acquired Companies and its businesses and operations shall be disregarded in connection with such determination. For the avoidance of doubt, in addition to Purchaser’s obligations set forth in the preceding sentence, with respect to the Argentinian Acquired Company and the Chilean Acquired Company, Purchaser shall, and shall cause its Subsidiaries to, take all steps necessary to obtain as soon as practicable the Required Regulatory Approvals and to consummate the transactions contemplated by this Agreement (including the purchase of the Sellers Equity Interests in the Argentinian Acquired Company and the Chilean Acquired Company), which steps shall include taking or accepting any and all Actions of Divestiture requested by any Governmental Authority with respect to the Argentinian Acquired Company and the Chilean Acquired Company to the extent that the Action of Divestiture Fair Value of such Actions of Divestiture does not exceed, in the aggregate, the Action of Divestiture Threshold; provided, however, that in the event the Action of Divestiture Fair Value of such Actions of Divestiture required by final and nonappealable Governmental Orders would exceed, in the aggregate, the Action of Divestiture Threshold, subject to Purchaser’s obligations set forth in the next sentence, Purchaser shall have no obligation to take or accept Actions of Divestiture with respect to either the Argentinian Acquired Company or the Chilean Acquired Company and shall have no obligation to purchase the Sellers Equity Interests in either the Argentinian Acquired Company or the Chilean Acquired Company, provided that, in such event, Purchaser may, at its option, elect to take or accept the required Actions of Divestiture in connection with, and purchase the Sellers Equity Interests of, either or both of the Argentinian Acquired Company or the Chilean Acquired Company. Notwithstanding anything to the contrary set forth in this Agreement, in the event that the Action of Divestiture Fair Value of the Actions of Divestiture required by any Governmental Order with respect to the Argentinian Acquired Company and the Chilean Acquired Company in connection with the transactions contemplated by this Agreement exceeds, in the aggregate, the Action of Divestiture Threshold, Purchaser and Sellers agree that they shall nonetheless use best efforts to appeal such requests and/or Governmental Orders (including taking any and all actions contemplated by Section 6.29(a)) in order to eliminate the Actions of Divestiture and/or reduce the Action of Divestiture Fair Value with respect to such Actions of Divestiture below the Action of Divestiture Threshold.
(c) As soon as practicable but in no event later than ten (10) Business Days following the date upon which the parties reasonably determine in good faith that the Governmental Authorities in Argentina and reasonably cooperate with the other Party Chile have issued final and nonappealable Governmental Orders determining all Actions of Divestiture, if any, required to be taken or accepted in connection with any the Argentinian Acquired Company and the Chilean Acquired Company, in the event that Purchaser claims or asserts that such filings Actions of Divestiture have an Action of Divestiture Fair Value that would exceed, in the aggregate, the Action of Divestiture Threshold, the parties shall retain the Valuation Firm and instruct the Valuation Firm to determine the Action of Divestiture Fair Value of all such required Actions of Divestiture no later than the date which is thirty (30) days after the date of such Valuation Firm’s retention. The Valuation Firm’s final determination of the Action of Divestiture Fair Value shall be set forth in a detailed written report that describes the methodology, procedures and assumptions used in making such determination (which methodology, procedures and assumptions shall be consistent with the applicable terms of this Agreement), and such determination shall be conclusive and binding upon all parties. The parties agree to promptly provide to the Valuation Firm all information reasonably requested by the Valuation Firm to assist it in making such determination. The fees and expenses of the Valuation Firm shall be shared equally between Sellers and Purchaser.
(d) In the event that, solely with respect to the Argentinian Acquired Company and the Chilean Acquired Company, an Action of Divestiture is not required to be taken or accepted pursuant to Section 6.5(b), because the Action of Divestiture Fair Value of the required Actions of Divestiture exceeds, in the aggregate, the Action of Divestiture Threshold, then each of the Argentinian Acquired Company and the Chilean Acquired Company shall be deemed to be a “Retained Company” (unless and to the extent Purchaser elects to take or accept all required Actions of Divestiture in connection with resolving any investigation either or other inquiry of any such agency or other Governmental Entity under any both of the HSR ActArgentinian Acquired Company or the Chilean Acquired Company notwithstanding the fact that the Action of Divestiture Threshold has been exceeded and, following the Foreign Competition Lawsapplicable Retained Company Determination Date, (i) the Xxxxxxx Act, parties shall nevertheless be obligated to consummate the Xxxxxxx Act Initial Closing and any Subsequent Closing and the other Laws or Orders that are designed transactions contemplated pursuant to prohibit, restrict or regulate actions having the purpose or effect of monopolization or restraint of trade (collectively, the “Antitrust Laws”) this Agreement except with respect to any such filing Retained Company (or any such Transaction. To Section 6.29 Retained Company or ROFR Company), (ii) the extent not prohibited by applicable Law, the Parties shall use reasonable best efforts Seller will retain and continue to furnish to each other all information required for any application hold and own its Seller Equity Interests or other filing to be made pursuant to any applicable Law in connection with the Transactions. Each Party shall give each other reasonable prior notice of any substantive communication withHolding Company Equity Interests relating to, and any proposed understanding, undertaking or agreement withSellers Stockholder Debt with regard to, any Governmental Entity regarding any such filings or any such Transaction. No Party shall independently participate in any meetingRetained Company, or engage in any substantive conversation, with any Governmental Entity in respect (iii) the Sellers Equity Interests of any such filings, investigation or other inquiry without giving the other Parties prior notice of the meeting or conversation and, unless prohibited by such any Governmental Entity, the opportunity to attend or participate. The Parties contemplate that as a general matter both Parent and GFI shall be represented at in-person meetings with any Governmental Entity. The Parties will consult and cooperate with one another in connection with any analyses, appearances, presentations, memoranda, briefs, arguments, opinions and proposals made or submitted by or on behalf of any Party in connection with proceedings under or relating to the HSR Act, the Foreign Competition Laws or other Antitrust Laws.
(b) Without limiting the general obligations of Parent and GFI under Section 5.3(a) (Consents and Approvals), each of Parent and GFI shall use its reasonable best efforts to resolve such objections, if any, as may be asserted by any Governmental Entity with respect to the Transactions under the Antitrust Laws. In connection therewith and subject to Section 5.3(a) (Consents and Approvals), if any Proceeding is instituted (or threatened to be instituted) challenging any of the Transactions as inconsistent with or violative of any Antitrust Law, each of Parent and GFI shall cooperate and use its reasonable best efforts vigorously to contest and resist (by negotiation, litigation or otherwise) any such Proceeding and to have vacated, lifted, reversed or overturned any Order whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents, delays or restricts consummation of the Transactions, unless Parent reasonably and in good faith determines that litigation is not in its best interests. Notwithstanding the foregoing or any other provision of this Agreement, nothing in this Section 5.3(b) shall limit the right of a Party to terminate this Agreement pursuant to Section 7.1 (Termination), so long as such Party has until that time complied in all material respects with its obligations under this Section 5.3. Each of Parent and GFI shall use its reasonable best efforts to take such action as may be required to cause the expiration of the notice periods or to obtain the necessary approvals under the HSR Act, the Foreign Competition Laws or any other Antitrust Laws with respect to the Transactions as promptly as possible after the execution of this Agreement.
(c) Notwithstanding anything to the contrary in this Agreement, nothing in this Agreement Retained Company shall be deemed to require Parent or any Parent Subsidiary to agree to or take any action that would result in any Burdensome Condition. None be excluded from the definition of GFI or any GFI Subsidiary shall agree to or take any action that would result in any Burdensome Condition without the prior written consent of Parent. For “Sellers Equity Interests” and “Holding Company Equity Interests” for all purposes of this Agreement, a “Burdensome Condition” Agreement and (iv) no representations or warranties shall mean making proposals, executing or carrying out agreements (including consent decrees) or submitting be deemed to Laws (i) providing for the transfer, license, sale or other disposition or holding separate (through the establishment of a trust or otherwise) of any assets or categories of assets of Parent, GFI or any of their respective Subsidiaries or the holding separate (through the establishment of a trust or otherwise) of the Securities of any Parent Subsidiary or GFI Subsidiary or (ii) imposing or seeking to impose any limitation on the ability of Parent, GFI or any of their respective Subsidiaries to conduct their respective businesses (including have been made by Sellers with respect to market practices any such Retained Company. For the avoidance of doubt, from and structure) or own such assets or to acquire, hold or exercise full rights of ownership of after the business of GFI, the GFI Subsidiaries, Parent or the Parent Subsidiaries, in each case other than (x) Retained Company Determination Date with respect to Antitrust Lawsany Retained Company, Sections 6.5 and 6.6 and Article III, as well as any such proposals, executing or carrying out agreements (including consent decrees) or submitting to Laws other provisions that would not impair in any material respect the expected benefits of Parent and the Parent Subsidiaries from otherwise reasonably be interpreted to treat such Retained Company as an Acquired Company whose Sellers Equity Interests are being transferred directly or relating indirectly pursuant to the Transactionstransactions contemplated by this Agreement, or (y) with respect will no longer be applicable to Regulatory Approvalssuch Retained Company; provided, any immaterial administrative or ministerial obligations of Parent or any Parent Subsidiarythat Sections 6.8 and 6.28, as well as the Confidentiality Agreement, will continue to be applicable to all Retained Companies.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Telefonica S A), Stock Purchase Agreement (Telefonica Mobile Inc)
Consents and Approvals. (a) Subject to Upon the terms and subject to the conditions of set forth in this Agreement, each of Company and Parent shall and GFI will shall cause their respective Subsidiaries, to use its reasonable best efforts to take, or cause to be taken, all actions actions, and to do, or cause to be done, and to assist and cooperate with the other Party in doing, all things necessary, proper or and advisable under applicable Law or pursuant to any Contract to consummate and make effective, as promptly as practicable, the Merger and the other Transactions, includingincluding (i) the taking of all actions necessary to cause the conditions to Closing set forth in Article VIII to be satisfied, (ii) the preparing and filing as promptly as practicable of all documentation to effect all necessary required filings, notices, petitions, statements, registrations, submissions of information, and applications and the obtaining of all necessary actions or nonactions, waivers, consents, authorizations and approvals from Governmental Entities or other documents Persons necessary and appropriate to consummate in connection with the Transactions. In furtherance and not in limitation consummation of the foregoing, each Merger and the other Transactions and the making of Parent all necessary registrations and GFI shall (i) make or cause to be made the filings required of such party under the Foreign Competition Laws (including those set forth filings with Governmental Entities, if any) and the taking of all reasonable steps as may be necessary to obtain an approval or waiver from, or to avoid Legal Proceeding by, any Governmental Entity or other Persons necessary in Section 3.4(b)(i) connection with the consummation of the Parent Disclosure Letter) with respect to Merger and the Transactions as promptly as practicable after the date of this Agreement; (ii) take all actions to obtain and make the Regulatory Approvals set forth in Section 3.4(b)(ii) of the Parent Disclosure Letter as promptly as practicable after the date of this Agreement; other Transactions, (iii) comply at the earliest practicable date with defending of any request under any Governmental Entity (including under any Foreign Competition Laws) in respect Legal Proceedings, whether judicial or administrative, challenging this Agreement or the consummation of such filings the Merger, or such Transaction; and (iv) act in good faith and reasonably cooperate with the other Party in connection with Transactions, including seeking to have any such filings and in connection with resolving stay or temporary restraining Order entered by any investigation or other inquiry of any such agency court or other Governmental Entity vacated or reversed, the avoidance of each and every impediment under any of the HSR Actantitrust, the Foreign Competition Lawsmerger control, the Xxxxxxx Act, the Xxxxxxx Act and any other Laws competition or Orders trade regulation Law that are designed to prohibit, restrict or regulate actions having the purpose or effect of monopolization or restraint of trade (collectively, the “Antitrust Laws”) with respect to any such filing or any such Transaction. To the extent not prohibited by applicable Law, the Parties shall use reasonable best efforts to furnish to each other all information required for any application or other filing to be made pursuant to any applicable Law in connection with the Transactions. Each Party shall give each other reasonable prior notice of any substantive communication with, and any proposed understanding, undertaking or agreement with, any Governmental Entity regarding any such filings or any such Transaction. No Party shall independently participate in any meeting, or engage in any substantive conversation, with any Governmental Entity in respect of any such filings, investigation or other inquiry without giving the other Parties prior notice of the meeting or conversation and, unless prohibited by such any Governmental Entity, the opportunity to attend or participate. The Parties contemplate that as a general matter both Parent and GFI shall be represented at in-person meetings with any Governmental Entity. The Parties will consult and cooperate with one another in connection with any analyses, appearances, presentations, memoranda, briefs, arguments, opinions and proposals made or submitted by or on behalf of any Party in connection with proceedings under or relating to the HSR Act, the Foreign Competition Laws or other Antitrust Laws.
(b) Without limiting the general obligations of Parent and GFI under Section 5.3(a) (Consents and Approvals), each of Parent and GFI shall use its reasonable best efforts to resolve such objections, if any, as may be asserted by any Governmental Entity with respect to the Merger and the other Transactions under so as to enable the Antitrust Laws. Closing to occur as soon as reasonably possible, and (iv) the execution and delivery of any additional instruments necessary to consummate the Merger and the other Transactions and to fully carry out the purposes of this Agreement.
(b) In connection therewith with and subject to Section 5.3(a) (Consents and Approvals), if any Proceeding is instituted (or threatened to be instituted) challenging any of without limiting the Transactions as inconsistent with or violative of any Antitrust Lawforegoing, each of Parent and GFI Company shall cooperate and use its reasonable best efforts vigorously give (or shall cause to contest and resist (by negotiation, litigation or otherwisebe given) any such Proceeding notices to any Person, and to have vacated, lifted, reversed or overturned any Order whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents, delays or restricts consummation of the Transactions, unless Parent reasonably and in good faith determines that litigation is not in its best interests. Notwithstanding the foregoing or any other provision of this Agreement, nothing in this Section 5.3(b) shall limit the right of a Party to terminate this Agreement pursuant to Section 7.1 (Termination), so long as such Party has until that time complied in all material respects with its obligations under this Section 5.3. Each each of Parent and GFI Company shall use use, and cause each of their respective affiliates to use, its reasonable best efforts to take such action as may be required obtain any consents from any Person not covered by Section 7.2(a) that are necessary, proper and advisable to cause consummate the expiration Merger and the other Transactions. Each of the notice periods Parties will furnish to the other such necessary information and reasonable assistance as the other may request in connection with the preparation of any required governmental filings or submissions and will cooperate in responding to obtain any inquiry from a Governmental Entity, including promptly informing the necessary approvals under the HSR Actother Party of such inquiry, the Foreign Competition Laws consulting in advance before making any presentations or submissions to a Governmental Entity, and supplying each other with copies of all material correspondence, filings or communications between either Party and any other Antitrust Laws Governmental Entity with respect to the Transactions as promptly as possible after the execution of this Agreement. To the extent reasonably practicable, the Parties or their Representatives shall have the right to review in advance and each of the Parties will consult the others on, all the information relating to the other and each of their affiliates that appears in any filing made with, or written materials submitted to, any Governmental Entity in connection with the Merger and the other Transactions, except that confidential competitively sensitive business information may be redacted from such exchanges. To the extent reasonably practicable, neither Company nor Parent shall, nor shall they permit their respective Representatives to, participate independently in any meeting or engage in any substantive conversation with any Governmental Entity in respect of any filing, investigation or other inquiry without giving the other Party prior notice of such meeting or conversation and, to the extent permitted by applicable Law, without giving the other Party the opportunity to attend or participate (whether by telephone or in person) in any such meeting with such Governmental Entity. Notwithstanding the foregoing, obtaining any approval or consent from any Person pursuant to this Section 7.2(b) shall not be a condition to the obligations of the Parties to consummate the Merger.
(c) Notwithstanding anything to the contrary in this Agreement, nothing in this Agreement shall be deemed connection with obtaining any approval or consent from any Person (other than any Governmental Entity) with respect to require the Merger and the other Transactions, none of Company or any Company Subsidiaries, Parent or any Parent Subsidiary to agree to or take any action that would result in any Burdensome Condition. None of GFI or any GFI Subsidiary shall agree to or take any action that would result in any Burdensome Condition without the prior written consent of Parent. For purposes of this Agreement, a “Burdensome Condition” shall mean making proposals, executing or carrying out agreements (including consent decrees) or submitting to Laws (i) providing for the transfer, license, sale or other disposition or holding separate (through the establishment of a trust or otherwise) of any assets or categories of assets of Parent, GFI Subsidiaries or any of their respective Subsidiaries Representatives, shall be obligated to pay or the holding separate (through the establishment of a trust commit to pay to such Person whose approval or otherwise) of the Securities of consent is being solicited any Parent Subsidiary cash or GFI Subsidiary other consideration, make any accommodation or (ii) imposing commitment or seeking incur any liability or other obligation to impose any limitation on the ability of Parent, GFI or any of their respective Subsidiaries to conduct their respective businesses (including with respect to market practices and structure) or own such assets or to acquire, hold or exercise full rights of ownership of the business of GFI, the GFI Subsidiaries, Parent or the Parent SubsidiariesPerson, in each case other than (x) that is not conditioned upon the occurrence of the Closing. Subject to the immediately foregoing sentence, the Parties shall cooperate with respect to Antitrust Laws, reasonable accommodations that may be requested or appropriate to obtain such consents. The Parties acknowledge and agree that no approval or consent of any such proposals, executing or carrying out agreements (including consent decrees) or submitting to Laws that would not impair in any material respect the expected benefits of Parent and the Parent Subsidiaries from or relating Person is a condition to the Transactions, or (y) with respect to Regulatory Approvals, any immaterial administrative or ministerial obligations of Parent or any Parent SubsidiaryParty to effect the Merger.
Appears in 2 contracts
Samples: Merger Agreement (Starwood Waypoint Residential Trust), Merger Agreement (Colony Capital, Inc.)
Consents and Approvals. Without limiting the generality of Section 6.3(a):
(a) Subject to As promptly as practicable, but in no event later than forty-five (45) days after the terms and conditions date of this Agreement, Seller and Buyer shall each file or cause to be filed with the Federal Trade Commission and the U.S. Department of Parent Justice all notifications required to be filed under the HSR Act and GFI will the rules and regulations promulgated thereunder, as amended, with respect to the transactions contemplated hereby and by the Additional Agreements. The Parties shall use their respective Commercially Reasonable Efforts to respond promptly to any requests for additional information made by such agencies, and to cause the applicable waiting period under the HSR Act to terminate or expire at the earliest possible date after the date of filing. Buyer shall pay all filing fees payable under the HSR Act but each Party shall bear its reasonable best efforts to own costs and expenses of the preparation of any such filing and any such response.
(b) As promptly as practicable, but in no event later than forty-five (45) days after the date of this Agreement, Seller and Buyer shall take, or cause to be taken, all actions actions, and to do, or cause to be done, all things necessary, proper or advisable under applicable Law Laws to consummate obtain all required consents and approvals of all other Governmental Authorities, including the TransactionsNJBPU and the PaPUC, including, preparing and filing as promptly as practicable make all documentation to effect other filings and give all necessary filings, notices, petitions, statements, registrations, submissions of information, applications and other documents necessary and appropriate to consummate the Transactions. In furtherance and not in limitation of the foregoing, each of Parent and GFI shall (i) make or cause notices required to be made prior to the filings required of such party under the Foreign Competition Laws (including those set forth in Section 3.4(b)(i) of the Parent Disclosure Letter) Closing with respect to the Transactions transactions contemplated hereby and by the Additional Agreements, including with respect to the Seller's Required Regulatory Approvals and Buyer's Required Regulatory Approvals. The Parties shall respond promptly to any requests for additional information made by such Persons, and use their respective Commercially Reasonable Efforts to cause all such consents and approvals, without conditions, to be obtained or waived at the earliest possible date after the date of filing. Each Party shall bear its own costs and expenses of the preparation of any such filing or notice.
(c) Without limiting the generality of Section 6.4(b), as promptly as practicable practicable, but in no event later than forty-five (45) days after the date of this Agreement; (ii) take , each Party shall make all actions filings required by such Party under the Federal Power Act. Prior to obtain and make the Regulatory Approvals set forth in Section 3.4(b)(ii) of the Parent Disclosure Letter as promptly as practicable after the date of this Agreement; (iii) comply at the earliest practicable date with filing any request under any Governmental Entity (including under any Foreign Competition Laws) in respect of such filings or such Transaction; and (iv) act in good faith and reasonably cooperate application with the FERC, both Parties shall prepare such application and shall incorporate into such application all revisions reasonably requested by the other Party. Each Party in connection shall be solely responsible for its own cost of preparing and filing such application, as well as all petitions for rehearing and all reapplications, provided, however, that Buyer shall bear all costs and expenses associated with any such filings experts and in connection with resolving any investigation or other inquiry consultants reasonably necessary for the preparation of any such agency required market power study or other Governmental Entity under report. If any of filing is rejected by the HSR Act, the Foreign Competition Laws, the Xxxxxxx Act, the Xxxxxxx Act and any other Laws or Orders that are designed to prohibit, restrict or regulate actions having the purpose or effect of monopolization or restraint of trade (collectively, the “Antitrust Laws”) with respect to any such filing or any such Transaction. To the extent not prohibited by applicable LawFERC, the Parties shall use reasonable best efforts petition the FERC for rehearing or permission to furnish to each other all information required for any re-submit an application or other filing to be made pursuant to any applicable Law in connection with the Transactions. Each Party shall give each other reasonable prior notice of any substantive communication with, and any proposed understanding, undertaking or agreement with, any Governmental Entity regarding any such filings or any such Transaction. No Party shall independently participate in any meeting, or engage in any substantive conversation, with any Governmental Entity in respect of any such filings, investigation or other inquiry without giving the other Parties prior notice of the meeting or conversation and, unless prohibited by such any Governmental Entity, the opportunity to attend or participate. The Parties contemplate that as a general matter both Parent and GFI shall be represented at in-person meetings with any Governmental Entity. The Parties will consult and cooperate with one another in connection with any analyses, appearances, presentations, memoranda, briefs, arguments, opinions and proposals made or submitted by or on behalf of any Party in connection with proceedings under or relating to the HSR Act, the Foreign Competition Laws or other Antitrust LawsFERC.
(b) Without limiting the general obligations of Parent and GFI under Section 5.3(a) (Consents and Approvals), each of Parent and GFI shall use its reasonable best efforts to resolve such objections, if any, as may be asserted by any Governmental Entity with respect to the Transactions under the Antitrust Laws. In connection therewith and subject to Section 5.3(a) (Consents and Approvals), if any Proceeding is instituted (or threatened to be instituted) challenging any of the Transactions as inconsistent with or violative of any Antitrust Law, each of Parent and GFI shall cooperate and use its reasonable best efforts vigorously to contest and resist (by negotiation, litigation or otherwise) any such Proceeding and to have vacated, lifted, reversed or overturned any Order whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents, delays or restricts consummation of the Transactions, unless Parent reasonably and in good faith determines that litigation is not in its best interests. Notwithstanding the foregoing or any other provision of this Agreement, nothing in this Section 5.3(b) shall limit the right of a Party to terminate this Agreement pursuant to Section 7.1 (Termination), so long as such Party has until that time complied in all material respects with its obligations under this Section 5.3. Each of Parent and GFI shall use its reasonable best efforts to take such action as may be required to cause the expiration of the notice periods or to obtain the necessary approvals under the HSR Act, the Foreign Competition Laws or any other Antitrust Laws with respect to the Transactions as promptly as possible after the execution of this Agreement.
(c) Notwithstanding anything to the contrary in this Agreement, nothing in this Agreement shall be deemed to require Parent or any Parent Subsidiary to agree to or take any action that would result in any Burdensome Condition. None of GFI or any GFI Subsidiary shall agree to or take any action that would result in any Burdensome Condition without the prior written consent of Parent. For purposes of this Agreement, a “Burdensome Condition” shall mean making proposals, executing or carrying out agreements (including consent decrees) or submitting to Laws (i) providing for the transfer, license, sale or other disposition or holding separate (through the establishment of a trust or otherwise) of any assets or categories of assets of Parent, GFI or any of their respective Subsidiaries or the holding separate (through the establishment of a trust or otherwise) of the Securities of any Parent Subsidiary or GFI Subsidiary or (ii) imposing or seeking to impose any limitation on the ability of Parent, GFI or any of their respective Subsidiaries to conduct their respective businesses (including with respect to market practices and structure) or own such assets or to acquire, hold or exercise full rights of ownership of the business of GFI, the GFI Subsidiaries, Parent or the Parent Subsidiaries, in each case other than (x) with respect to Antitrust Laws, any such proposals, executing or carrying out agreements (including consent decrees) or submitting to Laws that would not impair in any material respect the expected benefits of Parent and the Parent Subsidiaries from or relating to the Transactions, or (y) with respect to Regulatory Approvals, any immaterial administrative or ministerial obligations of Parent or any Parent Subsidiary.
Appears in 2 contracts
Samples: Purchase and Sale Agreement, Purchase and Sale Agreement (Pepco Holdings Inc)
Consents and Approvals. (a) Subject Each of Parent, the Purchaser and the Company shall take all reasonable actions necessary to the terms and conditions of this Agreement, each of Parent and GFI will use its reasonable best efforts to take, or cause to comply promptly with all legal requirements which may be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under applicable Law to consummate the Transactions, including, preparing and filing as promptly as practicable all documentation to effect all necessary filings, notices, petitions, statements, registrations, submissions of information, applications and other documents necessary and appropriate to consummate the Transactions. In furtherance and not in limitation of the foregoing, each of Parent and GFI shall (i) make or cause to be made the filings required of such party under the Foreign Competition Laws (including those set forth in Section 3.4(b)(i) of the Parent Disclosure Letter) imposed on it with respect to this Agreement and the Transactions as promptly as practicable after (which actions shall include, without limitation, furnishing all information required under the date HSR Act, under the ECMR and in connection with approvals of this Agreement; (ii) take all actions to obtain and make the Regulatory Approvals set forth in Section 3.4(b)(ii) of the Parent Disclosure Letter as promptly as practicable after the date of this Agreement; (iii) comply at the earliest practicable date or filings with any request under any other Governmental Entity (including under any Foreign Competition LawsEntity) in respect of such filings or such Transaction; and (iv) act in good faith and reasonably shall promptly cooperate with the and, subject to such confidentiality agreements as may be reasonably necessary or requested, furnish information to each other Party or their counsel in connection with any such filings and requirements imposed upon any of them or any of their Subsidiaries in connection with resolving this Agreement and the Transactions. Each of the Company, Parent and the Purchaser shall, and shall cause respective Subsidiaries to, take all reasonable actions necessary to obtain (and shall cooperate with each other in obtaining) any investigation consent, authorization, order or approval of, or any exemption by, any Governmental Entity or other inquiry public or private third party required to be obtained or made by Parent, the Purchaser, the Company or any of their respective Subsidiaries in connection with the Transactions or the taking of any action contemplated thereby or by this Agreement.
(b) Each of the Company, the Purchaser and Parent shall take all reasonable actions necessary to file as soon as practicable following the date hereof notifications under the HSR Act, under the ECMR or under comparable merger notification laws under foreign jurisdictions, and to respond as promptly as practicable to any inquiries received from the Federal Trade Commission or the Antitrust Division of the Department of Justice or any authorities of such agency other foreign jurisdictions for additional information or documentation and to respond as promptly as practicable to all inquiries and requests received from any State Attorney General or other Governmental Entity in connection with antitrust or competition matters. Parent, the Purchaser and the Company agree to cooperate and to take promptly any and all commercially reasonable steps to resolve any issues arising under any of the HSR Act, the Foreign Competition Laws, the Xxxxxxx Act, the Xxxxxxx Act and ECMR or any other Laws or Orders that are designed comparable laws of foreign jurisdictions so as to prohibit, restrict or regulate actions having enable the purpose or effect of monopolization or restraint of trade (collectively, parties to expeditiously close the “Antitrust Laws”) with respect to any such filing or any such TransactionTransactions contemplated by this Agreement. To the extent not prohibited by applicable Law, the Parties shall use reasonable best efforts to furnish to each other all information required for any application or other filing to be made pursuant to any applicable Law in connection with the Transactions. Each Party shall give each other reasonable prior notice of any substantive communication with, and any proposed understanding, undertaking or agreement with, any Governmental Entity regarding any such filings or any such Transaction. No Party shall independently participate in any meeting, or engage in any substantive conversation, with any Governmental Entity in respect of any such filings, investigation or other inquiry without giving the other Parties prior notice In furtherance of the meeting or conversation and, unless prohibited by such any Governmental Entity, the opportunity to attend or participate. The Parties contemplate that as a general matter both Parent and GFI shall be represented at in-person meetings with any Governmental Entity. The Parties will consult and cooperate with one another in connection with any analyses, appearances, presentations, memoranda, briefs, arguments, opinions and proposals made or submitted by or on behalf of any Party in connection with proceedings under or relating to the HSR Act, the Foreign Competition Laws or other Antitrust Laws.
(b) Without limiting the general obligations of Parent and GFI under Section 5.3(a) (Consents and Approvals), each of Parent and GFI shall use its reasonable best efforts to resolve such objections, if any, as may be asserted by any Governmental Entity with respect to the Transactions under the Antitrust Laws. In connection therewith and subject to Section 5.3(a) (Consents and Approvals)foregoing, if any Proceeding administrative or judicial action or proceeding, including any proceeding by a private party, is instituted (or threatened to be instituted) challenging any of the Transactions as inconsistent with or violative of any Antitrust Lawsuch laws, each of Parent Parent, the Purchaser and GFI the Company shall cooperate in all respects with each other and use its respective reasonable best efforts vigorously to contest and resist (by negotiation, litigation or otherwise) any such Proceeding and action or proceeding so as to have vacated, lifted, reversed or overturned permit consummation of the Transactions contemplated by this Agreement (including defending against any Order whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents, delays or restricts litigation brought by a Governmental Entity seeking to prevent the consummation of the Transactions, unless Parent reasonably and in good faith determines that litigation is not in its best interests). Notwithstanding the foregoing foregoing, or any other provision of this Agreementcovenant herein contained (including, nothing in this Section 5.3(b) shall limit the right of a Party to terminate this Agreement pursuant to Section 7.1 (Terminationwithout limitation, Sections 6.1 and 6.9), so long as such Party has until that time complied in all material respects connection with its obligations under this Section 5.3. Each the receipt of Parent and GFI shall use its reasonable best efforts to take such action as may be required to cause the expiration of the notice periods or to obtain the any necessary approvals under the HSR Act, the Foreign Competition Laws ECMR or any other Antitrust Laws with respect to comparable laws of foreign jurisdictions, neither Parent nor the Transactions as promptly as possible after the execution of this Agreement.
(c) Notwithstanding anything to the contrary in this Agreement, nothing in this Agreement Company shall be deemed required to require Parent divest or any Parent Subsidiary hold separate or otherwise take or commit to agree to or take any action that would result in any Burdensome Condition. None limits Parent's or the Company's freedom of GFI action with respect to, or their ability to retain, the Company or any GFI Subsidiary shall agree to or take any action that would result in any Burdensome Condition without the prior written consent of Parent. For purposes of this Agreement, a “Burdensome Condition” shall mean making proposals, executing or carrying out agreements (including consent decrees) or submitting to Laws (i) providing for the transfer, license, sale or other disposition or holding separate (through the establishment of a trust or otherwise) of any assets or categories of assets of Parent, GFI material portions thereof or any of their respective Subsidiaries the businesses, product lines, material properties or the holding separate (through the establishment of a trust or otherwise) material assets of the Securities of any Parent Subsidiary Company or GFI Subsidiary or (ii) imposing or seeking to impose any limitation on the ability of Parent, GFI or any of their respective Subsidiaries to conduct their respective businesses (including with respect to market practices and structure) or own such assets or to acquire, hold or exercise full rights of ownership of the business of GFI, the GFI Subsidiaries, Parent or the Parent Subsidiaries, in each case other than (x) with respect to Antitrust Laws, any such proposals, executing or carrying out agreements (including consent decrees) or submitting to Laws that would not impair in any material respect the expected benefits of Parent and the Parent Subsidiaries from or relating to the Transactions, or (y) with respect to Regulatory Approvals, any immaterial administrative or ministerial obligations of Parent or any Parent Subsidiary.
Appears in 2 contracts
Samples: Merger Agreement (Lee Sara Corp), Merger Agreement (Lee Sara Corp)
Consents and Approvals. (a) Subject to the terms and conditions requirements of this Agreementapplicable antitrust laws, each of the Company, Parent and GFI will use its reasonable best efforts to takeMerger Sub shall each, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under applicable Law to consummate the Transactions, including, preparing and filing as promptly as practicable all documentation to effect all necessary filings, notices, petitions, statements, registrations, submissions of information, applications and other documents necessary and appropriate to consummate the Transactions. In furtherance and not in limitation of the foregoing, each of Parent and GFI shall (i) make or cause to be made the filings required of such party under the Foreign Competition Laws (including those set forth in Section 3.4(b)(i) of the Parent Disclosure Letter) with respect to the Transactions as promptly as practicable after the date of this Agreement, file or cause to be filed with (i) the Federal Trade Commission and the United States Department of Justice any notifications required to be filed under the HSR Act and any supplemental information which may be required in connection therewith; and (ii) take all actions the Competition Bureau any notifications required to obtain be filed under the Competition Act with respect to the transactions contemplated by this Agreement and make the Regulatory Approvals set forth any supplemental information which may be required in Section 3.4(b)(ii) of the Parent Disclosure Letter as promptly as practicable after the date of this Agreementconnection therewith; and (iii) comply at the earliest practicable date with any request Investment Review Division of Industry Canada an application for review required to be filed under any Governmental Entity (including under any Foreign Competition Laws) in respect of such filings or such Transaction; and (iv) act in good faith and reasonably cooperate with the other Party in connection with any such filings and in connection with resolving any investigation or other inquiry of any such agency or other Governmental Entity under any of the HSR Act, the Foreign Competition Laws, the Xxxxxxx Act, the Xxxxxxx Investment Canada Act and any other Laws or Orders that are designed to prohibit, restrict or regulate actions having the purpose or effect of monopolization or restraint of trade (collectively, the “Antitrust Laws”) with respect to any such filing or any such Transactionsupplemental information which may be required in connection therewith]. To the extent not prohibited by applicable Law, the Parties The parties shall use reasonable best efforts to furnish to each other all information required for any application or other filing to be made pursuant respond promptly to any applicable Law in connection with the Transactions. Each Party shall give each other reasonable prior notice requests for additional information made by either of any substantive communication withsuch agencies, and any proposed understanding, undertaking to cause the waiting periods under the HSR Act and the Competition Act to terminate or agreement with, any Governmental Entity regarding any such filings or any such Transactionexpire at the earliest possible date after the date of filing. No Party party shall independently agree to participate in any meeting, or engage in any substantive conversation, meeting with any Governmental Entity Authority in respect of any such filings, investigation or other inquiry without giving inquiries unless it consults with the other Parties prior notice of party in advance, and to the meeting or conversation and, unless prohibited extent permitted by such any Governmental EntityAuthority, gives the other party the opportunity to attend or participate. The Parties contemplate that as a general matter both Parent and GFI shall be represented at in-person meetings with any Governmental Entity. The Parties will consult and cooperate with one another in connection with any analyses, appearances, presentations, memoranda, briefs, arguments, opinions and proposals made or submitted by or on behalf of any Party in connection with proceedings under or relating to the HSR Act, the Foreign Competition Laws or other Antitrust Lawsparticipate thereat.
(b) Without limiting Subject to the general obligations requirements of Parent and GFI under Section 5.3(a) (Consents and Approvals)applicable antitrust laws, each of Parent and GFI shall use its reasonable best efforts to resolve such objections, if any, as may be asserted by any Governmental Entity except with respect to the Transactions under actions and filings described in clause (a) above, the Antitrust Laws. In connection therewith and subject to Section 5.3(a) (Consents and Approvals)Company, if any Proceeding is instituted (or threatened to be instituted) challenging any of the Transactions as inconsistent with or violative of any Antitrust Law, each of Parent and GFI Merger Sub shall cooperate and use its reasonable best efforts vigorously with each other to contest and resist (by negotiation, litigation or otherwise) any such Proceeding and to have vacated, lifted, reversed or overturned any Order whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents, delays or restricts consummation of the Transactions, unless Parent reasonably and in good faith determines that litigation is not in its best interests. Notwithstanding the foregoing or any other provision of this Agreement, nothing in this Section 5.3(b) shall limit the right of a Party to terminate this Agreement pursuant to Section 7.1 (Termination), so long as such Party has until that time complied in all material respects with its obligations under this Section 5.3. Each of Parent and GFI shall use its reasonable best efforts to take such action as may be required to cause the expiration of the notice periods or to obtain the necessary approvals under the HSR Act, the Foreign Competition Laws or any other Antitrust Laws with respect to the Transactions as promptly as possible after the execution of this Agreement.
(c) Notwithstanding anything to the contrary in this Agreement, nothing in this Agreement shall be deemed to require Parent or any Parent Subsidiary to agree to or take any action that would result in any Burdensome Condition. None of GFI or any GFI Subsidiary shall agree to or take any action that would result in any Burdensome Condition without the prior written consent of Parent. For purposes of this Agreement, a “Burdensome Condition” shall mean making proposals, executing or carrying out agreements (including consent decrees) or submitting to Laws (i) providing for promptly prepare and file all necessary documentation, (ii) effect all necessary applications, notices, petitions and filings, (iii) use all their reasonable best efforts, in each case, to obtain all permits, consents, approvals and authorizations of all Governmental Authorities necessary to consummate the transfertransactions contemplated by this Agreement. Subject to the requirements of applicable antitrust laws, the Company, Parent and Merger Sub shall use their respective commercially reasonable efforts to obtain all necessary consents, approvals and authorizations of all other parties necessary to consummate the transactions contemplated by this Agreement or required by the terms of any note, bond, mortgage, indenture, deed of trust, license, sale franchise, permit, concession, contract, lease or other disposition or holding separate (through instrument to which the establishment of a trust or otherwise) of any assets or categories of assets of ParentCompany, GFI Merger Sub, Parent or any of their respective Subsidiaries is a party or the holding separate (through the establishment of a trust or otherwise) of the Securities of any Parent Subsidiary or GFI Subsidiary or (ii) imposing or seeking to impose any limitation on the ability of Parent, GFI or by which any of their respective Subsidiaries them is bound; provided, however, that no note, bond, mortgage, indenture, deed of trust, license, franchise, permit, concession, contract, lease or other instrument shall be amended or modified to conduct their respective businesses (including with respect to market practices and structure) or own such assets or to acquire, hold or exercise full rights of ownership of the business of GFI, the GFI Subsidiaries, Parent or the Parent Subsidiaries, in each case other than (x) with respect to Antitrust Laws, any such proposals, executing or carrying out agreements (including consent decrees) or submitting to Laws that would not impair increase in any material respect the expected benefits of Parent amount payable thereunder or to be otherwise more burdensome, or less favorable, in each case in any material respect, to the Company and the Parent Company Subsidiaries from considered as one enterprise in order to obtain any permit, consent, approval or authorization without first obtaining the written consent of Parent, which consent shall not be unreasonably withheld or delayed. The Company shall have the right to review and approve in advance all characterizations of the information relating to the TransactionsCompany; Parent shall have the right to review and approve in advance all characterizations of the information relating to Parent or Merger Sub such approval not to be unreasonably withheld or delayed; and each of the Company and Parent shall have the right to review and approve in advance all characterizations of the information relating to the transactions contemplated by this Agreement, or in each case which appear in any material filing (yincluding the Proxy Statement) made in connection with the transactions contemplated hereby. The Company, Parent and Merger Sub agree that they will consult with each other with respect to Regulatory Approvalsthe obtaining of all such necessary Permits, any immaterial administrative or ministerial obligations consents, approvals and authorizations of Parent or any Parent Subsidiaryall third parties and Governmental Authorities.
Appears in 2 contracts
Samples: Merger Agreement (Anadarko Petroleum Corp), Merger Agreement (Western Gas Resources Inc)
Consents and Approvals. The Company and Parent shall cooperate to (a) Subject to the terms promptly prepare and conditions of this Agreementfile all necessary documentation, each of Parent (b) effect all necessary applications, notices, petitions and GFI will filings and execute all agreements and documents, (c) use its all reasonable best efforts to takeobtain all necessary permits, or cause consents, approvals and authorizations of all governmental bodies and (d) use all reasonable efforts to be takenobtain all necessary permits, consents, approvals and authorizations of all actions and to doother parties, or cause to be done, all things necessary, proper as necessary or advisable under applicable Law to consummate the Transactions, including, preparing and filing as promptly as practicable all documentation to effect all necessary filings, notices, petitions, statements, registrations, submissions of information, applications and other documents necessary and appropriate to consummate transactions contemplated by this Agreement or required by the Transactions. In furtherance and not in limitation of the foregoing, each of Parent and GFI shall (i) make or cause to be made the filings required of such party under the Foreign Competition Laws (including those set forth in Section 3.4(b)(i) of the Parent Disclosure Letter) with respect to the Transactions as promptly as practicable after the date of this Agreement; (ii) take all actions to obtain and make the Regulatory Approvals set forth in Section 3.4(b)(ii) of the Parent Disclosure Letter as promptly as practicable after the date of this Agreement; (iii) comply at the earliest practicable date with any request under any Governmental Entity (including under any Foreign Competition Laws) in respect of such filings or such Transaction; and (iv) act in good faith and reasonably cooperate with the other Party in connection with any such filings and in connection with resolving any investigation or other inquiry terms of any such agency or other Governmental Entity under any note, bond, mortgage, indenture, deed of the HSR Act, the Foreign Competition Laws, the Xxxxxxx Act, the Xxxxxxx Act and any other Laws or Orders that are designed to prohibit, restrict or regulate actions having the purpose or effect of monopolization or restraint of trade (collectively, the “Antitrust Laws”) with respect to any such filing or any such Transaction. To the extent not prohibited by applicable Law, the Parties shall use reasonable best efforts to furnish to each other all information required for any application or other filing to be made pursuant to any applicable Law in connection with the Transactions. Each Party shall give each other reasonable prior notice of any substantive communication with, and any proposed understanding, undertaking or agreement with, any Governmental Entity regarding any such filings or any such Transaction. No Party shall independently participate in any meeting, or engage in any substantive conversation, with any Governmental Entity in respect of any such filings, investigation or other inquiry without giving the other Parties prior notice of the meeting or conversation and, unless prohibited by such any Governmental Entity, the opportunity to attend or participate. The Parties contemplate that as a general matter both Parent and GFI shall be represented at in-person meetings with any Governmental Entity. The Parties will consult and cooperate with one another in connection with any analyses, appearances, presentations, memoranda, briefs, arguments, opinions and proposals made or submitted by or on behalf of any Party in connection with proceedings under or relating to the HSR Act, the Foreign Competition Laws or other Antitrust Laws.
(b) Without limiting the general obligations of Parent and GFI under Section 5.3(a) (Consents and Approvals), each of Parent and GFI shall use its reasonable best efforts to resolve such objections, if any, as may be asserted by any Governmental Entity with respect to the Transactions under the Antitrust Laws. In connection therewith and subject to Section 5.3(a) (Consents and Approvals), if any Proceeding is instituted (or threatened to be instituted) challenging any of the Transactions as inconsistent with or violative of any Antitrust Law, each of Parent and GFI shall cooperate and use its reasonable best efforts vigorously to contest and resist (by negotiation, litigation or otherwise) any such Proceeding and to have vacated, lifted, reversed or overturned any Order whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents, delays or restricts consummation of the Transactions, unless Parent reasonably and in good faith determines that litigation is not in its best interests. Notwithstanding the foregoing or any other provision of this Agreement, nothing in this Section 5.3(b) shall limit the right of a Party to terminate this Agreement pursuant to Section 7.1 (Termination), so long as such Party has until that time complied in all material respects with its obligations under this Section 5.3. Each of Parent and GFI shall use its reasonable best efforts to take such action as may be required to cause the expiration of the notice periods or to obtain the necessary approvals under the HSR Act, the Foreign Competition Laws or any other Antitrust Laws with respect to the Transactions as promptly as possible after the execution of this Agreement.
(c) Notwithstanding anything to the contrary in this Agreement, nothing in this Agreement shall be deemed to require Parent or any Parent Subsidiary to agree to or take any action that would result in any Burdensome Condition. None of GFI or any GFI Subsidiary shall agree to or take any action that would result in any Burdensome Condition without the prior written consent of Parent. For purposes of this Agreement, a “Burdensome Condition” shall mean making proposals, executing or carrying out agreements (including consent decrees) or submitting to Laws (i) providing for the transfertrust, license, sale franchise, permit, concession, contract, lease or other disposition or holding separate (through instrument to which the establishment of a trust or otherwise) of any assets or categories of assets of Parent, GFI Company and Parent or any of their respective Subsidiaries subsidiaries is a party or by which any of them is bound; provided, however, that (i) no note, bond, mortgage, indenture, deed of trust, license, franchise, permit, concession, contract, lease or other instrument shall be amended or modified to increase materially the holding separate (through amount payable thereunder or to be otherwise materially more burdensome to the establishment Company in order to obtain any permit, consent, approval or authorization without first obtaining the written approval of a trust or otherwise) of the Securities of any Parent Subsidiary or GFI Subsidiary or and (ii) imposing or seeking to impose any limitation on without the ability prior consent of Parent, GFI no such actions or things shall be done to the extent they would, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect (after giving effect to the Merger); and provided, further, that in the event of any action by or inquiry (formal or informal) of their respective Subsidiaries any governmental agency or third party related to conduct their respective businesses or based upon matters associated with the Company’s representation in Section 2.25, Parent shall be entitled to take (or not take) any action it deems necessary or advisable in its sole, unfettered discretion, including that set forth in Section 7.1(e); provided, however, that Parent shall not take any affirmative action that would detrimentally affect the Company with respect to market practices such matter. The Company shall have the right to review and structure) or own such assets or to acquire, hold or exercise full rights of ownership approve in advance all characterizations of the business information relating to the Company; Parent shall have the right to review and approve in advance all characterizations of GFI, the GFI Subsidiaries, information relating to Parent; and each of the Company and Parent or shall have the Parent Subsidiariesright to review and approve in advance all characterizations of the information relating to the transactions contemplated by this Agreement, in each case which appear in any filing (including, without limitation, the S-4) made in connection with the transactions under this Agreement. The Company and Parent agree that they will consult with each other than (x) with respect to Antitrust Lawsthe obtaining of all such necessary permits, any such proposalsconsents, executing or carrying out agreements (including consent decrees) or submitting to Laws that would not impair in any material respect the expected benefits approvals and authorizations of Parent all third parties and the Parent Subsidiaries from or relating to the Transactions, or (y) with respect to Regulatory Approvals, any immaterial administrative or ministerial obligations of Parent or any Parent Subsidiarygovernmental bodies.
Appears in 2 contracts
Samples: Merger Agreement (Crested Corp), Merger Agreement (Us Energy Corp)
Consents and Approvals. (a) Subject to Each of the terms and conditions of this AgreementCompany, each of Parent and GFI will Purchaser shall use its reasonable best efforts to (i) take, or cause to be taken, all actions appropriate action, and to do, or cause to be done, all things necessary, proper or advisable under any applicable Law law or otherwise to consummate and make effective the Transactions as promptly as practicable, (ii) obtain from any Governmental Entities any consents, licenses, permits, waivers, clearances approvals, authorizations or orders required to be obtained or made by Parent, Purchaser or the Company or any of their respective Subsidiaries, or avoid any action or proceeding by any Governmental Entity (including, without limitation, those in connection with the HSR Act and any Required Governmental Approvals), in connection with the authorization, execution and delivery of this Agreement and the consummation of the Transactions, including, preparing and filing as promptly as practicable all documentation to effect all necessary filings, notices, petitions, statements, registrations, submissions of information, applications and other documents necessary and appropriate to consummate the Transactions. In furtherance and not in limitation of the foregoing, each of Parent and GFI shall (iiii) make or cause to be made the applications or filings required to be made by Parent, Purchaser or the Company or any of such party their respective Subsidiaries under the Foreign Competition Laws (including those set forth in Section 3.4(b)(i) of the Parent Disclosure Letter) or with respect to the Transactions HSR Act, any Required Governmental Approvals or any other applicable laws in connection with the authorization, execution and delivery of this Agreement and the consummation of the Transactions, and pay any fees due in connection with such applications or filings, as promptly as practicable is reasonably practicable, and in any event within ten (10) business days after the date of this Agreement; hereof, (ii) take all actions to obtain and make the Regulatory Approvals set forth in Section 3.4(b)(ii) of the Parent Disclosure Letter as promptly as practicable after the date of this Agreement; (iiiiv) comply at the earliest practicable date with any request under or with respect to the HSR Act, any Required Governmental Approvals and any such other applicable laws for additional information, documents or other materials received by Parent or the Company or any of their respective Subsidiaries from the Federal Trade Commission or the Department of Justice or any other Governmental Entity (including under any Foreign Competition Laws) in respect of such filings or such Transaction; and (iv) act in good faith and reasonably cooperate with the other Party in connection with such applications or filings or the Transactions and (v) coordinate and cooperate with, and give due consideration to all reasonable additions, deletions or changes suggested by the other party in connection with, making (A) any filing under or with respect to the HSR Act, any other Required Governmental Approvals or any such filings other applicable laws and in connection with (B) any filings, conferences or other submissions related to resolving any investigation or other inquiry of by any such agency or other Governmental Entity under any Entity. Each of the HSR ActCompany and Parent shall, and shall cause their respective affiliates to, furnish to the Foreign Competition Laws, the Xxxxxxx Act, the Xxxxxxx Act and any other Laws or Orders that are designed to prohibit, restrict or regulate actions having the purpose or effect of monopolization or restraint of trade (collectively, the “Antitrust Laws”) with respect to party all information necessary for any such filing or any such Transaction. To the extent not prohibited by applicable Law, the Parties shall use reasonable best efforts to furnish to each other all information required for any application or other filing to be made pursuant to any applicable Law in connection with the Transactions. Each Party of the Company and Parent shall give each promptly inform the other reasonable prior notice of any substantive material communication with, and any proposed understanding, undertaking or agreement with, any Governmental Entity regarding any such filings application or any such Transactionfiling. No Party shall If a party hereto intends to independently participate in any meeting, or engage in any substantive conversation, meeting with any Governmental Entity in respect of any such filings, investigation or other inquiry without giving inquiry, then such party shall give the other Parties party reasonable prior notice of such meeting and invite Representatives of the other party to participate in the meeting or conversation and, with the Governmental Entity unless prohibited by such any Governmental Entity, the opportunity to attend or participate. The Parties contemplate that as a general matter both Parent and GFI shall be represented at in-person meetings with any Governmental Entity. The Parties will consult parties shall coordinate and cooperate with one another in connection with any analyses, appearances, presentations, memoranda, briefs, arguments, opinions and proposals made or submitted by or on behalf of any Party party in connection with all meetings, actions and proceedings under or relating to the HSR Act, the Foreign Competition Laws any such application or other Antitrust Lawsfiling.
(b) Without limiting The Company and Parent shall give (or shall cause their respective Subsidiaries to give) any notices to third parties, and use, and cause their respective Subsidiaries to use, reasonable best efforts to obtain any third party consents (i) necessary, proper or advisable to consummate the general obligations Transactions, (ii) required to be disclosed in the Company Disclosure Schedule or (iii) required to prevent a Company Material Adverse Effect from occurring prior to or after the consummation of the Offer; provided, however, that the Company and Parent shall coordinate and GFI under cooperate in determining whether any actions, notices, consents, approvals or waivers are required to be given or obtained, or should be given or obtained, from parties to any Company Scheduled Agreements in connection with consummation of the Transactions and seeking any such actions, notices, consents, approvals or waivers. In the event that either party shall fail to obtain any third party consent described in the first sentence of this Section 5.3(a) (Consents and Approvals6.3(b), each of Parent and GFI such party shall use its reasonable best efforts efforts, and shall take any such actions reasonably requested by the other party hereto, to resolve mitigate any adverse effect upon the Company and Parent, their respective Subsidiaries, and their respective businesses resulting, or which could reasonably be expected to result after the consummation of the Offer, from the failure to obtain such objectionsconsent. Notwithstanding the foregoing, if anyneither Parent nor Purchaser shall be required to, and neither the Company nor any Company Subsidiary will without the written consent of Parent, make any material payment to any third party or agree to any limitation on the conduct of its business, in order to obtain any such consent.
(c) From the date of this Agreement until the consummation of the Offer, each of Purchaser and the Company shall promptly notify the other in writing of any pending or, to the knowledge of Purchaser or the Company (as the case may be asserted be), threatened action, suit, arbitration or other proceeding or investigation by any Governmental Entity or any other Person (i) challenging or seeking material damages in connection with the Transactions or (ii) seeking to restrain or prohibit the consummation of the Transactions or otherwise limit in any material respect the right of Purchaser or any affiliate of Purchaser to own or operate all or any portion of the businesses or assets of the Company or any Company Subsidiary. The Company shall give Parent the opportunity to consult with the Company regarding the defense or settlement of any such stockholder litigation and shall consider Parent’s views with respect to such stockholder litigation and shall not settle any such stockholder litigation without the Transactions under prior written consent of Parent. Notwithstanding the Antitrust Laws. In connection therewith and subject foregoing, the Company shall not be required to Section 5.3(aprovide any notice or information to Parent the provision of which the Company in good faith determines may adversely affect the Company’s or any other person’s attorney client or other privilege with respect to such information.
(d) (Consents and Approvals), if If any Proceeding administrative or judicial action or proceeding is instituted (or threatened to be instituted) by a Governmental Entity challenging any of the Transactions as inconsistent with or violative of any Antitrust Lawapplicable law, each of Parent the Company and GFI Purchaser shall, and shall cause their respective affiliates to, cooperate and use its their reasonable best efforts vigorously to contest and resist (by negotiationresist, litigation or otherwise) except insofar as the Company and Purchaser may otherwise agree, any such Proceeding and to have vacatedaction or proceeding, liftedincluding any action or proceeding that seeks a temporary restraining order or preliminary injunction that would prohibit, reversed prevent or overturned any Order whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents, delays or restricts restrict consummation of the Transactions, unless Parent reasonably and in good faith determines that litigation is not in its best interests. Notwithstanding the foregoing or any other provision of this Agreement, nothing in this Section 5.3(b) shall limit the right of a Party to terminate this Agreement pursuant to Section 7.1 (Termination), so long as such Party has until that time complied in all material respects with its obligations under this Section 5.3. Each of Parent and GFI shall use its reasonable best efforts to take such action as may be required to cause the expiration of the notice periods or to obtain the necessary approvals under the HSR Act, the Foreign Competition Laws or any other Antitrust Laws with respect to the Transactions as promptly as possible after the execution of this Agreement.
(ce) Notwithstanding anything to the contrary set forth in this Agreement, nothing contained in this Agreement shall be deemed to require give Parent or any Parent Subsidiary Purchaser, directly or indirectly, the right to agree control or direct the operations of the Company prior to or take any action that would result in any Burdensome Conditionthe consummation of the Offer. None Prior to the consummation of GFI or any GFI Subsidiary the Offer, the Company shall agree to or take any action that would result in any Burdensome Condition without exercise, consistent with the prior written consent of Parent. For purposes terms and conditions of this Agreement, a “Burdensome Condition” shall mean making proposalscontrol and supervision over its business operations.
(f) Notwithstanding anything set forth in Section 6.3 and any other provision hereof, executing in connection with the receipt of any necessary governmental approvals or carrying out agreements clearances (including consent decrees) under the HSR Act), neither Parent nor the Company shall be required to sell, hold separate or submitting otherwise dispose of or conduct their business in a specified manner, or agree to Laws (i) providing for sell, hold separate or otherwise dispose of or conduct their business in a specified manner, or permit the transfersale, license, sale holding separate or other disposition or holding separate (through the establishment of a trust or otherwise) of of, any assets or categories of assets of Parent, GFI the Company or any of their respective Subsidiaries or the holding separate conduct of their business in a specified manner.
(through g) Parent shall vote all of the establishment shares of capital stock of Purchaser beneficially owned by it, or sign a written consent in lieu of a trust or otherwise) meeting of the Securities stockholders of any Parent Subsidiary or GFI Subsidiary or (ii) imposing or seeking to impose any limitation on the ability of ParentPurchaser, GFI or any of their respective Subsidiaries to conduct their respective businesses (including with respect to market practices and structure) or own such assets or to acquire, hold or exercise full rights of ownership in favor of the business adoption of GFI, the GFI Subsidiaries, Parent or the Parent Subsidiaries, this Agreement in each case other than (x) accordance with respect to Antitrust Laws, any such proposals, executing or carrying out agreements (including consent decrees) or submitting to Laws that would not impair in any material respect the expected benefits of Parent and the Parent Subsidiaries from or relating to the Transactions, or (y) with respect to Regulatory Approvals, any immaterial administrative or ministerial obligations of Parent or any Parent Subsidiaryapplicable law.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Redback Networks Inc), Agreement and Plan of Merger (Ericsson Lm Telephone Co)
Consents and Approvals. (a) Subject to the terms and conditions of this Agreement, each of Parent Purchaser and GFI the Company 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 proper, or advisable under applicable Law to consummate the Transactions, including, preparing and filing including obtaining as promptly as reasonably practicable all documentation to effect all any necessary filings, notices, petitions, statements, registrations, submissions Consents from any Governmental Authority or other third party (“Third-Party Consents”) necessary in connection with the consummation of information, applications and other documents necessary and appropriate to consummate the Transactions. The Company Stockholders (as a Transaction Cost) shall be responsible for all costs of obtaining the Third-Party Consents referred to above, including all fees, charges, costs and expenses levied by a counterparty in granting its consent, including assignment fees.
(b) In furtherance and not in limitation of the foregoing, each of Parent Purchaser and GFI the Company shall (i) make or cause to be made the filings filings, submissions and declarations required of such party Party under the Foreign Competition Laws (including those set forth in Section 3.4(b)(i) of the Parent Disclosure Letter) HSR Act with respect to the Transactions as promptly as practicable after the date of this Agreement; Agreement (ii) take all actions to obtain and make in any event, in the Regulatory Approvals set forth in Section 3.4(b)(ii) case of the Parent Disclosure Letter as promptly as practicable HSR Act, within ten (10) Business Days after the date of this Agreement; ), (iiiii) comply certify substantial compliance at the earliest practicable date date, and no later than six (6) months after its issuance, with any request under the HSR Act for additional information, documents or other materials received by such Party from the FTC, the Antitrust Division of the U.S. Department of Justice (the “Antitrust Division”), or by any other Governmental Entity (including under any Foreign Competition Laws) Authority in respect of such filings filings, submissions and declarations or such Transaction; the Merger, and (iviii) act in good faith and reasonably cooperate with the other Party in connection with any such filings filings, submissions, and declarations and in connection with resolving resolving, and use reasonable best efforts to resolve, any investigation or other inquiry of any such agency or other Governmental Entity Authority under any of the HSR Act, the Foreign Competition Laws, the Xxxxxxx Act, the Xxxxxxx Act and or any other Laws or Orders that are designed to prohibit, restrict or regulate actions having the purpose or effect of monopolization or restraint of trade (collectively, the “Antitrust Laws”) Law with respect to any such filing filings, submissions, and declarations or any such Transactionof the Transactions; provided, however, that Purchaser shall not be obligated to agree to any structural or conduct remedy except as set forth in Section 8.1(c)(ii). To the extent not prohibited by applicable Law, the Company, on the one hand, will provide Purchaser, and Purchaser, on the other hand, will provide the Company, with copies of any material correspondence, filing (other than any Notification and Report Form submitted under the HSR Act) or communication between such Party or any of its Representatives, on the one hand, and any Governmental Authority or members of their respective staffs, on the other hand, with respect to this Agreement and the Transactions. Prior to submitting or making any such correspondence, filing or communication to any such Governmental Authority or members of their respective staffs, the Parties shall, to the extent permitted by applicable Law, first provide the other Party with a copy of such correspondence, filing or communication in draft form and give such other Party a reasonable opportunity to discuss its content before it is submitted or filed with the relevant Governmental Authorities, and shall consider and take account of all reasonable comments timely made by the other Party with respect thereto. To the extent permitted by applicable Law, each of the Parties shall ensure that the other Party is given the opportunity to attend any meetings with or other appearances before any Governmental Authority with respect to this Agreement or the Transactions. Notwithstanding this Section 8.1(b), but subject to Section 8.1(c) and its obligations to use reasonable best efforts to furnish to each other all information required for any application take, or other filing cause to be made pursuant taken, all actions and to any do, or cause to be done, all things necessary, proper, or advisable under applicable Law in connection with to consummate the Transactions. Each Party , Purchaser shall give each other reasonable prior notice determine the timing and strategy and be solely responsible for the final content of any substantive communication with, and any proposed understanding, undertaking or agreement with, any Governmental Entity regarding any such filings or any such Transaction. No Party shall independently participate in any meeting, or engage in any substantive conversation, communications with any applicable Governmental Entity in respect of any such filings, investigation or other inquiry without giving the other Parties prior notice of the meeting or conversation and, unless prohibited by such any Governmental Entity, the opportunity to attend or participate. The Parties contemplate that as a general matter both Parent and GFI shall be represented at in-person meetings with any Governmental Entity. The Parties will consult and cooperate with one another in connection with any analyses, appearances, presentations, memoranda, briefs, arguments, opinions and proposals made or submitted by or on behalf of any Party in connection with proceedings under or relating to the HSR Act, the Foreign Competition Laws or other Antitrust Laws.
(b) Without limiting the general obligations of Parent and GFI under Section 5.3(a) (Consents and Approvals), each of Parent and GFI shall use its reasonable best efforts to resolve such objections, if any, as may be asserted by any Governmental Entity Authority with respect to the Transactions any investigation under the Antitrust Laws. In connection therewith and subject to Section 5.3(a) (Consents and Approvals), if any Proceeding is instituted (or threatened to be instituted) challenging any of the Transactions as inconsistent with or violative of any Antitrust Law, each of Parent and GFI shall cooperate and use its reasonable best efforts vigorously to contest and resist (by negotiation, litigation or otherwise) any such Proceeding and to have vacated, lifted, reversed or overturned any Order whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents, delays or restricts consummation of the Transactions, unless Parent reasonably and in good faith determines that litigation is not in its best interests. Notwithstanding the foregoing or any other provision of this Agreement, nothing in this Section 5.3(b) shall limit the right of a Party to terminate this Agreement pursuant to Section 7.1 (Termination), so long as such Party has until that time complied in all material respects with its obligations under this Section 5.3. Each of Parent and GFI shall use its reasonable best efforts to take such action as may be required to cause the expiration of the notice periods or to obtain the necessary approvals under the HSR Act, the Foreign Competition Laws or any other Antitrust Laws with respect to the Transactions as promptly as possible after the execution of this Agreement.
(c) Notwithstanding anything to the contrary in this Agreement, nothing in this Agreement shall be deemed to require Parent or any Parent Subsidiary to agree to or take any action that would result in any Burdensome Condition. None of GFI or any GFI Subsidiary shall agree to or take any action that would result in any Burdensome Condition without the prior written consent of Parent. For purposes of this AgreementSection 8.1, a “Burdensome Conditionreasonable best efforts” shall mean making proposals, executing or carrying out agreements (including consent decrees) or submitting to Laws include: (i) providing for vigorously defending, contesting and objecting to any Proceedings challenging this Agreement or the transferMerger or that would otherwise prevent or materially impede, licenseinterfere with, sale hinder or delay the consummation of the Merger and other disposition or transactions contemplated hereby; and (ii) selling, divesting, holding separate or otherwise conveying or agreeing to sell, divest, hold separate or otherwise convey, any business of Purchaser and the Purchaser Subsidiaries that generated net revenue during the twelve month period ending December 31, 2021 of not more than Thirty Million Dollars (through $30,000,000); provided, however, that no action contemplated by this Section may be taken if such action would bind Purchaser, the establishment of a trust or otherwise) of any assets or categories of assets of Parent, GFI Company or any of their respective Subsidiaries or if the holding separate Closing does not occur.
(through the establishment of a trust or otherwised) of the Securities of any Parent Subsidiary or GFI Subsidiary or Purchaser shall be responsible for all filing and application fees associated with obtaining all Consents pursuant to this Section 8.1 (ii) imposing or seeking to impose any limitation on the ability of Parent, GFI or any of their respective Subsidiaries to conduct their respective businesses (including with respect to market practices and structure) or own such assets or to acquire, hold or exercise full rights of ownership of the business of GFI, the GFI Subsidiaries, Parent or the Parent Subsidiaries, in each case other than (x) with respect to Antitrust Laws, any such proposals, executing or carrying out agreements (including consent decrees) or submitting to Laws that would not impair in any material respect the expected benefits of Parent and the Parent Subsidiaries from or relating to the Transactions, or (y) with respect to Regulatory Approvals, any immaterial administrative or ministerial obligations of Parent or any Parent SubsidiaryThird-Party Consents).
Appears in 2 contracts
Samples: Merger Agreement (Zurn Water Solutions Corp), Merger Agreement (Zurn Water Solutions Corp)
Consents and Approvals. (a) Subject to Each of the terms and conditions of this AgreementCompany, each of Parent and GFI will Merger Sub shall use its reasonable best efforts to (i) take, or cause to be taken, all actions appropriate action, and to do, or cause to be done, all things necessary, proper or advisable under applicable any Applicable Law or otherwise to consummate and make effective the Transactions, including, preparing and filing transactions contemplated hereby as promptly as practicable all documentation practicable, but in no event later than the End Date, (ii) obtain from any Governmental Authority any consents, licenses, permits, waivers, clearances approvals, authorizations or orders required to effect all necessary filingsbe obtained or made by Parent, noticesMerger Sub or the Company or any of their respective Subsidiaries, petitionsor avoid any action or proceeding by any Governmental Authority (including, statementswithout limitation, registrationsthose in connection with the HSR Act and any other antitrust or competition Applicable Law or regulation) (the “Required Governmental Approvals”), submissions in connection with the authorization, execution and delivery of information, applications this Agreement and other documents necessary and appropriate to consummate the Transactions. In furtherance and not in limitation consummation of the foregoingtransactions contemplated hereby, each of Parent and GFI shall (iiii) make or cause to be made the applications or filings required to be made by Parent, Merger Sub or the Company or any of such party their respective Subsidiaries under the Foreign Competition Laws (including those set forth in Section 3.4(b)(i) of the Parent Disclosure Letter) or with respect to the Transactions as promptly as practicable after HSR Act, which filing shall be made within ten (10) Business Days of the date hereof, any other applicable Required Governmental Approvals or any other Applicable Law in connection with the authorization, execution and delivery of this Agreement; (ii) take all actions to obtain Agreement and make the Regulatory Approvals set forth in Section 3.4(b)(ii) consummation of the Parent Disclosure Letter as promptly as practicable after the date of this Agreement; transactions contemplated hereby, (iiiiv) comply at the earliest reasonably practicable date with any request under or with respect to the HSR Act, any other Required Governmental Entity (including under Approvals and any Foreign Competition Laws) such other Applicable Laws for additional information, documents or other materials received by Parent or the Company or any of their respective Subsidiaries from the Federal Trade Commission or the Department of Justice or any other Governmental Authority in respect of connection with such applications or filings or such Transaction; the transactions contemplated hereby, and (ivv) act permit the other party to review and discuss in advance, and consider in good faith and reasonably cooperate with the view of the other Party in connection with, any proposed material written or oral communication with any such filings and Governmental Authority including all reasonable additions, deletions or changes suggested by the other party in connection with, making (A) any material communication or filing under or with respect to the HSR Act, any other Required Governmental Approvals or any such other Applicable Law and (B) any material communications, filings, conferences or other submissions related to resolving any investigation or other inquiry of by any such agency Governmental Authority. Each party shall not participate in any substantive meeting or have any substantive communication with any Governmental Authority unless, to the extent permitted by Applicable Law, it has given the other party a reasonable opportunity to consult with it in advance and, to the extent permitted by such Governmental Entity under any of Authority, gives the HSR Act, other the Foreign Competition Laws, the Xxxxxxx Act, the Xxxxxxx Act opportunity to attend and any other Laws or Orders that are designed to prohibit, restrict or regulate actions having the purpose or effect of monopolization or restraint of trade (collectively, the “Antitrust Laws”) with respect to any such filing or any such Transactionparticipate therein. To the extent not prohibited permitted by applicable Applicable Law, each party shall promptly notify the Parties other of, and if in writing, furnish the other with copies of any material communications from, with, or to any Governmental Authority in connection with the transactions contemplated hereby; provided however, that such materials may be redacted as necessary to address reasonable legal privilege or confidentiality concerns and/or to remove references concerning valuation of the transaction. The Company shall use reasonable best efforts agree if, but solely if, requested by Parent, to divest, hold separate or otherwise take or commit to take any action with respect to the businesses, services, or assets of the Company in furtherance of this Section 6.11; provided, however, that any such action may be conditioned upon consummation of the Merger. Notwithstanding the foregoing, Parent and the Company acknowledge that the Bureau of Competition of the Federal Trade Commission has recently begun the practice of sending a letter (a “Pre-consummation Warning Letter”) to Persons filing notifications under the HSR Act stating that although the waiting period under the HSR Act for the proposed transaction will soon expire, the staff of the Federal Trade Commission’s Bureau of Competition has not yet completed its non-public investigation of the proposed transaction and that if the parties close the proposed transaction before the Federal Trade Commission has completed its investigation, they do so at their own risk inasmuch as the Federal Trade Commission may challenge the proposed transaction, even after the HSR Act waiting period has expired. For the avoidance of doubt, Parent and the Company agree that the receipt by either or both of them of a Pre-consummation Warning Letter or other verbal or written communications from the staff of the Federal Trade Commission or Antitrust Division of the United States Department of Justice to the same effect shall not constitute grounds for the assertion that a condition to closing under Article 7 has not been satisfied.
(b) Each of the Company and Parent shall, and Parent shall cause its Subsidiaries to, furnish to each the other party all information required necessary for any application or other filing to be made pursuant to any applicable Law in connection with the Transactionstransactions contemplated hereby. Each Party of the Company and Parent shall give each promptly inform the other reasonable prior notice of any substantive material communication with, and any proposed understanding, undertaking or agreement with, any Governmental Entity Authority regarding any such filings application or any such Transactionfiling. No Party shall If a party hereto intends to independently participate in any meeting, or engage in any substantive conversation, meeting with any Governmental Entity Authority in respect of any such filings, investigation or other inquiry without giving inquiry, then such party shall give the other Parties party reasonable prior notice of such meeting and invite Representatives of the other party to participate in the meeting or conversation and, with the Governmental Authority unless prohibited by such any Governmental Entity, the opportunity to attend or participateAuthority. The Parties contemplate that as a general matter both Parent and GFI parties shall be represented at in-person meetings with any Governmental Entity. The Parties will consult coordinate and cooperate with one another in connection with any analyses, appearances, presentations, memoranda, briefs, arguments, opinions and proposals made or submitted by or on behalf of any Party party in connection with all meetings, actions and proceedings under or relating to the HSR Act, the Foreign Competition Laws any such application or other Antitrust Lawsfiling.
(bc) Without limiting Prior to the general obligations Closing, the Company shall give any notices to third parties counterparty to any Contracts to which the Company or any of Parent its Subsidiaries is a party and GFI under Section 5.3(a) (Consents and Approvals), each of Parent and GFI shall use its reasonable best efforts to resolve such objections, if any, as may be asserted by any Governmental Entity obtain consents and waivers with respect to Contracts to which the Transactions under Company or any of its Subsidiaries is a party prior to the Antitrust Laws. In connection therewith Closing (which may or may not be obtained); provided, however, that in no event will Parent or any of its Subsidiaries be required, and subject in no event shall the Company prior to Section 5.3(a) the Effective Time, without the prior written consent of Parent (Consents and Approvalsnot to be unreasonably withheld, conditioned or delayed), if pay any Proceeding fee, penalty or other consideration or make any accommodation to any third party to obtain any consent, approval or waiver required with respect to any such Contract.
(d) If any administrative or judicial action or proceeding is instituted (or threatened to be instituted) by a Governmental Authority challenging any of the Transactions transactions contemplated hereby as inconsistent with or violative of any Antitrust Applicable Law, each of Parent the Company and GFI Merger Sub shall, and shall cause their respective Affiliates to, cooperate and use its their reasonable best efforts vigorously to contest and resist (by negotiation, litigation or otherwise) any such Proceeding and to have vacatedaction or proceeding, liftedincluding any action or proceeding that seeks a temporary restraining order or preliminary injunction that would prohibit, reversed prevent or overturned any Order whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents, delays or restricts restrict consummation of the Transactions, unless transactions contemplated hereby.
(e) Parent reasonably and in good faith determines that litigation is not in its best interests. Notwithstanding shall vote (or act by written consent with respect to) all of the foregoing shares of capital stock of Merger Sub beneficially owned by it or any other provision of its Subsidiaries or Affiliates in favor of the adoption of this AgreementAgreement in accordance with Applicable Law.
(f) Neither Parent nor Merger Sub shall, nothing in this Section 5.3(b) nor shall limit the right of a Party they permit their respective Subsidiaries to, acquire or agree to terminate this Agreement pursuant to Section 7.1 acquire any rights, assets, business, Person or division thereof (Terminationthrough acquisition, license, joint venture, collaboration or otherwise), so long as if such Party has until that time complied in all material respects with its obligations acquisition, would reasonably be expected to materially increase the risk of not obtaining any applicable clearance, consent, approval or waiver under this Section 5.3. Each of Parent and GFI shall use its reasonable best efforts to take such action as may be required to cause the expiration of the notice periods or to obtain the necessary approvals under the HSR Act, the Foreign Competition Laws or any other Antitrust Laws with respect to the Transactions as promptly as possible after Merger or the execution of other transactions contemplated by this Agreement.
; provided, however, that the foregoing shall in no way restrict Parent’s franchising activities in the ordinary course (c) Notwithstanding anything to the contrary in this Agreement, nothing in this Agreement shall be deemed to require Parent including any refranchising or any Parent Subsidiary to agree repurchasing of units to or take any action that would result in any Burdensome Condition. None of GFI or any GFI Subsidiary shall agree to or take any action that would result in any Burdensome Condition without the prior written consent of Parent. For purposes of this Agreement, a “Burdensome Condition” shall mean making proposals, executing or carrying out agreements (including consent decrees) or submitting to Laws (i) providing for the transfer, license, sale or other disposition or holding separate (through the establishment of a trust or otherwise) of any assets or categories of assets of Parent, GFI or any of their respective Subsidiaries or the holding separate (through the establishment of a trust or otherwise) of the Securities of any Parent Subsidiary or GFI Subsidiary or (ii) imposing or seeking to impose any limitation on the ability of Parent, GFI or any of their respective Subsidiaries to conduct their respective businesses (including with respect to market practices and structure) or own such assets or to acquire, hold or exercise full rights of ownership of the business of GFI, the GFI Subsidiaries, Parent or the Parent Subsidiaries, in each case other than (x) with respect to Antitrust Laws, any such proposals, executing or carrying out agreements (including consent decrees) or submitting to Laws that would not impair in any material respect the expected benefits of Parent and the Parent Subsidiaries from or relating to the Transactions, or (y) with respect to Regulatory Approvals, any immaterial administrative or ministerial obligations of Parent or any Parent Subsidiaryfranchisees).
Appears in 2 contracts
Samples: Merger Agreement (Del Taco Restaurants, Inc.), Merger Agreement (Jack in the Box Inc /New/)
Consents and Approvals. (a) Subject to Upon the terms and subject to the conditions of this Agreement, each of Parent the parties hereto agrees to use, and GFI will cause its respective Affiliates to 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 or advisable under Applicable Law and regulations to consummate and make effective the transactions contemplated by this Agreement as promptly as practicable including the preparation and filing of all forms, registrations and notices required to be filed by such party in order to consummate the transactions contemplated by this Agreement, the taking of all appropriate action necessary, proper or advisable to satisfy each of the conditions to Closing that are to be satisfied by that party or any of its Affiliates and the taking of such actions as are necessary to obtain any approvals, consents, orders, exemptions or waivers of Governmental Authorities required to be obtained by such party in order to consummate the transactions contemplated by this Agreement. Each party shall promptly consult with the other with respect to, provide any necessary information with respect to, and provide copies of all filings made by such party with any Governmental Authority or any other information supplied by such party to a Governmental Authority in connection with, this Agreement and the Related Agreements and the transactions contemplated hereby and thereby.
(b) Without limiting the generality of the undertakings pursuant to this Section 5.3, each of Seller and Buyer shall use its reasonable best efforts to take, or cause to be taken, all actions action and to do, or cause to be done, all things necessary, proper or advisable necessary under applicable Law the Competition Laws to consummate and make effective the Transactionstransactions contemplated by this Agreement and the Related Agreements, includingincluding furnishing all information required by applicable law in connection with approvals of or filings with any Governmental Authority, preparing and filing including filing, or causing to be filed, as promptly as practicable all documentation practicable, any required notification and report forms under other applicable Competition Laws with the applicable non-U.S. Governmental Antitrust Authority. The parties shall consult with each other as to effect all necessary the appropriate time of filing such notifications and shall agree upon the timing of such filings. All filing fees under any applicable Competition Law shall be borne by the party responsible for making such filing, notices, petitions, statements, registrations, submissions and each party will bear its own costs for the preparation of information, applications and other documents necessary and appropriate to consummate the Transactionsany such filing. In furtherance and not in limitation of the foregoing, each of Parent and GFI Each party shall (i) make or cause respond promptly to be any request for additional information made by the filings required of such party under the Foreign Competition Laws (including those set forth in Section 3.4(b)(i) of the Parent Disclosure Letter) with respect to the Transactions as promptly as practicable after the date of this Agreementantitrust agency; (ii) take all actions to obtain promptly notify the other party of, and make if in writing, furnish the Regulatory Approvals set forth other party with copies of (or, in Section 3.4(b)(iithe case of material oral communications, advise the other party orally of) any communications from or with the antitrust agency in connection with any of the Parent Disclosure Letter as promptly as practicable after the date of transactions contemplated by this Agreement; (iii) comply at not participate in any meeting with the earliest practicable date antitrust agency unless it consults with any request under any Governmental Entity (including under any Foreign Competition Laws) the other party in respect of such filings or such Transactionadvance and to the extent permitted by the agency gives the other party the opportunity to attend and participate thereat; and (iv) act in good faith and reasonably cooperate with furnish the other Party in connection party with any such copies of all correspondence, filings and in connection with resolving any investigation or other inquiry of any such communications (and memoranda setting forth the substance thereof) between it and the antitrust agency or other Governmental Entity under any of the HSR Act, the Foreign Competition Laws, the Xxxxxxx Act, the Xxxxxxx Act and any other Laws or Orders that are designed to prohibit, restrict or regulate actions having the purpose or effect of monopolization or restraint of trade (collectively, the “Antitrust Laws”) with respect to any of the transactions contemplated by this Agreement; and (v) furnish the other party with such filing necessary information and reasonable assistance as may be reasonably necessary in connection with the preparation of necessary filings or any such Transactionsubmission of information to the antitrust agency and consistent with appropriate confidentiality safeguards. To the extent not prohibited by applicable Law, the The Parties shall use their reasonable best efforts to furnish to each other all information required for any application or other filing to be made pursuant to any applicable Law in connection with cause the Transactions. Each Party shall give each other reasonable prior notice of any substantive communication with, and any proposed understanding, undertaking or agreement with, any Governmental Entity regarding any such filings or any such Transaction. No Party shall independently participate in any meeting, or engage in any substantive conversation, with any Governmental Entity in respect of any such filings, investigation or other inquiry without giving the other Parties prior notice of the meeting or conversation and, unless prohibited by such any Governmental Entity, the opportunity to attend or participate. The Parties contemplate that as a general matter both Parent and GFI shall be represented at in-person meetings with any Governmental Entity. The Parties will consult and cooperate with one another in connection with any analyses, appearances, presentations, memoranda, briefs, arguments, opinions and proposals made or submitted by or on behalf of any Party in connection with proceedings under or relating to the HSR Act, the Foreign Competition Laws or other Antitrust Laws.
(b) Without limiting the general obligations of Parent and GFI under Section 5.3(a) (Consents and Approvals), each of Parent and GFI shall use its reasonable best efforts to resolve such objections, if any, as may be asserted by any Governmental Entity with respect to the Transactions waiting periods under the Antitrust Laws. In connection therewith and subject to Section 5.3(a) (Consents and Approvals), if any Proceeding is instituted (or threatened to be instituted) challenging any of the Transactions as inconsistent with or violative of any Antitrust Law, each of Parent and GFI shall cooperate and use its reasonable best efforts vigorously to contest and resist (by negotiation, litigation or otherwise) any such Proceeding and to have vacated, lifted, reversed or overturned any Order whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents, delays or restricts consummation of the Transactions, unless Parent reasonably and in good faith determines that litigation is not in its best interests. Notwithstanding the foregoing or any other provision of this Agreement, nothing in this Section 5.3(b) shall limit the right of a Party applicable Competitions Laws to terminate this Agreement pursuant to Section 7.1 (Termination), so long as such Party has until that time complied in all material respects with its obligations under this Section 5.3. Each of Parent and GFI shall use its reasonable best efforts to take such action as may be required to cause or expire at the expiration of the notice periods or to obtain the necessary approvals under the HSR Act, the Foreign Competition Laws or any other Antitrust Laws with respect to the Transactions as promptly as earliest possible date after the execution date of this Agreementfiling.
(c) Notwithstanding If any objections are asserted with respect to the transactions contemplated by this Agreement, the Related Agreements, the CGIC Loan Agreement or the Consent and Support Agreement under any Competition Law or if any suit or proceeding is instituted or threatened by any Governmental Authority or any private party challenging any of the transactions contemplated by this Agreement, the Related Agreements, the CGIC Loan Agreement or the Consent and Support Agreement as violative of any Competition Law, each of Seller and Buyer shall use its best efforts to promptly resolve such objections; provided, however, that notwithstanding anything to the contrary in this Agreement, nothing in this Agreement shall be deemed to require Parent none of Seller or any Parent Subsidiary to agree to or take any action that would result in any Burdensome Condition. None of GFI or any GFI Subsidiary shall agree to or take any action that would result in any Burdensome Condition without the prior written consent of Parent. For purposes of this Agreement, a “Burdensome Condition” shall mean making proposals, executing or carrying out agreements (including consent decrees) or submitting to Laws (i) providing for the transfer, license, sale or other disposition or holding separate (through the establishment of a trust or otherwise) of any assets or categories of assets of Parent, GFI Buyer or any of their respective Subsidiaries Affiliates shall have any obligation to hold separate or the holding separate (through the establishment divest any property or assets of a trust Seller or otherwise) of the Securities of any Parent Subsidiary or GFI Subsidiary or (ii) imposing or seeking to impose any limitation on the ability of ParentBuyer, GFI or any of their respective Subsidiaries to conduct their respective businesses (including with respect to market practices and structure) or own such assets Affiliates, or to acquiredefend against any lawsuit, hold action or exercise full rights of ownership of the business of GFIproceeding, judicial or administrative, challenging this Agreement, any Related Agreement, the GFI Subsidiaries, Parent CGIC Loan Agreement or the Parent Subsidiaries, in each case other than (x) with respect to Antitrust Laws, any such proposals, executing Consent and Support Agreement or carrying out agreements (including consent decrees) the transactions contemplated hereby or submitting to Laws that would not impair in any material respect the expected benefits of Parent and the Parent Subsidiaries from or relating to the Transactions, or (y) with respect to Regulatory Approvals, any immaterial administrative or ministerial obligations of Parent or any Parent Subsidiarythereby.
Appears in 2 contracts
Samples: Purchase and Sale Agreement (CMS Energy Corp), Purchase and Sale Agreement (Consumers Energy Co)
Consents and Approvals. (a) Subject The parties hereto shall cooperate with each other and, subject to the terms and conditions of this Agreement, each of Parent and GFI will use its reasonable best efforts to take, or cause to be taken, promptly (x) prepare and file all actions necessary documentation and to do, or cause to be done, all things necessary, proper or advisable under applicable Law to consummate the Transactions, including, preparing and filing as promptly as practicable all documentation to (y) effect all necessary filingsapplications, notices, petitionspetitions and filings (including, statementsto the extent necessary, registrationsany notification required by the HSR Act, submissions as more specifically addressed in Section 7.12) and (y) obtain all permits, consents, approvals and authorizations of information, applications all third parties and other documents Governmental Authorities that are necessary and appropriate or advisable to consummate the Transactions. In furtherance and not in limitation of the foregoing, each of Parent and GFI The Company shall (i) make or cause also use its reasonable best efforts to obtain all consents required to be made the filings required of such party under the Foreign Competition Laws (including those set forth in listed on Section 3.4(b)(i4.5(a) of the Parent Disclosure Letter) Schedule. The parties hereto shall consult with each other with respect to the Transactions as promptly as practicable after obtaining of all such permits, consents, approvals and authorizations, and each party will keep the date other apprised of the status of matters relating to completion of the Transactions. Parent and the Company shall each, subject to the terms and conditions of this Agreement; (ii) take all actions to obtain and make the Regulatory Approvals set forth in Section 3.4(b)(ii) of the Parent Disclosure Letter as promptly as practicable after the date of this Agreement; (iii) comply at the earliest practicable date with any request under any Governmental Entity (including under any Foreign Competition Laws) in respect of such filings or such Transaction; and (iv) act in good faith and reasonably cooperate with the other Party in connection with any such filings and in connection with resolving any investigation or other inquiry of any such agency or other Governmental Entity under any of the HSR Act, the Foreign Competition Laws, the Xxxxxxx Act, the Xxxxxxx Act and any other Laws or Orders that are designed to prohibit, restrict or regulate actions having the purpose or effect of monopolization or restraint of trade (collectively, the “Antitrust Laws”) with respect to any such filing or any such Transaction. To the extent not prohibited by applicable Law, the Parties shall use reasonable best efforts to furnish to each other all information required for any application or other filing to be made pursuant to any applicable Law in connection with the Transactions. Each Party shall give each other reasonable prior notice of any substantive communication with, and any proposed understanding, undertaking or agreement with, any Governmental Entity regarding any such filings or any such Transaction. No Party shall independently participate in any meeting, or engage in any substantive conversation, with any Governmental Entity in respect of any such filings, investigation or other inquiry without giving the other Parties prior notice of the meeting or conversation and, unless prohibited by such any Governmental Entity, the opportunity to attend or participate. The Parties contemplate that as a general matter both Parent and GFI shall be represented at in-person meetings with any Governmental Entity. The Parties will consult and cooperate with one another in connection with any analyses, appearances, presentations, memoranda, briefs, arguments, opinions and proposals made or submitted by or on behalf of any Party in connection with proceedings under or relating to the HSR Act, the Foreign Competition Laws or other Antitrust Laws.
(b) Without limiting the general obligations of Parent and GFI under Section 5.3(a) (Consents and Approvals), each of Parent and GFI shall use its reasonable best efforts to resolve such objections, if any, as any objections that may be asserted by any Governmental Entity Authority with respect to this Agreement or the Transactions under Transactions. Parent and the Antitrust Laws. In connection therewith Company, with respect to any threatened or pending preliminary or permanent injunction or other order, decree or ruling or statute, rule, regulation or executive order that would adversely affect the ability of the parties hereto to consummate the transactions contemplated hereby, shall use reasonable best efforts to prevent the entry, enactment or promulgation thereof, as the case may be.
(b) Parent and subject to Section 5.3(a) (Consents and Approvals), if the Company shall promptly advise each other upon receiving any Proceeding communication from any Governmental Authority whose consent or approval is instituted (or threatened to be instituted) challenging required for consummation of any of the Transactions as inconsistent with or violative of any Antitrust Law, each of Parent and GFI shall cooperate and use its reasonable best efforts vigorously relating to contest and resist (by negotiation, litigation or otherwise) any such Proceeding and to have vacated, lifted, reversed consent or overturned any Order whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents, delays or restricts consummation of the Transactions, unless Parent reasonably and in good faith determines that litigation is not in its best interests. Notwithstanding the foregoing or any other provision of this Agreement, nothing in this Section 5.3(b) shall limit the right of a Party to terminate this Agreement pursuant to Section 7.1 (Termination), so long as such Party has until that time complied in all material respects with its obligations under this Section 5.3. Each of Parent and GFI shall use its reasonable best efforts to take such action as may be required to cause the expiration of the notice periods or to obtain the necessary approvals under the HSR Act, the Foreign Competition Laws or any other Antitrust Laws with respect to the Transactions as promptly as possible after the execution of this Agreementapproval.
(c) Notwithstanding anything to the contrary in this Agreement, nothing in this Agreement shall be deemed to require Parent or any Parent Subsidiary to agree to or take any action that would result in any Burdensome Condition. None of GFI or any GFI Subsidiary shall agree to or take any action that would result in any Burdensome Condition without the prior written consent of Parent. For purposes of this Agreement, a “Burdensome Condition” shall mean making proposals, executing or carrying out agreements (including consent decrees) or submitting to Laws (i) providing for the transfer, license, sale or other disposition or holding separate (through the establishment of a trust or otherwise) of any assets or categories of assets of Parent, GFI or any of their respective Subsidiaries or the holding separate (through the establishment of a trust or otherwise) of the Securities of any Parent Subsidiary or GFI Subsidiary or (ii) imposing or seeking to impose any limitation on the ability of Parent, GFI or any of their respective Subsidiaries to conduct their respective businesses (including with respect to market practices and structure) or own such assets or to acquire, hold or exercise full rights of ownership of the business of GFI, the GFI Subsidiaries, Parent or the Parent Subsidiaries, in each case other than (x) with respect to Antitrust Laws, any such proposals, executing or carrying out agreements (including consent decrees) or submitting to Laws that would not impair in any material respect the expected benefits of Parent and the Parent Subsidiaries from or relating to the Transactions, or (y) with respect to Regulatory Approvals, any immaterial administrative or ministerial obligations of Parent or any Parent Subsidiary.
Appears in 2 contracts
Samples: Merger Agreement (Wind River Systems Inc), Merger Agreement (Intel Corp)
Consents and Approvals. (a) Subject to Upon the terms and subject to the conditions of set forth in this Agreement, each of the Company, Parent and GFI will Purchaser shall (i) make or cause to be made the applications or filings required to be made by Parent, Purchaser, their respective Subsidiaries or the Company under or with respect to any applicable laws (including Chapter 80B of the Minnesota Statutes) in connection with the authorization, execution and delivery of this Agreement and the consummation of the Transactions (and, in accordance with Section 10.3, pay any fees due in connection with such applications or filings) as promptly as is reasonably practicable, (ii) use its commercially reasonable best efforts to (A) take, or cause to be taken, all actions appropriate action, and to do, or cause to be done, all things necessary, proper or advisable under any applicable Law law or otherwise to consummate the Transactions, including, preparing and filing as promptly as practicable all documentation to effect all necessary filings, notices, petitions, statements, registrations, submissions of information, applications and other documents necessary and appropriate to consummate the Transactions. In furtherance and not in limitation of the foregoing, each of Parent and GFI shall (i) make or cause to be made the filings required of such party under the Foreign Competition Laws (including those set forth in Section 3.4(b)(i) of the Parent Disclosure Letter) with respect to effective the Transactions as promptly as practicable after practicable, (B) obtain from any Governmental Entities any consents, licenses, permits, waivers, clearances, approvals, waiting period terminations, authorizations or orders required to be obtained or made by Parent, Purchaser, their respective Subsidiaries, or the date Company, or avoid any action or proceeding by any Governmental Entity, in connection with the authorization, execution and delivery of this Agreement; (ii) take all actions to obtain Agreement and make the Regulatory Approvals set forth in Section 3.4(b)(ii) consummation of the Parent Disclosure Letter as promptly as practicable after Transactions, (C) obtain all consents, approvals or waivers from, or take other actions with respect to, third parties necessary or advisable to be obtained or taken in connection with the date of this Agreement; Transactions, (iiiD) comply at the earliest practicable date with any request under or with respect to any applicable laws for additional information, documents or other materials received by Parent, its Subsidiaries or the Company from any Governmental Entity (including under any Foreign Competition Laws) in respect of such filings or such Transaction; and (iv) act in good faith and reasonably cooperate with the other Party in connection with any such applications or filings or the Transactions and (iii) use commercially reasonable efforts to coordinate and cooperate with, and give due consideration to all reasonable additions, deletions or changes suggested by the other party in connection with, making (x) any filing under or with respect to any applicable laws and (y) any filings, conferences or other submissions related to resolving any investigation or other inquiry of by any such agency or other Governmental Entity under any Entity. Each of the HSR ActCompany and Parent shall, and shall cause their respective affiliates to, furnish to the Foreign Competition Laws, the Xxxxxxx Act, the Xxxxxxx Act and any other Laws or Orders that are designed to prohibit, restrict or regulate actions having the purpose or effect of monopolization or restraint of trade (collectively, the “Antitrust Laws”) with respect to party all information necessary for any such filing or any such Transaction. To the extent not prohibited by applicable Law, the Parties shall use reasonable best efforts to furnish to each other all information required for any application or other filing to be made pursuant to any applicable Law in connection with the Transactions. Each Party Notwithstanding anything to the contrary herein, the Company shall give each not be required prior to the Effective Time to pay any consent fee, “profit sharing” payment or other reasonable prior notice consideration (including increased rent or other payments), or to provide any additional security (including a guaranty), to obtain the consent of any substantive communication withlessor, licensor or other party under any Contract and the Company shall not prior to the Effective Time commit to any proposed understandingconcession, undertaking waiver or agreement withamendment under any Contract or pay any consent fee, any Governmental Entity regarding any such filings “profit sharing” payment or any such Transaction. No Party shall independently participate in any meetingother consideration (including increased rent or other payments), or engage in to provide any substantive conversationadditional security (including a guaranty), with any Governmental Entity in respect to obtain the consent of any such filingslessor, investigation licensor or other inquiry party under any Contract without giving the other Parties prior notice written consent of the meeting or conversation and, unless prohibited by such any Governmental Entity, the opportunity to attend or participate. The Parties contemplate that as a general matter both Parent and GFI shall be represented at in-person meetings with any Governmental Entity. The Parties will consult and cooperate with one another in connection with any analyses, appearances, presentations, memoranda, briefs, arguments, opinions and proposals made or submitted by or on behalf of any Party in connection with proceedings under or relating to the HSR Act, the Foreign Competition Laws or other Antitrust LawsParent.
(b) Without limiting Each of the general Company and Parent shall, and shall cause their respective affiliates to, furnish to the other party all information necessary for any such application or other filing to be made in connection with the Transactions; provided, however, that material may be redacted (x) as necessary to comply with the obligations of Parent the Company pursuant to its Contracts, and GFI under Section 5.3(a(y) (Consents and Approvals), each of Parent and GFI shall use its reasonable best efforts as necessary to resolve such objections, if anyaddress attorney-client or other privileges or confidentiality concerns. Any party may, as may it deems advisable or necessary, reasonably designate any competitively sensitive material provided to any other party under this Agreement as “for outside counsel only” or “for special access only.” Such materials and information contained therein shall be asserted by any Governmental Entity with respect given only to the Transactions under outside legal counsel of the Antitrust Laws. In connection therewith recipient or other Persons agreed to in writing by the disclosing party and will be subject to Section 5.3(a) (Consents and Approvals), if any Proceeding is instituted (or threatened to be instituted) challenging any of such additional confidentiality restrictions as the Transactions as inconsistent with or violative of any Antitrust Law, each of Parent and GFI party disclosing such information shall cooperate and use its reasonable best efforts vigorously to contest and resist (by negotiation, litigation or otherwise) any such Proceeding and to have vacated, lifted, reversed or overturned any Order whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents, delays or restricts consummation of the Transactions, unless Parent reasonably and in good faith determines that litigation is not in its best interests. Notwithstanding the foregoing or any other provision of this Agreement, nothing in this Section 5.3(b) shall limit the right of a Party to terminate this Agreement pursuant to Section 7.1 (Termination), so long as such Party has until that time complied in all material respects with its obligations under this Section 5.3. Each of Parent and GFI shall use its reasonable best efforts to take such action as may be required to cause the expiration of the notice periods or to obtain the necessary approvals under the HSR Act, the Foreign Competition Laws or any other Antitrust Laws with respect to the Transactions as promptly as possible after the execution of this Agreementrequire.
(c) Notwithstanding anything Each of the parties shall give prompt notice to the contrary other parties hereto of any notice or other communications from any third party alleging that the consent of such third party is or may be required in this Agreementconnection with the Transactions, nothing in this Agreement and shall be deemed promptly notify the other parties of any pending or, to require Parent the Knowledge of such party, any threatened action, suit, arbitration or other proceeding or investigation by any Governmental Entity or any Parent Subsidiary to agree to or take any action that would result in any Burdensome Condition. None of GFI or any GFI Subsidiary shall agree to or take any action that would result in any Burdensome Condition without the prior written consent of Parent. For purposes of this Agreement, a “Burdensome Condition” shall mean making proposals, executing or carrying out agreements (including consent decrees) or submitting to Laws other Person (i) providing for challenging or seeking material damages in connection with the transfer, license, sale or other disposition or holding separate (through the establishment of a trust or otherwise) of any assets or categories of assets of Parent, GFI or any of their respective Subsidiaries or the holding separate (through the establishment of a trust or otherwise) of the Securities of any Parent Subsidiary or GFI Subsidiary Transactions or (ii) imposing or seeking to impose any limitation on restrain or prohibit the ability of Parent, GFI or any of their respective Subsidiaries to conduct their respective businesses (including with respect to market practices and structure) or own such assets or to acquire, hold or exercise full rights of ownership consummation of the business of GFI, the GFI Subsidiaries, Parent Transactions or the Parent Subsidiaries, in each case other than (x) with respect to Antitrust Laws, any such proposals, executing or carrying out agreements (including consent decrees) or submitting to Laws that would not impair otherwise limit in any material respect the expected benefits right of Parent, Purchaser or any affiliate of Parent and or Purchaser to own or operate all or any portion of the businesses or assets of the Company. The Company shall give Parent Subsidiaries from the reasonable opportunity to consult with the Company regarding the defense or settlement of any shareholder litigation relating to the Transactionsforegoing. Notwithstanding the foregoing, the Company shall not be required to provide any notice or (y) information to Parent the provision of which the Company in good faith determines will adversely affect the Company’s or any other Person’s attorney client or other privilege with respect to Regulatory Approvalssuch information.
(d) If any administrative or judicial action or proceeding is instituted or threatened to be instituted by a Governmental Entity challenging the Transactions as violative of law, each of the Company, Parent and Purchaser shall, and shall cause their respective affiliates to, cooperate and use their commercially reasonable efforts to contest and resist, except insofar as the Company, Parent and Purchaser otherwise may agree, any immaterial administrative such action or ministerial obligations proceeding, including any action or proceeding that seeks a temporary restraining order or preliminary injunction that would prohibit, prevent or restrict consummation of Parent or any Parent Subsidiarythe Transactions.
Appears in 2 contracts
Samples: Merger Agreement (Makemusic, Inc.), Merger Agreement
Consents and Approvals. (a) Subject Prior to the terms and conditions of this AgreementClosing, each of Parent and GFI the Company will use its use, and will cause their respective Subsidiaries to use, their respective reasonable best efforts to take, or cause to be taken, all actions actions, and to do, or cause to be done, all things necessary, proper or advisable under any applicable Law to consummate and make effective in the Transactionsmost expeditious manner possible the Merger and the other transactions contemplated by this Agreement, includingincluding (i) determining all necessary filings, notices, petitions, clearances, statements, registrations, submissions of information, applications and other documents to consummate the Merger and the other transactions contemplated by this Agreement (including from Governmental Authorities or third parties), (ii) preparing and filing as promptly as practicable all documentation to effect all necessary such filings, notices, petitions, statements, registrations, submissions of information, applications and other documents documents, (iii) the satisfaction of the conditions to consummating the transactions contemplated by this Agreement, (iv) taking actions necessary to obtain (and appropriate to cooperate with each other in obtaining) any consent, authorization, Order or approval of, or any exemption by, any Governmental Authority (which actions will include furnishing all information required under the HSR Act and other applicable Competition Laws and Foreign Investment Laws and in connection with (A) obtaining such approvals, authorizations, clearances, consents or exemptions under the HSR Act and such other applicable Competition Laws and Foreign Investment Laws for the jurisdictions set forth in Section 7.1(b) (collectively, “Antitrust Approvals”) or (B) filings with any Governmental Authority) required to be obtained or made by Parent, Merger Sub, the Company or any of their respective Subsidiaries or Affiliates in connection with the transactions contemplated by this Agreement or the taking of any action contemplated by this Agreement, and (v) the execution and delivery of any additional instruments necessary to consummate the Transactionstransactions contemplated by this Agreement and to fully carry out the purposes of this Agreement. Prior to the Closing, the Company will use, and will cause the Company Subsidiaries to use, reasonable best efforts to cooperate with Parent to obtain consents and waivers required from parties to Company Contracts that have not been obtained; provided that (i) none of the Company or the Company Subsidiaries will be required to make any payments, incur any liability or obligation, or offer or grant any accommodation (financial or otherwise) to any such third party in connection with obtaining any such consent or waiver and (ii) in no event will the failure to obtain any such consent or waiver in and of itself be a condition to any of the obligations of Parent or the Merger Sub to effect the Closing.
(b) In furtherance and not in limitation of the foregoing, each of Parent and GFI shall the Company will (i) make or prepare, or cause to be made or prepared, the documents, forms, filings or submissions required of such party Party under the Foreign HSR Act and any other applicable Competition Laws (including those and Foreign Investment Laws for the jurisdictions set forth in Section 3.4(b)(i7.1(b) of the Parent Company Disclosure Letter) Letter with respect to the Transactions transactions contemplated by this Agreement as promptly as practicable after the date of this Agreement; Agreement and in any event (iiA) take in the case of the HSR Act, within 15 Business Days after the date of this Agreement and (B) in the case of all actions to obtain and make the Regulatory Approvals other jurisdictions set forth in Section 3.4(b)(ii7.1(b) of the Parent Company Disclosure Letter as promptly as practicable Letter, within 30 Business Days after the date of this Agreement; , unless otherwise mutually agreed by the Parties, (ii) seek early termination of any applicable waiting periods, (iii) comply at the earliest practicable date with any request for additional information, documents or other materials (including a “second request” under the HSR Act) received by such Party from the United States Federal Trade Commission (the “FTC”), the Antitrust Division of the United States Department of Justice (the “DOJ”) or any other Governmental Authority under any Governmental Entity (including under any applicable Competition Laws or Foreign Competition Laws) in Investment Laws with respect of to such filings or such Transaction; transactions, and (iv) act in good faith and reasonably cooperate with the other Party in connection with any such filings and in connection with resolving any investigation or other inquiry of any such agency or other Governmental Entity Authority under any of the HSR Act, the Foreign Competition Laws, the Xxxxxxx Act, the Xxxxxxx Act and or any other applicable Competition Laws or Orders that are designed to prohibit, restrict or regulate actions having the purpose or effect of monopolization or restraint of trade (collectively, the “Antitrust Laws”) and Foreign Investment Laws with respect to any such filing or any such Transactiontransaction. The filing fees relating to any such filings under the HSR Act and any other Competition Laws will be paid by the Party required to pay such filing fees under applicable Law.
(c) Notwithstanding anything herein to the contrary, neither Parent nor the Company, without the other Party’s prior written consent (which consent will not be unreasonably withheld, conditioned or delayed), will (i) enter into any timing, settlement or similar agreement, or otherwise agree or commit to any arrangement, that would have the effect of extending, suspending, lengthening or otherwise tolling the expiration or termination of the waiting period applicable to the Merger under the HSR Act or (ii) enter into any timing or similar agreement, or otherwise agree or commit to any arrangement, that would bind or commit the Parties not to complete the Merger (or that would otherwise prevent or prohibit the Parties from completing the Merger). Neither Parent nor the Company will take or permit any of their respective Subsidiaries or Affiliates to take any action that would reasonably be expected to prevent, materially delay or materially impede the receipt of Antitrust Approvals.
(d) Parent will control all decisions and determinations with respect to the manner of satisfying all waiting periods under the HSR Act and other applicable Competition Laws and Foreign Investment Laws in connection with the transactions contemplated by this Agreement, subject to the obligations set forth in this Section 7.1, including to consult and cooperate with the Company. To the extent not prohibited by applicable Law, each of Parent and the Parties shall Company will use its reasonable best efforts to furnish to each the other Party all information required for any application or other filing to be made pursuant to any applicable Law in connection with the Transactionstransactions contemplated by this Agreement or any other written materials made to or received from any applicable Governmental Authority; provided that materials may be redacted (i) to remove references concerning the valuation of Parent, the Company or any of their Subsidiaries, (ii) as necessary to comply with contractual arrangements and (iii) as necessary to address reasonable privilege or confidentiality concerns. Each of Parent and the Company will (A) give the other Party shall give each other reasonable and prompt prior notice of any substantive communication with, and any proposed understanding, undertaking or agreement Contract with, any Governmental Entity Authority regarding any such filings or any such Transactiontransaction, (B) permit the other Party to review and discuss in advance, and consider in good faith the views of the other Party in connection with, any analyses, presentations, memoranda, briefs, written arguments, opinions, written proposals or other materials to be submitted to any Governmental Authority with respect to any such filings or other communications, and (C) keep the other Party informed as to the status of any request, inquiry, objection, charge or other action, actual or threatened, by or before any Governmental Authority with respect to the transactions contemplated by this Agreement. No Party shall Neither Parent nor the Company will independently participate in any substantive meeting, or engage in any substantive conversation, with any Governmental Entity Authority in respect of any such filings, investigation or other inquiry without giving the such other Parties Party prompt prior notice of the meeting or conversation and, unless prohibited by any such any Governmental EntityAuthority, the opportunity to attend or participateparticipate in such meeting or conversation. The Parties contemplate that as a general matter both Parent and GFI shall be represented at in-person meetings with any Governmental Entity. The Parties will consult and cooperate with one another in connection with any analyses, appearances, presentations, memoranda, briefs, arguments, opinions and proposals made or submitted by or on behalf of any Party in connection with proceedings under or relating to the HSR Act, the Foreign Competition Laws or other Antitrust Laws.
(b) Without limiting the general obligations Each of Parent and GFI under Section 5.3(a) (Consents and Approvals), each of Parent and GFI shall the Company will use its reasonable best efforts to resolve such objections, if any, as may be asserted by any Governmental Entity Authority with respect to the Transactions transactions contemplated by this Agreement under the Antitrust Laws. In connection therewith and subject to Section 5.3(a) (Consents and Approvals), if any Proceeding is instituted (or threatened to be instituted) challenging any of the Transactions as inconsistent with or violative of any Antitrust Law, each of Parent and GFI shall cooperate and use its reasonable best efforts vigorously to contest and resist (by negotiation, litigation or otherwise) any such Proceeding and to have vacated, lifted, reversed or overturned any Order whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents, delays or restricts consummation of the Transactions, unless Parent reasonably and in good faith determines that litigation is not in its best interests. Notwithstanding the foregoing HSR Act or any other provision of this Agreement, nothing in this Section 5.3(b) shall limit the right of a Party to terminate this Agreement pursuant to Section 7.1 (Termination), so long as such Party has until that time complied in all material respects with its obligations under this Section 5.3applicable Competition Laws or Foreign Investment Laws. Each of Parent and GFI shall the Company will use its reasonable best efforts to take such action as may be required to cause the expiration of the notice periods or to obtain the necessary approvals under the HSR Act, the Foreign Act or any other applicable Competition Laws or any other Antitrust Foreign Investment Laws with respect to the Transactions transactions contemplated by this Agreement as promptly as possible after the execution date of this Agreement.
. Without limiting the generality of any of the obligations in this Section 7.1 and subject to Section 7.1(e), (ci) Notwithstanding anything if any Proceeding is instituted (or threatened to be instituted) challenging any of the transactions contemplated by this Agreement as violative of the HSR Act or any Competition Laws or Foreign Investment Laws, each of Parent and the Company will, and will cause their respective Subsidiaries and Affiliates to, cooperate and use its reasonable best efforts to vigorously contest and resist any such Proceeding, and (ii) each of Parent and the Company will, and will cause their respective Subsidiaries and Affiliates to, cooperate and use its reasonable best efforts to avoid the entry of (or, if such is entered, to have vacated, lifted, reversed or overturned) any decree, judgment, injunction or other Order, whether temporary, preliminary or permanent, that prohibits, prevents, restricts or delays the consummation of the Merger or any of the other transactions contemplated by this Agreement, including by vigorously pursuing all available avenues of administrative and judicial appeal. Subject to Section 7.1(e), Parent will, and will cause its Affiliates to, defend through litigation on the merits any Proceeding by any Governmental Authority in order to avoid entry of, or to have vacated or terminated, any decree, Order or judgment (whether temporary, preliminary or permanent) that would prevent the Closing prior to the contrary in End Date. Notwithstanding the foregoing or any other provision of this Agreement, nothing in this Section 7.1 will limit the right of any Party to terminate this Agreement shall pursuant to Section 9.1, so long as such Party hereto has, up to the time of termination, complied in all respects with its obligations under this Section 7.1.
(e) Parent will, and will cause its Subsidiaries and Affiliates to, take all actions necessary to procure, as promptly as reasonably possible (and in any event no later than the End Date), any and all Antitrust Approvals that would, if not procured, otherwise have the effect of materially delaying or preventing the consummation of the transactions contemplated by this Agreement, including in accordance with the timing benchmarks set forth in Section 7.1(e) of the Company Disclosure Letter, (i) proposing, negotiating, committing to and effecting, by consent decree, hold separate order, or otherwise, the sale, divestiture or disposition of such businesses, product lines or assets of Parent and its respective Subsidiaries and Affiliates and (ii) otherwise taking or committing to take actions that, after the Closing Date, would limit Parent’s or its Subsidiaries’ or Affiliates’ freedom of action with respect to, or its or their ability to retain, one or more of the businesses, product lines or assets of Parent and its respective Subsidiaries or Affiliates, in each case as may be deemed required in order to require Parent avoid the entry of, or to effect the dissolution of, any preliminary or permanent injunction, in any Proceeding under the HSR Act or any other applicable Competition Law or Foreign Investment Law, which would otherwise have the effect of preventing the Closing, and in that regard, Parent Subsidiary to will agree to divest, sell, dispose of, hold separate, or otherwise take or commit to take any action that would result in limits its freedom of action with respect to, or Parent or Parent’s Subsidiaries’ or Affiliates’ ability to retain, any Burdensome Condition. None of GFI the businesses, product lines or any GFI Subsidiary shall agree to or take any action that would result in any Burdensome Condition without the prior written consent of Parent. For purposes of this Agreement, a “Burdensome Condition” shall mean making proposals, executing or carrying out agreements (including consent decrees) or submitting to Laws (i) providing for the transfer, license, sale or other disposition or holding separate (through the establishment of a trust or otherwise) of any assets or categories of assets of Parent, GFI Parent or any of their respective Subsidiaries or the holding separate (through the establishment of a trust or otherwise) of the Securities of any Parent Subsidiary or GFI Subsidiary or (ii) imposing or seeking to impose any limitation on the ability of Parent, GFI or any of their respective Subsidiaries to conduct their respective businesses (including with respect to market practices and structure) or own such assets or to acquire, hold or exercise full rights of ownership of the business of GFI, the GFI Subsidiaries, Parent or the Parent Subsidiaries, in each case other than (x) with respect to Antitrust Laws, any such proposals, executing or carrying out agreements (including consent decrees) or submitting to Laws that would not impair in any material respect the expected benefits of Parent and the Parent Subsidiaries from or relating to the Transactions, or (y) with respect to Regulatory Approvals, any immaterial administrative or ministerial obligations of Parent or any Parent SubsidiaryAffiliates.
Appears in 2 contracts
Samples: Merger Agreement (Gebr. Knauf Verwaltungsgesellschaft Kg), Agreement and Plan of Merger (Usg Corp)
Consents and Approvals. (a) Subject to Each Party shall, and shall cause its respective Subsidiaries and Affiliates to, prepare, as soon as is practical following the terms and conditions date of this Agreement, each of Parent and GFI 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 Law to consummate the Transactions, including, preparing and filing as promptly as practicable all documentation to effect all necessary filings, notices, petitions, statements, registrations, submissions of information, applications and other documents necessary and appropriate to consummate filings in connection with the Transactions. In furtherance and not in limitation of the foregoing, each of Parent and GFI shall (i) make or cause to transactions contemplated by this Agreement that may be made the filings required of such party under the Foreign Competition Laws (including those set forth in Section 3.4(b)(i) of HSR Act or any other federal, state or local laws prior to the Parent Disclosure Letter) Closing Date. Each Party shall, and shall cause its respective Subsidiaries and Affiliates to, submit the required filings as soon as practicable, but, with respect to filings under the Transactions as promptly as practicable HSR Act, in no event later than five (5) Business Days after the date of this Agreement; . Buyer and its Subsidiaries and Affiliates shall reasonably cooperate and consult with Seller and its Affiliates in such efforts, including the execution of, or consenting to, FPA section 203-related applications or submissions with FERC, including any inquiries from staff, which applications or submissions shall be made by Seller as soon as practicable, but in no event later than ten (ii10) take all actions to obtain and make the Regulatory Approvals set forth in Section 3.4(b)(ii) of the Parent Disclosure Letter as promptly as practicable Business Days after the date of this Agreement; (iii) comply at . The Parties shall, and shall cause their respective Subsidiaries and Affiliates to, request expedited treatment of any such filings, promptly make any appropriate or necessary subsequent or supplemental filings, and cooperate with one another in the earliest practicable date with any request under any Governmental Entity (including under any Foreign Competition Laws) in respect preparation of such filings or in such Transaction; manner as is reasonably necessary and (iv) act appropriate. The Parties shall consult with one another and shall agree in good faith upon the timing of such filings.
(b) Subject to applicable confidentiality restrictions or restrictions required by law, Buyer and reasonably cooperate with Seller will notify the other promptly upon the receipt by such Party or its Subsidiaries or Affiliates of (i) any comments or questions from any officials of any Governmental Authority in connection with any such filings made pursuant to this Section 6.4 or the transactions contemplated by this Agreement and in connection with resolving (ii) any investigation or other inquiry request by any officials of any such agency Governmental Authority for amendments or other supplements to any filings made pursuant to any laws of any Governmental Entity under Authority or answers to any questions, or the production of any documents, relating to an investigation of the HSR Acttransactions contemplated by this Agreement by any Governmental Authority. Whenever any event occurs that is required to be set forth in an amendment or supplement to any filing made pursuant to this Section 6.4, each Party shall promptly inform the Foreign Competition Lawsother Party of such occurrence and cooperate in filing promptly with the applicable Governmental Authority such amendment or supplement. Without limiting the generality of the foregoing, each Party shall provide to the Xxxxxxx Actother Party (or its advisors), the Xxxxxxx Act upon request, copies of all correspondence between such Party and any Governmental Authority relating to the transactions contemplated by this Agreement or the other Laws or Orders that are designed Transaction Documents. The Parties may, as they deem advisable and necessary, designate any competitively sensitive materials provided to prohibit, restrict or regulate actions having the purpose or effect others under this Section 6.4 as “outside counsel only.” Such materials and the information contained therein shall be given only to outside counsel of monopolization or restraint of trade (collectively, the “Antitrust Laws”) with respect recipient and shall not be disclosed by such outside counsel to any other Representatives of the recipient without the advance written consent of the Party providing such filing or any such Transactionmaterials. To In addition, to the extent not prohibited reasonably practicable, all discussions, telephone calls, and meetings with a Governmental Authority regarding the transactions contemplated by this Agreement shall include representatives of both Buyer and Seller. Subject to applicable Law, the Parties shall use reasonable best efforts to furnish to each other all information required for any application or other filing to be made pursuant to any applicable Law in connection with the Transactions. Each Party shall give each other reasonable prior notice of any substantive communication with, and any proposed understanding, undertaking or agreement with, any Governmental Entity regarding any such filings or any such Transaction. No Party shall independently participate in any meeting, or engage in any substantive conversation, with any Governmental Entity in respect of any such filings, investigation or other inquiry without giving the other Parties prior notice of the meeting or conversation and, unless prohibited by such any Governmental Entity, the opportunity to attend or participate. The Parties contemplate that as a general matter both Parent and GFI shall be represented at in-person meetings with any Governmental Entity. The Parties will consult and cooperate with one another each other in connection with any analyses, appearances, presentations, memoranda, briefs, arguments, opinions and proposals made or submitted to any Governmental Authority regarding the transactions contemplated by this Agreement or the other Transaction Documents by or on behalf of any Party in connection with proceedings under or relating to the HSR Act, the Foreign Competition Laws or other Antitrust LawsParty.
(bc) Without limiting Subject to Section 6.4(c) of the general obligations of Parent Seller Disclosure Schedule, Each Party shall, and GFI under Section 5.3(a) (Consents shall cause its respective Subsidiaries and Approvals)Affiliates to, each of Parent and GFI shall use its promptly use, in order to consummate the transactions contemplated by this Agreement, all commercially reasonable best efforts to resolve such objections, if any(i) obtain, as may be soon as practicable, but in any event prior to the Termination Date, all Consents of, or other permission or action by, and to give all notices to and make all filings with and applications and submissions to, Governmental Authorities or other Persons as are necessary for consummation of the transactions contemplated by this Agreement, (ii) secure the expiration or termination of any applicable waiting period from a Governmental Authority, (iii) defend all Actions challenging this Agreement or the other Transaction Documents or the consummation of the transactions contemplated hereby or thereby and (iv) resolve any objections asserted by any Governmental Entity with respect to the Transactions under transactions contemplated by this Agreement and the Antitrust Laws. In connection therewith other Transaction Documents raised by any Governmental Authority, and subject to Section 5.3(a) (Consents and Approvals), if any Proceeding is instituted (or threatened to be instituted) challenging any of prevent the Transactions as inconsistent with or violative entry of any Antitrust Law, each of Parent and GFI shall cooperate and use its reasonable best efforts vigorously to contest and resist (by negotiation, litigation or otherwise) any such Proceeding court order and to have vacated, lifted, reversed or overturned any Order whether temporarydecree, judgment, permanent or preliminary injunction, restraining order or permanentother order of the type referred to in Section 7.1(a), including executing settlements, undertakings, consent decrees, stipulations, or other agreements with any Governmental Authority or other applicable Person; provided, however, that is in effect and that prohibits, prevents, delays neither Party nor any of its Subsidiaries or restricts consummation of the Transactions, unless Parent reasonably and in good faith determines that litigation is not in its best interests. Notwithstanding the foregoing or any other provision of this Agreement, nothing in this Section 5.3(b) Affiliates shall limit the right of a Party to terminate this Agreement pursuant to Section 7.1 (Termination), so long as such Party has until that time complied in all material respects with its obligations under this Section 5.3. Each of Parent and GFI shall use its reasonable best efforts to take such action as may be required to cause the expiration of the notice periods (A) sell, divest, or to obtain the necessary approvals under the HSR Act, the Foreign Competition Laws or any other Antitrust Laws with respect to the Transactions as promptly as possible after the execution of this Agreement.
(c) Notwithstanding anything to the contrary in this Agreement, nothing in this Agreement shall be deemed to require Parent or any Parent Subsidiary to agree to or take any action that would result in any Burdensome Condition. None of GFI or any GFI Subsidiary shall agree to or take any action that would result in any Burdensome Condition without the prior written consent of Parent. For purposes of this Agreement, a “Burdensome Condition” shall mean making proposals, executing or carrying out agreements (including consent decrees) or submitting to Laws (i) providing for the transfer, license, sale or other disposition or holding separate (through the establishment of a trust or otherwise) of any otherwise convey particular assets or categories of assets or businesses prior to, concurrently with or subsequent to the Closing (B) agree to sell, divest or otherwise convey any particular assets or categories of Parentassets or businesses contemporaneously with or subsequent to the Closing, GFI or any of their respective Subsidiaries or the holding separate (through the establishment of a trust or otherwiseC) of the Securities of any Parent Subsidiary or GFI Subsidiary or (ii) imposing or seeking agree to impose any limitation on the ability of Parent, GFI operation or any conduct of their respective businesses or (D) permit Seller to sell, divest, or otherwise convey any particular assets or categories of assets or businesses of the Company Entities prior to the Closing. Each Party shall, and shall cause its respective Subsidiaries and Affiliates to, respond to conduct their respective businesses (including and exercise commercially reasonable efforts to resolve as promptly as reasonably practicable any objections asserted by any Governmental Authority or other Person with respect to market practices and structure) or own such assets or to acquire, hold or exercise full rights of ownership of the business of GFI, the GFI Subsidiaries, Parent transactions contemplated by this Agreement or the Parent Subsidiariesother Transaction Documents, and shall, and cooperate in each case good faith with the other than (x) with respect to Antitrust Laws, any such proposals, executing or carrying out agreements (including consent decrees) or submitting to Laws that would not impair Party in any material respect the expected benefits of Parent and the Parent Subsidiaries from or relating to the Transactions, or (y) with respect to Regulatory Approvals, any immaterial administrative or ministerial obligations of Parent or any Parent Subsidiarythis respect.
Appears in 2 contracts
Samples: Purchase and Sale Agreement (Consolidated Edison Co of New York Inc), Purchase and Sale Agreement (Sempra Energy)
Consents and Approvals. (a) Subject to Each of Parent, Merger Sub and the terms and conditions of this Agreement, each of Parent and GFI will Company shall use its commercially reasonable best efforts to (i) take, or cause to be taken, all actions appropriate action, and to do, or cause to be done, all things necessary, proper or advisable under applicable any Applicable Law or otherwise to consummate and make effective the Transactions as promptly as practicable, but in no event later than the End Date, (ii) obtain from any Governmental Authority any consents, licenses, permits, waivers, clearances, approvals, authorizations or orders required to be obtained or made by Parent, Merger Sub or the Company or any of their respective Subsidiaries, or avoid any action or proceeding by any Governmental Authority (including those in connection with the HSR Act and any other Antitrust Laws, Applicable Law, or regulation) (the “Required Governmental Approvals”), in connection with the authorization, execution and delivery of this Agreement and the consummation of the Transactions, including, preparing and filing as promptly as practicable all documentation to effect all necessary filings, notices, petitions, statements, registrations, submissions of information, applications and other documents necessary and appropriate to consummate the Transactions. In furtherance and not in limitation of the foregoing, each of Parent and GFI shall (iiii) make or cause to be made the filings required within ten (10) Business Days of such party under the Foreign Competition Laws (including those set forth in Section 3.4(b)(i) of the Parent Disclosure Letter) with respect to the Transactions as promptly as practicable after the date of this Agreement; (ii) take all actions , an appropriate filing of a Notification and Report Form pursuant to obtain the HSR Act, and make the Regulatory Approvals set forth in Section 3.4(b)(ii) of the Parent Disclosure Letter as promptly as practicable after make the date appropriate applications or filings required to be made by each party with any other Governmental Authority to obtain any other applicable Required Governmental Approvals (which filings and submissions shall seek early termination if made pursuant to the HSR Act and the equivalent, if available, with respect to any such other Antitrust Laws or Applicable Laws) in connection with the authorization, execution and delivery of this Agreement; Agreement and the consummation of the Transactions, (iiiiv) comply at the earliest reasonably practicable date with any request under reasonable requests for information, documents, other materials, or witnesses for interviews or depositions (or the like) by any Governmental Entity (including under any Foreign Competition Laws) Authority in respect of connection with such applications or filings or such Transaction; the Transactions, and (ivv) act cooperate fully with each other in good faith and reasonably cooperate connection with the making of all such filing, responses or submissions, including consulting with the other Party in connection parties to this Agreement with respect to and providing any such filings necessary information and in connection with resolving any investigation or assistance as the other inquiry of any such agency or other Governmental Entity under any of the HSR Act, the Foreign Competition Laws, the Xxxxxxx Act, the Xxxxxxx Act and any other Laws or Orders that are designed to prohibit, restrict or regulate actions having the purpose or effect of monopolization or restraint of trade (collectively, the “Antitrust Laws”) parties may reasonably request with respect to any such filing filings, responses, or submissions. Parent and the Company shall not (1) elect or agree to extend any waiting period (e.g., pull and refile) under the HSR Act or any other Antitrust Laws without the prior written consent of the other party (such Transaction. consent not to be unreasonably withheld, conditioned or delayed, or (2) enter into any agreement (e.g., timing agreement) with any Governmental Authority not to consummate the Transactions, without the prior written consent of the other party (such consent not to be unreasonably withheld, conditioned, or delayed).
(b) To the extent not prohibited permitted by applicable Applicable Law, the Parties shall use reasonable best efforts to furnish to each other all information required for any application or other filing to be made pursuant to any applicable Law in connection with the Transactions. Each Party shall give each other reasonable prior notice of any substantive communication with, and any proposed understanding, undertaking or agreement with, any Governmental Entity regarding any such filings or any such Transaction. No Party shall independently participate in any meeting, or engage in any substantive conversation, with any Governmental Entity in respect of any such filings, investigation or other inquiry without giving the other Parties prior notice of the meeting or conversation and, unless prohibited by such any Governmental Entity, the opportunity to attend or participate. The Parties contemplate that as a general matter both Parent and GFI parties shall be represented at in-person meetings with any Governmental Entity. The Parties will consult and cooperate with one another another, and consider in connection good faith the views of one another, in connections with any analyses, appearances, presentations, memoranda, briefs, arguments, opinions and proposals opinions, proposals, or agreements made or submitted by or on behalf of any Party party hereto in connection with the proceedings under or relating to the HSR Act, the Foreign Competition Laws Act or any other Antitrust Laws.
. Each of the parties shall, in connection with the Transactions, with respect to actions taken on or after the date of this Agreement, without limitation: (bi) Without limiting promptly notify the general obligations other of, and if in writing, furnish the other with copies of Parent and GFI under Section 5.3(a) (Consents and Approvals), each of Parent and GFI shall use its reasonable best efforts to resolve such objections, if any, as may be asserted by any communications from or with any Governmental Entity Authority with respect to the Transactions in connection with the proceedings under or relating to the HSR Act or any other Antitrust Laws; (ii) permit the other to review and discuss in advance, and consider in good faith the view of the other in connection with, any proposed written or oral communication with any Governmental Authority in connection with the proceedings under or relating to the HSR Act or any other Antitrust Laws; (iii) not participate in any substantive meeting or have any substantive communication with any Governmental Authority in connection with the proceedings under or relating to the HSR Act or any other Antitrust Laws unless it has given the other party a reasonable opportunity to consult with it in advance and, to the extent permitted by such Governmental Authority, gives the other the opportunity to attend and participate therein; and (iv) furnish the other party (or its outside legal counsel) with copies of all filings and communications between it and any such Governmental Authority with respect to the Transactions in connection with the proceedings under or relating to the HSR Act or any other Antitrust Laws (with the exception that no party shall be required to provide its premerger notification and report filing under the HSR Act to any other party); provided, however, that such material may be redacted as necessary to (A) comply with contractual arrangements; (B) address legal privilege or confidentiality concerns; and (C) remove references concerning the valuation, the parties or the Transactions. Notwithstanding anything in this Agreement to the contrary, any competitively sensitive materials required to be provided to any other party pursuant to this Section 6.11(b) may be provided on an outside counsel only basis and may not be disclosed by such outside counsel to any other Representatives of the receiving party without the prior written consent of the providing party.
(c) For the avoidance of doubt and notwithstanding anything to the contrary contained in this Agreement, Parent and the Company and the Company Subsidiaries and Affiliates shall use commercially reasonable efforts to avoid or eliminate each and every impediment and any proceeding instituted or threatened by a Governmental Authority or private party under the HSR Act or any other Antitrust Laws. In connection therewith Laws that is asserted with respect to this Agreement so as to enable the consummation of such Transactions to occur as expeditiously as possible and, in any event, five (5) Business Days before the End Date, including, using commercially reasonable efforts to (i) contest and subject resist any Action challenging the Transactions, (ii) avoid the entry of and have vacated, lifted, reversed or overturned any Order that would prevent, restrict or materially delay the consummation of the Transactions and (iii) consider in good faith any proposed settlement, undertaking, consent decree, stipulation or other agreement with any Governmental Authority or other Person that may be required to obtain a Required Governmental Approval; provided, however, that notwithstanding anything in this Agreement to the contrary, no party nor any of its respective Affiliates nor any Novacap Party will be required, either pursuant to this Section 5.3(a6.11 or otherwise, to (and, without such party’s prior written consent, Parent and the Company will not) (Consents A) negotiate, commit to or effect, by consent decree, hold separate order or otherwise, the sale, lease, license, divestiture or disposition of any assets, rights, product lines or businesses of such party or any of its respective Affiliates or any Novacap Party, (B) terminate any existing relationships, contractual rights or obligations of such party or any of its respective Affiliates or any Novacap Party, (C) terminate any joint venture or other arrangement, (D) create any relationship, contractual rights or obligations of such party or any of its respective Affiliates or any Novacap Party, (E) effectuate any other change or restructuring of such party or any of its respective Affiliates or any Novacap Party, or (F) otherwise take or commit to take any actions, including agreeing to prior approval restrictions, with respect to the businesses, product lines or assets of such party or any of its respective Affiliates or any Novacap Party. Further, neither party is required to respond to a Request for Additional Information and Approvals)Documentary Materials under the HSR Act.
(d) In furtherance and not in limitation of the covenants of the parties contained in this Section 6.11, if any Proceeding administrative or judicial action or proceeding, including any proceeding by a private party, is instituted (or threatened to be instituted) challenging any of the Transactions transaction contemplated by this Agreement as inconsistent with or violative of any Antitrust LawLaws (including the HSR Act), each of Parent and GFI the Company shall cooperate and use its their respective commercially reasonable best efforts vigorously to contest and resist (by negotiation, litigation or otherwise) any such Proceeding action or proceeding and to have vacated, lifted, reversed or overturned any Order decree, judgment, injunction or other order, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents, delays prevents or restricts consummation of the Transactions, unless provided, however, that Parent reasonably and in good faith determines that litigation is not in its best interests. Notwithstanding the foregoing or any other provision of this Agreement, nothing in this Section 5.3(b) Novacap Party shall limit the right of a Party to terminate this Agreement pursuant to Section 7.1 (Termination), so long as such Party has until that time complied in all material respects with its obligations under this Section 5.3. Each of Parent and GFI shall use its reasonable best efforts to take such action as may not be required to cause the expiration litigate or defend against any administrative action or proceeding (including any proceeding seeking a temporary restraining order or preliminary injunction) challenging any of the notice periods or transactions contemplated by this Agreement as violative of any applicable Antitrust Laws. For the avoidance of doubt, prior to obtain the necessary approvals receipt of any Request for Additional Information and Documentary Materials under the HSR Act, Parent and the Foreign Competition Laws Company shall use commercially reasonable efforts to comply at the earliest practicable date with any reasonable requests from the Federal trade Commission or Department of Justice for information, documents, other materials, for the purpose of obtaining the Required Governmental Approvals related to the Antitrust Laws.
(e) Except as specifically required by this Agreement, Parent, Merger Sub, and the Company shall not, and Parent shall cause its Affiliates not to, knowingly take any action, or knowingly refrain from taking any action, the effect of which would be to delay or impede the ability of the parties to consummate the Transactions. Without limiting the generality of the forgoing, Parent and the Company shall not, and shall not permit any of their respective Affiliates to, acquire or agree to acquire (by merging or consolidating with, or by purchasing a substantial portion of the assets of or equity in, or by any other manner), any Person or portion thereof, or otherwise acquire or agree to acquire any assets, if the entering into of a definitive agreement relating to, or the consummation of, such acquisition, merger or consolidation could reasonably be expected to (i) impose any delay in the obtaining of, or increase the risk of not obtaining, any authorizations, consents, orders, declarations or approvals of any Governmental Authority necessary to consummate the Transactions or the expiration or termination of any applicable waiting period, (ii) increase the risk of any Governmental Authority entering an order prohibiting or delaying the consummation of the Transactions or (iii) delay the consummation of the Transactions.
(f) The Company and Parent shall give (and Parent shall cause its Subsidiaries to give) any notices to third parties, and use (and Parent shall cause its Subsidiaries to use) commercially reasonable efforts to obtain any third-party consents necessary to consummate the Transactions, or required in connection with the Transactions under any Material Contract, or set forth in the Company Disclosure Schedule.
(g) Parent shall vote (or act by written consent with respect to) all of the shares of capital stock of Merger Sub beneficially owned by it or any other of its Subsidiaries or Affiliates in favor of the adoption of this Agreement in accordance with Applicable Law.
(h) Neither Parent, nor Merger Sub, nor the Company shall, nor shall they permit their respective Subsidiaries to, acquire or agree to acquire any rights, assets, business, Person or division thereof (through acquisition, license, joint venture, collaboration or otherwise), if such acquisition, would reasonably be expected to increase the risk of not obtaining any applicable clearance, consent, approval or waiver under Antitrust Laws with respect to the Transactions as promptly as possible after the execution of this Agreement.
(c) Notwithstanding anything to the contrary in this Agreement, nothing in this Agreement shall be deemed to require Parent or any Parent Subsidiary to agree to or take any action that would result in any Burdensome Condition. None of GFI or any GFI Subsidiary shall agree to or take any action that would result in any Burdensome Condition without the prior written consent of Parent. For purposes of this Agreement, a “Burdensome Condition” shall mean making proposals, executing or carrying out agreements (including consent decrees) or submitting to Laws (i) providing for the transfer, license, sale or other disposition or holding separate (through the establishment of a trust or otherwise) of any assets or categories of assets of Parent, GFI or any of their respective Subsidiaries Merger or the holding separate (through the establishment of a trust or otherwise) of the Securities of any Parent Subsidiary or GFI Subsidiary or (ii) imposing or seeking to impose any limitation on the ability of Parent, GFI or any of their respective Subsidiaries to conduct their respective businesses (including with respect to market practices and structure) or own such assets or to acquire, hold or exercise full rights of ownership of the business of GFI, the GFI Subsidiaries, Parent or the Parent Subsidiaries, in each case other than (x) with respect to Antitrust Laws, any such proposals, executing or carrying out agreements (including consent decrees) or submitting to Laws that would not impair in any material respect the expected benefits of Parent and the Parent Subsidiaries from or relating to the Transactions, or (y) with respect to Regulatory Approvals, any immaterial administrative or ministerial obligations of Parent or any Parent Subsidiary.
Appears in 2 contracts
Samples: Merger Agreement (AdTheorent Holding Company, Inc.), Merger Agreement (AdTheorent Holding Company, Inc.)
Consents and Approvals. (a) Subject to From the terms and conditions date of this AgreementAgreement until the Closing, Parent shall, and shall cause each of Parent and GFI will Seller to, use its all reasonable best efforts to takeobtain all consents, approvals, certificates and other documents required in connection with the performance of this Agreement and the Related Agreements and the consummation of the transactions contemplated hereby and thereby, including all consents and approvals set forth on Schedule 5.3 (and Purchaser shall cooperate with Sellers and Parent in obtaining all such consents, approvals, certificates and other documents); provided, that no contact will be made by any Subject Entity (or any Representative thereof) with any third party to obtain any such consent or approval except in accordance with a plan previously agreed to in writing by Purchaser. Parent shall promptly make or cause to be takenmade all filings, applications, statements and reports to all actions Governmental Authorities and other Persons that are required to dobe made prior to the Closing by or on behalf of any Subject Entity, or cause any of their respective Affiliates pursuant to be done, all things necessary, proper or advisable under any applicable Law to consummate or Contract in connection with this Agreement, the TransactionsRelated Agreements and the transactions contemplated hereby and thereby, including, preparing and filing as promptly as practicable including all documentation to effect all necessary filings, noticesapplications, petitionsstatements and reports set forth on Schedule 5.3 (and Purchaser shall cooperate with Sellers and Parent in making all such filings, statementsapplications, registrationsstatements and reports). Parent shall be obligated to pay any and all fees and other payments that are required in order to obtain or make (i) all consents, submissions of informationapprovals, applications certificates and other documents necessary and appropriate (ii) all filings, applications, statements and reports, in the case of each of clauses (i) and (ii), that are required to consummate be obtained or made by Sellers or Parent in connection with the Transactionsperformance of this Agreement and the Related Agreements and the consummation of the transactions contemplated hereby and thereby. In furtherance and not in limitation of the foregoingthis Section 7.4(a), each of Parent party hereto agrees to make the appropriate HSR Act filings and GFI shall (i) make filings with the European Commission or cause other relevant jurisdiction for regulatory or governmental clearance or approval required prior to be made Closing under any competition, antitrust, control or other similar Law. Notwithstanding the filings required of such party under preceding sentences, the Foreign Competition Laws (including those set forth in Section 3.4(b)(i) parties hereto agree and acknowledge that Purchaser is responsible for payment of the Parent Disclosure Letter) with respect to filing fees required by the Transactions as promptly as practicable after HSR Act or by the date of this Agreement; (ii) take all actions to obtain and make the Regulatory Approvals set forth in Section 3.4(b)(ii) of the Parent Disclosure Letter as promptly as practicable after the date of this Agreement; (iii) comply at the earliest practicable date with any request European Commission or other jurisdiction under any Governmental Entity (including under any Foreign Competition Laws) in respect of such filings competition, antitrust, control or such Transaction; and (iv) act in good faith and reasonably cooperate with the other Party in connection with any such filings and in connection with resolving any investigation or other inquiry of any such agency or other Governmental Entity under any of the HSR Act, the Foreign Competition Laws, the Xxxxxxx Act, the Xxxxxxx Act and any other Laws or Orders that are designed to prohibit, restrict or regulate actions having the purpose or effect of monopolization or restraint of trade (collectively, the “Antitrust Laws”) with respect to any such filing or any such Transaction. To the extent not prohibited by applicable Law, the Parties shall use reasonable best efforts to furnish to each other all information required for any application or other filing to be made pursuant to any applicable similar Law in connection with the Transactions. Each Party shall give each other reasonable prior notice of any substantive communication with, filings to be made by Purchaser and any proposed understanding, undertaking or agreement with, any Governmental Entity regarding any such filings or any such Transaction. No Party shall independently participate in any meeting, or engage in any substantive conversation, with any Governmental Entity in respect of any such filings, investigation or other inquiry without giving the other Parties prior notice of the meeting or conversation and, unless prohibited by such any Governmental Entity, the opportunity to attend or participate. The Parties contemplate that as a general matter both Parent and GFI shall be represented at in-person meetings with any Governmental Entity. The Parties will consult and cooperate with one another in connection with any analyses, appearances, presentations, memoranda, briefs, arguments, opinions and proposals made or submitted by or on behalf of any Party in connection with proceedings under or relating to the HSR Act, the Foreign Competition Laws or other Antitrust LawsSellers thereunder.
(b) Without limiting the general obligations generality of Parent and GFI under Section 5.3(a) (Consents and Approvals), each of Parent and GFI shall use its reasonable best efforts to resolve such objections, if any, as may be asserted by any Governmental Entity with respect to the Transactions under the Antitrust Laws. In connection therewith and subject to Section 5.3(a) (Consents and Approvals7.4(a), if a consent or approval is required by any Proceeding party under any Assumed Contract or Assumed License and is instituted (not obtained on or threatened to be instituted) challenging any of before the Transactions as inconsistent with Closing or violative of any Antitrust Lawif an attempted assignment is ineffective, each of Parent and GFI the Subject Entities shall cooperate with Purchaser at Sellers’ and use its Parent’s expense in any commercially reasonable best efforts vigorously arrangement requested by Purchaser to contest and resist (by negotiation, litigation or otherwise) provide for Purchaser the benefits under any such Proceeding and to have vacated, lifted, reversed Contract or overturned any Order whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents, delays or restricts consummation of the Transactions, unless Parent reasonably and in good faith determines that litigation is not in its best interests. Notwithstanding the foregoing or any other provision of this Agreement, nothing in this Section 5.3(b) shall limit the right of a Party to terminate this Agreement pursuant to Section 7.1 (Termination), so long as such Party has until that time complied in all material respects with its obligations under this Section 5.3. Each of Parent and GFI shall use its reasonable best efforts to take such action as may be required to cause the expiration of the notice periods or to obtain the necessary approvals under the HSR Act, the Foreign Competition Laws or any other Antitrust Laws with respect to the Transactions as promptly as possible after the execution of this AgreementLicense.
(c) Notwithstanding anything Purchaser shall promptly make all filings, applications, statements and reports to all Governmental Authorities and other Persons that are required to be made prior to the contrary Closing by or on behalf of Purchaser or any of its Affiliates pursuant to any applicable Law or Contract in connection with this Agreement, nothing in this Agreement the Related Agreements and the transactions contemplated hereby and thereby (and Sellers shall be deemed to require Parent or any Parent Subsidiary to agree to or take any action that would result in any Burdensome Condition. None of GFI or any GFI Subsidiary cooperate, and shall agree to or take any action that would result in any Burdensome Condition without cause the prior written consent of Parent. For purposes of this Agreement, a “Burdensome Condition” shall mean making proposals, executing or carrying out agreements (including consent decrees) or submitting to Laws (i) providing for Acquired Corporations and the transfer, license, sale or other disposition or holding separate (through the establishment of a trust or otherwise) of any assets or categories of assets of Parent, GFI or any of their respective Subsidiaries or the holding separate (through the establishment of a trust or otherwise) of the Securities of any Parent Subsidiary or GFI Subsidiary or (ii) imposing or seeking to impose any limitation on the ability of Parent, GFI or any of their respective Acquired Corporation Subsidiaries to conduct their respective businesses (including cooperate, with respect to market practices Purchaser in making all such filings, applications, statements and structure) or own such assets or to acquire, hold or exercise full rights of ownership of the business of GFI, the GFI Subsidiaries, Parent or the Parent Subsidiaries, in each case other than (x) with respect to Antitrust Laws, any such proposals, executing or carrying out agreements (including consent decrees) or submitting to Laws that would not impair in any material respect the expected benefits of Parent and the Parent Subsidiaries from or relating to the Transactions, or (y) with respect to Regulatory Approvals, any immaterial administrative or ministerial obligations of Parent or any Parent Subsidiaryreports).
Appears in 2 contracts
Samples: Purchase and Sale Agreement (Refco Group Ltd., LLC), Purchase and Sale Agreement (Refco Inc.)
Consents and Approvals. (a) Subject to Upon the terms and subject to the conditions of this Agreement, each of Parent Seller and GFI Purchaser will cooperate and use its commercially reasonable best efforts to takefulfill the conditions precedent to the other parties' obligations under this Agreement, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under applicable Law to consummate the Transactions, including, preparing and filing including securing as promptly as practicable all documentation Required Consents; provided, that Seller shall not be required to effect all necessary filings, notices, petitions, statements, registrations, submissions make any payment to any third party to secure any such Required Consents and Purchaser shall not be required to agree to any significant amendment to or modification of information, applications and other documents necessary and appropriate to consummate the Transactionsany Scheduled Contract or any Permit. In furtherance and not in limitation of Without limiting the foregoing, each of Parent and GFI the parties to this Agreement shall cooperate with one another: (i) make or cause to be made in the prompt preparation and filing of any filings required of such party under the Foreign Competition Laws HSR Act (including those set forth in Section 3.4(b)(i) of the Parent Disclosure Letter) with respect to the Transactions as promptly as practicable which filing shall occur no later than 10 days after the date of this Agreement), if any, and any other required filings with any Governmental Authority, and the parties shall cooperate with each other in connection with the making of all such filings, including providing copies of all such documents to the non-filing party and its advisors prior to filing and, if requested, to accept all reasonable additions, deletions or changes suggested in connection therewith; (ii) take all actions to obtain and make the Regulatory Approvals set forth in Section 3.4(b)(ii) of the Parent Disclosure Letter as promptly as practicable after the date of this Agreement; (iii) comply at the earliest practicable date with any request under determining whether action by or in respect of, or filing with, any Governmental Entity (including under Authority is required, proper or advisable or any Foreign Competition Laws) in respect of such filings actions or such Transaction; and (iv) act in good faith and reasonably cooperate with the other Party in connection with any such filings and in connection with resolving any investigation or other inquiry of any such agency or other Governmental Entity under any of the HSR Act, the Foreign Competition Laws, the Xxxxxxx Act, the Xxxxxxx Act and any other Laws or Orders that Consents are designed required to prohibit, restrict or regulate actions having the purpose or effect of monopolization or restraint of trade (collectively, the “Antitrust Laws”) with respect be obtained from parties to any such filing or any such Transaction. To the extent not prohibited by applicable LawContracts, the Parties shall use reasonable best efforts to furnish to each other all information required for any application or other filing to be made pursuant to any applicable Law in connection with the Contemplated Transactions. Each Party shall give each other reasonable prior notice of any substantive communication with, ; and any proposed understanding, undertaking or agreement with, any Governmental Entity regarding (iii) in seeking timely to obtain any such filings actions or any such Transaction. No Party shall independently participate in any meeting, Consents or engage in any substantive conversation, with any Governmental Entity in respect of to make any such filings, investigation . In case at any time after the Closing any further action is necessary or other inquiry without giving desirable to carry out the other Parties prior notice purposes of the meeting or conversation and, unless prohibited by such any Governmental Entitythis Agreement, the opportunity proper officers and directors of each party to attend or participate. The Parties contemplate that as a general matter both Parent and GFI this Agreement shall be represented at in-person meetings with any Governmental Entity. The Parties will consult and cooperate with one another in connection with any analyses, appearances, presentations, memoranda, briefs, arguments, opinions and proposals made or submitted by or on behalf of any Party in connection with proceedings under or relating take all such necessary action according to the HSR Act, the Foreign Competition Laws or other Antitrust LawsSection 10.02.
(b) Without limiting Seller and Purchaser agree to use their commercially reasonable efforts (including, without limitation, the general obligations of Parent and GFI under actions specified in this Section 5.3(a5.03(b)) (Consents and Approvals), each of Parent and GFI shall use its reasonable best efforts to resolve such objections, if any, as may be asserted by any Governmental Entity with respect to the Contemplated Transactions under the Antitrust Laws. In connection therewith and subject to Section 5.3(a) (Consents and Approvals), if any Proceeding is instituted (or threatened to be instituted) challenging any of the Transactions as inconsistent with or violative of any Antitrust Law, each of Parent and GFI shall cooperate and use its reasonable best efforts vigorously to contest and resist (by negotiation, litigation or otherwise) any such Proceeding and to have vacated, lifted, reversed or overturned any Order whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents, delays or restricts consummation of the Transactions, unless Parent reasonably and in good faith determines that litigation is not in its best interests. Notwithstanding the foregoing HSR Act or any other provision antitrust Law. In furtherance and not in limitation of this Agreementthe foregoing, nothing in this Section 5.3(b) shall limit the right of a Party to terminate this Agreement pursuant to Section 7.1 (Termination), so long as such Party has until that time complied in all material respects with its obligations under this Section 5.3. Each of Parent and GFI shall use its reasonable best efforts Purchaser agrees to take such commercially reasonable action as may be required to cause by any domestic court or similar tribunal in any suit brought or threatened by a Governmental Authority or brought or threatened by a private party challenging the expiration Contemplated Transactions contemplated hereby as violative of the notice periods or to obtain the necessary approvals under the HSR Act, the Foreign Competition Laws Act or any other Antitrust Laws with respect antitrust Law to avoid the Transactions as promptly as possible after entry of, or to effect the execution dissolution, modification or suspension of, any injunction, temporary restraining order or other Order that has the effect of this Agreementpreventing or delaying the consummation of the Contemplated Transaction (including the appeal thereof, provided, that, Purchaser shall not be required to post any bond); provided, that, Purchaser shall not be required to sell or otherwise dispose of, or hold separate and agree to sell or otherwise dispose of any Assets or businesses of the Acquired Company and the Subsidiaries.
(c) Notwithstanding anything All filing fees required in connection with any filings under the HSR Act or with any other Governmental Authority shall be borne by Purchaser. All other fees, expenses and disbursements incurred in connection with the matters referred to in this Section 5.03 hereof shall be borne by Purchaser if incurred by or on its behalf and by Seller if incurred by or on behalf of Seller, the Acquired Company or any Subsidiary.
(d) If the Acquired Company or any Subsidiary has not obtained by Closing any of the Required Consents in connection with a direct or indirect change in ownership resulting from the Contemplated Transactions, then, to the contrary in this Agreementextent reasonably practicable (and without material cost or liability to Seller), nothing in this Agreement the parties shall use commercially reasonable efforts to enter into an alternative, lawful arrangement under which Purchaser shall have the benefit from and after Closing of such Contract or Permit for which the Required Consent was not able to be deemed obtained prior to require Parent or any Parent Subsidiary to agree to or take any action that would result in any Burdensome Condition. None of GFI or any GFI Subsidiary shall agree to or take any action that would result in any Burdensome Condition without the prior written consent of ParentClosing. For purposes the avoidance of doubt, the provisions of this Agreement, a “Burdensome Condition” Section 5.03(d) shall mean making proposals, executing or carrying out agreements (including consent decrees) or submitting to Laws (i) providing for not supersede the transfer, license, sale or other disposition or holding separate (through the establishment provisions of a trust or otherwise) of any assets or categories of assets of Parent, GFI or any of their respective Subsidiaries or the holding separate (through the establishment of a trust or otherwise) of the Securities of any Parent Subsidiary or GFI Subsidiary or (ii) imposing or seeking to impose any limitation on the ability of Parent, GFI or any of their respective Subsidiaries to conduct their respective businesses (including with respect to market practices and structure) or own such assets or to acquire, hold or exercise full rights of ownership of the business of GFI, the GFI Subsidiaries, Parent or the Parent Subsidiaries, in each case other than (x) with respect to Antitrust Laws, any such proposals, executing or carrying out agreements (including consent decrees) or submitting to Laws that would not impair in any material respect the expected benefits of Parent and the Parent Subsidiaries from or relating to the Transactions, or (y) with respect to Regulatory Approvals, any immaterial administrative or ministerial obligations of Parent or any Parent SubsidiarySection 6.02(i).
Appears in 2 contracts
Samples: Stock Purchase Agreement (Emergency Medical Services CORP), Stock Purchase Agreement (Emergency Medical Services CORP)
Consents and Approvals. (a) Subject to the terms and conditions of set forth in this Agreement, each of Parent and GFI will the parties hereto shall use its reasonable best efforts to take, or cause to be taken, all actions actions, and to do, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable under applicable Laws and regulations or otherwise to consummate and make effective the Merger and the other Transactions by the Outside Date, including (i) the obtaining of all necessary actions or nonactions, licenses, permits, orders, clearances, waivers, authorizations, expirations or terminations of waiting periods, clearances, consents and approvals from Governmental Entities and the making of all necessary registrations and filings and the taking of all steps as may be necessary to obtain an approval or waiver from, or to avoid any action or proceeding by, any Governmental Entity, including without limitation in connection with any Regulatory Law (all of the foregoing, collectively, the “Governmental Consents”), (ii) the obtaining of all necessary consents, approvals or waivers from third parties, (iii) the defending of any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the Merger, the Transactions or the consummation thereof, and (iv) the execution and delivery of any additional instruments necessary to consummate the Merger and the Transactions.
(b) Subject to the terms and conditions herein provided and without limiting the foregoing, includingthe Company and Parent shall (i) promptly, preparing and filing in any event no later than seven (7) business days after the date hereof, make any required filings of Notification and Report Forms pursuant to the HSR Act, (ii) as promptly as practicable all documentation make appropriate filings with the Mexican Federal Competition Commission pursuant to effect all necessary filings, notices, petitions, statements, registrations, submissions of information, applications Mexico’s Federal Law on Economic Competition and (iii) use reasonable best efforts to cooperate with each other documents necessary and appropriate to consummate the Transactions. In furtherance and not in limitation of the foregoing, each of Parent and GFI shall (ix) make or cause determining whether any filings are required to be made the filings with, or Governmental Consents are required of such party under the Foreign Competition Laws to be obtained from, any other Governmental Entities (including those set forth any foreign jurisdiction in Section 3.4(b)(iwhich the Company or its Subsidiaries are operating any business) or third parties in connection with the execution and delivery of this Agreement and the consummation of the Parent Disclosure LetterTransactions, (y) with respect to the Transactions extent not made prior to the date hereof, timely making or causing to be made all such applications and filings and seeking all such actions, waivers, authorizations, expirations or terminations of waiting periods, clearances, consents and approvals. Each party shall supply as promptly as practicable after the date of this Agreement; (ii) take all actions to obtain and make the Regulatory Approvals set forth in Section 3.4(b)(ii) of the Parent Disclosure Letter as promptly as practicable after the date of this Agreement; (iii) comply such information, documentation, other material or testimony that may be requested by any Governmental Entity, including by complying at the earliest reasonably practicable date with any request under any Governmental Entity (including under any Foreign Competition Laws) in respect of such filings or such Transaction; and (iv) act in good faith and reasonably cooperate with the other Party in connection with any such filings and in connection with resolving any investigation or other inquiry of any such agency or other Governmental Entity under any of the HSR Act, the Foreign Competition Laws, the Xxxxxxx Act, the Xxxxxxx Act and any other Laws or Orders that are designed to prohibit, restrict or regulate actions having the purpose or effect of monopolization or restraint of trade (collectively, the “Antitrust Laws”) with respect to any such filing or any such Transaction. To the extent not prohibited by applicable Law, the Parties shall use reasonable best efforts to furnish to each other all information required for any application or other filing to be made pursuant to any applicable Law in connection with the Transactions. Each Party shall give each other reasonable prior notice of any substantive communication with, and any proposed understanding, undertaking or agreement with, any Governmental Entity regarding any such filings or any such Transaction. No Party shall independently participate in any meeting, or engage in any substantive conversation, with any Governmental Entity in respect of any such filings, investigation or other inquiry without giving the other Parties prior notice of the meeting or conversation and, unless prohibited by such any Governmental Entity, the opportunity to attend or participate. The Parties contemplate that as a general matter both Parent and GFI shall be represented at in-person meetings with any Governmental Entity. The Parties will consult and cooperate with one another in connection with any analyses, appearances, presentations, memoranda, briefs, arguments, opinions and proposals made or submitted by or on behalf of any Party in connection with proceedings under or relating to the HSR Act, the Foreign Competition Mexico’s Federal Law on Economic Competition, any other Governmental Consent and any such other applicable Laws for additional information, documents or other Antitrust Lawsmaterials received by Parent or the Company or any of their respective Subsidiaries from the Federal Trade Commission or the Department of Justice or any other Governmental Entity in connection with such applications or filings or the Transactions. Within five (5) business days after the date hereof, to the extent legally permitted, each of the Company and Parent shall provide to counsel for the other party all filings and written submissions, including attachments thereto, made by the Company to any Governmental Entity regarding the Transactions, provided that each party shall be entitled to redact competitively sensitive information and any information relating to Company valuation and similar matters relating to the Transactions.
(bc) Without limiting the general any of its other obligations of hereunder, Parent and GFI under Section 5.3(a) (Consents and Approvals), each of Parent and GFI Purchaser shall use its reasonable best efforts take all such further action as may be necessary to resolve such objections, if any, as the United States Federal Trade Commission, the Antitrust Division of the United States Department of Justice, state antitrust enforcement authorities or competition authorities of any other nation or other jurisdiction (including multinational or supernational), or any other person, may assert under Regulatory Law with respect to the transactions contemplated hereby in order to assure satisfaction of the conditions to the Transactions, and to avoid or eliminate, and minimize the impact of, each and every impediment under any Law that may be asserted by any Governmental Entity with respect to the Merger, in each case so as to enable the Merger and the Transactions to occur no later than the Outside Date (any such action, a “Settlement Action”), including, without limitation by proposing, negotiating, committing to and effecting, by agreement, consent decree, hold separate order, trust or otherwise, (x) the sale, divestiture or disposition of such assets, businesses, services, products or product lines of Parent or the Company (or any of their respective Subsidiaries or affiliates) or behavioral limitations, conduct restrictions or commitments with respect to any such assets, businesses, services, products or product lines of Parent or the Company (or any of their respective Subsidiaries or affiliates), (y) the creation or termination of relationships, ventures, contractual rights or obligations of the Company or Parent or their respective Subsidiaries or affiliates and (z) any other actions that after the Closing would limit the freedom of Parent, the Company or any of their respective Subsidiaries’ or affiliates’ freedom of action with respect to, or its ability to retain, one or more of its or its Subsidiaries’ (including the Company’s or the Surviving Corporation’s) or affiliates’ assets, businesses, services, products or product lines, in each case as may be required under or in connection with Regulatory Laws in order to obtain all required Governmental Consents (including expirations or terminations of waiting periods whether imposed by Law or agreement) and to avoid the Antitrust Lawsentry of, or to effect the dissolution of, any order in any suit or proceeding, which would otherwise have the effect of preventing the consummation of the Merger by the Outside Date; provided that, notwithstanding anything in this Agreement to the contrary, neither Parent nor Purchaser shall be required to take, or cause to be taken, any Settlement Action that, individually or in the aggregate, would reasonably be expected to have a material adverse effect on (i) the Company and its Subsidiaries, taken as a whole, (ii) Parent and its subsidiaries, taken as a whole, but deemed for this purpose to be the same size as the Company and its Subsidiaries, taken as a whole, or (iii) the Company, Parent and their respective Subsidiaries, taken as a whole, but deemed for this purpose to be the same size as the Company and its Subsidiaries, taken as a whole (any of the foregoing, a “Regulatory Material Adverse Effect”). In connection therewith The Company and its Subsidiaries shall not, without Parent’s prior written consent discuss or commit to any extension of any waiting period under any Law or to any agreement not to consummate the Merger. If requested by Parent, the Company shall take any action or make any agreement required by any Governmental Entity under any Regulatory Law; provided that any such action or agreement is conditioned on the consummation of the Merger. The Company shall not take any action or make any agreement required by any Governmental Entity under any Regulatory Law without the written consent of Parent, in its sole discretion.
(d) Without limiting the foregoing and subject to applicable legal limitations and the instructions of any Governmental Entity, each of the Company and Parent agrees (i) to cooperate and consult with each other, (ii) to furnish to the other such necessary information and assistance as the other may reasonably request in connection with its preparation of any notifications or filings, (iii) to keep each other apprised 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 received by such party from, or given by such party to, any third party and/or any Governmental Entity with respect to the Transactions and (iv) to permit the other party to review and incorporate the other party’s reasonable comments in any communication to be given by it to any Governmental Entity with respect to obtaining the necessary approvals for the Transactions and (v) not to participate in any meeting or discussion in person or by telephone expected to address matters related to the transactions contemplated hereby with any Governmental Entity in connection with any of the Transactions unless, to the extent not prohibited by such Governmental Entity, it gives the other party reasonable notice thereof and the opportunity to attend and observe. The parties shall take reasonable efforts to share information protected from disclosure under the attorney-client privilege, work product doctrine, joint defense privilege or any other privilege pursuant to this Section 5.3(ain a manner so as to preserve any applicable privilege. Parent and the Company may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section 6.3(d) as “Antitrust Counsel Only Material.” Such materials and the information contained therein shall be given only to the outside antitrust counsel of the recipient and will not be disclosed by such outside counsel to employees, officers or directors of the recipient unless express permission is obtained in advance from the source of the materials (Consents Parent or the Company, as the case may be) or its legal counsel.
(e) In furtherance and Approvals)not in limitation of the covenants of the parties contained in this Section 6.3, if any Proceeding administrative or judicial action or proceeding, including any proceeding by a Governmental Entity or any other person is instituted (or threatened to be instituted) challenging any of the Transactions as inconsistent with or violative of any Antitrust Law, each of the Company and Parent and GFI shall cooperate and use its reasonable best efforts vigorously to contest and resist (by negotiation, litigation or otherwise) any such Proceeding action or proceeding and to have vacated, lifted, reversed or overturned any Order decree, judgment, injunction or other order, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents, delays prevents or restricts consummation of the Transactions, unless Parent reasonably and in good faith determines that litigation is not in its best interests. Notwithstanding Subject to the foregoing or any other provision terms of this Agreement, nothing in this Section 5.3(b) Parent shall limit be entitled to direct the right of a Party to terminate this Agreement pursuant to Section 7.1 (Termination), so long as such Party has until that time complied in all material respects with its obligations under this Section 5.3. Each of Parent and GFI shall use its reasonable best efforts to take such action as may be required to cause the expiration defense of the notice periods Transaction in any investigation or to obtain the necessary approvals under the HSR Actlitigation by, the Foreign Competition Laws or negotiations with, any Governmental Entity or other Antitrust Laws with respect Person relating to the Transactions as promptly as possible after the execution of this Agreement.
(c) Notwithstanding anything to the contrary in this Agreement, nothing Merger or regulatory filings under applicable Regulatory Law. Nothing in this Agreement shall be deemed restrict Parent from (if it so chooses) opposing by refusing to require Parent consent to, through litigation or otherwise, any request, attempt or demand by any Governmental Entity or other person for any divestiture, hold separate condition or any Parent Subsidiary to agree to or take any action that would result in any Burdensome Condition. None of GFI or any GFI Subsidiary shall agree to or take any action that would result in any Burdensome Condition without the prior written consent of Parent. For purposes of this Agreement, a “Burdensome Condition” shall mean making proposals, executing or carrying out agreements (including consent decrees) or submitting to Laws (i) providing for the transfer, license, sale or other disposition or holding separate (through the establishment of a trust or otherwise) of any assets or categories of assets of Parent, GFI or any of their respective Subsidiaries or the holding separate (through the establishment of a trust or otherwise) of the Securities of any Parent Subsidiary or GFI Subsidiary or (ii) imposing or seeking to impose any limitation on the ability of Parent, GFI or any of their respective Subsidiaries to conduct their respective businesses (including restriction with respect to market practices and structure) any assets, businesses or own such assets or to acquire, hold or exercise full rights product lines of ownership of the business of GFI, the GFI Subsidiaries, either Parent or the Parent SubsidiariesCompany, in each case other than (x) with respect case, to Antitrust Laws, any such proposals, executing or carrying out agreements (including consent decrees) or submitting to Laws that the extent doing so would not impair in any material respect and would not reasonably be expected to prevent the expected benefits of Parent and Closing from occurring by the Parent Subsidiaries from or relating to the Transactions, or (y) with respect to Regulatory Approvals, any immaterial administrative or ministerial obligations of Parent or any Parent SubsidiaryOutside Date.
Appears in 2 contracts
Samples: Merger Agreement (International Paper Co /New/), Merger Agreement (Temple Inland Inc)
Consents and Approvals. (a) Subject to the terms and conditions of set forth in this Agreement, each of Parent and GFI will the parties hereto shall use its reasonable best efforts to take, or cause to be taken, all actions actions, and to do, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable under applicable Laws and regulations or otherwise to consummate and make effective the Transactions as promptly as practicable, including (i) the obtaining of all necessary actions or nonactions, waivers, consents, clearances, approvals, and expirations or terminations of waiting periods, including the Company Approvals and the Parent Approvals, from Governmental Entities and the making of all necessary registrations and filings and the taking of all steps as may be necessary to obtain an approval, clearance or waiver from, or to avoid an action or proceeding by, any Governmental Entity, including, without limitation, in connection with any Regulatory Law (all of the foregoing, collectively, the “Governmental Consents”), (ii) the obtaining of all necessary consents, approvals or waivers from third parties, (iii) the defending of any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the Transactions and (iv) the execution and delivery of any additional instruments reasonably necessary to consummate the Transactions; provided that in no event shall the Company or any of its Subsidiaries be required to pay prior to the Effective Time any fee, includingpenalty or other consideration to any third party for any consent or approval required for the consummation of the Transactions under any contract or agreement.
(b) Subject to the terms and conditions herein provided and without limiting the foregoing, preparing the Company and filing Parent shall cooperate with each other in (i) determining whether any filings are required to be made with, or Governmental Consents are required to be obtained from, any Governmental Entities (including in any foreign jurisdiction in which the Company or its Subsidiaries are operating any business) and (ii) to the extent not made prior to the date hereof, timely making or causing to be made all such applications and filings as reasonably determined by Parent and the Company as promptly as practicable (and in any event within ten (10) Business Days after the date hereof with respect to filings or submissions required under the HSR Act). Each party shall supply as promptly as practicable such information, documentation, other material or testimony that may be requested by any Governmental Entity, including by complying at the earliest reasonably practicable date with any request under or with respect to the HSR Act, any other Governmental Consent and any such other applicable Laws for additional information, documents or other materials received by Parent or the Company or any of their respective Subsidiaries from the Federal Trade Commission or the Department of Justice, or any other Governmental Entity in connection with such applications or filings or the Merger.
(c) Without limiting any of its other obligations hereunder, the Company, Parent and Merger Sub shall take all documentation such further action as may be necessary to resolve such objections, if any, as the United States Federal Trade Commission, the Antitrust Division of the United States Department of Justice, state antitrust enforcement authorities, or competition authorities of any other nation or other jurisdiction (including multinational or supranational), or any other Person, may assert under any Law with respect to the transactions contemplated herein, and to avoid or eliminate each and every impediment under any Law that may be asserted by any Person with respect to the Merger, in each case so as to enable the Merger and the Transactions to occur as soon as possible (and in any event no later than the Termination Date), including by proposing, negotiating, committing to and effecting, by agreement, consent decree, hold separate order, trust or otherwise, (x) the sale, divestiture or disposition of such assets, businesses, services, products or product lines of Parent or the Company (or any of their respective Subsidiaries or Affiliates) or behavioral limitations, conduct restrictions or commitments with respect to any such assets, businesses, services, products or product lines of Parent or the Company (or any of their respective Subsidiaries or Affiliates), (y) the creation or termination of relationships, ventures, contractual rights or obligations of the Company or Parent or their respective Subsidiaries or Affiliates and (z) any other actions that would limit the freedom of action of Parent, the Company or any of their respective Subsidiaries or affiliates with respect to, or its ability to retain, one or more of its or its Subsidiaries’ (including the Company’s or the Surviving Company’s) or Affiliates’ assets, businesses, services, products or product lines, in each case as may be required in order to obtain all required Governmental Consents as promptly as practicable (including expirations or terminations of waiting periods whether imposed by Law or agreement) and to avoid the entry of, or to effect all necessary filingsthe dissolution of, noticesany injunction, petitionstemporary restraining order, statementsor other order in any suit or proceeding, registrationswhich would otherwise have the effect of preventing the consummation of the Merger or the transactions contemplated by this Agreement or delaying any of the foregoing beyond the Termination Date (each of (x), submissions (y) and (z), a “Divestiture Action”). Notwithstanding the foregoing, (i) nothing in this Section 5.06(c) shall require, or be construed to require, Parent, the Company or any of informationtheir Affiliates to take a Divestiture Action in the event it would reasonably be expected to result in a material adverse effect to the Parent Business or a Company Material Adverse Effect, applications and other documents necessary (ii) the Company shall not take any Divestiture Action without first obtaining the consent of Parent. Neither the Company nor any of its Subsidiaries shall, without Parent’s prior written consent, and appropriate neither Parent nor any of its Subsidiaries shall, without the Company’s prior written consent, discuss or commit to any extension of any waiting period under any Law or any agreement not to consummate the Merger or any of the other transactions contemplated by this Agreement. None of Parent, Merger Sub or the Company shall be required to take any action pursuant to this Section 5.6 unless it is expressly conditioned on the effectiveness of the Merger.
(d) Without limiting the foregoing and subject to applicable legal limitations and the instructions of any Governmental Entity, each of the Company and Parent agrees (i) to cooperate and consult with each other in connection with the making of all registrations, filings, notifications, communications, submissions and any other material actions pursuant to this Section 5.6, (ii) to furnish to the other such necessary information and assistance as the other may reasonably request in connection with its preparation of any notifications or filings, (iii) to keep each other apprised of the status of matters relating to the completion of the transactions contemplated therein, including promptly furnishing the other with copies of notices or other communications received by such party from, or given by such party to, any third party and/or any Governmental Entity with respect to the Transactions, (iv) to permit the other party to review and to incorporate the other party’s reasonable comments in any communication to be given by it to any Governmental Entity with respect to obtaining the necessary approvals for the Transactions, and (v) not to participate in any meeting or discussion in person or by telephone expected to address substantive matters related to the transactions contemplated herein with any Governmental Entity in connection with the Transactions unless, to the extent not prohibited by such Governmental Entity, it gives the other party reasonable notice thereof and the opportunity to attend and observe. The parties shall take reasonable efforts to share information protected from disclosure under the attorney-client privilege, work product doctrine, joint defense privilege or any other privilege pursuant to this Section 5.6 in a manner so as to preserve any applicable privilege. Parent and the Company may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section 5.6(d) as “Antitrust Counsel Only Material.” Such materials and the information contained therein shall be given only to the outside antitrust counsel of the recipient and will not be disclosed by such outside counsel to employees, officers or directors of the recipient unless express permission is obtained in advance from the source of the materials (Parent or the Company, as the case may be) or its legal counsel.
(e) In furtherance and not in limitation of the foregoingcovenants of the parties contained in this Section 5.6, if any administrative or judicial action or proceeding, including any proceeding by a Governmental Entity or any other Person is instituted (or threatened to be instituted) challenging any of the Transactions as violative of any Law, each of the Company and Parent shall use best efforts to contest and GFI shall (i) make resist any such action or cause proceeding and to be made have vacated, 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 filings required of such party under Transactions, including, without limiting the Foreign Competition Laws (including those foregoing, taking the actions set forth in Section 3.4(b)(i5.6(c).
(f) of the Parent Disclosure Letter) with respect to the Transactions as promptly as practicable after the date For purposes of this Agreement; (ii) take all actions to obtain and make , “Regulatory Law” means the Regulatory Approvals set forth in Section 3.4(b)(ii) of the Parent Disclosure Letter as promptly as practicable after the date of this Agreement; (iii) comply at the earliest practicable date with any request under any Governmental Entity (including under any Foreign Competition Laws) in respect of such filings or such Transaction; and (iv) act in good faith and reasonably cooperate with the other Party in connection with any such filings and in connection with resolving any investigation or other inquiry of any such agency or other Governmental Entity under any of the HSR Xxxxxxx Act, the Foreign Competition Laws, the Xxxxxxx Act, the Xxxxxxx Act HSR Act, the Federal Trade Commission Act, the EC Merger Regulation, and all other federal, state, foreign, multinational or supranational statutes, rules, regulations, orders, decrees, administrative and judicial doctrines and other Laws, including, without limitation, any other Laws antitrust, competition or Orders trade regulation Laws, that are designed or intended to prohibit, restrict or regulate actions having the purpose or effect of monopolization or restraint of trade (collectively, the “Antitrust Laws”) with respect to or lessening competition through merger or acquisition and including any such filing or any such Transaction. To the extent not prohibited by applicable Law, the Parties shall use reasonable best efforts to furnish to each other all information required for any application or other filing to be made pursuant to any applicable Law in connection with the Transactions. Each Party shall give each other reasonable prior notice of any substantive communication with, and any proposed understanding, undertaking or agreement with, any Governmental Entity regarding any such filings or any such Transaction. No Party shall independently participate in any meeting, or engage in any substantive conversation, with any Governmental Entity in respect of any such filings, investigation or other inquiry without giving the other Parties prior notice of the meeting or conversation and, unless prohibited by such any Governmental Entity, the opportunity to attend or participate. The Parties contemplate that as a general matter both Parent and GFI shall be represented at in-person meetings with any Governmental Entity. The Parties will consult and cooperate with one another in connection with any analyses, appearances, presentations, memoranda, briefs, arguments, opinions and proposals made or submitted by or on behalf of any Party in connection with proceedings under or relating to the HSR Act, the Foreign Competition Laws or other Antitrust Laws.
(b) Without limiting the general obligations of Parent and GFI under Section 5.3(a) (Consents and Approvals), each of Parent and GFI shall use its reasonable best efforts to resolve such objections, if any, as may be asserted by any Governmental Entity with respect to the Transactions under the Antitrust Laws. In connection therewith and subject to Section 5.3(a) (Consents and Approvals), if any Proceeding is instituted (or threatened to be instituted) challenging any of the Transactions as inconsistent with or violative of any Antitrust Law, each of Parent and GFI shall cooperate and use its reasonable best efforts vigorously to contest and resist (by negotiation, litigation or otherwise) any such Proceeding and to have vacated, lifted, reversed or overturned any Order whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents, delays or restricts consummation of the Transactions, unless Parent reasonably and in good faith determines that litigation is not in its best interests. Notwithstanding the foregoing or any other provision of this Agreement, nothing in this Section 5.3(b) shall limit the right of a Party to terminate this Agreement pursuant to Section 7.1 (Termination), so long as such Party has until that time complied in all material respects with its obligations under this Section 5.3. Each of Parent and GFI shall use its reasonable best efforts to take such action as may be required to cause the expiration of the notice periods or to obtain the necessary approvals under the HSR Act, the Foreign Competition Laws or any other Antitrust Laws with respect to the Transactions as promptly as possible after the execution of this Agreement.
(c) Notwithstanding anything to the contrary in this Agreement, nothing in this Agreement shall be deemed to require Parent or any Parent Subsidiary to agree to or take any action that would result in any Burdensome Condition. None of GFI or any GFI Subsidiary shall agree to or take any action that would result in any Burdensome Condition without the prior written consent of Parent. For purposes of this Agreement, a “Burdensome Condition” shall mean making proposals, executing or carrying out agreements (including consent decrees) or submitting to Laws (i) providing for the transfer, license, sale or other disposition or holding separate (through the establishment of a trust or otherwise) of any assets or categories of assets of Parent, GFI or any of their respective Subsidiaries or the holding separate (through the establishment of a trust or otherwise) of the Securities of any Parent Subsidiary or GFI Subsidiary or (ii) imposing or seeking to impose any limitation on the ability of Parent, GFI or any of their respective Subsidiaries to conduct their respective businesses (including with respect to market practices and structure) or own such assets or to acquire, hold or exercise full rights of ownership of the business of GFI, the GFI Subsidiaries, Parent or the Parent Subsidiaries, in each case other than (x) with respect to Antitrust Laws, any such proposals, executing or carrying out agreements (including consent decrees) or submitting to Laws that would not impair in any material respect the expected benefits of Parent and the Parent Subsidiaries from or relating relate to the Transactions, or (y) with respect to Regulatory Approvals, any immaterial administrative or ministerial obligations of Parent or any Parent Subsidiaryforeign investments.
Appears in 1 contract
Samples: Merger Agreement (Kofax LTD)
Consents and Approvals. (a) Subject to the terms and conditions of set forth in this Agreement, each of Parent and GFI will the parties hereto shall use its reasonable best efforts to take, or cause to be taken, all actions actions, and to do, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable under applicable Laws and regulations or otherwise to consummate and make effective the Merger and the other transactions contemplated by this Agreement as promptly as practicable, including using reasonable best efforts with respect to (i) the obtaining of all necessary actions or nonactions, waivers, consents, clearances, approvals, and expirations or terminations of waiting periods, including the Company Approvals and the Parent Approvals, from Governmental Entities and the making of all necessary registrations and filings and the taking of all steps as may be necessary to obtain an approval, clearance or waiver from, or to avoid an action or proceeding by, any Governmental Entity, including in connection with any Regulatory Law (all of the foregoing, collectively, the “Governmental Consents”), (ii) the obtaining of all other necessary consents, approvals or waivers from third parties, (iii) the defending of any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the Merger and the other transactions contemplated by this Agreement, and (iv) the execution and delivery of any additional instruments reasonably necessary to consummate the Transactionstransactions contemplated by this Agreement; provided that no party shall be required to pay (and the Company and its Subsidiaries shall not pay or agree to pay without the prior written consent of Parent, includingwhich consent shall not be unreasonably withheld, preparing conditioned or delayed) any fee, penalty or other consideration to any third party for any consent or approval required for the consummation of the transactions contemplated by this Agreement under any Contract.
(b) Subject to the terms and filing conditions herein provided and without limiting the foregoing, the Company and Parent shall cooperate with each other in (x) determining whether any filings are required to be made with, or Governmental Consents are required to be obtained from, any Governmental Entities (including in any foreign jurisdiction in which the Company or its Subsidiaries are operating any business) and (y) to the extent not made prior to the date hereof, timely making or causing to be made all applications and filings as reasonably determined by Parent and the Company, as promptly as practicable all documentation to effect all necessary filings, notices, petitions, statements, registrations, submissions of information, applications and other documents necessary and appropriate to consummate or as required by the Transactions. In furtherance and not in limitation Law of the foregoing, each of Parent and GFI shall (i) make or cause to be made the filings required of such party under the Foreign Competition Laws (including those set forth in Section 3.4(b)(i) jurisdiction of the Parent Disclosure Letter) with respect to the Transactions Governmental Entity. Each party shall supply as promptly as practicable after the date of this Agreement; (ii) take all actions to obtain and make the Regulatory Approvals set forth in Section 3.4(b)(ii) of the Parent Disclosure Letter as promptly as practicable after the date of this Agreement; (iii) comply such information, documentation, other material or testimony that may be requested by any Governmental Entity, including by complying at the earliest reasonably practicable date with any request under or with respect to (i) any Governmental Entity (including under any Foreign Competition Laws) in respect of such filings or such Transaction; Consent and (ivii) act in good faith and reasonably cooperate with any such applicable Laws for additional information, documents or other materials received by Parent or the Company or any of their respective Subsidiaries from the Federal Trade Commission or the Department of Justice, or any other Party Governmental Entity in connection with any such filings and in connection with resolving any investigation applications or other inquiry of any such agency or other Governmental Entity under any of the HSR Act, the Foreign Competition Laws, the Xxxxxxx Act, the Xxxxxxx Act and any other Laws or Orders that are designed to prohibit, restrict or regulate actions having the purpose or effect of monopolization or restraint of trade (collectively, the “Antitrust Laws”) with respect to any such filing or any such Transaction. To the extent not prohibited by applicable Law, the Parties shall use reasonable best efforts to furnish to each other all information required for any application or other filing to be made pursuant to any applicable Law in connection with the Transactions. Each Party shall give each other reasonable prior notice of any substantive communication with, and any proposed understanding, undertaking or agreement with, any Governmental Entity regarding any such filings or any such Transaction. No Party shall independently participate in any meeting, or engage in any substantive conversation, with any Governmental Entity in respect of any such filings, investigation or other inquiry without giving the other Parties prior notice of the meeting or conversation and, unless prohibited by such any Governmental Entity, the opportunity to attend or participate. The Parties contemplate that as a general matter both Parent and GFI shall be represented at in-person meetings with any Governmental Entity. The Parties will consult and cooperate with one another in connection with any analyses, appearances, presentations, memoranda, briefs, arguments, opinions and proposals made or submitted by or on behalf of any Party in connection with proceedings under or relating to the HSR Act, the Foreign Competition Laws or other Antitrust Lawstransactions contemplated herein.
(bc) Without limiting any of its other obligations hereunder, the general obligations of Company and the Parent Parties shall take all such further action as may be necessary to resolve, avoid or eliminate each and GFI every impediment under Section 5.3(a) (Consents and Approvals), each of Parent and GFI shall use its reasonable best efforts to resolve such objections, if any, as any Regulatory Law that may be asserted by any Governmental Entity with respect to the Transactions under Merger, in each case so as to enable the Antitrust Laws. In connection therewith Merger and the other transactions contemplated by this Agreement to occur as promptly as reasonably practicable.
(d) Without limiting the foregoing and subject to applicable legal limitations and the instructions of any Governmental Entity, each of the Company and Parent agrees (i) to cooperate and consult with each other in connection with the making of all registrations, filings, notifications, communications, submissions and any other material actions pursuant to this Section 5.3(a5.7, (ii) to furnish to the other such necessary information and assistance as the other may reasonably request in connection with its preparation of any notifications or filings, (Consents iii) to keep each other apprised of the status of matters relating to the completion of the transactions contemplated therein, including promptly furnishing the other with copies of notices or other communications received by such party from, or given by such party to, any third party and/or any Governmental Entity with respect to such transactions, except any confidential information or business secrets, which information shall be provided to counsel on a counsel-to-counsel basis only, (iv) to permit the other party to review and Approvals)to incorporate the other party’s reasonable comments in any communication to be given by it to any third party or any Governmental Entity with respect to obtaining the necessary approvals for the Merger and the other transactions contemplated by this Agreement, and (v) before participating in any meeting or discussion in person or by telephone expected to address matters related to the transactions contemplated herein with any Governmental Entity in connection with any of such transactions unless, to the extent not prohibited by such Governmental Entity, giving the other party reasonable notice thereof and the opportunity to attend and observe and participate.
(e) In furtherance and not in limitation of the covenants of the parties contained in this Section 5.7, if any Proceeding administrative or judicial action or proceeding, including any proceeding by a Governmental Entity or any other Person is instituted (or threatened to be instituted) challenging any of the Transactions transactions contemplated by this Agreement as inconsistent with or violative of any Antitrust Regulatory Law, each of the Company and Parent and GFI shall cooperate and use its reasonable best efforts vigorously to contest and resist (by negotiation, litigation or otherwise) any such Proceeding action or proceeding and to have vacated, lifted, reversed or overturned any Order decree, judgment, injunction or other order, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents, delays prevents or restricts consummation of the Transactions, unless Parent reasonably and in good faith determines that litigation is not in its best interests. Notwithstanding the foregoing or any other provision of this Agreement, nothing in this Section 5.3(b) shall limit the right of a Party to terminate this Agreement pursuant to Section 7.1 (Termination), so long as such Party has until that time complied in all material respects with its obligations under this Section 5.3. Each of Parent and GFI shall use its reasonable best efforts to take such action as may be required to cause the expiration of the notice periods or to obtain the necessary approvals under the HSR Act, the Foreign Competition Laws or any other Antitrust Laws with respect to the Transactions as promptly as possible after the execution of transactions contemplated by this Agreement.
(c) Notwithstanding anything to the contrary in this Agreement, nothing in this Agreement shall be deemed to require Parent or any Parent Subsidiary to agree to or take any action that would result in any Burdensome Condition. None of GFI or any GFI Subsidiary shall agree to or take any action that would result in any Burdensome Condition without the prior written consent of Parent. For purposes of this Agreement, a “Burdensome Condition” shall mean making proposals, executing or carrying out agreements (including consent decrees) or submitting to Laws (i) providing for the transfer, license, sale or other disposition or holding separate (through the establishment of a trust or otherwise) of any assets or categories of assets of Parent, GFI or any of their respective Subsidiaries or the holding separate (through the establishment of a trust or otherwise) of the Securities of any Parent Subsidiary or GFI Subsidiary or (ii) imposing or seeking to impose any limitation on the ability of Parent, GFI or any of their respective Subsidiaries to conduct their respective businesses (including with respect to market practices and structure) or own such assets or to acquire, hold or exercise full rights of ownership of the business of GFI, the GFI Subsidiaries, Parent or the Parent Subsidiaries, in each case other than (x) with respect to Antitrust Laws, any such proposals, executing or carrying out agreements (including consent decrees) or submitting to Laws that would not impair in any material respect the expected benefits of Parent and the Parent Subsidiaries from or relating to the Transactions, or (y) with respect to Regulatory Approvals, any immaterial administrative or ministerial obligations of Parent or any Parent Subsidiary.
Appears in 1 contract
Samples: Merger Agreement (Asta Funding Inc)
Consents and Approvals. (a) Subject to Each of the terms and conditions of this AgreementCompany, each of Parent and GFI will Merger Sub shall use its reasonable best efforts to to: (i) take, or cause to be taken, all actions appropriate action, and to do, or cause to be done, all things necessary, proper or advisable under any applicable Law or otherwise to cause the fulfillment of all conditions to the Merger and to consummate and make effective the Transactions, including, preparing and filing Merger as promptly as practicable all documentation practicable; (ii) obtain from any Governmental Entities any consents, licenses, permits, waivers, clearances, approvals, waiting period terminations, authorizations or orders required to effect all necessary filingsbe obtained or made by Parent, noticesMerger Sub or the Company or any of their respective Subsidiaries, petitionsin connection with the authorization, statements, registrations, submissions execution and delivery of information, applications this Agreement and other documents necessary and appropriate to consummate the Transactions. In furtherance and not in limitation consummation of the foregoing, each of Parent and GFI shall Merger; (iiii) make or cause to be made the applications or filings required to be made by Parent, Merger Sub or the Company or any of such party their respective Subsidiaries under the Foreign Competition Laws (including those set forth in Section 3.4(b)(i) of the Parent Disclosure Letter) or with respect to the Transactions HSR Act or any other applicable antitrust Laws in connection with the authorization, execution and delivery of this Agreement and the consummation of the Merger, and pay any fees due in connection with such applications or filings, as promptly as practicable is reasonably practicable, and in any event within five (5) Business Days, with respect to applications or filings under the HSR Act, and within ten (10) Business Days, with respect to applications or filings under any other applicable antitrust Laws, after the date of this Agreementhereof or sooner if required by Law; (ii) take all actions to obtain and make the Regulatory Approvals set forth in Section 3.4(b)(ii) of the Parent Disclosure Letter as promptly as practicable after the date of this Agreement; (iiiiv) comply at the earliest practicable date promptly with any request under any Governmental Entity (including under any Foreign Competition Laws) in or with respect of such filings or such Transaction; and (iv) act in good faith and reasonably cooperate with the other Party in connection with any such filings and in connection with resolving any investigation or other inquiry of any such agency or other Governmental Entity under any of to the HSR Act, the Foreign Competition Laws, the Xxxxxxx Act, the Xxxxxxx Act and any other applicable antitrust Laws for additional information, documents or Orders that are designed other materials received by Parent or the Company or any of their respective Subsidiaries from the Federal Trade Commission or the Department of Justice or any other Governmental Entity in connection with such applications or filings or the Merger; and (v) reasonably coordinate and cooperate with each other party in the making of any applications or filings (including furnishing any information the other party may require in order to prohibit, restrict or regulate actions having the purpose or effect of monopolization or restraint of trade (collectively, the “Antitrust Laws”) with respect to make any such filing or any such Transaction. To the extent not prohibited by applicable Law, the Parties shall use reasonable best efforts to furnish to each other all information required for any application or other filing to be made pursuant to filing), or obtaining any applicable Law approvals, required in connection with the TransactionsMerger under the HSR Act or any other applicable antitrust Laws. Notwithstanding anything to the contrary, neither Parent nor Merger Sub (nor any of their respective Affiliates) shall have any obligation to (A) propose, negotiate, commit to or effect, by consent decree, hold separate order or otherwise, the sale, divestiture, holding separate, license or other disposition of any assets or businesses (including any assets or business of the Company or any of its Subsidiaries); or (B) otherwise take or commit to take any actions that would limit the freedom of Parent or its Subsidiaries’ (including the Surviving Corporation’s) or affiliates’ freedom of action with respect to, or its ability to retain, one or more of its or its Subsidiaries’ (including the Surviving Corporation’s) businesses, product lines or assets. Neither the Company nor any of its Subsidiaries shall become subject to, or consent or agree to or otherwise take any action with respect to, any requirement, condition, understanding, agreement or order of a Governmental Entity to sell, to hold separate or otherwise dispose of, or to conduct, restrict, operate, invest or otherwise change the assets or business of the Company or any of its affiliates, unless such requirement, condition, understanding, agreement or order is binding on the Company only in the event that the Closing occurs. Each Party of the Company and Parent shall give each promptly inform the other reasonable prior notice of any substantive material communication with, and any proposed understanding, undertaking or agreement with, any Governmental Entity regarding any such filings application or any such Transactionfiling. No Party shall independently If a party hereto intends to participate in any meeting, meeting or engage in any substantive conversation, conference call with any Governmental Entity in respect of to any such filings, investigation investigations or other inquiry without giving inquiry, then such party shall (i) permit the other Parties to review and discuss in advance, and consider in good faith the views of the other in connection with, any proposed written or material oral communication with such Governmental Entity, (ii) give the other party reasonable prior notice of such meeting or conference call and (iii) invite Representatives of the other party to participate in the meeting or conversation and, conference call with the Governmental Entity unless prohibited by such any Governmental Entity, the opportunity to attend or participate. The Parties contemplate that as a general matter both Parent and GFI shall be represented at in-person meetings with any Governmental Entity. The Parties will consult and cooperate with one another in connection with Neither Parent nor the Company shall consent to any analyses, appearances, presentations, memoranda, briefs, arguments, opinions and proposals made or submitted by or on behalf voluntary extension of any Party in connection with proceedings under statutory deadline or relating waiting period or to any voluntary delay of the HSR Actconsummation of the transactions contemplated by this Agreement at the behest of any Governmental Entity without the consent of the other party, the Foreign Competition Laws which consent shall not be unreasonably withheld or other Antitrust Lawsdelayed.
(b) Without limiting The Company and Parent shall give (or shall cause their respective Subsidiaries to give) any notices to third parties, and use, and cause their respective Subsidiaries to use, commercially reasonable efforts to obtain any third party consents required in connection with the general obligations transactions contemplated by this Agreement; 30 provided, however, that the Company and Parent shall reasonably coordinate and cooperate in determining whether any actions, notices, consents, approvals or waivers are required to be given or obtained, or should be given or obtained, from parties to any Company Material Contracts in connection with consummation of the transactions contemplated by this Agreement and seeking any such actions, notices, consents, approvals or waivers. Notwithstanding the foregoing, neither the Company, Parent and GFI under Section 5.3(anor Merger Sub shall be required to make any material payment to any third party or agree to any material limitation on the conduct of its business, in order to obtain any such consent.
(c) (Consents and Approvals)From the date of this Agreement until the Effective Time, each of Merger Sub and the Company shall promptly notify the other in writing of any pending or, to the knowledge of Merger Sub or the Knowledge of the Company (as the case may be), threatened Legal Proceeding: (i) challenging or seeking material damages in connection with the Merger; or (ii) seeking to restrain or prohibit the consummation of the Merger or otherwise limit in any material respect the right of Parent or any affiliate of Parent to own or operate all or any portion of the businesses or assets of the Company. The Company shall give Parent the opportunity to consult with the Company regarding the defense or settlement of any such litigation and GFI shall use its reasonable best efforts to resolve such objections, if any, as may be asserted by any Governmental Entity consider Parent’s views with respect to such litigation and shall not settle any such litigation without the Transactions under prior written consent of Parent (such consent not to be unreasonably withheld, conditioned or delayed). Notwithstanding the Antitrust Laws. In connection therewith and subject foregoing, the Company shall not be required to Section 5.3(aprovide any notice or information to Parent the provision of which the Company in good faith determines would reasonably be expected to adversely affect the Company’s or any other Person’s attorney client or other privilege with respect to such information.
(d) (Consents and Approvals), if If any Legal Proceeding is instituted (or threatened to be instituted) by a Governmental Entity challenging any of the Transactions Merger as inconsistent with or violative of any Antitrust applicable Law, each of the Company and Parent shall, and GFI shall cause their respective affiliates to, reasonably cooperate and use its their commercially reasonable best efforts vigorously to contest and resist (by negotiationresist, litigation or otherwise) except insofar as the Company and Parent may otherwise agree, any such Proceeding and to have vacatedaction or proceeding, liftedincluding any action or proceeding that seeks a temporary restraining order or preliminary injunction that would prohibit, reversed prevent or overturned any Order whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents, delays or restricts restrict consummation of the Transactions, unless Parent reasonably and in good faith determines that litigation is not in its best interests. Notwithstanding the foregoing or any other provision of this Agreement, nothing in this Section 5.3(b) shall limit the right of a Party to terminate this Agreement pursuant to Section 7.1 (Termination), so long as such Party has until that time complied in all material respects with its obligations under this Section 5.3. Each of Parent and GFI shall use its reasonable best efforts to take such action as may be required to cause the expiration of the notice periods or to obtain the necessary approvals under the HSR Act, the Foreign Competition Laws or any other Antitrust Laws with respect to the Transactions as promptly as possible after the execution of this AgreementMerger.
(c) Notwithstanding anything to the contrary in this Agreement, nothing in this Agreement shall be deemed to require Parent or any Parent Subsidiary to agree to or take any action that would result in any Burdensome Condition. None of GFI or any GFI Subsidiary shall agree to or take any action that would result in any Burdensome Condition without the prior written consent of Parent. For purposes of this Agreement, a “Burdensome Condition” shall mean making proposals, executing or carrying out agreements (including consent decrees) or submitting to Laws (i) providing for the transfer, license, sale or other disposition or holding separate (through the establishment of a trust or otherwise) of any assets or categories of assets of Parent, GFI or any of their respective Subsidiaries or the holding separate (through the establishment of a trust or otherwise) of the Securities of any Parent Subsidiary or GFI Subsidiary or (ii) imposing or seeking to impose any limitation on the ability of Parent, GFI or any of their respective Subsidiaries to conduct their respective businesses (including with respect to market practices and structure) or own such assets or to acquire, hold or exercise full rights of ownership of the business of GFI, the GFI Subsidiaries, Parent or the Parent Subsidiaries, in each case other than (x) with respect to Antitrust Laws, any such proposals, executing or carrying out agreements (including consent decrees) or submitting to Laws that would not impair in any material respect the expected benefits of Parent and the Parent Subsidiaries from or relating to the Transactions, or (y) with respect to Regulatory Approvals, any immaterial administrative or ministerial obligations of Parent or any Parent Subsidiary.
Appears in 1 contract
Consents and Approvals. (a) Subject to Upon the terms and subject to the conditions of set forth in this Agreement, each of Parent ADGE and GFI will Tecogen shall and shall cause their respective Subsidiaries, to use its reasonable best efforts to take, or cause to be taken, all actions actions, and to do, or cause to be done, and to assist and cooperate with the other party in doing, all things necessary, proper or advisable under applicable Law or pursuant to any Contract to consummate and make effective, as promptly as practicable, the Merger and the other Transactions, includingincluding (i) the taking of all actions necessary to cause the conditions to Closing set forth in Article VI to be satisfied, (ii) the preparing and filing filing, in consultation with the other party and as promptly as practicable following the date hereof, of all documentation to effect all necessary required filings, notices, petitions, statements, registrations, submissions of information, and applications and the obtaining of all necessary actions or nonactions, waivers, consents, authorizations and approvals from Governmental Entities or other documents Persons necessary and appropriate to consummate in connection with the Transactions. In furtherance and not in limitation consummation of the foregoing, each Merger and the other Transactions and the making of Parent all necessary registrations and GFI shall (i) make or cause to be made the filings required of such party under the Foreign Competition Laws (including those set forth filings with Governmental Entities, if any) and the taking of all reasonable steps as may be necessary to obtain an approval or waiver from, or to avoid Legal Proceeding by, any Governmental Entity or other Persons necessary in Section 3.4(b)(i) connection with the consummation of the Parent Disclosure Letter) with respect to Merger and the Transactions as promptly as practicable after the date of this Agreement; (ii) take all actions to obtain and make the Regulatory Approvals set forth in Section 3.4(b)(ii) of the Parent Disclosure Letter as promptly as practicable after the date of this Agreement; other Transactions, (iii) comply at the earliest practicable date with defending of any request under any Governmental Entity (including under any Foreign Competition Laws) in respect Legal Proceedings, whether judicial or administrative, challenging this Agreement or the consummation of such filings the Merger or such Transaction; and (iv) act in good faith and reasonably cooperate with the other Party in connection with Transactions, including seeking to have any such filings and in connection with resolving stay or temporary restraining Order entered by any investigation or other inquiry of any such agency court or other Governmental Entity vacated or reversed, the avoidance of each and every impediment under any of the HSR Actantitrust, the Foreign Competition Lawsmerger control, the Xxxxxxx Act, the Xxxxxxx Act and any other Laws competition or Orders trade regulation Law that are designed to prohibit, restrict or regulate actions having the purpose or effect of monopolization or restraint of trade (collectively, the “Antitrust Laws”) with respect to any such filing or any such Transaction. To the extent not prohibited by applicable Law, the Parties shall use reasonable best efforts to furnish to each other all information required for any application or other filing to be made pursuant to any applicable Law in connection with the Transactions. Each Party shall give each other reasonable prior notice of any substantive communication with, and any proposed understanding, undertaking or agreement with, any Governmental Entity regarding any such filings or any such Transaction. No Party shall independently participate in any meeting, or engage in any substantive conversation, with any Governmental Entity in respect of any such filings, investigation or other inquiry without giving the other Parties prior notice of the meeting or conversation and, unless prohibited by such any Governmental Entity, the opportunity to attend or participate. The Parties contemplate that as a general matter both Parent and GFI shall be represented at in-person meetings with any Governmental Entity. The Parties will consult and cooperate with one another in connection with any analyses, appearances, presentations, memoranda, briefs, arguments, opinions and proposals made or submitted by or on behalf of any Party in connection with proceedings under or relating to the HSR Act, the Foreign Competition Laws or other Antitrust Laws.
(b) Without limiting the general obligations of Parent and GFI under Section 5.3(a) (Consents and Approvals), each of Parent and GFI shall use its reasonable best efforts to resolve such objections, if any, as may be asserted by any Governmental Entity with respect to the Merger so as to enable the Closing to occur as soon as reasonably possible, and (iv) the execution and delivery of any additional instruments necessary to consummate the Merger and the other Transactions under and to fully carry out the Antitrust Laws. purposes of this Agreement.
(b) In connection therewith with and subject to Section 5.3(a) (Consents and Approvals), if any Proceeding is instituted (or threatened to be instituted) challenging any of without limiting the Transactions as inconsistent with or violative of any Antitrust Lawforegoing, each of Parent Tecogen and GFI ADGE shall cooperate and use its reasonable best efforts vigorously give (or shall cause to contest and resist (by negotiation, litigation or otherwisebe given) any such Proceeding notices to any Person, and each of Tecogen and ADGE shall use, and cause each of their respective affiliates to have vacateduse, lifted, reversed or overturned any Order whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents, delays or restricts consummation of the Transactions, unless Parent reasonably and in good faith determines that litigation is not in its best interests. Notwithstanding the foregoing or any other provision of this Agreement, nothing in this Section 5.3(b) shall limit the right of a Party to terminate this Agreement pursuant to Section 7.1 (Termination), so long as such Party has until that time complied in all material respects with its obligations under this Section 5.3. Each of Parent and GFI shall use its reasonable best efforts to take such action as may be required obtain any consents from any Person not covered by Section 5.2(a) that are necessary, proper or advisable to cause consummate the expiration Merger. Each of the notice periods parties will furnish to the other such necessary information and reasonable assistance as the other may request in connection with the preparation of any required governmental filings or submissions and will cooperate in responding to obtain any inquiry from a Governmental Entity, including promptly informing the necessary approvals under the HSR Actother party of such inquiry, the Foreign Competition Laws consulting in advance before making any presentations or submissions to a Governmental Entity, and supplying each other with copies of all material correspondence, filings or communications between either party and any other Antitrust Laws Governmental Entity with respect to the Transactions as promptly as possible after the execution of this Agreement. To the extent reasonably practicable, the parties or their Representatives shall have the right to review in advance, and each of the parties will consult the others on, all the information relating to the other and each of their affiliates that appears in any filing made with, or written materials submitted to, any Governmental Entity in connection with the Merger and the other Transactions, except that confidential competitively sensitive business information may be redacted from such exchanges. To the extent reasonably practicable, neither ADGE nor Tecogen shall, nor shall they permit their respective Representatives to, participate independently in any meeting or engage in any substantive conversation with any Governmental Entity in respect of any filing, investigation or other inquiry without giving the other party prior notice of such meeting or conversation and, to the extent permitted by applicable Law, without giving the other party the opportunity to attend or participate (whether by telephone or in person) in any such meeting with such Governmental Entity. Notwithstanding the foregoing, obtaining any approval or consent from any Person pursuant to this Section 5.2(b) shall not be a condition to the obligations of the parties to consummate the Merger.
(c) Notwithstanding anything to the contrary in this Agreement, nothing in this Agreement shall be deemed connection with obtaining any approval or consent from any Person (other than any Governmental Entity) with respect to require Parent the Merger, none of ADGE or any Parent Subsidiary to agree to or take any action that would result in any Burdensome Condition. None of GFI ADGE Subsidiaries, Tecogen or any GFI Subsidiary shall agree to or take any action that would result in any Burdensome Condition without the prior written consent of Parent. For purposes of this Agreement, a “Burdensome Condition” shall mean making proposals, executing or carrying out agreements (including consent decrees) or submitting to Laws (i) providing for the transfer, license, sale or other disposition or holding separate (through the establishment of a trust or otherwise) of any assets or categories of assets of Parent, GFI its Subsidiaries or any of their respective Subsidiaries Representatives, shall be obligated to pay or the holding separate (through the establishment of a trust commit to pay to such Person whose approval or otherwise) of the Securities of consent is being solicited any Parent Subsidiary cash or GFI Subsidiary other consideration, make any accommodation or (ii) imposing commitment or seeking incur any liability or other obligation to impose any limitation on the ability of Parent, GFI or any of their respective Subsidiaries to conduct their respective businesses (including with respect to market practices and structure) or own such assets or to acquire, hold or exercise full rights of ownership of the business of GFI, the GFI Subsidiaries, Parent or the Parent SubsidiariesPerson, in each case other than (x) that is not conditioned upon the occurrence of the Closing. Subject to the foregoing sentence, the parties shall cooperate with respect to Antitrust Laws, reasonable accommodations that may be requested or appropriate to obtain such consents. The parties acknowledge and agree that no approval or consent of any such proposals, executing or carrying out agreements (including consent decrees) or submitting to Laws that would not impair in any material respect the expected benefits of Parent and the Parent Subsidiaries from or relating Person is a condition to the Transactions, or (y) with respect to Regulatory Approvals, any immaterial administrative or ministerial obligations of Parent or any Parent Subsidiaryparty to effect the Merger other than Stockholder Approval.
Appears in 1 contract
Samples: Merger Agreement (Tecogen Inc.)
Consents and Approvals. (a) Subject to the terms and conditions of this Agreement, each of Parent and GFI 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 Law to consummate the Transactions, including, preparing and filing as promptly as practicable all documentation to effect all necessary filings, notices, petitions, statements, registrations, submissions of information, applications and other documents necessary and appropriate to consummate the Transactions. In furtherance and not in limitation of the foregoing, each of Parent and GFI shall (i) make or cause to be made the filings required of such party under the Foreign Competition Laws (including those set forth in Section 3.4(b)(i) of the Parent Disclosure Letter) with respect to the Transactions as promptly as practicable after From the date of this Agreement; (ii) take all actions Agreement until the Closing Date, each Seller shall, and shall cause each Company to, use commercially reasonable efforts to obtain all consents, approvals, certificates and make other documents required in connection with the Regulatory Approvals set forth in Section 3.4(b)(ii) performance by it of this Agreement and its Related Agreements and the consummation by it of the Parent Disclosure Letter as promptly as practicable after transactions contemplated hereby and thereby. From the date of this Agreement; (iii) comply at Agreement until the earliest practicable date with any request under any Governmental Entity (including under any Foreign Competition Laws) in respect of such filings or such Transaction; Closing Date, Purchaser shall use commercially reasonable efforts to obtain all consents, approvals, certificates and (iv) act in good faith and reasonably cooperate with the other Party documents required in connection with any such filings the performance by it of this Agreement and in connection with resolving any investigation or other inquiry of any such agency or other Governmental Entity under any its Related Agreements and the consummation by it of the HSR Acttransactions contemplated hereby and thereby. Each Seller shall, the Foreign Competition Lawsor shall cause each Company to, the Xxxxxxx Actpromptly make all filings, the Xxxxxxx Act applications, statements and any reports to all Governmental Authorities and other Laws or Orders Persons that are designed to prohibit, restrict or regulate actions having the purpose or effect of monopolization or restraint of trade (collectively, the “Antitrust Laws”) with respect to any such filing or any such Transaction. To the extent not prohibited by applicable Law, the Parties shall use reasonable best efforts to furnish to each other all information required for any application or other filing to be made prior to the Closing Date by or on behalf of such Seller or such Company pursuant to any applicable Law or Contract in connection with this Agreement, its Related Agreements and the Transactionstransactions contemplated hereby and thereby. Each Party Purchaser shall give each other reasonable prior notice of any substantive communication with, and any proposed understanding, undertaking or agreement with, any Governmental Entity regarding any such filings or any such Transaction. No Party shall independently participate in any meeting, or engage in any substantive conversation, with any Governmental Entity in respect of any such promptly make all filings, investigation or applications, statements and reports to all Governmental Authorities and other inquiry without giving Persons that are required to be made prior to the other Parties prior notice of the meeting or conversation and, unless prohibited by such any Governmental Entity, the opportunity to attend or participate. The Parties contemplate that as a general matter both Parent and GFI shall be represented at in-person meetings with any Governmental Entity. The Parties will consult and cooperate with one another in connection with any analyses, appearances, presentations, memoranda, briefs, arguments, opinions and proposals made or submitted Closing Date by or on behalf of Purchaser or any Party of its Affiliates pursuant to any applicable Law or Contract in connection with proceedings under or relating to this Agreement, its Related Agreements and the HSR Act, the Foreign Competition Laws or other Antitrust Lawstransactions contemplated hereby and thereby.
(b) Without limiting the general obligations of Parent Purchaser and GFI Sellers agree to cooperate with each other and to take any and all steps necessary to obtain as soon as practicable each and every consent or approval under Section 5.3(a) (Consents and Approvals)any antitrust, each of Parent and GFI shall use its reasonable best efforts to resolve such objections, if any, as competition or other Law that may be asserted by any antitrust, competition or other Governmental Entity with respect Authority so as to enable the Transactions under parties to expeditiously close the Antitrust Laws. In connection therewith and subject to Section 5.3(a) (Consents and Approvals)transactions contemplated hereby, if any Proceeding is instituted (or threatened to be instituted) challenging any of the Transactions as inconsistent with or violative of any Antitrust Law, each of Parent and GFI provided that Purchaser -------- shall cooperate and use its reasonable best efforts vigorously to contest and resist (by negotiation, litigation or otherwise) any such Proceeding and to have vacated, lifted, reversed or overturned any Order whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents, delays or restricts consummation of the Transactions, unless Parent reasonably and in good faith determines that litigation is not in its best interests. Notwithstanding the foregoing or any other provision of this Agreement, nothing in this Section 5.3(b) shall limit the right of a Party to terminate this Agreement pursuant to Section 7.1 (Termination), so long as such Party has until that time complied in all material respects with its obligations under this Section 5.3. Each of Parent and GFI shall use its reasonable best efforts to take such action as may be required to cause the expiration of the notice periods (i) hold separate or to obtain the necessary approvals under the HSR Actdivest any assets, the Foreign Competition Laws or license or enter into any other Antitrust Laws with respect to the Transactions as promptly as possible after the execution of this Agreement.
(c) Notwithstanding anything to the contrary in this Agreement, nothing in this Agreement shall be deemed to require Parent or any Parent Subsidiary to agree to arrangement or take any action other action, that would result in any Burdensome Condition. None have the effect of GFI or any GFI Subsidiary shall agree to or take any action that would result in any Burdensome Condition without the prior written consent reducing revenues of Parent. For purposes of this Agreement, a “Burdensome Condition” shall mean making proposals, executing or carrying out agreements (including consent decrees) or submitting to Laws (i) providing for the transfer, license, sale or other disposition or holding separate (through the establishment of a trust or otherwise) of any assets or categories of assets of Parent, GFI Purchaser or any of their respective Subsidiaries its Affiliates or the holding separate (through the establishment of a trust or otherwise) revenues of the Securities Business in excess of any Parent Subsidiary $250,000 per annum, or GFI Subsidiary that would require Purchaser to incur expenses in excess of $250,000, or (ii) imposing or seeking to impose any limitation on the ability of Parent, GFI or any of their respective Subsidiaries to conduct their respective businesses (including with respect to market practices and structure) or own such assets or to acquire, hold or exercise full rights of ownership of the business of GFI, the GFI Subsidiaries, Parent or the Parent Subsidiaries, in each case other than (x) with respect to Antitrust Laws, any such proposals, executing or carrying out agreements (including consent decrees) or submitting to Laws that would not impair participate in any material respect the expected benefits of Parent and the Parent Subsidiaries from litigation or relating to the Transactions, or (y) with respect to Regulatory Approvals, any immaterial administrative or ministerial obligations of Parent or any Parent Subsidiaryprotracted regulatory proceeding.
Appears in 1 contract
Samples: Stock Purchase Agreement (Mutual Risk Management LTD)
Consents and Approvals. (a) Subject to the terms and conditions of this Agreement, each of Parent Ecolab and GFI Nalco 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 reasonably necessary, proper or advisable under applicable Law to consummate the TransactionsMerger and the other transactions contemplated by this Agreement, including, preparing and filing as promptly as practicable all documentation to effect including (i) determining all necessary or, in the reasonable judgment of Ecolab and Nalco, advisable filings, notices, petitions, statements, registrations, submissions of information, applications and other documents necessary and appropriate to consummate the Transactions. Merger and the other transactions contemplated by this Agreement (including from Governmental Authorities or third parties), (ii) preparing and filing as promptly as practicable all documentation to effect such filings, notices, petitions, statements, registrations, submissions of information, applications and other documents and (iii) vigorously contesting and resisting any Proceedings or having any Order, whether temporary, preliminary or permanent, vacated, lifted, reserved or overturned that challenge this Agreement, the Merger or the other transactions contemplated by this Agreement.
(b) In furtherance and not in limitation of the foregoing, each of Parent Ecolab and GFI shall Nalco will (i) make or cause to be made the filings required of such party Party (or, in the reasonable judgment of Ecolab and Nalco, filings that are advisable to be made by such Party) under the Foreign HSR Act and any other applicable Competition Laws (including those set forth in Section 3.4(b)(i) of the Parent Disclosure Letter) with respect to the Transactions transactions contemplated by this Agreement as promptly as practicable after the date of this Agreement; , (ii) take all actions to obtain and make the Regulatory Approvals set forth in Section 3.4(b)(ii) of the Parent Disclosure Letter as promptly as practicable after the date of this Agreement; (iii) comply at the earliest practicable date with any request for additional information, documents or other materials (including a “second request” under the HSR Act) received by such Party from the U.S. Federal Trade Commission (“FTC”), the Antitrust Division of the U.S. Department of Justice or any other Governmental Authority under any Governmental Entity (including under any Foreign applicable Competition Laws) in Laws with respect of to such filings or such Transaction; and transactions, (iviii) act in good faith and reasonably cooperate with the other Party in connection with any such filings and in connection with resolving any investigation or other inquiry of any such agency or other Governmental Entity Authority under any of the HSR Act, the Foreign Competition Laws, the Xxxxxxx Act, the Xxxxxxx Act and or any other applicable Competition Laws or Orders that are designed to prohibit, restrict or regulate actions having the purpose or effect of monopolization or restraint of trade (collectively, the “Antitrust Laws”) with respect to any such filing or any such Transaction. transaction and (iv) not extend any waiting period under the HSR Act or enter into any agreement with any Governmental Authority not to consummate the transactions contemplated by this Agreement, except with the prior written consent of the other Party, which consent will not be unreasonably withheld or delayed.
(c) To the extent not prohibited by applicable Law, the Parties shall each of Ecolab and Nalco will use its reasonable best efforts to furnish to each the other Party all information required for any application or other filing to be made pursuant to any applicable Law in connection with the Transactionstransactions contemplated by this Agreement. Each of Ecolab and Nalco will give the other Party shall give each other reasonable prior notice of any substantive communication with, and any proposed understanding, undertaking or agreement Contract with, any Governmental Entity Authority regarding any such filings or any such Transactiontransaction. No Party shall Each of Ecolab and Nalco will not independently participate in any meeting, or engage in any substantive conversation, with any Governmental Entity Authority in respect of any such filings, investigation or other inquiry without giving the such other Parties Party prior notice of the meeting or conversation and, unless prohibited by such any Governmental EntityAuthority, the opportunity to attend or participate. The Parties contemplate that as a general matter both Parent and GFI shall be represented at in-person meetings with any Governmental Entity. The Parties will consult and cooperate with one another in connection with any analyses, appearances, presentations, memoranda, briefs, arguments, opinions and proposals made or submitted by or on behalf of any Party in connection with proceedings under or relating to the HSR ActAct or any other applicable Competition Laws. Ecolab and Nalco will jointly control the coordination of any filings, the Foreign Competition Laws obtaining any necessary approvals, and resolving any investigation or other Antitrust inquiry of any such agency or other Governmental Authority under the HSR Act or any other applicable Competition Laws, including the timing of the initial filing, which will be made as promptly as practicable after the date of this Agreement.
(bd) Without limiting Subject to the general obligations foregoing provisions of Parent and GFI under this Section 5.3(a) (Consents and Approvals)7.4, each of Parent Ecolab and GFI shall Nalco will use its reasonable best efforts (including by taking actions and entering into agreements of the type set forth in the definition of “Burdensome Condition” which are not excluded by the limitations set forth in the provisos thereto) to resolve such objections, if any, as may be asserted by any Governmental Entity Authority with respect to the Transactions transactions contemplated by this Agreement under the Antitrust HSR Act or any other applicable Competition Laws. In connection therewith and subject to Section 5.3(a) (Consents and Approvals)therewith, if any Proceeding is instituted (or threatened to be instituted) challenging any of the Transactions transaction contemplated by this Agreement as inconsistent with or violative of any Antitrust Competition Law, each of Parent Ecolab and GFI shall cooperate and use its reasonable best efforts vigorously to contest and resist Nalco will (by negotiation, litigation or otherwise) cooperate and use its reasonable best efforts to vigorously contest and resist any such Proceeding and to have vacated, lifted, reversed or overturned any Order whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents, delays or restricts consummation of the Transactions, unless Parent reasonably and in good faith determines that litigation is not in its best intereststransactions contemplated by this Agreement. Notwithstanding the foregoing or any other provision of this Agreement, nothing in this Section 5.3(b) shall 7.4 will limit the right of a Party to terminate this Agreement pursuant to in accordance with Section 7.1 (Termination)9.1, so long as such Party has until that time complied in all material respects with its obligations under this Section 5.37.4. Each of Parent Ecolab and GFI shall Nalco will use its reasonable best efforts to take such action as may be required to cause the expiration of the notice periods or to obtain the necessary approvals under the HSR Act, the Foreign Act and all other applicable Competition Laws or any other Antitrust Laws with respect to the Transactions transactions contemplated by this Agreement as promptly as possible after the execution date of this Agreement.
(ce) Notwithstanding anything to the contrary in Section 7.4(d) or anything else in this Agreement, nothing in this Agreement shall will be deemed to require Parent Ecolab or Nalco or any Parent Subsidiary of their respective Subsidiaries to agree to or take any action that would result in any Burdensome Condition. None of GFI or any GFI Subsidiary shall agree to or take any action that would result in any Burdensome Condition without the prior written consent of Parent. For purposes of this Agreement, a “Burdensome Condition” shall mean making proposals, executing or carrying out agreements (including consent decrees) or submitting to Laws (i) providing for the transfer, license, sale or other disposition or holding separate (through the establishment of a trust or otherwise) of any assets or categories of assets of Parent, GFI or any of their respective Subsidiaries or the holding separate (through the establishment of a trust or otherwise) of the Securities of any Parent Subsidiary or GFI Subsidiary or (ii) imposing or seeking to impose any limitation on the ability of Parent, GFI or any of their respective Subsidiaries to conduct their respective businesses (including with respect to market practices and structure) or own such assets or to acquire, hold or exercise full rights of ownership of the business of GFI, the GFI Subsidiaries, Parent or the Parent Subsidiaries, in each case other than (x) with respect to Antitrust Laws, any such proposals, executing or carrying out agreements (including consent decrees) or submitting to Laws that would not impair in any material respect the expected benefits of Parent and the Parent Subsidiaries from or relating to the Transactions, or (y) with respect to Regulatory Approvals, any immaterial administrative or ministerial obligations of Parent or any Parent Subsidiary.
Appears in 1 contract
Samples: Merger Agreement (Nalco Holding CO)
Consents and Approvals. (a) Subject to the terms Purchaser and conditions of this AgreementSeller shall each take, each of Parent and GFI will use its reasonable best efforts shall cause their Affiliates to take, all reasonable steps necessary or appropriate, and shall use, and shall cause their Affiliates to use, all commercially reasonable efforts, to obtain as promptly as practicable all consents, approvals, authorizations, licenses and orders of Governmental Authorities required to be takenobtained by Purchaser, Seller or any of their Affiliates (including the Company) in connection with the consummation of the transactions contemplated by this Agreement. Without limiting the foregoing, each party shall, as promptly as practicable, make all actions filings and to do, notifications with all Governmental Authorities that may be or cause to be done, all things may become reasonably necessary, proper or advisable under this Agreement and applicable Law Laws to consummate and make effective the Transactionstransactions contemplated by this Agreement. The parties hereto shall keep one another reasonably informed of developments relating to their efforts to obtain such consents, includingapprovals, preparing authorizations, licenses and filing as promptly as practicable orders, including receipt of any supplemental requests or inquiries from any Governmental Authority and the scheduling of any hearing or meeting with or before any Governmental Authority, including all documentation to effect all necessary filings, notices, petitions, statements, registrations, submissions of information, filings and applications required to be filed in order to obtain Sellers’ Approvals and other documents necessary and appropriate to consummate the TransactionsPurchaser’s Approvals. In furtherance and not in limitation Each of the foregoingparties hereto shall use commercially reasonable efforts to promptly respond to any supplemental requests or inquiries received by, each of Parent and GFI shall (i) make or cause to be made the filings required of directed at, such party under the Foreign Competition Laws (including those set forth in Section 3.4(b)(i) of the Parent Disclosure Letter) with respect to the Transactions as promptly as practicable after the date of this Agreement; (ii) take all actions to obtain and make the Regulatory Approvals set forth in Section 3.4(b)(ii) of the Parent Disclosure Letter as promptly as practicable after the date of this Agreement; (iii) comply at the earliest practicable date with any request under from any Governmental Entity (including under any Foreign Competition Laws) in respect of such filings Authority or such Transaction; and (iv) act in good faith and reasonably cooperate with the other Party party hereto in connection with obtaining any such filings necessary consents, approvals, authorizations, licenses and orders and shall provide and shall cause their respective Affiliates to provide, such information and communications to Governmental Authorities or the other party as such Governmental Authorities or the other party, as applicable, may reasonably request in connection with resolving any investigation or other inquiry of any such agency or other Governmental Entity under any of the HSR Act, the Foreign Competition Laws, the Xxxxxxx Act, the Xxxxxxx Act and any other Laws or Orders that are designed to prohibit, restrict or regulate actions having the purpose or effect of monopolization or restraint of trade (collectively, the “Antitrust Laws”) with respect to any such filing or any such Transaction. To the extent not prohibited by applicable Law, the Parties shall use reasonable best efforts to furnish to each other all information required for any application or other filing to be made pursuant to any applicable Law in connection with the Transactions. Each Party shall give each other reasonable prior notice of any substantive communication with, and any proposed understanding, undertaking or agreement with, any Governmental Entity regarding any such filings or any such Transaction. No Party shall independently participate in any meeting, or engage in any substantive conversation, with any Governmental Entity in respect of any such filings, investigation or other inquiry without giving the other Parties prior notice of the meeting or conversation and, unless prohibited by such any Governmental Entity, the opportunity to attend or participate. The Parties contemplate that as a general matter both Parent and GFI shall be represented at in-person meetings with any Governmental Entity. The Parties will consult and cooperate with one another in connection with any analyses, appearances, presentations, memoranda, briefs, arguments, opinions and proposals made or submitted by or on behalf of any Party in connection with proceedings under or relating to the HSR Act, the Foreign Competition Laws or other Antitrust Laws.
(b) Without limiting the general obligations of Parent and GFI under Section 5.3(a) (Consents and Approvals), each of Parent and GFI shall use its reasonable best efforts to resolve such objections, if any, as may be asserted by any Governmental Entity with respect to the Transactions under the Antitrust Laws. In connection therewith and subject to Section 5.3(a) (Consents and Approvals), if any Proceeding is instituted (or threatened to be instituted) challenging any of the Transactions as inconsistent with or violative of any Antitrust Law, each of Parent and GFI shall cooperate and use its reasonable best efforts vigorously to contest and resist (by negotiation, litigation or otherwise) any such Proceeding and to have vacated, lifted, reversed or overturned any Order whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents, delays or restricts consummation of the Transactions, unless Parent reasonably and in good faith determines that litigation is not in its best intereststherewith. Notwithstanding the foregoing or any other provision of this Agreement, nothing in this Section 5.3(b) shall limit the right of a Party to terminate this Agreement pursuant to Section 7.1 (Termination), so long as such Party has until that time complied in all material respects with its obligations under this Section 5.3. Each of Parent and GFI shall use its reasonable best efforts to take such action as may be required to cause the expiration of the notice periods or to obtain the necessary approvals under the HSR Act, the Foreign Competition Laws or any other Antitrust Laws with respect to the Transactions as promptly as possible after the execution of this Agreement.
(c) Notwithstanding anything to the contrary in this Agreementcontrary, nothing in this Agreement shall will be deemed to require Parent Seller to consent to a condition or burden imposed by a Governmental Authority in connection with the granting of any of the Sellers’ Approvals or Purchaser’s Approvals if such condition or burden would place a material regulatory, financial or operational burden on Seller, any of its Affiliates, or any Parent Subsidiary direct or indirect parent company of UFG Holdings LLC, as reasonably determined in Purchaser’s sole discretion. Notwithstanding anything herein to agree the contrary, (i) Purchaser shall use its commercially reasonable efforts to or take any action that would result cause a Form A to be filed with the Department of Insurance of Alabama in any Burdensome Condition. None respect of GFI or any GFI Subsidiary shall agree to or take any action that would result in any Burdensome Condition without the prior written consent of Parent. For purposes transactions contemplated by this Agreement as soon as possible following the date of this Agreement, a “Burdensome Condition” shall mean making proposals, executing or carrying out agreements but in no event later than ten (including consent decrees10) or submitting to Laws (i) providing for days following the transfer, license, sale or other disposition or holding separate (through the establishment date of a trust or otherwise) of any assets or categories of assets of Parent, GFI or any of their respective Subsidiaries or the holding separate (through the establishment of a trust or otherwise) of the Securities of any Parent Subsidiary or GFI Subsidiary or this Agreement and (ii) imposing or Seller hereby agrees, in furtherance and not limitation of the foregoing subparagraph (a) but subject to any express limitations stated therein, to provide all reasonable and necessary assistance requested by Purchaser in connection with the preparation, filing, and completion of the Form A filing.
(b) The Sellers and Purchaser shall each use their commercially reasonable efforts to cooperate with each other and their respective Affiliates in seeking to impose any limitation on the ability of Parentobtain all such consents, GFI or any of approvals, authorizations, licenses and orders, and shall provide and shall cause their respective Subsidiaries Affiliates to conduct their respective businesses (including with respect provide, such information and communications to market practices and structure) or own such assets or to acquire, hold or exercise full rights of ownership of the business of GFI, the GFI Subsidiaries, Parent Governmental Authorities or the Parent Subsidiariesother party as such Governmental Authorities or the other party, as applicable, may reasonably request in each case other than (x) with respect to Antitrust Laws, any such proposals, executing or carrying out agreements (including consent decrees) or submitting to Laws that would not impair in any material respect the expected benefits of Parent and the Parent Subsidiaries from or relating to the Transactions, or (y) with respect to Regulatory Approvals, any immaterial administrative or ministerial obligations of Parent or any Parent Subsidiaryconnection therewith.
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Consents and Approvals. (a) Subject to the terms Seller and conditions of this Agreement, Buyer will each of Parent and GFI will use its reasonable best efforts to take, file or cause to be takenfiled with the Federal Trade Commission and the United States Department of Justice, all actions and to do, or cause Antitrust Division any MISSOURI GAS notifications required to be done, all things necessary, proper or advisable under applicable Law to consummate the Transactions, including, preparing and filing as promptly as practicable all documentation to effect all necessary filings, notices, petitions, statements, registrations, submissions of information, applications and other documents necessary and appropriate to consummate the Transactions. In furtherance and not in limitation of the foregoing, each of Parent and GFI shall (i) make or cause to be made the filings required of such party filed under the Foreign Competition Laws (including those set forth in Section 3.4(b)(i) of HSR Act and the Parent Disclosure Letter) rules and regulations promulgated thereunder with respect to the Transactions as promptly as practicable after the date of this Agreement; (ii) take all actions to obtain and make the Regulatory Approvals set forth in Section 3.4(b)(ii) of the Parent Disclosure Letter as promptly as practicable after the date of this Agreement; (iii) comply at the earliest practicable date with any request under any Governmental Entity (including under any Foreign Competition Laws) in respect of such filings or such Transaction; and (iv) act in good faith and reasonably cooperate with the other Party in connection with any such filings and in connection with resolving any investigation or other inquiry of any such agency or other Governmental Entity under any of the HSR Act, the Foreign Competition Laws, the Xxxxxxx Act, the Xxxxxxx Act and any other Laws or Orders that are designed to prohibit, restrict or regulate actions having the purpose or effect of monopolization or restraint of trade (collectively, the “Antitrust Laws”) with respect to any such filing or any such Transaction. To the extent not prohibited by applicable Law, the Parties shall use reasonable best efforts to furnish to each other all information required for any application or other filing to be made pursuant to any applicable Law in connection with the Transactions. Each Party shall give each other reasonable prior notice of any substantive communication with, and any proposed understanding, undertaking or agreement with, any Governmental Entity regarding any such filings or any such Transaction. No Party shall independently participate in any meeting, or engage in any substantive conversation, with any Governmental Entity in respect of any such filings, investigation or other inquiry without giving the other Parties prior notice of the meeting or conversation and, unless prohibited by such any Governmental Entity, the opportunity to attend or participate. The Parties contemplate that as a general matter both Parent and GFI shall be represented at in-person meetings with any Governmental Entitytransactions contemplated hereby. The Parties will consult and cooperate with one another in connection with any analyses, appearances, presentations, memoranda, briefs, arguments, opinions and proposals made or submitted by or on behalf of any Party in connection with proceedings under or relating each other as to the appropriate time of filing such notifications and will (i) make such filings at the agreed upon time, (ii) respond promptly to any requests for additional information made by either of such agencies, and (iii) use their commercially reasonable efforts to cause the waiting periods under the HSR Act, Act to terminate or expire at the Foreign Competition Laws or other Antitrust Lawsearliest possible date after the date of such filings.
(b) Without limiting Seller and Buyer will cooperate with each other and use commercially reasonable efforts to (i) promptly prepare and file all necessary applications, notices, petitions, and filings, and execute all agreements and documents to the general obligations extent required by Law or Order for consummation of Parent and GFI under Section 5.3(a) the transactions contemplated by this Agreement (Consents and including the Required Regulatory Approvals), (ii) obtain the transfer to Buyer of all Transferable Permits and Transferable Environmental Permits, and the reissuance to Buyer of all Permits that are not Transferable Permits and all Environmental Permits that are not Transferable Environmental Permits, (iii) obtain the consents, approvals, and authorizations of all Governmental Entities to the extent required by Law or Order for consummation of the transactions contemplated by this Agreement (including the Required Regulatory Approvals) (including by taking all structural corporate actions necessary to consummate the transactions contemplated hereby in a timely manner), and (iv) obtain all consents, approvals, and authorizations of all other Persons to the extent necessary to consummate the transactions contemplated by this Agreement as required by the terms of any note, bond, mortgage, indenture, deed of trust, license, franchise, permit, concession, contract, lease, or other instrument to which Seller or Buyer is a party or by which either of them is bound. Seller and Buyer each will have the right to review in advance all characterizations of Parent and GFI shall use its reasonable best efforts the information relating to resolve such objectionsit or the transactions contemplated by this Agreement which appear in any filing made by the other in connection with the transactions contemplated hereby.
(c) Neither Party will on an ex parte basis initiate, if anydirectly or indirectly, as may be asserted by any communications, meetings, or other contacts with any Governmental Entity in connection with respect the transactions contemplated hereby or any matters relating to the Transactions under the Antitrust Lawsany declaration, filing, or registration with, notice to, or authorization, consent, or approval of any such Governmental Entity in connection with this Agreement. In connection therewith with any communications, meetings, or other contacts, formal or informal, oral or written, with any Governmental Entity in connection with the transactions contemplated hereby or any such declaration, filing, registration, notice, authorization, consent, or approval, each Party agrees: (i) to inform the other in advance of any such communication, meeting, or other contact which such Party proposes or intends to make, including the subject matter, contents, intended agenda, and subject to Section 5.3(a) (Consents and Approvals), if any Proceeding is instituted (or threatened to be instituted) challenging other aspects of any of the Transactions as inconsistent foregoing; (ii) to consult and cooperate with the other Party, and to take into account the comments of such other Party in connection with any of the matters covered by Section 7.6(c)(i); (iii) to arrange for representatives of the other Party to participate to the maximum extent possible in any such communications, meetings, or violative other contacts; (iv) to notify the other Party of any Antitrust Law, each of Parent and GFI shall cooperate and use its reasonable best efforts vigorously oral communications with any Governmental Entity relating to contest and resist (by negotiation, litigation or otherwise) any such Proceeding and to have vacated, lifted, reversed or overturned any Order whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents, delays or restricts consummation of the Transactions, unless Parent reasonably foregoing; and in good faith determines that litigation is not in its best interests(v) to provide the other Party with copies of all written communications with any Governmental Entity relating to any of the foregoing. Notwithstanding the foregoing or any other provision of this Agreementforegoing, nothing in this Section 5.3(b) shall limit the right of a Party to terminate this Agreement pursuant to Section 7.1 (Termination), so long as such Party has until that time complied in all material respects with its obligations under this Section 5.3. Each of Parent and GFI shall use its reasonable best efforts to take such action as may be required to cause the expiration of the notice periods or to obtain the necessary approvals under the HSR Act, the Foreign Competition Laws or any other Antitrust Laws with respect to the Transactions as promptly as possible after the execution of this Agreement.
(c) Notwithstanding anything to the contrary in this Agreement, nothing in this Agreement shall be deemed to require Parent or any Parent Subsidiary to agree 7.6 will apply to or take any action that would result in any Burdensome Condition. None of GFI or any GFI Subsidiary shall agree to or take any action that would result in any Burdensome Condition without the prior written consent of Parent. For purposes of this Agreement, a “Burdensome Condition” shall mean making proposals, executing or carrying out agreements (including consent decrees) or submitting to Laws (i) providing for the transfer, license, sale restrict communications or other disposition actions by MISSOURI GAS Seller with or holding separate (through the establishment of a trust or otherwise) of any assets or categories of assets of Parent, GFI or any of their respective Subsidiaries or the holding separate (through the establishment of a trust or otherwise) of the Securities of any Parent Subsidiary or GFI Subsidiary or (ii) imposing or seeking with regard to impose any limitation on the ability of Parent, GFI or any of their respective Subsidiaries to conduct their respective businesses (including Governmental Entities in connection with respect to market practices and structure) or own such assets or to acquire, hold or exercise full rights of ownership of the business of GFI, the GFI Subsidiaries, Parent or the Parent Subsidiaries, in each case other than (x) with respect to Antitrust Laws, any such proposals, executing the Purchased Assets or carrying out agreements (including consent decrees) or submitting to Laws that would not impair the Business in any material respect the expected benefits ordinary course of Parent and the Parent Subsidiaries from or relating to the Transactionsbusiness, or (y) the transactions contemplated by Section 7.9.
(d) Seller and Buyer will cooperate with respect each other and promptly prepare and file notifications with, and request Tax clearances from, state and local taxing authorities in jurisdictions in which a portion of the Purchase Price may be required to Regulatory Approvals, be withheld or in which Buyer would otherwise be liable for any immaterial administrative or ministerial obligations Tax liabilities of Parent or Seller pursuant to such state and local Tax Law (other than any Parent Subsidiarysuch liabilities which under the terms hereof are to be paid by Buyer).
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Consents and Approvals. (a) Subject Each of Parent, the Purchaser ---------------------- and the Company shall take all reasonable actions necessary to the terms and conditions of this Agreement, each of Parent and GFI will use its reasonable best efforts to take, or cause to comply promptly with all legal requirements which may be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under applicable Law to consummate the Transactions, including, preparing and filing as promptly as practicable all documentation to effect all necessary filings, notices, petitions, statements, registrations, submissions of information, applications and other documents necessary and appropriate to consummate the Transactions. In furtherance and not in limitation of the foregoing, each of Parent and GFI shall (i) make or cause to be made the filings required of such party under the Foreign Competition Laws (including those set forth in Section 3.4(b)(i) of the Parent Disclosure Letter) imposed on it with respect to this Agreement and the Transactions as promptly as practicable after (which actions shall include, without limitation, furnishing all information required under the date HSR Act and in connection with approvals of this Agreement; (ii) take all actions to obtain and make the Regulatory Approvals set forth in Section 3.4(b)(ii) of the Parent Disclosure Letter as promptly as practicable after the date of this Agreement; (iii) comply at the earliest practicable date or filings with any request under any other Governmental Entity (including under any Foreign Competition LawsEntity) in respect of such filings or such Transaction; and (iv) act in good faith and reasonably shall promptly cooperate with the and, subject to such confidentiality agreements as may be reasonably necessary or requested, furnish information to each other Party or their counsel in connection with any such filings and requirements imposed upon any of them or any of their Subsidiaries in connection with resolving this Agreement and the Transactions. Each of the Company, Parent and the Purchaser shall, and shall cause respective Subsidiaries to, take all reasonable actions necessary to obtain (and shall cooperate with each other in obtaining) any investigation consent, authorization, order or approval of, or any exemption by, any Governmental Entity or other inquiry of any such agency public or other Governmental Entity under private third party required to be obtained or made by Parent, the Purchaser, the Company or any of the HSR Act, the Foreign Competition Laws, the Xxxxxxx Act, the Xxxxxxx Act and any other Laws or Orders that are designed to prohibit, restrict or regulate actions having the purpose or effect of monopolization or restraint of trade (collectively, the “Antitrust Laws”) with respect to any such filing or any such Transaction. To the extent not prohibited by applicable Law, the Parties shall use reasonable best efforts to furnish to each other all information required for any application or other filing to be made pursuant to any applicable Law their respective Subsidiaries in connection with the Transactions. Each Party shall give each other reasonable prior notice Transactions or the taking of any substantive communication with, and any proposed understanding, undertaking action contemplated thereby or agreement with, any Governmental Entity regarding any such filings or any such Transaction. No Party shall independently participate in any meeting, or engage in any substantive conversation, with any Governmental Entity in respect of any such filings, investigation or other inquiry without giving the other Parties prior notice of the meeting or conversation and, unless prohibited by such any Governmental Entity, the opportunity to attend or participate. The Parties contemplate that as a general matter both Parent and GFI shall be represented at in-person meetings with any Governmental Entity. The Parties will consult and cooperate with one another in connection with any analyses, appearances, presentations, memoranda, briefs, arguments, opinions and proposals made or submitted by or on behalf of any Party in connection with proceedings under or relating to the HSR Act, the Foreign Competition Laws or other Antitrust Lawsthis Agreement.
(b) Without limiting Each of the general obligations Company, the Purchaser and Parent shall take all reasonable actions necessary to file as soon as practicable following the date hereof notifications under the HSR Act, or under comparable merger notification laws under foreign jurisdictions, and to respond as promptly as practicable to any inquiries received from the Federal Trade Commission or the Antitrust Division of Parent the Department of Justice or any authorities of such other foreign jurisdictions for additional information or documentation and GFI under Section 5.3(a) (Consents to respond as promptly as practicable to all inquiries and Approvals), each of Parent and GFI shall use its reasonable best efforts to resolve such objections, if any, as may be asserted by requests received from any State Attorney General or other Governmental Entity in connection with respect to the Transactions under the Antitrust Laws. In connection therewith and subject to Section 5.3(a) (Consents and Approvals), if any Proceeding is instituted (antitrust or threatened to be instituted) challenging any of the Transactions as inconsistent with or violative of any Antitrust Law, each of Parent and GFI shall cooperate and use its reasonable best efforts vigorously to contest and resist (by negotiation, litigation or otherwise) any such Proceeding and to have vacated, lifted, reversed or overturned any Order whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents, delays or restricts consummation of the Transactions, unless Parent reasonably and in good faith determines that litigation is not in its best interestscompetition matters. Notwithstanding the foregoing foregoing, or any other provision covenant herein contained, in connection with the receipt of this Agreement, nothing in this Section 5.3(b) shall limit the right of a Party to terminate this Agreement pursuant to Section 7.1 (Termination), so long as such Party has until that time complied in all material respects with its obligations under this Section 5.3. Each of Parent and GFI shall use its reasonable best efforts to take such action as may be required to cause the expiration of the notice periods or to obtain the any necessary approvals under the HSR Act, neither Parent nor the Foreign Competition Laws or any other Antitrust Laws with respect to the Transactions as promptly as possible after the execution of this Agreement.
(c) Notwithstanding anything to the contrary in this Agreement, nothing in this Agreement Company shall be deemed required to require Parent divest or any Parent Subsidiary hold separate or otherwise take or commit to agree to or take any action that would result in any Burdensome Condition. None limits Parent's or Company's freedom of GFI action with respect to, or their ability to retain, the Company or any GFI Subsidiary shall agree to or take any action that would result in any Burdensome Condition without the prior written consent of Parent. For purposes of this Agreement, a “Burdensome Condition” shall mean making proposals, executing or carrying out agreements (including consent decrees) or submitting to Laws (i) providing for the transfer, license, sale or other disposition or holding separate (through the establishment of a trust or otherwise) of any assets or categories of assets of Parent, GFI material portions thereof or any of their respective Subsidiaries the businesses, product lines, properties or the holding separate (through the establishment of a trust or otherwise) assets of the Securities of any Parent Subsidiary or GFI Subsidiary or (ii) imposing or seeking to impose any limitation on the ability of Parent, GFI or any of their respective Subsidiaries to conduct their respective businesses (including with respect to market practices and structure) or own such assets or to acquire, hold or exercise full rights of ownership of the business of GFI, the GFI Subsidiaries, Parent or the Parent Subsidiaries, in each case other than (x) with respect to Antitrust Laws, any such proposals, executing or carrying out agreements (including consent decrees) or submitting to Laws that would not impair in any material respect the expected benefits of Parent and the Parent Subsidiaries from or relating to the Transactions, or (y) with respect to Regulatory Approvals, any immaterial administrative or ministerial obligations of Parent or any Parent SubsidiaryCompany.
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Consents and Approvals. (a) Subject to the terms and conditions of this Agreement, each of Parent and GFI the parties 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 Law to consummate the Transactionstransactions contemplated by this Agreement, including, including preparing and filing as promptly as practicable all documentation to effect all necessary filings, notices, petitions, statements, registrations, submissions of information, applications and other documents necessary and appropriate to consummate the Transactions. In furtherance and not in limitation of the foregoingtransactions contemplated by this Agreement, each of Parent and GFI shall (i) make or cause to be made the including, without limitation, any filings required of such party under the Foreign Competition Laws (including those set forth in Section 3.4(b)(i) of the Parent Disclosure Letter) with respect to the Transactions as promptly as practicable after the date of this Agreement; (ii) take all actions to obtain and make the Regulatory Approvals set forth in Section 3.4(b)(ii) of the Parent Disclosure Letter as promptly as practicable after the date of this Agreement; (iii) comply at the earliest practicable date with any request under any Governmental Entity (including under any Foreign Competition Laws) in respect of such filings or such Transaction; and (iv) act in good faith and reasonably cooperate with the other Party in connection with any such filings and in connection with resolving any investigation or other inquiry of any such agency or other Governmental Entity under any of the HSR Securities Act, the Foreign Competition Laws, the Xxxxxxx Exchange Act, any applicable state or securities or “blue sky” laws and the Xxxxxxx Act and securities laws of any foreign country, or under any other Laws or Orders that are designed to prohibit, restrict or regulate actions having the purpose or effect of monopolization or restraint of trade (collectively, the “Antitrust Laws”) with respect to any such filing or any such Transaction. To the extent not prohibited by applicable Law, the Parties shall use reasonable best efforts to furnish to each other all information required for any application or other filing to be made pursuant to any applicable Law in connection with the Transactions. Each Party shall give each other reasonable prior notice of any substantive communication with, and any proposed understanding, undertaking or agreement with, any Governmental Entity regarding any such filings or any such Transaction. No Party shall independently participate in any meeting, or engage in any substantive conversation, with any Governmental Entity in respect of any such filings, investigation or other inquiry without giving the other Parties prior notice of the meeting or conversation and, unless prohibited by such any Governmental Entity, the opportunity to attend or participate. The Parties contemplate that as a general matter both Parent and GFI shall be represented at in-person meetings with any Governmental Entity. The Parties will consult and cooperate with one another in connection with any analyses, appearances, presentations, memoranda, briefs, arguments, opinions and proposals made or submitted by or on behalf of any Party in connection with proceedings under or relating to the HSR Act, transactions contemplated by this Agreement. Each party will cause all documents that it is responsible for filing with any Government Entity under this Section 9.2 to comply in all material respects with all applicable Laws. Each party shall promptly supply the Foreign Competition Laws other with any information which may be required in order to effectuate any filings or other Antitrust Lawsapplication pursuant to this Section 9.2.
(b) Without limiting Upon the general obligations of Parent terms and GFI under Section 5.3(a) (Consents and Approvals)subject to the conditions set forth herein, each of Parent and GFI shall the parties agrees to use its the reasonable best efforts to resolve such objectionstake, if any, as may be asserted by any Governmental Entity with respect to the Transactions under the Antitrust Laws. In connection therewith and subject to Section 5.3(a) (Consents and Approvals), if any Proceeding is instituted (or threatened cause to be instituted) challenging any of the Transactions as inconsistent with or violative of any Antitrust Lawtaken, each of Parent and GFI shall cooperate and use its reasonable best efforts vigorously to contest and resist (by negotiationall actions, litigation or otherwise) any such Proceeding and to have vacateddo, liftedor cause to be done, reversed and to assist and cooperate with the other parties in doing, all things necessary, proper or overturned any Order whether temporaryadvisable to consummate and make effective, preliminary or permanentin the most expeditious manner practicable, that is in effect and that prohibits, prevents, delays or restricts consummation of the Transactions, unless Parent reasonably and in good faith determines that litigation is not in its best interests. Notwithstanding the foregoing or any other provision of transactions contemplated by this Agreement, nothing in this Section 5.3(b) shall limit the right of a Party to terminate this Agreement pursuant to Section 7.1 (Termination), so long as such Party has until that time complied in including using all material respects with its obligations under this Section 5.3. Each of Parent and GFI shall use its their respective reasonable best efforts to take such action accomplish the following: (i) the taking of all reasonable acts necessary to cause the conditions precedent set forth in Section 5 to be satisfied, (ii) the obtaining of all necessary actions or nonactions, waivers, consents, approvals, orders and authorizations from Government Entities and the making of all necessary registrations, declarations and filings (including registrations, declarations and filings with Government Entities, if any) and the taking of all necessary steps as may be required necessary to cause avoid any suit, claim, action, investigation or proceeding by any Government Entity, (iii) the expiration obtaining of all necessary consents, approvals or waivers from third parties, and (iv) the execution or delivery of any additional instruments necessary to consummate the transactions and to fully carry out the purposes of, this Agreement. In connection with and without limiting the foregoing, the Company and the Company Board shall, if any takeover statute or similar Law is or becomes applicable to this Agreement or any of the notice periods or transactions contemplated by this Agreement, use all its respective reasonable best efforts to obtain ensure that the necessary approvals under the HSR Act, the Foreign Competition Laws or any other Antitrust Laws with respect to the Transactions transactions contemplated by this Agreement may be consummated as promptly as possible after practicable on the execution of this Agreement.
(c) Notwithstanding anything to the contrary in this Agreement, nothing in terms contemplated by this Agreement shall be deemed and otherwise to require Parent or any Parent Subsidiary to agree to or take any action that would result in any Burdensome Condition. None minimize the effect of GFI or any GFI Subsidiary shall agree to or take any action that would result in any Burdensome Condition without the prior written consent of Parent. For purposes of such Law on this Agreement, a “Burdensome Condition” shall mean making proposals, executing or carrying out agreements (including consent decrees) or submitting to Laws (i) providing for the transfer, license, sale or other disposition or holding separate (through the establishment of a trust or otherwise) of any assets or categories of assets of Parent, GFI or any of their respective Subsidiaries or the holding separate (through the establishment of a trust or otherwise) of the Securities of any Parent Subsidiary or GFI Subsidiary or (ii) imposing or seeking to impose any limitation on the ability of Parent, GFI or any of their respective Subsidiaries to conduct their respective businesses (including with respect to market practices and structure) or own such assets or to acquire, hold or exercise full rights of ownership of the business of GFI, the GFI Subsidiaries, Parent or the Parent Subsidiaries, in each case other than (x) with respect to Antitrust Laws, any such proposals, executing or carrying out agreements (including consent decrees) or submitting to Laws that would not impair in any material respect the expected benefits of Parent Agreement and the Parent Subsidiaries from or relating to the Transactions, or (y) with respect to Regulatory Approvals, any immaterial administrative or ministerial obligations of Parent or any Parent Subsidiarytransactions contemplated hereby.
Appears in 1 contract
Consents and Approvals. (a) Subject The Seller shall use their best efforts, and shall cause the Company to the terms and conditions of this Agreement, each of Parent and GFI will use its reasonable best efforts efforts, to takeobtain all consents, or cause to be takenapprovals, all actions and to do, or cause to be done, all things necessary, proper or advisable under applicable Law to consummate the Transactions, including, preparing and filing as promptly as practicable all documentation to effect all necessary filings, notices, petitions, statements, registrations, submissions of information, applications certificates and other documents necessary required in connection with the performance by any such parties of this Agreement and appropriate to consummate their respective Related Agreements and the Transactions. In furtherance and not in limitation consummation of the foregoingtransactions contemplated hereby and thereby, including all consents and approvals by each party to any of Parent the Contracts referred to in EXHIBIT 3.3; provided, however, that no contact will be made by the Seller or the Company (or any representative of any of such Parties) with any third party to obtain any such consent or approval except in accordance with a plan previously agreed to by the Buyer.
(b) The Seller shall, and GFI shall (i) cause the Company to, make or cause all filings, applications, statements and reports to all Governmental Authorities and other Persons which are required to be made prior to the filings required of such party under the Foreign Competition Laws (including those set forth in Section 3.4(b)(i) Closing Date by or on behalf of the Parent Disclosure Letter) with respect to Seller, the Transactions as promptly as practicable after the date of this Agreement; (ii) take all actions to obtain and make the Regulatory Approvals set forth in Section 3.4(b)(ii) of the Parent Disclosure Letter as promptly as practicable after the date of this Agreement; (iii) comply at the earliest practicable date with any request under any Governmental Entity (including under any Foreign Competition Laws) in respect of such filings Company or such Transaction; and (iv) act in good faith and reasonably cooperate with the other Party in connection with any such filings and in connection with resolving any investigation or other inquiry of any such agency or other Governmental Entity under any of the HSR Act, the Foreign Competition Laws, the Xxxxxxx Act, the Xxxxxxx Act and any other Laws or Orders that are designed to prohibit, restrict or regulate actions having the purpose or effect of monopolization or restraint of trade (collectively, the “Antitrust Laws”) with respect to any such filing or any such Transaction. To the extent not prohibited by applicable Law, the Parties shall use reasonable best efforts to furnish to each other all information required for any application or other filing to be made their respective Affiliates pursuant to any applicable Law or contract in connection with this Agreement or any of their respective Related Agreements and the Transactions. Each Party shall give each other reasonable prior notice of any substantive communication withtransactions contemplated hereby and thereby, including prompt filings under the HSR Act, if applicable, and any proposed understanding, undertaking or agreement with, expedited submission of all materials required by any Governmental Entity regarding any such filings or any such Transaction. No Party shall independently participate in any meeting, or engage in any substantive conversation, with any Governmental Entity in respect of any such filings, investigation or other inquiry without giving the other Parties prior notice of the meeting or conversation and, unless prohibited by such any Governmental Entity, the opportunity to attend or participate. The Parties contemplate that as a general matter both Parent and GFI shall be represented at in-person meetings with any Governmental Entity. The Parties will consult and cooperate with one another Authority in connection with any analysessuch filings.
(c) The Buyer shall make all filings, appearancesapplications, presentations, memoranda, briefs, arguments, opinions statements and proposals reports to all Governmental Authorities and other Persons which are required to be made or submitted prior to the Closing Date by or on behalf of the Buyer or any Party of its Affiliates pursuant to any applicable Law or contract in connection with proceedings under or relating to the HSR Act, the Foreign Competition Laws or other Antitrust Laws.
(b) Without limiting the general obligations of Parent and GFI under Section 5.3(a) (Consents and Approvals), each of Parent and GFI shall use its reasonable best efforts to resolve such objections, if any, as may be asserted by any Governmental Entity with respect to the Transactions under the Antitrust Laws. In connection therewith and subject to Section 5.3(a) (Consents and Approvals), if any Proceeding is instituted (or threatened to be instituted) challenging any of the Transactions as inconsistent with or violative of any Antitrust Law, each of Parent and GFI shall cooperate and use its reasonable best efforts vigorously to contest and resist (by negotiation, litigation or otherwise) any such Proceeding and to have vacated, lifted, reversed or overturned any Order whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents, delays or restricts consummation of the Transactions, unless Parent reasonably and in good faith determines that litigation is not in its best interests. Notwithstanding the foregoing this Agreement or any other provision of this AgreementRelated Agreement and the transactions contemplated hereby and thereby, nothing in this Section 5.3(b) shall limit the right of a Party to terminate this Agreement pursuant to Section 7.1 (Termination), so long as such Party has until that time complied in all material respects with its obligations under this Section 5.3. Each of Parent and GFI shall use its reasonable best efforts to take such action as may be required to cause the expiration of the notice periods or to obtain the necessary approvals including prompt filings under the HSR Act, the Foreign Competition Laws or if applicable and expedited submission of all materials required by any other Antitrust Laws Governmental Authority in connection with respect to the Transactions as promptly as possible after the execution of this Agreementsuch filings.
(cd) Notwithstanding anything The Seller shall, and shall cause the Company to, make all filings, applications, statements and reports to the contrary in this AgreementSEC and the NASD which are required to be made prior to the Closing Date by or on behalf of the Seller, nothing in this Agreement shall be deemed to require Parent or any Parent Subsidiary to agree to or take any action that would result in any Burdensome Condition. None of GFI or any GFI Subsidiary shall agree to or take any action that would result in any Burdensome Condition without the prior written consent of Parent. For purposes of this Agreement, a “Burdensome Condition” shall mean making proposals, executing or carrying out agreements (including consent decrees) or submitting to Laws (i) providing for the transfer, license, sale or other disposition or holding separate (through the establishment of a trust or otherwise) of any assets or categories of assets of Parent, GFI Company or any of their respective Subsidiaries Affiliates pursuant to any applicable Law or the holding separate (through the establishment of a trust or otherwise) of the Securities of any Parent Subsidiary or GFI Subsidiary or (ii) imposing or seeking to impose any limitation on the ability of Parent, GFI contract in connection with this Agreement or any of their respective Subsidiaries to conduct their respective businesses (including with respect to market practices and structure) or own such assets or to acquire, hold or exercise full rights of ownership of the business of GFI, the GFI Subsidiaries, Parent or the Parent Subsidiaries, in each case other than (x) with respect to Antitrust Laws, any such proposals, executing or carrying out agreements (including consent decrees) or submitting to Laws that would not impair in any material respect the expected benefits of Parent Related Agreements and the Parent Subsidiaries from or relating to transactions contemplated hereby and thereby, including the Transactionsprompt and timely filings of Forms 3, or (y4 and 5 under the Exchange Act, and Form 15c-211 under SEC Section 15(c) under the Exchange Act, and the expedited submission of all materials required by any Governmental Authority in connection with respect to Regulatory Approvals, any immaterial administrative or ministerial obligations of Parent or any Parent Subsidiarysuch filings.
Appears in 1 contract
Samples: Stock Purchase Agreement (Vacation Ownership Marketing Inc)
Consents and Approvals. (a) Subject to the terms 7.2.1 Each of Buyer and conditions of this Agreement, each of Parent and GFI will Seller shall use its reasonable best efforts to (a) take, or cause to be taken, all actions appropriate action, and to do, or cause to be done, all things necessary, proper or advisable under applicable any Applicable Law or otherwise to consummate and make effective the Transactions, including, preparing and filing Contemplated Transactions as promptly as practicable all documentation and advisable, (b) obtain from any Governmental Authorities any consents, licenses, permits, waivers, clearances, approvals, authorizations, waiting period expirations or terminations, or orders required to effect all necessary filingsbe obtained or made by Buyer, noticesSeller or any of their respective Affiliates, petitionsor avoid any action or proceeding by any Governmental Authority (including those required under or with respect to the HSR Act and any other applicable Antitrust Laws), statementsin connection with the authorization, registrations, submissions execution and delivery of information, applications this Agreement and other documents necessary and appropriate to consummate the Transactions. In furtherance and not in limitation consummation of the foregoingContemplated Transactions (the “Required Governmental Approvals”), each of Parent and GFI shall (ic) make or cause to be made as promptly as practicable and advisable, but in no event later than ten (10) Business Days after the date hereof, the applications or filings required to be made by Buyer and Seller, including any of such party their respective Affiliates, under the Foreign Competition Laws (including those set forth in Section 3.4(b)(i) of the Parent Disclosure Letter) or with respect to the Transactions as promptly as practicable after HSR Act or any other applicable Required Governmental Approvals in connection with the date authorization, execution and delivery of this Agreement; (ii) take all actions to obtain Agreement and make the Regulatory Approvals set forth in Section 3.4(b)(ii) consummation of the Parent Disclosure Letter as promptly as practicable after the date of this Agreement; Contemplated Transactions, (iiid) comply at the earliest reasonably practicable and advisable date with any request under or with respect to the HSR Act or any other applicable Required Governmental Entity (Approvals, including under any Foreign Competition Laws) in respect requests for additional information, documents or other materials received by Buyer or Seller or any of such filings their respective Affiliates from the U.S. Federal Trade Commission or such Transaction; and (iv) act in good faith and reasonably cooperate with the other Party U.S. Department of Justice in connection with any such filings the Contemplated Transactions, and (e) reasonably coordinate and cooperate with, and give due consideration to all reasonable additions, deletions or changes suggested by, the other party in connection with, making (A) any filing under or with respect to the HSR Act or any other Required Governmental Approvals and (B) any filings, conferences or other submissions related to resolving any investigation or other inquiry of by any such agency or other Governmental Entity under any of the HSR Act, the Foreign Competition Laws, the Xxxxxxx Act, the Xxxxxxx Act and any other Laws or Orders that are designed to prohibit, restrict or regulate actions having the purpose or effect of monopolization or restraint of trade (collectively, the “Antitrust Laws”) with respect to any such filing or any such Transaction. To the extent not prohibited by applicable Law, the Parties shall use reasonable best efforts to furnish to each other all information required for any application or other filing to be made pursuant to any applicable Law Authority in connection with the consummation of the Contemplated Transactions. Each The filing fee associated with any filing required to be made with respect to the HSR Act shall be split equally between the Parties. Neither Buyer nor Seller shall knowingly take, cause or permit to be taken or omit to take any action which such Party shall give reasonably expects is likely to materially delay or prevent consummation of the Contemplated Transactions.
7.2.2 Without limiting the generality of the undertakings pursuant to Section 7.2.1, each of Buyer and Seller agree to: (i) reasonably consult and cooperate with each other, and consider in good faith the views of each other, in connection with any filing, submission, or oral presentation and in connection with any investigation or other inquiry, including any proceeding initiated by a Governmental Authority regarding the Contemplated Transactions; (ii) keep the other Party and its counsel informed on a current basis of any communication received by such Party from, or given by any Governmental Authority to such Party, in each case, regarding any of the Contemplated Transactions; (iii) permit the other Party and its counsel to review the non-confidential portions of any material communication (except that such Party may, as advisable and necessary, reasonably designate any competitively sensitive material as “outside counsel only” and provide that material only to the other Party’s outside legal counsel) given by it to, and consult with each other reasonable prior notice in advance of any substantive communication with, and any proposed understanding, undertaking meeting or agreement conference with, any Governmental Entity regarding any such filings or any such Transaction. No Party shall independently participate in any meetingAuthority, or engage in any substantive conversationand to the extent permitted by the Governmental Authority, with any Governmental Entity in respect of any such filings, investigation or other inquiry without giving give the other Parties prior notice of the meeting or conversation and, unless prohibited by such any Governmental Entity, Party and its counsel the opportunity to attend or participate. The Parties contemplate that as a general matter both Parent and GFI shall be represented at in-person participate in such meetings with any Governmental Entity. The Parties will consult and cooperate with one another in connection with any analyses, appearances, presentations, memoranda, briefs, arguments, opinions conferences; and proposals made or submitted by or on behalf of any Party in connection with proceedings under or relating to the HSR Act, the Foreign Competition Laws or other Antitrust Laws.
(biv) Without limiting the general obligations of Parent and GFI under Section 5.3(a) (Consents and Approvals), each of Parent and GFI shall use its reasonable best efforts promptly seek to resolve such objections, if any, as any objection that may be asserted by any a Governmental Entity Authority with respect to the Contemplated Transactions under the HSR Act or any Antitrust Laws. In connection therewith and subject Notwithstanding anything herein to Section 5.3(athe contrary, neither Buyer nor Seller, without the other Party’s prior written consent, shall (i) enter into any timing, settlement or similar agreement, or otherwise agree or commit to any arrangement, that would have the effect of extending, suspending, lengthening or otherwise tolling the expiration or termination of the waiting period applicable to the Contemplated Transactions under the HSR Act or any Antitrust Laws, or (Consents and Approvals)ii) enter into any timing or similar agreement, if or otherwise agree or commit to any Proceeding is instituted arrangement, that would bind or commit the Parties not to complete the Contemplated Transactions (or threatened to be instituted) challenging any of that would otherwise prevent or prohibit the Transactions as inconsistent with or violative of any Antitrust Law, each of Parent and GFI shall cooperate and use its reasonable best efforts vigorously to contest and resist (by negotiation, litigation or otherwise) any such Proceeding and to have vacated, lifted, reversed or overturned any Order whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents, delays or restricts consummation of Parties from completing the Contemplated Transactions, unless Parent reasonably and in good faith determines that litigation is not in its best interests. Notwithstanding the foregoing or any other provision of this Agreement, nothing in this Section 5.3(b) shall limit the right of a Party to terminate this Agreement pursuant to Section 7.1 (Termination), so long as such Party has until that time complied in all material respects with its obligations under this Section 5.3. Each of Parent and GFI .
7.2.3 Buyer shall use its reasonable best efforts to take such action actions as may be required to cause the expiration of the notice periods or to obtain the necessary approvals under the HSR Act, the Foreign Competition Laws Act or any other Antitrust Laws in order to satisfy the conditions set forth in Section 8.1 as quickly as possible, and in no event later than July 15, 2019. In connection with and without limiting the foregoing, Buyer shall use its reasonable best efforts to take such reasonable steps as may be necessary to avoid or eliminate any impediment under any Antitrust Laws that may be asserted by any Governmental Authority with respect to this Agreement or the Transactions as promptly as possible after Contemplated Transactions. Notwithstanding anything herein to the execution contrary, neither Buyer nor Seller shall be required to defend through litigation on the merits any claim asserted in any court or administrative proceeding, including appeals, or submit to any Order to sell or hold separate any business or assets of this AgreementBuyer or Seller or their respective Affiliates in order to satisfy the conditions set forth in Section 8.1.
(c) Notwithstanding anything 7.2.4 Buyer and Seller shall give any notices to Governmental Authorities, and use their reasonable best efforts to obtain any consent from such applicable Governmental Authority, necessary to consummate the contrary in this Agreement, nothing in this Agreement shall be deemed to require Parent or any Parent Subsidiary to agree to or take any action that would result in any Burdensome ConditionContemplated Transactions. None of GFI or any GFI Subsidiary shall agree to or take any action that would result in any Burdensome Condition without the prior written consent of Parent. For purposes of this Agreement, a The “Burdensome Conditionreasonable best efforts” shall mean making proposals, executing or carrying out agreements (including consent decrees) or submitting to Laws (i) providing for the transfer, license, sale or other disposition or holding separate (through the establishment of a trust party pursuant to this Section 7.2.4 shall not require it to pay or otherwisecommit to pay any amount to (or incur any obligation in favor of) of any assets or categories of assets of Parent, GFI or Person from whom any of their respective Subsidiaries or the holding separate (through the establishment of a trust or otherwise) of the Securities of any Parent Subsidiary or GFI Subsidiary or (ii) imposing or seeking to impose any limitation on the ability of Parent, GFI or any of their respective Subsidiaries to conduct their respective businesses (including with respect to market practices and structure) or own such assets or to acquire, hold or exercise full rights of ownership of the business of GFI, the GFI Subsidiaries, Parent or the Parent Subsidiaries, in each case consent may be sought other than (x) with respect to Antitrust Laws, any such proposals, executing the filing fee under the HSR Act and other nominal filing or carrying out agreements (including consent decrees) or submitting to Laws that would not impair in any material respect the expected benefits of Parent and the Parent Subsidiaries from or relating to the Transactions, or (y) with respect to Regulatory Approvals, any immaterial administrative or ministerial obligations of Parent or any Parent Subsidiaryapplication fees.
Appears in 1 contract
Samples: Asset Purchase Agreement (Aclaris Therapeutics, Inc.)
Consents and Approvals. (a) Subject to the terms and conditions of this AgreementAgreement (including Section 5.2(f)), each of Parent Party shall, and GFI will shall cause its wholly-owned Subsidiaries to, use its commercially reasonable best efforts to take, or cause to be taken, all actions actions, and to do, or cause to be done, and to assist and cooperate with the other Parties in doing, all things necessary, proper or advisable under applicable Law to consummate and make effective the transactions contemplated by this Agreement (including the Arrangement and the Merger) as promptly as practicable, including:
(i) as promptly as practicable, obtain all waivers, consents, clearances and approvals from any Governmental Authority, including the Required Regulatory Approvals, required to be obtained in connection with the consummation of the transactions contemplated by this Agreement (including the Arrangement and the Merger);
(ii) as promptly as reasonably practicable, make all filings and submissions that are required or reasonably necessary to consummate the Transactionstransactions contemplated by this Agreement (including the Arrangement and the Merger), including, preparing including all filings and filing submissions required in connection with the Required Regulatory Approvals; and
(iii) as promptly as practicable all documentation reasonably practicable, take reasonable actions to effect all necessary filingsprovide notice to any third party, noticesor obtain from any third party any waivers, petitionsconsents and approvals required to be obtained, statements, registrations, submissions of information, applications and other documents necessary and appropriate to consummate in connection with the Transactions. In furtherance and not in limitation consummation of the foregoingtransactions contemplated by this Agreement (including the Arrangement and the Merger); provided, however, that notwithstanding anything in this Agreement to the contrary, in no event shall the Company, U.S. Merger Partner, CanCo Parent or any of their respective Subsidiaries be required to pay, prior to the Closing, any fee, penalty or other consideration to any third party for any waiver, consent or approval required in connection with the consummation of the transactions contemplated by this Agreement (including the Arrangement and the Merger) under any Contract or other arrangement.
(b) Subject to the terms and conditions hereof, including Section 5.2(f), each of Parent the Parties agrees, and GFI shall cause each of their respective Subsidiaries, to cooperate and to use commercially reasonable efforts to (i) make or cause to be made the filings obtain any waivers, consents, clearances and approvals required of such party under the Foreign Competition Laws (including those set forth in Section 3.4(b)(i) of the Parent Disclosure Letter) with respect to the Transactions as promptly as practicable after the date of this Agreement; (ii) take all actions to obtain and make the Regulatory Approvals set forth in Section 3.4(b)(ii) of the Parent Disclosure Letter as promptly as practicable after the date of this Agreement; (iii) comply at the earliest practicable date with any request under any Governmental Entity (including under any Foreign Competition Laws) in respect of such filings or such Transaction; and (iv) act in good faith and reasonably cooperate with the other Party in connection with any such filings and in connection with resolving any investigation or other inquiry of any such agency or other Governmental Entity under any the consummation of the transactions contemplated hereby (including the Arrangement and the Merger) under the HSR ActAct (if applicable), the Foreign Competition Laws, the Xxxxxxx Act, the Xxxxxxx Act and any other Laws federal, provincial, state or Orders that are foreign Law designed to prohibit, restrict or regulate actions having for the purpose or effect of monopolization or restraint of trade or foreign investment (collectively, the “Antitrust Relevant Laws”), and (ii) with respect respond to any such filing requests of any Governmental Authority for information or documentary material under any Relevant Law, and to contest and resist any action, including any legislative, administrative or judicial action, and to have vacated, lifted, reversed or overturned any Law or Order (whether temporary, preliminary or permanent) that restricts, prevents or prohibits the consummation of the Arrangement, the Merger or any such Transaction. To the extent not prohibited other transactions contemplated by applicable this Agreement under any Relevant Law, the Parties shall use reasonable best efforts to furnish to each other all information required for any application or other filing to be made pursuant to any applicable Law in connection with the Transactions. Each Party shall give each other reasonable prior notice of any substantive communication with, and any proposed understanding, undertaking or agreement with, any Governmental Entity regarding any such filings or any such Transaction. No Party shall independently participate in any meeting, or engage in any substantive conversation, with any Governmental Entity in respect of any such filings, investigation or other inquiry without giving the other Parties prior notice of the meeting or conversation and, unless prohibited by such any Governmental Entity, the opportunity to attend or participate. The Parties contemplate that as a general matter both Parent and GFI shall be represented at in-person meetings with any Governmental Entity. The Parties will consult and cooperate with one another another, and consider in connection with good faith the views of one another, regarding the form and content of any analyses, appearances, presentations, memoranda, briefs, arguments, opinions and proposals made or submitted by or on behalf of any Party in connection with proceedings under or relating to the HSR Act, the Foreign Competition Laws or other Antitrust Lawsany Relevant Law prior to their submission.
(bc) Without limiting Each of the general obligations Company, U.S. Merger Partner and CanCo Parent shall (i) promptly advise each other of Parent any written or oral communication (including communications received by their respective Subsidiaries) from any Governmental Authority or third party from whom a waiver, consent or approval is required or reasonably necessary in connection with the consummation of the transactions contemplated by this Agreement (including the Arrangement and GFI the Merger); (ii) not participate in any meeting or discussion with any Governmental Authority in respect of any filing, investigation, or enquiry concerning this Agreement or the transactions contemplated by this Agreement unless it consults with the other Parties in advance, and, unless prohibited by such Governmental Authority, gives the other Parties the opportunity to attend; and (iii) promptly furnish the other Parties with copies of all correspondence, filings, and written communications between them and their Subsidiaries and Representatives, on the one hand, and any Governmental Authority or its staff, on the other hand, with respect to this Agreement and the transactions contemplated by this Agreement, except that materials may be redacted as necessary to address reasonable privilege, competitively sensitive information, or confidentiality concerns. If a Party (the “Disclosing Party”) is required to provide information to the other Parties (the “Receiving Parties”) that the Disclosing Party deems to be competitively sensitive information (or otherwise reasonably determines in respect thereof that disclosure should be restricted), the Disclosing Party may restrict the provision of such information to the Receiving Parties’ external legal counsel.
(d) U.S. Merger Partner shall obtain prior to the Closing Date all waivers, consents, clearances and approvals listed under Section 5.3(a3.2(d)(iii) of the U.S. Merger Partner Disclosure Letter.
(Consents e) Each Party will provide as promptly as practicable such information and Approvalsdocumentary material as may be requested by a Governmental Authority following any such filing or notification.
(f) In furtherance and not in limitation of the other covenants contained in this Section 5.2, but subject to the last sentence of this Section 5.2(f), each of Parent the Company and GFI shall use U.S. Merger Partner agrees to take, or cause to be taken (including by its reasonable best efforts Subsidiaries), any and all steps and to make, or cause to be made (including by its Subsidiaries), any and all undertakings necessary to resolve such objections, if any, as that a Governmental Authority may assert under any Relevant Law with respect to the Arrangement and the Merger, and to avoid or eliminate each and every impediment under any Relevant Law that may be asserted by any Governmental Entity Authority with respect to the Transactions under Arrangement and the Antitrust Laws. In connection therewith and subject Merger, in each case, so as to Section 5.3(a) (Consents and Approvals), if any Proceeding is instituted (or threatened to be instituted) challenging any enable each of the Transactions Effective Time and the Merger Effective Time to occur as inconsistent with or violative of any Antitrust Law, each of Parent and GFI shall cooperate and use its reasonable best efforts vigorously to contest and resist (by negotiation, litigation or otherwise) any such Proceeding and to have vacated, lifted, reversed or overturned any Order whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents, delays or restricts consummation of the Transactions, unless Parent reasonably promptly as practicable and in good faith determines that litigation is not in its best interestsany event no later than the Outside Date. Notwithstanding the foregoing foregoing, however, none of the Company, U.S. Merger Partner or any other provision of this Agreement, nothing in this Section 5.3(b) shall limit the right of a Party to terminate this Agreement pursuant to Section 7.1 (Termination), so long as such Party has until that time complied in all material respects with its obligations under this Section 5.3. Each of Parent and GFI shall use its reasonable best efforts to take such action as may their respective Affiliates will be required to cause the expiration divest or hold separate any assets or otherwise take or commit to take any action that limits its freedom of the notice periods or to obtain the necessary approvals under the HSR Act, the Foreign Competition Laws or any other Antitrust Laws action with respect to the Transactions as promptly as possible after the execution business of this Agreement.
(c) Notwithstanding anything to the contrary in this Agreement, nothing in this Agreement shall be deemed to require Parent such Party or any Parent Subsidiary to agree to or take any action that would result in any Burdensome Condition. None of GFI or any GFI Subsidiary shall agree to or take any action that would result in any Burdensome Condition without the prior written consent of Parent. For purposes of this Agreementportion thereof, a “Burdensome Condition” shall mean making proposals, executing or carrying out agreements (including consent decrees) or submitting to Laws (i) providing for the transfer, license, sale or other disposition or holding separate (through the establishment of a trust or otherwise) of any assets or categories of assets of Parent, GFI or any of their respective Subsidiaries its (or the holding separate (through the establishment of a trust or otherwise) of the Securities of any Parent Subsidiary or GFI Subsidiary or (ii) imposing or seeking to impose any limitation on the ability of Parent, GFI or any of their respective Subsidiaries to conduct their respective businesses (including with respect to market practices and structureits Affiliates) or own such assets their other businesses or to acquire, hold or exercise full rights of ownership of the business of GFI, the GFI Subsidiaries, Parent or the Parent Subsidiaries, in each case other than (x) with respect to Antitrust Laws, any such proposals, executing or carrying out agreements (including consent decrees) or submitting to Laws that would not impair in any material respect the expected benefits of Parent and the Parent Subsidiaries from or relating to the Transactions, or (y) with respect to Regulatory Approvals, any immaterial administrative or ministerial obligations of Parent or any Parent Subsidiaryassets.
Appears in 1 contract
Samples: Arrangement Agreement (Edgewater Technology Inc/De/)
Consents and Approvals. (a) Subject to the terms and conditions of this Agreement, each of Parent and GFI 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 Law to consummate the Transactions, including, preparing and filing as As promptly as practicable all documentation to effect all necessary filingspossible, noticesand in any case within thirty (30) days, petitions, statements, registrations, submissions of information, applications and other documents necessary and appropriate to consummate the Transactions. In furtherance and not in limitation of the foregoing, each of Parent and GFI shall (i) make or cause to be made the filings required of such party under the Foreign Competition Laws (including those set forth in Section 3.4(b)(i) of the Parent Disclosure Letter) with respect to the Transactions as promptly as practicable after the date of this Agreement; (ii) take , Sellers and Buyer shall each file, or cause to be filed, with the Federal Trade Commission and the United States Department of Justice any initial notifications required to be filed under the HSR Act and the rules and regulations promulgated thereunder with respect to the transactions contemplated hereby. The Parties shall use their respective best efforts to respond promptly to any requests for additional information made by either of such agencies, and to cause the waiting periods under the HSR Act to terminate or expire at the earliest possible date after the date of filing. Sellers will pay all actions to obtain and make filing fees under the Regulatory Approvals set forth in Section 3.4(b)(ii) HSR Act, but each Party will bear its own costs of the Parent Disclosure Letter as preparation of any filing.
(b) As promptly as practicable possible, and in any case within thirty (30) days, after the date of this Agreement; (iii) comply at the earliest practicable date with any request under any Governmental Entity (including under any Foreign Competition Laws) in respect of such filings , Sellers and Buyer shall each file, or such Transaction; and (iv) act in good faith and reasonably cooperate cause to be filed, with the other Party in connection with any such filings and in connection with resolving any investigation or other inquiry of any such agency or other Governmental Entity under any of the HSR ActPaPUC, the Foreign Competition Laws, the Xxxxxxx Act, the Xxxxxxx Act FERC and any other Laws or Orders that are designed to prohibitGovernmental Authority, restrict or regulate actions having the purpose or effect of monopolization or restraint of trade (collectively, the “Antitrust Laws”) with respect to any such filing or any such Transaction. To the extent not prohibited by applicable Law, the Parties shall use reasonable best efforts to furnish to each other all information initial filings required for any application or other filing to be made pursuant to any applicable Law in connection with the Transactions. Each Party shall give each other reasonable prior notice of any substantive communication with, and any proposed understanding, undertaking or agreement with, any Governmental Entity regarding any such filings or any such Transaction. No Party shall independently participate in any meeting, or engage in any substantive conversation, with any Governmental Entity in respect of any such filings, investigation or other inquiry without giving the other Parties prior notice of the meeting or conversation and, unless prohibited by such any Governmental Entity, the opportunity to attend or participate. The Parties contemplate that as a general matter both Parent and GFI shall be represented at in-person meetings with any Governmental Entity. The Parties will consult and cooperate with one another in connection with any analyses, appearances, presentations, memoranda, briefs, arguments, opinions and proposals made or submitted by or on behalf of any Party in connection with proceedings under or relating to the HSR Act, the Foreign Competition Laws or other Antitrust Laws.
(b) Without limiting the general obligations of Parent and GFI under Section 5.3(a) (Consents and Approvals), each of Parent and GFI shall use its reasonable best efforts to resolve such objections, if any, as may be asserted by any Governmental Entity with respect to the Transactions under the Antitrust Lawstransactions contemplated hereby. In connection therewith and subject The Parties shall respond promptly to Section 5.3(a) (Consents and Approvals)any requests for additional information made by such agencies, if any Proceeding is instituted (or threatened to be instituted) challenging any of the Transactions as inconsistent with or violative of any Antitrust Law, each of Parent and GFI shall cooperate and use its reasonable best efforts vigorously to contest and resist (by negotiation, litigation or otherwise) any such Proceeding and to have vacated, lifted, reversed or overturned any Order whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents, delays or restricts consummation of the Transactions, unless Parent reasonably and in good faith determines that litigation is not in its best interests. Notwithstanding the foregoing or any other provision of this Agreement, nothing in this Section 5.3(b) shall limit the right of a Party to terminate this Agreement pursuant to Section 7.1 (Termination), so long as such Party has until that time complied in all material respects with its obligations under this Section 5.3. Each of Parent and GFI shall use its reasonable their respective best efforts to take such action as may cause regulatory approval to be required to cause obtained at the expiration earliest possible date after the date of filing. Each Party will bear its own costs of the notice periods or to obtain the necessary approvals under the HSR Act, the Foreign Competition Laws or preparation of any other Antitrust Laws with respect to the Transactions as promptly as possible after the execution of this Agreementsuch filing.
(c) Notwithstanding anything Sellers and Buyer shall cooperate with each other and promptly prepare and file notifications with, and request Tax clearances from, state and local taxing authorities in jurisdictions in which a portion of the Purchase Price may be required to the contrary be withheld or in this Agreementwhich Buyer would otherwise be liable for any Tax liabilities of Sellers pursuant to such state and local Tax law.
(d) As promptly as possible, nothing in this Agreement shall be deemed to require Parent or any Parent Subsidiary to agree to or take any action that would result and in any Burdensome Condition. None of GFI or any GFI Subsidiary shall agree to or take any action that would result in any Burdensome Condition without case within thirty (30) days after the prior written consent of Parent. For purposes date of this Agreement, a “Burdensome Condition” Buyer and Sellers shall mean making proposalsinitiate all necessary measures, executing including filing all necessary applications, and Buyer shall post all necessary performance, surety or carrying out agreements (including consent decrees) or submitting other bonds to Laws effectuate (i) providing for the transfer, license, sale or other disposition or holding separate (through the establishment transfer of a trust or otherwise) of any assets or categories of assets of Parent, GFI or any of their respective Subsidiaries or the holding separate (through the establishment of a trust or otherwise) of the Securities of any Parent Subsidiary or GFI Subsidiary or all Environmental Permits and (ii) imposing the release of any performance, surety or seeking to impose other bonds provided by any limitation on the ability of Parent, GFI or any of their respective Subsidiaries to conduct their respective businesses (including Seller with respect to market practices and structure) or own such assets or to acquire, hold or exercise full rights of ownership any of the business Purchased Assets.
(e) Sellers and Buyer shall have the right to review in advance all characterizations of GFI, the GFI Subsidiaries, Parent or the Parent Subsidiaries, in each case other than (x) with respect to Antitrust Laws, any such proposals, executing or carrying out agreements (including consent decrees) or submitting to Laws that would not impair in any material respect the expected benefits of Parent and the Parent Subsidiaries from or information relating to the Transactionstransactions contemplated by this Agreement or in any of the Additional Agreements which will appear in any filing made in connection with the transactions contemplated hereby or thereby.
(f) Notwithstanding anything herein to the contrary, Sellers shall use Commercially Reasonable Efforts to assist Buyer in obtaining all third party consents (including, without limitation, consents to the collateral assignment in favor of Buyer's lenders of contracts or agreements included in the Purchased Assets), agreements, certificates, opinions, and other documents or instruments reasonably requested by Buyer's lenders in connection with the financing, on a non- or limited recourse basis or otherwise, of Buyer's acquisition of the Purchased Assets hereunder, all of which shall be at Buyer's sole cost and expense to the extent that any such items are not otherwise required of Sellers hereunder or under any of the Additional Agreements. From time to time after the date hereof, the Sellers will, execute and/or deliver such consents (y) including, without limitation, consents to the collateral assignment in favor of Buyer's lenders of the Additional Agreements), agreements, certificates, opinions, and other documents or instruments to Buyer's lenders as Buyer's lenders may reasonably request in connection with respect to Regulatory Approvalsthe financing, any immaterial administrative on a non- or ministerial obligations limited recourse basis or otherwise, of Parent or any Parent SubsidiaryBuyer's acquisition of the Purchased Assets hereunder; provided, however, that Buyer will reimburse Seller for all reasonable, out-of-pocket expenses incurred in connection therewith.
Appears in 1 contract
Consents and Approvals. (a) Subject to the terms and conditions of this Agreement, each of Parent and GFI 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 Law to consummate the Transactions, including, preparing and filing as promptly as practicable all documentation to effect all necessary filings, notices, petitions, statements, registrations, submissions of information, applications and other documents necessary and appropriate to consummate the Transactions. In furtherance and not in limitation of the foregoing, each of Parent and GFI shall (i) make or cause to be made the filings required of such party under the Foreign Competition Laws (including those set forth in Section 3.4(b)(i) of the Parent Disclosure Letter) with respect to the Transactions as As promptly as practicable after the date of this Agreement; (ii) take all actions , Seller and Buyer, as applicable, shall file with any Governmental Authority having jurisdiction over the Purchased Assets or the Business, any filings required to obtain be made with respect to the transactions contemplated hereby. The Parties shall respond promptly to any requests for additional information made by such agencies, and make use their respective best efforts to cause regulatory approval to be obtained at the Regulatory Approvals set forth in Section 3.4(b)(ii) of the Parent Disclosure Letter as promptly as practicable earliest possible date after the date of this Agreement; (iii) comply at filing. Each Party will bear its own costs of the earliest practicable date with any request under any Governmental Entity (including under any Foreign Competition Laws) in respect of such filings or such Transaction; and (iv) act in good faith and reasonably cooperate with the other Party in connection with any such filings and in connection with resolving any investigation or other inquiry preparation of any such agency or other Governmental Entity under any of the HSR Act, the Foreign Competition Laws, the Xxxxxxx Act, the Xxxxxxx Act and any other Laws or Orders that are designed to prohibit, restrict or regulate actions having the purpose or effect of monopolization or restraint of trade (collectively, the “Antitrust Laws”) with respect to any such filing or any such Transaction. To the extent not prohibited by applicable Law, the Parties shall use reasonable best efforts to furnish to each other all information required for any application or other filing to be made pursuant to any applicable Law in connection with the Transactions. Each Party shall give each other reasonable prior notice of any substantive communication with, and any proposed understanding, undertaking or agreement with, any Governmental Entity regarding any such filings or any such Transaction. No Party shall independently participate in any meeting, or engage in any substantive conversation, with any Governmental Entity in respect of any such filings, investigation or other inquiry without giving the other Parties prior notice of the meeting or conversation and, unless prohibited by such any Governmental Entity, the opportunity to attend or participate. The Parties contemplate that as a general matter both Parent and GFI shall be represented at in-person meetings with any Governmental Entity. The Parties will consult and cooperate with one another in connection with any analyses, appearances, presentations, memoranda, briefs, arguments, opinions and proposals made or submitted by or on behalf of any Party in connection with proceedings under or relating to the HSR Act, the Foreign Competition Laws or other Antitrust Lawsfiling.
(b) Without limiting the general obligations of Parent Seller and GFI under Section 5.3(aBuyer shall cooperate with each other and (i) promptly prepare and file all necessary documentation, (Consents ii) effect all necessary applications, notices, petitions and Approvals)filings and execute all agreements and documents, each of Parent and GFI shall (iii) use its reasonable best efforts to resolve such objectionsobtain the transfer or reissuance to Buyer of all necessary consents, if anyapprovals and authorizations of all Governmental Authorities and (iv) use reasonable efforts to obtain all necessary consents, as may be asserted approvals and authorizations of all other parties, necessary to consummate the transactions contemplated by this Agreement or required by the terms of any Governmental Entity with respect note, bond, mortgage, indenture, deed of trust, license, franchise, permit, concession, contract, lease or other instrument to the Transactions under the Antitrust Laws. In connection therewith and subject to Section 5.3(a) (Consents and Approvals), if any Proceeding which Seller or Buyer is instituted (a party or threatened to be instituted) challenging by which any of the Transactions as inconsistent with or violative of any Antitrust Law, each of Parent and GFI shall cooperate and use its reasonable best efforts vigorously to contest and resist (by negotiation, litigation or otherwise) any such Proceeding and to have vacated, lifted, reversed or overturned any Order whether temporary, preliminary or permanent, that them is in effect and that prohibits, prevents, delays or restricts consummation of the Transactions, unless Parent reasonably and in good faith determines that litigation is not in its best interests. Notwithstanding the foregoing or any other provision of this Agreement, nothing in this Section 5.3(b) shall limit the right of a Party to terminate this Agreement pursuant to Section 7.1 (Termination), so long as such Party has until that time complied in all material respects with its obligations under this Section 5.3bound. Each of Parent Seller and GFI Buyer shall use its reasonable best efforts have the right to take such action as may be required to cause the expiration review in advance all characterizations of the notice periods or to obtain the necessary approvals under the HSR Act, the Foreign Competition Laws or any other Antitrust Laws with respect information relating to the Transactions as promptly as possible after transactions contemplated by this Agreement which appear in any filing made in connection with the execution of this Agreementtransactions contemplated hereby.
(c) Notwithstanding anything Subject to the contrary in this Agreement, nothing in this Agreement shall be deemed to require Parent or any Parent Subsidiary to agree to or take any action that would result in any Burdensome Condition. None of GFI or any GFI Subsidiary shall agree to or take any action that would result in any Burdensome Condition without the prior written consent of Parent. For purposes Section 3.6 of this Agreement, Seller and Buyer shall cooperate with each other and promptly prepare and file notifications with, and request Tax clearances from, state and local taxing authorities in jurisdictions in which a “Burdensome Condition” portion of the Purchase Price may be required to be withheld or in which Buyer would otherwise be liable for any Tax liabilities of Seller pursuant to such state and local Tax law.
(d) Buyer shall mean making proposals, executing or carrying out agreements (including consent decrees) or submitting to Laws (i) providing have the primary responsibility for securing the transfer, license, sale reissuance or other disposition procurement of the Permits and Environmental Permits provided that the cost of such transfer shall be borne equally by Seller and Buyer. Seller shall cooperate with Buyer's efforts in this regard and assist in any transfer or holding separate (through the establishment reissuance of a trust Permit or otherwise) Environmental Permit held by Seller or the procurement of any assets other Permit or categories of assets of Parent, GFI or any of their respective Subsidiaries or the holding separate (through the establishment of a trust or otherwise) of the Securities of any Parent Subsidiary or GFI Subsidiary or (ii) imposing or seeking to impose any limitation on the ability of Parent, GFI or any of their respective Subsidiaries to conduct their respective businesses (including with respect to market practices and structure) or own such assets or to acquire, hold or exercise full rights of ownership of the business of GFI, the GFI Subsidiaries, Parent or the Parent Subsidiaries, in each case other than (x) with respect to Antitrust Laws, any such proposals, executing or carrying out agreements (including consent decrees) or submitting to Laws that would not impair in any material respect the expected benefits of Parent and the Parent Subsidiaries from or relating to the Transactions, or (y) with respect to Regulatory Approvals, any immaterial administrative or ministerial obligations of Parent or any Parent SubsidiaryEnvironmental Permit when so requested by Buyer.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Opta Food Ingredients Inc /De)
Consents and Approvals. (a) Subject to the terms and conditions requirements of this Agreementapplicable antitrust laws, each of the Company, Parent and GFI will use its reasonable best efforts to takeMerger Sub shall each, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under applicable Law to consummate the Transactions, including, preparing and filing as promptly as practicable all documentation to effect all necessary filings, notices, petitions, statements, registrations, submissions of information, applications and other documents necessary and appropriate to consummate the Transactions. In furtherance and not in limitation of the foregoing, each of Parent and GFI shall (i) make or cause to be made the filings required of such party under the Foreign Competition Laws (including those set forth in Section 3.4(b)(i) of the Parent Disclosure Letter) with respect to the Transactions as promptly as practicable after the date of this Agreement; (ii) take all actions , file or cause to obtain and make the Regulatory Approvals set forth in Section 3.4(b)(ii) of the Parent Disclosure Letter as promptly as practicable after the date of this Agreement; (iii) comply at the earliest practicable date with any request under any Governmental Entity (including under any Foreign Competition Laws) in respect of such filings or such Transaction; and (iv) act in good faith and reasonably cooperate be filed with the other Party in connection with Federal Trade Commission and the United States Department of Justice any such filings and in connection with resolving any investigation or other inquiry of any such agency or other Governmental Entity notifications required to be filed under any of the HSR Act, the Foreign Competition Laws, the Xxxxxxx Act, the Xxxxxxx Act and any other Laws or Orders that are designed to prohibit, restrict or regulate actions having the purpose or effect of monopolization or restraint of trade (collectively, the “Antitrust Laws”) with respect to any such filing or any such Transaction. To the extent not prohibited by applicable Law, the Parties The parties shall use reasonable best efforts to furnish to each other all information required for any application or other filing to be made pursuant respond promptly to any applicable Law in connection with the Transactions. Each Party shall give each other reasonable prior notice requests for additional information made by either of any substantive communication withsuch agencies, and any proposed understanding, undertaking or agreement with, any Governmental Entity regarding any such filings or any such Transaction. No Party shall independently participate in any meeting, or engage in any substantive conversation, with any Governmental Entity in respect of any such filings, investigation or other inquiry without giving to cause the other Parties prior notice of the meeting or conversation and, unless prohibited by such any Governmental Entity, the opportunity to attend or participate. The Parties contemplate that as a general matter both Parent and GFI shall be represented at in-person meetings with any Governmental Entity. The Parties will consult and cooperate with one another in connection with any analyses, appearances, presentations, memoranda, briefs, arguments, opinions and proposals made or submitted by or on behalf of any Party in connection with proceedings waiting periods under or relating to the HSR Act, Act to terminate or expire at the Foreign Competition Laws or other Antitrust Lawsearliest possible date after the date of filing.
(b) Without limiting Subject to the general obligations requirements of applicable antitrust laws, the Company, Parent and GFI under Section 5.3(a) (Consents and Approvals), each of Parent and GFI shall use its reasonable best efforts to resolve such objections, if any, as may be asserted by any Governmental Entity with respect to the Transactions under the Antitrust Laws. In connection therewith and subject to Section 5.3(a) (Consents and Approvals), if any Proceeding is instituted (or threatened to be instituted) challenging any of the Transactions as inconsistent with or violative of any Antitrust Law, each of Parent and GFI Merger Sub shall cooperate with each other and use its reasonable best efforts vigorously to contest and resist (by negotiation, litigation or otherwise) any such Proceeding and to have vacated, lifted, reversed or overturned any Order whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents, delays or restricts consummation of the Transactions, unless Parent reasonably and in good faith determines that litigation is not in its best interests. Notwithstanding the foregoing or any other provision of this Agreement, nothing in this Section 5.3(b) shall limit the right of a Party to terminate this Agreement pursuant to Section 7.1 (Termination), so long as such Party has until that time complied in all material respects with its obligations under this Section 5.3. Each of Parent and GFI shall use its reasonable best efforts to take such action as may be required to cause the expiration of the notice periods or to obtain the necessary approvals under the HSR Act, the Foreign Competition Laws or any other Antitrust Laws with respect to the Transactions as promptly as possible after the execution of this Agreement.
(c) Notwithstanding anything to the contrary in this Agreement, nothing in this Agreement shall be deemed to require Parent or any Parent Subsidiary to agree to or take any action that would result in any Burdensome Condition. None of GFI or any GFI Subsidiary shall agree to or take any action that would result in any Burdensome Condition without the prior written consent of Parent. For purposes of this Agreement, a “Burdensome Condition” shall mean making proposals, executing or carrying out agreements (including consent decrees) or submitting to Laws (i) providing for promptly prepare and file all necessary documentation, (ii) effect all necessary applications, notices, petitions and filings and execute all agreements and documents, (iii) use all reasonable efforts to obtain all necessary permits, consents, approvals and authorizations of all Governmental Authorities and (iv) use all reasonable efforts to obtain all necessary Permits, consents, approvals and authorizations of all other parties, in the transfercase of each of the foregoing clauses (i), license(ii), sale (iii) and (iv), necessary to consummate the transactions contemplated by this Agreement or required by the terms of any franchise, permit, concession, Contract or other disposition or holding separate (through instrument to which the establishment of a trust or otherwise) of any assets or categories of assets of ParentCompany, GFI Merger Sub, Parent or any of their respective Subsidiaries is a party or the holding separate (through the establishment of a trust or otherwise) of the Securities of any Parent Subsidiary or GFI Subsidiary or (ii) imposing or seeking to impose any limitation on the ability of Parent, GFI or by which any of their respective Subsidiaries them is bound; provided, however, that no franchise, permit, concession, Contract or other instrument shall be amended or modified to conduct their respective businesses (including with respect to market practices and structure) or own such assets or to acquire, hold or exercise full rights of ownership of the business of GFI, the GFI Subsidiaries, Parent or the Parent Subsidiaries, in each case other than (x) with respect to Antitrust Laws, any such proposals, executing or carrying out agreements (including consent decrees) or submitting to Laws that would not impair increase in any material respect the expected benefits of Parent amount payable thereunder or to be otherwise more burdensome, or less favorable, in each case in any material respect, to the Company and the Parent Company Subsidiaries from considered as one enterprise in order to obtain any permit, consent, approval or authorization without first obtaining the written consent of Parent, which consent shall not be unreasonably withheld or delayed. The Company shall have the right to review and approve in advance all characterizations of the information relating to the TransactionsCompany; Parent shall have the right to review and approve in advance all characterizations of the information relating to Parent or Merger Sub; and each of the Company and Parent shall have the right to review and approve in advance all characterizations of the information relating to the transactions contemplated by this Agreement, or in each case which appear in any material filing (yincluding the Information Statement) made in connection with the transactions contemplated hereby. The Company, Parent and Merger Sub agree that they will consult with each other with respect to Regulatory Approvalsthe obtaining of all such necessary Permits, any immaterial administrative or ministerial obligations consents, approvals and authorizations of Parent or any Parent Subsidiaryall third parties and Governmental Authorities.
Appears in 1 contract
Consents and Approvals. (a) Subject to the terms Seller and conditions of this Agreement, Buyer will each of Parent and GFI will use its reasonable best efforts to take, file or cause to be takenfiled with the Federal Trade Commission and the United States Department of Justice, all actions and to do, or cause Antitrust Division any notifications required to be done, all things necessary, proper or advisable under applicable Law to consummate the Transactions, including, preparing and filing as promptly as practicable all documentation to effect all necessary filings, notices, petitions, statements, registrations, submissions of information, applications and other documents necessary and appropriate to consummate the Transactions. In furtherance and not in limitation of the foregoing, each of Parent and GFI shall (i) make or cause to be made the filings required of such party filed under the Foreign Competition Laws (including those set forth in Section 3.4(b)(i) of HSR Act and the Parent Disclosure Letter) rules and regulations promulgated thereunder with respect to the Transactions as promptly as practicable after the date of this Agreement; (ii) take all actions to obtain and make the Regulatory Approvals set forth in Section 3.4(b)(ii) of the Parent Disclosure Letter as promptly as practicable after the date of this Agreement; (iii) comply at the earliest practicable date with any request under any Governmental Entity (including under any Foreign Competition Laws) in respect of such filings or such Transaction; and (iv) act in good faith and reasonably cooperate with the other Party in connection with any such filings and in connection with resolving any investigation or other inquiry of any such agency or other Governmental Entity under any of the HSR Act, the Foreign Competition Laws, the Xxxxxxx Act, the Xxxxxxx Act and any other Laws or Orders that are designed to prohibit, restrict or regulate actions having the purpose or effect of monopolization or restraint of trade (collectively, the “Antitrust Laws”) with respect to any such filing or any such Transaction. To the extent not prohibited by applicable Law, the Parties shall use reasonable best efforts to furnish to each other all information required for any application or other filing to be made pursuant to any applicable Law in connection with the Transactions. Each Party shall give each other reasonable prior notice of any substantive communication with, and any proposed understanding, undertaking or agreement with, any Governmental Entity regarding any such filings or any such Transaction. No Party shall independently participate in any meeting, or engage in any substantive conversation, with any Governmental Entity in respect of any such filings, investigation or other inquiry without giving the other Parties prior notice of the meeting or conversation and, unless prohibited by such any Governmental Entity, the opportunity to attend or participate. The Parties contemplate that as a general matter both Parent and GFI shall be represented at in-person meetings with any Governmental Entitytransactions contemplated hereby. The Parties will consult and cooperate with one another in connection with any analyses, appearances, presentations, memoranda, briefs, arguments, opinions and proposals made or submitted by or on behalf of any Party in connection with proceedings under or relating each other as to the appropriate time of filing such notifications and will (i) make such filings at the agreed upon time, (ii) respond promptly to any requests for additional information made by either of such agencies, and (iii) use their commercially reasonable efforts to cause the waiting periods under the HSR Act, Act to terminate or expire at the Foreign Competition Laws or other Antitrust Lawsearliest possible date after the date of such filings.
(b) Without limiting the general obligations of Parent Seller and GFI under Section 5.3(a) (Consents Buyer will cooperate with each other and Approvals), each of Parent and GFI shall use its commercially reasonable best efforts to resolve such objections(i) promptly prepare and file all necessary applications, if anynotices, as may be asserted petitions, and filings, execute all agreements and documents and provide all relevant records and reports to the extent required by Law or Order or to the extent requested by any Governmental Entity for consummation of the transactions contemplated by this Agreement (including the Required Regulatory Approvals), (ii) obtain the transfer to Buyer of all Transferable Permits and Transferable Environmental Permits, and the reissuance to Buyer of all Permits that are not Transferable Permits and all Environmental Permits that are not Transferable Environmental Permits, (iii) obtain the consents, approvals, and authorizations of all Governmental Entities to the extent required by Law or Order for consummation of the transactions contemplated by this Agreement (including the Required Regulatory Approvals), and (iv) obtain all consents, approvals, and authorizations of all other Persons to the extent necessary to consummate the transactions contemplated by this Agreement as required by the terms of any note, bond, mortgage, indenture, deed of trust, license, franchise, permit, concession, contract, lease, or other instrument to which Seller or Buyer is a party or by which either of them is bound. Seller and Buyer each will have the right to review in advance all characterizations of the information relating to it or the transactions contemplated by this Agreement which appear in any filing made by the other in connection with the transactions contemplated hereby.
(c) In the course of obtaining, renewing or securing Franchises as may be deemed necessary by the Parties in connection with the transactions contemplated herein, (i) Buyer shall not be required to take any action, and Seller shall not take or cause to be taken or agree to commit Buyer to take any action, in any such case individually or in the aggregate which would (A) materially impair the ability of Buyer to operate the Business immediately following Closing in a manner substantially similar to that prevailing with respect to the Transactions under Business immediately prior to the Antitrust Lawsdate hereof or (B) impose any additional substantially burdensome condition on Buyer and (ii) Seller shall not be required to take any action, and Buyer shall not take or cause to be taken or agree to commit Seller to take any action, in any such case individually or in the aggregate which would (A) materially impair the ability of Seller to operate the Electric Business immediately following Closing in a manner substantially similar to that prevailing with respect to the Electric Business immediately prior to the date hereof or (B) impose any additional substantially burdensome condition on Seller. Any failure or refusal by a Governmental Entity to renew or award any such Franchise will not constitute a breach of this Agreement by either Party.
(d) In connection therewith with applications and subject other filings for the Required Regulatory Approvals, and the prosecution of any pending regulatory proceedings material to Section 5.3(a) (Consents the Business, Buyer and Approvals)Seller shall jointly, if any Proceeding is instituted (or threatened and on an equal basis, coordinate the overall development of the positions to be institutedtaken and the regulatory actions to be requested in such applications and filings for approval of the sale by Seller and the purchase by Buyer of the Purchased Assets and the Business, of all other matters contemplated by this Agreement which require regulatory approval and of all other regulatory matters incidental thereto which are to be addressed in such applications and filings.
(e) challenging In connection with any communications, meetings, or other contacts, formal or informal, oral or written, with any Governmental Entity in connection with the transactions contemplated hereby or any such declaration, filing, registration, notice, authorization, consent, or approval, each Party agrees: (i) to inform the other in advance of any such communication, meeting, or other contact which such Party proposes or intends to make, including the subject matter, contents, intended agenda, and other aspects of any of the Transactions as inconsistent foregoing; (ii) to consult and cooperate with the other Party, and to take into account the comments of such other Party in connection with any of the matters covered by Section 7.6(e)(i); (iii) to arrange for representatives of the other Party to participate to the maximum extent possible in any such communications, meetings, or violative other contacts; (iv) to notify the other Party of any Antitrust Law, each of Parent and GFI shall cooperate and use its reasonable best efforts vigorously oral communications with any Governmental Entity relating to contest and resist (by negotiation, litigation or otherwise) any such Proceeding and to have vacated, lifted, reversed or overturned any Order whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents, delays or restricts consummation of the Transactions, unless Parent reasonably foregoing; and in good faith determines that litigation is not in its best interests(v) to provide the other Party with copies of all written communications with any Governmental Entity relating to any of the foregoing. Notwithstanding the foregoing or any other provision of this Agreementforegoing, nothing in this Section 5.3(b) shall limit the right of a Party to terminate this Agreement pursuant to Section 7.1 (Termination), so long as such Party has until that time complied in all material respects with its obligations under this Section 5.3. Each of Parent and GFI shall use its reasonable best efforts to take such action as may be required to cause the expiration of the notice periods or to obtain the necessary approvals under the HSR Act, the Foreign Competition Laws or any other Antitrust Laws with respect to the Transactions as promptly as possible after the execution of this Agreement.
(c) Notwithstanding anything to the contrary in this Agreement, nothing in this Agreement shall be deemed to require Parent or any Parent Subsidiary to agree 7.6 will apply to or take any action that would result in any Burdensome Condition. None of GFI or any GFI Subsidiary shall agree to or take any action that would result in any Burdensome Condition without the prior written consent of Parent. For purposes of this Agreement, a “Burdensome Condition” shall mean making proposals, executing or carrying out agreements (including consent decrees) or submitting to Laws (i) providing for the transfer, license, sale restrict communications or other disposition actions by Seller with or holding separate (through the establishment of a trust or otherwise) of any assets or categories of assets of Parent, GFI or any of their respective Subsidiaries or the holding separate (through the establishment of a trust or otherwise) of the Securities of any Parent Subsidiary or GFI Subsidiary or (ii) imposing or seeking with regard to impose any limitation on the ability of Parent, GFI or any of their respective Subsidiaries to conduct their respective businesses (including Governmental Entities in connection with respect to market practices and structure) or own such assets or to acquire, hold or exercise full rights of ownership of the business of GFI, the GFI Subsidiaries, Parent or the Parent Subsidiaries, in each case other than (x) with respect to Antitrust Laws, any such proposals, executing the Purchased Assets or carrying out agreements (including consent decrees) or submitting to Laws that would not impair the Business in any material respect the expected benefits ordinary course of Parent and the Parent Subsidiaries from or relating to the Transactionsbusiness, or (y) with respect to Regulatory Approvals, any immaterial administrative or ministerial obligations of Parent or any Parent Subsidiarythe transactions contemplated by Section 7.9.
Appears in 1 contract
Samples: Asset Purchase Agreement (Public Service Co of New Mexico)
Consents and Approvals. (a) Subject to As promptly as practicable, the terms Seller and conditions of this Agreement, the Buyer shall each of Parent and GFI will use its reasonable best efforts to take, file or cause to be taken, all actions filed with the Federal Trade Commission and to do, or cause the United States Department of Justice any notifications required to be done, all things necessary, proper or advisable under applicable Law to consummate the Transactions, including, preparing and filing as promptly as practicable all documentation to effect all necessary filings, notices, petitions, statements, registrations, submissions of information, applications and other documents necessary and appropriate to consummate the Transactions. In furtherance and not in limitation of the foregoing, each of Parent and GFI shall (i) make or cause to be made the filings required of such party filed under the Foreign Competition Laws (including those set forth in Section 3.4(b)(i) of HSR Act and the Parent Disclosure Letter) rules and regulations promulgated thereunder with respect to the Transactions as transactions contemplated hereby. The parties shall use their respective best efforts to respond promptly as practicable to any requests for additional information made by either of such agencies, and to cause the waiting periods under the HSR Act to terminate or expire at the earliest possible date after the date of this Agreement; filing.
(1) As promptly as practicable, the Seller and the Buyer shall cooperate with each other and (i) prepare and file all necessary documentation, (ii) take effect all actions to obtain necessary applications, notices, petitions and make the Regulatory Approvals set forth in Section 3.4(b)(ii) of the Parent Disclosure Letter as promptly as practicable after the date of this Agreement; filings and execute all agreements and documents, (iii) comply at use all commercially reasonable efforts to obtain the earliest practicable date with any request under any Governmental Entity (including under any Foreign Competition Laws) in respect transfer or reissuance to the Buyer of such filings or such Transaction; all necessary Environmental Permits, Permits, consents, approvals and authorizations of all governmental bodies and (iv) act use all commercially reasonable efforts to obtain all necessary consents, approvals and authorizations of all other parties, in good faith the case of each of the foregoing clauses (i), (ii), (iii) and reasonably cooperate (iv), necessary or advisable to consummate the transactions contemplated by this Agreement (including, without limitation, the Seller Required Regulatory Approvals and the Buyer Required Regulatory Approvals) or required by the terms of any note, bond, mortgage, indenture, deed of trust, license, franchise, permit, concession, contract, lease or other instrument to which the Seller, any Seller Subsidiary, or the Buyer is a party or by which any of them is bound. The Seller shall have the right to review and approve in advance all characterizations of the information relating to Purchased Assets; and each of the Seller and the Buyer shall have the right to review and approve in advance all characterizations of the information relating to the transactions contemplated by this Agreement which appear in any filing made in connection with the transactions contemplated hereby. The parties hereto agree that they shall consult with each other Party with respect to the transferring to the Buyer or the obtaining by the Buyer of all such necessary Environmental Permits, Permits, consents, approvals and authorizations of all third parties and governmental bodies. The Seller and the Buyer shall designate separate counsel with respect to all applications, notices, petitions and filings (joint or otherwise) relating to this Agreement and the transactions contemplated hereby on behalf of the Seller, on the one hand and the Buyer on the other hand, with all governmental bodies. To the extent that a consent to an assignment of any material Seller Agreement cannot be obtained before the Closing Date, the Seller shall enter into all such agreements with the Buyer as are necessary to give the Buyer the rights, obligations and burdens of such Seller Agreements.
(2) The parties hereto shall consult with each other prior to proposing or entering into any stipulation or agreement with any federal, state or local Governmental Authority or agency or any third party in connection with any such filings federal, state or local governmental consents and in connection with resolving any investigation approvals legally required for the consummation of the transactions contemplated hereby and shall not propose or other inquiry of enter into any such agency or other Governmental Entity under any of the HSR Act, the Foreign Competition Laws, the Xxxxxxx Act, the Xxxxxxx Act and any other Laws or Orders that are designed to prohibit, restrict or regulate actions having the purpose or effect of monopolization or restraint of trade (collectively, the “Antitrust Laws”) with respect to any such filing or any such Transaction. To the extent not prohibited by applicable Law, the Parties shall use reasonable best efforts to furnish to each other all information required for any application or other filing to be made pursuant to any applicable Law in connection with the Transactions. Each Party shall give each other reasonable prior notice of any substantive communication with, and any proposed understanding, undertaking stipulation or agreement with, any Governmental Entity regarding any such filings or any such Transaction. No Party shall independently participate in any meeting, or engage in any substantive conversation, with any Governmental Entity in respect of any such filings, investigation or other inquiry without giving the other Parties party's prior notice of the meeting or conversation andwritten consent, unless prohibited by such any Governmental Entity, the opportunity to attend or participate. The Parties contemplate that as a general matter both Parent and GFI which consent shall not be represented at in-person meetings with any Governmental Entity. The Parties will consult and cooperate with one another in connection with any analyses, appearances, presentations, memoranda, briefs, arguments, opinions and proposals made or submitted by or on behalf of any Party in connection with proceedings under or relating to the HSR Act, the Foreign Competition Laws or other Antitrust Lawsunreasonably withheld.
(b3) Without limiting the general obligations of Parent and GFI under Section 5.3(a) (Consents and Approvals), each of Parent and GFI Seller shall use its commercially reasonable best efforts to resolve such objections, if any, as may be asserted by any Governmental Entity with respect defend and support the form of Generation Tariff applicable to the Transactions under Purchased Assets in the Antitrust Lawsform filed with FERC in Docket No. In connection therewith and subject to Section 5.3(a) (Consents and Approvals), if any Proceeding is instituted (or threatened to be instituted) challenging any of the Transactions as inconsistent with or violative of any Antitrust Law, each of Parent and GFI shall cooperate and use its reasonable best efforts vigorously to contest and resist (by negotiation, litigation or otherwise) any such Proceeding and to have vacated, lifted, reversed or overturned any Order whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents, delays or restricts consummation of the Transactions, unless Parent reasonably and in good faith determines that litigation is not in its best interests. Notwithstanding the foregoing or any other provision of this Agreement, nothing in this Section 5.3(b) shall limit the right of a Party to terminate this Agreement pursuant to Section 7.1 (Termination), so long as such Party has until that time complied in all material respects with its obligations under this Section 5.3. Each of Parent and GFI shall use its reasonable best efforts to take such action as may be required to cause the expiration of the notice periods or to obtain the necessary approvals under the HSR Act, the Foreign Competition Laws or any other Antitrust Laws with respect to the Transactions as promptly as possible after the execution of this AgreementER00-2018.
(c) Notwithstanding anything to the contrary in this Agreement, nothing in this Agreement shall be deemed to require Parent or any Parent Subsidiary to agree to or take any action that would result in any Burdensome Condition. None of GFI or any GFI Subsidiary shall agree to or take any action that would result in any Burdensome Condition without the prior written consent of Parent. For purposes of this Agreement, a “Burdensome Condition” shall mean making proposals, executing or carrying out agreements (including consent decrees) or submitting to Laws (i) providing for the transfer, license, sale or other disposition or holding separate (through the establishment of a trust or otherwise) of any assets or categories of assets of Parent, GFI or any of their respective Subsidiaries or the holding separate (through the establishment of a trust or otherwise) of the Securities of any Parent Subsidiary or GFI Subsidiary or (ii) imposing or seeking to impose any limitation on the ability of Parent, GFI or any of their respective Subsidiaries to conduct their respective businesses (including with respect to market practices and structure) or own such assets or to acquire, hold or exercise full rights of ownership of the business of GFI, the GFI Subsidiaries, Parent or the Parent Subsidiaries, in each case other than (x) with respect to Antitrust Laws, any such proposals, executing or carrying out agreements (including consent decrees) or submitting to Laws that would not impair in any material respect the expected benefits of Parent and the Parent Subsidiaries from or relating to the Transactions, or (y) with respect to Regulatory Approvals, any immaterial administrative or ministerial obligations of Parent or any Parent Subsidiary.
Appears in 1 contract
Samples: Asset Sale Agreement (Wisconsin Public Service Corp)
Consents and Approvals. (a) Subject to On the terms and subject to the conditions of this Agreement, each of Parent and GFI will Party shall use its reasonable best efforts to cause the Closing to occur as promptly as practicable after the date of this Agreement, including taking all reasonable actions necessary (i) to comply promptly with all legal requirements that may be imposed on it or any of its Affiliates with respect to the Closing, (ii) to obtain all Consents from third parties necessary or appropriate to permit the consummation of the Transactions, including those set forth on Schedule 1.8(h), and (iii) to obtain or make each Consent of or with a Governmental Authority that, if not obtained or made, would adversely affect the ability of the Parties to consummate the Transactions; provided, however, that no Party shall have any obligation to offer or pay any consideration (or incur any obligation) in order to obtain any such Consents; and provided, further, that Seller shall not make any agreement or understanding affecting the Shares, the Company, or the Business as a condition for obtaining any such Consents except with the prior written Consent of Purchaser.
(b) In furtherance and not in limitation of the covenants of the Parties contained in this Section 5.3, the Parties shall (i) cooperate and consult with each other in (A) determining, as promptly as practicable, whether any filings or notifications are required to be made with, or actions or nonactions, waivers, expirations or terminations of waiting periods, clearances, Consents or Orders are required to be obtained from, any Governmental Authorities in connection with the execution and delivery of this Agreement and the consummation of the Transactions and (B) timely making all such filings and notifications and timely seeking all such actions or nonactions, waivers, expirations or terminations of waiting periods, clearances, Consents or Orders, (ii) respond promptly to inquiries from any Governmental Authority in connection with any filings or notifications made pursuant to this Section 5.3 and supply as promptly as practicable, and (iii) use reasonable best efforts to take, or cause to be taken, all other actions and to do, or cause to be done, all other things necessary, proper or advisable under applicable Law to consummate and make effective the Transactions.
(c) As soon as practicable, includingeach Party shall, preparing or shall cause its applicable Affiliate to, use its reasonable best efforts in cooperation with the other Party to take any action (including submitting relevant applications and filing supplementary information) that may be necessary or required by an applicable Governmental Authority to amend, modify, or apply for the transfer or replacement of the Permits set forth on Schedule 3.13 in the name of the Company or Purchaser, as appropriate, effective as of the Closing or as promptly thereafter as practicable all documentation practicable. Until any such amendment, modification, transfer or replacement of the Permits set forth on Schedule 3.13 becomes effective, Seller shall, or shall cause its Affiliates to, use its reasonable best efforts to preserve and maintain the status of the Permits as in effect all necessary filings, notices, petitions, statements, registrations, submissions of information, applications and other documents necessary and appropriate immediately prior to consummate the Transactions. Closing.
(d) In furtherance and not in limitation of the foregoingcovenants of the Parties contained in this Section 5.3, subject to applicable legal limitations, each of Parent and GFI shall Party agrees to (i) make furnish to the other such information and assistance as the other may reasonably request in connection with its preparation of any notifications or cause filings, (ii) keep the other apprised of the status of matters relating to the completion of the Transactions, including promptly furnishing the other with copies of notices or other communications received by such Party from, or given by such Party to, any third party or any Governmental Authority with respect to such Transactions, (iii) permit the other Party to review and incorporate the other Party’s reasonable comments in any communication to be given by it to any Governmental Authority with respect to any filings or notifications required to be made with, or actions or nonactions, waivers, expirations or terminations of waiting periods, clearances, Consents or Orders required to be obtained from, such Governmental Authority in connection with execution and delivery of this Agreement and the filings required of such party under the Foreign Competition Laws (including those set forth in Section 3.4(b)(i) consummation of the Parent Disclosure Letter) with respect to the Transactions as promptly as practicable after the date of this Agreement; (ii) take all actions to obtain and make the Regulatory Approvals set forth in Section 3.4(b)(ii) of the Parent Disclosure Letter as promptly as practicable after the date of this Agreement; (iii) comply at the earliest practicable date with any request under any Governmental Entity (including under any Foreign Competition Laws) in respect of such filings or such Transaction; Transactions, and (iv) act in good faith and reasonably cooperate consult with the other Party in connection advance of and not participate in any meeting or discussion relating to the Transactions, either in person or by telephone, with any such filings and in connection with resolving any investigation or other inquiry of any such agency or other Governmental Entity under any of the HSR Act, the Foreign Competition Laws, the Xxxxxxx Act, the Xxxxxxx Act and any other Laws or Orders that are designed to prohibit, restrict or regulate actions having the purpose or effect of monopolization or restraint of trade (collectively, the “Antitrust Laws”) with respect to any such filing or any such Transaction. To the extent not prohibited by applicable Law, the Parties shall use reasonable best efforts to furnish to each other all information required for any application or other filing to be made pursuant to any applicable Law Authority in connection with the Transactions. Each Party shall give each other reasonable prior notice of any substantive communication with, and any proposed understanding, undertaking or agreement with, any Governmental Entity regarding any such filings or any such Transaction. No Party shall independently participate in any meeting, or engage in any substantive conversation, with any Governmental Entity in respect of any such filings, investigation or other inquiry without giving Transactions unless it gives the other Parties prior notice of the meeting or conversation and, unless prohibited by such any Governmental Entity, Party the opportunity to attend or participateand observe, provided the Governmental Authority agrees to allow the other Party to attend. The Parties contemplate that as a general matter both Parent and GFI shall be represented at in-person meetings with any Governmental Entity. The Parties will consult and cooperate with one another in connection with any analyses, appearances, presentations, memoranda, briefs, arguments, opinions and proposals made or submitted by or on behalf of any Each Party in connection with proceedings under or relating to the HSR Act, the Foreign Competition Laws or other Antitrust Laws.
(b) Without limiting the general obligations of Parent and GFI under Section 5.3(a) (Consents and Approvals), each of Parent and GFI shall use its reasonable best efforts to resolve such objectionsshare information protected from disclosure under the attorney-client privilege, if anywork product doctrine, joint defense privilege or any other privilege pursuant to this Section 5.3(d) in a manner so as to preserve any applicable privilege.
(e) Seller shall furnish or cause to be furnished to Purchaser all information concerning the Company that may be asserted by reasonably required or requested for inclusion in the Registration Statement including required financial statements (including pro forma financial statements) of the Business prepared in accordance with SEC guidance including the requirements of Regulation S-X and a related Consent from the Business’s independent public accountants, and will cooperate with Purchaser, and the Underwriters in the preparation of the Registration Statement and the prospectus included in the Registration Statement, and otherwise cooperate with Purchaser in its due diligence activities in preparation of the Registration Statement.
(f) If at any Governmental Entity time during the pre-Closing period in which a prospectus relating to the IPO is required to be delivered under the Securities Act, any information contained in the prospectus as provided to Seller (and affording Seller sufficient time to review) concerning Seller or the Company, to the Seller’s Knowledge, becomes inaccurate or incomplete in any material respect, Seller shall promptly so advise Purchaser and provide the information reasonably necessary to correct any such inaccuracy or to materially complete any such incomplete information. Purchaser shall give the Company an opportunity to review and comment on the Registration Statement and all amendments prior to them being filed. Notwithstanding the foregoing or anything to the contrary as set forth herein, Purchaser’s sole recourse with respect to the Transactions Losses arising from any breach by Seller of Seller’s obligations under the Antitrust Laws. In connection therewith and this Section 5.3(f) shall be limited to an indemnification claim treated as a claim under Section 9.2(a) subject to (i) the Basket, (ii) the General Indemnity Cap and (iii) the requirement that the claim be made against the Holdback Shares and the Indemnity Escrow Amount in accordance with Section 5.3(a9.4(e); provided, however, that nothing in this Section 5.3(f) shall limit Purchaser’s recovery for breaches of Seller’s Fundamental Representations; provided further, however, that for avoidance of doubt, breaches of Seller’s Fundamental Representations shall be subject to the limitations set forth in the last sentence of Section 9.4(b).
(Consents g) As requested by Purchaser or Merger Sub, the Company and Approvals)Seller shall cooperate in the audit of the Company’s financial statements by Purchaser’s accountants (such audit to be completed at Purchaser’s expense) in preparation of the Registration Statement. Notwithstanding the foregoing or anything else in this Agreement to the contrary, if Purchaser and its Affiliates shall not be required to (i) propose, offer, commit, agree, or consent to (A) sell, divest, lease, license, transfer, hold separate, or otherwise dispose of any assets, businesses, products or product lines of Purchaser, any of its Affiliates, or the Company, (B) terminate, amend, or modify any existing relationships, ventures, contractual rights or Liabilities of Purchaser, any of its Affiliates, or the Company, or (C) take or agree to take any action that after the Closing would limit the freedom of Purchaser, any of its Affiliates, or the Company with respect to, or its ability to retain, one or more of its or its Affiliates’ (including the Company’s) businesses, product lines, or assets, (ii) contest, defend, or resist any Proceeding is instituted (brought or threatened to be instituted) brought challenging or seeking to enjoin, restrain, prohibit, or otherwise make illegal any of the Transactions as inconsistent with Transactions, or violative of any Antitrust Law, each of Parent and GFI shall cooperate and use its reasonable best efforts vigorously to contest and resist (by negotiation, litigation iii) appeal or otherwise) any such Proceeding and seek to have vacated, lifted, reversed reversed, or overturned any Order Order, whether temporary, preliminary preliminary, or permanent, that is in effect and that enjoins, restrains, prohibits, prevents, delays or restricts consummation otherwise makes illegal any of the Transactions, unless Parent reasonably and in good faith determines that litigation is not in its best interests. Notwithstanding the foregoing or any other provision of this Agreement, nothing in this Section 5.3(b) shall limit the right of a Party to terminate this Agreement pursuant to Section 7.1 (Termination), so long as such Party has until that time complied in all material respects with its obligations under this Section 5.3. Each of Parent and GFI shall use its reasonable best efforts to take such action as may be required to cause the expiration of the notice periods or to obtain the necessary approvals under the HSR Act, the Foreign Competition Laws or any other Antitrust Laws with respect to the Transactions as promptly as possible after the execution of this Agreement.
(c) Notwithstanding anything to the contrary in this Agreement, nothing in this Agreement shall be deemed to require Parent or any Parent Subsidiary to agree to or take any action that would result in any Burdensome Condition. None of GFI or any GFI Subsidiary shall agree to or take any action that would result in any Burdensome Condition without the prior written consent of Parent. For purposes of this Agreement, a “Burdensome Condition” shall mean making proposals, executing or carrying out agreements (including consent decrees) or submitting to Laws (i) providing for the transfer, license, sale or other disposition or holding separate (through the establishment of a trust or otherwise) of any assets or categories of assets of Parent, GFI or any of their respective Subsidiaries or the holding separate (through the establishment of a trust or otherwise) of the Securities of any Parent Subsidiary or GFI Subsidiary or (ii) imposing or seeking to impose any limitation on the ability of Parent, GFI or any of their respective Subsidiaries to conduct their respective businesses (including with respect to market practices and structure) or own such assets or to acquire, hold or exercise full rights of ownership of the business of GFI, the GFI Subsidiaries, Parent or the Parent Subsidiaries, in each case other than (x) with respect to Antitrust Laws, any such proposals, executing or carrying out agreements (including consent decrees) or submitting to Laws that would not impair in any material respect the expected benefits of Parent and the Parent Subsidiaries from or relating to the Transactions, or (y) with respect to Regulatory Approvals, any immaterial administrative or ministerial obligations of Parent or any Parent Subsidiary.
Appears in 1 contract
Consents and Approvals. (a) Subject to Each of the terms and conditions of this AgreementCompany, each of Parent and GFI will Merger Sub shall use its reasonable best efforts to (i) take, or cause to be taken, all actions appropriate action, and to do, or cause to be done, all things necessary, proper or advisable under applicable any Applicable Law or otherwise to consummate and make effective the Transactions, including, preparing and filing transactions contemplated hereby as promptly as practicable all documentation practicable, but in no event later than the End Date, (ii) obtain from any Governmental Authority any consents, licenses, permits, waivers, clearances approvals, authorizations or orders required to effect all necessary filingsbe obtained or made by Parent, noticesMerger Sub or the Company or any of their respective Subsidiaries, petitionsor avoid any action or proceeding by any Governmental Authority (including, statementswithout limitation, registrationsthose in connection with the HSR Act and any other antitrust or competition Applicable Law or regulation) (the “Required Governmental Approvals”), submissions in connection with the authorization, execution and delivery of information, applications this Agreement and other documents necessary and appropriate to consummate the Transactions. In furtherance and not in limitation consummation of the foregoingtransactions contemplated hereby, each of Parent and GFI shall (iiii) make or cause to be made the applications or filings required to be made by Parent, Merger Sub or the Company or any of such party their respective Subsidiaries under the Foreign Competition Laws (including those set forth in Section 3.4(b)(i) of the Parent Disclosure Letter) or with respect to the Transactions as promptly as practicable after HSR Act, which filing shall be made within ten (10) Business Days of the date hereof, any other applicable Required Governmental Approvals or any other Applicable Law in connection with the authorization, execution and delivery of this Agreement; (ii) take all actions to obtain Agreement and make the Regulatory Approvals set forth in Section 3.4(b)(ii) consummation of the Parent Disclosure Letter as promptly as practicable after the date of this Agreement; transactions contemplated hereby, (iiiiv) comply at the earliest reasonably practicable date with any request under or with respect to the HSR Act, any other Required Governmental Entity (including under Approvals and any Foreign Competition Laws) such other Applicable Laws for additional information, documents or other materials received by Parent or the Company or any of their respective Subsidiaries from the Federal Trade Commission or the Department of Justice or any other Governmental Authority in respect of connection with such applications or filings or such Transaction; the transactions contemplated hereby, and (ivv) act permit the other party to review and discuss in advance, and consider in good faith and reasonably cooperate with the view of the other Party in connection with, any proposed material written or oral communication with any such filings and Governmental Authority including all reasonable additions, deletions or changes suggested by the other party in connection with, making (A) any material communication or filing under or with respect to the HSR Act, any other Required Governmental Approvals or any such other Applicable Law and (B) any material communications, filings, conferences or other submissions related to resolving any investigation or other inquiry of by any such agency Governmental Authority. Each party shall not participate in any substantive meeting or have any substantive communication with any Governmental Authority unless, to the extent permitted by Applicable Law, it has given the other party a reasonable opportunity to consult with it in advance and, to the extent permitted by such Governmental Entity under any of Authority, gives the HSR Act, other the Foreign Competition Laws, the Xxxxxxx Act, the Xxxxxxx Act opportunity to attend and any other Laws or Orders that are designed to prohibit, restrict or regulate actions having the purpose or effect of monopolization or restraint of trade (collectively, the “Antitrust Laws”) with respect to any such filing or any such Transactionparticipate therein. To the extent not prohibited permitted by applicable Applicable Law, each party shall promptly notify the Parties other of, and if in writing, furnish the other with copies of any material communications from, with, or to any Governmental Authority in connection with the transactions contemplated hereby; provided however, that such materials may be redacted as necessary to address reasonable legal privilege or confidentiality concerns and/or to remove references concerning valuation of the 63
(b) Each of the Company and Parent shall, and Parent shall use reasonable best efforts to cause its Subsidiaries to, furnish to each the other party all information required necessary for any application or other filing to be made pursuant to any applicable Law in connection with the Transactionstransactions contemplated hereby. Each Party of the Company and Parent shall give each promptly inform the other reasonable prior notice of any substantive material communication with, and any proposed understanding, undertaking or agreement with, any Governmental Entity Authority regarding any such filings application or any such Transactionfiling. No Party shall If a party hereto intends to independently participate in any meeting, or engage in any substantive conversation, meeting with any Governmental Entity Authority in respect of any such filings, investigation or other inquiry without giving inquiry, then such party shall give the other Parties party reasonable prior notice of such meeting and invite Representatives of the other party to participate in the meeting or conversation and, with the Governmental Authority unless prohibited by such any Governmental Entity, the opportunity to attend or participateAuthority. The Parties contemplate that as a general matter both Parent and GFI parties shall be represented at in-person meetings with any Governmental Entity. The Parties will consult coordinate and cooperate with one another in connection with any analyses, appearances, presentations, memoranda, briefs, arguments, opinions and proposals made or submitted by or on behalf of any Party party in connection with all meetings, actions and proceedings under or relating to the HSR Act, the Foreign Competition Laws any such application or other Antitrust Lawsfiling.
(bc) Without limiting Prior to the general obligations Closing, the Company shall give any notices to third parties counterparty to any Contracts to which the Company or any of Parent its Subsidiaries is a party and GFI under Section 5.3(a) (Consents and Approvals), each of Parent and GFI shall use its reasonable best efforts to resolve such objections, if any, as may be asserted by any Governmental Entity obtain consents and waivers with respect to Contracts to which the Transactions under Company or any of its Subsidiaries is a party prior to the Antitrust Laws. In connection therewith Closing (which may or may not be obtained); provided, however, that in no event will Parent or any of its Subsidiaries be required, and subject in no event shall the Company prior to Section 5.3(a) the Effective Time, without the prior written consent of Parent (Consents and Approvalsnot to be unreasonably withheld, conditioned or delayed), if pay any Proceeding fee, penalty or other consideration or make any accommodation to any third party to obtain any consent, approval or waiver required with respect to any such Contract.
(d) If any administrative or judicial action or proceeding is instituted (or threatened to be instituted) by a Governmental Authority challenging the transactions 64
(e) Parent shall vote (or act by written consent with respect to) all of the shares of capital stock of Merger Sub beneficially owned by it or any of its Subsidiaries or Affiliates in favor of the Transactions as inconsistent adoption of this Agreement in accordance with Applicable Law.
(f) Neither Parent nor Merger Sub shall, nor shall they permit their respective Subsidiaries to, acquire or violative of agree to acquire any Antitrust Lawrights, each of Parent and GFI shall cooperate and use its reasonable best efforts vigorously to contest and resist assets, business, Person or division thereof (by negotiationthrough acquisition, litigation license, joint venture, collaboration or otherwise) any such Proceeding and to have vacated, lifted, reversed or overturned any Order whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents, delays or restricts consummation of the Transactions, unless Parent reasonably and in good faith determines that litigation is not in its best interests. Notwithstanding the foregoing or any other provision of this Agreement, nothing in this Section 5.3(b) shall limit the right of a Party to terminate this Agreement pursuant to Section 7.1 (Termination), so long as if such Party has until that time complied in all material respects with its obligations acquisition, would reasonably be expected to materially increase the risk of not obtaining any applicable clearance, consent, approval or waiver under this Section 5.3. Each of Parent and GFI shall use its reasonable best efforts to take such action as may be required to cause the expiration of the notice periods or to obtain the necessary approvals under the HSR Act, the Foreign Competition Laws or any other Antitrust Laws with respect to the Transactions as promptly as possible after Merger or the execution of other transactions contemplated by this Agreement.
; provided, however, that the foregoing shall in no way restrict Parent’s franchising activities in the ordinary course (c) Notwithstanding anything to the contrary in this Agreement, nothing in this Agreement shall be deemed to require Parent including any refranchising or any Parent Subsidiary to agree repurchasing of units to or take any action that would result in any Burdensome Condition. None of GFI or any GFI Subsidiary shall agree to or take any action that would result in any Burdensome Condition without the prior written consent of Parent. For purposes of this Agreement, a “Burdensome Condition” shall mean making proposals, executing or carrying out agreements (including consent decrees) or submitting to Laws (i) providing for the transfer, license, sale or other disposition or holding separate (through the establishment of a trust or otherwise) of any assets or categories of assets of Parent, GFI or any of their respective Subsidiaries or the holding separate (through the establishment of a trust or otherwise) of the Securities of any Parent Subsidiary or GFI Subsidiary or (ii) imposing or seeking to impose any limitation on the ability of Parent, GFI or any of their respective Subsidiaries to conduct their respective businesses (including with respect to market practices and structure) or own such assets or to acquire, hold or exercise full rights of ownership of the business of GFI, the GFI Subsidiaries, Parent or the Parent Subsidiaries, in each case other than (x) with respect to Antitrust Laws, any such proposals, executing or carrying out agreements (including consent decrees) or submitting to Laws that would not impair in any material respect the expected benefits of Parent and the Parent Subsidiaries from or relating to the Transactions, or (y) with respect to Regulatory Approvals, any immaterial administrative or ministerial obligations of Parent or any Parent Subsidiaryfranchisees).
Appears in 1 contract
Consents and Approvals. (a) Subject to the terms and conditions of this Agreement, each of Parent and GFI will Section 6.5.1 The Company shall use its reasonable best efforts to (i) take, or cause to be taken, all actions appropriate action, and to do, or cause to be done, all things necessary, proper or advisable under applicable any Applicable Law or otherwise to consummate and make effective the Transactions, including, preparing Merger and filing the other Transactions contemplated hereby as promptly as practicable all documentation practicable, (ii) obtain from any Governmental Authority any consents, licenses, permits, waivers, clearances, approvals, authorizations or orders required to effect all necessary filingsbe obtained or made by the Company, noticesor avoid any action or proceeding by any Governmental Authority, petitionsin connection with the authorization, statements, registrations, submissions execution and delivery of information, applications this Agreement and other documents necessary and appropriate to consummate the Transactions. In furtherance and not in limitation consummation of the foregoingMerger and the other Transactions contemplated hereby; and (iii) to obtain all consents, each licenses, waivers, approvals or authorizations set forth on Exhibit Q, and ensure that such consents are in full force and effect as of Parent and GFI shall (i) make or the Closing Date.
Section 6.5.2 Each party agrees to cause to be made the applications or filings required to be made by Parent, Merger Sub or the Company or any of such party their respective Subsidiaries under any Applicable Laws in connection with the Foreign Competition Laws (including those set forth in Section 3.4(b)(i) authorization, execution and delivery of this Agreement and the consummation of the Parent Disclosure Letter) Merger and the other Transactions contemplated hereby, and pay any fees due in connection with respect to the Transactions such applications or filings, as promptly as practicable is reasonably practicable, and in any event within ten (10) business days after the date of this Agreement; (ii) take all actions to obtain and make the Regulatory Approvals set forth in Section 3.4(b)(ii) hereof. Each of the Company and Parent Disclosure Letter as promptly as practicable after the date of this Agreement; (iii) comply at the earliest practicable date with any request under any Governmental Entity (including under any Foreign Competition Laws) in respect of such filings or such Transaction; shall, and (iv) act in good faith and reasonably cooperate with shall cause their respective Affiliates to, furnish to the other Party in connection with any such filings and in connection with resolving any investigation or other inquiry of any such agency or other Governmental Entity under any of the HSR Act, the Foreign Competition Laws, the Xxxxxxx Act, the Xxxxxxx Act and any other Laws or Orders that are designed to prohibit, restrict or regulate actions having the purpose or effect of monopolization or restraint of trade (collectively, the “Antitrust Laws”) with respect to any such filing or any such Transaction. To the extent not prohibited by applicable Law, the Parties shall use reasonable best efforts to furnish to each other party all information required necessary for any application or other filing to be made pursuant to any applicable Law in connection with the Transactions. Transactions pursuant to this Section 6.5.
Section 6.5.3 Each Party of the Company and Parent shall give each promptly inform the other reasonable prior notice of any substantive material communication with, and any proposed understanding, undertaking or agreement with, any Governmental Entity Authority regarding any such filings application or any such Transactionfiling to be made in connection with the Transactions pursuant to this Section 6.5. No Party shall independently participate Prior to participating in any meeting, or engage in any substantive conversation, meeting with any Governmental Entity Authority in respect of any such filings, investigation or other inquiry without giving inquiry, the other Parties Company shall give Parent reasonable prior notice of such meeting and invite representatives of Parent to participate in the meeting or conversation and, with the Governmental Authority unless prohibited by such any Governmental Entity, the opportunity to attend or participateAuthority. The Parties contemplate that as a general matter both Parent and GFI Company shall be represented at in-person meetings with any Governmental Entity. The Parties will consult coordinate and cooperate with one another Parent in connection with any analyses, appearances, presentations, memoranda, briefs, arguments, opinions and proposals made or submitted by or on behalf of any Party the Company in connection with proceedings all meetings, actions and Proceedings under or relating to the HSR Act, the Foreign Competition Laws any such application or other Antitrust Lawsfiling.
(b) Without limiting the general obligations of Parent and GFI under Section 5.3(a) (Consents and Approvals), each of Parent and GFI shall use its reasonable best efforts to resolve such objections, if any, as may be asserted by 6.5.4 If any Governmental Entity with respect to the Transactions under the Antitrust Laws. In connection therewith and subject to Section 5.3(a) (Consents and Approvals), if any Proceeding administrative or judicial action or proceeding is instituted (or threatened to be instituted) by a Governmental Authority challenging any of the Merger or the other Transactions contemplated hereby as inconsistent with or violative of any Antitrust Applicable Law, each of the Company shall, and shall cause its Affiliates to, cooperate with Parent and GFI shall cooperate and use its commercially reasonable best efforts vigorously to contest and resist (by negotiationresist, litigation or otherwise) except insofar as the Company, Parent and Merger Sub may otherwise agree, any such action or Proceeding, including any action or Proceeding and to have vacatedthat seeks a temporary restraining order or preliminary injunction that would prohibit, lifted, reversed prevent or overturned any Order whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents, delays or restricts restrict consummation of the TransactionsMerger or the other Transactions contemplated hereby, unless Parent reasonably and in good faith determines that litigation is not in its best interests. Notwithstanding the foregoing or any other provision of this Agreementprovided, nothing in this Section 5.3(b) shall limit the right of a Party to terminate this Agreement pursuant to Section 7.1 (Termination), so long as such Party has until that time complied in all material respects with its obligations under this Section 5.3. Each of Parent and GFI shall use its reasonable best efforts to take such action as may be required to cause the expiration of the notice periods or to obtain the necessary approvals under the HSR Act, the Foreign Competition Laws or any other Antitrust Laws with respect to the Transactions as promptly as possible after the execution of this Agreement.
(c) Notwithstanding anything to the contrary in this Agreementhowever, nothing in this Agreement shall be deemed to require Parent or Merger Sub, nor permit the Company, to enter into any Parent Subsidiary to agree to understanding, undertaking or take any action agreement that would result limit in any Burdensome Conditionmanner Parent's ability to operate the business of the Company following the Effective Time in its absolute discretion, or require the sale, divestiture, or license of any of the assets, properties or businesses of either Parent, the Company or the Surviving Corporation.
Section 6.5.5 Notwithstanding anything set forth in this Agreement, nothing contained in this Agreement shall give Parent or Merger Sub, directly or indirectly, the right to control or direct the operations of the Company prior to the consummation of the Merger. None Prior to the consummation of GFI or any GFI Subsidiary the Merger, the Company shall agree to or take any action that would result in any Burdensome Condition without exercise, consistent with the prior written consent of Parent. For purposes terms and conditions of this Agreement, a “Burdensome Condition” shall mean making proposals, executing or carrying out agreements (including consent decrees) or submitting to Laws (i) providing for the transfer, license, sale or other disposition or holding separate (through the establishment of a trust or otherwise) of any assets or categories of assets of Parent, GFI or any of their respective Subsidiaries or the holding separate (through the establishment of a trust or otherwise) of the Securities of any Parent Subsidiary or GFI Subsidiary or (ii) imposing or seeking to impose any limitation on the ability of Parent, GFI or any of their respective Subsidiaries to conduct their respective businesses (including with respect to market practices control and structure) or own such assets or to acquire, hold or exercise full rights of ownership of the supervision over its business of GFI, the GFI Subsidiaries, Parent or the Parent Subsidiaries, in each case other than (x) with respect to Antitrust Laws, any such proposals, executing or carrying out agreements (including consent decrees) or submitting to Laws that would not impair in any material respect the expected benefits of Parent and the Parent Subsidiaries from or relating to the Transactions, or (y) with respect to Regulatory Approvals, any immaterial administrative or ministerial obligations of Parent or any Parent Subsidiaryoperations.
Appears in 1 contract
Samples: Merger Agreement (Integra Lifesciences Holdings Corp)
Consents and Approvals. (a) Each of the Company, Xxxxxx, Parent and Merger Sub will use its reasonable best efforts to comply promptly with all Legal Requirements which may be imposed on it with respect to the Transaction Documents and the Transactions, which actions shall include furnishing all information in connection with approvals of or filings with any Governmental Body, and will promptly cooperate with and furnish information to each other in connection with any such requirements imposed upon any of them or any of their subsidiaries (which shall include, with respect to the Company, the Subsidiaries) in connection with the Transaction Documents and the Transactions. Each of the Company, Parent and Merger Sub will, and will cause its subsidiaries (which shall include, with respect to the Company, the Subsidiaries) to, use its reasonable best efforts to obtain any consent, authorization, order or approval of, or any exemption by, any Governmental Body or other public or private third party required to be obtained or made by Parent, Merger Sub, the Company or any of their subsidiaries (which shall include, with respect to the Company, the Subsidiaries) or necessary in the reasonable opinion of Parent, Merger Sub or the Company in connection with the Merger or the taking of any action contemplated thereby or by the Transaction Documents or the Transactions.
(b) Subject to the terms and conditions of this Agreementherein provided, each of Parent and GFI will the parties hereto agrees to use its commercially 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 advisable, whether under applicable Law Legal Requirements or otherwise, or to consummate remove any injunctions or other impediments or delays, legal or otherwise, (i) to cause the Transactions, including, preparing and filing conditions to Closing set forth in ARTICLE VII to be satisfied as promptly as practicable all documentation to effect all necessary filingsafter the date of this Agreement, notices, petitions, statements, registrations, submissions of information, applications and other documents necessary and appropriate (ii) otherwise to consummate and make effective the Transactions. In furtherance Merger and not in limitation of the foregoing, each of Parent and GFI shall (i) make or cause to be made the filings required of such party under the Foreign Competition Laws (including those set forth in Section 3.4(b)(i) of the Parent Disclosure Letter) with respect to the other Transactions as promptly as practicable after the date of this Agreement; (ii) take all actions . In case at any time after the Effective Time any further action is necessary or desirable to obtain and make carry out the Regulatory Approvals set forth in Section 3.4(b)(ii) purposes of the Parent Disclosure Letter as promptly as practicable after the date of this Agreement; (iii) comply at the earliest practicable date with any request under any Governmental Entity (including under any Foreign Competition Laws) in respect of such filings or such Transaction; and (iv) act in good faith and reasonably cooperate with the other Party in connection with any such filings and in connection with resolving any investigation or other inquiry of any such agency or other Governmental Entity under any of the HSR ActTransaction Documents, the Foreign Competition Laws, the Xxxxxxx Act, the Xxxxxxx Act proper officers and any other Laws or Orders that are designed to prohibit, restrict or regulate actions having the purpose or effect of monopolization or restraint of trade (collectively, the “Antitrust Laws”) with respect to any such filing or any such Transaction. To the extent not prohibited by applicable Law, the Parties shall use reasonable best efforts to furnish to each other all information required for any application or other filing to be made pursuant to any applicable Law in connection with the Transactions. Each Party shall give each other reasonable prior notice of any substantive communication with, and any proposed understanding, undertaking or agreement with, any Governmental Entity regarding any such filings or any such Transaction. No Party shall independently participate in any meeting, or engage in any substantive conversation, with any Governmental Entity in respect of any such filings, investigation or other inquiry without giving the other Parties prior notice of the meeting or conversation and, unless prohibited by such any Governmental Entity, the opportunity to attend or participate. The Parties contemplate that as a general matter both Parent and GFI shall be represented at in-person meetings with any Governmental Entity. The Parties will consult and cooperate with one another in connection with any analyses, appearances, presentations, memoranda, briefs, arguments, opinions and proposals made or submitted by or on behalf of any Party in connection with proceedings under or relating to the HSR Act, the Foreign Competition Laws or other Antitrust Laws.
(b) Without limiting the general obligations of Parent and GFI under Section 5.3(a) (Consents and Approvals), each of Parent and GFI shall use its reasonable best efforts to resolve such objections, if any, as may be asserted by any Governmental Entity with respect to the Transactions under the Antitrust Laws. In connection therewith and subject to Section 5.3(a) (Consents and Approvals), if any Proceeding is instituted (or threatened to be instituted) challenging any of the Transactions as inconsistent with or violative of any Antitrust Law, each of Parent and GFI shall cooperate and use its reasonable best efforts vigorously to contest and resist (by negotiation, litigation or otherwise) any such Proceeding and to have vacated, lifted, reversed or overturned any Order whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents, delays or restricts consummation of the Transactions, unless Parent reasonably and in good faith determines that litigation is not in its best interests. Notwithstanding the foregoing or any other provision of this Agreement, nothing in this Section 5.3(b) shall limit the right of a Party to terminate this Agreement pursuant to Section 7.1 (Termination), so long as such Party has until that time complied in all material respects with its obligations under this Section 5.3. Each of Parent and GFI shall use its reasonable best efforts to take such action as may be required to cause the expiration of the notice periods or to obtain the necessary approvals under the HSR Act, the Foreign Competition Laws or any other Antitrust Laws with respect to the Transactions as promptly as possible after the execution of this Agreement.
(c) Notwithstanding anything to the contrary in this Agreement, nothing in this Agreement shall be deemed to require Parent or any Parent Subsidiary to agree to or take any action that would result in any Burdensome Condition. None of GFI or any GFI Subsidiary shall agree to or take any action that would result in any Burdensome Condition without the prior written consent of Parent. For purposes of this Agreement, a “Burdensome Condition” shall mean making proposals, executing or carrying out agreements (including consent decrees) or submitting to Laws (i) providing for the transfer, license, sale or other disposition or holding separate (through the establishment of a trust or otherwise) of any assets or categories of assets of Parent, GFI or any of their respective Subsidiaries or the holding separate (through the establishment of a trust or otherwise) of the Securities of any Parent Subsidiary or GFI Subsidiary or (ii) imposing or seeking to impose any limitation on the ability of Parent, GFI or any of their respective Subsidiaries to conduct their respective businesses (including with respect to market practices and structure) or own such assets or to acquire, hold or exercise full rights of ownership of the business of GFI, the GFI Subsidiaries, Parent or the Parent Subsidiaries, in each case other than (x) with respect to Antitrust Laws, any such proposals, executing or carrying out agreements (including consent decrees) or submitting to Laws that would not impair in any material respect the expected benefits directors of Parent and the Parent Subsidiaries from or relating Surviving Corporation shall use all commercially reasonable efforts to the Transactionstake, or (y) with respect cause to Regulatory Approvalsbe taken, any immaterial administrative or ministerial obligations of Parent or any Parent Subsidiaryall such necessary actions.
Appears in 1 contract
Consents and Approvals. (a) Subject to Each of the terms and conditions of this AgreementCompany, each of Parent and GFI will Purchaser shall (and shall cause their respective Subsidiaries to) (i) (A) use its reasonable best efforts to make or cause to be made the applications or filings required to be made by Parent, Purchaser or the Company or any of their respective Subsidiaries under or with respect to any applicable laws (including Chapter 80B of the Minnesota Statutes) in connection with the authorization, execution and delivery of this Agreement and the consummation of the Transactions, and (B) subject to Section 9.3, pay any fees due in connection with such applications or filings, as promptly as is reasonably practicable, and in any event within 10 business days after the date hereof or sooner if required by law or regulations, (ii) use its reasonable best efforts to (A) take, or cause to be taken, all actions appropriate action, and to do, or cause to be done, all things reasonably necessary, proper or advisable under any applicable Law law or otherwise to consummate the Transactions, including, preparing and filing as promptly as practicable all documentation to effect all necessary filings, notices, petitions, statements, registrations, submissions of information, applications and other documents necessary and appropriate to consummate the Transactions. In furtherance and not in limitation of the foregoing, each of Parent and GFI shall (i) make or cause to be made the filings required of such party under the Foreign Competition Laws (including those set forth in Section 3.4(b)(i) of the Parent Disclosure Letter) with respect to effective the Transactions as promptly as practicable after practicable, (B) obtain from any Governmental Entities any consents, licenses, permits, waivers, clearances, approvals, waiting period terminations, authorizations or orders required to be obtained or made by Parent, Purchaser or the date Company or any of their respective Subsidiaries, or avoid any action or proceeding by any Governmental Entity, in connection with the authorization, execution and delivery of this Agreement; (ii) take all actions to obtain Agreement and make the Regulatory Approvals set forth in Section 3.4(b)(ii) consummation of the Parent Disclosure Letter as promptly as practicable after Transactions, (C) obtain all consents, approvals or waivers from, or take other actions with respect to, third parties necessary or advisable to be obtained or taken in connection with the date of this Agreement; Transactions, and (iii) comply at the earliest practicable date with any request under any Governmental Entity (including under any Foreign Competition Laws) in respect subject to applicable law related to exchange of such filings information, use its reasonable best efforts to coordinate and cooperate with, and give due consideration to all reasonable additions, deletions or such Transaction; and (iv) act in good faith and reasonably cooperate with changes suggested by the other Party party hereto in connection with any such filings and in connection with filings, conferences or other submissions related to resolving any investigation or other inquiry by any Governmental Entity, in each case in connection with the Offer, the Merger and the other Transactions. Subject to applicable law relating to exchange of information, each of the Company and Parent shall, and shall cause their respective affiliates to, furnish to the other party hereto all information necessary for any such agency or other Governmental Entity under any of the HSR Act, the Foreign Competition Laws, the Xxxxxxx Act, the Xxxxxxx Act and any other Laws or Orders that are designed to prohibit, restrict or regulate actions having the purpose or effect of monopolization or restraint of trade (collectively, the “Antitrust Laws”) with respect to any such filing or any such Transaction. To the extent not prohibited by applicable Law, the Parties shall use reasonable best efforts to furnish to each other all information required for any application or other filing to be made pursuant to any applicable Law in connection with the Transactions; provided, however, that material may be redacted (x) as necessary to comply with contractual arrangements, and (y) as necessary to address attorney-client or other privileges or confidentiality concerns. Each Party Any party hereto may, as it deems advisable or necessary, reasonably designate any competitively sensitive material provided to any other party hereto under this Agreement as “for outside counsel only” or “for special access only.” Such materials and information contained therein shall give be given only to the outside legal counsel of the recipient or other Persons agreed to in writing by the disclosing party and will be subject to such additional confidentiality restrictions as the party disclosing such information shall reasonably require.
(b) Subject to applicable law and as required by any Governmental Entity, each of the Company and Parent shall promptly inform the other reasonable prior notice of any substantive material communication with, and any proposed understanding, undertaking or agreement with, any Governmental Entity regarding any such filings application or any such Transactionfiling set forth in Section 6.3(a). No Party shall independently If a party hereto intends to participate in any meeting, meeting or engage in any substantive conversation, conference call with any Governmental Entity in respect of any such filings, investigation or other inquiry without giving inquiry, then to the extent practicable such party shall give the other Parties party hereto reasonable prior notice of such meeting or conference call and invite Representatives of the other party to participate in the meeting or conversation and, conference call with the Governmental Entity unless prohibited by such any Governmental Entity, the opportunity to attend or participate. The Parties contemplate that as a general matter both Parent and GFI shall be represented at in-person meetings with any Governmental Entity. The Parties will consult parties hereto shall coordinate and cooperate with one another in connection with any analyses, appearances, presentations, memoranda, briefs, arguments, opinions and proposals made or submitted by or on behalf of any Party party hereto in connection with all meetings, actions and proceedings under or relating to the HSR Act, the Foreign Competition Laws or other Antitrust Laws.
(b) Without limiting the general obligations of Parent and GFI under Section 5.3(a) (Consents and Approvals), each of Parent and GFI shall use its reasonable best efforts to resolve such objections, if any, as may be asserted by any Governmental Entity with respect to the Transactions under the Antitrust Laws. In connection therewith and subject to Section 5.3(a) (Consents and Approvals), if any Proceeding is instituted (or threatened to be instituted) challenging any of the Transactions as inconsistent with or violative of any Antitrust Law, each of Parent and GFI shall cooperate and use its reasonable best efforts vigorously to contest and resist (by negotiation, litigation or otherwise) any such Proceeding and to have vacated, lifted, reversed application or overturned any Order whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents, delays or restricts consummation of the Transactions, unless Parent reasonably and in good faith determines that litigation is not in its best interests. Notwithstanding the foregoing or any other provision of this Agreement, nothing in this Section 5.3(b) shall limit the right of a Party to terminate this Agreement pursuant to Section 7.1 (Termination), so long as such Party has until that time complied in all material respects with its obligations under this Section 5.3. Each of Parent and GFI shall use its reasonable best efforts to take such action as may be required to cause the expiration of the notice periods or to obtain the necessary approvals under the HSR Act, the Foreign Competition Laws or any other Antitrust Laws with respect to the Transactions as promptly as possible after the execution of this Agreementfiling.
(c) Notwithstanding anything From the date of this Agreement until the consummation of the Offer, each of Parent, Purchaser and the Company shall promptly notify the other in writing of any pending or, to the contrary in this Agreementknowledge of Parent, nothing in this Agreement shall be deemed to require Parent Purchaser or the Company (as the case may be), threatened action, suit, arbitration or other proceeding or investigation by any Governmental Entity or any Parent Subsidiary to agree to or take any action that would result in any Burdensome Condition. None of GFI or any GFI Subsidiary shall agree to or take any action that would result in any Burdensome Condition without the prior written consent of Parent. For purposes of this Agreement, a “Burdensome Condition” shall mean making proposals, executing or carrying out agreements (including consent decrees) or submitting to Laws other Person (i) providing for challenging the transfer, license, sale Transactions or other disposition or holding separate (through seeking material damages in connection with the establishment of a trust or otherwise) of any assets or categories of assets of Parent, GFI or any of their respective Subsidiaries or the holding separate (through the establishment of a trust or otherwise) of the Securities of any Parent Subsidiary or GFI Subsidiary Transactions or (ii) imposing or seeking to impose any limitation on restrain or prohibit the ability of Parent, GFI or any of their respective Subsidiaries to conduct their respective businesses (including with respect to market practices and structure) or own such assets or to acquire, hold or exercise full rights of ownership consummation of the business of GFI, the GFI Subsidiaries, Parent Transactions or the Parent Subsidiaries, in each case other than (x) with respect otherwise to Antitrust Laws, any such proposals, executing or carrying out agreements (including consent decrees) or submitting to Laws that would not impair limit in any material respect the expected benefits right of Parent and the Parent Subsidiaries from Parent, Purchaser or relating to the Transactions, or (y) with respect to Regulatory Approvals, any immaterial administrative or ministerial obligations affiliate of Parent or Purchaser to own or operate all or any portion of the businesses or assets of the Company. The Company shall give Parent Subsidiarythe opportunity to consult with the Company regarding the defense or settlement of any such shareholder litigation. Notwithstanding the foregoing, the Company shall not be required to provide any notice or information to Parent the provision of which the Company in good faith determines may adversely affect the Company’s or any other Person’s attorney-client or other privilege.
(d) If any administrative or judicial action or proceeding is instituted or threatened to be instituted by a Governmental Entity challenging the Transactions as violative of law, each of the Company, Parent and Purchaser shall, and shall cause their respective affiliates to, cooperate and use their reasonable best efforts to contest and resist, except insofar as the Company, Parent and Purchaser otherwise may agree, any such action or proceeding, including any action or proceeding that seeks a temporary restraining order or preliminary injunction that would prohibit, prevent or restrict consummation of the Transactions.
(e) Notwithstanding anything set forth in this Agreement, neither Parent nor Purchaser, or any of their affiliates, shall have the right under this Agreement or otherwise, directly or indirectly, to control or direct the operations of the Company prior to the consummation of the Offer. Prior to the consummation of the Offer, the Company shall exercise, consistent with the terms and conditions of this Agreement, control and supervision over its own business operations.
(f) Parent shall vote all of the shares of capital stock of Purchaser beneficially owned by it, or sign a written consent in lieu of a meeting of the shareholders of Purchaser, in favor of the approval and adoption of this Agreement in accordance with applicable law.
Appears in 1 contract
Samples: Merger Agreement (Buca Inc /Mn)
Consents and Approvals. (a) Subject to Each of the terms and conditions of this AgreementCompany, each of Parent and GFI will Purchaser shall use its reasonable best efforts to (i) take, or cause to be taken, all actions appropriate action, and to do, or cause to be done, all things necessary, proper or advisable under any applicable Law law or otherwise to consummate and make effective the Merger as promptly as reasonably practicable, (ii) obtain from any Governmental Entities any consents, licenses, permits, waivers, clearances, approvals, authorizations or orders required to be obtained or made by Parent, Purchaser or the Company or any of their respective Subsidiaries, or avoid any action or proceeding by any Governmental Entity (including, without limitation, those in connection with the Required Governmental Approvals), in connection with the authorization, execution and delivery of this Agreement and the consummation of the Transactions, including, preparing and filing as promptly as practicable all documentation to effect all necessary filings, notices, petitions, statements, registrations, submissions of information, applications and other documents necessary and appropriate to consummate the Transactions. In furtherance and not in limitation of the foregoing, each of Parent and GFI shall (iiii) make or cause to be made the applications or filings required to be made by Parent, Purchaser or the Company or any of such party their respective Subsidiaries under the Foreign Competition Laws (including those set forth in Section 3.4(b)(i) of the Parent Disclosure Letter) or with respect to the Transactions Required Governmental Approvals or any other applicable laws in connection with the authorization, execution and delivery of this Agreement and the consummation of the Merger, and pay any fees due in connection with such applications or filings, as promptly as practicable is reasonably practicable, and in any event within forty five (45) days after the date of this Agreement; hereof, (ii) take all actions to obtain and make the Regulatory Approvals set forth in Section 3.4(b)(ii) of the Parent Disclosure Letter as promptly as practicable after the date of this Agreement; (iiiiv) comply at the earliest reasonably practicable date with any request under or with respect to the Required Governmental Approvals and any such other applicable laws for additional information, documents or other materials received by Parent or the Company or any of their respective Subsidiaries from the Federal Trade Commission, the Department of Justice, the Federal Communications Commission or any other Governmental Entity (including under any Foreign Competition Laws) in respect of such filings or such Transaction; and (iv) act in good faith and reasonably cooperate with the other Party in connection with such applications or filings or the Merger, (v) defend any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the Merger and the other transactions contemplated hereby and (vi) coordinate and cooperate with, and give due consideration to all reasonable additions, deletions or changes suggested by the other party in connection with, making (A) any filing under or with respect to the Required Governmental Approvals or any such filings other applicable laws and in connection with (B) any filings, conferences or other submissions related to resolving any investigation or other inquiry of by any such agency or other Governmental Entity under any Entity. Each of the HSR ActCompany and Parent shall, and shall cause their respective Subsidiaries to, furnish to the Foreign Competition Laws, the Xxxxxxx Act, the Xxxxxxx Act and any other Laws or Orders that are designed to prohibit, restrict or regulate actions having the purpose or effect of monopolization or restraint of trade (collectively, the “Antitrust Laws”) with respect to party all information necessary for any such filing or any such Transaction. To the extent not prohibited by applicable Law, the Parties shall use reasonable best efforts to furnish to each other all information required for any application or other filing to be made pursuant to any applicable Law in connection with the TransactionsMerger. Each Party of the Company and Parent shall give each promptly inform the other reasonable prior notice of any substantive material communication with, and any proposed understanding, undertaking or agreement with, any Governmental Entity regarding any such filings application or any such Transactionfiling. No Party shall If a party hereto intends to independently participate in any meeting, or engage in any substantive conversation, meeting with any Governmental Entity in respect of any such filings, investigation or other inquiry without giving inquiry, then such party shall give the other Parties party reasonable prior notice of such meeting and invite Representatives of the other party to participate in the meeting or conversation and, with the Governmental Entity unless prohibited by such any Governmental Entity, the opportunity to attend or participate. The Parties contemplate that as a general matter both Parent and GFI shall be represented at in-person meetings with any Governmental Entity. The Parties will consult parties shall coordinate and cooperate with one another in connection with any analyses, appearances, presentations, memoranda, briefs, arguments, opinions and proposals made or submitted by or on behalf of any Party party in connection with all meetings, actions and proceedings under or relating to the HSR Act, the Foreign Competition Laws any such application or other Antitrust Lawsfiling.
(b) Without limiting The Company and Parent shall give (or shall cause their respective Subsidiaries to give) any notices to third parties, and use, and cause their respective Subsidiaries to use, reasonable efforts to obtain any consents under any Company Material Agreements necessary, proper or advisable to consummate the general obligations Merger; provided, however, that the Company and Parent shall coordinate and cooperate in determining whether any actions, notices, consents, approvals or waivers are required to be given or obtained, or should be given or obtained, from parties to any Company Material Agreements in connection with consummation of the Merger and seeking any such actions, notices, consents, approvals or waivers. Notwithstanding the foregoing, neither Parent nor Purchaser shall be required to, and GFI under Section 5.3(aneither the Company nor any Company Subsidiary will without the written consent of Parent, make any material payment to any third party or agree to any limitation on the conduct of its business, in order to obtain any such consent.
(c) (Consents and Approvals)From the date of this Agreement until the earlier of the Effective Time or the termination of this Agreement in accordance with its terms, each of Parent Purchaser and GFI the Company shall use its reasonable best efforts promptly notify the other in writing of any pending or, to resolve such objectionsthe knowledge of Purchaser or the Company (as the case may be), if anythreatened action, as may be asserted suit, arbitration or other proceeding or investigation by any Governmental Entity or any other Person (i) challenging or seeking material damages in connection with the Merger or (ii) seeking to restrain or prohibit the consummation of the Merger or otherwise limit in any material respect the right of Purchaser or any affiliate of Purchaser to own or operate all or any portion of the businesses or assets of the Company or any Company Subsidiary. The Company shall give Parent the opportunity to consult with the Company regarding the defense or settlement of any such stockholder litigation and shall consider Parent’s views with respect to such stockholder litigation. Notwithstanding the Transactions under foregoing, the Antitrust Laws. In connection therewith and subject Company shall not be required to Section 5.3(aprovide any notice or information to Parent the provision of which the Company in good faith determines is reasonably likely to adversely affect the Company’s or any other person’s attorney client or other privilege with respect to such information.
(d) (Consents and Approvals), if If any Proceeding administrative or judicial action or proceeding is instituted (or threatened to be instituted) by a Governmental Entity challenging any of the Transactions Merger as inconsistent with or violative of any Antitrust Lawapplicable law, each of Parent the Company and GFI Purchaser shall, and shall cause their respective affiliates to, cooperate and use its reasonable best efforts vigorously to contest and resist (by negotiation, litigation or otherwise) any such Proceeding and to have vacated, lifted, reversed or overturned any Order whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents, delays or restricts consummation of the Transactions, unless Parent reasonably and in good faith determines that litigation is not in its best interests. Notwithstanding the foregoing or any other provision of this Agreement, nothing in this Section 5.3(b) shall limit the right of a Party to terminate this Agreement pursuant to Section 7.1 (Termination), so long as such Party has until that time complied in all material respects with its obligations under this Section 5.3. Each of Parent and GFI shall use its their reasonable best efforts to take contest and resist, except insofar as the Company and Purchaser may otherwise agree, any such action as may be required to cause the expiration or proceeding, including any action or proceeding that seeks a temporary restraining order or preliminary injunction that would prohibit, prevent or restrict consummation of the notice periods or to obtain the necessary approvals under the HSR Act, the Foreign Competition Laws or any other Antitrust Laws with respect to the Transactions as promptly as possible after the execution of this AgreementMerger.
(ce) Notwithstanding anything to the contrary set forth in this Agreement, nothing contained in this Agreement shall be deemed to require give Parent or any Parent Subsidiary Purchaser, directly or indirectly, the right to agree control or direct the operations of the Company prior to or take any action that would result in any Burdensome Conditionthe consummation of the Merger. None Prior to the consummation of GFI or any GFI Subsidiary the Merger, the Company shall agree to or take any action that would result in any Burdensome Condition without exercise, consistent with the prior written consent of Parent. For purposes terms and conditions of this Agreement, a “Burdensome Condition” shall mean making proposals, executing or carrying out agreements (including consent decrees) or submitting to Laws (i) providing for the transfer, license, sale or other disposition or holding separate (through the establishment of a trust or otherwise) of any assets or categories of assets of Parent, GFI or any of their respective Subsidiaries or the holding separate (through the establishment of a trust or otherwise) of the Securities of any Parent Subsidiary or GFI Subsidiary or (ii) imposing or seeking to impose any limitation on the ability of Parent, GFI or any of their respective Subsidiaries to conduct their respective businesses (including with respect to market practices control and structure) or own such assets or to acquire, hold or exercise full rights of ownership of the supervision over its business of GFI, the GFI Subsidiaries, Parent or the Parent Subsidiaries, in each case other than (x) with respect to Antitrust Laws, any such proposals, executing or carrying out agreements (including consent decrees) or submitting to Laws that would not impair in any material respect the expected benefits of Parent and the Parent Subsidiaries from or relating to the Transactions, or (y) with respect to Regulatory Approvals, any immaterial administrative or ministerial obligations of Parent or any Parent Subsidiaryoperations.
Appears in 1 contract
Consents and Approvals. (a) Subject Each of the Parties shall use its best efforts in good faith to obtain at the earliest practicable date any approvals, authorizations and consents necessary, and shall take such actions as the other Parties may reasonably request, to consummate the Transactions and diligently attempt to satisfy, to the terms and extent within its control, all conditions precedent to its obligations to close the Transactions.
(b) As promptly as reasonably practicable following the execution of this Agreement, each of Parent the Parties (so far as it is legally bound to do so) shall make, or shall cause its ultimate parent entity (as that term is defined in the HSR Act) to make, all pre-transaction notification filings required under the HSR Act, and GFI will required under any other applicable Antitrust Laws (which shall be made on such date as the Parties mutually agree, which shall be as soon as practicable following the date hereof). Each of the Parties shall: (i) cooperate fully with each other and shall furnish to the other such necessary information and reasonable assistance as the other may reasonably request in connection with its preparation of any required filings under the HSR Act or any applicable Antitrust Laws; and (ii) keep the other Party reasonably informed of any communication received by such Party from, or given by such Party to any Antitrust Authority and of any communication received or given in connection with any proceeding by a private party, in each case regarding the transactions contemplated hereby and in a manner that protects attorney-client or attorney work product privilege. Further, without limiting the obligations stated in this Section 5.1(b), the Parties shall each use its reasonable their best efforts to takerespond to and comply with any request for information regarding the transactions contemplated hereby or filings under the HSR Act or any applicable Antitrust Laws from any Antitrust Authority. No Party shall consent to any voluntary extension of any statutory deadline or waiting period or to any voluntary delay of the consummation of the transactions contemplated by this Agreement, at the behest of any Governmental Entity or cause to otherwise, without the consent of the other Parties, which consents shall not be takenunreasonably withheld, all actions and to do, conditioned or cause to be done, all things necessary, proper or advisable under applicable Law to consummate delayed. Without limiting the Transactions, including, preparing and filing as promptly as practicable all documentation to effect all necessary filings, notices, petitions, statements, registrations, submissions of information, applications and other documents necessary and appropriate to consummate the Transactions. In furtherance and not in limitation generality of the foregoing, each of Parent and GFI Party shall (i) make or cause to be made the filings required of such party under the Foreign Competition Laws (including those set forth in Section 3.4(b)(i) of the Parent Disclosure Letter) with respect provide to the Transactions as promptly as practicable after other (or the date other Party’s outside counsel) upon request copies of all correspondence between such Party and any Antitrust Authority relating to the transactions contemplated by this Agreement; (ii) take all actions . In addition, to obtain and make the Regulatory Approvals set forth in Section 3.4(b)(ii) of the Parent Disclosure Letter as promptly as practicable after the date of this Agreement; (iii) comply at the earliest practicable date with any request under any Governmental Entity (including under any Foreign Competition Laws) in respect of such filings or such Transaction; and (iv) act in good faith and reasonably cooperate with the other Party in connection with any such filings and in connection with resolving any investigation or other inquiry of any such agency or other Governmental Entity under any of the HSR Act, the Foreign Competition Laws, the Xxxxxxx Act, the Xxxxxxx Act and any other Laws or Orders that are designed to prohibit, restrict or regulate actions having the purpose or effect of monopolization or restraint of trade (collectively, the “Antitrust Laws”) with respect to any such filing or any such Transaction. To the extent not prohibited reasonably practicable, all discussions, telephone calls, and meetings with an Antitrust Authority regarding the transactions contemplated by this Agreement shall include representatives of each Party. Subject to applicable Law, the Parties shall use reasonable best efforts to furnish to each other all information required for any application or other filing to be made pursuant to any applicable Law in connection with the Transactions. Each Party shall give each other reasonable prior notice of any substantive communication with, and any proposed understanding, undertaking or agreement with, any Governmental Entity regarding any such filings or any such Transaction. No Party shall independently participate in any meeting, or engage in any substantive conversation, with any Governmental Entity in respect of any such filings, investigation or other inquiry without giving the other Parties prior notice of the meeting or conversation and, unless prohibited by such any Governmental Entity, the opportunity to attend or participate. The Parties contemplate that as a general matter both Parent and GFI shall be represented at in-person meetings with any Governmental Entity. The Parties will consult and cooperate with one another each other in connection with any analyses, appearances, presentations, memoranda, briefs, arguments, opinions and proposals made or submitted to any Antitrust Authority regarding the transactions contemplated by this Agreement by or on behalf of any Party in connection with proceedings under or relating to the HSR ActParty. The Parties will, the Foreign Competition Laws or other Antitrust Laws.
(b) Without limiting the general obligations of Parent and GFI under Section 5.3(a) (Consents and Approvals)at their own expense, each of Parent and GFI shall use its reasonable their best efforts to resolve such objections, if any, as may be asserted by any Governmental Entity with respect to the Transactions under the Antitrust Laws. In connection therewith and subject to Section 5.3(a) (Consents and Approvals), if any Proceeding is instituted (or threatened to be instituted) challenging any of the Transactions as inconsistent with or violative of obtain all required approvals from any Antitrust LawAuthority, each of Parent and GFI shall cooperate and use its reasonable best efforts vigorously to contest and resist (by negotiation, litigation or otherwise) any such Proceeding and to have vacated, lifted, reversed or overturned any Order whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents, delays or restricts consummation of the Transactions, unless Parent reasonably and in good faith determines that litigation is not in its best interests. Notwithstanding the foregoing or any other provision of this Agreement, nothing in this Section 5.3(b) shall limit the right of a Party to terminate this Agreement pursuant to Section 7.1 (Termination), so long as such Party has until that time complied in all material respects with its obligations under this Section 5.3. Each of Parent and GFI shall use its reasonable best efforts to take such action as may be required to cause the expiration of the notice periods or to obtain the necessary approvals including approval under the HSR Act, and to avoid or eliminate each and every other impediment to Closing under the Foreign Competition Laws or any other Antitrust Laws with respect to the Transactions HSR Act as promptly expeditiously as possible after the execution of this Agreementpossible.
(c) Notwithstanding the foregoing or anything to the contrary in this Agreement, nothing in this Agreement to the contrary, in no event shall be deemed to require Parent or any Parent Subsidiary to agree to or take any action that would result in any Burdensome Condition. None of GFI or any GFI Subsidiary shall agree to or take any action that would result in any Burdensome Condition Party, without the prior written consent of Parent. For purposes of this Agreementthe other Parties, a “Burdensome Condition” shall mean making proposals, executing or carrying out agreements (including consent decrees) or submitting to Laws (i) providing for the transferagree to sell, licensedivest, sale dispose of or other disposition or holding hold separate (through the establishment of a trust or otherwise) of any assets or categories businesses of assets of Parent, GFI such Party or any of its Subsidiaries, or otherwise take or commit to take any action that could reasonably limit such Party or its Subsidiaries’ freedom of action with respect to, or their respective Subsidiaries ability to retain, one or the holding separate (through the establishment of a trust more Subsidiaries, businesses, assets or otherwise) of the Securities of any Parent Subsidiary or GFI Subsidiary affiliations or (ii) imposing agree or seeking otherwise become subject to impose any limitation restrictions, conditions, limitations, licensing requirements, or other understandings on the ability of Parent, GFI or any of their respective Subsidiaries to conduct their respective businesses (including with respect to market practices and structure) or own such the assets or to acquire, hold or exercise full rights of ownership the operation of the business of GFI, the GFI Subsidiaries, Parent or the Parent Subsidiaries, in each case other than (x) with respect to Antitrust Laws, any such proposals, executing or carrying out agreements (including consent decrees) or submitting to Laws that would not impair in any material respect the expected benefits of Parent and the Parent Subsidiaries from or relating to the Transactions, or (y) with respect to Regulatory Approvals, any immaterial administrative or ministerial obligations of Parent Party or any Parent Subsidiaryof its Subsidiaries.
Appears in 1 contract
Consents and Approvals. (a) Each of MAII, the Company, Parent and Merger Sub will use all commercially reasonable efforts to comply promptly with all legal requirements which may be imposed on it with respect to this Agreement and the transactions contemplated hereby, which actions shall include furnishing all information in connection with approvals of or filings with any Governmental Entity, and will promptly cooperate with and furnish information to each other in connection with any such requirements imposed upon any of them or any of their Subsidiaries in connection with this Agreement and the transactions contemplated hereby. Each of MAII, the Company, Parent and Merger Sub will, and will cause its Subsidiaries to, use its reasonable best efforts to obtain any consent, authorization, order or approval of, or any exemption by, any Governmental Entity or other public or private third party required to be obtained or made by Parent, Merger Sub, MAII, the Company or any of their Subsidiaries or necessary in the reasonable opinion of Parent, Merger Sub, MAII or the Company in connection with the Merger or the taking of any action contemplated thereby or by this Agreement.
(b) MAII and Parent will (i) take all actions necessary to make the filings required of it or its affiliates under the HSR Act with respect to the transactions contemplated by this Agreement as promptly as practicable following the date of this Agreement, (ii) comply with any request for additional information received from the Federal Trade Commission or the Antitrust Division of the Department of Justice pursuant to the HSR Act, (iii) cooperate with each other in connection with filings under the HSR Act and (iv) request early termination of the applicable waiting period.
(c) Subject to the terms and conditions of this Agreementherein provided, each of Parent and GFI will the parties hereto agrees to 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 advisable, whether under applicable Law laws and regulations or otherwise, or to consummate the Transactionsremove any injunctions or other impediments or delays, includinglegal or otherwise, preparing and filing as promptly as practicable all documentation to effect all necessary filings, notices, petitions, statements, registrations, submissions of information, applications and other documents necessary and appropriate to consummate the Transactions. In furtherance and not in limitation of the foregoing, each of Parent and GFI shall (i) make or to cause the conditions to be made the filings required of such party under the Foreign Competition Laws (including those closing set forth in Section 3.4(b)(i) of the Parent Disclosure Letter) with respect Article V to the Transactions as promptly as practicable after the date of this Agreement; be satisfied, and (ii) take all actions otherwise to obtain consummate and make effective the Regulatory Approvals set forth in Section 3.4(b)(ii) of Merger and the Parent Disclosure Letter as promptly as practicable other transactions contemplated by this Agreement. In case at any time after the date of this Agreement; (iii) comply at Effective Time any further action is necessary to carry out the earliest practicable date with any request under any Governmental Entity (including under any Foreign Competition Laws) in respect of such filings or such Transaction; and (iv) act in good faith and reasonably cooperate with the other Party in connection with any such filings and in connection with resolving any investigation or other inquiry of any such agency or other Governmental Entity under any of the HSR Act, the Foreign Competition Laws, the Xxxxxxx Act, the Xxxxxxx Act and any other Laws or Orders that are designed to prohibit, restrict or regulate actions having the purpose or effect of monopolization or restraint of trade (collectively, the “Antitrust Laws”) with respect to any such filing or any such Transaction. To the extent not prohibited by applicable Law, the Parties shall use reasonable best efforts to furnish to each other all information required for any application or other filing to be made pursuant to any applicable Law in connection with the Transactions. Each Party shall give each other reasonable prior notice of any substantive communication with, and any proposed understanding, undertaking or agreement with, any Governmental Entity regarding any such filings or any such Transaction. No Party shall independently participate in any meeting, or engage in any substantive conversation, with any Governmental Entity in respect of any such filings, investigation or other inquiry without giving the other Parties prior notice of the meeting or conversation and, unless prohibited by such any Governmental Entity, the opportunity to attend or participate. The Parties contemplate that as a general matter both Parent and GFI shall be represented at in-person meetings with any Governmental Entity. The Parties will consult and cooperate with one another in connection with any analyses, appearances, presentations, memoranda, briefs, arguments, opinions and proposals made or submitted by or on behalf of any Party in connection with proceedings under or relating to the HSR Act, the Foreign Competition Laws or other Antitrust Laws.
(b) Without limiting the general obligations of Parent and GFI under Section 5.3(a) (Consents and Approvals), each of Parent and GFI shall use its reasonable best efforts to resolve such objections, if any, as may be asserted by any Governmental Entity with respect to the Transactions under the Antitrust Laws. In connection therewith and subject to Section 5.3(a) (Consents and Approvals), if any Proceeding is instituted (or threatened to be instituted) challenging any of the Transactions as inconsistent with or violative of any Antitrust Law, each of Parent and GFI shall cooperate and use its reasonable best efforts vigorously to contest and resist (by negotiation, litigation or otherwise) any such Proceeding and to have vacated, lifted, reversed or overturned any Order whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents, delays or restricts consummation of the Transactions, unless Parent reasonably and in good faith determines that litigation is not in its best interests. Notwithstanding the foregoing or any other provision of this Agreement, nothing in this Section 5.3(b) shall limit the right of a Party to terminate this Agreement pursuant to Section 7.1 (Termination), so long as such Party has until that time complied in all material respects with its obligations under this Section 5.3. Each of Parent and GFI shall use its reasonable best efforts to take such action as may be required to cause the expiration of the notice periods or to obtain the necessary approvals under the HSR Act, the Foreign Competition Laws or any other Antitrust Laws with respect to the Transactions as promptly as possible after the execution of this Agreement.
(c) Notwithstanding anything to the contrary in this Agreement, nothing in this Agreement shall be deemed to require Parent or any Parent Subsidiary to agree to or take any action that would result in any Burdensome Condition. None of GFI or any GFI Subsidiary shall agree to or take any action that would result in any Burdensome Condition without the prior written consent of Parent. For purposes of this Agreement, a “Burdensome Condition” shall mean making proposals, executing or carrying out agreements (including consent decrees) or submitting to Laws (i) providing for the transfer, license, sale or other disposition or holding separate (through the establishment proper officers and directors of a trust or otherwise) of any assets or categories of assets of Parent, GFI or any of their respective Subsidiaries or the holding separate (through the establishment of a trust or otherwise) of the Securities of any Parent Subsidiary or GFI Subsidiary or (ii) imposing or seeking to impose any limitation on the ability of Parent, GFI or any of their respective Subsidiaries to conduct their respective businesses (including with respect to market practices and structure) or own such assets or to acquire, hold or exercise full rights of ownership of the business of GFI, the GFI Subsidiaries, Parent or the Parent Subsidiaries, in each case other than (x) with respect to Antitrust Laws, any such proposals, executing or carrying out agreements (including consent decrees) or submitting to Laws that would not impair in any material respect the expected benefits of Parent MAII and the Parent Subsidiaries from or relating Surviving Corporation shall use all reasonable efforts to the Transactionstake, or (y) with respect cause to Regulatory Approvalsbe taken, any immaterial administrative or ministerial obligations of Parent or any Parent Subsidiaryall such necessary actions.
Appears in 1 contract
Samples: Merger Agreement (Maii Holdings Inc)
Consents and Approvals. (a) Subject The Company, Parent and Holdco shall each file or cause to be filed with the Federal Trade Commission and the United States Department of Justice any notifications required to be filed under the HSR Act and the rules and regulations promulgated thereunder with respect to the terms transactions contemplated hereby. The parties shall consult with each other as to the appropriate time of filing such notifications and conditions of this Agreement, each of Parent and GFI will shall use its their reasonable best efforts to takemake such filings at the agreed upon time, or cause to be takenrespond promptly to any requests for additional information made by either of such agencies, all actions and to do, or cause to be done, all things necessary, proper or advisable under applicable Law to consummate the Transactions, including, preparing and filing as promptly as practicable all documentation to effect all necessary filings, notices, petitions, statements, registrations, submissions of information, applications and other documents necessary and appropriate to consummate the Transactions. In furtherance and not in limitation of the foregoing, each of Parent and GFI shall (i) make or cause to be made the filings required of such party waiting periods under the Foreign Competition Laws (including those set forth in Section 3.4(b)(i) of HSR Act to terminate or expire at the Parent Disclosure Letter) with respect to the Transactions as promptly as practicable earliest possible date after the date of this Agreement; (ii) take all actions to obtain and make the Regulatory Approvals set forth in Section 3.4(b)(ii) of the Parent Disclosure Letter as promptly as practicable after the date of this Agreement; (iii) comply at the earliest practicable date with any request under any Governmental Entity (including under any Foreign Competition Laws) in respect of such filings or such Transaction; and (iv) act in good faith and reasonably cooperate with the other Party in connection with any such filings and in connection with resolving any investigation or other inquiry of any such agency or other Governmental Entity under any of the HSR Act, the Foreign Competition Laws, the Xxxxxxx Act, the Xxxxxxx Act and any other Laws or Orders that are designed to prohibit, restrict or regulate actions having the purpose or effect of monopolization or restraint of trade (collectively, the “Antitrust Laws”) with respect to any such filing or any such Transaction. To the extent not prohibited by applicable Law, the Parties shall use reasonable best efforts to furnish to each other all information required for any application or other filing to be made pursuant to any applicable Law in connection with the Transactions. Each Party shall give each other reasonable prior notice of any substantive communication with, and any proposed understanding, undertaking or agreement with, any Governmental Entity regarding any such filings or any such Transaction. No Party shall independently participate in any meeting, or engage in any substantive conversation, with any Governmental Entity in respect of any such filings, investigation or other inquiry without giving the other Parties prior notice of the meeting or conversation and, unless prohibited by such any Governmental Entity, the opportunity to attend or participate. The Parties contemplate that as a general matter both Parent and GFI shall be represented at in-person meetings with any Governmental Entity. The Parties will consult and cooperate with one another in connection with any analyses, appearances, presentations, memoranda, briefs, arguments, opinions and proposals made or submitted by or on behalf of any Party in connection with proceedings under or relating to the HSR Act, the Foreign Competition Laws or other Antitrust Lawsfiling.
(b) Without limiting the general obligations of The Company, Parent and GFI under Section 5.3(a) (Consents and Approvals), each of Parent and GFI shall use its reasonable best efforts to resolve such objections, if any, as may be asserted by any Governmental Entity with respect to the Transactions under the Antitrust Laws. In connection therewith and subject to Section 5.3(a) (Consents and Approvals), if any Proceeding is instituted (or threatened to be instituted) challenging any of the Transactions as inconsistent with or violative of any Antitrust Law, each of Parent and GFI Holdco shall cooperate with each other and use its reasonable best efforts vigorously to contest and resist (by negotiation, litigation or otherwise) any such Proceeding and to have vacated, lifted, reversed or overturned any Order whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents, delays or restricts consummation of the Transactions, unless Parent reasonably and in good faith determines that litigation is not in its best interests. Notwithstanding the foregoing or any other provision of this Agreement, nothing in this Section 5.3(b) shall limit the right of a Party to terminate this Agreement pursuant to Section 7.1 (Termination), so long as such Party has until that time complied in all material respects with its obligations under this Section 5.3. Each of Parent and GFI shall use its reasonable best efforts to take such action as may be required to cause the expiration of the notice periods or to obtain the necessary approvals under the HSR Act, the Foreign Competition Laws or any other Antitrust Laws with respect to the Transactions as promptly as possible after the execution of this Agreement.
(c) Notwithstanding anything to the contrary in this Agreement, nothing in this Agreement shall be deemed to require Parent or any Parent Subsidiary to agree to or take any action that would result in any Burdensome Condition. None of GFI or any GFI Subsidiary shall agree to or take any action that would result in any Burdensome Condition without the prior written consent of Parent. For purposes of this Agreement, a “Burdensome Condition” shall mean making proposals, executing or carrying out agreements (including consent decrees) or submitting to Laws (i) providing for promptly prepare and file all necessary documentation, (ii) effect all necessary applications, notices, petitions and filings and execute all agreements and documents, (iii) use all reasonable efforts to obtain all necessary permits, consents, approvals and authorizations of all governmental bodies and (iv) use all reasonable efforts to obtain all necessary permits, consents, approvals and authorizations of all other parties, in the transfercase of each of the foregoing clauses (i), (ii), (iii) and (iv), necessary or advisable to consummate the transactions contemplated by this Agreement or required by the terms of any note, bond, mortgage, indenture, deed of trust, license, sale franchise, permit, concession, contract, lease or other disposition or holding separate (through instrument to which the establishment of a trust or otherwise) of any assets or categories of assets of ParentCompany, GFI Holdco, Parent or any of their respective subsidiaries is a party or by which any of them is bound; PROVIDED, HOWEVER, that (x) no note, bond, mortgage, indenture, deed of trust, license, franchise, permit, concession, contract, lease or other instrument shall be amended or modified to increase materially the amount payable thereunder or to be otherwise materially more burdensome to the Company and the Company Subsidiaries considered as one enterprise in order to obtain any permit, consent, approval or authorization without first obtaining the holding separate written approval of Parent and (through y) without the establishment of a trust or otherwise) of the Securities of any Parent Subsidiary or GFI Subsidiary or (ii) imposing or seeking to impose any limitation on the ability prior consent of Parent, GFI no such actions or things shall be done to the extent they would, individually or in the aggregate, reasonably be expected to have a Holdco Material Adverse Effect (after giving effect to the Mergers). A "HOLDCO MATERIAL ADVERSE EFFECT") means any change, effect, fact, event, condition or development that would have or be reasonably likely to have a material adverse effect on the condition (financial or otherwise), business, operations or assets of their respective Subsidiaries Holdco and the direct and indirect subsidiaries of Holdco considered as a single enterprise following the Mergers. The Company shall have the right to conduct their respective businesses (including with respect to market practices review and structure) or own such assets or to acquire, hold or exercise full rights of ownership approve in advance all characterizations of the business information relating to the Company; Parent shall have the right to review and approve in advance all characterizations of GFI, the GFI Subsidiaries, information relating to Parent or Holdco; and each of the Company and Parent Subsidiariesshall have the right to review and approve in advance all characterizations of the information relating to the transactions contemplated by this Agreement, in each case which appear in any filing (including, without limitation, the Proxy Statement/Prospectus) made in connection with the transactions contemplated hereby. The Company, Parent and Holdco agree that they will consult with each other than (x) with respect to Antitrust Lawsthe obtaining of all such necessary permits, any such proposalsconsents, executing or carrying out agreements (including consent decrees) or submitting to Laws that would not impair in any material respect the expected benefits approvals and authorizations of Parent all third parties and the Parent Subsidiaries from or relating to the Transactions, or (y) with respect to Regulatory Approvals, any immaterial administrative or ministerial obligations of Parent or any Parent Subsidiarygovernmental bodies.
Appears in 1 contract
Samples: Merger Agreement (Hs Resources Inc)
Consents and Approvals. (a) Subject to The Seller and the terms and conditions of this Agreement, Buyer shall each of Parent and GFI will use its reasonable best efforts to take, ---------------------- file or cause to be taken, all actions filed with the Federal Trade Commission and to do, or cause the United States Department of Justice any notifications required to be done, all things necessary, proper or advisable under applicable Law to consummate the Transactions, including, preparing and filing as promptly as practicable all documentation to effect all necessary filings, notices, petitions, statements, registrations, submissions of information, applications and other documents necessary and appropriate to consummate the Transactions. In furtherance and not in limitation of the foregoing, each of Parent and GFI shall (i) make or cause to be made the filings required of such party filed under the Foreign Competition Laws (including those set forth in Section 3.4(b)(i) of HSR Act and the Parent Disclosure Letter) rules and regulations promulgated thereunder with respect to the Transactions transactions contemplated hereby. The parties shall consult with each other as to the appropriate time of filing such notifications and shall use their best efforts to make such filings at the agreed upon time, to respond promptly as practicable to any requests for additional information made by either of such agencies, and to cause the waiting periods under the HSR Act to terminate or expire at the earliest possible date after the date of this Agreement; (ii) take all actions to obtain and make the Regulatory Approvals set forth in Section 3.4(b)(ii) of the Parent Disclosure Letter as promptly as practicable after the date of this Agreement; (iii) comply at the earliest practicable date with any request under any Governmental Entity (including under any Foreign Competition Laws) in respect of such filings or such Transaction; and (iv) act in good faith and reasonably cooperate with the other Party in connection with any such filings and in connection with resolving any investigation or other inquiry of any such agency or other Governmental Entity under any of the HSR Act, the Foreign Competition Laws, the Xxxxxxx Act, the Xxxxxxx Act and any other Laws or Orders that are designed to prohibit, restrict or regulate actions having the purpose or effect of monopolization or restraint of trade (collectively, the “Antitrust Laws”) with respect to any such filing or any such Transaction. To the extent not prohibited by applicable Law, the Parties shall use reasonable best efforts to furnish to each other all information required for any application or other filing to be made pursuant to any applicable Law in connection with the Transactions. Each Party shall give each other reasonable prior notice of any substantive communication with, and any proposed understanding, undertaking or agreement with, any Governmental Entity regarding any such filings or any such Transaction. No Party shall independently participate in any meeting, or engage in any substantive conversation, with any Governmental Entity in respect of any such filings, investigation or other inquiry without giving the other Parties prior notice of the meeting or conversation and, unless prohibited by such any Governmental Entity, the opportunity to attend or participate. The Parties contemplate that as a general matter both Parent and GFI shall be represented at in-person meetings with any Governmental Entity. The Parties will consult and cooperate with one another in connection with any analyses, appearances, presentations, memoranda, briefs, arguments, opinions and proposals made or submitted by or on behalf of any Party in connection with proceedings under or relating to the HSR Act, the Foreign Competition Laws or other Antitrust Lawsfiling.
(b) Without limiting The Seller and the general obligations Buyer shall cooperate with each other and (i) promptly prepare and file all necessary documentation, (ii) effect all necessary applications, notices, petitions and filings and execute all agreements and documents, (iii) use all commercially reasonable efforts to obtain the transfer or reissuance to the Buyer of Parent all necessary Environmental Permits, Permits, consents, approvals and GFI under Section 5.3(aauthorizations of all governmental bodies and (iv) use all commercially reasonable efforts to obtain all necessary consents, approvals and authorizations of all other parties, in the case of each of the foregoing clauses (Consents and Approvalsi), (ii), (iii) and (iv), necessary or advisable to consummate the transactions contemplated by this Agreement (including, without limitation, the Seller Required Regulatory Approvals, the Buyer Required Regulatory Approvals and assignment of the Seller Agreements) or required by the terms of any note, bond, mortgage, indenture, deed of trust, license, franchise, permit, concession, contract, lease or other instrument to which the Seller or the Buyer is a party or by which either of them is bound. The Seller shall have the right to review and approve in advance all characterizations of the information relating to Purchased Assets; and each of Parent the Seller and GFI the Buyer shall use its reasonable best efforts have the right to resolve such objections, if any, as may be asserted review and approve in advance all characterizations of the information relating to the transactions contemplated by this Agreement which appear in any Governmental Entity filing made in connection with the transactions contemplated hereby. The parties hereto agree that they shall consult with each other with respect to the Transactions under transferring to the Antitrust LawsBuyer or the obtaining by the Buyer of all such necessary Environmental Permits, Permits, consents, approvals and authorizations of all third parties and governmental bodies. In connection therewith The Seller and subject the Buyer shall designate separate counsel with respect to Section 5.3(a) all applications, notices, petitions and filings (Consents and Approvals), if any Proceeding is instituted (or threatened to be instituted) challenging any of the Transactions as inconsistent with or violative of any Antitrust Law, each of Parent and GFI shall cooperate and use its reasonable best efforts vigorously to contest and resist (by negotiation, litigation joint or otherwise) any such Proceeding relating to this Agreement and to have vacated, lifted, reversed or overturned any Order whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents, delays or restricts consummation the transactions contemplated hereby on behalf of the TransactionsSeller, unless Parent reasonably on the one hand and in good faith determines the Buyer on the other hand, with all governmental bodies. To the extent that litigation is a consent to an assignment of any material Seller Agreement cannot in its best interests. Notwithstanding be obtained before the foregoing or any other provision of this Agreement, nothing in this Section 5.3(b) shall limit the right of a Party to terminate this Agreement pursuant to Section 7.1 (Termination), so long as such Party has until that time complied in all material respects with its obligations under this Section 5.3. Each of Parent and GFI shall use its reasonable best efforts to take such action as may be required to cause the expiration of the notice periods or to obtain the necessary approvals under the HSR ActClosing Date, the Foreign Competition Laws or any other Antitrust Laws Seller shall enter into all such agreements with respect the Buyer as are necessary to give the Transactions as promptly as possible after Buyer the execution rights, obligations and burdens of this Agreementsuch Seller Agreements.
(c) Notwithstanding anything The parties hereto shall consult with each other prior to the contrary in this Agreementproposing or entering into any stipulation or agreement with any federal, nothing in this Agreement shall be deemed to require Parent state or local Governmental Authority or agency or any Parent Subsidiary to agree to third party in connection with any federal, state or take local governmental consents and approvals legally required for the consummation of the transactions contemplated hereby and shall not propose or enter into any action that would result in any Burdensome Condition. None of GFI such stipulation or any GFI Subsidiary shall agree to or take any action that would result in any Burdensome Condition agreement without the other party's prior written consent, which consent of Parent. For purposes of this Agreement, a “Burdensome Condition” shall mean making proposals, executing or carrying out agreements (including consent decrees) or submitting to Laws (i) providing for the transfer, license, sale or other disposition or holding separate (through the establishment of a trust or otherwise) of any assets or categories of assets of Parent, GFI or any of their respective Subsidiaries or the holding separate (through the establishment of a trust or otherwise) of the Securities of any Parent Subsidiary or GFI Subsidiary or (ii) imposing or seeking to impose any limitation on the ability of Parent, GFI or any of their respective Subsidiaries to conduct their respective businesses (including with respect to market practices and structure) or own such assets or to acquire, hold or exercise full rights of ownership of the business of GFI, the GFI Subsidiaries, Parent or the Parent Subsidiaries, in each case other than (x) with respect to Antitrust Laws, any such proposals, executing or carrying out agreements (including consent decrees) or submitting to Laws that would not impair in any material respect the expected benefits of Parent and the Parent Subsidiaries from or relating to the Transactions, or (y) with respect to Regulatory Approvals, any immaterial administrative or ministerial obligations of Parent or any Parent Subsidiarybe unreasonably withheld.
Appears in 1 contract
Consents and Approvals. Ambir has all of the material licenses, permits, orders, approvals and authorizations that are necessary for Ambir to immediately commence the commercial exploitation of hydrocarbons pursuant to the Kazakhstan Licenses. The Work Plan attached hereto as Exhibit 2.18 (the "Work Plan") has been adopted and approved in its entirety by the Kazakhstan government and is in full force and effect. Any and all provisions of the Kazakhstan Licenses that are currently in apparent default or noncompliance by Ambir (or which conflict with the Work Plan in any manner) are either fully cured by such adoption of the Work Plan or have been waived or otherwise modified in writing by the Kazakhstan government. To the extent that there is any conflict between any of the provisions of any of the Kazakhstan Licenses and any of the provisions of the Work Plan, the provisions of the Work Plan prevail and any and all such conflicting provisions of the Kazakhstan Licenses are superseded and replaced by the provisions of the Work Plan. The provisions of the Work Plan replace, satisfy and/or supersede any and all of the provisions of the Kazakhstan Licenses which relate directly or indirectly to spending and work requirements pursuant thereto, and the expenditures set forth in the Work Plan are the only material expenditures that are required by the Kazakhstan Licenses or any other related document. No consent, approval or authorization of, or declaration, filing or registration with, any governmental or regulatory authority is required to be made or obtained by Ambir in connection with: (a) Subject to the terms execution and conditions of this Agreement, each of Parent and GFI 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 Law to consummate the Transactions, including, preparing and filing as promptly as practicable all documentation to effect all necessary filings, notices, petitions, statements, registrations, submissions of information, applications and other documents necessary and appropriate to consummate the Transactions. In furtherance and not in limitation of the foregoing, each of Parent and GFI shall (i) make or cause to be made the filings required of such party under the Foreign Competition Laws (including those set forth in Section 3.4(b)(i) of the Parent Disclosure Letter) with respect to the Transactions as promptly as practicable after the date delivery by Ambir of this Agreement; (ii) take all actions to obtain and make the Regulatory Approvals set forth in Section 3.4(b)(ii) of the Parent Disclosure Letter as promptly as practicable after the date of this Agreement; (iii) comply at the earliest practicable date with any request under any Governmental Entity (including under any Foreign Competition Laws) in respect of such filings or such Transaction; and (iv) act in good faith and reasonably cooperate with the other Party in connection with any such filings and in connection with resolving any investigation or other inquiry of any such agency or other Governmental Entity under any of the HSR Act, the Foreign Competition Laws, the Xxxxxxx Act, the Xxxxxxx Act and any other Laws or Orders that are designed to prohibit, restrict or regulate actions having the purpose or effect of monopolization or restraint of trade (collectively, the “Antitrust Laws”) with respect to any such filing or any such Transaction. To the extent not prohibited by applicable Law, the Parties shall use reasonable best efforts to furnish to each other all information required for any application or other filing to be made pursuant to any applicable Law in connection with the Transactions. Each Party shall give each other reasonable prior notice of any substantive communication with, and any proposed understanding, undertaking or agreement with, any Governmental Entity regarding any such filings or any such Transaction. No Party shall independently participate in any meeting, or engage in any substantive conversation, with any Governmental Entity in respect of any such filings, investigation or other inquiry without giving the other Parties prior notice of the meeting or conversation and, unless prohibited by such any Governmental Entity, the opportunity to attend or participate. The Parties contemplate that as a general matter both Parent and GFI shall be represented at in-person meetings with any Governmental Entity. The Parties will consult and cooperate with one another in connection with any analyses, appearances, presentations, memoranda, briefs, arguments, opinions and proposals made or submitted by or on behalf of any Party in connection with proceedings under or relating to the HSR Act, the Foreign Competition Laws or other Antitrust Laws.
(b) Without limiting the general obligations performance by Ambir of Parent and GFI under Section 5.3(a) (Consents and Approvals), each of Parent and GFI shall use its reasonable best efforts to resolve such objections, if any, as may be asserted by any Governmental Entity with respect to the Transactions under the Antitrust Laws. In connection therewith and subject to Section 5.3(a) (Consents and Approvals), if any Proceeding is instituted (or threatened to be instituted) challenging any of the Transactions as inconsistent with or violative of any Antitrust Law, each of Parent and GFI shall cooperate and use its reasonable best efforts vigorously to contest and resist (by negotiation, litigation or otherwise) any such Proceeding and to have vacated, lifted, reversed or overturned any Order whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents, delays or restricts consummation of the Transactions, unless Parent reasonably and in good faith determines that litigation is not in its best interests. Notwithstanding the foregoing or any other provision of this Agreement, nothing in this Section 5.3(b) shall limit the right of a Party to terminate this Agreement pursuant to Section 7.1 (Termination), so long as such Party has until that time complied in all material respects with its obligations under this Section 5.3Agreement; or (c) the consummation by Ambir of the transactions contemplated under this Agreement. Each Neither Ambir nor any of Parent and GFI shall use its reasonable best efforts to take such action as may the Shareholders is aware of any additional license, permit, order, approval or authorization that will be required to cause be obtained by either Delta or Ambir in order for Ambir to immediately commence the expiration commercial exploitation of hydrocarbons pursuant to the Kazakhstan Licenses after the consummation of the notice periods or to obtain the necessary approvals under the HSR Act, the Foreign Competition Laws or any other Antitrust Laws with respect to the Transactions as promptly as possible after the execution of transaction contemplated by this Agreement.
(c) Notwithstanding anything to the contrary in this Agreement, nothing in this Agreement shall be deemed to require Parent or any Parent Subsidiary to agree to or take any action that would result in any Burdensome Condition. None of GFI or any GFI Subsidiary shall agree to or take any action that would result in any Burdensome Condition without the prior written consent of Parent. For purposes of this Agreement, a “Burdensome Condition” shall mean making proposals, executing or carrying out agreements (including consent decrees) or submitting to Laws (i) providing for the transfer, license, sale or other disposition or holding separate (through the establishment of a trust or otherwise) of any assets or categories of assets of Parent, GFI or any of their respective Subsidiaries or the holding separate (through the establishment of a trust or otherwise) of the Securities of any Parent Subsidiary or GFI Subsidiary or (ii) imposing or seeking to impose any limitation on the ability of Parent, GFI or any of their respective Subsidiaries to conduct their respective businesses (including with respect to market practices and structure) or own such assets or to acquire, hold or exercise full rights of ownership of the business of GFI, the GFI Subsidiaries, Parent or the Parent Subsidiaries, in each case other than (x) with respect to Antitrust Laws, any such proposals, executing or carrying out agreements (including consent decrees) or submitting to Laws that would not impair in any material respect the expected benefits of Parent and the Parent Subsidiaries from or relating to the Transactions, or (y) with respect to Regulatory Approvals, any immaterial administrative or ministerial obligations of Parent or any Parent Subsidiary.
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Consents and Approvals. (a) Subject to Each Party shall, and shall cause its respective Subsidiaries and Affiliates to, (i) prepare (and cooperate in the terms and conditions preparation of), as soon as is practical following the date of this Agreement, each all necessary filings in connection with the Transaction that may be required to obtain any necessary Consent prior to the Closing Date, and (ii) submit such necessary filings as soon as practicable, and in no event later than November 15, 2019. Notwithstanding the foregoing, Buyer shall, and shall cause its Subsidiaries and Affiliates to, (i) prepare, as soon as is practicable following the date of Parent this Agreement, such filings set forth in Section 6.4(a) of the Buyer Disclosure Schedule, and GFI will use (ii) submit such filings as soon as practicable, and in any event no later than November 15, 2019. Buyer shall submit for Seller’s reasonable review and approval any proposed filing to be made with a Governmental Authority in Peru and Bermuda in no event later than November 5, 2019. Each Party shall, and shall cause its reasonable best efforts respective Subsidiaries and Affiliates to, submit the subsequent or supplemental filings, information and/or documents required by the Peruvian Anti-Trust Authority or the Bermuda Monetary Authority as soon as reasonably practicable and no later than the date required by the applicable Governmental Authority, and cooperate with one another in the preparation of such filings and any subsequent procedure in such manner as is reasonably necessary and appropriate. Buyer shall be responsible for the payment of all filing and other fees in connection with all filings required under this Section 6.4.
(b) Subject to takeapplicable confidentiality restrictions or restrictions required by Law, Buyer and Seller shall notify the other promptly upon the receipt by such Party or its Subsidiaries or Affiliates of (i) any comments or questions from any officials of any Governmental Authority in connection with any filings made pursuant to this Section 6.4 or the Transaction and (ii) any request by any officials of any Governmental Authority for amendments or supplements to any filings made pursuant to any Laws of any Governmental Authority or answers to any questions, or cause the production of any documents, relating to an investigation of the Transaction by any Governmental Authority. Whenever any event occurs that is required to be takenset forth in an amendment or supplement to any filing made pursuant to this Section 6.4, all actions each Party shall promptly inform the other Party of such occurrence and to do, cooperate in filing promptly with the applicable Governmental Authority such amendment or cause to be done, all things necessary, proper or advisable under applicable Law to consummate supplement. Without limiting the Transactions, including, preparing and filing as promptly as practicable all documentation to effect all necessary filings, notices, petitions, statements, registrations, submissions of information, applications and other documents necessary and appropriate to consummate the Transactions. In furtherance and not in limitation generality of the foregoing, each of Parent and GFI Party shall (i) make or cause provide to be made the filings required of such party under the Foreign Competition Laws (including those set forth in Section 3.4(b)(i) of the Parent Disclosure Letter) with respect to the Transactions as promptly as practicable after the date of this Agreement; (ii) take all actions to obtain and make the Regulatory Approvals set forth in Section 3.4(b)(ii) of the Parent Disclosure Letter as promptly as practicable after the date of this Agreement; (iii) comply at the earliest practicable date with any request under any Governmental Entity (including under any Foreign Competition Laws) in respect of such filings or such Transaction; and (iv) act in good faith and reasonably cooperate with the other Party in connection with (or its advisors), upon request, copies of all correspondence between such Party and any such filings Governmental Authority relating to the Transaction. The Parties may, as they deem advisable and in connection with resolving necessary, designate any investigation or other inquiry of any such agency or other Governmental Entity competitively sensitive materials provided to the others under any this Section 6.4 as “outside counsel only.” Such materials and the information contained therein shall be given only to outside counsel of the HSR Act, the Foreign Competition Laws, the Xxxxxxx Act, the Xxxxxxx Act recipient and shall not be disclosed by such outside counsel to any other Laws or Orders that are designed Representatives of the recipient without the advance written consent of the Party providing such materials. In addition, to prohibit, restrict or regulate actions having the purpose or effect of monopolization or restraint of trade (collectively, the “Antitrust Laws”) with respect to any such filing or any such Transaction. To the extent not prohibited by reasonably practicable, all discussions, telephone calls, and meetings with a Governmental Authority regarding the Transaction shall include representatives of both Buyer and Seller. Subject to applicable LawLaws, the Parties shall use reasonable best efforts to furnish to each other all information required for any application or other filing to be made pursuant to any applicable Law in connection with the Transactions. Each Party shall give each other reasonable prior notice of any substantive communication with, and any proposed understanding, undertaking or agreement with, any Governmental Entity regarding any such filings or any such Transaction. No Party shall independently participate in any meeting, or engage in any substantive conversation, with any Governmental Entity in respect of any such filings, investigation or other inquiry without giving the other Parties prior notice of the meeting or conversation and, unless prohibited by such any Governmental Entity, the opportunity to attend or participate. The Parties contemplate that as a general matter both Parent and GFI shall be represented at in-person meetings with any Governmental Entity. The Parties will consult and cooperate with one another each other in connection with any analyses, appearances, presentations, memoranda, briefs, arguments, opinions and proposals made or submitted to any Governmental Authority regarding the Transaction by or on behalf of any Party. No Party in connection with proceedings under shall, at any time during or relating prior to the HSR Actperformance of its obligations hereunder, the Foreign Competition Laws or other Antitrust secure any Consent from any Governmental Authority in violation of Anti-Bribery Laws.
(bc) Without limiting In order to consummate the general obligations of Parent Transaction, Buyer shall, and GFI under Section 5.3(a) (Consents and Approvals), shall cause each of Parent its Subsidiaries and GFI shall use Affiliates to, make its reasonable best efforts to resolve such objectionsto, if anyat Buyer’s sole cost and expense, (i) obtain, as may be asserted by soon as practicable, but in any event prior to the Termination Date, all Consents of, or other permission or action by, and to give all notices to and make all filings with and applications and submissions to, any Governmental Entity with respect to the Transactions under the Antitrust Laws. In connection therewith and subject to Section 5.3(a) (Consents and Approvals), if any Proceeding is instituted (Authority or threatened to be instituted) challenging any other Person as are necessary for consummation of the Transactions as inconsistent with Transaction, (ii) secure the expiration or violative termination of any Antitrust Lawapplicable waiting period from a Governmental Authority, each (iii) defend all Actions challenging this Agreement or the other Transaction Documents or the consummation of Parent and GFI shall cooperate and use its reasonable best efforts vigorously to contest and resist the Transaction, (by negotiation, litigation or otherwiseiv) prevent the entry of any such Proceeding court order and to have vacated, lifted, reversed or overturned any Order whether temporarydecree, judgment, permanent or preliminary injunction, restraining order or permanent, that is in effect and that prohibits, prevents, delays or restricts consummation other order of the Transactions, unless Parent reasonably and type referred to in good faith determines that litigation is not in its best interests. Notwithstanding the foregoing or any other provision of this Agreement, nothing in this Section 5.3(b) shall limit the right of a Party to terminate this Agreement pursuant to Section 7.1 (Termination7.1(a), so long as such Party has until that time complied in all material respects with its obligations under this Section 5.3. Each of Parent and GFI shall use its reasonable best efforts to take such action as may be required to cause the expiration of the notice periods or to obtain the necessary approvals under the HSR Act, the Foreign Competition Laws or (v) resolve any other Antitrust Laws objections asserted with respect to the Transactions Transaction raised by any Governmental Authority or other Person, including (A) executing any and all settlements, undertakings, consent decrees, stipulations, or other agreements, and assuming any and all obligations or conditions relating its or its Affiliates’ businesses or operations, with any Governmental Authority or other Person, (B) restricting, modifying, conditioning, limiting, selling, divesting, or otherwise conveying, or agreeing to do so, particular assets or categories of assets or businesses of Buyer its Subsidiaries or Affiliates prior to, concurrently with or subsequent to the Closing or the Company Entities concurrently with or subsequent to the Closing, and (C) permitting Seller to sell, divest, or otherwise convey any particular assets or categories of assets or businesses of the Company Entities prior to the Closing. Buyer shall, and shall cause its Subsidiaries and Affiliates to, respond to and seek to resolve as promptly as possible after reasonably practicable any objections asserted by any Governmental Authority or other Person with respect to the execution Transaction. Buyer shall not, and shall cause its Affiliates not to, enter into any agreement, complete any transactions or take any other action that would reasonably be expected to adversely affect, materially delay or impair or prohibit the consummation of this Agreement.
(c) the Transaction, including causing the failure of the closing conditions set forth in Article VII to be satisfied. Notwithstanding anything to the contrary in this Agreement, nothing in this Agreement shall require, or be deemed construed to require Parent require, Seller or any Parent Subsidiary of its Affiliates or Subsidiaries, in order to agree obtain the consent or successful termination or expiration of any review of any Governmental Authority regarding the Transaction contemplated hereby, to or take any action that would result in any Burdensome Condition. None of GFI or any GFI Subsidiary shall agree to or take any action that would result in any Burdensome Condition without the prior written consent of Parent. For purposes of this Agreement, a “Burdensome Condition” shall mean making proposals, executing or carrying out agreements (including consent decrees) or submitting to Laws (i) providing for restrict, modify, condition, limit, sell, hold separate, divest or otherwise convey, or agree to any of the transferforegoing, licenseat any time, sale any assets, businesses or other disposition any interests in any assets or holding separate businesses, of Seller or any of its Affiliates or Subsidiaries, (through ii) change or restrict the establishment operation by Seller or any of a trust its Affiliates or otherwise) Subsidiaries of any assets or categories of assets of Parentbusinesses, GFI or any of their respective Subsidiaries or the holding separate (through the establishment of a trust or otherwise) of the Securities of any Parent Subsidiary or GFI Subsidiary or (iiiii) imposing initiate or seeking to impose participate in any limitation on the ability of Parent, GFI legal or any of their respective Subsidiaries to conduct their respective businesses (including administrative proceeding with respect to market practices and structure) or own such assets or to acquire, hold or exercise full rights of ownership of the business of GFI, the GFI Subsidiaries, Parent or the Parent Subsidiaries, in each case other than (x) with respect to Antitrust Laws, any such proposalsassets, executing businesses or carrying out agreements (including consent decrees) or submitting to Laws that would not impair in any material respect the expected benefits of Parent and the Parent Subsidiaries from or relating to the Transactions, or (y) with respect to Regulatory Approvals, any immaterial administrative or ministerial obligations of Parent or any Parent Subsidiarymatters.
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Consents and Approvals. (a) Subject Each Party shall, and shall cause its respective Subsidiaries and Affiliates, and Seller shall, subject to Section 1.2(m), cause each JV Company, to (i) prepare, as soon as is practical following the terms and conditions date of this Agreement, each of Parent all necessary filings in connection with the Transaction that may be required to obtain any necessary Consent prior to the Closing Date, and GFI will use its reasonable best efforts to take(ii) submit such necessary filings as soon as practicable, or cause and in no event later than November 29, 2019. The Parties shall prepare any proposed filing to be taken, all actions made with a Governmental Authority in Chile and to do, or cause to be done, all things necessary, proper or advisable under applicable Law to consummate the Transactions, including, preparing and filing Bermuda as promptly as practicable all documentation to effect all necessary filings, notices, petitions, statements, registrations, submissions of information, applications and other documents necessary and appropriate to consummate the Transactions. In furtherance and not in limitation of the foregoing, each of Parent and GFI shall (i) make or cause to be made the filings required of such party under the Foreign Competition Laws (including those set forth in Section 3.4(b)(i) of the Parent Disclosure Letter) with respect to the Transactions as promptly as practicable possible after the date of this Agreement; (ii) take all actions to obtain and make the Regulatory Approvals set forth in Section 3.4(b)(ii) of the Parent Disclosure Letter as promptly as practicable after the date of this Agreement; (iii) comply at the earliest practicable date with any request under any Governmental Entity (including under any Foreign Competition Laws) in respect of such filings or such Transaction; and (iv) act in good faith and reasonably cooperate with the other Party in connection with any such filings , and in connection with resolving any investigation or other inquiry of any such agency or other Governmental Entity under any of the HSR Actno event later than November 29, the Foreign Competition Laws, the Xxxxxxx Act, the Xxxxxxx Act and any other Laws or Orders that are designed to prohibit, restrict or regulate actions having the purpose or effect of monopolization or restraint of trade (collectively, the “Antitrust Laws”) with respect to any 2019. After such filing or any such Transaction. To the extent not prohibited by applicable Lawis prepared, the Parties shall use reasonable best efforts to furnish to each other all information required for any application or other filing to be made pursuant to any applicable Law then notify the Chilean Anti-Trust Authority and the Bermuda Monetary Authority of the Transaction as promptly as possible, and in connection with the Transactionsno event later than November 29, 2019. Each Party shall give each other reasonable prior notice of any substantive communication withshall, and any proposed understandingshall cause its respective Subsidiaries and Affiliates to, undertaking submit the subsequent or agreement with, any Governmental Entity regarding any such filings or any such Transaction. No Party shall independently participate in any meeting, or engage in any substantive conversation, with any Governmental Entity in respect of any such supplemental filings, investigation information and/or documents required by the Chilean Anti-Trust Authority or other inquiry without giving the Bermuda Monetary Authority as soon as practicable and no later than two (2) Business Days after getting the other Parties prior notice Party’s approval of the meeting or conversation andrelevant action, unless prohibited by such any Governmental Entity, the opportunity to attend or participate. The Parties contemplate that as a general matter both Parent and GFI shall be represented at in-person meetings with any Governmental Entity. The Parties will consult and cooperate with one another in the preparation of such filings and any subsequent procedure in such manner as is reasonably necessary and appropriate. Buyer shall be responsible for the payment of (i) all filing and other fees in connection with all filings required under this Section 6.4, and (ii) the Seller’s and Company Entities’ expenses, including reasonable legal fees and expenses, in complying with any request for information or documentary material from any Governmental Authority in connection with any filings made pursuant to this Section 6.4(a).
(b) Subject to applicable confidentiality restrictions or restrictions required by Law, Buyer and Seller shall notify the other promptly upon the receipt by such Party or its Subsidiaries or Affiliates of (i) any comments or questions from any officials of any Governmental Authority in connection with any filings made pursuant to this Section 6.4 or the Transaction and (ii) any request by any officials of any Governmental Authority for amendments or supplements to any filings made pursuant to any Laws of any Governmental Authority or answers to any questions, or the production of any documents, relating to an investigation of the Transaction by any Governmental Authority. Whenever any event occurs that is required to be set forth in an amendment or supplement to any filing made pursuant to this Section 6.4, each Party shall promptly inform the other Party of such occurrence and cooperate in filing promptly with the applicable Governmental Authority such amendment or supplement. Without limiting the generality of the foregoing, each Party shall provide to the other Party (or its advisors), upon request, copies of all correspondence between such Party and any Governmental Authority relating to the Transaction. The Parties may, as they deem advisable and necessary, designate any competitively sensitive materials provided to the others under this Section 6.4 as “outside counsel only.” Such materials and the information contained therein shall be given only to outside counsel of the recipient and shall not be disclosed by such outside counsel to any other Representatives of the recipient without the advance written consent of the Party providing such materials. In addition, to the extent reasonably practicable, all discussions, telephone calls, and meetings with a Governmental Authority regarding the Transaction shall include representatives of both Buyer and Seller. Subject to applicable Laws, the Parties shall consult and cooperate with each other in connection with any analyses, appearances, presentations, memoranda, briefs, arguments, opinions and proposals made or submitted to any Governmental Authority regarding the Transaction by or on behalf of any Party. No Party in connection with proceedings under shall, at any time during or relating prior to the HSR Actperformance of its obligations hereunder, the Foreign Competition Laws or other Antitrust secure any Consent from any Governmental Authority in violation of Anti-Bribery Laws.
(bc) Without limiting In order to consummate the general obligations of Parent Transaction, Buyer shall, and GFI under Section 5.3(a) (Consents and Approvals), shall cause each of Parent its Subsidiaries and GFI shall Affiliates to, use its all reasonable best efforts to resolve such objections, if any(i) obtain, as may be asserted by soon as practicable, but in any event prior to the Termination Date, all Consents of, or other permission or action by, and to give all notices to, and make all filings with and applications and submissions to, any Governmental Entity with respect to the Transactions under the Antitrust Laws. In connection therewith and subject to Section 5.3(a) (Consents and Approvals), if any Proceeding is instituted (Authority or threatened to be instituted) challenging any other Person as are necessary for consummation of the Transactions as inconsistent with Transaction, (ii) secure the expiration or violative termination of any Antitrust Lawapplicable waiting period from a Governmental Authority, each (iii) defend all Actions challenging this Agreement or the other Transaction Documents or the consummation of Parent the Transaction, (iv) prevent the entry of any court order and GFI shall cooperate and use its reasonable best efforts vigorously to contest and resist (by negotiation, litigation or otherwise) any such Proceeding and to have vacated, lifted, reversed or overturned any Order whether temporarydecree, judgment, permanent or preliminary injunction, restraining order or permanent, that is in effect and that prohibits, prevents, delays or restricts consummation other order of the Transactions, unless Parent reasonably and type referred to in good faith determines that litigation is not in its best interests. Notwithstanding the foregoing or any other provision of this Agreement, nothing in this Section 5.3(b) shall limit the right of a Party to terminate this Agreement pursuant to Section 7.1 (Termination7.1(a), so long as such Party has until that time complied in all material respects with its obligations under this Section 5.3. Each of Parent and GFI shall use its reasonable best efforts to take such action as may be required to cause the expiration of the notice periods or to obtain the necessary approvals under the HSR Act, the Foreign Competition Laws or (v) resolve any other Antitrust Laws objections asserted with respect to the Transactions Transaction raised by any Governmental Authority or other Person, including (A) executing any and all settlements, undertakings, consent decrees, stipulations, or other agreements, and assuming any and all obligations or conditions relating its or its Affiliates’ businesses or operations, with any Governmental Authority or other Person, and (B) restricting, modifying, conditioning, limiting, selling, divesting, or otherwise conveying, or agreeing to do so, particular assets or categories of assets or businesses of Buyer its Subsidiaries or Affiliates prior to, concurrently with or subsequent to the Closing or the Company Entities concurrently with or subsequent to the Closing. Buyer shall, and shall cause its Subsidiaries and Affiliates to, respond to and seek to resolve as promptly as possible after reasonably practicable any objections asserted by any Governmental Authority or other Person with respect to the execution Transaction. Buyer shall not, and shall cause its Affiliates not to, enter into any agreement, complete any transactions or take any other action that would reasonably be expected to adversely affect, materially delay or impair or prohibit the consummation of this Agreement.
(c) the Transaction, including causing the failure of the closing conditions set forth in Article VII to be satisfied. Notwithstanding anything to the contrary in this Agreement, nothing in this Agreement shall require, or be deemed construed to require Parent require, Seller or any Parent Subsidiary of its Affiliates or Subsidiaries, in order to agree obtain the consent or successful termination or expiration of any review of any Governmental Authority regarding the Transaction contemplated hereby, to or take any action that would result in any Burdensome Condition. None of GFI or any GFI Subsidiary shall agree to or take any action that would result in any Burdensome Condition without the prior written consent of Parent. For purposes of this Agreement, a “Burdensome Condition” shall mean making proposals, executing or carrying out agreements (including consent decrees) or submitting to Laws (i) providing for restrict, modify, condition, limit, sell, hold separate, divest or otherwise convey, or agree to any of the transferforegoing, licenseat any time, sale any assets, businesses or other disposition any interests in any assets or holding separate businesses, of Seller or any of its Affiliates or Subsidiaries, (through ii) change or restrict the establishment operation by Seller or any of a trust its Affiliates or otherwise) Subsidiaries of any assets or categories of assets of Parentbusinesses, GFI or any of their respective Subsidiaries or the holding separate (through the establishment of a trust or otherwise) of the Securities of any Parent Subsidiary or GFI Subsidiary or (iiiii) imposing initiate or seeking to impose participate in any limitation on the ability of Parent, GFI legal or any of their respective Subsidiaries to conduct their respective businesses (including administrative proceeding with respect to market practices and structure) or own such assets or to acquire, hold or exercise full rights of ownership of the business of GFI, the GFI Subsidiaries, Parent or the Parent Subsidiaries, in each case other than (x) with respect to Antitrust Laws, any such proposalsassets, executing businesses or carrying out agreements (including consent decrees) or submitting to Laws that would not impair in any material respect the expected benefits of Parent and the Parent Subsidiaries from or relating to the Transactions, or (y) with respect to Regulatory Approvals, any immaterial administrative or ministerial obligations of Parent or any Parent Subsidiarymatters.
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Consents and Approvals. (a) Subject to Upon the terms and subject to the conditions of set forth in this Agreement, each of Parent and GFI will the Parties shall use its commercially reasonable best efforts (unless, with respect to any action, another standard is set forth herein) to take, or cause to be taken, all actions actions, and to do, or cause to be done, and to assist and cooperate with the other Parties in doing, all things necessary, proper or advisable under applicable Law or pursuant to any contract or agreement to consummate and make effective, as promptly as practicable, the Transactions, including using commercially reasonable efforts (i) to cause the conditions to Closing set forth in Article VII to be satisfied, (ii) to obtain all necessary actions or nonactions, waiting period expirations or terminations, waivers, consents, authorizations and approvals from Governmental Entities or other Persons necessary in connection with the consummation of the Transactions, including, preparing with respect to the Giants Parties, the consents listed on Section 3.5(a) of the Giants Disclosure Letter and filing as promptly as practicable all documentation with respect to effect the Jaguar Parties, the consents listed on Section 4.3 of the Jaguar Disclosure Letter, and the making of all necessary filingsregistrations and filings (including filings with Governmental Entities, noticesif any) to obtain an approval, petitionswaiting period expirations or terminations or waiver from, statementsor to avoid an action or proceeding by, registrationsany Governmental Entity or other Persons necessary in connection with the consummation of the Transactions, submissions of information(iii) to defend any lawsuits or other legal proceedings, applications whether judicial or administrative, challenging this Agreement or the Transactions, including seeking to have any stay or temporary restraining order entered by any court or other Governmental Entity vacated or reversed, and other documents avoid each and every impediment under any antitrust, merger control, competition or trade regulation Law that may be asserted by any Governmental Entity with respect to the Transactions so as to enable the Closing to occur as soon as reasonably possible, and (iv) to execute and deliver any additional instruments necessary and appropriate to consummate the TransactionsTransactions and to fully carry out the purposes of this Agreement. The Jaguar Parties shall use their commercially reasonable efforts, to satisfy the condition set forth in Section 7.2(i), and, to the extent not otherwise satisfied, shall take all actions within their respective control to make capital calls from their respective limited partners or members who have unfunded capital commitments to cause such condition to be satisfied.
(b) In furtherance connection with and not in limitation of without limiting the foregoing, each of Parent the Giants Parties and GFI the Jaguar Parties shall give (i) make or shall cause to be made given) any notices to any Person, and the filings required Giants Parties and the Jaguar Parties shall use, and cause each of such party under their respective Affiliates to use, commercially reasonable efforts to obtain any consents, terminations, waivers, authorizations and approvals not covered by Section 5.2(a) that are proper or advisable to consummate the Foreign Competition Laws Transactions.
(including those set forth in Section 3.4(b)(ic) Any material notices pursuant to Sections 5.2(a) and (b) shall be subject to the review and consent of the Parent Disclosure Letter) with respect other Party, such consent not to the Transactions as promptly as practicable after the date of this Agreement; (ii) take all actions to obtain and make the Regulatory Approvals set forth in Section 3.4(b)(ii) of the Parent Disclosure Letter as promptly as practicable after the date of this Agreement; (iii) comply at the earliest practicable date with any request under any Governmental Entity (including under any Foreign Competition Laws) in respect of such filings be unreasonably withheld, delayed or such Transaction; and (iv) act in good faith and reasonably cooperate with the other Party in connection with any such filings and in connection with resolving any investigation or other inquiry of any such agency or other Governmental Entity under any of the HSR Act, the Foreign Competition Laws, the Xxxxxxx Act, the Xxxxxxx Act and any other Laws or Orders that are designed to prohibit, restrict or regulate actions having the purpose or effect of monopolization or restraint of trade (collectively, the “Antitrust Laws”) conditioned. Any material notice with respect to any waiver, consent, authorization or approval shall be subject to the review and consent of the other Party, such filing consent not to be unreasonably withheld, delayed or conditioned.
(d) Each of the Parties will furnish to the other such necessary information and reasonable assistance as the other may request in connection with the preparation of any required governmental filings or submissions and will cooperate in responding to any inquiry from a Governmental Entity, including promptly informing the other Party of such Transactioninquiry, consulting in advance before making any presentations or submissions to a Governmental Entity, and supplying each other with copies of all material correspondence, filings, productions or communications between either Party and any Governmental Entity with respect to this Agreement. To the extent not prohibited by applicable Lawreasonably practicable, the Parties or their Representatives shall use reasonable best efforts have the right to furnish review in advance and each of the Parties will consult the others on, all the information relating to the other and each other all information required for of their Affiliates that appears in any application filing made with, or other filing to be made pursuant to written materials submitted to, any applicable Law Governmental Entity in connection with the Transactions, except that confidential competitively sensitive business information may be redacted from such exchanges. Each The Parties may, as they deem advisable and necessary, designate any competitively sensitive materials provided to the other under this Section 5.2 as “outside counsel only”. Such materials and the information contained therein shall be given only to outside counsel of the recipient and will not be disclosed by such outside counsel to employees, officers, or directors of the recipient without the advance written consent of the Party providing such materials. To the extent reasonably practicable, neither the Giants Parties nor the Jaguar Parties shall, nor shall give each other reasonable prior notice of any substantive communication withthey permit their respective Representatives to, and any proposed understanding, undertaking or agreement with, any Governmental Entity regarding any such filings or any such Transaction. No Party shall participate independently participate in any meeting, meeting or engage in any substantive conversation, conversation with any Governmental Entity in respect of any such filingsfiling, investigation or other inquiry relating to the Transactions without giving the other Parties Party prior notice of the such meeting or conversation and, unless prohibited to the extent permitted by such any applicable Law and the Governmental Entity, without giving the other Party the opportunity to attend or participate. The Parties contemplate that as a general matter both Parent and GFI shall be represented at in-person meetings participate (whether by telephone or in person) in any such meeting with any such Governmental Entity. The Subject to applicable law, the Parties will consult and cooperate with one another each other in connection with any analyses, appearances, presentations, memoranda, briefs, arguments, opinions and proposals made or submitted by or on behalf of to any Party in connection with proceedings under or relating to Governmental Entity regarding the HSR Act, the Foreign Competition Laws or other Antitrust LawsTransactions.
(b) Without limiting the general obligations of Parent and GFI under Section 5.3(a) (Consents and Approvals), each of Parent and GFI shall use its reasonable best efforts to resolve such objections, if any, as may be asserted by any Governmental Entity with respect to the Transactions under the Antitrust Laws. In connection therewith and subject to Section 5.3(a) (Consents and Approvals), if any Proceeding is instituted (or threatened to be instituted) challenging any of the Transactions as inconsistent with or violative of any Antitrust Law, each of Parent and GFI shall cooperate and use its reasonable best efforts vigorously to contest and resist (by negotiation, litigation or otherwise) any such Proceeding and to have vacated, lifted, reversed or overturned any Order whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents, delays or restricts consummation of the Transactions, unless Parent reasonably and in good faith determines that litigation is not in its best interests. Notwithstanding the foregoing or any other provision of this Agreement, nothing in this Section 5.3(b) shall limit the right of a Party to terminate this Agreement pursuant to Section 7.1 (Termination), so long as such Party has until that time complied in all material respects with its obligations under this Section 5.3. Each of Parent and GFI shall use its reasonable best efforts to take such action as may be required to cause the expiration of the notice periods or to obtain the necessary approvals under the HSR Act, the Foreign Competition Laws or any other Antitrust Laws with respect to the Transactions as promptly as possible after the execution of this Agreement.
(ce) Notwithstanding anything to the contrary in this Agreement, nothing in this Agreement shall be deemed connection with obtaining any approval or consent from any Person with respect to require Parent the Transactions, none of the Giants Parties, or any Parent Subsidiary of their Representatives, shall without the consent of the Jaguar Parties, which consent shall not be unreasonably withheld, delayed or conditioned, (i) pay or commit to pay to such Person whose approval or consent is being solicited any cash or other consideration, make any accommodation or commitment or incur any Liability or other obligation to such Person prior to the Closing, except that the Giants Parties may incur (A) legal, servicers and other similar fees required to be paid under the applicable agreement in connection with obtaining such approval or consent, (B) assumption fees required to be paid under the applicable agreement, which will be payable at Closing, and (C) filing fees due to Governmental Entities in connection with required filings or notifications regarding the Transactions or (ii) agree or otherwise be required to sell, divest, dispose of, license, hold separate, or take or commit to take any action that would result limits in any Burdensome Conditionrespect its freedom of action with respect to, or its ability to retain, any businesses, products, rights, services, licenses or assets. None of GFI Subject to the immediately preceding sentence, the Parties shall cooperate with respect to accommodations that may be requested or appropriate to obtain such consents. Notwithstanding anything to the contrary herein, the Giants Parties shall not agree to any material economic concessions or any GFI Subsidiary material changes to any contract listed on Section 3.5(a) of the Giants Disclosure Letter in connection with obtaining its consent, except as set forth on Section 5.2 of the Giants Disclosure Letter without the written consent of the Jaguar Parties, which consent shall not be unreasonably withheld, delayed or conditioned.
(f) Notwithstanding anything to the contrary in this Agreement except for actions permitted under Section 5.5(b)(xii) and 5.5(b)(xiii), in connection with obtaining any approval or consent from any Person with respect to the Transactions, none of the Jaguar Parties, or any of their Representatives, shall without the consent of the Giants Parties, which consent shall not be unreasonably withheld, delayed or conditioned, (i) make any material accommodation or commitment or incur any material Liability or other obligation to such Person prior to the Closing, (ii) agree or otherwise be required to sell, divest, dispose of, license, hold separate, or take or commit to take any action that would result limits in any Burdensome Condition without respect its freedom of action with respect to, or its ability to retain, any businesses, products, rights, services, licenses or assets or (iii) agree to any material economic concessions or any material changes to any contract listed on Section 4.3 of the prior written Jaguar Disclosure Letter provided, however, that the Jaguar Parties may pay or commit to pay to any such Persons whose approval or consent of Parent. For purposes of this Agreement, a “Burdensome Condition” shall mean making proposals, executing is being solicited any Jaguar Consent Expenses and any filing fees due to Governmental Entities in connection with required filings or carrying out agreements notifications regarding the Transactions.
(including consent decreesg) or submitting to Laws The Giants Parties and the Jaguar Parties agree: (i) providing for to make, or cause their ultimate parent entities as that term is defined in the transferHSR Act to make, licenseor cause to be made, sale or other disposition or holding separate (through the establishment of a trust or otherwise) of any assets or categories of assets of Parent, GFI or any of their respective Subsidiaries or the holding separate (through the establishment of a trust or otherwise) appropriate filings of the Securities of any Parent Subsidiary or GFI Subsidiary or Notification and Report Form under the HSR Act if applicable, with respect to the Transactions as promptly as practicable; and (ii) imposing to take all other actions reasonably necessary to cause the expiration or seeking to impose any limitation on the ability of Parent, GFI or any of their respective Subsidiaries to conduct their respective businesses (including with respect to market practices and structure) or own such assets or to acquire, hold or exercise full rights of ownership termination of the business applicable waiting periods under the HSR Act as soon as practicable. The responsibility for the payment of GFIany filings fees in connection with any filings under the HSR Act shall be apportioned 35% by Giants, and 65% by the GFI Subsidiaries, Parent or the Parent Subsidiaries, in each case other than (x) with respect to Antitrust Laws, any such proposals, executing or carrying out agreements (including consent decrees) or submitting to Laws that would not impair in any material respect the expected benefits of Parent and the Parent Subsidiaries from or relating to the Transactions, or (y) with respect to Regulatory Approvals, any immaterial administrative or ministerial obligations of Parent or any Parent SubsidiaryJaguar Parties.
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Consents and Approvals. (a) Subject Without limiting the generality of the undertakings pursuant to Section 6.3 and subsections (b) and (c) of this Section 6.4 and upon the terms and subject to the conditions of this Agreementherein provided, each of Parent TRW and GFI will Buyer shall use its reasonable best efforts to take, or cause to be taken, all actions action and to do, or cause to be done, all things necessary, proper or advisable necessary under applicable Law antitrust laws and regulations to consummate and make effective the Transactionstransactions contemplated by this Agreement, including, preparing without limitation, (i) to comply promptly with all legal requirements which may be imposed on it with respect to this Agreement and filing the transactions contemplated hereby by any Governmental Entities with regulatory jurisdiction over enforcement of any applicable antitrust laws ("Governmental Antitrust Entity") (which actions shall include, without limitation, furnishing all information required by applicable law in connection with approvals of or filings with any Governmental Antitrust Entity), including filing, or causing to be filed, as promptly as practicable all documentation practicable, any required notification and report forms (x) under the HSR Act with the Federal Trade Commission and the Antitrust Division of the United States Department of Justice or (y) under other applicable non-U.S. laws with the applicable non-U.S. Governmental Antitrust Entities including without limitation filings required pursuant to the EU Merger Regulation, (ii) to obtain any consent, authorization, order or approval of, or any exemption by, any Governmental Antitrust Entity required to be obtained or made by TRW and Buyer, or any of their Subsidiaries or Affiliates in connection with the transaction contemplated by this Agreement or the taking of any action contemplated by this Agreement, and (iii) to take any action reasonably necessary to defend vigorously, lift, mitigate or, rescind the effect all necessary filingsof any litigation or administrative proceeding involving any Governmental Antitrust Entity adversely affecting the transaction contemplated by this Agreement or this Agreement, notices, petitions, statements, registrations, submissions of information, applications and other documents necessary and appropriate to consummate the Transactionsincluding promptly appealing any adverse court or administrative decision. In furtherance and not in Without limitation of the foregoing, each of Parent TRW, Buyer and GFI their respective Affiliates shall (i) make or cause to be made the filings required of such party not extend any waiting period under the Foreign Competition Laws (including those set forth in Section 3.4(b)(i) of the Parent Disclosure Letter) with respect to the Transactions as promptly as practicable after the date of this Agreement; (ii) take all actions to obtain and make the Regulatory Approvals set forth in Section 3.4(b)(ii) of the Parent Disclosure Letter as promptly as practicable after the date of this Agreement; (iii) comply at the earliest practicable date with any request under any Governmental Entity (including under any Foreign Competition Laws) in respect of such filings or such Transaction; and (iv) act in good faith and reasonably cooperate with the other Party in connection with any such filings and in connection with resolving any investigation or other inquiry of any such agency or other Governmental Entity under any of the HSR Act, the Foreign Competition Laws, the Xxxxxxx Act, the Xxxxxxx Act and EU Merger Regulation or any other Laws foreign antitrust merger control laws or Orders that are designed to prohibit, restrict or regulate actions having the purpose or effect of monopolization or restraint of trade (collectively, the “Antitrust Laws”) with respect to enter into any such filing or any such Transaction. To the extent not prohibited by applicable Law, the Parties shall use reasonable best efforts to furnish to each other all information required for any application or other filing to be made pursuant to any applicable Law in connection agreement with the Transactions. Each Party shall give each other reasonable FTC or the Antitrust Division not to consummate the transactions contemplated by this Agreement, except with the prior notice written consent of any substantive communication with, and any proposed understanding, undertaking or agreement with, any Governmental Entity regarding any such filings or any such Transaction. No Party shall independently participate in any meeting, or engage in any substantive conversation, with any Governmental Entity in respect of any such filings, investigation or other inquiry without giving the other Parties prior notice of the meeting or conversation and, unless prohibited by such any Governmental Entity, the opportunity to attend or participate. The Parties contemplate that as a general matter both Parent and GFI shall be represented at in-person meetings with any Governmental Entity. The Parties will consult and cooperate with one another in connection with any analyses, appearances, presentations, memoranda, briefs, arguments, opinions and proposals made or submitted by or on behalf of any Party in connection with proceedings under or relating to the HSR Act, the Foreign Competition Laws or other Antitrust Lawsparties hereto.
(b) Without limiting the general obligations generality of Parent the undertakings pursuant to Section 6.3 and GFI under subsections (a) and (c) of this Section 5.3(a) (Consents and Approvals), each of Parent and GFI shall use its reasonable best efforts to resolve such objections, if any, as may be asserted by any Governmental Entity with respect to the Transactions under the Antitrust Laws. In connection therewith 6.4 and subject to Section 5.3(aappropriate confidentiality protections, TRW and Buyer shall each furnish to the other such necessary information and reasonable assistance as the other party may request in connection with the foregoing and, shall each provide counsel for the other party with copies of all filings made by such party, and all correspondence between such party (and its advisors) with any Governmental Antitrust Entity and any other information supplied by such party and such party's Affiliates to a Governmental Antitrust Entity in connection with this Agreement and the transactions contemplated hereby, provided, however, that materials may be redacted (Consents and Approvals), if any Proceeding is instituted (or threatened i) to be instituted) challenging any remove references concerning the valuation of the Transactions Business and (ii) as inconsistent necessary to comply with or violative of any Antitrust Lawcontractual arrangements. Each party shall, each of Parent subject to applicable law permit counsel for the other party to review in advance, and GFI shall cooperate and use its reasonable best efforts vigorously to contest and resist (by negotiation, litigation or otherwise) any such Proceeding and to have vacated, lifted, reversed or overturned any Order whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents, delays or restricts consummation of the Transactions, unless Parent reasonably and consider in good faith determines that litigation the views of the other party in connection with, any proposed written communication to any Governmental Antitrust Entity. TRW and Buyer agree not to participate, or to permit their affiliates to participate, in any substantive meeting or discussion, either in person or by telephone, with any Governmental Antitrust Entity in connection with this Agreement and the transactions contemplated hereby unless it consults with the other party in advance and, to the extent not prohibited by such Governmental Antitrust Entity, gives the other party the opportunity to attend and participate. Upon the terms and subject to the conditions herein provided, in case at any time after the Closing Date any further action is not in its best interests. Notwithstanding necessary or desirable to secure the foregoing or approvals from any other provision and all Governmental Antitrust Entities necessary to carry out the purposes of this Agreement, nothing in this Section 5.3(b) shall limit the right proper officers and/or directors of a Party to terminate this Agreement pursuant to Section 7.1 (Termination), so long as such Party has until that time complied in all material respects with its obligations under this Section 5.3. Each of Parent and GFI the parties shall use its reasonable their best efforts to take or cause to be taken all such action as may be required to cause the expiration of the notice periods or to obtain the necessary approvals under the HSR Act, the Foreign Competition Laws or any other Antitrust Laws with respect to the Transactions as promptly as possible after the execution of this Agreementaction.
(c) Notwithstanding anything Consistent with the undertakings pursuant to the contrary in Section 6.3 and subsections (a) and (b) of this AgreementSection 6.4, nothing in this Agreement shall be deemed to require Parent or any Parent Subsidiary to TRW and Buyer agree to take or take any action that would result in any Burdensome Condition. None of GFI or any GFI Subsidiary shall agree cause to or take any action that would result in any Burdensome Condition without be taken the prior written consent of Parent. For purposes of this Agreement, a “Burdensome Condition” shall mean making proposals, executing or carrying out agreements (including consent decrees) or submitting to Laws following actions:
(i) providing for the transferprovide as promptly as practicable information and documents requested by any Governmental Antitrust Entity necessary, license, sale proper or other disposition or holding separate (through the establishment of a trust or otherwise) of any assets or categories of assets of Parent, GFI or any of their respective Subsidiaries or the holding separate (through the establishment of a trust or otherwise) advisable to permit consummation of the Securities of any Parent Subsidiary or GFI Subsidiary or transactions contemplated by this Agreement; (ii) imposing without in any way limiting the provisions of (c)(i) above, use its best efforts to certify as soon as practicable their substantial compliance with any requests for additional information or seeking documentary material that may be made under the HSR Act; and (iii) take promptly, in the event that any permanent or preliminary injunction or other order is entered or becomes reasonably foreseeable to impose be entered in any limitation on proceeding that would make consummation of the ability transactions contemplated by this Agreement and the Ancillary Agreements in accordance with the terms thereof unlawful or that would prevent or delay consummation of Parentany such transactions, GFI or any of their respective Subsidiaries to conduct their respective businesses and all steps (including with respect to market practices and structure) or own such assets or to acquire, hold or exercise full rights of ownership of the business of GFI, the GFI Subsidiaries, Parent or the Parent Subsidiaries, in each case other than (x) with respect to Antitrust Laws, any such proposals, executing or carrying out agreements (including consent decrees) or submitting to Laws that would not impair in any material respect the expected benefits of Parent appeal thereof and the Parent Subsidiaries from posting of a bond) necessary to vacate, modify or relating suspend such injunction or order so as to the Transactions, or (y) with respect permit such consummation on a schedule as close as possible to Regulatory Approvals, any immaterial administrative or ministerial obligations of Parent or any Parent Subsidiarythat contemplated by this Agreement.
Appears in 1 contract
Samples: Master Agreement of Purchase and Sale (Goodrich Corp)
Consents and Approvals. (a) Subject to the terms As promptly as practicable, Seller and conditions of this Agreement, Purchaser shall each of Parent and GFI will use its reasonable best efforts to take, file or cause to be taken, all actions filed with the Federal Trade Commission and to do, or cause the Department of Justice any notifications required to be done, all things necessary, proper or advisable under applicable Law to consummate the Transactions, including, preparing and filing as promptly as practicable all documentation to effect all necessary filings, notices, petitions, statements, registrations, submissions of information, applications and other documents necessary and appropriate to consummate the Transactions. In furtherance and not in limitation of the foregoing, each of Parent and GFI shall (i) make or cause to be made the filings required of such party filed under the Foreign Competition Laws (including those set forth in Section 3.4(b)(i) of HSR Act and the Parent Disclosure Letter) rules and regulations promulgated thereunder with respect to the Transactions transactions contemplated hereby. The Parties shall respond promptly to any requests for additional information made by either of such agencies and use their respective commercially reasonable efforts to cause the waiting periods under the HSR Act to terminate or expire as promptly as practicable of the earliest possible date after the date of this Agreement; (ii) take all actions filing and to obtain and make the Regulatory Approvals set forth in Section 3.4(b)(ii) of the Parent Disclosure Letter as promptly as practicable after the date of this Agreement; (iii) comply at the earliest practicable date with any request under any Governmental Entity (including under any Foreign Competition Laws) in respect of such filings or such Transaction; and (iv) act in good faith and reasonably cooperate with the each other Party in connection with any such filings and in connection with resolving any investigation or other inquiry this clause (a). Each Party will bear its own costs for the preparation of any such agency filing and responding to any inquiries or other Governmental Entity under any information requests, and Purchaser shall be responsible for payment of the HSR Act, the Foreign Competition Laws, the Xxxxxxx Act, the Xxxxxxx Act and any other Laws or Orders that are designed to prohibit, restrict or regulate actions having the purpose or effect of monopolization or restraint of trade (collectively, the “Antitrust Laws”) with respect to any such applicable filing or any such Transaction. To the extent not prohibited by applicable Law, the Parties shall use reasonable best efforts to furnish to each other all information required for any application or other filing to be made pursuant to any applicable Law in connection with the Transactions. Each Party shall give each other reasonable prior notice of any substantive communication with, and any proposed understanding, undertaking or agreement with, any Governmental Entity regarding any such filings or any such Transaction. No Party shall independently participate in any meeting, or engage in any substantive conversation, with any Governmental Entity in respect of any such filings, investigation or other inquiry without giving the other Parties prior notice of the meeting or conversation and, unless prohibited by such any Governmental Entity, the opportunity to attend or participate. The Parties contemplate that as a general matter both Parent and GFI shall be represented at in-person meetings with any Governmental Entity. The Parties will consult and cooperate with one another in connection with any analyses, appearances, presentations, memoranda, briefs, arguments, opinions and proposals made or submitted by or on behalf of any Party in connection with proceedings under or relating to the HSR Act, the Foreign Competition Laws or other Antitrust Lawsfees.
(b) Without limiting the general obligations of Parent Seller and GFI under Section 5.3(a) (Consents Purchaser shall confer and Approvals)cooperate with each other in connection with, each of Parent file as promptly as practicable, and GFI shall use its their respective commercially reasonable best efforts to resolve obtain the FERC approvals set forth in Schedules 3.4(d) and 4.4 at the earliest possible date after the date of such objections, if any, as may filing. The Required Governmental Actions shall be asserted by any Governmental Entity with respect to the Transactions under the Antitrust Laws. In connection therewith and subject to Section 5.3(a) (Consents and Approvals), if any Proceeding is instituted (or threatened to be instituted) challenging any of the Transactions as inconsistent with or violative of any Antitrust Law, each of Parent and GFI shall cooperate and use its reasonable best efforts vigorously to contest and resist (by negotiation, litigation or otherwise) any such Proceeding and deemed to have vacated, lifted, reversed or overturned any Order whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents, delays or restricts consummation of the Transactions, unless Parent reasonably and in good faith determines that litigation is not in its best interests. Notwithstanding the foregoing or any other provision of this Agreement, nothing in this Section 5.3(b) shall limit the right of a Party to terminate this Agreement pursuant to Section 7.1 (Termination), so long as such Party has until that time complied in all material respects with its obligations under this Section 5.3. Each of Parent and GFI shall use its reasonable best efforts to take such action as may be required to cause occurred upon the expiration of the notice periods or applicable waiting period under the HSR Act as described in Section 5.5(a) and the granting by the FERC of the applicable approvals set forth in Schedules 3.4(d) and 4.4.
(c) In addition to the actions and filings described in Sections 5.5(a) and (b), Seller and Purchaser shall cooperate with each other and (i) promptly prepare and file all necessary documentation, (ii) effect all necessary applications, notices, petitions and filings and execute all agreements and documents, (iii) use commercially reasonable efforts to obtain the transfer or reissuance to Purchaser of all necessary permits (including environmental permits) and all consents, approvals under the HSR Act, the Foreign Competition Laws or and authorizations of any other Antitrust Laws with respect Governmental or Regulatory Authorities, and (iv) use commercially reasonable efforts to obtain all consents, approvals and authorizations of all other parties, in the Transactions as case of each of the foregoing clauses (i), (ii), (iii) and (iv), necessary to satisfy the conditions of the Parties’ respective obligations to consummate the transactions contemplated by this Agreement. The Parties shall respond promptly as to any requests for additional information made by such Governmental or Regulatory Authorities, and use their respective commercially reasonable efforts to cause such regulatory approvals to be obtained at the earliest possible date after the execution date of filing. Each Party will bear its own costs of the preparation of such filings and responding to any inquiries or information requests. Each of Seller and Purchaser shall have the right to review in advance all information relating to such Party and the transactions contemplated by this Agreement which appears in any filing made under this Section 5.5 in connection with the transactions contemplated by this Agreement.
(cd) Each Party shall promptly inform the other Party of any communication, and provide a copy of any writing, with, to or from any Governmental or Regulatory Authority relating to any Required Governmental Action, including promptly notifying the other Party of any notice from any Governmental or Regulatory Authority that contains, in the recipient’s reasonable judgment, any condition or requirement that could reasonably be expected to result in the condition to Closing set forth in Section 6.3 or Section 7.3, as applicable, not being satisfied. Each Party shall use commercially reasonable efforts to eliminate or mitigate the effect of any such conditions or requirements. Notwithstanding anything to the contrary in this AgreementSection 5.5, nothing in this Agreement no Party may consent, and the other Party shall not be deemed to require Parent or bound by any Parent Subsidiary to agree to or take any action that would result in any Burdensome Condition. None of GFI or any GFI Subsidiary shall agree to or take any action that would result in any Burdensome Condition without the prior written consent of Parent. For purposes of this Agreementa Party, a “Burdensome Condition” shall mean making proposals, executing to any condition or carrying out agreements (including consent decrees) or submitting to Laws (i) providing for the transfer, license, sale or other disposition or holding separate (through the establishment of a trust or otherwise) of any assets or categories of assets of Parent, GFI or any of their respective Subsidiaries or the holding separate (through the establishment of a trust or otherwise) of the Securities of any Parent Subsidiary or GFI Subsidiary or (ii) imposing or seeking to impose any limitation on the ability of Parent, GFI or any of their respective Subsidiaries to conduct their respective businesses (including requirement with respect to market practices and structure) any Required Governmental Action which is adverse to the other Party (or own such assets or to acquire, hold or exercise full rights of ownership of the business of GFI, the GFI Subsidiaries, Parent or the Parent SubsidiariesITC, in each the case where Purchaser is the other than (xParty) with respect to Antitrust Laws, any such proposals, executing or carrying out agreements (including consent decrees) or submitting to Laws that would not impair in any material respect without the expected benefits of Parent and the Parent Subsidiaries from or relating to the Transactions, or (y) with respect to Regulatory Approvals, any immaterial administrative or ministerial obligations of Parent or any Parent Subsidiaryother Party’s prior written consent.
Appears in 1 contract
