Efforts to Consummate; Certain Governmental Matters. (a) Seller, on the one hand, and Buyer, on the other hand, shall, and shall cause their respective Subsidiaries to, use their respective Reasonable Best Efforts to obtain and to cooperate in obtaining any Governmental Authorizations, Regulatory Approvals and Non-Governmental Consents required in connection with the execution, delivery or performance of this Agreement or any Ancillary Agreement. Notwithstanding the foregoing, each of Buyer and Seller shall make the filings required of it or any of its Affiliates under the HSR Act in connection with this Agreement and the transactions contemplated hereby as soon as practicable, but in any event no later than seven (7) Business Days after the date hereof and request early termination of the waiting period, and shall make the filings required of it or any of its Affiliates under any other Competition Law as promptly as reasonably practicable. All filing fees payable to any Governmental Entity in connection with such filings and notifications shall be paid by Buyer. The parties hereby agree to diligently pursue termination of the waiting periods under the HSR Act or any other Competition Law (including promptly responding to any requests for additional information). Each party shall use its Reasonable Best Efforts to cooperate with the other party in such other party’s efforts to obtain any Non-Governmental Consents as are required in connection with the consummation of the transactions contemplated hereby. Notwithstanding anything to the contrary herein, neither Buyer nor Seller nor any of their respective Affiliates shall have any obligation to propose, negotiate, commit to or effect, by consent decree, hold separate order or otherwise, the sale, divestiture or disposition of any assets or businesses (or otherwise take or commit to take any action that limits the freedom of action with respect to, or its ability to retain, any businesses, product lines, or assets) in order to obtain any clearance under the HSR Act or any other Competition Law or to avoid the entry of, or to effect the dissolution of, any injunction, temporary restraining order, or other order in any Litigation (or threatened to be instituted), and neither Buyer nor Seller nor any of their respective Affiliates shall be obligated to litigate any of the foregoing matters. (b) Subject to the terms and conditions set forth in this Agreement, Buyer and Seller shall use, and shall cause their respective Subsidiaries to use, their respective Reasonable Best Efforts to take or cause to be taken all actions, and do or cause to be done all things, necessary, or reasonably advisable on its part under this Agreement and the Ancillary Agreements and applicable Law to satisfy the conditions to Closing, and to consummate and make effective the transactions contemplated by this Agreement and the Ancillary Agreements as soon as practicable. (c) Buyer and Seller each shall, upon request by the other and subject to applicable Law and appropriate confidentiality restrictions, furnish the other with all material documentation concerning the Business on the one hand, or Buyer, on the other hand, and such other matters as may be necessary or reasonably advisable in connection with any notices, reports, statements, applications or other filings made by or on behalf of Buyer, Seller or any of their respective Affiliates to any Governmental Entity in connection with the transactions contemplated by this Agreement and the Ancillary Agreements; provided that any such documentation furnished by the parties to one another may be redacted to the extent necessary, either to comply with applicable Law, including Competition Law, or to protect the confidentiality of any information that is confidential to a third party in such documentation where the third party’s consent to the disclosure of such documentation is conditioned upon the redaction of the information concerned. (d) Subject to applicable Law or as prohibited by any Governmental Entity, Buyer and Seller each shall keep the other apprised of the status of matters relating to consummation of the transactions contemplated hereby, including (i) promptly notifying the other of any facts, circumstances or other reason that would prevent the receipt of any Regulatory Approvals or the Non-Governmental Consents for the timely consummation of transactions contemplated by this Agreement and the Ancillary Agreements, (ii) promptly furnishing the other with copies of material notices or other communications received by Buyer or Seller, as the case may be, from any third party or any Governmental Entity with respect to the transactions contemplated by this Agreement and the Ancillary Agreements and (iii) permit the other party to review in advance any proposed written communication to any such Governmental Entity and incorporate the other party’s reasonable comments; provided that any such notices furnished by the parties to one another may be redacted to the extent necessary, either to comply with applicable Law or to protect the confidentiality of information that if furnished would not facilitate the other party’s understanding of the status of matters relating to consummation of the transactions contemplated hereby. None of Seller or Buyer shall permit any of its officers or any other representatives or agents to participate in any meeting or discussion with any Governmental Entity with respect to any filings, investigation or other inquiry relating to the transactions contemplated hereby unless it consults with the other party in advance and, to the extent permitted by such Governmental Entity, gives the other party the opportunity to attend and participate thereat. Neither Buyer nor Seller shall, without the prior written consent from such other party, (i) take any action that has the effect of extending any waiting period under the HSR Act or comparable period under any other Competition Law, including withdrawing or re-filing any notice, reports, or other submissions, or (ii) enter into any agreement with the U.S. Department of Justice or the U.S. Federal Trade Commission or any other Governmental Entity to voluntarily delay consummation of the transactions contemplated by this Agreement and the Ancillary Agreements. (e) Subject to applicable Law and except as required by any Governmental Entity, neither Buyer nor Seller shall take any action that would be reasonably likely to prevent or materially delay the receipt of any Governmental Authorizations, Regulatory Approvals or Non-Governmental Consents, in each case, to the extent necessary for the timely consummation of the transactions contemplated by this Agreement and the Ancillary Agreements.
Appears in 2 contracts
Samples: Asset Purchase Agreement (B&G Foods, Inc.), Asset Purchase Agreement (Hershey Co)
Efforts to Consummate; Certain Governmental Matters. (a) Seller, on the one hand, The Company and Buyer, on the other hand, shall, and Buyer shall cause their respective Subsidiaries to, use their respective Reasonable Best Efforts reasonable best efforts to obtain and to cooperate in obtaining any Governmental Authorizations, the Regulatory Approvals and Non-Governmental Consents required in connection with the execution, delivery or performance of this Agreement or any Ancillary AgreementThird Party Consents. Notwithstanding the foregoing, each of Buyer and Seller shall Each party agrees to make the filings required of it or any of its Affiliates under an appropriate filing pursuant to the HSR Act in connection with this Agreement and respect to the transactions contemplated hereby as soon as practicable, but in any event no later than seven within five (75) Business Days after the date hereof and hereof, in which each party will request early termination of the HSR waiting period, and shall make the filings required of it or any of its Affiliates under any other Competition Law as promptly as reasonably practicable. All filing fees payable to any Governmental Entity in connection with such filings and notifications shall be paid by Buyer. The parties hereby agree to diligently pursue termination of the waiting periods under the HSR Act or any other Competition Law (including promptly responding to any requests for additional information). Each party shall use its Reasonable Best Efforts to cooperate with the other party in such other party’s efforts to obtain any Non-Governmental Consents as are required in connection with the consummation of the transactions contemplated hereby. Notwithstanding anything to the contrary herein, neither Buyer nor Seller nor any of their respective Affiliates shall have any obligation to propose, negotiate, commit to or effect, by consent decree, hold separate order or otherwise, the sale, divestiture or disposition of any assets or businesses (or otherwise take or commit to take any action that limits the freedom of action with respect to, or its ability to retain, any businesses, product lines, or assets) in order to obtain any clearance under the HSR Act or any other Competition Law or to avoid the entry of, or to effect the dissolution of, any injunction, temporary restraining order, or other order in any Litigation (or threatened to be instituted), and neither Buyer nor Seller nor any of their respective Affiliates shall be obligated to litigate any of the foregoing matters.
(b) Subject to the terms and conditions set forth in this Agreement, Buyer and Seller the Company shall userespond as promptly as practicable to any inquiries received from the Antitrust Division of the U.S. Department of Justice (the “Antitrust Division”), the Federal Trade Commission, or any other Governmental Authority for additional information or documentation and to all inquiries and requests received from any Governmental Authority in connection with the transactions contemplated hereby.
(c) The Company and Buyer shall cause use their respective Subsidiaries to use, their respective Reasonable Best Efforts reasonable best efforts to take or cause to be taken all actions, and do or cause to be done all things, necessary, or reasonably advisable on its part under this Agreement and the Ancillary Agreements and applicable Law to satisfy the their respective conditions to Closing, and to consummate and make effective the transactions contemplated by this Agreement and the Ancillary Agreements hereby as soon as practicable.
(cd) Notwithstanding anything to the contrary in this Agreement, Buyer and Seller each shallshall not be obligated to: (i) offer, upon request negotiate, commit to or effect, by consent decree, hold separate order, trust or otherwise, the sale, divestiture, license or other and subject disposition of any capital stock, assets, rights, products or businesses (including the Company); (ii) agree to applicable Law and appropriate confidentiality restrictions, furnish the other with all any material documentation concerning the Business restrictions on the one hand, or Buyer, on activities of the other hand, and such other matters as may be necessary or reasonably advisable in connection with any notices, reports, statements, applications or other filings made by or on behalf of Buyer, Seller Buyer or any of their respective Affiliates its businesses (including the Company); (iii) waive any material rights to which it is entitled; (iv) defend, commence or prosecute any Governmental Entity legal proceeding; (v) take any other action to prevent, effect the dissolution of, vacate, or lift any decree, order, judgment, injunction, temporary restraining order, or other order in connection with any suit or legal proceeding that would otherwise have the effect of preventing or delaying the consummation of the transactions contemplated by this Agreement and the Ancillary Agreementshereby; provided that or (vi) waive any such documentation furnished by the parties to one another may be redacted to the extent necessary, either to comply with applicable Law, including Competition Law, or to protect the confidentiality of any information that is confidential to a third party in such documentation where the third party’s consent to the disclosure of such documentation is conditioned upon the redaction of the information concernedconditions set forth in Article 7 of this Agreement.
(de) Subject to applicable Law or except as prohibited by any Governmental EntityAuthority, during the period from the date hereof until the earlier of the termination of this Agreement and the Closing Date, Buyer and Seller the Company each shall keep the other apprised of the status of matters relating to consummation of the transactions contemplated hereby, including including: (i) promptly notifying the other of any facts, circumstances or other reason that would prevent the receipt of any Regulatory Approvals or the Non-Governmental Third Party Consents for the timely consummation of transactions contemplated hereby and by this Agreement the Transaction Documents, and the Ancillary Agreements, (ii) promptly furnishing the other with copies of material notices or other communications received by Buyer or Seller, as the case may be, it from any third party or any Governmental Entity Authority with respect to the transactions contemplated by this Agreement and the Ancillary Agreements and (iii) permit the other party to review in advance any proposed written communication to any such Governmental Entity and incorporate the other party’s reasonable commentshereby; provided provided, however, that any such notices furnished by the parties to one another may be redacted to the extent necessary, either necessary to comply with applicable Law. Subject to applicable Law or to protect as otherwise directed by any Governmental Authority, neither the confidentiality of information that if furnished would not facilitate the other party’s understanding of the status of matters relating to consummation of the transactions contemplated hereby. None of Seller or Company nor Buyer shall permit any of its officers or any other representatives or agents to participate in any meeting or discussion with any Governmental Entity Authority with respect to any filings, investigation or other inquiry relating to the transactions contemplated hereby unless it consults with the other party in advance and, to the extent permitted by such Governmental EntityAuthority, gives the other party the opportunity to attend and participate thereat. .
(f) Neither the Company nor Buyer nor Seller shall, without the prior written consent from such other party, : (i) take any action that has the effect of extending agree to extend any waiting period under the HSR Act without the prior written consent of the other party (such consent not to be unreasonably withheld, conditioned or comparable period under any other Competition Law, including withdrawing or re-filing any notice, reports, or other submissions, or delayed); (ii) enter into any agreement with the U.S. Department of Justice or the U.S. Federal Trade Commission or any other Governmental Entity Authority not to voluntarily delay consummation of consummate the transactions contemplated by this Agreement and hereby without the Ancillary Agreements.
prior written consent of the other party (esuch consent not to be unreasonably withheld, conditioned or delayed); or (iii) Subject to applicable Law and except as required by any Governmental Entity, neither Buyer nor Seller shall take any other action that would be reasonably likely to prevent or materially delay the receipt of any Governmental Authorizations, Regulatory Approvals or Non-Governmental Third Party Consents, in each case, to the extent necessary for the timely consummation of the transactions contemplated by this Agreement and the Ancillary Agreements.
Appears in 2 contracts
Samples: Unit Purchase Agreement (LendingTree, Inc.), Unit Purchase Agreement (LendingTree, Inc.)
Efforts to Consummate; Certain Governmental Matters. (a) SellerGriffon, on the one hand, and Buyer, on the other hand, shall, and shall cause their respective Subsidiaries to, use their respective Reasonable Best Efforts reasonable best efforts to obtain and to cooperate in obtaining any Governmental Authorizations, Regulatory Approvals and Non-Governmental Consents approvals required under Competition/Investment Law in connection with the execution, delivery or performance of this Agreement or any Ancillary AgreementAgreement and as required to consummate the transactions contemplated hereby. Notwithstanding the foregoing, each of All HSR Act and all transaction notification fees and other filing fees required by any other Competition/Investment Law shall be borne by Buyer and Seller shall equally (50/50). Each party hereto agrees to make the filings required of it or any of its Affiliates under an appropriate filing pursuant to the HSR Act in connection with this Agreement and respect to the transactions contemplated hereby as soon as practicable, but in any event no later than seven by this Agreement within five (75) Business Days after the date hereof and request early termination of the waiting period, and shall make the filings as promptly as practicable any other appropriate submissions that may be required of it or any of its Affiliates under any other Competition Law as promptly as reasonably practicable. All filing fees payable to any Governmental Entity in connection with such filings and notifications shall be paid by Buyer. The parties hereby agree to diligently pursue termination of the waiting periods under the HSR Act or any other Competition Law (including promptly responding to any requests for additional information)Competition/Investment Law. Each party hereto shall use its Reasonable Best Efforts reasonable best efforts to cooperate with the other party parties hereto in such other party’s parties’ efforts to obtain any Non-Governmental Consents approvals required under Competition/Investment Law as are required in connection with the consummation of the transactions contemplated hereby. Notwithstanding anything to the contrary hereinhereby and agrees that it shall not, neither Buyer nor Seller nor any of their respective and shall cause its Affiliates shall have any obligation to proposenot to, negotiate, commit to or effect, by consent decree, hold separate order or otherwise, the sale, divestiture or disposition of any assets or businesses (or otherwise take or commit to willfully take any action or enter into any transaction that limits will have the freedom effect of action delaying, impairing or preventing the consummation of the transactions contemplated hereby.
(b) Each party shall respond as promptly as practicable to any reasonable inquiries received from the Antitrust Division of the U.S. Department of Justice (the “Antitrust Division”), the Federal Trade Commission or any other Governmental Entity for additional information or documentation and to all reasonable inquiries and requests received from any Governmental Entity in connection with respect to, or the transactions contemplated hereby.
(c) Each party shall use its ability to retain, any businesses, product lines, or assets) in order reasonable best efforts to obtain all approvals required under Competition/Investment Law necessary to consummate the transactions contemplated by this Agreement and to avoid or eliminate each and every impediment and any clearance proceeding instituted or threatened by a Governmental Entity or private party under the HSR Act or any other Competition Competition/Investment Law that is asserted with respect to the transactions contemplated by this Agreement or any Ancillary Agreement so as to avoid enable the entry ofconsummation of such transactions to occur as expeditiously as possible and, or to effect the dissolution of, any injunction, temporary restraining order, or other order in any Litigation (or threatened to be instituted)event, and by the Closing Date. For the avoidance of doubt, neither Buyer the Sellers nor Seller nor any of their respective Affiliates the Purchased Companies, shall be obligated to litigate take any such action, unless the taking of such action is expressly conditioned upon the consummation of the foregoing matterstransactions contemplated in this Agreement and any Ancillary Agreement.
(bd) Subject to the terms and conditions set forth in this Agreement, Buyer and Seller the parties hereto shall use, and shall cause their respective Subsidiaries to use, their respective Reasonable Best Efforts reasonable best efforts to take or cause to be taken all actions, and do or cause to be done all things, necessary, or reasonably advisable on its part under this Agreement and the Ancillary Agreements and applicable Law to satisfy the conditions to Closing, and to consummate and make effective the transactions contemplated by this Agreement and the Ancillary Agreements as soon as practicable.
(c) Buyer and Seller each shall. For the avoidance of doubt, upon request by the other and subject nothing in this Section 5.2 will require any party to applicable Law and appropriate confidentiality restrictions, furnish the other with all material documentation concerning the Business on the one hand, or Buyer, on the other hand, and waive any condition to such other matters as may be necessary or reasonably advisable in connection with any notices, reports, statements, applications or other filings made by or on behalf of Buyer, Seller or any of their respective Affiliates party’s obligation to any Governmental Entity in connection with consummate the transactions contemplated by this Agreement and the Ancillary Agreements; provided that any such documentation furnished by the parties to one another may be redacted to the extent necessary, either to comply with applicable Law, including Competition Law, or to protect the confidentiality of any information that is confidential to a third party set forth in such documentation where the third party’s consent to the disclosure of such documentation is conditioned upon the redaction of the information concernedArticle VIII.
(de) Subject to applicable Law or as prohibited by any Governmental EntityLaw, Buyer and Seller each of the parties hereto shall keep the other party apprised of the status of matters relating to consummation of the transactions contemplated hereby, including (i) promptly notifying the other of any facts, circumstances or other reason that would prevent the receipt of any Regulatory Approvals approvals required under Competition/Investment Law or the Non-Governmental Consents any other applicable Law for the timely consummation of transactions contemplated by this Agreement and the Ancillary Agreements, and (ii) promptly furnishing the other party with copies of material notices or other communications received by Buyer or Seller, as the case may be, from any third party or any Governmental Entity with respect to the transactions contemplated by this Agreement and the Ancillary Agreements and (iii) permit the other party to review in advance any proposed written communication to any such Governmental Entity and incorporate the other party’s reasonable commentsAgreements; provided that any such notices furnished by the parties hereto to one another may be redacted or provided on an “outside counsel only” basis to the extent necessary, either to comply with applicable Law or to protect the confidentiality of information that if furnished would not materially facilitate the other party’s understanding of the status of matters relating to consummation of the transactions contemplated hereby. The parties hereto will consult and cooperate with one another in connection with any analyses, appearances, presentations, memoranda, briefs, arguments, opinions and proposals made or submitted by or on behalf of any party hereto in connection with proceedings under or relating to the HSR Act or any other Competition/Investment Law or other applicable Law. None of Seller or Buyer the parties hereto shall permit any of its officers or any other representatives Representatives or agents to participate in any meeting or discussion with any Governmental Entity with respect to any filings, investigation or other inquiry relating to the transactions contemplated hereby unless it consults with the other party in advance and, to the extent permitted by such Governmental Entity, gives the other party parties hereto the opportunity to attend and participate thereat. Neither Notwithstanding the foregoing, subject to reasonable consultation and considering in good faith the views expressed by the Griffon and its advisors, Buyer nor Seller shallshall make the final determination as to the appropriate course of action regarding obtaining clearance from any Governmental Entity under any of the Competition/Investment Laws and resolving any investigation or other inquiry of any Governmental Entity under any of the Competition/Investment Laws.
(f) From and after the date hereof, without Griffon shall use commercially reasonable efforts to prepare and file all notices, reports, statements, applications and other filings (other than Tax Returns) set forth in Schedule 3.3 (to the extent designated on such Schedule as “Pre-Closing” but excluding any filings with respect to the HSR Act, which shall be governed by the other provisions of Section 5.2), and Buyer shall (and after the Closing Date shall cause the Purchased Companies to) use commercially reasonable efforts to prepare and file all notices, reports, statements, applications and other filings (other than Tax Returns) set forth in Schedule 3.3 (to the extent designated on such Schedule as “Post-Closing”) and Schedule 4.4 (but excluding any filings with respect to the HSR Act, which shall be governed by the other provisions of Section 5.2) (such items set forth on Schedule 3.3 and Schedule 4.4, in each case excluding any filings with respect to the HSR Act, collectively, the “Transaction Filings”); provided, however, that prior written consent from to filing all such notices, reports, statements, applications and other filings, Buyer and Griffon shall each provide drafts thereof to the other party and shall file such notices, reports, statements, applications and other filings only after receiving such other party, (i) take any action that has the effect ’s approval of extending any waiting period under the HSR Act or comparable period under any other Competition Law, including withdrawing or re-filing any noticesuch notices, reports, statements, applications and other filings, which approval shall not be unreasonably withheld, conditioned or delayed. Griffon will promptly deliver to Buyer a copy of each such notice, report statement, application and other submissions, filings and each such consent or (ii) enter into any agreement approval obtained prior to the Closing. Each party hereto shall use its reasonable best efforts to cooperate with the U.S. Department other parties hereto in such other parties’ efforts to prepare and file the Transaction Filings. To the extent any of Justice the approvals set forth in Schedule 5.2(f) are not obtained at or prior to Closing, subject to Section 9.3, Griffon shall following the Closing and for a period of three (3) years after the Closing, indemnify and hold harmless the Buyer from and against any Losses actually incurred by Buyer or the U.S. Federal Trade Commission or any other Governmental Entity Purchased Companies (the “FCC Indemnified Losses”) arising from the failure to voluntarily delay consummation of the transactions contemplated by this Agreement and the Ancillary Agreementsobtain such approval prior to Closing.
(eg) Subject to applicable Law and except as required by any Governmental Entity, neither Buyer nor Seller none of parties hereto shall (i) agree to extend any waiting period under the HSR Act without the prior written consent of the other parties hereto (such consent not to be unreasonably withheld, conditioned or delayed), (ii) enter into any agreement with any Governmental Entity not to consummate the transactions contemplated by this Agreement or any Ancillary Agreement without the prior written consent of the other parties hereto (such consent not to be unreasonably withheld, conditioned of delayed) or (iii) take any other action that would be reasonably likely to prevent or materially delay the receipt of any Governmental Authorizations, Regulatory Approvals or Non-Governmental Consentsapprovals required under Competition/Investment Law, in each case, to the extent necessary for the timely consummation of the transactions contemplated by this Agreement and the Ancillary Agreements.
(h) The parties hereto agree that neither the Purchased Companies, the Sellers nor any of their respective Affiliates shall have any liability whatsoever to Buyer arising out of or relating to the failure to obtain any such Regulatory Approvals (except in the case of a failure by any party to comply with this Section 5.2) that may be required in connection with the transactions contemplated by this Agreement or the Ancillary Agreements or because of the termination of any Contract or Governmental Authorization solely as a result thereof. Buyer further agree that no representation, warranty or covenant of the Purchased Companies or the Sellers contained herein shall be breached or deemed breached as a result of (i) the failure to obtain any such Regulatory Approvals, (ii) any such termination or (iii) any Proceeding commenced or threatened by or on behalf of any Person arising out of or relating to the failure to obtain any such Regulatory Approvals or any such termination.
(i) Except as expressly stated otherwise in this Agreement, in connection with the exercise of any reasonable best efforts or other standard of conduct pursuant to this Agreement, prior to the Closing, neither the Sellers nor any of their Affiliates shall be required, in respect of any provision of this Agreement, to pay any fees, expenses or other amounts to any Governmental Entity or any party to any Contract (excluding, for the avoidance of doubt, ordinary course fees and expenses of their respective attorneys and advisors).
Appears in 1 contract
Efforts to Consummate; Certain Governmental Matters. (a) Seller, on Upon the one hand, terms and Buyer, on subject to the other hand, shall, and shall cause their respective Subsidiaries to, use their respective Reasonable Best Efforts to obtain and to cooperate in obtaining any Governmental Authorizations, Regulatory Approvals and Non-Governmental Consents required in connection with the execution, delivery or performance of this Agreement or any Ancillary Agreement. Notwithstanding the foregoingconditions herein, each of Buyer and Seller shall make the filings required of it or any of its Affiliates under the HSR Act in connection with this Agreement and the transactions contemplated hereby as soon as practicable, but in any event no later than seven (7) Business Days after the date hereof and request early termination of the waiting period, and shall make the filings required of it or any of its Affiliates under any other Competition Law as promptly as reasonably practicable. All filing fees payable Parties agrees to any Governmental Entity in connection with such filings and notifications shall be paid by Buyer. The parties hereby agree to diligently pursue termination of the waiting periods under the HSR Act or any other Competition Law (including promptly responding to any requests for additional information). Each party shall use its Reasonable Best Efforts to cooperate with the other party in such other party’s commercially reasonable efforts to obtain any Non-Governmental Consents as are required in connection with the consummation of the transactions contemplated hereby. Notwithstanding anything to the contrary hereintake, neither Buyer nor Seller nor any of their respective Affiliates shall have any obligation to propose, negotiate, commit to or effect, by consent decree, hold separate order or otherwise, the sale, divestiture or disposition of any assets or businesses (or otherwise take or commit to take any action that limits the freedom of action with respect to, or its ability to retain, any businesses, product lines, or assets) in order to obtain any clearance under the HSR Act or any other Competition Law or to avoid the entry of, or to effect the dissolution of, any injunction, temporary restraining order, or other order in any Litigation (or threatened to be instituted), and neither Buyer nor Seller nor any of their respective Affiliates shall be obligated to litigate any of the foregoing matters.
(b) Subject to the terms and conditions set forth in this Agreement, Buyer and Seller shall use, and shall cause their respective Subsidiaries to use, their respective Reasonable Best Efforts to take or cause to be taken taken, all actionsactions and to do, and do or cause to be done done, all things, necessary, or things reasonably advisable on its part necessary for it to do under this Agreement and the Ancillary Agreements and applicable Law to satisfy the conditions to Closing, and Laws to consummate and make effective the transactions contemplated by this Agreement, including all actions and all things necessary for it (i) to comply promptly with all Governmental Orders that may be imposed on it with respect to this Agreement and the Ancillary Agreements as soon as practicabletransactions contemplated hereby (which actions shall include furnishing all information required by applicable Law in connection with approvals of or filings with any Governmental Authority), (ii) to satisfy the conditions precedent to the obligations of such Party, (iii) to obtain any consent, clearance, authorization, order or approval of, or any exemption by, any Governmental Authority required to be obtained or made by any Party in connection with the acquisition of the Purchased Assets, the assumption of Assumed Liabilities or the taking of any other action contemplated by this Agreement, (iv) to prevent any Governmental Order or any other action permanently restraining, enjoining or otherwise prohibiting the transactions contemplated by this Agreement and (v) to effect all registrations, filings and transfers (to the extent transferable) of Governmental Authorizations necessary for the operation of the Business. Without limiting any of the Parties’ obligations hereunder, prior to the Closing Date, Purchaser and Sellers shall mutually determine and direct the strategy by which the Parties will seek such required consents, clearance, authorizations, orders, approvals or exemptions, and on or after the Closing Date, Purchaser shall determine and direct the strategy by which the Parties will seek such required consents, clearance, authorizations, orders, approvals or exemptions, provided that prior to making any strategic decisions, Purchaser shall consult with Sellers. Without limiting the generality of the undertakings pursuant to this Section 7.3(a), Sellers and Purchaser agree to provide or cause to be provided promptly to each Governmental Authority with regulatory jurisdiction over enforcement of any applicable Competition Laws all information and documents requested by such Governmental Authority or necessary, proper or advisable to permit consummation of the acquisition of the Purchased Assets, the assumption of Assumed Liabilities and the other transactions contemplated by this Agreement. Notwithstanding anything in this Section 7.3 to the contrary, Purchaser shall not be required to (A) consent to the divestiture, license or other disposition or holding separate (through the establishment of a trust or otherwise) of any of its or its Affiliates’ assets after the Closing, or (B) consent to any other structural or conduct remedy or enter into any settlement or agreement to any Order regarding antitrust matters respecting the transactions contemplated by this Agreement.
(cb) Buyer Subject to appropriate confidentiality protections and Seller protection of attorney-client privileges, each shall, upon request by Party will furnish to the other Parties such necessary information and subject to applicable Law and appropriate confidentiality restrictions, furnish reasonable assistance as the other with all material documentation concerning the Business on the one hand, or Buyer, on the other hand, and such other matters as Parties may be necessary or reasonably advisable request in connection with the matters set forth in Section 7.3(a) and will keep the other Parties reasonably informed with respect to any noticesconsent, reportsauthorization, statementsorder or approval of, applications or exemption by or sought from, any Governmental Authority or any other third party in connection with this Agreement and the transactions contemplated hereby. All analyses, appearances, meetings, discussions, presentations, memoranda, briefs, filings (other than the Parties’ respective initial filings under applicable Competition Laws), arguments, and proposals made by or on behalf of Buyerany Party before any Governmental Authority in connection with the transactions contemplated hereby (but, Seller for the avoidance of doubt, not including any so called 4(c) or 4(d) documents and any interactions between Sellers or Purchaser with Governmental Authorities in the ordinary course of business or any disclosure which is not permitted by Law) shall be disclosed to the other Parties in advance of their respective Affiliates any filing, submission or attendance, if legally permissible and practicable and not otherwise attorney-client privileged, it being the intent that the Parties will consult and cooperate with one another, and consider in good faith the views of one another, in connection with any such matters. Each Party shall give notice to the other Parties with respect to any material meeting, discussion, appearance, contact or correspondence with any Governmental Entity Authority or the staff or regulators of any Governmental Authority in connection with the matters set forth in Section 7.3(a), with such notice being sufficient to provide the other Parties with the opportunity to attend and participate in such meeting, discussion, appearance or contact.
(c) Each Party shall (i) make all filings required under applicable Competition Laws in connection with the transactions contemplated by this Agreement as promptly as practicable but in no event later than ten (10) Business Days after the date of this Agreement, and the Ancillary Agreements; provided that any such documentation furnished by the parties to one another may be redacted to the extent necessary, either to comply with applicable Law, including Competition Law, or to protect the confidentiality of any information that is confidential to a third party in such documentation where the third party’s consent to the disclosure of such documentation is conditioned upon the redaction of the information concerned.
(d) Subject to applicable Law or as prohibited by any Governmental Entity, Buyer and Seller each shall keep the other apprised of the status of matters relating to consummation of the transactions contemplated hereby, including (i) promptly notifying the other of any facts, circumstances or other reason that would prevent the receipt of any Regulatory Approvals or the Non-Governmental Consents for the timely consummation of transactions contemplated by this Agreement and the Ancillary Agreements, (ii) promptly furnishing the other in connection with copies of material notices or other communications received by Buyer or Seller, as the case may be, from any third party or any Governmental Entity with respect to the transactions contemplated by this Agreement and the Ancillary Agreements and (iii) permit the other party to review in advance any proposed written communication to any such Governmental Entity and incorporate the other party’s reasonable comments; provided that any such notices furnished by the parties to one another may be redacted to the extent necessary, either to comply with applicable Law or to protect the confidentiality of information that if furnished would not facilitate the other party’s understanding of the status of matters relating to consummation of the transactions contemplated hereby. None of Seller or Buyer shall permit any of its officers or any other representatives or agents to participate in any meeting or discussion with any Governmental Entity with respect to any filings, investigation or other inquiry relating to the transactions contemplated hereby unless it consults with the other party in advance and, to the extent permitted by such Governmental Entity, gives the other party the opportunity to attend and participate thereat. Neither Buyer nor Seller shall, without the prior written consent from such other party, (i) take any action that has the effect request early termination of extending any waiting period under the HSR Act or comparable period under any other applicable Competition Law, including withdrawing or re-filing any notice, reports, or other submissions, or (ii) enter into any agreement with the U.S. Department of Justice or the U.S. Federal Trade Commission or any other Governmental Entity to voluntarily delay consummation of the transactions contemplated by this Agreement and the Ancillary AgreementsLaws.
(e) Subject to applicable Law and except as required by any Governmental Entity, neither Buyer nor Seller shall take any action that would be reasonably likely to prevent or materially delay the receipt of any Governmental Authorizations, Regulatory Approvals or Non-Governmental Consents, in each case, to the extent necessary for the timely consummation of the transactions contemplated by this Agreement and the Ancillary Agreements.
Appears in 1 contract
Efforts to Consummate; Certain Governmental Matters. (a) Seller, on the one hand, The Company and Buyer, on the other hand, shall, and Buyer shall cause their respective Subsidiaries to, use their respective Reasonable Best Efforts reasonable commercial efforts to obtain and to cooperate in obtaining any Governmental Authorizations, the Regulatory Approvals and Non-Governmental Consents required in connection with the execution, delivery or performance of this Agreement or any Ancillary AgreementThird Party Consents. Notwithstanding the foregoing, each of Buyer and Seller shall Each party agrees to make the filings required of it or any of its Affiliates under an appropriate filing pursuant to the HSR Act in connection with this Agreement and respect to the transactions contemplated hereby as soon as practicable, but in any event no later than seven within three (73) Business Days after the date hereof and hereof. In each party’s filing pursuant to the HSR Act contemplated in the immediately preceding sentence each such party will request early termination of the waiting period, and shall make the filings required of it or any of its Affiliates under any other Competition Law as promptly as reasonably practicable. All filing fees payable to any Governmental Entity in connection with such filings and notifications shall be paid by Buyer. The parties hereby agree to diligently pursue termination of the waiting periods under the HSR Act or any other Competition Law (including promptly responding to any requests for additional information). Each party shall use its Reasonable Best Efforts to cooperate with the other party in such other party’s efforts to obtain any Non-Governmental Consents as are required in connection with the consummation of the transactions contemplated hereby. Notwithstanding anything to the contrary herein, neither Buyer nor Seller nor any of their respective Affiliates shall have any obligation to propose, negotiate, commit to or effect, by consent decree, hold separate order or otherwise, the sale, divestiture or disposition of any assets or businesses (or otherwise take or commit to take any action that limits the freedom of action with respect to, or its ability to retain, any businesses, product lines, or assets) in order to obtain any clearance under the HSR Act or any other Competition Law or to avoid the entry of, or to effect the dissolution of, any injunction, temporary restraining order, or other order in any Litigation (or threatened to be instituted), and neither Buyer nor Seller nor any of their respective Affiliates shall be obligated to litigate any of the foregoing mattersperiod thereunder.
(b) Subject The Company and Buyer shall respond as promptly as practicable to any inquiries received from the terms Antitrust Division of the U.S. Department of Justice (the “Antitrust Division”), the Federal Trade Commission (the “FTC”), or any other Governmental Authority for additional information or documentation and conditions set forth to all inquiries and requests received from any Governmental Authority in this Agreement, connection with the transactions contemplated hereby.
(c) The Company and Buyer and Seller shall use, and shall cause use their respective Subsidiaries to use, their respective Reasonable Best Efforts reasonable commercial efforts to take or cause to be taken all actions, and do or cause to be done all things, necessary, or reasonably advisable on its part under this Agreement and the Ancillary Agreements and applicable Law to satisfy the conditions to Closing, and to consummate and make effective the transactions contemplated by this Agreement and the Ancillary Agreements hereby as soon as practicable.
(c) Buyer and Seller each shall, upon request by the other and subject to applicable Law and appropriate confidentiality restrictions, furnish the other with all material documentation concerning the Business on the one hand, or Buyer, on the other hand, and such other matters as may be necessary or reasonably advisable in connection with any notices, reports, statements, applications or other filings made by or on behalf of Buyer, Seller or any of their respective Affiliates to any Governmental Entity in connection with the transactions contemplated by this Agreement and the Ancillary Agreements; provided that any such documentation furnished by the parties to one another may be redacted to the extent necessary, either to comply with applicable Law, including Competition Law, or to protect the confidentiality of any information that is confidential to a third party in such documentation where the third party’s consent to the disclosure of such documentation is conditioned upon the redaction of the information concerned.
(d) Subject to applicable Law or except as prohibited by any Governmental EntityAuthority, the Company and Buyer and Seller each shall keep the other apprised of the status of matters relating to consummation of the transactions contemplated hereby, including including: (i) promptly notifying the other of any facts, circumstances or other reason that would prevent the receipt of any Regulatory Approvals or the Non-Governmental Third Party Consents for the timely consummation of transactions contemplated hereby and by this Agreement the Transaction Documents, and the Ancillary Agreements, (ii) promptly furnishing the other with copies of material notices or other communications received by Buyer or Seller, as the case may be, it from any third party or any Governmental Entity Authority with respect to the transactions contemplated by this Agreement and the Ancillary Agreements and (iii) permit the other party to review in advance any proposed written communication to any such Governmental Entity and incorporate the other party’s reasonable commentshereby; provided provided, however, that any such notices furnished by the parties to one another may be redacted to the extent necessary, either necessary to comply with applicable Law or to protect information protected by the confidentiality of information that if furnished would not facilitate the other party’s understanding of the status of matters relating to consummation of the transactions contemplated hereby. None of Seller or Buyer shall permit any of its officers or any other representatives or agents to participate in any meeting or discussion with any Governmental Entity with respect to any filings, investigation attorney-client privilege or other inquiry relating to the transactions contemplated hereby unless it consults with the other party in advance and, to the extent permitted by such Governmental Entity, gives the other party the opportunity to attend and participate thereat. Neither Buyer nor Seller shall, without the prior written consent from such other party, (i) take any action that has the effect of extending any waiting period under the HSR Act or comparable period under any other Competition Law, including withdrawing or re-filing any notice, reports, or other submissions, or (ii) enter into any agreement with the U.S. Department of Justice privilege or the U.S. Federal Trade Commission or any other Governmental Entity to voluntarily delay consummation of the transactions contemplated by this Agreement attorney work product doctrine; and the Ancillary Agreementsprovided further that competitively sensitive information may be provided on an “outside attorneys only” basis.
(e) Subject to applicable Law and except as required by any Governmental EntityAuthority, neither the Company nor Buyer shall (i) agree to extend any waiting period under the HSR Act without the prior written consent of the other party (such consent not to be unreasonably withheld, conditioned or delayed); or (ii) enter into any agreement with any Governmental Authority not to consummate the transactions contemplated hereby without the prior written consent of the other party (such consent not to be unreasonably withheld, conditioned of delayed).
(f) In connection with the exercise of any reasonable commercial efforts, commercially reasonable efforts or other standard of conduct pursuant to this Agreement, no party (nor Seller any of their respective Affiliates) shall take be required, in respect of any action that would provision of this Agreement, to pay any fees, expenses or other amounts to any Governmental Authority or any party to any Contract (excluding, for the avoidance of doubt, ordinary course fees and expenses of their respective attorneys and advisors), commence or participate in any Action or offer or grant any accommodation (financial or otherwise) to any third party.
(g) Notwithstanding the foregoing, nothing in this Section 6.2 shall require, or be construed to require, Buyer or its Affiliates to agree to: (i) sell, hold, divest, discontinue or limit, before or after the Closing Date, any assets, businesses or interests of Buyer, the Company or any of their respective Affiliates; (ii) any conditions relating to, or changes or restrictions in, the operations of any such assets, businesses or interests which, in either case, could reasonably likely be expected to prevent result in a Material Adverse Effect or materially delay and adversely impact the receipt of any Governmental Authorizations, Regulatory Approvals economic or Non-Governmental Consents, in each case, business benefits to the extent necessary for the timely consummation Buyer of the transactions contemplated by the Agreement; or (iii) any material modification or waiver of the terms and conditions of this Agreement Agreement.
(h) Buyer agrees to provide such security and assurances as to financial capability, resources and creditworthiness as may be reasonably requested by any Governmental Authority or other third party whose consent or approval is sought in connection with the Ancillary Agreementstransactions contemplated hereby.
Appears in 1 contract
Samples: Stock Purchase Agreement (DSW Inc.)
Efforts to Consummate; Certain Governmental Matters. (a) Seller, on the one hand, and Buyer, on the other hand, shall, and Sellers shall cause their respective Subsidiaries to, use their respective Reasonable Best Efforts commercially reasonable efforts to obtain and to cooperate in obtaining any Governmental Authorizations, the Regulatory Approvals and Non-Governmental Consents required Third Party Consents. Buyers shall reasonably cooperate in connection with the execution, delivery or performance of this Agreement or any Ancillary Agreement. Notwithstanding the foregoing, each of Buyer and Seller shall make the filings required of it or any of its Affiliates under the HSR Act in connection with this Agreement and the transactions contemplated hereby as soon as practicable, but in any event no later than seven (7) Business Days after the date hereof and request early termination of the waiting period, and shall make the filings required of it or any of its Affiliates under any other Competition Law as promptly as reasonably practicable. All filing fees payable to any Governmental Entity in connection with such filings and notifications shall be paid by Buyer. The parties hereby agree to diligently pursue termination of the waiting periods under the HSR Act or any other Competition Law (including promptly responding to any requests for additional information). Each party shall use its Reasonable Best Efforts to cooperate with the other party in such other party’s efforts to obtain any Non-Governmental Consents as are required in connection with the consummation of the transactions contemplated hereby. Notwithstanding anything to the contrary herein, neither Buyer nor Seller nor any of their respective Affiliates shall have any obligation to propose, negotiate, commit to or effect, by consent decree, hold separate order or otherwise, the sale, divestiture or disposition of any assets or businesses (or otherwise take or commit to take any action that limits the freedom of action with respect to, or its ability to retain, any businesses, product lines, or assets) in order to obtain any clearance under the HSR Act or any other Competition Law or to avoid the entry of, or to effect the dissolution of, any injunction, temporary restraining order, or other order in any Litigation (or threatened to be instituted), and neither Buyer nor Seller nor any of their respective Affiliates shall be obligated to litigate any of the foregoing matterssame.
(b) Subject to the terms Sellers and conditions set forth in this Agreement, Buyer and Seller Buyers shall use, and shall cause use their respective Subsidiaries to use, their respective Reasonable Best Efforts commercially reasonable efforts to take or cause to be taken all actions, and do or cause to be done all things, necessary, or reasonably advisable on its their part under this Agreement and the Ancillary Agreements and applicable Law to satisfy the their respective conditions to Closing, and to consummate and make effective the transactions contemplated by this Agreement and the Ancillary Agreements hereby as soon as practicable.
(c) Buyer and Seller each shall, upon request by the other and subject to applicable Law and appropriate confidentiality restrictions, furnish the other with all material documentation concerning the Business on the one hand, or Buyer, on the other hand, and such other matters as may be necessary or reasonably advisable in connection with any notices, reports, statements, applications or other filings made by or on behalf of Buyer, Seller or any of their respective Affiliates to any Governmental Entity in connection with the transactions contemplated by this Agreement and the Ancillary Agreements; provided that any such documentation furnished by the parties to one another may be redacted to the extent necessary, either to comply with applicable Law, including Competition Law, or to protect the confidentiality of any information that is confidential to a third party in such documentation where the third party’s consent to the disclosure of such documentation is conditioned upon the redaction of the information concerned.
(d) Subject to applicable Law or except as prohibited by any Governmental EntityAuthority, Buyer Sellers and Seller Buyers each shall keep the other apprised of the status of matters relating to consummation of the transactions contemplated hereby, including including: (i) promptly notifying the other of any facts, circumstances or other reason that would prevent the receipt of any Regulatory Approvals or the Non-Governmental Third Party Consents for the timely consummation of transactions contemplated hereby and by this Agreement the Transaction Documents, and the Ancillary Agreements, (ii) promptly furnishing the other with copies of material notices or other communications received by Buyer or Seller, as the case may be, it from any third party or any Governmental Entity Authority with respect to the transactions contemplated by this Agreement and the Ancillary Agreements and (iii) permit the other party to review in advance any proposed written communication to any such Governmental Entity and incorporate the other party’s reasonable commentshereby; provided provided, however, that any such notices furnished by the parties to one another may be redacted to the extent necessary, either necessary to comply with applicable Law or to protect the confidentiality of information that if furnished would not facilitate the other party’s understanding of the status of matters relating to consummation of the transactions contemplated herebyLaw. None of Seller or Buyer Neither Sellers nor Buyers shall permit any of its officers or any other representatives or agents to participate in any meeting or discussion with any Governmental Entity Authority with respect to any filings, investigation or other inquiry relating to the transactions contemplated hereby unless it consults with the other party in advance and, to the extent permitted by such Governmental EntityAuthority, gives the other party the opportunity to attend and participate thereat. .
(d) Neither Buyer Sellers nor Seller shall, without the prior written consent from such other party, Buyers shall (i) take any action that has the effect of extending any waiting period under the HSR Act or comparable period under any other Competition Law, including withdrawing or re-filing any notice, reports, or other submissions, or (ii) enter into any agreement with the U.S. Department of Justice or the U.S. Federal Trade Commission or any other Governmental Entity Authority not to voluntarily delay consummation of consummate the transactions contemplated by this Agreement and hereby without the Ancillary Agreements.
prior written consent of the other party (esuch consent not to be unreasonably withheld, conditioned or delayed) Subject to applicable Law and except as required by any Governmental Entity, neither Buyer nor Seller shall or (ii) take any other action that would be reasonably likely to prevent or materially delay the receipt of any Governmental Authorizations, Regulatory Approvals or Non-Governmental Third Party Consents, in each case, to the extent necessary for the timely consummation of the transactions contemplated by this Agreement and the Ancillary Agreements.
Appears in 1 contract
Efforts to Consummate; Certain Governmental Matters. (a) Seller, on the one hand, CPE and Buyer, on the other hand, shall, and Crackle shall cause their respective Subsidiaries to, use their respective Reasonable Best Efforts commercially reasonable efforts to obtain and to cooperate in obtaining any Governmental Authorizationsthe third-party consents identified on Annex Q-1 hereto (the “Required Crackle Third Party Consents”), Regulatory Approvals and Non-Governmental Consents required including with respect to each of the agreements listed on Annex Q-1 under the heading “Platform Distribution Agreements” consent to the assignment of such agreement and/or the extension of the term of such agreement through the date indicated thereon, as applicable; provided that in connection with obtaining the executionthird-party consent for assignment and/or extension of any such platform distribution agreement, delivery it may be necessary for Crackle to agree to amend certain terms and conditions in the applicable agreement; provided, further, that Crackle will use commercially reasonable efforts (but will not, under any circumstances, be obligated to pay any money or performance provide any other thing of this Agreement or value) to maintain the existing commercial terms of the applicable agreement and will promptly notify CSSE of any Ancillary Agreementsuch proposed amendment. CSSE shall use its commercially reasonable efforts to obtain and to cooperate in obtaining the third-party consents identified on Annex Q-2 hereto (the “Required CSSE Third Party Consents”). Each party shall obtain the foregoing approvals and consents at its own cost and expense.
(b) The parties have determined that with respect to the transactions contemplated hereby no filing is required under the Hxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the “HSR Act”). Notwithstanding the foregoing, each of Buyer CSSE and Seller Crackle, at their joint equal expense, shall make the filings required of it respond as promptly as practicable to any Governmental Authority for information or documentation and to all inquiries and requests received from any of its Affiliates under the HSR Act Governmental Authority in connection with this Agreement the transactions contemplated hereby.
(c) CSSE and Crackle shall cooperate to take any and all steps that are commercially reasonable, proper, or advisable to avoid or eliminate each and every impediment and any proceeding instituted or threatened by a Governmental Authority or private party under Law that is asserted with respect to the transactions contemplated hereby so as soon to enable the consummation of such transactions to occur as practicableexpeditiously as possible, but in including opposing vigorously and fully any event such challenge, promptly appealing any adverse decision or order by a Governmental Authority; provided that no later than seven (7) Business Days after the date hereof and request early termination of the waiting period, and shall make the filings required of it or Party nor any of its Affiliates under any other Competition Law as promptly as reasonably practicable. All filing fees payable to any Governmental Entity in connection with such filings and notifications shall be paid by Buyer. The parties hereby agree to diligently pursue termination of the waiting periods under the HSR Act or any other Competition Law (including promptly responding to any requests for additional information). Each party shall use its Reasonable Best Efforts to cooperate with the other party in such other party’s efforts to obtain any Non-Governmental Consents as are required in connection with the consummation of the transactions contemplated hereby. Notwithstanding anything to the contrary herein, neither Buyer nor Seller nor any of their respective Affiliates shall have any obligation be required to propose, negotiate, commit agree to or effect, by consent decree, hold separate order or otherwise, the sale, divestiture or disposition of any assets or businesses business (or otherwise take taking or commit committing to take any action that limits the freedom of action with respect to, or its ability to retain, any businesses, product linesassets, relationships, or assetscontractual rights) in order to obtain any clearance under the HSR Act or any other Competition Law or to avoid the entry of, or to effect the dissolution of, any injunction, temporary restraining order, or other order in any Litigation (Legal Proceeding, which would otherwise have the effect of preventing or threatened to be instituted), and neither Buyer nor Seller nor any of their respective Affiliates shall be obligated to litigate any delaying the consummation of the foregoing matterstransactions contemplated hereby.
(bd) Subject to the terms Crackle and conditions set forth in this Agreement, Buyer and Seller CSSE shall use, and shall cause use their respective Subsidiaries to use, their respective Reasonable Best Efforts reasonable commercial efforts to take or cause to be taken all actions, and do or cause to be done all things, necessary, or reasonably advisable on its part under this Agreement and the Ancillary Agreements and applicable Law to satisfy the conditions to Closing, and to consummate and make effective the transactions contemplated by this Agreement and the Ancillary Agreements hereby as soon as practicable.
(c) Buyer and Seller each shall, upon request by the other and subject to applicable Law and appropriate confidentiality restrictions, furnish the other with all material documentation concerning the Business on the one hand, or Buyer, on the other hand, and such other matters as may be necessary or reasonably advisable in connection with any notices, reports, statements, applications or other filings made by or on behalf of Buyer, Seller or any of their respective Affiliates to any Governmental Entity in connection with the transactions contemplated by this Agreement and the Ancillary Agreements; provided that any such documentation furnished by the parties to one another may be redacted to the extent necessary, either to comply with applicable Law, including Competition Law, or to protect the confidentiality of any information that is confidential to a third party in such documentation where the third party’s consent to the disclosure of such documentation is conditioned upon the redaction of the information concerned.
(de) Subject to applicable Law or except as prohibited by any Governmental EntityAuthority, Buyer CPE and Seller CSSE each shall keep the other apprised of the status of matters relating to consummation of the transactions contemplated hereby, including (i) promptly notifying the other of any facts, circumstances or other reason that would prevent the receipt of any Required Regulatory Approvals or the NonRequired Third-Governmental Party Consents for the timely consummation of transactions contemplated by this Agreement hereby and the Ancillary AgreementsTransaction Documents, and (ii) promptly furnishing the other with copies of material notices or other communications received by Buyer or Seller, as the case may be, it from any third party or any Governmental Entity Authority with respect to the transactions contemplated by this Agreement and the Ancillary Agreements and (iii) permit the other party to review in advance any proposed written communication to any such Governmental Entity and incorporate the other party’s reasonable commentshereby; provided provided, however, that any such notices furnished by the parties to one another may be redacted to the extent necessary, either necessary to comply with applicable Law or to protect information protected by the confidentiality of attorney-client privilege or other privilege or the attorney work product doctrine; and provided, further, that competitively sensitive information that if furnished would not facilitate may be provided on an “outside attorneys only” basis. Neither CPE or Crackle, on the one hand, nor CSSE, on the other party’s understanding of the status of matters relating to consummation of the transactions contemplated hereby. None of Seller or Buyer hand, shall permit any of its officers or any other representatives or agents to participate in any meeting or discussion with any Governmental Entity Authority with respect to any filings, investigation or other inquiry relating to the transactions contemplated hereby unless it consults with the other party in advance and, to the extent permitted by such Governmental EntityAuthority, gives the other party the opportunity to attend and participate thereat. Neither Buyer nor Seller shall, without the prior written consent from such other party, (i) take any action that has the effect of extending any waiting period under the HSR Act or comparable period under any other Competition Law, including withdrawing or re-filing any notice, reports, or other submissions, or (ii) enter into any agreement with the U.S. Department of Justice or the U.S. Federal Trade Commission or any other Governmental Entity to voluntarily delay consummation of the transactions contemplated by this Agreement and the Ancillary Agreements.
(ef) Subject to applicable Law and except as required by any Governmental EntityAuthority, neither Buyer CPE or Crackle, on one hand, nor Seller CSSE, on the other hand, (i) shall enter into any agreement with any Governmental Authority not to consummate the transactions contemplated hereby without the prior written consent of the other party (such consent not to be unreasonably withheld, conditioned of delayed); or (ii) take any action that would be reasonably likely to prevent or materially delay the receipt of any Governmental Authorizations, Required Regulatory Approvals or NonRequired Third-Party Consents.
(g) Each party agrees that none of the other parties hereto shall have any liability whatsoever to such party arising out of or relating to the failure to obtain any Required Regulatory Approvals or Required Third-Party Consents or because of the termination of any Contract or Governmental ConsentsAuthorization as a result thereof or any Legal Proceeding commenced or threatened by or on behalf of any Person arising out of or relating to the failure to obtain any such approvals or consents or any such termination.
(h) Notwithstanding anything to the contrary herein, in connection with the exercise of any reasonable commercial efforts, commercially reasonable efforts, reasonable best efforts or other standard of conduct pursuant to this Agreement, no party (nor any of their respective Affiliates) shall be required, in respect of any provision of this Agreement, to pay any fees, expenses or other amounts to any Governmental Authority or any party to any Contract (excluding, for the avoidance of doubt, ordinary course fees and expenses of their respective attorneys and advisors), commence or participate in any Legal Proceeding or offer or grant any accommodation (financial or otherwise) to any third party.
(i) CSSE and CPE each caseagrees to provide such evidence, warranties and assurances as to financial capability, resources and creditworthiness as may be reasonably requested by any Governmental Authority or other third party whose consent or approval is sought in connection with the transactions contemplated hereby.
(j) Within fifteen (15) days following delivery by Rxxxxxxxxx & Co. or other auditors to CSSE of the final pro forma financial statements and financial statements for the Crackle VOD Business that are required to be filed under Item 9.01(b) of the amendment to the Current Report on Form 8-K required to be filed by CSSE with the SEC in connection with the transactions contemplated hereby (the “Required Crackle Financials”), CSSE shall file a preliminary proxy statement on Schedule 14A and notice of meeting with the SEC for a stockholders meeting at which, among other actions, CSSE shall propose that its stockholders approve, as required by the rules of the Nasdaq Stock Market, the exercisability of the CSSE Class III-B Warrants to the extent necessary for same would result in CPE holding more than 20% of CSSE’s outstanding common stock (the “Nasdaq Mandated Stockholder Approval”). CSSE shall promptly and timely consummation respond to any and all comments issued by the SEC with respect to the preliminary proxy statement on Schedule 14A and shall thereafter promptly file a definitive proxy statement with the SEC and hold the stockholders meeting contemplated thereby within thirty (30) days of mailing such definitive proxy statement to the stockholders of CSSE. The board of directors of CSSE shall unanimously recommend in the proxy statement that its stockholders vote “FOR” the Nasdaq Mandated Stockholder Approval and the proxy statement shall note that CSS and its Affiliates have agreed to vote all of their Class A common stock and Class B common stock of CSSE “FOR” the Nasdaq Mandated Stockholder Approval pursuant to the Irrevocable CSS Proxy. Alternatively, upon receipt of the transactions contemplated Required Crackle Financials, in lieu of calling and holding the stockholder meeting referred to above in this Section 5.3(j), CSSE may instead promptly, and in no event later than five (5) Business Days following receipt of the Required Crackle Financials, obtain the written consent of the holders of a majority of CSSE’s outstanding common stock approving the exercisability of the subject CSSE Class III-B Warrants and, in accordance with CSSE’s certificate of incorporation and bylaws and applicable Law (including the Delaware General Corporation Law), shall file a preliminary information statement on Schedule 14C with the SEC, promptly and timely respond to any and all comments issued by the SEC with respect thereto, and thereafter promptly file a definitive information statement on Schedule 14C notifying such stockholders of the approval of the Nasdaq Mandated Stockholder Approval and deliver same to its stockholders. CSSE shall give Crackle and its counsel and accountants the opportunity to participate in the preparation of the preliminary proxy statement on Schedule 14A, definitive proxy statement on Schedule 14A and/or information statement on Schedule 14C referred to above in this Agreement Section 5.3(j) (collectively, the “Statements”), or any amendment or supplement thereto. Crackle shall have the right to reasonably request that CSSE modify any information contained in a Statement, amendment and supplement thereto pertaining to Crackle and CSSE shall comply with such request; provided, however, that CSSE shall not have any obligation so to modify any information if doing so would cause the Ancillary AgreementsStatement to contain an untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. CSSE acknowledges and agrees that the shares of Class A common stock and Class B common stock represented by the Irrevocable CSS Proxy will represent at least a majority of the outstanding common stock entitled to vote and required to approve the exercisability of the subject CSSE Class III-B Warrants.
Appears in 1 contract
Samples: Contribution Agreement (Chicken Soup for the Soul Entertainment, Inc.)
Efforts to Consummate; Certain Governmental Matters. (a) SellerThe Company, on the one hand, and Buyer, on the other hand, shall, and shall cause their respective Subsidiaries to, use their respective Reasonable Best Efforts commercially reasonable efforts to obtain and to cooperate in obtaining any Governmental Authorizations, Regulatory Approvals and Non-Governmental Consents required in connection with the execution, delivery or performance of this Agreement or any Ancillary Agreement. Notwithstanding In connection with and without limiting the foregoing, each of Buyer and Seller shall make the filings required of it or any of its Affiliates under the HSR Act in connection with this Agreement Buyer, Merger Sub and the transactions contemplated hereby Company shall as soon promptly as reasonably practicable, but in any no event no later than seven three (73) Business Days after the date hereof hereof, duly file with the United States Federal Trade Commission and request early termination the Antitrust Division of the waiting periodDepartment of Justice the notification and report form required under the HSR Act, and shall make the filings required of it or any of its Affiliates under any other Competition Law as promptly as reasonably practicable. All filing fees payable take all necessary actions to any Governmental Entity in connection seek early termination with such filings and notifications shall be paid by Buyerrespect thereto. The parties hereby agree to use commercially reasonable efforts to diligently pursue termination of the waiting periods under the HSR Act or any other Competition Competition/Investment Law (including promptly responding to any requests for additional information). Each party shall use its Reasonable Best Efforts commercially reasonable efforts to cooperate with the other party in such other party’s efforts to obtain any Non-Governmental Consents as are required in connection with the consummation of the transactions contemplated hereby. Notwithstanding anything to the contrary herein, neither Buyer nor Seller nor any of their respective Affiliates shall have any obligation to propose, negotiate, commit to or effect, by consent decree, hold separate order or otherwise, the sale, divestiture or disposition of any assets or businesses (or otherwise take or commit to take any action that limits the freedom of action with respect to, or its ability to retain, any businesses, product lines, or assets) in order to obtain any clearance under the HSR Act or any other Competition Law or to avoid the entry of, or to effect the dissolution of, any injunction, temporary restraining order, or other order in any Litigation (or threatened to be instituted), and neither Buyer nor Seller nor any of their respective Affiliates shall be obligated to litigate any of the foregoing matters.
(b) Subject to the terms and conditions set forth in this AgreementAgreement (including this Section 5.2), Buyer Buyer, Merger Sub, and Seller the Company shall use, and shall cause their respective Subsidiaries to use, their respective Reasonable Best Efforts commercially reasonable efforts to take or cause to be taken all actions, and do or cause to be done all things, necessary, or reasonably advisable on its part under this Agreement and the Ancillary Agreements and applicable Law to satisfy the conditions to Closing, and to consummate and make effective the transactions contemplated by this Agreement and the Ancillary Agreements and the Women’s Health APA as soon as practicable.
(c) Buyer Buyer, Merger Sub, and Seller the Company each shall, upon request by the other and subject to applicable Law and appropriate confidentiality restrictions, furnish the other with all material documentation concerning the Business on the one hand, Company or Buyer, on the other hand, any of its Subsidiaries or Buyer and Merger Sub and such other matters as may be necessary or reasonably advisable in connection with any notices, reports, statements, applications or other filings made by or on behalf of Buyer, Seller or the Company, or any of their respective Affiliates to any Governmental Entity in connection with the transactions contemplated by this Agreement and the Ancillary AgreementsAgreements or the Women’s Health APA; provided that any such documentation furnished by the parties to one another may be redacted to the extent necessary, either to comply with applicable Law, including Competition Law, Law or to protect the confidentiality of any information that is confidential to a third party in such documentation where if furnished would not materially facilitate the third other party’s consent to the disclosure of such documentation is conditioned upon the redaction understanding of the information concernedstatus of matters relating to consummation of the transactions contemplated hereby.
(d) Subject to applicable Law or as prohibited by any Governmental Entity, Buyer Buyer, Merger Sub, and Seller the Company each shall keep the other apprised of the status of matters relating to consummation of the transactions contemplated herebyhereby and by the Women’s Health APA, including (i) promptly notifying the other of any facts, circumstances or other reason that would prevent the receipt of any Regulatory Approvals or the Non-Governmental Consents for the timely consummation of transactions contemplated by this Agreement and the Ancillary AgreementsAgreements or the Women’s Health APA, and (ii) promptly furnishing the other with copies of material notices or other communications received by Buyer Buyer, Merger Sub, or Sellerthe Company, as the case may be, from any third party or any Governmental Entity with respect to the transactions contemplated by this Agreement and the Ancillary Agreements or the Women’s Health APA or notices or other communications received by third parties that could potentially lead to delay or impediments to Closing the transactions contemplated by this Agreement and (iii) permit the other party to review in advance any proposed written communication to any such Governmental Entity and incorporate Ancillary Agreements or the other partyWomen’s reasonable commentsHealth APA; provided that any such notices furnished by the parties to one another may be redacted to the extent necessary, either to comply with applicable Law or to protect the confidentiality of information that if furnished would not materially facilitate the other party’s understanding of the status of matters relating to consummation of the transactions contemplated hereby. None of Seller Buyer, Merger Sub, or Buyer the Company shall permit any of its officers or any other representatives or agents to participate in any meeting or discussion with any Governmental Entity with respect to any filings, investigation or other inquiry relating to the transactions contemplated hereby unless it consults with the other party in advance and, to the extent permitted by such Governmental Entity, gives the other party the opportunity to attend and participate thereat. Neither Buyer nor Seller shall.
(e) Each of Buyer, without Merger Sub and the prior written consent from such other party, Company shall (i) take respond as promptly as practicable under the circumstances to any action that has the effect of extending inquiries received from any Governmental Entity for additional information or documentation and to all inquiries and requests received from any Governmental Entity and shall cooperate with each other party hereto in connection therewith, and (ii) not extend any waiting period under the HSR Act without the prior written consent of the other party (such consent not to be unreasonably withheld, conditioned or comparable period under any other Competition Lawdelayed).
(f) As soon as practicable after the Closing Date, including withdrawing or re-filing any noticeBuyer shall, and shall cause the Surviving Corporation and each of its Subsidiaries to, prepare and file all notices, reports, statements, applications and other filings as required by applicable Law or other submissionsany Governmental Entity or as otherwise customary or advisable under applicable Law as a result of the consummation on the Closing Date of the transactions contemplated hereby.
(g) Buyer agrees that none of the Company, or (ii) enter into any agreement with the U.S. Department of Justice or Stockholders’ Representative, the U.S. Federal Trade Commission Stockholders or any other Person shall have any liability to Buyer arising out of or relating to the failure to obtain (and no amounts may be recovered from the Indemnity Escrow Account or set-off pursuant to Section 2.10(c) in respect of such failure) any Non-Governmental Entity to voluntarily delay consummation of Consents that may be required in connection with the transactions contemplated by this Agreement and or the Ancillary AgreementsAgreements or because of the termination of any Contract solely as a result thereof; provided that this Section 5.2(g) shall not eliminate, reduce or modify in any respect the liability of such Persons due to any breach of the representations, warranties, covenants or agreements of the Company or the Stockholders’ Representative hereunder.
(eh) Subject Notwithstanding anything to applicable Law and except as required by the contrary herein, in connection with the exercise of any commercially reasonable efforts, reasonable best efforts or other standard of conduct pursuant to this Agreement, neither the Company, any of its Subsidiaries, the Stockholders’ Representative, nor any Fully Diluted Common Holder (nor any of their respective Affiliates) shall be required, in respect of any provision of this Agreement, to (A) pay any fees, expenses or other amounts to any Governmental EntityEntity or any party to any Contract (excluding, neither Buyer nor Seller shall for the avoidance of doubt, ordinary course fees and expenses of their respective attorneys and advisors, and the payment of administrative or processing fees, and any payments required to be made pursuant to the express terms of such Contracts), or (B) take any action that would be reasonably likely result in a material adverse change in the benefits to prevent any such Person under this Agreement or materially delay the receipt of any Governmental Authorizations, Regulatory Approvals or Non-Governmental Consents, in each case, to the extent necessary for the timely consummation of the transactions contemplated by this Agreement and the Ancillary Agreementshereby, to make any changes to any of their respective businesses, to commence any Litigation or to incur any other material Liability.
Appears in 1 contract
Efforts to Consummate; Certain Governmental Matters. (a) Seller, on Upon the one hand, terms and Buyer, on subject to the other hand, shall, and shall cause their respective Subsidiaries to, use their respective Reasonable Best Efforts to obtain and to cooperate in obtaining any Governmental Authorizations, Regulatory Approvals and Non-Governmental Consents required in connection with the execution, delivery or performance of this Agreement or any Ancillary Agreement. Notwithstanding the foregoingconditions herein provided (including Section 2.2), each of Buyer the parties hereto agrees to use commercially reasonable efforts to take, or cause to be taken, all actions and Seller shall to do, or cause to be done, all things necessary for it to do under applicable Laws to consummate and make effective the filings required of transactions contemplated by this Agreement, including all actions and all things necessary for it or any of its Affiliates under the HSR Act in connection (i) to comply promptly with all legal requirements that may be imposed on it with respect to this Agreement and the transactions contemplated hereby as soon as practicable(which actions shall include furnishing all information required by applicable Law in connection with approvals of or filings with any Governmental Authority that are required to be made in connection with such transactions), but in any event no later than seven (7ii) Business Days after to satisfy the date hereof and request early termination conditions precedent to the obligations of the waiting periodsuch party hereto, and shall make the filings (iii) to obtain any consent, authorization, order or approval of, or any exemption by, any Governmental Authority or other Person required of it to be obtained or made by Purchaser or Seller or any of its Divesting Affiliates under any other Competition Law as promptly as reasonably practicable. All filing fees payable to any Governmental Entity in connection with such filings and notifications shall be paid by Buyer. The parties hereby agree to diligently pursue termination of the waiting periods under the HSR Act or any other Competition Law (including promptly responding to any requests for additional information). Each party shall use its Reasonable Best Efforts to cooperate with the other party in such other party’s efforts to obtain any Non-Governmental Consents as are required in connection with the consummation sale or purchase of the transactions Purchased Assets, the license of the Licensed Intellectual Property or the taking of any action contemplated hereby. Notwithstanding anything to the contrary hereinby this Agreement; provided, neither Buyer nor Seller nor however, that none of Seller, Purchaser or any of their respective Affiliates shall have be required to pay money to any obligation Third Party, commence any litigation or offer or grant any accommodation (financial or otherwise) to any Third Party. Notwithstanding the foregoing or any other provision of this Agreement, in no event shall Purchaser, Seller or any of their respective Affiliates be required to (i) comply with any request for additional information or documentary material from a Governmental Authority (other than requests made by the Department of Justice or Federal Trade Commission during the first 30 days after the parties’ HSR Act filings are made that do not impose significant compliance burdens), (ii) propose, negotiate, offer to commit to or effect, by consent decree, hold separate order or otherwise, the sale, divestiture or disposition of any assets or businesses of Purchaser and its Affiliates (including the Purchased Assets) or Seller and its Affiliates, or otherwise offer to take or offer to commit to take any action that limits the freedom of action of Purchaser or Seller or their respective Affiliates with respect to, or its their ability to retain, any of their businesses, product lines, services or assetsassets or (iii) in order commence any action or proceeding seeking to obtain any clearance under the HSR Act contest or any other Competition Law or to avoid the entry of, or to effect the dissolution of, any injunction, temporary restraining order, or other order in any Litigation (or threatened to be instituted), and neither Buyer nor Seller nor any of their respective Affiliates shall be obligated to litigate resist any of the foregoing mattersrequirements that may be sought by any Governmental Authority. Subject to the foregoing, Purchaser shall be responsible for any cost associated with obtaining any consent from Mylan that is required in order to consummate the transactions contemplated hereby, including Mylan’s consent to terminate the Jxxxxxx License Agreement.
(b) Subject to the terms of Section 10.8, each of the parties hereto will furnish to the other party such necessary information and conditions set forth reasonable assistance as such other party may reasonably request in this Agreementconnection with the foregoing and will keep the other party reasonably informed with respect to any consent, Buyer and Seller shall useauthorization, and shall cause their respective Subsidiaries to useorder, their respective Reasonable Best Efforts to take approval or cause to be taken all actions, and do exemption sought or cause to be done all things, necessary, or reasonably advisable on its part under received from any Governmental Authority in connection with this Agreement and the Ancillary Agreements and applicable Law to satisfy the conditions to Closing, and to consummate and make effective the transactions contemplated by this Agreement and the Ancillary Agreements as soon as practicable.
(c) Buyer and Seller each shall, upon request by the other and subject to applicable Law and appropriate confidentiality restrictions, furnish the other with all material documentation concerning the Business on the one hand, or Buyer, on the other hand, and such other matters as may be necessary or reasonably advisable in connection with any notices, reports, statements, applications or other filings made by or on behalf of Buyer, Seller or any of their respective Affiliates to any Governmental Entity in connection with the transactions contemplated by this Agreement and the Ancillary Agreements; provided that any such documentation furnished by the parties to one another may be redacted to the extent necessary, either to comply with applicable Law, including Competition Law, or to protect the confidentiality of any information that is confidential to a third party in such documentation where the third party’s consent to the disclosure of such documentation is conditioned upon the redaction of the information concerned.
(d) Subject to applicable Law or as prohibited by any Governmental Entity, Buyer and Seller each shall keep the other apprised of the status of matters relating to consummation of the transactions contemplated hereby, including (i) promptly notifying the other of any facts, circumstances or other reason that would prevent the receipt of any Regulatory Approvals or the Non-Governmental Consents for the timely consummation of transactions contemplated by this Agreement and the Ancillary Agreements, (ii) promptly furnishing the other with copies of material notices or other communications received by Buyer or Seller, as the case may be, from any third party or any Governmental Entity with respect to the transactions contemplated by this Agreement and the Ancillary Agreements and (iii) permit the other party to review in advance any proposed written communication to any such Governmental Entity and incorporate the other party’s reasonable comments; provided that any such notices furnished by the parties to one another may be redacted to the extent necessary, either to comply with applicable Law or to protect the confidentiality of information that if furnished would not facilitate the other party’s understanding of the status of matters relating to consummation of the transactions contemplated hereby. None of Seller or Buyer shall permit any of its officers or any other representatives or agents to participate in any meeting or discussion with any Governmental Entity with respect to any filings, investigation or other inquiry relating to the transactions contemplated hereby unless it consults with the other party in advance and, to the extent permitted by such Governmental Entity, gives the other party the opportunity to attend and participate thereat. Neither Buyer nor Seller shall, without the prior written consent from such other party, (i) take any action that has the effect of extending any waiting period under the HSR Act or comparable period under any other Competition Law, including withdrawing or re-filing any notice, reports, or other submissions, or (ii) enter into any agreement with the U.S. Department of Justice or the U.S. Federal Trade Commission or any other Governmental Entity to voluntarily delay consummation of the transactions contemplated by this Agreement and the Ancillary Agreements.
(e) Subject to applicable Law and except as required by any Governmental Entity, neither Buyer nor Seller shall take any action that would be reasonably likely to prevent or materially delay the receipt of any Governmental Authorizations, Regulatory Approvals or Non-Governmental Consents, in each case, to the extent necessary for the timely consummation of the transactions contemplated by this Agreement and the Ancillary Agreements.
Appears in 1 contract
Samples: Sale and Transfer Agreement (Forest Laboratories Inc)
Efforts to Consummate; Certain Governmental Matters. (a) SellerOn the terms and subject to the conditions set forth in this Agreement (including, on for the one handavoidance of doubt, Section 6.2(c)), Seller and Buyer, on the other hand, shall, and Buyer shall cause their respective Subsidiaries to, use their respective Reasonable Best Efforts commercially reasonable efforts to obtain take, or cause to be taken, all actions and to cooperate do, or cause to be done, all things reasonably necessary, proper or advisable under applicable Laws to consummate and make effective as promptly as practicable, and in obtaining any Governmental Authorizationsevent prior to the Outside Date, Regulatory Approvals and Non-Governmental Consents required in connection with the execution, delivery or performance of this Agreement or any Ancillary Agreement. Notwithstanding the foregoing, each of Buyer and Seller shall make the filings required of it or any of its Affiliates under the HSR Act in connection with this Agreement and the transactions contemplated hereby as soon as practicable(including (i) the satisfaction, but not waiver, of the closing conditions set forth in Article 7 and (ii) obtaining and cooperating in obtaining the Regulatory Approvals necessary to consummate the transactions contemplated hereby; provided, however, the Parties acknowledge and agree that Section 6.3 shall govern the Parties’ obligations with respect to obtaining the Third-Party Consents and Section 6.4(f) shall govern the Parties’ obligations with respect to obtaining the TSX Approval). The filing fees under any event no later than seven Competition/Investment Laws shall be borne by Buyer.
(7b) Business Days after In addition to and without limiting the date hereof and generality of Section 6.2(a), each Party shall and/or, as applicable, shall cause its “ultimate parent entity” (as such term is understood under the HSR Act) to, make an appropriate filing, if necessary, pursuant to all applicable Competition/Investment Laws, including the HSR Act (provided, that in the case of the HSR Act, such filing shall not request early termination of the waiting periodperiod prescribed by the HSR Act) with respect to the transactions contemplated by this Agreement promptly (and in any event, and within ten Business Days) after the date of this Agreement. Each Party shall make and/or, as applicable, cause its “ultimate parent entity” (as such term is understood under the filings required of it or any of its Affiliates under any other Competition Law HSR Act) to, respond as promptly as reasonably practicable. All filing fees payable practicable to any inquiries received from any Governmental Entity Authority for additional information or documentation and to all inquiries and requests received from any Governmental Authority in connection with such filings the transactions contemplated hereby.
(c) The Parties acknowledge and notifications agree that nothing in this Agreement, including, for the avoidance of doubt, the provisions of Section 6.2(a) and Section 6.2(b), shall be paid by Buyer. The parties hereby agree construed to diligently pursue termination of require Buyer to defend through litigation on the waiting periods under the HSR Act merits any Action, whether judicial or administrative, against either Party in order to avoid entry of, or to have vacated or terminated, any other Competition Law Order (including promptly responding whether temporary, preliminary or permanent) that would reasonably be expected to any requests for additional information). Each party shall use its Reasonable Best Efforts to cooperate with the other party in such other party’s efforts to obtain any Non-Governmental Consents as are required in connection with prevent, materially delay or materially impair the consummation of the transactions contemplated hereby. Notwithstanding anything to the contrary herein, neither Buyer nor Seller nor any of their respective Affiliates shall have any obligation to propose, negotiate, commit to or effect, by consent decree, hold separate order or otherwise, the sale, divestiture or disposition of any assets or businesses (or otherwise take or commit to take any action that limits the freedom of action with respect to, or its ability to retain, any businesses, product lines, or assets) in order to obtain any clearance under the HSR Act or any other Competition Law or to avoid the entry of, or to effect the dissolution of, any injunction, temporary restraining order, or other order in any Litigation (or threatened to be instituted), and neither Buyer nor Seller nor any of their respective Affiliates shall be obligated to litigate any of the foregoing matters.
(b) Subject to the terms and conditions set forth in this Agreement, . Buyer and Seller shall usenot, and shall cause their respective Subsidiaries to use, their respective Reasonable Best Efforts to take or cause to be taken all actionsits Affiliates not to, and do shall not provide its consent for any Affiliate to, acquire or cause agree to be done all thingsacquire, necessaryby merging with or into or consolidating with, or reasonably advisable on its part under this Agreement by purchasing a substantial portion of the assets of or equity in, or by any other manner, any business or any corporation, partnership, association or other business organization or division thereof, or otherwise acquire or agree to acquire any assets, or take any other action, if the entering into of a definitive agreement relating to, or the consummation of such acquisition, merger or consolidation, or the taking of any other action, would prevent, materially delay or materially impair the Closing and the Ancillary Agreements and applicable Law to satisfy the conditions to Closing, and to consummate and make effective the other transactions contemplated by this Agreement and the Ancillary Agreements as soon as practicable.
(c) Buyer and Seller each shall, upon request by the other and subject to applicable Law and appropriate confidentiality restrictions, furnish the other with all material documentation concerning the Business on the one hand, or Buyer, on the other hand, and such other matters as may be necessary or reasonably advisable in connection with any notices, reports, statements, applications or other filings made by or on behalf of Buyer, Seller or any of their respective Affiliates to any Governmental Entity in connection with the transactions contemplated by this Agreement and the Ancillary Agreements; provided that any such documentation furnished by the parties to one another may be redacted to the extent necessary, either to comply with applicable Law, including Competition Law, or to protect the confidentiality of any information that is confidential to a third party in such documentation where the third party’s consent to the disclosure of such documentation is conditioned upon the redaction of the information concernedhereby.
(d) Subject to applicable Law or except as prohibited by any Governmental EntityAuthority, Seller and Buyer and Seller each shall keep the other apprised of the status of matters relating to consummation of the transactions contemplated hereby, including (i) promptly notifying the other of any facts, circumstances or other reason that would prevent the receipt of any Regulatory Approvals or the Non-Governmental Consents for the timely consummation of transactions contemplated hereby and by this Agreement the Transaction Documents, and the Ancillary Agreements, (ii) promptly furnishing the other with copies of material notices or other communications received by Buyer or Seller, as the case may be, it from any third party or any Governmental Entity Authority with respect to the transactions contemplated by this Agreement and the Ancillary Agreements and (iii) permit the other party hereby; provided, however, that access to review in advance any proposed written communication to any such Governmental Entity and incorporate the other party’s reasonable comments; provided that any such notices furnished by the parties Parties to one another may shall be redacted subject to the extent necessary, either to comply with applicable Law or to protect the confidentiality of information that if furnished would not facilitate the other party’s understanding of the status of matters relating to consummation of the transactions contemplated herebyAccess Limitations. None of Seller or Buyer No Party shall permit any of its officers or any other representatives or agents Representatives to participate in any meeting or discussion with any Governmental Entity Authority with respect to any filings, investigation or other inquiry relating to the transactions contemplated hereby unless it consults with the other party Party in advance and, to the extent permitted by such Governmental EntityAuthority, gives the other party Party the opportunity to attend and participate thereat. Neither Buyer nor Seller shall, without the prior written consent from such other party, (i) take any action that has the effect of extending any waiting period under the HSR Act or comparable period under any other Competition Law, including withdrawing or re-filing any notice, reports, or other submissions, or (ii) enter into any agreement with the U.S. Department of Justice or the U.S. Federal Trade Commission or any other Governmental Entity to voluntarily delay consummation of the transactions contemplated by this Agreement and the Ancillary Agreements.
(e) Subject to applicable Law and except as required by any Governmental EntityAuthority, neither Buyer nor Seller no Party shall take (i) agree to extend any action that would waiting period under the HSR Act or under any other applicable Competition/Investment Law without the prior written consent of the other Party (such consent not to be reasonably likely to prevent unreasonably withheld, conditioned or materially delay the receipt of delayed) or (ii) enter into any agreement with any Governmental Authorizations, Regulatory Approvals or Non-Governmental Consents, in each case, Authority not to the extent necessary for the timely consummation of consummate the transactions contemplated hereby without the prior written consent of the other Party (such consent not to be unreasonably withheld, conditioned of delayed).
(f) Buyer agrees to provide such security, guaranties and assurances as to financial capability, resources and creditworthiness as may be reasonably requested by this Agreement and any Governmental Authority whose consent or approval is required in connection with the Ancillary Agreementstransactions contemplated hereby.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Cronos Group Inc.)
Efforts to Consummate; Certain Governmental Matters. (a) SellerGriffon, on the one hand, and Buyer, on the other hand, shall, and shall cause their respective Subsidiaries to, use their respective Reasonable Best Efforts reasonable best efforts to obtain and to cooperate in obtaining any Governmental Authorizations, Regulatory Approvals and Non-Governmental Consents approvals required under Competition/Investment Law in connection with the execution, delivery or performance of this Agreement or any Ancillary AgreementAgreement and as required to consummate the transactions contemplated hereby. Notwithstanding the foregoing, each of All HSR Act and all transaction notification fees and other filing fees required by any other Competition/Investment Law shall be borne by Buyer and Seller shall equally (50/50). Each party hereto agrees to make the filings required of it or any of its Affiliates under an appropriate filing pursuant to the HSR Act in connection with this Agreement and respect to the transactions contemplated hereby as soon as practicable, but in any event no later than seven by this Agreement within five (75) Business Days after the date hereof and request early termination of the waiting period, and shall make the filings as promptly as practicable any other appropriate submissions that may be required of it or any of its Affiliates under any other Competition Law as promptly as reasonably practicable. All filing fees payable to any Governmental Entity in connection with such filings and notifications shall be paid by Buyer. The parties hereby agree to diligently pursue termination of the waiting periods under the HSR Act or any other Competition Law (including promptly responding to any requests for additional information)Competition/Investment Law. Each party hereto shall use its Reasonable Best Efforts reasonable best efforts to cooperate with the other party parties hereto in such other party’s parties’ efforts to obtain any Non-Governmental Consents approvals required under Competition/Investment Law as are required in connection with the consummation of the transactions contemplated hereby. Notwithstanding anything to the contrary hereinhereby and agrees that it shall not, neither Buyer nor Seller nor any of their respective and shall cause its Affiliates shall have any obligation to proposenot to, negotiate, commit to or effect, by consent decree, hold separate order or otherwise, the sale, divestiture or disposition of any assets or businesses (or otherwise take or commit to willfully take any action or enter into any transaction that limits will have the freedom effect of action delaying, impairing or preventing the consummation of the transactions contemplated hereby.
(b) Each party shall respond as promptly as practicable to any reasonable inquiries received from the Antitrust Division of the U.S. Department of Justice (the “Antitrust Division”), the Federal Trade Commission or any other Governmental Entity for additional information or documentation and to all reasonable inquiries and requests received from any Governmental Entity in connection with respect to, or the transactions contemplated hereby.
(c) Each party shall use its ability to retain, any businesses, product lines, or assets) in order reasonable best efforts to obtain all approvals required under Competition/Investment Law necessary to consummate the transactions contemplated by this Agreement and to avoid or eliminate each and every impediment and any clearance proceeding instituted or threatened by a Governmental Entity or private party under the HSR Act or any other Competition Competition/Investment Law that is asserted with respect to the transactions contemplated by this Agreement or any Ancillary Agreement so as to avoid enable the entry ofconsummation of such transactions to occur as expeditiously as possible and, or to effect the dissolution of, any injunction, temporary restraining order, or other order in any Litigation (or threatened to be instituted)event, and by the Closing Date. For the avoidance of doubt, neither Buyer the Sellers nor Seller nor any of their respective Affiliates the Purchased Companies, shall be obligated to litigate take any such action, unless the taking of such action is expressly conditioned upon the consummation of the foregoing matterstransactions contemplated in this Agreement and any Ancillary Agreement.
(bd) Subject to the terms and conditions set forth in this Agreement, Buyer and Seller the parties hereto shall use, and shall cause their respective Subsidiaries to use, their respective Reasonable Best Efforts reasonable best efforts to take or cause to be taken all actions, and do or cause to be done all things, necessary, or reasonably advisable on its part under this Agreement and the Ancillary Agreements and applicable Law to satisfy the conditions to Closing, and to consummate and make effective the transactions contemplated by this Agreement and the Ancillary Agreements as soon as practicable.
(c) Buyer and Seller each shall. For the avoidance of doubt, upon request by the other and subject nothing in this Section 5.2 will require any party to applicable Law and appropriate confidentiality restrictions, furnish the other with all material documentation concerning the Business on the one hand, or Buyer, on the other hand, and waive any condition to such other matters as may be necessary or reasonably advisable in connection with any notices, reports, statements, applications or other filings made by or on behalf of Buyer, Seller or any of their respective Affiliates party’s obligation to any Governmental Entity in connection with consummate the transactions contemplated by this Agreement and the Ancillary Agreements; provided that any such documentation furnished by the parties to one another may be redacted to the extent necessary, either to comply with applicable Law, including Competition Law, or to protect the confidentiality of any information that is confidential to a third party set forth in such documentation where the third party’s consent to the disclosure of such documentation is conditioned upon the redaction of the information concernedArticle VIII.
(de) Subject to applicable Law or as prohibited by any Governmental EntityLaw, Buyer and Seller each of the parties hereto shall keep the other party apprised of the status of matters relating to consummation of the transactions contemplated hereby, including (i) promptly notifying the other of any facts, circumstances or other reason that would prevent the receipt of any Regulatory Approvals approvals required under Competition/Investment Law or the Non-Governmental Consents any other applicable Law for the timely consummation of transactions contemplated by this Agreement and the Ancillary Agreements, and (ii) promptly furnishing the other party with copies of material notices or other communications received by Buyer or Seller, as the case may be, from any third party or any Governmental Entity with respect to the transactions contemplated by this Agreement and the Ancillary Agreements and (iii) permit the other party to review in advance any proposed written communication to any such Governmental Entity and incorporate the other party’s reasonable commentsAgreements; provided that any such notices furnished by the parties hereto to one another may be redacted or provided on an “outside counsel only” basis to the extent necessary, either to comply with applicable Law or to protect the confidentiality of information that if furnished would not materially facilitate the other party’s understanding of the status of matters relating to consummation of the transactions contemplated hereby. The parties hereto will consult and cooperate with one another in connection with any analyses, appearances, presentations, memoranda, briefs, arguments, opinions and proposals made or submitted by or on behalf of any party hereto in connection with proceedings under or relating to the HSR Act or any other Competition/Investment Law or other applicable Law. None of Seller or Buyer the parties hereto shall permit any of its officers or any other representatives Representatives or agents to participate in any meeting or discussion with any Governmental Entity with respect to any filings, investigation or other inquiry relating to the transactions contemplated hereby unless it consults with the other party in advance and, to the extent permitted by such Governmental Entity, gives the other party parties hereto the opportunity to attend and participate thereat. Neither Notwithstanding the foregoing, subject to reasonable consultation and considering in good faith the views expressed by the Griffon and its advisors, Buyer nor Seller shallshall make the final determination as to the appropriate course of action regarding obtaining clearance from any Governmental Entity under any of the Competition/Investment Laws and resolving any investigation or other inquiry of any Governmental Entity under any of the Competition/Investment Laws.
(f) From and after the date hereof, without Griffon shall use commercially reasonable efforts to prepare and file all notices, reports, statements, applications and other filings (other than Tax Returns) set forth in Schedule 3.3 (to the extent designated on such Schedule as “Pre-Closing” but excluding any filings with respect to the HSR Act, which shall be governed by the other provisions of Section 5.2), and Buyer shall (and after the Closing Date shall cause the Purchased Companies to) use commercially reasonable efforts to prepare and file all notices, reports, statements, applications and other filings (other than Tax Returns) set forth in Schedule 3.3 (to the extent designated on such Schedule as “Post-Closing”) and Schedule 4.4 (but excluding any filings with respect to the HSR Act, which shall be governed by the other provisions of Section 5.2) (such items set forth on Schedule 3.3 and Schedule 4.4, in each case excluding any filings with respect to the HSR Act, collectively, the “Transaction Filings”); provided, however, that prior written consent from to filing all such notices, reports, statements, applications and other filings, Buyer and Griffon shall each provide drafts thereof to the other party and shall file such notices, reports, statements, applications and other filings only after receiving such other party, (i) take any action that has the effect ’s approval of extending any waiting period under the HSR Act or comparable period under any other Competition Law, including withdrawing or re-filing any noticesuch notices, reports, statements, applications and other filings, which approval shall not be unreasonably withheld, conditioned or delayed. Griffon will promptly deliver to Buyer a copy of each such notice, report statement, application and other submissions, filings and each such consent or (ii) enter into any agreement approval obtained prior to the Closing. Each party hereto shall use its reasonable best efforts to cooperate with the U.S. Department of Justice or other parties hereto in such other parties’ efforts to prepare and file the U.S. Federal Trade Commission or Transaction Filings. To the extent any other Governmental Entity to voluntarily delay consummation of the transactions contemplated by this Agreement and the Ancillary Agreements.
(eapprovals set forth in Schedule 5.2(f) Subject are not obtained at or prior to applicable Law and except as required by any Governmental EntityClosing, neither Buyer nor Seller shall take any action that would be reasonably likely to prevent or materially delay the receipt of any Governmental Authorizations, Regulatory Approvals or Non-Governmental Consents, in each case, to the extent necessary for the timely consummation of the transactions contemplated by this Agreement and the Ancillary Agreements.subject to
Appears in 1 contract
Efforts to Consummate; Certain Governmental Matters. (a) Seller, on the one hand, and Buyer, on the other hand, Paragon shall, and shall cause their respective Subsidiaries each of the Paragon Entities to, use their its respective Reasonable Best Efforts reasonable best efforts to obtain and to cooperate in obtaining or making any Governmental AuthorizationsAuthorization, Regulatory Approvals and Non-Governmental Consents notice or filing required in connection with the execution, delivery or performance of this Agreement or any Ancillary Agreement. Notwithstanding the foregoing, each of Buyer and Seller shall make the filings required of it to be obtained by Paragon or any of its Affiliates under the HSR Act in connection with this Agreement and the transactions contemplated hereby as soon as practicablefrom, but in any event no later than seven (7) Business Days after the date hereof and request early termination of the waiting period, and shall make the filings required of it or to be given by Paragon or any of its Affiliates under any other Competition Law as promptly as reasonably practicable. All filing fees payable to to, or made by Paragon with, any Governmental Entity in connection with such filings and notifications shall be paid by Buyer. The parties hereby agree to diligently pursue termination of the waiting periods under the HSR Act or securities exchange or any other Competition Law (including promptly responding to any requests for additional information). Each party shall use its Reasonable Best Efforts to cooperate with the other party in such other party’s efforts to obtain any Non-Governmental Consents Person, as are required in connection with the consummation a result of the transactions contemplated hereby. Notwithstanding anything to the contrary hereinexecution and delivery of, neither Buyer nor Seller nor any of their respective Affiliates shall have any obligation to propose, negotiate, commit to or effect, by consent decree, hold separate order or otherwise, the sale, divestiture or disposition performance of any assets obligations under (i) this Agreement or businesses (or otherwise take or commit ii) the Amendment to Tax Sharing Agreement, including obtaining the Bankruptcy Court Approval and consummating the Paragon Plan, and no Party shall take any action that limits would be reasonably likely to prevent or materially delay the freedom receipt of action with respect to, or its ability to retain, any businesses, product lines, or assets) in order to obtain any clearance under the HSR Act or any other Competition Law or to avoid the entry of, or to effect the dissolution of, any injunction, temporary restraining order, or other order in any Litigation (or threatened to be instituted), and neither Buyer nor Seller nor any of their respective Affiliates shall be obligated to litigate any of the foregoing mattersforegoing.
(b) Subject to the terms and conditions set forth in this Agreement, Buyer and Seller each Party shall use, and shall cause their respective each of its Subsidiaries to use, their its respective Reasonable Best Efforts commercially reasonable efforts to take or cause to be taken all actions, and do or cause to be done all things, necessary, or reasonably advisable on its part under this Agreement and the Ancillary Agreements Amendment to Tax Sharing Agreement and applicable Law to satisfy the conditions to Closingset forth in Article VI, and to consummate and make effective the transactions contemplated by this Agreement and the Ancillary Agreements Amendment to Tax Sharing Agreement as soon as practicable.
(c) Buyer and Seller each shall, upon request by the other and subject to applicable Law and appropriate confidentiality restrictions, furnish the other with all material documentation concerning the Business on the one hand, or Buyer, on the other hand, and such other matters as may be necessary or reasonably advisable in connection with any notices, reports, statements, applications or other filings made by or on behalf of Buyer, Seller or any of their respective Affiliates to any Governmental Entity in connection with the transactions contemplated by this Agreement and the Ancillary Agreements; provided that any such documentation furnished by the parties to one another may be redacted to the extent necessary, either to comply with applicable Law, including Competition Law, or to protect the confidentiality of any information that is confidential to a third party in such documentation where the third party’s consent to the disclosure of such documentation is conditioned upon the redaction of the information concerned.
(d) Subject to applicable Law or as prohibited by any Governmental Entity, Buyer Paragon and Seller Noble each shall keep the other apprised of the status of matters relating to consummation of the transactions contemplated hereby, including (i) promptly notifying the other of the status of, and any facts, circumstances or other reason that would prevent the receipt of, the Bankruptcy Court Approval or consummation of any Regulatory Approvals or the Non-Governmental Consents Paragon Plan for the timely consummation of transactions contemplated by this Agreement and the Ancillary AgreementsAmendment to Tax Sharing Agreement, and (ii) promptly furnishing the other with copies of material notices or other communications documents received by Buyer Paragon or SellerNoble, as the case may be, from any third party or and/or any Governmental Entity with respect to the transactions contemplated by this Agreement and the Ancillary Agreements and (iii) permit the other party Amendment to review in advance any proposed written communication to any such Governmental Entity and incorporate the other party’s reasonable comments; provided that any such notices furnished by the parties to one another may be redacted to the extent necessary, either to comply with applicable Law or to protect the confidentiality of information that if furnished would not facilitate the other party’s understanding of the status of matters relating to consummation of the transactions contemplated herebyTax Sharing Agreement. None of Seller or Buyer No Party shall permit any of its officers or any other representatives or agents to participate in any meeting or discussion with any Governmental Entity with respect to any filings, investigation or other inquiry relating to the transactions contemplated hereby unless it consults with the other party Party in advance and, to the extent permitted by such Governmental Entity, gives the other party Parties the opportunity to attend and participate thereat. Neither Buyer nor Seller shall, without the prior written consent from such other party, (i) take any action that has the effect of extending any waiting period under the HSR Act or comparable period under any other Competition Law, including withdrawing or re-filing any notice, reports, or other submissions, or (ii) enter into any agreement with the U.S. Department of Justice or the U.S. Federal Trade Commission or any other Governmental Entity to voluntarily delay consummation of the transactions contemplated by this Agreement and the Ancillary Agreements.
(e) Subject to applicable Law and except as required by any Governmental Entity, neither Buyer nor Seller shall take any action that would be reasonably likely to prevent or materially delay the receipt of any Governmental Authorizations, Regulatory Approvals or Non-Governmental Consents, in each case, to the extent necessary for the timely consummation of the transactions contemplated by this Agreement and the Ancillary Agreements.
Appears in 1 contract
Samples: Settlement Agreement (Noble Corp)
Efforts to Consummate; Certain Governmental Matters. (a) SellerThe Company, on the one hand, and Buyer, on the other hand, shall, and shall cause their respective Subsidiaries to, use their respective Reasonable Best Efforts commercially reasonable efforts to obtain and to cooperate in obtaining any Governmental Authorizations, Regulatory Approvals and Non-Governmental Consents required in connection with the execution, delivery or performance of this Agreement or any Ancillary Agreement. Notwithstanding In connection with and without limiting the foregoing, each of Buyer and Seller shall make the filings required of it or any of its Affiliates under the HSR Act in connection with this Agreement Buyer, Merger Sub and the transactions contemplated hereby Company shall as soon promptly as reasonably practicable, but in any no event no later than seven ten (710) Business Days after the date hereof hereof, duly file with the United States Federal Trade Commission and request early termination the Antitrust Division of the waiting periodDepartment of Justice the notification and report form required under the HSR Act with respect to the transactions contemplated by this Agreement. Subject to Section 6.2(b), and shall make the filings required of it or any of its Affiliates under any other Competition Law as promptly as reasonably practicable. All filing fees payable to any Governmental Entity in connection with such filings and notifications shall be paid by Buyer. The parties hereby agree to diligently pursue termination of the waiting periods under the HSR Act or any other Competition Competition/Investment Law (including promptly responding to any requests for additional information). Each party shall use its Reasonable Best Efforts reasonable best efforts to cooperate with the other party in such other party’s efforts to obtain any Non-Governmental Consents as are required in connection with the consummation of the transactions contemplated hereby. Notwithstanding anything Each of Buyer, Merger Sub and the Company agree to take commercially reasonable steps to avoid or eliminate each and every impediment under the HSR Act or any other Competition/Investment Law that is asserted by any Governmental Entity with respect to the contrary hereinMerger so as to enable the Merger to occur as expeditiously as possible, neither Buyer nor Seller nor including: (i) the prompt preparation and filing of all forms, registrations and notices required to be filed to consummate the transactions contemplated by this Agreement and the taking of such commercially reasonable actions as are necessary to obtain any requisite approvals, consents, orders, exemptions or waivers by any Governmental Entity or any other Person, including filings pursuant to the HSR Act and any actions necessary to cause the expiration of the notice periods under the HSR Act and (ii) using commercially reasonable efforts to cause the satisfaction of all conditions to the Closing (other than conditions as to the performance by the other Parties of their respective Affiliates obligations) (provided, that the Company shall have any obligation to propose, negotiate, commit to or effect, by consent decree, hold separate order or otherwise, the sale, divestiture or disposition of any assets or businesses (or otherwise take or commit not be obligated to take any such action that limits unless the freedom taking of such action with respect tois expressly conditioned upon the consummation of the Merger and the other transactions contemplated in this Agreement), or its ability to retainin each case, any businesses, product lines, or assets) as may be required in order to obtain any clearance under the HSR Act or any other Competition Competition/Investment Law or to avoid the entry of, or to effect the dissolution of, any injunction, temporary restraining order, or other order in any Litigation Litigation, which would otherwise have the effect of preventing or delaying the consummation of the Merger. Notwithstanding anything to the contrary in this Agreement, nothing in this Agreement shall require Buyer or any of its Affiliates to, and the Company and its Subsidiaries shall not, agree to, any sale, divestiture, license or other disposition of any products, assets or property of the Company and its Subsidiaries if such actions reasonably would be expected (or threatened i) to materially and adversely affect the benefits expected to be instituted)derived by Buyer and its Affiliates from the transactions contemplated by this Agreement or (ii) be material to the Company and its Subsidiaries, and taken as a whole. Further, notwithstanding anything to the contrary in this Agreement, neither Buyer nor Seller nor any of their respective its Affiliates shall be obligated required to litigate agree to any sale, divestiture, license or other disposition whatsoever of any products, assets or property of Buyer or any of the foregoing mattersits Affiliates.
(b) Subject to the terms and conditions set forth in this Agreement, Buyer Buyer, Merger Sub, and Seller the Company shall use, and shall cause their respective Subsidiaries to use, their respective Reasonable Best Efforts commercially reasonable efforts to take or cause to be taken all actions, and do or cause to be done all things, necessary, or reasonably advisable on its part under this Agreement and the Ancillary Agreements and applicable Law to satisfy the conditions to Closing, and to consummate and make effective the transactions contemplated by this Agreement and the Ancillary Agreements as soon as practicable.
(c) Buyer Buyer, Merger Sub, and Seller the Company each shall, upon request by the other and subject to applicable Law and appropriate confidentiality restrictions, furnish the other with all material documentation concerning the Business on the one hand, Company or Buyer, on the other hand, any of its Subsidiaries or Buyer and Merger Sub and such other matters as may be necessary or reasonably advisable in connection with any notices, reports, statements, applications or other filings made by or on behalf of Buyer, Seller or the Company, or any of their respective Affiliates to any Governmental Entity in connection with the transactions contemplated by this Agreement and the Ancillary Agreements; provided that any such documentation furnished by the parties to one another may be redacted to the extent necessary, either to comply with applicable Law, including Competition Law, Law or to protect the confidentiality of any information that is confidential to a third party in such documentation where if furnished would not materially facilitate the third other party’s consent understanding of the status of matters relating to consummation of the transactions contemplated hereby. In addition, Buyer and the Company may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the disclosure of such documentation is conditioned upon other as “outside counsel only.” Such materials and the redaction information contained therein shall be given only to the outside counsel of the information concernedrecipient and will not be disclosed by such outside counsel to employees, officers or directors of the recipient unless express permission is obtained in advance from the source of the materials or its legal counsel.
(d) Subject to applicable Law or as prohibited by any Governmental Entity, Buyer Buyer, Merger Sub, and Seller the Company each shall keep the other apprised of the status of matters relating to consummation of the transactions contemplated hereby, including (i) promptly notifying the other of any facts, circumstances or other reason that would prevent the receipt of any Regulatory Approvals or the Non-Governmental Consents for the timely consummation of transactions contemplated by this Agreement and the Ancillary Agreements, and (ii) promptly furnishing the other with copies of material notices or other communications received by Buyer Buyer, Merger Sub, or Sellerthe Company, as the case may be, from any third party or any Governmental Entity with respect to the transactions contemplated by this Agreement and the Ancillary Agreements and (iii) permit the other party to review in advance any proposed written communication to any such Governmental Entity and incorporate the other party’s reasonable commentsAgreements; provided that any such notices furnished by the parties to one another may be redacted to the extent necessary, either to comply with applicable Law or to protect the confidentiality of information that if furnished would not materially facilitate the other party’s understanding of the status of matters relating to consummation of the transactions contemplated hereby. None of Seller Buyer, Merger Sub, or Buyer the Company shall permit any of its officers or any other representatives or agents to participate in any meeting or discussion with any Governmental Entity with respect to any filings, investigation or other inquiry relating to the transactions contemplated hereby unless it consults with the other party in advance and, to the extent permitted by such Governmental Entity, gives the other party the opportunity to attend and participate thereat. Neither Buyer nor Seller shall.
(e) Each of Buyer, without Merger Sub and the prior written consent from such other party, Company shall (i) take respond as promptly as practicable under the circumstances to any action that has the effect of extending inquiries received from any Governmental Entity for additional information or documentation and to all inquiries and requests received from any Governmental Entity, (ii) not extend any waiting period under the HSR Act without the prior written consent of the other party (such consent not to be unreasonably withheld, conditioned or comparable period under any other Competition Lawdelayed), including withdrawing or re-filing any notice, reports, or other submissions, or and (iiiii) not enter into any agreement with any Governmental Entity not to consummate the U.S. Department of Justice Merger or the U.S. Federal Trade Commission or any other Governmental Entity to voluntarily delay consummation of the transactions contemplated by this Agreement and without the Ancillary Agreementsprior written consent of the other party (such consent not to be unreasonably withheld, conditioned or delayed).
(ef) As soon as practicable after the Closing Date, Buyer shall, and shall cause the Surviving Corporation and each of its Subsidiaries to, prepare and file all notices, reports, statements, applications and other filings as required by applicable Law or any Governmental Entity or as otherwise customary or advisable under applicable Law as a result of the consummation on the Closing Date of the transactions contemplated hereby.
(g) Subject to applicable Law and except as required by any Governmental Entity, neither Buyer nor Seller none of Buyer, Merger Sub or the Company shall take any action that would be reasonably likely to prevent or materially delay the receipt of any Governmental Authorizations, Regulatory Approvals or Non-Governmental Consents, in each case, to the extent necessary for the timely consummation of the transactions contemplated by this Agreement and the Ancillary Agreements, including, without limitation, entering into any agreement, arrangement or understanding with regard to consummating an acquisition entailing overlapping business products, or consummate any such acquisition.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Endo International PLC)
Efforts to Consummate; Certain Governmental Matters. (a) SellerSubject to Section 5.2(b), on the one hand, and Buyer, on the other hand, shall, Seller and the Company shall cause their respective Subsidiaries to, use their respective Reasonable Best Efforts reasonable best efforts to (i) promptly take, or cause to be taken, all action and to do, or cause to be done, all things necessary, proper or advisable under this Agreement and applicable Law to submit all notifications and to obtain all Government Authorizations that may be or become necessary for its execution and delivery of, and the performance of its obligations pursuant to, this Agreement, (ii) cooperate fully in promptly submitting all notifications and seeking to cooperate in obtaining any obtain all such Governmental Authorizations, Regulatory Approvals and Non-(iii) provide such other information to any Governmental Consents required Entity as such Governmental Entity may reasonably request in connection with the execution, delivery or performance of this Agreement or any Ancillary Agreementherewith. Notwithstanding the foregoing, each of Buyer and Seller shall Each party hereto agrees to make the filings required of it or any of its Affiliates under the HSR Act in connection with this Agreement and the transactions contemplated hereby as soon as practicable, but in any event no later than seven (7) Business Days promptly after the date hereof and request early termination of the waiting period(but in no event later than ten (10) Business Days) its respective filing, and shall make the filings required of it or any of its Affiliates under any other Competition Law as promptly as reasonably practicable. All filing fees payable if necessary, pursuant to any Governmental Entity in connection with such filings and notifications shall be paid by Buyer. The parties hereby agree to diligently pursue termination of the waiting periods under the HSR Act or any other Competition Law (including promptly responding to any requests for additional information). Each party shall use its Reasonable Best Efforts to cooperate with the other party in such other party’s efforts to obtain any Non-Governmental Consents as are required in connection with the consummation of the transactions contemplated hereby. Notwithstanding anything to the contrary herein, neither Buyer nor Seller nor any of their respective Affiliates shall have any obligation to propose, negotiate, commit to or effect, by consent decree, hold separate order or otherwise, the sale, divestiture or disposition of any assets or businesses (or otherwise take or commit to take any action that limits the freedom of action with respect to, or its ability to retain, any businesses, product lines, or assets) in order to obtain any clearance under the HSR Act or any other Competition Law or to avoid the entry of, or to effect the dissolution of, any injunction, temporary restraining order, or other order in any Litigation (or threatened to be instituted), and neither Buyer nor Seller nor any of their respective Affiliates shall be obligated to litigate any of the foregoing matters.
(b) Subject to the terms and conditions set forth in this Agreement, Buyer and Seller shall use, and shall cause their respective Subsidiaries to use, their respective Reasonable Best Efforts to take or cause to be taken all actions, and do or cause to be done all things, necessary, or reasonably advisable on its part under this Agreement and the Ancillary Agreements and applicable Law to satisfy the conditions to Closing, and to consummate and make effective the transactions contemplated by this Agreement and the Ancillary Agreements as soon as practicable.
(c) Buyer and Seller each shall, upon request by the other and subject to applicable Law and appropriate confidentiality restrictions, furnish the other with all material documentation concerning the Business on the one hand, or Buyer, on the other hand, and such other matters as may be necessary or reasonably advisable in connection with any notices, reports, statements, applications or other filings made by or on behalf of Buyer, Seller or any of their respective Affiliates to any Governmental Entity in connection with the transactions contemplated by this Agreement and the Ancillary Agreements; provided that any such documentation furnished by the parties to one another may be redacted to the extent necessary, either to comply with applicable Law, including Competition Law, or to protect the confidentiality of any information that is confidential to a third party in such documentation where the third party’s consent to the disclosure of such documentation is conditioned upon the redaction of the information concerned.
(d) Subject to applicable Law or as prohibited by any Governmental Entity, Buyer and Seller each shall keep the other apprised of the status of matters relating to consummation of the transactions contemplated hereby, including (i) promptly notifying the other of any facts, circumstances or other reason that would prevent the receipt of any Regulatory Approvals or the Non-Governmental Consents for the timely consummation of transactions contemplated by this Agreement and the Ancillary Agreements, (ii) promptly furnishing the other with copies of material notices or other communications received by Buyer or Seller, as the case may be, from any third party or any Governmental Entity with respect to the transactions contemplated by this Agreement and to supply as promptly as practicable to the Ancillary Agreements appropriate Governmental Entities any additional information and documentary material that may be requested pursuant to the HSR Act. Each party hereto agrees to make as promptly as practicable its respective filings and notifications, if any, that are required or advisable under any other applicable Competition/Investment Law and to supply as promptly as practicable to the appropriate Governmental Entities any additional information and documentary material that may be requested pursuant to the applicable Competition/Investment Law.
(iiib) Without limiting the generality of the Buyer, the Seller and the Company’s undertakings pursuant to Section 5.2(a), the Buyer, the Seller, and the Company shall take any and all steps to avoid or eliminate each and every impediment under Competition/Investment Law that may be asserted by any Governmental Entity or private party so as to enable the parties hereto to consummate the transactions contemplated by this Agreement as promptly as practicable, and in any event prior to the Outside Date, including proposing, negotiating, committing to and effecting, by settlement, consent decree, hold separate order, stipulation, undertaking, or otherwise, the sale, divestiture, transfer, or disposition of, or limitation on freedom of action with regard to, the Buyer’s assets, properties or businesses or the Company’s assets, properties or businesses to be acquired by it pursuant hereto, and the entrance into such other arrangements, as are necessary or advisable in order to avoid the entry of, or to have vacated, lifted, reversed or overturned decree, judgment, injunction or other order, whether temporary, preliminary or permanent, that would restrain, delay or prevent the consummation of the transactions contemplated by this Agreement as soon as possible (and in any event before the Outside Date). Notwithstanding anything in this Agreement to the contrary, any proposing, negotiating, committing to and effecting any sale, divestiture, transfer, or disposition of, or limitation on freedom of action with regard to assets, properties or businesses of the Company shall be subject to the consummation of the transactions contemplated by this Agreement, and Seller shall not be required to propose, negotiate, commit to or effect any sale, divestiture, transfer, or disposition of, or limitation on freedom of action with regard to assets, properties or businesses of the Seller other than those of the Purchased Companies. In addition, in the event that any administrative or judicial action or proceeding is instituted (or threatened to be instituted) by any Governmental Entity or by a private party challenging the transactions contemplated by this Agreement, each of the Buyer, the Seller and the Company shall, and shall cause its respective Affiliates to, in each case in accordance with this Section 5.2, cooperate with each other in all respects and to use their respective reasonable best efforts to contest and defend on the merits, any claim asserted in court by any party in order to avoid entry of, or to have vacated or terminated, any decree, judgment, injunction or other order (whether temporary, preliminary or permanent) that would prevent the Closing prior to the Outside Date.
(c) Except as prohibited by Law, each party hereto shall promptly notify the other party of any communication received from, or given by such party or any of its Affiliates to, any Governmental Entity or Person relating to the matters that are the subject of this Agreement and shall permit outside counsel for the other party to review in advance any proposed written communication by such party (and its advisors) to any such Governmental Entity and incorporate the other party’s reasonable comments; provided that any such notices furnished by the parties to one another may be redacted to the extent necessary, either to comply with applicable Law or to protect the confidentiality of information that if furnished would not facilitate the other party’s understanding of the status of matters relating to consummation of the transactions contemplated herebyEntity. None of Seller or Buyer the parties shall permit any of its officers or any other representatives or agents agree to participate in any substantive meeting or discussion conference, whether in person or by telephone, with any Governmental Entity with in respect to of any filings, investigation (including any settlement of the investigation), litigation or other inquiry relating to the transactions contemplated hereby unless it consults with the other party in advance and, to the extent permitted by such Governmental Entity, gives the other party or its outside counsel the opportunity to attend and participate thereatat such meeting. Neither The parties shall coordinate and cooperate fully with each other in exchanging such information and providing such assistance as the other party may reasonably request in connection with the foregoing and in seeking early termination of any applicable waiting periods, including under the HSR Act; provided that the Buyer nor Seller shallshall have the right to direct all matters with any Governmental Entity relating to the transactions contemplated by the Transaction Agreements. The parties shall provide outside counsel for each other party with copies of all correspondence, without filings or communications between them or any of their Representatives, on the prior written consent from such one hand, and any Governmental Entity or members of its staff, on the other partyhand, (i) take with respect to this Agreement and the transactions contemplated by this Agreement; provided that the Buyer will not be required to share with any action that has Person a copy of the effect of extending financial information included in any waiting period filing it makes under the HSR Act or comparable period under in any other Competition Lawattachments thereto. The Buyer and the Seller may, including withdrawing as each deems advisable and necessary, (i) redact or re-filing any noticeremove references concerning the valuation of the businesses of the Company and its Subsidiaries, reports, or other submissions, or and (ii) reasonably designate any competitively sensitive or any confidential business material provided to the other under this Section 5.2(c) as “counsel only” or, as appropriate, as “outside counsel only.”
(d) Prior to the Closing, each of the Buyer and the Company (without limiting Section 5.2) shall not, and shall cause its respective Affiliates not to, enter into a Contract to acquire or license, or acquire or license, any agreement with the U.S. Department assets, businesses or securities of Justice a third party if such acquisition or the U.S. Federal Trade Commission license would or any other Governmental Entity to voluntarily delay consummation of the transactions contemplated by this Agreement and the Ancillary Agreements.
(e) Subject to applicable Law and except as required by any Governmental Entity, neither Buyer nor Seller shall take any action that would reasonably be reasonably likely expected to prevent or materially delay the receipt of any Governmental Authorizations, Regulatory Approvals or Non-Governmental Consents, in each case, to the extent necessary for the timely consummation satisfaction of the transactions contemplated by this Agreement and the Ancillary Agreementsconditions set forth in Section 8.1.
Appears in 1 contract
Samples: Transaction Agreement (Griffon Corp)
