Cooperation; Filings and Approvals. (a) Upon the terms and subject to the conditions of this Agreement, each of the Company and Purchaser shall use commercially reasonable efforts (except where a different efforts standard is specifically contemplated by this Agreement, in which case, such different standard shall apply) to take, or cause to be taken, all actions and to do, or cause to be done, and assist and cooperate with such other Party in doing, all things reasonably necessary, proper or advisable to consummate and make effective as promptly as practicable the Transaction (including (i) preparing and filing, as promptly as practicable, with any Governmental Authority or other third party all documentation to effect all necessary filings and applications (including, to the extent necessary, filings and applications pursuant to the HSR Act, which such necessary filings and applications pursuant to the HSR Act shall be made within two (2) Business Days after the date of this Agreement and the expenses of which shall be borne by Purchaser), and filings and applications pursuant to any other Government Approvals, which such filings and applications shall be made within two (2) Business Days after the date of this Agreement) (and, absent the prior written consent of such other Party, not withdrawing any such filings and applications) and resubmitting any such filings and applications as soon as is reasonably practicable in the event such filings are rejected for any reason whatsoever by the relevant Governmental Authority and (ii) using commercially reasonable efforts (except where a different efforts standard is specifically contemplated by this Agreement, in which case, such different standard shall apply) to obtain, as promptly as practicable, all Required Approvals that are necessary, proper or advisable to consummate the Transaction). Notwithstanding the foregoing or anything else in this Agreement, neither the Company, Purchaser or any of their Subsidiaries or Affiliates or any Equity Holder shall request early termination of the waiting period under the HSR Act. To the extent permitted by applicable Law, the Company and Purchaser shall deliver as promptly as practicable to the appropriate Governmental Authorities any additional information and documentary material that may be requested by any Governmental Authority in connection with the Transaction. Without limiting the foregoing, none of the Company, Purchaser or any of their respective Affiliates shall extend any waiting period or comparable period under the HSR Act or the other Governmental Approvals or enter into any agreement with any Governmental Authority not to consummate the Transaction, except with the prior written consent of the Company or Purchaser, as applicable, which shall not be unreasonably withheld, conditioned or delayed. (b) Each of the Company and Purchaser shall, to the extent permitted by applicable Law, (i) promptly notify such other Party of any written communication made or received by the Company or Purchaser, as applicable, with any Governmental Authority relating to antitrust Law (or any other filings or applications made pursuant to this Section 7.2) and regarding this Agreement or the Transaction (including the Merger), and, if permitted by applicable Law and reasonably practical, permit such other Party to review in advance any proposed written communication to any such Governmental Authority and incorporate such other Party’s (and any of their respective outside counsel’s) reasonable comments to such proposed written communication, (ii) not agree to participate in any in-person meeting or substantive discussion with any Governmental Authority in respect of any filing or application, investigation or inquiry relating to antitrust Law (or any other filing or application made pursuant to this Section 7.2) and regarding this Agreement or the Transaction unless, to the extent reasonably practicable, it consults with such other Party in advance and, to the extent permitted by such Governmental Authority, gives such other Party the opportunity to attend or participate, as applicable, and (iii) promptly furnish such other Party with copies of all correspondence, filings and written communications between it and its Affiliates and representatives, on the one hand, and such Governmental Authority or its respective staff, on the other hand, with respect to this Agreement and the Transaction. Any materials exchanged in connection with this Section 7.2 may be redacted or withheld as necessary to address reasonable privilege or confidentiality concerns, and to remove references concerning any competitively sensitive material; provided, that the parties may, as they deem advisable and necessary, designate any materials provided to the other under this Section 7.2 as “outside counsel only.” (c) Notwithstanding anything to the contrary set forth in this Agreement, and in furtherance and not in limitation of the foregoing, Purchaser and the Company shall, and shall cause each of their respective Affiliates to, use commercially reasonable efforts to resolve, avoid, or eliminate impediments or objections, if any, that may be asserted by any Governmental Authority with respect to the Transaction so as to enable the Merger to occur as promptly as practicable (and in any event prior to the Outside Date); provided that nothing in this Section 7.2 or anything else in this Agreement shall require the Company, Purchaser or any of their respective Subsidiaries or other Affiliates to (and neither the Company nor any of its Subsidiaries shall, or shall offer or agree to, do any of the following without Purchaser’s prior written consent): (i) propose, negotiate, commit to or effect, by consent decree, hold separate orders or otherwise, the sale, divesture, disposition, or license of any assets, properties, products, rights, services or businesses of Purchaser, UFP, UFP’s Subsidiaries, UFP’s Affiliates, or the Company or any of its Subsidiaries, or any interest therein, or agree to any other structural or conduct remedy, (ii) otherwise take or commit to take any actions that would limit Purchaser’s, UFP, UFP’s Subsidiaries, UFP’s Affiliates, or the Company’s or its Subsidiaries’ freedom of action with respect to, or its or their ability to retain any assets, properties, products, rights, services or businesses of Purchaser, UFP, UFP’s Subsidiaries, UFP’s Affiliates, or the Company or its Subsidiaries, or any interest or interests therein; or (iii) agree to do any of the foregoing. (d) In the event any Legal Proceeding by any Governmental Authority or other third party is commenced which questions the validity or legality of, or otherwise challenges, the Transaction, or seeks damages in connection therewith, the Company and Purchaser shall, subject to the provisions set forth in this Section 7.2(d), reasonably cooperate and use commercially reasonable efforts to defend against such Legal Proceeding, and if an injunction or other Order is issued in any such Legal Proceeding, to use commercially reasonable efforts to have such injunction or other Order lifted or extinguished, and to cooperate reasonably regarding any other impediment to the consummation of the Transaction; provided that, unless the Company or Purchaser elects to do so, nothing in this Agreement shall require either Party to commence any litigation against any Governmental Authority; provided, further, that any Party not electing to commence any litigation against a Governmental Authority shall not be required to do so because the other Party did so elect. Purchaser shall, in consultation with the Company, be entitled to direct the defense of the Transaction before any Governmental Authority and to take the lead in the scheduling of, and strategic planning for, any meetings with, and the conducting of negotiations with, Governmental Authorities regarding (i) the expiration or termination of any applicable waiting period relating to the Merger under the HSR Act or (ii) the other Governmental Approvals, so long as Purchaser’s actions in connection therewith are otherwise in accordance with Purchaser’s obligations under this Section 7.2. (e) The Company and Purchaser shall reasonably cooperate with each other and their respective representatives in obtaining any other Required Approvals that may be required in connection with the Transaction; provided that pursuing the Required Approvals described in Section 6.2 shall be governed by Section 6.2. Notwithstanding anything to the contrary in this Agreement, nothing herein shall obligate or be construed to obligate the Company or any of its Affiliates or Purchaser or any of its Affiliates to, and without the prior written consent of the Company or Purchaser, as applicable, neither the Company or any of its Affiliates nor Purchaser or any of its Affiliates shall make, or cause to be made, any payment or other accommodation to any third party in order to obtain the consent, waiver, approval, or authorization of such third party under any Contract or otherwise.
Appears in 1 contract
Cooperation; Filings and Approvals. (a) Upon Subject to the terms and subject to the conditions of this Agreement, each of the Company Company, Buyer and Purchaser Merger Sub shall cooperate with each other and shall use (and shall cause their respective Subsidiaries to use) its commercially reasonable best efforts (except where a different efforts standard is specifically contemplated by this Agreement, in which case, such different standard shall apply) to take, take or cause to be takentaken all actions, all actions and to do, do or cause to be donedone all things, and assist and cooperate with such other Party in doing, all things reasonably necessary, proper or advisable on their part under this Agreement and applicable laws to consummate and make effective the Merger and the other transactions contemplated by this Agreement as promptly soon as practicable the Transaction (including practicable, including, without limitation, (i) preparing and filing, filing as promptly as practicable, with any Governmental Authority or other third party practicable all documentation to effect all necessary filings applications, notices, petitions, filings, tax ruling requests and applications other documents and to obtain as promptly as practicable all consents, waivers, licenses, orders, registrations, approvals, permits, tax rulings and authorizations necessary or advisable to be obtained from any third party and/or any Governmental Entity in order to consummate the Merger or any of the other transactions contemplated by this Agreement (includingincluding the consent of the FCC), and (ii) taking all steps as may be necessary to obtain all such consents, waivers, licenses, registrations, permits, authorizations, tax rulings, orders and approvals; provided that the extent necessary, filings Company shall not be required to incur any significant expense or liability or agree to any significant modification to any contractual arrangement or Company Permit to obtain any of the foregoing.
(b) The Company and applications pursuant its Subsidiaries and Buyer shall file all reports required to the HSR Act, which such necessary filings and applications pursuant to the HSR Act shall be made within two (2) Business Days after filed by each of them with any Governmental Entity between the date of this Agreement and the expenses Effective Time and shall (to the extent permitted by law or regulation or any applicable confidentiality agreement) deliver to the other party copies of which all such reports promptly after the same are filed. Subject to applicable laws relating to the exchange of information, each of the Company and Buyer shall be borne by Purchaser)have the right to review in advance, and filings to the extent practicable each will consult with the other, with respect to all the information relating to the other party and applications each of their respective Subsidiaries, which appears in any filings, announcements or publications made with, or written materials submitted to, any Governmental Entity in connection with the transactions contemplated by this Agreement. In exercising the foregoing right, each of the parties hereto agrees to act reasonably and as promptly as practicable. Notwithstanding the foregoing, the Company will not be obligated to deliver any tax returns on a regular basis pursuant to any other Government Approvals, which such this Section 4.3(b) unless reasonably requested by Buyer.
(c) Each of the Company and Buyer agrees to make all necessary filings and applications shall be made within two (2) Business Days in connection with the Required Regulatory Approvals as promptly as practicable after the date of this Agreement) (and, absent the prior written consent of such other Party, not withdrawing any such filings and applications) and resubmitting any such filings and applications as soon as is reasonably practicable in the event such filings are rejected for any reason whatsoever by the relevant Governmental Authority and (ii) using commercially to use its reasonable best efforts (except where a different efforts standard is specifically contemplated by this Agreement, in which case, such different standard shall apply) to obtainfurnish or cause to be furnished, as promptly as practicable, all information and documents required with respect to such Required Regulatory Approvals that are necessaryand shall otherwise cooperate with the applicable Governmental Entity in order to obtain any Required Regulatory Approvals in as expeditious a manner as possible. Each party agrees that, proper to the extent practicable, it will consult with the other party with respect to the obtaining of all permits, consents, approvals and authorizations of all third Persons (including lessors) and Governmental Entities necessary or advisable to consummate the Transaction). Notwithstanding the foregoing transactions contemplated by this Agreement and Seller agrees to cooperate with Buyer and Buyer's representatives seeking to comply with any material leases or anything else in this Agreement, neither the Company, Purchaser or any of their Subsidiaries or Affiliates or any Equity Holder shall request early termination other material agreements which would be violated as a result of the waiting period under consummation of the HSR Act. To transactions contemplated hereby and each party will keep the extent permitted by applicable Law, other party apprised of the Company and Purchaser shall deliver as promptly as practicable status of matters relating to completion of the appropriate Governmental Authorities any additional information and documentary material that may be requested by any Governmental Authority in connection with the Transactiontransactions contemplated hereby. Without limiting the generality of the foregoing, none of the Company, Purchaser or any of their respective Affiliates shall extend any waiting period or comparable period under Buyer and Merger Sub agree to take all actions necessary to comply with the HSR Act or the other Governmental Approvals or enter into any agreement with any Governmental Authority not so as to consummate the TransactionMerger as promptly as practicable, except with the prior written consent of the Company or Purchaserincluding, as applicable, which shall not be unreasonably withheld, conditioned or delayed.
(b) Each of the Company and Purchaser shall, to the extent permitted by applicable Lawwithout limitation, (i) promptly notify such other Party of any written communication made or received by the Company or Purchaserfiling, as applicable, with any Governmental Authority relating to antitrust Law (or any other filings or applications made pursuant to this Section 7.2) and regarding this Agreement or the Transaction (including the Merger), and, if permitted by applicable Law and reasonably practical, permit such other Party to review in advance any proposed written communication to any such Governmental Authority and incorporate such other Party’s (and any of their respective outside counsel’s) reasonable comments to such proposed written communication, (ii) not agree to participate in any in-person meeting or substantive discussion with any Governmental Authority in respect of any filing or application, investigation or inquiry relating to antitrust Law (or any other filing or application made pursuant to this Section 7.2) and regarding this Agreement or the Transaction unless, to the extent reasonably practicable, it consults with such other Party in advance and, to the extent permitted by such Governmental Authority, gives such other Party the opportunity to attend or participate, as applicable, and (iii) promptly furnish such other Party with copies of all correspondence, filings and written communications between it and its Affiliates and representatives, on the one hand, and such Governmental Authority or its respective staff, on the other hand, with respect to this Agreement and the Transaction. Any materials exchanged in connection with this Section 7.2 may be redacted or withheld as necessary to address reasonable privilege or confidentiality concerns, and to remove references concerning any competitively sensitive material; provided, that the parties may, as they deem advisable and necessary, designate any materials provided to the other under this Section 7.2 as “outside counsel only.”
(c) Notwithstanding anything to the contrary set forth in this Agreement, and in furtherance and not in limitation of the foregoing, Purchaser and the Company shall, and shall cause each of their respective Affiliates to, use commercially reasonable efforts to resolve, avoid, or eliminate impediments or objections, if any, that may be asserted by any Governmental Authority with respect to the Transaction so as to enable the Merger to occur as promptly as practicable (and in any event prior to the Outside Date); provided that nothing in this Section 7.2 or anything else in this Agreement shall require the Company, Purchaser or any of their respective Subsidiaries or other Affiliates to (and neither the Company nor any of its Subsidiaries shall, or shall offer or agree to, do any of the following without Purchaser’s prior written consent): (i) propose, negotiate, commit to or effect, by consent decree, hold separate orders or otherwise, the sale, divesture, disposition, or license of any assets, properties, products, rights, services or businesses of Purchaser, UFP, UFP’s Subsidiaries, UFP’s Affiliates, or the Company or any of its Subsidiaries, or any interest therein, or agree to any other structural or conduct remedy, (ii) otherwise take or commit to take any actions that would limit Purchaser’s, UFP, UFP’s Subsidiaries, UFP’s Affiliates, or the Company’s or its Subsidiaries’ freedom of action with respect to, or its or their ability to retain any assets, properties, products, rights, services or businesses of Purchaser, UFP, UFP’s Subsidiaries, UFP’s Affiliates, or the Company or its Subsidiaries, or any interest or interests therein; or (iii) agree to do any of the foregoing.
(d) In the event any Legal Proceeding by any Governmental Authority or other third party is commenced which questions the validity or legality of, or otherwise challenges, the Transaction, or seeks damages in connection therewith, the Company and Purchaser shall, subject to the provisions set forth in this Section 7.2(d), reasonably cooperate and use commercially reasonable efforts to defend against such Legal Proceeding, and if an injunction or other Order is issued in any such Legal Proceeding, to use commercially reasonable efforts to have such injunction or other Order lifted or extinguished, and to cooperate reasonably regarding any other impediment to the consummation of the Transaction; provided that, unless the Company or Purchaser elects to do so, nothing in this Agreement shall require either Party to commence any litigation against any Governmental Authority; provided, further, that any Party not electing to commence any litigation against a Governmental Authority shall not be required to do so because the other Party did so elect. Purchaser shall, in consultation with the Company, be entitled to direct the defense of the Transaction before any Governmental Authority and to take the lead in the scheduling of, and strategic planning for, any meetings with, and the conducting of negotiations with, Governmental Authorities regarding (i) the expiration or termination of any applicable waiting period relating to the Merger under the HSR Act or (ii) the other Governmental Approvals, so long as Purchaser’s actions in connection therewith are otherwise in accordance with Purchaser’s obligations under this Section 7.2.
(e) The Company and Purchaser shall reasonably cooperate with each other and their respective representatives in obtaining any other Required Approvals that may be required in connection with the Transaction; provided that pursuing the Required Approvals described in Section 6.2 shall be governed by Section 6.2. Notwithstanding anything to the contrary in this Agreement, nothing herein shall obligate or be construed to obligate the Company or any of its Affiliates or Purchaser or any of its Affiliates to, and without the prior written consent of the Company or Purchaser, as applicable, neither the Company or any of its Affiliates nor Purchaser or any of its Affiliates shall make, or cause to be made, any payment or other accommodation to any third party in order to obtain the consent, waiver, approval, or authorization of such third party under any Contract or otherwise.no later than
Appears in 1 contract
Cooperation; Filings and Approvals. (a) Upon Subject to the terms and subject to the conditions of this Agreement, each of the Company Company, Buyer and Purchaser Merger Sub shall cooperate with each other and shall use (and shall cause their respective Subsidiaries to use) its commercially reasonable best efforts (except where a different efforts standard is specifically contemplated by this Agreement, in which case, such different standard shall apply) to take, take or cause to be takentaken all actions, all actions and to do, do or cause to be donedone all things, and assist and cooperate with such other Party in doing, all things reasonably necessary, proper or advisable on their part under this Agreement and applicable laws to consummate and make effective the Merger and the other transactions contemplated by this Agreement as promptly soon as practicable the Transaction (including practicable, including, without limitation, (i) preparing and filing, filing as promptly as practicable, with any Governmental Authority or other third party practicable all documentation to effect all necessary filings applications, notices, petitions, filings, tax ruling requests and applications other documents and to obtain as promptly as practicable all consents, waivers, licenses, orders, registrations, approvals, permits, tax rulings and authorizations necessary or advisable to be obtained from any third party and/or any Governmental Entity in order to consummate the Merger or any of the other transactions contemplated by this Agreement (includingincluding the consent of the FCC), and (ii) taking all steps as may be necessary to obtain all such consents, waivers, licenses, registrations, permits, authorizations, tax rulings, orders and approvals; provided that the extent necessary, filings Company shall not be required to incur any significant expense or liability or agree to any significant modification to any contractual arrangement or Company Permit to obtain any of the foregoing.
(b) The Company and applications pursuant its Subsidiaries and Buyer shall file all reports required to the HSR Act, which such necessary filings and applications pursuant to the HSR Act shall be made within two (2) Business Days after filed by each of them with any Governmental Entity between the date of this Agreement and the expenses Effective Time and shall (to the extent permitted by law or regulation or any applicable confidentiality agreement) deliver to the other party copies of which all such reports promptly after the same are filed. Subject to applicable laws relating to the exchange of information, each of the Company and Buyer shall be borne by Purchaser)have the right to review in advance, and filings to the extent practicable each will consult with the other, with respect to all the information relating to the other party and applications each of their respective Subsidiaries, which appears in any filings, announcements or publications made with, or written materials submitted to, any Governmental Entity in connection with the transactions contemplated by this Agreement. In exercising the foregoing right, each of the parties hereto agrees to act reasonably and as promptly as practicable. Notwithstanding the foregoing, the Company will not be obligated to deliver any tax returns on a regular basis pursuant to any other Government Approvals, which such this Section 4.3(b) unless reasonably requested by Buyer.
(c) Each of the Company and Buyer agrees to make all necessary filings and applications shall be made within two (2) Business Days in connection with the Required Regulatory Approvals as promptly as practicable after the date of this Agreement) (and, absent the prior written consent of such other Party, not withdrawing any such filings and applications) and resubmitting any such filings and applications as soon as is reasonably practicable in the event such filings are rejected for any reason whatsoever by the relevant Governmental Authority and (ii) using commercially to use its reasonable best efforts (except where a different efforts standard is specifically contemplated by this Agreement, in which case, such different standard shall apply) to obtainfurnish or cause to be furnished, as promptly as practicable, all information and documents required with respect to such Required Regulatory Approvals that are necessaryand shall otherwise cooperate with the applicable Governmental Entity in order to obtain any Required Regulatory Approvals in as expeditious a manner as possible. Each party agrees that, proper to the extent practicable, it will consult with the other party with respect to the obtaining of all permits, consents, approvals and authorizations of all third Persons (including lessors) and Governmental Entities necessary or advisable to consummate the Transaction). Notwithstanding the foregoing transactions contemplated by this Agreement and Seller agrees to cooperate with Buyer and Buyer's representatives seeking to comply with any material leases or anything else in this Agreement, neither the Company, Purchaser or any of their Subsidiaries or Affiliates or any Equity Holder shall request early termination other material agreements which would be violated as a result of the waiting period under consummation of the HSR Act. To transactions contemplated hereby and each party will keep the extent permitted by applicable Law, other party apprised of the Company and Purchaser shall deliver as promptly as practicable status of matters relating to completion of the appropriate Governmental Authorities any additional information and documentary material that may be requested by any Governmental Authority in connection with the Transactiontransactions contemplated hereby. Without limiting the generality of the foregoing, none Buyer and Merger Sub agree to take all actions necessary to comply with the HSR Act so as to consummate the Merger as promptly as practicable, including, without limitation, (i) filing, no later than twenty (20) business days following the date hereof, with the Federal Trade Commission and the United States Department of Justice all documents required to be filed pursuant to the HSR Act, and (ii) causing the expiration of the Company, Purchaser or any of their respective Affiliates shall extend any notice and waiting period or comparable period periods under the HSR Act or with respect to the other Governmental Approvals or enter into any agreement with any Governmental Authority not to consummate transactions contemplated by this Agreement as promptly as possible after the Transaction, except with the prior written consent date of the Company or Purchaser, as applicable, which shall not be unreasonably withheld, conditioned or delayed.
(b) this Agreement. Each of the Company and Purchaser shallBuyer shall take all commercially reasonable action necessary to resolve such objections, to the extent permitted by applicable Law, (i) promptly notify such other Party of any written communication made or received by the Company or Purchaserif any, as applicable, with may be asserted by any Governmental Authority relating to antitrust Law (or any other filings or applications made pursuant to this Section 7.2) and regarding this Agreement or the Transaction (including the Merger), and, if permitted by applicable Law and reasonably practical, permit such other Party to review in advance any proposed written communication to any such Governmental Authority and incorporate such other Party’s (and any of their respective outside counsel’s) reasonable comments to such proposed written communication, (ii) not agree to participate in any in-person meeting or substantive discussion with any Governmental Authority in respect of any filing or application, investigation or inquiry relating to antitrust Law (or any other filing or application made pursuant to this Section 7.2) and regarding this Agreement or the Transaction unless, to the extent reasonably practicable, it consults with such other Party in advance and, to the extent permitted by such Governmental Authority, gives such other Party the opportunity to attend or participate, as applicable, and (iii) promptly furnish such other Party with copies of all correspondence, filings and written communications between it and its Affiliates and representatives, on the one hand, and such Governmental Authority or its respective staff, on the other hand, Entity with respect to this Agreement and the Transaction. Any materials exchanged transactions contemplated hereby in connection with the Required Regulatory Approvals. If any administrative or judicial suit, action or proceeding is instituted (or threatened to be instituted) by a Person or Governmental Entity challenging this Section 7.2 may be redacted Agreement and the transactions contemplated hereby as violative of applicable antitrust or withheld competition laws, each of the Company and Buyer shall cooperate and shall contest and resist, except insofar as necessary to address reasonable privilege the Company and Buyer shall otherwise agree, any such suit, action or confidentiality concernsproceeding, including any suit, action or proceeding that seeks a temporary restraining order or preliminary injunction that would prohibit, prevent or restrict consummation of the Merger or any other transaction contemplated by this Agreement.
(d) The Company and to remove references concerning any competitively sensitive material; providedBuyer each shall, that upon request by the parties mayother, as they deem advisable and necessary, designate any materials provided to furnish the other under with all information concerning itself, its Subsidiaries, directors, officers and stockholders and such other matters as may reasonably be necessary or advisable in connection with the Proxy Statement, the Financing or alternative financing for the transactions contemplated by this Section 7.2 as “outside counsel only.”
Agreement (cincluding a public debt and/or equity financing by Buyer and/or its affiliates) Notwithstanding anything or any other statement, filing, tax ruling request, notice or application made by or on behalf of the Company, Buyer or any of their respective Subsidiaries to any third party and/or any Governmental Entity in connection with the contrary set forth in transactions contemplated by this Agreement, and in furtherance and not in limitation . Without limiting the generality of the foregoing, Purchaser and the Company shall, and shall cause each of their respective Affiliates to, use commercially reasonable efforts reasonably efforts, to resolvecause its accountants and other representatives, avoid, to cooperate with Buyer and its Affiliates in connection with the Financing (or eliminate impediments or objections, if any, that may be asserted by any Governmental Authority with respect to the Transaction so as to enable alternative financing for the Merger to occur as promptly as practicable (and in any event prior to the Outside Dateproposed by Buyer); provided that nothing in this Section 7.2 or anything else in this Agreement shall require the Company, Purchaser or any of their respective Subsidiaries or other Affiliates to (and neither the Company nor any of its Subsidiaries shall, or shall offer or agree to, do any of the following without Purchaser’s prior written consent): including (i) propose, negotiate, commit authorization to include the Company's financial statements and other relevant information in any filing with the SEC or effect, by consent decree, hold separate orders or otherwise, the sale, divesture, disposition, or license of any assets, properties, products, rights, services or businesses of Purchaser, UFP, UFP’s Subsidiaries, UFP’s Affiliates, or the Company or any of its Subsidiaries, or any interest therein, or agree to any other structural or conduct remedyGovernmental Entity and obtaining comfort letters customary in public financing, (ii) otherwise take or commit to take any actions that would limit Purchaser’sincurring borrowings under its existing credit facilities contemporaneously with the Closing, UFPbut not in excess of the maximum amount permitted under such facilities, UFP’s Subsidiaries, UFP’s Affiliates, or the Company’s or its Subsidiaries’ freedom of action with respect to, or its or their ability to retain any assets, properties, products, rights, services or businesses of Purchaser, UFP, UFP’s Subsidiaries, UFP’s Affiliates, or the Company or its Subsidiaries, or any interest or interests therein; or and (iii) agree cause Ernst & Young LLP to do any of the foregoing.
(d) In the event any Legal Proceeding by any Governmental Authority or other third party is commenced which questions the validity or legality of, or otherwise challenges, the Transaction, or seeks damages in connection therewith, the Company and Purchaser shall, subject to the provisions set forth in this Section 7.2(d), reasonably cooperate and use commercially reasonable efforts to defend against such Legal Proceeding, and if an injunction or other Order is issued in any such Legal Proceeding, to use commercially reasonable efforts to have such injunction or other Order lifted or extinguished, and to cooperate reasonably regarding any other impediment to the consummation of the Transaction; provided that, unless the Company or Purchaser elects to do so, nothing in this Agreement shall require either Party to commence any litigation against any Governmental Authority; provided, further, that any Party not electing to commence any litigation against a Governmental Authority shall not be required to do so because the other Party did so elect. Purchaser shall, in consultation with prepare the Company, be entitled to direct the defense of the Transaction before any Governmental Authority and to take the lead 's year-end audit in the scheduling of, and strategic planning for, any meetings with, and the conducting of negotiations with, Governmental Authorities regarding (i) the expiration or termination of any applicable waiting period relating to the Merger under the HSR Act or (ii) the other Governmental Approvals, so long as Purchaser’s actions in connection therewith are otherwise in accordance with Purchaser’s obligations under this Section 7.2ordinary course.
(e) The Company and Purchaser shall reasonably cooperate with each other and their respective representatives in obtaining any other Required Approvals that may be required in connection with the Transaction; provided that pursuing the Required Approvals described in Section 6.2 shall be governed by Section 6.2. Notwithstanding anything to the contrary in this Agreement, nothing herein shall obligate or be construed to obligate the Company or any of its Affiliates or Purchaser or any of its Affiliates to, and without the prior written consent of the Company or Purchaser, as applicable, neither the Company or any of its Affiliates nor Purchaser or any of its Affiliates shall make, or cause to be made, any payment or other accommodation to any third party in order to obtain the consent, waiver, approval, or authorization of such third party under any Contract or otherwise.
Appears in 1 contract
Cooperation; Filings and Approvals. (a) Upon Subject to the terms and subject to the conditions of this Agreement, the Parties shall cooperate with one another and use (and shall cause their respective Subsidiaries and Affiliates to use) their respective commercially reasonable efforts to promptly (i) take, or cause to be taken, all actions, and do, or cause to be done, all things, necessary, proper or advisable to cause the conditions to Closing to be satisfied as promptly as practicable and to consummate and make effective, in the most expeditious manner practicable, the Transaction, including preparing and filing promptly and fully all documentation to effect all necessary filings, notices, petitions, statements, registrations, submissions of information, applications and other documents (including, any required filings under the HSR Act), and (ii) obtain all approvals, consents, registrations, Permits, authorizations and other confirmations from any Governmental Authority or other Person (other than a Governmental Authority) necessary, proper or advisable to consummate the Transaction; provided that neither Seller nor the Company shall be obligated to pay any consideration to any Person (other than mandatory filing fees in connection with filings under the HSR Act and any other applicable per-merger filing rules) from whom any such approval, consent, registration, Permit, authorization or other confirmation is requested. For the avoidance of doubt, the obtaining of any such approval, consent, registration, Permit, authorization or other confirmation is not a condition to Closing unless expressly set forth in Article VIII.
(b) In furtherance and not in limitation of the foregoing, (i) each of the Company and Purchaser shall agrees to make, or have its ultimate parent entity make, an appropriate filing of a Notification and Report Form pursuant to the HSR Act with respect to the Transaction as promptly as practicable following the date of this Agreement, (but in no event later than ten (10) Business Days from the date of this Agreement), and to supply as promptly as practicable any additional information and documentary material that may be requested pursuant to the HSR Act and use its commercially reasonable efforts (except where a different efforts standard is specifically contemplated by this Agreement, in which case, such different standard shall apply) to take, or cause to be taken, all other actions consistent with this Section 7.2 necessary to cause the expiration or termination of the applicable waiting periods under the HSR Act as soon as practicable and (ii) to dothe extent that any pre-merger filings are required in any other jurisdictions, each of the Company and Purchaser agrees to make, or cause to be donehave its ultimate parent entity make, and assist and cooperate with such other Party in doing, all things reasonably necessary, proper or advisable to consummate and make effective filings as promptly as practicable the Transaction (including (i) preparing and filing, as promptly as practicable, with any Governmental Authority or other third party all documentation to effect all necessary filings and applications (including, to the extent necessary, filings and applications pursuant to the HSR Act, which such necessary filings and applications pursuant to the HSR Act shall be made within two (2) Business Days after following the date of this Agreement and the expenses of which shall to supply as promptly as practicable any additional information and documentary materials that may be borne required by Purchaser), and a Governmental Authority in connection with such required filings and applications pursuant to any other Government Approvals, which such filings and applications shall be made within two (2) Business Days after the date of this Agreement) (and, absent the prior written consent of such other Party, not withdrawing any such filings and applications) and resubmitting any such filings and applications as soon as is reasonably practicable in the event such filings are rejected for any reason whatsoever by the relevant Governmental Authority and (ii) using use its commercially reasonable efforts (except where a different efforts standard is specifically contemplated by this Agreement, in which case, to obtain clearance or waiting period expirations or terminations from such different standard shall apply) Governmental Authority with respect to obtain, the Transaction as promptly as practicable. The Parties further agree that, except for filings required from each Party under the HSR Act, (x) Purchaser will take the lead in making any and all filings with any Governmental Authority that are required under applicable pre-merger filing rules (including merger notification or control Laws, other applicable antitrust or fair trade Laws or any investment act Laws), (y) Seller will reasonably cooperate with Purchaser in making such filings, and (z) Purchaser and Seller will, or will cause their respective Affiliates to, supply as promptly as practicable any additional information and documentary material that may be requested by a Governmental Authority pursuant to such filings and use their respective commercially reasonable efforts to take, or cause to be taken, all Required Approvals that are necessaryother actions consistent with this Section 7.2 necessary to cause the expiration or termination of the applicable waiting periods under such filings or the receipt of approvals under such filings as promptly as practicable and, proper in any event, prior to the Outside Date. Purchaser and Seller shall each be responsible for one-half of all mandatory filing fees in connection with filings under the HSR Act and any other applicable pre-merger filing rules.
(c) Subject to its obligations pursuant to this Section 7.2, Purchaser shall have sole control over the process of obtaining any consents, permits, authorizations or advisable approvals of, and making any filings, notifications or registrations with, Governmental Authorities as may be required under any antitrust, trade regulation, competition, communications, foreign investment or other Law applicable to consummate the Transaction Agreements or the Transaction). Notwithstanding the foregoing or anything else in this Agreement, neither the Companyprovided, Purchaser or any of their Subsidiaries or Affiliates or any Equity Holder that each Party shall request early termination of the waiting period under the HSR Act. To the extent permitted by applicable LawUpon request of Purchaser, the Company and Seller shall reasonably cooperate with Purchaser shall deliver as promptly as practicable to assist in defending any investigation or other inquiry by or before a Governmental Authority relating to the appropriate Governmental Authorities Transaction, including any additional information proceeding initiated by a private party, and documentary material to have vacated, lifted, reversed or overturned any resulting order (whether temporary, preliminary or permanent), that may be requested by any Governmental Authority in connection with materially impairs or delays the consummation of the Transaction. Without limiting the foregoingEach of Seller, none of the Company, Purchaser or any of their respective Affiliates shall extend any waiting period or comparable period under the HSR Act or the other Governmental Approvals or enter into any agreement with any Governmental Authority not to consummate the Transaction, except with the prior written consent of the Company or and Purchaser, as applicable, which shall not be unreasonably withhelduse its commercially reasonable efforts to keep the others informed in all material respects and on a current basis of any material communication received by such Party from, conditioned or delayed.
(b) Each given by such Party to, the Federal Trade Commission, the Antitrust Division of the Company and Purchaser shall, to the extent permitted by applicable Law, (i) promptly notify such other Party Department of any written communication made or received by the Company or Purchaser, as applicable, with any Governmental Authority relating to antitrust Law (Justice or any other filings or applications made pursuant to this Section 7.2) and regarding this Agreement or the Transaction (including the Merger), and, if permitted by applicable Law and reasonably practical, permit such other Party to review in advance any proposed written communication to any such Governmental Authority and incorporate such other Party’s (and of any of their respective outside counsel’s) reasonable comments to such proposed written communication, (ii) not agree to participate material communication received or given in any in-person meeting or substantive discussion connection with any Governmental Authority proceeding by a private party, in respect of any filing or application, investigation or inquiry relating to antitrust Law (or any other filing or application made pursuant to this Section 7.2) and each case regarding this Agreement or the Transaction unless, to Transaction. To the extent reasonably practicable, it consults with such other Party in advance andall discussions, to the extent permitted by such Governmental Authority, gives such other Party the opportunity to attend or participate, as applicabletelephone calls, and (iii) promptly furnish such other Party meetings with copies a Governmental Authority regarding the Transaction shall include representatives of all correspondenceParties. Subject to applicable Law, filings the Parties will consult and written communications between it and its Affiliates and representatives, on the one hand, and such Governmental Authority or its respective staff, on the cooperate with each other hand, with respect to this Agreement and the Transaction. Any materials exchanged in connection with this Section 7.2 may be redacted any analyses, appearances, presentations, memoranda, briefs, arguments and proposals made or withheld as necessary submitted to address reasonable privilege any Governmental Authority regarding the Transaction by or confidentiality concerns, and to remove references concerning on behalf of any competitively sensitive material; provided, that the parties Party. The Parties may, as they deem advisable and necessary, designate any competitively or commercially sensitive materials provided to the other under this Section 7.2 7.2(c) or otherwise 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.
(cd) Notwithstanding anything to In connection with and without limiting the contrary obligations set forth in this Section 7.2, Purchaser agrees to take all actions as may be required by any Governmental Authority to consummate the Transaction as expeditiously as possible, including (i) to sell, license or otherwise dispose of, or to hold separate and agree to sell, license or otherwise dispose of, any entities, assets or facilities of the Company and its Subsidiaries or, following the Closing, Purchaser and its Affiliates (including the Company and its Subsidiaries), (ii) terminate, amend or assign existing relationships and contractual rights and obligations of the Company or any of its Subsidiaries or of Purchaser or any of its Affiliates, (iii) amend, assign or terminate existing licenses or other agreements of the Company or any of its Subsidiaries or of Purchaser or any of its Affiliates and enter into such new licenses or other agreements, (iv) litigate (or defend) against any administrative or judicial action or proceeding (including any proceeding seeking a temporary restraining order or preliminary injunction) challenging the Transaction as violative of any Law, or (v) take any action required by a Governmental Authority as a condition to terminate an applicable waiting period or otherwise approve the Transaction without challenge. All such efforts shall be unconditional and shall not be limited by any lesser standard of efforts used in this Agreement, and in furtherance no actions taken pursuant to this Section 7.2(d) shall be considered for purposes of determining whether any Company Material Adverse Effect has occurred or may occur. Purchaser shall respond to and not in limitation of the foregoing, Purchaser and the Company shall, and shall cause each of their respective Affiliates to, use commercially reasonable efforts seek to resolve, avoid, or eliminate impediments or objections, if any, that may be resolve as promptly as reasonably practicable any objections asserted by any Governmental Authority with respect to the Transaction so as to enable the Merger to occur as promptly as practicable (and in any event prior to the Outside Date); provided that nothing in this Section 7.2 or anything else in this Agreement shall require the Company, Purchaser or any of their respective Subsidiaries or other Affiliates to (and neither the Company nor any of its Subsidiaries shall, or shall offer or agree to, do any of the following without Purchaser’s prior written consent): (i) propose, negotiate, commit to or effect, by consent decree, hold separate orders or otherwise, the sale, divesture, disposition, or license of any assets, properties, products, rights, services or businesses of Purchaser, UFP, UFP’s Subsidiaries, UFP’s Affiliates, or the Company or any of its Subsidiaries, or any interest therein, or agree to any other structural or conduct remedy, (ii) otherwise take or commit to take any actions that would limit Purchaser’s, UFP, UFP’s Subsidiaries, UFP’s Affiliates, or the Company’s or its Subsidiaries’ freedom of action with respect to, or its or their ability to retain any assets, properties, products, rights, services or businesses of Purchaser, UFP, UFP’s Subsidiaries, UFP’s Affiliates, or the Company or its Subsidiaries, or any interest or interests therein; or (iii) agree to do any of the foregoingTransaction.
(d) In the event any Legal Proceeding by any Governmental Authority or other third party is commenced which questions the validity or legality of, or otherwise challenges, the Transaction, or seeks damages in connection therewith, the Company and Purchaser shall, subject to the provisions set forth in this Section 7.2(d), reasonably cooperate and use commercially reasonable efforts to defend against such Legal Proceeding, and if an injunction or other Order is issued in any such Legal Proceeding, to use commercially reasonable efforts to have such injunction or other Order lifted or extinguished, and to cooperate reasonably regarding any other impediment to the consummation of the Transaction; provided that, unless the Company or Purchaser elects to do so, nothing in this Agreement shall require either Party to commence any litigation against any Governmental Authority; provided, further, that any Party not electing to commence any litigation against a Governmental Authority shall not be required to do so because the other Party did so elect. Purchaser shall, in consultation with the Company, be entitled to direct the defense of the Transaction before any Governmental Authority and to take the lead in the scheduling of, and strategic planning for, any meetings with, and the conducting of negotiations with, Governmental Authorities regarding (i) the expiration or termination of any applicable waiting period relating to the Merger under the HSR Act or (ii) the other Governmental Approvals, so long as Purchaser’s actions in connection therewith are otherwise in accordance with Purchaser’s obligations under this Section 7.2.
(e) The Company and Purchaser shall reasonably cooperate with each other and their respective representatives in obtaining any other Required Approvals that may be required in connection with the Transaction; provided that pursuing the Required Approvals described in Section 6.2 shall be governed by Section 6.2. Notwithstanding anything to the contrary in this Agreement, nothing herein shall obligate or be construed to obligate the Company or any of its Affiliates or Purchaser or any of its Affiliates to, and without the prior written consent of the Company or Purchaser, as applicable, neither the Company or any of its Affiliates nor Purchaser or any of its Affiliates shall make, or cause to be made, any payment or other accommodation to any third party in order to obtain the consent, waiver, approval, or authorization of such third party under any Contract or otherwise.
Appears in 1 contract
Samples: Stock Purchase Agreement (New Media Investment Group Inc.)
Cooperation; Filings and Approvals. (a) Upon Subject to the terms and subject conditions of this Agreement (including Section 6.2(d) and Section 10.1), the Parties shall cooperate with one another and use (and shall cause their respective Subsidiaries and Affiliates to use) their respective reasonable best efforts to promptly (i) take, or cause to be taken, all actions, and do, or cause to be done, all things, necessary, proper or advisable to cause the conditions to Closing to be satisfied as promptly as practicable and in any event by or before the Outside Date and to consummate and make effective, in the most expeditious manner practicable, the Transaction, including preparing and filing promptly and fully all documentation to effect all necessary filings, notices, petitions, statements, registrations, submissions of information, applications and other documents (including, any required filings under the HSR Act and the antitrust Laws of any other applicable jurisdiction), (ii) make all filings and obtain all approvals, consents, registrations, waiting period expirations or terminations, Permits, authorizations and other confirmations from any Governmental Authority or other Person necessary, proper or advisable to consummate the Transaction, including the Required Consents and (iii) make all filings and obtain all approvals, consents, registrations, authorizations and confirmations with respect to operating Permits (such as liquor licenses) necessary, proper or advisable for the continued operations of the Acquired Companies in the Ordinary Course of Business following the Closing; provided that neither the Company nor Sellers shall be obligated to pay any material fees, costs or consideration to any Person from whom any such approval, consent, registration, Permit, authorization or other confirmation is requested. For the avoidance of doubt, the obtaining of any such approval, consent, registration, Permit, authorization or other confirmation is not a condition to Closing unless expressly set forth in Article VII.
(b) In furtherance and not in limitation of the foregoing, (i) Parent agrees to make, or have its ultimate parent entity (as that term is defined in the HSR Act) or equity holders make, and the Company agrees to make an appropriate filing of a Notification and Report Form pursuant to the conditions HSR Act if required with respect to the Transaction as promptly as practicable following the date of this Agreement (but in no event later than ten (10) Business Days from the date of this Agreement, each of unless the Company and Purchaser shall Parent agree in writing to a later date) and to supply as promptly as practicable any additional information and documentary material that may be requested pursuant to the HSR Act and use commercially its reasonable best efforts (except where a different efforts standard is specifically contemplated by this Agreement, in which case, such different standard shall apply) to take, or cause to be taken, all other actions consistent with this Section 6.2 necessary to cause the expiration or termination of the applicable waiting periods, if any, under the HSR Act as soon as practicable and to do, in any event by or cause to be donebefore the Outside Date (including requesting early termination of the applicable waiting periods under the HSR Act). For the avoidance of doubt, and assist notwithstanding anything herein to the contrary, Parent shall direct and control all aspects of the parties’ efforts to obtain and determine the strategy with respect to obtaining, any clearances, consents, approvals and waivers under the HSR Act and the applicable antitrust Laws set forth in Section 6.2(b) of the Company Disclosure Schedule, if any, in each case required for the consummation of the Transaction.
(c) Each of the Company and Parent, as applicable, shall use its reasonable best efforts to (i) cooperate with such the other Party in doing, all things reasonably necessary, proper connection with any filing or advisable to consummate and make effective as promptly as practicable submission with a Governmental Authority in connection with the Transaction (including (i) preparing and filing, as promptly as practicable, in connection with any investigation or other inquiry by or before a Governmental Authority or other third party all documentation to effect all necessary filings and applications (including, relating to the extent necessaryTransaction, filings and applications pursuant to the HSR Act, which such necessary filings and applications pursuant to the HSR Act shall be made within two (2) Business Days after the date of this Agreement and the expenses of which shall be borne including any Legal Proceeding initiated by Purchaser), and filings and applications pursuant to any other Government Approvals, which such filings and applications shall be made within two (2) Business Days after the date of this Agreement) (and, absent the prior written consent of such other Party, not withdrawing any such filings and applications) and resubmitting any such filings and applications as soon as is reasonably practicable in the event such filings are rejected for any reason whatsoever by the relevant Governmental Authority a private party and (ii) using commercially reasonable efforts (except where keep the other Party informed in all respects and on a different efforts standard is specifically contemplated current basis of any communication received by this Agreementsuch Party from, or given by such Party to, the Federal Trade Commission, the Antitrust Division of the Department of Justice or any other Governmental Authority and of any communication received or given in connection with any Legal Proceeding by a private party, in which case, such different standard shall apply) each case regarding the Transaction. Subject to obtain, as promptly as applicable Laws relating to the exchange of information and to the extent practicable, all Required Approvals that are necessary, proper or advisable to consummate the Transaction). Notwithstanding the foregoing or anything else in this Agreement, neither the Company, Purchaser or any each of their Subsidiaries or Affiliates or any Equity Holder shall request early termination of the waiting period under the HSR Act. To the extent permitted by applicable Law, the Company and Purchaser Parent, shall deliver as promptly as practicable have the right to review in advance, and each will consult the appropriate Governmental Authorities other on, any additional information and documentary material that may be requested by filing made with, or written materials submitted to, any Governmental Authority in connection with the Transaction. Without limiting Transaction (although the foregoing, none of Parties will not be obligated to share with each other the Company, Purchaser or any of documents they include with their respective Affiliates shall extend any waiting period or comparable period notifications under the HSR Act or the other Governmental Approvals or enter into any agreement with any Governmental Authority not that are responsive to consummate the Transaction, except with the prior written consent Items 4(c) and 4(d) of the Company or Purchaser, as applicable, which shall not be unreasonably withheld, conditioned or delayedHSR notification.
(b) Each of the Company and Purchaser shall, to the extent permitted by applicable Law, (i) promptly notify such other Party of any written communication made or received by the Company or Purchaser, as applicable, with any Governmental Authority relating to antitrust Law (or any other filings or applications made pursuant to this Section 7.2) and regarding this Agreement or the Transaction (including the Merger), and, if permitted by applicable Law and reasonably practical, permit such other Party to review in advance any proposed written communication to any such Governmental Authority and incorporate such other Party’s (and any of their respective outside counsel’s) reasonable comments to such proposed written communication, (ii) not agree to participate in any in-person meeting or substantive discussion with any Governmental Authority in respect of any filing or application, investigation or inquiry relating to antitrust Law (or any other filing or application made pursuant to this Section 7.2) and regarding this Agreement or the Transaction unless, to the extent reasonably practicable, it consults with such other Party in advance and, to the extent permitted by such Governmental Authority, gives such other Party the opportunity to attend or participate, as applicable, and (iii) promptly furnish such other Party with copies of all correspondence, filings and written communications between it and its Affiliates and representatives, on the one hand, and such Governmental Authority or its respective staff, on the other hand, with respect to this Agreement and the Transaction. Any materials exchanged in connection with this Section 7.2 may be redacted or withheld as necessary to address reasonable privilege or confidentiality concerns, and to remove references concerning any competitively sensitive material; provided, that the parties The Parties may, as they deem advisable and necessary, designate any competitively sensitive materials provided to the other under this Section 7.2 6.2 as “outside counsel only.”
(c) Notwithstanding anything to the contrary set forth in this Agreement, and in furtherance and not in limitation of the foregoing, Purchaser and the Company shall, and shall cause each of their respective Affiliates to, use commercially reasonable efforts to resolve, avoid, or eliminate impediments or objections, if any, that may be asserted by any Governmental Authority with respect to the Transaction so as to enable the Merger to occur as promptly as practicable (and in any event prior to the Outside Date); provided that nothing in this Section 7.2 or anything else in this Agreement shall require the Company, Purchaser or any of their respective Subsidiaries or other Affiliates to (and neither the Company nor any of its Subsidiaries shall, or shall offer or agree to, do any of the following without Purchaser’s prior written consent): (i) propose, negotiate, commit to or effect, by consent decree, hold separate orders or otherwise, the sale, divesture, disposition, or license of any assets, properties, products, rights, services or businesses of Purchaser, UFP, UFP’s Subsidiaries, UFP’s Affiliates, or the Company or any of its Subsidiaries, or any interest therein, or agree to any other structural or conduct remedy, (ii) otherwise take or commit to take any actions that would limit Purchaser’s, UFP, UFP’s Subsidiaries, UFP’s Affiliates, or the Company’s or its Subsidiaries’ freedom of action with respect to, or its or their ability to retain any assets, properties, products, rights, services or businesses of Purchaser, UFP, UFP’s Subsidiaries, UFP’s Affiliates, or the Company or its Subsidiaries, or any interest or interests therein; or (iii) agree to do any of the foregoing.
(d) In the event any Legal Proceeding by any Governmental Authority or other third party is commenced which questions the validity or legality of, or otherwise challenges, the Transaction, or seeks damages in connection therewith, the Company and Purchaser shall, subject to the provisions set forth in this Section 7.2(d), reasonably cooperate and use commercially reasonable efforts to defend against such Legal Proceeding, and if an injunction or other Order is issued in any such Legal Proceeding, to use commercially reasonable efforts to have such injunction or other Order lifted or extinguished, and to cooperate reasonably regarding any other impediment to the consummation of the Transaction; provided that, unless the Company or Purchaser elects to do so, nothing in this Agreement shall require either Party to commence any litigation against any Governmental Authority; provided, further, that any Party not electing to commence any litigation against a Governmental Authority shall not be required to do so because the other Party did so elect. Purchaser shall, in consultation with the Company, be entitled to direct the defense of the Transaction before any Governmental Authority and to take the lead in the scheduling of, and strategic planning for, any meetings with, and the conducting of negotiations with, Governmental Authorities regarding (i) the expiration or termination of any applicable waiting period relating to the Merger under the HSR Act or (ii) the other Governmental Approvals, so long as Purchaser’s actions in connection therewith are otherwise in accordance with Purchaser’s obligations under this Section 7.2.
(e) The Company and Purchaser shall reasonably cooperate with each other and their respective representatives in obtaining any other Required Approvals that may be required in connection with the Transaction; provided that pursuing the Required Approvals described in Section 6.2 shall be governed by Section 6.2. Notwithstanding anything to the contrary in this Agreement, nothing herein shall obligate or be construed to obligate the Company or any of its Affiliates or Purchaser or any of its Affiliates to, and without the prior written consent of the Company or Purchaser, as applicable, neither the Company or any of its Affiliates nor Purchaser or any of its Affiliates shall make, or cause to be made, any payment or other accommodation to any third party in order to obtain the consent, waiver, approval, or authorization of such third party under any Contract or otherwise.counsel
Appears in 1 contract
Samples: Merger Agreement (MARRIOTT VACATIONS WORLDWIDE Corp)
Cooperation; Filings and Approvals. (a) Upon Subject to the terms and subject to the conditions of this AgreementAgreement (including Section 7.2(d)), each of the Company Parties shall cooperate with one another and Purchaser use (and shall use cause their respective Subsidiaries and Affiliates to use) their respective commercially reasonable efforts to promptly (except where a different efforts standard is specifically contemplated by this Agreement, in which case, such different standard shall applyi) to take, or cause to be taken, all actions actions, and to do, or cause to be done, and assist and cooperate with such other Party in doingall things, all things reasonably necessary, proper or advisable to consummate and make effective cause the conditions to Closing to be satisfied as promptly as practicable and to consummate and make effective, in the Transaction (most expeditious manner practicable, and in any event by or before the Outside Date, the Transaction, including (i) preparing and filing, as filing promptly as practicable, with any Governmental Authority or other third party and fully all documentation to effect all necessary filings filings, notices, petitions, statements, registrations, submissions of information, applications and applications (includingother documents; provided, to however, that none of Purchaser, Merger Sub, the extent necessary, filings and applications pursuant to Company or the HSR Act, which such necessary filings and applications pursuant to the HSR Act Equity Holders shall be made within two (2) Business Days after the date of this Agreement and the expenses of which shall be borne by Purchaser)obligated to pay any fees, and filings and applications pursuant costs or consideration to any other Government Approvals, which such filings and applications shall be made within two (2) Business Days after the date of this Agreement) (and, absent the prior written consent of such other Party, not withdrawing Person from whom any such filings and applications) and resubmitting any such filings and applications approval, consent, registration, Permit, authorization or other confirmation is requested, except as soon as is reasonably practicable in the event such filings are rejected for any reason whatsoever by the relevant Governmental Authority and (ii) using commercially reasonable efforts (except where a different efforts standard is specifically contemplated by this Agreement, in which case, such different standard shall apply) to obtain, as promptly as practicable, all Required Approvals that are necessary, proper or advisable to consummate the Transaction). Notwithstanding the foregoing or anything else otherwise set forth in this Agreement, neither . For the Company, Purchaser or any avoidance of their Subsidiaries or Affiliates or any Equity Holder shall request early termination of the waiting period under the HSR Act. To the extent permitted by applicable Lawdoubt, the Company and Purchaser shall deliver as promptly as practicable obtaining of any such approval, consent, registration, Permit, authorization or other confirmation is not a condition to the appropriate Governmental Authorities any additional information and documentary material that may be requested by any Governmental Authority Closing unless expressly set forth in connection with the Transaction. Without limiting the foregoing, none of the Company, Purchaser or any of their respective Affiliates shall extend any waiting period or comparable period under the HSR Act or the other Governmental Approvals or enter into any agreement with any Governmental Authority not to consummate the Transaction, except with the prior written consent of the Company or Purchaser, as applicable, which shall not be unreasonably withheld, conditioned or delayedArticle VIII.
(b) Each of the Company and Purchaser shall, to the extent permitted by applicable Law, (i) promptly notify such other Party of any written communication made or received by the Company or Purchaser, as applicable, shall use its commercially reasonable efforts to cooperate with the other in connection with any filing or submission with a Governmental Authority in connection with the Transaction and in connection with any investigation or other inquiry by or before a Governmental Authority relating to antitrust Law (or any other filings or applications made pursuant the Transaction. Subject to this Section 7.2) applicable Laws relating to the exchange of information and regarding this Agreement or to the Transaction (including extent practicable, each of the Merger)Equity Holders, andthe Company and Purchaser, if permitted by applicable Law and reasonably practical, permit such other Party shall have the right to review in advance and upon request, and each will consult the other on, any proposed filing made with, or written communication to any such Governmental Authority and incorporate such other Party’s (and any of their respective outside counsel’s) reasonable comments to such proposed written communicationmaterials submitted to, (ii) not agree to participate in any in-person meeting or substantive discussion with any Governmental Authority in respect of any filing or application, investigation or inquiry relating to antitrust Law (or any other filing or application made pursuant to this Section 7.2) and regarding this Agreement or connection with the Transaction unlessTransaction. In addition, to the extent reasonably practicable, it consults all in-person meetings with such other Party in advance and, to a Governmental Authority regarding the extent permitted by such Governmental Authority, gives such other Party the opportunity to attend or participate, as applicable, and (iii) promptly furnish such other Party with copies Transaction shall include representatives of all correspondenceParties. Subject to applicable Law, filings the Parties will consult and written communications between it and its Affiliates and representatives, on the one hand, and such Governmental Authority or its respective staff, on the cooperate with each other hand, with respect to this Agreement and the Transaction. Any materials exchanged in connection with this Section 7.2 may be redacted any analyses, appearances, presentations, memoranda, briefs, arguments and proposals made or withheld as necessary submitted to address reasonable privilege any Governmental Authority regarding the Transaction by or confidentiality concerns, and to remove references concerning on behalf of any competitively sensitive material; provided, that the parties may, as they deem advisable and necessary, designate any materials provided to the other under this Section 7.2 as “outside counsel onlyParty.”
(c) Notwithstanding anything to the contrary set forth in this Agreement, and in furtherance and not in limitation of the foregoing, Purchaser and the Company shall, and its Affiliates shall cause each of their respective Affiliates to, use commercially reasonable efforts to resolve, avoid, or eliminate impediments or objections, if any, that may not be asserted by any Governmental Authority with respect to the Transaction so as to enable the Merger to occur as promptly as practicable (and in any event prior to the Outside Date); provided that nothing in this Section 7.2 or anything else in this Agreement shall require the Company, Purchaser or any of their respective Subsidiaries or other Affiliates to (and neither the Company nor any of its Subsidiaries shall, or shall offer or agree to, do any of the following without Purchaser’s prior written consent): required (i) proposeto sell, negotiatelicense or otherwise dispose of, commit or to or effect, by consent decree, hold separate orders and agree to sell, license or otherwiseotherwise dispose of, any entities, assets or facilities of the saleCompany and its Subsidiaries or, divesturefollowing the Closing, dispositionPurchaser and its Affiliates (including the Surviving Corporation and its Subsidiaries), (ii) terminate, amend or license assign existing relationships and contractual rights and obligations of any assets, properties, products, rights, services or businesses of Purchaser, UFP, UFP’s Subsidiaries, UFP’s Affiliates, or the Company or any of its Subsidiaries, Subsidiaries or of Purchaser or any interest therein, or agree to any other structural or conduct remedy, (ii) otherwise take or commit to take any actions that would limit Purchaser’s, UFP, UFP’s Subsidiaries, UFP’s of its Affiliates, or the Company’s or its Subsidiaries’ freedom of action with respect to, or its or their ability to retain any assets, properties, products, rights, services or businesses of Purchaser, UFP, UFP’s Subsidiaries, UFP’s Affiliates, or the Company or its Subsidiaries, or any interest or interests therein; or (iii) agree to do any of the foregoing.
(d) In the event any Legal Proceeding by any Governmental Authority amend, assign or terminate existing licenses or other third party is commenced which questions the validity or legality of, or otherwise challenges, the Transaction, or seeks damages in connection therewith, the Company and Purchaser shall, subject to the provisions set forth in this Section 7.2(d), reasonably cooperate and use commercially reasonable efforts to defend against such Legal Proceeding, and if an injunction or other Order is issued in any such Legal Proceeding, to use commercially reasonable efforts to have such injunction or other Order lifted or extinguished, and to cooperate reasonably regarding any other impediment to the consummation agreements of the Transaction; provided that, unless the Company or Purchaser elects to do so, nothing in this Agreement shall require either Party to commence any litigation against any Governmental Authority; provided, further, that any Party not electing to commence any litigation against a Governmental Authority shall not be required to do so because the other Party did so elect. Purchaser shall, in consultation with the Company, be entitled to direct the defense of the Transaction before any Governmental Authority and to take the lead in the scheduling of, and strategic planning for, any meetings with, and the conducting of negotiations with, Governmental Authorities regarding (i) the expiration or termination of any applicable waiting period relating to the Merger under the HSR Act or (ii) the other Governmental Approvals, so long as Purchaser’s actions in connection therewith are otherwise in accordance with Purchaser’s obligations under this Section 7.2.
(e) The Company and Purchaser shall reasonably cooperate with each other and their respective representatives in obtaining any other Required Approvals that may be required in connection with the Transaction; provided that pursuing the Required Approvals described in Section 6.2 shall be governed by Section 6.2. Notwithstanding anything to the contrary in this Agreement, nothing herein shall obligate or be construed to obligate the Company or any of its Affiliates Subsidiaries or of Purchaser or any of its Affiliates and enter into such new licenses or other agreements, (iv) litigate (or defend) against any administrative or judicial action or proceeding (including any proceeding seeking a temporary restraining order or preliminary injunction) challenging the Transaction as violative of any Law or (v) take any action requested by a Governmental Authority as a condition to terminate an applicable waiting period or otherwise permit the Transaction to close without challenge.
(d) Nothing in this Agreement shall be construed as requiring the Company to agree to any terms or restrictions as a condition to, and without the prior written consent of the Company or Purchaserin connection with, as applicableobtaining any approvals, neither the Company consents, registrations, Permits, authorizations or confirmation from any of its Affiliates nor Purchaser or any of its Affiliates shall make, or cause to be made, any payment Governmental Authority or other accommodation to any third party in order to obtain Person unless such terms or restrictions are conditioned upon the consent, waiver, approval, or authorization of such third party under any Contract or otherwiseClosing.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Universal Forest Products Inc)
