Efforts; Further Assurances. (a) Subject to the terms and conditions herein provided, each of the Parties hereto shall use reasonable best efforts (except where a different efforts standard is specifically contemplated by this Agreement, in which case such different standard shall apply) to take, or cause to be taken, all action, and to do, or cause to be done, all things, reasonably necessary, proper or advisable under applicable Laws to consummate and make effective the transactions contemplated by this Agreement. Each of Seller and Purchaser shall use reasonable best efforts to obtain the consents of all Governmental Authorities and third parties necessary for the consummation of the transactions contemplated by this Agreement, including, in the case of Purchaser, arranging guarantees from Purchaser or a creditworthy controlled Affiliate of Purchaser as requested by such Governmental Authorities or third parties. Each of the Parties shall be responsible for all costs it incurs in connection with obtaining such consents, including any fees or costs relating to making or obtaining any other national or supranational antitrust or competition filings, notifications or approvals; provided, however, that (i) Purchaser shall pay (and to the extent paid by the Company, reimburse the Company) for the filing fees associated with the HSR Act and any other national or supranational antitrust or competition filings, notifications or approvals and (ii) no Party shall be obligated to make any payments or make any commitments in order to obtain any third party consent (other than Purchaser’s obligation to arrange guarantees as described above). (b) Without limiting the generality of Section 5.3(a), as soon as reasonably practicable after the date of this Agreement, Seller shall notify the U.S. Federal Aviation Administration (“FAA”) of the transactions contemplated by the Agreement which such notice shall seek written confirmation that: (1) the FAA will issue new FAA Permits allowing the Company to continue operating as a FAA repair station, perform modifications under the supplemental type certificate and manufacture parts under parts manufacturer approval, following Closing; or (2) new FAA Permits are not required with respect to consummation of the transactions covered by this Agreement and that following Closing (including to the extent the FAA Permits existing as of the date hereof will be transferred to Purchaser), the FAA Permits shall remain in full force and effect. For the avoidance of doubt, no such confirmation contemplated by the foregoing sentence shall serve as a condition precedent to the Closing. The Parties shall cooperate and consult with each other in connection with the notification, including by permitting the other party to review in advance, and consider in good faith the views of the other party in connection with, any proposed written communication with the FAA and any other information supplied to the FAA or received from the FAA in connection with the transactions contemplated by this Agreement, and shall promptly inform the other party of any communications with, and inquiries or requests for information from, the FAA in connection with the transactions contemplated by the Agreement and shall consult with each other in advance of any meeting or conference, whether in person or by telephone, with the FAA. (c) Without limiting the generality of Section 5.3(a), as promptly as practicable and in any event no later than ten (10) days after the date of this Agreement, each party hereto shall make an appropriate filing, if necessary, pursuant to the HSR Act with respect to the transactions contemplated by this Agreement and shall supply as promptly as practicable to the appropriate Governmental Authorities any additional information and documentary material that may be requested pursuant to the HSR Act. Any other notifications, filings and request for approvals relating to any other national or supranational antitrust or competition requirements shall be made as promptly as practicable after the date of this Agreement. Without limiting the foregoing, with respect to the HSR Act and any other national or supranational antitrust or competition requirements Seller, the Company, Purchaser and their respective Affiliates (i) shall not extend any waiting period or comparable period under the HSR Act or any foreign antitrust Law or enter into any agreement with any Governmental Authority not to consummate the transactions contemplated hereby (a “Timing Agreement”), except with the prior written consent of the other Parties hereto, (ii) shall cooperate and consult with each other in connection with the making of all filings, notifications and any other material actions pursuant to this Section 5.3(c), including subject to applicable Law, by permitting counsel for the other party to review in advance, and consider in good faith the views of the other party in connection with, any proposed written communication to any Governmental Authority and by providing outside counsel for the other party with copies of all filings and submissions made by such party and all correspondence between such party (and its advisors) with any Governmental Authority and any other information supplied by such party and such party’s Subsidiaries to a Governmental Authority or received from such a Governmental Authority in connection with the transactions contemplated by this Agreement, (iii) shall furnish to the other Parties such information and assistance as such Parties reasonably may request in connection with the preparation of any submissions to, or agency proceedings by, any Governmental Authority, (iv) subject to applicable Law, shall promptly inform the other party of any communications with, and inquiries or requests for information from, such Governmental Authorities in connection with the transactions contemplated by the Agreement and (v) subject to applicable Law, shall consult with the other Parties in advance of any meeting or conference, whether in person or by telephone, with any such Governmental Authority or, in connection with any proceeding by a private party, with any other Person, and to the extent permitted by such applicable Governmental Authority or other Person, give the other Parties the opportunity to attend and participate in such meetings and conferences. During the period from the date hereof until the earlier of the termination of this Agreement in accordance with its terms and the Closing, Purchaser and its Affiliates shall not acquire or agree to acquire by merging or consolidating with, or by purchasing a material portion of the assets of or equity in, any Person if such acquisition would reasonably be expected to delay, hinder or prohibit the consummation of the transactions contemplated hereby. The Parties may, as they deem advisable and necessary, designate any competitively sensitive materials provided to the other under this Section 5.3(c) as “outside counsel only.” (d) Within five (5) Business Days after the Closing, each Party shall notify the United States Department of State Directorate of Defense Trade Controls (the “DDTC”) of the transactions contemplated hereby under the International Traffic in Arms Regulations § 122.4 and of the intent to transfer all open licenses or other export authorizations included in the Assigned Assets. Each party shall cooperate and consult with each other in connection with the making of such notifications, including providing counsel for the other party the opportunity in advance to review the proposed notification prior to submission and considering in good faith the views of the other party in connection with the notifications. For the avoidance of doubt, no such notification contemplated by this clause (d) shall serve as a condition precedent to the Closing. (e) In the event any claim, action, suit, investigation or other proceeding by any Governmental Authority or other Person is commenced which raises questions about the validity or legality of the transactions contemplated hereby or seeks damages in connection therewith, the Parties agree to cooperate and use reasonable best efforts to defend against such claim, action, suit, investigation or other proceeding; provided, however, that nothing in this Agreement shall require, or be construed to require, Seller, Purchaser or any of their respective Affiliates to litigate with or otherwise participate in any Legal Proceeding with any Governmental Authority in connection with obtaining any approval pursuant to this Agreement. In order to permit the satisfaction of the Closing condition set forth in Section 6.1(b), Purchaser shall (and Purchaser shall permit the Company, the Company Subsidiary and the Contributing Affiliate to) (i) agree to (A) any sale, license, divestiture or other disposition or holding separate of any capital stock, businesses, assets, properties or other interests of Purchaser, the Company or any of their respective controlled Affiliates or (B) the imposition of any limitation, restriction or condition on the ability of Purchaser, the Company or any of their respective controlled Affiliates to conduct their respective businesses or own, acquire, hold or exercise full rights of ownership of any capital stock, businesses, assets, properties or other interests ((A) and (B), the “Antitrust Actions”); provided, however, that, notwithstanding anything to the contrary set forth in this Agreement, (1) any such actions are conditioned upon and become effective only from and after the Closing and (2) under no circumstances, shall Purchaser be required to propose, negotiate, commit to, effect or agree to Antitrust Actions or other related actions that materially and adversely affect Purchaser and its Affiliates (including after the Closing the Company and the Company Subsidiary, taken as a whole) or the Business. Subject to the foregoing, in no event will Seller (and Seller will not permit any of its Affiliates including the Company, the Company Subsidiary or the Contributing Affiliate to) propose, negotiate, effect or agree to any Antitrust Actions without the prior written consent of Purchaser (such consent not to be unreasonably withheld, conditioned or delayed), nor shall Seller or any of its Affiliates (including the Company, the Company Subsidiary and the Contributing Affiliate) be required to propose, negotiate, effect or agree to, any Antitrust Actions.
Appears in 1 contract
Samples: Stock Purchase Agreement (Albany International Corp /De/)
Efforts; Further Assurances. (a) Subject to the terms and conditions herein provided, each of the Parties hereto shall use reasonable best efforts (except where a different efforts standard is specifically contemplated by this Agreement, in which case such different standard shall apply) each party will use its commercially reasonable efforts to take, or cause to be taken, all action, actions and to do, or cause to be done, all things, reasonably necessary, proper or advisable things necessary under applicable Laws laws and regulations to consummate and make effective the transactions contemplated by this Agreement. Each of Seller ; Sellers and Purchaser shall use reasonable best efforts Buyer agree to obtain the consents of all Governmental Authorities execute and third parties deliver such other documents, certificates, agreements and other writings and to take such other actions as may be necessary for the consummation of in order to consummate or implement expeditiously the transactions contemplated by this Agreement, including, in the case of Purchaser, arranging guarantees from Purchaser or a creditworthy controlled Affiliate of Purchaser as requested by such Governmental Authorities or third parties. Each of the Parties shall be responsible for all costs it incurs in connection with obtaining such consents, including any fees or costs relating to making or obtaining any other national or supranational antitrust or competition filings, notifications or approvals; provided, however, that (i) Purchaser shall pay (Agreement and to vest in Buyer good and marketable title to the extent paid by the Company, reimburse the Company) for the filing fees associated with the HSR Act and any other national or supranational antitrust or competition filings, notifications or approvals and (ii) no Party shall be obligated to make any payments or make any commitments in order to obtain any third party consent (other than Purchaser’s obligation to arrange guarantees as described above)Purchased Assets.
(b) Without limiting the generality of Section 5.3(a)foregoing, as soon as reasonably practicable after the date of this Agreementeach Seller further agrees for itself and its successors and assigns to execute upon request any other lawful documents and likewise to perform any other lawful acts which may be necessary or desirable to secure fully for Buyer all right, Seller shall notify the U.S. Federal Aviation Administration (“FAA”) title and interest in and to each of the transactions contemplated by the Agreement which such notice shall seek written confirmation that: (1) the FAA will issue new FAA Permits allowing the Company to continue operating as a FAA repair stationPurchased Assets, perform modifications under the supplemental type certificate and manufacture parts under parts manufacturer approvalincluding, following Closing; or (2) new FAA Permits are but not required with respect to consummation of the transactions covered by this Agreement and that following Closing (including to the extent the FAA Permits existing as of the date hereof will be transferred to Purchaser)limited to, the FAA Permits shall remain in full force execution of substitution, reissue, divisional or continuation patent applications; and effect. For preliminary or other statement or the avoidance giving of doubt, no such confirmation contemplated by the foregoing sentence shall serve as a condition precedent to the Closing. The Parties shall cooperate and consult with each other in connection with the notification, including by permitting the other party to review in advance, and consider in good faith the views of the other party in connection with, any proposed written communication with the FAA and any other information supplied to the FAA or received from the FAA in connection with the transactions contemplated by this Agreement, and shall promptly inform the other party of any communications with, and inquiries or requests for information from, the FAA in connection with the transactions contemplated by the Agreement and shall consult with each other in advance of any meeting or conference, whether in person or by telephone, with the FAA.
(c) Without limiting the generality of Section 5.3(a), as promptly as practicable and testimony in any event no later than ten (10) days after interference or other proceeding in which the date of this Agreement, each party hereto shall make an appropriate filing, if necessary, pursuant to the HSR Act with respect to the transactions contemplated by this Agreement and shall supply as promptly as practicable to the appropriate Governmental Authorities Purchased Assets or any additional information and documentary material that applications or patent directed thereto or derived therefrom may be requested pursuant to the HSR Actinvolved. Any other notifications, filings and request for approvals relating to any other national or supranational antitrust or competition requirements shall be made as promptly as practicable after the date of this Agreement. Without limiting the foregoing, with respect to the HSR Act and any other national or supranational antitrust or competition requirements Seller, the Company, Purchaser and their respective Affiliates Each Seller agrees (i) shall not extend any waiting period or comparable period under the HSR Act or any foreign antitrust Law or enter into any agreement with any Governmental Authority not to consummate the transactions contemplated hereby (a “Timing Agreement”), except with the prior written consent of the other Parties hereto, (ii) shall cooperate and consult with each other in connection with the making of all filings, notifications and any other material actions pursuant provide such reasonable assistance to this Section 5.3(c), including subject to applicable Law, by permitting counsel for the other party to review in advance, and consider in good faith the views of the other party in connection with, any proposed written communication to any Governmental Authority and by providing outside counsel for the other party with copies of all filings and submissions made by such party and all correspondence between such party (and its advisors) with any Governmental Authority and any other information supplied by such party and such party’s Subsidiaries to a Governmental Authority or received from such a Governmental Authority in connection with the transactions contemplated by this Agreement, (iii) shall furnish to the other Parties such information and assistance Buyer as such Parties reasonably Buyer may request in connection with the preparation prosecution of the Patent Applications and any action against third parties claiming infringement of any submissions toof the Purchased Assets and (ii) never to contest or assist any third party in contesting, the validity or agency proceedings by, any Governmental Authority, (iv) subject to applicable Law, shall promptly inform the other party enforceability of any communications withValid Claim.
(c) Each Seller hereby constitutes and appoints, effective as of the Closing upon payment of the Purchase Price, Buyer and inquiries its successors and assigns as the true and lawful attorney of such Seller with full power of substitution in the name of Buyer or requests in the name of such Seller, but for information from, such Governmental Authorities in connection with the transactions contemplated by benefit of Buyer (i) to collect for the Agreement account of Buyer any items of Purchased Assets and (vii) subject to applicable Lawprosecute all proceedings which Buyer may in its sole discretion deem proper in order to assert or enforce any right, shall consult with title or interest in, to or under the other Parties in advance of any meeting or conference, whether in person or by telephone, with any such Governmental Authority or, in connection with any proceeding by a private party, with any other PersonPurchased Assets, and to the extent permitted by such applicable Governmental Authority defend or other Personcompromise any and all actions, give the other Parties the opportunity to attend and participate suits or proceedings in such meetings and conferences. During the period from the date hereof until the earlier respect of the termination of this Agreement in accordance with Purchased Assets, whether based on a claim arising prior to or after the Closing Date. Buyer shall be entitled to retain for its terms and the Closing, Purchaser and its Affiliates shall not acquire or agree to acquire by merging or consolidating with, or by purchasing a material portion of the assets of or equity in, account any Person if such acquisition would reasonably be expected to delay, hinder or prohibit the consummation of the transactions contemplated hereby. The Parties may, as they deem advisable and necessary, designate any competitively sensitive materials provided amounts collected pursuant to the other under this Section 5.3(c) foregoing powers, including any amounts payable as “outside counsel onlyinterest in respect thereof.”
(d) Within five (5) Business Days after the ClosingSubject to Section 10.03 hereof, each Party Buyer shall notify the United States Department of State Directorate of Defense Trade Controls (the “DDTC”) of the transactions contemplated hereby under the International Traffic in Arms Regulations § 122.4 and of the intent to transfer pay all open licenses or other export authorizations included in the Assigned Assets. Each party shall cooperate and consult with each other in connection with the making of such notifications, including providing counsel for the other party the opportunity in advance to review the proposed notification prior to submission and considering in good faith the views of the other party in connection with the notifications. For the avoidance of doubt, no such notification contemplated expenses incurred by this clause (d) shall serve as a condition precedent to the Closing.
(e) In the event any claim, action, suit, investigation or other proceeding by any Governmental Authority or other Person is commenced which raises questions about the validity or legality of the transactions contemplated hereby or seeks damages in connection therewith, the Parties agree to cooperate and use reasonable best efforts to defend against such claim, action, suit, investigation or other proceeding; provided, however, that nothing in this Agreement shall require, or be construed to require, Seller, Purchaser or any of their respective Affiliates to litigate with or otherwise participate in any Legal Proceeding with any Governmental Authority in connection with obtaining any approval pursuant to this Agreement. In order to permit the satisfaction of the Closing condition set forth in Section 6.1(b), Purchaser shall (and Purchaser shall permit the Company, the Company Subsidiary and the Contributing Affiliate to) (i) agree to (A) any sale, license, divestiture or other disposition or holding separate of any capital stock, businesses, assets, properties or other interests of Purchaser, the Company or any of their respective controlled Affiliates or (B) the imposition of any limitation, restriction or condition on the ability of Purchaser, the Company or any of their respective controlled Affiliates to conduct their respective businesses or own, acquire, hold or exercise full rights of ownership of any capital stock, businesses, assets, properties or other interests ((A) and (B), the “Antitrust Actions”); provided, however, that, notwithstanding anything to the contrary set forth in this Agreement, (1) any such actions are conditioned upon and become effective only Sellers from and after the Closing and Date in complying with this Section 7.01 provided that such expenses are incurred at the request of Buyer or approved in advance by Buyer (2) under no circumstances, which approval shall Purchaser be required to propose, negotiate, commit to, effect or agree to Antitrust Actions or other related actions that materially and adversely affect Purchaser and its Affiliates (including after the Closing the Company and the Company Subsidiary, taken as a whole) or the Business. Subject to the foregoing, in no event will Seller (and Seller will not permit any of its Affiliates including the Company, the Company Subsidiary or the Contributing Affiliate to) propose, negotiate, effect or agree to any Antitrust Actions without the prior written consent of Purchaser (such consent not to be unreasonably withheld, conditioned withheld or delayed), nor shall Seller or any of its Affiliates (including the Company, the Company Subsidiary and the Contributing Affiliate) be required to propose, negotiate, effect or agree to, any Antitrust Actions.
Appears in 1 contract
Efforts; Further Assurances. (a) Subject to the terms and conditions herein providedof this Agreement, each of the Parties hereto shall Party will use their respective reasonable best efforts (except where a different efforts standard is specifically contemplated by this Agreement, in which case such different standard shall apply) to take, or cause to be taken, all action, actions and to do, or cause to be done, all things, reasonably things necessary, proper or advisable under applicable Applicable Laws to consummate and make effective the transactions contemplated by this Agreement. Each of Seller and Purchaser shall use reasonable best efforts to obtain the consents of all Governmental Authorities and third parties necessary for the consummation of the transactions Transactions contemplated by this Agreement, including, including using reasonable best efforts in the case of Purchaser, arranging guarantees from Purchaser or a creditworthy controlled Affiliate of Purchaser as requested by such Governmental Authorities or third parties. Each of the Parties shall be responsible for all costs it incurs in connection with obtaining such consents, including any fees or costs relating to making or obtaining any other national or supranational antitrust or competition filings, notifications or approvals; provided, however, that (i) Purchaser shall pay preparing and filing as promptly as practicable with any Governmental Authority or other third party all documentation to effect all necessary filings, notices, petitions, statements, registrations, submissions of information, applications and other documents, (ii) obtaining of all necessary consents, approvals or waivers, and any necessary or appropriate financing arrangement from third parties, and (iii) obtaining and maintaining all Permits required to be obtained from any Governmental Authority or other third party that are necessary, proper or advisable to consummate the Transactions. Notwithstanding anything to the contrary set forth in this Agreement, the Parties understand and agree that the obligations of Summit under this Section 7.01 shall, to the extent paid required to obtain approval from any Governmental Authority that is necessary, proper or advisable to consummate the Transaction, only require Summit to propose, negotiate and commit to sell, divest, lease, license, transfer, dispose of or otherwise encumber or hold separate (including by establishing a trust or otherwise) the Companybusinesses, reimburse assets or properties of Summit or its Subsidiaries, or the Company) ANAC Companies, the aggregate revenue for which, during the filing fees associated with fiscal year ended December 31, 2022, does not exceed $300,000,000 (a “Burdensome Condition”). No Argos Party or ANAC Company shall take or agree to take any of the HSR Act actions described in the definition of “Burdensome Condition” without the prior written consent of Summit which, without limiting Summit’s obligations under this Section 7.01(b), may be granted or withheld in Summit’s sole discretion (and any other national or supranational antitrust or competition filings, notifications or approvals the Argos Parties and (ii) no Party the ANAC Companies shall be obligated required to make take any payments or make any commitments of such actions (including actions in order to obtain any third party consent (other than Purchaser’s obligation to arrange guarantees furtherance thereof) that are requested by Summit so long as described abovesuch actions are conditioned on the consummation of Closing).
(b) Without limiting In furtherance and not in limitation of the generality of Section 5.3(a)foregoing, as soon as reasonably practicable promptly after the date of this Agreementhereof as reasonably practicable, Seller shall notify the U.S. Federal Aviation Administration (“FAA”) of the transactions contemplated by the Agreement which such notice shall seek written confirmation that: (1) the FAA will issue new FAA Permits allowing the Company to continue operating as a FAA repair station, perform modifications under the supplemental type certificate and manufacture parts under parts manufacturer approval, following Closing; or (2) new FAA Permits are not required with respect to consummation of the transactions covered by this Agreement and that following Closing (including to the extent the FAA Permits existing as of the date hereof will be transferred to Purchaser), the FAA Permits shall remain in full force and effect. For the avoidance of doubt, no such confirmation contemplated by the foregoing sentence shall serve as a condition precedent to the Closing. The Parties shall cooperate and consult with each other in connection with the notification, including by permitting the other party to review in advance, and consider in good faith the views of the other party in connection with, any proposed written communication with the FAA and any other information supplied to the FAA or received from the FAA in connection with the transactions contemplated by this Agreement, and shall promptly inform the other party of any communications with, and inquiries or requests for information from, the FAA in connection with the transactions contemplated by the Agreement and shall consult with each other in advance of any meeting or conference, whether in person or by telephone, with the FAA.
(c) Without limiting the generality of Section 5.3(a), as promptly as practicable and in any event but no later than ten (10) days 10 Business Days after the date of this Agreement, each party hereto of Summit, Cementos, the Argos Parties and the Company shall make (i) an appropriate filing, if necessary, filing of a Notification and Report Form pursuant to the HSR Act with respect to the Transactions (and shall, if available, request early termination of the waiting period associated therewith), and (ii) other filings required pursuant to any other applicable Antitrust Laws. To the extent permitted under Applicable Law, each of Summit and the Company shall furnish to the other such necessary information and reasonable assistance as the other may request in connection with its preparation of any filing or submission that is necessary under the HSR Act or any other applicable Antitrust Laws. Each Party shall (1) keep the other apprised of the status of matters relating to the completion of the transaction and the other transactions contemplated by this Agreement and shall supply as promptly as practicable to the appropriate Governmental Authorities any additional information and documentary material that may be requested pursuant to the HSR Act. Any other notifications, filings and request for approvals relating to any other national or supranational antitrust or competition requirements shall be made as promptly as practicable after the date of this Agreement. Without limiting the foregoing, with respect to the HSR Act and any other national or supranational antitrust or competition requirements Seller, the Company, Purchaser and their respective Affiliates (i) shall not extend any waiting period or comparable period under the HSR Act or any foreign antitrust Law or enter into any agreement with any Governmental Authority not to consummate the transactions contemplated hereby (a “Timing Agreement”), except with the prior written consent of the other Parties hereto, (ii) shall cooperate and consult with each other work cooperatively in connection with obtaining all required approvals; (2) promptly notify the making other parties of all filingsany written communication to that party from the FTC, notifications and the Antitrust Division of the U.S. Department of Justice, any State Attorney General or any other material actions pursuant to this Section 5.3(c)Governmental Authority, including and, subject to applicable Applicable Law, by permitting counsel for permit the other party parties to review and discuss in advance, and consider in good faith the views of the other party in connection with, any proposed written communication to any of the foregoing; (3) promptly provide all documents requested by the FTC, the Antitrust Division of the U.S. Department of Justice, any State Attorney General or any other Governmental Authority and by providing outside counsel for to the extent reasonably necessary or advisable to obtain as promptly as practicable all required approvals, (4) promptly consult with the other party to this Agreement to provide any necessary information with respect to (and, in the case of correspondence, provide the other party (or their counsel) copies of of) all filings and submissions made by such party and all correspondence between such party (and its advisors) with any Governmental Authority and any other information supplied by such party and such party’s Subsidiaries to a Governmental Authority or received from such a Governmental Authority in connection with the transactions contemplated by this Agreement, (iii) shall furnish to the other Parties party with such necessary information and reasonable assistance as such Parties the other party may reasonably may request in connection with the its preparation of filings or submissions of information to any submissions to, or agency proceedings by, any such Governmental Authority, (iv5) subject not agree to applicable Law, shall promptly inform the other party participate in any substantive meeting or discussion with any Governmental Authority in respect of any communications withfilings, and inquiries investigation or requests for information from, such Governmental Authorities inquiry concerning any competition or antitrust matters in connection with this Agreement or the transactions contemplated by the Agreement and (v) subject to applicable Law, shall consult Closing unless it consults with the other Parties parties in advance of any meeting or conferenceand, whether in person or by telephone, with any such Governmental Authority or, in connection with any proceeding by a private party, with any other Person, and to the extent permitted by such applicable Governmental Authority or other PersonAuthority, give gives the other Parties parties the opportunity to attend and participate thereat; and (6) furnish the other parties with copies of all correspondence, filings, and communications (and memoranda setting forth the substance thereof) between them and their affiliates and their respective representatives on the one hand, and any Governmental Authority or members or their respective staffs on the other hand, with respect to any competition or antitrust matters in such meetings connection with this Agreement.
(c) The Parties shall jointly develop, and conferences. During the period from the date hereof until the earlier each of the termination Parties shall consult and cooperate in all respects with one another, and consider in good faith the view of this Agreement one another, in accordance connection with its terms the form and the Closingcontent of any analyses, Purchaser appearances, presentations, memorandum, briefs, arguments, opinions, and its Affiliates shall not acquire proposals made or agree submitted by or on behalf of any Party in connection with proceedings under or relating to acquire by merging any Antitrust Laws or consolidating with, or by purchasing a material portion approval of the assets of or equity in, any Person if such acquisition would reasonably be expected Governmental Authority prior to delay, hinder or prohibit the consummation of the transactions contemplated hereby. The Parties may, as they deem advisable and necessary, designate any competitively sensitive materials provided to the other under this Section 5.3(c) as “outside counsel onlytheir submission.”
(d) Within five Summit acknowledges that Argos USA LLC, the Company and Cementos are subject to the DPA, and that Summit has received a copy of the DPA. Summit acknowledges and agrees that the Transactions are subject to the obligations of the DPA. As required under paragraph (5) Business Days after the Closing, each Party shall notify the United States Department of State Directorate of Defense Trade Controls (the “DDTC”22) of the transactions contemplated hereby under DPA, Summit acknowledges and agrees that unless the International Traffic U.S. Department of Justice consents in Arms Regulations § 122.4 and its sole discretion that the Transactions will not be subject to paragraph (22) of the intent DPA, (i) Summit, or any successor in interest to transfer Summit, shall be subject to and bound by the terms and conditions of the DPA and (ii) the U.S. Department of Justice shall have the ability to enforce all open licenses provisions of the DPA, including to determine that the DPA has been breached and is applicable in full force to Summit or any successor in interest to Summit. In connection with the Transactions, the Parties agree to use commercially reasonable efforts to seek to obtain consent from the U.S. Department of Justice that the Transactions will not be subject to paragraph (22) of the DPA. Such efforts shall include, in connection with the Transactions (i) cooperation in all reasonable respects and consultation with each other, including by allowing the other export authorizations included Party to have a reasonable opportunity to review in advance and comment on written communications with the Assigned Assets. Each party shall cooperate U.S. Department of Justice, (ii) promptly after the date hereof, and consult in any event at least thirty (30) days prior to the closing of the Transactions, notifying or causing the U.S. Department of Justice to be notified in writing of the Transactions in accordance with the DPA, (iii) promptly informing the other Party of any written communication received by such Party from, or given by such Party to, the U.S. Department of Justice, by promptly providing copies to the other Party of any such written communications, except for any such communications (and exhibits thereto) providing personal identifying or privileged information or information about Cementos or the Argos Parties, or as directed by U.S. Department of Justice; and (iii) permitting the other Party to review in advance any written communication that it gives to, and consulting with each other in connection with advance of any meeting, telephone call, or conference with, the making U.S. Department of such notifications, including providing counsel for Justice. Summit acknowledges that the other party ability to obtain any consent from the opportunity in advance U.S. Department of Justice to review the proposed notification Transactions pursuant to DPA prior to submission and considering in good faith the views of the other party in connection with the notifications. For the avoidance of doubt, no such notification contemplated by this clause (d) shall serve as Closing is not a condition precedent to the Closing.
(e) In the event any claim, action, suit, investigation or other proceeding by any Governmental Authority or other Person is commenced which raises questions about the validity or legality of the transactions contemplated hereby or seeks damages in connection therewith, the Parties agree to cooperate and use reasonable best efforts to defend against such claim, action, suit, investigation or other proceeding; provided, however, that nothing in this Agreement shall require, or be construed to require, Seller, Purchaser or any of their respective Affiliates to litigate with or otherwise participate in any Legal Proceeding with any Governmental Authority in connection with obtaining any approval pursuant to this Agreement. In order to permit the satisfaction of the Closing condition set forth in Section 6.1(b), Purchaser shall (and Purchaser shall permit the Company, the Company Subsidiary and the Contributing Affiliate to) (i) agree to (A) any sale, license, divestiture or other disposition or holding separate of any capital stock, businesses, assets, properties or other interests of Purchaser, the Company or any of their respective controlled Affiliates or (B) the imposition of any limitation, restriction or condition on the ability of Purchaser, the Company or any of their respective controlled Affiliates to conduct their respective businesses or own, acquire, hold or exercise full rights of ownership of any capital stock, businesses, assets, properties or other interests ((A) and (B), the “Antitrust Actions”); provided, however, that, notwithstanding anything to the contrary set forth in this Agreement, (1) any such actions are conditioned upon and become effective only from and after the Closing and (2) under no circumstances, shall Purchaser be required to propose, negotiate, commit to, effect or agree to Antitrust Actions or other related actions that materially and adversely affect Purchaser and its Affiliates (including after the Closing the Company and the Company Subsidiary, taken as a whole) or the Business. Subject to the foregoing, in no event will Seller (and Seller will not permit any of its Affiliates including the Company, the Company Subsidiary or the Contributing Affiliate to) propose, negotiate, effect or agree to any Antitrust Actions without the prior written consent of Purchaser (such consent not to be unreasonably withheld, conditioned or delayed), nor shall Seller or any of its Affiliates (including the Company, the Company Subsidiary and the Contributing Affiliate) be required to propose, negotiate, effect or agree to, any Antitrust Actions.
Appears in 1 contract
Efforts; Further Assurances. (a) Subject to the terms and conditions herein providedof this Agreement, each of Buyer, Merger Sub and the Parties hereto shall Company will use their respective reasonable best efforts (except where a different efforts standard is specifically contemplated by this Agreement, in which case such different standard shall apply) to take, or cause to be taken, all action, actions and to do, or cause to be done, all things, things necessary or reasonably necessary, proper or advisable under applicable Laws Applicable Law to consummate and make effective the transactions contemplated by this AgreementAgreement as soon as practicable, including (i) preparing and filing as promptly as practicable with any Governmental Authority or other third party all documentation to effect all necessary or reasonably advisable filings, notices, petitions, statements, registrations, submissions of information, applications and other documents and (ii) obtaining and maintaining all consents, approvals, registrations, permits, authorizations and other confirmations required to be obtained from any Governmental Authority or other third party that are necessary or reasonably advisable to consummate the transactions contemplated by this Agreement as soon as reasonably practicable. Each of Seller The parties acknowledge and Purchaser shall agree that Buyer’s and Merger Sub’s obligations to use their reasonable best efforts set forth in this Section 5.02(a) shall include an obligation of Buyer (i) to obtain take and cause its Affiliates to take all actions reasonably necessary to avoid or eliminate any impediment under any applicable Competition Law so as to enable the consents consummation of all the transactions contemplated hereby, including the Merger, to occur as soon as reasonably practicable (and in any event no later than the Outside Date), including (A) proposing, negotiating, committing to and effecting, by consent decree, hold separate order or otherwise, the sale, divestiture or disposition of businesses, product lines or assets of Buyer or its controlled Affiliates (including the Surviving Corporation and its Subsidiaries), (B) terminating existing relationships, contractual rights or obligations of Buyer or its controlled Affiliates (including the Surviving Corporation and its Subsidiaries) and (C) otherwise taking or committing to take actions that after the Closing Date would limit Buyer’s or its controlled Affiliates’ (including the Surviving Corporation’s and its Subsidiaries’), freedom of action with respect to, or its ability to retain, one or more of the businesses, product lines or assets of Buyer and its controlled Affiliates (including the Surviving Corporation and its Subsidiaries) and (ii) not take any action (including the acquisition by it or its Affiliates of any interest in any Person that derives revenues from products, services or lines of business similar to the Company’s products, services or lines of business) if such action would make it more likely that there would arise any impediments under any Competition Law that may be asserted by any Governmental Authorities Authority to the consummation of the Merger as promptly as reasonably practicable.
(b) In furtherance and third parties not in limitation of the foregoing, each of Buyer and the Company shall provide or cause to be provided as promptly as practicable to any Governmental Authority information and documents requested by any such Governmental Authority or necessary for the or reasonably advisable to permit consummation of the transactions contemplated by this Agreement, including, in the case of Purchaser, arranging guarantees from Purchaser or a creditworthy controlled Affiliate of Purchaser Agreement as requested by such Governmental Authorities or third parties. Each of the Parties shall be responsible for all costs it incurs in connection with obtaining such consents, including any fees or costs relating to making or obtaining any other national or supranational antitrust or competition filings, notifications or approvals; provided, however, that (i) Purchaser shall pay (and to the extent paid by the Company, reimburse the Company) for the filing fees associated with the HSR Act and any other national or supranational antitrust or competition filings, notifications or approvals and (ii) no Party shall be obligated to make any payments or make any commitments in order to obtain any third party consent (other than Purchaser’s obligation to arrange guarantees promptly as described above).
(b) Without limiting the generality of Section 5.3(a), as soon as reasonably practicable after the date execution of this Agreement, Seller shall notify including by (i) filing any notification and report form and related material required under the U.S. Federal Aviation Administration HSR Act (“FAA”and any similar Applicable Law regarding preacquisition notifications for the purpose of competition or merger control reviews) of with respect to the transactions contemplated by the Agreement which such notice shall seek written confirmation that: (1) the FAA will issue new FAA Permits allowing the Company to continue operating as a FAA repair station, perform modifications under the supplemental type certificate and manufacture parts under parts manufacturer approval, following Closing; or (2) new FAA Permits are not required with respect to consummation of the transactions covered by this Agreement and that following Closing (including to the extent the FAA Permits existing as of the date hereof will be transferred to Purchaser), the FAA Permits shall remain in full force and effect. For the avoidance of doubt, no such confirmation contemplated by the foregoing sentence shall serve as a condition precedent to the Closing. The Parties shall cooperate and consult with each other in connection with the notification, including by permitting the other party to review in advance, and consider in good faith the views of the other party in connection with, any proposed written communication with the FAA and any other information supplied to the FAA or received from the FAA in connection with the transactions contemplated by this Agreement, and shall promptly inform the other party of any communications with, and inquiries or requests for information from, the FAA in connection with the transactions contemplated by the Agreement and shall consult with each other in advance of any meeting or conference, whether in person or by telephone, with the FAA.
(c) Without limiting the generality of Section 5.3(a), hereby as promptly as practicable and in any event no later than ten (10) days within five Business Days after the date of this Agreement, each party hereto shall make an appropriate filing, if necessary, pursuant to the HSR Act with respect to the transactions contemplated by this Original Agreement Date and shall supply (ii) supplying as promptly as practicable to the appropriate Governmental Authorities any additional information and documentary material that may be requested pursuant to the HSR Act. Any other notifications, filings Act (and request any similar Applicable Law regarding preacquisition notifications for approvals relating to the purpose of competition or merger control reviews).
(c) If any other national or supranational antitrust or competition requirements shall be made as promptly as practicable after the date of this Agreement. Without limiting the foregoing, objections are asserted with respect to the HSR Act and transactions contemplated hereby under any other national or supranational antitrust or competition requirements Seller, the Company, Purchaser and their respective Affiliates (i) shall not extend any waiting period or comparable period under the HSR Act or any foreign antitrust Competition Law or enter into if any agreement with action, suit or proceeding is instituted challenging any Governmental Authority not to consummate of the transactions contemplated hereby as violative of any Competition Law, each of Buyer and the Company shall, at the sole cost and expense of Buyer, use its reasonable best efforts to (a “Timing Agreement”i) oppose or defend against any action to prevent or enjoin consummation of this Agreement (and the transactions contemplated herein), except with the prior written consent of the other Parties hereto, and/or (ii) take such reasonable action as necessary to overturn any regulatory action by any Governmental Authority to prevent or enjoin consummation of this Agreement (and the transactions contemplated herein), including by defending any action, suit or proceeding in order to avoid entry of, or to have vacated, overturned or terminated, including by appeal if necessary, in order to resolve any such objections or challenge under such Competition Law so as to permit consummation of the transactions contemplated by this Agreement as promptly as practicable.
(d) Each of Buyer, Merger Sub and the Company shall, and shall cause their respective Subsidiaries to, cooperate reasonably with one another and consult with each other keep the others generally apprised of material matters relating to or in connection with the making taking of all filings, notifications such actions and any the doing of such other material actions pursuant to things as are contemplated by this Section 5.3(c), including subject to applicable Law, by permitting counsel for 5.02.
(e) Each such party shall promptly inform the other party to review in advanceparties hereto of any oral communication with, and consider in good faith the views provide copies of the other party in connection written communications with, any proposed written communication to any Governmental Authority regarding any such filings or any such transaction. In furtherance and not in limitation of the foregoing, in connection with the seeking of any action by providing outside counsel for or in respect of, or the other party with copies making of all filings and submissions made by such party and all correspondence between such party (and its advisors) with any Governmental Authority and filing with, any other information supplied by such party and such party’s Subsidiaries to a Governmental Authority or received from such a Governmental Authority in connection with the transactions contemplated by this Agreementhereby, the parties shall (i) consult with one another in advance of any meeting, teleconference or other communication with such Governmental Authority, (ii) provide one another with an opportunity to attend or participate in such meeting, teleconference or other communication, (iii) shall furnish afford one another the right to review any written materials to be submitted to such Governmental Authority in advance of the other Parties such information and assistance as such Parties reasonably may request in connection with the preparation of any submissions to, or agency proceedings by, any Governmental Authoritysubmission thereof, (iv) subject to applicable Law, shall promptly inform the other furnish one another with copies of all written materials received by or on behalf of such party of any communications with, and inquiries or requests for information from, from such Governmental Authorities in connection with the transactions contemplated by the Agreement and (v) subject to applicable Law, shall consult with the other Parties in advance of any meeting or conference, whether in person or by telephone, with any such Governmental Authority orAuthority, in connection with any proceeding by a private party, with any other Person, and each case to the extent permitted by Applicable Law (except, in the case of the foregoing clause (ii), to the extent such applicable Governmental Authority has requested that one or other Person, give the other Parties the opportunity to attend and participate in such meetings and conferences. During the period from the date hereof until the earlier of the termination of this Agreement in accordance with its terms and the Closing, Purchaser and its Affiliates shall not acquire or agree to acquire by merging or consolidating with, or by purchasing a material portion of the assets of or equity in, any Person if such acquisition would reasonably be expected to delay, hinder or prohibit the consummation of the transactions contemplated hereby. The Parties may, as they deem advisable and necessary, designate any competitively sensitive materials provided to the other under this Section 5.3(c) as “outside counsel only.”
(d) Within five (5) Business Days after the Closing, each Party shall notify the United States Department of State Directorate of Defense Trade Controls (the “DDTC”) of the transactions contemplated hereby under the International Traffic in Arms Regulations § 122.4 and of the intent to transfer all open licenses or other export authorizations included in the Assigned Assets. Each party shall cooperate and consult with each other in connection with the making of such notifications, including providing counsel for the other party not attend or participate in any such meeting, teleconference or other communication, and in the opportunity in advance to review the proposed notification prior to submission and considering in good faith the views case of the other party in connection with the notifications. For the avoidance of doubtforegoing clauses (iii) and (iv), no such notification contemplated by this clause (d) shall serve as a condition precedent to the Closing.
extent that (ex) In the event any claim, action, suit, investigation or other proceeding by any Governmental Authority or other Person is commenced which raises questions about the validity or legality of such written materials contain information that does not relate to the transactions contemplated hereby or seeks damages in connection therewith(y) confidential treatment has been requested or granted for such written materials).
(f) The Company shall, the Parties agree subject to cooperate and Section 5.13, use commercially reasonable best efforts to defend against such claimobtain any and all consents and to deliver any and all notices, actionin each case in form and substance reasonably satisfactory to Buyer, suit, investigation or other proceedingwith respect to each item set forth on Section 3.04(iii) of the Company Disclosure Schedules; provided, however, provided that nothing in this Agreement the Company shall require, or not be construed obligated to require, Seller, Purchaser make any payment or any of their respective Affiliates other financial accommodation (whether to litigate with a third party or otherwise participate in any Legal Proceeding with any Governmental Authority otherwise) in connection with obtaining any approval pursuant to this Agreement. In order to permit the satisfaction of the Closing condition set forth in Section 6.1(b), Purchaser shall (and Purchaser shall permit the Company, the Company Subsidiary and the Contributing Affiliate to) (i) agree to (A) any sale, license, divestiture or other disposition or holding separate of any capital stock, businesses, assets, properties or other interests of Purchaser, the Company or any of their respective controlled Affiliates or (B) the imposition of any limitation, restriction or condition on the ability of Purchaser, the Company or any of their respective controlled Affiliates to conduct their respective businesses or own, acquire, hold or exercise full rights of ownership of any capital stock, businesses, assets, properties or other interests ((A) and (B), the “Antitrust Actions”); provided, however, that, notwithstanding anything consent to the contrary set forth in this Agreement, (1) any such actions are conditioned upon and become effective only from and after the Closing and (2) under no circumstances, shall Purchaser be required to propose, negotiate, commit to, effect or agree to Antitrust Actions or other related actions that materially and adversely affect Purchaser and its Affiliates (including after the Closing the Company and the Company Subsidiary, taken as a whole) or the Business. Subject to the foregoing, in no event will Seller (and Seller will not permit any of its Affiliates including the Company, the Company Subsidiary or the Contributing Affiliate to) propose, negotiate, effect or agree to any Antitrust Actions without the prior written consent of Purchaser (such consent not to be unreasonably withheld, conditioned or delayed), nor shall Seller or any of its Affiliates (including the Company, the Company Subsidiary and the Contributing Affiliate) be required to propose, negotiate, effect or agree to, any Antitrust Actionstransactions contemplated hereby.
Appears in 1 contract
Efforts; Further Assurances. (a) Subject to the terms and conditions herein provided, each of the Parties hereto shall use reasonable best efforts (except where a different efforts standard is specifically contemplated by this Agreement, in which case such different standard shall apply) Buyer and each Seller will use its reasonable efforts to take, or cause to be taken, all action, actions and to do, or cause to be done, all things, reasonably necessary, proper things necessary or advisable desirable under applicable Laws laws and regulations to consummate and make effective the transactions contemplated by this Agreement. Each of Seller The Sellers and Purchaser shall use reasonable best efforts Buyer agree, and the Sellers, prior to obtain the consents of all Governmental Authorities Closing, and third parties Buyer, after the Closing, agree to cause each Company and Subsidiary, to execute and deliver such other documents, certificates, agreements and other writings and to take such other actions as may be necessary for the consummation of or desirable in order to consummate or implement expeditiously the transactions contemplated by this Agreement, including, in the case of Purchaser, arranging guarantees from Purchaser or a creditworthy controlled Affiliate of Purchaser as requested by such Governmental Authorities or third parties. Each of the Parties shall be responsible for all costs it incurs in connection with obtaining such consents, including any fees or costs relating to making or obtaining any other national or supranational antitrust or competition filings, notifications or approvals; provided, however, that (i) Purchaser shall pay (and to the extent paid by the Company, reimburse the Company) for the filing fees associated with the HSR Act and any other national or supranational antitrust or competition filings, notifications or approvals and (ii) no Party shall be obligated to make any payments or make any commitments in order to obtain any third party consent (other than Purchaser’s obligation to arrange guarantees as described above).
(b) Without limiting the generality of Section 5.3(a), as soon as reasonably practicable after the date of this Agreement, Seller shall notify the U.S. Federal Aviation Administration (“FAA”) of the transactions contemplated by the Agreement which such notice shall seek written confirmation that: (1) the FAA will issue new FAA Permits allowing the Company to continue operating as a FAA repair station, perform modifications under the supplemental type certificate and manufacture parts under parts manufacturer approval, following Closing; or (2) new FAA Permits are not required with respect to consummation of the transactions covered by this Agreement and that following Closing (including to the extent the FAA Permits existing as of the date hereof will be transferred to Purchaser), the FAA Permits shall remain in full force and effect. For the avoidance of doubt, no such confirmation contemplated by the foregoing sentence shall serve as a condition precedent to the Closing. The Parties shall cooperate and consult with each other in connection with the notification, including by permitting the other party to review in advance, and consider in good faith the views of the other party in connection with, any proposed written communication with the FAA and any other information supplied to the FAA or received from the FAA in connection with the transactions contemplated by this Agreement, and shall promptly inform the other party of any communications with, and inquiries or requests for information from, the FAA in connection with the transactions contemplated by the Agreement and shall consult with each other in advance of any meeting or conference, whether in person or by telephone, with the FAA.
(c) Without limiting the generality of Section 5.3(a), as promptly as practicable and in any event no later than ten (10) days after the date of this Agreement, each party hereto shall make an appropriate filing, if necessary, pursuant to the HSR Act with respect to the transactions contemplated by this Agreement and shall supply as promptly as practicable to the appropriate Governmental Authorities any additional information and documentary material that may be requested pursuant to the HSR Act. Any other notifications, filings and request for approvals relating to any other national or supranational antitrust or competition requirements shall be made as promptly as practicable after the date of this Agreement. Without limiting the foregoing, Buyer will use its reasonable efforts to obtain the financing contemplated by Section 10.02(b), or alternative financing on substantially comparable or more favorable terms, as promptly as practical, and such reasonable efforts shall include acceptance of any changes requested by the applicable financing sources in the terms and conditions of such financing pursuant to any "market flex" provisions specifically set forth in any agreement or understanding entered into by Buyer, or to which Buyer is a party, in connection with respect the Commitment Letters. The Sellers acknowledge and agree that Buyer shall have the right to the HSR Act and any other national or supranational antitrust or competition requirements Seller, the Company, Purchaser and their respective Affiliates (i) shall not extend any waiting period or comparable period seek to obtain a portion of such financing through a placement of notes pursuant to Rule 144A under the HSR Securities Act or any foreign antitrust Law or enter into any agreement with any Governmental Authority of 1933; provided, however, that Buyer will use its reasonable efforts to ensure that Buyer will be entitled, if such placement is not completed by December 31, 2003, to promptly consummate the transactions contemplated hereby financing in accordance with the terms and conditions set forth in the Commitment Letters, subject to satisfaction or waiver of all other conditions set forth therein and in Article 10 of this Agreement (a “Timing Agreement”it being understood and agreed that such reasonable efforts shall include working in good faith with the financing sources so as to complete all definitive documentation relating to such financing prior to such date). Buyer shall not, except with without the prior written consent of the other Parties heretoSellers, amend, modify or supplement (i) any of the conditions or contingencies to funding contained in the Commitment Letters or (ii) shall cooperate and consult with each other in connection with the making of all filings, notifications and any other material actions pursuant to this Section 5.3(c), including subject to applicable Law, by permitting counsel for the other party to review in advance, and consider in good faith the views provision of the other party in connection with, any proposed written communication to any Governmental Authority and by providing outside counsel for the other party with copies of all filings and submissions made by such party and all correspondence between such party (and its advisors) with any Governmental Authority and any other information supplied by such party and such party’s Subsidiaries to a Governmental Authority or received from such a Governmental Authority in connection with the transactions contemplated by this Agreement, (iii) shall furnish to the other Parties such information and assistance as such Parties reasonably may request in connection with the preparation of any submissions to, or agency proceedings by, any Governmental Authority, (iv) subject to applicable Law, shall promptly inform the other party of any communications with, and inquiries or requests for information from, such Governmental Authorities in connection with the transactions contemplated by the Agreement and (v) subject to applicable Law, shall consult with the other Parties in advance of any meeting or conference, whether in person or by telephone, with any such Governmental Authority or, in connection with any proceeding by a private party, with any other Person, and Commitment Letters to the extent permitted by such applicable Governmental Authority amendment, modification or other Personsupplement would have the effect of amending, give modifying or supplementing any condition or contingency to funding or would otherwise be in a manner adverse to the other Parties the opportunity to attend and participate in such meetings and conferences. During the period from the date hereof until the earlier interests of the termination of this Agreement in accordance with its terms and the Closing, Purchaser and its Affiliates shall not acquire or agree to acquire by merging or consolidating with, or by purchasing a material portion of the assets of or equity in, any Person if such acquisition would reasonably be expected to delay, hinder or prohibit the consummation of the transactions contemplated hereby. The Parties may, as they deem advisable and necessary, designate any competitively sensitive materials provided to the other under this Section 5.3(c) as “outside counsel onlySellers.”
(d) Within five (5) Business Days after the Closing, each Party shall notify the United States Department of State Directorate of Defense Trade Controls (the “DDTC”) of the transactions contemplated hereby under the International Traffic in Arms Regulations § 122.4 and of the intent to transfer all open licenses or other export authorizations included in the Assigned Assets. Each party shall cooperate and consult with each other in connection with the making of such notifications, including providing counsel for the other party the opportunity in advance to review the proposed notification prior to submission and considering in good faith the views of the other party in connection with the notifications. For the avoidance of doubt, no such notification contemplated by this clause (d) shall serve as a condition precedent to the Closing.
(e) In the event any claim, action, suit, investigation or other proceeding by any Governmental Authority or other Person is commenced which raises questions about the validity or legality of the transactions contemplated hereby or seeks damages in connection therewith, the Parties agree to cooperate and use reasonable best efforts to defend against such claim, action, suit, investigation or other proceeding; provided, however, that nothing in this Agreement shall require, or be construed to require, Seller, Purchaser or any of their respective Affiliates to litigate with or otherwise participate in any Legal Proceeding with any Governmental Authority in connection with obtaining any approval pursuant to this Agreement. In order to permit the satisfaction of the Closing condition set forth in Section 6.1(b), Purchaser shall (and Purchaser shall permit the Company, the Company Subsidiary and the Contributing Affiliate to) (i) agree to (A) any sale, license, divestiture or other disposition or holding separate of any capital stock, businesses, assets, properties or other interests of Purchaser, the Company or any of their respective controlled Affiliates or (B) the imposition of any limitation, restriction or condition on the ability of Purchaser, the Company or any of their respective controlled Affiliates to conduct their respective businesses or own, acquire, hold or exercise full rights of ownership of any capital stock, businesses, assets, properties or other interests ((A) and (B), the “Antitrust Actions”); provided, however, that, notwithstanding anything to the contrary set forth in this Agreement, (1) any such actions are conditioned upon and become effective only from and after the Closing and (2) under no circumstances, shall Purchaser be required to propose, negotiate, commit to, effect or agree to Antitrust Actions or other related actions that materially and adversely affect Purchaser and its Affiliates (including after the Closing the Company and the Company Subsidiary, taken as a whole) or the Business. Subject to the foregoing, in no event will Seller (and Seller will not permit any of its Affiliates including the Company, the Company Subsidiary or the Contributing Affiliate to) propose, negotiate, effect or agree to any Antitrust Actions without the prior written consent of Purchaser (such consent not to be unreasonably withheld, conditioned or delayed), nor shall Seller or any of its Affiliates (including the Company, the Company Subsidiary and the Contributing Affiliate) be required to propose, negotiate, effect or agree to, any Antitrust Actions.
Appears in 1 contract
Samples: Stock Purchase Agreement (Nalco Energy Services Equatorial Guinea LLC)
Efforts; Further Assurances. (a) Subject to the terms and conditions herein providedof this Agreement, each of the Parties hereto shall Seller will use reasonable best efforts (except where a different efforts standard is specifically contemplated by this Agreement, in which case such different standard shall apply) to take, or cause to be taken, all action, actions and to do, or cause to be done, all things, reasonably necessary, proper or advisable things necessary under applicable Laws laws and regulations to consummate and make effective the transactions contemplated by this Agreement. Each of ; Seller agrees to execute and Purchaser shall use reasonable best efforts deliver such other documents, certificates, agreements and other writings and to obtain the consents of all Governmental Authorities and third parties take such other actions as may be necessary for the consummation of in order to consummate or implement expeditiously the transactions contemplated by this Agreement, including, in the case of Purchaser, arranging guarantees from Purchaser or a creditworthy controlled Affiliate of Purchaser as requested by such Governmental Authorities or third parties. Each of the Parties shall be responsible for all costs it incurs in connection with obtaining such consents, including any fees or costs relating to making or obtaining any other national or supranational antitrust or competition filings, notifications or approvals; provided, however, that (i) Purchaser shall pay (Agreement and to vest in Buyer good and marketable title to the extent paid by the Company, reimburse the Company) for the filing fees associated with the HSR Act and any other national or supranational antitrust or competition filings, notifications or approvals and (ii) no Party shall be obligated to make any payments or make any commitments in order to obtain any third party consent (other than Purchaser’s obligation to arrange guarantees as described above)Purchased Assets.
(b) Without limiting the generality of Section 5.3(a), as soon as reasonably practicable after the date of this Agreementforegoing, Seller shall notify the U.S. Federal Aviation Administration (“FAA”) further agrees for herself and her successors and assigns to execute upon request any other lawful documents and likewise to perform any other lawful acts which may be necessary or desirable to secure fully for Buyer all right, title and interest in and to each of the transactions contemplated by the Agreement which such notice shall seek written confirmation that: (1) the FAA will issue new FAA Permits allowing the Company to continue operating as a FAA repair stationPurchased Assets, perform modifications under the supplemental type certificate and manufacture parts under parts manufacturer approvalincluding, following Closing; or (2) new FAA Permits are but not required with respect to consummation of the transactions covered by this Agreement and that following Closing (including to the extent the FAA Permits existing as of the date hereof will be transferred to Purchaser)limited to, the FAA Permits shall remain in full force execution of substitution, reissue, divisional or continuation patent applications; and effect. For preliminary or other statement or the avoidance giving of doubt, no such confirmation contemplated by the foregoing sentence shall serve as a condition precedent to the Closing. The Parties shall cooperate and consult with each other in connection with the notification, including by permitting the other party to review in advance, and consider in good faith the views of the other party in connection with, any proposed written communication with the FAA and any other information supplied to the FAA or received from the FAA in connection with the transactions contemplated by this Agreement, and shall promptly inform the other party of any communications with, and inquiries or requests for information from, the FAA in connection with the transactions contemplated by the Agreement and shall consult with each other in advance of any meeting or conference, whether in person or by telephone, with the FAA.
(c) Without limiting the generality of Section 5.3(a), as promptly as practicable and testimony in any event no later than ten (10) days after interference or other proceeding in which the date of this Agreement, each party hereto shall make an appropriate filing, if necessary, pursuant to the HSR Act with respect to the transactions contemplated by this Agreement and shall supply as promptly as practicable to the appropriate Governmental Authorities Purchased Assets or any additional information and documentary material that applications or patent directed thereto or derived therefrom may be requested pursuant to the HSR Actinvolved. Any other notifications, filings and request for approvals relating to any other national or supranational antitrust or competition requirements shall be made as promptly as practicable after the date of this Agreement. Without limiting the foregoing, with respect to the HSR Act and any other national or supranational antitrust or competition requirements Seller, the Company, Purchaser and their respective Affiliates Seller agrees (i) shall not extend any waiting period or comparable period under the HSR Act or any foreign antitrust Law or enter into any agreement with any Governmental Authority not to consummate the transactions contemplated hereby (a “Timing Agreement”), except with the prior written consent of the other Parties hereto, (ii) shall cooperate and consult with each other in connection with the making of all filings, notifications and any other material actions pursuant provide such reasonable assistance to this Section 5.3(c), including subject to applicable Law, by permitting counsel for the other party to review in advance, and consider in good faith the views of the other party in connection with, any proposed written communication to any Governmental Authority and by providing outside counsel for the other party with copies of all filings and submissions made by such party and all correspondence between such party (and its advisors) with any Governmental Authority and any other information supplied by such party and such party’s Subsidiaries to a Governmental Authority or received from such a Governmental Authority in connection with the transactions contemplated by this Agreement, (iii) shall furnish to the other Parties such information and assistance Buyer as such Parties reasonably Buyer may request in connection with the preparation prosecution of the Patent Applications and any action against third parties claiming infringement of any submissions toof the Purchased Assets and (ii) never to contest or assist any third party in contesting, the validity or agency proceedings by, any Governmental Authority, (iv) subject to applicable Law, shall promptly inform the other party enforceability of any communications withValid Claim.
(c) Seller hereby constitutes and appoints, upon payment of the Purchase Price pursuant to Section 2.02(a) of this Agreement, Buyer and inquiries its successors and assigns as the true and lawful attorney of Seller with respect to the Purchased Assets with full power of substitution in the name of Buyer or requests in the name of Seller, but for information from, such Governmental Authorities in connection with the transactions contemplated by benefit of Buyer (i) to collect for the Agreement account of Buyer any items of Purchased Assets and (vii) subject to applicable Lawprosecute all proceedings which Buyer may in its sole discretion deem proper in order to assert or enforce any right, shall consult with title or interest in, to or under the other Parties in advance of any meeting or conference, whether in person or by telephone, with any such Governmental Authority or, in connection with any proceeding by a private party, with any other PersonPurchased Assets, and to the extent permitted by such applicable Governmental Authority defend or other Personcompromise any and all actions, give the other Parties the opportunity to attend and participate suits or proceedings in such meetings and conferences. During the period from the date hereof until the earlier respect of the termination of this Agreement in accordance with its terms and the ClosingPurchased Assets, Purchaser and its Affiliates shall not acquire whether based on a claim arising prior to or agree to acquire by merging or consolidating with, or by purchasing a material portion of the assets of or equity in, any Person if such acquisition would reasonably be expected to delay, hinder or prohibit the consummation of the transactions contemplated hereby. The Parties may, as they deem advisable and necessary, designate any competitively sensitive materials provided to the other under this Section 5.3(c) as “outside counsel only.”
(d) Within five (5) Business Days after the Closing, each Party shall notify the United States Department execution of State Directorate of Defense Trade Controls (the “DDTC”) of the transactions contemplated hereby under the International Traffic in Arms Regulations § 122.4 and of the intent to transfer all open licenses or other export authorizations included in the Assigned Assets. Each party shall cooperate and consult with each other in connection with the making of such notifications, including providing counsel for the other party the opportunity in advance to review the proposed notification prior to submission and considering in good faith the views of the other party in connection with the notifications. For the avoidance of doubt, no such notification contemplated by this clause (d) shall serve as a condition precedent to the Closing.
(e) In the event any claim, action, suit, investigation or other proceeding by any Governmental Authority or other Person is commenced which raises questions about the validity or legality of the transactions contemplated hereby or seeks damages in connection therewith, the Parties agree to cooperate and use reasonable best efforts to defend against such claim, action, suit, investigation or other proceeding; provided, however, that nothing in this Agreement shall require, or be construed to require, Seller, Purchaser or any of their respective Affiliates to litigate with or otherwise participate in any Legal Proceeding with any Governmental Authority in connection with obtaining any approval pursuant to this Agreement. In order Buyer shall be entitled to permit the satisfaction of the Closing condition set forth in Section 6.1(b), Purchaser shall (and Purchaser shall permit the Company, the Company Subsidiary and the Contributing Affiliate to) (i) agree to (A) retain for its account any sale, license, divestiture or other disposition or holding separate of any capital stock, businesses, assets, properties or other interests of Purchaser, the Company or any of their respective controlled Affiliates or (B) the imposition of any limitation, restriction or condition on the ability of Purchaser, the Company or any of their respective controlled Affiliates to conduct their respective businesses or own, acquire, hold or exercise full rights of ownership of any capital stock, businesses, assets, properties or other interests ((A) and (B), the “Antitrust Actions”); provided, however, that, notwithstanding anything amounts collected pursuant to the contrary set forth foregoing powers, including any amounts payable as interest in this Agreement, (1) any such actions are conditioned upon and become effective only from and after the Closing and (2) under no circumstances, shall Purchaser be required to propose, negotiate, commit to, effect or agree to Antitrust Actions or other related actions that materially and adversely affect Purchaser and its Affiliates (including after the Closing the Company and the Company Subsidiary, taken as a whole) or the Businessrespect thereof. Subject to the foregoing, in no event will Seller (and Seller will not permit any of its Affiliates including the Company, the Company Subsidiary or the Contributing Affiliate to) propose, negotiate, effect or agree to any Antitrust Actions without the prior written consent of Purchaser (such consent not to be unreasonably withheld, conditioned or delayed), nor shall Seller or any of its Affiliates (including the Company, the Company Subsidiary and the Contributing Affiliate) be required to propose, negotiate, effect or agree to, any Antitrust Actions.* CONFIDENTIAL TREATMENT REQUESTED
Appears in 1 contract
Samples: Settlement Agreement (Repligen Corp)
Efforts; Further Assurances. (a) Subject to the terms and conditions herein providedof this Agreement, each of the Parties hereto shall Seller will use reasonable best efforts (except where a different efforts standard is specifically contemplated by this Agreement, in which case such different standard shall apply) to take, or cause to be taken, all action, actions and to do, or cause to be done, all things, reasonably necessary, proper or advisable things necessary under applicable Laws laws and regulations to consummate and make effective the transactions contemplated by this Agreement. Each of ; Seller agrees to execute and Purchaser shall use reasonable best efforts deliver such other documents, certificates, agreements and other writings and to obtain the consents of all Governmental Authorities and third parties take such other actions as may be necessary for the consummation of in order to consummate or implement expeditiously the transactions contemplated by this Agreement, including, in the case of Purchaser, arranging guarantees from Purchaser or a creditworthy controlled Affiliate of Purchaser as requested by such Governmental Authorities or third parties. Each of the Parties shall be responsible for all costs it incurs in connection with obtaining such consents, including any fees or costs relating to making or obtaining any other national or supranational antitrust or competition filings, notifications or approvals; provided, however, that (i) Purchaser shall pay (Agreement and to vest in Buyer good and marketable title to the extent paid by the Company, reimburse the Company) for the filing fees associated with the HSR Act and any other national or supranational antitrust or competition filings, notifications or approvals and (ii) no Party shall be obligated to make any payments or make any commitments in order to obtain any third party consent (other than Purchaser’s obligation to arrange guarantees as described above)Purchased Assets.
(b) Without limiting the generality of Section 5.3(a), as soon as reasonably practicable after the date of this Agreementforegoing, Seller shall notify the U.S. Federal Aviation Administration (“FAA”) further agrees for herself and his successors and assigns to execute upon request any other lawful documents and likewise to perform any other lawful acts which may be necessary or desirable to secure fully for Buyer all right, title and interest in and to each of the transactions contemplated by the Agreement which such notice shall seek written confirmation that: (1) the FAA will issue new FAA Permits allowing the Company to continue operating as a FAA repair stationPurchased Assets, perform modifications under the supplemental type certificate and manufacture parts under parts manufacturer approvalincluding, following Closing; or (2) new FAA Permits are but not required with respect to consummation of the transactions covered by this Agreement and that following Closing (including to the extent the FAA Permits existing as of the date hereof will be transferred to Purchaser)limited to, the FAA Permits shall remain in full force execution of substitution, reissue, divisional or continuation patent applications; and effect. For preliminary or other statement or the avoidance giving of doubt, no such confirmation contemplated by the foregoing sentence shall serve as a condition precedent to the Closing. The Parties shall cooperate and consult with each other in connection with the notification, including by permitting the other party to review in advance, and consider in good faith the views of the other party in connection with, any proposed written communication with the FAA and any other information supplied to the FAA or received from the FAA in connection with the transactions contemplated by this Agreement, and shall promptly inform the other party of any communications with, and inquiries or requests for information from, the FAA in connection with the transactions contemplated by the Agreement and shall consult with each other in advance of any meeting or conference, whether in person or by telephone, with the FAA.
(c) Without limiting the generality of Section 5.3(a), as promptly as practicable and testimony in any event no later than ten (10) days after interference or other proceeding in which the date of this Agreement, each party hereto shall make an appropriate filing, if necessary, pursuant to the HSR Act with respect to the transactions contemplated by this Agreement and shall supply as promptly as practicable to the appropriate Governmental Authorities Purchased Assets or any additional information and documentary material that applications or patent directed thereto or derived therefrom may be requested pursuant to the HSR Actinvolved. Any other notifications, filings and request for approvals relating to any other national or supranational antitrust or competition requirements shall be made as promptly as practicable after the date of this Agreement. Without limiting the foregoing, with respect to the HSR Act and any other national or supranational antitrust or competition requirements Seller, the Company, Purchaser and their respective Affiliates Seller agrees (i) shall not extend any waiting period or comparable period under the HSR Act or any foreign antitrust Law or enter into any agreement with any Governmental Authority not to consummate the transactions contemplated hereby (a “Timing Agreement”), except with the prior written consent of the other Parties hereto, (ii) shall cooperate and consult with each other in connection with the making of all filings, notifications and any other material actions pursuant provide such reasonable assistance to this Section 5.3(c), including subject to applicable Law, by permitting counsel for the other party to review in advance, and consider in good faith the views of the other party in connection with, any proposed written communication to any Governmental Authority and by providing outside counsel for the other party with copies of all filings and submissions made by such party and all correspondence between such party (and its advisors) with any Governmental Authority and any other information supplied by such party and such party’s Subsidiaries to a Governmental Authority or received from such a Governmental Authority in connection with the transactions contemplated by this Agreement, (iii) shall furnish to the other Parties such information and assistance Buyer as such Parties reasonably Buyer may request in connection with the preparation prosecution of the Patent Applications and any action against third parties claiming infringement of any submissions toof the Purchased Assets and (ii) never to contest or assist any third party in contesting, the validity or agency proceedings by, any Governmental Authority, (iv) subject to applicable Law, shall promptly inform the other party enforceability of any communications withValid Claim.
(c) Seller hereby constitutes and appoints, upon payment of the Purchase Price pursuant to Section 2.02(a) of this Agreement, Buyer and inquiries its successors and assigns as the true and lawful attorney of Seller with respect to the Purchased Assets with full power of substitution in the name of Buyer or requests in the name of Seller, but for information from, such Governmental Authorities in connection with the transactions contemplated by benefit of Buyer (i) to collect for the Agreement account of Buyer any items of Purchased Assets and (vii) subject to applicable Lawprosecute all proceedings which Buyer may in its sole discretion deem proper in order to assert or enforce any right, shall consult with title or interest in, to or under the other Parties in advance of any meeting or conference, whether in person or by telephone, with any such Governmental Authority or, in connection with any proceeding by a private party, with any other PersonPurchased Assets, and to the extent permitted by such applicable Governmental Authority defend or other Personcompromise any and all actions, give the other Parties the opportunity to attend and participate suits or proceedings in such meetings and conferences. During the period from the date hereof until the earlier respect of the termination of this Agreement in accordance with its terms and the ClosingPurchased Assets, Purchaser and its Affiliates shall not acquire whether based on a claim arising prior to or agree to acquire by merging or consolidating with, or by purchasing a material portion of the assets of or equity in, any Person if such acquisition would reasonably be expected to delay, hinder or prohibit the consummation of the transactions contemplated hereby. The Parties may, as they deem advisable and necessary, designate any competitively sensitive materials provided to the other under this Section 5.3(c) as “outside counsel only.”
(d) Within five (5) Business Days after the Closing, each Party shall notify the United States Department execution of State Directorate of Defense Trade Controls (the “DDTC”) of the transactions contemplated hereby under the International Traffic in Arms Regulations § 122.4 and of the intent to transfer all open licenses or other export authorizations included in the Assigned Assets. Each party shall cooperate and consult with each other in connection with the making of such notifications, including providing counsel for the other party the opportunity in advance to review the proposed notification prior to submission and considering in good faith the views of the other party in connection with the notifications. For the avoidance of doubt, no such notification contemplated by this clause (d) shall serve as a condition precedent to the Closing.
(e) In the event any claim, action, suit, investigation or other proceeding by any Governmental Authority or other Person is commenced which raises questions about the validity or legality of the transactions contemplated hereby or seeks damages in connection therewith, the Parties agree to cooperate and use reasonable best efforts to defend against such claim, action, suit, investigation or other proceeding; provided, however, that nothing in this Agreement shall require, or be construed to require, Seller, Purchaser or any of their respective Affiliates to litigate with or otherwise participate in any Legal Proceeding with any Governmental Authority in connection with obtaining any approval pursuant to this Agreement. In order Buyer shall be entitled to permit the satisfaction of the Closing condition set forth in Section 6.1(b), Purchaser shall (and Purchaser shall permit the Company, the Company Subsidiary and the Contributing Affiliate to) (i) agree to (A) retain for its account any sale, license, divestiture or other disposition or holding separate of any capital stock, businesses, assets, properties or other interests of Purchaser, the Company or any of their respective controlled Affiliates or (B) the imposition of any limitation, restriction or condition on the ability of Purchaser, the Company or any of their respective controlled Affiliates to conduct their respective businesses or own, acquire, hold or exercise full rights of ownership of any capital stock, businesses, assets, properties or other interests ((A) and (B), the “Antitrust Actions”); provided, however, that, notwithstanding anything amounts collected pursuant to the contrary set forth foregoing powers, including any amounts payable as interest in this Agreement, (1) any such actions are conditioned upon and become effective only from and after the Closing and (2) under no circumstances, shall Purchaser be required to propose, negotiate, commit to, effect or agree to Antitrust Actions or other related actions that materially and adversely affect Purchaser and its Affiliates (including after the Closing the Company and the Company Subsidiary, taken as a whole) or the Businessrespect thereof. Subject to the foregoing, in no event will Seller (and Seller will not permit any of its Affiliates including the Company, the Company Subsidiary or the Contributing Affiliate to) propose, negotiate, effect or agree to any Antitrust Actions without the prior written consent of Purchaser (such consent not to be unreasonably withheld, conditioned or delayed), nor shall Seller or any of its Affiliates (including the Company, the Company Subsidiary and the Contributing Affiliate) be required to propose, negotiate, effect or agree to, any Antitrust Actions.* CONFIDENTIAL TREATMENT REQUESTED
Appears in 1 contract
Samples: Settlement Agreement (Repligen Corp)
Efforts; Further Assurances. (a) Subject to the terms and conditions herein providedof this Agreement, each of Buyer, Merger Sub and the Parties hereto shall Company will use their respective reasonable best efforts (except where a different efforts standard is specifically contemplated by this Agreement, in which case such different standard shall apply) to take, or cause to be taken, all action, actions and to do, or cause to be done, all things, things necessary or reasonably necessary, proper or advisable under applicable Laws Applicable Law to consummate and make effective the transactions contemplated by this AgreementAgreement as soon as practicable, including (i) preparing and filing as promptly as practicable with any Governmental Authority or other third party all documentation to effect all necessary or reasonably advisable filings, notices, petitions, statements, registrations, submissions of information, applications and other documents and (ii) obtaining and maintaining all consents, approvals, registrations, permits, authorizations and other confirmations required to be obtained from any Governmental Authority or other third party that are necessary or reasonably advisable to consummate the transactions contemplated by this Agreement as soon as reasonably practicable. Each of Seller The parties acknowledge and Purchaser shall agree that Buyer’s and Merger Sub’s obligations to use their reasonable best efforts set forth in this Section 5.02(a) shall include an obligation of Buyer (i) to obtain take and cause its Affiliates to take all actions reasonably necessary to avoid or eliminate any impediment under any applicable Competition Law so as to enable the consents consummation of all the transactions contemplated hereby, including the Merger, to occur as soon as reasonably practicable (and in any event no later than the Outside Date), including (A) proposing, negotiating, committing to and effecting, by consent decree, hold separate order or otherwise, the sale, divestiture or disposition of businesses, product lines or assets of Buyer or its controlled Affiliates (including the Surviving Corporation and its Subsidiaries), (B) terminating existing relationships, contractual rights or obligations of Buyer or its controlled Affiliates (including the Surviving Corporation and its Subsidiaries) and (C) otherwise taking or committing to take actions that after the Closing Date would limit Buyer’s or its controlled Affiliates’ (including the Surviving Corporation’s and its Subsidiaries’), freedom of action with respect to, or its ability to retain, one or more of the businesses, product lines or assets of Buyer and its controlled Affiliates (including the Surviving Corporation and its Subsidiaries) and (ii) not take any action (including the acquisition by it or its Affiliates of any interest in any Person that derives revenues from products, services or lines of business similar to the Company’s products, services or lines of business) if such action would make it more likely that there would arise any impediments under any Competition Law that may be asserted by any Governmental Authorities Authority to the consummation of the Merger as promptly as reasonably practicable.
(b) In furtherance and third parties not in limitation of the foregoing, each of Buyer and the Company shall provide or cause to be provided as promptly as practicable to any Governmental Authority information and documents requested by any such Governmental Authority or necessary for the or reasonably advisable to permit consummation of the transactions contemplated by this Agreement, including, in the case of Purchaser, arranging guarantees from Purchaser or a creditworthy controlled Affiliate of Purchaser Agreement as requested by such Governmental Authorities or third parties. Each of the Parties shall be responsible for all costs it incurs in connection with obtaining such consents, including any fees or costs relating to making or obtaining any other national or supranational antitrust or competition filings, notifications or approvals; provided, however, that (i) Purchaser shall pay (and to the extent paid by the Company, reimburse the Company) for the filing fees associated with the HSR Act and any other national or supranational antitrust or competition filings, notifications or approvals and (ii) no Party shall be obligated to make any payments or make any commitments in order to obtain any third party consent (other than Purchaser’s obligation to arrange guarantees promptly as described above).
(b) Without limiting the generality of Section 5.3(a), as soon as reasonably practicable after the date execution of this Agreement, Seller shall notify including by (i) filing any notification and report form and related material required under the U.S. Federal Aviation Administration HSR Act (“FAA”and any similar Applicable Law regarding preacquisition notifications for the purpose of competition or merger control reviews) of with respect to the transactions contemplated by the Agreement which such notice shall seek written confirmation that: (1) the FAA will issue new FAA Permits allowing the Company to continue operating as a FAA repair station, perform modifications under the supplemental type certificate and manufacture parts under parts manufacturer approval, following Closing; or (2) new FAA Permits are not required with respect to consummation of the transactions covered by this Agreement and that following Closing (including to the extent the FAA Permits existing as of the date hereof will be transferred to Purchaser), the FAA Permits shall remain in full force and effect. For the avoidance of doubt, no such confirmation contemplated by the foregoing sentence shall serve as a condition precedent to the Closing. The Parties shall cooperate and consult with each other in connection with the notification, including by permitting the other party to review in advance, and consider in good faith the views of the other party in connection with, any proposed written communication with the FAA and any other information supplied to the FAA or received from the FAA in connection with the transactions contemplated by this Agreement, and shall promptly inform the other party of any communications with, and inquiries or requests for information from, the FAA in connection with the transactions contemplated by the Agreement and shall consult with each other in advance of any meeting or conference, whether in person or by telephone, with the FAA.
(c) Without limiting the generality of Section 5.3(a), hereby as promptly as practicable and in any event no later than ten (10) days within five Business Days after the date of this Agreement, each party hereto shall make an appropriate filing, if necessary, pursuant to the HSR Act with respect to the transactions contemplated by this Agreement hereof and shall supply (ii) supplying as promptly as practicable to the appropriate Governmental Authorities any additional information and documentary material that may be requested pursuant to the HSR Act. Any other notifications, filings Act (and request any similar Applicable Law regarding preacquisition notifications for approvals relating to the purpose of competition or merger control reviews).
(c) If any other national or supranational antitrust or competition requirements shall be made as promptly as practicable after the date of this Agreement. Without limiting the foregoing, objections are asserted with respect to the HSR Act and transactions contemplated hereby under any other national or supranational antitrust or competition requirements Seller, the Company, Purchaser and their respective Affiliates (i) shall not extend any waiting period or comparable period under the HSR Act or any foreign antitrust Competition Law or enter into if any agreement with action, suit or proceeding is instituted challenging any Governmental Authority not to consummate of the transactions contemplated hereby as violative of any Competition Law, each of Buyer and the Company shall, at the sole cost and expense of Buyer, use its reasonable best efforts to (a “Timing Agreement”i) oppose or defend against any action to prevent or enjoin consummation of this Agreement (and the transactions contemplated herein), except with the prior written consent of the other Parties hereto, and/or (ii) take such reasonable action as necessary to overturn any regulatory action by any Governmental Authority to prevent or enjoin consummation of this Agreement (and the transactions contemplated herein), including by defending any action, suit or proceeding in order to avoid entry of, or to have vacated, overturned or terminated, including by appeal if necessary, in order to resolve any such objections or challenge under such Competition Law so as to permit consummation of the transactions contemplated by this Agreement as promptly as practicable.
(d) Each of Buyer, Merger Sub and the Company shall, and shall cause their respective Subsidiaries to, cooperate reasonably with one another and consult with each other keep the others generally apprised of material matters relating to or in connection with the making taking of all filings, notifications such actions and any the doing of such other material actions pursuant to things as are contemplated by this Section 5.3(c), including subject to applicable Law, by permitting counsel for 5.02.
(e) Each such party shall promptly inform the other party to review in advanceparties hereto of any oral communication with, and consider in good faith the views provide copies of the other party in connection written communications with, any proposed written communication to any Governmental Authority regarding any such filings or any such transaction. In furtherance and not in limitation of the foregoing, in connection with the seeking of any action by providing outside counsel for or in respect of, or the other party with copies making of all filings and submissions made by such party and all correspondence between such party (and its advisors) with any Governmental Authority and filing with, any other information supplied by such party and such party’s Subsidiaries to a Governmental Authority or received from such a Governmental Authority in connection with the transactions contemplated by this Agreementhereby, the parties shall (i) consult with one another in advance of any meeting, teleconference or other communication with such Governmental Authority, (ii) provide one another with an opportunity to attend or participate in such meeting, teleconference or other communication, (iii) shall furnish afford one another the right to review any written materials to be submitted to such Governmental Authority in advance of the other Parties such information and assistance as such Parties reasonably may request in connection with the preparation of any submissions to, or agency proceedings by, any Governmental Authoritysubmission thereof, (iv) subject to applicable Law, shall promptly inform the other furnish one another with copies of all written materials received by or on behalf of such party of any communications with, and inquiries or requests for information from, from such Governmental Authorities in connection with the transactions contemplated by the Agreement and (v) subject to applicable Law, shall consult with the other Parties in advance of any meeting or conference, whether in person or by telephone, with any such Governmental Authority orAuthority, in connection with any proceeding by a private party, with any other Person, and each case to the extent permitted by Applicable Law (except, in the case of the foregoing clause (ii), to the extent such applicable Governmental Authority has requested that one or other Person, give the other Parties the opportunity to attend and participate in such meetings and conferences. During the period from the date hereof until the earlier of the termination of this Agreement in accordance with its terms and the Closing, Purchaser and its Affiliates shall not acquire or agree to acquire by merging or consolidating with, or by purchasing a material portion of the assets of or equity in, any Person if such acquisition would reasonably be expected to delay, hinder or prohibit the consummation of the transactions contemplated hereby. The Parties may, as they deem advisable and necessary, designate any competitively sensitive materials provided to the other under this Section 5.3(c) as “outside counsel only.”
(d) Within five (5) Business Days after the Closing, each Party shall notify the United States Department of State Directorate of Defense Trade Controls (the “DDTC”) of the transactions contemplated hereby under the International Traffic in Arms Regulations § 122.4 and of the intent to transfer all open licenses or other export authorizations included in the Assigned Assets. Each party shall cooperate and consult with each other in connection with the making of such notifications, including providing counsel for the other party not attend or participate in any such meeting, teleconference or other communication, and in the opportunity in advance to review the proposed notification prior to submission and considering in good faith the views case of the other party in connection with the notifications. For the avoidance of doubtforegoing clauses (iii) and (iv), no such notification contemplated by this clause (d) shall serve as a condition precedent to the Closing.
extent that (ex) In the event any claim, action, suit, investigation or other proceeding by any Governmental Authority or other Person is commenced which raises questions about the validity or legality of such written materials contain information that does not relate to the transactions contemplated hereby or seeks damages in connection therewith(y) confidential treatment has been requested or granted for such written materials).
(f) The Company shall, the Parties agree subject to cooperate and Section 5.13, use commercially reasonable best efforts to defend against such claimobtain any and all consents and to deliver any and all notices, actionin each case in form and substance reasonably satisfactory to Buyer, suit, investigation or other proceedingwith respect to each item set forth on Section 3.04(iii) of the Company Disclosure Schedules; provided, however, provided that nothing in this Agreement the Company shall require, or not be construed obligated to require, Seller, Purchaser make any payment or any of their respective Affiliates other financial accommodation (whether to litigate with a third party or otherwise participate in any Legal Proceeding with any Governmental Authority otherwise) in connection with obtaining any approval pursuant to this Agreement. In order to permit the satisfaction of the Closing condition set forth in Section 6.1(b), Purchaser shall (and Purchaser shall permit the Company, the Company Subsidiary and the Contributing Affiliate to) (i) agree to (A) any sale, license, divestiture or other disposition or holding separate of any capital stock, businesses, assets, properties or other interests of Purchaser, the Company or any of their respective controlled Affiliates or (B) the imposition of any limitation, restriction or condition on the ability of Purchaser, the Company or any of their respective controlled Affiliates to conduct their respective businesses or own, acquire, hold or exercise full rights of ownership of any capital stock, businesses, assets, properties or other interests ((A) and (B), the “Antitrust Actions”); provided, however, that, notwithstanding anything consent to the contrary set forth in this Agreement, (1) any such actions are conditioned upon and become effective only from and after the Closing and (2) under no circumstances, shall Purchaser be required to propose, negotiate, commit to, effect or agree to Antitrust Actions or other related actions that materially and adversely affect Purchaser and its Affiliates (including after the Closing the Company and the Company Subsidiary, taken as a whole) or the Business. Subject to the foregoing, in no event will Seller (and Seller will not permit any of its Affiliates including the Company, the Company Subsidiary or the Contributing Affiliate to) propose, negotiate, effect or agree to any Antitrust Actions without the prior written consent of Purchaser (such consent not to be unreasonably withheld, conditioned or delayed), nor shall Seller or any of its Affiliates (including the Company, the Company Subsidiary and the Contributing Affiliate) be required to propose, negotiate, effect or agree to, any Antitrust Actionstransactions contemplated hereby.
Appears in 1 contract
Samples: Merger Agreement (Actua Corp)
