Cooperation. The Company and Parent shall, subject to Section 6.2, cooperate with each other and use, and shall cause their respective Subsidiaries to, use their respective 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 on its part under this Agreement and applicable Laws to consummate and make effective the Merger and the other transactions contemplated by this Agreement as promptly as reasonably practicable (it being understood that nothing contained in this Agreement shall require Parent to obtain any consents, registrations, approvals, permits, expirations of waiting periods or authorizations prior to the Termination Date), including preparing and filing as promptly as reasonably practicable all documentation to effect all necessary notices, reports and other filings (including by filing no later than 20 calendar days after the date of this Agreement all applications required to be filed with the FCC and the notification and report form required under the HSR Act; provided that the failure to file within such 20-day period shall not constitute a breach of this Agreement) and to obtain as promptly as reasonably practicable all consents, registrations, approvals, permits, expirations of waiting periods 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. To the extent necessary or advisable to obtain any consent, registration, approval, permit, expiration of waiting period or authorization from any Governmental Entity in order to consummate the Merger prior to the Termination Date, (x) Parent shall, and shall cause its Subsidiaries to, and commit to cause the Company and its Subsidiaries to, take the actions and agree to those undertakings set forth on Section 6.5(a) of the Parent Disclosure Letter and (y) Parent shall, and shall cause its Subsidiaries to take, other actions involving Parent and its Subsidiaries that are in the aggregate de minimis (for the avoidance of doubt, not involving any divestiture, holding separate any business or assets or other similar action). Except as provided in the immediately preceding sentence, nothing in this Agreement shall require, or be construed to require, (i) Parent or any of its Subsidiaries to take or refrain from taking any action (including any divestiture, holding separate any business or assets or other similar action) or to agree to any restriction or condition with respect to any assets, operations, business or the conduct of business of Parent or any of its Subsidiaries and (ii) Parent, the Company or any of their respective Subsidiaries to take or refrain from taking any action (including any divestiture, holding separate any business or assets or other similar action) or to agree to any restriction or condition with respect to any assets, operations, business or the conduct of business of the Company and its Subsidiaries, if, in the case of this clause (ii), any such action, failure to act, restriction, condition or agreement, individually or in the aggregate, would reasonably be likely to have a Company Material Adverse Effect (read without regard to the exceptions set forth therein and without giving effect to clause (A) thereof) (except as provided in the immediately preceding sentence, the occurrence of any of the matters specified in clause (i) or clause (ii) above shall constitute a “Regulatory Material Adverse Effect”). In addition, in measuring whether a Regulatory Material Adverse Effect has occurred, the expected loss of any reasonably expected synergies (both cost and revenue) relating to any restriction or condition shall be taken into account as if the Company had an adverse effect to its financial condition and results of operations equal to the expected amount of applicable synergies affected by any such restriction or condition. The Company and its Subsidiaries shall not agree to any actions, restrictions or conditions with respect to obtaining any consents, registrations, approvals, permits, expirations of waiting periods or authorizations in connection with the Merger and the other transactions contemplated by this Agreement without the prior written consent of Parent (which, subject to this Section 6.5(a) may be withheld in Parent’s sole discretion). Subject to applicable Laws relating to the exchange of information, Parent and the Company shall have the right to review in advance, and to the extent practicable each will consult the other on, all of the information relating to Parent or the Company, as the case may be, and any of their respective Subsidiaries, that appears in any filing made with, or written materials submitted to, any third party and/or any Governmental Entity in connection with the Merger and the other transactions contemplated by this Agreement. To the extent permitted by applicable Law, each party shall provide the other with copies of all correspondence between it (or its advisors) and any Governmental Entity relating to the Merger and the other transactions contemplated by this Agreement and, to the extent reasonably practicable, all telephone calls and meetings with a Governmental Entity regarding the transactions contemplated by this Agreement shall include representatives of Parent and the Company. In exercising the foregoing rights, the Company and Parent each shall act reasonably and as promptly as reasonably practicable.
Appears in 2 contracts
Sources: Merger Agreement (At&t Inc.), Merger Agreement (Directv)
Cooperation. The Company (a) HEALTHSOUTH and Parent shallAdvantage Health shall together, subject or pursuant to Section 6.2an allocation of responsibility agreed to between them, (i) cooperate with each other one another in determining whether any filings required to be made or consents required to be obtained in any jurisdiction prior to the Effective Time in connection with the consummation of the transactions contemplated hereby and usecooperate in making any such filings promptly and in seeking to obtain timely any such consents, and shall cause their respective Subsidiaries to, (ii) use their respective reasonable best efforts to take cause to be lifted any injunction prohibiting the Merger, or any part thereof, or the other transactions contemplated hereby, and (iii) furnish to one another and to one another's counsel all such information as may be required to effect the foregoing actions.
(b) Subject to the terms and conditions herein provided, and unless this Plan of Merger shall have been validly terminated as provided herein, each of HEALTHSOUTH and Advantage Health shall use all reasonable efforts (i) to take, or cause to be taken taken, all actionsactions necessary to comply promptly with all legal requirements which may be imposed on such party (or any subsidiaries or affiliates of such party) with respect to the Plan of Merger and to consummate the transactions contemplated hereby, subject to the votes of its stockholders described above, and do or cause (ii) to be done all things, necessary, proper or advisable on its part under this Agreement obtain (and applicable Laws to consummate and make effective the Merger and cooperate with the other transactions contemplated by this Agreement as promptly as reasonably practicable (it being understood that nothing contained in this Agreement shall require Parent party to obtain obtain) any consentsconsent, registrationsauthorization, approvalsorder or approval of, permitsor any exemption by, expirations of waiting periods any governmental entity and/or any other public or authorizations prior to the Termination Date), including preparing and filing as promptly as reasonably practicable all documentation to effect all necessary notices, reports and other filings (including by filing no later than 20 calendar days after the date of this Agreement all applications private third party which is required to be filed with the FCC and the notification and report form required under the HSR Act; provided that the failure to file within obtained or made by such 20-day period shall not constitute a breach of this Agreement) and to obtain as promptly as reasonably practicable all consents, registrations, approvals, permits, expirations of waiting periods 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. To the extent necessary or advisable to obtain any consent, registration, approval, permit, expiration of waiting period or authorization from any Governmental Entity in order to consummate the Merger prior to the Termination Date, (x) Parent shall, and shall cause its Subsidiaries to, and commit to cause the Company and its Subsidiaries to, take the actions and agree to those undertakings set forth on Section 6.5(a) of the Parent Disclosure Letter and (y) Parent shall, and shall cause its Subsidiaries to take, other actions involving Parent and its Subsidiaries that are in the aggregate de minimis (for the avoidance of doubt, not involving any divestiture, holding separate any business or assets or other similar action). Except as provided in the immediately preceding sentence, nothing in this Agreement shall require, or be construed to require, (i) Parent or any of its Subsidiaries subsidiaries or affiliates in connection with this Plan of Merger and the transactions contemplated hereby. Each of HEALTHSOUTH and Advantage Health shall promptly cooperate with and furnish information to take the other in connection with any such burden suffered by, or refrain from taking any action (including any divestiturerequirement imposed upon, holding separate any business or assets or other similar action) or to agree to any restriction or condition with respect to any assets, operations, business or the conduct either of business of Parent or any of its Subsidiaries and (ii) Parent, the Company them or any of their respective Subsidiaries to take subsidiaries or refrain from taking any action (including any divestiture, holding separate any business or assets or other similar action) or to agree to any restriction or condition with respect to any assets, operations, business or the conduct of business of the Company and its Subsidiaries, if, in the case of this clause (ii), any such action, failure to act, restriction, condition or agreement, individually or in the aggregate, would reasonably be likely to have a Company Material Adverse Effect (read without regard to the exceptions set forth therein and without giving effect to clause (A) thereof) (except as provided in the immediately preceding sentence, the occurrence of any of the matters specified in clause (i) or clause (ii) above shall constitute a “Regulatory Material Adverse Effect”). In addition, in measuring whether a Regulatory Material Adverse Effect has occurred, the expected loss of any reasonably expected synergies (both cost and revenue) relating to any restriction or condition shall be taken into account as if the Company had an adverse effect to its financial condition and results of operations equal to the expected amount of applicable synergies affected by any such restriction or condition. The Company and its Subsidiaries shall not agree to any actions, restrictions or conditions with respect to obtaining any consents, registrations, approvals, permits, expirations of waiting periods or authorizations affiliates in connection with the Merger and the other transactions contemplated by this Agreement without the prior written consent of Parent (which, subject to this Section 6.5(a) may be withheld in Parent’s sole discretion). Subject to applicable Laws relating to the exchange of information, Parent and the Company shall have the right to review in advance, and to the extent practicable each will consult the other on, all of the information relating to Parent or the Company, as the case may be, and any of their respective Subsidiaries, that appears in any filing made with, or written materials submitted to, any third party and/or any Governmental Entity in connection with the Merger and the other transactions contemplated by this Agreement. To the extent permitted by applicable Law, each party shall provide the other with copies of all correspondence between it (or its advisors) and any Governmental Entity relating to the Merger and the other transactions contemplated by this Agreement and, to the extent reasonably practicable, all telephone calls and meetings with a Governmental Entity regarding the transactions contemplated by this Agreement shall include representatives of Parent and the Company. In exercising the foregoing rights, the Company and Parent each shall act reasonably and as promptly as reasonably practicableforegoing.
Appears in 2 contracts
Sources: Merger Agreement (Healthsouth Corp), Merger Agreement (Healthsouth Corp)
Cooperation. The Company (a) Each Party shall perform all obligations hereunder in good faith and Parent shall, subject use commercially reasonable efforts to Section 6.2, cooperate with each other and use, and shall cause their respective Subsidiaries to, use their respective 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 on its part under this Agreement and applicable Laws to consummate and make effective the Merger and the other transactions contemplated by this Agreement in all matters relating to the provision and receipt of the Services. In furtherance of the foregoing: (i) each Party shall timely notify the other in writing as promptly soon as reasonably practicable in advance of any circumstances that could have a material adverse effect on the Services or security and work with the other Party to minimize the effect of such circumstances; (it being understood that nothing contained ii) each Party shall timely provide information and documentation reasonably requested by the other Party to be used in this Agreement the provision or receipt of the Services hereunder; and (iii) each Recipient and its Affiliates shall require Parent use commercially reasonable efforts to obtain any consents, registrations, approvals, permits, expirations of waiting periods or authorizations prior (A) cooperate with the applicable Provider and its Affiliates with respect to the Termination Date), including preparing provision of any Service and filing as promptly as reasonably practicable all documentation (B) enable the applicable Provider and its Affiliates to effect all necessary notices, reports and other filings (including by filing no later than 20 calendar days after provide the date of this Agreement all applications required to be filed Services in accordance with the FCC and the notification and report form required under the HSR Act; provided that the failure to file within such 20-day period shall not constitute a breach of this Agreement) and to obtain . Except as promptly as reasonably practicable all consentsrequired by applicable Law, registrations, approvals, permits, expirations no Recipient or its Affiliates shall take any action that would interfere with or materially increase the costs of waiting periods and authorizations necessary or advisable to be obtained from any third party and/or any Governmental Entity in order to consummate the Merger or a Provider’s providing any of the other transactions contemplated by this Agreement. To Services without the extent necessary or advisable to obtain any consent, registration, approval, permit, expiration of waiting period or authorization from any Governmental Entity in order to consummate the Merger prior to the Termination Date, (x) Parent shall, and shall cause its Subsidiaries to, and commit to cause the Company and its Subsidiaries to, take the actions and agree to those undertakings set forth on Section 6.5(a) consent of the Parent Disclosure Letter Provider, such consent not to be unreasonably withheld, conditioned or delayed. In addition, each Recipient shall comply with any restrictions in the applicable licenses and (y) Parent shall, and shall cause its Subsidiaries to take, other actions involving Parent and its Subsidiaries agreements that the applicable Provider has with third parties that are used in the aggregate de minimis (for provision of Services of which the avoidance Recipient is made aware of doubt, not involving any divestiture, holding separate any business or assets or other similar action)by the Provider. Except as provided in the immediately preceding sentence, nothing in this Agreement shall require, required by applicable Law or be construed to require, (i) Parent or any of its Subsidiaries to take or refrain from taking any action (including any divestiture, holding separate any business or assets or other similar action) or to agree to any restriction or condition with respect to any assets, operations, business or the conduct of business of Parent or any of its Subsidiaries and (ii) Parent, the Company or any of their respective Subsidiaries to take or refrain from taking any action (including any divestiture, holding separate any business or assets or other similar action) or to agree to any restriction or condition with respect to any assets, operations, business or the conduct of business of the Company and its Subsidiaries, if, otherwise in the case of this clause (ii)a Required Change, no Provider or its Affiliates shall take any such action, failure action that would materially increase the amounts to act, restriction, condition or agreement, individually or in be paid by the aggregate, would reasonably be likely to have a Company Material Adverse Effect (read without regard to the exceptions set forth therein and without giving effect to clause (A) thereof) (except as provided in the immediately preceding sentence, the occurrence of any of the matters specified in clause (i) or clause (ii) above shall constitute a “Regulatory Material Adverse Effect”). In addition, in measuring whether a Regulatory Material Adverse Effect has occurred, the expected loss of any reasonably expected synergies (both cost and revenue) relating to any restriction or condition shall be taken into account as if the Company had an adverse effect to its financial condition and results of operations equal to the expected amount of applicable synergies affected by any such restriction or condition. The Company and its Subsidiaries shall not agree to any actions, restrictions or conditions Recipient with respect to obtaining any consents, registrations, approvals, permits, expirations of waiting periods or authorizations in connection with the Merger and the other transactions contemplated by this Agreement a Service without the prior written consent of Parent the Recipient, such consent not to be unreasonably withheld, conditioned or delayed and a Provider shall make commercially reasonable efforts to minimize all costs that will be passed through to a Recipient directly or indirectly.
(whichb) In furtherance of such cooperation, subject the Parties shall work together to this create procedural documentation for those Services as requested by the applicable Recipient to assist such Recipient in receiving such Services; provided that such documentation shall not establish service levels pursuant to Section 6.5(a) may be withheld in Parent’s sole discretion). Subject to applicable Laws relating to the exchange of information, Parent and the Company shall have the right to review in advance, and to the extent practicable each will consult the other on, all of the information relating to Parent 2.08 or the Company, as the case may be, and any of their respective Subsidiaries, that appears in any filing made with, or written materials submitted to, any third party and/or any Governmental Entity in connection with the Merger and the other transactions contemplated by otherwise under this Agreement. To ; and provided further that such documentation will be provided as a Knowledge Transfer Service at the extent permitted by applicable Law, each party shall provide the other with copies of all correspondence between it (or its advisors) and any Governmental Entity relating to the Merger and the other transactions contemplated by this Agreement and, to the extent reasonably practicable, all telephone calls and meetings with a Governmental Entity regarding the transactions contemplated by this Agreement shall include representatives of Parent and the Company. In exercising the foregoing rights, the Company and Parent each shall act reasonably and as promptly as reasonably practicableAgreed Price.
Appears in 2 contracts
Sources: Transition Services Agreement (American International Group, Inc.), Transition Services Agreement (Corebridge Financial, Inc.)
Cooperation. The Company (i) For so long as Purchaser has the right to exercise any pre-emptive rights pursuant to this Section 5, each party hereto shall use its commercially reasonable efforts to obtain all authorizations, consents, orders and Parent shall, subject to Section 6.2, cooperate approvals of all governmental authorities and officials that may be or become necessary in connection with each other and usePurchaser's exercise of such rights, and shall cause their respective Subsidiaries to, use their respective 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 on its part under this Agreement and applicable Laws to consummate and make effective the Merger and will cooperate reasonably with the other party in promptly seeking to obtain all such authorizations, consents, orders and approvals. The parties hereto agree to cooperate reasonably, complete and file any joint applications for any authorizations from any governmental authorities reasonably necessary or desirable to effectuate the transactions contemplated by this Agreement as promptly as reasonably practicable (it being understood Section 5. The parties hereto agree that nothing contained in this Agreement shall require Parent to obtain any consents, registrations, approvals, permits, expirations of waiting periods or authorizations prior to the Termination Date), including preparing and filing as promptly as reasonably practicable all documentation to effect all necessary notices, reports and they will keep each other filings (including by filing no later than 20 calendar days after the date of this Agreement all applications required to be filed with the FCC and the notification and report form required under the HSR Act; provided that the failure to file within such 20-day period shall not constitute a breach of this Agreement) and to obtain as promptly as reasonably practicable all consents, registrations, approvals, permits, expirations of waiting periods 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 apprised of the other transactions contemplated by this Agreement. To the extent necessary or advisable to obtain any consent, registration, approval, permit, expiration status of waiting period or authorization from any Governmental Entity in order to consummate the Merger prior to the Termination Date, (x) Parent shall, and shall cause its Subsidiaries to, and commit to cause the Company and its Subsidiaries to, take the actions and agree to those undertakings set forth on Section 6.5(a) of the Parent Disclosure Letter and (y) Parent shall, and shall cause its Subsidiaries to take, other actions involving Parent and its Subsidiaries that are in the aggregate de minimis (for the avoidance of doubt, not involving any divestiture, holding separate any business or assets or other similar action). Except as provided in the immediately preceding sentence, nothing in this Agreement shall require, or be construed to require, (i) Parent or any of its Subsidiaries to take or refrain from taking any action (including any divestiture, holding separate any business or assets or other similar action) or to agree to any restriction or condition with respect to any assets, operations, business or the conduct of business of Parent or any of its Subsidiaries and (ii) Parent, the Company or any of their respective Subsidiaries to take or refrain from taking any action (including any divestiture, holding separate any business or assets or other similar action) or to agree to any restriction or condition with respect to any assets, operations, business or the conduct of business of the Company and its Subsidiaries, if, in the case of this clause (ii), any such action, failure to act, restriction, condition or agreement, individually or in the aggregate, would reasonably be likely to have a Company Material Adverse Effect (read without regard to the exceptions set forth therein and without giving effect to clause (A) thereof) (except as provided in the immediately preceding sentence, the occurrence of any of the matters specified in clause (i) or clause (ii) above shall constitute a “Regulatory Material Adverse Effect”). In addition, in measuring whether a Regulatory Material Adverse Effect has occurred, the expected loss of any reasonably expected synergies (both cost and revenue) relating to any restriction or condition shall be taken into account as if the Company had an adverse effect to its financial condition and results of operations equal to the expected amount of applicable synergies affected by any such restriction or condition. The Company and its Subsidiaries shall not agree to any actions, restrictions or conditions with respect to obtaining any consents, registrations, approvals, permits, expirations of waiting periods or authorizations in connection with the Merger and the other transactions contemplated by this Agreement without the prior written consent of Parent (which, subject to this Section 6.5(a) may be withheld in Parent’s sole discretion). Subject to applicable Laws relating to the exchange of information, Parent and the Company shall have the right to review in advance, and to the extent practicable each will consult the other on, all exercise of the information relating to Parent or the Companypre-emptive rights contemplated under this Section 5, as the case may be, and any of their respective Subsidiaries, that appears in any filing made with, or written materials submitted to, any third party and/or any Governmental Entity in connection with the Merger and the other transactions contemplated by this Agreement. To the extent permitted by applicable Law, each party shall provide including reasonably promptly furnishing the other with copies of notices or other communications received by the Company or Purchaser, from all correspondence between it (or its advisors) third parties and any Governmental Entity relating governmental authorities with respect to the Merger and the other transactions pre-emptive rights contemplated by this Agreement andSection 5.
(ii) For so long as Purchaser has the right to exercise any pre-emptive rights pursuant to this Section 5, the Company and Purchaser agree to reasonably promptly prepare and file, if necessary, any filing under the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of 1976, as amended, with the Federal Trade Commission (the "FTC") and the Antitrust Division of the Department of Justice (the "DOJ") in order to enable Purchaser to exercise such pre-emptive rights under this Section 5. Each party hereby E-A-18 covenants to cooperate reasonably with the other such party to the extent reasonably practicablenecessary to assist in making any reasonable supplemental presentations to the FTC or the DOJ, all telephone calls and, if requested by the FTC or the DOJ, to reasonably promptly amend or furnish additional information thereunder.
(iii) Any reasonable out-of-pocket costs and meetings expenses arising in connection with a Governmental Entity regarding the transactions contemplated actions taken pursuant to this Section 5(e) shall be borne by this Agreement shall include representatives of Parent and the Company. In exercising the foregoing rights, the Company and Parent each shall act reasonably and as promptly as reasonably practicablePurchaser.
Appears in 2 contracts
Sources: Investment Agreement (Platinum Underwriters Holdings LTD), Investment Agreement (Platinum Underwriters Holdings LTD)
Cooperation. The (i) Further and subject to Section 6.1, upon Parent’s request, the Company and its respective Affiliates shall use commercially reasonable efforts (taking into account the resources available to the Company and other obligations of the Company arising under this Agreement) to cooperate as reasonably requested by Parent shallwith Parent’s efforts, at Parent’s sole cost and expense, in obtaining the following with respect to each Real Property (collectively, the “Third Party Reports” and each, a “Third Party Report”): (A) ALTA surveys (B) fee title insurance policies, including the delivery by the Company and its Affiliates, as applicable, of owner’s affidavits substantially in the form set forth in Section 6.20(b)(i) of the Company Disclosure Letter and non-imputation affidavits substantially in the form set forth in Section 6.20(b)(i) of the Company Disclosure Letter, in each case, which would not be effective except upon the Closing and shall be non-recourse to any Non-Party Affiliate, (C) zoning reports, (D) Phase I and, subject to the Company’s prior written approval (which approval shall not be unreasonably withheld, conditioned or delayed (it being agreed and understood that it shall not be deemed unreasonable for the Company to deny any request for Phase II environmental reports that were not recommended in the 2023 Phase I environmental reports provided to Parent by the Company), Phase II environmental reports, (E) property condition reports for all improvements located at the Real Property, (F) FIREEA appraisals, (G) useful life studies and (H) such other information or Third Party Reports as are specified by Parent and/or any counterparty for Real Property Backed Financing acting commercially reasonably; provided that, for the avoidance of doubt, Parent shall bear the expenses of the vendors contracted by Parent to prepare such Third Party Reports. Any access to be provided for any Third Party Report shall be upon reasonable prior notice and during normal business hours and only as is reasonably required and to the extent that it does not unreasonably disrupt normal business operations to permit such access. Parent agrees to promptly repair any damage or alteration to the Owned Real Property which results from Parent conducting the aforementioned activities to a condition reasonably equivalent to the condition it was in immediately prior to such activities. Parent shall promptly provide the Company with a copy of title commitments, surveys, and zoning reports generated in connection with Parent’s inspection of the Owned Real Property (“Shared Third Party Reports”). The Company does not assume any risk, liability, responsibility, or duty of care as to Parent or its employees, agents, surveyors, or contractors, and Parent acknowledges and agrees that Parent and its employees, agents, surveyors, and contractors enter the Owned Real Property and conduct any due diligence thereon at their own risk. Parent’s obligations regarding restoration shall survive the Closing or any earlier termination of this Agreement.
(ii) Upon Parent’s request, the Company and its respective Affiliates shall use commercially reasonable efforts (taking into account the resources available to the Company and other obligations of the Company arising under this Agreement) to promptly (A) send out lease estoppels (the cover letter and form estoppel being provided by Parent) to the counterparty to Lease or Lessor Lease, (B) forward to Parent any correspondence received in connection with such request and (C) with respect to any Material Lease send responses to the counterparty as reasonably requested and prepared by ▇▇▇▇▇▇ to secure an executed estoppel.
(iii) Nothing in this Section 6.26.20 will require the Company or its Subsidiaries to (A) waive or amend any terms of this Agreement, cooperate pay any fees or reimburse any expenses or otherwise issue or provide any indemnities prior to the Closing Date, for which it has not received prior reimbursement or is not otherwise indemnified or entitled to reimbursement by or on behalf of Parent; (B) execute any Contract, adopt any resolutions, execute any consents or otherwise take any corporate or similar action to be effective prior to the Closing; (C) take any action that would result in any employee, officer or director of (1) the Company or (2) any of its Subsidiaries incurring any personal liability with respect to any matters relating to Third Party Reports or Real Property Backed Financing; (D) provide any legal opinion on or prior to the Closing that is not contingent upon the Closing or that must be effective prior to the Effective Time (other than customary representation letters, financial officer certificates and bank authorization letters); (E) take any action that would conflict with or violate its Organizational Documents or any applicable Law in any material respect or would result in a material violation or breach of, or default under, any material Contract to which the Company or any of its Subsidiaries is a party; or (F) disclose or provide any information the disclosure to the extent it could result in (x) a loss or waiver of any privilege or (y) in the disclosure of any Trade Secrets not otherwise required to be provided under this Agreement or the violation of any confidentiality obligation; provided, however, that the Company, the Company’s Subsidiaries and their respective Representatives shall use reasonable best efforts to provide an alternative means of disclosing or providing such information, and in the case of any confidentiality obligation, the Company or such Subsidiary shall, to the extent permitted by such confidentiality obligations, notify Parent if any such information that Parent has specifically identified and requested is being withheld as a result of any such obligation of confidentiality.
(iv) Promptly upon request (but in any event within 30 days thereafter) by the Company, Parent will reimburse the Company for any reasonable and documented out-of-pocket costs and expenses (including reasonable and documented attorneys’ fees) incurred by the Company in connection with the cooperation of the Company contemplated by this Section 6.20; provided that the Company (and not Parent) shall be responsible for any amounts that would otherwise have been incurred in the absence of the transactions contemplated by this Agreement and no amounts in excess of $100,000 in the aggregate shall be payable without prior written approval from Parent, not to be unreasonably withheld, conditioned or delayed.
(v) The Company will be indemnified and held harmless by Parent from and against any and all out-of-pocket liabilities, losses, damages, claims, costs, expenses (including attorneys’ fees), interest, awards, judgments, penalties and amounts paid in settlement suffered or incurred by them in respect of any amounts to be paid to or in respect of any claims by or against or for any damages caused by (but excluding, for the avoidance of doubt, any liabilities, losses, damages, claims, costs, expenses, interest, awards, judgments, penalties and amounts payable in settlement, in each case resulting from any facts, events, conditions, circumstances or other findings set forth in any Third Party Reports and usenot caused by such vendors) the vendors conducting or providing the Third Party Reports in connection with the Company’s cooperation in obtaining the Third Party Reports or Real Property Backed Financing pursuant to this Agreement (including access provided to any Real Property for any Third Party Report pursuant to the terms hereof) or the provision of information utilized in connection therewith, in each case, other than as a result of (i) information relating to the Company and its Subsidiaries provided by or on behalf of the Company and its Subsidiaries in connection with the Third Party Reports or Real Property Backed Financing that is determined to be materially false or misleading or (ii) fraud, bad faith, gross negligence or willful misconduct by or on behalf of the Company, its Subsidiaries or any of their respective Representatives.
(vi) Between the Effective Time and the Closing Date, the Company and its Subsidiaries shall make reasonably available their real property lead personnel for a conference call approximately every other week to be held at a recurring mutually agreeable time to be held during normal business hours wherein the parties shall discuss the status of and work collaboratively towards producing all Third Party Reports, Lease Consents, and other matters for which Company and its Subsidiaries have cooperation obligations hereunder.
(vii) Prior to the Closing, the Company or its respective Subsidiaries shall use commercially reasonable efforts (taking into account the resources available to the Company and other obligations of the Company arising under this Agreement) to deliver any notice to or obtain any consent, authorization or waiver that may be required under any Material Lease from the respective landlord, or Lessor Lease from the respective tenant, thereunder in connection with the Transactions (collectively, the “Lease Consents”). Notwithstanding the foregoing, the Company shall only be obligated to obtain Lease Consents for Material Leases upon request by Parent and to the extent that Parent provides a form of notice requesting such Lease Consent including any information in the possession of Parent as may be required for the transferee in the applicable Material Lease in connection with the applicable Lease Consent (and, for the avoidance of doubt, the Company or its respective Subsidiaries will provide information in the possession of the Company or its respective Subsidiaries as may be required in the applicable Material Lease in connection with the applicable Lease Consent). Parent and Merger Sub shall, and shall cause their respective Subsidiaries Affiliates to, use their respective reasonable best efforts to take cooperate with the Company or cause to be taken all actions, and do or cause to be done all things, necessary, proper or advisable on its part under this Agreement and applicable Laws to consummate and make effective the Merger and the other transactions contemplated by this Agreement as promptly as reasonably practicable (it being understood that nothing contained in this Agreement shall require Parent to obtain any consents, registrations, approvals, permits, expirations of waiting periods or authorizations prior Subsidiary to the Termination Date)extent necessary in connection with obtaining such Lease Consent. In connection with the Lease Consents, including preparing and filing as promptly as reasonably practicable all documentation the Company or its Subsidiaries shall not be required to effect all necessary notices(A) make any payment of a consent fee, reports and “profit sharing” payment or other filings consideration (including by filing no later than 20 calendar days after increased or accelerated payments) or concede anything of monetary or economic value that Parent does not agree to reimburse, (B) amend, supplement or otherwise modify any such Material Lease or Lessor Lease or (C) agree or commit to do any of the date foregoing, in each case, for the purposes of this Agreement all applications required obtaining any Lease Consents. For the avoidance of doubt each of Parent, Guarantor and ▇▇▇▇▇▇ Sub acknowledges and agrees that obtaining the Lease Consents is not a condition to be filed with the FCC and obligation of the notification and report form required under the HSR Act; provided that the failure to file within such 20-day period shall not constitute a breach of this Agreement) and to obtain as promptly as reasonably practicable all consents, registrations, approvals, permits, expirations of waiting periods and authorizations necessary or advisable to be obtained from any third party and/or any Governmental Entity in order parties to consummate the Merger in accordance with the terms and provisions of this Agreement.
(viii) The Company or its respective Affiliate shall notify Parent promptly after knowledge of (A) any casualty affecting the Real Property having an estimated cost to restore greater than $1,250,000 individually, not in the aggregate, for a single Real Property and that is not insured or covered by insurance; and (B) any pending or threatened in writing condemnation of the other transactions contemplated by this Agreement. To the extent necessary or advisable to obtain any consent, registration, approval, permit, expiration of waiting period or authorization from any Governmental Entity in order to consummate the Merger prior to the Termination Date, (x) Parent shall, Real Property and shall cause its Subsidiaries that would reasonably be expected to, and commit to cause the Company and its Subsidiaries to, take the actions and agree to those undertakings set forth on Section 6.5(a) of the Parent Disclosure Letter and (y) Parent shall, and shall cause its Subsidiaries to take, other actions involving Parent and its Subsidiaries that are in the aggregate de minimis (for the avoidance of doubt, not involving any divestiture, holding separate any business or assets or other similar action). Except as provided in the immediately preceding sentence, nothing in this Agreement shall require, or be construed to require, (i) Parent or any of its Subsidiaries to take or refrain from taking any action (including any divestiture, holding separate any business or assets or other similar action) or to agree to any restriction or condition with respect to any assets, operations, business or the conduct of business of Parent or any of its Subsidiaries and (ii) Parent, the Company or any of their respective Subsidiaries to take or refrain from taking any action (including any divestiture, holding separate any business or assets or other similar action) or to agree to any restriction or condition with respect to any assets, operations, business or the conduct of business of the Company and its Subsidiaries, if, in the case of this clause (ii), any such action, failure to act, restriction, condition or agreement, individually or in the aggregate, would reasonably be likely to have a Company Material Adverse Effect Effect.
(read without regard ix) Prior to the exceptions set forth therein Closing, on a rolling basis, the Company or its respective Subsidiaries shall use commercially reasonable efforts (taking into account the resources available to the Company and without giving effect other obligations of the Company arising under this Agreement) to clause provide Parent an updated list of the assessor’s parcel number of each parcel of Owned Real Property and may update Section 4.19(b) of the Company Disclosure Letter with such parcel numbers.
(x) In the event that Parent notifies the Company of any Mandatory Cure Items: (A) thereofwithin sixty (60) (except days after the date hereof for those Mandatory Cure Items existing as provided in the immediately preceding sentence, the occurrence of any of the matters specified date hereof, (B) after the date hereof for those Mandatory Cure Items first existing after the date hereof that are not a result of the acts of Parent or its Representatives, and (C) as to all items pertaining to an assessor’s parcel number that was not contained in clause Section 4.19(b) of the Company Disclosure Letter on the date hereof (i) and are not a result of the acts of Parent or clause its Representatives), then the Company shall use commercially reasonable efforts (ii) above shall constitute a “Regulatory Material Adverse Effect”). In addition, in measuring whether a Regulatory Material Adverse Effect has occurred, the expected loss of any reasonably expected synergies (both cost and revenue) relating to any restriction or condition shall be taken taking into account as if the resources available to the Company had an adverse effect and other obligations of the Company arising under this Agreement) to its financial condition and results of operations equal pay or discharge and, if applicable, cause to be removed from the expected amount of applicable synergies affected by record any such restriction or condition. The Company and its Subsidiaries shall not agree to any actions, restrictions or conditions Mandatory Cure Items with respect to obtaining the Real Property on or prior to the Closing, and in any consentsevent shall not interfere with Parent’s efforts to remove Mandatory Cure Items or any other adverse items from the record. Without limitation of the foregoing, registrations, approvals, permits, expirations the Company agrees to make a written request within thirty (30) days after the date hereof to the Existing Credit Facility lender to provide draft forms of waiting periods or authorizations releases of Mandatory Cure Items in connection with the Merger Existing Credit Facility with a requested delivery date at least two (2) weeks prior to Closing.
(xi) The Company shall use commercially reasonable efforts (taking into account the resources available to the Company and other obligations of the other transactions contemplated Company arising under this Agreement) to cooperate with Parent to provide information reasonably requested by Parent about work costing in excess of $250,000 in the aggregate to the Owned Real Property or the Leased Real Property of a capital nature that has been completed or undertaken within the two (2) years prior to the date of this Agreement without or that occurs after the prior written consent date of Parent (whichthis Agreement. For any such information regarding work that occurs after the date of this Agreement, subject to this Section 6.5(a) may be withheld in Parent’s sole discretion). Subject to applicable Laws relating to the exchange of information, Parent and the Company shall have the right to review in advance, and to the extent practicable each will consult the other on, all of deliver the information relating to Parent or after the work is approved by the Company, as the case may be, and any of their respective Subsidiaries, that appears in any filing made with, or written materials submitted to, any third party and/or any Governmental Entity in connection with the Merger and the other transactions contemplated by this Agreement. To the extent permitted by applicable Law, each party shall provide the other with copies of all correspondence between it (or its advisors) and any Governmental Entity relating to the Merger and the other transactions contemplated by this Agreement and, to the extent reasonably practicable, all telephone calls and meetings with ’s committee handling such approvals on a Governmental Entity regarding the transactions contemplated by this Agreement shall include representatives of Parent and the Company. In exercising the foregoing rights, the Company and Parent each shall act reasonably and as promptly as reasonably practicablemonthly basis.
Appears in 2 contracts
Sources: Merger Agreement (SpartanNash Co), Merger Agreement (SpartanNash Co)
Cooperation. The Subject to the terms and conditions set forth in this Agreement, the Company and Parent shall, subject to Section 6.2, shall cooperate with each other and use, use (and shall cause their respective Subsidiaries to, use to use) their respective reasonable best efforts to take or cause to be taken all actions, and do or cause to be done all things, things reasonably necessary, proper or advisable on its 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 reasonably practicable (it being understood that nothing contained in this Agreement shall require Parent to obtain any consents, registrations, approvals, permits, expirations of waiting periods or authorizations prior to the Termination Date)practicable, including preparing and filing as promptly as reasonably practicable all documentation to effect all necessary notices, reports and other filings (including by filing no later than 20 calendar days after the date of this Agreement all applications required to be filed with the FCC and the notification and report form required under the HSR Act; provided that the failure to file within such 20-day period shall not constitute a breach of this Agreement) and to obtain as promptly as reasonably practicable all consents, registrations, approvals, permits, expirations of waiting periods permits 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. To In connection with and without limiting the extent necessary or advisable to obtain any consentforegoing, registration, approval, permit, expiration of waiting period or authorization from any Governmental Entity in order to consummate the Merger prior to the Termination Date, (x) Parent shall, and shall cause its Subsidiaries to, and commit to cause the Company and its Subsidiaries toParent shall each file or jointly file, take the actions and agree to those undertakings set forth on Section 6.5(a) of the Parent Disclosure Letter and (y) Parent shall, and shall cause its Subsidiaries to take, other actions involving Parent and its Subsidiaries that are in the aggregate de minimis (for the avoidance of doubt, not involving any divestiture, holding separate any business or assets or other similar action). Except as provided in the immediately preceding sentence, nothing in this Agreement shall requireif applicable, or cause to be construed filed, promptly after the date of this Agreement, any notifications, approval applications or the like required to requirebe filed under the HSR Act, (i) Parent or any of its Subsidiaries to take or refrain from taking any action (including any divestiture, holding separate any business or assets or the Foreign Antitrust Laws and all other similar action) or to agree to any restriction or condition antitrust and merger control laws with respect to any assets, operations, business or the conduct of business of transactions contemplated hereby and Parent or any of its Subsidiaries and (ii) Parent, the Company or any of their respective Subsidiaries to take or refrain from taking any action (including any divestiture, holding separate any business or assets or other shall pay all filing and similar action) or to agree to any restriction or condition with respect to any assets, operations, business or the conduct of business of the Company fees and its Subsidiaries, if, related expenses payable in the case of this clause (ii), any such action, failure to act, restriction, condition or agreement, individually or in the aggregate, would reasonably be likely to have a Company Material Adverse Effect (read without regard to the exceptions set forth therein and without giving effect to clause (A) thereof) (except as provided in the immediately preceding sentence, the occurrence of any of the matters specified in clause (i) or clause (ii) above shall constitute a “Regulatory Material Adverse Effect”). In addition, in measuring whether a Regulatory Material Adverse Effect has occurred, the expected loss of any reasonably expected synergies (both cost and revenue) relating to any restriction or condition shall be taken into account as if the Company had an adverse effect to its financial condition and results of operations equal to the expected amount of applicable synergies affected by any such restriction or conditionconnection therewith. The Company and its Subsidiaries Parent shall not agree to any actions, restrictions or conditions ensure their respective filings under the HSR Act are made within twenty business days after the date of this Agreement. The Company and Parent will each request early termination of the waiting period with respect to obtaining any consents, registrations, approvals, permits, expirations of waiting periods or authorizations in connection with the Merger and under the other transactions contemplated by this Agreement without the prior written consent of Parent (which, subject to this Section 6.5(a) may be withheld in Parent’s sole discretion)HSR Act. Subject to applicable Laws relating to the exchange of information, Parent and the Company shall have the right to review in advance, and to the extent practicable each will consult with the other onon and consider in good faith the views of the other in connection with, all of the information relating to Parent or the Company, as the case may be, and any of their respective Subsidiaries, that appears in any filing made with, or written materials submitted to, any third party and/or any Governmental Entity in connection with the Merger and the other transactions contemplated by this AgreementAgreement (including the Proxy Statement and material information, if any, provided to unions, works councils or other representative bodies or labor organizations). To The Company and Parent shall exchange and provide to their counsel any information necessary to prepare for or address any formal or informal request for information from any Government Antitrust Entity. Parent shall keep the extent permitted by applicable Law, each party shall provide Company apprised of any material changes in its capital structure or in the other with copies relative ownership of all correspondence between it (or its advisors) and any Governmental Entity relating to the Merger and the other transactions contemplated by this Agreement and, to the extent reasonably practicable, all telephone calls and meetings with a Governmental Entity regarding the transactions contemplated by this Agreement shall include representatives of Parent and the CompanyGuarantor. In exercising the foregoing rights, each of the Company and Parent each shall act reasonably and as promptly as reasonably practicable.
Appears in 2 contracts
Sources: Merger Agreement (ReAble Therapeutics Finance LLC), Merger Agreement (Djo Inc)
Cooperation. The Company (a) Upon the terms and Parent shall, subject to Section 6.2the conditions and other agreements set forth in this Agreement, cooperate with each other and use, and shall cause their respective Subsidiaries to, of the Parties to this Agreement agrees to use their respective its commercially reasonable best efforts to take take, or cause to be taken taken, all actions, and do to do, or cause to be done done, and to assist and cooperate with the other Parties in doing, all things, things necessary, proper or advisable on its part under this Agreement and applicable Laws to consummate and make effective effective, in the Merger and most expeditious manner practicable, the other transactions contemplated by this Agreement as promptly as reasonably practicable (it being understood that nothing contained in this Agreement shall require Parent to obtain any consents, registrations, approvals, permits, expirations of waiting periods or authorizations prior to the Termination Date), including preparing and filing as promptly as reasonably practicable all documentation to effect all necessary notices, reports and other filings (including by filing no later than 20 calendar days after the date of this Agreement all applications required to be filed with the FCC and the notification and report form required under the HSR Act; provided that the failure to file within such 20-day period shall not constitute a breach of this Agreement) and to obtain as promptly as reasonably practicable all consents, registrations, approvals, permits, expirations of waiting periods 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. To .
(b) During the extent necessary or advisable to obtain any consent, registration, approval, permit, expiration period from the date hereof until the earlier of waiting period or authorization from any Governmental Entity in order to consummate (i) the Merger prior to date this Agreement is terminated and (ii) the Termination Closing Date, (x) Parent each Seller shall, and shall cause its Subsidiaries each Acquired Company and Acquired Company Subsidiary to, use its commercially reasonable efforts to maintain all material policies of fire, liability, workers’ compensation, employment practices liability, property, casualty and commit to cause the Company and its Subsidiaries to, take the actions and agree to those undertakings set forth on Section 6.5(a) other forms of insurance existing as of the Parent Disclosure Letter and (y) Parent shall, and shall cause its Subsidiaries to take, other actions involving Parent and its Subsidiaries that are in the aggregate de minimis (date hereof maintained for the avoidance benefit of doubt, not involving any divestiture, holding separate any the business or assets properties of the Acquired Companies or other similar action). Except as provided in the immediately preceding sentence, nothing in this Agreement shall require, or be construed to require, Acquired Company Subsidiaries.
(c) During the period from the date hereof until the earlier of (i) Parent or any of its Subsidiaries to take or refrain from taking any action (including any divestiture, holding separate any business or assets or other similar action) or to agree to any restriction or condition with respect to any assets, operations, business or the conduct of business of Parent or any of its Subsidiaries date this Agreement is terminated and (ii) Parentthe Closing Date, the Company neither Sellers nor Buyer shall take any action or any of their respective Subsidiaries omit to take or refrain from taking any action for the purpose of directly or indirectly preventing, materially delaying or materially impeding (including any divestiture, holding separate any business or assets or other similar action) or to agree to any restriction or condition with respect to any assets, operations, business or the conduct of business of the Company and its Subsidiaries, if, in the case of this clause (ii), any such action, failure to act, restriction, condition or agreement, individually or in the aggregate, that would reasonably be likely expected to have a Company Material Adverse Effect (read without regard to prevent, materially delay or materially impede) the exceptions set forth therein and without giving effect to clause (A) thereof) (except as provided in the immediately preceding sentence, the occurrence consummation of any of the matters specified in clause (i) or clause (ii) above shall constitute a “Regulatory Material Adverse Effect”). In addition, in measuring whether a Regulatory Material Adverse Effect has occurred, the expected loss of any reasonably expected synergies (both cost and revenue) relating to any restriction or condition shall be taken into account as if the Company had an adverse effect to its financial condition and results of operations equal to the expected amount of applicable synergies affected by any such restriction or condition. The Company and its Subsidiaries shall not agree to any actions, restrictions or conditions with respect to obtaining any consents, registrations, approvals, permits, expirations of waiting periods or authorizations in connection with the Merger and the other transactions contemplated by this Agreement without the prior written consent of Parent (which, subject to this Section 6.5(a) may be withheld in Parent’s sole discretion). Subject to applicable Laws relating to the exchange of information, Parent and the Company shall have the right to review in advance, and to the extent practicable each will consult the other on, all of the information relating to Parent or the Company, as the case may be, and any of their respective Subsidiaries, that appears in any filing made with, or written materials submitted to, any third party and/or any Governmental Entity in connection with the Merger and the other transactions contemplated by this Agreement. To the extent permitted by applicable Law, each party shall provide the other with copies of all correspondence between it (or its advisors) and any Governmental Entity relating to the Merger and the other transactions contemplated by this Agreement and, to the extent reasonably practicable, all telephone calls and meetings with a Governmental Entity regarding the transactions contemplated by this Agreement or agree, commit in writing or otherwise, to take any such actions,
(d) With the prior consent of Sellers (which consent shall include representatives not be unreasonably withheld), at such times and on such dates during the period from the date hereof until the earlier of Parent (i) the date this Agreement is terminated and (ii) the Closing Date (such times and dates to be agreed upon by the Parties as soon as practicable after the date of this Agreement), (A) Sellers shall allow, and shall cause the Acquired Companies and the Company. In exercising Acquired Company Subsidiaries to allow, Buyer reasonable access to, and the foregoing rightsopportunity to meet with, the Employees and (B) Sellers shall cooperate with Buyer, and shall cause the Acquired Companies and the Acquired Company Subsidiaries to cooperate with Buyer, in its efforts to meet with the distributors of the Acquired Companies and Parent each the Acquired Company Subsidiaries to discuss the proposed transactions contemplated by this Agreement, employment and distributorship opportunities with Buyer and its Affiliates, and such other matters as may be agreed to by the Parties.
(e) Sellers, the Acquired Companies and the Acquired Company Subsidiaries shall act reasonably cooperate with Buyer from the date hereof through the Closing Date with respect to (i) identifying the Sellers Services (as defined in the Transition Services Agreement) to be provided pursuant to the Transition Services Agreement, (ii) identifying material computer programs and as promptly as reasonably practicabledatabases (other than shrink wrap, click wrap or commercially available, off-the-shelf computer programs or databases) that are used in the provision of the Sellers Services, (iii) creation of the migration plan called for in Section 4.2 thereof and (iv) developing initial drafts of the schedules to the Transition Services Agreement within ninety (90) days of the date hereof; provided, however, that none of Sellers, the Acquired Companies or the Acquired Company Subsidiaries shall be required to incur any out-of-pocket expenses in connection with the foregoing.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Protective Life Insurance Co), Stock Purchase Agreement (Protective Life Corp)
Cooperation. The Company (i) For so long as Purchaser has the right to exercise any pre-emptive rights pursuant to this Section 5, each party hereto shall use its commercially reasonable efforts to obtain all authorizations, consents, orders and Parent shall, subject to Section 6.2, cooperate approvals of all governmental authorities and officials that may be or become necessary in connection with each other and usePurchaser's exercise of such rights, and shall cause their respective Subsidiaries to, use their respective 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 on its part under this Agreement and applicable Laws to consummate and make effective the Merger and will cooperate reasonably with the other party in promptly seeking to obtain all such authorizations, consents, orders and approvals. The parties hereto agree to cooperate reasonably, complete and file any joint applications for any authorizations from any governmental authorities reasonably necessary or desirable to effectuate the transactions contemplated by this Agreement as promptly as reasonably practicable (it being understood Section 5. The parties hereto agree that nothing contained in this Agreement shall require Parent to obtain any consents, registrations, approvals, permits, expirations of waiting periods or authorizations prior to the Termination Date), including preparing and filing as promptly as reasonably practicable all documentation to effect all necessary notices, reports and they will keep each other filings (including by filing no later than 20 calendar days after the date of this Agreement all applications required to be filed with the FCC and the notification and report form required under the HSR Act; provided that the failure to file within such 20-day period shall not constitute a breach of this Agreement) and to obtain as promptly as reasonably practicable all consents, registrations, approvals, permits, expirations of waiting periods 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 apprised of the other transactions contemplated by this Agreement. To the extent necessary or advisable to obtain any consent, registration, approval, permit, expiration status of waiting period or authorization from any Governmental Entity in order to consummate the Merger prior to the Termination Date, (x) Parent shall, and shall cause its Subsidiaries to, and commit to cause the Company and its Subsidiaries to, take the actions and agree to those undertakings set forth on Section 6.5(a) of the Parent Disclosure Letter and (y) Parent shall, and shall cause its Subsidiaries to take, other actions involving Parent and its Subsidiaries that are in the aggregate de minimis (for the avoidance of doubt, not involving any divestiture, holding separate any business or assets or other similar action). Except as provided in the immediately preceding sentence, nothing in this Agreement shall require, or be construed to require, (i) Parent or any of its Subsidiaries to take or refrain from taking any action (including any divestiture, holding separate any business or assets or other similar action) or to agree to any restriction or condition with respect to any assets, operations, business or the conduct of business of Parent or any of its Subsidiaries and (ii) Parent, the Company or any of their respective Subsidiaries to take or refrain from taking any action (including any divestiture, holding separate any business or assets or other similar action) or to agree to any restriction or condition with respect to any assets, operations, business or the conduct of business of the Company and its Subsidiaries, if, in the case of this clause (ii), any such action, failure to act, restriction, condition or agreement, individually or in the aggregate, would reasonably be likely to have a Company Material Adverse Effect (read without regard to the exceptions set forth therein and without giving effect to clause (A) thereof) (except as provided in the immediately preceding sentence, the occurrence of any of the matters specified in clause (i) or clause (ii) above shall constitute a “Regulatory Material Adverse Effect”). In addition, in measuring whether a Regulatory Material Adverse Effect has occurred, the expected loss of any reasonably expected synergies (both cost and revenue) relating to any restriction or condition shall be taken into account as if the Company had an adverse effect to its financial condition and results of operations equal to the expected amount of applicable synergies affected by any such restriction or condition. The Company and its Subsidiaries shall not agree to any actions, restrictions or conditions with respect to obtaining any consents, registrations, approvals, permits, expirations of waiting periods or authorizations in connection with the Merger and the other transactions contemplated by this Agreement without the prior written consent of Parent (which, subject to this Section 6.5(a) may be withheld in Parent’s sole discretion). Subject to applicable Laws relating to the exchange of information, Parent and the Company shall have the right to review in advance, and to the extent practicable each will consult the other on, all exercise of the information relating to Parent or the Companypre-emptive rights contemplated under this Section 5, as the case may be, and any of their respective Subsidiaries, that appears in any filing made with, or written materials submitted to, any third party and/or any Governmental Entity in connection with the Merger and the other transactions contemplated by this Agreement. To the extent permitted by applicable Law, each party shall provide including reasonably promptly furnishing the other with copies of notices or other communications received by the Company or Purchaser, from all correspondence between it (or its advisors) third parties and any Governmental Entity relating governmental authorities with respect to the Merger and the other transactions pre-emptive rights contemplated by this Agreement andSection 5.
(ii) For so long as Purchaser has the right to exercise any pre-emptive rights pursuant to this Section 5, the Company and Purchaser agree to reasonably promptly prepare and file, if necessary, any filing under the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of 1976, as amended, with the Federal Trade Commission (the "FTC") and the Antitrust Division of the Department of Justice (the "DOJ") in order to enable Purchaser to exercise such pre-emptive rights under this Section 5. Each party hereby covenants to cooperate reasonably with the other such party to the extent reasonably practicablenecessary to assist in making any reasonable supplemental presentations to the FTC or the DOJ, all telephone calls and, if requested by the FTC or the DOJ, to reasonably promptly amend or furnish additional information thereunder.
(iii) Any reasonable out-of-pocket costs and meetings expenses arising in connection with a Governmental Entity regarding the transactions contemplated actions taken pursuant to this Section 5(e) shall be borne by this Agreement shall include representatives of Parent and the Company. In exercising the foregoing rights, the Company and Parent each shall act reasonably and as promptly as reasonably practicablePurchaser.
Appears in 2 contracts
Sources: Transfer Restrictions, Registration Rights and Standstill Agreement (Renaissancere Holdings LTD), Transfer Restrictions, Registration Rights and Standstill Agreement (Platinum Underwriters Holdings LTD)
Cooperation. The Company Subject to the terms and conditions set forth in this Agreement, the Company, Ultimate Parent and Parent shall, subject to Section 6.2, shall cooperate with each other and use, use (and shall cause their respective Subsidiaries to, use to use) their respective reasonable best efforts to take or cause to be taken all actions, and do or cause to be done all things, reasonably necessary, proper or advisable on its their part under this Agreement and applicable Laws Law to consummate and make effective the Merger and the other transactions contemplated by this Agreement as promptly soon as reasonably practicable (it being understood that nothing contained in this Agreement shall require Parent to obtain any consents, registrations, approvals, permits, expirations of waiting periods or authorizations prior to the Termination Date)practicable, including preparing and filing as promptly as reasonably practicable all documentation to effect all necessary notices, reports and other filings (including by filing no later than 20 calendar days after the date of this Agreement all applications required to be filed with the FCC and the notification and report form required under the HSR Act; provided that the failure to file within such 20-day period shall not constitute a breach of this Agreement) and to obtain as promptly as reasonably practicable all consents, registrations, approvals, permits, expirations of waiting periods permits and authorizations necessary or advisable to be obtained from any third party and/or any Governmental Entity, including any Government Antitrust Entity and the FCC, in order to consummate the Merger or any of the other transactions contemplated by this Agreement. To the extent necessary or advisable to obtain any consent, registration, approval, permit, expiration of waiting period or authorization from any Governmental Entity in order to consummate the Merger prior to the Termination Date, (x) Parent shall, and shall cause its Subsidiaries to, and commit to cause the Company and its Subsidiaries to, take the actions and agree to those undertakings set forth on Section 6.5(a) of the Parent Disclosure Letter and (y) Parent shall, and shall cause its Subsidiaries to take, other actions involving Parent and its Subsidiaries that are in the aggregate de minimis (for the avoidance of doubt, not involving any divestiture, holding separate any business or assets or other similar action). Except as provided in the immediately preceding sentence, nothing in this Agreement shall require, or be construed to require, (i) Parent or any of its Subsidiaries to take or refrain from taking any action (including any divestiture, holding separate any business or assets or other similar action) or to agree to any restriction or condition with respect to any assets, operations, business or the conduct of business of Parent or any of its Subsidiaries and (ii) Parent, the Company or any of their respective Subsidiaries to take or refrain from taking any action (including any divestiture, holding separate any business or assets or other similar action) or to agree to any restriction or condition with respect to any assets, operations, business or the conduct of business of the Company and its Subsidiaries, if, in the case of this clause (ii), any such action, failure to act, restriction, condition or agreement, individually or in the aggregate, would reasonably be likely to have a Company Material Adverse Effect (read without regard to the exceptions set forth therein and without giving effect to clause (A) thereof) (except as provided in the immediately preceding sentence, the occurrence of any of the matters specified in clause (i) or clause (ii) above shall constitute a “Regulatory Material Adverse Effect”). In addition, in measuring whether a Regulatory Material Adverse Effect has occurred, the expected loss of any reasonably expected synergies (both cost and revenue) relating to any restriction or condition shall be taken into account as if the Company had an adverse effect to its financial condition and results of operations equal to the expected amount of applicable synergies affected by any such restriction or condition. The Company and its Subsidiaries shall not agree to any actions, restrictions or conditions with respect to obtaining any consents, registrations, approvals, permits, expirations of waiting periods or authorizations in connection with the Merger and the other transactions contemplated by this Agreement without the prior written consent of Parent (which, subject to this Section 6.5(a) may be withheld in Parent’s sole discretion). Subject to applicable Laws Law relating to the exchange of information, Ultimate Parent and the Company shall have the right to review in advanceadvance and, and to the extent practicable practicable, each will consult with the other onon and consider in good faith the views of the other in connection with, all of the information relating to Ultimate Parent or the Company, as the case may be, and any of their respective SubsidiariesSubsidiaries and stockholders, that appears in any filing made with, or written materials submitted to, any third party and/or any Governmental Entity, including any Government Antitrust Entity and the FCC, in connection with the Merger and the other transactions contemplated by this AgreementAgreement (including the Proxy Statement and any information provided to any Government Antitrust Entity). To Such cooperation shall include, to the extent permitted by applicable Law, each party shall provide the other with providing copies of all correspondence between it (such documents or its advisors) filings prior to filing and any Governmental Entity relating to the Merger considering all reasonable additions, deletions and the other transactions contemplated by this Agreement and, to the extent reasonably practicable, all telephone calls and meetings with a Governmental Entity regarding the transactions contemplated by this Agreement shall include representatives of Parent and the Companychanges suggested in connection therewith. In exercising the foregoing rights, each of the Company and Ultimate Parent each shall act reasonably and as promptly as reasonably practicable. Each such party will promptly inform the other party of any oral communication with, and provide copies of written communications with, any Governmental Entity with respect to any such filings or any such transaction. No party hereto will independently participate in any formal meeting with any Governmental Entity in respect of any such filings, investigation, or other inquiry without giving the other parties hereto prior notice of the meeting, and, to the extent permitted by such Governmental Entity, the opportunity to attend and/or participate. Subject to applicable Law, the parties hereto 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 hereto related to proceedings under the HSR Act and other antitrust Laws; provided, however, that Ultimate Parent, after prior, good faith consultation with the Company, and after considering in good faith the Company’s views and comments, shall have the principal responsibility for devising and implementing the strategy for satisfying the condition set forth in Section 6.01(c) in accordance with the terms of this Section 5.02. Unless Ultimate Parent provides prior written consent (which consent may be withheld in Ultimate Parent’s sole discretion), the Company will not, and will cause its Subsidiaries not to, offer, accept, agree to or commit to agree to terms, conditions, liabilities, obligations, commitments, sanctions or restrictions or to take any action imposed upon or otherwise affecting, directly or indirectly, Ultimate Parent, the Company or any of their respective Subsidiaries, in connection with the consents, registrations, approvals, permits and authorizations necessary to be obtained from any Government Antitrust Entity in order to consummate the Merger or any Governmental Entity in connection with obtaining the CFIUS Clearance.
Appears in 2 contracts
Sources: Merger Agreement (Transcanada Corp), Merger Agreement (Columbia Pipeline Group, Inc.)
Cooperation. The Company and Parent shallBuyer, subject to Section 6.2, cooperate with each other and useEOIR, and the Sellers shall cause their respective Subsidiaries tocooperate fully, use their respective reasonable best efforts as and to take the extent reasonably requested by any other such Party, in connection with the filing of Tax Returns; any audit, litigation, or cause other proceeding with respect to be taken all actionsTaxes; and the determination whether to file a 338(h)(10) Election. Such cooperation may include, with respect to the Tax Returns described in SECTION 4.1
(A) the Buyer's consent to an election that does not adversely affect the Buyer or EOIR after the Closing and that is reasonably requested by the Sellers, and do EOIR's signing of such Tax Returns. Such cooperation also shall include the retention and (upon any Party's request) the provision of records and information that are reasonably relevant to any audit, litigation, or cause other proceeding and making employees available on a mutually convenient basis to be done all things, necessary, proper or advisable on its part under this Agreement provide additional information and applicable Laws to consummate and make effective the Merger explanation of any material provided hereunder. EOIR and the other transactions contemplated by this Agreement as promptly as reasonably practicable Sellers shall (it being understood that nothing contained in this Agreement shall require Parent i) retain all books and records with respect to obtain Tax matters pertinent to EOIR relating to any consentstaxable period beginning before the Closing until the expiration of the statute of limitations (and, registrations, approvals, permits, expirations of waiting periods or authorizations prior to the Termination Date)extent notified by the Buyer, including preparing and filing as promptly as reasonably practicable all documentation to effect all necessary notices, reports and other filings (including by filing no later than 20 calendar days after the date of this Agreement all applications required to be filed with the FCC and the notification and report form required under the HSR Act; provided that the failure to file within such 20-day period shall not constitute a breach of this Agreement) and to obtain as promptly as reasonably practicable all consents, registrations, approvals, permits, expirations of waiting periods 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. To the extent necessary or advisable to obtain any consent, registration, approval, permit, expiration of waiting period or authorization from any Governmental Entity in order to consummate the Merger prior to the Termination Date, (x) Parent shall, and shall cause its Subsidiaries to, and commit to cause the Company and its Subsidiaries to, take the actions and agree to those undertakings set forth on Section 6.5(aextensions thereof) of the Parent Disclosure Letter and (y) Parent shallrespective taxable periods, and shall cause its Subsidiaries to takeabide by all record retention agreements entered into with any taxing authority, other actions involving Parent and its Subsidiaries that are in the aggregate de minimis (for the avoidance of doubt, not involving any divestiture, holding separate any business or assets or other similar action). Except as provided in the immediately preceding sentence, nothing in this Agreement shall require, or be construed to require, (i) Parent or any of its Subsidiaries to take or refrain from taking any action (including any divestiture, holding separate any business or assets or other similar action) or to agree to any restriction or condition with respect to any assets, operations, business or the conduct of business of Parent or any of its Subsidiaries and (ii) Parentgive the other Party reasonable written notice prior to transferring, destroying, or discarding any such books and records and, if the Company or any of their respective Subsidiaries to take or refrain from taking any action (including any divestitureother Party so requests, holding separate any business or assets or other similar action) or to agree to any restriction or condition with respect to any assets, operations, business EOIR or the conduct of business of the Company and its Subsidiaries, if, in the case of this clause (ii), any such action, failure to act, restriction, condition or agreement, individually or in the aggregate, would reasonably be likely to have a Company Material Adverse Effect (read without regard to the exceptions set forth therein and without giving effect to clause (A) thereof) (except as provided in the immediately preceding sentence, the occurrence of any of the matters specified in clause (i) or clause (ii) above shall constitute a “Regulatory Material Adverse Effect”). In addition, in measuring whether a Regulatory Material Adverse Effect has occurred, the expected loss of any reasonably expected synergies (both cost and revenue) relating to any restriction or condition shall be taken into account as if the Company had an adverse effect to its financial condition and results of operations equal to the expected amount of applicable synergies affected by any such restriction or condition. The Company and its Subsidiaries shall not agree to any actions, restrictions or conditions with respect to obtaining any consents, registrations, approvals, permits, expirations of waiting periods or authorizations in connection with the Merger and the other transactions contemplated by this Agreement without the prior written consent of Parent (which, subject to this Section 6.5(a) may be withheld in Parent’s sole discretion). Subject to applicable Laws relating to the exchange of information, Parent and the Company shall have the right to review in advance, and to the extent practicable each will consult the other on, all of the information relating to Parent or the CompanySellers, as the case may be, shall allow the other Party to take possession of such books and records. Buyer, EOIR, and the Sellers shall, upon request, use their best efforts to obtain any of their respective Subsidiariescertificate or other document from any governmental authority or any other Person as may be necessary to mitigate, that appears in any filing made withreduce, or written materials submitted eliminate any Tax that could be imposed (including, but not limited to, any third party and/or any Governmental Entity in connection with the Merger and the other transactions contemplated by this Agreement. To the extent permitted by applicable Law, each party shall provide the other with copies of all correspondence between it (or its advisors) and any Governmental Entity relating respect to the Merger and the other transactions contemplated by this Agreement and, to the extent reasonably practicable, all telephone calls and meetings with a Governmental Entity regarding the transactions contemplated by in this Agreement shall include representatives of Parent and the Company. In exercising the foregoing rights, the Company and Parent each shall act reasonably and as promptly as reasonably practicableAgreement).
Appears in 2 contracts
Sources: Stock Purchase Agreement (Technest Holdings Inc), Stock Purchase Agreement (Markland Technologies Inc)
Cooperation. Following the execution of this Agreement, Purchaser and the Company agree as follows:
(a) The parties and their Affiliates shall each use their reasonable efforts, and shall cooperate fully with each other in preparing, filing, prosecuting, and taking any other actions with respect to, any filings (other than filings with the FCC, which are provided for in clause (b) below), applications, requests, or actions which are or may be necessary to obtain the consents, approvals, authorizations or other orders of any Governmental Authority which are or may be necessary in order to accomplish the transactions contemplated by this Agreement; and, without limiting the generality of the foregoing, the parties and their Affiliates shall use their respective reasonable efforts to prepare and file as promptly as practicable, but in any event no later than 15 Business Days after the date hereof, all of the information called for in the Notification and Report Form required under the HSR Act and to prepare and file any supplemental information, also in a timely fashion, which may be required by the United States Department of Justice or the Federal Trade Commission pursuant to such Notification and Report Form Filings, and otherwise to use their respective reasonable efforts to obtain the requisite clearances.
(b) The parties and their Affiliates shall cooperate fully with each other in preparing, filing, prosecuting, and taking any other actions with respect to filings with the FCC related to the transactions contemplated by this Agreement, including, without limitation, preparation of an application for the assignment of all of the FCC Licenses to Purchaser and any filings by Purchaser requesting temporary waivers for no more than nine months of the FCC's applicable ownership rules necessary to permit the parties to consummate the transactions contemplated by this Agreement. As promptly as practicable, but in any event not later than September 25, 1998, the Company and Purchaser shall jointly file the application with the FCC requesting the FCC Consent, including, without limitation, requesting, consenting to, and taking and otherwise seeking any action in connection with a conditional waiver of the FCC's Duopoly Rule. The Company and Parent shall, subject to Section 6.2, cooperate with each other and use, and Purchaser shall cause their respective Subsidiaries to, use their respective reasonable best efforts, diligently take all necessary and proper actions and provide any additional information requested by the FCC in order to obtain promptly the FCC Consent. Notwithstanding the foregoing or any other provision of this Agreement, neither Purchaser nor its officers, directors or Affiliates shall request a permanent waiver of the FCC's applicable ownership rules or request, consent to, take or otherwise seek or pursue any action that is inconsistent with the transactions contemplated by this Agreement or that reasonably could be expected to materially impede or materially delay the FCC Consent or otherwise materially impede or materially delay the consummation of the transactions contemplated by this Agreement; and the receipt of any permanent waiver of the foregoing FCC rules shall not be a condition to the obligation of Purchaser to consummate the transactions contemplated hereby. Neither Purchaser nor any of its officers, directors or Affiliates will take any action that would result in any change in the matters set forth in Section 4.7 hereof that would reasonably be expected to materially delay or otherwise materially impair Purchaser's ability to consummate the transactions contemplated hereby. After the date hereof, Purchaser or its Affiliates may enter into transactions that implicate the FCC multiple ownership rules so long as such transactions would not reasonably be expected to materially impede or materially delay the Closing
(i) If Purchaser (or its Affiliates) or the Company receives an administrative or other order or notification relating to any violation or claimed violation of the rules and regulations of the FCC, or of any Governmental Authority, that could affect Purchaser's or the Company's ability to consummate the transactions contemplated hereby, or (ii) should Purchaser (or its Affiliates) become aware of any fact (including any change in law or regulations (or any interpretation thereof by the FCC)) relating to the qualifications of Purchaser (and its controlling persons) that reasonably could be expected to cause the FCC to withhold the FCC Consent, Purchaser (in the case of clauses (i) and (ii)) or the Company (in the case of clause (i)) shall promptly notify the other party or parties thereof and shall use its reasonable best efforts to take such steps as may be necessary to remove any such impediment to the transactions contemplated by this Agreement; and no such notification shall affect the representations or warranties of the parties or the conditions to their respective obligations hereunder.
(d) The parties shall each use their reasonable best efforts to obtain as promptly as reasonably practical all consents that may be required in connection with the assignment to the Purchaser at Closing of all the Company's right, title and interest in and to all Material Contracts as such are acquired by the Company pursuant to the Gannett Purchase Agreement and all other agreements of the Business to which the Company is a party, provided that neither the Company nor Purchaser shall be required to make any payment to any party to any such Material Contract or other agreement in order to obtain any such consent.
(e) To the extent that there are third-party insurance policies maintained by the Company covering any Claims or Damages relating to the assets, business, operations, conduct and employees (including, without limitation, former employees) of the Business arising out of or relating to occurrences prior to the Closing, the Company shall use all reasonable efforts to cause Purchaser to be named as an additional insured with respect to such policies.
(f) Subject to the terms and conditions of this Agreement, each of the parties agrees to use its reasonable efforts to take, or cause to be taken taken, all actionsactions and to do, and do or cause to be done done, all things, things necessary, proper or advisable on its part under this Agreement and applicable Laws to consummate and make effective the Merger Closing and the other transactions contemplated by this Agreement hereby as promptly soon as reasonably practicable (it being understood that nothing contained in this Agreement shall require Parent to obtain any consents, registrations, approvals, permits, expirations of waiting periods or authorizations prior to the Termination Date), including preparing and filing as promptly as reasonably practicable all documentation to effect all necessary notices, reports and other filings (including by filing no later than 20 calendar days after the date of this Agreement all applications required to be filed with the FCC and the notification and report form required under the HSR Act; provided that the failure to file within such 20-day period shall not constitute a breach of this Agreement) and to obtain as promptly as reasonably practicable all consents, registrations, approvals, permits, expirations of waiting periods 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. To the extent necessary or advisable to obtain any consent, registration, approval, permit, expiration of waiting period or authorization from any Governmental Entity in order to consummate the Merger prior to the Termination Date, (x) Parent shall, and shall cause its Subsidiaries to, and commit to cause the Company and its Subsidiaries to, take the actions and agree to those undertakings set forth on Section 6.5(a) of the Parent Disclosure Letter and (y) Parent shall, and shall cause its Subsidiaries to take, other actions involving Parent and its Subsidiaries that are in the aggregate de minimis (for the avoidance of doubt, not involving any divestiture, holding separate any business or assets or other similar action). Except as provided in the immediately preceding sentence, nothing in this Agreement shall require, or be construed to require, (i) Parent or any of its Subsidiaries to take or refrain from taking any action (including any divestiture, holding separate any business or assets or other similar action) or to agree to any restriction or condition with respect to any assets, operations, business or the conduct of business of Parent or any of its Subsidiaries and (ii) Parent, the Company or any of their respective Subsidiaries to take or refrain from taking any action (including any divestiture, holding separate any business or assets or other similar action) or to agree to any restriction or condition with respect to any assets, operations, business or the conduct of business of the Company and its Subsidiaries, if, in the case of this clause (ii), any such action, failure to act, restriction, condition or agreement, individually or in the aggregate, would reasonably be likely to have a Company Material Adverse Effect (read without regard to the exceptions set forth therein and without giving effect to clause (A) thereof) (except as provided in the immediately preceding sentence, the occurrence of any of the matters specified in clause (i) or clause (ii) above shall constitute a “Regulatory Material Adverse Effect”). In addition, in measuring whether a Regulatory Material Adverse Effect has occurred, the expected loss of any reasonably expected synergies (both cost and revenue) relating to any restriction or condition shall be taken into account as if the Company had an adverse effect to its financial condition and results of operations equal to the expected amount of applicable synergies affected by any such restriction or condition. The Company and its Subsidiaries shall not agree to any actions, restrictions or conditions with respect to obtaining any consents, registrations, approvals, permits, expirations of waiting periods or authorizations in connection with the Merger and the other transactions contemplated by this Agreement without the prior written consent of Parent (which, subject to this Section 6.5(a) may be withheld in Parent’s sole discretion). Subject to applicable Laws relating to the exchange of information, Parent and the Company shall have the right to review in advance, and to the extent practicable each will consult the other on, all of the information relating to Parent or the Company, as the case may be, and any of their respective Subsidiaries, that appears in any filing made with, or written materials submitted to, any third party and/or any Governmental Entity in connection with the Merger and the other transactions contemplated by this Agreement. To the extent permitted by applicable Law, each party shall provide the other with copies of all correspondence between it (or its advisors) and any Governmental Entity relating to the Merger and the other transactions contemplated by this Agreement and, to the extent reasonably practicable, all telephone calls and meetings with a Governmental Entity regarding the transactions contemplated by this Agreement shall include representatives of Parent and the Company. In exercising the foregoing rights, the Company and Parent each shall act reasonably and as promptly as reasonably practicable.
Appears in 2 contracts
Sources: Purchase Agreement (Sinclair Broadcast Group Inc), Purchase Agreement (Ackerley Group Inc)
Cooperation. The Company (a) Parent and ▇▇▇▇▇▇▇▇ Beach Holding will comply fully with all notification, reporting and other requirements under any Law or Order applicable to the Spin-Off. Parent shalland ▇▇▇▇▇▇▇▇ Beach Holding will use their commercially reasonable efforts to obtain, subject as soon as practicable, the authorizations that may be or become necessary for the performance of their respective obligations under this Agreement and the consummation of the Spin-Off and will cooperate fully with each other in promptly seeking to obtain such authorizations, except that no such Party will be required to make any material expenditure in connection with its obligations under this Section 6.24.3. Where the cooperation of third parties such as insurers or trustees would be necessary in order for a Party to completely fulfill its obligations under this Agreement, such Party will use commercially reasonable efforts to cause such third parties to provide such cooperation, except that no Party will be required to make any material expenditure in connection therewith.
(b) In addition to the actions specifically provided for elsewhere in this Agreement, each of the Parties will cooperate with each other and use, use (and shall will cause their respective Subsidiaries and Affiliates to use) reasonable best efforts, prior to, use their respective reasonable best efforts at and after the Spin-Off, to take take, or to cause to be taken taken, all actions, and do to do, or to cause to be done done, all things, necessary, proper or advisable things reasonably necessary on its part permitted under this Agreement and applicable Laws law to consummate and make effective the Merger and the other transactions contemplated by this Agreement as promptly as reasonably practicable (it being understood that nothing contained in this Agreement shall require Parent to obtain any consents, registrations, approvals, permits, expirations of waiting periods or authorizations prior to the Termination Date), including preparing and filing as promptly as reasonably practicable all documentation to effect all necessary notices, reports and other filings (including by filing no later than 20 calendar days after the date of this Agreement all applications required to be filed with the FCC and the notification and report form required under the HSR Act; provided that the failure to file within such 20-day period shall not constitute a breach of this Agreement) and to obtain as promptly as reasonably practicable all consents, registrations, approvals, permits, expirations of waiting periods 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. To the extent necessary or advisable to obtain any consent, registration, approval, permit, expiration of waiting period or authorization from any Governmental Entity in order to consummate the Merger prior to the Termination Date, (x) Parent shall, and shall cause its Subsidiaries to, and commit to cause the Company and its Subsidiaries to, take the actions and agree to those undertakings set forth on Section 6.5(a) of the Parent Disclosure Letter and (y) Parent shall, and shall cause its Subsidiaries to take, other actions involving Parent and its Subsidiaries that are in the aggregate de minimis (for the avoidance of doubt, not involving any divestiture, holding separate any business or assets or other similar action). Except as provided in the immediately preceding sentence, nothing in this Agreement shall require, or be construed to require, (i) Parent or any of its Subsidiaries to take or refrain from taking any action (including any divestiture, holding separate any business or assets or other similar action) or to agree to any restriction or condition with respect to any assets, operations, business or the conduct of business of Parent or any of its Subsidiaries and (ii) Parent, the Company or any of their respective Subsidiaries to take or refrain from taking any action (including any divestiture, holding separate any business or assets or other similar action) or to agree to any restriction or condition with respect to any assets, operations, business or the conduct of business of the Company and its Subsidiaries, if, in the case of this clause (ii), any such action, failure to act, restriction, condition or agreement, individually or in the aggregate, would reasonably be likely to have a Company Material Adverse Effect (read without regard to the exceptions set forth therein and without giving effect to clause (A) thereof) (except as provided in the immediately preceding sentence, the occurrence of any of the matters specified in clause (i) or clause (ii) above shall constitute a “Regulatory Material Adverse Effect”). In addition, in measuring whether a Regulatory Material Adverse Effect has occurred, the expected loss of any reasonably expected synergies (both cost and revenue) relating to any restriction or condition shall be taken into account as if the Company had an adverse effect to its financial condition and results of operations equal to the expected amount of applicable synergies affected by any such restriction or condition. The Company and its Subsidiaries shall not agree to any actions, restrictions or conditions with respect to obtaining any consents, registrations, approvals, permits, expirations of waiting periods or authorizations in connection with the Merger Transition Services Agreement and the other transactions contemplated by this Tax Allocation Agreement without the prior written consent of Parent (which, subject to this Section 6.5(a) may be withheld in Parent’s sole discretion). Subject to applicable Laws relating to the exchange of information, Parent and the Company shall have the right to review in advance, and to the extent practicable each will consult the other on, all of the information relating to Parent or the Company, as the case may be, and any of their respective Subsidiaries, that appears in any filing made with, or written materials submitted to, any third party and/or any Governmental Entity in connection with the Merger and the other transactions contemplated by this Agreement. To the extent permitted by applicable Law, each party shall provide the other with copies of all correspondence between it (or its advisors) and any Governmental Entity relating to the Merger and the other transactions contemplated by this Agreement and, to the extent reasonably practicable, all telephone calls and meetings with a Governmental Entity regarding the transactions contemplated by this Agreement shall include representatives of Parent and the Company. In exercising the foregoing rights, the Company and Parent each shall act reasonably and as promptly as reasonably practicable.
(c) After the Spin-Off, except in the case of any Action by one Party or its Affiliates against the other Party or its Affiliates, each Party will use its commercially reasonable efforts to make available to the other, upon written request, the former, current and future directors, officers, employees, other personnel and agents of such Party as witnesses and any books, records or other documents within its control or which it otherwise has the ability to make available, to the extent that any such Person (giving consideration to business demands of such directors, officers, employees, other personnel and agents) or books, records or other documents are reasonably requested in connection with any Action in which the requesting Party may from time to time be involved or any other reasonable business purpose, regardless of whether, in the case of an Action, such Action is a matter with respect to which indemnification may be sought hereunder.
(d) The obligation of the Parties to provide witnesses pursuant to this Section 4.3 is intended to be interpreted in a manner so as to facilitate cooperation.
Appears in 2 contracts
Sources: Separation Agreement, Separation Agreement (Hamilton Beach Brands Holding Co)
Cooperation. The (i) Subject to the terms and conditions set forth in this Agreement, the Company and Parent shallEFIH, subject to Section 6.2on the one hand, and the Purchasers, on the other hand, shall cooperate with each other and use, and shall cause their respective Subsidiaries to(other than the Oncor Entities, subject to Section 6.23) to use their respective reasonable best efforts to take or cause to be taken all actions, and do or cause to be done done, and assist and cooperate with the other parties and the Oncor Entities in doing, all things, things reasonably necessary, proper or advisable on its part under this Agreement and applicable Laws to consummate and make effective the Merger and the other transactions contemplated by this Agreement Transactions, as promptly as reasonably practicable (it being understood that nothing contained in this Agreement shall require Parent to obtain any consents, registrations, approvals, permits, expirations of waiting periods or authorizations prior to the Termination Date)practicable, including negotiating, preparing and filing as promptly as reasonably practicable all documentation to effect all necessary notices, reports and other filings (including by filing no later than 20 calendar days after the date of this Agreement all applications required to be filed with the FCC and the notification and report form required under the HSR Act; provided that the failure to file within such 20-day period shall not constitute a breach of this Agreement) and to obtain as promptly as reasonably practicable all consents, registrations, approvals, permits, expirations of waiting periods permits and authorizations necessary or advisable to be obtained from any third party and/or any Governmental Entity in order connection with the execution, delivery and performance of this Agreement and the Transactions; provided that notwithstanding the foregoing, or anything else in this Agreement to consummate the Merger contrary, the Company’s and its Subsidiaries’ (other than the Oncor Entities, subject to Section 6.23) sole obligations with respect to (i) the Minority Interest Contribution and/or the EFIH Parent Issuance are set forth in Section 1.6, Section 6.20 and Section 6.22 and (ii) the IPO Conversion Plan are set forth in Section 1.1, Section 6.19 and Section 6.23.
(ii) The Company and the Purchasers shall use their respective reasonable best efforts to make all filings required of the Company, EFIH, Parent and OV2 under the HSR Act in respect of the applicable Transactions as promptly as reasonably practicable after the date hereof (unless otherwise mutually agreed). The filing fees required under the HSR Act shall be at Parent’s sole cost and expense (and shall not be subject to reimbursement pursuant to Section 6.25 or any of other Transaction Agreement, including the other transactions contemplated by this Plan Support Agreement). To the extent necessary or advisable to obtain any consentThe Company agrees that, registration, approval, permit, expiration of waiting period or authorization from any Governmental Entity in order to consummate the Merger prior to the Termination Datetermination of this Agreement, it will not withdraw any filing under the HSR Act made in connection with the Transactions without the prior written consent of Parent. The Company and Purchasers shall supply as promptly as reasonably practical any additional information and documentary material that may be requested pursuant to the Competition Laws.
(xiii) Parent Each of (i) the Purchasers shall, and shall cause its Subsidiaries topursuant to the Oncor Letter Agreement or otherwise, and commit to cause (ii) the Company and its Subsidiaries to, take the actions and agree to those undertakings set forth on Section 6.5(a) of the Parent Disclosure Letter and (y) Parent EFIH shall, and shall pursuant to Section 6.23 or otherwise, use their reasonable best efforts to cause its Subsidiaries Oncor, to take, other actions involving Parent and its Subsidiaries that are in file with the aggregate de minimis (FERC an application for the avoidance FERC Approval as promptly as reasonably practicable, but in no event later than 45 days after the date hereof.
(iv) Each of doubt, not involving any divestiture, holding separate any business or assets or other similar action). Except as provided in the immediately preceding sentence, nothing in this Agreement shall require, or be construed to require, (i) Parent the Purchasers shall, pursuant to the Oncor Letter Agreement or otherwise, and (ii) the Company and EFIH shall, pursuant to Section 6.23 or otherwise, use their reasonable best efforts to cause Oncor to submit to the PUCT a single, integrated filing (on behalf of the parties) that requests prior approval by the PUCT of the Transactions, including the Oncor Restructuring (the “PUCT Filing”), as promptly as reasonably practicable, but in no event later than 45 days after the date hereof.
(v) In connection with any PUCT Filing or application submitted to the FCC or FERC with respect to the Transactions (together, the “FCC/FERC Applications” and, together with the PUCT Filing, the “Applications”), the Company shall not be required to endorse, or cause any of its Subsidiaries to endorse, as the Company’s or its Subsidiaries’ own strategy or take actions to support any modification of the Company’s or refrain from taking any action (including any divestiture, holding separate any its Subsidiaries’ strategy and business or assets or other similar action) or to agree to any restriction or condition with respect to any assets, operations, business or plan that the conduct Company determines in good faith would not be in the best interests of business of Parent or any of its Subsidiaries and (ii) Parent, the Company or any of their respective such Subsidiaries to take support if the Transactions were not to be completed; provided, however, that nothing in this Section 6.3(a)(v) shall affect the Company’s and its Subsidiaries’ obligation to include the Key Regulatory Terms (as defined below) (as applicable) in the Applications. Nothing contained in this Section 6.3(a)(v) is intended to give Parent, directly or refrain from taking any action indirectly, the right to control or direct the Company’s or its Subsidiaries’ operations prior to the Effective Time.
(including any divestiturevi) Each of the Company, holding separate any business or assets or other similar actionEFIH, Parent and OV2 agrees that (A) or to agree to any restriction or condition with respect to any assetsthe Applications shall include the information concerning the Transactions, operations, business or the conduct of business of the Company and its Subsidiaries, ifand the Purchasers required by applicable Laws of the State of Texas and such other jurisdictions as may be mutually determined by the Company, in EFIH and the Purchasers, as the case of this clause may be, (ii), B) the Applications and any such action, failure to act, restriction, condition amendments or agreement, individually or supplements thereto shall include the key terms and undertakings set forth in Exhibit F hereto (the aggregate, would reasonably be likely to have a Company Material Adverse Effect (read without regard “Key Regulatory Terms”) to the exceptions set forth therein extent applicable to such Applications and without giving effect the jurisdictions relevant thereto and such additional agreements or commitments as the Company, EFIH and the Purchasers mutually agree are advisable to clause obtain the PUCT Approval, FERC Approval or FCC Approval, and (AC) thereof) (except as provided in neither the immediately preceding sentence, the occurrence of Company nor any of its Subsidiaries (other than the matters specified in clause (iOncor Entities, subject to Section 6.23) shall, or clause (ii) above shall constitute a “Regulatory Material Adverse Effect”). In addition, in measuring whether a Regulatory Material Adverse Effect has occurred, the expected loss of any reasonably expected synergies (both cost and revenue) relating to any restriction or condition shall be taken into account as if the Company had an adverse effect to its financial condition and results of operations equal to the expected amount of applicable synergies affected by required or permitted to, agree to, or accept any such restriction or condition. The Company and its Subsidiaries shall not agree to any actionsagreements, restrictions commitments or conditions with respect to obtaining any consents, registrations, approvals, permits, expirations of waiting periods or authorizations in connection with the Merger and the Transactions pursuant to any settlement or other transactions contemplated by this Agreement agreement with any Governmental Entity, which would constitute a Burdensome Condition without the prior written consent of Parent Parent.
(which, subject to this Section 6.5(avii) may be withheld in Parent’s sole discretion). Subject to Section 6.3(f) and applicable Laws relating to the exchange of information, Parent the Purchasers, on the one hand, and the Company and EFIH, on the other hand, shall have use their respective reasonable best efforts to provide the right other a reasonable opportunity to review in advanceadvance and, and to the extent practicable practicable, each will consult with the other onon and consider in good faith the views of the other in connection with, all of the material information relating to Parent either Purchaser or the CompanyCompany and any of their respective Subsidiaries, as the case may be, and any of their respective Subsidiaries, that appears in any filing made with, or written materials submitted to, any third party and/or or oral presentations made to any Governmental Entity (other than the NRC) in connection with the Merger Transactions (other than, subject to Section 6.13, in connection with the Chapter 11 Cases). In exercising the foregoing rights, each of the Company and the other transactions contemplated by this Agreement. To Purchasers shall act reasonably and as promptly as practicable.
(viii) The Purchasers, on the extent permitted by applicable Lawone hand, each party shall provide and the Company and EFIH, on the other with copies of all correspondence between it (or its advisors) and any Governmental Entity relating hand, agree not to the Merger and the other transactions contemplated by this Agreement andschedule, to the extent reasonably practicable, any substantive meetings or substantive communications with the PUCT, FERC or in pursuit of obtaining any necessary clearances pursuant to Competition Laws (but excluding, for the avoidance of doubt, the NRC) regarding the Transactions or the Plan of Reorganization without giving the other party or its Representatives a reasonable opportunity to participate in such meeting or communication to the extent permitted by such Governmental Entity, and in any event the parties shall keep each other reasonably apprised of all telephone calls and meetings material substantive communications with a Governmental Entities (other than the NRC) of which it is aware regarding the Transactions (other than, subject to Section 6.13, in connection with the Chapter 11 Cases). Nothing in this Section 6.3(a)(viii) shall prevent, limit or restrict the Company’s or any of its Subsidiaries’ or other Affiliates from interacting, communicating or making filings or applications with, or resolving any investigation or other inquiry of, any agency or other Governmental Entity regarding (i) in the transactions contemplated by ordinary course of business consistent with past practice or (ii) in connection with any aspect of the Plan of Reorganization or the Chapter 11 Cases that is not directly related to this Agreement shall include representatives of Parent or the Transactions (subject to Section 6.13). The Purchasers, on the one hand, and the Company. Company and EFIH, on the other hand, shall use their reasonable best efforts to obtain the PUCT Approval and the FERC Approval as expeditiously as possible, and notwithstanding anything to the contrary contained herein, expressly agree that receipt of such approval from the PUCT or the FERC shall be sufficient to satisfy all conditions relating to any such approval set forth in Article VII hereof, to the extent that the only conditions or requirements to such approval constitute Acceptable Regulatory Conditions.
(ix) In exercising the foregoing rights, event that the Company and Parent each agree in writing upon the use of common counsel or consultants with respect to the negotiation, preparation or filing of any necessary consent, registration, approval, permits and/or authorizations under this Section 6.3(a)(ix), they shall act reasonably share equally the fees and as promptly as reasonably practicableexpenses of such counsel and consultants. In such case any party who does not pay its full share of such fees and expenses shall reimburse the other party for any such shortfall on a monthly basis to the extent such other party paid more than its share of such fees and expenses. The party to whom such reimbursement is owed shall invoice the other party monthly for such reimbursement expenses and such invoices shall be payable in immediately available funds within thirty (30) days after the receipt thereof.
Appears in 2 contracts
Sources: Purchase Agreement (Ovation Acquisition I, L.L.C.), Purchase Agreement (Energy Future Competitive Holdings Co LLC)
Cooperation. The Company (a) HEALTHSOUTH and Parent shallHorizon/CMS shall together, subject or pursuant to Section 6.2an allocation of responsibility agreed to between them, (i) cooperate with each one another in determining whether any filings are required to be made or consents are required to be obtained in any jurisdiction prior to the Effective Time in connection with the consummation of the transactions contemplated hereby and in making any such filings promptly and in seeking to obtain timely any such consents, (ii) use all commercially reasonable efforts to cause to be lifted any injunction prohibiting the Merger, or any part thereof, or the other and usetransactions contemplated hereby, and (iii) furnish to one another and to one another's counsel all such information as may be required to effect the foregoing actions.
(b) Subject to the terms and conditions herein provided, and unless this Plan of Merger shall cause their respective Subsidiaries tohave been validly terminated as provided herein, each of HEALTHSOUTH and Horizon/CMS shall use their respective all commercially reasonable best efforts (i) to take take, or cause to be taken taken, all actionsactions necessary to comply promptly with all legal requirements which may be imposed on such party (or any subsidiaries or affiliates of such party) with respect to this Plan of Merger and to consummate the transactions contemplated hereby, subject to the vote of Horizon/CMS's stockholders described above, and do or cause (ii) to be done all things, necessary, proper or advisable on its part under this Agreement obtain (and applicable Laws to consummate and make effective the Merger and cooperate with the other transactions contemplated by this Agreement as promptly as reasonably practicable (it being understood that nothing contained in this Agreement shall require Parent party to obtain obtain) any consentsconsent, registrationsauthorization, approvalsorder or approval of, permitsor any exemption by, expirations of waiting periods any governmental entity or authorizations prior to the Termination Date), including preparing and filing as promptly as reasonably practicable all documentation to effect all necessary notices, reports and any other filings (including by filing no later than 20 calendar days after the date of this Agreement all applications public or private third party which is required to be filed with the FCC and the notification and report form required under the HSR Act; provided that the failure to file within obtained by such 20-day period shall not constitute a breach of this Agreement) and to obtain as promptly as reasonably practicable all consents, registrations, approvals, permits, expirations of waiting periods 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. To the extent necessary or advisable to obtain any consent, registration, approval, permit, expiration of waiting period or authorization from any Governmental Entity in order to consummate the Merger prior to the Termination Date, (x) Parent shall, and shall cause its Subsidiaries to, and commit to cause the Company and its Subsidiaries to, take the actions and agree to those undertakings set forth on Section 6.5(a) of the Parent Disclosure Letter and (y) Parent shall, and shall cause its Subsidiaries to take, other actions involving Parent and its Subsidiaries that are in the aggregate de minimis (for the avoidance of doubt, not involving any divestiture, holding separate any business or assets or other similar action). Except as provided in the immediately preceding sentence, nothing in this Agreement shall require, or be construed to require, (i) Parent or any of its Subsidiaries subsidiaries or affiliates in connection with this Plan of Merger and the transactions contemplated hereby. Each of HEALTHSOUTH and Horizon/CMS will promptly cooperate with and furnish information to take the other in connection with any such burden suffered by, or refrain from taking any action (including any divestiturerequirement imposed upon, holding separate any business or assets or other similar action) or to agree to any restriction or condition with respect to any assets, operations, business or the conduct either of business of Parent or any of its Subsidiaries and (ii) Parent, the Company them or any of their respective Subsidiaries to take subsidiaries or refrain from taking any action (including any divestiture, holding separate any business or assets or other similar action) or to agree to any restriction or condition with respect to any assets, operations, business or the conduct of business of the Company and its Subsidiaries, if, in the case of this clause (ii), any such action, failure to act, restriction, condition or agreement, individually or in the aggregate, would reasonably be likely to have a Company Material Adverse Effect (read without regard to the exceptions set forth therein and without giving effect to clause (A) thereof) (except as provided in the immediately preceding sentence, the occurrence of any of the matters specified in clause (i) or clause (ii) above shall constitute a “Regulatory Material Adverse Effect”). In addition, in measuring whether a Regulatory Material Adverse Effect has occurred, the expected loss of any reasonably expected synergies (both cost and revenue) relating to any restriction or condition shall be taken into account as if the Company had an adverse effect to its financial condition and results of operations equal to the expected amount of applicable synergies affected by any such restriction or condition. The Company and its Subsidiaries shall not agree to any actions, restrictions or conditions with respect to obtaining any consents, registrations, approvals, permits, expirations of waiting periods or authorizations affiliates in connection with the Merger and the other transactions contemplated by this Agreement without the prior written consent of Parent (which, subject to this Section 6.5(a) may be withheld in Parent’s sole discretion). Subject to applicable Laws relating to the exchange of information, Parent and the Company shall have the right to review in advance, and to the extent practicable each will consult the other on, all of the information relating to Parent or the Company, as the case may be, and any of their respective Subsidiaries, that appears in any filing made with, or written materials submitted to, any third party and/or any Governmental Entity in connection with the Merger and the other transactions contemplated by this Agreement. To the extent permitted by applicable Law, each party shall provide the other with copies of all correspondence between it (or its advisors) and any Governmental Entity relating to the Merger and the other transactions contemplated by this Agreement and, to the extent reasonably practicable, all telephone calls and meetings with a Governmental Entity regarding the transactions contemplated by this Agreement shall include representatives of Parent and the Company. In exercising the foregoing rights, the Company and Parent each shall act reasonably and as promptly as reasonably practicableforegoing.
Appears in 2 contracts
Sources: Merger Agreement (Horizon CMS Healthcare Corp), Merger Agreement (Healthsouth Corp)
Cooperation. (a) The Company and Parent parties shall, subject to Section 6.2and shall cause their respective Affiliates to, cooperate with each other and use, and shall cause their respective Subsidiaries to, use their respective reasonable best efforts promptly to take take, or cause to be taken taken, in good faith, all actions, and do or cause to be done all things, actions that are reasonably necessary, proper or advisable on its part under this Agreement and applicable Laws to consummate and make effective the Merger and the other transactions contemplated by this Agreement and the Transition Services Agreement as promptly as reasonably practicable (it being understood that nothing contained in this Agreement shall require Parent to obtain any consents, registrations, approvals, permits, expirations of waiting periods or authorizations prior to the Termination Date)practicable, including preparing and filing as promptly as reasonably practicable using its reasonable best efforts to (i) take all documentation reasonable acts necessary to effect all necessary notices, reports and other filings (including by filing no later than 20 calendar days after cause the date of this Agreement all applications required conditions precedent set forth in Article 8 to be filed with the FCC and the notification and report form required under the HSR Act; provided that the failure to file within such 20-day period shall not constitute a breach of this Agreementsatisfied, (ii) and to obtain as promptly as reasonably practicable all consents, registrations, approvals, permitswaivers, expirations of waiting periods orders, interpretive guidance, exemptions, Licenses and Permits and authorizations necessary or advisable to be obtained from any third party and/or any Governmental Entity Authority (including the Required Governmental Approvals) in order to consummate the Merger transactions contemplated by this Agreement and the Transition Services Agreement and (iii) obtain all other necessary consents, approvals or waivers from third parties (including all Third-Party Consents).
(b) Each party shall use its reasonable best efforts to prepare or cause to be prepared as promptly as practicable all documentation and make all filings necessary to obtain all Required Governmental Approvals. Purchaser and Seller will provide such assistance, information and cooperation to each other as is reasonably required to obtain any Required Governmental Approvals, other third-party consents and any notices (including Third-Party Consents) and, subject to applicable Law, will provide each other with the reasonable opportunity to review in advance any applications, notices or other filings proposed to be made with respect to the transactions contemplated hereby (and will give due consideration to any comments and suggestions made with respect thereto by the other party). In connection therewith, each party will notify the other promptly following the receipt of any comments from any Governmental Authority and of any request by any Governmental Authority for amendments, supplements or additional information in respect of any application, notice or other filing with such Governmental Authority and will supply the other party with copies of all material correspondence between such party or any of its Representatives, on the one hand, and any Governmental Authority in connection with obtaining any Required Governmental Approval, on the other hand; provided that such disclosure is permitted under applicable Law. Any such provision of information by one party to the other may be made on a counsel-only basis to the extent required under applicable Law (including any anti-gun jumping Laws), and any such materials may be redacted (i) as necessary to comply with contractual arrangements, (ii) as necessary to address reasonable attorney-client or other privilege or confidentiality concerns or (iii) as otherwise necessary to comply with applicable Law. Each party shall consult with the other in advance of any meeting or conference with any Governmental Authority in connection with the transactions contemplated by this Agreement. To , and to the extent permitted by such Governmental Authority, give the other party and/or its counsel the opportunity to attend and participate in such meetings and conferences.
(c) Without limiting the generality of the foregoing, each of Seller and Purchaser will, as promptly as practicable, but in no event later than ten (10) Business Days following the execution and delivery of this Agreement, file with the FTC and the DOJ the notification and report form required for the transactions contemplated hereby and any supplemental information required in connection therewith pursuant to the HSR Act. Each party hereto represents and warrants that such notification and report form and all such supplemental information submitted by such party or its ultimate parent, and any additional supplemental information filed by such party after the date of the original filing, will be in substantial compliance with the requirements of the HSR Act. Seller and Purchaser shall each furnish to the other such necessary information and reasonable assistance as the other may request in connection with its preparation of any filing or advisable submission that is necessary under the HSR Act. Seller and Purchaser shall keep each other apprised of the status of any communications with, and inquiries or requests for additional information from, the FTC or the DOJ, and shall each use its reasonable best efforts to comply promptly with any such inquiry or request. Seller and Purchaser will each use its reasonable best efforts to cause the expiration or early termination of the waiting period required under the HSR Act as a condition to the purchase and sale of Shares under this Agreement and shall use reasonable best efforts to defend against any action of the FTC or the DOJ to enjoin such purchase and sale and to satisfy any conditions imposed or to avoid the imposition thereof, by the FTC or DOJ, as applicable.
(d) Purchaser and the Company shall cooperate in determining the most efficient manner to establish an office of Purchaser or the Company (including a branch, representative office or other office) in Singapore. Purchaser and the Company agree to promptly file any applications or notices necessary to establish such office and to use reasonable best efforts to obtain the approval of any consentsuch applications or notices. If notwithstanding the efforts of the parties, registrationan office is not established in Singapore at the time of the Closing, approvalthe Closing will proceed; provided, permithowever, expiration that the Company Employees who work in Singapore will not transfer to Purchaser on the Closing Date, will remain employed by an Affiliate of waiting period Seller and will be seconded to Purchaser or authorization an Affiliate of Purchaser pursuant to a customary secondment or similar arrangement or otherwise dedicated to provide services to Purchaser and its Affiliates. If an office is not established prior to Closing, Purchaser will continue to use reasonable best efforts to establish an office and upon establishment of such office, the Company Employees located in Singapore will transfer to Purchaser or an Affiliate of Purchaser.
(e) The parties shall 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 either party or its Affiliates (as the case may be) or, to its Knowledge, its Representatives from any Governmental Entity in order to consummate the Merger prior to the Termination Date, (x) Parent shall, and shall cause its Subsidiaries to, and commit to cause the Company and its Subsidiaries to, take the actions and agree to those undertakings set forth on Section 6.5(a) of the Parent Disclosure Letter and (y) Parent shall, and shall cause its Subsidiaries to take, other actions involving Parent and its Subsidiaries that are in the aggregate de minimis (for the avoidance of doubt, not involving any divestiture, holding separate any business or assets or other similar action). Except as provided in the immediately preceding sentence, nothing in this Agreement shall require, or be construed to require, (i) Parent or any of its Subsidiaries to take or refrain from taking any action (including any divestiture, holding separate any business or assets or other similar action) or to agree to any restriction or condition Authority with respect to any assets, operations, business or the conduct of business of Parent or any of its Subsidiaries and (ii) Parent, the Company or any of their respective Subsidiaries to take or refrain from taking any action (including any divestiture, holding separate any business or assets or other similar action) or to agree to any restriction or condition with respect to any assets, operations, business or the conduct of business of the Company and its Subsidiaries, iftransactions contemplated by this Agreement, in each case to the case extent permitted by applicable Law. The parties shall give prompt notice to each other of this clause (ii), any such action, failure to act, restriction, condition development or agreementcombination of developments that, individually or in the aggregate, would is reasonably be likely to have a Company Material Adverse Effect (read without regard prevent, materially delay or materially impair its respective ability to consummate the exceptions set forth therein and without giving effect to clause (A) thereof) (except as provided in the immediately preceding sentence, the occurrence of any of the matters specified in clause (i) or clause (ii) above shall constitute a “Regulatory Material Adverse Effect”). In addition, in measuring whether a Regulatory Material Adverse Effect has occurred, the expected loss of any reasonably expected synergies (both cost and revenue) relating to any restriction or condition shall be taken into account as if the Company had an adverse effect to its financial condition and results of operations equal to the expected amount of applicable synergies affected by any such restriction or condition. The Company and its Subsidiaries shall not agree to any actions, restrictions or conditions with respect to obtaining any consents, registrations, approvals, permits, expirations of waiting periods or authorizations in connection with the Merger and the other transactions contemplated by this Agreement without the prior written consent of Parent (which, subject to this Section 6.5(a) may be withheld in Parent’s sole discretion). Subject to applicable Laws relating to the exchange of information, Parent and the Company shall have the right to review in advance, and to the extent practicable each will consult the other on, all of the information relating to Parent or the Company, as the case may be, and any of their respective Subsidiaries, that appears in any filing made with, or written materials submitted to, any third party and/or any Governmental Entity in connection with the Merger and the other transactions contemplated by this Agreement. To , including the extent permitted by applicable Law, each party shall provide the other with copies of all correspondence between it (or its advisors) and any Governmental Entity relating failure to satisfy a condition to the Merger and the Closing set forth in Article 8; provided, however, that no such notification or other transactions contemplated Information provided or obtained by this Agreement and, any party prior to the extent reasonably practicableClosing shall affect the representations, all telephone calls and meetings with a Governmental Entity regarding warranties, covenants or obligations of the transactions contemplated by parties or the conditions to the obligations of the parties under this Agreement shall include representatives of Parent and the Company. In exercising the foregoing rights, the Company and Parent each shall act reasonably and as promptly as reasonably practicableAgreement.
Appears in 2 contracts
Sources: Securities Purchase Agreement (BATS Global Markets, Inc.), Securities Purchase Agreement (KCG Holdings, Inc.)
Cooperation. The Company Each of the Parties, as applicable, undertakes to: (a) take all actions necessary to comply with the obligations set forth in this Agreement, therein signing all instruments and Parent shalldocuments required for the consummation of the Transaction provided for herein and using its best efforts so that the Closing occurs as soon as possible, subject to the provisions of Section 6.210.1; (b) subject to the provisions of Section 5.3.1 below, meet any requirements of Governmental Authorities, in order to enable the consummation of the Transaction, within the shortest possible time and with minimal damage to the UPI Movable Assets, Obligations, and Rights and the activities of those involved; (c) perform the acts and adopt the measures incumbent upon it, according to this Agreement, as well as endeavor to expend reasonable efforts and cooperate with each the other Parties, so that the Conditions Precedent are fulfilled and useverified within the shortest possible time, being also obliged to take the applicable measures to keep the other Parties informed about the verification of the Conditions Precedent; (d) report to the other Parties the occurrence of any act, fact, or omission that may have a material impact on the verification, or lack thereof, of any of the Conditions Precedent that comes to its Knowledge, within up to five (5) Business Days after such Knowledge; (e) refrain from taking any action or performing any act that may hinder the consummation of the Transaction, including non-recognition, in bad faith, of verification of compliance with the Conditions Precedent; and (f) the Seller shall cause their respective Subsidiaries to, use their respective reasonable best efforts to take or cause to be taken all actions, actions and do or cause to be done perform all things, acts necessary, proper or advisable on at its part under this Agreement and applicable Laws to consummate and make effective the Merger and the other transactions contemplated by this Agreement as promptly as reasonably practicable (it being understood that nothing contained in this Agreement shall require Parent to obtain any consentsown expense, registrationsso that, approvals, permits, expirations of waiting periods or authorizations prior to the Termination Date), including preparing and filing as promptly as reasonably practicable all documentation to effect all necessary notices, reports and other filings (including by filing no later than 20 calendar days after between the date of execution of the Agreement and the Closing Date, the procedures set forth in Exhibit 5.1 have been duly observed. All acts provided for under this Agreement all applications required to Section shall be filed performed in strict compliance with the FCC limitations of the applicable Laws, including Law No. 12,529/11, regulations, and guides issued by C▇▇▇ and the notification and report form required under the HSR Act; provided that the failure to file within such 20-day period shall not constitute a breach of this Agreement) and to obtain as promptly as reasonably practicable all consents, registrations, approvals, permits, expirations of waiting periods 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. To the extent necessary or advisable to obtain any consent, registration, approval, permit, expiration of waiting period or authorization from any Governmental Entity in order to consummate the Merger prior to the Termination Date, (x) Parent shall, and shall cause its Subsidiaries to, and commit to cause the Company and its Subsidiaries to, take the actions and agree to those undertakings set forth on Section 6.5(a) of the Parent Disclosure Letter and (y) Parent shall, and shall cause its Subsidiaries to take, other actions involving Parent and its Subsidiaries that are in the aggregate de minimis (for the avoidance of doubt, not involving any divestiture, holding separate any business or assets or other similar action). Except as provided in the immediately preceding sentence, nothing in this Agreement shall require, or be construed to require, (i) Parent or any of its Subsidiaries to take or refrain from taking any action (including any divestiture, holding separate any business or assets or other similar action) or to agree to any restriction or condition with respect to any assets, operations, business or the conduct of business of Parent or any of its Subsidiaries and (ii) Parent, the Company or any of their respective Subsidiaries to take or refrain from taking any action (including any divestiture, holding separate any business or assets or other similar action) or to agree to any restriction or condition with respect to any assets, operations, business or the conduct of business of the Company and its Subsidiaries, if, in the case of this clause (ii), any such action, failure to act, restriction, condition or agreement, individually or in the aggregate, would reasonably be likely to have a Company Material Adverse Effect (read without regard to the exceptions set forth therein and without giving effect to clause (A) thereof) (except as provided in the immediately preceding sentence, the occurrence of any of the matters specified in clause (i) or clause (ii) above shall constitute a “Regulatory Material Adverse Effect”). In addition, in measuring whether a Regulatory Material Adverse Effect has occurred, the expected loss of any reasonably expected synergies (both cost and revenue) relating to any restriction or condition shall be taken into account as if the Company had an adverse effect to its financial condition and results of operations equal to the expected amount of applicable synergies affected by any such restriction or condition. The Company and its Subsidiaries shall not agree to any actions, restrictions or conditions with respect to obtaining any consents, registrations, approvals, permits, expirations of waiting periods or authorizations in connection with the Merger and the other transactions contemplated by this Agreement without the prior written consent of Parent (which, subject to this Section 6.5(a) may be withheld in Parent’s sole discretion). Subject to applicable Laws relating to the exchange of information, Parent and the Company shall have the right to review in advance, and to the extent practicable each will consult the other on, all of the information relating to Parent or the Company, as the case may be, and any of their respective Subsidiaries, that appears in any filing made with, or written materials submitted to, any third party and/or any Governmental Entity in connection with the Merger and the other transactions contemplated by this Agreement. To the extent permitted by applicable Law, each party shall provide the other with copies of all correspondence between it (or its advisors) and any Governmental Entity relating to the Merger and the other transactions contemplated by this Agreement and, to the extent reasonably practicable, all telephone calls and meetings with a Governmental Entity regarding the transactions contemplated by this Agreement shall include representatives of Parent and the Company. In exercising the foregoing rights, the Company and Parent each shall act reasonably and as promptly as reasonably practicableAntitrust Protocol.
Appears in 2 contracts
Sources: Share Purchase Agreement (Tim S.A.), Share Purchase Agreement (Telefonica Brasil S.A.)
Cooperation. The Company (a) MediaOne, New U S WEST and Parent their Subsidiaries shall cooperate with each other in carrying out, implementing and defending the terms of this EM Agreement, including cooperating with each other with respect to any claims or litigation challenging the terms of the EM Agreement.
(b) Each party shall exchange such information with the other party and their respective agents and vendors (without obtaining releases), as may be reasonably requested by the other party, with respect thereto. MediaOne and New U S WEST and their respective authorized agents shall, subject to Section 6.2applicable laws on confidentiality, cooperate with each other be given reasonable and usetimely access to, and shall cause their respective Subsidiaries tomay make copies of, use their respective 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 on its part under this Agreement and applicable Laws to consummate and make effective the Merger and the other transactions contemplated by this Agreement as promptly as reasonably practicable (it being understood that nothing contained in this Agreement shall require Parent to obtain any consents, registrations, approvals, permits, expirations of waiting periods or authorizations prior information relating to the Termination Date), including preparing and filing as promptly as reasonably practicable all documentation to effect all necessary notices, reports and other filings (including by filing no later than 20 calendar days after the date subjects of this EM Agreement all applications required to be filed with in the FCC and the notification and report form required under the HSR Act; provided that the failure to file within such 20-day period shall not constitute a breach of this Agreement) and to obtain as promptly as reasonably practicable all consents, registrations, approvals, permits, expirations of waiting periods 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 custody of the other transactions contemplated by this Agreement. To the extent necessary or advisable to obtain any consent, registration, approval, permit, expiration of waiting period or authorization from any Governmental Entity in order to consummate the Merger prior to the Termination Date, (x) Parent shall, and shall cause its Subsidiaries to, and commit to cause the Company and its Subsidiaries to, take the actions and agree to those undertakings set forth on Section 6.5(a) of the Parent Disclosure Letter and (y) Parent shall, and shall cause its Subsidiaries to take, other actions involving Parent and its Subsidiaries that are in the aggregate de minimis (for the avoidance of doubt, not involving any divestiture, holding separate any business or assets or other similar action). Except as provided in the immediately preceding sentence, nothing in this Agreement shall require, or be construed to require, (i) Parent or any of its Subsidiaries to take or refrain from taking any action (including any divestiture, holding separate any business or assets or other similar action) or to agree to any restriction or condition with respect to any assets, operations, business or the conduct of business of Parent or any of its Subsidiaries and (ii) Parent, the Company or any of their respective Subsidiaries to take or refrain from taking any action (including any divestiture, holding separate any business or assets or other similar action) or to agree to any restriction or condition with respect to any assets, operations, business or the conduct of business of the Company and its Subsidiaries, if, in the case of this clause (ii), any such action, failure to act, restriction, condition or agreement, individually or in the aggregate, would reasonably be likely to have a Company Material Adverse Effect (read without regard to the exceptions set forth therein and without giving effect to clause (A) thereof) (except as provided in the immediately preceding sentence, the occurrence of any of the matters specified in clause (i) or clause (ii) above shall constitute a “Regulatory Material Adverse Effect”). In addition, in measuring whether a Regulatory Material Adverse Effect has occurred, the expected loss of any reasonably expected synergies (both cost and revenue) relating to any restriction or condition shall be taken into account as if the Company had an adverse effect to its financial condition and results of operations equal to the expected amount of applicable synergies affected by any such restriction or condition. The Company and its Subsidiaries shall not agree to any actions, restrictions or conditions with respect to obtaining any consents, registrations, approvals, permits, expirations of waiting periods or authorizations in connection with the Merger and the other transactions contemplated by this Agreement without the prior written consent of Parent (which, subject to this Section 6.5(a) may be withheld in Parent’s sole discretion). Subject to applicable Laws relating to the exchange of information, Parent and the Company shall have the right to review in advance, and to the extent practicable each will consult the other on, all of the information relating to Parent or the Company, as the case may be, and any of their respective Subsidiaries, that appears in any filing made with, or written materials submitted to, any third party and/or any Governmental Entity in connection with the Merger and the other transactions contemplated by this Agreement. To the extent permitted by applicable Law, each party shall provide the other with copies of all correspondence between it (or its advisors) and any Governmental Entity relating to the Merger and the other transactions contemplated by this Agreement andparty, to the extent reasonably practicable, all telephone calls and meetings with a Governmental Entity regarding requested by the transactions contemplated by other party. If any provision of this Agreement is dependent on the consent of any third party (such as a vendor or a union) and such consent is withheld, MediaOne and New U S WEST shall include representatives use their reasonable best efforts to implement the applicable provisions of Parent this Agreement to the full extent practicable. If any provision of this Agreement cannot be implemented due to the failure of such third party to consent, MediaOne and New U S WEST shall negotiate in good faith to implement the provision in a mutually satisfactory manner. The phrase "reasonable best efforts" as used herein shall not be construed to require the incurrence of any non-routine or unreasonable expense or liability or the waiver of any right of MediaOne and New U S WEST (and their respective Subsidiaries).
(c) MediaOne and New U S WEST agree to good faith mutual cooperation in any investigation, inquiry or litigation which jointly involves them or in which either party makes a reasonable request for such cooperation. Each party will make its Employees available on a reasonable basis to give testimony and assistance in connection with any lawsuit, dispute, investigation or proceeding involving the other party and arising out of activities for which the Employee had responsibility prior to the Separation Time. The party requesting such availability (the "Requesting Party") shall reimburse the Employee for all reasonable out-of-pocket travel and other expenses incurred in so cooperating, including without limitation airplane fare, hotel accommodations, meal charges and other similar expenses, as well as reasonable fees and disbursements for independent counsel for the Employee, if the matter requires that the Employee have independent representation. Such expenses will be reimbursed promptly after Employee's submission to the Requesting Party of statements and such reasonable detail as the Requesting Party may require. Any request for cooperation, and the Companydegree of cooperation provided, pursuant to this paragraph will take into account (1) the significance of the matters at issue in the lawsuit, dispute, investigation or proceeding, and (ii) the Employee's other personal and business commitments. In exercising any case in which either MediaOne or New U S WEST becomes aware that one of its Employees is called (except by the foregoing rightsother party) as a witness to testify in any discovery or court proceeding relating to the other party, the Company and Parent each shall act reasonably and as promptly as reasonably practicableparty employing such individual will notify the other party immediately in order to give the other party a reasonable opportunity to appear and/or assert any privilege to which it may be entitled.
Appears in 2 contracts
Sources: Employee Matters Agreement (Us West Inc), Employee Matters Agreement (Media One Group Inc)
Cooperation. The Company and Parent shall, subject to Section 6.2, cooperate with each other and use, and shall cause their respective Subsidiaries to, use their respective 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 on its part under this Agreement and applicable Laws to consummate and make effective the Merger and the other transactions contemplated by this Agreement as promptly as reasonably practicable (it being understood that nothing contained in this Agreement shall require Parent to obtain any consents, registrations, approvals, permits, expirations of waiting periods or authorizations prior to the Termination Date), including preparing and filing as promptly as reasonably practicable all documentation to effect all necessary notices, reports and other filings (including by filing no later than 20 calendar days after From the date of this Agreement all applications required to be filed with until the FCC and Closing or the notification and report form required under the HSR Act; provided that the failure to file within such 20-day period shall not constitute a breach earlier termination of this AgreementAgreement in accordance with its terms, each Party shall, subject to applicable Law and except as prohibited by any applicable representative of any applicable Governmental Authority: (1) furnish to the other Parties upon reasonable request all information concerning itself, its Subsidiaries, directors, officers and to obtain shareholders and such other matters as promptly as may be reasonably practicable all consents, registrations, approvals, permits, expirations of waiting periods and authorizations necessary or advisable to be obtained from in connection with any third party and/or any Governmental Entity in order to consummate the Merger filing, notice or any application made by or on behalf of the such other transactions contemplated by this Agreement. To the extent necessary or advisable to obtain any consent, registration, approval, permit, expiration of waiting period or authorization from any Governmental Entity in order to consummate the Merger prior to the Termination Date, (x) Parent shall, and shall cause its Subsidiaries to, and commit to cause the Company and its Subsidiaries to, take the actions and agree to those undertakings set forth on Section 6.5(a) of the Parent Disclosure Letter and (y) Parent shall, and shall cause its Subsidiaries to take, other actions involving Parent and its Subsidiaries that are in the aggregate de minimis (for the avoidance of doubt, not involving any divestiture, holding separate any business or assets or other similar action). Except as provided in the immediately preceding sentence, nothing in this Agreement shall require, or be construed to require, (i) Parent Party or any of its Subsidiaries to take or refrain from taking any action (including any divestiture, holding separate any business or assets or other similar action) with or to agree to any restriction third party or condition with respect to any assets, operations, business or the conduct of business of Parent or any of its Subsidiaries and (ii) Parent, the Company or any of their respective Subsidiaries to take or refrain from taking any action (including any divestiture, holding separate any business or assets or other similar action) or to agree to any restriction or condition with respect to any assets, operations, business or the conduct of business of the Company and its Subsidiaries, if, in the case of this clause (ii), any such action, failure to act, restriction, condition or agreement, individually or in the aggregate, would reasonably be likely to have a Company Material Adverse Effect (read without regard to the exceptions set forth therein and without giving effect to clause (A) thereof) (except as provided in the immediately preceding sentence, the occurrence of any of the matters specified in clause (i) or clause (ii) above shall constitute a “Regulatory Material Adverse Effect”). In addition, in measuring whether a Regulatory Material Adverse Effect has occurred, the expected loss of any reasonably expected synergies (both cost and revenue) relating to any restriction or condition shall be taken into account as if the Company had an adverse effect to its financial condition and results of operations equal to the expected amount of applicable synergies affected by any such restriction or condition. The Company and its Subsidiaries shall not agree to any actions, restrictions or conditions with respect to obtaining any consents, registrations, approvals, permits, expirations of waiting periods or authorizations Governmental Authority in connection with the Merger and Transactions; (2) promptly notify the other transactions contemplated by Parties of any written communication to the first Party from the FTC, the Antitrust Division, any State Attorney General or any other Governmental Authority relating to this Agreement without or the prior written consent of Parent (whichTransactions, subject to this Section 6.5(a) may be withheld in Parent’s sole discretion). Subject to applicable Laws relating to and permit the exchange of information, Parent and the Company shall have the right other Parties to review in advance, and advance any proposed written communication to any of the foregoing with respect to the extent practicable each will consult Transactions; (3) not agree to participate or participate in any substantive meeting or discussion with any Governmental Authority in respect of any filings, investigation or inquiry concerning this Agreement or the Transactions unless it consults with the other on, all of the information relating to Parent or the Company, as the case may be, and any of their respective Subsidiaries, that appears Parties in any filing made with, or written materials submitted to, any third party and/or any Governmental Entity in connection with the Merger and the other transactions contemplated by this Agreement. To the extent permitted by applicable Law, each party shall provide the other with copies of all correspondence between it (or its advisors) and any Governmental Entity relating to the Merger and the other transactions contemplated by this Agreement advance and, to the extent reasonably practicablepermitted by such Governmental Authority, gives the other Parties the opportunity to attend and participate thereat; and (4) furnish the other Parties with copies of all telephone calls correspondence, filings and meetings written communications (and memoranda setting forth the substance thereof) between such Party and its Subsidiaries and their respective Representatives, on the one hand, and any Governmental Authority or members or their respective staffs, on the other hand, with a Governmental Entity regarding the transactions contemplated by respect to this Agreement shall include representatives of Parent and the CompanyTransactions. In exercising the foregoing rights, the Company and Parent each Each Party shall act reasonably and respond as promptly as reasonably practicablepracticable under the circumstances to any inquiries received from the FTC or the Antitrust Division for additional information or documentation and to all inquiries and requests received from any State Attorney General or other Governmental Authority in connection with antitrust matters relating to this Agreement or the Transactions. Parent may, with the consent of the Company, not to be unreasonably withheld, extend any waiting period under the HSR Act or enter into any agreement with the FTC or the Antitrust Division not to consummate the Transactions.
Appears in 2 contracts
Sources: Merger Agreement (Intelligroup Inc), Merger Agreement (Intelligroup Inc)
Cooperation. The Company Subject to the terms of this Agreement, Seller and Parent Purchaser shall reasonably cooperate with one another and with Lender and shall use their respective commercially reasonable efforts to obtain a satisfaction of the Financing Contingency. Seller and Purchaser shall, subject to Section 6.2, cooperate with each other and use, and shall cause their respective Subsidiaries to, use their respective 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 on its part under this Agreement and applicable Laws to consummate and make effective the Merger and the other transactions contemplated by this Agreement as promptly as reasonably practicable (it being understood that nothing contained in this Agreement shall require Parent to obtain any consents, registrations, approvals, permits, expirations of waiting periods or authorizations prior to the Termination Date), including preparing and filing as promptly as reasonably practicable all documentation to effect all necessary notices, reports and other filings (including by filing no later than 20 calendar days after the date of this Agreement all applications required to be filed with the FCC and the notification and report form required under the HSR Act; provided that the failure to file within such 20-day period shall not constitute a breach terms of this Agreement) , execute and to obtain as promptly as deliver any and all documents and information reasonably practicable all consents, registrations, approvals, permits, expirations of waiting periods required by Lender and authorizations necessary or advisable to be obtained from any third party and/or any Governmental Entity in order to consummate consistent with the Merger or any of the other transactions contemplated by this Agreement. To the extent necessary or advisable to obtain any consent, registration, approval, permit, expiration of waiting period or authorization from any Governmental Entity in order to consummate the Merger prior to the Termination Date, (x) Parent shall, and shall cause its Subsidiaries to, and commit to cause the Company and its Subsidiaries to, take the actions and agree to those undertakings set forth on Section 6.5(a) of the Parent Disclosure Letter and (y) Parent shall, and shall cause its Subsidiaries to take, other actions involving Parent and its Subsidiaries that are in the aggregate de minimis (for the avoidance of doubt, not involving any divestiture, holding separate any business or assets or other similar action). Except as provided in the immediately preceding sentence, nothing in this Agreement shall require, or be construed to require, (i) Parent or any of its Subsidiaries to take or refrain from taking any action (including any divestiture, holding separate any business or assets or other similar action) or to agree to any restriction or condition with respect to any assets, operations, business or the conduct of business of Parent or any of its Subsidiaries and (ii) Parent, the Company or any of their respective Subsidiaries to take or refrain from taking any action (including any divestiture, holding separate any business or assets or other similar action) or to agree to any restriction or condition with respect to any assets, operations, business or the conduct of business of the Company and its Subsidiaries, if, in the case of this clause (ii), any such action, failure to act, restriction, condition or agreement, individually or in the aggregate, would reasonably be likely to have a Company Material Adverse Effect (read without regard to the exceptions set forth therein and without giving effect to clause (A) thereof) (except as provided in the immediately preceding sentence, the occurrence of any of the matters specified in clause (i) or clause (ii) above shall constitute a “Regulatory Material Adverse Effect”). In addition, in measuring whether a Regulatory Material Adverse Effect has occurred, the expected loss of any reasonably expected synergies (both cost and revenue) relating to any restriction or condition shall be taken into account as if the Company had an adverse effect to its financial condition and results of operations equal to the expected amount of applicable synergies affected by any such restriction or condition. The Company and its Subsidiaries shall not agree to any actions, restrictions or conditions with respect to obtaining any consents, registrations, approvals, permits, expirations of waiting periods or authorizations Loan Documents in connection with the Merger satisfaction of the Financing Contingency, including, but not limited to, financial reports, property management reports, income statements, assignment agreements, financing statements, estoppel certificates and releases; provided however that nothing contained herein shall obligate Seller to expand its liabilities or obligations in connection with the Mortgage Loan. Seller and Purchaser shall keep each other transactions contemplated by this Agreement without reasonably apprised of the prior status of the approval process. Within five (5) days after receipt of any written consent correspondence, document or other material from Lender (or any agent or servicer of Parent (which, subject to this Section 6.5(aLender) may be withheld in Parent’s sole discretion). Subject to applicable Laws relating to the exchange of informationLoan Assignment and Assumption (and/or Lender’s consent thereto), Parent and the Company shall have the right to review in advance, and to the extent practicable each will consult the other on, all of the information relating to Parent Seller or the CompanyPurchaser, as the case may be, shall send a true, correct and complete copy of such correspondence, document or other material to the other party hereunder. Simultaneously with submitting any application, correspondence, document or other material to Lender (or any agent or servicer of Lender) in connection with obtaining Lender’s consent to the Loan Assignment and Assumption, Seller or Purchaser, as the case may be, shall forward a true, correct and complete copy of such information to the other party hereunder; provided, however, at least five (5) days before making any material submission to Lender (or any agent or servicer of Lender) in connection with obtaining Lender’s consent to the Loan Assignment and Assumption (including, without limitation, any applications), Seller or Purchaser, as the case may be, shall forward a true, correct and complete copy of such material submission to the other party hereunder for review and comment. Within five (5) days after receipt of such proposed submission, the receiving party (Seller or Purchaser, as the case may be) shall notify the other party of any objections thereto, which notice shall specify in reasonable detail the basis for any such objection. Neither party shall unreasonably withhold, condition or delay its approval of any such submission. If either party fails to object to a submission within the five (5) day period set forth above, then such party shall be deemed to have waived its right to object to such submission pursuant to this Section 10.3.4. All documentation submitted to Purchaser or Seller, or each of their respective Subsidiariesrepresentatives, that appears in by the other party pursuant to this Section 10.3.4 shall be treated as confidential information. Seller and Purchaser shall not disclose any filing made withinformation obtained by it from the other party, or written materials submitted toincluding, without limitation, any third party and/or any Governmental Entity financial statements, except that the parties may disclose such information to its consultants and attorneys engaged in the review of same in connection with the Merger Loan Assignment and Assumption. Notwithstanding the other transactions contemplated foregoing, Seller and Purchaser shall each have the right to disclose confidential information to third parties if such disclosure is required by this Agreementan order of a court of competent jurisdiction or as otherwise described in Section 15.1. To Seller acknowledges that Purchaser may, at no cost or expense to Seller, request Lender’s consent to non-material modifications to the extent permitted Loan Documents to facilitate ownership of the Property by applicable Law, each party shall provide the other with copies of all correspondence between it (Purchaser or its advisors) and assign in the event Purchaser or its assign is or may be a REIT; provided however that nothing contained in this sentence shall be construed as Seller’s consent to any Governmental Entity relating to modifications of the Merger and Loan Documents or the other transactions contemplated Mortgage Loan requested by this Agreement and, to Purchaser or any modifications which would adversely affect the extent reasonably practicable, all telephone calls and meetings with a Governmental Entity regarding Closing of the transactions contemplated by this Agreement shall include representatives of Parent and the Company. In exercising the foregoing rights, the Company and Parent each shall act reasonably and as promptly as reasonably practicableor impose additional obligations on Seller or any Seller Related Entities.
Appears in 2 contracts
Sources: Agreement of Sale (Cb Richard Ellis Realty Trust), Agreement of Sale (Cb Richard Ellis Realty Trust)
Cooperation. The Company Subject to the terms and Parent shallconditions herein provided, subject each of the parties hereto agrees to Section 6.2, cooperate with each other and use, and shall cause their respective Subsidiaries to, use their respective all reasonable best efforts to take take, or cause to be taken taken, all actionsactions and to do, and do or cause to be done done, all things, things necessary, proper or advisable on its part under this Agreement and applicable Laws to consummate and make effective the Merger and the other transactions contemplated by this Agreement as promptly as reasonably practicable (it being understood that nothing contained in this Agreement shall require Parent to obtain any consents, registrations, approvals, permits, expirations of waiting periods or authorizations prior to the Termination Date), including preparing and filing as promptly as reasonably practicable all documentation to effect all necessary notices, reports and other filings (including by filing no later than 20 calendar days after the date of this Agreement all applications required to be filed with the FCC and the notification and report form required under the HSR Act; provided that the failure to file within such 20-day period shall not constitute a breach of this Agreement) and to obtain as promptly as reasonably practicable all consents, registrations, approvals, permits, expirations of waiting periods 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. To the extent necessary or advisable to obtain any consent, registration, approval, permit, expiration of waiting period or authorization from any Governmental Entity in order to consummate the Merger prior to the Termination Date, (x) Parent shall, and shall cause its Subsidiaries to, and commit to cause the Company and its Subsidiaries to, take the actions and agree to those undertakings set forth on Section 6.5(a) of the Parent Disclosure Letter and (y) Parent shall, and shall cause its Subsidiaries to take, other actions involving Parent and its Subsidiaries that are in the aggregate de minimis (for the avoidance of doubt, not involving any divestiture, holding separate any business or assets or other similar action). Except as provided in the immediately preceding sentence, nothing in this Agreement shall require, or be construed to require, (i) Parent or any of its Subsidiaries to take or refrain from taking any action (including any divestiture, holding separate any business or assets or other similar action) or to agree to any restriction or condition with respect to any assets, operations, business or the conduct of business of Parent or any of its Subsidiaries and (ii) Parent, the Company or any of their respective Subsidiaries to take or refrain from taking any action (including any divestiture, holding separate any business or assets or other similar action) or to agree to any restriction or condition with respect to any assets, operations, business or the conduct of business of the Company and its Subsidiaries, if, in the case of this clause (ii), any such action, failure to act, restriction, condition or agreement, individually or in the aggregate, would reasonably be likely to have a Company Material Adverse Effect (read without regard to the exceptions set forth therein and without giving effect to clause (A) thereof) (except as provided in the immediately preceding sentence, the occurrence of any of the matters specified in clause (i) or clause (ii) above shall constitute a “Regulatory Material Adverse Effect”). In addition, in measuring whether a Regulatory Material Adverse Effect has occurred, the expected loss of any reasonably expected synergies (both cost and revenue) relating to any restriction or condition shall be taken into account as if the Company had an adverse effect to its financial condition and results of operations equal to the expected amount of applicable synergies affected by any such restriction or condition. The Company and its Subsidiaries shall not agree to any actions, restrictions or conditions with respect to obtaining any consents, registrations, approvals, permits, expirations of waiting periods or authorizations in connection with the Merger and the other transactions contemplated by this Agreement without the prior written consent of Parent (which, subject to this Section 6.5(a) may be withheld in Parent’s sole discretion). Subject to applicable Laws relating to the exchange of information, Parent and the Company shall have the right to review in advance, and to the extent practicable each will consult the other on, all of the information relating to Parent or the Company, as the case may be, and any of their respective Subsidiaries, that appears in any filing made with, or written materials submitted to, any third party and/or any Governmental Entity in connection with the Merger and the other transactions contemplated by this Agreement. To the extent permitted by applicable Law, each party shall provide the other with copies of all correspondence between it (or its advisors) and any Governmental Entity relating to the Merger and the other transactions contemplated by this Agreement and, to the extent reasonably practicable, all telephone calls and meetings with a Governmental Entity regarding the transactions contemplated by this Agreement shall include representatives Plan and to cooperate with each other in connection with the foregoing, including using its best efforts to: (a) prepare and file with the California Department as soon as is reasonably practicable all necessary permit applications and other necessary registrations and filings, including, but not limited 7 12 to, all filings and other submissions of Parent information to governmental authorities with respect to the transactions contemplated by this Plan, and the Company. In exercising the foregoing rights, the Company use its best efforts to obtain such permits and Parent each shall act reasonably and approvals as promptly as possible; (b) prepare and file with the SEC as soon as is reasonably practicablepracticable a Registration Statement, including a proxy statement/prospectus (the "Registration Statement") with respect to the transactions contemplated by this Plan, and use its best efforts to have such Registration Statement declared effective by the SEC under the Securities Act as promptly as possible; (c) mail, as soon as is reasonably practicable after receiving any required regulatory approvals, a proxy statement, together with a form of proxy, with respect to the meeting of the Company's Eligible Members at which the Eligible Members of the Company will vote upon this Plan and the Merger (the "Proxy Statement"). The term "Proxy Statement" shall mean such proxy or information statement at the time it initially is mailed to the Company's Eligible Members and all amendments or supplements thereto, if any, similarly filed and mailed. The information provided and to be provided by the Company, Holdings and New Insurer, respectively, for use in the Proxy Statement shall, on the date the Proxy Statement is first mailed to the Company's Eligible Members and on the date of the meeting of the Company's Eligible Members referred to in Section 6.2, be true and correct in all material respects and shall not omit to state any material fact necessary in order to make such information not misleading, and each of the Company, Holdings and New Insurer agrees to correct any information provided by it for use in the Proxy Statement that shall have become false or misleading; (d) take all such actions as may be required under state blue sky or securities laws in connection with the transactions contemplated by this Plan; (e) arrange for the listing of the Common Stock on a national securities exchange; (f) obtain all necessary waivers, consents and approvals from other parties to material loan agreements, leases and other contracts; (g) obtain all necessary consents, approvals and authorizations as are required to be obtained under any Federal, state or foreign law or regulations; (h) defend all lawsuits or other legal proceedings, formal or informal, challenging this Plan or the consummation of the transactions contemplated hereby; and (i) lift, rescind or mitigate the effect of any injunction or restraining order or other order adversely affecting the ability of the parties to consummate the transactions contemplated hereby.
Appears in 2 contracts
Sources: Plan and Agreement of Merger (Scpie Holdings Inc), Plan and Agreement of Merger (Scpie Holdings Inc)
Cooperation. The Company (a) Between the date hereof and Parent shallthe earlier of (i) the last Applicable Closing to occur or (ii) the termination of this Agreement, subject to Section 6.2the terms and conditions of this Agreement, the Parties shall cooperate with each other and use, and shall cause their respective Subsidiaries to, use their respective all commercially reasonable best efforts to take obtain all necessary consents and approvals for the consummation of the transactions contemplated hereby and otherwise to satisfy the conditions to closing set forth in Article II hereof. Without limiting the generality of the foregoing, (A) each of FT and DT agrees to vote (or cause to be taken all actionsvoted) the shares of capital stock of Sprint it owns (directly or indirectly) in favor of the Initial Charter Amendment, the Subsequent Charter Amendment, this Agreement, the Amended Other Agreements, the PCS Restructuring Agreement and the transactions contemplated hereby and thereby and the other matters related thereto presented for a vote at the Stockholders Meeting (including any class vote of the Class A Holders required thereat or in connection therewith), and do agrees not to exercise any disapproval rights which it may have under the Articles or otherwise with respect to any such matters, and (B) each Party shall use its commercially reasonable efforts to obtain all consents and authorizations of third parties and Governmental Authorities and to make all filings with and give all notices to third parties and Governmental Authorities which may be necessary or required in order to effect the transactions contemplated hereby.
(b) Each of the Parties shall use its reasonable efforts to resolve such objections, if any, as any Governmental Authority may assert with respect to this Agreement and the Amended Other Agreements and the transactions contemplated hereby and thereby under applicable Laws, including requesting reconsideration (which may be initiated by the party affected thereby or requested by any other Party) of any adverse ruling of any Governmental Authority and taking administrative appeals, if available and reasonably likely to result in a reversal of such adverse ruling. If any Proceeding is instituted by any Person challenging this Agreement, the Amended Other Agreements or the transactions contemplated hereby or thereby, the Parties shall promptly consult with each other to determine the most appropriate response to such Proceeding and shall cooperate in all reasonable respects with any Party subject to any such Proceeding, provided that the decision whether to initiate, and the control of, any Proceeding involving any Party shall remain within the sole discretion of such Party.
(c) Notwithstanding the foregoing, in connection with any filing or submission required or action to be taken by Sprint, FT or DT to consummate the transactions contemplated hereby, (i) neither Sprint nor any Affiliates of Sprint shall be required to become subject to any requirement or condition that it divest or "hold separate" any assets or businesses or any similar transaction or restriction, and (ii) neither Sprint nor any Affiliates of Sprint shall be required to divest or hold separate or otherwise take (or refrain from taking) or commit to take (or refrain from taking) any action that limits its freedom of action with respect to, or its ability to retain, any of the businesses, product lines or assets of Sprint or any of its Subsidiaries.
(d) Each Party shall (i) execute and deliver such additional instruments and other documents as may be reasonably requested by the other Parties hereto in connection with the consummation of the transactions contemplated hereby, and (ii) use its reasonable efforts to take, or cause to be done taken, all thingsactions and to do, necessary, proper or advisable on its part under this Agreement and applicable Laws to consummate and make effective the Merger and the other transactions contemplated by this Agreement as promptly as reasonably practicable (it being understood that nothing contained in this Agreement shall require Parent to obtain any consents, registrations, approvals, permits, expirations of waiting periods or authorizations prior to the Termination Date), including preparing and filing as promptly as reasonably practicable all documentation to effect all necessary notices, reports and other filings (including by filing no later than 20 calendar days after the date of this Agreement all applications required cause to be filed with the FCC and the notification and report form required done, all things necessary under the HSR Act; provided that the failure to file within such 20-day period shall not constitute a breach of this Agreement) and to obtain as promptly as reasonably practicable all consents, registrations, approvals, permits, expirations of waiting periods and authorizations necessary or advisable to be obtained from any third party and/or any Governmental Entity in order applicable Law to consummate the Merger or any of the other transactions contemplated hereby and by this Agreement. To the extent necessary or advisable to obtain any consent, registration, approval, permit, expiration of waiting period or authorization from any Governmental Entity in order to consummate the Merger prior to the Termination Date, (x) Parent shall, and shall cause its Subsidiaries to, and commit to cause the Company and its Subsidiaries to, take the actions and agree to those undertakings set forth on Section 6.5(a) of the Parent Disclosure Letter and (y) Parent shall, and shall cause its Subsidiaries to take, other actions involving Parent and its Subsidiaries that are in the aggregate de minimis (for the avoidance of doubt, not involving any divestiture, holding separate any business or assets or other similar action). Except as provided in the immediately preceding sentence, nothing in this Agreement shall require, or be construed to require, (i) Parent or any of its Subsidiaries to take or refrain from taking any action (including any divestiture, holding separate any business or assets or other similar action) or to agree to any restriction or condition with respect to any assets, operations, business or the conduct of business of Parent or any of its Subsidiaries and (ii) Parent, the Company or any of their respective Subsidiaries to take or refrain from taking any action (including any divestiture, holding separate any business or assets or other similar action) or to agree to any restriction or condition with respect to any assets, operations, business or the conduct of business of the Company and its Subsidiaries, if, in the case of this clause (ii), any such action, failure to act, restriction, condition or agreement, individually or in the aggregate, would reasonably be likely to have a Company Material Adverse Effect (read without regard to the exceptions set forth therein and without giving effect to clause (A) thereof) (except as provided in the immediately preceding sentence, the occurrence of any of the matters specified in clause (i) or clause (ii) above shall constitute a “Regulatory Material Adverse Effect”). In addition, in measuring whether a Regulatory Material Adverse Effect has occurred, the expected loss of any reasonably expected synergies (both cost and revenue) relating to any restriction or condition shall be taken into account as if the Company had an adverse effect to its financial condition and results of operations equal to the expected amount of applicable synergies affected by any such restriction or condition. The Company and its Subsidiaries shall not agree to any actions, restrictions or conditions with respect to obtaining any consents, registrations, approvals, permits, expirations of waiting periods or authorizations in connection with the Merger and the other transactions contemplated by this Agreement without the prior written consent of Parent (which, subject to this Section 6.5(a) may be withheld in Parent’s sole discretion). Subject to applicable Laws relating to the exchange of information, Parent and the Company shall have the right to review in advance, Amended Other Agreements and to satisfy the extent practicable each will consult the other onapplicable conditions to closing hereunder.
(e) FT shall comply, all of the information relating to Parent or the Company, as the case may be, and any of their respective Subsidiaries, that appears in any filing made with, or written materials submitted to, any third party and/or any Governmental Entity in connection with the Merger and the other transactions contemplated by this Agreement. To the extent permitted by applicable LawLaw of France, each party with final and nonappealable discovery orders rendered by a court of competent jurisdiction as provided in Section 7.8 hereof or in any corresponding section of any Amended Other Agreement, and shall provide the other take such reasonable action as appropriate in order to permit FT to so comply with copies of all correspondence between it such orders.
(or its advisorsf) and any Governmental Entity relating to the Merger and the other transactions contemplated by this Agreement andDT shall comply, to the extent reasonably permitted by applicable Law of Germany, with final and nonappealable discovery orders rendered by a court of competent jurisdiction as provided in Section 7.8 hereof or in any corresponding section of any Amended Other Agreement, and shall take such reasonable action as appropriate in order to permit DT to so comply with such orders.
(g) Sprint shall, at the request of FT and DT, use its commercially reasonable efforts to obtain, as soon as is practicable, all telephone calls any United States regulatory approvals or other regulatory relief as FT and meetings DT reasonably deem appropriate in order for FT and DT to exercise and benefit from their rights under this Agreement, the Amended Other Agreements and the Articles.
(h) In addition to any obligations under the Standstill Agreement or the Amended and Restated Standstill Agreement, the Parties shall use reasonable efforts to consult in good faith with each other with a Governmental Entity regarding view to agreeing upon any press release or public announcement relating to the transactions contemplated hereby or by this Agreement shall include representatives of Parent and the Company. In exercising Amended Other Agreements prior to the foregoing rights, the Company and Parent each shall act reasonably and as promptly as reasonably practicableconsummation thereof.
Appears in 2 contracts
Sources: Master Restructuring and Investment Agreement (Sprint Corp), Master Restructuring and Investment Agreement (Deutsche Telekom Ag)
Cooperation. The Company Subject to the restrictions of Section 2.6 of the Funding Loan Agreement, at the Funding Lender’s or the Servicer’s request (to the extent not already required to be provided by the Borrower under this Borrower Loan Agreement), the Borrower shall use reasonable efforts to satisfy the market standards to which the Funding Lender or the Servicer customarily adheres or which may be reasonably required in the marketplace or by the Funding Lender or the Servicer in connection with one or more sales or assignments of all or a portion of either or both of the Governmental Lender Notes and Parent shallthe Funding Loan or participations therein or securitizations of single or multi-class securities (the "Securities") secured by or evidencing ownership interests in all or a portion of either or both of the Governmental Lender Notes and the Funding Loan (each such sale, subject to Section 6.2assignment and/or securitization, cooperate a "Secondary Market Transaction"); provided that the Borrower shall not incur any third party or other out- of-pocket costs and expenses in connection with each other a Secondary Market Transaction, including the costs associated with the delivery of any Provided Information or any opinion required in connection therewith, and useall such costs shall be paid by the Funding Lender or the Servicer, and shall cause their respective Subsidiaries tonot materially modify Borrower’s rights or obligations. Without limiting the generality of the foregoing, use their respective reasonable best efforts the Borrower shall, so long as the Borrower Loan is still outstanding:
(i) provide such financial and other information with respect to take the Borrower Loan, and with respect to the Project, the Borrower, the Manager, the contractor of the Project or the Borrower Controlling Entity, (ii) provide financial statements, audited, if available, relating to the Project with customary disclaimers for any forward looking statements or lack of audit, and (iii), at the expense of the Funding Lender or the Servicer, perform or permit or cause to be taken all actionsperformed or permitted such site inspection, appraisals, surveys, market studies, environmental reviews and do or cause to be done all thingsreports (Phase Is and, necessaryif appropriate, proper or advisable on its part under this Agreement and applicable Laws to consummate and make effective the Merger and the other transactions contemplated by this Agreement as promptly as reasonably practicable (it being understood that nothing contained in this Agreement shall require Parent to obtain any consents, registrations, approvals, permits, expirations of waiting periods or authorizations prior to the Termination DatePhase IIs), including preparing and filing as promptly as reasonably practicable all documentation to effect all necessary notices, engineering reports and other filings due diligence investigations of the Project, as may be reasonably requested in writing from time to time by the Funding Lender or the Servicer or the Rating Agencies or as may be necessary or appropriate in connection with a Secondary Market Transaction or Exchange Act requirements (including the items provided to the Funding Lender or the Servicer pursuant to this paragraph (a) being called the "Provided Information"), together, if customary, with appropriate verification of and/or consents (including, without limitation, auditor consents) to include or incorporate by filing no later than 20 calendar days after reference the Provided Information in an offering document or otherwise provide the Provided Information to
(b) make such representations and warranties as of the closing date of this Agreement all applications required to be filed with the FCC and the notification and report form required under the HSR Act; provided that the failure to file within such 20-day period shall not constitute a breach of this Agreement) and to obtain as promptly as reasonably practicable all consents, registrations, approvals, permits, expirations of waiting periods 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. To the extent necessary or advisable to obtain any consent, registration, approval, permit, expiration of waiting period or authorization from any Governmental Entity in order to consummate the Merger prior to the Termination Date, (x) Parent shall, and shall cause its Subsidiaries to, and commit to cause the Company and its Subsidiaries to, take the actions and agree to those undertakings set forth on Section 6.5(a) of the Parent Disclosure Letter and (y) Parent shall, and shall cause its Subsidiaries to take, other actions involving Parent and its Subsidiaries that are in the aggregate de minimis (for the avoidance of doubt, not involving any divestiture, holding separate any business or assets or other similar action). Except as provided in the immediately preceding sentence, nothing in this Agreement shall require, or be construed to require, (i) Parent or any of its Subsidiaries to take or refrain from taking any action (including any divestiture, holding separate any business or assets or other similar action) or to agree to any restriction or condition Secondary Market Transaction with respect to any assetsthe Project, operationsthe Borrower, business the Borrower Loan Documents and the Funding Loan Documents reasonably acceptable to the Funding Lender or the conduct of business of Parent or any of its Subsidiaries Servicer, consistent with the facts covered by such representations and warranties as they exist on the date thereof; and
(iic) Parent, execute such amendments to the Company or any of their respective Subsidiaries Borrower Loan Documents and the Funding Loan Documents to take or refrain from taking any action (including any divestiture, holding separate any business or assets or other similar action) or to agree to any restriction or condition with respect to any assets, operations, business or accommodate such Secondary Market Transaction so long as such amendment does not affect the conduct of business material economic terms of the Company Borrower Loan Documents and its Subsidiaries, if, in the case of this clause (ii), any such action, failure to act, restriction, condition or agreement, individually or in the aggregate, would reasonably be likely to have a Company Material Adverse Effect (read without regard Funding Loan Documents and is not otherwise adverse to the exceptions set forth therein and without giving effect to clause (A) thereof) (except as provided Borrower in the immediately preceding sentence, the occurrence of any of the matters specified in clause (i) or clause (ii) above shall constitute a “Regulatory Material Adverse Effect”). In addition, in measuring whether a Regulatory Material Adverse Effect has occurred, the expected loss of any reasonably expected synergies (both cost and revenue) relating to any restriction or condition shall be taken into account as if the Company had an adverse effect to its financial condition and results of operations equal to the expected amount of applicable synergies affected by any such restriction or condition. The Company and its Subsidiaries shall not agree to any actions, restrictions or conditions with respect to obtaining any consents, registrations, approvals, permits, expirations of waiting periods or authorizations in connection with the Merger and the other transactions contemplated by this Agreement without the prior written consent of Parent (which, subject to this Section 6.5(a) may be withheld in Parent’s sole reasonable discretion). Subject to applicable Laws relating to the exchange of information, Parent and the Company shall have the right to review in advance, and to the extent practicable each will consult the other on, all of the information relating to Parent or the Company, as the case may be, and any of their respective Subsidiaries, that appears in any filing made with, or written materials submitted to, any third party and/or any Governmental Entity in connection with the Merger and the other transactions contemplated by this Agreement. To the extent permitted by applicable Law, each party shall provide the other with copies of all correspondence between it (or its advisors) and any Governmental Entity relating to the Merger and the other transactions contemplated by this Agreement and, to the extent reasonably practicable, all telephone calls and meetings with a Governmental Entity regarding the transactions contemplated by this Agreement shall include representatives of Parent and the Company. In exercising the foregoing rights, the Company and Parent each shall act reasonably and as promptly as reasonably practicable.
Appears in 2 contracts
Cooperation. (i) The Company and EFIH, on the one hand, and Parent shalland Merger Sub, subject to Section 6.2on the other hand, shall cooperate with each other and use, and shall cause their respective Subsidiaries to(other than, use with respect to the Company and EFIH, the Oncor Entities, subject to Section 6.21 and with respect to Parent, its regulated Subsidiaries and regulated controlled Affiliates) to use, their respective reasonable best efforts to take or cause to be taken all actions, and do or cause to be done done, and assist and cooperate with the other parties and the Oncor Entities in doing, all things, things reasonably necessary, proper or advisable on its part under this Agreement and applicable Laws to consummate and make effective the Merger and the other transactions contemplated by this Agreement and the Plan of Reorganization, as promptly as reasonably practicable (it being understood that nothing contained in this Agreement shall require Parent to obtain any consents, registrations, approvals, permits, expirations of waiting periods or authorizations prior to the Termination Date)practicable, including negotiating, preparing and filing as promptly as reasonably practicable all documentation to effect all necessary notices, reports and other filings (including by filing no later than 20 calendar days after the date of this Agreement all applications required to be filed with the FCC and the notification and report form required under the HSR Act; provided that the failure to file within such 20-day period shall not constitute a breach of this Agreement) and to obtain as promptly as reasonably practicable all consents, registrations, approvals, permits, expirations of waiting periods permits and authorizations necessary or advisable to be obtained from any third party and/or any Governmental Entity in order to consummate connection with the Merger or any execution, delivery and performance of this Agreement and the consummation of the other transactions contemplated by this Agreement and the Plan of Reorganization. The Company agrees that, prior to the termination of this Agreement, it will not withdraw any Application (as defined below) made pursuant to the terms of this Agreement or the Plan of Reorganization (solely as the Plan of Reorganization relates to the E-Side Debtors) without the prior written consent of Parent, such consent not to be unreasonably withheld, conditioned or delayed. To the extent necessary or advisable to obtain The Company and Parent shall supply as promptly as reasonably practical any consent, registration, approval, permit, expiration of waiting period or authorization from additional information and documentary material that may be requested by any Governmental Entity in order connection with the Applications; provided that notwithstanding the foregoing or anything else in this Agreement to consummate the contrary, the Company’s and its Subsidiaries’ (other than the Oncor Entities, subject to Section 6.21) sole obligations with respect to (i) the Minority Interest Acquisition are set forth in this Section 6.3, Section 6.18 and Section 6.19 and (ii) the IPO Conversion Plan are set forth in Section 6.20.
(ii) The Company and Parent shall use their respective reasonable best efforts to make all filings required of the Company, EFIH, Parent and Merger Sub under the HSR Act in connection with the transactions contemplated by this Agreement which shall be filed as promptly as reasonably practicable, but in no event later than the later to occur of (A) forty-five (45) days after the date hereof and (B) two (2) Business Days following receipt of the Approval Order. The filing fees of the Company and Parent required under the HSR Act in connection with the Merger prior shall be at Parent’s sole cost and expense and any other filing fees in connection with any filing(s) under the HSR Act shall be at the cost and expense of the Person considered to be the “acquiring person” pursuant to the Termination Date, HSR Act in connection with such filing(s).
(xiii) Parent shall, pursuant to the Oncor Letter Agreement or otherwise, and the Company and EFIH shall, pursuant to Section 6.21 or otherwise, use their reasonable best efforts to cause Oncor to file with the FERC an application for the FERC Approval as promptly as reasonably practicable, but in no event later than the later to occur of (A) forty-five (45) days after the date hereof and (B) two (2) Business Days following receipt of the Approval Order.
(iv) Each party shall, and shall cause its respective Subsidiaries to(other than, and commit with respect to cause the Company and EFIH, the Oncor Entities subject to Section 6.21 and with respect to Parent, its regulated Subsidiaries to, take and regulated controlled Affiliates) to appear formally (including by providing testimony) or informally before the actions and agree to those undertakings set forth on Section 6.5(a) Bankruptcy Court or any Governmental Entity if reasonably requested by the other party or required by the Bankruptcy Court or such Governmental Entity in connection with the transactions contemplated by this Agreement or the Plan of the Parent Disclosure Letter and Reorganization.
(yv) Parent shall, pursuant to the Oncor Letter Agreement or otherwise, and shall the Company and EFIH shall, pursuant to Section 6.21 or otherwise, use their reasonable best efforts to cause its Subsidiaries Oncor to takesubmit to the PUCT a single, other actions involving Parent integrated filing (on behalf of the parties) that requests prior approval by the PUCT of the transactions contemplated by this Agreement (the “PUCT Filing”) as promptly as practicable, but in no event later than the later to occur of (A) forty-five (45) days after the date hereof and its Subsidiaries that are in (B) two (2) Business Days following receipt of the aggregate de minimis Approval Order.
(for the avoidance of doubt, not involving any divestiture, holding separate any business or assets or other similar action). Except as provided in the immediately preceding sentence, nothing vi) Notwithstanding anything in this Agreement shall requireSection 6.3 or otherwise in this Agreement, in connection with any filing under the HSR Act (the “HSR Filing”), the PUCT Filing or be construed application submitted to require, (i) Parent the FCC or any of its Subsidiaries to take or refrain from taking any action (including any divestiture, holding separate any business or assets or other similar action) or to agree to any restriction or condition FERC with respect to any assetsthe transactions contemplated by this Agreement (together, operationsthe “FCC/FERC Applications” and, business or together with the conduct of business of Parent or any of its Subsidiaries and (ii) ParentPUCT Filing, the HSR Filing, the “Applications”), the Company or any of their respective Subsidiaries will not object to take or refrain from taking any action (including any divestiture, holding separate any business or assets or other similar action) or to agree to any restriction or condition with respect to any assets, operations, business or the conduct of business of the Company and its Subsidiaries, ifParent leading, in close cooperation with Oncor and in cooperation with the case of this clause (ii)Company, any such action, failure to act, restriction, condition or agreement, individually or in the aggregate, would reasonably be likely to have a Company Material Adverse Effect (read without regard to the exceptions set forth therein and without giving effect to clause (A) the scheduling and conducting of all formal meetings with all Governmental Entities (and the staffs thereof), (B) the coordination and making of all Applications and filings with any Governmental Entity and (except as provided in C) the immediately preceding sentence, the occurrence of any of the matters specified in clause (i) or clause (ii) above shall constitute a “Regulatory Material Adverse Effect”). In addition, in measuring whether a Regulatory Material Adverse Effect has occurred, the expected loss of any reasonably expected synergies (both cost and revenue) relating to any restriction or condition shall be taken into account as if the Company had an adverse effect to its financial condition and results of operations equal to the expected amount of applicable synergies affected by any such restriction or condition. The Company and its Subsidiaries shall not agree to any actions, restrictions or conditions with respect to process for obtaining any consents, registrations, approvals, permitspermits and authorizations of any Governmental Entity, expirations of waiting periods in each case, as may be necessary or authorizations advisable to be made or obtained in connection with the Merger execution, delivery and performance of this Agreement and the other consummation of the transactions contemplated by this Agreement without Agreement, including the prior written consent Closing Date Transactions (other than with respect to any governmental approvals relating exclusively to the Reorganized TCEH Spin-Off, the Reorganized TCEH Contributions, the Preferred Stock Sale or the Reorganized TCEH Conversion) and, subject to Sections 6.19, 6.20 and 6.21, the Minority Interest Acquisition and the IPO Conversion Plan. Parent shall also have the right to reasonably determine the content, terms and conditions of such Applications (and any amendments or supplements thereto) and filings (but for the avoidance of doubt the PUCT Filing shall contain all of the key terms and undertakings set forth in Exhibit E hereto (the “Key Regulatory Terms”) and may at the election of Parent (whichexercised in its sole discretion) contain the matters specified in Section 6.3(a)(vi) of the Parent Disclosure Letter, and to resolve any investigation or other inquiry of any Governmental Entity (and the staffs thereof), including the PUCT, in each case, as may be necessary or reasonably advisable to be made or obtained (in the case of such applications or filings) or resolved (in the case of such investigations and other inquiries), in connection with the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated by this Agreement, including the Closing Date Transactions and, subject to Sections 6.19, 6.20 and 6.21, the Minority Interest Acquisition and the IPO Conversion Plan. Prior to making any decisions pursuant to this Section 6.5(a6.3(a)(vi), Parent shall consult and collaborate in good faith with the Oncor Entities and the Company and EFIH with respect to such decisions and consider in good faith the views of the Oncor Entities and the Company and EFIH.
(vii) may be withheld in Parent’s sole discretion). Subject to applicable Laws relating to the exchange of information, Parent and Merger Sub, on the one hand, and the Company and EFIH, on the other hand, shall, and shall have cause their respective Subsidiaries (other than the right Oncor Entities) and controlled Affiliates (other than Parent’s regulated Subsidiaries and regulated controlled Affiliates) to, use their respective reasonable best efforts to provide the other a reasonable opportunity to review in advanceadvance and, and to the extent practicable practicable, each will consult with the other onon and consider in good faith the views of the other in connection with, all of the material information relating to Parent or the Company, as the case may be, and any of their respective Subsidiaries, that appears in any filing made with, or written materials submitted to, any third party and/or or oral presentations or testimony made to any Governmental Entity (other than with respect to any governmental approvals relating exclusively to the Reorganized TCEH Spin-Off, the Reorganized TCEH Contributions, the Preferred Stock Sale or the Reorganized TCEH Conversion) in connection with the Merger and the other transactions contemplated by this Agreement. To In exercising the extent permitted by applicable Lawforegoing rights and obligations, each party of the Company, EFIH, Parent and Merger Sub shall provide act reasonably and as promptly as practicable.
(viii) Parent and Merger Sub, on the one hand, and the Company and EFIH, on the other with copies of all correspondence between it (or its advisors) and any Governmental Entity relating hand, agree not to the Merger and the other transactions contemplated by this Agreement andschedule, to the extent reasonably practicable, all telephone calls and any substantive meetings or substantive communications with a any Governmental Entity or in pursuit of obtaining any necessary clearances pursuant to the HSR Act (other than with respect to any governmental approvals relating exclusively to the Reorganized TCEH Spin-Off, the Reorganized TCEH Contributions, the Preferred Stock Sale or the Reorganized TCEH Conversion) regarding the transactions contemplated by this Agreement or the Plan of Reorganization (solely as the Plan of Reorganization relates to the E-Side Debtors) without giving the other party or its Representatives a reasonable opportunity to participate in such meeting or communication to the extent permitted by such Governmental Entity and to the extent with respect to matters involving any of the Applications, unless Parent reasonably believes that such participation would be imprudent provided that Parent may not exclude the Company or EFIH from any such meeting or communication if a Governmental Entity has requested that the Company or EFIH participate, and in any event the parties hereto shall include representatives keep each other reasonably apprised of all material substantive communications with Governmental Entities (other than with respect to any governmental approvals relating exclusively to the Reorganized TCEH Spin-Off, the Reorganized TCEH Contributions, the Preferred Stock Sale or the Reorganized TCEH Conversion) of which they are aware regarding the transactions contemplated by this Agreement or the Plan of Reorganization (solely as the Plan of Reorganization relates to the E-Side Debtors). Parent and Merger Sub, on the Company. one hand, and the Company and EFIH, on the other hand, shall use their reasonable best efforts to obtain the PUCT Approval and the FERC Approval as expeditiously as possible.
(ix) In exercising the foregoing rights, event that the Company and Parent each agree in writing upon the use of common counsel or consultants with respect to the negotiation, preparation or filing of any necessary consent, registration, approval, permits and/or authorizations under this Section 6.3(a), they shall act reasonably share equally the fees and as promptly as reasonably practicableexpenses of such counsel and consultants.
Appears in 2 contracts
Sources: Merger Agreement (Nextera Energy Inc), Merger Agreement (Energy Future Intermediate Holding CO LLC)
Cooperation. (a) The Company Corporation agrees to use its commercially reasonable efforts to, and Parent shall use its commercially reasonable efforts to cause its Subsidiaries to, perform all obligations required to be performed by the Corporation or any of its Subsidiaries under this Agreement, cooperate with Acquiror in connection therewith, and do all such other acts and things as may be necessary or desirable in order to consummate and make effective, as soon as reasonably practicable, the transactions contemplated in this Agreement and, without limiting the generality of the foregoing, the Corporation shall, :
(i) subject to Section 6.23.2, cooperate with each other at the request of Acquiror, solicit from the Shareholders and use, Optionholders proxies in favour of approval of the Arrangement Resolution and shall cause their respective Subsidiaries to, use their respective commercially reasonable best efforts to take obtain the approval by such Shareholders and Optionholders of the Arrangement Resolution, voting as a single class;
(ii) not adjourn, postpone or cancel (or propose adjournment, postponement or cancellation of) the Shareholder Meeting without Acquiror's prior written consent except as required by applicable laws, or in the case of adjournment, if a Material Adverse Change or Material Adverse Effect occurs in the affairs of Acquiror on or after the day which is two Business Days preceding the commencement of the Measurement Period (as defined in the Plan of Arrangement) or as may be required by Shareholders and Optionholders as expressed by majority resolution, voting as a single class;
(iii) use commercially reasonable efforts to satisfy or cause to be taken all actions, and do or cause to be done all things, necessary, proper or advisable on its part under this Agreement and applicable Laws to consummate and make effective the Merger and the other transactions contemplated by this Agreement satisfied as promptly as reasonably practicable (it being understood that nothing contained in this Agreement shall require Parent to obtain any consents, registrations, approvals, permits, expirations of waiting periods or authorizations prior to the Termination Date), including preparing and filing as promptly soon as reasonably practicable all documentation the conditions precedent that are set forth in Article 9;
(iv) apply for and use commercially reasonable efforts to obtain as promptly as practicable all Regulatory Approvals relating to the Corporation or any of its Subsidiaries and, in doing so, to keep Acquiror reasonably informed as to the status of the proceedings related to obtaining the Regulatory Approvals, including, but not limited to, providing Acquiror the opportunity to be present for or participate in all communications with any Governmental Entity and providing Acquiror with copies of all related applications and notifications, in draft form, in order for Acquiror to provide its reasonable comments;
(v) apply for and use commercially reasonable efforts to obtain the Interim Order and the Final Order;
(vi) carry out the terms of the Interim Order and the Final Order applicable to it and use commercially reasonable efforts to comply promptly with all requirements which applicable laws may impose on the Corporation or its Subsidiaries with respect to the transactions contemplated hereby and by the Arrangement;
(vii) use commercially reasonable efforts to defend all lawsuits or other legal, regulatory or other proceedings to which it is a party challenging or affecting this Agreement or the consummation of the transactions contemplated hereby;
(viii) use commercially reasonable efforts to have lifted or rescinded any injunction or restraining order or other order which may adversely affect the ability of the parties to consummate the transactions contemplated hereby;
(ix) effect all necessary noticesregistrations, reports filings and other filings submissions of information required by Governmental Entities from the Corporation or any of its Subsidiaries in connection with the transactions contemplated hereby;
(including by filing no later than 20 calendar days x) consult with Acquiror prior to making publicly available its financial results for any period after the date of this Agreement provided that the Corporation is not unreasonably impaired in satisfying all applications disclosure requirements under Securities Laws in respect thereof; and
(xi) use commercially reasonable efforts to obtain all waivers, consents and approvals from other parties to loan agreements, leases or other contracts required to be filed with obtained by the FCC and Corporation or a Subsidiary of the notification and report form required under Corporation to consummate the HSR Act; provided that transactions contemplated hereby which the failure to file within such 20-day period shall not constitute obtain would have a breach Material Adverse Effect.
(b) Acquiror agrees that, until the earlier of the Effective Date and the termination of this AgreementAgreement pursuant to its terms, in each case except (i) and to obtain as promptly as reasonably practicable all consents, registrations, approvals, permits, expirations of waiting periods and authorizations necessary or advisable to be obtained from any third party and/or any Governmental Entity in order to consummate with the Merger or any consent of the other transactions Corporation to any deviation therefrom, or (ii) as expressly contemplated by this Agreement. To Agreement or the extent necessary Plan of Arrangement, Acquiror shall and will cause its Subsidiaries to:
(i) subject to Section 2.10(c)(vii), not adopt or advisable propose to obtain adopt any consent, registration, approval, permit, expiration amendments to its governing documents or the governing documents of waiting period Canco or authorization from any Governmental Entity in order to consummate the Merger prior Acquiror or to the Termination DateSupport Agreement or the Voting and Exchange Trust Agreement which would have a material adverse impact on the consummation of the transactions contemplated hereby or the economic terms of, or the form of, consideration to be provided pursuant to the Arrangement; and
(xii) Parent shallnot take any action which may jeopardize the exchange of the Shares by Shareholders who are resident in Canada for the purposes of the Income Tax Act (Canada) from being treated on a tax deferred basis under the Income Tax Act (Canada) for holders who are otherwise eligible for such treatment.
(c) Acquiror agrees to use its commercially reasonable efforts to, and shall use its commercially reasonable efforts to cause its Subsidiaries to, and commit perform all obligations required to cause the Company and its Subsidiaries to, take the actions and agree to those undertakings set forth on Section 6.5(a) of the Parent Disclosure Letter and (y) Parent shall, and shall cause its Subsidiaries to take, other actions involving Parent and its Subsidiaries that are in the aggregate de minimis (for the avoidance of doubt, not involving any divestiture, holding separate any business or assets or other similar action). Except as provided in the immediately preceding sentence, nothing in this Agreement shall require, or be construed to require, (i) Parent performed by it or any of its Subsidiaries under this Agreement, cooperate with the Corporation in connection therewith, and do all such other acts and things as may be necessary or desirable in order to take or refrain from taking any action (including any divestitureconsummate and make effective, holding separate any business or assets or other similar action) or to agree to any restriction or condition with respect to any assets, operations, business or the conduct of business of Parent or any of its Subsidiaries and (ii) Parentas soon as reasonably practicable, the Company or any of their respective Subsidiaries to take or refrain from taking any action (including any divestiture, holding separate any business or assets or other similar action) or to agree to any restriction or condition with respect to any assets, operations, business or the conduct of business of the Company and its Subsidiaries, if, in the case of this clause (ii), any such action, failure to act, restriction, condition or agreement, individually or in the aggregate, would reasonably be likely to have a Company Material Adverse Effect (read without regard to the exceptions set forth therein and without giving effect to clause (A) thereof) (except as provided in the immediately preceding sentence, the occurrence of any of the matters specified in clause (i) or clause (ii) above shall constitute a “Regulatory Material Adverse Effect”). In addition, in measuring whether a Regulatory Material Adverse Effect has occurred, the expected loss of any reasonably expected synergies (both cost and revenue) relating to any restriction or condition shall be taken into account as if the Company had an adverse effect to its financial condition and results of operations equal to the expected amount of applicable synergies affected by any such restriction or condition. The Company and its Subsidiaries shall not agree to any actions, restrictions or conditions with respect to obtaining any consents, registrations, approvals, permits, expirations of waiting periods or authorizations in connection with the Merger and the other transactions contemplated by this Agreement without the prior written consent of Parent (which, subject to this Section 6.5(a) may be withheld in Parent’s sole discretion). Subject to applicable Laws relating to the exchange of information, Parent and the Company shall have the right to review in advance, and to the extent practicable each will consult the other on, all of the information relating to Parent or the Company, as the case may be, and any of their respective Subsidiaries, that appears in any filing made with, or written materials submitted to, any third party and/or any Governmental Entity in connection with the Merger and the other transactions contemplated by this Agreement. To the extent permitted by applicable Law, each party shall provide the other with copies of all correspondence between it (or its advisors) and any Governmental Entity relating to the Merger and the other transactions contemplated by this Agreement and, without limiting the generality of the following:
(i) use commercially reasonable efforts to satisfy or cause to be satisfied as soon as reasonably practicable all conditions precedent that are set forth in Article 9 hereof;
(ii) apply for and use commercially reasonable efforts to obtain promptly all Regulatory Approvals relating to Acquiror or any of its Subsidiaries, and, in doing so, to keep the Corporation reasonably informed as to the extent reasonably practicablestatus of the proceedings related to obtaining the Regulatory Approvals, including, but not limited to, providing the Corporation with copies of all telephone calls related applications and meetings notifications, in draft form, in order for the Corporation to provide its reasonable comments;
(iii) carry out the terms of the Interim Order and Final Order applicable to it and use commercially reasonable efforts to comply promptly with a Governmental Entity regarding all requirements which applicable laws may impose on Acquiror with respect to the transactions contemplated hereby and by the Arrangement;
(iv) in respect of holders of Shares who are resident in Canada for the purposes of the Income Tax Act (Canada) and are not exempt from tax under Part 1 of the Income Tax Act (Canada) and who receive Exchangeable Shares under the Arrangement, to cause Canco to enter into elections with any such holders who make elections under Section 85 of the Income Tax Act (Canada) and any equivalents thereof under provincial laws;
(v) use commercially reasonable efforts to defend all lawsuits or other legal, regulatory or other proceedings to which it is a party challenging or affecting this Agreement shall include representatives or the consummation of Parent the transactions contemplated hereby;
(vi) use commercially reasonable efforts to have lifted or rescinded any injunction or restraining order or other order relating to Acquiror or any of its Subsidiaries which may adversely affect the ability of the parties to consummate the transactions contemplated hereby;
(vii) effect all necessary registrations, filings and submissions of information required by Governmental Entities from Acquiror or any of its Subsidiaries in connection with the Company. In exercising transactions contemplated hereby;
(viii) reserve or have available a sufficient number of Acquiror Shares for issuance upon the foregoing rightsexchange from time to time of Exchangeable Shares issued pursuant to the Arrangement, and use commercially reasonable efforts to cause such Acquiror Shares to be approved for listing on the Company American Stock Exchange, subject to official notice of issuance, prior to the Effective Time;
(ix) use commercially reasonable efforts (A) to cause the Exchangeable Shares issued pursuant to the Arrangement to be listed for trading on the Exchange by the Effective Date and Parent each shall act reasonably and (B) to ensure that Canco remains a "public corporation" within the meaning of the Income Tax Act (Canada) for so long as promptly any Exchangeable Shares are outstanding (other than those Exchangeable Shares held by Acquiror or any of its affiliates); and
(x) not, during the Measurement Period (as reasonably practicabledefined in the Plan of Arrangement) buy back any of its outstanding Acquiror Shares.
Appears in 2 contracts
Sources: Arrangement Agreement (Nabors Industries LTD), Arrangement Agreement (Nabors Industries LTD)
Cooperation. The Company (a) Borrower acknowledges that Lender and Parent shallits successors and assigns may without notice to or consent from Borrower (i) sell this Agreement, subject the Mortgage, the Note, the other Loan Documents, and any and all servicing rights thereto to Section 6.2one or more investors as a whole loan, (ii) participate the Loan to one or more investors, (iii) deposit this Agreement, the Note and the other Loan Documents with a trust, which trust may sell certificates to investors evidencing an ownership interest in the trust assets, or (iv) otherwise sell or encumber the Loan or interests therein to investors (the transactions referred to in clauses (i) through (iv) are hereinafter each referred to as a “Secondary Market Transaction”). Borrower shall cooperate with each other and use, Lender in effecting any such Secondary Market Transaction and shall cause their respective Subsidiaries cooperate to implement all requirements imposed by any rating agency involved in any Secondary Market Transaction. Borrower further agrees that Lender may, without any notice to or consent from Borrower, disseminate to any such actual or potential purchaser(s), assignee(s), lender(s) or participant(s) all documents and information (including all financial information) which has been or is hereafter provided to or known to Lender with respect to: (a) the Project and its operation; (b) any party connected with the Loan (including Borrower, use their respective reasonable best efforts any Borrower Party, any partner of Borrower or any Borrower Party, any constituent partner or member of Borrower or any Borrower Party), and/or (c) any lending relationship other than the Loan which ▇▇▇▇▇▇ may have with any party connected with the Loan. Borrower shall provide such information and documents (and updated information and documents) relating to take ▇▇▇▇▇▇▇▇, Guarantor and the Project as Lender may request in connection with such Secondary Market Transaction, together with such opinion(s) of counsel as Lender may reasonably request. In addition, Borrower shall make available to Lender all information concerning its business and operations that Lender may reasonably request. Lender shall be permitted to share all such information with the investment banking firms, rating agencies, accounting firms, law firms and other third-party advisory firms involved with the Loan and the Loan Documents or cause the applicable Secondary Market Transaction. It is understood that the information provided by ▇▇▇▇▇▇▇▇ to Lender may ultimately be taken incorporated into the offering documents for the Secondary Market Transaction and thus various investors may also see some or all actionsof the information. ▇▇▇▇▇▇ and all of the aforesaid third-party advisors and professional firms shall be entitled to rely on the information supplied by or on behalf of Borrower. ▇▇▇▇▇▇▇▇ also agrees to execute any amendment of or supplement to this Agreement and the other Loan Documents as Lender may reasonably request in connection with any Secondary Market Transaction, and do provided that such amendment or cause to be done all things, necessary, proper supplement does not change any of the economic terms of the Loan or advisable on its part materially increase Borrower’s non-monetary Obligations or materially diminish Borrower’s rights under this Agreement and applicable Laws to consummate the other Loan Documents. All reasonable third party costs and make effective expenses incurred by any Loan Party in connection with ▇▇▇▇▇▇▇▇’s complying with requests made under this Section 8.15 shall be paid by ▇▇▇▇▇▇, except for ▇▇▇▇▇▇▇▇’s attorneys’ fees. In the Merger event of any such sale, assignment, encumbrance, grant or participation, Lender and the other transactions contemplated by this Agreement parties to such transaction will share in the rights and obligations of Lender as promptly set forth in the Loan Documents only as reasonably practicable (it being understood that nothing contained in this Agreement shall require Parent to obtain any consents, registrations, approvals, permits, expirations of waiting periods or authorizations prior and to the Termination Date)extent they agree among themselves.
(b) Lender shall have the right, including preparing and filing as promptly as reasonably practicable all documentation at its own expense, at any time, to effect all necessary notices, reports and other filings (including by filing no later than 20 calendar days after modify the date of this Agreement all applications required to be filed with the FCC and the notification and report form required under the HSR Act; provided that the failure to file within such 20-day period shall not constitute a breach of this Agreement) and to obtain as promptly as reasonably practicable all consents, registrations, approvals, permits, expirations of waiting periods and authorizations necessary or advisable to be obtained from any third party and/or any Governmental Entity Loan in order to consummate the Merger create one or any more notes of the other transactions contemplated by this Agreement. To the extent necessary equal or advisable to obtain any consentvarying priority and/or interest rates (including, registrationwithout limitation, approvalso-called “A/B Notes”); provided, permit, expiration of waiting period or authorization from any Governmental Entity in order to consummate the Merger prior to the Termination Date, (x) Parent shall, and shall cause its Subsidiaries to, and commit to cause the Company and its Subsidiaries to, take the actions and agree to those undertakings set forth on Section 6.5(a) of the Parent Disclosure Letter and (y) Parent shall, and shall cause its Subsidiaries to take, other actions involving Parent and its Subsidiaries that are in the aggregate de minimis (for the avoidance of doubt, not involving any divestiture, holding separate any business or assets or other similar action). Except as provided in the immediately preceding sentence, nothing in this Agreement shall require, or be construed to require, that: (i) Parent or any the Principal Balance of its Subsidiaries the Loan as of the effective date of such modification equals the Principal Balance of the Loan immediately prior to take or refrain from taking any action (including any divestiture, holding separate any business or assets or other similar action) or to agree to any restriction or condition with respect to any assets, operations, business or the conduct of business of Parent or any of its Subsidiaries such modification; and (ii) Parent, the Company or any weighted average stated interest rate of their respective Subsidiaries all such notes on the date created shall equal the stated interest rates that were applicable to take or refrain from taking any action (including any divestiture, holding separate any business or assets or other similar action) or the Loan immediately prior to agree to any restriction or condition with respect to any assets, operations, business or the conduct of business such modification of the Company and its Subsidiaries, if, in the case of this clause (ii), any such action, failure to act, restriction, condition or agreement, individually or in the aggregate, would reasonably be likely to have a Company Material Adverse Effect (read without regard to the exceptions set forth therein and without giving effect to clause (A) thereof) (except as provided in the immediately preceding sentence, the occurrence of any of the matters specified in clause (i) or clause (ii) above shall constitute a “Regulatory Material Adverse Effect”)Loan. In addition, in measuring whether a Regulatory Material Adverse Effect has occurred, the expected loss of any reasonably expected synergies (both cost and revenue) relating to any restriction or condition shall be taken into account as if the Company had an adverse effect to its financial condition and results of operations equal to the expected amount of applicable synergies affected by any such restriction or condition. The Company and its Subsidiaries shall not agree to any actions, restrictions or conditions with respect to obtaining any consents, registrations, approvals, permits, expirations of waiting periods or authorizations in connection with the Merger and the other transactions contemplated by this Agreement without the prior written consent of Parent (which, subject to this Section 6.5(a) may be withheld in Parent’s sole discretion). Subject to applicable Laws relating to the exchange of information, Parent and the Company Lender shall have the right to review modify the Loan in advanceaccordance with this Section 8.15(b) upon notice to Borrower in which event such modification shall then be deemed effective. If requested by ▇▇▇▇▇▇, Borrower shall promptly execute an amendment to this Agreement, the Note and the other Loan Documents to evidence such modification; provided that such amendment shall have no materially adverse tax consequences to Borrower or any of its direct or indirect owners. Borrower shall, at its own expense, cooperate with all reasonable requests of Lender in order to establish the “component” notes and shall execute and deliver such documents as shall reasonably be required by Lender in connection therewith.
(c) The indemnity obligations of Borrower under the Loan Documents (including under Section 8.12) will also apply with respect to any purchaser, assignee, lender or participant. Anything in this Agreement to the contrary notwithstanding, and without the need to comply with any of the formal or procedural requirements of this Agreement, including this Section 8.15, Lender may (without notice to Borrower and without payment of any fee) at any time and from time to time pledge and assign all or any portion of its rights under all or any of the Loan Documents to a Federal Reserve Bank or a Federal Home Loan Bank; provided that no such pledge or assignment will release Lender from its obligations thereunder. In the event Lender sells or assigns the Loan and the Loan Documents, Lender will endeavor to give Borrower notice thereof (without liability for failure to so deliver such notice).
(d) At the option of Lender, the Loan may be serviced by a master servicer, primary servicer, special servicer and/or trustee (any such master servicer, primary servicer, special servicer, and trustee, together with its agents, nominees or designees, are collectively referred to as “Servicer”) selected by ▇▇▇▇▇▇ and Lender may delegate all or any portion of its responsibilities under this Agreement and the other Loan Documents to Servicer pursuant to a pooling and servicing agreement, servicing agreement, special servicing agreement or other agreement providing for the servicing of one or more mortgage loans (collectively, the “Servicing Agreement”) between Lender and Servicer. Borrower shall be responsible for any reasonable set up fees or any other initial costs relating to or arising under the Servicing Agreement, but Borrower shall not be responsible for payment of the regular monthly master servicing fee or trustee fee due to Servicer under the Servicing Agreement or any fees or expenses required to be borne by, and not reimbursable to, Servicer. Notwithstanding the foregoing, Borrower shall promptly reimburse Lender on demand for (i) interest payable on advances made by Servicer with respect to delinquent debt service payments (to the extent practicable each will consult charges are due under this Agreement and interest at the other onDefault Rate actually paid by Borrower in respect of such payments is insufficient to pay the same) and expenses paid by Servicer or trustee in respect of the protection and preservation of the Project (including, without limitation, payments of Taxes and insurance premiums) and (ii) all of the information relating following costs and expenses, liquidation fees, workout fees, special servicing fees, operating advisor fees or any other similar fees payable by Lender to Parent Servicer: (A) as a result of an Event of Default or the CompanyLoan becoming specially serviced, as an enforcement, refinancing or restructuring of the case credit arrangements provided under this Agreement in the nature of a “work-out” of the Loan Documents or of any insolvency or bankruptcy proceeding; (B) any liquidation fees, workout fees, special servicing fees, operating advisor fees or any other similar fees that are due and payable to Servicer under the Servicing Agreement or the trustee, which fees may bebe due and payable under the Servicing Agreement on a periodic or continuing basis; (C) the costs of all property inspections and/or appraisals of the Project (or any updates to any existing inspection or appraisal) that Servicer or the trustee may be required to obtain (other than the cost of regular annual inspections required to be borne by Servicer under the Servicing Agreement); or (D) any special requests made by Borrower or Guarantor during the term of the Loan including, and any of their respective Subsidiarieswithout limitation, that appears in any filing made with, or written materials submitted to, any third party and/or any Governmental Entity in connection with a prepayment, assumption or modification of the Merger and the other transactions contemplated by this Agreement. To the extent permitted by applicable Law, each party shall provide the other with copies of all correspondence between it (or its advisors) and any Governmental Entity relating to the Merger and the other transactions contemplated by this Agreement and, to the extent reasonably practicable, all telephone calls and meetings with a Governmental Entity regarding the transactions contemplated by this Agreement shall include representatives of Parent and the Company. In exercising the foregoing rights, the Company and Parent each shall act reasonably and as promptly as reasonably practicableLoan.
Appears in 2 contracts
Sources: Term Loan Agreement (Cedar Realty Trust, Inc.), Term Loan Agreement (Wheeler Real Estate Investment Trust, Inc.)
Cooperation. The Company Parent, on the one hand, and Parent the Company, on the other hand, shall, subject in connection with the transactions contemplated by this Section 6.19, use its reasonable best efforts to Section 6.2, (i) consult and cooperate with each other in connection with any filing or submission to the IRS or any communications, negotiations and use, discussions with the IRS with respect to the IRS Matter and shall cause their respective Subsidiaries to, use their respective reasonable best efforts to take or cause to be taken all actions, and do or cause to be done all things, actions necessary, proper or advisable on its part under this in order to enter into an IRS Matter Qualified Letter of Intent and IRS Matter Qualified Closing Agreement and applicable Laws to consummate and make effective the Merger and the other transactions contemplated by this Agreement as promptly as reasonably practicable (it being understood that nothing contained in this Agreement shall require Parent to obtain any consentsincluding, registrations, approvals, permits, expirations of waiting periods or authorizations prior to the Termination DateClosing, by providing Parent with advance notice of, and permitting Parent to attend (as a silent participant, which shall be effected by the Company delivering an executed Form 8821 to the IRS) all negotiations, discussions and similar meetings with the IRS with respect to the IRS Matter and to review and comment on any written communications and documentation with respect thereto); (ii) subject to applicable Law, including preparing and filing furnish to the other Party as promptly as reasonably practicable all documentation information required for any filing or submission to effect the IRS with respect to the IRS Matter; (iii) promptly notify the other Party of any substantive communication received by such Party from, or given by such Party to, the IRS, in each case regarding the IRS Matter and furnish the other Party promptly with copies of all necessary noticeswritten correspondence, reports filings and other filings (including by filing no later than 20 calendar days after the date of this Agreement all applications required to be filed with the FCC communications between them and the notification and report form required under IRS with respect to the HSR ActIRS Matter; provided that the failure to file within such 20-day period shall not constitute a breach of this Agreement(iv) and to obtain respond as promptly as reasonably practicable all consentsto any inquiries received from, registrations, approvals, permits, expirations and supply as promptly as reasonably practicable any additional information or documentation that may be requested by the IRS in respect of waiting periods the IRS Matter; and authorizations necessary or advisable (v) permit the other Party to review any communication 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. To the extent necessary or advisable to obtain any consent, registration, approval, permit, expiration of waiting period or authorization from any Governmental Entity in order to consummate the Merger prior provided to the Termination DateIRS, (x) and consult with such other Party and consider in good faith such other Party’s reasonable comments, in connection with any filing, notice, submission, substantive communication, substantive meeting or conference. Prior to the Closing, Parent shallshall not, and shall cause not permit its Subsidiaries Representatives to, and commit independently or jointly with the Company, participate in any meeting or communication with the IRS or make any filing or submission to cause the Company and its Subsidiaries toIRS, take or furnish to the actions and agree to those undertakings set forth on Section 6.5(a) IRS any information, in each case in respect of the Parent Disclosure Letter and (y) Parent shallIRS Matter, and shall cause its Subsidiaries to take, other actions involving Parent and its Subsidiaries that are in the aggregate de minimis (for the avoidance of doubt, not involving any divestiture, holding separate any business or assets or other similar action). Except as provided in the immediately preceding sentence, nothing in this Agreement shall require, or be construed to require, (i) Parent or any of its Subsidiaries to take or refrain from taking any action (including any divestiture, holding separate any business or assets or other similar action) or to agree to any restriction or condition with respect to any assets, operations, business or the conduct of business of Parent or any of its Subsidiaries and (ii) Parent, the Company or any of their respective Subsidiaries to take or refrain from taking any action (including any divestiture, holding separate any business or assets or other similar action) or to agree to any restriction or condition with respect to any assets, operations, business or the conduct of business of the Company and its Subsidiaries, if, in the case of this clause (ii), any such action, failure to act, restriction, condition or agreement, individually or in the aggregate, would reasonably be likely to have a Company Material Adverse Effect (read without regard to the exceptions set forth therein and without giving effect to clause (A) thereof) (except as provided in the immediately preceding sentence, the occurrence of any of the matters specified in clause (i) or clause (ii) above shall constitute a “Regulatory Material Adverse Effect”). In addition, in measuring whether a Regulatory Material Adverse Effect has occurred, the expected loss of any reasonably expected synergies (both cost and revenue) relating to any restriction or condition shall be taken into account as if the Company had an adverse effect to its financial condition and results of operations equal to the expected amount of applicable synergies affected by any such restriction or condition. The Company and its Subsidiaries shall not agree to any actions, restrictions or conditions with respect to obtaining any consents, registrations, approvals, permits, expirations of waiting periods or authorizations in connection with the Merger and the other transactions contemplated by this Agreement without the prior written consent of Parent the Company (whichnot to be unreasonably withheld, subject to this Section 6.5(a) may be withheld in Parent’s sole discretionconditioned or delayed). Subject to applicable Laws The Company shall keep Parent informed on a reasonably current basis and otherwise provide such information as Parent reasonably requests regarding any material developments, discussions or negotiations relating to the exchange of information, Parent and the Company shall have the right to review in advance, and to the extent practicable each will consult the other on, all of the information relating to Parent or the Company, as the case may be, and any of their respective Subsidiaries, that appears in any filing made with, or written materials submitted to, any third party and/or any Governmental Entity in connection with the Merger and the other transactions contemplated by this Agreement. To the extent permitted by applicable Law, each party shall provide the other with copies of all correspondence between it (or its advisors) and any Governmental Entity relating to the Merger and the other transactions contemplated by this Agreement and, to the extent reasonably practicable, all telephone calls and meetings with a Governmental Entity regarding the transactions contemplated by this Agreement shall include representatives of Parent and the Company. In exercising the foregoing rights, the Company and Parent each shall act reasonably and as promptly as reasonably practicableIRS Matter.
Appears in 2 contracts
Sources: Merger Agreement (CorePoint Lodging Inc.), Merger Agreement (CorePoint Lodging Inc.)
Cooperation. The Company Each member of the ADP Group and Parent shallthe Broadridge Group shall cooperate fully with all reasonable requests from the other Party in connection with the preparation and filing of Tax Returns and Adjustment Requests, subject to Section 6.2, cooperate with each Tax Contests and other and usematters covered by this Agreement.
(a) Such cooperation shall include:
(i) the retention until the expiration of the applicable statute of limitations, and shall cause their respective Subsidiaries tothe provision upon request, of Tax Returns, books, records (including information regarding ownership and Tax basis of property), documentation and other information relating to the Tax Returns, including accompanying schedules, related workpapers, and documents relating to Rulings or other determinations by Taxing Authorities;
(ii) the execution of any document that may be necessary or reasonably helpful in connection with any Tax Contest, the filing of a Tax Return or Adjustment Request by a member of the ADP Group or the Broadridge Group, obtaining a Tax opinion or private letter ruling (except as otherwise provided in Section 4.02(d)), or other matters covered by this Agreement, including certification (provided in such form as may be required by applicable law or reasonably requested and made to the best of a Party’s knowledge) of the accuracy and completeness of the information it has supplied;
(iii) the use their respective of the Parties’ 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 on its part under this Agreement and applicable Laws to consummate and make effective the Merger and the other transactions contemplated by this Agreement as promptly as reasonably practicable (it being understood that nothing contained in this Agreement shall require Parent to obtain any consents, registrations, approvals, permits, expirations of waiting periods or authorizations prior to the Termination Date), including preparing and filing as promptly as reasonably practicable all documentation to effect all necessary notices, reports and other filings (including by filing no later than 20 calendar days after the date of this Agreement all applications required to that may be filed with the FCC and the notification and report form required under the HSR Act; provided that the failure to file within such 20-day period shall not constitute a breach of this Agreement) and to obtain as promptly as reasonably practicable all consents, registrations, approvals, permits, expirations of waiting periods and authorizations necessary or advisable to be obtained from any third party and/or any Governmental Entity reasonably helpful in order to consummate the Merger or connection with any of the other transactions contemplated by this Agreement. To foregoing;
(iv) the extent necessary or advisable to obtain any consent, registration, approval, permit, expiration of waiting period or authorization from any Governmental Entity in order to consummate the Merger prior to the Termination Date, (x) Parent shall, and shall cause its Subsidiaries to, and commit to cause the Company and its Subsidiaries to, take the actions and agree to those undertakings set forth on Section 6.5(a) use of the Parent Disclosure Letter Parties’ reasonable best efforts to make the applicable Party’s current or former directors, officers, employees, agents and (y) Parent shall, facilities available on a reasonable and shall cause its Subsidiaries to take, other actions involving Parent and its Subsidiaries that are in the aggregate de minimis (for the avoidance of doubt, not involving any divestiture, holding separate any business or assets or other similar action). Except as provided in the immediately preceding sentence, nothing in this Agreement shall require, or be construed to require, (i) Parent or any of its Subsidiaries to take or refrain from taking any action (including any divestiture, holding separate any business or assets or other similar action) or to agree to any restriction or condition with respect to any assets, operations, business or the conduct of business of Parent or any of its Subsidiaries and (ii) Parent, the Company or any of their respective Subsidiaries to take or refrain from taking any action (including any divestiture, holding separate any business or assets or other similar action) or to agree to any restriction or condition with respect to any assets, operations, business or the conduct of business of the Company and its Subsidiaries, if, in the case of this clause (ii), any such action, failure to act, restriction, condition or agreement, individually or in the aggregate, would reasonably be likely to have a Company Material Adverse Effect (read without regard to the exceptions set forth therein and without giving effect to clause (A) thereof) (except as provided in the immediately preceding sentence, the occurrence of any of the matters specified in clause (i) or clause (ii) above shall constitute a “Regulatory Material Adverse Effect”). In addition, in measuring whether a Regulatory Material Adverse Effect has occurred, the expected loss of any reasonably expected synergies (both cost and revenue) relating to any restriction or condition shall be taken into account as if the Company had an adverse effect to its financial condition and results of operations equal to the expected amount of applicable synergies affected by any such restriction or condition. The Company and its Subsidiaries shall not agree to any actions, restrictions or conditions with respect to obtaining any consents, registrations, approvals, permits, expirations of waiting periods or authorizations mutually convenient basis in connection with the Merger and the other transactions contemplated by this Agreement without the prior written consent of Parent foregoing matters; and
(which, subject v) making determinations with respect to this actions described in Section 6.5(a4.02(c) may be withheld in Parent’s sole discretion). Subject to applicable Laws relating to the exchange of information, Parent and the Company shall have the right to review in advance, and to the extent practicable each will consult the other on, all of the information relating to Parent or the Company, as the case may be, and any of their respective Subsidiaries, that appears in any filing made with, or written materials submitted to, any third party and/or any Governmental Entity in connection with the Merger and the other transactions contemplated by this Agreement. To the extent permitted by applicable Law, each party shall provide the other with copies of all correspondence between it (or its advisors) and any Governmental Entity relating to the Merger and the other transactions contemplated by this Agreement and, to the extent reasonably practicable, all telephone calls and meetings with a Governmental Entity regarding the transactions contemplated by this Agreement shall include representatives of Parent and the Company. In exercising the foregoing rights, the Company and Parent each shall act reasonably and as promptly as reasonably practicablepracticable including, without limitation, making determinations within 10 days with respect to modifications and amendments of employee stock purchase agreements or equity compensation plans under Section 4.02(b)(i)(x).
(b) If a Party fails to comply with any of its obligations set forth in this Section 5.07 upon reasonable request and notice by the other Party, and such failure results in the imposition of additional Taxes, the nonperforming Party shall be liable in full for such additional Taxes.
Appears in 2 contracts
Sources: Tax Allocation Agreement (Broadridge Financial Solutions, LLC), Tax Allocation Agreement (Broadridge Financial Solutions, Inc.)
Cooperation. The Company In connection with their obligations pursuant to this Article 11 with respect to pursuing the FCC Consent and Parent shallthe HSR Clearance, subject Scripps and Journal shall (a) keep each other informed in all material respects and on a reasonably timely basis of any material communication received by such party from, or given by such party to, any Governmental Authority and of any material communication received or given in connection with any Action by a private party, in each case with respect to Section 6.2this Agreement or the Transactions, (b) notify each other of all documents filed with, submitted to or received from any Governmental Authority with respect to this Agreement, the Scripps Stations, the Journal Stations or the Transactions (and provide each other copies of such documents), (c) furnish each other with such information and assistance as the other may reasonably request in connection with their preparation of any governmental filing or submission hereunder and (d) reasonably cooperate with each other in connection with and use, and shall cause their respective Subsidiaries to, use their respective 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 on its part under this Agreement and applicable Laws to consummate and make effective the Merger and the other transactions contemplated by this Agreement as promptly as reasonably practicable (it being understood that nothing contained in this Agreement shall require Parent to obtain any consents, registrations, approvals, permits, expirations of waiting periods or authorizations prior to the Termination Date), including preparing and filing as promptly as reasonably practicable all documentation to effect all necessary notices, reports and other filings (including by filing no later than 20 calendar days after the date of this Agreement all applications required to be filed with the FCC and the notification and report form required under the HSR Act; provided that the failure to file within such 20-day period shall not constitute a breach of this Agreement) and to obtain as promptly as reasonably practicable all consents, registrations, approvals, permits, expirations of waiting periods 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. To the extent necessary or advisable to obtain any consent, registration, approval, permit, expiration of waiting period or authorization from any Governmental Entity in order to consummate the Merger prior to the Termination Date, (x) Parent shall, and shall cause its Subsidiaries to, and commit to cause the Company and its Subsidiaries to, take the actions and agree to those undertakings set forth on Section 6.5(a) of the Parent Disclosure Letter and (y) Parent shall, and shall cause its Subsidiaries to take, other actions involving Parent and its Subsidiaries that are in the aggregate de minimis (for the avoidance of doubt, not involving any divestiture, holding separate any business or assets or other similar action). Except as provided in the immediately preceding sentence, nothing in this Agreement shall require, or be construed to require, (i) Parent or any of its Subsidiaries to take or refrain from taking any action (including any divestiture, holding separate any business or assets or other similar action) or to agree to any restriction or condition with respect to any assets, operations, business or the conduct of business of Parent or any of its Subsidiaries and (ii) Parent, the Company or any of their respective Subsidiaries to take or refrain from taking any action (including any divestiture, holding separate any business or assets or other similar action) or to agree to any restriction or condition with respect to any assets, operations, business or the conduct of business of the Company and its Subsidiaries, if, in the case of this clause (ii), any such action, failure to act, restriction, condition or agreement, individually or in the aggregate, would reasonably be likely to have a Company Material Adverse Effect (read without regard to the exceptions set forth therein and without giving effect to clause (A) thereof) (except as provided in the immediately preceding sentence, the occurrence advance of any of the matters specified in clause (i) filing or clause (ii) above shall constitute submission with a “Regulatory Material Adverse Effect”). In addition, in measuring whether a Regulatory Material Adverse Effect has occurred, the expected loss of any reasonably expected synergies (both cost and revenue) relating to any restriction or condition shall be taken into account as if the Company had an adverse effect to its financial condition and results of operations equal to the expected amount of applicable synergies affected by any such restriction or condition. The Company and its Subsidiaries shall not agree to any actions, restrictions or conditions with respect to obtaining any consents, registrations, approvals, permits, expirations of waiting periods or authorizations Governmental Authority in connection with the Merger Transactions and the in connection with any investigation or other transactions contemplated inquiry by or before any Governmental Authority relating to this Agreement without or the prior written consent Transactions, including any Action initiated by a private party. Each of Parent Scripps and Journal (which, subject to this Section 6.5(ai) may be withheld in Parent’s sole discretion). Subject to applicable Laws relating to the exchange of information, Parent and the Company shall have the right to review in advance, and to the extent practicable each will consult the with each other on, all of the information relating to Parent or the Company, as the case may be, and any of their respective Subsidiaries, that appears in any filing made with, or written materials submitted to, any third party and/or any Governmental Entity in connection Authority with respect to this Agreement or the Merger Transactions, and (ii) shall give the other transactions contemplated by this Agreement. To the extent permitted by applicable Law, each party shall provide the other a reasonable opportunity to attend and participate in meetings and telephone conferences with copies of all correspondence between it (or its advisors) and any such Governmental Entity Authority relating to the Merger and the other transactions contemplated by this Agreement andforegoing, to the extent not prohibited by the Governmental Authority. With regard to any sharing of information between the parties contemplated under this Section 11.04, (A) any disclosure of information shall be done in a manner consistent with Applicable Law, (B) information may be withheld as necessary to address reasonable attorney-client privilege concerns or as necessary to comply with restrictions set forth in Contracts and (C) either party may, as it deems advisable or necessary, reasonably practicabledesignate any confidential or competitively sensitive information as for “outside counsel only.” Neither Scripps nor Journal shall file any amendment to the FCC Application or, all telephone calls and meetings with a Governmental Entity regarding after grant of the transactions contemplated by this Agreement shall include representatives FCC Consent, request any modification of Parent and the Company. In exercising FCC Consent without the foregoing rightsconsent of the other party hereto, the Company and Parent each shall act reasonably and as promptly as reasonably practicablesuch consent not to be unreasonably withheld or delayed.
Appears in 2 contracts
Sources: Master Transaction Agreement (Scripps E W Co /De), Master Transaction Agreement (Journal Communications Inc)
Cooperation. The Company Employee will, upon reasonable notice and Parent shall, subject to Section 6.2Employee’s other commitments, cooperate with each other furnish such information and use, and shall cause their respective Subsidiaries to, use their respective reasonable best efforts assistance to take or cause to be taken all actions, and do or cause to be done all things, necessary, proper or advisable on its part under this Agreement and applicable Laws to consummate and make effective the Merger and the other transactions contemplated by this Agreement S&W as promptly as it may reasonably practicable (it being understood that nothing contained in this Agreement shall require Parent to obtain any consents, registrations, approvals, permits, expirations of waiting periods or authorizations prior to the Termination Date), including preparing and filing as promptly as reasonably practicable all documentation to effect all necessary notices, reports and other filings (including by filing no later than 20 calendar days after the date of this Agreement all applications required to be filed with the FCC and the notification and report form required under the HSR Act; provided that the failure to file within such 20-day period shall not constitute a breach of this Agreement) and to obtain as promptly as reasonably practicable all consents, registrations, approvals, permits, expirations of waiting periods 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. To the extent necessary or advisable to obtain any consent, registration, approval, permit, expiration of waiting period or authorization from any Governmental Entity in order to consummate the Merger prior to the Termination Date, (x) Parent shall, and shall cause its Subsidiaries to, and commit to cause the Company and its Subsidiaries to, take the actions and agree to those undertakings set forth on Section 6.5(a) of the Parent Disclosure Letter and (y) Parent shall, and shall cause its Subsidiaries to take, other actions involving Parent and its Subsidiaries that are in the aggregate de minimis (for the avoidance of doubt, not involving any divestiture, holding separate any business or assets or other similar action). Except as provided in the immediately preceding sentence, nothing in this Agreement shall require, or be construed to require, (i) Parent or any of its Subsidiaries to take or refrain from taking any action (including any divestiture, holding separate any business or assets or other similar action) or to agree to any restriction or condition with respect to any assets, operations, business or the conduct of business of Parent or any of its Subsidiaries and (ii) Parent, the Company or any of their respective Subsidiaries to take or refrain from taking any action (including any divestiture, holding separate any business or assets or other similar action) or to agree to any restriction or condition with respect to any assets, operations, business or the conduct of business of the Company and its Subsidiaries, if, in the case of this clause (ii), any such action, failure to act, restriction, condition or agreement, individually or in the aggregate, would reasonably be likely to have a Company Material Adverse Effect (read without regard to the exceptions set forth therein and without giving effect to clause (A) thereof) (except as provided in the immediately preceding sentence, the occurrence of any of the matters specified in clause (i) or clause (ii) above shall constitute a “Regulatory Material Adverse Effect”). In addition, in measuring whether a Regulatory Material Adverse Effect has occurred, the expected loss of any reasonably expected synergies (both cost and revenue) relating to any restriction or condition shall be taken into account as if the Company had an adverse effect to its financial condition and results of operations equal to the expected amount of applicable synergies affected by any such restriction or condition. The Company and its Subsidiaries shall not agree to any actions, restrictions or conditions with respect to obtaining any consents, registrations, approvals, permits, expirations of waiting periods or authorizations in connection with the Merger and SEC Matter (as defined in Section 3.2 below), any internal investigation into the other transactions contemplated by this Agreement without the prior written consent of Parent (which, subject to this Section 6.5(a) may be withheld in Parent’s sole discretion). Subject to applicable Laws relating circumstances giving rise to the exchange of information, Parent and the Company shall have the right to review in advance, and to the extent practicable each will consult the other on, all of the information relating to Parent or the Company, as the case may beSEC Matter, and any litigation against the S&W Parties (as defined in Section 4 below) in which Employee has relevant knowledge (“Litigation”); such assistance shall include, but is not limited to, attending meetings for preparation of witnesses and voluntarily appearing at any proceedings for which S&W requests Employee’s appearance. Employee further agrees that he and his separate counsel will permit attorneys for S&W and their respective Subsidiariesagents to actively participate and assist in the preparation of Employee for any future testimony in the SEC Matter or Litigation. Such services by Employee through the first anniversary of the Resignation Date shall be without compensation; thereafter, that appears such services shall be provided in exchange for reasonable consideration as may hereafter be mutually acceptable to Employee and S&W. In all instances, S&W shall directly pay (or, at Employee’s option, reimburse Employee for) all reasonable expenses incurred by Employee in providing such services. If Employee will incur more than $500 on any filing made withflight, lodging, or written materials submitted toother expense incident to these services, any third party and/or any Governmental Entity in connection with he shall seek approval from S&W before incurring the Merger expense, which approval shall be sought from and provided by S&W’s Chairman of the other transactions contemplated by this Agreement. To the extent permitted by applicable Law, each party shall provide the other with copies Board of all correspondence between it Directors (or its advisors) such other designee hereafter identified by S&W in writing to Employee), shall be timely provided and any Governmental Entity relating to the Merger and the other transactions contemplated by this Agreement and, to the extent reasonably practicable, all telephone calls and meetings with a Governmental Entity regarding the transactions contemplated by this Agreement shall include representatives of Parent and the Company. In exercising the foregoing rights, the Company and Parent each shall act reasonably and as promptly as reasonably practicablenot be unreasonably withheld.
Appears in 2 contracts
Sources: Resignation and Release Agreement, Resignation and Release Agreement (Smith & Wesson Holding Corp)
Cooperation. The Subject to the terms and conditions set forth in this Agreement, the Company and Parent shall, subject to Section 6.2, shall cooperate with each other and use, use (and shall cause their respective Subsidiaries to, use to use) their respective reasonable best efforts to take or cause to be taken all actions, and do or cause to be done all things, reasonably necessary, proper or advisable on its part under this Agreement and applicable Laws to consummate and make effective the Merger Offer, the Merger, if applicable, and the other transactions contemplated by this Agreement as promptly soon as reasonably practicable practicable. In furtherance of, and not in limitation of the foregoing, (it being understood that nothing contained in this Agreement shall require Parent to obtain any consents, registrations, approvals, permits, expirations of waiting periods or authorizations prior i) cause the conditions to the Termination Date), including preparing Offer set forth in Annex B to be satisfied and filing cause the conditions to the Merger set forth in Article VII to be satisfied and (ii) each of Parent and the Company agree to file as promptly as reasonably practicable all documentation to effect all necessary necessary, proper and advisable notices, reports and other filings (including by filing no later than 20 calendar days after the date of this Agreement all applications required to be filed with the FCC and the notification and report form required under the HSR Act; provided that the failure to file within such 20-day period shall not constitute a breach of this Agreement) and to obtain as promptly as reasonably practicable all consents, registrations, approvals, permits, expirations of waiting periods permits and authorizations necessary or necessary, proper and advisable to be obtained from any third party and/or any Governmental Entity in order to consummate the Offer, the Merger or any of the other transactions contemplated by this Agreement. To the extent , including obtaining all necessary or advisable appropriate consents, waivers and approvals under any Material Contracts to obtain any consent, registration, approval, permit, expiration of waiting period or authorization from any Governmental Entity in order to consummate the Merger prior to the Termination Date, (x) Parent shall, and shall cause its Subsidiaries to, and commit to cause which the Company and its Subsidiaries to, take the actions and agree to those undertakings set forth on Section 6.5(a) of the Parent Disclosure Letter and (y) Parent shall, and shall cause its Subsidiaries to take, other actions involving Parent and its Subsidiaries that are in the aggregate de minimis (for the avoidance of doubt, not involving any divestiture, holding separate any business or assets or other similar action). Except as provided in the immediately preceding sentence, nothing in this Agreement shall require, or be construed to require, (i) Parent or any of its Subsidiaries is a party in connection with this Agreement and the consummation of the transactions contemplated hereby so as to maintain and preserve the benefits under such Material Contracts following the consummation of the transactions contemplated by this Agreement; provided, however, that nothing in this Agreement, including this Section 6.3(a), shall require either party, or permit the Company, to undertake any efforts, or to take or refrain from taking any action (including any divestiture, holding separate any business or assets or other similar action) or to agree consent to any restriction action, if such efforts, action or consent would be reasonably expected to result in a material adverse effect on the business, financial condition with respect to any assets, operations, business or the conduct results of business of Parent or any of its Subsidiaries and (ii) Parent, the Company or any of their respective Subsidiaries to take or refrain from taking any action (including any divestiture, holding separate any business or assets or other similar action) or to agree to any restriction or condition with respect to any assets, operations, business or the conduct of business operations of the Company and its Subsidiaries, iftaken as a whole, in the case of this clause (ii), any such action, failure to act, restriction, condition or agreement, individually or in the aggregate, would reasonably be likely to have a Company Material Adverse Effect (read without regard to the exceptions set forth therein and without giving effect to clause (A) thereof) (except as provided in the immediately preceding sentence, the occurrence of any of the matters specified in clause (i) or clause (ii) above shall constitute a “Regulatory Material Adverse Effect”). In addition, in measuring whether a Regulatory Material Adverse Effect has occurred, the expected loss of any reasonably expected synergies (both cost and revenue) relating to any restriction or condition shall be taken into account as if the Company had an adverse effect to its financial condition and results of operations equal to the expected amount of applicable synergies affected by any such restriction or condition. The Company Parent and its Subsidiaries Subsidiaries, taken as a whole. Parent shall not agree have the right to direct all matters with any actionsGovernmental Entity consistent with its obligations hereunder; provided, restrictions or conditions with respect to obtaining any consents, registrations, approvals, permits, expirations of waiting periods or authorizations in connection with the Merger and the other transactions contemplated by this Agreement without the prior written consent of Parent (whichthat, subject to this Section 6.5(a) may be withheld in Parent’s sole discretion). Subject reasonable limitations limiting access to applicable Laws relating to the exchange of informationoutside counsel, Parent and the Company shall have the right to review in advanceadvance and, and to the extent practicable practicable, each will consult with the other on, all on and consider in good faith the views of the information relating to Parent or the Companyother in connection with, as the case may be, and any of their respective Subsidiaries, that appears in any filing made with, or written materials submitted to, any third party and/or to or other communication with any Governmental Entity in connection with the Offer, the Merger and the other transactions contemplated by this Agreement. To the extent permitted The parties shall give reasonable and good faith consideration to any reasonable comments made by applicable Law, each party shall provide the other parties and their counsel with copies of all correspondence between it (or its advisors) and respect to any Governmental Entity relating to the Merger and the other transactions contemplated by this Agreement and, to the extent reasonably practicable, all telephone calls and meetings with a Governmental Entity regarding the transactions contemplated by this Agreement shall include representatives of Parent and the Companysuch filings. In exercising the foregoing rights, each of the Company and Parent each shall act reasonably and as promptly as practicable. Neither the Company nor Parent shall extend any waiting period under the Antitrust Laws or enter into any agreement with any Governmental Entity not to consummate the transactions contemplated by this Agreement, except with the prior written consent of the other parties hereto (which shall not be unreasonably withheld, conditioned or delayed). Neither the Company nor Parent shall take any action that would, or would be reasonably practicablelikely to, individually or in the aggregate, prevent, materially delay or materially impede the consummation of the Offer, the Merger or the other transactions contemplated by this Agreement.
Appears in 2 contracts
Sources: Merger Agreement (National Holdings Corp), Merger Agreement (Fortress Biotech, Inc.)
Cooperation. The Company Subject to the terms and conditions of this Agreement, Parent shall, subject to Section 6.2, and the MLP Entities and GP Holdings will cooperate with each other and use, use (and shall will cause their respective Subsidiaries to, use to use) their respective 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 on its part under this Agreement and applicable Laws to consummate and make effective the Merger Transactions as soon as practicable, including by (i) filing the Notification and the other transactions contemplated by this Agreement as promptly as reasonably practicable (it being understood that nothing contained in this Agreement shall require Parent to obtain any consents, registrations, approvals, permits, expirations of waiting periods or authorizations prior Report Forms pursuant to the Termination Date), including preparing and filing as promptly as reasonably practicable all documentation to effect all necessary notices, reports and other filings (including by filing no later than 20 calendar days HSR Act within 10 Business Days after the date of this Agreement all applications required to be filed Agreement, (ii) using their respective reasonable best efforts (including complying with the FCC and the notification and report form required its obligations under the HSR Act; provided that the failure to file within such 20-day period shall not constitute a breach of this AgreementSection 6.5(c)) and to obtain as promptly as reasonably practicable all consentsAntitrust Consents and Other Governmental Consents, registrationsand the termination or expiration, approvalsas applicable, permits, expirations of approvals or waiting periods and authorizations necessary or advisable to be obtained from any third party and/or any Governmental Entity required under all applicable Antitrust Laws in order to consummate the Merger Transactions and (iii) cooperating with each other in connection with any review of, inquiry into, investigation of, or challenge to the Transactions under any Antitrust Law by a Governmental Authority and all activities with respect to any requests that may be made by, or any actions, Consents or undertakings that may be sought by or from, any Governmental Authority in respect of Antitrust Consents and Other Governmental Consents, including determining the manner in which to contest or otherwise respond, by litigation or otherwise, to objections to, or Proceedings challenging, the consummation of the other transactions contemplated by this Agreement. To the extent necessary or advisable to obtain any consent, registration, approval, permit, expiration of waiting period or authorization from any Governmental Entity in order to consummate the Merger prior to the Termination Date, (x) Parent shall, and shall cause its Subsidiaries to, and commit to cause the Company and its Subsidiaries to, take the actions and agree to those undertakings set forth on Section 6.5(a) of the Parent Disclosure Letter and (y) Parent shall, and shall cause its Subsidiaries to take, other actions involving Parent and its Subsidiaries Transactions; provided that are in the aggregate de minimis (for the avoidance of doubt, not involving any divestiture, holding separate any business or assets or other similar action). Except as provided in the immediately preceding sentence, nothing in this Agreement shall require, or be construed to require, (i) Parent or any of its Subsidiaries to take or refrain from taking any action (including any divestiture, holding separate any business or assets or other similar action) or to agree to any restriction or condition with respect to any assets, operations, business or the conduct of business of Parent or any of its Subsidiaries and (ii) will require Parent, the Company Merger Sub, any MLP Group Entity, GP Holdings or any of their respective Subsidiaries Affiliates to take offer, accept or refrain from taking agree, or commit to agree, to, a Divestiture Condition in order to obtain any action (including any divestitureAntitrust Consent or Other Governmental Consent; and provided, holding separate any business or assets or other similar action) or to agree to any restriction or condition with respect to any assetsfurther, operations, business or the conduct of business that none of the Company and its SubsidiariesMLP Entities or GP Holdings will, if, in the case of this clause (ii), any such action, failure to act, restriction, condition or agreement, individually or in the aggregate, would reasonably be likely to have a Company Material Adverse Effect (read without regard to the exceptions set forth therein and without giving effect to clause (A) thereof) (except as provided in the immediately preceding sentence, the occurrence of any of the matters specified in clause (i) or clause (ii) above shall constitute a “Regulatory Material Adverse Effect”). In addition, in measuring whether a Regulatory Material Adverse Effect has occurred, the expected loss of any reasonably expected synergies (both cost and revenue) relating to any restriction or condition shall be taken into account as if the Company had an adverse effect to its financial condition and results of operations equal to the expected amount of applicable synergies affected by any such restriction or condition. The Company and its Subsidiaries shall not agree to any actions, restrictions or conditions with respect to obtaining any consents, registrations, approvals, permits, expirations of waiting periods or authorizations in connection with the Merger and the other transactions contemplated by this Agreement without the Parent’s prior written consent of Parent (whichconsent, subject to this Section 6.5(a) may be withheld in Parent’s sole discretion). Subject to applicable Laws relating to the exchange of informationoffer, Parent and the Company shall have the right to review in advance, and to the extent practicable each will consult the other on, all of the information relating to Parent accept or the Company, as the case may be, and any of their respective Subsidiaries, that appears in any filing made withagree, or written materials submitted commit to agree, to, any third party and/or Divestiture Condition. Nothing in this Section 6.5 will limit any Governmental Entity in connection with the Merger and the other transactions contemplated by this Agreement. To the extent permitted by applicable Law, each party shall provide the other with copies of all correspondence between it (or its advisors) and any Governmental Entity relating rights a Party may have to the Merger and the other transactions contemplated by terminate this Agreement and, pursuant to the extent reasonably practicable, all telephone calls and meetings with Section 8.1 in a Governmental Entity regarding the transactions contemplated by this Agreement shall include representatives of Parent and the Companycase where Section 8.1 permits such termination. In exercising the foregoing rights, each of the Company and Parent each shall Parties will act reasonably and as promptly as reasonably practicable. Notwithstanding anything in this Agreement to the contrary, Parent and Merger Sub will have the absolute right (but not the obligation) to contest, at their cost and expense, any challenge to this Agreement by any Governmental Authority, including contesting through a Proceeding initiated by the U.S. Department of Justice or the Federal Trade Commission to enjoin any of the Transactions, provided that (i) such actions do not prevent the Closing from occurring on or before the Outside Date and (ii) Parent and Merger Sub afford the MLP Entities, GP Holdings and their respective Representatives an opportunity to participate in all associated Proceedings, provided that Parent and Merger Sub will retain final discretion and authority with respect to such litigation.
Appears in 2 contracts
Sources: Merger Agreement, Merger Agreement (PetroLogistics LP)
Cooperation. The Company and Parent shall, subject to Without limiting the generality of anything contained in this Section 6.2, cooperate with and subject to any limitations under applicable Laws, each other and use, and Party shall cause their respective Subsidiaries to, use their respective 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 on its part under this Agreement and applicable Laws to consummate and make effective the Merger and keep the other Parties reasonably apprised of the status of matters relating to the transactions contemplated by this Agreement and work cooperatively in connection with obtaining all required Consents of, or any exemptions by, any Governmental Authority. Each Party shall promptly (i) consult with the other Parties and provide any information and assistance as promptly as the other Parties may reasonably practicable request with respect to (it being understood that nothing contained and, in this Agreement shall require Parent to obtain any consentsthe case of correspondence, registrations, approvals, permits, expirations of waiting periods provide the other Parties (or authorizations prior to the Termination Date), including preparing and filing as promptly as reasonably practicable their counsel) with copies of) all documentation to effect all necessary notices, reports and other submissions or filings (including made by filing no later than 20 calendar days after the date or on behalf of this Agreement all applications required such Party to be filed any Governmental Authority in connection with the FCC and the notification and report form required under the HSR Act; provided that the failure to file within such 20-day period shall not constitute a breach of this Agreement) and to obtain as promptly as reasonably practicable all consents, registrations, approvals, permits, expirations of waiting periods 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. To the extent ; provided, however, that such material may be redacted as necessary or advisable to obtain any consent, registration, approval, permit, expiration of waiting period or authorization from any Governmental Entity in order to consummate the Merger prior to the Termination Date(A) comply with contractual arrangements, (xB) Parent shall, and shall cause its Subsidiaries to, and commit to cause the Company and its Subsidiaries to, take the actions and agree to those undertakings set forth on Section 6.5(a) of the Parent Disclosure Letter and (y) Parent shall, and shall cause its Subsidiaries to take, other actions involving Parent and its Subsidiaries that are in the aggregate de minimis (for the avoidance of doubt, not involving any divestiture, holding separate any business address legal privilege or assets or other similar action). Except as provided in the immediately preceding sentence, nothing in this Agreement shall requireconfidentiality concerns, or be construed to require(C) comply with applicable Law, (i) Parent or any of its Subsidiaries to take or refrain from taking any action (including any divestiture, holding separate any business or assets or other similar action) or to agree to any restriction or condition with respect to any assets, operations, business or the conduct of business of Parent or any of its Subsidiaries and (ii) Parent, inform the Company or other Parties of any of their respective Subsidiaries to take or refrain material communication from taking any action (including any divestiture, holding separate any business or assets or other similar action) or to agree any Governmental Authority regarding the transactions contemplated by this Agreement, and (iii) permit the other Parties to review and discuss in advance, and consider in good faith the views of the other Parties in connection with, any proposed communication or submission to any restriction such Governmental Authority; provided, however, that no Party shall participate in any meeting or condition material communication with respect to any assets, operations, business or the conduct of business of the Company and its Subsidiaries, if, in the case of this clause (ii), any such action, failure to act, restriction, condition or agreement, individually or in the aggregate, would reasonably be likely to have a Company Material Adverse Effect (read without regard to the exceptions set forth therein and without giving effect to clause (A) thereof) (except as provided in the immediately preceding sentence, the occurrence of any of the matters specified in clause (i) or clause (ii) above shall constitute a “Regulatory Material Adverse Effect”). In addition, in measuring whether a Regulatory Material Adverse Effect has occurred, the expected loss of any reasonably expected synergies (both cost and revenue) relating to any restriction or condition shall be taken into account as if the Company had an adverse effect to its financial condition and results of operations equal to the expected amount of applicable synergies affected by any such restriction or condition. The Company and its Subsidiaries shall not agree to any actions, restrictions or conditions with respect to obtaining any consents, registrations, approvals, permits, expirations of waiting periods or authorizations Governmental Authority in connection with the Merger and the other transactions contemplated by this Agreement unless it provides the other Party reasonable advance notice thereof and, to the extent not prohibited by such Governmental Authority, gives the other Party an opportunity to attend and participate therein. The Parties may, as they deem advisable and necessary, designate any competitively sensitive materials provided to the other under this Section 6.2 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. No Party shall commit to or agree with any Governmental Authority to stay, toll or extend any applicable waiting period under the HSR Act or other applicable Antitrust Laws, or pull and refile under the HSR Act, without the prior written consent of Parent (which, subject to this Section 6.5(a) may be withheld in Parent’s sole discretion). Subject to applicable Laws relating to the exchange of information, Parent and the Company shall have the right to review in advance, and to the extent practicable each will consult the other onParties (which consent shall not be unreasonably withheld, all of the information relating to Parent conditioned or the Company, as the case may be, and any of their respective Subsidiaries, that appears in any filing made with, or written materials submitted to, any third party and/or any Governmental Entity in connection with the Merger and the other transactions contemplated by this Agreement. To the extent permitted by applicable Law, each party shall provide the other with copies of all correspondence between it (or its advisors) and any Governmental Entity relating to the Merger and the other transactions contemplated by this Agreement and, to the extent reasonably practicable, all telephone calls and meetings with a Governmental Entity regarding the transactions contemplated by this Agreement shall include representatives of Parent and the Company. In exercising the foregoing rights, the Company and Parent each shall act reasonably and as promptly as reasonably practicabledelayed).
Appears in 2 contracts
Sources: Merger Agreement (R1 RCM Inc. /DE), Merger Agreement (R1 RCM Inc. /DE)
Cooperation. The Company and Parent shallSubject to any restrictions under applicable laws, subject to Section 6.2rules or regulations, cooperate with each party hereto (i) shall promptly inform each other and use, and shall cause their respective Subsidiaries to, use their respective 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 on its part under this Agreement and applicable Laws to consummate and make effective the Merger and the other transactions contemplated by this Agreement as promptly as reasonably practicable (it being understood that nothing contained in this Agreement shall require Parent to obtain of any consents, registrations, approvals, permits, expirations of waiting periods or authorizations prior to the Termination Date), including preparing and filing as promptly as reasonably practicable all documentation to effect all necessary notices, reports and other filings (including by filing no later than 20 calendar days after the date of this Agreement all applications required to be filed with the FCC and the notification and report form required under the HSR Act; provided that the failure to file within such 20-day period shall not constitute a breach of this Agreement) and to obtain as promptly as reasonably practicable all consents, registrations, approvals, permits, expirations of waiting periods 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. To the extent necessary or advisable to obtain any consent, registration, approval, permit, expiration of waiting period or authorization communication from any Governmental Entity in order to consummate Authority concerning this Agreement, the Merger prior to the Termination Datetransactions contemplated hereby and any filing, (x) Parent shall, and shall cause its Subsidiaries to, and commit to cause the Company and its Subsidiaries to, take the actions and agree to those undertakings set forth on Section 6.5(a) of the Parent Disclosure Letter and (y) Parent shall, and shall cause its Subsidiaries to take, other actions involving Parent and its Subsidiaries that are in the aggregate de minimis (notification or request for the avoidance of doubt, not involving any divestiture, holding separate any business or assets or other similar action). Except as provided in the immediately preceding sentence, nothing in this Agreement shall require, or be construed to require, (i) Parent or any of its Subsidiaries to take or refrain from taking any action (including any divestiture, holding separate any business or assets or other similar action) or to agree to any restriction or condition with respect to any assets, operations, business or the conduct of business of Parent or any of its Subsidiaries approval related thereto and (ii) Parent, shall permit the Company other party hereto to review in advance any proposed written communication or any of their respective Subsidiaries to take or refrain from taking any action (including any divestiture, holding separate any business or assets or other similar action) or to agree information submitted to any restriction or condition with respect to any assets, operations, business or the conduct of business of the Company and its Subsidiaries, if, such Governmental Authority in the case of this clause (ii), any such action, failure to act, restriction, condition or agreement, individually or in the aggregate, would reasonably be likely to have a Company Material Adverse Effect (read without regard to the exceptions set forth therein and without giving effect to clause (A) thereof) (except as provided in the immediately preceding sentence, the occurrence of any of the matters specified in clause (i) or clause (ii) above shall constitute a “Regulatory Material Adverse Effect”)response thereto. In addition, neither Seller nor Buyer shall agree to participate in measuring whether a Regulatory Material Adverse Effect has occurredany meeting with any Governmental Authority in respect of any filings, investigation or other inquiry with respect to this Agreement, the expected loss of transactions contemplated hereby or any reasonably expected synergies (both cost and revenue) relating to any restriction such filing, notification or condition shall be taken into account as if the Company had an adverse effect to its financial condition and results of operations equal request for approval related thereto unless, to the expected amount of applicable synergies affected extent not prohibited by any such restriction or condition. The Company and its Subsidiaries shall not agree to any actionsGovernmental Authority, restrictions or conditions with respect to obtaining any consents, registrations, approvals, permits, expirations of waiting periods or authorizations in connection it consults with the Merger and other party hereto in advance and, gives the other transactions contemplated by this Agreement without party hereto the prior written consent of Parent (whichopportunity to attend and participate thereat, subject in each case to this Section 6.5(a) may be withheld in Parent’s sole discretion)the maximum extent practicable. Subject to any restrictions under applicable Laws relating to the exchange of informationlaws, Parent rules or regulations, Seller and the Company Buyer shall have the right to review in advance, and to the extent practicable each will consult the other on, all of the information relating to Parent furnish Buyer or the CompanySeller, as the case may be, and any of their respective Subsidiaries, that appears in any filing made with, or written materials submitted to, any third party and/or any Governmental Entity in connection with the Merger and the other transactions contemplated by this Agreement. To the extent permitted by applicable Law, each party shall provide the other with copies of all correspondence correspondence, filings and communications (and memoranda setting forth the substance thereof) between it (or and its advisors) Affiliates and any Governmental Entity relating to their respective representatives on the Merger one hand, and the Governmental Authority or members of its staff on the other transactions contemplated by hand, with respect to this Agreement andAgreement, to the extent reasonably practicable, all telephone calls and meetings with a Governmental Entity regarding the transactions contemplated by hereby (excluding documents and communications which are subject to preexisting confidentiality agreements and to the attorney-client privilege or work product doctrine) or any such filing, notification or request for approval related thereto. Seller and Buyer shall also furnish the other party hereto with such necessary information and assistance as such other party and its Affiliates may reasonably request in connection with its preparation of necessary filings, registration or submissions of information to the Governmental Authority in connection with this Agreement shall include representatives of Parent and the Company. In exercising the foregoing rightsAgreement, the Company transactions contemplated hereby and Parent each any such filing, notification or request for approval related thereto. Seller and Buyer shall act reasonably prosecute all required requests for approval with all necessary diligence and otherwise use their respective commercially reasonable efforts to obtain the grant thereof as promptly soon as reasonably practicablepossible.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Commerce One Inc / De/), Asset Purchase Agreement (Metatec Inc)
Cooperation. The Company (a) On the terms and Parent shall, subject to Section 6.2the conditions of this Agreement, cooperate with including Schedule 4.2, each other and use, and party shall cause their respective Subsidiaries to, use their respective its reasonable best efforts to take or cause the Closing to be taken all actions, and do or cause to be done all things, necessary, proper or advisable on its part under this Agreement and applicable Laws to consummate and make effective the Merger and the other transactions contemplated by this Agreement as promptly as reasonably practicable occur (it being understood that nothing contained in this Agreement shall require Parent to obtain any consents, registrations, approvals, permits, expirations of waiting periods or authorizations prior subject to the Termination Datelimitation in the proviso to Section 4.2(c)), including preparing taking all actions reasonably necessary to comply promptly with all legal requirements that may be imposed on it or any of its Affiliates with respect to the Closing. Subject to the terms and filing conditions of this Agreement, including Schedule 4.2, no party hereto shall, and shall not permit any of its Affiliates to, take any actions, or omit to take any actions, that would, or that would reasonably be expected to, result in any of the conditions set forth in ARTICLE VI not being satisfied.
(b) Without limiting the terms of this Section 4.2, Seller and Investor shall (i) as promptly soon as reasonably practicable all documentation to effect all necessary notices, reports and other filings (including by filing no later than 20 calendar days after the date of this Agreement all applications (and in any event within 14 days hereof) make any filings required by any Governmental Body pursuant to the HSR Act or other Competition Laws in connection with the transactions contemplated hereunder, (ii) respond promptly to inquiries from the applicable Governmental Bodies in connection with such filings, including providing any supplemental information that may be requested by such Governmental Bodies and (iii) provide to the other copies of any filings made under the HSR Act or other Competition Laws at the time they are filed with the FCC applicable Governmental Bodies, excluding any information included in any such filings that the party reasonably determines it needs to keep confidential. Seller and Investor shall oppose any motion or action for temporary, preliminary or permanent injunction against the transactions contemplated by this Agreement and the notification Ancillary Agreements. For the avoidance of doubt, except as otherwise required by applicable Law, Investor shall have the primary responsibility for making any such filings and report form seeking necessary approvals, and Seller shall cooperate with Investor to complete such filings or applications at the reasonable request of Investor. The parties hereto shall furnish to each other such necessary information and reasonable assistance as the others may request in connection with its preparation of any filing or submission that is necessary under the HSR Act or other Competition Laws. Each party hereto shall keep the other apprised of the status of any communications with, and any inquiries or request for additional information from, Governmental Bodies pursuant to the HSR Act or any other Competition Laws, and each party hereto shall use all reasonable efforts to defend against any lawsuit, action or proceeding, judicial or administrative, challenging this Agreement or the transactions contemplated hereby. Except as otherwise provided herein, Investor and Seller shall be responsible for their respective fees and all costs and submissions of all regulatory filings related to any required governmental or regulatory approvals, including the HSR Act (which fee under the HSR Act; provided that , for avoidance of doubt, shall be borne by Investor), with respect to the failure Applicable Non-U.S. Antitrust Approvals and with respect to file within such 20-day period shall not constitute a breach of this Agreementany other applicable Laws.
(c) and to obtain as promptly as reasonably practicable all consents, registrations, approvals, permits, expirations of waiting periods and authorizations necessary or advisable to be obtained from any third party and/or any Governmental Entity in order to consummate In connection with the Merger or any of the other transactions matters contemplated by this Agreement. To the extent necessary or advisable to obtain any consent, registration, approval, permit, expiration of waiting period or authorization from any Governmental Entity in order to consummate the Merger prior to the Termination Date, (x) Parent each party shall, and shall cause its Subsidiaries to, and commit Affiliates to cause the Company and its Subsidiaries to, take the actions and agree to those undertakings set forth on Section 6.5(a) of the Parent Disclosure Letter and (y) Parent shall, and shall cause its Subsidiaries to take, other actions involving Parent and its Subsidiaries that are in the aggregate de minimis (for the avoidance of doubt, not involving any divestiture, holding separate any business or assets or other similar action). Except as provided in the immediately preceding sentence, nothing in this Agreement shall require, or be construed to require, (i) Parent or any of its Subsidiaries to take or refrain from taking any action (including any divestiture, holding separate any business or assets or other similar action) or to agree to any restriction or condition with respect to any assets, operations, business or the conduct of business of Parent or any of its Subsidiaries and (ii) Parent, the Company or any of their respective Subsidiaries to take or refrain from taking any action (including any divestiture, holding separate any business or assets or other similar action) or to agree to any restriction or condition with respect to any assets, operations, business or the conduct of business of the Company and its Subsidiaries, if, in the case of this clause (ii), any such action, failure to act, restriction, condition or agreement, individually or in the aggregate, would reasonably be likely to have a Company Material Adverse Effect (read without regard use commercially reasonable efforts prior to the exceptions set forth therein Closing Date to give all notices to third parties and without giving effect to clause (A) thereof) (except as provided in the immediately preceding sentence, the occurrence of any of the matters specified in clause (i) or clause (ii) above shall constitute a “Regulatory Material Adverse Effect”). In addition, in measuring whether a Regulatory Material Adverse Effect has occurred, the expected loss of any reasonably expected synergies (both cost obtain all third party Consents and revenue) relating to any restriction or condition shall be taken into account as if the Company had an adverse effect to its financial condition and results of operations equal to the expected amount of applicable synergies affected by any such restriction or condition. The Company and its Subsidiaries shall not agree to any actions, restrictions or conditions with respect to obtaining any consents, registrations, approvals, permits, expirations of waiting periods or authorizations assignments in connection with the Merger transactions contemplated hereby and by the Ancillary Agreements and the Debt Financing Commitments, in each case required with respect to the Contracts set forth in Schedule 4.2(c)(i), as such Schedule may be amended through the Closing Date by mutual agreement of the parties, provided, however, that the parties shall not be required to pay or commit to pay any amount to (or incur any extraordinary or unreasonable obligation in favor of) any Person from whom any such Consent or assignment may be required (other than nominal filing or application fees) or agree to any amendments to any Contract, further provided, however, at the request of Investor, Seller shall use commercially reasonable efforts in assisting the Investor to obtain any such Consent for a period of up to 12 months after the Closing.
(d) Each party hereto shall keep the other reasonably apprised of the status of matters relating to completion of the transactions contemplated by this Agreement without the prior written consent of Parent (whichAgreement, subject to this Section 6.5(a) may be withheld in Parent’s sole discretion). Subject to applicable Laws relating to the exchange of information, Parent and the Company shall have the right to review in advance, and to the extent practicable each will consult including promptly furnishing the other onwith copies of written notices or other written communications received by Investor, all of on the information relating to Parent one hand, or Seller on the Companyother hand, as the case may be, and or any of their respective Subsidiariesits Affiliates or representatives, that appears in any filing made with, or written materials submitted to, any third party and/or from any Governmental Entity in connection Body with the Merger and the other transactions contemplated by this Agreement. To the extent permitted by applicable Law, each party shall provide the other with copies of all correspondence between it (or its advisors) and any Governmental Entity relating respect to the Merger and the other transactions contemplated by this Agreement and, to the extent reasonably practicable, all telephone calls and meetings with a Governmental Entity regarding the transactions contemplated by this Agreement or any Ancillary Agreement or from any Person alleging that the Consent of such Person is or may be required in connection with the transactions contemplated by this Agreement or any Ancillary Agreement.
(e) From and after the date of this Agreement until the earlier of the Closing Date or termination of this Agreement, Seller shall include representatives give prompt notice to Investor and Investor shall give prompt notice to Seller of Parent (i) any representation or warranty made by it contained in this Agreement that is qualified as to materiality becoming untrue or inaccurate in any respect or any such representation or warranty that is not so qualified becoming untrue or inaccurate in any material respect and (ii) the Company. In exercising failure by it to comply with or satisfy in any material respect any covenant, condition or agreement to be complied with or satisfied by it under this Agreement within the foregoing rights, the Company and Parent each shall act reasonably and as promptly as reasonably practicabletime contemplated hereby.
Appears in 2 contracts
Sources: Investment Agreement (Unistrut International Holdings, LLC), Investment Agreement (Tyco International LTD)
Cooperation. The Company (i) Subject to the terms and Parent shallconditions set forth in this Letter Agreement, subject to Section 6.2, cooperate with each other the Oncor Entities and use, and Purchasers shall cause their respective Subsidiaries to, use their respective reasonable best efforts to cooperate and to take or cause to be taken all actions, and to do or cause to be done done, all thingsthings reasonably requested by the Purchasers to negotiate, necessary, proper or advisable on its part under this Agreement prepare and applicable Laws to consummate and make effective the Merger and the other transactions contemplated by this Agreement as promptly as reasonably practicable (it being understood that nothing contained in this Agreement shall require Parent to obtain any consents, registrations, approvals, permits, expirations of waiting periods or authorizations prior to the Termination Date), including preparing and filing file as promptly as reasonably practicable all documentation to effect all necessary notices, reports and other filings (including by filing no later than 20 calendar days after and assist the date of this Agreement all applications required to be filed with the FCC and the notification and report form required under the HSR Act; provided that the failure to file within such 20-day period shall not constitute a breach of this Agreement) and to obtain Purchasers in obtaining as promptly as reasonably practicable all consents, registrations, approvals, permits, expirations of waiting periods permits and authorizations necessary or advisable to be obtained from any third party and/or any Governmental Entity in order connection with the Purchase Transaction.
(ii) Subject to consummate the Merger terms and conditions set forth in this Letter Agreement, including Section 5(a)(xi), and subject to approval of the application by the board of directors of Oncor, each party hereto shall use its reasonable best efforts to file with the FERC a joint application for the FERC Approval as promptly as reasonably practicable following the date hereof. In furtherance of the foregoing, each party shall furnish to the other parties in a timely fashion, all documents, pleadings, testimony and other information sufficient for such application to be made.
(iii) Subject to the terms and conditions set forth in this Letter Agreement, including Section 5(a)(xi), and subject to approval of the filing (including the content of the testimony to be filed by Oncor) by the board of directors of Oncor, each party hereto shall use its reasonable best efforts to submit to the PUCT a single filing (on behalf of the parties) in which the Purchasers will seek prior approval by the PUCT of the Purchase Transaction (the “PUCT Filing”) as promptly as reasonably practicable following the date hereof. In furtherance of the foregoing, each party shall furnish to the other parties in a timely fashion, all documents, pleadings, testimony and other information sufficient for the PUCT Filing to be made.
(iv) In connection with any PUCT Filing or application submitted to the FCC or FERC with respect to the Purchase Transaction (together, the “FCC/FERC Applications” and, together with the PUCT Filing, the “Applications”) or in any communications or proceedings whatsoever related thereto, Oncor Holdings and Oncor shall not be required to endorse, or cause any of their Subsidiaries to endorse, as their or their Subsidiaries’ own strategy or commitments, or take actions to support any modification of their or their Subsidiaries’ strategy and business plan that Oncor Holdings or Oncor, as applicable, determines in good faith that it would not support as being in the best interest of Oncor if the Purchase Transaction was not to be completed; provided, however, that nothing in this Section 5(a)(iv) shall affect any Oncor Entity’s obligation to include the Key Regulatory Terms in the Applications, subject to Section 5(a)(v) below. Nothing contained in this Section 5(a)(iv) is intended to give any Purchaser, directly or indirectly, the right to control or direct any Oncor Entity’s operations or decisions.
(v) Each of Oncor and Oncor Holdings agrees that (A) the Applications shall include the information concerning the Purchase Transaction, the Oncor Entities, and the Purchasers required by applicable Laws of the State of Texas and other transactions contemplated applicable jurisdictions, (B) the Applications and any amendments or supplements thereto shall include the key terms and undertakings set forth in Exhibit B (the “Key Regulatory Terms”) and the jurisdictions relevant thereto and such additional agreements or commitments by this Agreement. To the extent necessary or Purchasers as the Purchasers believe, after consultation with the Oncor Entities, are advisable to obtain any consentthe PUCT Approval, registration, approval, permit, expiration of waiting period FERC Approval or authorization from any Governmental Entity in order to consummate the Merger prior to the Termination DateFCC Approval, (xC) Parent shall, and shall cause its Subsidiaries to, and commit to cause it will cooperate with the Company and its Subsidiaries to, take the actions and agree to those undertakings set forth on Section 6.5(a) efforts of the Parent Disclosure Letter and (y) Parent shall, and shall cause its Subsidiaries Purchasers to take, other actions involving Parent and its Subsidiaries that are seek approval of the Key Regulatory Terms in the aggregate de minimis (for the avoidance of doubt, not involving any divestiture, holding separate any business or assets or other similar actionApplications subject to Section 5(a)(iv). Except as provided in the immediately preceding sentence, nothing in this Agreement shall require, or be construed to require, (iD) Parent or no Oncor Entity shall accept any of its Subsidiaries to take or refrain from taking any action (including any divestitureagreements, holding separate any business or assets or other similar action) or to agree to any restriction or condition with respect to any assets, operations, business or the conduct of business of Parent or any of its Subsidiaries and (ii) Parent, the Company or any of their respective Subsidiaries to take or refrain from taking any action (including any divestiture, holding separate any business or assets or other similar action) or to agree to any restriction or condition with respect to any assets, operations, business or the conduct of business of the Company and its Subsidiaries, if, in the case of this clause (ii), any such action, failure to act, restriction, condition or agreement, individually or in the aggregate, would reasonably be likely to have a Company Material Adverse Effect (read without regard to the exceptions set forth therein and without giving effect to clause (A) thereof) (except as provided in the immediately preceding sentence, the occurrence of any of the matters specified in clause (i) or clause (ii) above shall constitute a “Regulatory Material Adverse Effect”). In addition, in measuring whether a Regulatory Material Adverse Effect has occurred, the expected loss of any reasonably expected synergies (both cost and revenue) relating to any restriction or condition shall be taken into account as if the Company had an adverse effect to its financial condition and results of operations equal to the expected amount of applicable synergies affected by any such restriction or condition. The Company and its Subsidiaries shall not agree to any actions, restrictions commitments or conditions with respect to obtaining any consents, registrations, approvals, permits, expirations of waiting periods or authorizations in connection with the Merger and the Purchase Transaction pursuant to any settlement or other transactions contemplated by this Agreement agreement with any Governmental Entity without the prior written consent of Parent and (whichE) prior to termination of this Letter Agreement, subject it will not withdraw any filing made by it in connection with the Purchase Transaction without the prior written consent of Parent, such consent to not be unreasonably withheld, conditioned or delayed.
(vi) Subject to the terms and conditions set forth in this Section 6.5(aLetter Agreement, each party hereto shall appear formally (including by providing testimony) may be withheld or informally before any Governmental Entity if reasonably requested by the other parties hereto or required by such Governmental Entity in Parent’s sole discretion). connection with any filings contemplated by this Letter Agreement.
(vii) Subject to applicable Laws Law and clauses (c) and (e) of this Section 5 relating to the exchange of information, Parent information and the Company protection of legal privilege, each of the parties hereto shall have provide the right other parties hereto a reasonable opportunity to review in advanceadvance and, and to the extent practicable practicable, each will consult with the other onparties hereto on and consider in good faith the views and comments of the other parties hereto in connection with, all of the material information relating to Parent or the Company, as the case may be, and any of their respective Subsidiaries, Oncor Entities that appears in any filing made with, or written materials or written testimony submitted to, any third party and/or or oral presentations or testimony made to any Governmental Entity in connection with the Merger and the other transactions contemplated by this Agreement. To the extent permitted by applicable Law, each party shall provide the other with copies of all correspondence between it (or its advisors) and any Governmental Entity relating to the Merger and the other transactions contemplated by this Agreement and, to the extent reasonably practicable, all telephone calls and meetings with a Governmental Entity regarding the transactions contemplated by this Agreement shall include representatives of Parent and the CompanyPurchase Transaction. In exercising the foregoing rightsrights and performing the foregoing obligations, the Company and Parent each party hereto shall act reasonably reasonably, promptly and as promptly as reasonably practicable.
(viii) Each party may, in its reasonable judgment and discretion, initiate or otherwise engage in discussions in respect of the Purchase Transaction with any party (or any representative of such party) to the PUCT proceeding related thereto. If requested by a Governmental Entity or otherwise in response to any Governmental Request or Order, each party hereto may appear at any formal or informal meeting in regards to the Proposed Transactions. Each party may, in its reasonable judgment and discretion, initiate or otherwise engage in discussions in respect of the Purchase Transaction with any Governmental Entity or any representatives thereof.
(ix) In connection with the Purchase Transaction, Oncor and Purchasers will be the primary advocates in the PUCT on Purchasers’ proposal to acquire Oncor. Oncor and Purchasers will jointly lead the efforts to obtain PUCT Approval, subject to the terms of this Letter Agreement, and in good faith will cooperate to the extent practicable on: (A) the scheduling and conducting of all formal meetings with all Governmental Entities and the staffs thereof, (B) the coordination, terms, commitments, requests, and making of the Applications (and any amendment or supplement thereto), subject to Sections 5(a)(iv) and (xi), and the process for obtaining any consents, registrations, approvals, permits and authorizations of any Governmental Entity, in each case, as may be necessary or advisable in connection with the Applications, filings and approvals contemplated by this Letter Agreement, and (C) the resolution of any investigation or other inquiry of any Governmental Entity (and the staffs thereof), including the PUCT, in each case, as may be necessary or advisable in connection with the Applications, filings and approvals contemplated by this Letter Agreement. Prior to making any decisions pursuant to the preceding sentence, Parent shall consult in good faith with the Oncor Entities with respect to such decisions and consider in good faith the views of the Oncor Entities.
(x) The Oncor Entities shall use their reasonable best efforts to cooperate with respect to Purchasers’ efforts to obtain the Supplemental Rulings (as defined in the Merger Agreement).
(xi) Nothing in this Section 5(a) shall (A) prevent, limit or restrict an Oncor Entity or its Affiliates from interacting, communicating or making filings or applications with, or resolving any investigation or other inquiry of, any agency or other Governmental Entity in the ordinary course of business related to matters other than the Purchase Transaction, (B) prevent, limit or restrict an Oncor Entity or its Affiliates from responding to unsolicited inquiries related to the Purchase Transaction from any agency or other Governmental Entity or interacting with any such agency or other Governmental Entity in response to unsolicited communications related to the Purchase Transaction initiated by any such Person, or (C) require an Oncor Entity or any Representative of an Oncor Entity to take any action that would violate any applicable Law or rule of any Governmental Entity, provided, that each Oncor Entity will provide Parent with a reasonable advance opportunity to review and comment upon any written communication, filing or application related to the Applications and the Oncor Entities will consider in good faith the views of Parent in connection with all such written communications, filings or applications. For avoidance of doubt Oncor shall prepare, present and have final approval over any testimony or presentations that will be proffered or given to any Governmental Entity by any Oncor officers, directors, employees or representatives and any responses to discovery, Oncor pleadings, any presentation of evidence, or other communications between any Oncor Entity and any Governmental Entity, including in connection with the filings referenced in clauses (ii) through (iv) above (except that such filings shall be prepared in accordance with and contain the provisions required by the applicable provisions of this Section 5).
(xii) Notwithstanding anything herein to the contrary, if either the Merger Agreement and/or the Plan of Reorganization has been terminated, each of Oncor and Oncor Holdings may defer performance of its obligations under this Section 5(a) or may withdraw any application or filing previously made by Oncor. Further, Oncor shall be entitled, following notice to and consultation with Parent, to withdraw any application or filing previously made by Oncor with any Governmental Entity pursuant to this Section 5 in order to comply with any requirement, or reasonable request without solicitation, in a Governmental Request or Order; provided that Oncor’s board of directors determines in good faith after consultation with its outside legal counsel, and based on advice of such counsel, that not withdrawing any such application or filing would be inconsistent with its fiduciary duties.
Appears in 2 contracts
Sources: Oncor Letter Agreement (Oncor Electric Delivery Co LLC), Oncor Letter Agreement (Sempra Energy)
Cooperation. The Company (i) Subject to the terms and Parent shallconditions set forth in this Letter Agreement, subject to Section 6.2, cooperate with each other and use, and the Oncor Entities shall cause their respective Subsidiaries to, use their respective reasonable best efforts to cooperate with and assist the Purchasers and to take or cause to be taken all actions, and to do or cause to be done done, and assist and cooperate with the Purchasers in doing, all thingsthings reasonably requested by the Purchasers to negotiate, necessary, proper or advisable on its part under this Agreement prepare and applicable Laws to consummate and make effective the Merger and the other transactions contemplated by this Agreement as promptly as reasonably practicable (it being understood that nothing contained in this Agreement shall require Parent to obtain any consents, registrations, approvals, permits, expirations of waiting periods or authorizations prior to the Termination Date), including preparing and filing file as promptly as reasonably practicable all documentation to effect all necessary notices, reports and other filings (including by filing no later than 20 calendar days after and assist the date of this Agreement all applications required to be filed with the FCC and the notification and report form required under the HSR Act; provided that the failure to file within such 20-day period shall not constitute a breach of this Agreement) and to obtain Purchasers in obtaining as promptly as reasonably practicable all consents, registrations, approvals, permits, expirations of waiting periods permits and authorizations necessary or advisable to be obtained from any third party and/or any Governmental Entity in order connection with the Purchase Transactions.
(ii) Subject to consummate the Merger terms and conditions set forth in this Letter Agreement, including Section 5(a)(xi), each party hereto shall use its reasonable best efforts to file with the FERC a joint application for the FERC Approval as promptly as reasonably practicable following the Approval Date; provided, however, that to meet such filing date, each party shall have furnished to the other parties in a timely fashion, all documents, pleadings, testimony and other information sufficient for the FERC filing to be made.
(iii) Subject to the terms and conditions set forth in this Letter Agreement, including Section 5(a)(xi), each party hereto shall use its reasonable best efforts to submit to the PUCT a single filing (on behalf of the parties) in which the Purchasers will seek prior approval by the PUCT of the Purchase Transactions (the “PUCT Filing”) as promptly as reasonably practicable following the Approval Date. In furtherance of the foregoing, each party shall have furnished to the other parties in a timely fashion, all documents, pleadings, testimony and other information sufficient for the PUCT Filing to be made.
(iv) In connection with any PUCT Filing or application submitted to the FCC or FERC with respect to the Purchase Transactions (together, the “FCC/FERC Applications” and, together with the PUCT Filing, the “Applications”), Oncor Holdings and Oncor shall not be required to endorse, or cause any of their Subsidiaries to endorse, as their or their Subsidiaries’ own strategy or take actions to support any modification of their or their Subsidiaries’ strategy and business plan that Oncor Holdings or Oncor, as applicable, determines in good faith that it would not support as being in the other transactions contemplated by best interest of Oncor if the Purchase Transactions were not to be completed; provided, however, that nothing in this Agreement. To Section 5(a)(iv) shall affect any Oncor Entity’s obligation to include the extent necessary Key Regulatory Terms or advisable to obtain any consent, registration, approval, permit, expiration of waiting period or authorization from any Governmental Entity in order to consummate the Merger prior to the Termination Date, (x) Parent shall, and shall cause its Subsidiaries to, and commit to cause the Company and its Subsidiaries to, take the actions and agree to those undertakings items set forth on Section 6.5(aSchedule 6.3(a)(vi) of the Parent Disclosure Letter and (y) Parent shallset forth in Exhibit D, and shall cause its Subsidiaries to take, other actions involving Parent and its Subsidiaries that are in the aggregate de minimis (for the avoidance of doubt, not involving any divestiture, holding separate any business or assets or other similar action). Except as provided in the immediately preceding sentence, nothing in this Agreement shall require, or be construed to require, (i) Parent or any of its Subsidiaries to take or refrain from taking any action (including any divestiture, holding separate any business or assets or other similar action) or to agree to any restriction or condition with respect to any assets, operations, business or the conduct of business of Parent or any of its Subsidiaries and (ii) Parent, the Company or any of their respective Subsidiaries to take or refrain from taking any action (including any divestiture, holding separate any business or assets or other similar action) or to agree to any restriction or condition with respect to any assets, operations, business or the conduct of business of the Company and its Subsidiaries, ifapplicable, in the case Applications. Nothing contained in this Section 5(a)(iv) is intended to give Parent or Merger Sub, directly or indirectly, the right to control or direct any Oncor Entity’s operations.
(v) Each of this clause (ii), any such action, failure to act, restriction, condition or agreement, individually or in the aggregate, would reasonably be likely to have a Company Material Adverse Effect (read without regard to the exceptions set forth therein Oncor and without giving effect to clause Oncor Holdings agrees that (A) thereof) (except as provided in the immediately preceding sentenceApplications shall include the information concerning the Purchase Transactions, the occurrence of any Oncor Entities, and the Purchasers required by applicable Laws of the matters specified State of Texas and other applicable jurisdictions, (B) the Applications and any amendments or supplements thereto shall include the key terms and undertakings set forth in clause Exhibit C (ithe “Key Regulatory Terms”) or clause (ii) above shall constitute a “Regulatory Material Adverse Effect”). In addition, and the items set forth in measuring whether a Regulatory Material Adverse Effect has occurred, the expected loss of any reasonably expected synergies (both cost and revenue) relating to any restriction or condition shall be taken into account as if the Company had an adverse effect to its financial condition and results of operations equal Exhibit D to the expected amount extent applicable to such Applications and the jurisdictions relevant thereto and such additional agreements or commitments by the Purchasers as the Purchasers believe, after consultation with the Oncor Entities, are advisable to obtain the PUCT Approval, FERC Approval or FCC Approval, (C) it will cooperate with the efforts of applicable synergies affected by the Purchasers to seek approval of the Key Regulatory Terms and the items set forth in Exhibit D, (D) no Oncor Entity shall accept any such restriction or condition. The Company and its Subsidiaries shall not agree to any actionsagreements, restrictions commitments or conditions with respect to obtaining any consents, registrations, approvals, permits, expirations of waiting periods or authorizations in connection with the Merger and the Purchase Transactions pursuant to any settlement or other transactions contemplated by this Agreement agreement with any Governmental Entity without the prior written consent of Parent and (whichE) prior to termination of this Letter Agreement, subject it will not withdraw any filing made by it in connection with the Purchase Transactions without the prior written consent of Parent, such consent not be unreasonably withheld, conditioned or delayed. Notwithstanding any provision in this Letter Agreement, neither Oncor Holdings nor Oncor have taken any position in regards to any action, proposed action, or approvals sought relating to the equity interests held by Texas Transmission, or any of the items set forth in Exhibit D.
(vi) Subject to the terms and conditions set forth in this Section 6.5(aLetter Agreement, each party hereto shall appear formally (including by providing testimony) may be withheld or informally before any Governmental Entity if reasonably requested by the other parties hereto or required by such Governmental Entity in Parent’s sole discretion). connection with any filings contemplated by this Letter Agreement.
(vii) Subject to applicable Laws Law and clauses (c) and (e) of this Section 5 relating to the exchange of information, Parent information and the Company protection of legal privilege, each of the parties hereto shall have provide the right other parties hereto a reasonable opportunity to review in advanceadvance and, and to the extent practicable practicable, each will consult with the other onparties hereto on and consider in good faith the views and comments of the other parties hereto in connection with, all of the material information relating to Parent or the Company, as the case may be, and any of their respective Subsidiaries, Oncor Entities that appears in any filing made with, or written materials or written testimony submitted to, any third party and/or or oral presentations or testimony made to any Governmental Entity in connection with the Merger Purchase Transactions. In exercising the foregoing rights and performing the other transactions contemplated by this Agreement. To the extent permitted by applicable Lawforegoing obligations, each party hereto shall provide the other with copies of all correspondence between it act reasonably, promptly and as reasonably practicable.
(or its advisorsviii) and any Governmental Entity relating Each party hereto agrees not to the Merger and the other transactions contemplated by this Agreement andschedule, to the extent reasonably practicable, any substantive meetings or substantive communications with the PUCT or the FERC regarding the Purchase Transactions without giving the other parties hereto or their respective Representatives a reasonable opportunity to participate in such meeting or communication to the extent permitted by such Governmental Entity, and in any event the parties hereto shall keep each other reasonably apprised of all telephone calls material substantive communications with Governmental Entities of which such party is aware regarding the Purchase Transactions.
(ix) In connection with the Purchase Transactions, Purchasers will be the primary advocates in the PUCT on their proposal to acquire Oncor, will lead the efforts to obtain PUCT approval, subject to the terms of this Letter Agreement, and in good faith and close cooperation with Oncor will take the lead in: (A) the scheduling and conducting of all formal meetings with a all Governmental Entity regarding Entities and the transactions staffs thereof, (B) the coordination, terms, commitments, requests, and making of the Applications (and any amendment or supplement thereto), subject to Section 5(a)(xi), and the process for obtaining any consents, registrations, approvals, permits and authorizations of any Governmental Entity, in each case, as may be necessary or advisable in connection with the Applications, filings and approvals contemplated by this Agreement Letter Agreement, and (C) the resolution of any investigation or other inquiry of any Governmental Entity (and the staffs thereof), including the PUCT, in each case, as may be necessary or advisable in connection with the Applications, filings and approvals contemplated by this Letter Agreement. Prior to making any decisions pursuant to the preceding sentence, Parent shall include representatives consult in good faith with the Oncor Entities with respect to such decisions and consider in good faith the views of the Oncor Entities.
(x) The Oncor Entities shall use their reasonable best efforts to cooperate with respect to Purchasers’ efforts to obtain the Private Letter Ruling requested in the Ruling Request.
(xi) Nothing in this Section 5(a) shall (A) prevent, limit or restrict an Oncor Entity or its Affiliates from interacting, communicating or making filings or applications with, or resolving any investigation or other inquiry of, any agency or other Governmental Entity in the ordinary course of business related to matters other than the Purchase Transactions, (B) prevent, limit or restrict an Oncor Entity or its Affiliates from responding to unsolicited inquiries related to the Purchase Transactions from any agency or other Governmental Entity or interacting with any such agency or other Governmental Entity in response to unsolicited communications related to the Purchase Transactions initiated by any such Person, or (C) require an Oncor Entity or any officer, director, employee or Representative of an Oncor Entity to take any action that would violate any applicable Law or rule of any Governmental Entity, provided, that each Oncor Entity will provide Parent with a reasonable advance opportunity to review and comment upon any written communication, filing or application related to the Applications and the Oncor Entities will consider in good faith the views of Parent in connection with all such written communications, filings or applications. For avoidance of doubt Oncor shall prepare, present and have final approval over any testimony or presentations that will be proffered or given to any Governmental Entity by any Oncor officers, directors, employees or representatives and any responses to discovery, Oncor pleadings, any presentation of evidence, or other communications between any Oncor Entity and any Governmental Entity, including in connection with the Companyfilings referenced in clauses (ii) through (iv) above (except that such filings shall be prepared in accordance with and contain the provisions required by the applicable provisions of this Section 5).
(xii) Notwithstanding anything herein to the contrary, if the Merger Agreement has been terminated, each of Oncor and Oncor Holdings may defer performance of its obligations under this Section 5(a) or may withdraw any application or filing previously made by Oncor. In exercising Further, Oncor shall be entitled, following notice to and consultation with the foregoing rightsPurchasers, the Company to withdraw any application or filing previously made by Oncor with any Governmental Entity pursuant to this Section 5 in order to comply with any requirement, or reasonable request without solicitation, in a Governmental Request or Order, provided that Oncor’s board of directors determines in good faith after consultation with its outside financial advisors and Parent each shall act reasonably outside legal counsel, and as promptly as reasonably practicablebased on advice of such counsel, that not withdrawing any such application or filing would be inconsistent with its fiduciary duties.
Appears in 2 contracts
Sources: Oncor Letter Agreement (Oncor Electric Delivery Co LLC), Oncor Letter Agreement (Nextera Energy Inc)
Cooperation. The Company Subject to the terms and Parent shallconditions set forth in this Agreement, subject the Debtor, JV and ProMedica (and, to Section 6.2the extent reasonably required, QCP) shall cooperate with each other and use, use (and shall cause their respective Subsidiaries to, use to use) their respective reasonable best efforts to take or cause to be taken all actions, and do or cause to be done all things, reasonably necessary, proper or advisable on its their part under this Agreement and applicable Laws to consummate and make effective the Merger and the other transactions contemplated by this Agreement Transactions as promptly soon as reasonably practicable (it being understood that nothing contained in this Agreement shall require Parent to obtain any consents, registrations, approvals, permits, expirations of waiting periods or authorizations prior to the Termination Date)practicable, including preparing and filing as promptly as reasonably practicable all documentation to effect all necessary notices, reports and other filings (including by filing no later than 20 calendar days after the date of this Agreement all applications required to be filed with the FCC and the notification and report form required under the HSR Act; provided that the failure to file within such 20-day period shall not constitute a breach of this Agreement) and to obtain as promptly as reasonably practicable all consents, registrations, approvals, permits, expirations of waiting periods permits and authorizations necessary or advisable to be obtained from any third party and/or any Governmental Entity in order (including the Governmental Approvals and the ProMedica Approvals) and, to consummate the Merger or any extent applicable, complying with the requirements of the other transactions contemplated by this Agreement. To the extent necessary or advisable to obtain any consent, registration, approval, permit, expiration of waiting period or authorization from any Governmental Entity in order to consummate the Merger prior to the Termination Date, (x) Parent shall, and shall cause its Subsidiaries to, and commit to cause the Company and its Subsidiaries to, take the actions and agree to those undertakings set forth on Section 6.5(a) of the Parent Disclosure Letter and (y) Parent shall, and shall cause its Subsidiaries to take, other actions involving Parent and its Subsidiaries that are in the aggregate de minimis (for the avoidance of doubt, not involving any divestiture, holding separate any business or assets or other similar action). Except as provided in the immediately preceding sentence, nothing in this Agreement shall require, or be construed to require, (i) Parent or any of its Subsidiaries to take or refrain from taking any action (including any divestiture, holding separate any business or assets or other similar action) or to agree to any restriction or condition with respect to any assets, operations, business or the conduct of business of Parent or any of its Subsidiaries and (ii) Parent, the Company or any of their respective Subsidiaries to take or refrain from taking any action (including any divestiture, holding separate any business or assets or other similar action) or to agree to any restriction or condition with respect to any assets, operations, business or the conduct of business of the Company and its Subsidiaries, if, in the case of this clause (ii), any such action, failure to act, restriction, condition or agreement, individually or in the aggregate, would reasonably be likely to have a Company Material Adverse Effect (read without regard to the exceptions set forth therein and without giving effect to clause (A) thereof) (except as provided in the immediately preceding sentence, the occurrence of any of the matters specified in clause (i) or clause (ii) above shall constitute a “Regulatory Material Adverse Effect”). In addition, in measuring whether a Regulatory Material Adverse Effect has occurred, the expected loss of any reasonably expected synergies (both cost and revenue) relating to any restriction or condition shall be taken into account as if the Company had an adverse effect to its financial condition and results of operations equal to the expected amount of applicable synergies affected by any such restriction or condition. The Company and its Subsidiaries shall not agree to any actions, restrictions or conditions with respect to obtaining any consents, registrations, approvals, permits, expirations of waiting periods or authorizations in connection with the Merger and the other transactions contemplated by this Agreement without the prior written consent of Parent (which, subject to this Section 6.5(a) may be withheld in Parent’s sole discretion)HSR Act. Subject to applicable Laws relating to the exchange of information, Parent the parties shall cooperate on all matters with respect to obtaining the Governmental Approvals and making of filings with any Governmental Entity in connection with this Section 4.2. Each of the Lessors, ProMedica, and the Company Debtor shall (i) in coordination with each other, file as promptly as practicable after the execution hereof, all applications and documents required, necessary or advisable to obtain the Governmental Approvals and comply with the applicable requirements of the HSR Act as soon as practicable, (ii) submit to customary background checks in connection therewith, (iii) respond promptly to any additional requests from Governmental Entities and (iv) otherwise use its reasonable best efforts to obtain all Governmental Approvals and comply with the applicable requirements of the HSR Act as promptly as practicable (and in any event prior to the Termination Date). The Lessors, ProMedica and the Debtor shall have the right to review in advance (and shall deliver to QCP in advance) and, and to the extent practicable practicable, each will consult with the other on(and of QCP) on and consider in good faith the views of the other (and of QCP) in connection with, all of the information relating to Parent or the CompanyLessors, ProMedica and the Debtor, as the case may be, and any of their respective Subsidiaries, that appears in any filing made with, or written materials submitted to, any third party and/or any Governmental Entity in connection with the Merger and the other transactions contemplated by this Agreement. To the extent permitted by applicable Law, each party shall provide the other with copies of all correspondence between it (or its advisors) and any Governmental Entity relating to the Merger and the other transactions contemplated by this Agreement and, to the extent reasonably practicable, all telephone calls and meetings with a Governmental Entity regarding the transactions contemplated by this Agreement shall include representatives of Parent and the CompanyTransactions. In exercising the foregoing rights, each of the Company Lessors, Debtor, and Parent each ProMedica shall act reasonably and as promptly as reasonably practicable.
Appears in 2 contracts
Sources: Alternative Plan Sponsor Agreement, Alternative Plan Sponsor Agreement (Quality Care Properties, Inc.)
Cooperation. The Company (i) Subject to the terms and Parent shallconditions set forth in this Letter Agreement, subject to Section 6.2, cooperate with each other the Oncor Entities and use, and Purchasers shall cause their respective Subsidiaries to, use their respective reasonable best efforts to cooperate and to take or cause to be taken all actions, and to do or cause to be done done, all thingsthings reasonably requested by the Purchasers to negotiate, necessary, proper or advisable on its part under this Agreement prepare and applicable Laws to consummate and make effective the Merger and the other transactions contemplated by this Agreement as promptly as reasonably practicable (it being understood that nothing contained in this Agreement shall require Parent to obtain any consents, registrations, approvals, permits, expirations of waiting periods or authorizations prior to the Termination Date), including preparing and filing file as promptly as reasonably practicable all documentation to effect all necessary notices, reports and other filings (including by filing no later than 20 calendar days after and assist the date of this Agreement all applications required to be filed with the FCC and the notification and report form required under the HSR Act; provided that the failure to file within such 20-day period shall not constitute a breach of this Agreement) and to obtain Purchasers in obtaining as promptly as reasonably practicable all consents, registrations, approvals, permits, expirations of waiting periods permits and authorizations necessary or advisable to be obtained from any third party and/or any Governmental Entity in order connection with the Purchase Transaction.
(ii) Subject to consummate the Merger terms and conditions set forth in this Letter Agreement, including Section 5(a)(xi), each party hereto shall use its reasonable best efforts to file with the FERC a joint application for the FERC Approval as promptly as reasonably practicable following the date hereof. In furtherance of the foregoing, each party shall furnish to the other parties in a timely fashion, all documents, pleadings, testimony and other information sufficient for such application to be made.
(iii) Subject to the terms and conditions set forth in this Letter Agreement, including Section 5(a)(xi), each party hereto shall use its reasonable best efforts to submit to the PUCT a single filing (on behalf of the parties) in which the Purchasers will seek prior approval by the PUCT of the Purchase Transaction (the “PUCT Filing”) as promptly as reasonably practicable following the date hereof. In furtherance of the foregoing, each party shall furnish to the other parties in a timely fashion, all documents, pleadings, testimony and other information sufficient for the PUCT Filing to be made.
(iv) In connection with any PUCT Filing or application submitted to the FCC or FERC with respect to the Purchase Transaction (together, the “FCC/FERC Applications” and, together with the PUCT Filing, the “Applications”), Oncor Holdings and Oncor shall not be required to endorse, or cause any of their Subsidiaries to endorse, as their or their Subsidiaries’ own strategy or take actions to support any modification of their or their Subsidiaries’ strategy and business plan that Oncor Holdings or Oncor, as applicable, determines in good faith that it would not support as being in the best interest of Oncor if the Purchase Transaction was not to be completed; provided, however, that nothing in this Section 5(a)(iv) shall affect any Oncor Entity’s obligation to include the Key Regulatory Terms in the Applications, subject to Section 5(a)(v) below. Nothing contained in this Section 5(a)(iv) is intended to give Parent or Merger Subs, directly or indirectly, the right to control or direct any Oncor Entity’s operations.
(v) Each of Oncor and Oncor Holdings agrees that (A) the Applications shall include the information concerning the Purchase Transaction, the Oncor Entities, and the Purchasers required by applicable Laws of the State of Texas and other transactions contemplated applicable jurisdictions, (B) the Applications and any amendments or supplements thereto shall include the key terms and undertakings set forth in Exhibit B (the “Key Regulatory Terms”) and the jurisdictions relevant thereto and such additional agreements or commitments by this Agreement. To the extent necessary or Purchasers as the Purchasers believe, after consultation with the Oncor Entities, are advisable to obtain any consentthe PUCT Approval, registration, approval, permit, expiration of waiting period FERC Approval or authorization from any Governmental Entity in order to consummate the Merger prior to the Termination DateFCC Approval, (xC) Parent shall, and shall cause its Subsidiaries to, and commit to cause it will cooperate with the Company and its Subsidiaries to, take the actions and agree to those undertakings set forth on Section 6.5(a) efforts of the Parent Disclosure Letter and (y) Parent shall, and shall cause its Subsidiaries Purchasers to take, other actions involving Parent and its Subsidiaries that are seek approval of the Key Regulatory Terms in the aggregate de minimis (for the avoidance Applications; provided, however, that neither Oncor Holdings nor Oncor shall be required to endorse or approve any of doubt, Purchasers’ plans that assume that Texas Transmission Investment LLC will not involving any divestiture, holding separate any business or assets or other similar action). Except continue to hold Oncor equity interests nor that same assumption as provided reflected in the immediately preceding sentence, nothing in this Agreement shall require, or be construed to requireKey Regulatory Terms attached as Exhibit B hereto, (iD) Parent or no Oncor Entity shall accept any of its Subsidiaries to take or refrain from taking any action (including any divestitureagreements, holding separate any business or assets or other similar action) or to agree to any restriction or condition with respect to any assets, operations, business or the conduct of business of Parent or any of its Subsidiaries and (ii) Parent, the Company or any of their respective Subsidiaries to take or refrain from taking any action (including any divestiture, holding separate any business or assets or other similar action) or to agree to any restriction or condition with respect to any assets, operations, business or the conduct of business of the Company and its Subsidiaries, if, in the case of this clause (ii), any such action, failure to act, restriction, condition or agreement, individually or in the aggregate, would reasonably be likely to have a Company Material Adverse Effect (read without regard to the exceptions set forth therein and without giving effect to clause (A) thereof) (except as provided in the immediately preceding sentence, the occurrence of any of the matters specified in clause (i) or clause (ii) above shall constitute a “Regulatory Material Adverse Effect”). In addition, in measuring whether a Regulatory Material Adverse Effect has occurred, the expected loss of any reasonably expected synergies (both cost and revenue) relating to any restriction or condition shall be taken into account as if the Company had an adverse effect to its financial condition and results of operations equal to the expected amount of applicable synergies affected by any such restriction or condition. The Company and its Subsidiaries shall not agree to any actions, restrictions commitments or conditions with respect to obtaining any consents, registrations, approvals, permits, expirations of waiting periods or authorizations in connection with the Merger and the Purchase Transaction pursuant to any settlement or other transactions contemplated by this Agreement agreement with any Governmental Entity without the prior written consent of Parent and (whichE) prior to termination of this Letter Agreement, subject it will not withdraw any filing made by it in connection with the Purchase Transaction without the prior written consent of Parent, such consent to not be unreasonably withheld, conditioned or delayed. Notwithstanding any provision in this Section 6.5(aLetter Agreement, neither Oncor Holdings nor Oncor have taken any position in regards to any action, proposed action, or approvals sought relating to the equity interests held by Texas Transmission Investment LLC.
(vi) may be withheld Subject to the terms and conditions set forth in Parent’s sole discretion). this Letter Agreement, each party hereto shall appear formally (including by providing testimony) or informally before any Governmental Entity if reasonably requested by the other parties hereto or required by such Governmental Entity in connection with any filings contemplated by this Letter Agreement.
(vii) Subject to applicable Laws Law and clauses (c) and (e) of this Section 5 relating to the exchange of information, Parent information and the Company protection of legal privilege, each of the parties hereto shall have provide the right other parties hereto a reasonable opportunity to review in advanceadvance and, and to the extent practicable practicable, each will consult with the other onparties hereto on and consider in good faith the views and comments of the other parties hereto in connection with, all of the material information relating to Parent or the Company, as the case may be, and any of their respective Subsidiaries, Oncor Entities that appears in any filing made with, or written materials or written testimony submitted to, any third party and/or or oral presentations or testimony made to any Governmental Entity in connection with the Merger Purchase Transaction. In exercising the foregoing rights and performing the other transactions contemplated by this Agreement. To the extent permitted by applicable Lawforegoing obligations, each party hereto shall provide the other with copies of all correspondence between it act reasonably, promptly and as reasonably practicable.
(or its advisorsviii) and any Governmental Entity relating Each party hereto agrees not to the Merger and the other transactions contemplated by this Agreement andschedule, to the extent reasonably practicable, any substantive meetings or substantive communications with the PUCT or the FERC regarding the Purchase Transaction without giving the other parties hereto or their respective Representatives a reasonable opportunity to participate in such meeting or communication to the extent permitted by such Governmental Entity, and in any event the parties hereto shall keep each other reasonably apprised of all telephone calls material substantive communications with Governmental Entities of which such party is aware regarding the Purchase Transaction.
(ix) In connection with the Purchase Transaction, Oncor and Purchasers will be the primary advocates in the PUCT on Purchasers’ proposal to acquire Oncor, will jointly lead the efforts to obtain PUCT Approval, subject to the terms of this Letter Agreement, and in good faith will cooperate on: (A) the scheduling and conducting of all formal meetings with a all Governmental Entity regarding Entities and the transactions staffs thereof, (B) the coordination, terms, commitments, requests, and making of the Applications (and any amendment or supplement thereto), subject to Section 5(a)(xi), and the process for obtaining any consents, registrations, approvals, permits and authorizations of any Governmental Entity, in each case, as may be necessary or advisable in connection with the Applications, filings and approvals contemplated by this Agreement Letter Agreement, and (C) the resolution of any investigation or other inquiry of any Governmental Entity (and the staffs thereof), including the PUCT, in each case, as may be necessary or advisable in connection with the Applications, filings and approvals contemplated by this Letter Agreement. Prior to making any decisions pursuant to the preceding sentence, Parent shall include representatives consult in good faith with the Oncor Entities with respect to such decisions and consider in good faith the views of the Oncor Entities.
(x) The Oncor Entities shall use their reasonable best efforts to cooperate with respect to Purchasers’ efforts to obtain the Supplemental Rulings (as defined in the Merger Agreement).
(xi) Nothing in this Section 5(a) shall (A) prevent, limit or restrict an Oncor Entity or its Affiliates from interacting, communicating or making filings or applications with, or resolving any investigation or other inquiry of, any agency or other Governmental Entity in the ordinary course of business related to matters other than the Purchase Transaction, (B) prevent, limit or restrict an Oncor Entity or its Affiliates from responding to unsolicited inquiries related to the Purchase Transaction from any agency or other Governmental Entity or interacting with any such agency or other Governmental Entity in response to unsolicited communications related to the Purchase Transaction initiated by any such Person, or (C) require an Oncor Entity or any officer, director, employee or Representative of an Oncor Entity to take any action that would violate any applicable Law or rule of any Governmental Entity, provided, that each Oncor Entity will provide Parent with a reasonable advance opportunity to review and comment upon any written communication, filing or application related to the Applications and the Oncor Entities will consider in good faith the views of Parent in connection with all such written communications, filings or applications. For avoidance of doubt Oncor shall prepare, present and have final approval over any testimony or presentations that will be proffered or given to any Governmental Entity by any Oncor officers, directors, employees or representatives and any responses to discovery, Oncor pleadings, any presentation of evidence, or other communications between any Oncor Entity and any Governmental Entity, including in connection with the Companyfilings referenced in clauses (ii) through (iv) above (except that such filings shall be prepared in accordance with and contain the provisions required by the applicable provisions of this Section 5).
(xii) Notwithstanding anything herein to the contrary, if either the Merger Agreement and/or the Plan of Reorganization has been terminated, each of Oncor and Oncor Holdings may defer performance of its obligations under this Section 5(a) or may withdraw any application or filing previously made by Oncor. In exercising the foregoing rightsFurther, the Company Oncor shall be entitled, following notice to and Parent each shall act reasonably consultation with Purchasers, to withdraw any application or filing previously made by Oncor with any Governmental Entity pursuant to this Section 5 in order to comply with any requirement, or reasonable request without solicitation, in a Governmental Request or Order; provided that Oncor’s board of directors determines in good faith after consultation with its outside financial advisors and as promptly as reasonably practicableoutside legal counsel, and based on advice of such counsel, that not withdrawing any such application or filing would be inconsistent with its fiduciary duties.
Appears in 2 contracts
Sources: Oncor Letter Agreement (Oncor Electric Delivery Co LLC), Oncor Letter Agreement (Berkshire Hathaway Energy Co)
Cooperation. The Company and Parent shall(a) Except to the extent otherwise allowed by Section 5.4, subject to Section 6.2, each party hereto shall cooperate with the other to fulfill the closing conditions set forth in Article 6 and Article 7, including delivery of all documents set forth in such conditions.
(b) Without limiting the foregoing, each other and useparty hereto shall take all commercially reasonable steps necessary or desirable, and proceed diligently and in good faith and shall cause their respective Subsidiaries use all commercially reasonable efforts to obtain, as promptly as practicable, all authorizations, consents, orders and approvals of all Governmental Entities that may be or become necessary for such party’s execution and delivery of, and the performance of its obligations pursuant to, use their respective 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 on its part under this Agreement and applicable Laws the other Transaction Documents, including under the HSR Act. Each party hereto shall make all necessary filings to consummate be made by them, and thereafter make effective any other required or appropriate submissions, with respect to this Agreement, the Merger other Transaction Documents and the other transactions contemplated by this Agreement as promptly as reasonably practicable (it being understood that nothing contained in this Agreement shall require Parent to obtain any consents, registrations, approvals, permits, expirations of waiting periods or authorizations prior to the Termination Date), including preparing hereby and filing as promptly as reasonably practicable all documentation to effect all necessary notices, reports and other filings (including by filing no later than 20 calendar days after the date of this Agreement all applications required to be filed with the FCC and the notification and report form thereby required under the HSR Act; provided that the failure Act and each party shall make, as soon as reasonably practicable, all other necessary filings to file within such 20-day period shall not constitute a breach of be made by it, and thereafter make any other required or appropriate submissions, with respect to this Agreement, the other Transaction Documents and the transactions contemplated hereby and thereby, including, following approval by the Company’s stockholders, the filing by the Company of the Certificate of Incorporation Amendments with the State of Delaware, Department of State: Division of Corporations. Each party will cooperate fully (including, without limitation, by providing all information and reasonable assistance as the other party requests in connection with its preparation of any filing or submission that is necessary under the HSR Act) and with the other parties in promptly seeking to obtain as promptly as reasonably practicable all such authorizations, consents, registrations, orders and approvals, permits, expirations .
(c) Each party hereto shall promptly inform the other party of waiting periods and authorizations necessary or advisable to be obtained any communication from any third party and/or any Governmental Entity in order to consummate the Merger or regarding any of the other transactions contemplated by this Agreement. To the extent necessary If any party or advisable to obtain any consent, registration, approval, permit, expiration of waiting period Affiliate thereof receives a request for additional information or authorization documentary material from any such Governmental Entity in order to consummate the Merger prior to the Termination Date, (x) Parent shall, and shall cause its Subsidiaries to, and commit to cause the Company and its Subsidiaries to, take the actions and agree to those undertakings set forth on Section 6.5(a) respect of the Parent Disclosure Letter and (y) Parent shall, and shall cause its Subsidiaries to take, other actions involving Parent and its Subsidiaries that are in the aggregate de minimis (for the avoidance of doubt, not involving any divestiture, holding separate any business or assets or other similar action). Except as provided in the immediately preceding sentence, nothing in this Agreement shall require, or be construed to require, (i) Parent or any of its Subsidiaries to take or refrain from taking any action (including any divestiture, holding separate any business or assets or other similar action) or to agree to any restriction or condition with respect to any assets, operations, business or the conduct of business of Parent or any of its Subsidiaries and (ii) Parent, the Company or any of their respective Subsidiaries to take or refrain from taking any action (including any divestiture, holding separate any business or assets or other similar action) or to agree to any restriction or condition with respect to any assets, operations, business or the conduct of business of the Company and its Subsidiaries, if, in the case of this clause (ii), any such action, failure to act, restriction, condition or agreement, individually or in the aggregate, would reasonably be likely to have a Company Material Adverse Effect (read without regard to the exceptions set forth therein and without giving effect to clause (A) thereof) (except as provided in the immediately preceding sentence, the occurrence of any of the matters specified in clause (i) or clause (ii) above shall constitute a “Regulatory Material Adverse Effect”). In addition, in measuring whether a Regulatory Material Adverse Effect has occurred, the expected loss of any reasonably expected synergies (both cost and revenue) relating to any restriction or condition shall be taken into account as if the Company had an adverse effect to its financial condition and results of operations equal to the expected amount of applicable synergies affected by any such restriction or condition. The Company and its Subsidiaries shall not agree to any actions, restrictions or conditions with respect to obtaining any consents, registrations, approvals, permits, expirations of waiting periods or authorizations in connection with the Merger and the other transactions contemplated by this Agreement without the prior written consent of Parent (which, subject to this Section 6.5(a) may be withheld in Parent’s sole discretion). Subject to applicable Laws relating to the exchange of information, Parent and the Company shall have the right to review in advance, and to the extent practicable each will consult the other on, all of the information relating to Parent or the Company, as the case may be, and any of their respective Subsidiaries, that appears in any filing made with, or written materials submitted to, any third party and/or any Governmental Entity in connection with the Merger and the other transactions contemplated by this Agreement. To the extent permitted by applicable Law, each party shall provide the other with copies of all correspondence between it (or its advisors) and any Governmental Entity relating to the Merger and the other transactions contemplated by this Agreement and, to the extent reasonably practicable, all telephone calls and meetings with a Governmental Entity regarding the transactions contemplated by this Agreement shall include representatives of Parent and the Company. In exercising the foregoing rightshereby, the Company and Parent each shall act reasonably and then such party will endeavor in good faith to make, or cause to be made, as promptly soon as reasonably practicablepracticable and after consultation with the other party, an appropriate response in compliance with such request.
Appears in 2 contracts
Sources: Stock Purchase and Master Transaction Agreement (Ipsen, S.A.), Stock Purchase and Master Transaction Agreement (Tercica Inc)
Cooperation. The Subject to the terms and conditions set forth in this Agreement, the Company and Parent shall, subject to Section 6.2, shall cooperate with each other and use, use (and shall cause their respective Subsidiaries to, use to use) their respective reasonable best efforts to take or cause to be taken all actions, and do or cause to be done all things, things reasonably necessary, proper or advisable on its 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 reasonably practicable (it being understood that nothing contained in this Agreement shall require Parent to obtain any consents, registrations, approvals, permits, expirations of waiting periods or authorizations prior to the Termination Date)practicable, including preparing and filing as promptly as reasonably practicable all documentation to effect all necessary notices, reports and other filings (including by filing no later than 20 calendar days after the date of this Agreement all applications required to be filed with the FCC and the notification and report form required under the HSR Act; provided that the failure to file within such 20-day period shall not constitute a breach of this Agreement) and to obtain as promptly as reasonably practicable all consents, registrations, approvals, permits, expirations of waiting periods permits 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 AgreementAgreement (the "Governmental Authorizations"). To In connection with and without limiting the extent necessary or advisable to obtain any consentforegoing, registration, approval, permit, expiration of waiting period or authorization from any Governmental Entity in order to consummate the Merger prior to the Termination Date, (x) Parent shall, and shall cause its Subsidiaries to, and commit to cause the Company and its Subsidiaries toParent shall each file or jointly file, take the actions and agree to those undertakings set forth on Section 6.5(a) of the Parent Disclosure Letter and (y) Parent shall, and shall cause its Subsidiaries to take, other actions involving Parent and its Subsidiaries that are in the aggregate de minimis (for the avoidance of doubt, not involving any divestiture, holding separate any business or assets or other similar action). Except as provided in the immediately preceding sentence, nothing in this Agreement shall requireif applicable, or cause to be construed filed, promptly after the date of this Agreement, any notifications, approval applications or the like required to require, (i) Parent or any of its Subsidiaries to take or refrain from taking any action (including any divestiture, holding separate any business or assets or be filed under the HSR Act and all other similar action) or to agree to any restriction or condition merger control laws with respect to any assets, operations, business or the conduct of business of transactions contemplated hereby and Parent or any of its Subsidiaries and (ii) Parent, the Company or any of their respective Subsidiaries to take or refrain from taking any action (including any divestiture, holding separate any business or assets or other similar action) or to agree to any restriction or condition with respect to any assets, operations, business or the conduct of business shall each pay one-half of the Company filing and its Subsidiaries, if, similar fees payable in the case of this clause (ii), any such action, failure to act, restriction, condition or agreement, individually or in the aggregate, would reasonably be likely to have a Company Material Adverse Effect (read without regard to the exceptions set forth therein and without giving effect to clause (A) thereof) (except as provided in the immediately preceding sentence, the occurrence of any of the matters specified in clause (i) or clause (ii) above shall constitute a “Regulatory Material Adverse Effect”). In addition, in measuring whether a Regulatory Material Adverse Effect has occurred, the expected loss of any reasonably expected synergies (both cost and revenue) relating to any restriction or condition shall be taken into account as if the Company had an adverse effect to its financial condition and results of operations equal to the expected amount of applicable synergies affected by any such restriction or conditionconnection therewith. The Company and its Subsidiaries shall not agree to any actions, restrictions or conditions Parent will each request early termination of the waiting period with respect to obtaining any consents, registrations, approvals, permits, expirations of waiting periods or authorizations in connection with the Merger and under the other transactions contemplated by this Agreement without the prior written consent of Parent (which, subject to this Section 6.5(a) may be withheld in Parent’s sole discretion)HSR Act. Subject to applicable Laws relating to the exchange of information, Parent and the Company shall have the right to review in advance, and to the extent practicable each will consult with the other onon and consider in good faith the views of the other in connection with, all of the information relating to Parent or the Company, as the case may be, and any of their respective Subsidiaries, that appears in any filing made with, or written materials submitted to, any third party and/or any Governmental Entity in connection with the Merger and the other transactions contemplated by this AgreementAgreement (including the Proxy Statement and information provided to unions, works councils or other representative bodies or labor organizations). To the extent practicable, none of the parties will file any documents or have any communication with any Governmental Entity without prior consultation with the other parties. Each party shall keep the others reasonably apprised of the content and status of any material communications with, and material communications from any Governmental Entity with respect to the Merger. To the extent practicable, and permitted by applicable Lawa Governmental Entity, each party hereto shall provide permit representatives of the other party to participate in meeting (whether by telephone or in person) with copies of all correspondence between it (or its advisors) and any such Governmental Entity relating to the Merger and the other transactions contemplated by this Agreement and, to the extent reasonably practicable, all telephone calls and meetings with a Governmental Entity regarding the transactions contemplated by this Agreement shall include representatives of Parent and the CompanyEntity. In exercising the foregoing rights, each of the Company and Parent each shall act reasonably and as promptly as reasonably practicable.
Appears in 2 contracts
Cooperation. The Company Each of Parent and Parent Buyers shall, subject :
(a) provide assistance to Section 6.2, cooperate with each other Party as reasonably requested in preparing and usefiling Tax Returns and responding to Tax audits or Tax authority disputes;
(b) make available to each other Party as reasonably requested all information, records, and shall cause their respective Subsidiaries todocuments relating to Taxes concerning any Company Entity or Brazil NewCo;
(c) furnish each other Party with copies of all correspondence received from any Taxing authority in connection with any Tax audit or Tax proceedings with respect to any taxable period for which such party may have a liability under this Agreement;
(d) upon request, use their respective all 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 on its part under this Agreement and applicable Laws to consummate and make effective the Merger and the other transactions contemplated by this Agreement as promptly as reasonably practicable (it being understood that nothing contained in this Agreement shall require Parent to obtain any consents, registrations, approvals, permits, expirations of waiting periods certificate or authorizations prior to the Termination Date), including preparing and filing as promptly as reasonably practicable all documentation to effect all necessary notices, reports and other filings (including by filing no later than 20 calendar days after the date of this Agreement all applications required to be filed with the FCC and the notification and report form required under the HSR Act; provided that the failure to file within such 20-day period shall not constitute a breach of this Agreement) and to obtain as promptly as reasonably practicable all consents, registrations, approvals, permits, expirations of waiting periods 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. To the extent necessary or advisable to obtain any consent, registration, approval, permit, expiration of waiting period or authorization document from any Governmental Entity or customer of any Company Entity or Brazil NewCo or any other person as may be necessary to mitigate, reduce or eliminate any Tax that could be imposed (including but not limited to with respect to the transactions contemplated hereby);
(e) retain any books and records that could reasonably be expected to be necessary or useful in order connection with any preparation by any other Party of any Tax Return, or for any audit, examination, or proceeding relating to consummate Taxes. Such books and records shall be retained until the Merger expiration of the applicable statute of limitations (including extensions thereof); provided, however, that in the event of an audit, examination, investigation or proceeding has been instituted prior to the Termination Date, (x) Parent shall, and shall cause its Subsidiaries to, and commit to cause the Company and its Subsidiaries to, take the actions and agree to those undertakings set forth on Section 6.5(a) expiration of the Parent Disclosure Letter and applicable statute of limitations (y) Parent shall, and shall cause its Subsidiaries to take, other actions involving Parent and its Subsidiaries that are in the aggregate de minimis (for the avoidance of doubt, not involving any divestiture, holding separate any business or assets or other similar action). Except as provided in the immediately preceding sentence, nothing in this Agreement shall require, or be construed to require, (i) Parent or any of its Subsidiaries to take or refrain from taking any action (including any divestiture, holding separate any business or assets or other similar action) or to agree to any restriction or condition with respect to any assets, operations, business or the conduct of business of Parent or any of its Subsidiaries and (ii) Parent, the Company or any of their respective Subsidiaries to take or refrain from taking any action (including any divestiture, holding separate any business or assets or other similar action) or to agree to any restriction or condition with respect to any assets, operations, business or the conduct of business of the Company and its Subsidiaries, if, in the case of this clause (ii), any such action, failure to act, restriction, condition or agreement, individually or in the aggregate, would reasonably be likely to have a Company Material Adverse Effect (read without regard to the exceptions set forth therein and without giving effect to clause (A) thereof) (except as provided in the immediately preceding sentenceevent of any claim under this Agreement), the occurrence of books and records shall be retained until there is a final determination thereof (and the time for any of the matters specified in clause (i) or clause (ii) above shall constitute a “Regulatory Material Adverse Effect”appeals has expired). In additionEach Party shall give the other party reasonable written notice prior to destroying or discarding any such books and records and, in measuring whether a Regulatory Material Adverse Effect has occurred, the expected loss of any reasonably expected synergies (both cost and revenue) relating to any restriction or condition shall be taken into account as if the Company had an adverse effect to its financial condition and results of operations equal to the expected amount of applicable synergies affected by any such restriction other party so requests, Buyers or condition. The Company and its Subsidiaries shall not agree to any actions, restrictions or conditions with respect to obtaining any consents, registrations, approvals, permits, expirations of waiting periods or authorizations in connection with the Merger and the other transactions contemplated by this Agreement without the prior written consent of Parent (which, subject to this Section 6.5(a) may be withheld in Parent’s sole discretion). Subject to applicable Laws relating to the exchange of information, Parent and the Company shall have the right to review in advance, and to the extent practicable each will consult the other on, all of the information relating to Parent or the Company, as the case may be, shall allow the other party to take possession of such books and any of their respective Subsidiariesrecords; and
(f) after the date hereof, that appears cooperate in any filing made with, or written materials submitted to, any third party and/or any Governmental Entity in connection negotiating with the Merger and the other transactions contemplated Government of Puerto Rico to minimize any Taxes payable by this Agreement. To the extent permitted by applicable Law, each party shall provide the other with copies of all correspondence between it (or its advisors) and any Governmental Entity relating Company PR to the Merger and the other transactions contemplated by this Agreement and, to the extent reasonably practicable, all telephone calls and meetings with a Governmental Entity regarding the transactions contemplated by this Agreement shall include representatives Government of Parent and the Company. In exercising the foregoing rights, the Company and Parent each shall act reasonably and as promptly as reasonably practicablePuerto Rico.
Appears in 2 contracts
Sources: Transaction Agreement (SMART Modular Technologies (WWH), Inc.), Transaction Agreement (Smart Modular Technologies Inc)
Cooperation. Following the execution of this Agreement, Purchaser and the Company agree as follows:
(a) The parties and their Affiliates shall each use their reasonable efforts, and shall cooperate fully with each other in preparing, filing, prosecuting, and taking any other actions with respect to, any filings (other than filings with the FCC, which are provided for in clause (b) below), applications, requests, or actions which are or may be necessary to obtain the consents, approvals, authorizations or other orders of any Governmental Authority which are or may be necessary in order to accomplish the transactions contemplated by this Agreement; and, without limiting the generality of the foregoing, the parties and their Affiliates shall use their respective reasonable efforts to prepare and file as promptly as practicable, but in any event no later than five (5) Business Days after the date hereof (unless the Company designates in writing that the filing shall be delayed to a date no later than the first (1st) Business Day after the Diligence Termination Deadline), all of the information called for in the Notification and Report Form required under the HSR Act and to prepare and file any supplemental information, also in a timely fashion, which may be required by the United States Department of Justice or the Federal Trade Commission pursuant to such Notification and Report Form Filings, and otherwise to use their respective reasonable efforts to obtain the requisite clearances.
(b) The parties and their Affiliates shall cooperate fully with each other in preparing, filing, prosecuting, and taking any other actions with respect to filings with the FCC related to the transactions contemplated by this Agreement, including, without limitation, preparation of an application for the assignment of all of the FCC Licenses to Purchaser and any filings by Purchaser requesting temporary waivers for no more than nine (9) months of the FCC's applicable ownership rules necessary to permit the parties to consummate the transactions contemplated by this Agreement. As promptly as practicable, but in any event not later than ten (10) Business Days after the Diligence Termination Deadline, the Company and Purchaser shall jointly file the application with the FCC requesting the FCC Consent, including, without limitation, requesting, consenting to, and taking and otherwise seeking any action in connection with a conditional waiver of the FCC's Duopoly Rule. The Company and Parent shall, subject to Section 6.2, cooperate with each other and use, and Purchaser shall cause their respective Subsidiaries to, use their respective reasonable best efforts, diligently take all necessary and proper actions and provide any additional information requested by the FCC in order to obtain promptly the FCC Consent. Notwithstanding the foregoing or any other provision of this Agreement, neither Purchaser nor its officers, directors or Affiliates shall request a permanent waiver of the FCC's applicable ownership rules or request, consent to, take or otherwise seek or pursue any action that is inconsistent with the transactions contemplated by this Agreement or that reasonably could be expected to materially impede or materially delay the FCC Consent or otherwise materially impede or materially delay the consummation of the transactions contemplated by this Agreement; and the receipt of any permanent waiver of the foregoing FCC rules shall not be a condition to the obligation of Purchaser to consummate the transactions contemplated hereby. Neither Purchaser nor any of its officers, directors or Affiliates will take any action that would result in any change in the matters set forth in Section 4.7 hereof that would reasonably be expected to materially delay or otherwise materially impair Purchaser's ability to consummate the transactions contemplated hereby. After the date hereof, Purchaser or its Affiliates may enter into transactions that implicate the FCC multiple ownership rules so long as such transactions would not reasonably be expected to materially impede or materially delay the Closing
(i) If Purchaser (or its Affiliates) or the Company receives an administrative or other order or notification relating to any violation or claimed violation of the rules and regulations of the FCC, or of any Governmental Authority, that could affect Purchaser's or the Company's ability to consummate the transactions contemplated hereby, or (ii) should Purchaser (or its Affiliates) become aware of any fact (including any change in law or regulations (or any interpretation thereof by the FCC)) relating to the qualifications of Purchaser (and its controlling persons) that reasonably could be expected to cause the FCC to withhold the FCC Consent, Purchaser (in the case of clauses (i) and (ii)) or the Company (in the case of clause (i)) shall promptly notify the other party or parties thereof and shall use its reasonable best efforts to take such steps as may be necessary to remove any such impediment to the transactions contemplated by this Agreement; and no such notification shall affect the representations or warranties of the parties or the conditions to their respective obligations hereunder.
(d) The parties shall each use their reasonable best efforts to obtain as promptly as reasonably practical all consents that may be required in connection with the assignment to the Purchaser at the Non-License Transfer and the Closing, as applicable, of all the Company's right, title and interest in and to all Material Contracts as such are acquired by the Company pursuant to the Gannett Purchase Agreement and all other agreements of the Business to which the Company or Gannett is a party, provided that (i) neither the Company nor Purchaser shall be required to make any payment to any party to any such Material Contract or other agreement in order to obtain any such consent (except the Company agrees to pay any amounts outstanding as of the Transfer Date under any such Material Program Contracts as provided for in Section 5.1(a)(v).
(e) To the extent that there are third-party insurance policies maintained by Gannett covering any Claims or Damages relating to the assets, business, operations, conduct and employees (including, without limitation, former employees) of the Business arising out of or relating to occurrences prior to the Transfer Date, the Company shall use all reasonable efforts to cause Purchaser to be named as an additional insured with respect to such policies.
(f) Subject to the terms and conditions of this Agreement, each of the parties agrees to use its reasonable efforts to take, or cause to be taken taken, all actionsactions and to do, and do or cause to be done done, all things, things necessary, proper or advisable on its part under this Agreement and applicable Laws to consummate and make effective the Merger Non-License Transfer and the Closing and the other transactions contemplated by this Agreement hereby as promptly soon as reasonably practicable (it being understood that nothing contained in this Agreement shall require Parent to obtain any consents, registrations, approvals, permits, expirations of waiting periods or authorizations prior to the Termination Date), including preparing and filing as promptly as reasonably practicable all documentation to effect all necessary notices, reports and other filings (including by filing no later than 20 calendar days after the date of this Agreement all applications required to be filed with the FCC and the notification and report form required under the HSR Act; provided that the failure to file within such 20-day period shall not constitute a breach of this Agreement) and to obtain as promptly as reasonably practicable all consents, registrations, approvals, permits, expirations of waiting periods 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. To the extent necessary or advisable to obtain any consent, registration, approval, permit, expiration of waiting period or authorization from any Governmental Entity in order to consummate the Merger prior to the Termination Date, (x) Parent shall, and shall cause its Subsidiaries to, and commit to cause the Company and its Subsidiaries to, take the actions and agree to those undertakings set forth on Section 6.5(a) of the Parent Disclosure Letter and (y) Parent shall, and shall cause its Subsidiaries to take, other actions involving Parent and its Subsidiaries that are in the aggregate de minimis (for the avoidance of doubt, not involving any divestiture, holding separate any business or assets or other similar action). Except as provided in the immediately preceding sentence, nothing in this Agreement shall require, or be construed to require, (i) Parent or any of its Subsidiaries to take or refrain from taking any action (including any divestiture, holding separate any business or assets or other similar action) or to agree to any restriction or condition with respect to any assets, operations, business or the conduct of business of Parent or any of its Subsidiaries and (ii) Parent, the Company or any of their respective Subsidiaries to take or refrain from taking any action (including any divestiture, holding separate any business or assets or other similar action) or to agree to any restriction or condition with respect to any assets, operations, business or the conduct of business of the Company and its Subsidiaries, if, in the case of this clause (ii), any such action, failure to act, restriction, condition or agreement, individually or in the aggregate, would reasonably be likely to have a Company Material Adverse Effect (read without regard to the exceptions set forth therein and without giving effect to clause (A) thereof) (except as provided in the immediately preceding sentence, the occurrence of any of the matters specified in clause (i) or clause (ii) above shall constitute a “Regulatory Material Adverse Effect”). In addition, in measuring whether a Regulatory Material Adverse Effect has occurred, the expected loss of any reasonably expected synergies (both cost and revenue) relating to any restriction or condition shall be taken into account as if the Company had an adverse effect to its financial condition and results of operations equal to the expected amount of applicable synergies affected by any such restriction or condition. The Company and its Subsidiaries shall not agree to any actions, restrictions or conditions with respect to obtaining any consents, registrations, approvals, permits, expirations of waiting periods or authorizations in connection with the Merger and the other transactions contemplated by this Agreement without the prior written consent of Parent (which, subject to this Section 6.5(a) may be withheld in Parent’s sole discretion). Subject to applicable Laws relating to the exchange of information, Parent and the Company shall have the right to review in advance, and to the extent practicable each will consult the other on, all of the information relating to Parent or the Company, as the case may be, and any of their respective Subsidiaries, that appears in any filing made with, or written materials submitted to, any third party and/or any Governmental Entity in connection with the Merger and the other transactions contemplated by this Agreement. To the extent permitted by applicable Law, each party shall provide the other with copies of all correspondence between it (or its advisors) and any Governmental Entity relating to the Merger and the other transactions contemplated by this Agreement and, to the extent reasonably practicable, all telephone calls and meetings with a Governmental Entity regarding the transactions contemplated by this Agreement shall include representatives of Parent and the Company. In exercising the foregoing rights, the Company and Parent each shall act reasonably and as promptly as reasonably practicable.
Appears in 2 contracts
Sources: Purchase Agreement (Sinclair Broadcast Group Inc), Purchase Agreement (Sinclair Broadcast Group Inc)
Cooperation. The Subject to the terms and conditions set forth in this Agreement, the Company and Parent shall, subject to Section 6.2, shall cooperate with each other and use, use (and shall cause their respective Subsidiaries to, use to use) their respective reasonable best efforts to take or cause to be taken all actions, and do or cause to be done and to assist and cooperate with the other parties in doing, all things, necessary, proper or advisable on its part under this Agreement and applicable Laws to consummate and make effective effective, and to satisfy all conditions to, the Merger and the other transactions contemplated by this Agreement in the most expeditious manner practicable, including (i) obtaining of all necessary actions or nonactions, waivers or Consents from Governmental Entities and the making of all necessary registrations and filings (including filings with Governmental Entities) and the taking of all steps as promptly as reasonably practicable (it being understood that nothing contained in this Agreement shall require Parent may be necessary to obtain any consentswaiver or Consent from, registrationsor to avoid an action or proceeding by, approvalsany Governmental Entities, permits, expirations (ii) obtaining of waiting periods or authorizations prior to the Termination Date), including preparing and filing as promptly as reasonably practicable all documentation to effect all necessary notices, reports waivers and other filings (including by filing no later than 20 calendar days after the date of this Agreement all applications required Consents from third parties if any such waiver or Consent is or would reasonably be expected to be filed with material to either of the FCC and Business Units or if any such waiver or Consent is otherwise necessary to permit the notification and report form required under the HSR Act; provided that the failure to file within such 20-day period shall not constitute a breach of this Agreement) and to obtain as promptly as reasonably practicable all consents, registrations, approvals, permits, expirations of waiting periods and authorizations necessary or advisable to be obtained from any third party and/or any Governmental Entity in order parties to consummate the Merger or any of the other transactions contemplated by this Agreement. To , and (iii) the extent execution and delivery of any additional instruments necessary or advisable to obtain any consent, registration, approval, permit, expiration of waiting period or authorization from any Governmental Entity in order to consummate the Merger prior and to fully carry out the Termination Datepurposes of this Agreement. Parent will take all action necessary to cause Merger Sub to perform its obligations under this Agreement and to consummate the Merger on the terms and conditions set forth in this Agreement. The Company and Parent and their respective counsel shall, subject to applicable Law, promptly (x) Parent shall, cooperate and shall cause its Subsidiaries to, and commit to cause coordinate with the Company and its Subsidiaries to, take other in the taking of the actions contemplated by clauses (i), (ii) and agree to those undertakings set forth on Section 6.5(a(iii) of the Parent Disclosure Letter immediately above and (y) Parent shall, and shall cause its Subsidiaries to take, other actions involving Parent and its Subsidiaries that are in the aggregate de minimis (for the avoidance of doubt, not involving any divestiture, holding separate any business or assets or other similar action). Except as provided in the immediately preceding sentence, nothing in this Agreement shall require, or be construed to require, (i) Parent or any of its Subsidiaries to take or refrain from taking any action (including any divestiture, holding separate any business or assets or other similar action) or to agree to any restriction or condition with respect to any assets, operations, business or the conduct of business of Parent or any of its Subsidiaries and (ii) Parent, the Company or any of their respective Subsidiaries to take or refrain from taking any action (including any divestiture, holding separate any business or assets or other similar action) or to agree to any restriction or condition with respect to any assets, operations, business or the conduct of business of the Company and its Subsidiaries, if, in the case of this clause (ii), any such action, failure to act, restriction, condition or agreement, individually or in the aggregate, would reasonably be likely to have a Company Material Adverse Effect (read without regard to the exceptions set forth therein and without giving effect to clause (A) thereof) (except as provided in the immediately preceding sentence, the occurrence of any of the matters specified in clause (i) or clause (ii) above shall constitute a “Regulatory Material Adverse Effect”). In addition, in measuring whether a Regulatory Material Adverse Effect has occurred, the expected loss of any reasonably expected synergies (both cost and revenue) relating to any restriction or condition shall be taken into account as if the Company had an adverse effect to its financial condition and results of operations equal to the expected amount of applicable synergies affected by any such restriction or condition. The Company and its Subsidiaries shall not agree to any actions, restrictions or conditions with respect to obtaining any consents, registrations, approvals, permits, expirations of waiting periods or authorizations in connection with the Merger and supply the other transactions contemplated by this Agreement without the prior written consent of Parent (which, subject to this Section 6.5(a) with any information that may be withheld reasonably required in Parent’s sole discretion)order to effectuate the taking of such actions. Subject to applicable Laws relating to the exchange of informationLaws, Parent and the Company shall have the right to review in advanceadvance and, and to the extent practicable practicable, each will consult with the other on, all on and consider in good faith the views of the information relating to Parent or the Company, as the case may be, and any of their respective Subsidiaries, that appears other in any filing connection with all filings made with, or written materials submitted to, any third party and/or any Governmental Entity in connection with the Merger and the other transactions contemplated by this Agreement. To the extent permitted by applicable Law, each party shall provide the other with copies of all correspondence between it (or its advisors) and any Governmental Entity relating to the Merger and the other transactions contemplated by this Agreement and, to the extent reasonably practicable, all telephone calls and meetings with a Governmental Entity regarding the transactions contemplated by this Agreement shall include representatives of Parent and the Company. In exercising the foregoing rights, each of the Company and Parent each shall act reasonably and as promptly as reasonably practicable.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Ust Inc), Merger Agreement (Altria Group, Inc.)
Cooperation. (a) The Company and Parent shallshall coordinate and cooperate in connection with (i) preparing the Offer Documents, subject to Section 6.2, cooperate with each other and use, and shall cause their respective Subsidiaries to, use their respective 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 on its part under this Agreement and applicable Laws to consummate and make effective the Merger Schedule 14D-9 and the other transactions contemplated Proxy Statement, (ii) determining whether any action by this Agreement as promptly as reasonably practicable (it being understood that nothing contained or in this Agreement shall require Parent to obtain respect of, or filing with, any consentsGovernmental Entity is required, registrations, approvals, permits, expirations of waiting periods or authorizations prior to the Termination Date), including preparing and filing as promptly as reasonably practicable all documentation to effect all necessary notices, reports and other filings any actions (including by filing no later than 20 calendar days after the date of this Agreement all applications with respect to any financing) are required to be filed with the FCC and the notification and report form required under the HSR Act; provided that the failure to file within such 20-day period shall not constitute a breach of this Agreement) and to obtain as promptly as reasonably practicable all taken, or consents, registrations, approvals, permits, expirations of waiting periods and authorizations necessary approvals or advisable waivers are required to be obtained from parties to any third party and/or any Governmental Entity Material Contracts, in order to consummate connection with the Offer, the Merger or any of the other transactions contemplated by this Agreement. To the extent necessary or advisable to obtain any consent, registration, approval, permit, expiration of waiting period or authorization from any Governmental Entity in order to consummate the Merger prior to the Termination Date, (xiii) Parent shall, and shall cause its Subsidiaries to, and commit to cause the Company and its Subsidiaries to, take the actions and agree to those undertakings set forth on Section 6.5(a) of the Parent Disclosure Letter and (y) Parent shall, and shall cause its Subsidiaries to take, other actions involving Parent and its Subsidiaries that are in the aggregate de minimis (for the avoidance of doubt, not involving any divestiture, holding separate any business or assets or other similar action). Except as provided in the immediately preceding sentence, nothing in this Agreement shall require, or be construed to require, (i) Parent or any of its Subsidiaries to take or refrain from timely taking any action (including any divestituresuch actions, holding separate any business or assets or other similar action) or to agree to any restriction or condition with respect to any assets, operations, business or the conduct of business of Parent or any of its Subsidiaries and (ii) Parent, the Company or any of their respective Subsidiaries to take or refrain from taking any action (including any divestiture, holding separate any business or assets or other similar action) or to agree to any restriction or condition with respect to any assets, operations, business or the conduct of business of the Company and its Subsidiaries, if, in the case of this clause (ii), seeking any such actionconsents, failure to act, restriction, condition approvals or agreement, individually waivers or in the aggregate, would reasonably be likely to have a Company Material Adverse Effect (read without regard to the exceptions set forth therein and without giving effect to clause (A) thereof) (except as provided in the immediately preceding sentence, the occurrence of any of the matters specified in clause (i) or clause (ii) above shall constitute a “Regulatory Material Adverse Effect”). In addition, in measuring whether a Regulatory Material Adverse Effect has occurred, the expected loss of any reasonably expected synergies (both cost and revenue) relating to any restriction or condition shall be taken into account as if the Company had an adverse effect to its financial condition and results of operations equal to the expected amount of applicable synergies affected by making any such restriction filings or condition. The Company and its Subsidiaries shall not agree to any actions, restrictions or conditions with respect to obtaining any consents, registrations, approvals, permits, expirations of waiting periods or authorizations furnishing information required in connection therewith, with the Merger and the other transactions contemplated by this Agreement without the prior written consent of Parent (which, subject to this Section 6.5(a) may be withheld in Parent’s sole discretion). Subject to applicable Laws relating to the exchange of information, Parent and the Company shall have the right to review in advance, and to the extent practicable each will consult the other on, all of the information relating to Parent or the Company, as the case may be, and any of their respective Subsidiaries, that appears in any filing made with, or written materials submitted to, any third party and/or any Governmental Entity in connection with the Merger and the other transactions contemplated by this Agreement. To the extent permitted by applicable Law, each party shall provide the other with copies of all correspondence between it (or its advisors) and any Governmental Entity relating to the Merger and the other transactions contemplated by this Agreement and, to the extent reasonably practicable, all telephone calls and meetings with a Governmental Entity regarding the transactions contemplated by this Agreement or with the Offer Documents, the Schedule 14D-9 or the Proxy Statement, and (iv) the defense or settlement of any litigation relating to the transactions contemplated by this Agreement.
(b) The Company agrees that, between the date of this Agreement and the earlier of the Acceptance Time and the date, if any, on which this Agreement is terminated pursuant to Section 7.1, the Company shall include representatives cause:
(i) the information supplied by the Company expressly for inclusion or incorporation by reference in the Offer Documents (and any amendment thereof or supplement thereto), when filed with the SEC, when distributed or disseminated to the Company’s stockholders, and at the Expiration Date, not to contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements made therein, in the light of the circumstances under which they were made, not misleading;
(ii) the Schedule 14D-9 to be appropriately responsive in all material respects to the requirements and provisions of Rule 14d-9 of the Exchange Act and any other applicable federal securities laws and not, when filed with the SEC, when distributed or disseminated to the Company’s stockholders, and at the Expiration Date, to contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements made therein, in the light of the circumstances under which they were made, not misleading (except that the obligations of the Company pursuant to this Section 5.2(b)(ii) shall not apply with respect to statements made in the Schedule 14D-9 based on information furnished by Parent or Purchaser in writing expressly for inclusion therein); and
(iii) any information that the Company has provided to Purchaser or Parent that constitutes material non-public information pursuant to federal securities laws as of the time immediately preceding the commencement of the Offer to be made public immediately prior to the commencement of the Offer, to the extent that such information is not otherwise disclosed in the Offering Documents, if the commencement of, and purchase of Shares under, the Offer could constitute a breach of federal securities laws (including Rules 10b-5 or 14e-3 of the Exchange Act) if such information were not made public at or prior to the commencement of the Offer. Without limiting the generality of the foregoing, the Company hereby agrees that Parent may disclose any such material non-public information in the Offering Documents to the extent that such disclosure is necessary to prevent the commencement of, and purchase of Shares under, the Offer from constituting a breach of federal securities laws (including Rules 10b-5 or 14e-3 of the Exchange Act).
(c) Parent and Purchaser agree that, between the date of this Agreement and the earlier of the Effective Time and the date, if any, on which this Agreement is terminated pursuant to Section 7.1, Parent and Purchaser shall cause:
(i) the information supplied by Parent or Purchaser in writing expressly for inclusion or incorporation by reference in the Proxy Statement (and any amendment thereof or supplement thereto), at the date mailed to the Company’s stockholders and at the time of the meeting of the Company’s stockholders to be held in connection with the Merger, not to contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements made therein, in light of the circumstances under which they are made, not misleading; and
(ii) the Offer Documents (and any amendment thereof or supplement thereto) to be appropriately responsive in all material respects to the requirements and provisions of the Exchange Act and any other applicable federal securities laws, and not, when filed with the SEC, when distributed or disseminated to the Company’s stockholders, and at the Expiration Date, to contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they are made, not misleading (except that the obligations of Parent and Purchaser pursuant to this Section 5.2(c)(ii) shall not apply with respect to statements made in the Company. In exercising the foregoing rights, Offer Documents based on information furnished by the Company and Parent each shall act reasonably and as promptly as reasonably practicablein writing expressly for inclusion therein).
Appears in 2 contracts
Sources: Merger Agreement (North American Galvanizing & Coatings Inc), Merger Agreement (Azz Inc)
Cooperation. (a) The Company Sellers’ Representative and Parent shall, subject to Section 6.2, cooperate with each other and usethe Purchasers’ Representative shall cooperate, and the Sellers’ Representative shall cause their respective Subsidiaries the other members of the Sellers’ Group to, and the Purchasers’ Representative shall cause the other members of the Purchasers’ Group to, use their respective reasonable best efforts to take or cause to be taken all actions, and do or cause to be done all things, reasonably necessary, proper or advisable on its part their respective parts under this Agreement and applicable Laws to satisfy the conditions set forth in Article VI (Conditions to Launch of Offer and Closing) and to consummate and make effective the Merger and the other transactions contemplated by this Agreement as promptly as reasonably practicable (it being understood that nothing contained in this Agreement shall require Parent to obtain any consents, registrations, approvals, permits, expirations of waiting periods or authorizations prior to the Termination Date)practicable, including on the part of the Sellers and the Purchasers, preparing and filing publishing or filing, as promptly as reasonably practicable applicable, all documentation (including any Tender Offer Documents) to effect all necessary notices, reports and other filings (including by filing no later than 20 calendar days after the date of this Agreement all applications required to be filed with the FCC and the notification and report form required under the HSR Act; provided that the failure to file within such 20-day period shall not constitute a breach of this Agreement) and to obtain as promptly as reasonably practicable practicable, all consents, registrations, approvals, permitswaivers, expirations of waiting periods orders, interpretive guidance, exemptions, permits and authorizations necessary or advisable to be obtained from any third party and/or any Governmental Entity Government Authority, including, but not limited to, those indicated in Section 3.8 (Approvals) of the Sellers’ Disclosure Letter, and those indicated in Section 4.3 (Approvals) of the Purchasers’ Disclosure Letter, in order to consummate the Merger or any of the other transactions contemplated by this Agreement. To the extent necessary or advisable to obtain any consent, registration, approval, permit, expiration of waiting period or authorization from any Governmental Entity in order to consummate the Merger prior Agreement (including with respect to the Termination DatePurchasers’ Representative, in the event that an approval in respect of Item 3 of Annex 5 (xRequired Government Authority Approvals) Parent is required but has not been obtained by the date on which all other Minimum Required Approvals have been obtained, offering to sell, divest, exclude from the transaction or hold separate the Company’s interest in AFC (the “AFC Restructuring”) and implementing, or permitting and cooperating with the Sellers’ Representative to implement, the AFC Restructuring; provided that none of the parties or the Target Companies shall be required to conduct an auction process in connection with such AFC Restructuring); provided, however, that each of the Sellers’ Representative and the Purchasers’ Representative agree to reasonably consult with each other in advance of any initial publication or filing, as applicable, for any such notice, report or filing in respect of consents, registrations, approvals, waivers, orders, interpretive guidance, exemptions, permits and authorizations, as applicable, and agree to consider and reasonably take into account the views of the other in connection with such publication or filing. Without limiting the generality of the foregoing, each of the Sellers’ Representative and the Purchasers’ Representative shall, and Sellers’ Representative shall cause its Subsidiaries the other members of the Sellers’ Group to, and commit to the Purchasers’ Representative shall cause each member of the Company and its Subsidiaries Purchasers’ Group to, take make as promptly as reasonably practicable (and, except with respect to the actions Tender Offer Documents, in no event later than thirty (30) calendar days after the date hereof), all publications, filings and agree to those undertakings set forth on Section 6.5(a) of the Parent Disclosure Letter and submissions (y) Parent shall, and shall cause its Subsidiaries to take, other actions involving Parent and its Subsidiaries that are in the aggregate de minimis (including for the avoidance of doubt, unless such approval is not involving required, the publications, filings and submissions to obtain the approval listed in Item 3 of Annex 5 (Required Government Authority Approvals)) required under any divestitureapplicable Law in connection with this Agreement, holding separate the other Transaction Documents and the transactions contemplated hereby or thereby (and provide drafts of such filings to the other party promptly and in no event later than fifteen (15) calendar days after the date hereof), and publish or file, as applicable, promptly any business additional information requested under any applicable Law in connection with the transactions contemplated by this Agreement or assets the other Transaction Documents, after receipt of the request therefor.
(b) Without limiting the generality of this Section 5.3 (Cooperation), the Sellers’ Representative and the Purchasers’ Representative shall reasonably cooperate with each other and shall each furnish to the other all information reasonably necessary or desirable in connection with making any publication, application or other similar filing (including with respect to any Tender Offer Documents) required to be made pursuant to any Law, and in connection with resolving any investigation or other inquiry by any Government Authority under any Laws, in each case, with respect to the transactions contemplated by this Agreement and the other Transaction Documents. Each of the Sellers’ Representative and the Purchasers’ Representative shall as promptly as reasonably practicable inform the other, of any communication with, and any proposed understanding, undertaking or agreement with, any Government Authority regarding any such publications or filings. The Sellers’ Representative and the Purchasers’ Representative shall consult and reasonably 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 member of the Sellers’ Group or the Purchasers’ Group in connection with all meetings, actions and proceedings under or relating to any Laws in connection with the transactions contemplated by this Agreement and the other Transaction Documents (including, with respect to making a particular publication or filing, by providing copies of all such documents (redacted as necessary to address reasonable confidentiality concerns) to the other party and their Representatives prior to such publishing or filing, giving due consideration to all reasonable additions, deletions or changes suggested in connection therewith).
(c) Notwithstanding anything to the contrary contained in this Agreement, neither the Purchasers’ Representative nor any member of the Purchasers’ Group shall be obligated to take or refrain from taking, or to agree to take or refrain from taking, any action), or to suffer to exist any condition, limitation, restriction or requirement that, individually or in the aggregate with any other actions, conditions, limitations, restrictions or requirements would or would reasonably be expected to result in a Burdensome Condition, or to litigate or initiate any claim or pursue any litigation or administrative appeal or equivalent procedure against any Government Authority. Except Upon becoming aware that any Government Authority has imposed or intends to impose a Burdensome Condition, the Purchasers’ Representative shall promptly notify the Sellers’ Representative and provide the Sellers’ Representative with such further detail as provided it may reasonably request, including a copy of any writing submitted to or received from the applicable Government Authority, and the Purchasers’ Representative shall, in consultation with the Sellers’ Representative, use its reasonable best efforts (subject to limitations set forth in the immediately preceding sentence) to avoid the imposition of (or, nothing if imposed, the lifting of) any such Burdensome Condition including by providing additional information and making additional filings, notices or submissions reasonably requested by the relevant Government Authority and by requesting and attending meetings with the relevant Government Authority in respect thereof, and by seeking to persuade the relevant Government Authority to not impose (or, if imposed, lift) such Burdensome Condition. To the extent that, in connection with any individual Minimum Required Approval or the Minimum Required Approvals in the aggregate, a Capital Condition in an amount no greater than fifty million Dollars (USD 50,000,000) (or the Chilean peso equivalent thereof) is imposed by a Government Authority, the Purchasers’ Representative shall contribute such amount in full as, when and in the manner required. To the extent that, in connection with any individual Minimum Required Approval or the Minimum Required Approvals in the aggregate, a Capital Condition in an amount greater than fifty million Dollars (USD 50,000,000) (or the Chilean peso equivalent thereof) but no greater than seventy-five million Dollars (USD 75,000,000) (or the Chilean peso equivalent thereof) is imposed by a Government Authority notwithstanding the procedures required by this Agreement paragraph, the Purchasers’ Representative shall requirepromptly notify the Sellers’ Representative of such fact (providing the Sellers’ Representative with a copy of any writing to or from such Government Authority in respect of such requirement) and of the aggregate amount by which such Capital Condition amount exceeds fifty million Dollars (USD 50,000,000) (or the Chilean peso equivalent thereof) (such excess, or the “Excess Contribution Amount”), and the Sellers’ Representative shall have the right within ten (10) Business Days of the receipt of such notice to elect, by delivering a written notice to the Purchasers’ Representative, that the Cash Dividend Amount shall be construed reduced by an amount equal to requiresuch Excess Contribution Amount (the “Dividend Reduction Amount”).
(d) The Purchasers’ Representative and the Sellers’ Representative shall keep each other apprised of the status of matters relating to completion of the Transactions, (i) Parent or including promptly furnishing the other with copies of any of its Subsidiaries to take or refrain from taking any action (including any divestiture, holding separate any business or assets material notices or other similar actioncommunications received by a member of the Purchasers’ Group or the Sellers’ Group (as the case may be) or or, to agree to its knowledge, its Representatives from any restriction or condition Government Authority with respect to any assets, operations, business or the conduct of business of Parent or any of its Subsidiaries and (ii) Parent, the Company or any of their respective Subsidiaries to take or refrain from taking any action (including any divestiture, holding separate any business or assets or other similar action) or to agree to any restriction or condition with respect to any assets, operations, business or the conduct of business of the Company and its Subsidiaries, iftransactions contemplated by this Agreement, in each case to the case extent permitted by applicable Law. The Purchasers’ Representative and the Sellers’ Representative shall give prompt notice to each other of this clause (ii), any such action, failure to act, restriction, condition development or agreementcombination of developments that, individually or in the aggregate, would is reasonably be likely to have prevent, materially delay or materially impair its ability to consummate the transactions contemplated by this Agreement, including the failure of a Company Material Adverse Effect condition in Article VI (read without regard Conditions to Launch of Offer and Closing); provided, however, that no such notification shall affect the representations, warranties, covenants or agreements of the parties or the conditions to the exceptions set forth therein and without giving effect to clause (A) thereof) (except as provided in the immediately preceding sentence, the occurrence of any obligations of the matters specified in clause parties under this Agreement.
(ie) Except as contemplated by Section 6.4 (Deferral of Launch of Offer), neither the Purchasers’ Representative nor any member of the Purchasers’ Group shall be required under this Section 5.3 (Cooperation), to take or clause (ii) above shall constitute a “Regulatory Material Adverse Effect”). In additionrefrain from taking, in measuring whether a Regulatory Material Adverse Effect has occurredor agree to take or refrain from taking, the expected loss of any reasonably expected synergies (both cost and revenue) relating action adverse to it, or to suffer to exist any condition, limitation, restriction or condition shall be taken into account as if the Company had an requirement adverse effect to its financial condition it in connection with any notices, reports and results of operations equal to the expected amount of applicable synergies affected by any such restriction or condition. The Company and its Subsidiaries shall not agree to any actionsother filings, restrictions or conditions with respect to obtaining any consents, registrations, approvals, permitswaivers, expirations of waiting periods orders, interpretative guidance, exemptions, permits or authorizations required to be filed with, or obtained from, any Government Authority arising from or in connection with any Pre-Closing Reorganization Transaction, it being understood that the payment of any amount in connection with the Merger and foregoing by a member of the other transactions contemplated by this Agreement without the prior written consent Purchasers’ Group shall be “adverse to it” for purposes of Parent (which, subject to this Section 6.5(a5.3(e) may be withheld in Parent’s sole discretion). Subject to applicable Laws relating to the exchange of information, Parent and the Company shall have the right to review in advance, and except to the extent practicable each will consult that the other on, all Sellers’ Representative promptly reimburses the applicable member of the information relating Purchasers’ Group for such amount.
(f) The Sellers’ Representative and the Purchasers’ Representative shall, and shall cause members of the Sellers’ Group (in the case of the Sellers’ Representative) and the Purchasers’ Group (in the case of the Purchasers’ Representative), to Parent or the Companyuse commercially reasonable best efforts to, as promptly as practicable following the case may bedate hereof, obtain such waivers, consents, approvals and authorizations pursuant to the terms of Contracts to which any member of their respective Subsidiaries, that appears in the Sellers’ Group or any filing made with, Target Company is a party as the Purchasers’ Representative (acting reasonably) deems necessary or written materials submitted to, any third party and/or any Governmental Entity advisable in connection with the Merger and the other transactions contemplated by this Agreement. To the extent permitted by applicable Law, each party shall provide the other with copies consummation of all correspondence between it (or its advisors) and any Governmental Entity relating to the Merger and the other transactions contemplated by this Agreement and, to the extent reasonably practicable, all telephone calls and meetings with a Governmental Entity regarding the transactions contemplated hereby and by the other Transaction Documents. Any out-of-pocket costs consent fees or similar costs incurred and paid to the relevant Contract counterparty in connection with obtaining such waivers, consents, approvals and authorizations set forth in this Agreement Section 5.3(f) shall include representatives of Parent be borne in equal portions by the Sellers’ Representative and the Company. In exercising Purchasers’ Representative and each of the foregoing rightsSellers’ Representative and the Purchasers’ Representative shall reimburse the Purchasers’ Representative or the Sellers’ Representative, as applicable, for its portion of any such documented out-of-pocket costs incurred by the Company and Parent each shall act reasonably and as other party promptly as reasonably practicableupon written request thereof by such incurring party.
Appears in 2 contracts
Sources: Transaction Agreement (Metlife Inc), Transaction Agreement (Banco Bilbao Vizcaya Argentaria, S.A.)
Cooperation. The Company (a) Subject to the proviso contained in Section 5.5 hereof, upon the terms and Parent shall, subject to Section 6.2the conditions hereof, cooperate with each other and use, and shall cause their respective Subsidiaries to, of the parties hereto agrees to use their respective its reasonable best efforts to take or cause to be taken all actions, actions and to do or cause to be done all things, things necessary, proper or advisable on its part under this Agreement and applicable Laws to consummate and make effective the Merger and the other transactions contemplated by this Agreement as promptly as reasonably practicable (it being understood that nothing contained in this Agreement shall require Parent to obtain any consents, registrations, approvals, permits, expirations of waiting periods or authorizations prior to the Termination Date), including preparing and filing as promptly as reasonably practicable all documentation to effect all necessary notices, reports and other filings (including by filing no later than 20 calendar days after the date of this Agreement all applications required to be filed with the FCC and the notification and report form required under the HSR Act; provided that the failure to file within such 20-day period shall not constitute a breach of this Agreement) and to obtain as promptly as reasonably practicable all consents, registrations, approvals, permits, expirations of waiting periods 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. To , the extent necessary or advisable Seller Agreements and the Buyer Agreements and shall use its reasonable efforts to obtain any consentall necessary waivers, registrationconsents and approvals and to effect all necessary registrations and filings.
(b) Sellers shall use all reasonable efforts to provide to Buyer all information concerning the Business reasonably requested by Buyer for inclusion in Buyer's registration statement on Form S-1 in connection with the registration by Buyer under the Securities Act of debt or other offering memorandum for the public or private offering by Buyer of such debt as contemplated by Section 4.6.
(c) Sellers shall cooperate with Buyer and take all actions reasonably requested by Buyer in connection with (i) the planning for the consolidation of certain of Sellers' plants and (ii) the financings contemplated by Section 4.6 of the Agreement; provided, approvalhowever, permit, expiration of waiting period or authorization from any Governmental Entity in order to consummate the Merger prior to the Termination Date, that (x) Parent shall, and Sellers shall cause its Subsidiaries to, and commit to cause the Company and its Subsidiaries to, take the actions and agree to those undertakings not incur (except as specifically set forth on Section 6.5(ato the contrary herein) of the Parent Disclosure Letter any out-of-pocket costs or expenses and (y) Parent shallSellers shall not be obligated to comply with Buyer's requests if Sellers deem such actions to be otherwise inconsistent with Sellers' business needs or Sellers reasonably determine that such actions will have a material adverse effect on the Business or will unreasonably interfere with the regular duties and responsibilities of Sellers' employees to operate Sellers' business.
(d) Upon reasonable notice by Buyer, and shall cause its Subsidiaries Sellers agree to take, other actions involving Parent cooperate with Buyer and its Subsidiaries that are in the aggregate de minimis (for the avoidance of doubt, not involving any divestiture, holding separate any business or assets or other similar action). Except as provided in the immediately preceding sentence, nothing in this Agreement shall require, or be construed to require, (i) Parent or any of its Subsidiaries to take or refrain from taking any action (including any divestiture, holding separate any business or assets or other similar action) or to agree to any restriction or condition with respect to any assets, operations, business or the conduct of business of Parent or any of its Subsidiaries and (ii) Parent, the Company or any of their respective Subsidiaries to take or refrain from taking any action (including any divestiture, holding separate any business or assets or other similar action) or to agree to any restriction or condition with respect to any assets, operations, business or the conduct of business of the Company and its Subsidiaries, if, in the case of this clause (ii), any such action, failure to act, restriction, condition or agreement, individually or in the aggregate, would reasonably be likely to have a Company Material Adverse Effect (read without regard to the exceptions set forth therein and without giving effect to clause (A) thereof) (except as provided in the immediately preceding sentence, the occurrence of any of the matters specified in clause (i) or clause (ii) above shall constitute a “Regulatory Material Adverse Effect”). In addition, in measuring whether a Regulatory Material Adverse Effect has occurred, the expected loss of any reasonably expected synergies (both cost and revenue) relating to any restriction or condition shall be taken into account as if the Company had an adverse effect to its financial condition and results of operations equal to the expected amount of applicable synergies affected by any such restriction or condition. The Company and its Subsidiaries shall not agree to any actions, restrictions or conditions with respect to obtaining any consents, registrations, approvals, permits, expirations of waiting periods or authorizations lender in connection with the Merger transfer of Consigned Gold by providing access to such gold and the other transactions contemplated by this Agreement without relevant books and records of the prior written consent of Parent (which, subject to this Section 6.5(a) Business and performing all tasks that may be withheld reasonably requested by Buyer in Parent’s sole discretion). Subject to applicable Laws relating to connection therewith.
(e) In the exchange of information, Parent and the Company shall have the right to review in advance, and to the extent practicable each will consult the other on, all of the information relating to Parent event (i) Buyer or the Companyany Seller, as the case may be, and any of their respective Subsidiariesis unable to obtain, that appears in any filing made with, or written materials submitted toprior to the Closing, any third party and/or consents, approvals, waivers or other authorizations to transfer to Buyer any Governmental Entity in connection Asset or with respect to the Merger and Leases (other than the other transactions contemplated by this Agreement. To the extent permitted by applicable Law, each party shall provide the other with copies of all correspondence between it (or its advisorsKentucky Lease) and any Governmental Entity relating (ii) Buyer elects to the Merger waive Section 7.3(b) hereof with respect to such consent, approval, waiver or other authorization and the other transactions contemplated by this Agreement and, to the extent reasonably practicable, all telephone calls and meetings with a Governmental Entity regarding consummate the transactions contemplated by this Agreement hereby, Buyer and Sellers shall include representatives of Parent and cooperate with each other in order to obtain such consents, approvals, waivers or other authorizations at the Company. In exercising the foregoing rights, the Company and Parent each shall act reasonably and as promptly as reasonably practicableearliest practicable date.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Town & Country Corp), Asset Purchase Agreement (Commemorative Brands Inc)
Cooperation. The Company covenants in this Section 9.01 shall apply to the parties hereto from and after the date of this Agreement:
(a) Subject to the provisions of Section 9.02, each of the Parent shall, subject to Section 6.2, cooperate with each other and the Acquiror shall use, and shall cause their each of its respective Subsidiaries toAffiliates to use, use their respective all commercially reasonable best efforts efforts
(i) to take take, or to cause to be taken taken, all actions, and do to do, or to cause to be done done, all thingsthings that, in either case, are necessary, proper or advisable on its part under this Agreement and applicable Laws Legal Requirements or otherwise to consummate and make effective the Merger and the other transactions contemplated by this Agreement as promptly as reasonably practicable Agreement, (it being understood that nothing contained in this Agreement shall require Parent ii) to obtain from any consentsGovernmental Authorities any Authorizations or Orders required to be obtained by the Parent or the Acquiror or any of their Affiliates or any of the Operating Companies in connection with the authorization, registrationsexecution, approvals, permits, expirations of waiting periods or authorizations prior to the Termination Date), including preparing delivery and filing as promptly as reasonably practicable all documentation to effect all necessary notices, reports and other filings (including by filing no later than 20 calendar days after the date performance of this Agreement all applications required to be filed with the FCC and the notification consummation of the transactions contemplated hereby and report form (iii) to make all necessary filings as expeditiously as reasonably practicable, and thereafter to make promptly any other required submissions, with respect to this Agreement and the transactions contemplated hereby required under the HSR Act; provided that the failure to file within such 20-day period shall not constitute a breach of this Agreement) and to obtain as promptly as reasonably practicable all consents, registrations, approvals, permits, expirations of waiting periods 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. To the extent necessary or advisable to obtain any consent, registration, approval, permit, expiration of waiting period or authorization from any Governmental Entity in order to consummate the Merger prior to the Termination Date, (x) Parent shall, and shall cause its Subsidiaries to, and commit to cause the Company and its Subsidiaries to, take the actions and agree to those undertakings set forth on Section 6.5(a) of the Parent Disclosure Letter and (y) Parent shall, and shall cause its Subsidiaries to take, other actions involving Parent and its Subsidiaries foreign competition laws that are in the aggregate de minimis (for the avoidance of doubt, not involving any divestiture, holding separate any business or assets or other similar action). Except as provided in the immediately preceding sentence, nothing in this Agreement shall require, or be construed applicable to require, (i) Parent or any of its Subsidiaries to take or refrain from taking any action (including any divestiture, holding separate any business or assets or other similar action) or to agree to any restriction or condition with respect to any assets, operations, business or the conduct of business of Parent or any of its Subsidiaries and (ii) Parent, the Company or any of their respective Subsidiaries to take or refrain from taking any action (including any divestiture, holding separate any business or assets or other similar action) or to agree to any restriction or condition with respect to any assets, operations, business or the conduct of business of the Company and its Subsidiaries, if, in the case of this clause (ii), any such action, failure to act, restriction, condition or agreement, individually or in the aggregate, would reasonably be likely to have a Company Material Adverse Effect (read without regard to the exceptions set forth therein and without giving effect to clause (A) thereof) (except as provided in the immediately preceding sentence, the occurrence of any of the matters specified in clause (i) or clause (ii) above shall constitute a “Regulatory Material Adverse Effect”). In addition, in measuring whether a Regulatory Material Adverse Effect has occurred, the expected loss of any reasonably expected synergies (both cost and revenue) relating to any restriction or condition shall be taken into account as if the Company had an adverse effect to its financial condition and results of operations equal to the expected amount of applicable synergies affected by any such restriction or condition. The Company and its Subsidiaries shall not agree to any actions, restrictions or conditions with respect to obtaining any consents, registrations, approvals, permits, expirations of waiting periods or authorizations in connection with the Merger and the other transactions contemplated by this Agreement without the prior written consent of Parent (which, subject to this Section 6.5(a) may be withheld in Parent’s sole discretion). Subject to applicable Laws relating to the exchange of information, Parent and the Company shall have the right to review in advance, and to the extent practicable each will consult the other on, all of the information relating to Parent or the Company, as the case may be, and any of their respective Subsidiaries, that appears in any filing made with, or written materials submitted to, any third party and/or any Governmental Entity in connection with the Merger and the other transactions contemplated by this Agreement. To the extent permitted by applicable Law, each party shall provide the other with copies of all correspondence between it (or its advisors) and any Governmental Entity relating to the Merger and the other transactions contemplated by this Agreement and, to the extent reasonably practicable, all telephone calls and meetings with a Governmental Entity regarding the transactions contemplated by this Agreement and any other applicable Legal Requirements. In this regard, neither the Parent nor the Acquiror will, directly or indirectly, make any investment or acquisition or permit any equity investment in the Parent, the Acquiror, any Holding Company or any Transfer Company that could reasonably be expected to delay, impede or prevent the granting of any Authorization required in order to consummate the transactions contemplated hereby. Any action under this Section taken by or at the direction of Parent or Acquiror shall include representatives of be consistent with the Transfer Restriction Plan, and the Parent and the CompanyAcquiror shall cooperate with each other in connection with the making of all such filings, including providing copies of all such documents to the nonfiling party and its advisors prior to filing and, if requested, shall accept all reasonable additions, deletions or changes suggested in connection therewith. In exercising The Parent and the foregoing rightsAcquiror shall furnish or cause to be furnished all information required for any application or other filing to be made pursuant to any applicable Law or any applicable Regulations in connection with the transactions contemplated by this Agreement.
(b) Subject to the provisions of Section 9.02, each of the Parent and the Acquiror shall timely give or cause to be given any notices to third Persons, and use, and cause its respective Affiliates to use, commercially reasonable efforts to obtain any Third Person Consents (i) necessary, proper or advisable to consummate the transactions contemplated by this Agreement or to satisfy any of the Closing Conditions, (ii) otherwise required under any Principal Contracts in connection with the consummation of the transactions contemplated hereby or (iii) required to prevent a Material Adverse Effect from occurring prior to or after the Closing. Any action under this Section taken by or at the direction of Parent or Acquiror shall be consistent with the Transfer Restriction Plan, and the Parent and Acquiror shall cooperate with each other in connection with the giving of all such notices and the preparation of all consent or waiver requests or agreement amendments. The Parent and the Acquiror shall cooperate with each other in providing copies of all such documents to the other party and its advisors, and if requested, shall accept all reasonable additions, deletions or changes suggested in connection therewith. The Parent and Acquiror shall furnish or cause to be furnished all information requested by the other party in connection with this Section.
(c) Each of the Parent and the Acquiror shall give, and shall cause its Affiliates to give, prompt notice to the other of (i) any notice or other communication from any Person alleging that the consent of such Person is or may be required in connection with the transactions contemplated hereby, (ii) any notice or other communication from any Governmental Authority in connection with the transactions contemplated hereby, (iii) any actions, suits, claims, investigations or proceedings commenced or threatened in writing against, relating to or involving or otherwise affecting the Parent, the Acquiror, any Holding Company or any Transfer Company that relate to the consummation of the transactions contemplated hereby and Parent each shall act (iv) the occurrence or nonoccurrence of any event the occurrence or nonoccurrence of which would be reasonably and as promptly as reasonably practicable.likely (A) to cause any condition to the obligations of the other party to consummate the transactions contemplated hereby not to be satisfied, (B) to cause a breach of the covenants of such party under this Agreement or
Appears in 2 contracts
Sources: Purchase and Sale Agreement, Purchase and Sale Agreement
Cooperation. The Company and Parent shallWithout limiting any provision of the Subscription Agreement, subject to Section 6.2the terms and conditions of this Agreement, XC, FX and FH shall cooperate with each one another:
(i) in connection with any filing or submission with a Governmental Authority in connection with the Transactions or in connection with any investigation or other inquiry by or before a Governmental Authority relating to the Transactions, including any proceeding initiated by a private Person,
(ii) in determining whether any action by or in respect of, or filing with, any Governmental Authority is required,
(iii) in determining whether any actions, consents, approvals, waivers or registrations are reasonably necessary, proper or advisable in respect of other Third Parties in connection with the consummation of the Transactions,
(iv) in taking such actions or making any such filings, furnishing information required in connection therewith and useseeking timely to obtain any such actions, consents, approvals or waivers, and
(v) in coordinating the overall development of the positions and strategies taken, information presented and regulatory action requested in any application, notification, filing, submission, meeting or other communication with a Governmental Authority. If FH, FX or XC (or any of their respective Subsidiaries) receives a request for additional information from any Governmental Authority that is related to the Transactions, then such party shall endeavor in good faith to make, or cause to be made, to the extent practicable and after consultation with the other party, an appropriate response to such request. Prior to delivery of such response, to the extent practicable, such party shall provide the other party with a reasonable opportunity to review and comment on such response. No party shall participate in any substantive meeting, or engage in any material substantive conversation, with any Governmental Authority without giving the other party prior notice of the meeting or conversation and, unless prohibited by such Governmental Authority, the opportunity to attend or participate. Each party shall use its reasonable best efforts to supply, and shall cause their respective Subsidiaries to, use their respective reasonable best efforts to take or cause their respective Affiliates to be taken all actionssupply, and do or cause to be done all things, necessary, proper or advisable on its part under this Agreement and applicable Laws to consummate and make effective the Merger and the other transactions contemplated by this Agreement as promptly as reasonably practicable (it being understood any additional information and documentary material that nothing contained in this Agreement shall require Parent to obtain any consents, registrations, approvals, permits, expirations of waiting periods or authorizations prior may be requested pursuant to the Termination Date), including preparing and filing as promptly as reasonably practicable all documentation to effect all necessary notices, reports and other filings (including by filing no later than 20 calendar days after the date of this Agreement all applications required to be filed with the FCC and the notification and report form required under the HSR Act; provided that the failure to file within such 20-day period shall not constitute a breach of this Agreement) and to obtain as promptly as reasonably practicable all consents, registrations, approvals, permits, expirations of waiting periods 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. To the extent necessary or advisable to obtain any consent, registration, approval, permit, expiration of waiting period or authorization from any Governmental Entity in order to consummate the Merger prior to the Termination Date, (x) Parent shall, and shall cause its Subsidiaries to, and commit to cause the Company and its Subsidiaries to, take the actions and agree to those undertakings set forth on Section 6.5(a) of the Parent Disclosure Letter and (y) Parent shall, and shall cause its Subsidiaries to take, other actions involving Parent and its Subsidiaries that are in the aggregate de minimis (for the avoidance of doubt, not involving any divestiture, holding separate any business or assets or other similar action). Except as provided in the immediately preceding sentence, nothing in this Agreement shall require, or be construed to require, (i) Parent or any of its Subsidiaries to take or refrain from taking any action (including any divestiture, holding separate any business or assets or other similar action) or to agree to any restriction or condition with respect to any assets, operations, business or the conduct of business of Parent or any of its Subsidiaries and (ii) Parent, the Company or any of their respective Subsidiaries to take or refrain from taking any action (including any divestiture, holding separate any business or assets or other similar action) or to agree to any restriction or condition with respect to any assets, operations, business or the conduct of business of the Company and its Subsidiaries, if, in the case of this clause (ii), any such action, failure to act, restriction, condition or agreement, individually or in the aggregate, would reasonably be likely to have a Company Material Adverse Effect (read without regard to the exceptions set forth therein and without giving effect to clause (A) thereof) (except as provided in the immediately preceding sentence, the occurrence of any of the matters specified in clause (i) or clause (ii) above shall constitute a “Regulatory Material Adverse Effect”). In addition, in measuring whether a Regulatory Material Adverse Effect has occurred, the expected loss of any reasonably expected synergies (both cost and revenue) relating to any restriction or condition shall be taken into account as if the Company had an adverse effect to its financial condition and results of operations equal to the expected amount of applicable synergies affected by any such restriction or condition. The Company and its Subsidiaries shall not agree to any actions, restrictions or conditions with respect to obtaining any consents, registrations, approvals, permits, expirations of waiting periods or authorizations in connection with the Merger and the other transactions contemplated by this Agreement without the prior written consent of Parent (which, subject to this Section 6.5(a) may be withheld in Parent’s sole discretion). Subject to applicable Laws relating to the exchange of information, Parent and the Company shall have the right to review in advance, and to the extent practicable each will consult the other on, all of the information relating to Parent or the Company, as the case may be, and any of their respective Subsidiaries, that appears in any filing made with, or written materials submitted to, any third party and/or any Governmental Entity in connection with the Merger and the other transactions contemplated by this Agreement. To the extent permitted by applicable Law, each party shall provide the other with copies of all correspondence between it (or its advisors) and any Governmental Entity relating to the Merger and the other transactions contemplated by this Agreement and, to the extent reasonably practicable, all telephone calls and meetings with a Governmental Entity regarding the transactions contemplated by this Agreement shall include representatives of Parent and the Company. In exercising the foregoing rights, the Company and Parent each shall act reasonably and as promptly as reasonably practicableforegoing.
Appears in 2 contracts
Sources: Redemption Agreement, Redemption Agreement (Xerox Corp)
Cooperation. (a) The Company Company, Tribute and Parent shallPozen each acknowledge that Purchaser is a party to the Purchaser/Isotope Merger Agreement and, subject in connection therewith, will be filing with the Commission the ▇▇▇▇▇▇▇▇▇ ▇-▇ and will be furnishing the Isotope stockholders with copies of the prospectus / proxy statement contained therein. The Company, Tribute and Pozen each hereby agrees to Section 6.2furnish such information as Purchaser may reasonably request for inclusion in the Purchaser S-4. Each of the Company, cooperate Tribute and Pozen hereby agrees that such information pertaining to it provided for such inclusion will be true and accurate in all material respects and will not omit any material information. Purchaser hereby agrees to provide the Company, Tribute and Pozen with copies of all proposed disclosure in the Purchaser S-4 relating to the Company, Tribute, Pozen, this Agreement and the transactions contemplated hereby, prior to its filing. Purchaser further agrees to provide each other of the Company, Tribute and usePozen with a reasonable opportunity (at least two (2) Business Days) to review and comment upon such proposed disclosure and Purchaser shall consider such comments in good faith and make any changes thereto reasonably requested by the Company, Tribute or Pozen.
(b) The Company, Tribute and Pozen each acknowledge and the Purchaser hereby agrees that the Purchaser shall cause their respective Subsidiaries tonot effect the Distribution until such time as the holders of Purchaser Common Shares vote at the Purchaser Meeting and the Registration Statement is on file with the SEC and declared effective and the Canadian Final Receipt has been issued. In connection therewith, use their respective reasonable best efforts Purchaser will be filing the Purchaser Proxy Statement with the Commission and the Canadian Commissions (as defined in Annex B) and will be furnishing such document to take or cause the holders of the Purchaser Common Shares in connection with the votes to be taken at the Purchaser Meeting. The Company, Tribute and Pozen each hereby agrees to furnish such information as Purchaser may reasonably request for inclusion in the Purchaser Proxy Statement. Each of the Company, Tribute and Pozen hereby agrees that such information pertaining to it provided for such inclusion will be true and accurate in all actionsmaterial respects and will not omit any material information. Purchaser hereby agrees to provide the Company, Tribute and do or cause Pozen with copies of all proposed disclosure in the Purchaser Proxy Statement relating to be done all thingsthe Company, necessaryTribute, proper or advisable on its part under Pozen, this Agreement and applicable Laws the transactions contemplated hereby, prior to consummate its filing. Purchaser further agrees to provide each of the Company, Tribute and Pozen with a reasonable opportunity (at least two (2) Business Days) to review and comment upon such proposed disclosure and Purchaser shall consider such comments in good faith and make effective any changes thereto reasonably requested by the Merger Company, Tribute or Pozen.
(c) The Company, Tribute and Pozen each hereby agrees and acknowledges that Purchaser may be required to file reports under the other transactions contemplated by this Agreement as promptly as reasonably practicable (it being understood that nothing contained in this Agreement shall require Parent to obtain any consents, registrations, approvals, permits, expirations of waiting periods or authorizations prior to the Termination Date), including preparing Exchange Act from and filing as promptly as reasonably practicable all documentation to effect all necessary notices, reports and other filings (including by filing no later than 20 calendar days after the date of this Agreement all applications required to be filed with the FCC and the notification and report form required under the HSR Act; provided that the failure to file within such 20-day period shall not constitute a breach of this Agreement) and to obtain as promptly as reasonably practicable all consents, registrations, approvals, permits, expirations of waiting periods 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 Closing of the other transactions contemplated by this Agreement. To the extent necessary or advisable to obtain any consent, registration, approval, permit, expiration of waiting period or authorization from any Governmental Entity in order to consummate the Merger prior to the Termination Date, (x) Parent shall, and shall cause its Subsidiaries to, and commit to cause the Company and its Subsidiaries to, take the actions and agree to those undertakings set forth on Section 6.5(a) of the Parent Disclosure Letter and (y) Parent shall, and shall cause its Subsidiaries to take, other actions involving Parent and its Subsidiaries that are in the aggregate de minimis (for the avoidance of doubt, not involving any divestiture, holding separate any business or assets or other similar action). Except as provided in the immediately preceding sentence, nothing in this Agreement shall require, or be construed to require, (i) Parent or any of its Subsidiaries to take or refrain from taking any action which reports may require information (including any divestiture, holding separate any business or assets or other similar actionfinancial information) or to agree to any restriction or condition with respect to any assets, operations, business or the conduct of business of Parent or any of its Subsidiaries and (ii) Parent, the Company or any of their respective Subsidiaries to take or refrain from taking any action (including any divestiture, holding separate any business or assets or other similar action) or to agree to any restriction or condition with respect to any assets, operations, business or the conduct of business of the Company and its Subsidiaries, if, in the case of this clause (ii), any such action, failure to act, restriction, condition or agreement, individually or in the aggregate, would reasonably be likely to have a Company Material Adverse Effect (read without regard to the exceptions set forth therein and without giving effect to clause (A) thereof) (except as provided in the immediately preceding sentence, the occurrence of any of the matters specified in clause (i) or clause (ii) above shall constitute a “Regulatory Material Adverse Effect”). In addition, in measuring whether a Regulatory Material Adverse Effect has occurred, the expected loss of any reasonably expected synergies (both cost and revenue) relating to any restriction or condition shall be taken into account as if the Company had an adverse effect to its financial condition and results of operations equal to the expected amount of applicable synergies affected by any such restriction or condition. The Company and its Subsidiaries shall not agree to any actions, restrictions or conditions with respect to obtaining any consents, registrations, approvals, permits, expirations of waiting periods or authorizations in connection with the Merger and the other transactions contemplated by this Agreement without the prior written consent of Parent (which, subject to this Section 6.5(a) may be withheld in Parent’s sole discretion). Subject to applicable Laws relating to the exchange of information, Parent and the Company shall have the right to review in advance, and to the extent practicable each will consult the other on, all of the information relating to Parent or concerning the Company, Tribute and Pozen. Each of the Company, Tribute and Pozen hereby agrees to furnish such information as Purchaser may reasonably request for inclusion in such reports. Each of the case may beCompany, Tribute and Pozen hereby agrees that such information pertaining to it provided for such inclusion will be true and accurate in all material respects and will not omit any of their respective Subsidiaries, that appears in any filing made with, or written materials submitted to, any third party and/or any Governmental Entity in connection with the Merger and the other transactions contemplated by this Agreementmaterial information. To the extent permitted by applicable Law, each party shall Purchaser hereby agrees to provide the other Company, Tribute and Pozen with copies of all correspondence between it (or its advisors) and any Governmental Entity proposed disclosure in the Purchaser Proxy Statement relating to the Merger and the other transactions contemplated by Company, Tribute, Pozen, this Agreement and, to the extent reasonably practicable, all telephone calls and meetings with a Governmental Entity regarding the transactions contemplated by this Agreement shall include representatives hereby, prior to filing. Purchaser further agrees to provide each of Parent and the Company. In exercising , Tribute and Pozen with a reasonable opportunity (at least two (2) Business Days) to review and comment upon such proposed disclosure and Purchaser shall consider such comments in good faith and make any changes thereto reasonably requested by the foregoing rightsCompany, the Company and Parent each shall act reasonably and as promptly as reasonably practicableTribute or Pozen.
Appears in 2 contracts
Sources: Share Subscription Agreement (Tribute Pharmaceuticals Canada Inc.), Share Subscription Agreement (Pozen Inc /Nc)
Cooperation. The Each party hereto (Buyer, on the one hand, and Parent and, if they become parties hereto, the Company and Parent shallthe Member, jointly and severally, on the other hand) covenants from the date of this Agreement (in the case of Buyer and Parent) or the Joinder Date (in the case of the Company and the Member) to the Closing Date (and subject to Section 6.2, the other terms and conditions of this Agreement):
(a) to cooperate with each the other parties and use, and shall cause their respective Subsidiaries to, use their respective reasonable best efforts to take or cause such actions as may be necessary, in each case, as promptly as practical in (i) determining whether notices, declarations, registrations and filings are required to be taken all actions, and do made with or cause consents required to be done all things, necessary, proper obtained from any Third Party or advisable on its part under this Agreement and applicable Laws to consummate and make effective Government Authority in connection with the Merger and consummation of the other transactions contemplated by this Agreement and the other Transaction Documents and in making or causing to be made any such notices, declarations, registrations and filings promptly (including filings under the Gaming Laws), and (ii) furnishing the other party and to the other party’s counsel all such information as promptly as may be reasonably practicable required in order to effectuate the foregoing actions;
(it being understood that nothing contained b) to keep the other parties hereto informed in all material respects of any material communications received by such party from, or given by such party to, any Government Authority or Third Party relating to the Transaction and to consult with the other parties hereto in advance of any meeting or conference with any Government Authority or Third Party relating to the Transaction;
(c) to use reasonable best efforts and cooperate with the other parties hereto to obtain all consents required from Third Parties, whose consent or approval is required pursuant to any Company Agreement or otherwise to consummate the transactions contemplated by this Agreement shall require Parent and the other Transaction Documents; provided, however, that Buyer will have no obligation to obtain give any consentsguarantee or other consideration of any nature in connection with any such required consents or, registrationsexcept as contemplated by this Agreement, approvalsto consent to any change in the terms of any Company Agreement;
(d) without limiting the foregoing, permits, expirations of waiting periods or authorizations prior Buyer undertakes and agrees to make such filings and apply for such approvals and consents as are required under the Termination Date)Gaming Laws, including preparing without limitation with the LGCB (i) as soon as practicable after the date hereof (and filing as promptly as reasonably practicable all documentation to effect all necessary notices, reports and other filings in any event in each case within fifteen (including by filing no later than 20 calendar 15) days after the date hereof), including the filing of this Agreement all required applications required to be filed with the FCC for Buyer, its Affiliates and the notification “key persons” (as defined under applicable Gaming Laws) listed on Schedule 6.4(d) (and report form shall promptly file, from time to time after the date hereof, required under the HSR Act; provided that the failure to file within such 20-day period applications with respect additional key persons as they are identified). Buyer shall not constitute a breach of this Agreement) and to obtain respond as promptly as reasonably practicable all consents, registrations, approvals, permits, expirations of waiting periods and authorizations necessary or advisable under the circumstances to be obtained any inquiries received from any third party and/or authority enforcing applicable Gaming Laws for additional information or documentation and to all inquiries and requests received from any Governmental Entity Government Authorities in order connection with any Law and shall otherwise take all actions necessary to consummate pursue such approvals and consents necessary for the Merger or any consummation of the other transactions contemplated by this Agreement. To Buyer shall keep Parent reasonably informed as to the extent status of such approvals and consents, including using reasonable efforts to report to Parent on a biweekly basis at in-person or telephonic meetings involving the responsible executives of Buyer;
(e) without limiting the specific obligations of any party under this Agreement, to use reasonable best efforts to take all action and do all things necessary or advisable to obtain any consent, registration, approval, permit, expiration of waiting period or authorization from any Governmental Entity in order to promptly consummate the Merger prior to the Termination Date, (x) Parent shall, and shall cause its Subsidiaries to, and commit to cause the Company and its Subsidiaries to, take the actions and agree to those undertakings set forth on Section 6.5(a) of the Parent Disclosure Letter and (y) Parent shall, and shall cause its Subsidiaries to take, other actions involving Parent and its Subsidiaries that are in the aggregate de minimis (for the avoidance of doubt, not involving any divestiture, holding separate any business or assets or other similar action). Except as provided in the immediately preceding sentence, nothing in this Agreement shall require, or be construed to require, (i) Parent or any of its Subsidiaries to take or refrain from taking any action (including any divestiture, holding separate any business or assets or other similar action) or to agree to any restriction or condition with respect to any assets, operations, business or the conduct of business of Parent or any of its Subsidiaries and (ii) Parent, the Company or any of their respective Subsidiaries to take or refrain from taking any action (including any divestiture, holding separate any business or assets or other similar action) or to agree to any restriction or condition with respect to any assets, operations, business or the conduct of business of the Company and its Subsidiaries, if, in the case of this clause (ii), any such action, failure to act, restriction, condition or agreement, individually or in the aggregate, would reasonably be likely to have a Company Material Adverse Effect (read without regard to the exceptions set forth therein and without giving effect to clause (A) thereof) (except as provided in the immediately preceding sentence, the occurrence of any of the matters specified in clause (i) or clause (ii) above shall constitute a “Regulatory Material Adverse Effect”). In addition, in measuring whether a Regulatory Material Adverse Effect has occurred, the expected loss of any reasonably expected synergies (both cost and revenue) relating to any restriction or condition shall be taken into account as if the Company had an adverse effect to its financial condition and results of operations equal to the expected amount of applicable synergies affected by any such restriction or condition. The Company and its Subsidiaries shall not agree to any actions, restrictions or conditions with respect to obtaining any consents, registrations, approvals, permits, expirations of waiting periods or authorizations in connection with the Merger transactions contemplated hereby and the other transactions contemplated by this Agreement without Transaction Documents, including satisfaction, but not waiver, of the prior written consent conditions precedent set forth in Articles VII and VIII; and
(f) to use reasonable best efforts and cooperate with the other parties hereto to obtain approval from the applicable Gaming Authorities of Parent (which, subject to this Section 6.5(a) may be withheld in Parent’s sole discretion). Subject to applicable Laws relating any changes to the exchange of information, Parent and development plan for the Company shall have Casino and/or the right to review in advance, and Shared Space proposed by Buyer pursuant to the extent practicable each will consult the other on, all terms of Section 6.14 including any extensions of the information relating date set forth in the Statement of Conditions for the completion of construction of the Casino if required in order to Parent or the Company, as the case may be, and any of their respective Subsidiaries, that appears in any filing made with, or written materials submitted to, any third party and/or any Governmental Entity in connection with the Merger and the other transactions contemplated by this Agreement. To the extent permitted by applicable Law, each party shall provide the other with copies of all correspondence between it (or its advisors) and any Governmental Entity relating to the Merger and the other transactions contemplated by this Agreement and, to the extent reasonably practicable, all telephone calls and meetings with a Governmental Entity regarding the transactions contemplated by this Agreement shall include representatives of Parent and the Company. In exercising the foregoing rights, the Company and Parent each shall act reasonably and as promptly as reasonably practicableimplement such changes.
Appears in 2 contracts
Sources: Membership Interests Purchase Agreement (PNK Entertainment, Inc.), Membership Interests Purchase Agreement (Pinnacle Entertainment Inc.)
Cooperation. The (i) Subject to the terms and conditions set forth in this Agreement, including Section 6.04(b), the Company and Parent shall, subject to Section 6.2, shall cooperate with each other and use, use (and shall cause their respective Subsidiaries to, use Affiliates to use) their respective reasonable best efforts to (A) take or cause to be taken all actions, and do or cause to be done all things, reasonably necessary, proper or advisable on its part under this Agreement and applicable Laws to consummate prepare and make effective the Merger and the other transactions contemplated by this Agreement file as promptly as reasonably practicable (it being understood that nothing contained in this Agreement shall require Parent to obtain any consents, registrations, approvals, permits, expirations of waiting periods or authorizations prior to the Termination Date), including preparing and filing as promptly as reasonably practicable all documentation to effect advisable all necessary notices, reports and other filings (including by filing no later than 20 calendar days after the date of this Agreement all applications required to be filed with the FCC and the notification and report form required under the HSR Act; provided that the failure to file within such 20-day period shall not constitute a breach of this Agreement) and to obtain as promptly as reasonably practicable and advisable following the date of this Agreement, all notifications, filings, registrations, submissions and other materials required under the HSR Act or any other applicable Antitrust Laws and the FATA and the NZ Act required in order to consummate the Offer or the Merger) and (B) obtain all consents, registrations, approvals, permits, expirations of waiting periods permits and authorizations necessary to, or advisable to be obtained from submit all notices or filings triggered by, the Offer or the Merger and required by any applicable Laws to continue to operate the business of the Company and its Subsidiaries as currently conducted.
(ii) In connection therewith, and subject to applicable Laws relating to the exchange of information, Parent shall have the right to direct and control all matters with any Governmental Entity; provided that the Company shall have the right to participate in all such matters and to review in advance and, to the extent reasonably practicable, Parent will consult with the Company on and consider in good faith the views of the Company in connection with, all of the information relating to the Company and its Subsidiaries that appears in any filing made with, or written materials submitted to, any third party and/or any Governmental Entity in order to consummate connection with the Merger Offer or the Merger. Neither Parent nor the Company shall permit any of its officers or any of the other transactions contemplated by this Agreement. To the extent necessary representatives or advisable agents to obtain participate in any consent, registration, approval, permit, expiration of waiting period or authorization from meeting with any Governmental Entity in order to consummate the Merger prior respect of any filings, investigation or other inquiry relating to the Termination Datetransactions contemplated hereby unless it consults with the other Party in advance and, (x) Parent shallto the extent permitted by such Governmental Entity and consistent with usual practice, gives the other Party the opportunity to attend and shall cause its Subsidiaries toparticipate thereat. In exercising the rights contemplated by this Section 6.04(a)(ii), and commit to cause the Company and its Subsidiaries to, take the actions and agree to those undertakings set forth on Section 6.5(a) of the Parent Disclosure Letter and (y) Parent shall, and shall cause its Subsidiaries to take, other actions involving Parent and its Subsidiaries that are in the aggregate de minimis (for the avoidance of doubt, not involving any divestiture, holding separate any business or assets or other similar action). Except as provided in the immediately preceding sentence, nothing in this Agreement shall require, or be construed to require, (i) Parent or any of its Subsidiaries to take or refrain from taking any action (including any divestiture, holding separate any business or assets or other similar action) or to agree to any restriction or condition with respect to any assets, operations, business or the conduct of business of Parent or any of its Subsidiaries and (ii) Parent, the Company or any of their respective Subsidiaries to take or refrain from taking any action (including any divestiture, holding separate any business or assets or other similar action) or to agree to any restriction or condition with respect to any assets, operations, business or the conduct of business each of the Company and its Subsidiaries, if, in the case of this clause (ii), any such action, failure to act, restriction, condition or agreement, individually or in the aggregate, would Parent shall act reasonably be likely to have a Company Material Adverse Effect (read without regard to the exceptions set forth therein and without giving effect to clause (A) thereof) (except as provided in the immediately preceding sentence, the occurrence of any of the matters specified in clause (i) or clause (ii) above shall constitute a “Regulatory Material Adverse Effect”). In addition, in measuring whether a Regulatory Material Adverse Effect has occurred, the expected loss of any promptly as reasonably expected synergies (both cost practicable and revenue) relating to any restriction or condition shall be taken into account as if the Company had an adverse effect to its financial condition and results of operations equal to the expected amount of applicable synergies affected by any such restriction or conditionadvisable. The Company and its Subsidiaries shall not agree to any actions, restrictions or conditions with respect to obtaining any consents, registrations, approvals, permits, expirations of waiting periods or authorizations in connection with the Offer or the Merger and the other transactions contemplated by this Agreement without the prior written consent of Parent (which, subject to this Section 6.5(a) may be withheld in Parent’s sole discretion). Subject to applicable Laws relating to the exchange of information, Parent and the Company shall have the right to review in advance, and to the extent practicable each will consult the other on, all of the information relating to Parent or the Company, as the case may be, and any of their respective Subsidiaries, that appears in any filing made with, or written materials submitted to, any third party and/or any Governmental Entity in connection with the Merger and the other transactions contemplated by this Agreement. To the extent permitted by applicable Law, each party shall provide the other with copies of all correspondence between it (or its advisors) and any Governmental Entity relating to the Merger and the other transactions contemplated by this Agreement and, to the extent reasonably practicable, all telephone calls and meetings with a Governmental Entity regarding the transactions contemplated by this Agreement shall include representatives of Parent and the Company. In exercising the foregoing rights, the Company and Parent each shall act reasonably and as promptly as reasonably practicable.
Appears in 2 contracts
Sources: Merger Agreement (United Rentals, Inc.), Merger Agreement
Cooperation. The Company and Parent shall, subject to Section 6.2, cooperate with each other and use, and shall cause their respective Subsidiaries to, (a) Each party covenants that it will use their respective its commercially reasonable best efforts to take bring about the transactions contemplated by this Agreement as soon as practicable, unless this Agreement is terminated as provided herein. Subject to the terms and conditions herein provided, each of the parties hereto agrees to use all commercially reasonable efforts to take, or cause to be taken taken, all actionsaction, and do to do, or cause to be done done, all things, things necessary, proper or advisable on its part under this Agreement applicable laws and applicable Laws regulations to consummate and make effective the Merger and the other transactions contemplated by this Agreement as promptly as reasonably at the earliest practicable (it being understood time. GBC will cooperate with Cathay Bancorp in identifying material contracts of GBC and its Subsidiaries that nothing contained in this Agreement shall require Parent to obtain any consents, registrations, approvals, permits, expirations of waiting periods or authorizations prior to the Termination Date), including preparing and filing as promptly as reasonably practicable all documentation to effect all necessary notices, reports and other filings (including by filing no later than 20 calendar days after are scheduled for renewal between the date of this Agreement all applications required to be filed with the FCC and the notification and report form required under Effective Time to provide appropriate notice of non-renewal if Cathay Bancorp informs GBC that it does not intend to continue the HSR Actcontractual relationship following the Effective Time; provided that the failure to file within provided, however, such 20notice of non-day period renewal shall not constitute a breach of this Agreement) and to obtain as promptly as reasonably practicable all consentsbe given if, registrations, approvals, permits, expirations of waiting periods 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. To the extent necessary or advisable to obtain any consent, registration, approval, permit, expiration of waiting period or authorization from any Governmental Entity in order to consummate the Merger prior to the Termination Date, (x) Parent shall, and shall cause its Subsidiaries to, and commit to cause the Company and its Subsidiaries to, take the actions and agree to those undertakings set forth on Section 6.5(a) of the Parent Disclosure Letter and (y) Parent shall, and shall cause its Subsidiaries to take, other actions involving Parent and its Subsidiaries that are in the aggregate de minimis (for reasonable judgment of GBC, the avoidance notice would impair the ability of doubt, not involving any divestiture, holding separate any business or assets or other similar action). Except as provided in the immediately preceding sentence, nothing in this Agreement shall require, or be construed to require, (i) Parent GBC or any of its Subsidiaries to conduct its business in the event that this Agreement is terminated pursuant to Article VII hereof.
(b) In case at any time after the Effective Time any further action is necessary or desirable to carry out the purposes of this Agreement, the proper officers and/or directors of the parties shall take or refrain from taking any action (including any divestiture, holding separate any business or assets or all such necessary action. Each party shall use its commercially reasonable efforts to preserve for itself and the other similar action) or to agree to any restriction or condition parties hereto each available legal privilege with respect to any assets, operations, business or the conduct of business of Parent or any of its Subsidiaries and (ii) Parent, the Company or any confidentiality of their respective Subsidiaries negotiations and related communications, including the attorney-client privilege.
(c) The parties shall cooperate with each other in announcing dividends and establishing dividend eligibility and payment dates for dividends permitted pursuant to take or refrain Sections 4.1(a) and 4.3(a) hereof so that GBC's shareholders shall not receive a dividend from taking any action (including any divestiture, holding separate any business or assets or other similar action) or to agree to any restriction or condition with respect to any assets, operations, business or the conduct of business of the Company GBC and its Subsidiaries, if, Cathay Bancorp in the case of this clause (ii), any such action, failure to act, restriction, condition or agreement, individually or in the aggregate, would reasonably be likely to have a Company Material Adverse Effect (read without regard to the exceptions set forth therein and without giving effect to clause (A) thereof) (except as provided in the immediately preceding sentence, the occurrence of any of the matters specified in clause (i) or clause (ii) above shall constitute a “Regulatory Material Adverse Effect”). In addition, in measuring whether a Regulatory Material Adverse Effect has occurred, the expected loss of any reasonably expected synergies (both cost and revenue) relating to any restriction or condition shall be taken into account as if the Company had an adverse effect to its financial condition and results of operations equal to the expected amount of applicable synergies affected by any such restriction or condition. The Company and its Subsidiaries shall not agree to any actions, restrictions or conditions with respect to obtaining any consents, registrations, approvals, permits, expirations of waiting periods or authorizations in connection with the Merger and the other transactions contemplated by this Agreement without the prior written consent of Parent (which, subject to this Section 6.5(a) may be withheld in Parent’s sole discretion). Subject to applicable Laws relating to the exchange of information, Parent and the Company shall have the right to review in advance, and to the extent practicable each will consult the other on, all of the information relating to Parent or the Company, as the case may be, and any of their respective Subsidiaries, that appears in any filing made with, or written materials submitted to, any third party and/or any Governmental Entity in connection with the Merger and the other transactions contemplated by this Agreement. To the extent permitted by applicable Law, each party shall provide the other with copies of all correspondence between it (or its advisors) and any Governmental Entity relating to the Merger and the other transactions contemplated by this Agreement and, to the extent reasonably practicable, all telephone calls and meetings with a Governmental Entity regarding the transactions contemplated by this Agreement shall include representatives of Parent and the Company. In exercising the foregoing rights, the Company and Parent each shall act reasonably and as promptly as reasonably practicablesame calendar quarter.
Appears in 2 contracts
Sources: Merger Agreement (Cathay Bancorp Inc), Merger Agreement (GBC Bancorp)
Cooperation. The Company (a) Each Party shall perform all obligations hereunder in good faith and Parent shall, subject to Section 6.2, use commercially reasonable efforts to cooperate with the other in all matters relating to the provision and receipt of the Services and access to the Facilities. In furtherance of the foregoing: (i) each Party shall timely notify the other in writing as soon as practicable in advance of any circumstances that could have a material adverse effect on the Services or access to the Facilities or security and use, work with the other Party to minimize the effect of such circumstances; (ii) each Party shall timely provide information and documentation reasonably requested by the other Party to be used in the provision or receipt of the Services and access to the Facilities hereunder; and (iii) each Recipient and its Affiliates shall cause their respective Subsidiaries to, use their respective commercially reasonable best efforts to (A) cooperate with the applicable Provider and its Affiliates with respect to the provision of any Service and access to any Facility and (B) enable the applicable Provider and its Affiliates to provide the Services and access to the Facilities in accordance with this Agreement. Except as required by applicable Law, no Recipient or its Affiliates shall take any action that would interfere with or cause materially increase the costs of a Provider’s providing any of the Services or access to any of the Facilities without the consent of the Provider, such consent not to be taken all actionsunreasonably withheld, conditioned or delayed. In addition, each Recipient shall comply with any restrictions in the applicable licenses and do or cause agreements that the applicable Provider has with third parties that are used in the provision of Services of which the Recipient is made aware of by the Provider.
(b) In furtherance of such cooperation, the Parties shall work together to be done all things, necessary, proper or advisable on its part under this Agreement create procedural documentation for those Services and such access to Facilities as requested by the applicable Laws Recipient to consummate assist such Recipient in receiving such Services and make effective the Merger and the other transactions contemplated by this Agreement as promptly as reasonably practicable (it being understood that nothing contained in this Agreement shall require Parent access to obtain any consents, registrations, approvals, permits, expirations of waiting periods or authorizations prior to the Termination Date), including preparing and filing as promptly as reasonably practicable all documentation to effect all necessary notices, reports and other filings (including by filing no later than 20 calendar days after the date of this Agreement all applications required to be filed with the FCC and the notification and report form required under the HSR ActFacilities; provided that the failure to file within such 20-day period documentation shall not constitute a breach of establish service levels pursuant to Section 2.09(e) or otherwise under this Agreement) ; and provided further that if the creation of such documentation for a particular Service or access to obtain as promptly as reasonably practicable all consents, registrations, approvals, permits, expirations of waiting periods 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. To the extent necessary or advisable to obtain any consent, registration, approval, permit, expiration of waiting period or authorization from any Governmental Entity in order to consummate the Merger prior to the Termination Date, (x) Parent shall, and shall cause its Subsidiaries to, and commit to cause the Company and its Subsidiaries to, take the actions and agree to those undertakings set forth on Section 6.5(a) of the Parent Disclosure Letter and (y) Parent shall, and shall cause its Subsidiaries to take, other actions involving Parent and its Subsidiaries that are in the aggregate de minimis (for the avoidance of doubt, not involving any divestiture, holding separate any business or assets or other similar action). Except as provided in the immediately preceding sentence, nothing in this Agreement shall require, or be construed to require, (i) Parent or any of its Subsidiaries to take or refrain from taking any action (including any divestiture, holding separate any business or assets or other similar action) or to agree to any restriction or condition with respect to any assets, operations, business or the conduct of business of Parent or any of its Subsidiaries and (ii) Parent, the Company or any of their respective Subsidiaries to take or refrain from taking any action (including any divestiture, holding separate any business or assets or other similar action) or to agree to any restriction or condition with respect to any assets, operations, business or the conduct of business of the Company and its Subsidiaries, if, in the case of this clause (ii), any such action, failure to act, restriction, condition or agreement, individually or a Facility exceeds 40 hours in the aggregate, would reasonably such documentation will be likely to have provided as a Company Material Adverse Effect (read without regard to Knowledge Transfer Service at the exceptions set forth therein and without giving effect to clause (A) thereof) (except as provided in the immediately preceding sentence, the occurrence of any of the matters specified in clause (i) or clause (ii) above shall constitute a “Regulatory Material Adverse Effect”). In addition, in measuring whether a Regulatory Material Adverse Effect has occurred, the expected loss of any reasonably expected synergies (both cost and revenue) relating to any restriction or condition shall be taken into account as if the Company had an adverse effect to its financial condition and results of operations equal to the expected amount of applicable synergies affected by any such restriction or condition. The Company and its Subsidiaries shall not agree to any actions, restrictions or conditions with respect to obtaining any consents, registrations, approvals, permits, expirations of waiting periods or authorizations in connection with the Merger and the other transactions contemplated by this Agreement without the prior written consent of Parent (which, subject to this Section 6.5(a) may be withheld in Parent’s sole discretion). Subject to applicable Laws relating to the exchange of information, Parent and the Company shall have the right to review in advance, and to the extent practicable each will consult the other on, all of the information relating to Parent or the Company, as the case may be, and any of their respective Subsidiaries, that appears in any filing made with, or written materials submitted to, any third party and/or any Governmental Entity in connection with the Merger and the other transactions contemplated by this Agreement. To the extent permitted by applicable Law, each party shall provide the other with copies of all correspondence between it (or its advisors) and any Governmental Entity relating to the Merger and the other transactions contemplated by this Agreement and, to the extent reasonably practicable, all telephone calls and meetings with a Governmental Entity regarding the transactions contemplated by this Agreement shall include representatives of Parent and the Company. In exercising the foregoing rights, the Company and Parent each shall act reasonably and as promptly as reasonably practicableAgreed Price.
Appears in 2 contracts
Sources: Transition Services Agreement (Brighthouse Financial, Inc.), Transition Services Agreement (Brighthouse Financial, Inc.)
Cooperation. The (i) Subject to the terms and conditions set forth in Section 6.2, the Company and Parent shall, subject to Section 6.2, shall cooperate with each other and use, use (and shall cause their respective Subsidiaries to, use to use) their respective reasonable best efforts to (A) take or cause to be taken all actions, and do or cause to be done all things, reasonably necessary, proper or advisable on its 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 reasonably practicable (it being understood that nothing contained in this Agreement shall require Parent to obtain any consents, registrations, approvals, permits, expirations of waiting periods or authorizations prior to the Termination Date)practicable, including preparing and filing as promptly as reasonably practicable all documentation to effect all necessary notices, reports and other filings (including by filing no later than 20 calendar days after as soon as reasonably practicable and advisable following the date of this Agreement Agreement, all applications required to be filed with the FCC notifications, filings, registrations, submissions and the notification and report form other materials required under (x) the HSR Act; provided that the failure to file within such 20-day period shall not constitute a breach of this Agreement, (y) EUMR and to (z) any Foreign Antitrust Laws), (B) obtain as promptly as reasonably practicable all consents, registrations, approvals, permits, expirations of waiting periods permits 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. To Agreement and (C) defend or contest in good faith any Action brought by a third party that could otherwise prevent or impede, interfere with, hinder or delay in any material respect the extent necessary or advisable to obtain any consent, registration, approval, permit, expiration consummation of waiting period or authorization from any Governmental Entity in order to consummate the Merger prior to the Termination Date, (x) Parent shall, and shall cause its Subsidiaries to, and commit to cause the Company and its Subsidiaries to, take the actions and agree to those undertakings set forth on Section 6.5(a) of the Parent Disclosure Letter and (y) Parent shall, and shall cause its Subsidiaries to take, other actions involving Parent and its Subsidiaries that are in the aggregate de minimis (for the avoidance of doubt, not involving any divestiture, holding separate any business or assets or other similar action). Except as provided in the immediately preceding sentence, nothing in this Agreement shall require, or be construed to require, (i) Parent or any of its Subsidiaries to take or refrain from taking any action (including any divestiture, holding separate any business or assets or other similar action) or to agree to any restriction or condition with respect to any assets, operations, business or the conduct of business of Parent or any of its Subsidiaries and (ii) Parent, the Company or any of their respective Subsidiaries to take or refrain from taking any action (including any divestiture, holding separate any business or assets or other similar action) or to agree to any restriction or condition with respect to any assets, operations, business or the conduct of business of the Company and its Subsidiaries, if, in the case of this clause (ii), any such action, failure to act, restriction, condition or agreement, individually or in the aggregate, would reasonably be likely to have a Company Material Adverse Effect (read without regard to the exceptions set forth therein and without giving effect to clause (A) thereof) (except as provided in the immediately preceding sentence, the occurrence of any of the matters specified in clause (i) or clause (ii) above shall constitute a “Regulatory Material Adverse Effect”). In addition, in measuring whether a Regulatory Material Adverse Effect has occurred, the expected loss of any reasonably expected synergies (both cost and revenue) relating to any restriction or condition shall be taken into account as if the Company had an adverse effect to its financial condition and results of operations equal to the expected amount of applicable synergies affected by any such restriction or condition. The Company and its Subsidiaries shall not agree to any actions, restrictions or conditions with respect to obtaining any consents, registrations, approvals, permits, expirations of waiting periods or authorizations in connection with the Merger and the other transactions contemplated by this Agreement without the prior written consent of Parent Agreement.
(which, subject to this Section 6.5(aii) may be withheld in Parent’s sole discretion). Subject to applicable Laws relating to the exchange of information, Parent shall have the right to direct and control all matters with any Governmental Entity consistent with its obligations under this Section 6.5; provided that Parent and the Company shall have the right to participate in all such matters and to review in advanceadvance and, and to the extent practicable reasonably practicable, each will consult with the other onon and consider in good faith the views of the other in connection with, all of the information relating to Parent or the Company, as the case may be, and any of their respective Subsidiaries, that appears in any filing made with, or written materials submitted to, any third party and/or any Governmental Entity in connection with the Merger and the other transactions contemplated by this Agreement. To Neither Parent nor the Company shall permit any of its officers or any other representatives or agents to participate in any meeting with any Governmental Entity in respect of any filings, investigation or other inquiry relating to the transactions contemplated hereby unless it consults with the other party in advance and, to the extent permitted by applicable Lawsuch Governmental Entity, gives the other party the opportunity to attend and participate thereat. In addition, Parent shall keep the Company reasonably informed regarding the status of any contemplated Divestiture Actions to any third Persons and its material meetings or material teleconferences with such third Persons relating thereto. In exercising the rights contemplated by this Section 6.5(a)(ii), each party of the Company and Parent shall provide the other act reasonably and as promptly as reasonably practicable. The Company and its Subsidiaries shall not agree to any actions, restrictions or conditions with copies respect to obtaining any consents, registrations, approvals, permits, expirations of all correspondence between it (waiting periods or its advisors) and any Governmental Entity relating to authorizations in connection with the Merger and the other transactions contemplated by this Agreement and, to without the extent reasonably practicable, all telephone calls and meetings with a Governmental Entity regarding the transactions contemplated by this Agreement shall include representatives prior written consent of Parent and the Company. In exercising the foregoing rights, the Company and Parent each shall act reasonably and as promptly as reasonably practicableParent.
Appears in 2 contracts
Sources: Merger Agreement, Merger Agreement (Monsanto Co /New/)
Cooperation. The Company Upon the terms and Parent shall, subject to Section 6.2the conditions set forth in this Agreement, cooperate with each other Parent and useMerger Sub, on the one hand, and the Company, on the other hand, shall cause their respective Subsidiaries to, use their respective reasonable best efforts to take (or cause to be taken taken) all actions, and do (or cause to be done done), and assist and cooperate with the other party or parties in doing, all things, reasonable things necessary, proper or advisable on its part under this Agreement and applicable Laws Law or otherwise to consummate and make effective the Merger and the other transactions contemplated by this Agreement as promptly soon as reasonably practicable (it being understood that nothing contained in this Agreement shall require Parent to obtain any consents, registrations, approvals, permits, expirations of waiting periods or authorizations prior to the Termination Date)practicable, including preparing and filing as promptly as reasonably practicable all documentation to effect all necessary notices, reports and other filings (including by filing no later than 20 calendar days after the date of this Agreement all applications required to be filed with the FCC and the notification and report form required under the HSR Act; provided that the failure to file within such 20-day period shall not constitute a breach of this Agreement) and to obtain as promptly as reasonably practicable all consents, registrations, approvals, permits, expirations of waiting periods 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. To the extent necessary or advisable to obtain any consent, registration, approval, permit, expiration of waiting period or authorization from any Governmental Entity in order to consummate the Merger prior to the Termination Date, (x) Parent shall, and shall cause its Subsidiaries to, and commit using their respective reasonable best efforts to cause the Company and its Subsidiaries to, take conditions to the actions and agree to those undertakings set forth on Section 6.5(a) of the Parent Disclosure Letter and Company’s (y) Parent shall, and shall cause its Subsidiaries to take, other actions involving Parent and its Subsidiaries that are in the aggregate de minimis (for the avoidance of doubt, not involving any divestiture, holding separate any business or assets or other similar action). Except as provided in the immediately preceding sentence, nothing in this Agreement shall require, or be construed to require, (i) Parent or any of its Subsidiaries to take or refrain from taking any action (including any divestiture, holding separate any business or assets or other similar action) or to agree to any restriction or condition with respect to any assets, operations, business or the conduct of business of Parent or any of its Subsidiaries and (ii) Parent, the Company or any of their respective Subsidiaries to take or refrain from taking any action (including any divestiture, holding separate any business or assets or other similar action) or to agree to any restriction or condition with respect to any assets, operations, business or the conduct of business of the Company and its Subsidiaries, if, in the case of this clause Parent and Merger Sub) and Parent’s and Merger Sub’s (ii), any such action, failure to act, restriction, condition or agreement, individually or in the aggregate, would reasonably be likely case of the Company) obligations to have a Company Material Adverse Effect (read without regard to close the exceptions Merger set forth therein and without giving effect in Article 7 to clause (A) thereof) (except as provided in be satisfied on or before the immediately preceding sentence, the occurrence of any of the matters specified in clause (i) or clause (ii) above shall constitute a “Regulatory Material Adverse Effect”)Outside Date. In addition, in measuring whether a Regulatory Material Adverse Effect has occurred, the expected loss of any reasonably expected synergies (both cost and revenue) relating to any restriction or condition shall be taken into account as if the Company had an adverse effect shall use its reasonable best efforts to obtain all consents, waivers and approvals under all Company Material Contracts in connection with this Agreement and the consummation of the Merger, including those specified in Section 3.5(b) of the Disclosure Schedule, so as to maintain and preserve the benefits under such Company Material Contracts as of the consummation of the Merger, and Parent shall use its financial condition and results of operations equal commercially reasonable efforts to the expected amount of applicable synergies affected by any assist in such restriction or conditionendeavors. The Company and its Subsidiaries parties shall not agree to any actions, restrictions or conditions consult with each other with respect to the obtaining any of all such permits, consents, registrationsapprovals and authorizations, approvalsand each party will keep the other apprised of the status of matters relating to completion of the Transactions. Notwithstanding the foregoing, permitsParent and Merger Sub, expirations on the one hand, shall not be required to, and the Company, on the other hand, unless otherwise directed by Parent (which direction shall not require payment to be made until at or after the Effective Table of waiting periods Contents Time), shall not, pay any consent fee, “profit sharing” payment or authorizations other consideration (including increased rent payments), or provide additional security (including a guaranty) to any Third Party as a condition to receipt of any consent, waiver or approval from any party to any such Company Material Contract. In addition to the foregoing, subject to the terms and conditions hereof, neither Parent or Merger Sub, on the one hand, nor the Company, on the other hand, shall take any action, or fail to take any action, that is intended to, or has (or would reasonably be expected to have) the effect of, preventing or materially impairing or delaying or otherwise adversely affecting the consummation of the Merger or the ability of such party to perform its obligations under this Agreement. Notwithstanding anything in this Section 6.9 to the contrary, the sole obligation of the parties to take, or refrain from taking, any action in respect of any Antitrust Law, including as may otherwise be required by any Antitrust Law in connection with the Merger and the other transactions contemplated by this Agreement without the prior written consent of Parent (whichTransactions, subject to this Section 6.5(a) may be withheld in Parent’s sole discretion). Subject to applicable Laws relating to the exchange of information, Parent and the Company shall have the right to review in advance, and to the extent practicable each will consult the other on, all of the information relating to Parent or the Company, as the case may be, and any of their respective Subsidiaries, that appears in any filing made with, or written materials submitted to, any third party and/or any Governmental Entity whether in connection with the Merger and the other transactions contemplated by this Agreement. To the extent permitted by applicable Law, each party shall provide the other with copies of all correspondence between it any approvals or consents (or its advisorsthe expiration of any waiting period) and that may be required under any Governmental Entity relating to the Merger and the other transactions contemplated by this Agreement andAntitrust Law or otherwise, to the extent reasonably practicable, all telephone calls and meetings with a Governmental Entity regarding the transactions contemplated by this Agreement shall include representatives of Parent and the Company. In exercising the foregoing rights, the Company and Parent each shall act reasonably and as promptly as reasonably practicablebe those set forth in Section 6.10.
Appears in 2 contracts
Cooperation. The Company (a) Prior to Closing, each of the Acquiror and Parent the Members shall, subject to Section 6.2, cooperate with each other and usethe Members shall cause the Company to, and each of them shall cause their its respective Subsidiaries (as applicable) and, in the case of Members of the Company, its Affiliates, and its and their officers, directors, managers, employees, consultants, counsel, accounts, agents and other representatives to, use their respective reasonable best efforts reasonably cooperate in a timely manner in connection with any equity financing arrangement the parties mutually agree to take or cause to be taken all actions, and do or cause to be done all things, necessary, proper or advisable on its part under this Agreement and applicable Laws to consummate and make effective the Merger and the other transactions contemplated by this Agreement as promptly as reasonably practicable (it being understood that nothing contained seek in this Agreement shall require Parent to obtain any consents, registrations, approvals, permits, expirations of waiting periods or authorizations prior to the Termination Date), including preparing and filing as promptly as reasonably practicable all documentation to effect all necessary notices, reports and other filings (including by filing no later than 20 calendar days after the date of this Agreement all applications required to be filed connection with the FCC and the notification and report form required under the HSR Act; provided that the failure to file within such 20-day period shall not constitute a breach of this Agreement) and to obtain as promptly as reasonably practicable all consents, registrations, approvals, permits, expirations of waiting periods 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. To , including the extent necessary PIPE Investment (it being understood and agreed that the consummation of any such financing by the Company or advisable to obtain any consent, registration, approval, permit, expiration of waiting period or authorization from any Governmental Entity in order to consummate the Merger prior Acquiror shall be subject to the Termination Dateparties’ (except for the Equityholder Representative’s) mutual agreement), including (if mutually agreed by the parties) (a) by providing such information and assistance as the other party may reasonably request (including by providing such cooperation and assistance as may be reasonably requested in connection with the preparation of any investor presentations or other offering materials in connection with the PIPE Investment), (xb) Parent shallgranting such access to the other party and its representatives as may be reasonably necessary for their due diligence, and shall cause its Subsidiaries to(c) participating in a reasonable number of meetings, presentations, road shows, drafting sessions, due diligence sessions with respect to such equity financing efforts (including direct contact between senior management and commit to cause other representatives of the Company and its Subsidiaries toat reasonable times and locations). All such cooperation, take assistance and access shall be granted during normal business hours and shall be granted under conditions that shall not unreasonably interfere with the actions business and agree to those undertakings set forth on Section 6.5(a) operations of the Parent Disclosure Letter and Company, Acquiror, or their respective auditors.
(yb) Parent shallFrom the date of the announcement of this Agreement or the transactions contemplated hereby (pursuant to any applicable public communication made in compliance with Section 11.13), and until the Closing Date, Acquiror shall cause instruct its Subsidiaries financial advisors to take, other actions involving Parent keep the Company and its Subsidiaries that are financial advisors reasonably informed with respect to the PIPE Investment and any changes in the aggregate de minimis (for rotation of the avoidance of doubtAcquiror Common Shares during such period, not involving any divestiture, holding separate any business or assets or other similar action). Except as provided in the immediately preceding sentence, nothing in this Agreement shall require, or be construed to require, including by (i) Parent or any of its Subsidiaries to take or refrain from taking any action (including any divestiture, holding separate any business or assets or other similar action) or to agree to any restriction or condition with respect to any assets, operations, business or the conduct of business of Parent or any of its Subsidiaries providing regular updates and (ii) Parentreasonably consulting and cooperating with, and considering in good faith any feedback from the Company or any of their respective Subsidiaries to take or refrain from taking any action (including any divestiture, holding separate any business or assets or other similar action) or to agree to any restriction or condition its financial advisors with respect to any assetssuch matters; provided, operations, business or the conduct that each of business of Acquiror and the Company acknowledges and its Subsidiaries, if, in agrees that Acquiror’s and the case of this clause (ii), any such action, failure to act, restriction, condition or agreement, individually or in the aggregate, would reasonably Company’s respective financial advisors shall be likely to have a Company Material Adverse Effect (read without regard entitled to the exceptions set forth therein fees and without giving effect to clause (A) thereof) (except as provided in the immediately preceding sentence, the occurrence of any of the matters specified in clause (i) or clause (ii) above shall constitute a “Regulatory Material Adverse Effect”). In addition, in measuring whether a Regulatory Material Adverse Effect has occurred, the expected loss of any reasonably expected synergies (both cost and revenue) relating to any restriction or condition shall be taken into account as if the Company had an adverse effect to its financial condition and results of operations equal to the expected amount of applicable synergies affected by any such restriction or condition. The Company and its Subsidiaries shall not agree to any actions, restrictions or conditions reimbursements with respect to obtaining any consentsthe PIPE set forth in the letter agreements, registrationsdated October 29, approvalsNovember 1 and November 5, permits2021, expirations of waiting periods or authorizations in connection with respectively, between the Merger Acquiror and the other transactions contemplated by this Agreement without the prior written consent of Parent (which, subject to this Section 6.5(a) may be withheld in Parent’s sole discretion). Subject to applicable Laws relating to the exchange of information, Parent and the Company shall have the right to review in advance, and to the extent practicable each will consult the other on, all of the information relating to Parent or the Company, as the case may be, and any of their respective Subsidiaries, that appears in any filing made with, or written materials submitted to, any third party and/or any Governmental Entity in connection with the Merger and the other transactions contemplated by this Agreement. To the extent permitted by applicable Law, each party shall provide the other with copies of all correspondence between it (or its advisors) and any Governmental Entity relating to the Merger and the other transactions contemplated by this Agreement and, to the extent reasonably practicable, all telephone calls and meetings with a Governmental Entity regarding the transactions contemplated by this Agreement shall include representatives of Parent and the Company. In exercising the foregoing rights, the Company and Parent each shall act reasonably and as promptly as reasonably practicablefinancial advisor.
Appears in 1 contract
Sources: Equity Purchase Agreement (Waldencast Acquisition Corp.)
Cooperation. The Company (a) Borrower acknowledges that Lender and Parent shallits successors and assigns may without notice to or consent from Borrower (i) sell this Agreement, subject the Mortgage, the Note, the other Loan Documents, and any and all servicing rights thereto to Section 6.2one or more investors as a whole loan, (ii) participate the Loan to one or more investors, (iii) deposit this Agreement, the Note and the other Loan Documents with a trust, which trust may sell certificates to investors evidencing an ownership interest in the trust assets, or (iv) otherwise sell or encumber the Loan or interests therein to investors (the transactions referred to in clauses (i) through (iv) are hereinafter each referred to as a “Secondary Market Transaction”). Borrower shall cooperate with each other and use, Lender in effecting any such Secondary Market Transaction and shall cause their respective Subsidiaries cooperate to implement all requirements imposed by any rating agency involved in any Secondary Market Transaction. Borrower further agrees that Lender may, without any notice to or consent from Borrower, disseminate to any such actual or potential purchaser(s), assignee(s), lender(s) or participant(s) all documents and information (including all financial information) which has been or is hereafter provided to or known to Lender with respect to: (a) the Project and its operation; (b) any party connected with the Loan (including Borrower, use their respective reasonable best efforts any Borrower Party, any partner of Borrower or any Borrower Party, any constituent partner or member of Borrower or any Borrower Party), and/or (c) any lending relationship other than the Loan which ▇▇▇▇▇▇ may have with any party connected with the Loan. Borrower shall provide such information and documents (and updated information and documents) relating to take ▇▇▇▇▇▇▇▇, Guarantor and the Project as Lender may request in connection with such Secondary Market Transaction, together with such opinion(s) of counsel as Lender may reasonably request. In addition, Borrower shall make available to Lender all information concerning its business and operations that Lender may reasonably request. Lender shall be permitted to share all such information with the investment banking firms, rating agencies, accounting firms, law firms and other third-party advisory firms involved with the Loan and the Loan Documents or cause the applicable Secondary Market Transaction. It is understood that the information provided by ▇▇▇▇▇▇▇▇ to Lender may ultimately be taken incorporated into the offering documents for the Secondary Market Transaction and thus various investors may also see some or all actionsof the information. ▇▇▇▇▇▇ and all of the aforesaid third-party advisors and professional firms shall be entitled to rely on the information supplied by or on behalf of Borrower. ▇▇▇▇▇▇▇▇ also agrees to execute any amendment of or supplement to this Agreement and the other Loan Documents as Lender may reasonably request in connection with any Secondary Market Transaction, and do provided that such amendment or cause to be done all things, necessary, proper supplement does not change any of the economic terms of the Loan or advisable on its part materially increase Borrower’s non-monetary Obligations or materially diminish Borrower’s rights under this Agreement and applicable Laws to consummate the other Loan Documents. All reasonable third party costs and make effective expenses incurred by any Loan Party in connection with ▇▇▇▇▇▇▇▇’s complying with requests made under this Section 8.15 shall be paid by ▇▇▇▇▇▇, except for ▇▇▇▇▇▇▇▇’s attorneys’ fees. In the Merger event of any such sale, assignment, encumbrance, grant or participation, Lender and the other transactions contemplated by this Agreement parties to such transaction will share in the rights and obligations of Lender as promptly set forth in the Loan Documents only as reasonably practicable (it being understood that nothing contained in this Agreement shall require Parent to obtain any consents, registrations, approvals, permits, expirations of waiting periods or authorizations prior and to the Termination Date)extent they agree among themselves.
(b) Lender shall have the right, including preparing and filing as promptly as reasonably practicable all documentation at its own expense, at any time, to effect all necessary notices, reports and other filings (including by filing no later than 20 calendar days after modify the date of this Agreement all applications required to be filed with the FCC and the notification and report form required under the HSR Act; provided that the failure to file within such 20-day period shall not constitute a breach of this Agreement) and to obtain as promptly as reasonably practicable all consents, registrations, approvals, permits, expirations of waiting periods and authorizations necessary or advisable to be obtained from any third party and/or any Governmental Entity Loan in order to consummate the Merger create one or any more notes of the other transactions contemplated by this Agreement. To the extent necessary equal or advisable to obtain any consentvarying priority and/or interest rates (including, registrationwithout limitation, approvalso-called “A/B Notes”); provided, permit, expiration of waiting period or authorization from any Governmental Entity in order to consummate the Merger prior to the Termination Date, (x) Parent shall, and shall cause its Subsidiaries to, and commit to cause the Company and its Subsidiaries to, take the actions and agree to those undertakings set forth on Section 6.5(a) of the Parent Disclosure Letter and (y) Parent shall, and shall cause its Subsidiaries to take, other actions involving Parent and its Subsidiaries that are in the aggregate de minimis (for the avoidance of doubt, not involving any divestiture, holding separate any business or assets or other similar action). Except as provided in the immediately preceding sentence, nothing in this Agreement shall require, or be construed to require, that: (i) Parent or any the Principal Balance US_ACTIVE\123288794\V-8 of its Subsidiaries the Loan as of the effective date of such modification equals the Principal Balance of the Loan immediately prior to take or refrain from taking any action (including any divestiture, holding separate any business or assets or other similar action) or to agree to any restriction or condition with respect to any assets, operations, business or the conduct of business of Parent or any of its Subsidiaries such modification; and (ii) Parent, the Company or any weighted average stated interest rate of their respective Subsidiaries all such notes on the date created shall equal the stated interest rates that were applicable to take or refrain from taking any action (including any divestiture, holding separate any business or assets or other similar action) or the Loan immediately prior to agree to any restriction or condition with respect to any assets, operations, business or the conduct of business such modification of the Company and its Subsidiaries, if, in the case of this clause (ii), any such action, failure to act, restriction, condition or agreement, individually or in the aggregate, would reasonably be likely to have a Company Material Adverse Effect (read without regard to the exceptions set forth therein and without giving effect to clause (A) thereof) (except as provided in the immediately preceding sentence, the occurrence of any of the matters specified in clause (i) or clause (ii) above shall constitute a “Regulatory Material Adverse Effect”)Loan. In addition, in measuring whether a Regulatory Material Adverse Effect has occurred, the expected loss of any reasonably expected synergies (both cost and revenue) relating to any restriction or condition shall be taken into account as if the Company had an adverse effect to its financial condition and results of operations equal to the expected amount of applicable synergies affected by any such restriction or condition. The Company and its Subsidiaries shall not agree to any actions, restrictions or conditions with respect to obtaining any consents, registrations, approvals, permits, expirations of waiting periods or authorizations in connection with the Merger and the other transactions contemplated by this Agreement without the prior written consent of Parent (which, subject to this Section 6.5(a) may be withheld in Parent’s sole discretion). Subject to applicable Laws relating to the exchange of information, Parent and the Company Lender shall have the right to review modify the Loan in advanceaccordance with this Section 8.15(b) upon notice to Borrower in which event such modification shall then be deemed effective. If requested by ▇▇▇▇▇▇, Borrower shall promptly execute an amendment to this Agreement, the Note and the other Loan Documents to evidence such modification; provided that such amendment shall have no materially adverse tax consequences to Borrower or any of its direct or indirect owners. Borrower shall, at its own expense, cooperate with all reasonable requests of Lender in order to establish the “component” notes and shall execute and deliver such documents as shall reasonably be required by Lender in connection therewith.
(c) The indemnity obligations of Borrower under the Loan Documents (including under Section 8.12) will also apply with respect to any purchaser, assignee, lender or participant. Anything in this Agreement to the contrary notwithstanding, and without the need to comply with any of the formal or procedural requirements of this Agreement, including this Section 8.15, Lender may (without notice to Borrower and without payment of any fee) at any time and from time to time pledge and assign all or any portion of its rights under all or any of the Loan Documents to a Federal Reserve Bank or a Federal Home Loan Bank; provided that no such pledge or assignment will release Lender from its obligations thereunder. In the event Lender sells or assigns the Loan and the Loan Documents, Lender will endeavor to give Borrower notice thereof (without liability for failure to so deliver such notice).
(d) At the option of Lender, the Loan may be serviced by a master servicer, primary servicer, special servicer and/or trustee (any such master servicer, primary servicer, special servicer, and trustee, together with its agents, nominees or designees, are collectively referred to as “Servicer”) selected by ▇▇▇▇▇▇ and Lender may delegate all or any portion of its responsibilities under this Agreement and the other Loan Documents to Servicer pursuant to a pooling and servicing agreement, servicing agreement, special servicing agreement or other agreement providing for the servicing of one or more mortgage loans (collectively, the “Servicing Agreement”) between Lender and Servicer. Borrower shall be responsible for any reasonable set up fees or any other initial costs relating to or arising under the Servicing Agreement, but Borrower shall not be responsible for payment of the regular monthly master servicing fee or trustee fee due to Servicer under the Servicing Agreement or any fees or expenses required to be borne by, and not reimbursable to, Servicer. Notwithstanding the foregoing, Borrower shall promptly reimburse Lender on demand for (i) interest payable on advances made by Servicer with respect to delinquent debt service payments (to the extent practicable each will consult charges are due under this Agreement and interest at the other onDefault Rate actually paid by Borrower in respect of such payments is insufficient to pay the same) and expenses paid by Servicer or trustee in respect of the protection and preservation of the Project (including, without limitation, payments of Taxes and insurance premiums) and (ii) all of the information relating following costs and expenses, liquidation fees, workout fees, special servicing fees, operating advisor fees or any other similar fees payable by Lender to Parent Servicer: (A) as a result of an Event of Default or the CompanyLoan becoming specially serviced, as an enforcement, refinancing or restructuring of the case credit arrangements provided under this Agreement in the nature of a “work-out” of the Loan Documents or of any insolvency or bankruptcy proceeding; (B) any liquidation fees, workout fees, special servicing fees, operating advisor fees or any other similar fees that are due and payable to Servicer under the Servicing Agreement or the trustee, which fees may bebe due and payable under the Servicing Agreement on a periodic or continuing basis; (C) the costs of all property inspections and/or appraisals of the Project (or any updates to any existing inspection or appraisal) that Servicer or the trustee may be required to obtain (other than the cost of regular annual inspections required to be borne by Servicer under the Servicing Agreement); or (D) any special requests made by Borrower or Guarantor during the term of the Loan including, and any of their respective Subsidiarieswithout limitation, that appears in any filing made with, or written materials submitted to, any third party and/or any Governmental Entity in connection with a prepayment, assumption or modification of the Merger and the other transactions contemplated by this Agreement. To the extent permitted by applicable Law, each party shall provide the other with copies of all correspondence between it (or its advisors) and any Governmental Entity relating to the Merger and the other transactions contemplated by this Agreement and, to the extent reasonably practicable, all telephone calls and meetings with a Governmental Entity regarding the transactions contemplated by this Agreement shall include representatives of Parent and the Company. In exercising the foregoing rights, the Company and Parent each shall act reasonably and as promptly as reasonably practicableLoan.
Appears in 1 contract
Sources: Term Loan Agreement (Wheeler Real Estate Investment Trust, Inc.)
Cooperation. The Company and Parent shallWithout limiting any of the obligations of the parties hereunder, subject each of the parties to Section 6.2, this Agreement shall cooperate fully with each other and usetheir respective counsel, accountants, agents and other Representatives in all commercially reasonable respects in connection with any actions required to be taken as part of their respective obligations under the Transaction Documents, and the parties hereto shall cause use their commercially reasonable efforts to consummate the transactions contemplated hereby and to fulfill their respective Subsidiaries obligations under the Transaction Documents as expeditiously as practicable, provided, however, neither Cingular, AWS nor AWS PCS shall have any obligation to Triton or its Affiliates to cause the closing of the Merger. Subject to the terms and conditions of this Agreement, from time to time prior to, at and after the Closing, each party hereto will use their respective commercially reasonable best efforts to take take, or cause to be taken taken, all actions, such actions and to do or cause to be done done, all things, necessary, proper or advisable on its part under this Agreement applicable Legal Requirements and applicable Laws regulations to consummate and make effective the Merger and the other transactions contemplated by this Agreement the Transaction Documents, including, without limitation, executing and delivering such documents as promptly as reasonably practicable (it being understood that nothing contained in this Agreement shall require Parent to obtain any consents, registrations, approvals, permits, expirations of waiting periods or authorizations prior to the Termination Date), including preparing and filing as promptly as reasonably practicable all documentation to effect all necessary notices, reports and other filings (including by filing no later than 20 calendar days after the date of this Agreement all applications required to be filed with the FCC and the notification and report form required under the HSR Act; provided that the failure to file within such 20-day period shall not constitute a breach of this Agreement) and to obtain as promptly as reasonably practicable all consents, registrations, approvals, permits, expirations of waiting periods 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 parties being advised by this Agreement. To the extent necessary or advisable to obtain any consent, registration, approval, permit, expiration of waiting period or authorization from any Governmental Entity in order to consummate the Merger prior to the Termination Date, (x) Parent shall, and counsel shall cause its Subsidiaries to, and commit to cause the Company and its Subsidiaries to, take the actions and agree to those undertakings set forth on Section 6.5(a) of the Parent Disclosure Letter and (y) Parent shall, and shall cause its Subsidiaries to take, other actions involving Parent and its Subsidiaries that are in the aggregate de minimis (for the avoidance of doubt, not involving any divestiture, holding separate any business or assets or other similar action). Except as provided in the immediately preceding sentence, nothing in this Agreement shall require, or be construed to require, (i) Parent or any of its Subsidiaries to take or refrain from taking any action (including any divestiture, holding separate any business or assets or other similar action) or to agree to any restriction or condition with respect to any assets, operations, business or the conduct of business of Parent or any of its Subsidiaries and (ii) Parent, the Company or any of their respective Subsidiaries to take or refrain from taking any action (including any divestiture, holding separate any business or assets or other similar action) or to agree to any restriction or condition with respect to any assets, operations, business or the conduct of business of the Company and its Subsidiaries, if, in the case of this clause (ii), any such action, failure to act, restriction, condition or agreement, individually or in the aggregate, would reasonably be likely to have a Company Material Adverse Effect (read without regard to the exceptions set forth therein and without giving effect to clause (A) thereof) (except as provided in the immediately preceding sentence, the occurrence of any of the matters specified in clause (i) or clause (ii) above shall constitute a “Regulatory Material Adverse Effect”). In addition, in measuring whether a Regulatory Material Adverse Effect has occurred, the expected loss of any reasonably expected synergies (both cost and revenue) relating to any restriction or condition shall be taken into account as if the Company had an adverse effect to its financial condition and results of operations equal to the expected amount of applicable synergies affected by any such restriction or condition. The Company and its Subsidiaries shall not agree to any actions, restrictions or conditions with respect to obtaining any consents, registrations, approvals, permits, expirations of waiting periods or authorizations request in connection with the Merger and the other transactions contemplated by this Agreement without the prior written consent consummation of Parent (which, subject to this Section 6.5(a) may be withheld in Parent’s sole discretion). Subject to applicable Laws relating to the exchange of information, Parent and the Company shall have the right to review in advance, and to the extent practicable each will consult the other on, all of the information relating to Parent or the Company, as the case may be, and any of their respective Subsidiaries, that appears in any filing made with, or written materials submitted to, any third party and/or any Governmental Entity in connection with the Merger and the other transactions contemplated by this Agreement. To After the extent permitted by applicable LawClosing, each party shall of the parties to this Agreement will execute any further documents consistent with the Transaction Documents, provide any further reasonably available information, and take any other actions not imposing significant financial or operational obligations in excess of the other with copies obligations imposed by the Transaction Documents, upon the request of all correspondence between it (or its advisors) and any Governmental Entity relating other party to the Merger and the other transactions contemplated by this Agreement andbased upon any such other party's reasonable determination that those actions are required to enable such other party to effectuate the Transaction Documents. No party to this Agreement shall take any action which is materially inconsistent with its obligations under the Transaction Documents. Each party to this Agreement shall notify each other party to this Agreement of any litigation, arbitration or administrative proceeding pending or, to the extent reasonably practicableits knowledge, all telephone calls and meetings with a Governmental Entity regarding threatened, which challenges any of the transactions contemplated by this Agreement the Transaction Documents or which threatens to delay them, and shall include representatives use commercially reasonable efforts to take such steps as may be necessary to remove any such impediment to the consummation of Parent and the Company. In exercising transactions contemplated by the foregoing rights, the Company and Parent each shall act reasonably and as promptly as reasonably practicableTransaction Documents.
Appears in 1 contract
Sources: Agreement (Triton PCS Holdings Inc)
Cooperation. The Company (a) Subject to the terms and Parent shallconditions herein provided, subject each of the parties hereto agrees to Section 6.2, cooperate with each other and use, and shall cause their respective Subsidiaries to, use their respective commercially reasonable best efforts to take take, or cause to be taken taken, all actionsaction and to do, and do or cause to be done done, all things, things necessary, proper or advisable on its part under this Agreement and applicable Laws to consummate and make effective the Merger and the other transactions contemplated by this Agreement as promptly as reasonably practicable (it being understood that nothing contained in this Agreement shall require Parent to obtain any consents, registrations, approvals, permits, expirations of waiting periods or authorizations prior to the Termination Date), including preparing and filing as promptly as reasonably practicable all documentation to effect all necessary notices, reports and other filings (including by filing no later than 20 calendar days after the date of this Agreement all applications required to be filed with the FCC and the notification and report form required under the HSR Act; provided that the failure to file within such 20-day period shall not constitute a breach of this Agreement) and to obtain as promptly as reasonably practicable all consents, registrations, approvals, permits, expirations of waiting periods 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. To the extent necessary or advisable to obtain any consent, registration, approval, permit, expiration of waiting period or authorization from any Governmental Entity in order to consummate the Merger prior to the Termination Date, (x) Parent shall, and shall cause its Subsidiaries to, and commit to cause the Company and its Subsidiaries to, take the actions and agree to those undertakings set forth on Section 6.5(a) of the Parent Disclosure Letter and (y) Parent shall, and shall cause its Subsidiaries to take, other actions involving Parent and its Subsidiaries that are in the aggregate de minimis (for the avoidance of doubt, not involving any divestiture, holding separate any business or assets or other similar action). Except as provided in the immediately preceding sentence, nothing in this Agreement shall require, or be construed to require, (i) Parent or any of its Subsidiaries to take or refrain from taking any action (including any divestiture, holding separate any business or assets or other similar action) or to agree to any restriction or condition with respect to any assets, operations, business or the conduct of business of Parent or any of its Subsidiaries and (ii) Parent, the Company or any of their respective Subsidiaries to take or refrain from taking any action (including any divestiture, holding separate any business or assets or other similar action) or to agree to any restriction or condition with respect to any assets, operations, business or the conduct of business of the Company and its Subsidiaries, if, in the case of this clause (ii), any such action, failure to act, restriction, condition or agreement, individually or in the aggregate, would reasonably be likely to have a Company Material Adverse Effect (read without regard to the exceptions set forth therein and without giving effect to clause (A) thereof) (except as provided in the immediately preceding sentence, the occurrence of any of the matters specified in clause (i) or clause (ii) above shall constitute a “Regulatory Material Adverse Effect”). In addition, in measuring whether a Regulatory Material Adverse Effect has occurred, the expected loss of any reasonably expected synergies (both cost and revenue) relating to any restriction or condition shall be taken into account as if the Company had an adverse effect to its financial condition and results of operations equal to the expected amount of applicable synergies affected by any such restriction or condition. The Company and its Subsidiaries shall not agree to any actions, restrictions or conditions with respect to obtaining any consents, registrations, approvals, permits, expirations of waiting periods or authorizations in connection with the Merger and the other transactions contemplated by this Agreement without the prior written consent of Parent (which, subject to this Section 6.5(a) may be withheld in Parent’s sole discretion). Subject to applicable Laws relating to the exchange of information, Parent and the Company shall have the right to review in advance, and to the extent practicable each will consult the other on, all of the information relating to Parent or the Company, as the case may be, and any of their respective Subsidiaries, that appears in any filing made with, or written materials submitted to, any third party and/or any Governmental Entity in connection with the Merger and the other transactions contemplated by this Agreement. To the extent permitted by applicable Law, each party shall provide the other with copies of all correspondence between it (or its advisors) and any Governmental Entity relating to the Merger and the other transactions contemplated by this Agreement and, to the extent reasonably practicable, all telephone calls and meetings with a Governmental Entity regarding the transactions contemplated by this Agreement shall include representatives and to cooperate with each other in connection with the foregoing, including without limitation using commercially reasonable efforts (i) to obtain all necessary waivers, consents and approvals from other parties to loan agreements, leases and other contracts, (ii) to obtain all necessary consents, approvals and authorizations as are required to be obtained under any federal, 49 -43- state or foreign law or regulations, (iii) to defend all lawsuits or other legal proceedings challenging this Agreement or the consummation of Parent the transactions contemplated hereby, (iv) to lift or rescind any injunction or restraining order or other order adversely affecting the ability of the parties to consummate the transactions contemplated hereby, (v) to effect all necessary registrations and filings, and submissions of information requested by governmental authorities, and (vi) to fulfill all conditions to this Agreement.
(b) Each of the Companies will make available to Delphi copies of all written correspondence, filings or communications (or memoranda setting forth the substance thereof) between (i) either of the Companies or their representatives, on the one hand, and the Companyregulatory authorities referred to in Section 7.1(b) hereof, on the other hand, and (ii) either of the Companies or their representatives, on the one hand, and the pool members, facility participants, retrocessionaires and other reinsurance clients with which they conduct business, on the other hand, with respect to this Agreement and the transactions contemplated hereby. In exercising Each of the foregoing rightsparties hereto agrees to furnish to the other party hereto such necessary information and reasonable assistance as such other party may request in connection with its preparation of necessary filings or submissions to any regulatory or governmental agency or authority, including, without limitation, any filing necessary under the Company provisions of any applicable foreign, Federal or state statute.
(c) Delphi will supply the Companies with copies of all correspondence, filings or communications (or memoranda setting forth the substance thereof) between Delphi or its representatives, on the one hand, and Parent each shall act reasonably the regulatory authorities referred to in Section 7.1(b) hereof, on the other hand, with respect to this Agreement and as promptly as reasonably practicablethe transactions contemplated hereby.
Appears in 1 contract
Sources: Stock Purchase Agreement (Delphi Financial Group Inc/De)
Cooperation. The EVSI and the Company and Parent shallshall together, subject or pursuant to Section 6.2, cooperate with each other and use, and shall cause their respective Subsidiaries to, use their respective reasonable best efforts to take or cause an allocation of responsibility to be taken agreed upon between them:
(i) as soon as is reasonably practicable take all actions, and do such action as may be required under state blue sky or cause to be done all things, necessary, proper or advisable on its part under this Agreement and applicable Laws to consummate and make effective securities laws in connection with the issuance of the EVSI Shares in the Merger and the other transactions contemplated by this Agreement as promptly as reasonably practicable (it being understood that nothing contained in this Agreement shall require Parent to obtain any consents, registrations, approvals, permits, expirations of waiting periods or authorizations prior to the Termination Date), including preparing and filing as promptly as reasonably practicable all documentation to effect all necessary notices, reports and other filings (including by filing no later than 20 calendar days after the date of this Agreement all applications required to be filed with the FCC and the notification and report form required under the HSR Act; provided that the failure to file within such 20-day period shall not constitute a breach of this Agreement) and to obtain as promptly as reasonably practicable all consents, registrations, approvals, permits, expirations of waiting periods 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. To ;
(ii) promptly prepare and file a listing application covering the extent necessary shares of EVSI Common Stock (including the shares to be issued hereunder upon official notice of issuance) for initial quotation on Nasdaq (or advisable listing on a national securities exchange agreed upon by the Parties in writing prior to obtain any consent, registration, approval, permit, expiration of waiting period or authorization from any Governmental Entity the Closing);
(iii) cooperate with one another in order to consummate lift any injunctions or remove any other impediment to the consummation of the transactions contemplated herein; and
(iv) cooperate with one another to treat the Merger prior to the Termination Date, (x) Parent shall, and shall cause its Subsidiaries to, and commit to cause the Company and its Subsidiaries to, take the actions and agree to those undertakings set forth on as a transaction described in Section 6.5(a368(a) of the Parent Disclosure Letter Code.
(a) Subject to the limitations contained in Section 8.1 relating to confidentiality, EVSI and (y) Parent shallthe Company shall each furnish to one another and to one another's counsel all such information as may be required in order to effect the foregoing actions and each represents and warrants to the other that no information furnished by it in connection with such actions will contain any untrue statement of a material fact or omit to state a material fact required to be stated in order to make any information so furnished, and shall cause its Subsidiaries to take, other actions involving Parent and its Subsidiaries that are in light of the aggregate de minimis (for the avoidance of doubtcircumstances under which it is so furnished, not involving any divestiture, holding separate any business or assets or other similar action). Except as provided in the immediately preceding sentence, nothing in this Agreement shall require, or be construed to require, misleading.
(i) Parent or any of its Subsidiaries to take or refrain from taking any action (including any divestiture, holding separate any business or assets or other similar action) or to agree to any restriction or condition with respect to any assets, operations, business or the conduct of business of Parent or any of its Subsidiaries and (ii) Parent, the Company or any of their respective Subsidiaries to take or refrain from taking any action (including any divestiture, holding separate any business or assets or other similar action) or to agree to any restriction or condition with respect to any assets, operations, business or the conduct of business of the Company and its Subsidiaries, if, in the case As promptly as practicable after execution of this clause (ii)Agreement, any such action, failure to act, restriction, condition or agreement, individually or in EVSI will prepare and file with the aggregate, would reasonably be likely to have a Company Material Adverse Effect (read without regard to the exceptions set forth therein and without giving effect to clause (A) thereof) (except as provided in the immediately preceding sentence, the occurrence of any of the matters specified in clause (i) or clause (ii) above shall constitute a “Regulatory Material Adverse Effect”). In addition, in measuring whether a Regulatory Material Adverse Effect has occurred, the expected loss of any reasonably expected synergies (both cost and revenue) relating to any restriction or condition shall be taken into account as if the Company had an adverse effect to its financial condition and results of operations equal to the expected amount of applicable synergies affected by any such restriction or condition. The Company and its Subsidiaries shall not agree to any actions, restrictions or conditions with respect to obtaining any consents, registrations, approvals, permits, expirations of waiting periods or authorizations SEC preliminary proxy materials in connection with the Merger and the other transactions contemplated by this Agreement without the prior written consent of Parent (which, subject to this Section 6.5(a) may be withheld in Parent’s sole discretion). Subject to applicable Laws relating to the exchange of information, Parent and the Company shall have the right to review in advance, and to the extent practicable each will consult the other on, all vote of the information relating to Parent or EVSI shareholders at a duly convened meeting of its shareholders (the Company, as "EVSI Shareholders Meeting") for the case may be, and any purpose of their respective Subsidiaries, that appears in any filing made with, or written materials submitted to, any third party and/or any Governmental Entity in connection obtaining the EVSI Shareholder Approval with the Merger and the other transactions contemplated by this Agreement. To the extent permitted by applicable Law, each party shall provide the other with copies of all correspondence between it (or its advisors) and any Governmental Entity relating respect to the Merger and the other transactions contemplated by this Agreement andmatters more fully described in Section 5.4 hereof. The Company shall promptly furnish EVSI with all information concerning its business and financial statements and affairs which, in the reasonable judgment of EVSI or its counsel, may be required or appropriate for inclusion in the Proxy Statement (including, but not limited to, information required pursuant to Rule 14f-1 promulgated under the Exchange Act) and shall take such other action as they may reasonably request in connection with the Proxy Statement. The Company shall provide, and is responsible for, all such information related to the extent reasonably practicableCompany. Once the Proxy Statement has been authorized for mailing either by notice from the SEC or by the lapse of time for review and comment by the SEC, all telephone calls EVSI shall hereafter promptly mail to its shareholders the Proxy Statement in definitive form (the "Definitive Proxy Statement"). Each of EVSI and meetings the Company shall also take such other reasonable actions as may be required to be taken under any applicable state securities laws in connection with a Governmental Entity regarding the issuance of shares of EVSI Stock and the transactions contemplated by this Agreement Agreement;
(ii) EVSI shall, as soon as practicable following the date of this Agreement, duly call, give notice of, convene and hold the EVSI Shareholders Meeting for the purpose of obtaining the EVSI Shareholder Approval and, subject to its fiduciary duties as advised by outside counsel, shall, through its Board of Directors, recommend to its shareholders such approval.
(c) The Company shall include representatives use its reasonable best efforts to assist EVSI in obtaining interim financing through a loan or other form of Parent and indebtedness or through a private placement of such number of shares, not to exceed 750,000 shares, of EVSI Common Stock as shall result in approximately $562,000 in gross proceeds (the Company. In exercising the foregoing rights, the Company and Parent each shall act reasonably and as promptly as reasonably practicable"EVSI Financing").
Appears in 1 contract
Cooperation. The Company Subject to the terms and Parent shallconditions of this Agreement and applicable Law, subject to Section 6.2, cooperate with each other of the Purchaser Parties and use, and the Seller shall cause their respective Subsidiaries to, use their respective its commercially reasonable best efforts to take take, or cause to be taken taken, all actionsactions and to do, and do or cause to be done done, all things, things reasonably necessary, proper or advisable on its 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 reasonably practicable (it being understood that nothing contained practicable, including such actions or things as any other Party may reasonably request in order to cause any of the conditions to such Party's obligation to consummate the transactions contemplated by this Agreement to be satisfied. Without limiting the generality of the foregoing, each of the Parties shall require Parent (and each shall cause its directors, officers and Subsidiaries, and use its commercially reasonable best efforts to cause its Affiliates, employees, agents, attorneys, accountants and representatives, to) consult and fully cooperate with and provide reasonable assistance to each other in (i) using its commercially reasonable best efforts to obtain any all required consents, approvals, waivers, clearances, licenses, permits, authorizations, registrations, approvalsqualifications, permitsor other permissions or actions by, expirations of waiting periods or authorizations prior to the Termination Date), including preparing and filing as promptly as reasonably practicable all documentation to effect all necessary notices, reports and other filings (including by filing no later than 20 calendar days after the date of this Agreement all applications required to be filed with the FCC and the notification and report form required under the HSR Act; provided that the failure to file within such 20-day period shall not constitute a breach of this Agreement) and to obtain as promptly as reasonably practicable give all consentsrequired notices to and to make all required filings with and applications and submissions to, registrations, approvals, permits, expirations of waiting periods and authorizations necessary or advisable to be obtained from any third party and/or any Governmental Entity or other Person, in each case required in order to consummate the Merger or cause any of the conditions to each other Party's obligation to consummate such transactions to be satisfied; (ii) using commercially reasonable efforts to cause the lifting of any permanent or preliminary injunction or temporary restraining order or other similar order issued or entered by any court or other Governmental Entity (an "Injunction") preventing the consummation of the transactions contemplated by this Agreement; (iii) providing all such information about such Party, its Subsidiaries and its officers, directors, partners and Affiliates, and making all applications and filings, as may be necessary or reasonably requested in connection with any of the foregoing; and (iv) in general, using commercially reasonable efforts to consummate and make effective the transactions contemplated by this Agreement. To Each of the extent necessary or advisable to obtain any consent, registration, approval, permit, expiration of waiting period or authorization from any Governmental Entity in order to consummate Purchaser Parties and the Merger prior Seller shall furnish to the Termination Date, (x) Parent shall, others such necessary information and shall cause its Subsidiaries to, and commit to cause reasonable assistance as the Company and its Subsidiaries to, take the actions and agree to those undertakings set forth on Section 6.5(a) of the Parent Disclosure Letter and (y) Parent shall, and shall cause its Subsidiaries to take, other actions involving Parent and its Subsidiaries that are in the aggregate de minimis (for the avoidance of doubt, not involving any divestiture, holding separate any business or assets or other similar action). Except as provided in the immediately preceding sentence, nothing in this Agreement shall require, or be construed to require, (i) Parent or any of its Subsidiaries to take or refrain from taking any action (including any divestiture, holding separate any business or assets or other similar action) or to agree to any restriction or condition with respect to any assets, operations, business or the conduct of business of Parent or any of its Subsidiaries and (ii) Parent, the Company or any of their respective Subsidiaries to take or refrain from taking any action (including any divestiture, holding separate any business or assets or other similar action) or to agree to any restriction or condition with respect to any assets, operations, business or the conduct of business of the Company and its Subsidiaries, if, in the case of this clause (ii), any such action, failure to act, restriction, condition or agreement, individually or in the aggregate, would may reasonably be likely to have a Company Material Adverse Effect (read without regard to the exceptions set forth therein and without giving effect to clause (A) thereof) (except as provided in the immediately preceding sentence, the occurrence of any of the matters specified in clause (i) or clause (ii) above shall constitute a “Regulatory Material Adverse Effect”). In addition, in measuring whether a Regulatory Material Adverse Effect has occurred, the expected loss of any reasonably expected synergies (both cost and revenue) relating to any restriction or condition shall be taken into account as if the Company had an adverse effect to its financial condition and results of operations equal to the expected amount of applicable synergies affected by any such restriction or condition. The Company and its Subsidiaries shall not agree to any actions, restrictions or conditions with respect to obtaining any consents, registrations, approvals, permits, expirations of waiting periods or authorizations request in connection with the Merger and the other transactions contemplated by this Agreement without the prior written consent its preparation of Parent (which, subject to this Section 6.5(a) may be withheld in Parent’s sole discretion). Subject to applicable Laws relating to the exchange of information, Parent and the Company shall have the right to review in advance, and to the extent practicable each will consult the other on, all of the information relating to Parent or the Company, as the case may be, and any of their respective Subsidiaries, that appears in any filing made with, or written materials submitted to, any third party and/or submission that is required by any Governmental Entity in connection with the Merger and the other transactions contemplated by this Agreement. To The Seller and the extent permitted by applicable LawPurchaser Parties shall keep each other apprised of the status of any communications with, each party shall provide the other with copies of all correspondence between it (and any inquiries or its advisors) and requests for additional information from, any Governmental Entity relating and shall use commercially reasonable best efforts to comply promptly with any valid inquiry or request and provide any supplemental information validly requested in connection with the Merger and the other transactions contemplated filings made hereunder. Each party shall use its commercially reasonable best efforts to obtain any clearance required by this Agreement and, to the extent reasonably practicable, all telephone calls and meetings with a any Governmental Entity regarding for the consummation of the transactions contemplated by this Agreement Agreement. Notwithstanding the foregoing, in making any such filing and in order to obtain any consent, approval, waiver, clearance, license, permit, authorization, registration, qualification, or other permission or action or the lifting of any Injunction referred to in the preceding sentence, the Parties and their respective Affiliates shall include representatives not be required to (A) pay any consideration, except filing or application fees, (B) surrender, modify or amend in any respect any License or Contract (including this Agreement), (C) hold separately (in trust or otherwise), divest itself of, or otherwise rearrange the composition of, any of Parent its assets, (D) agree to any limitations on any such Person's freedom of action with respect to future acquisitions of assets or with respect to any existing or future business or activities or on the enjoyment of the full rights of ownership, possession and the Company. In exercising use of any asset now owned or hereafter acquired by any such Person, or (E) agree to any of the foregoing rightsor any other conditions or requirements of any Governmental Entity or other Person, in each case to the Company extent that doing so would be adverse or burdensome to such Person in any material respect. Prior to making any application to or filing with any Governmental Entity or other Person in connection with this Agreement, each Party shall provide the other Parties with drafts thereof and Parent each shall act reasonably and as promptly as reasonably practicableafford the other Parties a reasonable opportunity to comment on such drafts.
Appears in 1 contract
Cooperation. The Company (i) Buyer and Parent shallSeller shall cooperate as reasonably requested for a period of one hundred eighty (180) days after the Closing (or for such longer period to the extent required by the Transition Services Agreement) to provide for an orderly transition of the Assets and the Assumed Liabilities to Buyer and to minimize the disruption to the respective businesses of the parties hereto resulting from the transactions contemplated hereby. Except as otherwise provided in Section 8(a), subject each party shall bear its own out-of-pocket costs and expenses incurred in assisting the other pursuant to this Section 6.2, 8(b)(i). No party shall be required by this Section 8(b)(i) to take any action that would unreasonably interfere with the conduct of its business.
(ii) Buyer and Seller agree and acknowledge that Seller is entitled to any and all proceeds from accounts receivable relating to the Business that were outstanding as of the Closing Date and Buyer is entitled to any and all proceeds from accounts receivable relating to the Business that arise on or after the Closing Date. Each party agrees to forward to the other any accounts receivable received by such party but to which such receiving party is not entitled in accordance with the first sentence of this Section 8(b)(ii) together with appropriate supporting documentation.
(iii) Buyer and Seller will cooperate with each other and use, and shall cause their respective Subsidiaries to, use their respective reasonable best efforts to take in the defense or cause to be taken all actions, and do or cause to be done all things, necessary, proper or advisable on its part settlement of any lawsuits involving the Business for which they have responsibility under this Agreement and applicable Laws to consummate and make effective the Merger and by providing the other transactions contemplated by this Agreement as promptly as reasonably practicable (it being understood that nothing contained in this Agreement shall require Parent to obtain any consents, registrations, approvals, permits, expirations of waiting periods or authorizations prior to the Termination Date), including preparing party and filing as promptly as reasonably practicable all documentation to effect all necessary notices, reports such other party’s legal counsel and other filings (including by filing no later than 20 calendar days after designated Persons, reasonable access to employees, records, documents, data, equipment, facilities, products, parts, prototypes and other information regarding the date of this Agreement all applications required to be filed with the FCC and the notification and report form required under the HSR Act; provided that the failure to file within Business as such 20-day period shall not constitute a breach of this Agreement) and to obtain as promptly as other party may reasonably practicable all consents, registrations, approvals, permits, expirations of waiting periods 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. To the extent necessary or advisable to obtain any consent, registration, approval, permit, expiration of waiting period or authorization from any Governmental Entity in order to consummate the Merger prior to the Termination Date, (x) Parent shall, and shall cause its Subsidiaries to, and commit to cause the Company and its Subsidiaries to, take the actions and agree to those undertakings set forth on Section 6.5(a) of the Parent Disclosure Letter and (y) Parent shall, and shall cause its Subsidiaries to take, other actions involving Parent and its Subsidiaries that are in the aggregate de minimis (for the avoidance of doubt, not involving any divestiture, holding separate any business or assets or other similar action). Except as provided in the immediately preceding sentence, nothing in this Agreement shall require, or be construed to require, (i) Parent or any of its Subsidiaries to take or refrain from taking any action (including any divestiture, holding separate any business or assets or other similar action) or to agree to any restriction or condition with respect to any assets, operations, business or the conduct of business of Parent or any of its Subsidiaries and (ii) Parent, the Company or any of their respective Subsidiaries to take or refrain from taking any action (including any divestiture, holding separate any business or assets or other similar action) or to agree to any restriction or condition with respect to any assets, operations, business or the conduct of business of the Company and its Subsidiaries, if, in the case of this clause (ii), any such action, failure to act, restriction, condition or agreement, individually or in the aggregate, would reasonably be likely to have a Company Material Adverse Effect (read without regard to the exceptions set forth therein and without giving effect to clause (A) thereof) (except as provided in the immediately preceding sentence, the occurrence of any of the matters specified in clause (i) or clause (ii) above shall constitute a “Regulatory Material Adverse Effect”). In addition, in measuring whether a Regulatory Material Adverse Effect has occurred, the expected loss of any reasonably expected synergies (both cost and revenue) relating to any restriction or condition shall be taken into account as if the Company had an adverse effect to its financial condition and results of operations equal to the expected amount of applicable synergies affected by any such restriction or condition. The Company and its Subsidiaries shall not agree to any actions, restrictions or conditions with respect to obtaining any consents, registrations, approvals, permits, expirations of waiting periods or authorizations in connection with the Merger and the other transactions contemplated by this Agreement without the prior written consent of Parent (which, subject to this Section 6.5(a) may be withheld in Parent’s sole discretion). Subject to applicable Laws relating to the exchange of information, Parent and the Company shall have the right to review in advance, and to the extent practicable each will consult the other on, all of the information relating to Parent or the Company, as the case may be, and any of their respective Subsidiaries, that appears in any filing made with, or written materials submitted to, any third party and/or any Governmental Entity in connection with the Merger and the other transactions contemplated by this Agreement. To the extent permitted by applicable Law, each party shall provide the other with copies of all correspondence between it (or its advisors) and any Governmental Entity relating to the Merger and the other transactions contemplated by this Agreement andrequest, to the extent reasonably practicablemaintained or under the possession or control of the requested party. The requesting party shall reimburse the other party for its reasonable out-of-pocket expenses paid to third parties in performing its obligations under this Section 8(b)(iii).
(iv) Seller acknowledges Buyer’s desire to develop, all telephone calls within forty-five (45) days following the Closing Date, pro forma financial statements of the Business as of and meetings with a Governmental Entity regarding for the transactions contemplated by this Agreement shall include representatives of Parent and the Company. In exercising the foregoing rightsyear ended September 30, the Company and Parent each shall act reasonably 2008, and as of and for the six (6) months ended March 31, 2009, which shall be prepared in accordance with GAAP. To that end, Seller agrees to cooperate with Buyer and to use commercially reasonable efforts to provide, or to cause to be provided by its Affiliates or its independent auditor such financial information with respect to the Business as Buyer may reasonably request in order to prepare such pro forma financial statements. Seller also agrees to provide Buyer reasonable access during normal business hours to its personnel, to assist Buyer, as Buyer may reasonably require or request, in the preparation of such financial statements. Buyer and its independent auditor shall also be permitted to review the supporting work papers for the information provided to the extent such information is exclusively related to the Business. Buyer agrees to promptly as reasonably practicablereimburse Seller for all expenses associated with providing such information and assistance to it. Buyer agrees and acknowledges that Seller makes and will make no representation or warranty with respect to such information and that Seller will not have any liability to Buyer or any other Person resulting from Buyer’s use of such information.
Appears in 1 contract
Cooperation. The Company and Parent shall, subject Each party will use commercially reasonable efforts to Section 6.2, cooperate with each other party and usewith the others' employees, agents, lenders, attorneys and accountants in connection with any steps required to be taken as part of its obligations under this Agreement. The Company and Transco shall, and shall use all reasonable efforts to cause their respective Subsidiaries to, use their respective reasonable best efforts : (a) promptly make all filings and seek to take or cause obtain all authorizations and approvals required under all applicable laws with respect to be taken all actions, the Preliminary Merger and do or cause to be done all things, necessary, proper or advisable on its part under this Agreement and applicable Laws to consummate and make effective the Merger and the other transactions contemplated by this Agreement as hereby and cooperate with each other with respect thereto; (b) use all reasonable efforts to promptly as reasonably practicable (it being understood that nothing contained in this Agreement shall require Parent to obtain any consentstake, registrations, approvals, permits, expirations of waiting periods or authorizations prior to the Termination Date), including preparing and filing as promptly as reasonably practicable all documentation to effect all necessary notices, reports and other filings (including by filing no later than 20 calendar days after the date of this Agreement all applications required cause to be filed with taken, all other actions and do, or cause to be done, all other things necessary, proper or appropriate to satisfy the FCC conditions set forth in Articles V and the notification and report form required under the HSR Act; provided that the failure to file within such 20-day period shall not constitute a breach of this Agreement) VI and to obtain as promptly as reasonably practicable all consents, registrations, approvals, permits, expirations of waiting periods consummate 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. To the extent necessary or advisable to obtain any consent, registration, approval, permit, expiration of waiting period or authorization from any Governmental Entity in order to consummate the Merger prior to the Termination Date, (x) Parent shall, and shall cause its Subsidiaries to, and commit to cause the Company and its Subsidiaries to, take the actions and agree to those undertakings set forth on Section 6.5(a) of the Parent Disclosure Letter and (y) Parent shall, and shall cause its Subsidiaries to take, other actions involving Parent and its Subsidiaries that are in the aggregate de minimis (for the avoidance of doubt, not involving any divestiture, holding separate any business or assets or other similar action). Except as provided in the immediately preceding sentence, nothing in this Agreement shall require, or be construed to require, (i) Parent or any of its Subsidiaries to take or refrain from taking any action (including any divestiture, holding separate any business or assets or other similar action) or to agree to any restriction or condition with respect to any assets, operations, business or the conduct of business of Parent or any of its Subsidiaries and (ii) Parent, the Company or any of their respective Subsidiaries to take or refrain from taking any action (including any divestiture, holding separate any business or assets or other similar action) or to agree to any restriction or condition with respect to any assets, operations, business or the conduct of business of the Company and its Subsidiaries, if, in the case of this clause (ii), any such action, failure to act, restriction, condition or agreement, individually or in the aggregate, would reasonably be likely to have a Company Material Adverse Effect (read without regard to the exceptions set forth therein and without giving effect to clause (A) thereof) (except as provided in the immediately preceding sentence, the occurrence of any of the matters specified in clause (i) or clause (ii) above shall constitute a “Regulatory Material Adverse Effect”). In addition, in measuring whether a Regulatory Material Adverse Effect has occurred, the expected loss of any reasonably expected synergies (both cost and revenue) relating to any restriction or condition shall be taken into account as if the Company had an adverse effect to its financial condition and results of operations equal to the expected amount of applicable synergies affected by any such restriction or condition. The Company and its Subsidiaries shall not agree to any actions, restrictions or conditions with respect to obtaining any consents, registrations, approvals, permits, expirations of waiting periods or authorizations in connection with the Merger and the other transactions contemplated by this Agreement without the prior written consent of Parent (which, subject to this Section 6.5(a) may be withheld in Parent’s sole discretion). Subject to applicable Laws relating to the exchange of information, Parent and the Company shall have the right to review in advance, and to the extent practicable each will consult the other on, all of the information relating to Parent or the Company, as the case may be, and any of their respective Subsidiaries, that appears in any filing made with, or written materials submitted to, any third party and/or any Governmental Entity in connection with the Merger and the other transactions contemplated by this Agreement. To the extent permitted by applicable Law, each party shall provide the other with copies of all correspondence between it (or its advisors) and any Governmental Entity relating to the Merger and the other transactions contemplated by this Agreement and, to the extent reasonably practicable, all telephone calls and meetings with a Governmental Entity regarding make effective the transactions contemplated by this Agreement shall include representatives on the terms and subject to the conditions set forth herein as soon as practicable (including seeking to remove promptly any injunction or other legal barrier that may prevent such consummation); and (c) not take any action which might reasonably be expected to impair the ability of Parent and the Companyparties to consummate the Merger at the earliest possible time (regardless of whether such action would otherwise be permitted or not prohibited hereunder). In exercising Without limiting the foregoing rightsgenerality of the foregoing, the Company and Parent each Transco shall act reasonably use commercially reasonable efforts to prevent the entry in a judicial or administrative proceeding brought under any antitrust law of any permanent or preliminary injunction or other order that would make consummation of the transactions contemplated by this Agreement in accordance with the terms hereof unlawful, or would prevent, delay or impose conditions on such consummation. The Company and Transco shall cooperate in such arrangements in connection with the Preliminary Merger and the Merger as promptly as reasonably practicablemay be necessary to ensure that the capital stock of Labtec Hong Kong continues to be held by at least two shareholders (consisting of (i) the Company and (ii) a Subsidiary of the Company or other person satisfactory to the Surviving Corporation).
Appears in 1 contract
Sources: Recapitalization Agreement and Plan of Merger (Labtec Inc /Ma)
Cooperation. (i) The Company and Parent shall, subject parties to Section 6.2, cooperate with each other and use, and shall cause their respective Subsidiaries to, use their respective 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 on its part under this Agreement and applicable Laws to consummate and make effective the Merger and the other transactions contemplated by this Agreement as promptly as reasonably practicable (it being understood that nothing contained in this Agreement shall require Parent execute such powers of attorney as may be necessary or appropriate to obtain permit participation of counsel selected by any consentsparty hereto and, registrationsas may be reasonably related to any such claim or action, approvals, permits, expirations of waiting periods or authorizations prior shall provide to the Termination Date)counsel, including preparing and filing as promptly as reasonably practicable all documentation to effect all necessary notices, reports accountants and other filings representatives of each party access during normal business hours to all properties, personnel, books, records, contracts, commitments and all other business records of such other party and will furnish to such other party copies of all such documents as may be reasonably requested (including by filing no later than 20 calendar days after the date of this Agreement certified, if requested). The Indemnified Party agrees to cooperate in all applications required to be filed other reasonable respects with the FCC and the notification and report form required under the HSR Act; provided that the failure to file within such 20-day period shall not constitute a breach of this Agreement) and to obtain as promptly as reasonably practicable all consents, registrations, approvals, permits, expirations of waiting periods 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. To the extent necessary or advisable to obtain any consent, registration, approval, permit, expiration of waiting period or authorization from any Governmental Entity in order to consummate the Merger prior to the Termination Date, (x) Parent shall, and shall cause its Subsidiaries to, and commit to cause the Company and its Subsidiaries to, take the actions and agree to those undertakings set forth on Section 6.5(a) of the Parent Disclosure Letter and (y) Parent shall, and shall cause its Subsidiaries to take, other actions involving Parent and its Subsidiaries that are in the aggregate de minimis (for the avoidance of doubt, not involving any divestiture, holding separate any business or assets or other similar action). Except as provided in the immediately preceding sentence, nothing in this Agreement shall require, or be construed to require, (i) Parent or any of its Subsidiaries to take or refrain from taking any action (including any divestiture, holding separate any business or assets or other similar action) or to agree to any restriction or condition with respect to any assets, operations, business or the conduct of business of Parent or any of its Subsidiaries and (ii) Parent, the Company or any of their respective Subsidiaries to take or refrain from taking any action (including any divestiture, holding separate any business or assets or other similar action) or to agree to any restriction or condition with respect to any assets, operations, business or the conduct of business of the Company and its Subsidiaries, if, in the case of this clause (ii), any such action, failure to act, restriction, condition or agreement, individually or in the aggregate, would reasonably be likely to have a Company Material Adverse Effect (read without regard to the exceptions set forth therein and without giving effect to clause (A) thereof) (except as provided in the immediately preceding sentence, the occurrence of any of the matters specified in clause (i) or clause (ii) above shall constitute a “Regulatory Material Adverse Effect”). In addition, in measuring whether a Regulatory Material Adverse Effect has occurred, the expected loss of any reasonably expected synergies (both cost and revenue) relating to any restriction or condition shall be taken into account as if the Company had an adverse effect to its financial condition and results of operations equal to the expected amount of applicable synergies affected by any such restriction or condition. The Company and its Subsidiaries shall not agree to any actions, restrictions or conditions with respect to obtaining any consents, registrations, approvals, permits, expirations of waiting periods or authorizations Corporation in connection with any such claim or action. The cooperation from the Merger and the other transactions contemplated by this Agreement without the prior written consent of Parent (which, subject to this Section 6.5(a) may be withheld in Parent’s sole discretion). Subject to applicable Laws relating to the exchange of information, Parent and the Company shall have the right to review in advance, and to the extent practicable each will consult the other on, all of the information relating to Parent or the Company, Indemnified Party as the case may be, and any of their respective Subsidiaries, that appears in any filing made with, or written materials submitted to, any third party and/or any Governmental Entity in connection with the Merger and the other transactions contemplated by this Agreement. To the extent permitted by applicable Law, each party shall provide the other with copies of all correspondence between it (or its advisors) and any Governmental Entity relating to the Merger and the other transactions contemplated by this Agreement and, to the extent reasonably practicable, all telephone calls and meetings with a Governmental Entity regarding the transactions contemplated required by this Agreement shall include representatives be a further condition to the Indemnified Party's entitlement to indemnification under this Agreement; provided however and notwithstanding the foregoing, in the event the Indemnified Party shall, in the exercise of Parent his reasonable judgment, determine that any cooperation or assistance requested by the Company will expose the Indemnified Party to liability or jeopardy (other than direct monetary liability) in any civil, criminal or administrative proceeding, or otherwise impose substantial limitation on the defense of the Indemnified Party in such a proceeding, a failure to provide the requested cooperation or assistance as a result of such reasonable determination shall not however be considered a failure by the Indemnified Party to satisfy a condition to the Indemnified Party's entitlement, as provided for elsewhere herein, to have the Company continue to advance the expenses incurred by the Indemnified Party in defending a Covered Third Party Claim (but with the understanding that such advance of expenses shall continue to be subject to the terms and provisions of Section 2(i) of this Agreement).
(ii) The Indemnified Party's obligation to cooperate shall include, without limitation, an obligation to cooperate in the Company. In exercising defense of any Covered Third Party Claim that is being controlled by the foregoing rightsCorporation; and so long as the Indemnified Party so cooperates and notwithstanding the Corporation's control of the defense, the Company Indemnified Party shall continue to be entitled to indemnification and Parent each shall act reasonably reimbursement for all costs and as promptly as reasonably practicableexpenses incurred by him in connection therewith to the extent and subject to the other limitations provided in this Agreement.
Appears in 1 contract
Sources: Indemnification Agreement (Discount Auto Parts Inc)
Cooperation. The Company 5.8.1 Parent, IAWC, Citizens and Seller shall cooperate and shall cause their respective Affiliates, officers, employees, agents and representatives to cooperate to ensure the orderly transition of the Business from Seller to Parent and IAWC to the extent being acquired by each and to minimize the disruption to the Business resulting from the transactions contemplated hereby.
5.8.2 Without limiting the foregoing, neither Parent and IAWC, nor Citizens and Seller (nor any of their respective Affiliates) shall make any filings pursuant to federal or state securities laws ("Securities Filings") or make any consent solicitations to holders of Assumed Indebtedness which include any information about Seller, IAWC (or their respective Illiniois Affiliates) or the transactions contemplated hereby without consulting with the other party and providing the other party a reasonable opportunity to review and comment on such information, it being understood and agreed that any party may so disclose such information in its reasonable judgment to the extent such party's counsel advises it that such disclosure is advisable under applicable law. Each of Parent, IAWC, Citizens and Seller shall, subject to Section 6.2, cooperate with each other and use, and shall cause their respective Subsidiaries Affiliates to, use their respective reasonable best efforts to take or cause to be taken comply with all actions, applicable federal and do or cause to be done all things, necessary, proper or advisable on its part under state securities laws in connection with this Agreement and applicable Laws to consummate and make effective the Merger and the other transactions contemplated by this Agreement as promptly as reasonably practicable hereby (it being understood that nothing contained in this Agreement shall require Parent to obtain including any consents, registrations, approvals, permits, expirations solicitation of waiting periods or authorizations prior to the Termination Dateconsents of holders of Assumed Indebtedness), including preparing and filing as promptly as reasonably practicable all documentation information supplied by any party for inclusion in any Securities Filing or consent solicitation, including, without limitation, any proxy or information statement, or any registration statement on Form S-4 shall be true and correct in all material respect and shall not contain any untrue statement of a material fact or omit to effect all state any material fact which is required to be stated therein or which is necessary notices, reports and other filings (including by filing no later than 20 calendar to make the statements contained therein not misleading in light of the circumstances in which they were made.
5.8.3 During the first 90 days after the date Closing Date (180 days for Trademarks on tanks), Parent and IAWC shall have the right to use all of the logos, trademarks and trade identification of Seller as are located at the Real Estate or on the Acquired Assets (collectively, the "Trademarks"). Parent's and IAWC's use of the Trademarks shall be in accordance with such reasonable quality control standards as may be promulgated by Seller and provided to Parent and IAWC. If Seller shall notify Parent and IAWC in writing of Parent's or IAWC's (as the case may be) material failure to comply with such reasonable quality control standards and Parent or IAWC continues to not comply with such reasonable quality control standards for more than 20 days after receipt of such notice, Seller shall have the right to terminate Parent's and IAWC's right under this Agreement all applications required Section 5.8.3 to be filed with use the FCC Trademarks.
5.8.4 Seller shall give Parent and IAWC and its representatives (including IAWC's Accountants, consultants, counsel and employees), upon reasonable notice and during normal business hours, full access to the properties, contracts, employees, books, records and affairs of Seller to the extent relating to the Business and the notification and report form required under the HSR Act; provided that the failure to file within such 20-day period shall not constitute a breach of this Agreement) and to obtain as promptly as reasonably practicable all consents, registrations, approvals, permits, expirations of waiting periods 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. To the extent necessary or advisable to obtain any consent, registration, approval, permit, expiration of waiting period or authorization from any Governmental Entity in order to consummate the Merger prior to the Termination Date, (x) Parent shallAcquired Assets, and shall cause its Subsidiaries toofficers, employees, agents and commit representatives to cause the Company and its Subsidiaries to, take the actions and agree furnish to those undertakings set forth on Section 6.5(a) of the Parent Disclosure Letter and (y) Parent shall, and shall cause its Subsidiaries to take, other actions involving Parent and its Subsidiaries that are in the aggregate de minimis IAWC all documents, records and information (for the avoidance of doubt, not involving any divestiture, holding separate any business or assets or other similar actionand copies thereof). Except as provided in the immediately preceding sentence, nothing in this Agreement shall require, or be construed to require, (i) Parent or any of its Subsidiaries to take or refrain from taking any action (including any divestiture, holding separate any business or assets or other similar action) or to agree to any restriction or condition with respect to any assets, operations, business or the conduct of business of Parent or any of its Subsidiaries and (ii) Parent, the Company or any of their respective Subsidiaries to take or refrain from taking any action (including any divestiture, holding separate any business or assets or other similar action) or to agree to any restriction or condition with respect to any assets, operations, business or the conduct of business of the Company and its Subsidiaries, if, in the case of this clause (ii), any such action, failure to act, restriction, condition or agreement, individually or in the aggregate, would reasonably be likely to have a Company Material Adverse Effect (read without regard to the exceptions set forth therein and without giving effect to clause (A) thereof) (except as provided in the immediately preceding sentence, the occurrence of any of the matters specified in clause (i) or clause (ii) above shall constitute a “Regulatory Material Adverse Effect”). In addition, in measuring whether a Regulatory Material Adverse Effect has occurred, the expected loss of any reasonably expected synergies (both cost and revenue) relating to any restriction or condition shall be taken into account as if the Company had an adverse effect to its financial condition and results of operations equal to the expected amount of applicable synergies affected by any such restriction or condition. The Company and its Subsidiaries shall not agree to any actions, restrictions or conditions with respect to obtaining any consents, registrations, approvals, permits, expirations of waiting periods or authorizations in connection with the Merger and the other transactions contemplated by this Agreement without the prior written consent of Parent (which, subject to this Section 6.5(a) may be withheld in Parent’s sole discretion). Subject to applicable Laws relating to the exchange of information, Parent and the Company shall have the right to review in advance, and to the extent practicable each will consult the other on, all of the information relating to Parent or the Company, as the case may be, and any of their respective Subsidiaries, that appears in any filing made with, or written materials submitted to, any third party and/or any Governmental Entity in connection with the Merger and the other transactions contemplated by this Agreement. To the extent permitted by applicable Law, each party shall provide the other with copies of all correspondence between it (or its advisors) and any Governmental Entity relating to the Merger and the other transactions contemplated by this Agreement and, to the extent relating to the Business and the Acquired Assets, as Parent and IAWC may reasonably practicablerequest. Except to the extent disclosed in the Disclosure Schedules in accordance with Sections 5.3 and 8.4, all telephone calls and meetings with a Governmental Entity regarding no investigation or receipt of information by Parent or IAWC pursuant to, or in connection with, this Agreement, shall diminish or obviate any of the transactions contemplated by representations, warranties, covenants or agreements of the Seller Parties under this Agreement or the conditions to the obligations of Parent or IAWC under this Agreement. All information provided to Parent or IAWC under this Agreement shall include representatives be held subject to the terms and conditions of Parent the Confidentiality Agreement dated August 2, 1999 between Citizens and the Company. In exercising the foregoing rights, the Company and Parent each shall act reasonably and as promptly as reasonably practicableParent.
Appears in 1 contract
Cooperation. The Company and Parent shall(a) Subject to applicable Law, subject to Section 6.2, cooperate with each other and use, and Party shall cause their respective Subsidiaries to, use their respective 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 on its part under this Agreement and applicable Laws to consummate and make effective the Merger and the other transactions contemplated by this Agreement as promptly as reasonably practicable (it being understood that nothing contained in this Agreement shall require Parent to obtain any consents, registrations, approvals, permits, expirations of waiting periods or authorizations prior to the Termination Date), including preparing and filing as promptly as reasonably practicable all documentation to effect all necessary notices, reports and other filings (including by filing no later than 20 calendar days after the date of this Agreement all applications required to be filed with the FCC and the notification and report form required under the HSR Act; provided that the failure to file within such 20-day period shall not constitute a breach of this Agreement) and to obtain as promptly as reasonably practicable all consents, registrations, approvals, permits, expirations of waiting periods 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. To the extent necessary or advisable to obtain any consent, registration, approval, permit, expiration of waiting period or authorization from any Governmental Entity in order to consummate the Merger prior to the Termination Date, (x) Parent shallcooperate, and shall cause its Subsidiaries to, and commit to cause the Company and its Subsidiaries to, take the actions and agree to those undertakings set forth on Section 6.5(a) of the Parent Disclosure Letter and (y) Parent shall, and shall cause its respective Subsidiaries to takecooperate, with reasonable requests for information from the other actions involving Parent Party in matters relating to the corporate and its Subsidiaries administrative services and knowledge that are in the aggregate de minimis (for the avoidance of doubt, not involving any divestiture, holding separate any business or assets or other similar action). Except as A) were historically provided in the immediately preceding sentence, nothing in this Agreement shall require, or be construed to require, (i) Parent or any of its Subsidiaries to take or refrain from taking any action (including any divestiture, holding separate any business or assets or other similar action) or to agree to any restriction or condition with respect to any assets, operations, business or the conduct of business of Parent or any of by Alliant Techsystems Inc. and its Subsidiaries and (iiB) Parent, are reasonably necessary for a Party to operate on a stand-alone basis following the Company or any of their respective Subsidiaries Distribution Date. Such cooperation shall include reasonable access to take or refrain from taking any action (including any divestiture, holding separate any business or assets or other similar action) or to agree to any restriction or condition with respect to any assets, operations, business or the conduct of business Records and personnel of the Company other Party during normal business hours and its Subsidiariesthe delivery of instruments or documents as may be reasonably requested by the other Party, ifprovided that no Party shall be required to provide information if (x) such access would unreasonably disrupt the normal operations of the Party or (y) such information constitutes proprietary customer or supplier information or if the disclosure of such information is legally or contractually prohibited or would result in the loss of attorney client privilege; provided that, in the case of this clause (iiy), the withholding party first uses commercially reasonable efforts to provide such information in a manner that does not violate any such actiondisclosure obligations or privilege. Such cooperation (including reasonable access to Records and personnel and delivery of instruments and documents) shall be provided at no cost; provided, failure however, that neither Party shall be required to actpay any out-of-pocket amounts to third parties in connection with the foregoing. For the avoidance of doubt, restrictioncooperation under this Section 2.10(c) shall not apply to requests from Vista Outdoor to the extent such requests would constitute Services as set forth in the attached Schedules.
(b) Set forth on Exhibit A is, condition or agreementfor each of Vista Outdoor and Orbital ATK, individually (i) a principal representative (each, a “Principal Representative”) to act as the principal contact person with respect to all issues relating to the provision of the Services pursuant to this Agreement and (ii) representatives (each, an “Additional Representative” and, together with the Principal Representatives, the “Representatives”) to act as additional contact persons with respect to issues relating to the provision of the Services set forth opposite such Additional Representatives’ names on Exhibit A. The Representatives shall hold review meetings by telephone or in the aggregateperson, would reasonably be likely to have a Company Material Adverse Effect (read without regard to the exceptions set forth therein and without giving effect to clause as mutually agreed upon, (A) thereof) during the first 60 days after the date of this Agreement, approximately once every two weeks, and (except as provided B), thereafter, approximately once per month, in each case, to discuss issues relating to the immediately preceding sentence, provision of the occurrence Services under this Agreement and to discuss the migration of the Services to Vista Outdoor’s own systems and technology (or those of any third-party service provider engaged by Vista Outdoor to assume the provision of the matters specified one or more Services) as described in clause Section 2.07 (i) or clause (ii) above shall constitute a “Regulatory Material Adverse EffectReview Meetings”). In addition, in measuring whether a Regulatory Material Adverse Effect has occurredthe Review Meetings, the expected loss of any reasonably expected synergies (both cost and revenue) relating to any restriction or condition Representatives shall be taken into account as if the Company had an adverse effect to its financial condition and results of operations equal to the expected amount of applicable synergies affected by responsible for discussing any such restriction or condition. The Company and its Subsidiaries shall not agree to any actions, restrictions or conditions with respect to obtaining any consents, registrations, approvals, permits, expirations of waiting periods or authorizations in connection problems identified with the Merger and the other transactions contemplated by this Agreement without the prior written consent of Parent (which, subject to this Section 6.5(a) may be withheld in Parent’s sole discretion). Subject to applicable Laws relating to the exchange of information, Parent and the Company shall have the right to review in advance, and to the extent practicable each will consult the other on, all provision of the information relating to Parent or the Company, as the case may be, and any of their respective Subsidiaries, that appears in any filing made with, or written materials submitted to, any third party and/or any Governmental Entity in connection with the Merger and the other transactions contemplated by this Agreement. To the extent permitted by applicable Law, each party shall provide the other with copies of all correspondence between it (or its advisors) and any Governmental Entity relating to the Merger and the other transactions contemplated by this Agreement Services and, to the extent reasonably practicable, all telephone calls and meetings with a Governmental Entity regarding any changes in the transactions contemplated by this Agreement shall include representatives provision of Parent and the Company. In exercising the foregoing rightsServices are agreed upon, the Company implementation of such changes.
(c) In the event that (i) there is nonperformance of any Service as a result of a Force Majeure Event or (ii) the provision of a Service would violate any Law or any Contract, license or permit to which Orbital ATK or any of its Affiliates is a party, the Parties shall work together in good faith to arrange for an alternative means by which Vista Outdoor and Parent each its Subsidiaries may obtain the Services so affected. If the Parties arrange such alternative means, Orbital ATK shall act reasonably provide the Services in accordance therewith and any expenses incurred by Orbital ATK in the provision of such Services through such alternative means shall be borne as promptly as reasonably practicablemutually agreed by the Parties (considering the expenses otherwise included in the Fees).
(d) Each of Vista Outdoor and Orbital ATK may, effective upon written notice to the other party, change its Principal Representative or any Additional Representative at any time.
(e) Vista Outdoor acknowledges that the completion of Services by Orbital ATK may depend upon the provision of certain materials and information or the taking of certain actions by Vista Outdoor or one of its Subsidiaries, and Orbital ATK shall not be responsible for the failure to provide Services to the extent such failure results from the failure of Vista Outdoor to provide such materials or information or to take such actions.
Appears in 1 contract
Cooperation. The Company (a) After the Completion and Parent shallfor as long thereafter as is appropriate, subject to Section 6.2, cooperate with each other and use, and the Buyer shall cause their respective Subsidiaries to, use their respective 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 on its part under this Agreement and applicable Laws to consummate and make effective the Merger and the other transactions contemplated by this Agreement as promptly as reasonably practicable (it being understood that nothing contained in this Agreement shall require Parent to obtain any consents, registrations, approvals, permits, expirations of waiting periods or authorizations prior to the Termination Date), including preparing and filing as promptly as reasonably practicable all documentation to effect all necessary notices, reports and other filings (including by filing no later than 20 calendar days after the date of this Agreement all applications required to be filed with the FCC and the notification and report form required under the HSR Act; provided that the failure to file within such 20-day period shall not constitute a breach of this Agreement) and to obtain as promptly as reasonably practicable all consents, registrations, approvals, permits, expirations of waiting periods 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. To the extent necessary or advisable to obtain any consent, registration, approval, permit, expiration of waiting period or authorization from any Governmental Entity in order to consummate the Merger prior to the Termination Date, (x) Parent shall, and shall cause its Subsidiaries to, and commit to cause the Company and its Subsidiaries to, take the actions and agree to those undertakings set forth on Section 6.5(a) of the Parent Disclosure Letter and (y) Parent shall, and shall cause its Subsidiaries to take, other actions involving Parent and its Subsidiaries that are in the aggregate de minimis (for the avoidance of doubt, not involving any divestiture, holding separate any business or assets or other similar action). Except as provided in the immediately preceding sentence, nothing in this Agreement shall require, or be construed to require, (i) Parent or any of its Subsidiaries to take or refrain from taking any action (including any divestiture, holding separate any business or assets or other similar action) or to agree to any restriction or condition with respect to any assets, operations, business or the conduct of business of Parent or any of its Subsidiaries and (ii) Parent, the Company or any such entity to make available to Seller, at the request of their respective Subsidiaries to take or refrain from taking any action (including any divestitureSeller and during normal business hours and in a manner which will not unreasonably interfere with its business, holding separate any business or assets or other similar action) or to agree to any restriction or condition with respect to any assets, operations, business or the conduct of business personnel of the Company involved with the preparation and its Subsidiariesreview of the Tax returns and schedules thereto for all taxable periods prior to Completion. Such personnel shall advise or assist with Seller as to the preparation and manner of the inclusion of the items in such returns and schedules and shall provide all other reasonable assistance as Seller shall request relating thereto including, ifwithout limitation, in furnishing to, or permitting the case copying by Seller of this clause (ii)any records, any such actionreturns, failure to actschedules, restrictiondocuments, condition workpapers, or agreement, individually or in the aggregate, would other relevant materials which might reasonably be likely expected to have a Company Material Adverse Effect be of use in connection with any return, examination or proceeding whether ongoing or anticipated.
(read without regard to the exceptions set forth therein b) The Buyer and without giving effect to clause (A) thereof) (except Seller will provide each other with such assistance as provided in the immediately preceding sentence, the occurrence may reasonably be requested by either of any of the matters specified in clause (i) or clause (ii) above shall constitute a “Regulatory Material Adverse Effect”). In addition, in measuring whether a Regulatory Material Adverse Effect has occurred, the expected loss of any reasonably expected synergies (both cost and revenue) relating to any restriction or condition shall be taken into account as if the Company had an adverse effect to its financial condition and results of operations equal to the expected amount of applicable synergies affected by any such restriction or condition. The Company and its Subsidiaries shall not agree to any actions, restrictions or conditions with respect to obtaining any consents, registrations, approvals, permits, expirations of waiting periods or authorizations them in connection with the Merger and the preparation of any return of Tax, any audit (financial or tax) or other transactions contemplated examination by this Agreement without the prior written consent of Parent (whichany taxing authority, subject to this Section 6.5(a) may be withheld in Parent’s sole discretion). Subject to applicable Laws or any judicial or administrative proceedings relating to the exchange of information, Parent and the Company shall have the right to review in advanceliability for Taxes, and to the extent practicable each will consult retain and, upon the other on, all request of the information relating to Parent or the Companyother, as the case may be, and any of their respective Subsidiaries, that appears in any filing made with, or written materials submitted to, any third party and/or any Governmental Entity in connection with the Merger and the other transactions contemplated by this Agreement. To the extent permitted by applicable Law, each party shall provide the other with copies of all correspondence between it (any records or its advisors) and any Governmental Entity relating information which may be relevant to the Merger and the other transactions contemplated by this Agreement andsuch return, to the extent reasonably practicableaudit, all telephone calls and meetings with a Governmental Entity regarding the transactions contemplated by this Agreement examination or proceedings. Such assistance shall include representatives making employees available on a mutually convenient basis to prove additional information and explanation of Parent any material provided hereunder and shall include, without limitation, furnishing to or permitting the Companycopying by the requesting party of any records, returns, schedules, documents, workpapers or other relevant materials which might reasonably be expected to be of use in connection with such return, audit, examination or proceeding. In exercising The Party requesting assistance hereunder shall reimburse the foregoing rights, the Company and Parent each shall act reasonably and as promptly as reasonably practicableParty whose assistance is requested for reasonable out of pocket expenses incurred by it in providing such assistance.
Appears in 1 contract
Sources: Share Sale Agreement (Apache Corp)
Cooperation. The Company (a) Purchaser, on the one hand, and Parent shallSeller, subject to Section 6.2on the other hand, shall cooperate with each other and use, and shall cause their respective Subsidiaries to, use their respective reasonable best efforts in furnishing any information that may come into such party’s possession from time to take time or cause to be taken all actions, and do or cause to be done all things, necessary, proper or advisable on its part under this Agreement and applicable Laws to consummate and make effective the Merger and performing any action requested by the other party which is reasonably necessary to the timely and successful consummation of the transactions contemplated by this Agreement in accordance with the terms hereof. Seller shall notify Purchaser of its receipt of any Approval promptly following such receipt thereof. After the Closing, each of the parties agrees to execute and deliver such additional documents, certificates and instruments, and to perform such additional acts, as promptly as may be reasonably practicable (it being understood that nothing contained in necessary or appropriate solely to carry out all of the provisions of this Agreement shall require Parent and to obtain any consents, registrations, approvals, permits, expirations of waiting periods or authorizations prior consummate all the transactions contemplated by this Agreement with respect to the Termination Date), including preparing Investment Interests transferred at the Closing.
(b) From and filing as promptly as reasonably practicable all documentation to effect all necessary notices, reports and other filings (including by filing no later than 20 calendar days after the date of this Agreement all applications required to be filed with until the FCC and the notification and report form required under the HSR Act; provided that the failure to file within such 20-day period shall not constitute a breach Closing Date or termination of this Agreement, Seller shall as soon as practicable, but in any event no later than two (2) Business days thereafter, provide reasonably detailed information to Purchaser regarding any Portfolio Proceeds, Portfolio Investment, and any investments made pursuant to obtain as promptly as reasonably practicable all consents, registrations, approvals, permits, expirations of waiting periods 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 AgreementSection 6.11. To the extent necessary that such information is reasonably available to Seller, from and after the Closing, Seller shall promptly forward to Purchaser any correspondence, information or advisable to obtain notices received by Seller or any consent, registration, approval, permit, expiration of waiting period or authorization from affiliated entity that relate in any Governmental Entity in order to consummate the Merger prior way to the Termination DateInvestment Interests transferred at the Closing.
(c) Seller hereby covenants and agrees that, (x) Parent shallat and after the Closing, Seller shall execute and shall cause its Subsidiaries todeliver to Purchaser such other documents as are necessary to transfer to Purchaser, at no additional cost and commit to cause in a manner consistent with the Company and its Subsidiaries to, take the actions and agree to those undertakings set forth on Section 6.5(a) terms of the Parent Disclosure Letter and (y) Parent shall, and shall cause its Subsidiaries to take, other actions involving Parent and its Subsidiaries that are in the aggregate de minimis (for the avoidance of doubt, not involving any divestiture, holding separate any business or assets or other similar action). Except as provided in the immediately preceding sentence, nothing in this Agreement shall require, any Investment Interest whether or be construed to require, (i) Parent or any of its Subsidiaries to take or refrain from taking any action (including any divestiture, holding separate any business or assets or other similar action) or to agree to any restriction or condition with respect to any assets, operations, business or the conduct of business of Parent or any of its Subsidiaries and (ii) Parent, the Company or any of their respective Subsidiaries to take or refrain from taking any action (including any divestiture, holding separate any business or assets or other similar action) or to agree to any restriction or condition with respect to any assets, operations, business or the conduct of business of the Company and its Subsidiaries, if, in the case of this clause (ii), any not such action, failure to act, restriction, condition or agreement, individually or in the aggregate, would reasonably be likely to have a Company Material Adverse Effect (read without regard to the exceptions set forth therein and without giving effect to clause (A) thereof) (except as provided in the immediately preceding sentence, the occurrence of any of the matters specified in clause (i) or clause (ii) above shall constitute a “Regulatory Material Adverse Effect”). In addition, in measuring whether a Regulatory Material Adverse Effect has occurred, the expected loss of any reasonably expected synergies (both cost and revenue) relating to any restriction or condition shall be taken into account as if the Company had an adverse effect to its financial condition and results of operations equal to the expected amount of applicable synergies affected by any such restriction or condition. The Company and its Subsidiaries shall not agree to any actions, restrictions or conditions with respect to obtaining any consents, registrations, approvals, permits, expirations of waiting periods or authorizations in connection with the Merger and the other transactions contemplated by this Agreement without the prior written consent of Parent (which, subject to this Section 6.5(a) may be withheld in Parent’s sole discretion). Subject to applicable Laws relating to the exchange of information, Parent and the Company shall have the right to review in advance, and to the extent practicable each will consult the other on, all of the information relating to Parent or the Company, as the case may be, and any of their respective Subsidiaries, that appears in any filing made with, or written materials submitted to, any third party and/or any Governmental Entity in connection with the Merger and the other transactions contemplated by this Agreement. To the extent permitted by applicable Law, each party shall provide the other with copies of all correspondence between it (or its advisors) and any Governmental Entity relating to the Merger and the other transactions contemplated by this Agreement and, to the extent reasonably practicable, all telephone calls and meetings with a Governmental Entity regarding the transactions contemplated by this Agreement shall include representatives of Parent and the Company. In exercising the foregoing rights, the Company and Parent each shall act reasonably and as promptly as reasonably practicable.interest is listed on Exhibit A.
Appears in 1 contract
Cooperation. (a) The Company and Parent Buyer shall, subject to Section 6.2and the Archway Parties shall cause JACAAB to, cooperate with each other and use, and shall cause using their respective Subsidiaries to, use their respective reasonable best efforts to take transfer, obtain, or to cause to be transferred or obtained, prior to the Closing or as soon as practicable thereafter, any Permits issued or required under any Law and necessary for Buyer to own or operate the Business during the period commencing on the date hereof and continuing until one hundred eighty (180) days after the Closing, which 180-day period may be extended in thirty (30) day increments by mutual agreement of the Parties, provided that, in no case shall such aggregate period, including any extensions, end later than the date that is twelve (12) months after the Closing Date.
(b) The Company and Buyer shall, and the Archway Parties shall cause JACAAB to, (i) provide or cause to be taken provided to the other Parties all actionscommercially reasonable assistance as is reasonably requested in connection with securing (and/or terminating, if required by Law or Environmental Law) any such Permits, and do or cause to be done all things, necessary, proper or advisable on its part under this Agreement and applicable Laws to consummate and make effective the Merger and the other transactions contemplated by this Agreement as promptly as reasonably practicable (it being understood that nothing contained in this Agreement shall require Parent to obtain ii) if any consents, registrations, approvals, permits, expirations of waiting periods or authorizations Permits are not secured prior to the Termination Date)Closing, including preparing Company and filing as promptly as Buyer shall, and the Archway Parties shall cause JACAAB to, use commercially reasonable efforts to cooperate in any lawful and reasonable arrangement reasonably practicable all documentation to effect all necessary notices, reports and other filings (including proposed by filing no later than 20 calendar days after any Party under which the date benefit of this Agreement all applications required to be filed Permits held by the Company or JACAAB in connection with the FCC and ownership of the notification and report form required under Company Group Assets or operation of the HSR ActBusiness following the Closing; provided that the failure to file within such 20-day period assistance and cooperation shall not constitute a breach of include any obligation to pay any consideration to any third party or Governmental Authority from whom such Permits are requested under this AgreementSection.
(c) The Archway Parties, the Company and JACAAB shall use their commercially reasonable efforts to obtain as promptly as reasonably at the earliest practicable date all consents, registrationswaivers and approvals from, approvalsand provide all notices to, permitsall Persons, expirations of waiting periods which consents, waivers, approvals and authorizations necessary notices are required to consummate, or advisable to be obtained from any third party and/or any Governmental Entity in order to consummate connection with, the Merger or any of the other transactions contemplated by this Agreement. To All such consents, waivers, approvals and notices shall be in writing and in form and substance satisfactory to Buyer, and executed counterparts of such consents, waivers and approvals shall be delivered to Buyer promptly after receipt thereof, and copies of such notices shall be delivered to Buyer promptly after the extent necessary or advisable making thereof. Notwithstanding anything to obtain the contrary in this Agreement, neither Buyer nor any of its Affiliates (which for purposes of this sentence shall include the Company) shall be required to pay any amounts in connection with obtaining any consent, registrationwaiver or approval.
(d) Buyer, approvalon the one hand, permitand the Archway Parties, expiration of waiting period or authorization from on the other hand, shall immediately, and in any Governmental Entity in order to consummate the Merger event prior to the Termination Closing Date, notify the other of any notice (xwhether verbally, electronically or in writing) Parent shallreceived by Buyer, and shall cause its Subsidiaries toor by any Archway Party, and commit as applicable, from any of the suppliers to cause the Company Group indicating the supplier’s present or future intent to terminate, de-authorize or substantially and its Subsidiaries tomaterially reduce or alter the availability of and/or increase any pricing with respect to such supplier’s product to be supplied to either Company Group. In the case of any such supplier communications received by either Company Group Member, take the actions Archway Parties shall make reasonable investigation, including inquiries of relevant managers and agree to those undertakings set forth on Section 6.5(a) supervisory personnel of the Parent Disclosure Letter and (y) Parent shallCompany Group, and shall cause its Subsidiaries to take, other actions involving Parent and its Subsidiaries that are in the aggregate de minimis (for determine if any such communications have been received by either Company Group Member. For the avoidance of doubt, Buyer acknowledges that a communication from a supplier that the supplier will evaluate the relationship post-Closing (or a communication to similar effect) does not involving in and of itself constitute a communication of a present or future intent to terminate or substantially and materially reduce or alter the availability of and/or increase any divestiture, holding separate any business or assets or other similar action). Except as provided in the immediately preceding sentence, nothing in this Agreement shall require, or be construed to require, (i) Parent or any of its Subsidiaries to take or refrain from taking any action (including any divestiture, holding separate any business or assets or other similar action) or to agree to any restriction or condition pricing with respect to any assets, operations, business or the conduct of business of Parent or any of its Subsidiaries and (ii) Parent, the such supplier’s product to be supplier to either Company or any of their respective Subsidiaries to take or refrain from taking any action (including any divestiture, holding separate any business or assets or other similar action) or to agree to any restriction or condition with respect to any assets, operations, business or the conduct of business of the Company and its Subsidiaries, if, in the case of this clause (ii), any such action, failure to act, restriction, condition or agreement, individually or in the aggregate, would reasonably be likely to have a Company Material Adverse Effect (read without regard to the exceptions set forth therein and without giving effect to clause (A) thereof) (except as provided in the immediately preceding sentence, the occurrence of any of the matters specified in clause (i) or clause (ii) above shall constitute a “Regulatory Material Adverse Effect”). In addition, in measuring whether a Regulatory Material Adverse Effect has occurred, the expected loss of any reasonably expected synergies (both cost and revenue) relating to any restriction or condition shall be taken into account as if the Company had an adverse effect to its financial condition and results of operations equal to the expected amount of applicable synergies affected by any such restriction or condition. The Company and its Subsidiaries shall not agree to any actions, restrictions or conditions with respect to obtaining any consents, registrations, approvals, permits, expirations of waiting periods or authorizations in connection with the Merger and the other transactions contemplated by this Agreement without the prior written consent of Parent (which, subject to this Section 6.5(a) may be withheld in Parent’s sole discretion). Subject to applicable Laws relating to the exchange of information, Parent and the Company shall have the right to review in advance, and to the extent practicable each will consult the other on, all of the information relating to Parent or the Company, as the case may be, and any of their respective Subsidiaries, that appears in any filing made with, or written materials submitted to, any third party and/or any Governmental Entity in connection with the Merger and the other transactions contemplated by this Agreement. To the extent permitted by applicable Law, each party shall provide the other with copies of all correspondence between it (or its advisors) and any Governmental Entity relating to the Merger and the other transactions contemplated by this Agreement and, to the extent reasonably practicable, all telephone calls and meetings with a Governmental Entity regarding the transactions contemplated by this Agreement shall include representatives of Parent and the Company. In exercising the foregoing rights, the Company and Parent each shall act reasonably and as promptly as reasonably practicableGroup Member.
Appears in 1 contract
Sources: Stock Purchase Agreement (Nexeo Solutions Holdings, LLC)
Cooperation. (a) The Company and Parent Parties shall, subject to Section 6.2and shall cause their respective Affiliates to, cooperate with each other and use, and shall cause their respective Subsidiaries to, use their respective reasonable best efforts to take or cause to be taken all actions, and do or cause to be done all things, reasonably necessary, proper or advisable on its part their respective parts under this Agreement and applicable Laws to satisfy the conditions set forth in Article VI and to consummate and make effective the Merger and the other transactions contemplated by this Agreement the Transaction Documents with the intent of effecting the Closing as promptly as reasonably practicable (it being understood that nothing contained in this Agreement shall require Parent to obtain any consents, registrations, approvals, permits, expirations of waiting periods or authorizations prior to the Termination Date)practicable, including preparing and filing as promptly as reasonably practicable all documentation to effect all necessary notices, reports and other filings (including by filing no later than 20 calendar days after the date of this Agreement all applications required to be filed with the FCC and the notification and report form required under the HSR Act; provided that the failure to file within such 20-day period shall not constitute a breach of this Agreement) and to obtain as promptly as reasonably practicable all consents, registrations, approvals, permitswaivers, expirations of waiting periods orders, interpretive guidance, exemptions, Permits and authorizations necessary or advisable to be obtained from any third party and/or any Government Authority (including the Required Governmental Entity Approvals) in order to consummate the Merger or transactions; provided, however, that each Party agrees to, and to cause its respective Affiliates to, reasonably consult with each other in advance of any filing, and agrees to consider and reasonably take into account the views of the other transactions contemplated by this AgreementParty in connection with each such filing. To Without limiting the extent necessary or advisable to obtain any consentgenerality of the foregoing, registration, approval, permit, expiration of waiting period or authorization from any Governmental Entity in order to consummate the Merger prior to the Termination Date, (x) Parent each Party shall, and shall cause its Subsidiaries respective Affiliates to, make timely and commit to cause as promptly as practicable (and in no event later than 30 calendar days after the Company date hereof) all filings and its Subsidiaries tosubmissions required under any applicable Law in connection with the Transaction Documents and the transactions contemplated thereby, take the actions and agree to those undertakings set forth on Section 6.5(a) file promptly any additional information requested under any applicable Law in connection therewith, after receipt of the Parent Disclosure Letter request therefor.
(b) Without limiting the generality of this Section 5.3, the Parties shall reasonably cooperate with each other and (y) Parent shallshall each furnish to the other all information reasonably necessary or desirable in connection with making any application or other filing required to be made pursuant to any applicable Law, and shall cause its Subsidiaries to take, other actions involving Parent and its Subsidiaries that are in the aggregate de minimis (for the avoidance of doubt, not involving connection with resolving any divestiture, holding separate any business or assets investigation or other similar action). Except as provided inquiry by any Government Authority under any applicable Laws, in the immediately preceding sentenceeach case, nothing in this Agreement shall require, or be construed to require, (i) Parent or any of its Subsidiaries to take or refrain from taking any action (including any divestiture, holding separate any business or assets or other similar action) or to agree to any restriction or condition with respect to the transactions contemplated by the Transaction Documents. Each Party shall as promptly as reasonably practicable inform the other of any assetscommunication with or from, operationsand any proposed understanding, business undertaking or the conduct of business of Parent or agreement with, any of its Subsidiaries Government Authority regarding such applications and (ii) Parent, the Company or filings. Neither Party nor any of their respective Subsidiaries Representatives shall agree to take participate in any substantive meeting or refrain from taking discussion with any action (Government Authority in respect of any filing, investigation or inquiry concerning the transactions contemplated by this Agreement unless it consults with the other Party in advance and, to the extent permitted by such Government Authority, gives the other Party the opportunity to attend; provided, however, that Purchaser shall not be required to provide Parent or its counsel with an opportunity to attend and/or participate in any meetings, conference calls or other communications that may be held with OSFI in connection with approvals required under the Bank Act or the TLCA; provided, further, that Purchaser shall, as promptly as practicable, provide SC1:3314648.6 reports on such meetings, conference calls or other communications to Parent or its counsel, which reports shall include a comprehensive summary of the subject matter of such meetings, calls and communications, including any divestitureissues, holding separate questions or concerns raised in connection with the transactions contemplated hereby. The Parties shall consult and reasonably cooperate with one another in connection with any business analyses, appearances, presentations, memoranda, briefs, arguments, opinions and proposals made or assets submitted by or other similar action) on behalf of either Party in connection with all meetings, actions and proceedings under or to agree relating to any restriction or condition applicable Laws in connection with the transactions contemplated by this Agreement (including, with respect to any assetsmaking a particular filing, operationsby providing copies of all such documents to the non-filing Party prior to filing, business giving due consideration to all reasonable additions, deletions or changes suggested in connection therewith); provided, however, that in respect of the approvals required under the Bank Act or the conduct TLCA, any confidential information shall be redacted and provided only to legal counsel to the Parent. Any such provision of business information by one Party to the other may be made on a counsel-only basis to the extent required under applicable Law, and any such materials may be redacted (i) to remove references concerning the valuation of the Company Target Companies, (ii) as necessary to comply with contractual arrangements, (iii) as necessary to address reasonable attorney-client or other privilege or confidentiality concerns or (iv) as otherwise necessary to comply with applicable Law.
(c) Without limiting the generality of this Section 5.3, Purchaser agrees to use its reasonable best efforts (1) to obtain any and all consents, registrations, approvals, waivers, orders, interpretive guidance, exemptions, Permits and authorizations necessary to be obtained from any Government Authority (including the Required Governmental Approvals) to cause the transactions contemplated by this Agreement to occur prior to the Outside Date and (2) to avoid or eliminate each and every impediment to obtaining any and all consents, registrations, approvals, waivers, orders, interpretive guidance, exemptions, Permits and authorizations necessary to be obtained from any Government Authority (including the Required Governmental Approvals) to cause the transactions contemplated by this Agreement to occur prior to the Outside Date.
(d) The Parties shall 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 either Party or its SubsidiariesAffiliates (as the case may be) or, ifto its Knowledge, its Representatives from any Government Authority with respect to the transactions contemplated by this Agreement, in each case to the case extent permitted by applicable Law. The Parties shall give prompt notice to each other of this clause (ii), any such action, failure to act, restriction, condition development or agreementcombination of developments that, individually or in the aggregate, would is reasonably be likely to have a Company Material Adverse Effect (read without regard prevent, materially delay or materially impair its respective ability to consummate the exceptions set forth therein and without giving effect to clause (A) thereof) (except as provided in the immediately preceding sentence, the occurrence of any of the matters specified in clause (i) or clause (ii) above shall constitute a “Regulatory Material Adverse Effect”). In addition, in measuring whether a Regulatory Material Adverse Effect has occurred, the expected loss of any reasonably expected synergies (both cost and revenue) relating to any restriction or condition shall be taken into account as if the Company had an adverse effect to its financial condition and results of operations equal to the expected amount of applicable synergies affected by any such restriction or condition. The Company and its Subsidiaries shall not agree to any actions, restrictions or conditions with respect to obtaining any consents, registrations, approvals, permits, expirations of waiting periods or authorizations in connection with the Merger and the other transactions contemplated by this Agreement without the prior written consent of Parent (which, subject to this Section 6.5(a) may be withheld in Parent’s sole discretion). Subject to applicable Laws relating to the exchange of information, Parent and the Company shall have the right to review in advance, and to the extent practicable each will consult the other on, all of the information relating to Parent or the Company, as the case may be, and any of their respective Subsidiaries, that appears in any filing made with, or written materials submitted to, any third party and/or any Governmental Entity in connection with the Merger and the other transactions contemplated by this Agreement. To , including the extent permitted by applicable Law, each party shall provide the other with copies of all correspondence between it (or its advisors) and any Governmental Entity relating failure to satisfy a condition to the Merger and Closing set forth in Article VI; provided, however, that no such notification shall affect the other transactions contemplated by this Agreement andrepresentations, warranties, covenants or obligations of the Parties or the conditions to the extent reasonably practicable, all telephone calls and meetings with a Governmental Entity regarding obligations of the transactions contemplated by Parties under this Agreement shall include representatives of Parent and the Company. In exercising the foregoing rights, the Company and Parent each shall act reasonably and as promptly as reasonably practicableAgreement.
Appears in 1 contract
Cooperation. If Executive becomes entitled to benefits under Section 2 and/or Section 3 of this Agreement, Executive agrees, for a one-year period following the Date of Termination, to provide reasonable cooperation to the Partnership Group in response to reasonable requests made by the Company for information or assistance, including but not limited to, participating upon reasonable notice in conferences and meetings, providing documents or information, aiding in the analysis of documents, or complying with any other reasonable requests by the Company including execution of any agreements that are reasonably necessary, provided such cooperation relates to matters concerning Executive’s duties with the Partnership Group and the requests do not, in the good faith opinion of Executive, materially interfere with Executive’s other activities
(I) Section 6(f) of the Existing COC Agreement is hereby amended by deleting the existing notice address for the Company and replacing it with the following: If to Company: CSI Compressco GP LLC ▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ Attention: Chief Executive Officer
(J) Section 6(g) of the Existing COC Agreement is hereby amended by deleting the first sentence of Section 6(g) and replacing it with the following: No provisions of this Agreement may be modified, waived or discharged unless such waiver, modification or discharge is agreed to in writing signed by Executive and by the Chairman of the Board or the Chief Executive Officer of the Company.
(K) Number 7 of Annex I to the Existing COC Agreement is hereby amended by deleting 7(b)(i)-(v) in its entirety and adding the following after 7(a) and before the paragraph in Number 7 that begins “Notwithstanding the foregoing, however, in any circumstance or transaction in which compensation would be subject to the income tax under the Section 409A Rules…”: The Company and Parent shallExecutive agree that any sale or merger of any kind involving only Spartan Energy Holdco, subject to Section 6.2LLC, cooperate with each other Spartan Energy Partners LP, and/or any of either of their Affiliates and use, and shall cause their respective Subsidiaries to, use their respective reasonable best efforts to take Company or cause to be taken all actions, and do or cause to be done all things, necessary, proper or advisable on its part under this Agreement and applicable Laws to consummate and make effective the Merger and the other transactions contemplated by this Agreement as promptly as reasonably practicable (it being understood that nothing contained in this Agreement shall require Parent to obtain any consents, registrations, approvals, permits, expirations of waiting periods or authorizations prior to the Termination Date), including preparing and filing as promptly as reasonably practicable all documentation to effect all necessary notices, reports and other filings (including by filing no later than 20 calendar days after the date of this Agreement all applications required to be filed with the FCC and the notification and report form required under the HSR Act; provided that the failure to file within such 20-day period Partnership shall not constitute a breach Change of Control for the purposes of this Agreement.
(L) and to obtain as promptly as reasonably practicable all consents, registrations, approvals, permits, expirations Number 19 of waiting periods 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. To the extent necessary or advisable to obtain any consent, registration, approval, permit, expiration of waiting period or authorization from any Governmental Entity in order to consummate the Merger prior Annex I to the Termination Date, (x) Parent shall, Existing COC Agreement is hereby amended by deleting the existing Number 19 and shall cause its Subsidiaries to, and commit to cause the Company and its Subsidiaries to, take the actions and agree to those undertakings set forth on Section 6.5(a) of the Parent Disclosure Letter and (y) Parent shall, and shall cause its Subsidiaries to take, other actions involving Parent and its Subsidiaries that are in the aggregate de minimis (for the avoidance of doubt, not involving any divestiture, holding separate any business or assets or other similar action). Except as provided in the immediately preceding sentence, nothing in this Agreement shall require, or be construed to require, (i) Parent or any of its Subsidiaries to take or refrain from taking any action (including any divestiture, holding separate any business or assets or other similar action) or to agree to any restriction or condition with respect to any assets, operations, business or the conduct of business of Parent or any of its Subsidiaries and (ii) Parent, the Company or any of their respective Subsidiaries to take or refrain from taking any action (including any divestiture, holding separate any business or assets or other similar action) or to agree to any restriction or condition with respect to any assets, operations, business or the conduct of business of the Company and its Subsidiaries, if, in the case of this clause (ii), any such action, failure to act, restriction, condition or agreement, individually or in the aggregate, would reasonably be likely to have a Company Material Adverse Effect (read without regard to the exceptions set forth therein and without giving effect to clause (A) thereof) (except as provided in the immediately preceding sentence, the occurrence of any of the matters specified in clause (i) or clause (ii) above shall constitute a “Regulatory Material Adverse Effect”). In addition, in measuring whether a Regulatory Material Adverse Effect has occurred, the expected loss of any reasonably expected synergies (both cost and revenue) relating to any restriction or condition shall be taken into account as if the Company had an adverse effect to its financial condition and results of operations equal to the expected amount of applicable synergies affected by any such restriction or condition. The Company and its Subsidiaries shall not agree to any actions, restrictions or conditions with respect to obtaining any consents, registrations, approvals, permits, expirations of waiting periods or authorizations in connection replacing it with the Merger and the other transactions contemplated by this Agreement without the prior written consent of Parent (which, subject to this Section 6.5(a) may be withheld in Parent’s sole discretion). Subject to applicable Laws relating to the exchange of information, Parent and the Company shall have the right to review in advance, and to the extent practicable each will consult the other on, all of the information relating to Parent or the Company, as the case may be, and any of their respective Subsidiaries, that appears in any filing made with, or written materials submitted to, any third party and/or any Governmental Entity in connection with the Merger and the other transactions contemplated by this Agreement. To the extent permitted by applicable Law, each party shall provide the other with copies of all correspondence between it (or its advisors) and any Governmental Entity relating to the Merger and the other transactions contemplated by this Agreement and, to the extent reasonably practicable, all telephone calls and meetings with a Governmental Entity regarding the transactions contemplated by this Agreement shall include representatives of Parent and the Company. In exercising the foregoing rights, the Company and Parent each shall act reasonably and as promptly as reasonably practicable.following:
Appears in 1 contract
Cooperation. The Company Each of Autobytel and Parent shall, subject to Section 6.2, cooperate with each other and use, and Autoweb shall cause their respective Subsidiaries to, use their respective ----------- commercially reasonable best efforts to take or cause to resolve such objections, if any, as may be taken all actions, and do or cause to be done all things, necessary, proper or advisable on its part under this Agreement and applicable Laws to consummate and make effective the Merger and the other transactions contemplated asserted by this Agreement as promptly as reasonably practicable (it being understood that nothing contained in this Agreement shall require Parent to obtain any consents, registrations, approvals, permits, expirations of waiting periods or authorizations prior to the Termination Date), including preparing and filing as promptly as reasonably practicable all documentation to effect all necessary notices, reports and other filings (including by filing no later than 20 calendar days after the date of this Agreement all applications required to be filed with the FCC and the notification and report form required under the HSR Act; provided that the failure to file within such 20-day period shall not constitute a breach of this Agreement) and to obtain as promptly as reasonably practicable all consents, registrations, approvals, permits, expirations of waiting periods 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. To the extent necessary or advisable to obtain any consent, registration, approval, permit, expiration of waiting period or authorization from any Governmental Entity in order to consummate the Merger prior to the Termination Date, (x) Parent shall, and shall cause its Subsidiaries to, and commit to cause the Company and its Subsidiaries to, take the actions and agree to those undertakings set forth on Section 6.5(a) of the Parent Disclosure Letter and (y) Parent shall, and shall cause its Subsidiaries to take, other actions involving Parent and its Subsidiaries that are in the aggregate de minimis (for the avoidance of doubt, not involving any divestiture, holding separate any business or assets or other similar action). Except as provided in the immediately preceding sentence, nothing in this Agreement shall require, or be construed to require, (i) Parent or any of its Subsidiaries to take or refrain from taking any action (including any divestiture, holding separate any business or assets or other similar action) or to agree to any restriction or condition with respect to any assets, operations, business or the conduct of business of Parent or any of its Subsidiaries and (ii) Parent, the Company or any of their respective Subsidiaries to take or refrain from taking any action (including any divestiture, holding separate any business or assets or other similar action) or to agree to any restriction or condition with respect to any assets, operations, business or the conduct of business of the Company and its Subsidiaries, if, in the case of this clause (ii), any such action, failure to act, restriction, condition or agreement, individually or in the aggregate, would reasonably be likely to have a Company Material Adverse Effect (read without regard to the exceptions set forth therein and without giving effect to clause (A) thereof) (except as provided in the immediately preceding sentence, the occurrence of any of the matters specified in clause (i) or clause (ii) above shall constitute a “Regulatory Material Adverse Effect”). In addition, in measuring whether a Regulatory Material Adverse Effect has occurred, the expected loss of any reasonably expected synergies (both cost and revenue) relating to any restriction or condition shall be taken into account as if the Company had an adverse effect to its financial condition and results of operations equal to the expected amount of applicable synergies affected by any such restriction or condition. The Company and its Subsidiaries shall not agree to any actions, restrictions or conditions with respect to obtaining any consents, registrations, approvals, permits, expirations of waiting periods or authorizations in connection with the Merger and the other transactions contemplated by this Agreement without the prior written consent of Parent (which, subject to this Section 6.5(a) may be withheld in Parent’s sole discretion). Subject to applicable Laws relating to the exchange of information, Parent and the Company shall have the right to review in advance, and to the extent practicable each will consult the other on, all of the information relating to Parent or the Company, as the case may be, and any of their respective Subsidiaries, that appears in any filing made with, or written materials submitted to, any third party and/or any Governmental Entity in connection with the Merger and the other transactions contemplated by this Agreement. To the extent permitted by applicable Law, each party shall provide the other with copies of all correspondence between it (or its advisors) and any Governmental Entity relating to the Merger and the other transactions contemplated by this Agreement and, to the extent reasonably practicable, all telephone calls and meetings with a Governmental Entity regarding the transactions contemplated by this Agreement shall include representatives under the HSR Act, the ▇▇▇▇▇▇▇ Act, as amended, the ▇▇▇▇▇▇▇ Act, as amended, the Federal Trade Commission Act, as amended, and any other federal, state or foreign statutes, rules, regulations, orders or decrees that are designed to prohibit, restrict or regulate actions having the purpose or effect of Parent and the Companymonopolization or restraint of trade (collectively, "Antitrust Laws"). In exercising connection therewith, if any administrative or judicial action or proceeding is instituted (or threatened to be instituted) challenging any transaction contemplated by this Agreement as violative of any Antitrust Law, each of Autobytel and Autoweb shall cooperate and use its reasonable best efforts vigorously to contest and resist any such action or proceeding and to have vacated, lifted, reversed, or overturned any decree, judgment, injunction or other order, whether temporary, preliminary or permanent (each an "Order"), that is in effect and that prohibits, prevents, or restricts consummation of the foregoing rightsMerger or any such other transactions, unless by mutual agreement Autobytel and Autoweb decide that litigation is not in their respective best interests. Notwithstanding the Company provisions of the immediately preceding sentence, it is expressly understood and Parent each agreed that Autobytel shall act reasonably have no obligation to litigate or contest any administrative or judicial action or proceeding or any Order beyond September 30, 2001. Each of Autobytel and Autoweb shall use its reasonable best efforts to take such action as may be required to cause the expiration of the notice periods under the HSR Act or other Antitrust Laws with respect to such transactions as promptly as possible after the execution of this Agreement. Autobytel and Autoweb also agree to take any and all of the following actions to the extent necessary to obtain the approval of any Governmental Entity with jurisdiction over the enforcement of any applicable laws regarding the transactions contemplated hereby: entering into negotiations; providing information required by law or governmental regulation; and substantially complying with any second request for information pursuant to the Antitrust Laws. Notwithstanding anything to the contrary in this Section 5.7, neither the ----------- Autobytel nor Autoweb shall be required to take any action that would reasonably practicablebe expected to substantially impair the overall benefits expected, as of the date hereof, to be realized from the consummation of the transactions contemplated hereby.
Appears in 1 contract
Cooperation. The Company (a) Subject to the terms and Parent shallconditions set forth in this Agreement, subject to Section 6.2, cooperate with each other and use, and party hereto shall cause their respective Subsidiaries to, use their respective 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 on its part under this Agreement and applicable Laws to consummate and make effective the Merger and the other transactions contemplated hereby and by this Agreement the Transaction Documents as promptly as reasonably practicable (it being understood that nothing contained practicable, and in this Agreement shall require Parent to obtain any consents, registrations, approvals, permits, expirations of waiting periods or authorizations case prior to the Termination Outside Date), including preparing and filing as promptly as reasonably practicable all documentation using reasonable best efforts to effect all necessary noticessatisfy the conditions to the Closing set forth in Article X; provided, reports and other filings however, that (including i) in the case of obtaining consents in respect of any Material Contracts, the parties’ obligations to take action shall be governed by filing no later than 20 calendar days after the date of this Agreement all applications required to be filed with the FCC and the notification and report form required under the HSR Act; provided that the failure to file within such 20-day period shall not constitute a breach of this AgreementSection 6.8(b) and to obtain as promptly as reasonably practicable all consents, registrations, approvals, permits, expirations (ii) in the case of waiting periods obtaining the Governmental Approvals 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. To the extent necessary or advisable to obtain any consent, registration, approval, permitauthorization, expiration of waiting period clearance from, or authorization from filing, notification or registration with, any Governmental Entity in order Entity, the parties’ obligations to consummate the Merger prior to the Termination Datetake actions shall be governed by Section 7.3; provided, (x) Parent shallfurther, and shall cause its Subsidiaries to, and commit to cause the Company and its Subsidiaries to, take the actions and agree to those undertakings set forth on Section 6.5(a) of the Parent Disclosure Letter and (y) Parent shall, and shall cause its Subsidiaries to take, other actions involving Parent and its Subsidiaries that are in the aggregate de minimis (for the avoidance of doubt, not involving any divestiture, holding separate any business or assets or other similar action). Except as provided in the immediately preceding sentence, nothing in this Agreement Section 6.8(a) shall requirerequire any party to waive any of its conditions to the Closing. The “reasonable best efforts” of Sellers shall not require any Seller, the Company or be construed their respective Representatives to requireexpend any amount of money or provide any other consideration to (a) remedy any breach of any representation or warranty hereunder, (ib) Parent obtain any consent required for consummation of the transactions contemplated hereby or (c) provide financing to Buyer or any of its Subsidiaries Affiliates for consummation of the transactions contemplated hereby; provided, however, that if any Seller, the Company, or their respective Representatives elect to take or refrain from taking remedy any action (including such breach, neither any divestitureSeller, holding separate any business or assets or other similar action) or to agree to any restriction or condition with respect to any assets, operations, business or the conduct of business of Parent or any of its Subsidiaries and (ii) Parent, nor the Company or any of their respective Subsidiaries Representatives, shall be deemed to take be in breach of such representation or refrain from taking any action (including any divestiturewarranty, holding separate any business or assets or other similar action) or to agree to any restriction or condition with respect to any assets, operations, business or the conduct of business of the Company and its Subsidiaries, if, in the case of this clause (ii), any such action, failure to act, restriction, condition or agreement, individually or in violation of any covenant, for purposes of determining Buyer’s obligations to consummate the aggregate, would reasonably be likely to have a Company Material Adverse Effect transactions contemplated hereby.
(read without regard b) Prior to the exceptions set forth therein and without giving effect to clause (A) thereof) (except as provided in the immediately preceding sentenceClosing, the occurrence parties shall use reasonable best efforts to obtain any third-party consents in respect of any of the matters specified in clause (i) or clause (ii) above shall constitute a “Regulatory Material Adverse Effect”). In addition, in measuring whether a Regulatory Material Adverse Effect has occurred, the expected loss of any reasonably expected synergies (both cost and revenue) relating to any restriction or condition shall be taken into account as if the Company had an adverse effect to its financial condition and results of operations equal to the expected amount of applicable synergies affected by any such restriction or condition. The Company and its Subsidiaries shall not agree to any actions, restrictions or conditions with respect to obtaining any consents, registrations, approvals, permits, expirations of waiting periods or authorizations Contracts required in connection with the Merger and the other transactions contemplated hereby and by this Agreement without the prior written consent of Parent (whichTransaction Documents; provided, subject to this Section 6.5(a) may be withheld in Parent’s sole discretion). Subject to applicable Laws relating to the exchange of information, Parent and the Company shall have the right to review in advance, and to the extent practicable each will consult the other on, all of the information relating to Parent or the Company, as the case may be, and any of their respective Subsidiarieshowever, that appears such “reasonable best efforts” shall not require any party to expend any money (other than de minimis amounts), incur any liability or provide any other consideration or commence, defend or participate in any filing made with, Proceeding or written materials submitted to, offer or grant any accommodation (financial or otherwise) to any third party and/or any Governmental Entity in connection with the Merger and the other transactions contemplated by this Agreement. To the extent permitted by applicable Law, each party shall provide the other with copies of all correspondence between it (or its advisors) and any Governmental Entity relating to the Merger and the other transactions contemplated by this Agreement and, to the extent reasonably practicable, all telephone calls and meetings with a Governmental Entity regarding the transactions contemplated by this Agreement shall include representatives of Parent and the Company. In exercising the foregoing rights, the Company and Parent each shall act reasonably and as promptly as reasonably practicableparty.
Appears in 1 contract
Sources: Share Purchase Agreement (Spirit AeroSystems Holdings, Inc.)
Cooperation. The (a) Prior to Closing, each of the Company and Parent Acquiror shall, subject to Section 6.2and each of them shall cause its respective Subsidiaries (as applicable) and, cooperate with each other and usein the case of the Company, Vieco 10 Limited, a company limited by shares under the laws of the British Virgin Islands, and shall cause its and their respective Subsidiaries officers, directors, managers, employees, consultants, counsel, accounts, agents and other representatives to, use their respective reasonable best efforts reasonably cooperate in a timely manner in connection with any financing arrangement the parties mutually agree to take or cause to be taken all actions, and do or cause to be done all things, necessary, proper or advisable on its part under this Agreement and applicable Laws to consummate and make effective the Merger and the other transactions contemplated by this Agreement as promptly as reasonably practicable (it being understood that nothing contained seek in this Agreement shall require Parent to obtain any consents, registrations, approvals, permits, expirations of waiting periods or authorizations prior to the Termination Date), including preparing and filing as promptly as reasonably practicable all documentation to effect all necessary notices, reports and other filings (including by filing no later than 20 calendar days after the date of this Agreement all applications required to be filed connection with the FCC and the notification and report form required under the HSR Act; provided that the failure to file within such 20-day period shall not constitute a breach of this Agreement) and to obtain as promptly as reasonably practicable all consents, registrations, approvals, permits, expirations of waiting periods 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. To , including the extent necessary PIPE Investment (it being understood and agreed that the consummation of any such financing by the Company or advisable to obtain any consent, registration, approval, permit, expiration of waiting period or authorization from any Governmental Entity in order to consummate the Merger prior Acquiror shall be subject to the Termination Dateparties’ mutual agreement), including (if mutually agreed by the parties) (a) by providing such information and assistance as the other party may reasonably request (including by providing such cooperation and assistance as may be reasonably requested in connection with the preparation of any investor presentations or other offering materials in connection with the PIPE Investment), (xb) Parent shallgranting such access to the other party and its representatives as may be reasonably necessary for their due diligence, and shall cause its Subsidiaries to(c) participating in a reasonable number of meetings, presentations, road shows, drafting sessions, due diligence sessions with respect to such financing efforts (including direct contact between senior management and commit to cause other representatives of the Company and its Subsidiaries toat reasonable times and locations). All such cooperation, take assistance and access shall be granted during normal business hours and shall be granted under conditions that shall not unreasonably interfere with the actions business and agree to those undertakings set forth on Section 6.5(a) operations of the Parent Disclosure Letter and Company, Acquiror, or their respective auditors.
(yb) Parent shallFrom the date of the announcement of this Agreement or the transactions contemplated hereby (pursuant to any applicable public communication made in compliance with Section 11.12), until the Closing Date, Acquiror shall use its commercially reasonable efforts to, and shall cause instruct its Subsidiaries to takefinancial advisors to, other actions involving Parent keep the Company and its Subsidiaries that are financial advisors reasonably informed with respect to the PIPE Investment and material changes in the aggregate de minimis (for rotation of the avoidance of doubtAcquiror Common Shares during such period, not involving any divestiture, holding separate any business or assets or other similar action). Except as provided in the immediately preceding sentence, nothing in this Agreement shall require, or be construed to require, including by (i) Parent or any of its Subsidiaries to take or refrain from taking any action (including any divestiture, holding separate any business or assets or other similar action) or to agree to any restriction or condition with respect to any assets, operations, business or the conduct of business of Parent or any of its Subsidiaries providing regular updates and (ii) Parentreasonably consulting and cooperating with, and considering in good faith any feedback from, the Company or any of their respective Subsidiaries to take or refrain from taking any action (including any divestiture, holding separate any business or assets or other similar action) or to agree to any restriction or condition its financial advisors with respect to any assetssuch matters; provided, operations, business or the conduct that each of business of Acquiror and the Company acknowledges and its Subsidiaries, if, in agrees that Acquiror’s and the case of this clause (ii), any such action, failure to act, restriction, condition or agreement, individually or in the aggregate, would reasonably Company’s respective financial advisors shall be likely to have a Company Material Adverse Effect (read without regard entitled to the exceptions set forth therein fees and without giving effect to clause (A) thereof) (except as provided in the immediately preceding sentence, the occurrence of any of the matters specified in clause (i) or clause (ii) above shall constitute a “Regulatory Material Adverse Effect”). In addition, in measuring whether a Regulatory Material Adverse Effect has occurred, the expected loss of any reasonably expected synergies (both cost and revenue) relating to any restriction or condition shall be taken into account as if the Company had an adverse effect to its financial condition and results of operations equal to the expected amount of applicable synergies affected by any such restriction or condition. The Company and its Subsidiaries shall not agree to any actions, restrictions or conditions reimbursements with respect to obtaining any consentsthe PIPE set forth in the letter agreements, registrationseach dated June 20, approvals2021, permits, expirations of waiting periods or authorizations in connection with between the Merger Acquiror and the other transactions contemplated by this Agreement without the prior written consent of Parent (which, subject to this Section 6.5(a) may be withheld in Parent’s sole discretion). Subject to applicable Laws relating to the exchange of information, Parent and the Company shall have the right to review in advance, and to the extent practicable each will consult the other on, all of the information relating to Parent or the Company, as the case may be, and any of their respective Subsidiaries, that appears in any filing made with, or written materials submitted to, any third party and/or any Governmental Entity in connection with the Merger and the other transactions contemplated by this Agreement. To the extent permitted by applicable Law, each party shall provide the other with copies of all correspondence between it (or its advisors) and any Governmental Entity relating to the Merger and the other transactions contemplated by this Agreement and, to the extent reasonably practicable, all telephone calls and meetings with a Governmental Entity regarding the transactions contemplated by this Agreement shall include representatives of Parent and the Company. In exercising the foregoing rights, the Company and Parent each shall act reasonably and as promptly as reasonably practicablefinancial advisor.
Appears in 1 contract
Cooperation. The Company and Parent shallWithout limiting any of the obligations of the parties hereunder, subject each of the parties to Section 6.2, this Agreement shall cooperate fully with each other and usetheir respective counsel, accountants, agents and other Representatives in all commercially reasonable respects in connection with any actions required to be taken as part of their respective obligations under the Transaction Documents, and the parties hereto shall cause use their commercially reasonable efforts to consummate the transactions contemplated hereby and to fulfill their respective Subsidiaries obligations under the Transaction Documents as expeditiously as practicable provided, however, neither Cingular, AWS, nor AWS PCS shall have any obligation to Triton or its Affiliates to cause the closing of the Merger. Subject to the terms and conditions of this Agreement, from time to time prior to, at and after the Closing, each party hereto will use their respective commercially reasonable best efforts to take take, or cause to be taken taken, all actions, such actions and to do or cause to be done done, all things, necessary, proper or advisable on its part under this Agreement applicable Legal Requirements and applicable Laws regulations to consummate and make effective the Merger and the other transactions contemplated by this Agreement the Transaction Documents, including, without limitation, executing and delivering such documents as promptly as reasonably practicable (it being understood that nothing contained in this Agreement shall require Parent to obtain any consents, registrations, approvals, permits, expirations of waiting periods or authorizations prior to the Termination Date), including preparing and filing as promptly as reasonably practicable all documentation to effect all necessary notices, reports and other filings (including by filing no later than 20 calendar days after the date of this Agreement all applications required to be filed with the FCC and the notification and report form required under the HSR Act; provided that the failure to file within such 20-day period shall not constitute a breach of this Agreement) and to obtain as promptly as reasonably practicable all consents, registrations, approvals, permits, expirations of waiting periods 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 parties being advised by this Agreement. To the extent necessary or advisable to obtain any consent, registration, approval, permit, expiration of waiting period or authorization from any Governmental Entity in order to consummate the Merger prior to the Termination Date, (x) Parent shall, and counsel shall cause its Subsidiaries to, and commit to cause the Company and its Subsidiaries to, take the actions and agree to those undertakings set forth on Section 6.5(a) of the Parent Disclosure Letter and (y) Parent shall, and shall cause its Subsidiaries to take, other actions involving Parent and its Subsidiaries that are in the aggregate de minimis (for the avoidance of doubt, not involving any divestiture, holding separate any business or assets or other similar action). Except as provided in the immediately preceding sentence, nothing in this Agreement shall require, or be construed to require, (i) Parent or any of its Subsidiaries to take or refrain from taking any action (including any divestiture, holding separate any business or assets or other similar action) or to agree to any restriction or condition with respect to any assets, operations, business or the conduct of business of Parent or any of its Subsidiaries and (ii) Parent, the Company or any of their respective Subsidiaries to take or refrain from taking any action (including any divestiture, holding separate any business or assets or other similar action) or to agree to any restriction or condition with respect to any assets, operations, business or the conduct of business of the Company and its Subsidiaries, if, in the case of this clause (ii), any such action, failure to act, restriction, condition or agreement, individually or in the aggregate, would reasonably be likely to have a Company Material Adverse Effect (read without regard to the exceptions set forth therein and without giving effect to clause (A) thereof) (except as provided in the immediately preceding sentence, the occurrence of any of the matters specified in clause (i) or clause (ii) above shall constitute a “Regulatory Material Adverse Effect”). In addition, in measuring whether a Regulatory Material Adverse Effect has occurred, the expected loss of any reasonably expected synergies (both cost and revenue) relating to any restriction or condition shall be taken into account as if the Company had an adverse effect to its financial condition and results of operations equal to the expected amount of applicable synergies affected by any such restriction or condition. The Company and its Subsidiaries shall not agree to any actions, restrictions or conditions with respect to obtaining any consents, registrations, approvals, permits, expirations of waiting periods or authorizations request in connection with the Merger and the other transactions contemplated by this Agreement without the prior written consent consummation of Parent (which, subject to this Section 6.5(a) may be withheld in Parent’s sole discretion). Subject to applicable Laws relating to the exchange of information, Parent and the Company shall have the right to review in advance, and to the extent practicable each will consult the other on, all of the information relating to Parent or the Company, as the case may be, and any of their respective Subsidiaries, that appears in any filing made with, or written materials submitted to, any third party and/or any Governmental Entity in connection with the Merger and the other transactions contemplated by this Agreement. To After the extent permitted by applicable LawClosing, each party shall of the parties to this Agreement will execute any further documents consistent with the Transaction Documents, provide any further reasonably available information, and take any other actions not imposing significant financial or operational obligations in excess of the other with copies obligations imposed by the Transaction Documents, upon the request of all correspondence between it (or its advisors) and any Governmental Entity relating other party to the Merger and the other transactions contemplated by this Agreement andbased upon any such other party's reasonable determination that those actions are required to enable such other party to effectuate the Transaction Documents. No party to this Agreement shall take any action which is materially inconsistent with its obligations under the Transaction Documents. Each party to this Agreement shall notify each other party to this Agreement of any litigation, arbitration or administrative proceeding pending or, to the extent reasonably practicableits knowledge, all telephone calls and meetings with a Governmental Entity regarding threatened, which challenges any of the transactions contemplated by this Agreement the Transaction Documents or which threatens to delay them, and shall include representatives use commercially reasonable efforts to take such steps as may be necessary to remove any such impediment to the consummation of Parent and the Company. In exercising transactions contemplated by the foregoing rights, the Company and Parent each shall act reasonably and as promptly as reasonably practicableTransaction Documents.
Appears in 1 contract
Sources: Agreement (Triton PCS Holdings Inc)
Cooperation. The Company Each Party shall reasonably cooperate fully, as and Parent shallto the extent reasonably requested by any other Party, in connection with: (i) the filing of Tax Returns relating to the Business or the Purchased Assets; and (ii) subject to Section 6.2the terms and conditions set forth in Article 6, cooperate with each other and usebelow, and shall cause their respective Subsidiaries to, use their respective 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 on its part under this Agreement and applicable Laws to consummate and make effective the Merger and the other transactions contemplated by this Agreement as promptly as reasonably practicable (it being understood that nothing contained in this Agreement shall require Parent to obtain any consents, registrations, approvals, permits, expirations of waiting periods or authorizations prior to the Termination Date), including preparing and filing as promptly as reasonably practicable all documentation to effect all necessary notices, reports and other filings Litigation (including insurance claims) brought by filing no later than 20 calendar days after the date of this Agreement all applications required to be filed with the FCC and the notification and report form required under the HSR Act; provided that the failure to file within such 20-day period shall not constitute a breach of this Agreement) and to obtain as promptly as reasonably practicable all consents, registrations, approvals, permits, expirations of waiting periods and authorizations necessary or advisable to be obtained from against any third party and/or in connection with: (A) any Governmental Entity in order to consummate the Merger or any of the other transactions transaction contemplated by this Agreement; or (B) any fact or condition relating to the Business, the Purchased Assets or the Assumed Liabilities. To Subject to the terms and conditions set forth in Article 6, below, such cooperation shall include making available to the requesting Party, at such times and under such circumstances so as not to unreasonably disrupt business, the relevant information, documents, records, employees and independent contractors of the cooperating Party, allowing the relevant personnel of the cooperating Party to assist the requesting Party in participating in any such matter (including providing testimony in Litigation), executing and delivering documents or instruments and taking all such action as the requesting Party reasonably requests in connection with such matter; provided, however, that the requesting Party shall promptly reimburse the cooperating Party for all out-of-pocket costs, for a pro-rata portion of the salary (including fringe benefits with such pro-rata portion determined based upon the time spent in connection with cooperation) and for travel and subsistence expenses directly relating to such cooperation of any of the cooperating Party’s employees who assist the requesting Party (unless the requesting party is entitled to indemnification from the cooperating Party therefor under Article 6). The Parties agree, as and to the extent necessary or advisable reasonably requested by a Party, to use their respective best efforts to obtain any consent, registration, approval, permit, expiration of waiting period certificate or authorization other document from any Governmental Entity in order to consummate the Merger prior to the Termination Date, (x) Parent shall, and shall cause its Subsidiaries to, and commit to cause the Company and its Subsidiaries to, take the actions and agree to those undertakings set forth on Section 6.5(a) of the Parent Disclosure Letter and (y) Parent shall, and shall cause its Subsidiaries to take, other actions involving Parent and its Subsidiaries that are in the aggregate de minimis (for the avoidance of doubt, not involving any divestiture, holding separate any business or assets or other similar action). Except Person as provided in the immediately preceding sentencemay be necessary to mitigate, nothing in this Agreement shall require, reduce or eliminate any Tax that could be construed to require, (i) Parent or any of its Subsidiaries to take or refrain from taking any action imposed (including any divestiture, holding separate any business or assets or other similar action) or to agree to any restriction or condition with respect to any assets, operations, business or the conduct of business of Parent or any of its Subsidiaries and (ii) Parent, the Company or any of their respective Subsidiaries to take or refrain from taking any action (including any divestiture, holding separate any business or assets or other similar action) or to agree to any restriction or condition with respect to any assets, operations, business or the conduct of business of the Company and its Subsidiaries, if, in the case of this clause (ii), any such action, failure to act, restriction, condition or agreement, individually or in the aggregate, would reasonably be likely to have a Company Material Adverse Effect (read without regard to the exceptions set forth therein and without giving effect to clause (A) thereof) (except as provided in the immediately preceding sentence, the occurrence of any of the matters specified in clause (i) or clause (ii) above shall constitute a “Regulatory Material Adverse Effect”transactions contemplated hereby). In additionThe Parties further agree, in measuring whether a Regulatory Material Adverse Effect has occurred, the expected loss of any reasonably expected synergies (both cost and revenue) relating to any restriction or condition shall be taken into account as if the Company had an adverse effect to its financial condition and results of operations equal to the expected amount of applicable synergies affected by any such restriction or condition. The Company and its Subsidiaries shall not agree to any actions, restrictions or conditions with respect to obtaining any consents, registrations, approvals, permits, expirations of waiting periods or authorizations in connection with the Merger and the other transactions contemplated by this Agreement without the prior written consent of Parent (which, subject to this Section 6.5(a) may be withheld in Parent’s sole discretion). Subject to applicable Laws relating to the exchange of information, Parent and the Company shall have the right to review in advance, and to the extent practicable each will consult reasonably requested by the other onParty, to provide such other Party with all information that either Party may be required to report pursuant to Section 6043 of the information relating to Parent or the Company, as the case may be, Code and any of their respective Subsidiaries, that appears in any filing made with, or written materials submitted to, any third party and/or any Governmental Entity in connection with the Merger and the other transactions contemplated by this Agreement. To the extent permitted by applicable Law, each party shall provide the other with copies of all correspondence between it Treasury Regulations promulgated thereunder (or its advisors) and any Governmental Entity relating to the Merger and the other transactions contemplated by this Agreement and, to the extent reasonably practicable, all telephone calls and meetings with a Governmental Entity regarding the transactions contemplated by this Agreement shall include representatives of Parent and the Company. In exercising the foregoing rights, the Company and Parent each shall act reasonably and as promptly as reasonably practicableif any).
Appears in 1 contract
Sources: Asset Purchase Agreement (Ari Network Services Inc /Wi)
Cooperation. The Company (i) Seller and Parent shallPurchaser will each promptly give notice to the other upon becoming aware that any Action is pending or threatened by or before any Governmental Authority with respect to the acquisition of the Acquired Assets contemplated by this Agreement. Seller and its Affiliates, subject to Section 6.2on the one hand, and Purchaser and its Affiliates, on the other hand, (x) will cooperate with each other in connection with the prosecution, investigation or defense of any such Action, (y) will supply promptly all information reasonably and uselegally requested by the other, by any such court or arbitrator or other Governmental Authority or by any party to any such Action and shall cause their respective Subsidiaries to, (z) will each use their respective reasonable best efforts to take or cause any such Action to be taken all actionsdetermined as promptly as practicable and in a manner which does not impact adversely on, and do or cause to be done all thingsis consistent with, necessary, proper or advisable on its part under this Agreement and applicable Laws to consummate and make effective the Merger and the other transactions contemplated by this Agreement as promptly as reasonably practicable and the Ancillary Agreements.
(it being understood that nothing contained in this Agreement ii) Without limiting the specific obligations of Seller and Purchaser under any agreement or covenant hereunder, Seller and Purchaser shall require Parent each use reasonable best efforts to obtain any consents, registrations, approvals, permits, expirations of waiting periods or authorizations prior (and to the Termination Date)extent necessary, will use its reasonable best efforts to cause its Affiliates to) promptly take, or cause to be taken, all actions and do, or cause to be done, all things necessary or desirable in order to consummate the acquisition of the Acquired Assets contemplated by this Agreement, including preparing satisfaction, but not waiver, of the closing conditions set forth in Articles VIII and filing as promptly as reasonably practicable all documentation to effect all necessary noticesIX. In furtherance of and not in limitation of the foregoing sentence, reports Seller and other Purchaser shall:
(1) make any filings (including by filing no later than 20 calendar days after the date of this Agreement all applications required to be filed with the FCC and the notification and report form required under the HSR Act and the AML in connection with the transactions contemplated hereby, which will be made within five (5) Business Days of the date hereof, for the HSR Act; provided that , and within fifteen (15) days of the failure date hereof for the AML Act, and seek to file within such 20-day period shall not constitute a breach of this Agreement) and to obtain as promptly as reasonably practicable all consents, registrations, approvals, permits, expirations of terminate any waiting periods under the HSR Act and authorizations necessary or advisable the AML as soon as practicable;
(2) use reasonable best efforts to obtain, in a timely manner, any other Consents and Approvals required to be obtained from any third party and/or any Governmental Entity Person in order to consummate connection with the Merger or any consummation of the other transactions contemplated by this Agreement. To ; provided, however, that no party shall be required to pay or commit to pay any amount to (or incur any obligation in favor of) any Person from whom any such Consent may be required (other than nominal filing or application fees); and
(3) furnish the extent necessary or advisable to obtain any consent, registration, approval, permit, expiration of waiting period or authorization from any Governmental Entity other party and the other party’s counsel with all such information as may be reasonably required in order to consummate effectuate the Merger prior foregoing actions.
(iii) Notwithstanding anything to the Termination Date, (x) Parent shall, and shall cause its Subsidiaries to, and commit to cause the Company and its Subsidiaries to, take the actions and agree to those undertakings set forth on Section 6.5(a) of the Parent Disclosure Letter and (y) Parent shall, and shall cause its Subsidiaries to take, other actions involving Parent and its Subsidiaries that are in the aggregate de minimis (for the avoidance of doubt, not involving any divestiture, holding separate any business or assets or other similar action). Except as provided in the immediately preceding sentencecontrary contained herein, nothing in this Agreement shall require, or will be construed deemed to require, (i) Parent require Purchaser or any of its Subsidiaries Affiliates to take (A) make any proposals, execute or refrain from taking carry out any action agreements or submit to any Legal Requirement (1) providing for the license, sale or other disposition or holding separate (through the establishment of a trust or otherwise) of any Assets or categories of Assets (including any divestitureportion of the Acquired Assets), holding separate or (2) seeking to impose any business or assets or other similar action) or to agree to any restriction or condition with respect to any assets, operations, business or limitation on the conduct ability of business of Parent Purchaser or any of its Subsidiaries and Affiliates to conduct its businesses (ii) Parentincluding the Business), the Company or any portion thereof, in a specified manner, or to own such Assets or to acquire, hold or exercise full rights of their respective Subsidiaries ownership of the Acquired Assets or the Business or (B) agree to take or refrain from taking any action (including any divestiture, holding separate any business or assets or other similar action) or that could reasonably be expected to agree adversely impact the benefits expected to any restriction or condition with respect to any assets, operations, business or the conduct of business of the Company be derived by Purchaser and its SubsidiariesAffiliates from the transactions contemplated by this Agreement, ifto avoid or eliminate any impediment that may be asserted under any Legal Requirement governing competition, in the case of this clause monopolies or restrictive trade practices.
(ii), any such action, failure to act, restriction, condition or agreement, individually or in the aggregate, would reasonably be likely to have a Company Material Adverse Effect (read without regard to the exceptions set forth therein and without giving effect to clause (Aiv) thereof) (except as provided in the immediately preceding sentence, the occurrence of any of the matters specified in clause (i) or clause (ii) above shall constitute a “Regulatory Material Adverse Effect”). In addition, in measuring whether a Regulatory Material Adverse Effect has occurred, the expected loss of any reasonably expected synergies (both cost and revenue) relating to any restriction or condition shall be taken into account as if the Company had an adverse effect to its financial condition and results of operations equal to the expected amount of applicable synergies affected by any such restriction or condition. The Company and its Subsidiaries shall not agree to any actions, restrictions or conditions with respect to obtaining any consents, registrations, approvals, permits, expirations of waiting periods or authorizations in connection with the Merger efforts to obtain all requisite Approvals and Consents for the other transactions contemplated by this Agreement without the prior written consent of Parent (which, subject to this Section 6.5(a) may be withheld in Parent’s sole discretion). Subject to applicable Laws relating to the exchange of information, Parent and the Company Ancillary Agreements, Purchaser and Seller shall have the right to review in advance, each (and to the extent practicable each necessary, will consult use its reasonable best efforts to cause its Affiliates to) furnish to the other onparty and the other party’s counsel as promptly as practicable, all of the such information relating to Parent or the Company, and reasonable assistance as the case other party may be, reasonably request. Purchaser and Seller shall each keep the other informed in all material respects of any of their respective Subsidiaries, that appears in any filing made withmaterial communication received by such party from, or written materials submitted given by such party or its Affiliates to, any third party and/or Governmental Authority, and to consult with each other in advance of any meeting or conference with any Governmental Entity in connection with the Merger and the other transactions contemplated by this Agreement. To the extent permitted by applicable Law, each party shall provide the other with copies of all correspondence between it (or its advisors) and any Governmental Entity relating to the Merger and the other transactions contemplated by this Agreement and, to the extent reasonably practicable, all telephone calls and meetings with a Governmental Entity Authority regarding the transactions contemplated by this Agreement shall include representatives of Parent and the Company. In exercising the foregoing rights, the Company and Parent each shall act reasonably and as promptly as reasonably practicableAncillary Agreements.
Appears in 1 contract
Cooperation. 12.1 The Company parties undertake, upon the request of any party, at any time after today and Parent shall, subject until six months after Closing and without further compensation to Section 6.2, cooperate with each other execute all reasonable documents in proper form and use, and shall cause their respective Subsidiaries to, use their respective reasonable best efforts to take or cause to all reasonable measures which may still be taken all actions, and do or cause to be done all things, necessary, proper or advisable on its part under this Agreement and applicable Laws to consummate and make effective the Merger and the other transactions contemplated by this Agreement as promptly as reasonably practicable (it being understood that nothing contained in this Agreement shall require Parent to obtain any consents, registrations, approvals, permits, expirations of waiting periods or authorizations prior to the Termination Date), including preparing and filing as promptly as reasonably practicable all documentation to effect all necessary notices, reports and other filings (including by filing no later than 20 calendar days after the date of this Agreement all applications required to be filed with the FCC and the notification and report form required under the HSR Act; provided that the failure to file within such 20-day period shall not constitute a breach of this Agreement) and to obtain as promptly as reasonably practicable all consents, registrations, approvals, permits, expirations of waiting periods and authorizations necessary or advisable to be obtained from any third party and/or any Governmental Entity in order to consummate this Agreement.
12.2 Purchaser 1 and Guarantor shall ensure that all communications, oral or written, with their respective shareholders, customers, and employees regarding the Merger Transaction or any the General Assembly (together, "Transaction Communications") comply in all material respects with all applicable laws, and Purchaser 1 and Guarantor shall provide each other all information, reasonably requested by the respective other party and, without limiting the generality of the other transactions contemplated by this Agreementforegoing, Purchaser 1 and Guarantor shall ensure that none of the Transaction Communications contains any untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements contained therein not misleading in light of the circumstances in which they are made. To the extent necessary or advisable to obtain any consent, registration, approval, permit, expiration of waiting period or authorization from any Governmental Entity in order to consummate the Merger prior Subject to the Termination Dateother paragraphs of this Article 12.2, (x) Parent shall, and neither Purchaser 1 nor Guarantor shall cause its Subsidiaries to, and commit to cause the Company and its Subsidiaries to, take the actions and agree to those undertakings set forth on Section 6.5(a) of the Parent Disclosure Letter and (y) Parent shall, and shall cause its Subsidiaries to take, other actions involving Parent and its Subsidiaries that are include in the aggregate de minimis (for the avoidance of doubt, not involving written Transaction Communications any divestiture, holding separate any business or assets or other similar action). Except as provided in the immediately preceding sentence, nothing in this Agreement shall require, or be construed to require, (i) Parent or any of its Subsidiaries to take or refrain from taking any action (including any divestiture, holding separate any business or assets or other similar action) or to agree to any restriction or condition information with respect to any assets, operations, business the respective other party or the conduct of business of Parent its Affiliates or any of its Subsidiaries and (ii) Parentassociates, the Company form and substance of which information shall not have been approved by the respective other party prior to such inclusion, such approval not to be unreasonably withheld or any of their delayed. The parties shall apply procedures that allow the respective Subsidiaries other party appropriate time to take or refrain from taking any action (including any divestiture, holding separate any business or assets or other similar action) or to agree to any restriction or condition with respect to any assets, operations, business or review the conduct of business of Transaction Communications whereby the Company legal requirements and its Subsidiaries, if, in the case of this clause (ii), any such action, failure to act, restriction, condition or agreement, individually or in the aggregate, would reasonably be likely to have a Company Material Adverse Effect (read without regard to the exceptions set forth therein and without giving effect to clause (A) thereof) (except as provided in the immediately preceding sentence, the occurrence of any of the matters specified in clause (i) or clause (ii) above shall constitute a “Regulatory Material Adverse Effect”). In addition, in measuring whether a Regulatory Material Adverse Effect has occurred, the expected loss of any reasonably expected synergies (both cost and revenue) relating to any restriction or condition circumstances shall be taken into account as if the Company had an adverse effect to its financial condition and results of operations equal account. With regard to the expected amount invitation to the General Assembly of applicable synergies affected by any such restriction or conditionPurchaser 1 that will decide on the Agreement, Purchaser 1 will submit the draft invitation to Seller 1 and the Guarantor, and enable Seller 1 and Guarantor to participate in the internal coordination and approval process of Purchaser 1. The Company Should Purchaser 1 on the one hand and its Subsidiaries shall Seller 1 and Guarantor on the other hand not agree to any actionson the final invitation within the timeframe envisaged for the internal review by the Purchaser, restrictions or conditions with respect to obtaining any consents, registrations, approvals, permits, expirations of waiting periods or authorizations in connection with the Merger and the other transactions contemplated by this Agreement without the prior written consent of Parent (which, subject to this Section 6.5(a) may be withheld in Parent’s sole discretion). Subject to applicable Laws relating to the exchange of information, Parent and the Company Purchaser 1 shall have the right to review in advance, and to the extent practicable each will consult the other on, all decide which version of the information relating invitation will finally be published. With regard to Parent any other publication or communication, the Company, as the case may be, and any of their respective Subsidiariesparties shall consult with each other prior to making such publication or communication.
12.3 Purchaser 3, that appears in any filing made withwill assume a lease agreement, or written materials submitted will offer to and agree with an Affiliate of Seller 1 on the sub-lease of those parts of the leased space that are currently used by Seller 3 for its "tech business" and Guarantor will ensure that one of its Affiliates enters into a sublease agreement with regard to such space on a back-to, any third party and/or any Governmental Entity in connection with the Merger and the other transactions contemplated by this Agreement. To the extent permitted by applicable Law, each party shall provide the other with copies of all correspondence between it (or its advisors) and any Governmental Entity relating to the Merger and the other transactions contemplated by this Agreement and, to the extent reasonably practicable, all telephone calls and meetings with a Governmental Entity regarding the transactions contemplated by this Agreement shall include representatives of Parent and the Company. In exercising the foregoing rights, the Company and Parent each shall act reasonably and as promptly as reasonably practicable-back basis.
Appears in 1 contract
Cooperation. The Company Each party hereto (i) shall promptly inform each other of any communication from any Governmental Authority concerning this Agreement, the transactions contemplated hereby and Parent shallany filing, notification or request for approval related thereto and (ii) shall permit the other parties hereto to review in advance any proposed written communication or information submitted to any such Governmental Authority in response thereto. In addition, each of the Sellers and the Buyer Parties shall not agree to participate in any meeting with any Governmental Authority in respect of any filings, investigation or other inquiry with respect to this Agreement, the transactions contemplated hereby or any such filing, notification or request for approval related thereto unless it consults with the other parties hereto in advance and, to the extent permitted by any such Governmental Authority, gives the other parties hereto the opportunity to attend and participate thereat, in each case to the maximum extent practicable. Subject to any restrictions under applicable laws, rules or regulations, each of the Seller Parties and the Buyer Parties shall furnish the Buyer or the Sellers, as the case may be, with copies of all correspondence, filings and communications (and memoranda setting forth the substance thereof) between it and its Affiliates and their respective representatives on the one 38 <PAGE> hand, and the Governmental Authority or members of its staff on the other hand, with respect to this Agreement, the transactions contemplated hereby (excluding documents and communications which are subject to Section 6.2preexisting confidentiality agreements and to the attorney-client privilege or work product doctrine) or any such filing, cooperate notification or request for approval related thereto. The Seller Parties and the Buyer Parties shall also furnish the other parties with each such necessary information and assistance as such other parties and usetheir Affiliates may reasonably request in connection with their preparation of necessary filings, registration or submissions of information to the Governmental Authority in connection with this Agreement, the transactions contemplated hereby and any such filing, notification or request for approval related thereto. The Seller Parties and the Buyer Parties shall cause their respective Subsidiaries to, prosecute all required requests for approval with all necessary diligence and otherwise use their respective 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 on its part under this Agreement and applicable Laws to consummate and make effective obtain the Merger and the other transactions contemplated by this Agreement grant thereof as promptly soon as reasonably practicable (it being understood that nothing contained in this Agreement shall require Parent to obtain any consents, registrations, approvals, permits, expirations of waiting periods or authorizations prior to the Termination Date), including preparing and filing as promptly as reasonably practicable all documentation to effect all necessary notices, reports and other filings (including by filing no later than 20 calendar days after the date of this Agreement all applications required to be filed with the FCC and the notification and report form required under the HSR Act; provided that the failure to file within such 20-day period shall not constitute a breach of this Agreement) and to obtain as promptly as reasonably practicable all consents, registrations, approvals, permits, expirations of waiting periods 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. To the extent necessary or advisable to obtain any consent, registration, approval, permit, expiration of waiting period or authorization from any Governmental Entity in order to consummate the Merger prior to the Termination Date, (x) Parent shall, and shall cause its Subsidiaries to, and commit to cause the Company and its Subsidiaries to, take the actions and agree to those undertakings set forth on Section 6.5(a) of the Parent Disclosure Letter and (y) Parent shall, and shall cause its Subsidiaries to take, other actions involving Parent and its Subsidiaries that are in the aggregate de minimis (for the avoidance of doubt, not involving any divestiture, holding separate any business or assets or other similar action). Except as provided in the immediately preceding sentence, nothing in this Agreement shall require, or be construed to require, (i) Parent or any of its Subsidiaries to take or refrain from taking any action (including any divestiture, holding separate any business or assets or other similar action) or to agree to any restriction or condition with respect to any assets, operations, business or the conduct of business of Parent or any of its Subsidiaries and (ii) Parent, the Company or any of their respective Subsidiaries to take or refrain from taking any action (including any divestiture, holding separate any business or assets or other similar action) or to agree to any restriction or condition with respect to any assets, operations, business or the conduct of business of the Company and its Subsidiaries, if, in the case of this clause (ii), any such action, failure to act, restriction, condition or agreement, individually or in the aggregate, would reasonably be likely to have a Company Material Adverse Effect (read without regard to the exceptions set forth therein and without giving effect to clause (A) thereof) (except as provided in the immediately preceding sentence, the occurrence of any of the matters specified in clause (i) or clause (ii) above shall constitute a “Regulatory Material Adverse Effect”). In addition, in measuring whether a Regulatory Material Adverse Effect has occurred, the expected loss of any reasonably expected synergies (both cost and revenue) relating to any restriction or condition shall be taken into account as if the Company had an adverse effect to its financial condition and results of operations equal to the expected amount of applicable synergies affected by any such restriction or condition. The Company and its Subsidiaries shall not agree to any actions, restrictions or conditions with respect to obtaining any consents, registrations, approvals, permits, expirations of waiting periods or authorizations in connection with the Merger and the other transactions contemplated by this Agreement without the prior written consent of Parent (which, subject to this Section 6.5(a) may be withheld in Parent’s sole discretion). Subject to applicable Laws relating to the exchange of information, Parent and the Company shall have the right to review in advance, and to the extent practicable each will consult the other on, all of the information relating to Parent or the Company, as the case may be, and any of their respective Subsidiaries, that appears in any filing made with, or written materials submitted to, any third party and/or any Governmental Entity in connection with the Merger and the other transactions contemplated by this Agreement. To the extent permitted by applicable Law, each party shall provide the other with copies of all correspondence between it (or its advisors) and any Governmental Entity relating to the Merger and the other transactions contemplated by this Agreement and, to the extent reasonably practicable, all telephone calls and meetings with a Governmental Entity regarding the transactions contemplated by this Agreement shall include representatives of Parent and the Company. In exercising the foregoing rights, the Company and Parent each shall act reasonably and as promptly as reasonably practicablepossible.
Appears in 1 contract
Sources: Stock and Asset Purchase Agreement
Cooperation. The Company Sellers and Parent shallthe Buyers (i) shall promptly inform each other of any communication from any Governmental Entity concerning this Agreement, the transactions contemplated hereby, and any filing, notification or request for approval and (ii) shall permit the other party to review in advance any proposed written communication or information submitted to any such Governmental Entity in response thereto. In addition, each of the Sellers and the Buyers shall not agree to participate in any meeting with any Governmental Entity in respect of any filings, investigation or other inquiry with respect to this Agreement, the transactions contemplated hereby or any such filing, notification or request for approval unless it consults with the other party in advance and, to the extent permitted by any such Governmental Entity, gives the other party the opportunity to attend and participate thereat, in each case to the maximum extent practicable. Subject to any restrictions under applicable laws, rules or regulations, each of the Sellers and the Buyers shall furnish the other party with copies of all correspondence, filings and communications (and memoranda setting forth the substance thereof) between it and its Affiliates and their respective representatives on the one hand, and the Governmental Entity or members of its staff on the other hand, with respect to this Agreement, the transactions contemplated hereby (excluding documents and communications which are subject to Section 6.2preexisting confidentiality agreements and to the attorney-client privilege or work product doctrine) or any such filing, cooperate notification or request for approval. Each of the Sellers and the Buyers shall also furnish the other party with each such necessary information and assistance as such other party and useits Affiliates may reasonably request in connection with their preparation of necessary filings, registration, or submissions of information to the Governmental Entity in connection with this Agreement, the transactions contemplated hereby and any such filing, notification or request for approval. The Sellers and the Buyers shall cause their respective Subsidiaries to, prosecute all required requests for approval with all necessary diligence and otherwise use their respective 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 on its part under this Agreement and applicable Laws to consummate and make effective obtain the Merger and the other transactions contemplated grant thereof by this Agreement a Final Order as promptly soon as reasonably practicable (it being understood that nothing contained in this Agreement shall require Parent to obtain any consents, registrations, approvals, permits, expirations of waiting periods or authorizations prior to the Termination Date), including preparing and filing as promptly as reasonably practicable all documentation to effect all necessary notices, reports and other filings (including by filing no later than 20 calendar days after the date of this Agreement all applications required to be filed with the FCC and the notification and report form required under the HSR Act; provided that the failure to file within such 20-day period shall not constitute a breach of this Agreement) and to obtain as promptly as reasonably practicable all consents, registrations, approvals, permits, expirations of waiting periods 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. To the extent necessary or advisable to obtain any consent, registration, approval, permit, expiration of waiting period or authorization from any Governmental Entity in order to consummate the Merger prior to the Termination Date, (x) Parent shall, and shall cause its Subsidiaries to, and commit to cause the Company and its Subsidiaries to, take the actions and agree to those undertakings set forth on Section 6.5(a) of the Parent Disclosure Letter and (y) Parent shall, and shall cause its Subsidiaries to take, other actions involving Parent and its Subsidiaries that are in the aggregate de minimis (for the avoidance of doubt, not involving any divestiture, holding separate any business or assets or other similar action). Except as provided in the immediately preceding sentence, nothing in this Agreement shall require, or be construed to require, (i) Parent or any of its Subsidiaries to take or refrain from taking any action (including any divestiture, holding separate any business or assets or other similar action) or to agree to any restriction or condition with respect to any assets, operations, business or the conduct of business of Parent or any of its Subsidiaries and (ii) Parent, the Company or any of their respective Subsidiaries to take or refrain from taking any action (including any divestiture, holding separate any business or assets or other similar action) or to agree to any restriction or condition with respect to any assets, operations, business or the conduct of business of the Company and its Subsidiaries, if, in the case of this clause (ii), any such action, failure to act, restriction, condition or agreement, individually or in the aggregate, would reasonably be likely to have a Company Material Adverse Effect (read without regard to the exceptions set forth therein and without giving effect to clause (A) thereof) (except as provided in the immediately preceding sentence, the occurrence of any of the matters specified in clause (i) or clause (ii) above shall constitute a “Regulatory Material Adverse Effect”). In addition, in measuring whether a Regulatory Material Adverse Effect has occurred, the expected loss of any reasonably expected synergies (both cost and revenue) relating to any restriction or condition shall be taken into account as if the Company had an adverse effect to its financial condition and results of operations equal to the expected amount of applicable synergies affected by any such restriction or condition. The Company and its Subsidiaries shall not agree to any actions, restrictions or conditions with respect to obtaining any consents, registrations, approvals, permits, expirations of waiting periods or authorizations in connection with the Merger and the other transactions contemplated by this Agreement without the prior written consent of Parent (which, subject to this Section 6.5(a) may be withheld in Parent’s sole discretion). Subject to applicable Laws relating to the exchange of information, Parent and the Company shall have the right to review in advance, and to the extent practicable each will consult the other on, all of the information relating to Parent or the Company, as the case may be, and any of their respective Subsidiaries, that appears in any filing made with, or written materials submitted to, any third party and/or any Governmental Entity in connection with the Merger and the other transactions contemplated by this Agreement. To the extent permitted by applicable Law, each party shall provide the other with copies of all correspondence between it (or its advisors) and any Governmental Entity relating to the Merger and the other transactions contemplated by this Agreement and, to the extent reasonably practicable, all telephone calls and meetings with a Governmental Entity regarding the transactions contemplated by this Agreement shall include representatives of Parent and the Company. In exercising the foregoing rights, the Company and Parent each shall act reasonably and as promptly as reasonably practicablepossible.
Appears in 1 contract
Cooperation. The Company and Notwithstanding anything in this Agreement to the contrary, Parent shall, subject to Section 6.2after good faith consultation with the Company and after considering, cooperate with each other in good faith, the Company’s views and usecomments, lead the strategy for seeking and shall cause their respective Subsidiaries toobtaining all waiting period expirations or terminations, use their respective reasonable best efforts to take or cause to be taken all actionsconsents, and do or cause to be done all thingsclearances, necessarywaivers, proper or advisable on its part under this Agreement and applicable Laws to consummate and make effective the Merger and the other transactions contemplated by this Agreement as promptly as reasonably practicable (it being understood that nothing contained in this Agreement shall require Parent to obtain any consentslicenses, orders, registrations, approvals, permits, expirations of waiting periods or permits and authorizations prior to for the Termination Date)Merger, including preparing and filing as promptly as reasonably practicable all documentation to effect all necessary notices, reports and other filings (including by filing no later than 20 calendar days after the date of this Agreement all applications required to be filed with the FCC and the notification and report form required under the HSR Act; provided , including but not limited to directing and unilaterally determining any decision to pull and refile any filing under the HSR Act, provided, however, that the failure any decision to file within such 20-day period shall not constitute a breach of this Agreement) pull and to obtain as promptly as reasonably practicable all consents, registrations, approvals, permits, expirations of waiting periods 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. To the extent necessary or advisable to obtain any consent, registration, approval, permit, expiration of waiting period or authorization from any Governmental Entity in order to consummate the Merger prior to the Termination Date, (x) Parent shall, and shall cause its Subsidiaries to, and commit to cause the Company and its Subsidiaries to, take the actions and agree to those undertakings set forth on Section 6.5(a) of the Parent Disclosure Letter and (y) Parent shall, and shall cause its Subsidiaries to take, other actions involving Parent and its Subsidiaries that are in the aggregate de minimis (for the avoidance of doubt, not involving any divestiture, holding separate any business or assets or other similar action). Except as provided in the immediately preceding sentence, nothing in this Agreement shall require, or be construed to require, (i) Parent or any of its Subsidiaries to take or refrain from taking any action (including any divestiture, holding separate any business or assets or other similar action) or to agree to any restriction or condition with respect to any assets, operations, business or the conduct of business of Parent or any of its Subsidiaries and (ii) Parent, the Company or any of their respective Subsidiaries to take or refrain from taking any action (including any divestiture, holding separate any business or assets or other similar action) or to agree to any restriction or condition with respect to any assets, operations, business or the conduct of business of the Company and its Subsidiaries, if, in the case of this clause (ii), refile any such action, failure to act, restriction, condition or agreement, individually or in the aggregate, would reasonably be likely to have a Company Material Adverse Effect (read without regard to the exceptions set forth therein and without giving effect to clause (A) thereof) (except as provided in the immediately preceding sentence, the occurrence of any of the matters specified in clause (i) or clause (ii) above filing more than once shall constitute a “Regulatory Material Adverse Effect”). In addition, in measuring whether a Regulatory Material Adverse Effect has occurred, the expected loss of any reasonably expected synergies (both cost and revenue) relating to any restriction or condition shall be taken into account as if the Company had an adverse effect to its financial condition and results of operations equal to the expected amount of applicable synergies affected by any such restriction or condition. The Company and its Subsidiaries shall not agree to any actions, restrictions or conditions with respect to obtaining any consents, registrations, approvals, permits, expirations of waiting periods or authorizations in connection with the Merger and the other transactions contemplated by this Agreement without require the prior written consent of Parent the Company (whichwhich consent shall not be unreasonably conditioned, subject to this Section 6.5(a) may be withheld in Parent’s sole discretionor delayed). Subject to applicable Laws relating to the exchange of information, Parent and the Company shall have the right to review in advanceadvance and, and to the extent practicable practicable, each will shall consult with the other onon and consider in good faith the views of the other in connection with, all of the information relating to Parent or the Companyitself, as the case may be, any of its respective Affiliates and Subsidiaries and any of their respective SubsidiariesRepresentatives, that appears in any filing made with, or written materials delivered or submitted to, any third party and/or by the other to any Governmental Entity in connection with the Merger and the other transactions contemplated by this Agreement. To Neither the extent permitted by applicable Law, each party Company nor Parent shall provide the other permit any of its Affiliates or Subsidiaries or any of its or their respective Representatives to participate in any discussions or meetings with copies of all correspondence between it (or its advisors) and any Governmental Entity relating to in respect of the Merger and Required Regulatory Approvals unless it consults with the other transactions contemplated by this Agreement in advance and, to the extent reasonably practicablepermitted by such Governmental Entity, all telephone calls gives the other the opportunity to attend and meetings with participate thereat. Notwithstanding any other requirement in this Section 7.5, where a Governmental Entity regarding Party (a “Disclosing Party”) is required under this Section 7.5 to provide information to another Party (a “Receiving Party” ) that the transactions contemplated by this Agreement shall include representatives of Parent and the Company. In exercising the foregoing rightsDisclosing Party deems to be competitively sensitive information, the Company Disclosing Party may comply with such requirement by restricting the provision of such competitively sensitive information only to antitrust counsel of the Receiving Party and Parent each shall act reasonably and as promptly as reasonably practicableproviding to the Receiving Party, upon request of the Receiving Party, a redacted version of such information which does not contain any such competitively sensitive information.
Appears in 1 contract
Cooperation. The Company and Parent shall, subject to Section 6.2, cooperate with each other and use, and shall cause their respective Subsidiaries to, use their respective 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 on its part under this Agreement and applicable Laws to consummate and make effective Each of the Merger Purchaser and the other transactions contemplated by this Agreement as promptly as reasonably practicable (it being understood that nothing contained in this Agreement shall require Parent to obtain any consents, registrations, approvals, permits, expirations of waiting periods or authorizations prior to the Termination Date), including preparing and filing as promptly as reasonably practicable all documentation to effect all necessary notices, reports and other filings (including by filing no later than 20 calendar days after the date of this Agreement all applications required to be filed with the FCC and the notification and report form required under the HSR Act; provided that the failure to file within such 20-day period shall not constitute a breach of this Agreement) and to obtain as promptly as reasonably practicable all consents, registrations, approvals, permits, expirations of waiting periods 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. To the extent necessary or advisable to obtain any consent, registration, approval, permit, expiration of waiting period or authorization from any Governmental Entity in order to consummate the Merger prior to the Termination Date, (x) Parent Company shall, and shall cause its Subsidiaries any other Recipients to, and commit use their commercially reasonable efforts to cause (a) cooperate with the Company applicable Provider and its Subsidiaries to, take Affiliates with respect to the actions and agree to those undertakings set forth on Section 6.5(a) provision of the Parent Disclosure Letter any Service and (yb) Parent shall, and shall cause its Subsidiaries to take, other actions involving Parent enable the applicable Provider and its Subsidiaries that are Affiliates to provide the Services in accordance with this Agreement. Further, each Recipient and its Affiliates shall use commercially reasonable efforts to provide information and documentation sufficient for each Provider to perform the Services in the aggregate de minimis (for the avoidance of doubt, not involving any divestiture, holding separate any business or assets or other similar action). Except as manner they were provided in the ordinary course immediately preceding sentenceprior to the Closing, nothing and each Recipient shall use commercially reasonable efforts to make available, as reasonably requested by each Provider, sufficient resources and timely decisions, approvals and acceptances in order that each Provider may perform its obligations under this Agreement shall require, or be construed to require, (i) Parent or any of its Subsidiaries to take or refrain from taking any action (including any divestiture, holding separate any business or assets or other similar action) or to agree to any restriction or condition with respect to any assets, operations, business or the conduct of business of Parent or any of its Subsidiaries in a timely and (ii) Parent, the Company or any of their respective Subsidiaries to take or refrain from taking any action (including any divestiture, holding separate any business or assets or other similar action) or to agree to any restriction or condition with respect to any assets, operations, business or the conduct of business of the Company and its Subsidiaries, if, in the case of this clause (ii), any such action, efficient manner. Provider’s failure to act, restriction, condition or agreement, individually or in perform the aggregate, would reasonably be likely to have a Company Material Adverse Effect (read without regard to the exceptions set forth therein and without giving effect to clause (A) thereof) (except as provided in the immediately preceding sentence, the occurrence of any of the matters specified in clause (i) or clause (ii) above shall constitute a “Regulatory Material Adverse Effect”). In addition, in measuring whether a Regulatory Material Adverse Effect has occurred, the expected loss of any reasonably expected synergies (both cost and revenue) relating to any restriction or condition Services shall be taken into account as excused if the Company had an adverse effect to its financial condition and results of operations equal to the expected amount of applicable synergies affected by any such restriction or condition. The Company and its Subsidiaries shall not agree to any actions, restrictions or conditions with respect to obtaining any consents, registrations, approvals, permits, expirations of waiting periods or authorizations in connection with the Merger and the other transactions contemplated by this Agreement without the prior written consent of Parent (which, subject to this Section 6.5(a) may be withheld in Parent’s sole discretion). Subject to applicable Laws relating to the exchange of information, Parent and the Company shall have the right to review in advance, and to the extent practicable each will consult it results from Recipient’s failure to provide any data systems, personnel, intellectual property or any other underlying resources reasonably necessary for Provider to provide any of the Services hereunder; provided, that if either Party becomes aware of any failure of the Recipient to provide any such data systems, personnel, intellectual property or other resources, then such Party shall provide notice thereof to the other onParty as soon as reasonably practicable and the Parties shall cooperate to minimize any disruption to the Services. In the event a Provider has to use materially different data systems, all personnel, intellectual property or any other underlying resources to provide any of the information relating Services because of Recipient’s change to Parent the operation of the Business, then the Parties shall negotiate in good faith to amend Schedule 2.01 or the Company, as the case may be, and any of their respective Subsidiaries, that appears in any filing made with, or written materials submitted to, any third party and/or any Governmental Entity in connection with the Merger and the other transactions contemplated by this Agreement. To the extent permitted by applicable Law, each party shall provide the other with copies of all correspondence between it (or its advisors) and any Governmental Entity relating to the Merger and the other transactions contemplated by this Agreement Service Charges and, if the Parties are unable to agree after a reasonable amount of time, Seller’s obligation to continue to provide such Service notwithstanding such change shall be subject to Purchaser agreeing to reimburse Seller for the extent reasonably practicable, all telephone calls and meetings incremental costs incurred by Seller with a Governmental Entity regarding respect to such Service while the transactions contemplated by this Agreement shall include representatives of Parent and the Company. In exercising the foregoing rights, the Company and Parent each shall act reasonably and as promptly as reasonably practicableParties continue to negotiate in good faith to effect such amendment.
Appears in 1 contract
Sources: Stock and Asset Purchase Agreement (Foundation Building Materials, Inc.)
Cooperation. The Executive agrees to cooperate with the Company and Parent shall, subject USAi to Section 6.2, cooperate with each other and use, and shall cause their respective Subsidiaries to, use their respective 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 on its part under this Agreement and applicable Laws to consummate and make effective provide for an orderly transition in the Merger and leadership of the other transactions contemplated by this Agreement as promptly as reasonably practicable (it being understood that nothing contained in this Agreement shall require Parent to obtain any consents, registrations, approvals, permits, expirations of waiting periods or authorizations prior to the Termination Date)Company, including preparing but not limited to working with a designated successor to Executive as Chief Executive Officer of the Company ("Successor") should such Successor be selected during the term of Executive's Employment Agreement. Executive acknowledges and filing as promptly as reasonably practicable all documentation to effect all necessary notices, reports agrees that such an action by USAi (and other filings (including by filing no later than 20 calendar days after the date of this Agreement all applications required to be filed with the FCC and the notification and report form required under the HSR Act; provided that the failure to file within such 20-day period shall Company) would not constitute a breach of this the Employment Agreement, and would not constitute Good Reason for Executive to terminate his employment pursuant to said Agreement, and Executive hereby waives any such claim; provided, however, that any partial or complete assumption of Executive's duties and responsibilities by Successor (as determined by Executive in his sole good faith discretion) and shall not be deemed to obtain as promptly as reasonably practicable all consentsbe, registrationsor constitute, approvals, permits, expirations of waiting periods 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 a breach of the other transactions contemplated Employment Agreement by this Executive; and provided, further, that any compensation payable to Successor, whether in cash, securities (including options) or otherwise, shall be excluded in computing Executive's Performance Bonus under the Employment Agreement. To Except as expressly provided in this paragraph, the Company's and Executive's respective rights, duties and obligations under the Employment Agreement, which are separate and apart herefrom, shall not otherwise be affected hereby, including, without limitation, the Company's obligation upon request by Executive to repurchase Stock (including USAi securities issued in exchange therefor or replacement thereof) from Executive, the Rosen Family Foundation and their respective transferees, to the extent necessary ▇▇▇▇▇cable; provided, however, that Executive must provide a 30-day notice to the Company for such repurchase and such repurchase obligation of the Company may be satisfied by USAi causing the Company to arrange to place Executive's Stock (including USAi securities issued in exchange therefor or advisable replacement thereof) with a third party; provided, further, that USAi will cause the Company to obtain any consentpay Executive the excess, registrationif any, approvalof the amount of cash Executive would have received with respect to such repurchase obligation, permit, expiration of waiting period or authorization from any Governmental Entity over the amount received by Executive in order to consummate the Merger such placement. The parties agree that prior to the Termination Dateeffective time of the merger involving the Company and USAi, Executive may elect with respect to his outstanding stock options (xi) Parent shallto have such options assumed by USAi at the effective time pursuant to the terms of the merger agreement and/or (ii) to the extent such assumption is not elected, and shall cause its Subsidiaries to, and commit to have USAi cause the Company and its Subsidiaries to, take to provide Executive at the actions and agree to those undertakings set forth on Section 6.5(a) effective time of the Parent Disclosure Letter and merger with an amount (ythe "spread") Parent shallequal to the product of (A) the excess of the "merger consideration" per share in such merger over the exercise price per share of the option, and shall cause its Subsidiaries times (B) the number of shares subject to take, other actions involving Parent and its Subsidiaries that are in the aggregate de minimis (for the avoidance of doubt, not involving any divestiture, holding separate any business or assets or other similar action). Except as provided in the immediately preceding sentence, nothing in this Agreement shall require, or be construed to require, (i) Parent or any of its Subsidiaries to take or refrain from taking any action (including any divestiture, holding separate any business or assets or other similar action) or to agree to any restriction or condition such option with respect to any assets, operations, business or the conduct of business of Parent or any of its Subsidiaries and (ii) Parent, the Company or any of their respective Subsidiaries to take or refrain from taking any action (including any divestiture, holding separate any business or assets or other similar action) or to agree to any restriction or condition with respect to any assets, operations, business or the conduct of business of the Company and its Subsidiaries, if, in the case of which Executive elects this clause (ii), any such action, failure to act, restriction, condition or agreement, individually or in the aggregate, would reasonably be likely to have a Company Material Adverse Effect (read without regard to the exceptions set forth therein and without giving effect to clause (A) thereof) (except as provided in the immediately preceding sentence, the occurrence of any of the matters specified in clause (i) or clause (ii) above shall constitute a “Regulatory Material Adverse Effect”). In addition, in measuring whether a Regulatory Material Adverse Effect has occurred, the expected loss of any reasonably expected synergies (both cost and revenue) relating to any restriction or condition shall be taken into account as if the Company had an adverse effect to its financial condition and results of operations equal to the expected amount of applicable synergies affected by any such restriction or condition. The Company and its Subsidiaries shall not agree to any actions, restrictions or conditions with respect to obtaining any consents, registrations, approvals, permits, expirations of waiting periods or authorizations in connection with the Merger and the other transactions contemplated by this Agreement without the prior written consent of Parent (which, subject to this Section 6.5(a) may be withheld in Parent’s sole discretion). Subject to applicable Laws relating to the exchange of information, Parent and the Company shall have the right to review in advance, and to the extent practicable each will consult the other on, all of the information relating to Parent or the Company, as the case may be, and any of their respective Subsidiaries, that appears in any filing made with, or written materials submitted to, any third party and/or any Governmental Entity in connection with the Merger and the other transactions contemplated by this Agreement. To the extent permitted by applicable Law, each party shall provide Executive elects to receive the other with copies spread for all or a portion of all correspondence between it (or its advisors) and any Governmental Entity relating to the Merger and the other transactions contemplated by this Agreement and, to the extent reasonably practicable, all telephone calls and meetings with a Governmental Entity regarding the transactions contemplated by this Agreement shall include representatives of Parent and the Company. In exercising the foregoing rightshis option, the Company may elect to provide the spread in cash and/or shares of USAi stock; provided, that, if requested by Executive at the effective time of the merger, USAi shall cause the Company to arrange to place any such shares with a third party and Parent each USAi shall act reasonably cause the Company to pay Executive the excess, if any, of the amount of cash Executive would have received for such portion of the spread, over the amount received by Executive in such placement. Executive hereby agrees not to exercise any election under Section 9 of his December 15, 1993 option agreement with the Company, and as promptly as reasonably practicablewaives the application of such section.
Appears in 1 contract
Sources: Cooperation, Non Competition and Confidentiality Agreement (Usa Networks Inc)
Cooperation. The Company Following the execution of this Agreement, the ----------- Buyer and Parent shallthe Sellers agree as follows:
(a) Subject to the terms and conditions of this Agreement, subject to Section 6.2, cooperate with each other and use, and shall cause their respective Subsidiaries to, party will use their respective its reasonable best efforts to take take, or cause to be taken taken, all actionsactions and to do, and do or cause to be done done, all things, things necessary, proper or advisable on its part advisable, including under this Agreement and applicable Laws and regulations, to consummate and make effective the Merger Sale and the other transactions contemplated by this Agreement as promptly soon as reasonably practicable after the date hereof. In furtherance and not in limitation of the foregoing, each party hereto agrees (it being understood that nothing contained in this Agreement shall require Parent i) to obtain any consents, registrations, approvals, permits, expirations make an appropriate filing of waiting periods or authorizations prior a Notification and Report Form pursuant to the Termination Date), including preparing and filing HSR Act with respect to the transactions contemplated hereby as promptly as reasonably practicable all documentation to effect all necessary notices, reports and other filings (including by filing no later than 20 calendar days after the date hereof and to supply as promptly as practicable any additional information and documentary material that may be requested pursuant to the HSR Act and to take all other actions necessary to cause the expiration or termination of this Agreement all applications required to be filed with the FCC and the notification and report form required applicable waiting periods under the HSR Act; provided that the failure Act as soon as practicable, (ii) to file within such 20-day period shall not constitute a breach of this Agreement) all necessary applications for Required Consents at the FCC, PUCs and local franchising authorities with respect to obtain the transactions contemplated hereby as promptly as reasonably practical after the date hereof and to supply as promptly as practicable any additional information and documentary material that may be requested by the FCC, PUCs and local franchising authorities and to take all consents, registrations, approvals, permits, expirations of waiting periods and authorizations other actions necessary or advisable to cause the Required Consents to be obtained as soon as practicable and (iii) to obtain all other required consents from any third party and/or any Governmental Entity in order parties. The parties agree to consummate the Merger or any of the other transactions contemplated by this Agreement. To file all necessary applications for Required Consents with state PUCs jointly to the extent necessary or advisable permitted under Applicable Law, and to obtain any consent, registration, approval, permit, expiration share counsel whenever feasible and where it does not pose a conflict of waiting period or authorization from any Governmental Entity in order to consummate interest.
(b) The Sellers and the Merger prior to the Termination Date, (x) Parent Buyer shall, and shall cause its Subsidiaries to, and commit to cause the Company and its Subsidiaries to, take the actions and agree to those undertakings set forth on Section 6.5(a) of the Parent Disclosure Letter and (y) Parent shall, and shall cause its Subsidiaries to take, other actions involving Parent and its Subsidiaries that are in the aggregate de minimis (for the avoidance of doubt, not involving any divestiture, holding separate any business or assets or other similar action). Except as provided in the immediately preceding sentence, nothing in this Agreement shall require, or be construed to require, (i) Parent or any of its Subsidiaries to take or refrain from taking any action (including any divestiture, holding separate any business or assets or other similar action) or to agree to any restriction or condition with respect to any assets, operations, business or the conduct of business of Parent or any of its Subsidiaries and (ii) Parent, the Company or any of their respective Subsidiaries to take or refrain from taking any action (including any divestiture, holding separate any business or assets or other similar action) or to agree to any restriction or condition with respect to any assets, operations, business or the conduct of business of the Company and its Subsidiaries, if, in the case of this clause (ii), any such action, failure to act, restriction, condition or agreement, individually or in the aggregate, would reasonably be likely to have a Company Material Adverse Effect (read without regard to the exceptions set forth therein and without giving effect to clause (A) thereof) (except as provided in the immediately preceding sentence, the occurrence of any of the matters specified in clause (i) or clause (ii) above shall constitute a “Regulatory Material Adverse Effect”). In addition, in measuring whether a Regulatory Material Adverse Effect has occurred, the expected loss of any reasonably expected synergies (both cost and revenue) relating to any restriction or condition shall be taken into account as if the Company had an adverse effect to its financial condition and results of operations equal to the expected amount of applicable synergies affected by any such restriction or condition. The Company and its Subsidiaries shall not agree to any actions, restrictions or conditions with respect to obtaining any consents, registrations, approvals, permits, expirations of waiting periods or authorizations in connection with the Merger efforts referenced in Section 4.5(a) to obtain all requisite approvals and the other transactions contemplated by this Agreement without the prior written consent of Parent (which, subject to this Section 6.5(a) may be withheld in Parent’s sole discretion). Subject to applicable Laws relating to the exchange of information, Parent and the Company shall have the right to review in advance, and to the extent practicable each will consult the other on, all of the information relating to Parent or the Company, as the case may be, and any of their respective Subsidiaries, that appears in any filing made with, or written materials submitted to, any third party and/or any Governmental Entity in connection with the Merger and the other transactions contemplated by this Agreement. To the extent permitted by applicable Law, each party shall provide the other with copies of all correspondence between it (or its advisors) and any Governmental Entity relating to the Merger and the other transactions contemplated by this Agreement and, to the extent reasonably practicable, all telephone calls and meetings with a Governmental Entity regarding authorizations for the transactions contemplated by this Agreement shall include representatives under the HSR Act or any other Regulatory Law, use its reasonable best efforts to (i) cooperate in all respects with each other in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by a private party, (ii) promptly inform the other party of Parent and the Company. In exercising the foregoing rightsany communication received by such party from, or given by such party to, the Company FCC, PUCs, the Antitrust Division of the Department of Justice (the "DOJ") or any other Governmental Entity and Parent of any material communication received or given in connection with any proceeding by a private party, in each shall act reasonably case regarding any of the transactions contemplated hereby, and as promptly as reasonably practicable.(iii) permit the other party to review any communication (other than filings pursuant to the HSR Act) given by it to, and consult with each other in advance of any meeting or conference with, the FCC, PUCs, the DOJ or any such other Governmental Authority or, in connection with any proceeding by a private party, with any other Person, and to the extent permitted by the FCC, PUCs, the DOJ or such other applicable Governmental Authority or other Person, give the other party the opportunity
Appears in 1 contract
Cooperation. The Company and Parent shall, subject to Section 6.2, cooperate with each other and use, and shall cause their respective Subsidiaries to, use their respective 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 on its part under this Agreement and applicable Laws to consummate and make effective During the Merger and the other transactions contemplated by this Agreement as promptly as reasonably practicable (it being understood that nothing contained in this Agreement shall require Parent to obtain any consents, registrations, approvals, permits, expirations of waiting periods or authorizations prior to the Termination Date), including preparing and filing as promptly as reasonably practicable all documentation to effect all necessary notices, reports and other filings (including by filing no later than 20 calendar days after period from the date of this Agreement to the Effective Time, each of BancWest and FHI shall, (i) confer on a regular and frequent basis with the other, report on operational matters, policies and banking practices and promptly advise the other orally and in writing of any change or event having, or which, insofar as can reasonably be foreseen, could have, a material adverse effect on BancWest or FHI, as the case may be, or which would cause or constitute a material breach of any of the representations, warranties or covenants of such party contained herein and (ii) cause each Subsidiary of BancWest and FHI that is a bank to file all call reports with the appropriate Bank Regulators and all other reports, applications and other documents required to be filed with the FCC applicable Governmental Entities between the date hereof and the notification Effective Time and report form required under make available to the HSR Actother party copies of all such reports promptly after the same are filed; provided that each of BNP and BancWest, on the failure to file within such 20-day period shall not constitute a breach of this Agreement) one hand, and to obtain as promptly as reasonably practicable all consentsFHI, registrations, approvals, permits, expirations of waiting periods 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 on the other transactions contemplated by this Agreement. To the extent necessary or advisable to obtain any consenthand, registration, approval, permit, expiration of waiting period or authorization from any Governmental Entity in order to consummate the Merger prior to the Termination Date, (x) Parent shall, and shall cause its Subsidiaries to, and commit to cause the Company and its Subsidiaries to, take the actions and agree to those undertakings set forth on Section 6.5(a) of the Parent Disclosure Letter and (y) Parent shall, and shall cause its Subsidiaries to take, other actions involving Parent and its Subsidiaries that are in the aggregate de minimis (for the avoidance of doubt, not involving any divestiture, holding separate any business or assets or other similar action). Except as provided in the immediately preceding sentence, nothing in this Agreement shall require, or be construed to require, (i) Parent or any of its Subsidiaries to take or refrain from taking any action (including any divestiture, holding separate any business or assets or other similar action) or to agree to any restriction or condition with respect to any assets, operations, business or the conduct of business of Parent or any of its Subsidiaries and (ii) Parent, the Company or any of their respective Subsidiaries to take or refrain from taking any action (including any divestiture, holding separate any business or assets or other similar action) or to agree to any restriction or condition with respect to any assets, operations, business or the conduct of business of the Company and its Subsidiaries, if, in the case of this clause (ii), any such action, failure to act, restriction, condition or agreement, individually or in the aggregate, would reasonably be likely to have a Company Material Adverse Effect (read without regard to the exceptions set forth therein and without giving effect to clause (A) thereof) (except as provided in the immediately preceding sentence, the occurrence of any of the matters specified in clause (i) or clause (ii) above shall constitute a “Regulatory Material Adverse Effect”). In addition, in measuring whether a Regulatory Material Adverse Effect has occurred, the expected loss of any reasonably expected synergies (both cost and revenue) relating to any restriction or condition shall be taken into account as if the Company had an adverse effect to its financial condition and results of operations equal to the expected amount of applicable synergies affected by any such restriction or condition. The Company and its Subsidiaries shall not agree to any actions, restrictions or conditions with respect to obtaining any consents, registrations, approvals, permits, expirations of waiting periods or authorizations in connection with the Merger and the other transactions contemplated by this Agreement without the prior written consent of Parent (which, subject to this Section 6.5(a) may be withheld in Parent’s sole discretion). Subject to applicable Laws relating to the exchange of information, Parent and the Company shall have the right to review in advance, and to the extent practicable each will consult with the other onparty, in each case subject to applicable laws relating to the exchange of information, with respect to all of the information relating to Parent or the Company, as the case may be, such other party and any of their respective its Subsidiaries, that appears which appear in any filing made with, or written materials submitted to, any third party and/or or any Governmental Entity in connection with the Merger and the other transactions contemplated by this Agreement. To In exercising the extent permitted by applicable Lawforegoing right, each party of BancWest and FHI agree to act reasonably and as promptly as practicable. Each of BancWest and FHI agrees that it shall, and shall provide the other with copies of all correspondence between it (or cause its advisors) and any Governmental Entity relating to the Merger and the other transactions contemplated by this Agreement andrespective Subsidiaries to, to the extent reasonably practicable, consult with the other party with respect to the obtaining of all telephone calls permits, consents, approvals and meetings with a authorizations of all third parties and Governmental Entity regarding Entities necessary or advisable to consummate the transactions contemplated by this Agreement shall include representatives and it will keep the other party apprised of Parent and the Company. In exercising status of matters relating to completion of the foregoing rights, the Company and Parent each shall act reasonably and as promptly as reasonably practicabletransactions contemplated hereby.
Appears in 1 contract
Cooperation. The Company Each party hereto will fully cooperate with the other parties, their counsel and Parent shallaccountants in connection with any steps required to be taken as part of its obligations under this Agreement, including, without limitation, the obtaining of the financing to fund the Closing Consideration as described in Section 1.6.1(c)(i) herein and the obtaining of the unqualified written approval of Nasdaq or AMEX, as applicable, for the listing of the PDPA Common Stock on the Nasdaq Small Cap Market or AMEX. Each party will use its best efforts to cause all conditions to this Agreement to be satisfied as promptly as possible and to obtain all consents and approvals necessary for the due and punctual performance of this Agreement and for the satisfaction of the conditions hereof. No party will undertake any course of action inconsistent with this Agreement or that would make any representations, warranties or agreements made by such party in this Agreement untrue or any conditions precedent to this Agreement unable to be satisfied at or prior to the Closing. At the Closing, each applicable party will execute the Employment/Consulting Agreements, the Escrow Agreement, the Registration Rights Agreement and the Lockup Agreement, each in the form attached hereto as an exhibit to this Agreement, subject to Section 6.2, cooperate with each other and use, and shall cause their respective Subsidiaries to, use their respective 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 on its part under this Agreement and applicable Laws to consummate and make effective the Merger and the other transactions contemplated by this Agreement as promptly as reasonably practicable (it being understood that nothing contained in this Agreement shall require Parent to obtain any consents, registrations, approvals, permits, expirations of waiting periods or authorizations prior modifications to the Termination Date), including preparing and filing as promptly as Escrow Agreement reasonably practicable all documentation to effect all necessary notices, reports and other filings (including requested by filing no later than 20 calendar days after the date of this Agreement all applications required to be filed with the FCC and the notification and report form required under the HSR Act; provided that the failure to file within such 20-day period shall not constitute a breach of this Agreement) and to obtain as promptly as reasonably practicable all consents, registrations, approvals, permits, expirations of waiting periods 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. To the extent necessary or advisable to obtain any consent, registration, approval, permit, expiration of waiting period or authorization from any Governmental Entity in order to consummate the Merger prior to the Termination Date, (x) Parent shall, and shall cause its Subsidiaries to, and commit to cause the Company and its Subsidiaries to, take the actions and agree to those undertakings set forth on Section 6.5(a) of the Parent Disclosure Letter and (y) Parent shall, and shall cause its Subsidiaries to take, other actions involving Parent and its Subsidiaries that are in the aggregate de minimis (for the avoidance of doubt, not involving any divestiture, holding separate any business or assets or other similar action). Except as provided in the immediately preceding sentence, nothing in this Agreement shall require, or be construed to require, (i) Parent or any of its Subsidiaries to take or refrain from taking any action (including any divestiture, holding separate any business or assets or other similar action) or to agree to any restriction or condition Escrow Agent with respect to any assets, operations, business or its obligations under the conduct of business of Parent or any of its Subsidiaries and (ii) Parent, Escrow Agreement that do not impact the Company or any of their respective Subsidiaries to take or refrain from taking any action (including any divestiture, holding separate any business or assets or other similar action) or to agree to any restriction or condition with respect to any assets, operations, business or the conduct of business right of the Company and its Subsidiaries, if, in parties to demand the case of this clause (ii), any such action, failure to act, restriction, condition or agreement, individually or in the aggregate, would reasonably be likely to have a Company Material Adverse Effect (read without regard to the exceptions set forth therein and without giving effect to clause (A) thereof) (except as provided in the immediately preceding sentence, the occurrence of any release of the matters specified in clause (i) or clause (ii) above shall constitute a “Regulatory Material Adverse Effect”)property subject to escrow thereunder, which modifications are acceptable to each party acting with commercially reasonable discretion. In addition, in measuring whether a Regulatory Material Adverse Effect has occurred, the expected loss of any reasonably expected synergies (both cost and revenue) relating to any restriction or condition The Escrow Agent shall be taken into account as if the Company had an adverse effect reasonably acceptable to its financial condition and results of operations equal to the expected amount of applicable synergies affected by any such restriction or condition. The Company and its Subsidiaries shall not agree to any actionseach party, restrictions or conditions acting with respect to obtaining any consents, registrations, approvals, permits, expirations of waiting periods or authorizations in connection with the Merger and the other transactions contemplated by this Agreement without the prior written consent of Parent (which, subject to this Section 6.5(a) may be withheld in Parent’s sole commercially reasonable discretion). Subject to applicable Laws relating to the exchange of information, Parent and the Company shall have the right to review in advance, and to the extent practicable each will consult the other on, all of the information relating to Parent or the Company, as the case may be, and any of their respective Subsidiaries, that appears in any filing made with, or written materials submitted to, any third party and/or any Governmental Entity in connection with the Merger and the other transactions contemplated by this Agreement. To the extent permitted by applicable Law, each party shall provide the other with copies of all correspondence between it (or its advisors) and any Governmental Entity relating to the Merger and the other transactions contemplated by this Agreement and, to the extent reasonably practicable, all telephone calls and meetings with a Governmental Entity regarding the transactions contemplated by this Agreement shall include representatives of Parent and the Company. In exercising the foregoing rights, the Company and Parent each shall act reasonably and as promptly as reasonably practicable.
Appears in 1 contract
Sources: Merger Agreement (Pipeline Data Inc)
Cooperation. (i) The Company and Parent shall, subject to Section 6.2, Parties shall cooperate with each other and use, and shall cause their respective Subsidiaries to, use their respective in all reasonable best efforts ways to take or cause to be taken all actions, and do or cause to be done all things, necessary, proper or advisable on its part under this Agreement and applicable Laws to consummate and make effective effectuate the Merger and the other transactions transition in ownership contemplated by this Agreement as promptly efficiently, appropriately, and punctually as reasonably practicable possible, including cooperating with obtaining required third Person consents and concerning the receipt of revenues and the payment of expenses. Without limiting the foregoing, the Parties agree (it being understood i) that nothing contained in this Agreement shall require Parent if SELLER receives any revenues relating to obtain the Facilities that are attributable to the period on and after the Adjustment Time, or if BUYER receives any consents, registrations, approvals, permits, expirations of waiting periods or authorizations revenues relating to the Facilities that are attributable to the period prior to the Termination Date)Adjustment Time, then such Party will pay such amount over to the other Party within 30 days of its receipt of such revenues, and (ii) that if a Party is notified (including preparing and filing receiving all reasonable details) of expenses incurred by the other Party for which such notified Party is responsible in accordance with this Agreement, the responsible Party shall pay such amount over to the other Party as promptly as reasonably practicable all documentation to effect all necessary notices, reports possible and other filings (including by filing no later than 20 calendar in any event within 30 days after the date of this Agreement all applications required receipt.
(ii) Notwithstanding Section 7(d)(i), above, and with regard to be filed with the FCC Serial Nos. 23549, 22328, 22300, 22308, 22309, 22310, 22311, and the notification and report form required 22303 as shown on Exhibit A-2, under the HSR Act; provided that the failure to file within such 20-day period heading Partial Assignments, SELLER shall not constitute a breach of this Agreement) and to obtain as promptly as reasonably practicable all consents, registrations, approvals, permits, expirations of waiting periods 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. To the extent necessary or advisable to obtain any consent, registration, approval, permit, expiration of waiting period or authorization from any Governmental Entity in order to consummate the Merger prior to the Termination Date, (x) Parent shall, and shall cause its Subsidiaries to, and commit use Reasonable Efforts to cause the Company and State of New Mexico to change its Subsidiaries to, take records to reflect that SELLER is the actions and agree record holder of those aforementioned easement.
(iii) While SELLER intends to those undertakings set forth on Section 6.5(a) of convey the Parent Disclosure Letter and (y) Parent shall, and shall cause its Subsidiaries to take, other actions involving Parent and its Subsidiaries that are in Assets at the aggregate de minimis (for the avoidance of doubt, not involving any divestiture, holding separate any business or assets or other similar action). Except as provided in the immediately preceding sentence, nothing in this Agreement shall require, or be construed to require, (i) Parent or any of its Subsidiaries to take or refrain from taking any action (including any divestiture, holding separate any business or assets or other similar action) or to agree to any restriction or condition with respect to any assets, operations, business or the conduct of business of Parent or any of its Subsidiaries and (ii) Parent, the Company or any of their respective Subsidiaries to take or refrain from taking any action (including any divestiture, holding separate any business or assets or other similar action) or to agree to any restriction or condition with respect to any assets, operations, business or the conduct of business of the Company and its Subsidiaries, ifClosing, in the case of this clause (ii), any such action, failure to act, restriction, condition or agreement, individually or in event it is determined after the aggregate, would reasonably be likely to have a Company Material Adverse Effect (read without regard to the exceptions set forth therein and without giving effect to clause Closing that: (A) thereof) (except as provided any part of the Assets were not in fact conveyed to BUYER, and that the title to any part of the Assets is incorrectly in the immediately preceding sentencename of SELLER, or (B) any asset not an Asset is conveyed to BUYER and that the occurrence title to such asset is incorrectly in the name of any BUYER then each Party shall take all such action necessary to correctly convey such Assets to BUYER, or such assets to SELLER.
(iv) Solely for the purpose of the matters specified in clause (i) or clause (ii) above complying with SELLER's obligations under Section 5(f)(ix), BUYER shall constitute a “Regulatory Material Adverse Effect”). In addition, in measuring whether a Regulatory Material Adverse Effect has occurred, the expected loss of any reasonably expected synergies (both cost give SELLER and revenue) relating to any restriction or condition shall be taken into account as if the Company had an adverse effect to its financial condition and results of operations equal designees access to the expected amount of applicable synergies affected by any such restriction or condition. The Company and its Subsidiaries shall not agree to any actions, restrictions or conditions Assets in order that SELLER may conduct Remediation in accordance with respect to obtaining any consents, registrations, approvals, permits, expirations of waiting periods or authorizations in connection with the Merger and the other transactions contemplated by this Agreement without the prior written consent of Parent (which, subject to this Section 6.5(a) may be withheld in Parent’s sole discretion5(f)(ix). Subject to applicable Laws relating to the exchange of information, Parent and the Company shall have the right to review in advance, and to the extent practicable each will consult the other on, all of the information relating to Parent or the Company, as the case may be, and any of their respective Subsidiaries, that appears in any filing made with, or written materials submitted to, any third party and/or any Governmental Entity in connection with the Merger and the other transactions contemplated by this Agreement. To the extent permitted by applicable Law, each party shall provide the other with copies of all correspondence between it (or its advisors) and any Governmental Entity relating to the Merger and the other transactions contemplated by this Agreement and, to the extent reasonably practicable, all telephone calls and meetings with a Governmental Entity regarding the transactions contemplated by this Agreement shall include representatives of Parent and the Company. In exercising the foregoing rights, the Company and Parent each shall act reasonably and as promptly as reasonably practicable.
Appears in 1 contract
Sources: Asset Purchase and Sale Agreement (Duke Energy Field Services LLC)
Cooperation. The Company and Parent shall(a) Subject to applicable Law, subject to Section 6.2, cooperate with each other and use, and Party shall cause their respective Subsidiaries to, use their respective 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 on its part under this Agreement and applicable Laws to consummate and make effective the Merger and the other transactions contemplated by this Agreement as promptly as reasonably practicable (it being understood that nothing contained in this Agreement shall require Parent to obtain any consents, registrations, approvals, permits, expirations of waiting periods or authorizations prior to the Termination Date), including preparing and filing as promptly as reasonably practicable all documentation to effect all necessary notices, reports and other filings (including by filing no later than 20 calendar days after the date of this Agreement all applications required to be filed with the FCC and the notification and report form required under the HSR Act; provided that the failure to file within such 20-day period shall not constitute a breach of this Agreement) and to obtain as promptly as reasonably practicable all consents, registrations, approvals, permits, expirations of waiting periods 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. To the extent necessary or advisable to obtain any consent, registration, approval, permit, expiration of waiting period or authorization from any Governmental Entity in order to consummate the Merger prior to the Termination Date, (x) Parent shallcooperate, and shall cause its Subsidiaries to, and commit to cause the Company and its Subsidiaries to, take the actions and agree to those undertakings set forth on Section 6.5(a) of the Parent Disclosure Letter and (y) Parent shall, and shall cause its respective Subsidiaries to takecooperate, with reasonable requests for information from the other actions involving Parent Party in matters relating to the corporate and its Subsidiaries administrative services and knowledge that are in the aggregate de minimis (for the avoidance of doubt, not involving any divestiture, holding separate any business or assets or other similar action). Except as A) were historically provided in the immediately preceding sentence, nothing in this Agreement shall require, or be construed to require, (i) Parent or any of its Subsidiaries to take or refrain from taking any action (including any divestiture, holding separate any business or assets or other similar action) or to agree to any restriction or condition with respect to any assets, operations, business or the conduct of business of Parent or any of by Alliant Techsystems Inc. and its Subsidiaries and (iiB) Parent, are reasonably necessary for a Party to operate on a stand-alone basis following the Company or any of their respective Subsidiaries Distribution Date. Such cooperation shall include reasonable access to take or refrain from taking any action (including any divestiture, holding separate any business or assets or other similar action) or to agree to any restriction or condition with respect to any assets, operations, business or the conduct of business Records and personnel of the Company other Party during normal business hours and its Subsidiariesthe delivery of instruments or documents as may be reasonably requested by the other Party, ifprovided that no Party shall be required to provide information if (x) such access would unreasonably disrupt the normal operations of the Party or (y) such information constitutes proprietary customer or supplier information or if the disclosure of such information is legally or contractually prohibited or would result in the loss of attorney client privilege; provided that, in the case of this clause (iiy), the withholding party first uses commercially reasonable efforts to provide such information in a manner that does not violate any such actiondisclosure obligations or privilege. Such cooperation (including reasonable access to Records and personnel and delivery of instruments and documents) shall be provided at no cost; provided, failure however, that neither Party shall be required to actpay any out-of-pocket amounts to third parties in connection with the foregoing. For the avoidance of doubt, restrictioncooperation under this Section 2.10(c) shall not apply to requests from Vista Outdoor to the extent such requests would constitute Services as set forth in the attached Schedules.
(b) Each of Vista Outdoor and Orbital ATK shall designate (i) a principal representative (each, condition or agreementa “Principal Representative”) to act as the principal contact person with respect to all issues relating to the provision of the Services pursuant to this Agreement and (ii) representatives (each, individually an “Additional Representative” and, together with the Principal Representatives, the “Representatives”) to act as additional contact persons with respect to issues relating to the provision of the Services, and the names of such Representatives shall be provided in writing to the other party promptly following the date hereof. The Representatives shall hold review meetings by telephone or in the aggregateperson, would reasonably be likely to have a Company Material Adverse Effect (read without regard to the exceptions set forth therein and without giving effect to clause as mutually agreed upon, (A) thereof) during the first 60 days after the date of this Agreement, approximately once every two weeks, and (except as provided B), thereafter, approximately once per month, in each case, to discuss issues relating to the immediately preceding sentence, provision of the occurrence Services under this Agreement and to discuss the migration of the Services to Vista Outdoor’s own systems and technology (or those of any third-party service provider engaged by Vista Outdoor to assume the provision of the matters specified one or more Services) as described in clause Section 2.07 (i) or clause (ii) above shall constitute a “Regulatory Material Adverse EffectReview Meetings”). In addition, in measuring whether a Regulatory Material Adverse Effect has occurredthe Review Meetings, the expected loss of any reasonably expected synergies (both cost and revenue) relating to any restriction or condition Representatives shall be taken into account as if the Company had an adverse effect to its financial condition and results of operations equal to the expected amount of applicable synergies affected by responsible for discussing any such restriction or condition. The Company and its Subsidiaries shall not agree to any actions, restrictions or conditions with respect to obtaining any consents, registrations, approvals, permits, expirations of waiting periods or authorizations in connection problems identified with the Merger and the other transactions contemplated by this Agreement without the prior written consent of Parent (which, subject to this Section 6.5(a) may be withheld in Parent’s sole discretion). Subject to applicable Laws relating to the exchange of information, Parent and the Company shall have the right to review in advance, and to the extent practicable each will consult the other on, all provision of the information relating to Parent or the Company, as the case may be, and any of their respective Subsidiaries, that appears in any filing made with, or written materials submitted to, any third party and/or any Governmental Entity in connection with the Merger and the other transactions contemplated by this Agreement. To the extent permitted by applicable Law, each party shall provide the other with copies of all correspondence between it (or its advisors) and any Governmental Entity relating to the Merger and the other transactions contemplated by this Agreement Services and, to the extent reasonably practicable, all telephone calls and meetings with a Governmental Entity regarding any changes in the transactions contemplated by this Agreement shall include representatives provision of Parent and the Company. In exercising the foregoing rightsServices are agreed upon, the Company implementation of such changes.
(c) In the event that (i) there is nonperformance of any Service as a result of a Force Majeure Event or (ii) the provision of a Service would violate any Law or any Contract, license or permit to which Orbital ATK or any of its Affiliates is a party, the Parties shall work together in good faith to arrange for an alternative means by which Vista Outdoor and Parent each its Subsidiaries may obtain the Services so affected. If the Parties arrange such alternative means, Orbital ATK shall act reasonably provide the Services in accordance therewith and any expenses incurred by Orbital ATK in the provision of such Services through such alternative means shall be borne as promptly as reasonably practicablemutually agreed by the Parties (considering the expenses otherwise included in the Fees).
(d) Each of Vista Outdoor and Orbital ATK may, effective upon written notice to the other party, change its Principal Representative or any Additional Representative at any time.
(e) Vista Outdoor acknowledges that the completion of Services by Orbital ATK may depend upon the provision of certain materials and information or the taking of certain actions by Vista Outdoor or one of its Subsidiaries, and Orbital ATK shall not be responsible for the failure to provide Services to the extent such failure results from the failure of Vista Outdoor to provide such materials or information or to take such actions.
Appears in 1 contract
Cooperation. The Company Subject to applicable data privacy restrictions, confidentiality obligations owed to third parties and Parent shallother applicable restrictions on their respective ability to provide information, subject the LBI Trustee, on the one hand, and LBIE and its Joint Administrators, on the other hand, agree to Section 6.2use reasonable efforts to provide one another information relating to the SIPA Proceeding and the UK Proceeding, cooperate with respectively, and provide to each other and usesuch other assistance as may be reasonably requested, and shall cause their respective Subsidiaries to, use their respective 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 on its part under this Agreement and applicable Laws to consummate and make effective the Merger and the other transactions contemplated by this Agreement as promptly as reasonably practicable (it being understood that nothing contained in this Agreement shall require Parent to obtain any consents, registrations, approvals, permits, expirations of waiting periods or authorizations prior to the Termination Date), including preparing and filing as promptly as reasonably practicable all documentation to effect all necessary notices, reports and other filings (including by filing no later than 20 calendar days after the date of this Agreement all applications required to be filed with the FCC and the notification and report form required under the HSR Act; provided that the failure to file within such 20-day period shall not constitute a breach of this Agreement) and to obtain as promptly as reasonably practicable all consents, registrations, approvals, permits, expirations of waiting periods and authorizations necessary or advisable to be obtained from any third party and/or any Governmental Entity each case in order to consummate assist each other in resolving Claims with respect to other Lehman Entities and other creditors and otherwise concluding the Merger administration of their respective bankruptcy and administration cases; provided, that (i) any information supplied by either the LBI Trustee, on the one hand, or LBIE or the Joint Administrators, on the other hand, pursuant to this Article XXII shall be supplied on the terms that the providing party incurs no obligation or liability to the receiving party in connection therewith, and (ii) the obligation to cooperate set forth in this Article XXII shall not require any Party to expend any funds which it considers unreasonable (unless the requesting party agrees in writing to reimburse the providing party for such expenditure, including any irrecoverable VAT) or otherwise to comply with any request that it considers to be unduly burdensome. Nothing in this Article XXII shall require a Party to act (including to refrain from acting) in any manner that it considers, in its sole discretion, to be adverse to its interests or inconsistent with its fiduciary duties or other legally binding obligations. Notwithstanding anything in this Article XXII to the contrary, the LBI Trustee agrees that if it shall be definitively and finally determined (as determined in good faith by the LBI Trustee) that neither the Korean Accounts nor the funds in the Korean Accounts constitute Barclays APA Transferred Property, or if BCI shall (pursuant to an instrument reasonably satisfactory to the LBI Trustee) consent thereto in writing, then the LBI Trustee shall, promptly upon the occurrence of such development (if the Effective Time has occurred) or (if the Effective Time has not occurred) promptly after the occurrence of the other transactions contemplated by this Agreement. To Effective Time, to the extent necessary or advisable to obtain any consent(unless BCI shall have consented thereto as described above) that the LBI Trustee may do so without violating the Barclays APA (as determined in good faith by the LBI Trustee), registration, approval, permit, expiration of waiting period or authorization from any Governmental Entity in order to consummate the Merger prior give to the Termination Dateregulator of LBIE’s branch in Seoul, South Korea (xand/or such Persons as LBIE may direct) Parent shall, and shall cause its Subsidiaries to, and commit his consent to cause the Company and its Subsidiaries to, take the actions and agree to those undertakings set forth on Section 6.5(a) transfer of the Parent Disclosure Letter and (y) Parent shall, and shall cause its Subsidiaries to take, other actions involving Parent and its Subsidiaries that are funds in the aggregate de minimis (for Korean Accounts to LBIE or as LBIE may otherwise direct. For the avoidance of doubt, not involving the LBI Trustee acknowledges and agrees that, pursuant to Section 6.01 and subject to Section 2.01(a)(C) as regards any divestitureBarclays APA Transferred Property, holding separate upon the occurrence of the Effective Time, he shall cease to have any business beneficial interest in the Korean Accounts or assets the funds in the Korean Accounts. The LBI Trustee shall, upon request from LBIE, promptly provide such reasonable assistance as LBIE may require in relation to any potential, threatened or pending Claim or proceeding arising out of, relating to or in connection with warrants, options or other similar action). Except as provided securities issued by (or alleged to have been issued by) ▇▇▇▇▇▇ Brothers (Luxembourg) Equity Finance SA, including reasonable assistance in the immediately preceding sentencearea of the provision of information, documents and witness evidence including for use before any court or tribunal hearing such Claim or proceeding, provided that nothing in this Agreement sentence shall requirerequire the LBI Trustee, in providing such reasonable assistance, to make any specific assertion of fact to any court or be construed to require, (i) Parent or any of its Subsidiaries to take or refrain from taking any action (including any divestiture, holding separate any business or assets or other similar action) tribunal or to agree make any specific legal argument to any restriction court or condition with respect to any assets, operations, business or the conduct of business of Parent or any of its Subsidiaries and (ii) Parent, the Company or any of their respective Subsidiaries to take or refrain from taking any action (including any divestiture, holding separate any business or assets or other similar action) or to agree to any restriction or condition with respect to any assets, operations, business or the conduct of business of the Company and its Subsidiaries, if, in the case of this clause (ii), any such action, failure to act, restriction, condition or agreement, individually or in the aggregate, would reasonably be likely to have a Company Material Adverse Effect (read without regard to the exceptions set forth therein and without giving effect to clause (A) thereof) (except as provided in the immediately preceding sentence, the occurrence of any of the matters specified in clause (i) or clause (ii) above shall constitute a “Regulatory Material Adverse Effect”). In addition, in measuring whether a Regulatory Material Adverse Effect has occurred, the expected loss of any reasonably expected synergies (both cost and revenue) relating to any restriction or condition shall be taken into account as if the Company had an adverse effect to its financial condition and results of operations equal to the expected amount of applicable synergies affected by any such restriction or condition. The Company and its Subsidiaries shall not agree to any actions, restrictions or conditions with respect to obtaining any consents, registrations, approvals, permits, expirations of waiting periods or authorizations in connection with the Merger and the other transactions contemplated by this Agreement without the prior written consent of Parent (which, subject to this Section 6.5(a) may be withheld in Parent’s sole discretion). Subject to applicable Laws relating to the exchange of information, Parent and the Company shall have the right to review in advance, and to the extent practicable each will consult the other on, all of the information relating to Parent or the Company, as the case may be, and any of their respective Subsidiaries, that appears in any filing made with, or written materials submitted to, any third party and/or any Governmental Entity in connection with the Merger and the other transactions contemplated by this Agreement. To the extent permitted by applicable Law, each party shall provide the other with copies of all correspondence between it (or its advisors) and any Governmental Entity relating to the Merger and the other transactions contemplated by this Agreement and, to the extent reasonably practicable, all telephone calls and meetings with a Governmental Entity regarding the transactions contemplated by this Agreement shall include representatives of Parent and the Company. In exercising the foregoing rights, the Company and Parent each shall act reasonably and as promptly as reasonably practicabletribunal.
Appears in 1 contract
Sources: Settlement Agreement
Cooperation. The Company and Parent shall, subject to Section 6.2, cooperate with each other and use, and shall cause their respective Subsidiaries to, use their respective 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 on its part under this Agreement and applicable Laws to consummate and make effective the Merger and the other transactions contemplated by this Agreement as promptly as reasonably practicable (it being understood that nothing contained in this Agreement shall require Parent to obtain any consents, registrations, approvals, permits, expirations of waiting periods or authorizations prior to the Termination Date), including preparing and filing as promptly as reasonably practicable all documentation to effect all necessary notices, reports and other filings (including by filing no later than 20 calendar days after a) From the date of this Agreement all applications required to be filed hereof, in connection with the FCC and the notification and report form required under the HSR Act; provided that the failure to file within such 20-day period shall not constitute a breach of this Agreement) and to obtain as promptly as reasonably practicable all consents, registrations, approvals, permits, expirations of waiting periods 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 Purchaser's financing of the other transactions contemplated by this Agreement. To , the extent necessary or advisable to obtain any consentSeller will reasonably cooperate with the Purchaser, registrationat the Purchaser's cost, approval, permit, expiration of waiting period or authorization from any Governmental Entity in order to consummate the Merger prior to the Termination Date, (x) Parent shall, and shall cause its Subsidiaries to, and commit to cause the Company and its Subsidiaries to, take the actions and agree to those undertakings set forth on Section 6.5(a) of the Parent Disclosure Letter and (y) Parent shall, and shall cause its Subsidiaries to take, other actions involving Parent and its Subsidiaries that are in the aggregate de minimis (for the avoidance of doubt, not involving any divestiture, holding separate any business or assets or other similar action). Except as provided in the immediately preceding sentence, nothing in this Agreement shall require, or be construed to require, including (i) Parent or any providing the financial institutions engaged by the Purchaser and participating in financing of its Subsidiaries to take or refrain from taking any action (including any divestiture, holding separate any business or assets or other similar action) or to agree to any restriction or condition with respect to any assets, operations, business or the conduct of business of Parent or any of its Subsidiaries and (ii) Parent, the Company or any of their respective Subsidiaries to take or refrain from taking any action (including any divestiture, holding separate any business or assets or other similar action) or to agree to any restriction or condition with respect to any assets, operations, business or the conduct of business of the Company and its Subsidiaries, if, in the case of this clause (ii), any such action, failure to act, restriction, condition or agreement, individually or in the aggregate, would reasonably be likely to have a Company Material Adverse Effect (read without regard to the exceptions set forth therein and without giving effect to clause (A) thereof) (except as provided in the immediately preceding sentence, the occurrence of any of the matters specified in clause (i) or clause (ii) above shall constitute a “Regulatory Material Adverse Effect”). In addition, in measuring whether a Regulatory Material Adverse Effect has occurred, the expected loss of any reasonably expected synergies (both cost and revenue) relating to any restriction or condition shall be taken into account as if the Company had an adverse effect to its financial condition and results of operations equal to the expected amount of applicable synergies affected by any such restriction or condition. The Company and its Subsidiaries shall not agree to any actions, restrictions or conditions with respect to obtaining any consents, registrations, approvals, permits, expirations of waiting periods or authorizations in connection with the Merger and the other transactions contemplated by this Agreement without the prior written consent of Parent (which, subject to this Section 6.5(a) may be withheld in Parent’s sole discretion). Subject to applicable Laws relating to the exchange of information, Parent and the Company shall have the right to review in advance, and to the extent practicable each will consult the other on, all of the information relating to Parent or the Company, as the case may be, and any of their respective Subsidiaries, that appears in any filing made with, or written materials submitted to, any third party and/or any Governmental Entity in connection with the Merger and the other transactions contemplated by this Agreement. To the extent permitted by applicable Law, each party shall provide the other with copies of all correspondence between it (or its advisors) and any Governmental Entity relating to the Merger and the other transactions contemplated by this Agreement and, to the extent reasonably practicable, all telephone calls and meetings with a Governmental Entity regarding the transactions contemplated by this Agreement shall include representatives of Parent all material information (financial and other) with respect to the Purchased Business, the Purchased Assets and the Company. In exercising transactions contemplated by this Agreement reasonably requested by the foregoing rightsPurchaser as may be necessary for the Purchaser to obtain the financing contemplated by the Commitment Letter; and (ii) cause the Seller's chief financial officer, its treasurer, members of the chief financial officer's staff, and the manager of the Purchased Business, as well as Seller's accountants, to be reasonably available (which may, at their option, be by telephone), to financial institutions engaged by the Purchaser and participating in the financing of the transactions contemplated by this Agreement, the Company Purchaser's counsel and Parent each the Purchaser's accountants to participate in due diligence sessions as may reasonably be necessary for the Purchaser to obtain the financing and any audit or legal opinions customary therewith necessary for the consummation of the transactions contemplated by this Agreement; provided, that the Purchaser will use reasonable efforts to minimize the amount of time that the Seller's officers and employees are required to devote to the activities described in this Section 5.14(a), so that such activities do not detract materially from the ongoing performance of such persons' regular duties and responsibilities to the Seller.
(b) From the date hereof, the Seller shall act reasonably cause their respective officers, directors, employees, agents, representatives, accountants and counsel to assist the Purchaser and its officers, employees, agents, accountants, counsel, financing sources and representatives in the preparation on a timely basis of any financial statements in respect of the Purchased Business prepared in compliance with Regulation S-X under the Securities Act of 1933, as promptly as reasonably practicableamended, the Purchaser may be required to include in any filing with any Governmental Authority following the Closing Date. All the reasonable documented out-of-pocket fees and expenses incurred by the Seller in connection with complying with this Section 5.14(b) shall be borne by the Purchaser.
Appears in 1 contract
Cooperation. The Company (a) Subject to the terms and Parent shallconditions herein provided, subject each of the parties hereto agrees to Section 6.2, cooperate with each other and use, and shall cause their respective Subsidiaries to, use their respective all reasonable best efforts to take or cause to be taken all actions, actions and to do or cause to be done all things, things reasonably necessary, proper or advisable on its part under this Agreement and applicable Laws Applicable Law to consummate and make effective the Merger and the other transactions contemplated by this Agreement as promptly as reasonably practicable (it being understood that nothing contained in this Agreement shall require Parent to obtain any consents, registrations, approvals, permits, expirations and each of waiting periods or authorizations prior to the Termination Date)other Transaction Documents, including preparing using all reasonable efforts to do the following: (i) cooperate in the preparation and filing as promptly as reasonably practicable all documentation to effect all necessary notices, reports and other of any filings (including by filing no later than 20 calendar days after the date of this Agreement all applications required to or notifications that must be filed with the FCC and the notification and report form required made under the HSR Act; provided that the failure Act or otherwise to file within such 20-day period shall not constitute a breach of this Agreement) and to obtain as promptly as reasonably practicable all consents, registrations, approvals, permits, expirations of waiting periods and authorizations necessary or advisable to be obtained from any third party and/or any Governmental Entity in order to consummate Entities; (ii) obtain consents of all third parties and Governmental Entities necessary, proper, advisable or reasonably requested by Buyer or the Merger or any Company, for the consummation of the other transactions contemplated by this Agreement. To the extent necessary or advisable to obtain ; (iii) contest any consent, registration, approval, permit, expiration of waiting period or authorization from any Governmental Entity in order to consummate the Merger prior legal proceeding relating to the Termination Date, (x) Parent shall, and shall cause its Subsidiaries to, and commit to cause the Company and its Subsidiaries to, take the actions and agree to those undertakings set forth on Section 6.5(a) of the Parent Disclosure Letter and (y) Parent shall, and shall cause its Subsidiaries to take, other actions involving Parent and its Subsidiaries that are in the aggregate de minimis (for the avoidance of doubt, not involving any divestiture, holding separate any business or assets or other similar action). Except as provided in the immediately preceding sentence, nothing in this Agreement shall require, or be construed to require, (i) Parent or any of its Subsidiaries to take or refrain from taking any action (including any divestiture, holding separate any business or assets or other similar action) or to agree to any restriction or condition with respect to any assets, operations, business or the conduct of business of Parent or any of its Subsidiaries and (ii) Parent, the Company or any of their respective Subsidiaries to take or refrain from taking any action (including any divestiture, holding separate any business or assets or other similar action) or to agree to any restriction or condition with respect to any assets, operations, business or the conduct of business of the Company and its Subsidiaries, if, in the case of this clause (ii), any such action, failure to act, restriction, condition or agreement, individually or in the aggregate, would reasonably be likely to have a Company Material Adverse Effect (read without regard to the exceptions set forth therein and without giving effect to clause (A) thereof) (except as provided in the immediately preceding sentence, the occurrence of any of the matters specified in clause (i) or clause (ii) above shall constitute a “Regulatory Material Adverse Effect”). In addition, in measuring whether a Regulatory Material Adverse Effect has occurred, the expected loss of any reasonably expected synergies (both cost and revenue) relating to any restriction or condition shall be taken into account as if the Company had an adverse effect to its financial condition and results of operations equal to the expected amount of applicable synergies affected by any such restriction or condition. The Company and its Subsidiaries shall not agree to any actions, restrictions or conditions with respect to obtaining any consents, registrations, approvals, permits, expirations of waiting periods or authorizations in connection with the Merger and the other transactions contemplated by this Agreement without agreement; and (iv) execute any additional instruments reasonably necessary to consummate the prior written consent transactions contemplated hereby. The Company agrees to use all reasonable efforts to encourage the employees of Parent the Company Subs to accept any offers of employment extended by Buyer. If at any time after the Closing any further action is necessary to carry out the purposes of this Agreement, the proper officers and directors of each party hereto shall take all such necessary action.
(which, subject to this Section 6.5(ab) may be withheld in Parent’s sole discretion). Subject to applicable Laws relating to the exchange of information, Parent Buyer and the Company shall have the right to review in advancewill consult and cooperate with one another, and to consider in good faith the extent practicable each will consult the other onviews of one another, all of the information relating to Parent or the Company, as the case may be, and any of their respective Subsidiaries, that appears in any filing made with, or written materials submitted to, any third party and/or any Governmental Entity in connection with the Merger and the other transactions contemplated any analyses, appearances, presentations, letters, white papers, memoranda, briefs, arguments, opinions or proposals made or submitted by or on behalf of any party hereto in connection with proceedings under or relating to any foreign, federal, or state antitrust, competition, or fair trade law. In this Agreement. To the extent permitted by applicable Lawregard but without limitation, each party hereto shall provide promptly inform the other with copies of all correspondence any material communication between it (or its advisors) and any Governmental Entity relating to the Merger such party and the Federal Trade Commission, the Antitrust Division of the United States Department of Justice, or any other transactions contemplated by this Agreement andfederal, to the extent reasonably practicable, all telephone calls and meetings with a foreign or state antitrust or competition Governmental Entity regarding the transactions contemplated herein.
(c) Notwithstanding any provision of this Agreement or otherwise, in connection with the compliance by the parties hereto with any Applicable Law (including the HSR Act and similar merger notification laws or regulations of any foreign Governmental Entity) and obtaining the consent or approval of any Governmental Entity whose consent or approval may be required to consummate the transactions contemplated by this Agreement Agreement, Buyer shall include representatives not be required, or be construed to be required, to proffer to, or agree to: (i) sell or hold separate, or agree to sell or hold separate, before or after the Closing, any assets, businesses or any interests in any assets or businesses, of Parent and Buyer, the Company. In exercising the foregoing rights, any Company Sub or any of their respective affiliates (or to consent to any sale, or agreement to sell, by Buyer, the Company and Parent each shall act reasonably and as promptly as reasonably practicableor any Company Sub of any assets or businesses, or any interests in any assets or businesses), or any change in or restriction on the operation by Buyer, the Company or any Company Sub of any assets or businesses, (ii) enter into any agreement or be bound by any obligation that, in Buyer's good faith judgment, would likely have an adverse effect on the benefits to Buyer of the transactions contemplated by this Agreement, or (iii) take any other action that, in Buyer's good faith judgment, would be adverse to Buyer.
Appears in 1 contract
Cooperation. (i) The Company and EFIH, on the one hand, and Parent shalland the Merger Subs, subject to Section 6.2on the other hand, shall cooperate with each other and use, and shall cause their respective Subsidiaries to(other than, use with respect to the Company and EFIH, the Oncor Entities, subject to Section 6.20 and with respect to Parent, its regulated Subsidiaries and regulated controlled Affiliates) to use, their respective reasonable best efforts to take or cause to be taken all actions, and do or cause to be done done, and assist and cooperate with the other parties and the Oncor Entities in doing, all things, things reasonably necessary, proper or advisable on its part under this Agreement and applicable Laws to consummate and make effective the Merger and the other transactions contemplated by this Agreement and the Plan of Reorganization, as promptly as reasonably practicable (it being understood that nothing contained in this Agreement shall require Parent to obtain any consents, registrations, approvals, permits, expirations of waiting periods or authorizations prior to the Termination Date)practicable, including negotiating, preparing and filing as promptly as reasonably practicable all documentation to effect all necessary notices, reports and other filings (including by filing no later than 20 calendar days after the date of this Agreement all applications required to be filed with the FCC and the notification and report form required under the HSR Act; provided that the failure to file within such 20-day period shall not constitute a breach of this Agreement) and to obtain as promptly as reasonably practicable all consents, registrations, approvals, permits, expirations of waiting periods permits and authorizations necessary or advisable to be obtained from any third party and/or any Governmental Entity in order to consummate connection with the Merger or any execution, delivery and performance of this Agreement and the consummation of the other transactions contemplated by this Agreement and the Plan of Reorganization. The Company agrees that, prior to the termination of this Agreement, it will not withdraw any Application (as defined below) made pursuant to the terms of this Agreement or the Plan of Reorganization without the prior written consent of Parent, such consent not to be unreasonably withheld, conditioned or delayed. To the extent necessary or advisable to obtain The Company and Parent shall supply as promptly as reasonably practical any consent, registration, approval, permit, expiration of waiting period or authorization from additional information and documentary material that may be requested by any Governmental Entity in order connection with the Applications; provided that notwithstanding the foregoing or anything else in this Agreement to consummate the contrary, the Company’s and its Subsidiaries’ (other than the Oncor Entities, subject to Section 6.20) sole obligations with respect to the Minority Interest Acquisition are set forth in this Section 6.3, Section 6.18, and Section 6.19.
(ii) The Company and Parent shall use their respective reasonable best efforts to make all filings required of the Company, EFIH, Parent and the Merger prior Subs under the HSR Act in connection with the transactions contemplated by this Agreement which shall be filed as promptly as reasonably practicable, but in no event later than the later to occur of (A) forty-five (45) days after the date hereof and (B) two (2) Business Days following receipt of the Approval Order. The filing fees of the Company and Parent required under the HSR Act in connection with the Mergers shall be at Parent’s sole cost and expense and any other filing fees in connection with any filing(s) under the HSR Act shall be at the cost and expense of the Person considered to be the “acquiring person” pursuant to the Termination Date, HSR Act in connection with such filing(s).
(xiii) Parent shall, pursuant to the Oncor Letter Agreement or otherwise, and the Company and EFIH shall, pursuant to Section 6.20 or otherwise, use their reasonable best efforts to cause Oncor to file with the FERC an application for the FERC Approval as promptly as reasonably practicable, but in no event later than the later to occur of (A) forty-five (45) days after the date hereof and (B) two (2) Business Days following receipt of the Approval Order.
(iv) Each party shall, and shall cause its respective Subsidiaries to(other than, and commit with respect to cause the Company and EFIH, the Oncor Entities subject to Section 6.20 and with respect to Parent, its regulated Subsidiaries to, take and regulated controlled Affiliates) to appear formally (including by providing testimony) or informally before the actions and agree to those undertakings set forth on Section 6.5(a) Bankruptcy Court or any other Governmental Entity if reasonably requested by the other party or required by the Bankruptcy Court or such Governmental Entity in connection with the transactions contemplated by this Agreement or the Plan of the Parent Disclosure Letter and Reorganization.
(yv) Parent shall, pursuant to the Oncor Letter Agreement or otherwise, and shall the Company and EFIH shall, pursuant to Section 6.20 or otherwise, use their reasonable best efforts to cause its Subsidiaries Oncor to takesubmit to the PUCT a single, other actions involving Parent integrated filing (on behalf of the parties) that requests prior approval by the PUCT of the transactions contemplated by this Agreement (the “PUCT Filing”) as promptly as practicable, but in no event later than the later to occur of (A) forty-five (45) days after the date hereof and its Subsidiaries that are in (B) two (2) Business Days following receipt of the aggregate de minimis Approval Order.
(for the avoidance of doubt, not involving any divestiture, holding separate any business or assets or other similar action). Except as provided in the immediately preceding sentence, nothing vi) Notwithstanding anything in this Agreement shall requireSection 6.3 or otherwise in this Agreement, in connection with any filing under the HSR Act (the “HSR Filing”), the PUCT Filing or be construed application submitted to require, (i) Parent the FCC or any of its Subsidiaries to take or refrain from taking any action (including any divestiture, holding separate any business or assets or other similar action) or to agree to any restriction or condition FERC with respect to any assetsthe transactions contemplated by this Agreement (together, operationsthe “FCC/FERC Applications” and, business or together with the conduct of business of Parent or any of its Subsidiaries PUCT Filing and (ii) Parentthe HSR Filing, the “Applications”), the Company or any of their respective Subsidiaries will not object to take or refrain from taking any action (including any divestiture, holding separate any business or assets or other similar action) or to agree to any restriction or condition with respect to any assets, operations, business or the conduct of business of the Company and its Subsidiaries, ifParent leading, in close cooperation with Oncor and in cooperation with the case of this clause (ii)Company, any such action, failure to act, restriction, condition or agreement, individually or in the aggregate, would reasonably be likely to have a Company Material Adverse Effect (read without regard to the exceptions set forth therein and without giving effect to clause (A) the scheduling and conducting of all formal meetings with all Governmental Entities (and the staffs thereof), (B) the coordination and making of all Applications and filings with any Governmental Entity and (except as provided in C) the immediately preceding sentence, the occurrence of any of the matters specified in clause (i) or clause (ii) above shall constitute a “Regulatory Material Adverse Effect”). In addition, in measuring whether a Regulatory Material Adverse Effect has occurred, the expected loss of any reasonably expected synergies (both cost and revenue) relating to any restriction or condition shall be taken into account as if the Company had an adverse effect to its financial condition and results of operations equal to the expected amount of applicable synergies affected by any such restriction or condition. The Company and its Subsidiaries shall not agree to any actions, restrictions or conditions with respect to process for obtaining any consents, registrations, approvals, permitspermits and authorizations of any Governmental Entity, expirations of waiting periods in each case, as may be necessary or authorizations advisable to be made or obtained in connection with the Merger execution, delivery and performance of this Agreement and the other consummation of the transactions contemplated by this Agreement without Agreement, including the prior written consent of Parent (whichClosing Date Transactions and, subject to Sections 6.19 and 6.20, and the Minority Interest Acquisition. Parent shall also have the right to reasonably determine the content, terms and conditions of such Applications (and any amendments or supplements thereto) and filings, but for the avoidance of doubt the PUCT Filing shall contain all of the key terms and undertakings set forth in Exhibit G hereto (the “Key Regulatory Terms”), and to resolve any investigation or other inquiry of any Governmental Entity (and the staffs thereof), including the PUCT, in each case, as may be necessary or reasonably advisable to be made or obtained (in the case of such applications or filings) or resolved (in the case of such investigations and other inquiries), in connection with the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated by this Agreement, including the Closing Date Transactions and, subject to Sections 6.19 and 6.20 and the Minority Interest Acquisition. Prior to making any decisions pursuant to this Section 6.5(a6.3(a)(vi), Parent shall consult and collaborate in good faith with the Oncor Entities and the Company and EFIH with respect to such decisions and consider in good faith the views of the Oncor Entities and the Company and EFIH.
(vii) may be withheld in Parent’s sole discretion). Subject to applicable Laws relating to the exchange of information, Parent and the Merger Subs, on the one hand, and the Company and EFIH, on the other hand, shall, and shall have cause their respective Subsidiaries (other than the right Oncor Entities) and controlled Affiliates (other than Parent’s regulated Subsidiaries and regulated controlled Affiliates) to, use their respective reasonable best efforts to provide the other a reasonable opportunity to review in advanceadvance and, and to the extent practicable practicable, each will consult with the other onon and consider in good faith the views of the other in connection with, all of the material information relating to Parent or the Company, as the case may be, and any of their respective Subsidiaries, that appears in any filing made with, or written materials submitted to, any third party and/or or oral presentations or testimony made to any Governmental Entity in connection with the Merger and the other transactions contemplated by this Agreement. To In exercising the extent permitted by applicable Lawforegoing rights and obligations, each party of the Company, EFIH, Parent and the Merger Subs shall provide act reasonably and as promptly as practicable.
(viii) Parent and the Merger Subs, on the one hand, and the Company and EFIH, on the other with copies of all correspondence between it (or its advisors) and any Governmental Entity relating hand, agree not to the Merger and the other transactions contemplated by this Agreement andschedule, to the extent reasonably practicable, all telephone calls and any substantive meetings or substantive communications with a any Governmental Entity or in pursuit of obtaining any necessary clearances pursuant to the HSR Act regarding the transactions contemplated by this Agreement or the Plan of Reorganization without giving the other party or its Representatives a reasonable opportunity to participate in such meeting or communication to the extent permitted by such Governmental Entity and to the extent with respect to matters involving any of the Applications, unless Parent reasonably believes that such participation would be imprudent provided that Parent may not exclude the Company or EFIH from any such meeting or communication if a Governmental Entity has requested that the Company or EFIH participate, and in any event the parties hereto shall include representatives keep each other reasonably apprised of all material substantive communications with Governmental Entities of which they are aware regarding the transactions contemplated by this Agreement or the Plan of Reorganization. Parent and the Company. Merger Subs, on the one hand, and the Company and EFIH, on the other hand, shall use their reasonable best efforts to obtain the PUCT Approval and the FERC Approval as expeditiously as possible.
(ix) In exercising the foregoing rights, event that the Company and Parent each agree in writing upon the use of common counsel or consultants with respect to the negotiation, preparation or filing of any necessary consent, registration, approval, permits and/or authorizations under this Section 6.3(a), they shall act reasonably share equally the fees and as promptly as reasonably practicableexpenses of such counsel and consultants.
Appears in 1 contract
Cooperation. The Company Buyer and Parent shallSeller shall cooperate on best efforts, subject TIME IS OF THE ESSENCE basis: (i) to Section 6.2obtain the consent of Seller’s Senior Lender for the Seller Security Agreement and Principal Security Agreement, cooperate with as well as all other consents which may be reasonably required under Seller’s Pre-Existing Secured Debt Agreements; (ii) to cause amended credit and subordination agreements to be executed by and between Seller’s Senior Lender and Seller’s Junior Lender, or other such documents as may be reasonably necessary (a) to give effect to an extension of the term of each of Seller’s Pre-Existing Secured Debt Agreements to provide reasonably sufficient time to implement the Use of Proceeds and other and useapplicable terms hereof, and shall cause their respective Subsidiaries to(b) provide Buyer and Attis, as third-party beneficiaries, with reasonable rights to cure any defaults by Seller or CleanTech upon reasonable written notice; and (iii), to use their respective reasonable best efforts the Buyer Securities and any proceeds deriving therefrom to take refinance, accelerate, pay, and/or otherwise fully satisfy all amounts due to Seller’s Senior Lender, either directly and/or indirectly with the support of one or cause more third party investors. Notwithstanding anything stated or implied in this paragraph to the contrary, Buyer and Seller agree and acknowledge that each of the consents, amendments, agreements, actions and transactions described in this paragraph requires one or more third party approvals which many not be taken all actionsprovided, and do or cause to be done all things, necessary, proper or advisable on its part under this Agreement and applicable Laws to consummate and make effective therefore the Merger and the other transactions contemplated by this Agreement as promptly as reasonably practicable (it being understood that nothing contained in this Agreement shall require Parent to obtain any consents, registrations, approvals, permits, expirations of waiting periods or authorizations prior to the Termination Date), including preparing and filing as promptly as reasonably practicable all documentation to effect all necessary notices, reports and other filings (including by filing no later than 20 calendar days after the date of this Agreement all applications required to be filed with the FCC and the notification and report form required under the HSR Act; provided Parties hereby agree that the failure to file within such 20-day period obtain or provide any of the foregoing consents, amendments, or agreements, or to refinance or accelerate any payment to Seller’s Senior Lender, either at all or by any specific date, shall not constitute a breach an Event of this Agreement) and to obtain as promptly as reasonably practicable all consents, registrations, approvals, permits, expirations of waiting periods 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. To the extent necessary or advisable to obtain any consent, registration, approval, permit, expiration of waiting period or authorization from any Governmental Entity in order to consummate the Merger prior to the Termination Date, (x) Parent shall, and shall cause its Subsidiaries to, and commit to cause the Company and its Subsidiaries to, take the actions and agree to those undertakings set forth on Section 6.5(a) of the Parent Disclosure Letter and (y) Parent shall, and shall cause its Subsidiaries to take, other actions involving Parent and its Subsidiaries that are in the aggregate de minimis (for the avoidance of doubt, not involving any divestiture, holding separate any business or assets or other similar action). Except as provided in the immediately preceding sentence, nothing in Default under this Agreement shall require, or be construed to require, (i) Parent or any of its Subsidiaries to take or refrain from taking any action (including any divestiture, holding separate any business or assets or other similar action) or to agree to any restriction or condition with respect to any assets, operations, business or the conduct of business of Parent or any of its Subsidiaries and (ii) Parent, the Company or any of their respective Subsidiaries Transaction Documents. Schedules to take or refrain from taking any action (including any divestiture, holding separate any business or assets or other similar action) or to agree to any restriction or condition with respect to any assets, operations, business or the conduct of business of the Company and its Subsidiaries, if, in the case of this clause (ii), any such action, failure to act, restriction, condition or agreement, individually or in the aggregate, would reasonably be likely to have a Company Material Adverse Effect (read without regard to the exceptions set forth therein and without giving effect to clause (A) thereof) (except as provided in the immediately preceding sentence, the occurrence of any of the matters specified in clause (i) or clause (ii) above shall constitute a “Regulatory Material Adverse Effect”). In addition, in measuring whether a Regulatory Material Adverse Effect has occurred, the expected loss of any reasonably expected synergies (both cost and revenue) relating to any restriction or condition shall be taken into account as if the Company had an adverse effect to its financial condition and results of operations equal to the expected amount of applicable synergies affected by any such restriction or condition. The Company and its Subsidiaries shall not agree to any actions, restrictions or conditions with respect to obtaining any consents, registrations, approvals, permits, expirations of waiting periods or authorizations in connection with the Merger and the other transactions contemplated by this Securities Purchase Agreement without the prior written consent of Parent (which, subject to this Section 6.5(a) may be withheld in Parent’s sole discretion). Subject to applicable Laws relating to the exchange of information, Parent and the Company shall have the right to review in advance, and to the extent practicable each will consult the other on, all of the information relating to Parent or the Company, as the case may be, and any of their respective Subsidiaries, that appears in any filing made with, or written materials submitted to, any third party and/or any Governmental Entity in connection with the Merger and the other transactions contemplated by this Agreement. To the extent permitted by applicable Law, each party shall provide the other with copies of all correspondence between it (or its advisors) and any Governmental Entity relating to the Merger and the other transactions contemplated by this Agreement and, to the extent reasonably practicable, all telephone calls and meetings with a Governmental Entity regarding the transactions contemplated by this Agreement shall include representatives of Parent and the Company. In exercising the foregoing rights, the Company and Parent each shall act reasonably and as promptly as reasonably practicable.17
Appears in 1 contract
Sources: Securities Purchase Agreement (Attis Industries Inc.)
Cooperation. The Company (a) Upon the terms and Parent shall, subject to Section 6.2the conditions set forth in this Agreement, cooperate with each other and useof the parties agrees to use its Reasonable Best Efforts to take, and shall cause their respective Subsidiaries to, use their respective reasonable best efforts to take or cause to be taken taken, all actions, and do or cause to be done all things, that are necessary, proper or advisable on its part under this Agreement and applicable Laws to consummate and make effective the Merger and the other transactions contemplated by this Agreement Transactions, including using its Reasonable Best Efforts to accomplish the following: (i) the taking of all reasonable acts necessary to cause the conditions precedent set forth in Article VI to be satisfied, and (ii) the obtaining of all necessary actions or nonactions, waivers, consents, approvals, orders and authorizations from Governmental Entities and the making of all necessary registrations, declarations and filings (including registrations, declarations and filings with Governmental Entities, if any). The Company and Parent will provide such assistance, information and cooperation to each other as promptly as is reasonably practicable (it being understood that nothing contained in this Agreement shall require Parent required to obtain any such nonactions, waivers, consents, registrations, approvals, permits, expirations of waiting periods or authorizations prior to the Termination Date), including preparing and filing as promptly as reasonably practicable all documentation to effect all necessary notices, reports and other filings (including by filing no later than 20 calendar days after the date of this Agreement all applications required to be filed with the FCC and the notification and report form required under the HSR Act; provided that the failure to file within such 20-day period shall not constitute a breach of this Agreement) and to obtain as promptly as reasonably practicable all consents, registrations, approvals, permits, expirations of waiting periods orders and authorizations necessary or advisable to be obtained from any third party and/or any Governmental Entity and, in order to consummate the Merger or any of connection therewith, will notify the other transactions contemplated by this Agreement. To party promptly following the extent necessary or advisable to obtain receipt of any consent, registration, approval, permit, expiration of waiting period or authorization comments from any Governmental Entity for amendments, supplements or additional information in order to consummate the Merger prior to the Termination Date, (x) Parent shall, and shall cause its Subsidiaries to, and commit to cause the Company and its Subsidiaries to, take the actions and agree to those undertakings set forth on Section 6.5(a) of the Parent Disclosure Letter and (y) Parent shall, and shall cause its Subsidiaries to take, other actions involving Parent and its Subsidiaries that are in the aggregate de minimis (for the avoidance of doubt, not involving any divestiture, holding separate any business or assets or other similar action). Except as provided in the immediately preceding sentence, nothing in this Agreement shall require, or be construed to require, (i) Parent or any of its Subsidiaries to take or refrain from taking any action (including any divestiture, holding separate any business or assets or other similar action) or to agree to any restriction or condition with respect to any assets, operations, business or the conduct of business of Parent or any of its Subsidiaries and (ii) Parent, the Company or any of their respective Subsidiaries to take or refrain from taking any action (including any divestiture, holding separate any business or assets or other similar action) or to agree to any restriction or condition with respect to any assets, operations, business or the conduct of business of the Company and its Subsidiaries, if, in the case of this clause (ii), any such action, failure to act, restriction, condition or agreement, individually or in the aggregate, would reasonably be likely to have a Company Material Adverse Effect (read without regard to the exceptions set forth therein and without giving effect to clause (A) thereof) (except as provided in the immediately preceding sentence, the occurrence of any of the matters specified in clause (i) registration, declaration or clause (ii) above shall constitute a “Regulatory Material Adverse Effect”). In addition, in measuring whether a Regulatory Material Adverse Effect has occurred, the expected loss of any reasonably expected synergies (both cost filing with such Governmental Entity and revenue) relating to any restriction or condition shall be taken into account as if the Company had an adverse effect to its financial condition and results of operations equal to the expected amount of applicable synergies affected by any such restriction or condition. The Company and its Subsidiaries shall not agree to any actions, restrictions or conditions with respect to obtaining any consents, registrations, approvals, permits, expirations of waiting periods or authorizations in connection with the Merger and will supply the other transactions contemplated by this Agreement without the prior written consent of Parent (which, subject to this Section 6.5(a) may be withheld in Parent’s sole discretion). Subject to applicable Laws relating to the exchange of information, Parent and the Company shall have the right to review in advance, and to the extent practicable each will consult the other on, all of the information relating to Parent or the Company, as the case may be, and any of their respective Subsidiaries, that appears in any filing made with, or written materials submitted to, any third party and/or any Governmental Entity in connection with the Merger and the other transactions contemplated by this Agreement. To the extent permitted by applicable Law, each party shall provide the other with copies of all correspondence between it (such party or any of its advisors) representatives, on the one hand, and any Governmental Entity relating to the Merger and Entity, on the other transactions contemplated by this Agreement andhand.
(b) The Company shall give any notices to third parties and use all Reasonable Best Efforts to obtain any third party consents, to in each case set forth on Section 6.02(d) of the extent reasonably practicable, all telephone calls and meetings with a Governmental Entity regarding the transactions contemplated by this Agreement shall include representatives of Parent and the CompanyCompany Disclosure Schedules. In exercising the foregoing rightsevent that the Company shall fail to obtain any third party consent described in the first sentence of this Section 5.03(b), it shall use Reasonable Best Efforts, and shall take Reasonable Best Efforts to minimize any adverse effect upon the Company resulting, or which could reasonably be expected to result after the Effective Time, from the failure to obtain such consent.
(c) From the date of the Agreement until the Effective Time, each of the Company and Parent each shall act promptly notify the other in writing (a) of any pending or, to the Knowledge of the Company and Parent, 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 Merger or (ii) seeking to restrain or prohibit the consummation of the Merger or otherwise limit the right of Parent to own or operate all or any portion of the businesses or assets of the Company, which in either case would reasonably and as promptly as reasonably practicablebe expected to result in a Material Adverse Effect or (b) at least seventy-two (72) hours prior to the filing by either party for protection under federal bankruptcy laws or similar state laws relating to bankruptcy, insolvency, reorganization, moratorium or conveyance.
Appears in 1 contract
Cooperation. (a) The Company and Parent shall, subject to Section 6.2, cooperate with each other and use, and Sellers shall cause their respective Subsidiaries to, use their respective commercially 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 on its part under this Agreement and applicable Laws to consummate and make effective provide the Merger and Purchaser with such cooperation in connection with the other transactions contemplated by this Agreement as promptly as reasonably practicable (it being understood that nothing contained in this Agreement shall require Parent to obtain any consents, registrations, approvals, permits, expirations arrangement of waiting periods or authorizations prior to the Termination Date), including preparing and filing as promptly as reasonably practicable all documentation to effect all necessary notices, reports and other filings Debt Financing (including by filing no later than 20 calendar days after the date of this Agreement all applications required to be filed with the FCC and the notification and report form required under the HSR Act; provided that the failure to file within such 20-day period shall not constitute a breach of this Agreement) and to obtain as promptly as reasonably practicable all consentssyndication thereof (which syndication, registrations, approvals, permits, expirations of waiting periods 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. To the extent necessary or advisable to obtain any consent, registration, approval, permit, expiration of waiting period or authorization from any Governmental Entity in order to consummate the Merger prior to the Termination Date, (x) Parent shall, and shall cause its Subsidiaries to, and commit to cause the Company and its Subsidiaries to, take the actions and agree to those undertakings set forth on Section 6.5(a) of the Parent Disclosure Letter and (y) Parent shall, and shall cause its Subsidiaries to take, other actions involving Parent and its Subsidiaries that are in the aggregate de minimis (for the avoidance of doubt, shall not involving any divestiture, holding separate any business or assets or other similar actionbe a prerequisite to funding of the Debt Financing). Except ) as may be reasonably requested by the Purchaser; provided in the immediately preceding sentence, nothing in this Agreement shall require, or be construed to require, that (i) Parent or any such requested cooperation does not unreasonably interfere with the ongoing operations of its Subsidiaries to take or refrain from taking any action (including any divestiture, holding separate any business or assets or other similar action) or to agree to any restriction or condition with respect to any assets, operations, business or the conduct of business of Parent or any of its Subsidiaries Sellers and (ii) Parent, the Company or Sellers shall not be required to pay any of their respective Subsidiaries to take or refrain from taking any action (including any divestiture, holding separate any business or assets commitment or other similar actionfee or incur any other liability (and, for avoidance of doubt, excluding any allocable overhead costs) or to agree to any restriction or condition with respect to any assets, operations, business or the conduct of business of the Company and its Subsidiaries, if, in the case of this clause (ii), any such action, failure to act, restriction, condition or agreement, individually or in the aggregate, would reasonably be likely to have a Company Material Adverse Effect (read without regard to the exceptions set forth therein and without giving effect to clause (A) thereof) (except as provided in the immediately preceding sentence, the occurrence of any of the matters specified in clause (i) or clause (ii) above shall constitute a “Regulatory Material Adverse Effect”). In addition, in measuring whether a Regulatory Material Adverse Effect has occurred, the expected loss of any reasonably expected synergies (both cost and revenue) relating to any restriction or condition shall be taken into account as if the Company had an adverse effect to its financial condition and results of operations equal to the expected amount of applicable synergies affected by any such restriction or condition. The Company and its Subsidiaries shall not agree to any actions, restrictions or conditions with respect to obtaining any consents, registrations, approvals, permits, expirations of waiting periods or authorizations in connection with the Merger Debt Financing. The Purchaser shall, promptly upon request by the relevant Seller or Sellers, reimburse such Seller or Sellers for all reasonable and documented out-of-pocket costs incurred by such Seller or Sellers in connection with such cooperation. The Purchaser shall indemnify and hold harmless the other transactions contemplated Sellers and their representatives from and against any and all liabilities, losses, damages, claims, costs and expenses suffered or incurred by this Agreement without the prior written consent of Parent (which, subject to this Section 6.5(a) may be withheld in Parent’s sole discretion). Subject to applicable Laws relating to the exchange of information, Parent and the Company shall have the right to review in advance, and to the extent practicable each will consult the other on, all of the information relating to Parent or the Company, as the case may be, and any of their respective Subsidiaries, that appears in any filing made with, or written materials submitted to, any third party and/or any Governmental Entity them in connection with the Merger and arrangement of the other transactions contemplated by this Agreement. To the extent permitted by applicable Law, each party shall provide the other with copies of all correspondence between it (or its advisors) Debt Financing and any Governmental Entity relating information utilized in connection therewith (other than historical information reasonably requested by the Purchaser and specifically approved in writing by the Sellers for use therein (such approval not to the Merger and the other transactions contemplated by this Agreement andbe unreasonably withheld, conditioned or delayed)) except to the extent reasonably practicablesuch liabilities, all telephone calls losses, damages, claims, costs and meetings expenses arose out of the bad faith, gross negligence or willful misconduct of, or material breach, of this Agreement by any Seller or their representatives. Notwithstanding anything to the contrary contained herein, none of the Sellers or their respective current, former or future Affiliates, officers, directors, employees, agents, representatives, stockholders, limited partners, managers, members or partners and any permitted assignees shall have any rights or claims against any Lender Party in connection with a Governmental Entity regarding this Agreement, the Debt Financing or the transactions contemplated by this hereby or thereby.
(b) The Sellers shall use commercially reasonable efforts to provide the Purchaser with (i) such cooperation in connection with obtaining a Subordination, Non-Disturbance and Attornment Agreement for each of the Leased Real Properties listed on Section 6.19 of the Sellers Disclosure Schedule, and (ii) if required pursuant to the terms of the Right of First Refusal and Right of First Offer Agreements, consent of the “Seller” under each such agreement.
(c) The Sellers shall include representatives of Parent cooperate reasonably (at no cost to the Sellers) with the Purchaser and the Title Company (including without limitation by promptly executing and delivering such customary and reasonable documents requested by the Purchaser or the Title Company. In exercising ) in order to permit the foregoing rights, Purchaser to obtain owner’s title policies for the Company Owned Real Property listed on Section 7.2(g) of the Seller Disclosure Schedule and Parent each shall act Leased Real Property listed on Section 6.19(c) of the Sellers Disclosure Schedule subject to the matters set forth in the Title Commitments (other than Liens with respect to Funded Indebtedness) together with such endorsements and extended and affirmative coverages as may reasonably be required by the Purchaser and as promptly as reasonably practicablethe Lenders.
Appears in 1 contract
Sources: Asset Purchase Agreement (New Media Investment Group Inc.)
Cooperation. (a) The Company Sellers’ Representative and Parent the Purchasers’ Representative shall reasonably cooperate and shall, subject to Section 6.2, cooperate with each and the Sellers’ Representative shall cause the other and usemembers of the Sellers’ Group to, and the Purchasers’ Representative shall cause their respective Subsidiaries the other members of the Purchasers’ Group to, use their respective reasonable best efforts to take or cause to be taken all actions, and do or cause to be done all things, reasonably necessary, proper or advisable on its part their respective parts under this Agreement and applicable Laws to satisfy the conditions set forth in Article VI (Conditions to Closing) of this Agreement and to consummate and make effective the Merger and the other transactions contemplated by this Agreement Transactions as promptly as reasonably practicable (it being understood that nothing contained in this Agreement shall require Parent to obtain any consents, registrations, approvals, permits, expirations of waiting periods or authorizations prior to the Termination Date)practicable, including on the part of the Sellers and the Purchasers, preparing and filing as promptly as reasonably practicable all documentation to effect all necessary notices, reports and other filings (including by filing no later than 20 calendar days after the date of this Agreement all applications required to be filed with the FCC and the notification and report form required under the HSR Act; provided that the failure to file within such 20-day period shall not constitute a breach of this Agreement) and to obtain as promptly as reasonably practicable and in any event prior to the Final Closing Date all consents, registrations, approvals, permitswaivers, expirations of waiting periods orders, interpretive guidance, exemptions, permits and authorizations necessary or advisable to be obtained from any third party and/or any Governmental Entity Government Authority in order to consummate the Merger or any Transactions (including, if required, the statement of no objection referenced in Section 6.1(e) hereof); provided, however, that neither the other transactions contemplated by this Agreement. To Purchasers’ Representative nor the extent necessary or advisable to obtain any consent, registration, approval, permit, expiration of waiting period or authorization from any Governmental Entity in order to consummate the Merger prior to the Termination Date, (x) Parent Sellers’ Representative shall, and shall cause its Subsidiaries to, and commit to cause the Company and its Subsidiaries to, take the actions and agree to those undertakings set forth on Section 6.5(a) of the Parent Disclosure Letter and Sellers’ Group (y) Parent shall, and shall cause its Subsidiaries to take, other actions involving Parent and its Subsidiaries that are in the aggregate de minimis (for the avoidance of doubt, not involving any divestiture, holding separate any business or assets or other similar action). Except as provided in the immediately preceding sentence, nothing in this Agreement shall require, or be construed to require, (i) Parent or any of its Subsidiaries to take or refrain from taking any action (including any divestiture, holding separate any business or assets or other similar action) or to agree to any restriction or condition with respect to any assets, operations, business or the conduct of business of Parent or any of its Subsidiaries and (ii) Parent, the Company or any of their respective Subsidiaries to take or refrain from taking any action (including any divestiture, holding separate any business or assets or other similar action) or to agree to any restriction or condition with respect to any assets, operations, business or the conduct of business of the Company and its Subsidiaries, if, in the case of this clause the Sellers’ Representative) and the Purchasers’ Group (ii)in the case of the Purchasers’ Representative) not to, make any initial filing for any such actionnotice, failure to act, restriction, condition report or agreement, individually or filing in the aggregate, would reasonably be likely to have a Company Material Adverse Effect (read without regard to the exceptions set forth therein and without giving effect to clause (A) thereof) (except as provided in the immediately preceding sentence, the occurrence respect of any of the matters specified in clause (i) or clause (ii) above shall constitute a “Regulatory Material Adverse Effect”). In addition, in measuring whether a Regulatory Material Adverse Effect has occurred, the expected loss of any reasonably expected synergies (both cost and revenue) relating to any restriction or condition shall be taken into account as if the Company had an adverse effect to its financial condition and results of operations equal to the expected amount of applicable synergies affected by any such restriction or condition. The Company and its Subsidiaries shall not agree to any actions, restrictions or conditions with respect to obtaining any consents, registrations, approvals, permitswaivers, expirations of waiting periods or orders, interpretive guidance, exemptions, permits and authorizations in connection with the Merger and the other transactions contemplated by this Agreement without the prior written consent of Parent (whichthe other, subject such consent not to this Section 6.5(a) may be withheld in Parent’s sole discretion). Subject to applicable Laws relating to unreasonably withheld, conditioned or delayed; provided further that each of the exchange of information, Parent Sellers’ Representative and the Company shall have Purchasers’ Representative agree to reasonably consult with each other in advance of the right relevant filing and agree to review in advance, consider and to reasonably take into account the extent practicable each will consult views of the other on, all of the information relating to Parent or the Company, as the case may be, and any of their respective Subsidiaries, that appears in any filing made with, or written materials submitted to, any third party and/or any Governmental Entity in connection with such filing. Without limiting the Merger generality of the foregoing, each of the Sellers’ Representative and the other transactions contemplated by this Agreement. To Purchasers’ Representative shall, and the extent permitted by applicable Law, each party Sellers’ Representative shall provide cause the other with copies members of all correspondence between it (or its advisors) and any Governmental Entity relating to the Merger Sellers’ Group to, and the other transactions contemplated by this Agreement andPurchasers’ Representative shall cause each member of the Purchasers’ Group to, to the extent reasonably practicable, all telephone calls and meetings with a Governmental Entity regarding the transactions contemplated by this Agreement shall include representatives of Parent and the Company. In exercising the foregoing rights, the Company and Parent each shall act reasonably and make as promptly as reasonably practicablepracticable all filings and submissions required under any applicable Law in connection with this Agreement and the other Transaction Documents and the Transactions, and file promptly any additional information requested under any applicable Law in connection with this Agreement and the other Transaction Documents and the Transactions, after receipt of the request therefor.
Appears in 1 contract
Sources: Share Purchase Agreement (Cb Richard Ellis Group Inc)
Cooperation. The Company Sellers and Parent shallthe Buyer (i) shall promptly inform each other of any communication from any Governmental Authority concerning this Agreement, the transactions contemplated hereby, and any filing, notification or request for approval and (ii) shall permit the other party to review in advance any proposed written communication or information submitted to any such Governmental Authority in response thereto. In addition, each of the Sellers and the Buyer shall not agree to participate in any meeting with any Governmental Authority in respect of any filings, investigation or other inquiry with respect to this Agreement, the transactions contemplated hereby or any such filing, notification or request for approval unless it consults with the other party in advance and, to the extent permitted by any such Governmental Authority, gives the other party the opportunity to attend and participate thereat, in each case to the maximum extent practicable. Subject to any restrictions under applicable laws, rules or regulations, each of the Sellers and the Buyer shall furnish the other party with copies of all correspondence, filings and communications (and memoranda setting forth the substance thereof) between it and its Affiliates and their respective representatives on the one hand, and the Governmental Authority or members of its staff on the other hand, with respect to this Agreement, the transactions contemplated hereby (excluding documents and communications which are subject to Section 6.2preexisting confidentiality agreements and to the attorney-client privilege or work product doctrine) or any such filing, cooperate notification or request for approval. The Sellers and the Buyer shall also furnish the other party with each such necessary information and assistance as such other party and useits Affiliates may reasonably request in connection with their preparation of necessary filings, registration, or submissions of information to the Governmental Authority in connection with this Agreement, the transactions contemplated hereby and any such filing, notification or request for approval. The Sellers and the Buyer shall cause their respective Subsidiaries to, prosecute all required requests for approval with all necessary diligence and otherwise use their respective 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 on its part under this Agreement and applicable Laws to consummate and make effective obtain the Merger and the other transactions contemplated grant thereof by this Agreement a Final Order as promptly soon as reasonably practicable (it being understood that nothing contained in this Agreement shall require Parent to obtain any consents, registrations, approvals, permits, expirations of waiting periods or authorizations prior to the Termination Date), including preparing and filing as promptly as reasonably practicable all documentation to effect all necessary notices, reports and other filings (including by filing no later than 20 calendar days after the date of this Agreement all applications required to be filed with the FCC and the notification and report form required under the HSR Act; provided that the failure to file within such 20-day period shall not constitute a breach of this Agreement) and to obtain as promptly as reasonably practicable all consents, registrations, approvals, permits, expirations of waiting periods 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. To the extent necessary or advisable to obtain any consent, registration, approval, permit, expiration of waiting period or authorization from any Governmental Entity in order to consummate the Merger prior to the Termination Date, (x) Parent shall, and shall cause its Subsidiaries to, and commit to cause the Company and its Subsidiaries to, take the actions and agree to those undertakings set forth on Section 6.5(a) of the Parent Disclosure Letter and (y) Parent shall, and shall cause its Subsidiaries to take, other actions involving Parent and its Subsidiaries that are in the aggregate de minimis (for the avoidance of doubt, not involving any divestiture, holding separate any business or assets or other similar action). Except as provided in the immediately preceding sentence, nothing in this Agreement shall require, or be construed to require, (i) Parent or any of its Subsidiaries to take or refrain from taking any action (including any divestiture, holding separate any business or assets or other similar action) or to agree to any restriction or condition with respect to any assets, operations, business or the conduct of business of Parent or any of its Subsidiaries and (ii) Parent, the Company or any of their respective Subsidiaries to take or refrain from taking any action (including any divestiture, holding separate any business or assets or other similar action) or to agree to any restriction or condition with respect to any assets, operations, business or the conduct of business of the Company and its Subsidiaries, if, in the case of this clause (ii), any such action, failure to act, restriction, condition or agreement, individually or in the aggregate, would reasonably be likely to have a Company Material Adverse Effect (read without regard to the exceptions set forth therein and without giving effect to clause (A) thereof) (except as provided in the immediately preceding sentence, the occurrence of any of the matters specified in clause (i) or clause (ii) above shall constitute a “Regulatory Material Adverse Effect”). In addition, in measuring whether a Regulatory Material Adverse Effect has occurred, the expected loss of any reasonably expected synergies (both cost and revenue) relating to any restriction or condition shall be taken into account as if the Company had an adverse effect to its financial condition and results of operations equal to the expected amount of applicable synergies affected by any such restriction or condition. The Company and its Subsidiaries shall not agree to any actions, restrictions or conditions with respect to obtaining any consents, registrations, approvals, permits, expirations of waiting periods or authorizations in connection with the Merger and the other transactions contemplated by this Agreement without the prior written consent of Parent (which, subject to this Section 6.5(a) may be withheld in Parent’s sole discretion). Subject to applicable Laws relating to the exchange of information, Parent and the Company shall have the right to review in advance, and to the extent practicable each will consult the other on, all of the information relating to Parent or the Company, as the case may be, and any of their respective Subsidiaries, that appears in any filing made with, or written materials submitted to, any third party and/or any Governmental Entity in connection with the Merger and the other transactions contemplated by this Agreement. To the extent permitted by applicable Law, each party shall provide the other with copies of all correspondence between it (or its advisors) and any Governmental Entity relating to the Merger and the other transactions contemplated by this Agreement and, to the extent reasonably practicable, all telephone calls and meetings with a Governmental Entity regarding the transactions contemplated by this Agreement shall include representatives of Parent and the Company. In exercising the foregoing rights, the Company and Parent each shall act reasonably and as promptly as reasonably practicablepossible.
Appears in 1 contract
Sources: Asset Purchase Agreement (Idt Corp)
Cooperation. The Company and Parent shall, subject to Section 6.2, cooperate with each other and use, and shall cause their respective Subsidiaries to, use their respective 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 on its part under this Agreement and applicable Laws to consummate and make effective the Merger and the other transactions contemplated by this Agreement as promptly as reasonably practicable (it being understood that nothing contained in this Agreement shall require Parent to obtain any consents, registrations, approvals, permits, expirations of waiting periods or authorizations prior to the Termination Date), including preparing and filing as promptly as reasonably practicable all documentation to effect all necessary notices, reports and other filings (including by filing no later than 20 calendar days after a) From the date of this Agreement all applications required to be filed with hereof until the FCC and the notification and report form required under the HSR Act; provided that the failure to file within such 20-day period shall not constitute a breach of this Agreement) and to obtain as promptly as reasonably practicable all consents, registrations, approvals, permits, expirations of waiting periods 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. To the extent necessary or advisable to obtain any consent, registration, approval, permit, expiration of waiting period or authorization from any Governmental Entity in order to consummate the Merger prior to the Termination Closing Date, (xa) Parent ▇▇▇▇▇▇▇ shall, and shall cause its Subsidiaries toupon reasonable request, and commit to cause provide updates on the Company and its Subsidiaries to, take the actions and agree to those undertakings set forth on Section 6.5(a) progress of the Parent Disclosure Letter and (y) Parent shall, and shall cause its Subsidiaries to take, other actions involving Parent and its Subsidiaries that are transactions contemplated in the aggregate de minimis Merger Agreement (for the avoidance of doubtincluding, not involving any divestiture, holding separate any business or assets or other similar action). Except as provided in the immediately preceding sentence, nothing in this Agreement shall require, or be construed to require, (i) Parent or any of its Subsidiaries to take or refrain from taking any action (including any divestiture, holding separate any business or assets or other similar action) or to agree to any restriction or condition with respect to any assets, operations, business or the conduct of business of Parent or any of its Subsidiaries and (ii) Parentwithout limitation, the Company progress of negotiations and diligence investigations, the existence of any breaches or defaults by IASIS, ▇▇▇▇▇▇▇ or any of their respective Subsidiaries Affiliates and other material matters relating thereto), and (b) ▇▇▇▇▇▇▇ shall promptly deliver to take the MPT Parties copies of all final executed versions of definitive agreements, schedules and other material documents relating to the transactions contemplated in the Merger Agreement and use commercially reasonable efforts to deliver to the MPT Parties material drafts of such agreements, schedules and other material documents, and permit MPT Parties to comment on the same (it being understood and agreed that ▇▇▇▇▇▇▇ and MPT Parties shall generally coordinate with one another regarding such transactions but that ▇▇▇▇▇▇▇ shall control such negotiation and transaction process). Any material amendment, modification or refrain from taking any action (including any divestiture, holding separate any business or assets termination by mutual written consent of the Merger Agreement or other similar action) or Merger Documents relating to agree to any restriction or condition with respect to any assets, operations, business the Real Property or the conduct of business of the Company other MPT Acquired Assets and its Subsidiaries, if, in the case of this clause (ii), any such action, failure to act, restriction, condition or agreement, individually or in the aggregate, would reasonably be likely to have a Company Material Adverse Effect (read without regard to the exceptions set forth therein and without giving effect to clause (A) thereof) (except as provided in the immediately preceding sentence, the occurrence of any of the matters specified in clause (i) or clause (ii) above MPT Financed Assets shall constitute a “Regulatory Material Adverse Effect”). In addition, in measuring whether a Regulatory Material Adverse Effect has occurred, the expected loss of any reasonably expected synergies (both cost and revenue) relating to any restriction or condition shall be taken into account as if the Company had an adverse effect to its financial condition and results of operations equal to the expected amount of applicable synergies affected by any such restriction or condition. The Company and its Subsidiaries shall not agree to any actions, restrictions or conditions with respect to obtaining any consents, registrations, approvals, permits, expirations of waiting periods or authorizations in connection with the Merger and the other transactions contemplated by this Agreement without require the prior written consent of Parent (whichMPT Parties. ▇▇▇▇▇▇▇ shall not waive any default under the Merger Agreement or exercise any rights that result in the waiver of a default under the Merger Agreement without prior written consent of the MPT Parties, subject not to this Section 6.5(a) may be withheld in Parent’s sole discretion)unreasonably withheld, conditioned or delayed. Subject to compliance with applicable Laws relating Law, from the date hereof until the Closing Date, (a) ▇▇▇▇▇▇▇ shall also confer on a regular and frequent basis with one or more Representatives of MPT Parties to the exchange of information, Parent report operational matters that are material and the Company shall have the right to review in advancegeneral status of ongoing operations, and to the extent practicable each will consult (b) ▇▇▇▇▇▇▇ and MPT Parties shall promptly provide the other onor their counsel with copies of all filings made by such party with any Governmental Body in connection with this Agreement, all the Merger Agreement and the transactions contemplated hereby and thereby.
(b) From the date hereof until the Closing Date, (a) MPT Parties shall, upon reasonable request, provide updates on the progress of the information relating to Parent transactions contemplated in the Purchase Agreement (including, without limitation, the progress of negotiations and diligence investigations, the existence of any breaches or the Companydefaults by IASIS, as the case may be, and MPT Parties or any of their respective SubsidiariesAffiliates and other material matters relating thereto), and (b) MPT Parties shall promptly deliver to ▇▇▇▇▇▇▇ copies of all final executed versions of definitive agreements, schedules and other material documents relating to the transactions contemplated in the Purchase Agreement and use commercially reasonable efforts to deliver to ▇▇▇▇▇▇▇ material drafts of such agreements, schedules and other material documents, and permit ▇▇▇▇▇▇▇ to comment on the same (it being understood and agreed that appears in any filing made with▇▇▇▇▇▇▇ and MPT Parties shall generally coordinate with one another regarding such transactions but that MPT Parties shall control such negotiation and transaction process). Any material amendment, modification or termination by mutual written materials submitted to, any third party and/or any Governmental Entity in connection with consent of the Merger and Purchase Agreement or documents contemplated thereby relating to the Real Property or the other transactions contemplated by this AgreementMPT Acquired Assets and MPT Financed Assets shall require the prior written consent of ▇▇▇▇▇▇▇. To MPT Parties shall not waive any default under the extent permitted by Purchase Agreement or exercise any rights that result in the waiver of a default under the Purchase Agreement without prior written consent of ▇▇▇▇▇▇▇, not to be unreasonably withheld, conditioned or delayed. Subject to compliance with applicable Law, each party from the date hereof until the Closing Date, (a) MPT Parties shall also confer on a regular and frequent basis with one or more Representatives of ▇▇▇▇▇▇▇ to report operational matters that are material and the general status of ongoing operations, and (b) ▇▇▇▇▇▇▇ and MPT Parties shall promptly provide the other or their counsel with copies of all correspondence between it (or its advisors) and filings made by such party with any Governmental Entity relating to Body in connection with this Agreement, the Merger Purchase Agreement and the other transactions contemplated by this Agreement and, to the extent reasonably practicable, all telephone calls and meetings with a Governmental Entity regarding the transactions contemplated by this Agreement shall include representatives of Parent hereby and the Company. In exercising the foregoing rights, the Company and Parent each shall act reasonably and as promptly as reasonably practicablethereby.
Appears in 1 contract
Cooperation. The Company Commencing on the date hereof and Parent shallcontinuing during the eighteen (18) month period after the Termination Date (the “Cooperation Period”), subject Employee agrees to Section 6.2, reasonably cooperate with each other and usethe Company in its efforts (i) to prosecute or defend itself against any claim, and shall cause their respective Subsidiaries tosuit, use their respective reasonable best efforts to take demand or cause to be taken all actions, of action (not brought by the Company against Employee or by Employee against the Company) about which Employee has knowledge and do or cause to be done all things, necessary, proper or advisable on its part under this Agreement and applicable Laws to consummate and make effective the Merger and the other transactions contemplated by this Agreement as promptly as reasonably practicable (it being understood that nothing contained in this Agreement shall require Parent to obtain any consents, registrations, approvals, permits, expirations of waiting periods or authorizations prior to the Termination Date), including preparing and filing as promptly as reasonably practicable all documentation to effect all necessary notices, reports and other filings (including by filing no later than 20 calendar days after the date of this Agreement all applications required to be filed ii) dealing with outside vendors about which Employee had knowledge during her employment with the FCC and Company. Notwithstanding the notification and report form required under the HSR Act; provided that the failure to file within such 20-day period shall not constitute a breach of this Agreement) and to obtain as promptly as reasonably practicable all consentsimmediately preceding sentence, registrations, approvals, permits, expirations of waiting periods 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. To the extent necessary or advisable to obtain any consent, registration, approval, permit, expiration of waiting period or authorization from any Governmental Entity in order to consummate the Merger prior to following the Termination Date, (xa) Parent shallthe Company shall provide Employee with advance written notice of such required cooperation within a reasonable period of time prior to the date on which such cooperation will be required, (b) such cooperation shall not create a conflict with any of Employee’s obligations or duties to her then current employer, (c) such cooperation shall be provided at times and locations, and in a manner, that are mutually agreed between the Company and Employee, (d) Employee shall cause its Subsidiaries not be required to devote more than 10 hours per month in providing any such cooperation, (e) the Employee shall report to, and commit to cause take direction from, only the Company’s counsel or Board of Directors in providing the cooperation described above and (f) the Company and its Subsidiaries to, take shall reimburse Employee (in compliance with Code Section 409A) for all reasonable expenses incurred by her in complying with the actions and agree to those undertakings set forth on Section 6.5(a) of the Parent Disclosure Letter and (y) Parent shall, and shall cause its Subsidiaries to take, other actions involving Parent and its Subsidiaries that are in the aggregate de minimis (for the avoidance of doubt, not involving any divestiture, holding separate any business or assets or other similar action). Except as provided in the immediately preceding above sentence, nothing in this Agreement shall require, or be construed subject to require, (i) Parent or any appropriate itemization and substantiation of its Subsidiaries to take or refrain from taking any action (including any divestiture, holding separate any business or assets or other similar action) or to agree to any restriction or condition with respect to any assets, operations, business or the conduct of business of Parent or any of its Subsidiaries and (ii) Parent, the Company or any of their respective Subsidiaries to take or refrain from taking any action (including any divestiture, holding separate any business or assets or other similar action) or to agree to any restriction or condition with respect to any assets, operations, business or the conduct of business of the Company and its Subsidiaries, ifsuch expenses. Employee agrees that, in the case of this clause event she is subpoenaed by any person or entity (ii)including, but not limited to, any such actiongovernment agency) to give testimony (in a deposition, failure court proceeding or otherwise) which in any way relates to act, restriction, condition or agreement, individually or in the aggregate, would reasonably be likely to have a Company Material Adverse Effect (read without regard to the exceptions set forth therein and without giving effect to clause (A) thereof) (except as provided in the immediately preceding sentence, the occurrence of any of the matters specified in clause (i) or clause (ii) above shall constitute a “Regulatory Material Adverse Effect”). In addition, in measuring whether a Regulatory Material Adverse Effect has occurred, the expected loss of any reasonably expected synergies (both cost and revenue) relating to any restriction or condition shall be taken into account as if the Company had an adverse effect to its financial condition and results of operations equal to the expected amount of applicable synergies affected her employment by any such restriction or condition. The Company and its Subsidiaries shall not agree to any actions, restrictions or conditions with respect to obtaining any consents, registrations, approvals, permits, expirations of waiting periods or authorizations in connection with the Merger and the other transactions contemplated by this Agreement without the prior written consent of Parent (which, subject to this Section 6.5(a) may be withheld in Parent’s sole discretion). Subject to applicable Laws relating to the exchange of information, Parent and the Company shall have the right to review in advance, and to the extent practicable each will consult the other on, all of the information relating to Parent or the Company, as Employee will give prompt notice of such request to the case may beCompany, and any of their respective Subsidiaries, that appears in any filing made with, or written materials submitted to, any third party and/or any Governmental Entity in connection with the Merger and the other transactions contemplated by this Agreement. To the extent permitted by applicable Law, each party shall provide the other with copies of all correspondence between it (or its advisors) and any Governmental Entity relating to the Merger and the other transactions contemplated by this Agreement and, to the extent reasonably practicable, all telephone calls and meetings with a Governmental Entity regarding the transactions contemplated by this Agreement shall include representatives of Parent and the Company. In exercising the foregoing rights, will make no disclosure until the Company and Parent each shall act reasonably and has had a reasonable opportunity to contest the right of the requesting person or entity to such disclosure so long as promptly as reasonably practicablecompliance herewith does not require Employee to violate the law or the terms of the subpoena.
Appears in 1 contract
Sources: Separation and Release Agreement (MusclePharm Corp)
Cooperation. Following the execution of this Agreement, Purchaser and the Company agree as follows:
(a) The parties and their Affiliates shall each use their reasonable efforts, and shall cooperate fully with each other in preparing, filing, prosecuting, and taking any other actions with respect to, any filings (other than filings with the FCC, which are provided for in clause (b) below), applications, requests, or actions which are or may be necessary to obtain the consents, approvals, authorizations or other orders of any Governmental Authority which are or may be necessary in order to accomplish the transactions contemplated by this Agreement; and, without limiting the generality of the foregoing, the parties and their Affiliates shall use their respective reasonable efforts to prepare and file as promptly as practicable, but in any event no later than 15 Business Days after the date hereof, all of the information called for in the Notification and Report Form required under the HSR Act and to prepare and file any supplemental information, also in a timely fashion, which may be required by the United States Department of Justice or the Federal Trade Commission pursuant to such Notification and Report Form Filings, and otherwise to use their respective reasonable efforts to obtain the requisite clearances.
(b) The parties and their Affiliates shall cooperate fully with each other in preparing, filing, prosecuting, and taking any other actions with respect to filings with the FCC related to the transactions contemplated by this Agreement, including, without limitation, preparation of an application for the assignment of all of the FCC Licenses to Purchaser and any filings by Purchaser requesting temporary waivers for no more than nine months of the FCC's applicable ownership rules necessary to permit the parties to consummate the transactions contemplated by this Agreement. As promptly as practicable, but in any event not later than ten Business Days following the execution of this Agreement, the Company and Purchaser shall jointly file the application with the FCC requesting the FCC Consent. The Company and Parent shall, subject to Section 6.2, cooperate with each other and use, and Purchaser shall cause their respective Subsidiaries to, use their respective reasonable best efforts, diligently take all necessary and proper actions and provide any additional information requested by the FCC in order to obtain promptly the FCC Consent, including, without limitation, requesting, consenting to, and taking and otherwise seeking any action in connection with, a temporary waiver of the FCC's applicable ownership rules or a divestiture order relating to WOKR-TV (Rochester, New York), WICS-TV (Springfield, Illinois) or any other Station where the ownership of such Station and any other television or radio station that Purchaser or its Affiliates acquires (or enters into an agreement to acquire) after the date hereof by Purchaser and its Affiliates would reasonably be expected to materially impede or materially delay the Closing (any such temporary waiver or divestiture order, an "Agreed Divestiture"). Notwithstanding the foregoing or any other provision of this Agreement, neither Purchaser nor its officers, directors or Affiliates shall request a permanent waiver of the FCC's applicable ownership rules or request, consent to, take or otherwise seek or pursue any action that is inconsistent with the transactions contemplated by this Agreement or that reasonably could be expected to materially impede or materially delay the FCC Consent or otherwise materially impede or materially delay the consummation of the transactions contemplated by this Agreement; and the receipt of any permanent waiver of the foregoing FCC rules shall not be a condition to the obligation of Purchaser to consummate the transactions contemplated hereby; provided further that, prior to obtaining the FCC Consent, neither Purchaser nor any of its officers, directors, or Affiliates shall publicly disclose the identity of any third party (other than any wholly owned subsidiary of Purchaser) that is contemplated as the future owner of any of the Stations other than WOKR-TV, Rochester, New York. Neither Purchaser nor any of its officers, directors or Affiliates will take any action that would result in any change in the matters set forth in Section 4.7 hereof that would reasonably be expected to materially delay or otherwise materially impair Purchaser's ability to consummate the transactions contemplated hereby; and the Company will not take any action that would result in any change in the matter set forth in clause (vi) of Section 3.12 hereof that would reasonably be expected to materially delay or otherwise materially impair the Company's ability to consummate the transactions contemplated hereby. After the date hereof, Purchaser or its Affiliates may enter into transactions that implicate the FCC multiple ownership rules so long as such transactions would not reasonably be expected to materially impede or materially delay the Closing. Notwithstanding the foregoing and except for the Agreed Divestitures, neither Purchaser nor the Company shall have any obligation to take any actions that would reasonably be expected to require (i) the divestiture of any station owned or operated by Purchaser or its Affiliates on the date hereof or (ii) the termination or material modification of any local marketing agreement pursuant to which Purchaser or its Affiliates provides as of the date hereof all or substantially all of the programming for any stations ((i) and (ii) collectively a "Material Non-Agreed Divestiture").
(i) If Purchaser (or its Affiliates) or the Company receives an administrative or other order or notification relating to any violation or claimed violation of the rules and regulations of the FCC, or of any Governmental Authority, that could affect Purchaser's or the Company's ability to consummate the transactions contemplated hereby, or (ii) should Purchaser (or its Affiliates) become aware of any fact (including any change in law or regulations (or any interpretation thereof by the FCC)) relating to the qualifications of Purchaser (and its controlling persons) that reasonably could be expected to cause the FCC to withhold the FCC Consent, Purchaser (in the case of clauses (i) and (ii)) or the Company (in the case of clause (i)) shall promptly notify the other party or parties thereof and shall use its reasonable best efforts to take such steps as may be necessary to remove any such impediment to the transactions contemplated by this Agreement; and no such notification shall affect the representations or warranties of the parties or the conditions to their respective obligations hereunder.
(d) The parties shall each use their reasonable best efforts to obtain as promptly as reasonably practical all consents that may be required in connection with the assignment to the Purchaser at Closing of all the Company's right, title and interest in and to all Material Contracts and all other agreements of the Business to which the Company is a party, provided that neither the Company nor Purchaser shall be required to make any payment to any party to any such Material Contract or other agreement in order to obtain any such consent.
(e) To the extent that there are third-party insurance policies maintained by the Company covering any Claims or Damages relating to the assets, business, operations, conduct and employees (including, without limitation, former employees) of the Business arising out of or relating to occurrences prior to the Closing, the Company shall use all reasonable efforts to cause Purchaser to be named as an additional insured with respect to such policies.
(f) Subject to the terms and conditions of this Agreement, each of the parties agrees to use its reasonable efforts to take, or cause to be taken taken, all actionsactions and to do, and do or cause to be done done, all things, things necessary, proper or advisable on its part under this Agreement and applicable Laws to consummate and make effective the Merger Closing and the other transactions contemplated by this Agreement hereby as promptly soon as practicable.
(g) The Company shall cooperate and cause its accountants, including, but not limited to, PriceWaterhouseCoopers L.L.P., to cooperate in all reasonable respects with Purchaser's request to conduct an audit of the Company's financial information as Purchaser may reasonably practicable (it being understood that nothing contained in this Agreement shall require Parent determine is necessary to obtain any consents, registrations, approvals, permits, expirations of waiting periods or authorizations prior satisfy Purchaser's public company reporting requirements pursuant to the Termination Date)Securities Act of 1933 or the Securities Exchange Act of 1934, including preparing and filing as promptly as reasonably practicable all documentation to effect all necessary noticesincluding, reports and other filings (including by filing no later than 20 calendar days after the date of this Agreement all applications required to be filed with the FCC and the notification and report form required under the HSR Act; provided that the failure to file within such 20-day period shall not constitute a breach of this Agreement) and to obtain as promptly as reasonably practicable all consents, registrations, approvals, permits, expirations of waiting periods 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. To the extent necessary or advisable to obtain any consent, registration, approval, permit, expiration of waiting period or authorization from any Governmental Entity in order to consummate the Merger prior to the Termination Date, (x) Parent shall, and shall cause its Subsidiaries to, and commit to cause the Company and its Subsidiaries to, take the actions and agree to those undertakings set forth on Section 6.5(a) of the Parent Disclosure Letter and (y) Parent shall, and shall cause its Subsidiaries to take, other actions involving Parent and its Subsidiaries that are in the aggregate de minimis (for the avoidance of doubt, not involving any divestiture, holding separate any business or assets or other similar action). Except as provided in the immediately preceding sentence, nothing in this Agreement shall require, or be construed to requirewithout limitation, (i) Parent or any using commercially reasonable efforts to obtain the consent of its Subsidiaries the Company's auditors to take or refrain from taking any action (including any divestiturepermit Purchaser and Purchaser's auditors to have access to such auditor's work papers, holding separate any business or assets or other similar action) or to agree to any restriction or condition with respect to any assets, operations, business or the conduct of business of Parent or any of its Subsidiaries and (ii) Parent, the Company or any of their respective Subsidiaries consenting to take or refrain from taking any action (including any divestiture, holding separate any business or assets or other similar action) or to agree to any restriction or condition with respect to any assets, operations, business or the conduct of business of the Company such access by Purchaser. All costs and its Subsidiaries, if, in the case of this clause (ii), any such action, failure to act, restriction, condition or agreement, individually or in the aggregate, would reasonably be likely to have a Company Material Adverse Effect (read without regard to the exceptions set forth therein and without giving effect to clause (A) thereof) (except as provided in the immediately preceding sentence, the occurrence of any of the matters specified in clause (i) or clause (ii) above shall constitute a “Regulatory Material Adverse Effect”). In addition, in measuring whether a Regulatory Material Adverse Effect has occurred, the expected loss of any reasonably expected synergies (both cost and revenue) relating to any restriction or condition shall be taken into account as if the Company had an adverse effect to its financial condition and results of operations equal to the expected amount of applicable synergies affected by any such restriction or condition. The Company and its Subsidiaries shall not agree to any actions, restrictions or conditions with respect to obtaining any consents, registrations, approvals, permits, expirations of waiting periods or authorizations expenses incurred in connection with the Merger preparation (and the other transactions contemplated assimilation of relevant information for) any such financial statements shall be paid by this Agreement without the prior written consent of Parent (which, subject to this Section 6.5(a) may be withheld in Parent’s sole discretion). Subject to applicable Laws relating to the exchange of information, Parent and the Company shall have the right to review in advance, and to the extent practicable each will consult the other on, all of the information relating to Parent or the Company, as the case may be, and any of their respective Subsidiaries, that appears in any filing made with, or written materials submitted to, any third party and/or any Governmental Entity in connection with the Merger and the other transactions contemplated by this Agreement. To the extent permitted by applicable Law, each party shall provide the other with copies of all correspondence between it (or its advisors) and any Governmental Entity relating to the Merger and the other transactions contemplated by this Agreement and, to the extent reasonably practicable, all telephone calls and meetings with a Governmental Entity regarding the transactions contemplated by this Agreement shall include representatives of Parent and the Company. In exercising the foregoing rights, the Company and Parent each shall act reasonably and as promptly as reasonably practicablePurchaser.
Appears in 1 contract