Filings and Authorizations; Consummation. (a) The Buyer and the Company shall, as promptly as reasonably practicable following the date hereof file or supply, or cause to be filed or supplied in connection with the transactions contemplated herein, all filings (and to the extent relevant, draft versions of filings) and briefing papers set forth on Section 8.4 of the Disclosure Letter. The Buyer acknowledges and agrees that it shall pay and shall be solely responsible for the payment of all filing fees required to be paid in respect of any filing contemplated by this Section 7.4. (b) Subject to Section 7.4(d), each of the Parties, as promptly as practicable, shall make, or cause to be made, all other filings and submissions not otherwise addressed under Section 7.4(a), including Antitrust Laws, applicable to it, or to its Subsidiaries or Affiliates, as may be required for it to consummate the transactions contemplated herein and use its reasonable best efforts (which shall not require a Party to make any payment or concession to any Person in connection with obtaining such Person’s consent) to obtain, or cause to be obtained, all other authorizations, approvals, consents and waivers from all Persons and Governmental Authorities necessary to be obtained by it, or its Subsidiaries or Affiliates, in order for it to consummate such transactions. None of the Parties shall (and shall cause their Affiliates not to) (i) consent to any voluntary extension of any statutory deadline or waiting period; (ii) pull and refile any filing made under any Antitrust Laws; or (iii) consent to any other voluntary delay of the consummation of the transactions contemplated by this Agreement at the behest of any Governmental Authority, in each case, without the prior written consent of the other Parties, such consent not to be unreasonably withheld, conditioned or delayed. (c) The Parties shall coordinate and reasonably cooperate with one another in promptly exchanging and providing such information to each other and in making the filings and requests referred to in Sections 7.4(a) and 7.4(b) above. The Parties shall promptly supply such reasonable assistance as may be reasonably requested by any other Party in connection with the foregoing. (d) Notwithstanding anything to the contrary in this Agreement, each Party shall use, and shall cause its Subsidiaries to use, reasonable best efforts to consummate the transactions contemplated by this Agreement prior to the Termination Date. For the Buyer and its Subsidiaries (but not the Seller and its Subsidiaries), “reasonable best efforts” shall include using such efforts to (x) avoid or eliminate each and every impediment, resolve any objection and obtain all consents under any applicable Law (including Antitrust Laws) as promptly as practicable so as to enable the Parties to consummate the transactions contemplated by this Agreement and (y) avoid the entry or to effect the dissolution of, or vacate or lift, any order, objection of any Governmental Authority or cause the termination of any waiting period under applicable Law (including Antitrust Laws) that would otherwise have the effect of preventing, impairing or delaying the Closing, including (i) proposing, negotiating and offering to commit and effect (and if such offer is accepted, committing to and effecting), by order, consent decree, hold separate order, trust, or otherwise, the sale, license, divestiture, disposition or hold separate of such entities, assets, Intellectual Property, businesses, product lines, equity interests, properties or services of the Buyer or its Subsidiaries (including, following the Closing, members of the Company Group), or otherwise offering to take or offering to commit to take any action (including any action that limits their freedom of action, ownership or control with respect to, or their ability to retain or hold, any of the businesses, assets, product lines, equity interests, properties or services of the Buyer or its Subsidiaries or of the Company Group) to the extent legally permissible, and if the offer is accepted, taking or committing to take such action, (ii) terminating, amending, relinquishing, modifying, waiving or assigning existing relationships, ventures or contractual rights, obligations or other arrangements of the Buyer or its Subsidiaries, (iii) changing or modifying, or agreeing not to engage in, any course of conduct regarding future operations, (iv) creating any relationships, ventures, contractual rights, obligations or other arrangements of the Buyer or its Subsidiaries, (v) committing to take any such actions in the foregoing clauses (i), (ii), (iii) or (iv), (vi) entering or offering to enter into agreements and stipulating to the entry of an Order or decree or filing appropriate applications with any Governmental Authority in connection with any of the actions contemplated by the foregoing clauses (i), (ii), (iii) or (iv), and (vii) opposing, and causing its Subsidiaries to oppose, through and including Action on the merits (and all appeals with respect thereto), any Action asserted in court or other forum by any Governmental Authority or other Person in order to avoid entry of, or to have vacated or terminated, any decree, Order or judgment (whether temporary, preliminary or permanent) that would restrain or prevent the Closing by the Termination Date; provided, however, that the Buyer shall not be required to take, or commit or agree to take (or cause its Affiliates to take, or commit or agree to take), any of the foregoing actions to the extent (x) such action involves the assets, properties or rights of the Buyer or any of its Affiliates (other than, following the Closing, the Company and its Subsidiaries), except with respect to actions that are of an administrative or ministerial nature, or (y) such action would have a material adverse effect on the Company Group, taken as a whole, assuming that the Company Group has the same enterprise value and other financial attributes as the Buyer and its Subsidiaries, taken as a whole, as of the date hereof. For the avoidance of doubt, the Buyer shall not require the Seller or member of the Company Group to, and neither the Seller nor any member of the Company Group shall be required to take (x) any action with respect to any Order or any applicable Law that would bind any member of the Company Group prior to the Closing or bind the Seller at any time or (y) any action contemplated by clauses (i) through (vi) of the immediately prior sentence that is not conditioned upon the Closing. In addition and without limiting the other provisions of this Section 7.4, the Buyer shall use reasonable best efforts to defend through litigation, appealing, contesting or otherwise resisting any Action or Order by any Governmental Authority or private party, challenging the transactions contemplated hereby, including to defend through litigation on the merits any claim asserted in court by any Person in order to avoid entry of, or to have vacated or terminated, any Order (whether temporary, preliminary or permanent) that would delay the Closing or prevent the Closing by the Termination Date; provided, however, that such litigation in no way limits the other obligations of the Buyer set forth in this Section 7.4(d). (e) Except as specifically required by this Agreement, the Buyer shall not, and shall cause all of its Subsidiaries not to, acquire or agree to enter into a business combination or otherwise acquire by merging or consolidating with, or by purchasing a substantial portion of the assets of or equity in or otherwise make any investment in, or by any other manner, any Person or portion thereof, or otherwise acquire or agree to acquire or make any investment in any assets, if the entering into of a definitive agreement relating to or the consummation of such acquisition, merger, business combination, consolidation, or investment would or would reasonably be expected to (i) impose any material delay in the obtaining of, or materially increase the risk of not obtaining, any consent, approval, authorization, declaration, waiver, license, franchise, permit, certificate or order of any Governmental Authority necessary to satisfy the conditions to Closing set forth in Section 8.4, Section 8.5, Section 8.6, Section 9.4, Section 9.6 or Section 9.7 to consummate the transactions contemplated hereby or the expiration or termination of any applicable waiting period, (ii) materially increase the risk of any Governmental Authority entering an order prohibiting the consummation of the transactions contemplated hereby, (iii) materially increase the risk of not being able to remove any such order on appeal or otherwise or (iv) increase the risk of any Governmental Authority asserting jurisdiction over the transactions contemplated hereby. Each of the Seller and the Company shall take such actions as set forth on Section 7.4(e)(ii) of the Disclosure Letter in accordance with the terms thereof and, for the avoidance of doubt, the Buyer agrees to the terms and conditions set forth therein. (f) Each Party shall promptly inform the other Parties of any material communication from the Federal Trade Commission, the Department of Justice or any other Governmental Authority regarding any of the transactions contemplated by this Agreement. Each Party will, and will cause its Affiliates to, provide the other Parties with copies of all substantive correspondence, filings or communications between them or any of their Representatives, on the one hand, and any Governmental Authority or members of its staff, on the other hand, with respect to this Agreement and the transactions contemplated by this Agreement; provided, however, that materials may be redacted as necessary to (i) comply with contractual arrangements and (ii) address reasonable attorney-client or other privilege or confidentiality concerns. If any Party or any Affiliate thereof receives a request for additional information or documentary material from any such Governmental Authority with respect to the transactions contemplated by this Agreement, then such Party will use its reasonable best efforts to make, or cause to be made, as soon as reasonably practicable and after consultation with the other Party, an appropriate response in compliance with such request. Each Party will advise the other Parties promptly in respect of any understandings, undertakings or agreements (oral or written) that any Party proposes, in its sole discretion, to make or enter into with the Federal Trade Commission, the Department of Justice or any other Governmental Authority in connection with the transactions contemplated by this Agreement, and give such other Parties the opportunity to attend and participate at any meetings with respect thereto. None of the Parties (including their respective Subsidiaries) will agree to participate in any substantive meeting, telephone call or discussion with a Governmental Authority in respect of any submissions, filings, investigation (including any settlement of the investigation), litigation or other inquiry relating to the matters that are the subject of this Agreement unless it consults with the other Parties in advance (in each case to the extent reasonably practicable) and, except as may be prohibited by a Governmental Authority or by any Law, will permit authorized Representatives of the other Parties to be present at each substantive meeting, telephone call or discussion.
Appears in 2 contracts
Samples: Equity Purchase Agreement (Sonoco Products Co), Equity Purchase Agreement (Sonoco Products Co)
Filings and Authorizations; Consummation. (a) The Buyer and the Company shall, as promptly as reasonably practicable following the date hereof file or supply, or cause to be filed or supplied in connection with the transactions contemplated herein, all filings (and to the extent relevant, draft versions of filings) and briefing papers set forth on Section 8.4 Each of the Disclosure Letter. The Buyer acknowledges and agrees that it shall pay and shall be solely responsible for the payment of all filing fees required to be paid in respect of any filing contemplated by this Section 7.4.
(b) Subject to Section 7.4(d), each of the Partiesparties hereto, as promptly as practicable, shall make, or cause to be made, all other filings and submissions not otherwise addressed under Section 7.4(a)Antitrust Laws and any other laws, including Antitrust Laws, rules and regulations applicable to it, or to its Subsidiaries or and Affiliates, as may be required for it to consummate the transactions contemplated herein and use its commercially reasonable best efforts (which shall not require a Party any party to make any payment or concession to any Person in connection with obtaining such Person’s consent) to obtain, or cause to be obtained, all other authorizations, approvals, consents and waivers from all Persons and Governmental Authorities and other Persons necessary to be obtained by it, or its Subsidiaries or Affiliates, in order for it to consummate such transactions. None of the Parties shall (and shall cause their Affiliates not to) (i) consent to any voluntary extension of any statutory deadline or waiting period; (ii) pull and refile any filing made under any Antitrust Laws; or (iii) consent to any other voluntary delay of the consummation of the transactions contemplated by this Agreement at the behest of any Governmental Authority, in each case, without the prior written consent of the other Parties, such consent not to be unreasonably withheld, conditioned or delayed.
(cb) The Parties parties hereto shall coordinate and reasonably cooperate with one another in promptly exchanging and providing such information to each other and in making the filings and requests referred to in Sections 7.4(a) and 7.4(bparagraph (a) above. The Parties parties hereto shall promptly supply such reasonable assistance as may be reasonably requested by any other Party party hereto in connection with the foregoing.
(d) Notwithstanding anything to the contrary in this Agreement, each Party shall use, and shall cause its Subsidiaries to use, reasonable best efforts to consummate the transactions contemplated by this Agreement prior to the Termination Date. For the Buyer and its Subsidiaries (but not the Seller and its Subsidiaries), “reasonable best efforts” shall include using such efforts to (x) avoid or eliminate each and every impediment, resolve any objection and obtain all consents under any applicable Law (including Antitrust Laws) as promptly as practicable so as to enable the Parties to consummate the transactions contemplated by this Agreement and (y) avoid the entry or to effect the dissolution of, or vacate or lift, any order, objection of any Governmental Authority or cause the termination of any waiting period under applicable Law (including Antitrust Laws) that would otherwise have the effect of preventing, impairing or delaying the Closing, including (i) proposing, negotiating and offering to commit and effect (and if such offer is accepted, committing to and effecting), by order, consent decree, hold separate order, trust, or otherwise, the sale, license, divestiture, disposition or hold separate of such entities, assets, Intellectual Property, businesses, product lines, equity interests, properties or services of the Buyer or its Subsidiaries (including, following the Closing, members of the Company Group), or otherwise offering to take or offering to commit to take any action (including any action that limits their freedom of action, ownership or control with respect to, or their ability to retain or hold, any of the businesses, assets, product lines, equity interests, properties or services of the Buyer or its Subsidiaries or of the Company Group) to the extent legally permissible, and if the offer is accepted, taking or committing to take such action, (ii) terminating, amending, relinquishing, modifying, waiving or assigning existing relationships, ventures or contractual rights, obligations or other arrangements of the Buyer or its Subsidiaries, (iii) changing or modifying, or agreeing not to engage in, any course of conduct regarding future operations, (iv) creating any relationships, ventures, contractual rights, obligations or other arrangements of the Buyer or its Subsidiaries, (v) committing to take any such actions in the foregoing clauses (i), (ii), (iii) or (iv), (vi) entering or offering to enter into agreements and stipulating to the entry of an Order or decree or filing appropriate applications with any Governmental Authority in connection with any of the actions contemplated by the foregoing clauses (i), (ii), (iii) or (iv), and (vii) opposing, and causing its Subsidiaries to oppose, through and including Action on the merits (and all appeals with respect thereto), any Action asserted in court or other forum by any Governmental Authority or other Person in order to avoid entry of, or to have vacated or terminated, any decree, Order or judgment (whether temporary, preliminary or permanent) that would restrain or prevent the Closing by the Termination Date; provided, however, that the Buyer shall not be required to take, or commit or agree to take (or cause its Affiliates to take, or commit or agree to take), any of the foregoing actions to the extent (x) such action involves the assets, properties or rights of the Buyer or any of its Affiliates (other than, following the Closing, the Company and its Subsidiaries), except with respect to actions that are of an administrative or ministerial nature, or (y) such action would have a material adverse effect on the Company Group, taken as a whole, assuming that the Company Group has the same enterprise value and other financial attributes as the Buyer and its Subsidiaries, taken as a whole, as of the date hereof. For the avoidance of doubt, the Buyer shall not require the Seller or member of the Company Group to, and neither the Seller nor any member of the Company Group shall be required to take (x) any action with respect to any Order or any applicable Law that would bind any member of the Company Group prior to the Closing or bind the Seller at any time or (y) any action contemplated by clauses (i) through (vi) of the immediately prior sentence that is not conditioned upon the Closing. In addition and without limiting the other provisions of this Section 7.4, the Buyer shall use reasonable best efforts to defend through litigation, appealing, contesting or otherwise resisting any Action or Order by any Governmental Authority or private party, challenging the transactions contemplated hereby, including to defend through litigation on the merits any claim asserted in court by any Person in order to avoid entry of, or to have vacated or terminated, any Order (whether temporary, preliminary or permanent) that would delay the Closing or prevent the Closing by the Termination Date; provided, however, that such litigation in no way limits the other obligations of the Buyer set forth in this Section 7.4(d).
(e) Except as specifically required by this Agreement, the Buyer shall not, and shall cause all of its Subsidiaries not to, acquire or agree to enter into a business combination or otherwise acquire by merging or consolidating with, or by purchasing a substantial portion of the assets of or equity in or otherwise make any investment in, or by any other manner, any Person or portion thereof, or otherwise acquire or agree to acquire or make any investment in any assets, if the entering into of a definitive agreement relating to or the consummation of such acquisition, merger, business combination, consolidation, or investment would or would reasonably be expected to (i) impose any material delay in the obtaining of, or materially increase the risk of not obtaining, any consent, approval, authorization, declaration, waiver, license, franchise, permit, certificate or order of any Governmental Authority necessary to satisfy the conditions to Closing set forth in Section 8.4, Section 8.5, Section 8.6, Section 9.4, Section 9.6 or Section 9.7 to consummate the transactions contemplated hereby or the expiration or termination of any applicable waiting period, (ii) materially increase the risk of any Governmental Authority entering an order prohibiting the consummation of the transactions contemplated hereby, (iii) materially increase the risk of not being able to remove any such order on appeal or otherwise or (iv) increase the risk of any Governmental Authority asserting jurisdiction over the transactions contemplated hereby. Each of the Seller and the Company shall take such actions as set forth on Section 7.4(e)(ii) of the Disclosure Letter in accordance with the terms thereof and, for the avoidance of doubt, the Buyer agrees to the terms and conditions set forth therein.
(fc) Each Party party hereto shall promptly inform the other Parties parties of any material communication from the Federal Trade Commission, the Department of Justice or any other Governmental Authority regarding any of the transactions contemplated by this Agreement. Each Party will, and will cause its Affiliates to, provide the other Parties with copies of all substantive correspondence, filings or communications between them or any of their Representatives, on the one hand, and any Governmental Authority or members of its staff, on the other hand, with respect to this Agreement and the transactions contemplated by this Agreement; provided, however, that materials may be redacted as necessary to (i) comply with contractual arrangements and (ii) address reasonable attorney-client or other privilege or confidentiality concerns. If any Party party hereto or any Affiliate thereof receives a request for additional information or documentary material from any such Governmental Authority with respect to the transactions contemplated by this Agreement, then such Party party will use its reasonable best efforts endeavor in good faith to make, or cause to be made, as soon as reasonably practicable and after consultation with the other Partyparties, an appropriate response in compliance with such request. Each Party The Buyer will advise the other Parties Sellers’ Representative promptly in respect of any understandings, undertakings or agreements (whether oral or written) that any Party proposes, in its sole discretion, which the Buyer proposes to make or enter into with the Federal Trade Commission, the Department of Justice or any other Governmental Authority in connection with the transactions contemplated by this Agreement, and give such other Parties the opportunity to attend and participate at any meetings with respect thereto. None of the Parties (including their respective Subsidiaries) will agree to participate in any substantive meeting, telephone call or discussion with a Governmental Authority in respect of any submissions, filings, investigation (including any settlement of the investigation), litigation or other inquiry relating to the matters that are the subject of this Agreement unless it consults with the other Parties in advance (in each case to the extent reasonably practicable) and, except as may be prohibited by a Governmental Authority or by any Law, will permit authorized Representatives of the other Parties to be present at each substantive meeting, telephone call or discussion.
Appears in 2 contracts
Samples: Purchase Agreement, Purchase Agreement (Fly Leasing LTD)
Filings and Authorizations; Consummation. (a) The Buyer Each party hereto shall use commercially reasonable efforts, and shall cooperate with the Company shallother parties to this Agreement, to obtain as promptly as practicable any and all authorizations, approvals, orders, consents, licenses, waivers, no action acknowledgments, certificates, permits, registrations, qualifications or other rights and privileges of any Governmental Authority or third party (collectively, “Consents”) necessary or advisable for the performance of its obligations under, or the consummation of the transactions contemplated by, this Agreement, including Sellers’ Approvals, the Target Companies Approvals and Buyers’ Approvals.
(b) Each party hereto agrees that it shall consult with the other parties to this Agreement with respect to the obtaining of all material Consents necessary or advisable for the performance of its obligations under, or the consummation of the transactions contemplated by, this Agreement, including providing copies of all filings made and other documents exchanged in connection with obtaining such Consents to the extent permitted by applicable Law, and each party shall keep the other parties to this Agreement apprised of the status of material matters relating to the performance of its obligations under, or the consummation of the transactions contemplated by, this Agreement.
(c) Each party hereto agrees, upon the written request of any other party to this Agreement, to furnish such other party with all information concerning itself or such other matters as may be reasonably necessary or advisable in connection with any filing, notice or application made by or on behalf of such other party to any Governmental Authority to the extent permitted by applicable Law.
(d) Subject to the terms and conditions set forth in this Agreement, without limiting the generality of the undertakings pursuant to this Section 7.4:
(i) Sellers and Buyers (A) shall cooperate, and use their respective commercially reasonable efforts to take, or cause to be taken, all action, and to do, or cause to be done, all things necessary under applicable Laws to consummate the transactions contemplated by this Agreement, but in any event will make the filings required by Annex 8.5(h) with the applicable Governmental Authorities no later than September 11, 2020 and will promptly make all other filings and obtaining all licenses, permits, consents, approvals, authorizations, qualifications and Orders of Governmental Authorities and other third parties necessary to consummate the transactions contemplated by this Agreement, and (B) agree to provide to each and every Governmental Authority with jurisdiction over enforcement of any applicable antitrust or Competition Law (“Antitrust Governmental Authority”), as promptly as reasonably practicable following and in any event within the date hereof file applicable legal time periods, any information and documents requested by any Antitrust Governmental Authority that are legally required to be provided or supplyotherwise reasonably necessary, proper or advisable to permit consummation of the transactions contemplated hereby;
(ii) Buyers agree to use best efforts, as promptly as reasonably practicable, to take, or cause to be filed taken, in the event that any permanent, preliminary or supplied in connection with the transactions contemplated hereintemporary injunction, all filings (and to the extent relevantdecision, draft versions of filings) and briefing papers set forth on Section 8.4 of the Disclosure Letter. The Buyer acknowledges and agrees that it shall pay and shall be solely responsible for the payment of all filing fees required order, judgment, determination or decree is entered or issued, or becomes reasonably foreseeable to be paid entered or issued, in respect any proceeding or inquiry of any filing contemplated by this Section 7.4.
(b) Subject to Section 7.4(d), each of the Parties, as promptly as practicable, shall make, or cause to be made, all other filings and submissions not otherwise addressed under Section 7.4(a), including Antitrust Laws, applicable to it, or to its Subsidiaries or Affiliates, as may be required for it to consummate the transactions contemplated herein and use its reasonable best efforts (which shall not require a Party to kind that would make any payment or concession to any Person in connection with obtaining such Person’s consent) to obtain, or cause to be obtained, all other authorizations, approvals, consents and waivers from all Persons and Governmental Authorities necessary to be obtained by it, or its Subsidiaries or Affiliates, in order for it to consummate such transactions. None of the Parties shall (and shall cause their Affiliates not to) (i) consent to any voluntary extension of any statutory deadline or waiting period; (ii) pull and refile any filing made under any Antitrust Laws; or (iii) consent to any other voluntary delay of the consummation of the transactions contemplated by this Agreement at the behest of any Governmental Authority, in each case, without the prior written consent of the other Parties, such consent not to be unreasonably withheld, conditioned or delayed.
(c) The Parties shall coordinate and reasonably cooperate with one another in promptly exchanging and providing such information to each other and in making the filings and requests referred to in Sections 7.4(a) and 7.4(b) above. The Parties shall promptly supply such reasonable assistance as may be reasonably requested by any other Party in connection with the foregoing.
(d) Notwithstanding anything to the contrary in this Agreement, each Party shall use, and shall cause its Subsidiaries to use, reasonable best efforts to consummate the transactions contemplated by this Agreement prior to the Termination Date. For the Buyer and its Subsidiaries (but not the Seller and its Subsidiaries), “reasonable best efforts” shall include using such efforts to (x) avoid or eliminate each and every impediment, resolve any objection and obtain all consents under any applicable Law (including Antitrust Laws) as promptly as practicable so as to enable the Parties to consummate the transactions contemplated by this Agreement and (y) avoid the entry or to effect the dissolution of, or vacate or lift, any order, objection of any Governmental Authority or cause the termination of any waiting period under applicable Law (including Antitrust Laws) that would otherwise have the effect of preventing, impairing or delaying the Closing, including (i) proposing, negotiating and offering to commit and effect (and if such offer is accepted, committing to and effecting), by order, consent decree, hold separate order, trust, or otherwise, the sale, license, divestiture, disposition or hold separate of such entities, assets, Intellectual Property, businesses, product lines, equity interests, properties or services of the Buyer or its Subsidiaries (including, following the Closing, members of the Company Group), or otherwise offering to take or offering to commit to take any action (including any action that limits their freedom of action, ownership or control with respect to, or their ability to retain or hold, any of the businesses, assets, product lines, equity interests, properties or services of the Buyer or its Subsidiaries or of the Company Group) to the extent legally permissible, and if the offer is accepted, taking or committing to take such action, (ii) terminating, amending, relinquishing, modifying, waiving or assigning existing relationships, ventures or contractual rights, obligations or other arrangements of the Buyer or its Subsidiaries, (iii) changing or modifying, or agreeing not to engage in, any course of conduct regarding future operations, (iv) creating any relationships, ventures, contractual rights, obligations or other arrangements of the Buyer or its Subsidiaries, (v) committing to take any such actions in the foregoing clauses (i), (ii), (iii) or (iv), (vi) entering or offering to enter into agreements and stipulating to the entry of an Order or decree or filing appropriate applications with any Governmental Authority in connection with any of the actions contemplated by the foregoing clauses (i), (ii), (iii) or (iv), and (vii) opposing, and causing its Subsidiaries to oppose, through and including Action on the merits (and all appeals with respect thereto), any Action asserted in court or other forum by any Governmental Authority or other Person in order to avoid entry of, or to have vacated or terminated, any decree, Order or judgment (whether temporary, preliminary or permanent) that would restrain or prevent the Closing by the Termination Date; provided, however, that the Buyer shall not be required to take, or commit or agree to take (or cause its Affiliates to take, or commit or agree to take), any of the foregoing actions to the extent (x) such action involves the assets, properties or rights of the Buyer or any of its Affiliates (other than, following the Closing, the Company and its Subsidiaries), except with respect to actions that are of an administrative or ministerial nature, or (y) such action would have a material adverse effect on the Company Group, taken as a whole, assuming that the Company Group has the same enterprise value and other financial attributes as the Buyer and its Subsidiaries, taken as a whole, as of the date hereof. For the avoidance of doubt, the Buyer shall not require the Seller or member of the Company Group to, and neither the Seller nor any member of the Company Group shall be required to take (x) any action with respect to any Order or any applicable Law that would bind any member of the Company Group prior to the Closing or bind the Seller at any time or (y) any action contemplated by clauses (i) through (vi) of the immediately prior sentence that is not conditioned upon the Closing. In addition and without limiting the other provisions of this Section 7.4, the Buyer shall use reasonable best efforts to defend through litigation, appealing, contesting or otherwise resisting any Action or Order by any Governmental Authority or private party, challenging the transactions contemplated hereby, including to defend through litigation on the merits any claim asserted in court by any Person in order to avoid entry of, or to have vacated or terminated, any Order (whether temporary, preliminary or permanent) that would delay the Closing or prevent the Closing by the Termination Date; provided, however, that such litigation in no way limits the other obligations of the Buyer set forth in this Section 7.4(d).
(e) Except as specifically required by this Agreement, the Buyer shall not, and shall cause all of its Subsidiaries not to, acquire or agree to enter into a business combination or otherwise acquire by merging or consolidating with, or by purchasing a substantial portion of the assets of or equity in or otherwise make any investment in, or by any other manner, any Person or portion thereof, or otherwise acquire or agree to acquire or make any investment in any assets, if the entering into of a definitive agreement relating to or the consummation of such acquisition, merger, business combination, consolidation, or investment would or would reasonably be expected to (i) impose any material delay in the obtaining of, or materially increase the risk of not obtaining, any consent, approval, authorization, declaration, waiver, license, franchise, permit, certificate or order of any Governmental Authority necessary to satisfy the conditions to Closing set forth in Section 8.4, Section 8.5, Section 8.6, Section 9.4, Section 9.6 or Section 9.7 to consummate the transactions contemplated hereby or the expiration or termination of any applicable waiting period, (ii) materially increase the risk of any Governmental Authority entering an order prohibiting the consummation of the transactions contemplated hereby, (iii) materially increase the risk of not being able to remove any such order on appeal or otherwise or (iv) increase the risk of any Governmental Authority asserting jurisdiction over the transactions contemplated hereby. Each of the Seller and the Company shall take such actions as set forth on Section 7.4(e)(ii) of the Disclosure Letter in accordance with the terms thereof andof this Agreement unlawful or that would delay, for the avoidance of doubtrestrain, the Buyer agrees to the terms and conditions set forth therein.
(f) Each Party shall promptly inform the other Parties of any material communication from the Federal Trade Commissionprevent, the Department of Justice enjoin or any other Governmental Authority regarding any otherwise prohibit consummation of the transactions contemplated by this Agreement. Each Party will, any and will cause its Affiliates toall steps reasonably necessary, provide the other Parties with copies of all substantive correspondenceproper or advisable to resist, filings vacate, modify, reverse, suspend, prevent, eliminate or communications between them remove such actual, anticipated or any of their Representativesthreatened injunction, decision, order, judgment, determination or decree so as to permit such consummation on a schedule as close as possible to that contemplated by this Agreement;
(iii) Buyers, on the one hand, and any Governmental Authority or members of its staffSellers, on the other hand, with respect to this Agreement and the transactions contemplated by this Agreement; providedwill bear their respective (A) filing fees imposed under applicable Competition Laws, however, that materials may be redacted as necessary to (i) comply with contractual arrangements and (iiB) address reasonable attorney-client or other privilege or confidentiality concerns. If any Party or any Affiliate thereof receives a request for additional information or documentary material from any such Governmental Authority with respect to the transactions contemplated by this Agreement, then such Party will use its reasonable best efforts to make, or cause to be made, as soon as reasonably practicable and after consultation with the other Party, an appropriate response in compliance with such request. Each Party will advise the other Parties promptly in respect of any understandings, undertakings or agreements (oral or written) that any Party proposes, in its sole discretion, to make or enter into with the Federal Trade Commission, the Department of Justice or any other Governmental Authority attorneys’ fees in connection with the transactions contemplated by this Agreement, and give such other Parties the opportunity to attend and participate at any meetings with respect thereto. None of the Parties (including their respective Subsidiaries) will agree to participate in any substantive meeting, telephone call or discussion with a Governmental Authority in respect preparation of any submissions, such filings, investigation (including any settlement of the investigation), litigation or other inquiry relating to the matters that are the subject of this Agreement unless it consults with the other Parties in advance (in each case to the extent reasonably practicable) and, except as may be prohibited by a Governmental Authority or by any Law, will permit authorized Representatives of the other Parties to be present at each substantive meeting, telephone call or discussion.
Appears in 2 contracts
Samples: Purchase and Sale Agreement (Tredegar Corp), Purchase and Sale Agreement (Tredegar Corp)
Filings and Authorizations; Consummation. (a) The Buyer Subject to the terms and the Company shallconditions herein, as promptly as reasonably practicable following the date hereof file or supplyeach party hereto agrees to use its reasonable best efforts to take, or cause to be filed taken, all action, and to do, or supplied cause to be done as promptly as practicable, all things necessary, proper and advisable under applicable Law to consummate and make effective as promptly as practicable the Mergers. Subject to appropriate confidentiality protections, each party hereto shall furnish to the other parties such necessary information and reasonable assistance as such other party may reasonably request in connection with the transactions contemplated herein, all filings (and to the extent relevant, draft versions of filings) and briefing papers set forth on Section 8.4 of the Disclosure Letter. The Buyer acknowledges and agrees that it shall pay and shall be solely responsible for the payment of all filing fees required to be paid in respect of any filing contemplated by this Section 7.4foregoing.
(b) Subject to Section 7.4(d), each Each of the Parties, as promptly as practicable, parties hereto shall make, or cause to be made, all other filings and submissions not otherwise addressed under Section 7.4(a), including Antitrust Laws, applicable to it, or to its Subsidiaries or Affiliates, as may be required for it to consummate the transactions contemplated herein cooperate with one another in good faith and use its reasonable best efforts to prepare all necessary documentation (which including furnishing all information required under the HSR Act or other Competition Laws) to effect promptly all necessary filings and to obtain all consents, waivers and approvals necessary to consummate the transactions contemplated by this Agreement. Subject to applicable Law and the instructions of any Governmental Authority, each party hereto shall not require a Party (i) provide to the other parties copies of all correspondence between it (or its advisors) and any Governmental Antitrust Entity relating to the Mergers or any of the matters described in this Section 6.4, and (ii) promptly inform the other parties hereto of any oral communication with, and provide copies of written communications with, any Governmental Authority regarding any such filings or any such transaction. No party hereto shall independently participate in any formal meeting with any Governmental Authority in respect of any such filings, investigation or other inquiry without giving the other parties hereto prior notice of the meeting and, to the extent permitted by such Governmental Authority, the opportunity to attend and/or participate. Subject to applicable Law, the parties hereto will consult and cooperate with one another in connection with any analyses, appearances, presentations, memoranda, briefs, arguments, opinions and proposals made or submitted by or on behalf of any party hereto relating to Actions under the HSR Act or other Competition Laws.
(c) Without limiting the generality of the undertakings pursuant to this Section 6.4, the parties hereto shall (i) as promptly as practicable, but in no event later than five (5) Business Days after the date hereof, submit all filings required under the HSR Act and (ii) as promptly as practicable, but in no event later than ten (10) Business Days after the date hereof, submit all filings required under the Competition Laws listed in Section 6.4(c) of the Company Disclosure Letter. The parties hereto shall respond as promptly as practicable to any request for additional information or documentary material that may be made and under the HSR Act and any requests for information under any other applicable Competition Law. Parent and the Company shall each be responsible for fifty percent (50%) of the fees associated with filings required by the HSR Act and any other applicable Competition Law regardless of whether Parent, the Company or any of the Stockholder or any of their respective Affiliates is required to make the payment, provided that any such amount required to be paid by the Company prior to Closing that remains unpaid at the Closing shall be deemed a Transaction Expense for purposes of this Agreement.
(d) Each of the parties hereto shall use its reasonable best efforts to take any and all actions necessary to resolve such objections, if any, as may be asserted by any Governmental Antitrust Entity with respect to the Mergers under any Competition Law. In connection therewith, if any Action is instituted (or threatened to be instituted) challenging the Mergers as in violation of any Competition Law, each of the parties hereto shall cooperate and use its reasonable best efforts to contest and resist any such Action, and to have vacated, lifted, reversed or overturned any Order whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents or restricts consummation of the Mergers. In connection with and without limiting the foregoing, each of Parent and the Company agrees to use its respective reasonable best efforts to promptly avoid or eliminate each and every impediment under the HSR Act and any other Competition Laws that may be asserted by any Governmental Antitrust Entity, so as to enable the parties hereto to consummate the Mergers as expeditiously as possible; provided, however, that, notwithstanding anything in this Section 6.4 to the contrary, neither the Company nor any of its Subsidiaries shall commit to the payment of any fee, penalty or concession to other consideration or make any Person other concession, waiver or amendment under any Contract in connection with obtaining such Person’s consent) to obtain, or cause to be obtained, all other authorizations, approvals, consents and waivers from all Persons and Governmental Authorities necessary to be obtained by it, or its Subsidiaries or Affiliates, in order for it to consummate such transactionsany consent without the prior written consent of Parent. None Without limiting the generality of the Parties shall (foregoing, but on the terms and shall cause their Affiliates not to) subject to the conditions of this Agreement, including Section 6.4(e), Parent shall:
(i) consent at Parent’s sole cost, use its reasonable best efforts to comply with all restrictions and conditions, if any, imposed or required by any voluntary extension of Governmental Antitrust Entity with respect to Competition Laws in connection with granting any statutory deadline necessary clearance or terminating any applicable waiting period; (ii) pull and refile any filing made under any Antitrust Laws; , in each case, to the extent a failure to so comply would reasonably be expected to delay, restrain, prevent, enjoin or (iii) consent to any other voluntary delay of otherwise prohibit or make unlawful the consummation of the transactions contemplated by this Agreement at the behest of any Governmental Authority, in each case, without the prior written consent of the other Parties, such consent not to be unreasonably withheld, conditioned or delayed.
(c) The Parties shall coordinate and reasonably cooperate with one another in promptly exchanging and providing such information to each other and in making the filings and requests referred to in Sections 7.4(a) and 7.4(b) above. The Parties shall promptly supply such reasonable assistance as may be reasonably requested by any other Party in connection with the foregoing.
(d) Notwithstanding anything to the contrary in this Agreement, each Party shall use, and shall cause its Subsidiaries to use, reasonable best efforts to consummate the transactions contemplated by this Agreement prior to the Termination Date. For the Buyer and its Subsidiaries (but not the Seller and its Subsidiaries), “reasonable best efforts” shall include using such efforts to (x) avoid or eliminate each and every impediment, resolve any objection and obtain all consents under any applicable Law (including Antitrust Laws) as promptly as practicable so as to enable the Parties to consummate the transactions contemplated by this Agreement and (y) avoid the entry or to effect the dissolution of, or vacate or lift, any order, objection of any Governmental Authority or cause the termination of any waiting period under applicable Law (including Antitrust Laws) that would otherwise have the effect of preventing, impairing or delaying the Closing, including (i1) proposing, negotiating and negotiating, offering to commit and effect (and if such offer is accepted, committing to and effecting)) to sell, by order, consent decreedivest, hold separate order, trust, or otherwise, the saleseparate, license, divestiturecause a third party to acquire, disposition or hold separate of such entitiesotherwise dispose of, assetsany Subsidiary, Intellectual Propertyoperations, divisions, businesses, product lines, equity interests, properties customers or services assets of the Buyer Company or its Subsidiaries contemporaneously with or after the Closing and regardless as to whether a third party buyer has been identified or approved prior to the Closing (including, following the Closing, members of the Company Groupa “Divestiture”), or otherwise offering to take or offering to commit to take any action (including any action that limits their freedom of action, ownership or control with respect to, or their ability to retain or hold, any of the businesses, assets, product lines, equity interests, properties or services of the Buyer or its Subsidiaries or of the Company Group2) to the extent legally permissible, and if the offer is accepted, taking or committing to take such actionother actions that may limit Parent, its Affiliates, or any of its or their respective Subsidiaries’ freedom of action with respect to, or its ability to retain, the Company or any Company Subsidiary or one or more of the their respective operations, divisions, businesses, products lines, customers or assets, (3) entering into any Order to effectuate any of the foregoing and (4) terminating any Contract or other business relationship of the Company or any of its Subsidiaries as may be required to obtain any necessary clearance of any Governmental Antitrust Entity or to obtain termination of any applicable waiting period under any Competition Laws (such Divestiture or other action described in clauses (1) through (4), a “Regulatory Remedy”), in each case, if such Regulatory Remedy should be reasonably necessary, proper or advisable so as to permit the consummation of the transactions contemplated by this Agreement on a schedule as close as possible to that contemplated herein; and
(ii) not extend any waiting period or enter into any agreement or understanding with any Governmental Antitrust Entity without the prior written consent of the Company.
(e) Notwithstanding anything herein to the contrary, neither this Section 6.4 nor the “reasonable best efforts” standard herein shall require, or be construed to require, Parent or any of its Subsidiaries or other Affiliates to (i) waive any of the conditions set forth in Article 7, (ii) terminatingtake, amending, relinquishing, modifying, waiving effect or assigning existing relationships, ventures or contractual rights, obligations or other arrangements agree to any Regulatory Remedy unless such Regulatory Remedy is conditioned upon the occurrence of the Buyer Closing or its Subsidiaries, is effective on or after the Closing or (iii) changing or modifying, or agreeing not to engage in, any course of conduct regarding future operations, (iv) creating any relationships, ventures, contractual rights, obligations or other arrangements of the Buyer or its Subsidiaries, (v) committing to take any such actions in the foregoing clauses (i), (ii), (iii) or (iv), (vi) entering or offering to enter into agreements and stipulating to the entry of an Order or decree or filing appropriate applications with any Governmental Authority in connection with any of the actions contemplated by the foregoing clauses (i), (ii), (iii) or (iv), and (vii) opposing, and causing its Subsidiaries to oppose, through and including Action on the merits (and all appeals with respect thereto), any Action asserted in court or other forum by any Governmental Authority or other Person in order to avoid entry of, or to have vacated or terminated, any decree, Order or judgment (whether temporary, preliminary or permanent) that would restrain or prevent the Closing by the Termination Date; provided, however, that the Buyer shall not be required to take, or commit effect or agree to take (any Regulatory Remedy that individually or cause its Affiliates in the aggregate with any other Regulatory Remedy to takebe taken, effected or commit or agree agreed to, would reasonably be expected to take), any of the foregoing actions to the extent (x) such action involves the assets, properties or rights of the Buyer or any of its Affiliates (other than, following the Closing, the Company and its Subsidiaries), except with respect to actions that are of an administrative or ministerial nature, or (y) such action would have a material adverse effect on the Company Groupbusiness, taken as a wholeoperations, assuming that financial condition or results of operations of the Company Group has the same enterprise value and other financial attributes as the Buyer and its Subsidiaries, taken as a whole, as it being understood that, for purposes of the date hereof. For the avoidance of doubtclause (iii), the Buyer any proceeds received, or expected to be received, from effecting a Regulatory Remedy shall not require the Seller or member of the Company Group to, and neither the Seller nor any member of the Company Group shall be required to take (x) any action with respect to any Order or any applicable Law that would bind any member of the Company Group prior to the Closing or bind the Seller at any time or (y) any action contemplated by clauses (i) through (vi) of the immediately prior sentence that is not conditioned upon the Closing. In addition and without limiting the other provisions of this Section 7.4, the Buyer shall use reasonable best efforts to defend through litigation, appealing, contesting or otherwise resisting any Action or Order by any Governmental Authority or private party, challenging the transactions contemplated hereby, including to defend through litigation on the merits any claim asserted taken into consideration in court by any Person in order to avoid entry of, or to have vacated or terminated, any Order (whether temporary, preliminary or permanent) that would delay the Closing or prevent the Closing by the Termination Date; provided, however, that making such litigation in no way limits the other obligations of the Buyer set forth in this Section 7.4(d)determination.
(e) Except as specifically required by this Agreement, the Buyer shall not, and shall cause all of its Subsidiaries not to, acquire or agree to enter into a business combination or otherwise acquire by merging or consolidating with, or by purchasing a substantial portion of the assets of or equity in or otherwise make any investment in, or by any other manner, any Person or portion thereof, or otherwise acquire or agree to acquire or make any investment in any assets, if the entering into of a definitive agreement relating to or the consummation of such acquisition, merger, business combination, consolidation, or investment would or would reasonably be expected to (i) impose any material delay in the obtaining of, or materially increase the risk of not obtaining, any consent, approval, authorization, declaration, waiver, license, franchise, permit, certificate or order of any Governmental Authority necessary to satisfy the conditions to Closing set forth in Section 8.4, Section 8.5, Section 8.6, Section 9.4, Section 9.6 or Section 9.7 to consummate the transactions contemplated hereby or the expiration or termination of any applicable waiting period, (ii) materially increase the risk of any Governmental Authority entering an order prohibiting the consummation of the transactions contemplated hereby, (iii) materially increase the risk of not being able to remove any such order on appeal or otherwise or (iv) increase the risk of any Governmental Authority asserting jurisdiction over the transactions contemplated hereby. Each of the Seller and the Company shall take such actions as set forth on Section 7.4(e)(ii) of the Disclosure Letter in accordance with the terms thereof and, for the avoidance of doubt, the Buyer agrees to the terms and conditions set forth therein.
(f) Each Party shall promptly inform the other Parties of any material communication from the Federal Trade Commission, the Department of Justice or any other Governmental Authority regarding any of the transactions contemplated by this Agreement. Each Party will, and will cause its Affiliates to, provide the other Parties with copies of all substantive correspondence, filings or communications between them or any of their Representatives, on the one hand, and any Governmental Authority or members of its staff, on the other hand, with respect to this Agreement and the transactions contemplated by this Agreement; provided, however, that materials may be redacted as necessary to (i) comply with contractual arrangements and (ii) address reasonable attorney-client or other privilege or confidentiality concerns. If any Party or any Affiliate thereof receives a request for additional information or documentary material from any such Governmental Authority with respect to the transactions contemplated by this Agreement, then such Party will use its reasonable best efforts to make, or cause to be made, as soon as reasonably practicable and after consultation with the other Party, an appropriate response in compliance with such request. Each Party will advise the other Parties promptly in respect of any understandings, undertakings or agreements (oral or written) that any Party proposes, in its sole discretion, to make or enter into with the Federal Trade Commission, the Department of Justice or any other Governmental Authority in connection with the transactions contemplated by this Agreement, and give such other Parties the opportunity to attend and participate at any meetings with respect thereto. None of the Parties (including their respective Subsidiaries) will agree to participate in any substantive meeting, telephone call or discussion with a Governmental Authority in respect of any submissions, filings, investigation (including any settlement of the investigation), litigation or other inquiry relating to the matters that are the subject of this Agreement unless it consults with the other Parties in advance (in each case to the extent reasonably practicable) and, except as may be prohibited by a Governmental Authority or by any Law, will permit authorized Representatives of the other Parties to be present at each substantive meeting, telephone call or discussion.
Appears in 2 contracts
Samples: Merger Agreement (Patterson Uti Energy Inc), Merger Agreement (Patterson Uti Energy Inc)
Filings and Authorizations; Consummation. (a) The Buyer Each of the Parent, the Company and the Company Merger Subs hereto shall, if required by applicable Law, as promptly as reasonably practicable following after the date hereof hereof, file or supply, or cause to be filed or supplied in connection with the transactions contemplated herein, all filings (notifications and information required to be filed or supplied pursuant to the extent relevant, draft versions of filings) and briefing papers set forth on Section 8.4 of the Disclosure LetterHSR Act. The Buyer Parent acknowledges and agrees that it shall pay and shall be solely responsible for the payment of all filing fees required to be paid in respect of any and other charges for the filing contemplated by this Section 7.4under the HSR Act.
(b) Subject to Section 7.4(d), each Each of the Partiesparties hereto, as promptly as practicable, shall make, or cause to be made, all other filings and submissions not otherwise addressed under Section 7.4(a), including Antitrust Laws, Laws applicable to it, or to its Subsidiaries or and Affiliates, as may be required for it to consummate the transactions contemplated herein and use its commercially reasonable best efforts (which shall not require a Party either party to make any payment or concession to any Person in connection with obtaining such Person’s consent) to obtain, or cause to be obtained, all other authorizations, approvals, consents and waivers from all Persons and Governmental Authorities necessary to be obtained by it, or its Subsidiaries subsidiaries or Affiliatesaffiliates, in order for it to consummate such transactions. None Subject to applicable Laws relating to the exchange of information and the preservation of any applicable attorney-client privilege, work-product doctrine, self-audit privilege or other similar privilege, each of the Parties Company and the Parent shall (have the right to review and shall cause their Affiliates not to) (i) consent comment on in advance, and to any voluntary extension of any statutory deadline or waiting period; (ii) pull and refile the extent practicable each will consult the other on, all the information relating to such party, that appear in any filing made under with, or written materials submitted to, any Antitrust Laws; or (iii) consent to third party and/or any other voluntary delay Governmental Authority in connection with the transactions set forth in this Agreement. In exercising the foregoing right, each of the consummation of Company and the transactions contemplated by this Agreement at the behest of any Governmental Authority, in each case, without the prior written consent of the other Parties, such consent not to be unreasonably withheld, conditioned or delayedParent shall act reasonably and as promptly as practicable.
(c) The Parties parties hereto shall coordinate and reasonably cooperate with one another in promptly exchanging and providing such information to each other and in making the filings and requests referred to in Sections 7.4(aparagraphs (a) and 7.4(b(b) above. The Parties parties hereto shall promptly supply such reasonable assistance as may be reasonably requested by any other Party party hereto in connection with the foregoing.
(d) Notwithstanding anything to the contrary in this Agreementherein, each Party shall use, and shall cause its Subsidiaries to use, reasonable best efforts to consummate if any order is made by any Governmental Authority or any suit is threatened or instituted challenging any of the transactions contemplated by this Agreement prior to as violative of any Antitrust Law, the Termination Date. For the Buyer and its Subsidiaries (but not the Seller and its Subsidiaries), “reasonable best efforts” Parent shall include using take all such efforts to (x) avoid or eliminate each and every impediment, resolve any objection and obtain all consents under any applicable Law action (including Antitrust Lawsagreeing to hold separate or to divest any of the businesses, product lines or assets of the Parent or any of its Affiliates or of the Company, any Company Subsidiary or their respective Affiliates; provided, however, that any material divestment of any of the businesses, product lines or assets of the Company or any Company Subsidiary or their respective Affiliates shall require the written consent of the Company) as promptly may be required (i) by the applicable Governmental Authority (including the Antitrust Division of the United States Department of Justice or the Federal Trade Commission) in order to resolve such objections as practicable so as such Governmental Authority may have to enable the Parties to consummate such transactions under such Antitrust Law or (ii) by any domestic or foreign court or similar tribunal, in any suit brought by any Person or Governmental Authority challenging the transactions contemplated by this Agreement and (y) as violative of any Antitrust Law, in order to avoid the entry of, or to effect the dissolution of, any injunction, temporary restraining order or vacate other order that has the effect of preventing the consummation of the transactions contemplated by this Agreement. It shall not be deemed a failure to satisfy the conditions specified in Sections 7.4 or liftSections 8.4, if in any suit brought by any Person or Governmental Authority challenging the transactions contemplated by this Agreement as violative of any Antitrust Law, a court enters or the applicable Governmental Authority makes an order or decree permitting the transactions contemplated by this Agreement, but requiring that any of the businesses, product lines or assets of any of the Parent or its Affiliates or of the Company, any orderCompany Subsidiary or their respective Affiliates be divested or held separate by the Parent, objection of any Governmental Authority or cause the termination of any waiting period under applicable Law (including Antitrust Laws) that would otherwise have limit the effect of preventing, impairing or delaying the Closing, including (i) proposing, negotiating and offering to commit and effect (and if such offer is accepted, committing to and effecting), by order, consent decree, hold separate order, trust, or otherwise, the sale, license, divestiture, disposition or hold separate of such entities, assets, Intellectual Property, businesses, product lines, equity interests, properties or services of the Buyer or its Subsidiaries (including, following the Closing, members of the Company Group), or otherwise offering to take or offering to commit to take any action (including any action that limits their Parent’s freedom of action, ownership or control action with respect to, or their its ability to retain retain, the Company and any Company Subsidiary or hold, any portion thereof or any of the businesses, assets, product lines, equity interests, properties or services of the Buyer Parent’s or its Subsidiaries Affiliates’ other assets or of the Company Group) to the extent legally permissible, and if the offer is accepted, taking or committing to take such action, (ii) terminating, amending, relinquishing, modifying, waiving or assigning existing relationships, ventures or contractual rights, obligations or other arrangements of the Buyer or its Subsidiaries, (iii) changing or modifying, or agreeing not to engage in, any course of conduct regarding future operations, (iv) creating any relationships, ventures, contractual rights, obligations or other arrangements of the Buyer or its Subsidiaries, (v) committing to take any such actions in the foregoing clauses (i), (ii), (iii) or (iv), (vi) entering or offering to enter into agreements and stipulating to the entry of an Order or decree or filing appropriate applications with any Governmental Authority in connection with any of the actions contemplated by the foregoing clauses (i), (ii), (iii) or (iv), and (vii) opposing, and causing its Subsidiaries to oppose, through and including Action on the merits (and all appeals with respect thereto), any Action asserted in court or other forum by any Governmental Authority or other Person in order to avoid entry of, or to have vacated or terminated, any decree, Order or judgment (whether temporary, preliminary or permanent) that would restrain or prevent the Closing by the Termination Datebusinesses; provided, however, that the Buyer shall not be required to take, in each case where a sale or commit or agree to take (or cause its Affiliates to take, or commit or agree to take), divestment of any of the foregoing actions to the extent (x) such action involves the assetsbusinesses, properties product lines or rights assets of the Buyer Company, any Company Subsidiary or their respective Affiliates is required to comply with the terms of any of its Affiliates (order or decree by a court or other than, following the ClosingGovernmental Authority, the Company and its Subsidiaries)Parent shall first have obtained the Company’s written consent, except with respect to actions that are of an administrative or ministerial nature, or (y) such action would have a material adverse effect on the Company Group, taken as a whole, assuming that the Company Group has the same enterprise value and other financial attributes as the Buyer and its Subsidiaries, taken as a wholeif required, as of the date hereof. For the avoidance of doubt, the Buyer shall not require the Seller or member of the Company Group to, and neither the Seller nor any member of the Company Group shall be required to take (x) any action with respect to any Order or any applicable Law that would bind any member of the Company Group prior to the Closing or bind the Seller at any time or (y) any action contemplated by clauses (i) through (vi) of the immediately prior sentence that is not conditioned upon the Closing. In addition and without limiting the other provisions of this Section 7.4, the Buyer shall use reasonable best efforts to defend through litigation, appealing, contesting or otherwise resisting any Action or Order by any Governmental Authority or private party, challenging the transactions contemplated hereby, including to defend through litigation on the merits any claim asserted in court by any Person in order to avoid entry of, or to have vacated or terminated, any Order (whether temporary, preliminary or permanent) that would delay the Closing or prevent the Closing by the Termination Date; provided, however, that such litigation in no way limits the other obligations of the Buyer set forth in this Section 7.4(d)above.
(e) Except as specifically required by this Agreement, the Buyer shall not, and shall cause all of its Subsidiaries not to, acquire or agree to enter into a business combination or otherwise acquire by merging or consolidating with, or by purchasing a substantial portion of the assets of or equity in or otherwise make any investment in, or by any other manner, any Person or portion thereof, or otherwise acquire or agree to acquire or make any investment in any assets, if the entering into of a definitive agreement relating to or the consummation of such acquisition, merger, business combination, consolidation, or investment would or would reasonably be expected to (i) impose any material delay in the obtaining of, or materially increase the risk of not obtaining, any consent, approval, authorization, declaration, waiver, license, franchise, permit, certificate or order of any Governmental Authority necessary to satisfy the conditions to Closing set forth in Section 8.4, Section 8.5, Section 8.6, Section 9.4, Section 9.6 or Section 9.7 to consummate the transactions contemplated hereby or the expiration or termination of any applicable waiting period, (ii) materially increase the risk of any Governmental Authority entering an order prohibiting the consummation of the transactions contemplated hereby, (iii) materially increase the risk of not being able to remove any such order on appeal or otherwise or (iv) increase the risk of any Governmental Authority asserting jurisdiction over the transactions contemplated hereby. Each of the Seller The Parent and the Company shall take such actions as set forth on Section 7.4(e)(ii) of the Disclosure Letter in accordance with the terms thereof and, for the avoidance of doubt, the Buyer agrees to the terms and conditions set forth therein.
(f) Each Party shall promptly inform the other Parties of any material communication from the Federal Trade Commission, the Department of Justice or any other Governmental Authority regarding any of the transactions contemplated by this Agreement. Each Party will, and will cause its Affiliates to, provide If the other Parties with copies of all substantive correspondence, filings Parent or communications between them or any of their Representatives, on the one hand, and any Governmental Authority or members of its staff, on the other hand, with respect to this Agreement and the transactions contemplated by this Agreement; provided, however, that materials may be redacted as necessary to (i) comply with contractual arrangements and (ii) address reasonable attorney-client or other privilege or confidentiality concerns. If any Party Company or any Affiliate thereof receives a request for additional information or documentary material from any such Governmental Authority with respect to the transactions contemplated by this Agreement, then such Party party will use its reasonable best efforts endeavor in good faith to make, or cause to be made, as soon as reasonably practicable and after consultation with the other Partyparty, an appropriate response in compliance with such request. Each Party The Parent will advise the other Parties Company promptly in respect of any understandings, undertakings or agreements (whether oral or written) that any Party proposes, in its sole discretion, which the Parent proposes to make or enter into with the Federal Trade Commission, the Department of Justice or any other Governmental Authority in connection with the transactions contemplated by this Agreement, and give such other Parties the opportunity to attend and participate at any meetings with respect thereto. None of the Parties (including their respective Subsidiaries) will agree to participate in any substantive meeting, telephone call or discussion with a Governmental Authority in respect of any submissions, filings, investigation (including any settlement of the investigation), litigation or other inquiry relating to the matters that are the subject of this Agreement unless it consults with the other Parties in advance (in each case to the extent reasonably practicable) and, except as may be prohibited by a Governmental Authority or by any Law, will permit authorized Representatives of the other Parties to be present at each substantive meeting, telephone call or discussion.
Appears in 1 contract
Filings and Authorizations; Consummation. (a) The Buyer Upon the terms and subject to the conditions set forth in this Agreement, including the limitations set forth in Section 7.6(b), the Sellers shall and shall cause the Acquired Companies to, and the Company Buyer shall, as use their respective reasonable best efforts to promptly as reasonably practicable following the date hereof file or supply, (i) take or cause to be filed taken all actions, and do or supplied cause to be done all things, necessary, proper or advisable under this Agreement and applicable Laws to consummate and make effective the Contemplated Transactions as promptly as practicable, including, without limitation, preparing and filing promptly and fully all documentation to effect all necessary filings, notices, petitions, statements, registrations, submissions of information, applications and other documents and (ii) obtain as promptly as practicable all approvals, consents, registrations, permits, expirations or terminations of waiting periods, authorizations and other confirmations required to be obtained from any third party or Governmental Authority which are necessary, proper or advisable to consummate the Contemplated Transactions. Provided however, in no event shall Sellers, NewCos, or the Acquired Companies have any duty or obligation under this Section 7.6 with respect to any Permits of the Acquired Companies.
(b) The Sellers, Fikes, GPS and the Buyer agree to (or to cause their applicable respective Affiliate(s) to) submit the notifications required under the HSR Act with respect to the Contemplated Transactions within ten (10) Business Days after the date hereof and to supply promptly any additional information and documentary material that may be requested by any Governmental Authority pursuant to the HSR Act. Each party hereto shall furnish to each other’s counsel such information and assistance as the other may reasonably request in connection with its preparation of any filing or submission of any information that is necessary under the transactions contemplated herein, all filings (and to the extent relevant, draft versions of filings) and briefing papers set forth on Section 8.4 of the Disclosure LetterHSR Act. The Buyer acknowledges and agrees that it shall pay and shall be solely responsible for the payment of all filing fees required payable in connection with any such filing at the time of filing, subject to be paid in respect reimbursement by Sellers of fifty percent (50%) of such fees at Closing as a Transaction Expense. The parties hereto shall, and shall cause their respective applicable Affiliates to, each use their respective reasonable best efforts to secure the expiration or termination of any filing contemplated by this Section 7.4.
(b) Subject waiting periods under the HSR Act and to Section 7.4(d)obtain such other approvals of, each of the Partiesand take such action with respect to, as promptly as practicable, shall make, or cause to be made, all any other filings and submissions not otherwise addressed under Section 7.4(a), including Antitrust Laws, applicable to it, or to its Subsidiaries or AffiliatesGovernmental Authority, as may be required for it necessary to consummate the transactions Contemplated Transactions as promptly as reasonably practicable. Notwithstanding anything to the contrary, nothing contained herein shall require, or be construed to require (i) Buyer or any of its Affiliates to commence, defend or threaten to commence or defend litigation or (ii) the Sellers, the Acquired Companies, or any of their Affiliates to agree to hold, separate, divest, license or sell or otherwise transfer to a third party any of the assets or businesses of the Acquired Companies; provided, that the Sellers and the Acquired Companies shall agree to take (and shall take) any of the actions contemplated herein by the foregoing clause (ii) with respect to the Acquired Companies, but only and use solely to the extent (x) the Sellers, the Representative or the Acquired Companies are requested in writing by Buyer and (y) any such actions are only binding on or otherwise applicable to the Acquired Companies from and after the Closing and in the event the Closing occurs. Notwithstanding the foregoing or anything in this Agreement to the contrary, nothing in this Agreement shall require the Buyer or any of its reasonable best efforts Affiliates to commit to provide prior notice or seek prior approval from any Governmental Authority of any future transaction (which not including the Contemplated Transactions); provided, that Buyer shall, if required by an applicable Governmental Authority, agree to a requirement to provide prior notice but not prior approval from, any Governmental Authority, solely to the extent required by the terms specified on Schedule 7.6(b).
(c) Subject to applicable Law or Order, the Sellers shall, and shall not require a Party to make any payment or concession to any Person cause the Acquired Companies to, and the Buyer shall, (i) cooperate with each other in connection with obtaining such Person’s consent) to obtain, or cause to be obtained, all other authorizations, approvals, consents and waivers from all Persons and Governmental Authorities necessary to be obtained by it, or its Subsidiaries or Affiliates, in order for it to consummate such transactions. None of the Parties shall (and shall cause their Affiliates not to) (i) consent to any voluntary extension of any statutory deadline or waiting period; (ii) pull and refile any filing made under or submission and in connection with any Antitrust Laws; investigation or (iii) consent to other inquiry, including any other voluntary delay of the consummation of the transactions contemplated Action initiated by this Agreement at the behest of any a private party or Governmental Authority, in each case, without regarding the prior written consent Contemplated Transactions, (ii) keep the other parties informed in all material respects of any material communication received by such party from, or given by such party to, any Governmental Authority and of any material communication received or given in connection with any proceeding by a private party, in each case, regarding any of the Contemplated Transactions; and (iii) to the extent permitted by applicable Law, consult and cooperate with one another, and will consider in good faith the views of one another, in connection with any material communication given to it by, and consult with each other Partiesin advance of any meeting or conference with, any Governmental Authority, including in connection with any proceeding by a private party, in each case, regarding the Contemplated Transactions. The Sellers shall, and shall cause the NewCos and the Acquired Companies to, and the Buyer shall, each use their respective reasonable best efforts to, not participate independently in any meeting or telephone conference, or engage in any other substantive conversation, with any Governmental Authority in respect of any such consent not filings or requests referred to be unreasonably withheldin this Section 7.6 or any investigations or other inquiries relating thereto without giving, conditioned to the extent reasonably practicable, the other party reasonable prior notice of the meeting or delayed.
(c) conversation and, unless expressly prohibited by such Governmental Authority, the opportunity to attend or participate; provided, that the Buyer’s legal counsel may participate independently in any meeting or telephone conference or engage in any other substantive conversation, with any Governmental Authority in respect of any such filings or requests referred to in this Section 7.6 or any investigations or other inquiries relating thereto without giving the Sellers, NewCos or the Acquired Companies the opportunity to attend or participate if the Buyer’s legal counsel reasonably determines, in good faith, that such independent participation, engagement or conversation is reasonably necessary, and the Buyer’s legal counsel promptly notifies the Representative and Xxxxxxx’ legal counsel of such participation, engagement or conversation and the substance thereof. The Parties parties hereto shall coordinate and reasonably cooperate with one another in promptly exchanging and providing such information to each other and in making the filings and requests referred to in Sections 7.4(a) and 7.4(b) abovethis Section 7.6. The Parties parties hereto shall promptly use reasonable best efforts to supply such reasonable assistance as may be reasonably requested by any other Party party hereto in connection with the foregoing.
(d) Notwithstanding anything Without prejudice to the contrary other provisions of this Section 7.6 (including the covenants with respect to cooperation, consultation, consideration and the sharing of relevant information set forth herein), (A) the Buyer shall have the right to control and lead all communications and strategy relating to any process with any Governmental Authorities which relate to any HSR filing pursuant to this Section 7.6 and (B) such materials provided by the Buyer pursuant to this Section 7.6 may be redacted (1) to remove references concerning valuation; (2) to the extent necessary to comply with contractual arrangements; and (3) to the extent necessary to address reasonable privilege and confidentiality concerns.
(e) Without prejudice to the provisions of Section 7.6(b) (including the limitations set forth therein), in this Agreementthe event any of the Acquired Companies are requested or required by any Governmental Authority in connection with or pursuant to the HSR Act to divest or otherwise dispose of any operating facility located on any of the Owned Real Property and/or the Leased Real Property prior to, each Party or as a condition of, such Governmental Authority’s approval of, or acquiescence in connection with, the consummation of the Contemplated Transactions, the parties shall use, and shall cause its Subsidiaries work together in good faith to use, reasonable best efforts attempt to consummate satisfy such condition in a manner so as ensure that the transactions contemplated by this Agreement Contemplated Transaction are consummated prior to the Termination Date. For the Buyer and its Subsidiaries (but not the Seller and its Subsidiaries)avoidance of doubt, “reasonable best efforts” shall include using such efforts to (x) avoid or eliminate each and every impediment, resolve any objection and obtain all consents under any applicable Law (including Antitrust Laws) as promptly as practicable so as to enable the Parties to consummate the transactions contemplated by this Agreement and (y) avoid the entry or to effect the dissolution of, or vacate or lift, any order, objection of any Governmental Authority or cause the termination of any waiting period under applicable Law (including Antitrust Laws) that would otherwise have the effect of preventing, impairing or delaying the Closing, including (i) proposing, negotiating and offering to commit and effect (and if such offer is accepted, committing to and effecting), by order, consent decree, hold separate order, trust, or otherwise, the sale, license, divestiture, disposition or hold separate of such entities, assets, Intellectual Property, businesses, product lines, equity interests, properties or services of the Buyer or its Subsidiaries (including, following the Closing, members of the Company Group), or otherwise offering to take or offering to commit to take any action (including any action that limits their freedom of action, ownership or control with respect to, or their ability to retain or hold, any of the businesses, assets, product lines, equity interests, properties or services of the Buyer or its Subsidiaries or of the Company Group) to the extent legally permissible, and if the offer is accepted, taking or committing to take such action, (ii) terminating, amending, relinquishing, modifying, waiving or assigning existing relationships, ventures or contractual rights, obligations no divesture or other arrangements of the Buyer request or its Subsidiaries, (iii) changing or modifying, or agreeing not to engage in, any course of conduct regarding future operations, (iv) creating any relationships, ventures, contractual rights, obligations or other arrangements of the Buyer or its Subsidiaries, (v) committing to take any such actions in the foregoing clauses (i), (ii), (iii) or (iv), (vi) entering or offering to enter into agreements and stipulating to the entry of an Order or decree or filing appropriate applications with any Governmental Authority in connection with any of the actions contemplated by the foregoing clauses (i), (ii), (iii) or (iv), and (vii) opposing, and causing its Subsidiaries to oppose, through and including Action on the merits (and all appeals with respect thereto), any Action asserted in court or other forum requirement by any Governmental Authority to exclude any such location(s) or other Person in order to avoid entry of, or to have vacated or terminated, any decree, Order or judgment (whether temporary, preliminary or permanent) that would restrain or prevent asset from the Closing by the Termination Date; provided, however, that the Buyer shall not be required to take, or commit or agree to take (or cause its Affiliates to take, or commit or agree to take), any consummation of the foregoing actions to the extent Contemplated Transaction (x) such action involves the assets, properties or rights of the Buyer or any of its Affiliates (other than, following the Closing, the Company and its Subsidiaries), except with respect to actions that are of an administrative or ministerial nature, or (y) such action would have a material adverse effect on the Company Group, taken as a whole, assuming that the Company Group has the same enterprise value and other financial attributes as the Buyer and its Subsidiaries, taken as a whole, as of the date hereof. For the avoidance of doubt, the Buyer shall not require the Seller or member of the Company Group to, and neither the Seller nor any member of the Company Group shall be required to take (x) any action with respect to any Order or any applicable Law that would bind any member of the Company Group prior to the Closing or bind the Seller at any time or (y) any action contemplated by clauses (i) through (vi) of the immediately prior sentence that is not conditioned upon the Closing. In addition and without limiting the other provisions of this Section 7.4, the Buyer shall use reasonable best efforts to defend through litigation, appealing, contesting or otherwise resisting any Action or Order by any Governmental Authority or private party, challenging the transactions contemplated hereby, including to defend through litigation on the merits any claim asserted in court by any Person in order to avoid entry of, or to have vacated or terminated, any Order (whether temporary, preliminary or permanent) that would delay the Closing or prevent the Closing by the Termination Date; provided, however, that such litigation in no way limits the other obligations of the Buyer set forth in this Section 7.4(d).
(e) Except as specifically required by this Agreement, the Buyer shall not, and shall cause all of its Subsidiaries not to, acquire or agree to enter into a business combination or otherwise acquire by merging or consolidating with, or by purchasing a substantial portion of the assets of or equity in or otherwise make any investment in, or by any other manner, any Person or portion thereof, or otherwise acquire or agree to acquire or make any investment in any assets, if the entering into of a definitive agreement relating to or the consummation of such acquisition, merger, business combination, consolidation, divestiture or investment would other satisfaction of such request or would reasonably be expected to (irequirement) impose shall under any material delay in the obtaining of, or materially increase the risk of not obtaining, any consent, approval, authorization, declaration, waiver, license, franchise, permit, certificate or order of any Governmental Authority necessary to satisfy the conditions to Closing set forth in Section 8.4, Section 8.5, Section 8.6, Section 9.4, Section 9.6 or Section 9.7 to consummate the transactions contemplated hereby or the expiration or termination of any applicable waiting period, (ii) materially increase the risk of any Governmental Authority entering an order prohibiting the consummation of the transactions contemplated hereby, (iii) materially increase the risk of not being able to remove any such order on appeal or otherwise or (iv) increase the risk of any Governmental Authority asserting jurisdiction over the transactions contemplated hereby. Each of the Seller and the Company shall take such actions as set forth on Section 7.4(e)(ii) of the Disclosure Letter in accordance with the terms thereof and, for the avoidance of doubt, circumstances give the Buyer agrees the right to terminate this Agreement or to reduce the terms and conditions set forth thereinXxxxx Purchase Price or GPS Purchase Price otherwise payable under this Agreement.
(f) Each Party shall promptly inform The Buyer covenants and agrees that it and its Affiliates will not, either directly or indirectly, affiliate in any manner with any third party to fund, consummate or participate in any manner with the other Parties of any material communication from Contemplated Transactions that could adversely impact the Federal Trade Commissionability to obtain all consents to, approvals of, and/or acquiescence in connection with, the Department of Justice or any other Governmental Authority regarding any of the transactions contemplated by this Agreement. Each Party will, and will cause its Affiliates to, provide the other Parties with copies of all substantive correspondence, filings or communications between them or any of their Representatives, on the one hand, and Contemplated Transactions from any Governmental Authority or members without the express written consent of its staff, on the other hand, with respect Representative. The Buyer acknowledges and agrees that the Representative shall under no circumstances be obligated to this Agreement so consent and the transactions contemplated by this Agreement; provided, however, that materials Representative may be redacted as necessary to (i) comply with contractual arrangements and (ii) address reasonable attorney-client or other privilege or confidentiality concerns. If any Party or any Affiliate thereof receives a request for additional information or documentary material from any such Governmental Authority with respect to the transactions contemplated by this Agreement, then such Party will use reasonably withhold its reasonable best efforts to make, or cause to be made, as soon as reasonably practicable and after consultation with the other Party, an appropriate response in compliance with such request. Each Party will advise the other Parties promptly in respect of any understandings, undertakings or agreements (oral or written) that any Party proposes, consent in its sole and complete discretion.
(g) The Buyer covenants and agrees that it and its Affiliates will not, either directly or indirectly, pursue, entertain, accept, enter into, or otherwise participate in any transaction that could materially delay, materially interfere, or materially impede the ability of the parties hereto to make or enter into with the Federal Trade Commissionobtain all consents to, the Department of Justice or any other Governmental Authority approvals of, and/or acquiescence in connection with to the transactions contemplated by this Agreement, and give such other Parties Contemplated Transactions from any Governmental Authority without the opportunity to attend and participate at any meetings with respect thereto. None express written consent of the Parties (including their respective Subsidiaries) will agree Representative. The Buyer acknowledges and agrees that the Representative shall under no circumstances be obligated to participate so consent and the Representative may reasonably withhold its consent in any substantive meeting, telephone call or discussion with a Governmental Authority in respect of any submissions, filings, investigation (including any settlement of the investigation), litigation or other inquiry relating to the matters that are the subject of this Agreement unless it consults with the other Parties in advance (in each case to the extent reasonably practicable) and, except as may be prohibited by a Governmental Authority or by any Law, will permit authorized Representatives of the other Parties to be present at each substantive meeting, telephone call or discussionits sole and complete discretion.
Appears in 1 contract
Samples: Equity Purchase Agreement (Caseys General Stores Inc)
Filings and Authorizations; Consummation. (a) The Buyer and the Company shallshall make, as promptly as reasonably practicable following (and in any event within fifteen (15) Business Days of the date hereof file of this Agreement (unless counsel to the parties have previously agreed to extend such fifteen (15) Business Day period)), an appropriate filing of a Notification and Report Form pursuant to the HSR Act with respect to the Transactions. Subject to Section 7.3(d), each of the Seller, the Guarantor and the Buyer shall use reasonable best efforts to supply as promptly as practicable any additional information and documentary material that may be reasonably requested pursuant to the foregoing, and use reasonable best efforts to take all other actions necessary to cause the expiration or supply, or cause to be filed or supplied in connection with the transactions contemplated herein, all filings termination of (and not to extend) the extent relevant, draft versions of filings) and briefing papers set forth on Section 8.4 of applicable waiting periods regarding the Disclosure Letterforegoing as soon as reasonably practicable. The Buyer acknowledges and agrees that it shall pay and shall be solely responsible for the payment of all filing fees and other charges in connection with filings required pursuant to be paid in respect of any filing contemplated by this Section 7.4Competition Laws.
(b) Subject to Section 7.4(d), each Each of the Partiesparties hereto, as promptly as practicable, shall make, or cause to be made, all other filings and filings, consultations, notifications and/or submissions not otherwise addressed under Section 7.4(a), including Antitrust Laws, Law applicable to it, or to its Subsidiaries or and Affiliates, as may be required for it to consummate the transactions contemplated herein and Transactions and, subject to Section 7.3(d), use its commercially reasonable best efforts (which shall not require a Party either party to make any payment or concession to any Person in connection with obtaining such Person’s consent) to obtain, or cause to be obtained, all other authorizations, approvals, consents and waivers from all Persons and Governmental Authorities necessary to be obtained by it, or its Subsidiaries or Affiliates, in order for it to consummate such transactions. None of The Buyer acknowledges that certain consents and waivers with respect to the Parties Transactions may be required from parties to contracts to which the Company or a Company Subsidiary is a party and that such consents and waivers may not be obtained. Notwithstanding anything to the contrary herein, the Buyer shall (have control over and lead all communications and strategy relating to obtaining all such consents and waivers, provided that the Seller shall cause their Affiliates not to) have the right, (i) consent prior to any voluntary extension proposed communication with respect to such consent or waiver, (x) to receive copies of any statutory deadline such proposed communication (if written) or waiting period; to be informed of such communication (if oral), and (y) to propose changes to the contents, substance or approach of such proposed communication, which shall be considered by the Buyer in good faith, and (ii) pull to be informed of and refile have the right to attend and participate in any filing made under any Antitrust Laws; meeting, appearance, presentation, argument or (iii) consent to any other voluntary delay of the consummation of the transactions contemplated by this Agreement at the behest of any Governmental Authority, in each case, without the prior written consent of the other Parties, related in-person event concerning such consent not to be unreasonably withheld, conditioned or delayedwaiver.
(c) The Parties parties hereto shall coordinate and reasonably cooperate with one another in promptly exchanging and providing such information to each other and in making the filings and requests submissions referred to in Sections 7.4(aparagraphs (a) and 7.4(b(b) aboveabove (each, a “Filing”); provided, that, in connection with any Filing made by a party, the other party shall have the right, to the extent permitted by applicable Law, (i) prior to any proposed Filing, (x) to receive copies of such proposed Filing, and (y) to propose changes to the contents of any such proposed Filing, which shall be considered by the filing party in good faith, and (ii) to be informed of and have the right to attend and participate in any meeting, appearance, presentation, argument or any other related in-person event before a Governmental Authority concerning a Filing. The Parties parties hereto shall promptly supply such reasonable assistance as may be reasonably requested by any other Party party hereto in connection with the foregoing. To the extent that any information or documentation to be provided by either party hereto to the other pursuant to this Section 7.3(c) is competitively sensitive, such information may be provided only to external counsel for the Buyer on an external counsel only basis.
(d) Notwithstanding anything in this Agreement to the contrary in this Agreementcontrary, each Party shall use, and shall cause its Subsidiaries to use, reasonable best efforts to consummate the transactions contemplated by this Agreement prior to the Termination Date. For the Buyer and its Affiliates shall have no obligation to, and the Seller, the Guarantor, the Company and the Company Subsidiaries and their respective Affiliates shall not, (but not the Seller and its Subsidiaries), “reasonable best efforts” shall include using such efforts to (xi) avoid or eliminate each and every impediment, resolve any objection and obtain all consents under any applicable Law (including Antitrust Laws) as promptly as practicable so as to enable the Parties to consummate the transactions contemplated by this Agreement and (y) avoid the entry or to effect the dissolution of, or vacate or lift, enter into any order, objection of judgment or decree, make any Governmental Authority divestiture, pay any amount, provide any consideration, or cause the termination of any waiting period under applicable Law divest, license, lease, sell (including Antitrust Laws) that would otherwise have the effect of preventing, impairing or delaying the Closing, including (i) proposing, negotiating and offering proffer to commit and effect (and if such offer is accepted, committing to and effectingsell), by ordertransfer, consent decreedispose of, hold separate order(including through the establishment of a trust or otherwise) or otherwise encumber any asset, trustlicense operation, right, product line, business, security, instrument or interest of the Company, the Buyer, or otherwise, the sale, license, divestiture, disposition or hold separate of such entities, assets, Intellectual Property, businesses, product lines, equity interests, properties or services of the Buyer or its Subsidiaries (including, following the Closing, members of the Company Group), or otherwise offering to take or offering to commit to take any action (including any action that limits their freedom of action, ownership or control with respect to, or their ability to retain or hold, any of the businesses, assets, product lines, equity interests, properties or services of the Buyer or its Subsidiaries or of the Company Group) to the extent legally permissible, and if the offer is accepted, taking or committing to take such actiontheir respective Affiliates, (ii) terminatingagree to (or proffer to agree to) any obligation, amendingliability or change, relinquishingor impose any limitation or restriction on the Company, modifying, waiving or assigning existing relationships, ventures or contractual rights, obligations or other arrangements of the Buyer or its Subsidiariesany of their Affiliates to conduct their businesses or own their assets or to acquire, hold or exercise full rights of ownership of the businesses of the Company, the Buyer or any of their respective Affiliates, or (iii) changing take any other action that, individually or modifyingin the aggregate, would reasonably be expected to result in a Burdensome Condition.
(e) Each party hereto shall promptly inform the other parties of any material communication from any Governmental Authority regarding any of the Transactions. If any party or any Affiliate thereof receives a request for additional information or documentary material from any such Governmental Authority with respect to the Transactions, then such party will endeavor in good faith to make, or agreeing not cause to engage inbe made, any course of conduct regarding future operationsas soon as reasonably practicable and after consultation with the other party, an appropriate response (ivwhich shall be deemed a Filing) creating any relationshipsin compliance with such request, ventures, contractual rights, obligations or other arrangements subject in each case to the rights of the Buyer or its Subsidiaries, (v) committing to take any such actions in parties under Section 7.3(c). In accordance with the foregoing clauses (iparties’ rights under Section 7.3(c), the applicable party will advise the other party promptly in respect of any understandings, undertakings or agreements (ii), oral or written) (iiieach of which shall be deemed a Filing) which such party proposes to make or (iv), (vi) entering or offering to enter into agreements and stipulating to the entry of an Order or decree or filing appropriate applications with any Governmental Authority in connection with any of the actions contemplated by the foregoing clauses Transactions.
(i), (ii), (iiif) or (iv), and (vii) opposing, and causing its Subsidiaries to oppose, through and including Action on the merits (and all appeals with respect thereto), any Action asserted in court or other forum by any Governmental Authority or other Person in order to avoid entry of, or to have vacated or terminated, any decree, Order or judgment (whether temporary, preliminary or permanent) that would restrain or prevent the Closing by the Termination Date; provided, however, that the Buyer shall not be required to take, or commit or agree to take (or cause its Affiliates to take, or commit or agree to take), any of the foregoing actions to the extent (x) such action involves the assets, properties or rights of the Buyer or any of its Affiliates (other than, following the Closing, the Company and its Subsidiaries), except with respect to actions that are of an administrative or ministerial nature, or (y) such action would have a material adverse effect on the Company Group, taken as a whole, assuming that the Company Group has the same enterprise value and other financial attributes as the Buyer and its Subsidiaries, taken as a whole, as of From the date hereof. For hereof through the avoidance earlier of doubt, the Buyer shall not require the Seller or member of the Company Group to, and neither the Seller nor any member of the Company Group shall be required to take (x) any action with respect to any Order or any applicable Law that would bind any member of the Company Group prior to the Closing or bind the Seller at any time or (y) any action contemplated by clauses (i) through (vi) termination of the immediately prior sentence that is not conditioned upon the Closing. In addition and without limiting the other provisions of this Section 7.4, the Buyer shall use reasonable best efforts to defend through litigation, appealing, contesting or otherwise resisting any Action or Order by any Governmental Authority or private party, challenging the transactions contemplated hereby, including to defend through litigation on the merits any claim asserted in court by any Person in order to avoid entry of, or to have vacated or terminated, any Order (whether temporary, preliminary or permanent) that would delay the Closing or prevent the Closing by the Termination Date; provided, however, that such litigation in no way limits the other obligations of the Buyer set forth in this Section 7.4(d).
(e) Except as specifically required by this Agreement, the Buyer shall not, and shall cause all of its Subsidiaries not to, acquire or agree to enter into a business combination or otherwise acquire by merging or consolidating with, or by purchasing a substantial portion of the assets of or equity in or otherwise make any investment in, or by any other manner, any Person or portion thereof, or otherwise acquire or agree to acquire any assets or make any investment in any assetsenter into a transaction, if the entering into of a definitive agreement relating to to, or the consummation of such acquisition, merger, business combination, consolidation, consolidation or investment would or would other transaction could reasonably be expected to (i) impose any material delay in the obtaining of, or materially increase the risk of not obtaining, any consent, approval, authorization, declaration, waiver, license, franchise, permit, certificate or order of any Governmental Authority necessary to satisfy the conditions to Closing set forth in Section 8.4, Section 8.5, Section 8.6, Section 9.4, Section 9.6 or Section 9.7 to consummate the transactions contemplated hereby Transactions or the expiration or termination of any applicable waiting period, (ii) materially increase the risk of any Governmental Authority entering an order prohibiting the consummation of the transactions contemplated hereby, Transactions or (iii) materially increase delay the risk of not being able to remove any such order on appeal or otherwise or (iv) increase the risk of any Governmental Authority asserting jurisdiction over the transactions contemplated hereby. Each consummation of the Seller and the Company shall take such actions as set forth on Section 7.4(e)(ii) of the Disclosure Letter in accordance with the terms thereof and, for the avoidance of doubt, the Buyer agrees to the terms and conditions set forth thereinTransactions.
(f) Each Party shall promptly inform the other Parties of any material communication from the Federal Trade Commission, the Department of Justice or any other Governmental Authority regarding any of the transactions contemplated by this Agreement. Each Party will, and will cause its Affiliates to, provide the other Parties with copies of all substantive correspondence, filings or communications between them or any of their Representatives, on the one hand, and any Governmental Authority or members of its staff, on the other hand, with respect to this Agreement and the transactions contemplated by this Agreement; provided, however, that materials may be redacted as necessary to (i) comply with contractual arrangements and (ii) address reasonable attorney-client or other privilege or confidentiality concerns. If any Party or any Affiliate thereof receives a request for additional information or documentary material from any such Governmental Authority with respect to the transactions contemplated by this Agreement, then such Party will use its reasonable best efforts to make, or cause to be made, as soon as reasonably practicable and after consultation with the other Party, an appropriate response in compliance with such request. Each Party will advise the other Parties promptly in respect of any understandings, undertakings or agreements (oral or written) that any Party proposes, in its sole discretion, to make or enter into with the Federal Trade Commission, the Department of Justice or any other Governmental Authority in connection with the transactions contemplated by this Agreement, and give such other Parties the opportunity to attend and participate at any meetings with respect thereto. None of the Parties (including their respective Subsidiaries) will agree to participate in any substantive meeting, telephone call or discussion with a Governmental Authority in respect of any submissions, filings, investigation (including any settlement of the investigation), litigation or other inquiry relating to the matters that are the subject of this Agreement unless it consults with the other Parties in advance (in each case to the extent reasonably practicable) and, except as may be prohibited by a Governmental Authority or by any Law, will permit authorized Representatives of the other Parties to be present at each substantive meeting, telephone call or discussion.
Appears in 1 contract
Filings and Authorizations; Consummation. (a) The Buyer and the Company parties shall, as promptly as reasonably practicable following if required by applicable Law, within five (5) Business Days of the date hereof hereof, file or supply, or cause to be filed or supplied in connection with the transactions contemplated herein, all filings (notifications and to information required or, in the extent relevant, draft versions of filings) and briefing papers set forth on Section 8.4 opinion of the Disclosure Letterparties, advisable to obtain the Competition Act Approval, and will use their commercially reasonable efforts to satisfy all requests for additional information and documentation received under or pursuant to those filings, notifications, submissions and the applicable legislation and any orders or requests made by any Governmental Authority under such legislation. The Buyer acknowledges and agrees that it shall pay and shall be solely responsible for the payment of all filing fees required to be paid in respect of any and other charges for the filing contemplated by this Section 7.4under the Competition Act.
(b) Subject to Section 7.4(d), each Each of the Partiesparties hereto, as promptly as practicable, shall make, or cause to be made, all other filings and submissions not otherwise addressed under Section 7.4(a), including Antitrust Laws, Law applicable to it, or to its Subsidiaries or and Affiliates, as may be required for it to consummate the transactions contemplated herein and use its commercially reasonable best efforts (which shall not require a Party any party to make any payment or concession to any Person in connection with obtaining such Person’s consent) to obtain, or cause to be obtained, all other authorizations, approvals, consents and waivers from all Persons and Governmental Authorities necessary to be obtained by it, or its Subsidiaries or Affiliates, in order for it to consummate such transactions. None of the Parties shall (and shall cause their Affiliates not to) (i) consent to any voluntary extension of any statutory deadline or waiting period; (ii) pull and refile any filing made under any Antitrust Laws; or (iii) consent to any other voluntary delay of the consummation of the transactions contemplated by this Agreement at the behest of any Governmental Authority, in each case, without the prior written consent of the other Parties, such consent not to be unreasonably withheld, conditioned or delayed.
(c) The Parties parties hereto shall coordinate and reasonably cooperate with one another in promptly exchanging and providing such information to each other and in making the filings filings, notifications and requests submissions referred to in Sections 7.4(aparagraphs (a) and 7.4(b(b) aboveabove (each, a “Filing”); provided, that, in connection with any Filing made by any party, the other parties hereto shall have the right, to the extent permitted by applicable Law, (i) prior to any proposed Filing, (x) to receive copies of such proposed Filing, and (y) to propose changes to the contents of any such proposed Filing, which shall be considered by the other parties hereto in good faith, and (ii) to be informed of and have the right to attend and participate in any meeting, appearance, presentation, argument or any other related in-person event before a Governmental Authority (including the Commissioner of Competition) concerning a Filing, except where the Governmental Authority expressly requests that a party should not be present or where competitively sensitive information may be discussed, in which case every effort will be made to allow external legal counsel of the excluded party to participate. The Parties parties hereto shall promptly supply such reasonable assistance as may be reasonably requested by any other Party party hereto in connection with the foregoing. To the extent that any information or documentation to be provided by a party hereto to another party hereto pursuant to this Section 7.3 is competitively sensitive, such information may be provided only to external counsel for the other party on an external counsel only basis.
(d) Notwithstanding anything to the contrary in this Agreementherein, each Party shall use, and shall cause its Subsidiaries if any Governmental Authority raises serious concerns to use, reasonable best efforts to consummate the effect that the transactions contemplated by this Agreement prior to the Termination Date. For the Buyer and its Subsidiaries (but not the Seller and its Subsidiaries)may be violative of any Antitrust Law, “reasonable best efforts” shall include using such efforts to (x) avoid or eliminate each and every impediment, resolve if any objection and obtain all consents under order is made by any applicable Law (including Antitrust Laws) as promptly as practicable so as to enable the Parties to consummate Governmental Authority or any application or proceeding is threatened or instituted challenging any of the transactions contemplated by this Agreement and (y) avoid the entry or to effect the dissolution of, or vacate or lift, any order, objection as violative of any Governmental Authority or Antitrust Law, the Buyer shall, and shall cause the termination of its Affiliates to, take and offer to take any waiting period under applicable Law and all such action (including Antitrust Laws) that would otherwise have the effect of preventing, impairing or delaying the Closing, including (i) proposing, negotiating and offering agreeing to commit and effect (and if such offer is accepted, committing to and effecting), by order, consent decree, hold separate order, trust, or otherwise, the sale, license, divestiture, disposition or hold separate of such entities, assets, Intellectual Property, businesses, product lines, equity interests, properties or services of the Buyer or its Subsidiaries (including, following the Closing, members of the Company Group), or otherwise offering to take or offering to commit to take any action (including any action that limits their freedom of action, ownership or control with respect to, or their ability to retain or hold, divest any of the businesses, assets, product lines, equity interests, properties lines or services of the Buyer or its Subsidiaries or of the Company Group) to the extent legally permissible, and if the offer is accepted, taking or committing to take such action, (ii) terminating, amending, relinquishing, modifying, waiving or assigning existing relationships, ventures or contractual rights, obligations or other arrangements of the Buyer or its Subsidiaries, (iii) changing or modifying, or agreeing not to engage in, any course of conduct regarding future operations, (iv) creating any relationships, ventures, contractual rights, obligations or other arrangements of the Buyer or its Subsidiaries, (v) committing to take any such actions in the foregoing clauses (i), (ii), (iii) or (iv), (vi) entering or offering to enter into agreements and stipulating to the entry of an Order or decree or filing appropriate applications with any Governmental Authority in connection with any of the actions contemplated by the foregoing clauses (i), (ii), (iii) or (iv), and (vii) opposing, and causing its Subsidiaries to oppose, through and including Action on the merits (and all appeals with respect thereto), any Action asserted in court or other forum by any Governmental Authority or other Person in order to avoid entry of, or to have vacated or terminated, any decree, Order or judgment (whether temporary, preliminary or permanent) that would restrain or prevent the Closing by the Termination Date; provided, however, that the Buyer shall not be required to take, or commit or agree to take (or cause its Affiliates to take, or commit or agree to take), any of the foregoing actions to the extent (x) such action involves the assets, properties or rights assets of the Buyer or any of its Affiliates (other than, following the Closing, the Company and its Subsidiaries), except with respect to actions that are of an administrative or ministerial nature, or (y) such action would have a material adverse effect on the Company Group, taken as a whole, assuming that the Company Group has the same enterprise value and other financial attributes as the Buyer and its Subsidiaries, taken as a whole, as of the date hereof. For the avoidance of doubtCompany, the Buyer shall not require the Seller any Company Subsidiary or member of the Company Group to, their respective Affiliates and neither the Seller nor any member of the Company Group shall be required to take (xii) any action with respect to any Order or any applicable Law that would bind any member of the Company Group prior to the Closing or bind the Seller at any time or (y) any action contemplated by clauses (i) through (vi) of the immediately prior sentence that is not conditioned upon the Closing. In addition and without limiting the other provisions of this Section 7.4, the Buyer shall use reasonable best efforts to defend through litigation, appealingdefending, contesting or otherwise resisting any Action or Order order by any Governmental Authority or private party, challenging the transactions contemplated hereby, including ) as may be required by the applicable Governmental Authority in order to defend through litigation on the merits any claim asserted in court by any Person resolve such objections as such Governmental Authority may have to such transactions under such Antitrust Law in order to avoid the entry of, or to have vacated or terminatedeffect the dissolution of, any Order (whether temporaryinjunction, preliminary temporary restraining order or permanent) other order that would delay has the Closing effect of delaying or prevent the Closing by the Termination Date; provided, however, that such litigation in no way limits the other obligations of the Buyer set forth in this Section 7.4(d).
(e) Except as specifically required by this Agreement, the Buyer shall not, and shall cause all of its Subsidiaries not to, acquire or agree to enter into a business combination or otherwise acquire by merging or consolidating with, or by purchasing a substantial portion of the assets of or equity in or otherwise make any investment in, or by any other manner, any Person or portion thereof, or otherwise acquire or agree to acquire or make any investment in any assets, if the entering into of a definitive agreement relating to or the consummation of such acquisition, merger, business combination, consolidation, or investment would or would reasonably be expected to (i) impose any material delay in the obtaining of, or materially increase the risk of not obtaining, any consent, approval, authorization, declaration, waiver, license, franchise, permit, certificate or order of any Governmental Authority necessary to satisfy the conditions to Closing set forth in Section 8.4, Section 8.5, Section 8.6, Section 9.4, Section 9.6 or Section 9.7 to consummate the transactions contemplated hereby or the expiration or termination of any applicable waiting period, (ii) materially increase the risk of any Governmental Authority entering an order prohibiting preventing the consummation of the transactions contemplated herebyby this Agreement. It shall not be deemed a failure to satisfy the conditions specified in Section 8.4 or Section 9.4, (iii) materially increase the risk of not being able to remove if in any such order on appeal application or otherwise or (iv) increase the risk of proceeding brought by any Governmental Authority asserting jurisdiction over challenging the transactions contemplated hereby. Each by this Agreement as violative of any Antitrust Law, the applicable Governmental Authority makes an order or decree or enters into an agreement with the Buyer permitting the transactions contemplated by this Agreement, but requiring that any of the Seller businesses, product lines or assets of any of the Buyer or its Affiliates or of the Company, the Company Subsidiaries or their respective Affiliates be divested or held separate by the Buyer, or that would otherwise limit the Buyer’s freedom of action with respect to, or its ability to retain, the Company and the Company shall take such actions as set forth on Section 7.4(e)(ii) Subsidiaries or any portion thereof or any of the Disclosure Letter in accordance with the terms thereof and, for the avoidance of doubt, the Buyer agrees to the terms and conditions set forth thereinBuyer’s or its Affiliates’ other assets or businesses.
(fe) Each Party party hereto shall promptly inform the other Parties parties of any material communication from the Federal Trade Commission, the Department Commissioner of Justice Competition or any other Governmental Authority regarding any of the transactions contemplated by this Agreement. Each Party will, and will cause its Affiliates to, provide the other Parties with copies of all substantive correspondence, filings or communications between them or any of their Representatives, on the one hand, and any Governmental Authority or members of its staff, on the other hand, with respect to this Agreement and the transactions contemplated by this Agreement; provided, however, that materials may be redacted as necessary to (i) comply with contractual arrangements and (ii) address reasonable attorney-client or other privilege or confidentiality concerns. If any Party party or any Affiliate thereof receives a request for additional information or documentary material from any such Governmental Authority with respect to the transactions contemplated by this Agreement, then such Party party will use its reasonable best efforts endeavor in good faith to make, or cause to be made, as soon as reasonably practicable and after consultation with the other Partyparties, an appropriate response (which shall be deemed a Filing) in compliance with such request. Each Party The Buyer will advise the other Parties Seller and the Company promptly in respect of any understandings, undertakings or agreements (oral or written) that any Party proposes, in its sole discretion, (each of which shall be deemed a Filing) which the Buyer proposes to make or enter into with the Federal Trade Commission, the Department Commissioner of Justice Competition or any other Governmental Authority in connection with the transactions contemplated by this Agreement, and give such other Parties the opportunity to attend and participate at any meetings with respect thereto. None of the Parties (including their respective Subsidiaries) will agree to participate in any substantive meeting, telephone call or discussion with a Governmental Authority in respect of any submissions, filings, investigation (including any settlement of the investigation), litigation or other inquiry relating to the matters that are the subject of this Agreement unless it consults with the other Parties in advance (in each case to the extent reasonably practicable) and, except as may be prohibited by a Governmental Authority or by any Law, will permit authorized Representatives of the other Parties to be present at each substantive meeting, telephone call or discussion.
Appears in 1 contract
Filings and Authorizations; Consummation. (a) The Buyer Subject to the terms and conditions of this Agreement, each of the Company shallparties hereto shall use its reasonable best efforts to take, agree to take, or cause to be taken, any and all actions and to do, or cause to be done, any and all things necessary, proper or advisable under applicable Law or otherwise, so as to, as promptly as reasonably practicable following practicable, consummate the transactions contemplated by this Agreement and the Ancillary Agreements. Each of the parties hereto shall, and shall cause their respective Affiliates to, unless otherwise mutually agreed by the parties, within twenty (20) Business Days after the date hereof hereof, file or supply, or cause to be filed or supplied in connection with the transactions contemplated herein, all filings (notifications and information required to be filed or supplied pursuant to the extent relevant, draft versions of filings) and briefing papers set forth on Section 8.4 of the Disclosure LetterHSR Act. The Buyer acknowledges and agrees that it shall pay and shall be solely responsible for the payment of all filing fees required to be paid in respect of any filing contemplated by this Section 7.4under the HSR Act.
(b) Subject to Section 7.4(d), each Each of the Partiesparties hereto, as promptly as practicable, shall, and shall use reasonable best efforts to cause their respective Affiliates to, make, or cause to be made, all other filings and submissions not otherwise addressed (other than those contemplated by Section 6.3(a)) under Section 7.4(a)laws, including Antitrust Laws, rules and regulations applicable to it, or to its Subsidiaries or and Affiliates, as may be required for it to consummate the transactions contemplated herein (including filings necessary to obtain the Section 19(b) Approval) and use its reasonable best efforts (which shall not require a Party to make any payment or concession to any Person in connection with obtaining such Person’s consent) to obtain, or cause to be obtained, all other authorizations, approvals, consents and waivers (other than those contemplated by Section 6.3(a)) from all Persons and Governmental Authorities necessary to be obtained by it, or its Subsidiaries or Affiliates, in order for it to consummate such transactions. None Without limiting any of the Parties shall (representations, warranties or covenants set forth in this Agreement or the right to indemnification for any inaccuracy or breach of such representation, warranty or covenant pursuant to Article 9, the Buyer acknowledges that certain consents and shall cause their Affiliates not to) (i) consent waivers with respect to any voluntary extension of any statutory deadline or waiting period; (ii) pull and refile any filing made under any Antitrust Laws; or (iii) consent to any other voluntary delay of the consummation of the transactions contemplated by this Agreement at may be required from parties to contracts to which the behest Company or a Company Subsidiary is a party, such consents and waivers have not been and may not be obtained. Without limiting any of the representations, warranties or covenants set forth in this Agreement or the right to indemnification for any inaccuracy or breach of such representation, warranty or covenant pursuant to Article 9, the Buyer agrees that the Sellers and their respective Affiliates shall not have any liability to the Buyer arising out of or relating to the failure to obtain any consents or waivers from parties to contracts to which the Company or a Company Subsidiary is a party that may be required in connection with the transactions contemplated by this Agreement or because of the termination of any Governmental Authoritysuch contract as a result thereof, and that no such failure or termination shall result in each casethe failure of any condition set forth in Article 7; provided that, without notwithstanding the foregoing, prior written consent to the Closing, the Sellers shall ensure that, together with the IP License Agreement, the Company and the Company Subsidiaries shall have all licenses or other approvals (including from third parties) required for the Company and the Company Subsidiaries to use T7 platform during the period contemplated by the IP License Agreement and that any expense to third parties for such licenses per annum during such period shall not exceed the amounts paid to such third parties during 2015, a good faith estimate of the other Parties, such consent not to be unreasonably withheld, conditioned or delayedwhich is set forth on Schedule 6.3(d).
(c) The Parties parties hereto shall, and shall cause their respective Affiliates to, coordinate and reasonably cooperate with one another in promptly exchanging and providing such information to each other and in making the filings and requests referred to in Sections 7.4(a6.3(a) and 7.4(b) above6.3(b). The Parties parties hereto shall, and shall promptly cause their respective Affiliates to, supply such reasonable assistance as may be reasonably requested by any other Party party hereto in connection with the foregoing.
(d) Notwithstanding anything to the contrary in this Agreementherein, each Party shall usethe Buyer shall, and shall cause its Subsidiaries to useAffiliates to, use its reasonable best efforts to take all actions and to obtain, or cause to be obtained, all authorizations, approvals and consents under applicable Antitrust Laws as may be required for it to consummate the transactions contemplated by this Agreement prior to the Termination Date. For hereby; provided, however, that neither the Buyer and nor any of its Subsidiaries (but not the Seller and its Subsidiaries), “reasonable best efforts” shall include using such efforts be required to (x) avoid or eliminate each and every impediment, resolve any objection and obtain all consents under any applicable Law (including Antitrust Laws) as promptly as practicable so as to enable the Parties to consummate the transactions contemplated by this Agreement and (y) avoid the entry or to effect the dissolution of, or vacate or lift, any order, objection of any Governmental Authority or cause the termination of any waiting period under applicable Law (including Antitrust Laws) that would otherwise have the effect of preventing, impairing or delaying the Closing, including (i) proposingpropose, negotiating negotiate, commit to, and offering to commit and effect (and if such offer is accepted, committing to and effecting)effect, by order, consent decree, hold separate order, trust, or otherwise, the sale, license, divestiture, licensing or disposition or hold separate of such entities, any assets, Intellectual Property, businesses, product lines, equity interests, properties or services businesses of the Buyer or its Subsidiaries (includingBuyer, following the Closing, members of the Company Group)or any of their respective Subsidiaries, or (ii) accept any operational restrictions or otherwise offering to take or offering to commit to take any action (including actions that limit the Buyer’s or any action that limits their of its Subsidiaries’ freedom of action, ownership or control action with respect to, or their its ability to retain or holdretain, any of the businessesassets, assetsproperties, licenses, rights, product lines, equity interests, properties operations or services businesses of the Buyer or its Subsidiaries or of Buyer, the Company Group) to or any of their respective Subsidiaries. In the extent legally permissible, and if the offer is accepted, taking or committing to take such action, (ii) terminating, amending, relinquishing, modifying, waiving or assigning existing relationships, ventures or contractual rights, obligations event that any litigation or other arrangements administrative or judicial action is commenced seeking to prevent, impede or delay the consummation of the Buyer or its Subsidiaries, (iii) changing or modifying, or agreeing not to engage in, any course of conduct regarding future operations, (iv) creating any relationships, ventures, contractual rights, obligations or other arrangements of the Buyer or its Subsidiaries, (v) committing to take any such actions in the foregoing clauses (i), (ii), (iii) or (iv), (vi) entering or offering to enter into agreements and stipulating to the entry of an Order or decree or filing appropriate applications with any Governmental Authority in connection with any of the actions transactions contemplated by this Agreement, each of the foregoing clauses (i)parties hereto shall cooperate with each other and use its respective reasonable best efforts to defend, (ii)contest and resist any such litigation, (iii) action or (iv), and (vii) opposing, and causing its Subsidiaries to oppose, through and including Action on the merits (and all appeals with respect thereto), any Action asserted in court or other forum by any Governmental Authority or other Person proceeding in order to avoid entry of, or to have vacated vacated, lifted, reversed or terminated, overturned any decree, Order judgment, injunction or judgment (other order that may result from such litigation, whether temporary, preliminary or permanent) that would restrain or prevent the Closing by the Termination Date; provided, however, that the Buyer shall not be required to takeis in effect and that prohibits, prevents or commit or agree to take (or cause its Affiliates to take, or commit or agree to take), any restricts consummation of the foregoing actions to the extent (x) such action involves the assets, properties or rights of the Buyer or any of its Affiliates (other than, following the Closing, the Company and its Subsidiaries), except with respect to actions that are of an administrative or ministerial nature, or (y) such action would have a material adverse effect on the Company Group, taken as a whole, assuming that the Company Group has the same enterprise value and other financial attributes as the Buyer and its Subsidiaries, taken as a whole, as of the date hereof. For the avoidance of doubt, the Buyer shall not require the Seller or member of the Company Group to, and neither the Seller nor any member of the Company Group shall be required to take (x) any action with respect to any Order or any applicable Law that would bind any member of the Company Group prior to the Closing or bind the Seller at any time or (y) any action contemplated by clauses (i) through (vi) of the immediately prior sentence that is not conditioned upon the Closing. In addition and without limiting the other provisions of this Section 7.4, the Buyer shall use reasonable best efforts to defend through litigation, appealing, contesting or otherwise resisting any Action or Order by any Governmental Authority or private party, challenging the transactions contemplated hereby, including to defend through litigation on the merits any claim asserted in court by any Person in order to avoid entry of, or to have vacated or terminated, any Order (whether temporary, preliminary or permanent) that would delay the Closing or prevent the Closing by the Termination Date; provided, however, that such litigation in no way limits the other obligations of the Buyer set forth in this Section 7.4(d)Agreement.
(e) Except as specifically required Each party hereto shall promptly inform the other parties of any material communication from any Governmental Authority (including the Federal Trade Commission and the Department of Justice) regarding any of the transactions contemplated by this Agreement. If any party or any Affiliate thereof receives a request for additional information or documentary material from any such Governmental Authority with respect to the transactions contemplated by this Agreement, then such party will endeavor in good faith to make, or cause to be made, as soon as reasonably practicable and after consultation with the other party, an appropriate response in compliance with such request. To the extent required pursuant to the immediately preceding sentence, the parties will provide truthful and accurate information and documentation to the applicable Governmental Authority; provided, that each party shall only be liable for the truth and accuracy of the information and documentation provided by such party and such party’s Affiliates. None of the parties to this Agreement shall agree to participate in any meeting with any Governmental Authority in respect of any filings, investigation (including any settlement of the investigation), litigation or other inquiry relating to the matters that are the subject of this Agreement unless it consults with the other parties in advance and, to the extent permitted by such Governmental Authority, gives the other parties the opportunity to attend and participate at such meeting. Buyer will advise the Company and the Sellers promptly in respect of any understandings, undertakings or agreements (oral or written) which the Buyer proposes to make or enter into with any Governmental Authority (including the Federal Trade Commission and the Department of Justice) in connection with the transactions contemplated by this Agreement.
(f) The Buyer shall not, and shall cause all not permit any of its Subsidiaries not Affiliates to, acquire or agree to enter into a business combination or otherwise acquire by merging or consolidating with, or by purchasing a substantial portion of the assets of or equity in or otherwise make any investment in, or by any other manner, any Person or portion thereof, or otherwise acquire or agree to acquire or make any investment in any assets, if the entering into of a definitive agreement relating to or the consummation of such acquisition, merger, business combination, consolidation, merger or investment would or consolidation would reasonably be expected to (i) impose any material delay in the obtaining of, or materially increase the risk of not obtaining, any consent, approval, authorization, declaration, waiver, license, franchise, permit, certificate or order of any Governmental Authority necessary to satisfy the conditions to Closing set forth in Section 8.4of, Section 8.5, Section 8.6, Section 9.4, Section 9.6 or Section 9.7 to consummate the transactions contemplated hereby or the expiration or termination of any applicable waiting periodperiod required by, any Governmental Authority necessary to consummate the transactions contemplated hereby, in each case, where such consent, approval, authorization, declaration, waiver, license, franchise, permit, certificate, order or expiration is necessary to satisfy a condition set forth in Section 7.1, (ii) materially increase the risk of any Governmental Authority entering an order prohibiting the consummation of the transactions contemplated hereby, hereby or (iii) materially increase delay the risk consummation of not being able to remove any such order on appeal or otherwise or (iv) increase the risk of any Governmental Authority asserting jurisdiction over the transactions contemplated hereby. Each of .
(g) Prior to the Seller Closing, the Sellers shall and shall cause the Company and the Company Subsidiaries to, and shall take such actions as set forth on Section 7.4(e)(ii) use their reasonable best efforts to cause its and their respective Representatives to, provide all reasonable cooperation that is necessary, customary or advisable and reasonably requested by the Buyer to assist the Buyer in the arrangement of the Disclosure Letter in accordance with the terms thereof and, any third party financing for the avoidance purpose of doubt, the Buyer agrees to the terms and conditions set forth therein.
(f) Each Party shall promptly inform the other Parties of any material communication from the Federal Trade Commission, the Department of Justice or any other Governmental Authority regarding any of financing the transactions contemplated by this Agreement. Each Party willhereby (the Financing), including: (i) participating in meetings, presentations and will cause its Affiliates todue diligence sessions and (ii) assisting with the preparation of materials for presentations, provide memoranda and similar documents required in connection with the other Parties with copies of all substantive correspondence, filings or communications between them or any of their Representatives, on the one hand, and any Governmental Authority or members of its staff, on the other hand, with respect to this Agreement and the transactions contemplated by this AgreementFinancing; provided, however, that materials may be redacted as necessary to (ix) comply with contractual arrangements and (ii) address reasonable attorney-client or other privilege or confidentiality concerns. If any Party or any Affiliate thereof receives a request for additional information or documentary material from any nothing herein shall require such Governmental Authority with respect to the transactions contemplated by this Agreement, then such Party will use its reasonable best efforts to make, or cause to be made, as soon as reasonably practicable and after consultation with the other Party, an appropriate response in compliance with such request. Each Party will advise the other Parties promptly in respect of any understandings, undertakings or agreements (oral or written) that any Party proposes, in its sole discretion, to make or enter into with the Federal Trade Commission, the Department of Justice or any other Governmental Authority in connection with the transactions contemplated by this Agreement, and give such other Parties the opportunity to attend and participate at any meetings with respect thereto. None of the Parties (including their respective Subsidiaries) will agree to participate in any substantive meeting, telephone call or discussion with a Governmental Authority in respect of any submissions, filings, investigation (including any settlement of the investigation), litigation or other inquiry relating to the matters that are the subject of this Agreement unless it consults with the other Parties in advance (in each case cooperation to the extent reasonably practicableit would (A) and, except as may be prohibited by a Governmental Authority or by any Law, will permit authorized Representatives unreasonably disrupt the conduct of the other Parties business of the Sellers the Company or any Company Subsidiary or (B) require the Sellers or any of their Subsidiaries to be present at each substantive meetingagree to pay any fees, telephone call reimburse any expenses or discussionotherwise incur any cost or Liability prior to the Closing for which they are not promptly reimbursed or to give any indemnities and (y) any documentation executed by the Company of any of the Company Subsidiaries shall not become effective until the Closing.
Appears in 1 contract
Filings and Authorizations; Consummation. (a) The Buyer and Each of the Company parties hereto shall, as promptly as reasonably practicable following if required by applicable law, within five (5) Business Days of the date hereof hereof, file or supply, or cause to be filed or supplied in connection with the transactions contemplated herein, all filings (notifications and information required to be filed or supplied pursuant to the extent relevant, draft versions of filings) and briefing papers set forth on Section 8.4 of the Disclosure LetterHSR Act. The Buyer acknowledges and agrees that it shall pay and shall be solely responsible for the payment of all filing fees required to be paid in respect of any and other charges for the filing contemplated by this Section 7.4under the HSR Act.
(b) Subject to Section 7.4(d), each Each of the Partiesparties hereto, as promptly as practicablepracticable (but in no event later than five (5) Business Days of the date hereof), shall make, or cause to be made, all other filings and submissions not otherwise addressed under Section 7.4(a), including Antitrust Laws, Laws applicable to it, or to its Subsidiaries or and Affiliates, as may be required for it to consummate the transactions contemplated herein and use its commercially reasonable best efforts (which shall not require a Party either party to make any payment or concession to any Person in connection with obtaining such Person’s consent) to obtain, or cause to be obtained, all other authorizations, approvals, consents and waivers from all Persons and Governmental Authorities necessary to be obtained by it, or its Subsidiaries subsidiaries or Affiliatesaffiliates, in order for it to consummate such transactions. None Subject to applicable Laws relating to the exchange of information and the preservation of any applicable attorney-client privilege, work-product doctrine, self-audit privilege or other similar privilege, each of the Parties Company and the Buyer shall (have the right to review and shall cause their Affiliates not to) (i) consent comment on in advance, and to any voluntary extension of any statutory deadline or waiting period; (ii) pull and refile the extent practicable each will consult the other on, all the information relating to such party, that appear in any filing made under with, or written materials submitted to, any Antitrust Laws; or (iii) consent to third party and/or any other voluntary delay Governmental Authority in connection with the transactions set forth in this Agreement. In exercising the foregoing right, each of the consummation of Company and the transactions contemplated by this Agreement at the behest of any Governmental Authority, in each case, without the prior written consent of the other Parties, such consent not to be unreasonably withheld, conditioned or delayedBuyer shall act reasonably and as promptly as practicable.
(c) The Parties parties hereto shall coordinate and reasonably cooperate with one another in promptly exchanging and providing such information to each other and in making the filings and requests referred to in Sections 7.4(aparagraphs (a) and 7.4(b(b) above. The Parties parties hereto shall promptly supply such reasonable assistance as may be reasonably requested by any other Party party hereto in connection with the foregoing.
(d) Notwithstanding anything to the contrary in this Agreementherein, each Party shall use, and shall cause its Subsidiaries to use, reasonable best efforts to consummate if any order is made by any Governmental Authority or any suit is threatened or instituted challenging any of the transactions contemplated by this Agreement prior to the Termination Date. For as violative of any Antitrust Law, the Buyer and its Subsidiaries (but not the Seller and its Subsidiaries), “reasonable best efforts” shall include using take all such efforts to (x) avoid or eliminate each and every impediment, resolve any objection and obtain all consents under any applicable Law (including Antitrust Laws) as promptly as practicable so as to enable the Parties to consummate the transactions contemplated by this Agreement and (y) avoid the entry or to effect the dissolution of, or vacate or lift, any order, objection of any Governmental Authority or cause the termination of any waiting period under applicable Law (including Antitrust Laws) that would otherwise have the effect of preventing, impairing or delaying the Closing, including (i) proposing, negotiating and offering to commit and effect (and if such offer is accepted, committing to and effecting), by order, consent decree, hold separate order, trust, or otherwise, the sale, license, divestiture, disposition or hold separate of such entities, assets, Intellectual Property, businesses, product lines, equity interests, properties or services of the Buyer or its Subsidiaries (including, following the Closing, members of the Company Group), or otherwise offering to take or offering to commit to take any action (including any action that limits their freedom of action, ownership agreeing to hold separate or control with respect to, or their ability to retain or hold, divest any of the businesses, assets, product lines, equity interests, properties lines or services of the Buyer or its Subsidiaries or of the Company Group) to the extent legally permissible, and if the offer is accepted, taking or committing to take such action, (ii) terminating, amending, relinquishing, modifying, waiving or assigning existing relationships, ventures or contractual rights, obligations or other arrangements of the Buyer or its Subsidiaries, (iii) changing or modifying, or agreeing not to engage in, any course of conduct regarding future operations, (iv) creating any relationships, ventures, contractual rights, obligations or other arrangements of the Buyer or its Subsidiaries, (v) committing to take any such actions in the foregoing clauses (i), (ii), (iii) or (iv), (vi) entering or offering to enter into agreements and stipulating to the entry of an Order or decree or filing appropriate applications with any Governmental Authority in connection with any of the actions contemplated by the foregoing clauses (i), (ii), (iii) or (iv), and (vii) opposing, and causing its Subsidiaries to oppose, through and including Action on the merits (and all appeals with respect thereto), any Action asserted in court or other forum by any Governmental Authority or other Person in order to avoid entry of, or to have vacated or terminated, any decree, Order or judgment (whether temporary, preliminary or permanent) that would restrain or prevent the Closing by the Termination Date; provided, however, that the Buyer shall not be required to take, or commit or agree to take (or cause its Affiliates to take, or commit or agree to take), any of the foregoing actions to the extent (x) such action involves the assets, properties or rights assets of the Buyer or any of its Affiliates (other than, following the Closing, the Company and its Subsidiaries), except with respect to actions that are of an administrative or ministerial nature, or (y) such action would have a material adverse effect on the Company Group, taken as a whole, assuming that the Company Group has the same enterprise value and other financial attributes as the Buyer and its Subsidiaries, taken as a whole, as of the date hereof. For the avoidance of doubtCompany, the Buyer shall not require the Seller any Company Subsidiary or member of the Company Group to, and neither the Seller nor any member of the Company Group shall their respective Affiliates) as may be required to take (x) any action with respect to any Order or any applicable Law that would bind any member of the Company Group prior to the Closing or bind the Seller at any time or (y) any action contemplated by clauses (i) through by the applicable Governmental Authority (vi) including the Antitrust Division of the immediately prior sentence that is not conditioned upon United States Department of Justice or the Closing. In addition and without limiting the other provisions of this Section 7.4, the Buyer shall use reasonable best efforts Federal Trade Commission) in order to defend through litigation, appealing, contesting resolve such objections as such Governmental Authority may have to such transactions under such Antitrust Law or otherwise resisting any Action or Order (ii) by any domestic or foreign court or similar tribunal, in any suit brought by any Person or Governmental Authority or private party, challenging the transactions contemplated herebyby this Agreement as violative of any Antitrust Law, including to defend through litigation on the merits any claim asserted in court by any Person in order to avoid the entry of, or to have vacated or terminatedeffect the dissolution of, any Order (whether temporaryinjunction, preliminary temporary restraining order or permanent) other order that would delay has the Closing or prevent the Closing by the Termination Date; provided, however, that such litigation in no way limits the other obligations effect of the Buyer set forth in this Section 7.4(d).
(e) Except as specifically required by this Agreement, the Buyer shall not, and shall cause all of its Subsidiaries not to, acquire or agree to enter into a business combination or otherwise acquire by merging or consolidating with, or by purchasing a substantial portion of the assets of or equity in or otherwise make any investment in, or by any other manner, any Person or portion thereof, or otherwise acquire or agree to acquire or make any investment in any assets, if the entering into of a definitive agreement relating to or the consummation of such acquisition, merger, business combination, consolidation, or investment would or would reasonably be expected to (i) impose any material delay in the obtaining of, or materially increase the risk of not obtaining, any consent, approval, authorization, declaration, waiver, license, franchise, permit, certificate or order of any Governmental Authority necessary to satisfy the conditions to Closing set forth in Section 8.4, Section 8.5, Section 8.6, Section 9.4, Section 9.6 or Section 9.7 to consummate the transactions contemplated hereby or the expiration or termination of any applicable waiting period, (ii) materially increase the risk of any Governmental Authority entering an order prohibiting preventing the consummation of the transactions contemplated herebyby this Agreement. It shall not be deemed a failure to satisfy the conditions specified in Sections 8.4 or 9.4, (iii) materially increase the risk of not being able to remove if in any such order on appeal suit brought by any Person or otherwise or (iv) increase the risk of any Governmental Authority asserting jurisdiction over challenging the transactions contemplated hereby. Each by this Agreement as violative of any Antitrust Law, a court enters or the applicable Governmental Authority makes an order or decree permitting the transactions contemplated by this Agreement, but requiring that any of the Seller and businesses, product lines or assets of any of the Buyer or its Affiliates or of the Company, any Company Subsidiary or their respective Affiliates be divested or held separate by the Buyer, or that would otherwise limit the Buyer’s freedom of action with respect to, or its ability to retain, the Company shall take such actions as set forth on Section 7.4(e)(ii) and any Company Subsidiary or any portion thereof or any of the Disclosure Letter in accordance with the terms thereof and, for the avoidance of doubt, the Buyer agrees to the terms and conditions set forth thereinBuyer’s or its Affiliates’ other assets or businesses.
(fe) Each Party party hereto shall promptly inform the other Parties parties of any material communication from the Federal Trade Commission, the Department of Justice or any other Governmental Authority regarding any of the transactions contemplated by this Agreement. Each Party will, and will cause its Affiliates to, provide the other Parties with copies of all substantive correspondence, filings or communications between them or any of their Representatives, on the one hand, and any Governmental Authority or members of its staff, on the other hand, with respect to this Agreement and the transactions contemplated by this Agreement; provided, however, that materials may be redacted as necessary to (i) comply with contractual arrangements and (ii) address reasonable attorney-client or other privilege or confidentiality concerns. If any Party party or any Affiliate thereof receives a request for additional information or documentary material from any such Governmental Authority with respect to the transactions contemplated by this Agreement, then such Party party will use its reasonable best efforts endeavor in good faith to make, or cause to be made, as soon as reasonably practicable and after consultation with the other Partyparty, an appropriate response in compliance with such request. Each Party The Buyer will advise the other Parties Company promptly in respect of any understandings, undertakings or agreements (whether oral or written) that any Party proposes, in its sole discretion, which the Buyer proposes to make or enter into with the Federal Trade Commission, the Department of Justice or any other Governmental Authority in connection with the transactions contemplated by this Agreement, and give such other Parties the opportunity to attend and participate at any meetings with respect thereto. None of the Parties (including their respective Subsidiaries) will agree to participate in any substantive meeting, telephone call or discussion with a Governmental Authority in respect of any submissions, filings, investigation (including any settlement of the investigation), litigation or other inquiry relating to the matters that are the subject of this Agreement unless it consults with the other Parties in advance (in each case to the extent reasonably practicable) and, except as may be prohibited by a Governmental Authority or by any Law, will permit authorized Representatives of the other Parties to be present at each substantive meeting, telephone call or discussion.
Appears in 1 contract
Samples: Stock Purchase Agreement (MBF Healthcare Acquisition Corp.)
Filings and Authorizations; Consummation. (a) The Buyer Each Party shall use commercially reasonable efforts, and shall cooperate with the Company shallother Parties, to obtain as promptly as practicable any and all authorizations, approvals, orders, consents, licenses, waivers, no action acknowledgments, certificates, permits, registrations, qualifications or other rights and privileges of any Governmental Authority or third party (collectively, “Consents”) necessary or advisable for the performance of its obligations under, or the consummation of the transactions contemplated by, this Agreement, including Sellers’ Approvals, the Companies’ Approvals and Buyers’ Approvals.
(b) Each Party agrees that it shall consult with the other Parties with respect to the obtaining of all material Consents necessary or advisable for the performance of its obligations under, or the consummation of the transactions contemplated by, this Agreement, and each Party shall keep the other Parties apprised of the status of material matters relating to the performance of its obligations under, or the consummation of the transactions contemplated by, this Agreement.
(c) Each Party agrees, upon the written request of any other Party to this Agreement, to furnish such other Party with all information concerning itself or such other matters as may be reasonably necessary or advisable in connection with any filing, notice or application made by or on behalf of such other Party to any Governmental Authority to the extent permitted by applicable Law.
(d) Subject to the terms and conditions set forth in this Agreement, without limiting the generality of the obligations under this Section 7.4:
(i) Each of Sellers’ Representative and Buyers’ Representative agrees to provide, or cause to be provided, to each and every Governmental Authority with jurisdiction over enforcement of any applicable antitrust or Competition Law (“Antitrust Governmental Authority”), including the CADE and SIC, as promptly as reasonably practicable following and in any event within the date hereof file or supplyapplicable legal time periods, or cause any information and documents requested by any Antitrust Governmental Authority that are legally required to be filed provided or supplied otherwise reasonably necessary, proper or advisable to permit consummation of the transactions contemplated hereby.
(ii) Each of Sellers’ Representative and Buyers’ Representative agrees to bear 50% of the cost of any and all filing fees required under applicable Competition Laws and of consultancy services engaged in connection with the transactions contemplated hereinfilings with any Antitrust Governmental Authority; provided, all filings (however, that each of Sellers’ Representative and to Buyers’ Representative will bear its own attorneys’ fees in connection with the extent relevant, draft versions preparation of such filings) and briefing papers set forth on Section 8.4 of the Disclosure Letter. The Buyer acknowledges and agrees that it shall pay and shall be solely responsible for the payment of all filing fees required to be paid in respect of any filing contemplated by this Section 7.4.
(biii) Subject With respect to Section 7.4(d)XXXX’x Clearance, each of the PartiesParties shall, as promptly as practicableand Seller shall cause Limitada to, shall makeunder Buyers’ Representative’s coordination, or cause to be made, all other filings and submissions not otherwise addressed under Section 7.4(a), including Antitrust Laws, applicable to it, or to its Subsidiaries or Affiliates, as may be required for it to consummate the transactions contemplated herein and use its reasonable their best efforts (which shall not require a Party to make submit as soon as reasonably practicable any payment or concession required notification and report forms required by the applicable Competition Laws to any Person CADE. Additionally, in connection with obtaining such Person’s consentXXXX’x Clearance:
(A) The Parties agree, and Sellers’ Representative agrees to obtaincause Limitada, or cause to use best efforts to cooperate both in preparing all communications to be obtainedmade to CADE and in obtaining XXXX’x Clearance, all other authorizations, approvals, consents and waivers from all Persons and Governmental Authorities necessary further agree to be obtained by it, or its Subsidiaries or Affiliates, in order for it to consummate such transactions. None of the Parties shall (and shall cause their Affiliates not to) (i) consent provide timely to any voluntary extension of any statutory deadline or waiting periodCADE all documents and information in their possession and that may be necessary and appropriate to obtain XXXX’x Clearance; and (ii) pull and refile any filing made under any Antitrust Laws; perform all acts that may be necessary or (iii) consent appropriate to any other voluntary delay of allow the consummation of the transactions contemplated by this Agreement at the behest of any Governmental Authority, in each case, without the prior written consent of the other Parties, such consent not to be unreasonably withheld, conditioned or delayedhereby.
(cB) Until XXXX’x Clearance is obtained, Sellers’ Representative agrees to, and to cause Limitada to, preserve and maintain the Business as it is currently conducted in compliance with all applicable Laws, including Article 107, Paragraph 2 of XXXX’x Internal Rules.
(C) The Parties shall coordinate and reasonably cooperate with one another in promptly exchanging and providing such information to each other and in making the filings and requests referred to in Sections 7.4(a) and 7.4(b) above. The Parties shall promptly supply such reasonable assistance as may be reasonably requested by any other Party in connection with the foregoing.
(d) Notwithstanding anything to the contrary in this Agreement, each Party shall useagree, and shall Xxxxxxx’ Representative agrees to cause its Subsidiaries Limitada, to use, reasonable use their best efforts to consummate the transactions contemplated address any requests made by this Agreement prior to the Termination Date. For the Buyer and its Subsidiaries (but not the Seller and its Subsidiaries), “reasonable best efforts” shall include using such efforts to (x) avoid or eliminate each and every impediment, resolve any objection and obtain all consents under any applicable Law (including Antitrust Laws) as promptly as practicable CADE so as to enable the Parties to consummate the transactions contemplated hereby as promptly as reasonably practicable. The Parties shall cooperate in good faith and shall use best efforts to address adequately possible concerns raised by this Agreement CADE and (y) avoid the entry mitigate or to effect the dissolution of, or vacate or lift, remove any order, objection of any Governmental Authority or cause the termination of any waiting period under applicable Law (including Antitrust Laws) that would otherwise have the effect of preventing, impairing or delaying the Closing, including (i) proposing, negotiating and offering to commit and effect (and if such offer is accepted, committing to and effecting), by order, consent decree, hold separate order, trust, or otherwise, the sale, license, divestiture, disposition or hold separate of such entities, assets, Intellectual Property, businesses, product lines, equity interests, properties or services of the Buyer or its Subsidiaries (including, following the Closing, members of the Company Group), or otherwise offering to take or offering to commit to take any action (including any action that limits their freedom of action, ownership or control with respect to, or their ability to retain or hold, any of the businesses, assets, product lines, equity interests, properties or services of the Buyer or its Subsidiaries or of the Company Group) to the extent legally permissible, and if the offer is accepted, taking or committing to take such action, (ii) terminating, amending, relinquishing, modifying, waiving or assigning existing relationships, ventures or contractual rightsconditions, obligations or other arrangements of the Buyer or its Subsidiaries, (iii) changing or modifying, or agreeing not to engage in, any course of conduct regarding future operations, (iv) creating any relationships, ventures, contractual rights, obligations or other arrangements of the Buyer or its Subsidiaries, (v) committing to take any such actions in the foregoing clauses (i), (ii), (iii) or (iv), (vi) entering or offering to enter into agreements and stipulating to the entry of an Order or decree or filing appropriate applications with any Governmental Authority in connection with any of the actions contemplated restrictions imposed by the foregoing clauses (i), (ii), (iii) or (iv), and (vii) opposing, and causing its Subsidiaries to oppose, through and including Action on the merits (and all appeals with respect thereto), any Action asserted in court or other forum by any Governmental Authority or other Person CADE in order to avoid entry of, or to have vacated or terminated, any decree, Order or judgment (whether temporary, preliminary or permanent) that would restrain or prevent the Closing by the Termination Date; provided, however, that the Buyer shall not be required to take, or commit or agree to take (or cause its Affiliates to take, or commit or agree to take), any of the foregoing actions to the extent (x) such action involves the assets, properties or rights of the Buyer or any of its Affiliates (other than, following the Closing, the Company and its Subsidiaries), except with respect to actions that are of an administrative or ministerial nature, or (y) such action would have a material adverse effect on the Company Group, taken as a whole, assuming that the Company Group has the same enterprise value and other financial attributes as the Buyer and its Subsidiaries, taken as a whole, as of the date hereof. For the avoidance of doubt, the Buyer shall not require the Seller or member of the Company Group to, and neither the Seller nor any member of the Company Group shall be required to take (x) any action with respect to any Order or any applicable Law that would bind any member of the Company Group prior to the Closing or bind the Seller at any time or (y) any action contemplated by clauses (i) through (vi) of the immediately prior sentence that is not conditioned upon the Closingobtain XXXX’x Clearance. In addition and without limiting the other provisions of this Section 7.4, the Buyer shall use reasonable best efforts to defend through litigation, appealing, contesting or otherwise resisting any Action or Order by any Governmental Authority or private party, challenging event CADE does not approve the transactions contemplated herebyhereby or in the event XXXX’x Clearance is subject to obligations, including to defend through litigation on the merits any claim asserted in court by any Person in order to avoid entry of, restrictions or to have vacated or terminated, any Order (whether temporary, preliminary or permanent) other conditions that would delay the Closing or prevent the Closing by the Termination Date; provided, however, that such litigation in no way limits the other obligations of the Buyer set forth in this Section 7.4(d).
(e) Except as specifically required by this Agreement, the Buyer shall not, and shall cause all of its Subsidiaries not to, acquire or agree to enter into a business combination or otherwise acquire by merging or consolidating with, or by purchasing a substantial portion of the assets of or equity in or otherwise make any investment in, or by any other manner, any Person or portion thereof, or otherwise acquire or agree to acquire or make any investment in any assets, if the entering into of a definitive agreement relating to or the consummation of such acquisition, merger, business combination, consolidation, or investment would or would reasonably be expected to have a Material Adverse Effect, Buyer’s Representative shall be entitled to terminate this Agreement under Section 10.1(f).
(iv) With respect to SIC’s Clearance, Buyers’ Representative, in coordination with Sellers’ Representative, will use their best efforts to submit as soon as reasonably practicable any required notification and report forms required by SIC to SIC. Additionally, in connection with SIC’s Clearance:
(A) The Parties agree, and Sellers’ Representative agrees to cause the Companies to use best efforts to cooperate both in preparing all communications to be made to SIC and in obtaining SIC’s Clearance, and further agree to (i) impose any material delay provide timely to SIC all documents and information in the obtaining of, or materially increase the risk of not obtaining, any consent, approval, authorization, declaration, waiver, license, franchise, permit, certificate or order of any Governmental Authority their possession and that may be necessary and appropriate to satisfy the conditions to Closing set forth in Section 8.4, Section 8.5, Section 8.6, Section 9.4, Section 9.6 or Section 9.7 to consummate the transactions contemplated hereby or the expiration or termination of any applicable waiting period, obtain SIC’s Clearance; and (ii) materially increase the risk of any Governmental Authority entering an order prohibiting perform all acts that may be necessary or appropriate to allow the consummation of the transactions contemplated hereby.
(B) Until SIC’s Clearance is obtained, Seller agrees to, and to cause each Company to, preserve and maintain the Business as it is currently conducted in compliance with all applicable Laws.
(iiiC) materially increase The Parties agree, and Xxxxxxx’ Representative agrees to cause the risk of not being able Companies to remove use their best efforts to address any such order on appeal or otherwise or (iv) increase requests made by SIC so as to enable the risk of any Governmental Authority asserting jurisdiction over Parties to consummate the transactions contemplated herebyhereby as promptly as reasonably practicable. Each of The Parties shall cooperate in good faith and shall use best efforts to address adequately possible concerns raised by SIC and mitigate or remove any conditions, obligations or restrictions imposed by SIC in order to obtain SIC’s Clearance. In the Seller and the Company shall take such actions as set forth on Section 7.4(e)(ii) of the Disclosure Letter in accordance with the terms thereof and, for the avoidance of doubt, the Buyer agrees to the terms and conditions set forth therein.
(f) Each Party shall promptly inform the other Parties of any material communication from the Federal Trade Commission, the Department of Justice or any other Governmental Authority regarding any of event SIC does not approve the transactions contemplated by this Agreement. Each Party willhereby or in the event SIC’s Clearance is subject to obligations, and will cause its Affiliates torestrictions or other conditions that would reasonably be expected to have a Material Adverse Effect, provide the other Parties with copies of all substantive correspondence, filings or communications between them or any of their Representatives, on the one hand, and any Governmental Authority or members of its staff, on the other hand, with respect Buyer’s Representative shall be entitled to terminate this Agreement and the transactions contemplated by this Agreement; provided, however, that materials may be redacted as necessary to (i) comply with contractual arrangements and (ii) address reasonable attorney-client or other privilege or confidentiality concerns. If any Party or any Affiliate thereof receives a request for additional information or documentary material from any such Governmental Authority with respect to the transactions contemplated by this Agreement, then such Party will use its reasonable best efforts to make, or cause to be made, as soon as reasonably practicable and after consultation with the other Party, an appropriate response in compliance with such request. Each Party will advise the other Parties promptly in respect of any understandings, undertakings or agreements (oral or written) that any Party proposes, in its sole discretion, to make or enter into with the Federal Trade Commission, the Department of Justice or any other Governmental Authority in connection with the transactions contemplated by this Agreement, and give such other Parties the opportunity to attend and participate at any meetings with respect thereto. None of the Parties (including their respective Subsidiaries) will agree to participate in any substantive meeting, telephone call or discussion with a Governmental Authority in respect of any submissions, filings, investigation (including any settlement of the investigationunder Section 10.1(f), litigation or other inquiry relating to the matters that are the subject of this Agreement unless it consults with the other Parties in advance (in each case to the extent reasonably practicable) and, except as may be prohibited by a Governmental Authority or by any Law, will permit authorized Representatives of the other Parties to be present at each substantive meeting, telephone call or discussion.
Appears in 1 contract
Filings and Authorizations; Consummation. (a) The Buyer Subject to the terms and the Company shallconditions herein, as promptly as reasonably practicable following the date hereof file or supplyeach party hereto agrees to use its reasonable best efforts to take, or cause to be filed or supplied in connection with the transactions contemplated hereintaken, all filings (actions, and to the extent relevantdo, draft versions of filings) and briefing papers set forth on Section 8.4 of the Disclosure Letter. The Buyer acknowledges and agrees that it shall pay and shall be solely responsible for the payment of all filing fees required or cause to be paid in respect of any filing contemplated by this Section 7.4.
(b) Subject to Section 7.4(d), each of the Parties, done as promptly as practicable, shall makeall things necessary, or cause to be made, all other filings proper and submissions not otherwise addressed advisable under Section 7.4(a), including Antitrust Laws, applicable to it, or to its Subsidiaries or Affiliates, as may be required for it Laws to consummate and make effective as promptly as practicable the transactions contemplated herein Merger. Subject to appropriate confidentiality protections and use its reasonable best efforts (which applicable Law, each party hereto shall not require a Party furnish to make any payment or concession to any Person in connection with obtaining such Person’s consent) to obtain, or cause to be obtained, all other authorizations, approvals, consents and waivers from all Persons and Governmental Authorities necessary to be obtained by it, or its Subsidiaries or Affiliates, in order for it to consummate such transactions. None of the Parties shall (and shall cause their Affiliates not to) (i) consent to any voluntary extension of any statutory deadline or waiting period; (ii) pull and refile any filing made under any Antitrust Laws; or (iii) consent to any other voluntary delay of the consummation of the transactions contemplated by this Agreement at the behest of any Governmental Authority, in each case, without the prior written consent of the other Parties, parties such consent not to be unreasonably withheld, conditioned or delayed.
(c) The Parties shall coordinate necessary information and reasonably cooperate with one another in promptly exchanging and providing such information to each other and in making the filings and requests referred to in Sections 7.4(a) and 7.4(b) above. The Parties shall promptly supply such reasonable assistance as such other party may be reasonably requested by any other Party request in connection with the foregoing.
(db) Notwithstanding anything to Each of the contrary parties shall cooperate with one another in this Agreement, each Party shall use, good faith and shall cause use its Subsidiaries to use, reasonable best efforts to prepare all necessary documentation (including furnishing all information required under the HSR Act, Competition Act or other applicable Competition Laws) to effect promptly all necessary filings and to obtain all consents, waivers and approvals necessary to consummate the transactions contemplated by this Agreement prior before the Termination Date (including any applicable extensions thereof). Each such party shall promptly inform the other parties hereto of any oral communication with, and provide copies of written communications between it (or its advisors) and any Governmental Authority relating to the Termination DateMerger or any of the matters described in this Section 6.4. For No party hereto shall independently participate in any meeting, conference, or substantive telephone call with any Governmental Authority in respect of any such filings, investigation, or other inquiry without giving the Buyer other parties hereto prior notice of the meeting, conference, or substantive telephone call and, to the extent permitted by such Governmental Authority, the opportunity to attend and/or participate. Subject to applicable Law, the parties hereto will consult and cooperate with one another in connection with, and allow the other party to have a reasonable opportunity to review in advance and comment on, any analyses, appearances, presentations, memoranda, briefs, arguments, opinions and proposals made or submitted by or on behalf of any party hereto relating to proceedings under the HSR Act, Competition Act or other applicable Competition Laws; provided, however, that to the extent any of the documents or information provided pursuant to this Section 6.4 are commercially or competitively sensitive, the Company or Parent, as the case may be, may satisfy its Subsidiaries (but obligations by providing such documents or information to the other party’s outside counsel, with the understanding and agreement that such counsel shall not the Seller share such documents and information with its Subsidiaries)client; provided, “reasonable best efforts” shall include using such efforts to further, that materials may also be redacted (x) to remove references concerning the valuation of the Company, (y) as necessary to comply with contractual arrangements, and (z) as necessary to address reasonable attorney-client or other privilege or confidentiality concerns.
(c) Without limiting the generality of the undertakings pursuant to this Section 6.4, the parties hereto shall as promptly as practicable, but in no event later than ten (10) Business Days after the date hereof, (i) submit all filings required under the HSR Act (which shall include a request for early termination of the applicable waiting period under the HSR Act if available at the time of such filing), and (ii) (A) file with the Commissioner a submission in support of a request for an Advance Ruling Certificate or a No-Action Letter; and (B) unless the parties mutually agree otherwise or agree that such filing should be made on a different date, each file or cause to be filed a notification pursuant to paragraph 114(1) of the Competition Act. The parties shall make an appropriate response to any request for additional information or documentary material that may be made and under the HSR Act, Competition Act and any requests for information under any other applicable Competition Law. Parent shall be responsible for all fees associated with filings required by the HSR Act, Competition Act and any other applicable Competition Laws.
(d) Further, each of Parent and the Company agrees to take any and all steps necessary to avoid or eliminate each and every impedimentimpediment under the HSR Act, resolve Competition Act or other applicable Competition Laws that may be asserted by any objection and obtain all consents under any applicable Law (including Governmental Antitrust Laws) as promptly as practicable Authority, so as to enable the Parties parties to consummate the transactions contemplated by this Agreement and Merger no later than the Termination Date (yincluding any applicable extensions thereof). In connection therewith, if any Action is instituted (or reasonably foreseeable or threatened to be instituted) avoid challenging the entry or to effect the dissolution of, or vacate or lift, any order, objection Merger as in violation of any Governmental Authority applicable Competition Law, each of the parties hereto shall cooperate and use its reasonable best efforts to contest and resist any such Action, and to have vacated, lifted, reversed or cause overturned any Order whether temporary, preliminary or permanent, that is in effect and that delays, prohibits, prevents or restricts consummation of the termination Merger, including by pursuing all available avenues of any waiting period under applicable Law administrative and judicial appeal and all available legislative action, unless, by mutual agreement, Parent and the Stockholders’ Representative decide that litigation is not in their respective best interests. Without limiting the generality of the foregoing, Parent shall, to the extent necessary to enable the parties to consummate the Merger no later than the Termination Date (including Antitrust Laws) that would otherwise have the effect of preventingany applicable extensions thereof), impairing or delaying the Closing, including (i) proposingpropose, negotiating and offering negotiate, or offer to commit and effect (and if such offer is accepted, committing commit to and effecting)effect) to sell, by order, consent decreedivest, hold separate order, trust, or otherwise, the saleseparate, license, divestiturecause a third party to acquire, disposition or hold separate of such entitiesotherwise dispose of, assetsany Subsidiary, Intellectual Propertyoperations, divisions, businesses, product lines, equity interests, properties customers or services assets of Parent or the Buyer Company or any of its Subsidiaries (including, following contemporaneously with or after the Closing and regardless as to whether a third party buyer has been identified or approved prior to the Closing, members of the Company Group), or otherwise offering to take or offering to commit to take any action (including any action that limits their freedom of action, ownership or control with respect to, or their ability to retain or hold, any of the businesses, assets, product lines, equity interests, properties or services of the Buyer or its Subsidiaries or of the Company Group) to the extent legally permissible, and if the offer is accepted, taking or committing to take such action, (ii) terminatingtake or commit to take such other actions that may, amendingafter the Closing, relinquishinglimit Parent’s freedom of action with respect to the Company, modifyingor its ability to retain, waiving one or assigning existing relationships, ventures or contractual rights, obligations or other arrangements more of the Buyer Company’s operations, divisions, businesses, products lines, customers or its Subsidiariesassets, (iii) changing terminate any Contract or modifyingother business relationship, or agreeing not to engage in, any course of conduct regarding future operations, (iv) creating enter into any relationships, ventures, contractual rights, obligations Order or other arrangements of the Buyer or its Subsidiaries, (v) committing agreement to take any such actions in the foregoing clauses (i), (ii), (iii) or (iv), (vi) entering or offering to enter into agreements and stipulating to the entry of an Order or decree or filing appropriate applications with any Governmental Authority in connection with effectuate any of the actions contemplated by foregoing (each of the foregoing items described in clauses (ii)-(iv), (iia “Regulatory Remedy Action”), (iii) or (iv), and (vii) opposing, and causing its Subsidiaries to oppose, through and including Action on the merits (and all appeals with respect thereto), any Action asserted in court or other forum by any Governmental Authority or other Person in order to avoid entry of, or to have vacated or terminated, any decree, Order or judgment (whether temporary, preliminary or permanent) that would restrain or prevent the Closing by the Termination Date; provided, however, that the Buyer that, nothing contained in this Agreement shall not be required require Parent to take, take or commit or permit any Non-Required Remedy Action. The Company shall agree to take (or cause its Affiliates to takeany Regulatory Remedy Action requested in writing by Parent and shall not take a Regulatory Remedy Action without Parent’s written consent; provided, or commit or agree to take), any that none of the foregoing actions to the extent (x) such action involves the assets, properties or rights of the Buyer or any of its Affiliates (other than, following the Closing, the Company and its Subsidiaries), except with respect to actions that are of an administrative or ministerial nature, or (y) such action would have a material adverse effect on the Company Group, taken as a whole, assuming that the Company Group has the same enterprise value and other financial attributes as the Buyer and its Subsidiaries, taken as a whole, as of the date hereof. For the avoidance of doubt, the Buyer shall not require the Seller or member of the Company Group to, and neither the Seller nor any member of the Company Group parties shall be required to take (x) any action Regulatory Remedy Action unless such actions are only effective after the Effective Time and conditioned upon the consummation of the Merger. Parent shall have the right to direct, devise and implement the strategy of the parties with respect to obtaining all consents, approvals, and expirations of waiting periods pursuant to any Order or any Competition Laws applicable Law that would bind any member of the Company Group prior to the Closing or bind the Seller at any time or (y) any action contemplated by clauses (i) through (vi) of the immediately prior sentence that is not conditioned upon the Closing. In addition and without limiting the other provisions of this Section 7.4, the Buyer shall use reasonable best efforts to defend through litigation, appealing, contesting or otherwise resisting any Action or Order by any Governmental Authority or private party, challenging the transactions contemplated hereby, including with respect to defend through litigation on the merits any claim asserted in court by any Person in order determining when (if at all) to avoid entry ofdiscuss, offer, or agree to have vacated or terminated, any Order (whether temporary, preliminary or permanent) that would delay the Closing or prevent the Closing by the Termination DateRegulatory Remedy Action; provided, however, that such litigation Parent shall consult with the Company in no way limits a reasonable manner and consider in good faith the other obligations views and comments of the Buyer set forth in this Section 7.4(d).
(e) Except as specifically required by this Agreement, the Buyer shall not, and shall cause all of its Subsidiaries not to, acquire or agree to enter into a business combination or otherwise acquire by merging or consolidating with, or by purchasing a substantial portion of the assets of or equity in or otherwise make any investment in, or by any other manner, any Person or portion thereof, or otherwise acquire or agree to acquire or make any investment in any assets, if the entering into of a definitive agreement relating to or the consummation of such acquisition, merger, business combination, consolidation, or investment would or would reasonably be expected to (i) impose any material delay in the obtaining of, or materially increase the risk of not obtaining, any consent, approval, authorization, declaration, waiver, license, franchise, permit, certificate or order of any Governmental Authority necessary to satisfy the conditions to Closing set forth in Section 8.4, Section 8.5, Section 8.6, Section 9.4, Section 9.6 or Section 9.7 to consummate the transactions contemplated hereby or the expiration or termination of any applicable waiting period, (ii) materially increase the risk of any Governmental Authority entering an order prohibiting the consummation of the transactions contemplated hereby, (iii) materially increase the risk of not being able to remove any such order on appeal or otherwise or (iv) increase the risk of any Governmental Authority asserting jurisdiction over the transactions contemplated hereby. Each of the Seller and the Company shall take such actions as set forth on Section 7.4(e)(ii) of the Disclosure Letter in accordance with the terms thereof and, for the avoidance of doubt, the Buyer agrees to the terms and conditions set forth therein.
(f) Each Party shall promptly inform the other Parties of any material communication from the Federal Trade Commission, the Department of Justice or any other Governmental Authority regarding any of the transactions contemplated by this Agreement. Each Party will, and will cause its Affiliates to, provide the other Parties with copies of all substantive correspondence, filings or communications between them or any of their Representatives, on the one hand, and any Governmental Authority or members of its staff, on the other hand, with respect to this Agreement and the transactions contemplated by this Agreement; provided, however, that materials may be redacted as necessary to (i) comply with contractual arrangements and (ii) address reasonable attorney-client or other privilege or confidentiality concerns. If any Party or any Affiliate thereof receives a request for additional information or documentary material from any such Governmental Authority with respect to the transactions contemplated by this Agreement, then such Party will use its reasonable best efforts to make, or cause to be made, as soon as reasonably practicable and after consultation with the other Party, an appropriate response in compliance with such request. Each Party will advise the other Parties promptly in respect of any understandings, undertakings or agreements (oral or written) that any Party proposes, in its sole discretion, to make or enter into with the Federal Trade Commission, the Department of Justice or any other Governmental Authority in connection with the transactions contemplated by this Agreementforegoing, and give such other Parties provided, further, that Parent shall not extend any waiting period or enter into any agreement or understanding with any Governmental Authority without the opportunity to attend and participate at any meetings with respect thereto. None prior written consent of the Parties (including their respective Subsidiaries) will agree to participate in any substantive meetingCompany, telephone call or discussion with a Governmental Authority in respect of any submissions, filings, investigation (including any settlement of the investigation), litigation or other inquiry relating to the matters that are the subject of this Agreement unless it consults with the other Parties in advance (in each case to the extent reasonably practicable) and, except as may be prohibited by a Governmental Authority or by any Law, will permit authorized Representatives of the other Parties such consent not to be present at each substantive meetingunreasonably withheld, telephone call conditioned, or discussion.delayed;
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Filings and Authorizations; Consummation. (a) On June 3, 2024, the filings and submissions under the HSR Act in connection with the consummation of the transactions contemplated by this Agreement were completed and filed with the appropriate Governmental Entity. The Buyer and applicable thirty (30)-day waiting period under the Company HSR Act expired on July 4, 2024. Each of the Parties (other than the Securityholder Representative) shall, as promptly as reasonably practicable following the date hereof if required by applicable Law, file or supply, or cause to be filed or supplied in connection with the transactions contemplated herein, all filings notifications (and or, if required by the relevant Governmental Authorities, drafts thereof) required to be filed or supplied pursuant to the extent relevant, draft versions of filingsAntitrust Laws (other than the HSR Act) and briefing papers set forth on Section 8.4 of the Disclosure Letteras promptly as practicable. The Parties acknowledge and agree that the Buyer acknowledges and agrees that it shall pay and shall be solely responsible for the payment of all filing fees required to be paid in respect of for any filing contemplated by this Section 7.4filings under the Antitrust Laws.
(b) Subject to Section 7.4(d), each of the PartiesParties (other than the Securityholder Representative), as promptly as practicable, shall make, or cause to be made, all other filings and submissions not otherwise addressed under Section 7.4(a), including Antitrust Laws, Laws applicable to it, or to its Subsidiaries or and Affiliates, as may be required for it to consummate the transactions contemplated herein and shall use its reasonable best efforts (which shall not require a Party to make any payment or concession to any Person in connection with obtaining such Person’s consent) to obtain, or cause to be obtained, all other authorizations, approvals, consents and waivers from all Persons (including any parties to the Contracts set forth in Section 7.4(b) of the Company Disclosure Schedules) and Governmental Authorities necessary to be obtained by it, or its Subsidiaries or Affiliates, in order for it to consummate such transactions. None Each of the Parties shall (Buyer and shall cause their Affiliates not to) (i) consent Merger Sub acknowledges that certain consents with respect to any voluntary extension of any statutory deadline or waiting period; (ii) pull and refile any filing made under any Antitrust Laws; or (iii) consent to any other voluntary delay of the consummation of the transactions contemplated by this Agreement at may be required from parties to Contracts to which the behest of any Governmental Authority, in each case, without the prior written consent Company or a Company Subsidiary is a party and that such consents and waivers may not be obtained. Each of the other Buyer and Xxxxxx Sub agrees that the Securityholder Representative and its Affiliates, and the Company Securityholders and Shareholders’ Related Parties, such consent shall not have any liability to the Buyer, the Company or any Company Subsidiary arising out of or relating to the failure to obtain any consents from parties to Contracts that may be unreasonably withheld, conditioned or delayedrequired in connection with the transactions contemplated by this Agreement.
(c) The Parties (other than the Securityholder Representative) shall coordinate and reasonably cooperate with one another in promptly exchanging and providing such information to each other and in making the filings filings, requests and requests submissions referred to in Sections 7.4(aparagraphs (a) and 7.4(b(b) above. The Parties shall promptly supply such reasonable assistance as may be reasonably requested by any other Party in connection with the foregoing.
(d) Notwithstanding anything to the contrary herein, in this Agreementno event shall the Buyer, each Party Merger Sub or any of their respective Subsidiaries or Affiliates be required to (and the Company, the Securityholder Representative and their respective Subsidiaries and Affiliates shall usenot without the Buyer’s prior written consent) offer, propose, negotiate, agree to, commit to, effect, or take any action, restriction or limitation (including agreeing to (x) hold separate, divest or license any of the businesses, product lines or assets of the Buyer, Merger Sub or any of their respective Affiliates (including, after the Closing Date, the Surviving Company), or any investment held directly or indirectly by the Company, (y) any other limitations on the Buyer’s freedom of action with respect to, or its ability to retain, the Surviving Company and shall cause its Subsidiaries or any portion thereof or any of the Buyer’s or its Affiliates’ other assets or businesses) or (z) any other commitment, condition or remedy of any kind in order to use, reasonable best efforts resolve any objections any Governmental Authority may have to consummate the transactions contemplated hereby under any Antitrust Law or any Action brought by any Person or Governmental Authority challenging the transactions contemplated by this Agreement prior to the Termination Date. For the Buyer and its Subsidiaries (but not the Seller and its Subsidiaries), “reasonable best efforts” shall include using such efforts to (x) avoid or eliminate each and every impediment, resolve any objection and obtain all consents under any applicable Law (including Antitrust Laws) as promptly as practicable so as to enable the Parties to consummate the transactions contemplated by this Agreement and (y) avoid the entry or to effect the dissolution of, or vacate or lift, any order, objection violative of any Governmental Authority or cause the termination of any waiting period under applicable Law (including Antitrust Laws) that would otherwise have the effect of preventing, impairing or delaying the Closing, including (i) proposing, negotiating and offering to commit and effect (and if such offer is accepted, committing to and effecting), by order, consent decree, hold separate order, trust, or otherwise, the sale, license, divestiture, disposition or hold separate of such entities, assets, Intellectual Property, businesses, product lines, equity interests, properties or services of the Buyer or its Subsidiaries (including, following the Closing, members of the Company Group), or otherwise offering to take or offering to commit to take any action (including any action that limits their freedom of action, ownership or control with respect to, or their ability to retain or hold, any of the businesses, assets, product lines, equity interests, properties or services of the Buyer or its Subsidiaries or of the Company Group) to the extent legally permissible, and if the offer is accepted, taking or committing to take such action, (ii) terminating, amending, relinquishing, modifying, waiving or assigning existing relationships, ventures or contractual rights, obligations or other arrangements of the Buyer or its Subsidiaries, (iii) changing or modifying, or agreeing not to engage in, any course of conduct regarding future operations, (iv) creating any relationships, ventures, contractual rights, obligations or other arrangements of the Buyer or its Subsidiaries, (v) committing to take any such actions in the foregoing clauses (i), (ii), (iii) or (iv), (vi) entering or offering to enter into agreements and stipulating to the entry of an Order or decree or filing appropriate applications with any Governmental Authority in connection with any of the actions contemplated by the foregoing clauses (i), (ii), (iii) or (iv), and (vii) opposing, and causing its Subsidiaries to oppose, through and including Action on the merits (and all appeals with respect thereto), any Action asserted in court or other forum by any Governmental Authority or other Person in order to avoid entry of, or to have vacated or terminated, any decree, Order or judgment (whether temporary, preliminary or permanent) that would restrain or prevent the Closing by the Termination Date; provided, however, that the Buyer shall not be required to take, or commit or agree to take (or cause its Affiliates to take, or commit or agree to take), any of the foregoing actions to the extent (x) such action involves the assets, properties or rights of the Buyer or any of its Affiliates (other than, following the Closing, the Company and its Subsidiaries), except with respect to actions that are of an administrative or ministerial nature, or (y) such action would have a material adverse effect on the Company Group, taken as a whole, assuming that the Company Group has the same enterprise value and other financial attributes as the Buyer and its Subsidiaries, taken as a whole, as of the date hereof. For the avoidance of doubt, the Buyer shall not require the Seller or member of the Company Group to, and neither the Seller nor any member of the Company Group shall be required to take (x) any action with respect to any Order or any applicable Law that would bind any member of the Company Group prior to the Closing or bind the Seller at any time or (y) any action contemplated by clauses (i) through (vi) of the immediately prior sentence that is not conditioned upon the Closing. In addition and without limiting the other provisions of this Section 7.4, the Buyer shall use reasonable best efforts to defend through litigation, appealing, contesting or otherwise resisting any Action or Order by any Governmental Authority or private party, challenging the transactions contemplated hereby, including to defend through litigation on the merits any claim asserted in court by any Person in order to avoid entry of, or to have vacated or terminated, any Order (whether temporary, preliminary or permanent) that would delay the Closing or prevent the Closing by the Termination Date; provided, however, that such litigation in no way limits the other obligations of the Buyer set forth in this Section 7.4(d)Law.
(e) Except as specifically required by this Agreement, the Buyer shall not, and shall cause all of its Subsidiaries not to, acquire or agree to enter into a business combination or otherwise acquire by merging or consolidating with, or by purchasing a substantial portion of the assets of or equity in or otherwise make any investment in, or by any other manner, any Person or portion thereof, or otherwise acquire or agree to acquire or make any investment in any assets, if the entering into of a definitive agreement relating to or the consummation of such acquisition, merger, business combination, consolidation, or investment would or would reasonably be expected to (i) impose any material delay in the obtaining of, or materially increase the risk of not obtaining, any consent, approval, authorization, declaration, waiver, license, franchise, permit, certificate or order of any Governmental Authority necessary to satisfy the conditions to Closing set forth in Section 8.4, Section 8.5, Section 8.6, Section 9.4, Section 9.6 or Section 9.7 to consummate the transactions contemplated hereby or the expiration or termination of any applicable waiting period, (ii) materially increase the risk of any Governmental Authority entering an order prohibiting the consummation of the transactions contemplated hereby, (iii) materially increase the risk of not being able to remove any such order on appeal or otherwise or (iv) increase the risk of any Governmental Authority asserting jurisdiction over the transactions contemplated hereby. Each of the Seller and the Company shall take such actions as set forth on Section 7.4(e)(ii) of the Disclosure Letter in accordance with the terms thereof and, for the avoidance of doubt, the Buyer agrees to the terms and conditions set forth therein.
(f) Each Party shall promptly inform the other Parties of any material communication from the Federal Trade Commission, the Department of Justice or any other Governmental Authority regarding any of the transactions contemplated by this Agreement. Each Party will, and will cause its Affiliates to, provide shall promptly furnish the other Parties with copies of all substantive correspondence, filings notices or other communications between them received from any third party or any of their Representatives, on the one hand, and any Governmental Authority or members of its staff, on the other hand, with respect to this Agreement such transactions. Each Party shall give the other parties a reasonably opportunity to review in advance, and consider in good faith the comments of the other parties with respect to, the content of any proposed substantive written communication or submission or any oral communication to any Governmental Authority in relation to the transactions contemplated by this Agreement; provided, however, that materials may be redacted as necessary to (i) comply with contractual arrangements and (ii) address reasonable attorney-client or other privilege or confidentiality concernsherein. If any Party or any Affiliate thereof receives a request for additional information or documentary material from any such Governmental Authority with respect to the transactions contemplated by this Agreement, then such Party will use its reasonable best efforts endeavor in good faith to make, or cause to be made, as soon as reasonably practicable and after consultation with the other Party, an appropriate response in compliance with such request. Each Party will advise The parties shall, to the extent practicable, provide the other Parties promptly Party and its counsel with advance notice of and the opportunity to participate in any substantive discussion, telephone call or meeting with any Governmental Authority in respect of any understandingsfiling, undertakings investigation or agreements (oral or written) that any Party proposes, in its sole discretion, to make or enter into with the Federal Trade Commission, the Department of Justice or any other Governmental Authority inquiry in connection with the transactions contemplated by this Agreement, Agreement and give such other Parties the opportunity to attend and participate at any meetings with respect thereto. None of the Parties (including their respective Subsidiaries) will agree to participate in any substantive meetingthe preparation for such discussion, telephone call or discussion with a Governmental Authority in respect of any submissionsmeeting, filings, investigation (including any settlement of the investigation), litigation or other inquiry relating to the matters that are the subject of this Agreement unless it consults with the other Parties in advance (in each case to the extent reasonably practicable) and, except as may be not prohibited by a Governmental Authority or by any Law, will permit authorized Representatives of the other Parties to be present at each substantive meeting, telephone call or discussion.Governmental
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Filings and Authorizations; Consummation. (a) The Buyer and Each of the Company parties hereto shall, as promptly as reasonably practicable following if required by applicable law, within five (5) Business Days of the date hereof hereof, file or supply, or cause to be filed or supplied in connection with the transactions contemplated herein, all filings (notifications and information required to be filed or supplied pursuant to the extent relevant, draft versions of filings) and briefing papers set forth on Section 8.4 of the Disclosure LetterHSR Act. The Buyer Parent acknowledges and agrees that it shall pay and shall be solely responsible for the payment of all filing fees required to be paid in respect of any and other charges for the filing contemplated by this Section 7.4under the HSR Act.
(b) Subject to Section 7.4(d), each Each of the Partiesparties hereto, as promptly as practicablepracticable (but in no event later than five (5) Business Days of the date hereof), shall make, or cause to be made, all other filings and submissions not otherwise addressed under Section 7.4(a), including Antitrust Laws, Laws applicable to it, or to its Subsidiaries or and Affiliates, as may be required for it to consummate the transactions contemplated herein and use its commercially reasonable best efforts (which shall not require a Party any party to make any payment or concession to any Person in connection with obtaining such Person’s consent) to obtain, or cause to be obtained, all other authorizations, approvals, consents and waivers from all Persons and Governmental Authorities necessary to be obtained by it, or its Subsidiaries or Affiliates, in order for it to consummate such transactions. None Subject to applicable Laws relating to the exchange of information and the preservation of any applicable attorney-client privilege, work-product doctrine, self-audit privilege or other similar privilege, each of the Parties Company and the Parent shall (have the right to review and shall cause their Affiliates not to) (i) consent comment on in advance, and to any voluntary extension of any statutory deadline or waiting period; (ii) pull and refile the extent practicable each will consult the other on, all the information relating to such party, that appear in any filing made under with, or written materials submitted to, any Antitrust Laws; or (iii) consent to third party and/or any other voluntary delay Governmental Authority in connection with the transactions set forth in this Agreement. In exercising the foregoing right, each of the consummation of Company and the transactions contemplated by this Agreement at the behest of any Governmental Authority, in each case, without the prior written consent of the other Parties, such consent not to be unreasonably withheld, conditioned or delayedParent shall act reasonably and as promptly as practicable.
(c) The Parties parties hereto shall coordinate and reasonably cooperate with one another in promptly exchanging and providing such information to each other and in making the filings and requests referred to in Sections 7.4(aparagraphs (a) and 7.4(b(b) above. The Parties parties hereto shall promptly supply such reasonable assistance as may be reasonably requested by any other Party party hereto in connection with the foregoing.
(d) Notwithstanding anything to the contrary in this Agreementherein, each Party shall use, and shall cause its Subsidiaries to use, reasonable best efforts to consummate if any order is made by any Governmental Authority or any suit is threatened or instituted challenging any of the transactions contemplated by this Agreement prior to as violative of any Antitrust Law, the Termination Date. For the Buyer and its Subsidiaries (but not the Seller and its Subsidiaries), “reasonable best efforts” Parent shall include using take all such efforts to (x) avoid or eliminate each and every impediment, resolve any objection and obtain all consents under any applicable Law action (including Antitrust Lawsagreeing to hold separate or to divest any of the businesses, product lines or assets of the Parent or any of its Affiliates or of the Company, any Company Subsidiary or their respective Affiliates) as promptly may be required (i) by the applicable Governmental Authority (including the Antitrust Division of the United States Department of Justice or the Federal Trade Commission) in order to resolve such objections as practicable so as such Governmental Authority may have to enable the Parties to consummate such transactions under such Antitrust Law or (ii) by any domestic or foreign court or similar tribunal, in any suit brought by any Person or Governmental Authority challenging the transactions contemplated by this Agreement and (y) as violative of any Antitrust Law, in order to avoid the entry of, or to effect the dissolution of, any injunction, temporary restraining order or vacate or lift, any order, objection of any Governmental Authority or cause the termination of any waiting period under applicable Law (including Antitrust Laws) other order that would otherwise have has the effect of preventing, impairing or delaying the Closing, including (i) proposing, negotiating and offering to commit and effect (and if such offer is accepted, committing to and effecting), by order, consent decree, hold separate order, trust, or otherwise, the sale, license, divestiture, disposition or hold separate of such entities, assets, Intellectual Property, businesses, product lines, equity interests, properties or services of the Buyer or its Subsidiaries (including, following the Closing, members of the Company Group), or otherwise offering to take or offering to commit to take any action (including any action that limits their freedom of action, ownership or control with respect to, or their ability to retain or hold, any of the businesses, assets, product lines, equity interests, properties or services of the Buyer or its Subsidiaries or of the Company Group) to the extent legally permissible, and if the offer is accepted, taking or committing to take such action, (ii) terminating, amending, relinquishing, modifying, waiving or assigning existing relationships, ventures or contractual rights, obligations or other arrangements of the Buyer or its Subsidiaries, (iii) changing or modifying, or agreeing not to engage in, any course of conduct regarding future operations, (iv) creating any relationships, ventures, contractual rights, obligations or other arrangements of the Buyer or its Subsidiaries, (v) committing to take any such actions in the foregoing clauses (i), (ii), (iii) or (iv), (vi) entering or offering to enter into agreements and stipulating to the entry of an Order or decree or filing appropriate applications with any Governmental Authority in connection with any of the actions contemplated by the foregoing clauses (i), (ii), (iii) or (iv), and (vii) opposing, and causing its Subsidiaries to oppose, through and including Action on the merits (and all appeals with respect thereto), any Action asserted in court or other forum by any Governmental Authority or other Person in order to avoid entry of, or to have vacated or terminated, any decree, Order or judgment (whether temporary, preliminary or permanent) that would restrain or prevent the Closing by the Termination Date; provided, however, that the Buyer shall not be required to take, or commit or agree to take (or cause its Affiliates to take, or commit or agree to take), any of the foregoing actions to the extent (x) such action involves the assets, properties or rights of the Buyer or any of its Affiliates (other than, following the Closing, the Company and its Subsidiaries), except with respect to actions that are of an administrative or ministerial nature, or (y) such action would have a material adverse effect on the Company Group, taken as a whole, assuming that the Company Group has the same enterprise value and other financial attributes as the Buyer and its Subsidiaries, taken as a whole, as of the date hereof. For the avoidance of doubt, the Buyer shall not require the Seller or member of the Company Group to, and neither the Seller nor any member of the Company Group shall be required to take (x) any action with respect to any Order or any applicable Law that would bind any member of the Company Group prior to the Closing or bind the Seller at any time or (y) any action contemplated by clauses (i) through (vi) of the immediately prior sentence that is not conditioned upon the Closing. In addition and without limiting the other provisions of this Section 7.4, the Buyer shall use reasonable best efforts to defend through litigation, appealing, contesting or otherwise resisting any Action or Order by any Governmental Authority or private party, challenging the transactions contemplated hereby, including to defend through litigation on the merits any claim asserted in court by any Person in order to avoid entry of, or to have vacated or terminated, any Order (whether temporary, preliminary or permanent) that would delay the Closing or prevent the Closing by the Termination Date; provided, however, that such litigation in no way limits the other obligations of the Buyer set forth in this Section 7.4(d).
(e) Except as specifically required by this Agreement, the Buyer shall not, and shall cause all of its Subsidiaries not to, acquire or agree to enter into a business combination or otherwise acquire by merging or consolidating with, or by purchasing a substantial portion of the assets of or equity in or otherwise make any investment in, or by any other manner, any Person or portion thereof, or otherwise acquire or agree to acquire or make any investment in any assets, if the entering into of a definitive agreement relating to or the consummation of such acquisition, merger, business combination, consolidation, or investment would or would reasonably be expected to (i) impose any material delay in the obtaining of, or materially increase the risk of not obtaining, any consent, approval, authorization, declaration, waiver, license, franchise, permit, certificate or order of any Governmental Authority necessary to satisfy the conditions to Closing set forth in Section 8.4, Section 8.5, Section 8.6, Section 9.4, Section 9.6 or Section 9.7 to consummate the transactions contemplated hereby or the expiration or termination of any applicable waiting period, (ii) materially increase the risk of any Governmental Authority entering an order prohibiting preventing the consummation of the transactions contemplated herebyby this Agreement, (iii) materially increase but only and to the risk of not being able to remove extent that any such order on appeal or otherwise or (iv) increase action does not materially deprive the risk Parent of any Governmental Authority asserting jurisdiction over the benefits of the transactions contemplated herebyherein. Each It shall not be deemed a failure to satisfy the conditions specified in Sections 9.4 or 10.4, if in any suit brought by any Person or Governmental Authority challenging the transactions contemplated by this Agreement as violative of any Antitrust Law, a court enters or the applicable Governmental Authority makes an order or decree permitting the transactions contemplated by this Agreement, but requiring that any of the Seller and businesses, product lines or assets of any of the Parent or its Affiliates or of the Company, any Company Subsidiary or their respective Affiliates be divested or held separate by the Parent, or that would otherwise limit the Parent’s freedom of action with respect to, or its ability to retain, the Company shall take such actions as set forth on Section 7.4(e)(ii) and any Company Subsidiary or any portion thereof or any of the Disclosure Letter in accordance with the terms thereof andParent’s or its Affiliates’ other assets or businesses, for the avoidance of doubt, the Buyer agrees but only and to the terms and conditions set forth thereinextent that any such action does not materially deprive the Parent of the benefits of the transactions contemplated herein.
(fe) Each Party party hereto shall promptly inform the other Parties parties of any material communication from the Federal Trade Commission, the Department of Justice or any other Governmental Authority regarding any of the transactions contemplated by this Agreement. Each Party will, and will cause its Affiliates to, provide the other Parties with copies of all substantive correspondence, filings or communications between them or any of their Representatives, on the one hand, and any Governmental Authority or members of its staff, on the other hand, with respect to this Agreement and the transactions contemplated by this Agreement; provided, however, that materials may be redacted as necessary to (i) comply with contractual arrangements and (ii) address reasonable attorney-client or other privilege or confidentiality concerns. If any Party party or any Affiliate thereof receives a request for additional information or documentary material from any such Governmental Authority with respect to the transactions contemplated by this Agreement, then such Party party will use its reasonable best efforts endeavor in good faith to make, or cause to be made, as soon as reasonably practicable and after consultation with the other Partyparty, an appropriate response in compliance with such request. Each Party The Parent will advise the other Parties Company promptly in respect of any understandings, undertakings or agreements (whether oral or written) that any Party proposes, in its sole discretion, which the Parent proposes to make or enter into with the Federal Trade Commission, the Department of Justice or any other Governmental Authority in connection with the transactions contemplated by this Agreement.
(f) Notwithstanding the foregoing, and give such other Parties the opportunity Institutional Stockholders shall not be subject to attend and participate at any meetings with respect thereto. None the obligations of the Parties (including their respective Subsidiaries) will agree to participate parties hereto contained in any substantive meeting, telephone call or discussion with a Governmental Authority in respect of any submissions, filings, investigation (including any settlement of the investigation), litigation or other inquiry relating to the matters that are the subject of this Agreement unless it consults with the other Parties in advance (in each case to the extent reasonably practicable) and, except as may be prohibited by a Governmental Authority or by any Law, will permit authorized Representatives of the other Parties to be present at each substantive meeting, telephone call or discussionSection 8.3.
Appears in 1 contract
Samples: Merger Agreement (BioScrip, Inc.)
Filings and Authorizations; Consummation. (a) The Buyer Subject to the terms and the Company shallconditions herein, as promptly as reasonably practicable following the date hereof file or supplyeach party hereto agrees to use reasonable best efforts to take, or cause to be filed or supplied in connection with the transactions contemplated hereintaken, all filings (action, and to the extent relevantdo, draft versions of filings) and briefing papers set forth on Section 8.4 of the Disclosure Letter. The Buyer acknowledges and agrees that it shall pay and shall be solely responsible for the payment of all filing fees required or cause to be paid in respect of any filing contemplated by this Section 7.4.
(b) Subject to Section 7.4(d), each of the Parties, done as promptly as practicable, shall makeall things necessary, or cause to be made, all other filings proper and submissions not otherwise addressed advisable under Section 7.4(a), including Antitrust Laws, applicable to it, or to its Subsidiaries or Affiliates, as may be required for it Law to consummate and make effective as promptly as practicable the transactions contemplated herein and use its reasonable best efforts (which Acquisition. Subject to appropriate confidentiality protections, each party hereto shall not require a Party furnish to make any payment or concession to any Person in connection with obtaining such Person’s consent) to obtain, or cause to be obtained, all other authorizations, approvals, consents and waivers from all Persons and Governmental Authorities necessary to be obtained by it, or its Subsidiaries or Affiliates, in order for it to consummate such transactions. None of the Parties shall (and shall cause their Affiliates not to) (i) consent to any voluntary extension of any statutory deadline or waiting period; (ii) pull and refile any filing made under any Antitrust Laws; or (iii) consent to any other voluntary delay of the consummation of the transactions contemplated by this Agreement at the behest of any Governmental Authority, in each case, without the prior written consent of the other Parties, parties such consent not to be unreasonably withheld, conditioned or delayed.
(c) The Parties shall coordinate necessary information and reasonably cooperate with one another in promptly exchanging and providing such information to each other and in making the filings and requests referred to in Sections 7.4(a) and 7.4(b) above. The Parties shall promptly supply such reasonable assistance as such other party may be reasonably requested by any other Party request in connection with the foregoing.
(db) Notwithstanding anything to Each of the contrary parties shall cooperate with one another in this Agreement, each Party shall use, good faith and shall cause its Subsidiaries to use, use reasonable best efforts to prepare all necessary documentation (including furnishing all information required under the HSR Act or other Competition Laws) to effect promptly all necessary filings and to obtain all consents, waivers and approvals necessary to consummate the transactions contemplated by this Agreement prior Agreement. Each party hereto shall provide to the Termination Dateother parties copies of all correspondence between it (or its advisors) and any Governmental Antitrust Entity relating to the Acquisition or any of the matters described in this Section 7.4. For Each such party shall promptly inform the Buyer other parties hereto of any oral communication with, and provide copies of written communications with any Governmental Authority regarding any such filings or any such transaction. No party hereto shall independently participate in any formal meeting with any Governmental Authority in respect of any such filings, investigation, or other inquiry without giving the other parties hereto prior notice of the meeting and, to the extent permitted by such Governmental Authority, the opportunity to attend and/or participate. Subject to applicable Law, the parties hereto will consult and cooperate with one another in connection with any analyses, appearances, presentations, memoranda, briefs, arguments, opinions and proposals made or submitted by or on behalf of any party hereto relating to proceedings under the HSR Act or other Competition Laws.
(c) Without limiting the generality of the undertakings pursuant to this Section 7.4, the parties hereto shall (i) as promptly as practicable, but in no event later than five (5) Business Days after the date hereof, submit all filings required under the HSR Act (which shall include a request for early termination of the applicable waiting period under the HSR Act), and (ii) as promptly as practicable, but in no event later than ten (10) Business Days after the date hereof, submit all filings required under the Competition Laws listed in Section 7.4(c) of the Company Disclosure Letter. The parties shall respond as promptly as practicable to any request for additional information or documentary material that may be made under the HSR Act and any requests for information under any other applicable Competition Law. Fees associated with filings required by the HSR Act and any other applicable Competition Law shall be borne by the Purchaser.
(d) Each of the parties hereto shall use reasonable best efforts to resolve such objections, if any, as may be asserted by any Governmental Antitrust Entity with respect to the Acquisition under any Competition Law. In connection therewith, if any Action is instituted (or threatened to be instituted) challenging the Acquisition as in violation of any Competition Law, each of the parties hereto shall cooperate and use its Subsidiaries reasonable best efforts to contest and resist any such Action, and to have vacated, lifted, reversed or overturned any temporary or preliminary Order that is in effect and that prohibits, prevents or restricts consummation of the Acquisition. In connection with and without limiting the foregoing, each of the Purchaser and the Company agrees to use reasonable best efforts to promptly take any and all steps necessary as may be required to cause the expiration of the notice periods under the HSR Act and any other Competition Laws that may be asserted by any Governmental Antitrust Entity, so as to enable the parties to consummate the Acquisition as expeditiously as possible.
(but not e) Notwithstanding anything to the Seller and its Subsidiaries)contrary herein, none of Parent, the Purchaser or the Company shall be required to take or agree to any action under this Section 7.4 that would reasonably be expected to result in the reduction of $65 million or more in revenues in any fiscal year. Subject to the foregoing sentence, “reasonable best efforts” under this Section 7.4 shall include using such efforts to (x) avoid or eliminate each and every impediment, resolve any objection and obtain all consents under any applicable Law (including Antitrust Laws) as promptly as practicable so as to enable the Parties to consummate the transactions contemplated by this Agreement and (y) avoid the entry or to effect the dissolution of, or vacate or lift, any order, objection of any Governmental Authority or cause the termination of any waiting period under applicable Law (including Antitrust Laws) that would otherwise have the effect of preventing, impairing or delaying the Closing, including an obligation to:
(i) proposing(A) sell, negotiating and offering to commit and effect (and if such offer is accepted, committing to and effecting), by order, consent decreedivest, hold separate order, trust, or otherwise, the saleseparate, license, divestiturecause a third party to acquire, disposition or hold separate of such entitiesotherwise dispose of, assetsany Company Subsidiary, Intellectual Propertyoperations, divisions, businesses, product lines, equity interests, properties customers or services assets of the Buyer Purchaser, its Affiliates, or any of its or their respective Subsidiaries contemporaneously with or after the Closing and regardless as to whether a third party buyer has been identified or approved prior to the Closing (including, following the Closing, members of the Company Groupa “Divestiture”), or otherwise offering to (B) take or offering to commit to take such other actions that may limit the Purchaser, its Affiliates, or any action (including any action that limits of its or their respective Subsidiaries’ freedom of action, ownership or control action with respect to, or their its ability to retain retain, one or holdmore of its operations, divisions, businesses, products lines, customers or assets, and (C) enter into any Order, consent decree, or other agreement to effectuate any of the businesses, assets, product lines, equity interests, properties or services of the Buyer or its Subsidiaries or of the Company Group) to the extent legally permissible, and if the offer is accepted, taking or committing to take such action, (ii) terminating, amending, relinquishing, modifying, waiving or assigning existing relationships, ventures or contractual rights, obligations or other arrangements of the Buyer or its Subsidiaries, (iii) changing or modifying, or agreeing not to engage in, any course of conduct regarding future operations, (iv) creating any relationships, ventures, contractual rights, obligations or other arrangements of the Buyer or its Subsidiaries, (v) committing to take any such actions in the foregoing clauses (i), (ii), (iii) or (iv), (vi) entering or offering to enter into agreements and stipulating to the entry of an Order or decree or filing appropriate applications with any Governmental Authority in connection with any of the actions contemplated by the foregoing clauses (i), (ii), (iii) or (iv), and (vii) opposing, and causing its Subsidiaries to oppose, through and including Action on the merits (and all appeals with respect thereto), any Action asserted in court or other forum by any Governmental Authority or other Person in order to avoid entry of, or to have vacated or terminated, any decree, Order or judgment (whether temporary, preliminary or permanent) that would restrain or prevent the Closing by the Termination Dateforegoing; provided, howeverthat, that the Buyer Purchaser shall not be required to take, or commit or agree to take (or cause its Affiliates to take, or commit or agree to take), any of the foregoing actions to the extent (xunder this Section 7.4(e)(i) such action involves the assets, properties or rights of the Buyer or any of its Affiliates (other than, following the Closing, the Company and its Subsidiaries), except with respect to actions that are of an administrative or ministerial nature, or (y) if such action would have result in a material adverse effect as measured on the Company Groupcombined business of Purchaser, taken as a whole, assuming that its Affiliates and the Company Group has the same enterprise value and Company Subsidiaries; and
(ii) terminate any Contract or other financial attributes as the Buyer and its Subsidiaries, taken as a wholebusiness relationship; in each case, as of the date hereof. For the avoidance of doubt, the Buyer shall not require the Seller or member of the Company Group to, and neither the Seller nor any member of the Company Group shall may be required to take (x) obtain any action with respect necessary clearance of any Governmental Antitrust Entity or to any Order or obtain termination of any applicable Law that would bind waiting period under any member of the Company Group prior to the Closing or bind the Seller at any time or (y) any action contemplated by clauses (i) through (vi) of the immediately prior sentence that is not conditioned upon the Closing. In addition and without limiting the other provisions of this Section 7.4, the Buyer shall use reasonable best efforts to defend through litigation, appealing, contesting or otherwise resisting any Action or Order by any Governmental Authority or private party, challenging the transactions contemplated hereby, including to defend through litigation on the merits any claim asserted in court by any Person in order to avoid entry of, or to have vacated or terminated, any Order (whether temporary, preliminary or permanent) that would delay the Closing or prevent the Closing by the Termination Date; provided, however, that such litigation in no way limits the other obligations of the Buyer set forth in this Section 7.4(d)Competition Laws.
(ef) Except as specifically required by this Agreement, the Buyer The Purchaser shall not, and shall cause all of its Subsidiaries Affiliates not to, acquire or agree to enter into a business combination or otherwise acquire acquire, by merging with or into or consolidating with, or by purchasing a substantial portion of the assets of or equity in or otherwise make any investment in, or by any other manner, any Person business or portion any corporation, partnership, association, limited liability company, joint venture or other business organization or division thereof, or otherwise acquire or agree to acquire or make any investment in any assets, if the entering into of a definitive agreement relating to to, or the consummation of such acquisition, merger, business combination, consolidation, merger or investment would or consolidation would reasonably be expected to to: (i) impose any material delay in the obtaining of, or materially increase the risk of not obtaining, any consentGovernmental Authorization, approval, authorization, declaration, waiver, license, franchise, permit, certificate permit or order Order of any Governmental Authority Antitrust Entity necessary to satisfy the conditions to Closing set forth in Section 8.4, Section 8.5, Section 8.6, Section 9.4, Section 9.6 or Section 9.7 to consummate the transactions contemplated hereby or the expiration or termination of any applicable waiting period, ; (ii) materially increase the risk of any Governmental Authority (including any Governmental Antitrust Entity) entering an order Order prohibiting the consummation of the transactions contemplated hereby, ; (iii) materially increase the risk of not being able to remove any such order Order on appeal or otherwise otherwise; or (iv) increase otherwise reasonably be expected to materially delay or prevent the risk of any Governmental Authority asserting jurisdiction over the transactions contemplated hereby. Each consummation of the Seller and the Company shall take such actions as set forth on Section 7.4(e)(ii) of the Disclosure Letter in accordance with the terms thereof and, for the avoidance of doubt, the Buyer agrees to the terms and conditions set forth thereinAcquisition.
(f) Each Party shall promptly inform the other Parties of any material communication from the Federal Trade Commission, the Department of Justice or any other Governmental Authority regarding any of the transactions contemplated by this Agreement. Each Party will, and will cause its Affiliates to, provide the other Parties with copies of all substantive correspondence, filings or communications between them or any of their Representatives, on the one hand, and any Governmental Authority or members of its staff, on the other hand, with respect to this Agreement and the transactions contemplated by this Agreement; provided, however, that materials may be redacted as necessary to (i) comply with contractual arrangements and (ii) address reasonable attorney-client or other privilege or confidentiality concerns. If any Party or any Affiliate thereof receives a request for additional information or documentary material from any such Governmental Authority with respect to the transactions contemplated by this Agreement, then such Party will use its reasonable best efforts to make, or cause to be made, as soon as reasonably practicable and after consultation with the other Party, an appropriate response in compliance with such request. Each Party will advise the other Parties promptly in respect of any understandings, undertakings or agreements (oral or written) that any Party proposes, in its sole discretion, to make or enter into with the Federal Trade Commission, the Department of Justice or any other Governmental Authority in connection with the transactions contemplated by this Agreement, and give such other Parties the opportunity to attend and participate at any meetings with respect thereto. None of the Parties (including their respective Subsidiaries) will agree to participate in any substantive meeting, telephone call or discussion with a Governmental Authority in respect of any submissions, filings, investigation (including any settlement of the investigation), litigation or other inquiry relating to the matters that are the subject of this Agreement unless it consults with the other Parties in advance (in each case to the extent reasonably practicable) and, except as may be prohibited by a Governmental Authority or by any Law, will permit authorized Representatives of the other Parties to be present at each substantive meeting, telephone call or discussion.
Appears in 1 contract
Filings and Authorizations; Consummation. (a) The Buyer Sellers, the Company and the Company shallBuyer shall use their respective reasonable best efforts to obtain the authorizations, as promptly as reasonably practicable following consents, Orders and approvals necessary for their execution and delivery of, and the date hereof file or supply, or cause performance of their obligations pursuant to be filed or supplied in connection with the transactions contemplated herein, all filings (and to the extent relevant, draft versions of filings) and briefing papers set forth on Section 8.4 of the Disclosure Lettereach Transaction Document. The Sellers, the Company and the Buyer acknowledges shall use their respective reasonable best efforts to obtain such approvals of and agrees that it shall pay and shall be solely responsible for the payment of all filing fees required take such action with respect to be paid in respect of any filing contemplated by this Section 7.4.
(b) Subject to Section 7.4(d), each of the Parties, as promptly as practicable, shall make, or cause to be made, all other filings and submissions not otherwise addressed under Section 7.4(a), including Antitrust Laws, applicable to it, or to its Subsidiaries or AffiliatesGovernmental Authority, as may be required for it necessary to consummate the transactions contemplated herein and use by this Agreement; provided, however, that, notwithstanding anything to the contrary, in no event shall the Buyer or any of its reasonable best efforts Affiliates be required to (which shall not require a) commence or threaten to commence litigation; (b) agree to hold separate, divest, license or cause a Party third party to make purchase, any payment of the assets or concession businesses of the Buyer, the Company or any of their respective Affiliates; or (c) otherwise agree to any Person restrictions on the businesses of the Buyer, the Company or any of their respective Affiliates in connection with obtaining such Person’s consent) avoiding or eliminating any restrictions to obtain, or cause to be obtained, all other authorizations, approvals, consents and waivers from all Persons and Governmental Authorities necessary to be obtained by it, or its Subsidiaries or Affiliates, in order for it to consummate such transactions. None of the Parties shall (and shall cause their Affiliates not to) (i) consent to any voluntary extension of any statutory deadline or waiting period; (ii) pull and refile any filing made under any Antitrust Laws; or (iii) consent to any other voluntary delay of the consummation of the transactions contemplated by this Agreement at the behest of under any Governmental Authority, in each case, without the prior written consent of the other Parties, such consent not to be unreasonably withheld, conditioned applicable Law or delayed.
(c) Order. The Parties parties hereto shall coordinate and reasonably cooperate with one another in promptly exchanging and providing such information to each other and in making the filings and requests referred to in Sections 7.4(a) and 7.4(b) abovethis Section 7.6. The Parties parties hereto shall promptly use commercially reasonable efforts to supply such reasonable assistance as may be reasonably requested by any other Party party hereto in connection with the foregoing.
(db) Notwithstanding anything to the contrary in this AgreementThe Company shall, each Party shall use, and shall cause its Subsidiaries to use, reasonable best efforts to consummate the transactions contemplated by this Agreement prior to the Termination Date. For the Buyer and its Subsidiaries (but not the Seller and its Subsidiaries), “reasonable best efforts” shall include using such efforts to (x) avoid or eliminate each and every impediment, resolve any objection and obtain all consents under any applicable Law (including Antitrust Laws) as promptly as practicable so as following each of the date hereof and the Closing Date, file an amendment to enable its registration on Form ADV under the Parties to consummate the transactions contemplated by this Agreement and (y) avoid the entry or to effect the dissolution of, or vacate or lift, any order, objection of any Governmental Authority or cause the termination of any waiting period under applicable Law (including Antitrust Laws) that would otherwise have the effect of preventing, impairing or delaying the Closing, including (i) proposing, negotiating and offering to commit and effect Advisers Act (and if such offer is acceptedeach of its other registrations under any other federal, committing to and effecting)state or local Laws, by order, consent decree, hold separate order, trust, or otherwise, the sale, license, divestiture, disposition or hold separate of such entities, assets, Intellectual Property, businesses, product lines, equity interests, properties or services of the Buyer or its Subsidiaries (including, following the Closing, members of the Company Group), or otherwise offering to take or offering to commit to take any action (including any action that limits their freedom of action, ownership or control with respect to, or their ability to retain or hold, any of the businesses, assets, product lines, equity interests, properties or services of the Buyer or its Subsidiaries or of the Company Group) to the extent legally permissible, and if the offer is accepted, taking necessary or committing advisable under such Laws) to take such action, (ii) terminating, amending, relinquishing, modifying, waiving or assigning existing relationships, ventures or contractual rights, obligations or other arrangements of the Buyer or its Subsidiaries, (iii) changing or modifying, or agreeing not to engage in, any course of conduct regarding future operations, (iv) creating any relationships, ventures, contractual rights, obligations or other arrangements of the Buyer or its Subsidiaries, (v) committing to take any such actions in the foregoing clauses (i), (ii), (iii) or (iv), (vi) entering or offering to enter into agreements and stipulating reflect changes to the entry of an Order or decree or filing appropriate applications with any Governmental Authority in connection with any of the actions contemplated by the foregoing clauses (i), (ii), (iii) or (iv), and (vii) opposing, and causing its Subsidiaries to oppose, through and including Action on the merits (and all appeals with respect thereto), any Action asserted in court or other forum by any Governmental Authority or other Person in order to avoid entry of, or to have vacated or terminated, any decree, Order or judgment (whether temporary, preliminary or permanent) that would restrain or prevent the Closing by the Termination Date; provided, however, that the Buyer shall not be required to take, or commit or agree to take (or cause its Affiliates to take, or commit or agree to take), any of the foregoing actions to the extent (x) such action involves the assets, properties or rights of the Buyer or any of its Affiliates (other than, following the Closing, the Company and its Subsidiaries), except with respect to actions that are of an administrative or ministerial nature, or (y) such action would have a material adverse effect on the Company Group, taken as a whole, assuming that the Company Group has the same enterprise value and other financial attributes as the Buyer and its Subsidiaries, taken as a whole, as of the date hereof. For the avoidance of doubt, the Buyer shall not require the Seller or member of the Company Group to, and neither the Seller nor any member of the Company Group shall be required to take (x) any action with respect to any Order or any applicable Law that would bind any member of the Company Group prior to the Closing or bind the Seller at any time or (y) any action contemplated by clauses (i) through (vi) of the immediately prior sentence that is not conditioned upon the Closing. In addition and without limiting the other provisions of this Section 7.4, the Buyer shall use reasonable best efforts to defend through litigation, appealing, contesting or otherwise resisting any Action or Order by any Governmental Authority or private party, challenging the transactions contemplated hereby, including to defend through litigation on the merits any claim asserted in court by any Person in order to avoid entry of, or to have vacated or terminated, any Order (whether temporary, preliminary or permanent) that would delay the Closing or prevent the Closing by the Termination Date; provided, however, that such litigation in no way limits the other obligations of the Buyer set forth in this Section 7.4(d).
(e) Except as specifically required by this Agreement, the Buyer shall not, and shall cause all of its Subsidiaries not to, acquire or agree to enter into a business combination or otherwise acquire by merging or consolidating with, or by purchasing a substantial portion of the assets of or equity in or otherwise make any investment in, or by any other manner, any Person or portion thereof, or otherwise acquire or agree to acquire or make any investment in any assets, if the entering into of a definitive agreement relating to or the consummation of such acquisition, merger, business combination, consolidation, or investment would or would reasonably be expected to (i) impose any material delay in the obtaining of, or materially increase the risk of not obtaining, any consent, approval, authorization, declaration, waiver, license, franchise, permit, certificate or order of any Governmental Authority necessary to satisfy the conditions to Closing set forth in Section 8.4, Section 8.5, Section 8.6, Section 9.4, Section 9.6 or Section 9.7 to consummate the transactions contemplated hereby or the expiration or termination of any applicable waiting period, (ii) materially increase the risk of any Governmental Authority entering an order prohibiting the consummation of the transactions contemplated hereby, (iii) materially increase the risk of not being able to remove any such order on appeal or otherwise or (iv) increase the risk of any Governmental Authority asserting jurisdiction over the transactions contemplated hereby. Each of the Seller and the Company shall take such actions as set forth on Section 7.4(e)(ii) of the Disclosure Letter in accordance with the terms thereof and, for the avoidance of doubt, the Buyer agrees to the terms and conditions set forth therein.
(f) Each Party shall promptly inform the other Parties of any material communication information contained therein resulting from the Federal Trade Commission, the Department of Justice or any other Governmental Authority regarding any of the transactions contemplated by this Agreement. Each Party will, and will cause its Affiliates to, provide the other Parties with copies of all substantive correspondence, filings or communications between them or any of their Representatives, on the one hand, and any Governmental Authority or members of its staff, on the other hand, with respect to this Agreement and the transactions contemplated by this Agreement; provided, however, that materials may be redacted as necessary to (i) comply with contractual arrangements and (ii) address reasonable attorney-client or other privilege or confidentiality concerns. If any Party or any Affiliate thereof receives a request for additional information or documentary material from any such Governmental Authority with respect to the transactions contemplated by this Agreement, then such Party will use its reasonable best efforts to make, or cause to be made, as soon as reasonably practicable and after consultation with the other Party, an appropriate response in compliance with such request. Each Party will advise the other Parties promptly in respect of any understandings, undertakings or agreements (oral or written) that any Party proposes, in its sole discretion, to make or enter into with the Federal Trade Commission, the Department of Justice or any other Governmental Authority in connection with the transactions contemplated by this Agreement, and give such other Parties the opportunity to attend and participate at any meetings with respect thereto. None of the Parties (including their respective Subsidiaries) will agree to participate in any substantive meeting, telephone call or discussion with a Governmental Authority in respect of any submissions, filings, investigation (including any settlement of the investigation), litigation or other inquiry relating to the matters that are the subject of this Agreement unless it consults with the other Parties in advance (in each case to the extent reasonably practicable) and, except as may be prohibited by a Governmental Authority or by any Law, will permit authorized Representatives of the other Parties to be present at each substantive meeting, telephone call or discussionContemplated Transactions.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Evercore Partners Inc.)
Filings and Authorizations; Consummation. (a) The Buyer Sponsor (or appropriate Affiliates thereof) and the Company shall, as promptly as reasonably practicable within 10 Business Days following the date hereof hereof, file or supply, or cause to be filed or supplied supplied, in connection with the transactions contemplated hereinContemplated Transactions, all filings (notifications and information required to the extent relevant, draft versions of filings) and briefing papers set forth on Section 8.4 of the Disclosure Letterbe filed or supplied pursuant to Antitrust Laws. The Buyer Sponsor acknowledges and agrees that it shall pay and shall be solely responsible for the payment of all of its filing fees required to be paid in respect of any filing contemplated by this Section 7.4and other charges under the Antitrust Laws.
(b) Subject to Section 7.4(d)The Sponsor, each of on the Partiesone hand, and the Company, on the other hand, as promptly as practicable, shall make, or cause to be made, all other filings and submissions not otherwise addressed in Section 5.10(a) under Section 7.4(a), including Antitrust Laws, rules and regulations applicable to it, or to its Subsidiaries or Affiliates, as may be required for it to consummate the transactions contemplated herein Contemplated Transactions and shall, subject to Section 5.8, use its reasonable best efforts (which shall not require a Party to make any payment or concession to any Person in connection with obtaining such Person’s consent) to obtain, or cause to be obtained, all other authorizations, approvals, consents and waivers from all Persons and Governmental Authorities necessary to be obtained by it, or its Subsidiaries or Affiliates, it in order for it to consummate such transactions. None of the Parties shall (and shall cause their Affiliates not to) (i) consent to any voluntary extension of any statutory deadline or waiting period; (ii) pull and refile any filing made under any Antitrust Laws; or (iii) consent to any other voluntary delay of the consummation of the transactions contemplated by this Agreement at the behest of any Governmental Authority, in each case, without the prior written consent of the other Parties, such consent not to be unreasonably withheld, conditioned or delayed.
(c) The Parties parties shall coordinate and reasonably cooperate with one another in promptly exchanging and providing such information to each other and in making the filings and requests referred to in Sections 7.4(aparagraphs (a) and 7.4(b(b) above. The Parties Each party shall promptly supply such reasonable assistance as may be reasonably requested by any the other Party party in connection with the foregoing.
(d) Notwithstanding anything to the contrary in this Agreement, each Party shall use, and shall cause its Subsidiaries to use, reasonable best efforts to consummate the transactions contemplated by this Agreement prior to the Termination Date. For the Buyer and its Subsidiaries (but not the Seller and its Subsidiaries), “reasonable best efforts” shall include using such efforts to (x) avoid or eliminate each and every impediment, resolve any objection and obtain all consents under any applicable Law (including Antitrust Laws) as promptly as practicable so as to enable the Parties to consummate the transactions contemplated by this Agreement and (y) avoid the entry or to effect the dissolution of, or vacate or lift, any order, objection of any Governmental Authority or cause the termination of any waiting period under applicable Law (including Antitrust Laws) that would otherwise have the effect of preventing, impairing or delaying the Closing, including (i) proposing, negotiating and offering to commit and effect (and if such offer is accepted, committing to and effecting), by order, consent decree, hold separate order, trust, or otherwise, the sale, license, divestiture, disposition or hold separate of such entities, assets, Intellectual Property, businesses, product lines, equity interests, properties or services of the Buyer or its Subsidiaries (including, following the Closing, members of the Company Group), or otherwise offering to take or offering to commit to take any action (including any action that limits their freedom of action, ownership or control with respect to, or their ability to retain or hold, any of the businesses, assets, product lines, equity interests, properties or services of the Buyer or its Subsidiaries or of the Company Group) to the extent legally permissible, and if the offer is accepted, taking or committing to take such action, (ii) terminating, amending, relinquishing, modifying, waiving or assigning existing relationships, ventures or contractual rights, obligations or other arrangements of the Buyer or its Subsidiaries, (iii) changing or modifying, or agreeing not to engage in, any course of conduct regarding future operations, (iv) creating any relationships, ventures, contractual rights, obligations or other arrangements of the Buyer or its Subsidiaries, (v) committing to take any such actions in the foregoing clauses (i), (ii), (iii) or (iv), (vi) entering or offering to enter into agreements and stipulating to the entry of an Order or decree or filing appropriate applications with any Governmental Authority in connection with any of the actions contemplated by the foregoing clauses (i), (ii), (iii) or (iv), and (vii) opposing, and causing its Subsidiaries to oppose, through and including Action on the merits (and all appeals with respect thereto), any Action asserted in court or other forum by any Governmental Authority or other Person in order to avoid entry of, or to have vacated or terminated, any decree, Order or judgment (whether temporary, preliminary or permanent) that would restrain or prevent the Closing by the Termination Date; provided, however, that the Buyer shall not be required to take, or commit or agree to take (or cause its Affiliates to take, or commit or agree to take), any of the foregoing actions to the extent (x) such action involves the assets, properties or rights of the Buyer or any of its Affiliates (other than, following the Closing, the Company and its Subsidiaries), except with respect to actions that are of an administrative or ministerial nature, or (y) such action would have a material adverse effect on the Company Group, taken as a whole, assuming that the Company Group has the same enterprise value and other financial attributes as the Buyer and its Subsidiaries, taken as a whole, as of the date hereof. For the avoidance of doubt, the Buyer shall not require the Seller or member of the Company Group to, and neither the Seller nor any member of the Company Group shall be required to take (x) any action with respect to any Order or any applicable Law that would bind any member of the Company Group prior to the Closing or bind the Seller at any time or (y) any action contemplated by clauses (i) through (vi) of the immediately prior sentence that is not conditioned upon the Closing. In addition and without limiting the other provisions of this Section 7.4, the Buyer shall use reasonable best efforts to defend through litigation, appealing, contesting or otherwise resisting any Action or Order by any Governmental Authority or private party, challenging the transactions contemplated hereby, including to defend through litigation on the merits any claim asserted in court by any Person in order to avoid entry of, or to have vacated or terminated, any Order (whether temporary, preliminary or permanent) that would delay the Closing or prevent the Closing by the Termination Date; provided, however, that such litigation in no way limits the other obligations of the Buyer set forth in this Section 7.4(d).
(e) Except as specifically required by this Agreement, the Buyer shall not, and shall cause all of its Subsidiaries not to, acquire or agree to enter into a business combination or otherwise acquire by merging or consolidating with, or by purchasing a substantial portion of the assets of or equity in or otherwise make any investment in, or by any other manner, any Person or portion thereof, or otherwise acquire or agree to acquire or make any investment in any assets, if the entering into of a definitive agreement relating to or the consummation of such acquisition, merger, business combination, consolidation, or investment would or would reasonably be expected to (i) impose any material delay in the obtaining of, or materially increase the risk of not obtaining, any consent, approval, authorization, declaration, waiver, license, franchise, permit, certificate or order of any Governmental Authority necessary to satisfy the conditions to Closing set forth in Section 8.4, Section 8.5, Section 8.6, Section 9.4, Section 9.6 or Section 9.7 to consummate the transactions contemplated hereby or the expiration or termination of any applicable waiting period, (ii) materially increase the risk of any Governmental Authority entering an order prohibiting the consummation of the transactions contemplated hereby, (iii) materially increase the risk of not being able to remove any such order on appeal or otherwise or (iv) increase the risk of any Governmental Authority asserting jurisdiction over the transactions contemplated hereby. Each of the Seller and the Company shall take such actions as set forth on Section 7.4(e)(ii) of the Disclosure Letter in accordance with the terms thereof and, for the avoidance of doubt, the Buyer agrees to the terms and conditions set forth therein.
(f) Each Party party shall promptly inform the other Parties party of any material communication from the Federal Trade Commission, the Department of Justice or any other Governmental Authority regarding any of the transactions contemplated by this Agreement. Each Party will, and will cause its Affiliates to, provide the other Parties with copies of all substantive correspondence, filings or communications between them or any of their Representatives, on the one hand, and any Governmental Authority or members of its staff, on the other hand, with respect to this Agreement and the transactions contemplated by this Agreement; provided, however, that materials may be redacted as necessary to (i) comply with contractual arrangements and (ii) address reasonable attorney-client or other privilege or confidentiality concernsContemplated Transactions. If any Party party or any Affiliate thereof receives a request for additional information or documentary material from any such Governmental Authority with respect to the transactions contemplated by this AgreementContemplated Transactions, then such Party will party shall use its reasonable best efforts to make, or cause to be made, as soon as reasonably practicable and after consultation with the other Partyparty, an appropriate response in compliance with such request. Each Party will The Sponsor shall advise the other Parties Company promptly in respect of any understandings, undertakings or agreements (oral or written) that any Party proposes, in its sole discretion, which the Sponsor proposes to make or enter into with the Federal Trade Commission, the Department of Justice or any other Governmental Authority in connection with the transactions contemplated by this Agreement, and give such other Parties the opportunity to attend and participate at any meetings with respect thereto. None of the Parties (including their respective Subsidiaries) will agree to participate in any substantive meeting, telephone call or discussion with a Governmental Authority in respect of any submissions, filings, investigation (including any settlement of the investigation), litigation or other inquiry relating to the matters that are the subject of this Agreement unless it consults with the other Parties in advance (in each case to the extent reasonably practicable) and, except as may be prohibited by a Governmental Authority or by any Law, will permit authorized Representatives of the other Parties to be present at each substantive meeting, telephone call or discussionContemplated Transactions.
Appears in 1 contract
Samples: Recapitalization and Investment Agreement (Radioshack Corp)
Filings and Authorizations; Consummation. (a) The Buyer and the Company shall, if required by applicable law, as promptly as reasonably practicable practicable, but in no event later than ten Business Days following the date hereof hereof, file or supply, or cause to be filed or supplied in connection with the transactions contemplated herein, all filings (notifications and information required to be filed or supplied pursuant to the extent relevant, draft versions of filings) and briefing papers set forth on Section 8.4 of the Disclosure LetterHSR Act. The Buyer acknowledges and agrees that it shall pay and shall be solely responsible for the payment of all filing fees required to be paid in respect of any and other charges for the filing contemplated by this Section 7.4under the HSR Act.
(b) Subject to Section 7.4(d), each Each of the PartiesBuyer and the Company, as promptly as practicable, shall make, or cause to be made, all other filings and submissions not otherwise addressed under Section 7.4(a)laws, including Antitrust Laws, rules and regulations applicable to it, or to its Subsidiaries or and Affiliates, as may be required for it to consummate the transactions contemplated herein Contemplated Transactions and use its commercially reasonable best efforts (which shall not require a Party either party to make any payment or concession to any Person in connection with obtaining such Person’s consent) to obtain, or cause to be obtained, all other authorizations, approvals, consents and waivers from all Persons and Governmental Authorities and other Persons necessary to be obtained by it, or its Subsidiaries or Affiliates, in order for it to consummate such transactions. None of the Parties shall (and shall cause their Affiliates not to) (i) consent to any voluntary extension of any statutory deadline or waiting period; (ii) pull and refile any filing made under any Antitrust Laws; or (iii) consent to any other voluntary delay of the consummation of the transactions contemplated by this Agreement at the behest of any Governmental Authority, in each case, without the prior written consent of the other Parties, such consent not to be unreasonably withheld, conditioned or delayedContemplated Transactions.
(c) The Parties Buyer, the Company and the Sellers shall coordinate and reasonably cooperate with one another in promptly exchanging and providing such information to each other and in making the filings and requests referred to in Sections 7.4(a) and 7.4(b) above); provided, however, that no such party shall be required to share information with the other parties with respect to the filing under the HSR Act which is not related to the Contemplated Transactions. The Parties parties hereto shall promptly supply such reasonable assistance as may be reasonably requested by any other Party party hereto in connection with the foregoing.
(d) Notwithstanding anything to the contrary in this Agreement, each Party shall use, and shall cause its Subsidiaries to use, reasonable best efforts to consummate the transactions contemplated by this Agreement prior to the Termination Date. For Each of the Buyer and its Subsidiaries (but not the Seller and its Subsidiaries), “reasonable best efforts” shall include using such efforts to (x) avoid or eliminate each and every impediment, resolve any objection and obtain all consents under any applicable Law (including Antitrust Laws) as promptly as practicable so as to enable the Parties to consummate the transactions contemplated by this Agreement and (y) avoid the entry or to effect the dissolution of, or vacate or lift, any order, objection of any Governmental Authority or cause the termination of any waiting period under applicable Law (including Antitrust Laws) that would otherwise have the effect of preventing, impairing or delaying the Closing, including (i) proposing, negotiating and offering to commit and effect (and if such offer is accepted, committing to and effecting), by order, consent decree, hold separate order, trust, or otherwise, the sale, license, divestiture, disposition or hold separate of such entities, assets, Intellectual Property, businesses, product lines, equity interests, properties or services of the Buyer or its Subsidiaries (including, following the Closing, members of the Company Group), or otherwise offering to take or offering to commit to take any action (including any action that limits their freedom of action, ownership or control with respect to, or their ability to retain or hold, any of the businesses, assets, product lines, equity interests, properties or services of the Buyer or its Subsidiaries or of the Company Group) to the extent legally permissible, and if the offer is accepted, taking or committing to take such action, (ii) terminating, amending, relinquishing, modifying, waiving or assigning existing relationships, ventures or contractual rights, obligations or other arrangements of the Buyer or its Subsidiaries, (iii) changing or modifying, or agreeing not to engage in, any course of conduct regarding future operations, (iv) creating any relationships, ventures, contractual rights, obligations or other arrangements of the Buyer or its Subsidiaries, (v) committing to take any such actions in the foregoing clauses (i), (ii), (iii) or (iv), (vi) entering or offering to enter into agreements and stipulating to the entry of an Order or decree or filing appropriate applications with any Governmental Authority in connection with any of the actions contemplated by the foregoing clauses (i), (ii), (iii) or (iv), and (vii) opposing, and causing its Subsidiaries to oppose, through and including Action on the merits (and all appeals with respect thereto), any Action asserted in court or other forum by any Governmental Authority or other Person in order to avoid entry of, or to have vacated or terminated, any decree, Order or judgment (whether temporary, preliminary or permanent) that would restrain or prevent the Closing by the Termination Date; provided, however, that the Buyer shall not be required to take, or commit or agree to take (or cause its Affiliates to take, or commit or agree to take), any of the foregoing actions to the extent (x) such action involves the assets, properties or rights of the Buyer or any of its Affiliates (other than, following the Closing, the Company and its Subsidiaries), except with respect to actions that are of an administrative or ministerial nature, or (y) such action would have a material adverse effect on the Company Group, taken as a whole, assuming that the Company Group has the same enterprise value and other financial attributes as the Buyer and its Subsidiaries, taken as a whole, as of the date hereof. For the avoidance of doubt, the Buyer shall not require the Seller or member of the Company Group to, and neither the Seller nor any member of the Company Group shall be required to take (x) any action with respect to any Order or any applicable Law that would bind any member of the Company Group prior to the Closing or bind the Seller at any time or (y) any action contemplated by clauses (i) through (vi) of the immediately prior sentence that is not conditioned upon the Closing. In addition and without limiting the other provisions of this Section 7.4, the Buyer shall use reasonable best efforts to defend through litigation, appealing, contesting or otherwise resisting any Action or Order by any Governmental Authority or private party, challenging the transactions contemplated hereby, including to defend through litigation on the merits any claim asserted in court by any Person in order to avoid entry of, or to have vacated or terminated, any Order (whether temporary, preliminary or permanent) that would delay the Closing or prevent the Closing by the Termination Date; provided, however, that such litigation in no way limits the other obligations of the Buyer set forth in this Section 7.4(d).
(e) Except as specifically required by this Agreement, the Buyer shall not, and shall cause all of its Subsidiaries not to, acquire or agree to enter into a business combination or otherwise acquire by merging or consolidating with, or by purchasing a substantial portion of the assets of or equity in or otherwise make any investment in, or by any other manner, any Person or portion thereof, or otherwise acquire or agree to acquire or make any investment in any assets, if the entering into of a definitive agreement relating to or the consummation of such acquisition, merger, business combination, consolidation, or investment would or would reasonably be expected to (i) impose any material delay in the obtaining of, or materially increase the risk of not obtaining, any consent, approval, authorization, declaration, waiver, license, franchise, permit, certificate or order of any Governmental Authority necessary to satisfy the conditions to Closing set forth in Section 8.4, Section 8.5, Section 8.6, Section 9.4, Section 9.6 or Section 9.7 to consummate the transactions contemplated hereby or the expiration or termination of any applicable waiting period, (ii) materially increase the risk of any Governmental Authority entering an order prohibiting the consummation of the transactions contemplated hereby, (iii) materially increase the risk of not being able to remove any such order on appeal or otherwise or (iv) increase the risk of any Governmental Authority asserting jurisdiction over the transactions contemplated hereby. Each of the Seller and the Company shall take such actions as set forth on Section 7.4(e)(ii) of the Disclosure Letter in accordance with the terms thereof and, for the avoidance of doubt, the Buyer agrees to the terms and conditions set forth therein.
(f) Each Party shall promptly inform the other Parties parties of any material communication from the Federal Trade Commission, the Department of Justice or any other Governmental Authority regarding any of the transactions contemplated by this AgreementContemplated Transactions. Each Party will, and will cause its Affiliates to, provide If the other Parties with copies of all substantive correspondence, filings Buyer or communications between them the Company or any of their Representatives, on the one hand, and any Governmental Authority or members of its staff, on the other hand, with respect to this Agreement and the transactions contemplated by this Agreement; provided, however, that materials may be redacted as necessary to (i) comply with contractual arrangements and (ii) address reasonable attorney-client or other privilege or confidentiality concerns. If any Party or any Affiliate thereof respective Affiliates receives a request for additional information or documentary material from any such Governmental Authority with respect to the transactions contemplated by this AgreementContemplated Transactions, then such Party party will use its reasonable best efforts endeavor in good faith to make, or cause to be made, as soon as reasonably practicable and after consultation with the other Partyparty, an appropriate response in compliance with such request. Each Party The Buyer will advise the other Parties Company promptly in respect of any understandings, undertakings or agreements (oral or written) that any Party proposes, in its sole discretion, which the Buyer proposes to make or enter into with the Federal Trade Commission, the Department of Justice or any other Governmental Authority in connection with Contemplated Transactions.
(e) Between the transactions contemplated date hereof and the Closing, neither Buyer nor Onex Partners II LP nor any entity controlled by this Agreement, and give such other Parties the opportunity Onex Partners II LP shall acquire control or enter into an agreement to attend and participate at acquire control of any meetings with respect thereto. None of the Parties (including their respective Subsidiaries) will agree to participate entities listed in any substantive meeting, telephone call or discussion with a Governmental Authority in respect Schedule 6.10(b). For purposes of any submissions, filings, investigation (including any settlement of the investigationthis Section 7.4(e), litigation or other inquiry relating to the matters that are term “control” (and variations thereof) shall have the subject of this Agreement unless it consults with meaning set forth in the other Parties in advance (in each case to rules under the extent reasonably practicable) and, except as may be prohibited by a Governmental Authority or by any Law, will permit authorized Representatives of the other Parties to be present at each substantive meeting, telephone call or discussionHSR Act.
Appears in 1 contract
Filings and Authorizations; Consummation. (a) The Buyer and the Company Each Party shall, as promptly as reasonably practicable (i) within 10 Business Days following the date hereof or as otherwise agreed to by the parties in writing, file or supply, or cause to be filed or supplied supplied, in connection with the transactions contemplated hereinhereby, all filings (notifications and information required to be filed or supplied pursuant to the extent relevantHSR Act and (ii) as soon as reasonably practicable following the date hereof, draft versions of filings) file or supply, or cause to be filed or supplied, in connection with the transactions contemplated hereby, all notifications and briefing papers set forth on Section 8.4 of the Disclosure Letterinformation required to be filed or supplied under any other applicable Antitrust Laws. The Buyer acknowledges and agrees that it shall pay and shall be solely responsible for the payment of all filing fees required to be paid in respect of for any filing contemplated by this Section 7.4under the HSR Act or under any other applicable Antitrust Law.
(b) Subject to Section 7.4(d), each of the PartiesEach Party, as promptly as practicablepracticable following the date hereof, shall make, or cause to be made, all other filings and submissions not otherwise addressed (other than those contemplated by Section 5.03(a)) under Section 7.4(a), including Antitrust Laws, any Law applicable to it, it or to its Subsidiaries or Affiliates, as may be required for it to consummate the transactions contemplated herein hereby and use its reasonable best efforts (which shall not require a Party to make any payment or concession to any Person in connection with obtaining such Person’s consent) to obtain, or cause to be obtained, all other authorizations, approvals, consents and waivers Consents from all Persons and Governmental Authorities Entities necessary to be obtained by it, it or its Subsidiaries or Affiliates, Affiliates in order for it to consummate such transactions. None of the Parties shall (Xxxxx acknowledges and shall cause their Affiliates not to) (i) consent agrees that certain Consents with respect to any voluntary extension of any statutory deadline or waiting period; (ii) pull and refile any filing made under any Antitrust Laws; or (iii) consent to any other voluntary delay of the consummation of the transactions contemplated by this Agreement at may be required from parties to Contracts to which the behest Business Companies or a Parent Entity is a party and that such Consents have not been and may not be obtained. Xxxxx agrees that Parent and its Affiliates shall not have any Liability to Buyer arising out of or relating to the failure to obtain any Consent that may be required in connection with the transactions contemplated by this Agreement or because of the termination of any Governmental AuthorityContract as a result thereof, and that no such failure or termination shall result in each casethe failure of any condition set forth in Article VI. For purposes of this Section 5.03(b), without “reasonable best efforts” in connection with pursuing any such Consent will not be deemed to require the prior written consent expenditure or payment of any funds or the other Parties, making of any concession by Parent or any of its Affiliates to the counterparty to such consent not to be unreasonably withheld, conditioned or delayedContract.
(c) The Parties shall, and shall cause their respective Affiliates to, coordinate and reasonably cooperate with one another in promptly exchanging and providing such information to each other and in making the filings and requests referred to in Sections 7.4(aSection 5.03(a) and 7.4(b) aboveSection 5.03(b). The Parties shall, and shall promptly cause their respective Affiliates to, supply to any Governmental Entity as soon as reasonably practical any additional information requested by such Governmental Entity or required pursuant to any applicable Laws. The Parties shall, and shall cause their respective Affiliates to, supply such reasonable assistance as may be reasonably requested by any other Party in connection with the foregoing.
(d) Notwithstanding anything to the contrary in this Agreement, each Party shall useBuyer shall, and shall cause its Subsidiaries Affiliates to, take any and all steps necessary to use, reasonable best efforts to consummate the transactions contemplated by this Agreement prior to the Termination Date. For the Buyer and its Subsidiaries (but not the Seller and its Subsidiaries), “reasonable best efforts” shall include using such efforts to (x) avoid or eliminate each and every impediment, resolve any objection and obtain all consents impediment under any applicable Antitrust Law that may be asserted by any Governmental Entity (including Antitrust Lawsany antitrust authority) as promptly as practicable or any other Person so as to enable the Parties to consummate the transactions contemplated by this Agreement as promptly as practicable, and in any event prior to the Outside Date (y) avoid the entry or to effect the dissolution of, or vacate or lift, any order, objection of any Governmental Authority or cause the termination of any waiting period under applicable Law (including Antitrust Laws) that would otherwise have the effect of preventing, impairing or delaying the Closing, including (i) proposing, negotiating and negotiating, offering to commit and effect (and if such offer is accepted, committing to and effecting), by orderOrder, consent decree, hold separate order, trust, trust or otherwise, the sale, divestiture, license, divestiture, disposition or hold separate of such entities, assets, Intellectual Property, businesses, product lines, equity interests, properties assets or services businesses of the Buyer or its Subsidiaries (including, following the Closing, members Affiliates or of the Company Group)Business Companies, or otherwise offering to take or offering to commit to take any action (including any action that limits their its freedom of action, ownership or control with respect to, or their its ability to retain or hold, any of the businesses, assets, product lines, equity interests, properties or services of the Buyer or its Subsidiaries Affiliates or of the Company GroupBusiness Companies) to the extent legally permissible, and if the offer is accepted, taking or committing to take such action, ; (ii) terminating, amending, relinquishing, modifying, modifying or waiving or assigning existing relationships, ventures or contractual rights, obligations or other arrangements of the Buyer or its Subsidiaries, (iii) changing or modifying, or agreeing not to engage in, any course of conduct regarding future operations, (iv) creating any relationships, ventures, contractual rights, obligations or other arrangements of the Buyer or its Subsidiaries, (v) committing to take any such actions in Affiliates or of the foregoing clauses (i), (ii), Business Companies; (iii) creating any relationship, venture, contractual right, obligation or other arrangement of Buyer or its Affiliates or of the Business Companies; (iv), (vi) entering or offering to enter into agreements and stipulating to the entry of an Order or decree or filing appropriate applications with any Governmental Authority Entity in connection with any of the actions contemplated by the foregoing clauses (i), (ii), (iii) or (iv), and (vii) opposing, and causing its Subsidiaries to oppose, through and including Action on the merits (and all appeals with respect thereto), any Action asserted in court or other forum by any Governmental Authority or other Person in order to avoid entry of, or to have vacated or terminated, any decree, Order or judgment (whether temporary, preliminary or permanent) that would restrain or prevent the Closing by the Termination Date; provided, however, that the Buyer shall not be required to take, or commit or agree to take (or cause its Affiliates to take, or commit or agree to take), any of the foregoing actions to the extent (x) such action involves the assets, properties or rights of the Buyer or any of its Affiliates (other than, following the Closing, the Company and its Subsidiaries), except with respect to actions that are of an administrative or ministerial nature, or (y) such action would have a material adverse effect on the Company Group, taken as a whole, assuming that the Company Group has the same enterprise value and other financial attributes as the Buyer and its Subsidiaries, taken as a whole, as of the date hereof. For the avoidance of doubt, the Buyer shall not require the Seller or member of the Company Group to, and neither the Seller nor any member of the Company Group shall be required to take (x) any action with respect to any Order or any applicable Law that would bind any member of the Company Group prior to the Closing or bind the Seller at any time or (y) any action contemplated by clauses (i) through (viiii); or (v) of the immediately prior sentence that is not conditioned upon the Closing. In addition and without limiting the other provisions of this Section 7.4, the Buyer shall use reasonable best efforts to defend through litigation, appealingdefending, contesting or otherwise resisting any Action or Order by any Governmental Authority Entity or private party, party challenging the transactions contemplated hereby) (the Actions described in clauses (i), including (ii), (iii), (iv) and (v), collectively, the “Remedy Actions”); provided that the effectiveness of any such Remedy Action shall be conditioned upon the Closing. It shall not be deemed a failure to defend through litigation on satisfy the merits conditions specified in Section 6.01(a) or Section 6.01(b) if, in any claim asserted in court Action brought by any Person or Governmental Entity challenging the transactions contemplated by this Agreement as violating any Antitrust Law, a court enters or the applicable Governmental Entity makes an Order or decree permitting the transactions contemplated by this Agreement, but requiring any Remedy Action. Notwithstanding anything to the contrary in order this Section 5.03(d) or any other provision of this Agreement, neither Parent nor any of its Affiliates shall be required to avoid entry ofsell, divest, dispose of or enter into any other arrangement or take any other Remedy Action with respect to, their businesses, product lines, assets or operations pursuant to have vacated this Section 5.03(d) or terminated, any Order other provision of this Agreement (whether temporary, preliminary other than Remedy Actions with respect to the Business or permanent) the Business Companies that would delay are conditioned upon the Closing or prevent and take effect from and after the Closing by the Termination Date; provided, however, that such litigation in no way limits the other obligations of the Buyer set forth in this Section 7.4(dClosing).
(e) Except as specifically required Parent and Buyer shall (and shall cause their respective Affiliates to), to the extent permitted by applicable Law, (i) give each other prompt notice of the making or commencement of any request, inquiry or proceeding by or before any Governmental Entity with respect to the transactions contemplated by this Agreement, (ii) keep each other reasonably informed as to the status of any such request, inquiry or proceeding, (iii) promptly inform each other of any communication (and provide each other with copies of all written communications) to or from any Governmental Entity, or any understanding, undertaking or agreement (oral or written) which Buyer or its Affiliates proposes to make or enter into with any Governmental Entity, in connection with the transactions contemplated by this Agreement, (iv) consult and cooperate with each other in good faith in connection with any meeting or oral communication, formal or informal, with any Governmental Entity in connection with the transactions contemplated by this Agreement and provide each other with reasonable advance notice and an opportunity to attend and participate in all such meetings and oral communications, (v) provide each other with reasonable advance opportunity to review and comment upon (and each shall consider in good faith the views of the other in connection with), any filing, registration, declaration, notice, analysis, appearance, presentation, memorandum, brief, argument, opinion, proposal or other communication, oral or written, made or submitted to any Governmental Entity regarding the transactions contemplated by this Agreement and (vi) promptly provide, after consulting with the other party, any additional or supplemental information requested by any Governmental Entity. Notwithstanding anything to the contrary in this Section 5.03(e), (x) materials provided to the other Party pursuant to this Section 5.03 may be redacted (A) as necessary to comply with contractual arrangements and (B) as necessary to address privilege or confidentiality concerns and (y) each Party shall have the right to reasonably designate information provided to the other Party as for the other side’s outside counsel only.
(f) Buyer shall not, and shall cause all not permit any of its Subsidiaries not Affiliates to, acquire or agree to enter into a business combination or otherwise acquire by merging or consolidating with, or by purchasing a substantial portion of the assets or Equity Securities of or equity in or otherwise make any investment in, or by any other manner, any Person or portion thereof, or otherwise acquire or agree to acquire or make any investment in any assetsasset, or agree to a commercial or strategic relationship with any Person, if the entering into of a definitive agreement relating to or the consummation of such acquisition, merger, business combination, consolidation, investment or investment would commercial or strategic relationship would reasonably be expected to (i) impose any material delay in the obtaining of, or materially increase the risk of not obtaining, any consent, approval, authorization, declaration, waiver, license, franchise, permit, certificate or order Order of any Governmental Authority Entity necessary to satisfy the conditions to Closing set forth in Section 8.4, Section 8.5, Section 8.6, Section 9.4, Section 9.6 or Section 9.7 to consummate the transactions contemplated hereby or the expiration or termination of any applicable waiting period, (ii) materially increase the risk of any Governmental Authority Entity entering an order Order prohibiting the consummation of the transactions contemplated hereby, hereby or (iii) materially increase delay the risk consummation of not being able to remove any such order on appeal or otherwise or (iv) increase the risk of any Governmental Authority asserting jurisdiction over the transactions contemplated hereby. Each of the Seller and the Company shall take such actions as set forth on Section 7.4(e)(ii) of the Disclosure Letter in accordance with the terms thereof and, for the avoidance of doubt, the Buyer agrees to the terms and conditions set forth therein.
(f) Each Party shall promptly inform the other Parties of any material communication from the Federal Trade Commission, the Department of Justice or any other Governmental Authority regarding any of the transactions contemplated by this Agreement. Each Party will, and will cause its Affiliates to, provide the other Parties with copies of all substantive correspondence, filings or communications between them or any of their Representatives, on the one hand, and any Governmental Authority or members of its staff, on the other hand, with respect to this Agreement and the transactions contemplated by this Agreement; provided, however, that materials may be redacted as necessary to (i) comply with contractual arrangements and (ii) address reasonable attorney-client or other privilege or confidentiality concerns. If any Party or any Affiliate thereof receives a request for additional information or documentary material from any such Governmental Authority with respect to the transactions contemplated by this Agreement, then such Party will use its reasonable best efforts to make, or cause to be made, as soon as reasonably practicable and after consultation with the other Party, an appropriate response in compliance with such request. Each Party will advise the other Parties promptly in respect of any understandings, undertakings or agreements (oral or written) that any Party proposes, in its sole discretion, to make or enter into with the Federal Trade Commission, the Department of Justice or any other Governmental Authority in connection with the transactions contemplated by this Agreement, and give such other Parties the opportunity to attend and participate at any meetings with respect thereto. None of the Parties (including their respective Subsidiaries) will agree to participate in any substantive meeting, telephone call or discussion with a Governmental Authority in respect of any submissions, filings, investigation (including any settlement of the investigation), litigation or other inquiry relating to the matters that are the subject of this Agreement unless it consults with the other Parties in advance (in each case to the extent reasonably practicable) and, except as may be prohibited by a Governmental Authority or by any Law, will permit authorized Representatives of the other Parties to be present at each substantive meeting, telephone call or discussion.
Appears in 1 contract
Samples: Share and Asset Purchase Agreement (Sonoco Products Co)
Filings and Authorizations; Consummation. (a) The Upon the terms and subject to the conditions hereof, each of the Buyer and the Company shall, as promptly as reasonably practicable following the date hereof file Sellers shall use its or supply, his commercially reasonable efforts to take or cause to be filed taken all actions, and to do or supplied in connection with cause to be done all other things, necessary, proper or advisable to consummate the transactions contemplated herein, all filings (and to the extent relevant, draft versions of filings) and briefing papers set forth on Section 8.4 of the Disclosure Letter. The Buyer acknowledges and agrees that it shall pay and shall be solely responsible for the payment of all filing fees required to be paid in respect of any filing contemplated by this Section 7.4hereby as promptly as practicable.
(b) Subject to Section 7.4(d), each Each of the Partiesparties hereto, as promptly as practicable, shall make, or cause to be made, all other filings and submissions not otherwise addressed under Section 7.4(a)laws, including Antitrust Laws, rules and regulations applicable to it, or to its Subsidiaries or Affiliates, as may be required for it to consummate the transactions contemplated herein and use its commercially reasonable best efforts (which shall not require a Party to make any payment or concession to any Person in connection with obtaining such Person’s consent) to obtain, or cause to be obtained, all other authorizations, approvals, consents and waivers from all Persons and Governmental Authorities necessary to be obtained by it, or its Subsidiaries subsidiaries or Affiliates, in order for it to consummate such transactions. None of the Parties shall (and shall cause their Affiliates not to) (i) consent to any voluntary extension of any statutory deadline or waiting period; (ii) pull and refile any filing made under any Antitrust Laws; or (iii) consent to any other voluntary delay of the consummation of the transactions contemplated by this Agreement at the behest of any Governmental Authority, in each case, without the prior written consent of the other Parties, such consent not to be unreasonably withheld, conditioned or delayed.
(c) The Parties parties hereto shall coordinate and reasonably cooperate with one another in promptly exchanging and providing such information to each other and in making the filings and requests referred to in Sections 7.4(a) and 7.4(bparagraph (b) above. The Parties parties hereto shall promptly supply such reasonable assistance as may be reasonably requested by any other Party party hereto in connection with the foregoing.
(d) Notwithstanding anything to the contrary in this Agreement, each Party shall use, and shall cause its Subsidiaries to use, reasonable best efforts to consummate the transactions contemplated by this Agreement prior to the Termination Date. For the Buyer and its Subsidiaries (but not the Seller and its Subsidiaries), “reasonable best efforts” shall include using such efforts to (x) avoid or eliminate each and every impediment, resolve any objection and obtain all consents under any applicable Law (including Antitrust Laws) as promptly as practicable so as to enable the Parties to consummate the transactions contemplated by this Agreement and (y) avoid the entry or to effect the dissolution of, or vacate or lift, any order, objection of any Governmental Authority or cause the termination of any waiting period under applicable Law (including Antitrust Laws) that would otherwise have the effect of preventing, impairing or delaying the Closing, including (i) proposing, negotiating and offering to commit and effect (and if such offer is accepted, committing to and effecting), by order, consent decree, hold separate order, trust, or otherwise, the sale, license, divestiture, disposition or hold separate of such entities, assets, Intellectual Property, businesses, product lines, equity interests, properties or services of the Buyer or its Subsidiaries (including, following the Closing, members of the Company Group), or otherwise offering to take or offering to commit to take any action (including any action that limits their freedom of action, ownership or control with respect to, or their ability to retain or hold, any of the businesses, assets, product lines, equity interests, properties or services of the Buyer or its Subsidiaries or of the Company Group) to the extent legally permissible, and if the offer is accepted, taking or committing to take such action, (ii) terminating, amending, relinquishing, modifying, waiving or assigning existing relationships, ventures or contractual rights, obligations or other arrangements of the Buyer or its Subsidiaries, (iii) changing or modifying, or agreeing not to engage in, any course of conduct regarding future operations, (iv) creating any relationships, ventures, contractual rights, obligations or other arrangements of the Buyer or its Subsidiaries, (v) committing to take any such actions in the foregoing clauses (i), (ii), (iii) or (iv), (vi) entering or offering to enter into agreements and stipulating to the entry of an Order or decree or filing appropriate applications with any Governmental Authority in connection with any of the actions contemplated by the foregoing clauses (i), (ii), (iii) or (iv), and (vii) opposing, and causing its Subsidiaries to oppose, through and including Action on the merits (and all appeals with respect thereto), any Action asserted in court or other forum by any Governmental Authority or other Person in order to avoid entry of, or to have vacated or terminated, any decree, Order or judgment (whether temporary, preliminary or permanent) that would restrain or prevent the Closing by the Termination Date; provided, however, that the Buyer shall not be required to take, or commit or agree to take (or cause its Affiliates to take, or commit or agree to take), any of the foregoing actions to the extent (x) such action involves the assets, properties or rights of the Buyer or any of its Affiliates (other than, following the Closing, the Company and its Subsidiaries), except with respect to actions that are of an administrative or ministerial nature, or (y) such action would have a material adverse effect on the Company Group, taken as a whole, assuming that the Company Group has the same enterprise value and other financial attributes as the Buyer and its Subsidiaries, taken as a whole, as of the date hereof. For the avoidance of doubt, the Buyer shall not require the Seller or member of the Company Group to, and neither the Seller nor any member of the Company Group shall be required to take (x) any action with respect to any Order or any applicable Law that would bind any member of the Company Group prior to the Closing or bind the Seller at any time or (y) any action contemplated by clauses (i) through (vi) of the immediately prior sentence that is not conditioned upon the Closing. In addition and without limiting the other provisions of this Section 7.4, the Buyer shall use reasonable best efforts to defend through litigation, appealing, contesting or otherwise resisting any Action or Order by any Governmental Authority or private party, challenging the transactions contemplated hereby, including to defend through litigation on the merits any claim asserted in court by any Person in order to avoid entry of, or to have vacated or terminated, any Order (whether temporary, preliminary or permanent) that would delay the Closing or prevent the Closing by the Termination Date; provided, however, that such litigation in no way limits the other obligations of the Buyer set forth in this Section 7.4(d).
(e) Except as specifically required by this Agreement, the Buyer shall not, and shall cause all of its Subsidiaries not to, acquire or agree to enter into a business combination or otherwise acquire by merging or consolidating with, or by purchasing a substantial portion of the assets of or equity in or otherwise make any investment in, or by any other manner, any Person or portion thereof, or otherwise acquire or agree to acquire or make any investment in any assets, if the entering into of a definitive agreement relating to or the consummation of such acquisition, merger, business combination, consolidation, or investment would or would reasonably be expected to (i) impose any material delay in the obtaining of, or materially increase the risk of not obtaining, any consent, approval, authorization, declaration, waiver, license, franchise, permit, certificate or order of any Governmental Authority necessary to satisfy the conditions to Closing set forth in Section 8.4, Section 8.5, Section 8.6, Section 9.4, Section 9.6 or Section 9.7 to consummate the transactions contemplated hereby or the expiration or termination of any applicable waiting period, (ii) materially increase the risk of any Governmental Authority entering an order prohibiting the consummation of the transactions contemplated hereby, (iii) materially increase the risk of not being able to remove any such order on appeal or otherwise or (iv) increase the risk of any Governmental Authority asserting jurisdiction over the transactions contemplated hereby. Each of the Seller and the Company shall take such actions as set forth on Section 7.4(e)(ii) of the Disclosure Letter in accordance with the terms thereof and, for the avoidance of doubt, the Buyer agrees to the terms and conditions set forth therein.
(f) Each Party party hereto shall promptly inform the other Parties parties of any material communication from the Federal Trade Commission, the Department of Justice or any other Governmental Authority regarding any of the transactions contemplated by this Agreement. Each Party will.
(e) The parties hereto will not take any action that will have the effect of delaying, impairing or impeding the receipt of any required approvals and will cause its Affiliates to, provide the other Parties with copies of all substantive correspondence, filings or communications between them or shall promptly respond to any of their Representatives, on the one hand, and requests for additional information from any Governmental Authority or members of its staff, on the other hand, with respect to this Agreement and the transactions contemplated by this Agreement; provided, however, that materials may be redacted as necessary to (i) comply with contractual arrangements and (ii) address reasonable attorney-client or other privilege or confidentiality concerns. If any Party or any Affiliate thereof receives a request for additional information or documentary material from any such Governmental Authority with respect to the transactions contemplated by this Agreement, then such Party will use its reasonable best efforts to make, or cause to be made, as soon as reasonably practicable and after consultation with the other Party, an appropriate response in compliance with such request. Each Party will advise the other Parties promptly third party in respect of any understandings, undertakings or agreements (oral or written) that any Party proposes, in its sole discretion, to make or enter into with the Federal Trade Commission, the Department of Justice or any other Governmental Authority in connection with the transactions contemplated by this Agreement, and give such other Parties the opportunity to attend and participate at any meetings with respect thereto. None of the Parties (including their respective Subsidiaries) will agree to participate in any substantive meeting, telephone call or discussion with a Governmental Authority in respect of any submissions, filings, investigation (including any settlement of the investigation), litigation or other inquiry relating to the matters that are the subject of this Agreement unless it consults with the other Parties in advance (in each case to the extent reasonably practicable) and, except as may be prohibited by a Governmental Authority or by any Law, will permit authorized Representatives of the other Parties to be present at each substantive meeting, telephone call or discussionthereof.
Appears in 1 contract
Filings and Authorizations; Consummation. (a) The Buyer and Each of the Company parties hereto shall, as promptly as reasonably practicable following the date hereof if required by applicable Law, file or supply, or cause to be filed or supplied in connection with the transactions contemplated herein, all filings notifications (and or, if required by the relevant Governmental Authorities, drafts thereof) required to be filed or supplied pursuant to the extent relevantAntitrust Laws (including the HSR Act, draft versions of filings) and briefing papers set forth on Section 8.4 in connection with which the parties shall seek early termination of the Disclosure Letterwaiting period in respect thereof) within ten (10) Business Days following the date hereof, and all such filings shall not be withdrawn or otherwise rescinded without the prior written consent of all parties. The parties acknowledge and agree that the Buyer acknowledges and agrees that it the Seller shall each pay and shall be solely responsible for the payment of fifty percent (50%) of all filing fees required to be paid in respect and other charges for any filings under the Antitrust Laws; provided, that immediately following the Closing, the Company shall reimburse each of any filing contemplated by this Section 7.4the Buyer and the Seller for such fees and other charges.
(b) Subject to Section Sections 7.4(d)) and 7.5, each of the Partiesparties hereto, as promptly as practicable, shall make, or cause to be made, all other filings and submissions not otherwise addressed under Section 7.4(a), including Antitrust Laws, Laws applicable to it, or to its Subsidiaries or and Affiliates, as may be required for it to consummate the transactions contemplated herein and shall use its reasonable best efforts (which shall not require a Party to make any payment or concession to any Person in connection with obtaining such Person’s consent) to obtain, or cause to be obtained, all other authorizations, approvals, consents and waivers from all Persons (including any parties to Material Contracts) and Governmental Authorities necessary to be obtained by it, or its Subsidiaries or Affiliates, in order for it to consummate such transactions. None Each of the Parties shall (Buyer, Merger Sub I and shall cause their Affiliates not to) (i) consent Merger Sub II LLC acknowledges that certain consents with respect to any voluntary extension of any statutory deadline or waiting period; (ii) pull and refile any filing made under any Antitrust Laws; or (iii) consent to any other voluntary delay of the consummation of the transactions contemplated by this Agreement at may be required from parties to contracts to which the behest of any Governmental Authority, in each case, without the prior written consent Company or a Company Subsidiary is a party and that such consents and waivers may not be obtained. Each of the other PartiesBuyer, such consent Merger Sub I and Merger Sub II LLC agrees that the Seller and its Affiliates shall not have any liability to the Buyer, Merger Sub I, Merger Sub II LLC, the Company or any Company Subsidiary arising out of or relating to the failure to obtain any consents that may be unreasonably withheld, conditioned or delayedrequired in connection with the transaction contemplated by this Agreement.
(c) The Parties parties hereto shall coordinate and reasonably cooperate with one another in promptly exchanging and providing such information to each other and in making the filings and requests referred to in Sections 7.4(aparagraphs (a) and 7.4(b(b) above. The Parties parties hereto shall promptly supply such reasonable assistance as may be reasonably requested by any other Party party hereto in connection with the foregoing.
(d) Notwithstanding anything to the contrary in this Agreementherein, each Party shall use, and shall cause its Subsidiaries to use, reasonable best efforts to consummate if any order is made by any Governmental Authority or any suit is threatened or instituted challenging any of the transactions contemplated by this Agreement prior to as violative of any Antitrust Law, each of the Termination Date. For the Buyer Buyer, Merger Sub I and Merger Sub II LLC shall, and shall cause its Subsidiaries Affiliates to, take any and all such action (but not the Seller and its Subsidiaries), “reasonable best efforts” shall include using such efforts including agreeing to (x) avoid hold separate, divest or eliminate each license any of the businesses, product lines or assets of the Buyer, Merger Sub I, Merger Sub II LLC or any of their respective Affiliates (including, after the Closing Date, the Surviving Company), or any investment held directly or indirectly by the Company, or (y) any other limitations on the Buyer’s freedom of action with respect to, or its ability to retain, the Surviving Company and every impediment, resolve its Subsidiaries or any objection and obtain all consents under portion thereof or any applicable Law (including Antitrust Lawsof the Buyer’s or its Affiliates’ other assets or businesses) as may be required (i) by the applicable Governmental Authority in order to resolve such objections as such Governmental Authority may have to such transactions under such Antitrust Law or (ii) by any domestic or foreign court or similar tribunal, in any Action brought by any Person or Governmental Authority challenging the transactions contemplated by this Agreement as violative of any Antitrust Law, in order to avoid the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other order that has the effect of delaying or preventing the consummation of the transactions contemplated by this Agreement. It shall not be deemed a failure to satisfy the conditions specified in Sections 8.4 or 9.4 or give rise to the right to terminate this Agreement pursuant to Section 10.1(e), if in any suit brought by any Person or Governmental Authority challenging the transactions contemplated by this Agreement as violative of any Antitrust Law, a court enters or the applicable Governmental Authority makes an order or decree permitting the transactions contemplated by this Agreement, but requiring that any of the businesses, product lines or assets of any of the Buyer, Merger Sub I or Merger Sub II LLC or their respective Affiliates or of the Company, the Company Subsidiaries or any investment held directly or indirectly by the Company be divested, held separate or licensed by the Buyer, or that would otherwise limit the Buyer’s freedom of action with respect to, or its ability to retain, the Surviving Company and its Subsidiaries or any portion thereof or any of the Buyer’s or its Affiliates’ other assets or businesses.
(e) Each party hereto shall promptly inform the other parties of any material communication from the Federal Trade Commission, the Department of Justice or any other Governmental Authority regarding any of the transactions contemplated by this Agreement, and shall promptly furnish the other party with copies of substantive notices or other communications received from any third party or any Governmental Authority with respect to such transactions. Each party shall agree on the content of any proposed substantive written communication or submission or any oral communication to any Governmental Authority. If any party or any Affiliate thereof receives a request for additional information or documentary material from any such Governmental Authority with respect to the transactions contemplated by this Agreement, then such party will endeavor in good faith to make, or cause to be made, as soon as reasonably practicable so as and after consultation with the other party, an appropriate response in compliance with such request. The parties shall, to enable the Parties extent practicable, provide the other party and its counsel with advance notice of and the opportunity to consummate participate in any substantive discussion, telephone call or meeting with any Governmental Authority in respect of any filing, investigation or other inquiry in connection with the transactions contemplated by this Agreement and (y) avoid to participate in the entry preparation for such discussion, telephone call or to effect the dissolution ofmeeting, or vacate or lift, any order, objection of any Governmental Authority or cause the termination of any waiting period under applicable Law (including Antitrust Laws) that would otherwise have the effect of preventing, impairing or delaying the Closing, including (i) proposing, negotiating and offering to commit and effect (and if such offer is accepted, committing to and effecting), by order, consent decree, hold separate order, trust, or otherwise, the sale, license, divestiture, disposition or hold separate of such entities, assets, Intellectual Property, businesses, product lines, equity interests, properties or services of the Buyer or its Subsidiaries (including, following the Closing, members of the Company Group), or otherwise offering to take or offering to commit to take any action (including any action that limits their freedom of action, ownership or control with respect to, or their ability to retain or hold, any of the businesses, assets, product lines, equity interests, properties or services of the Buyer or its Subsidiaries or of the Company Group) to the extent legally permissible, and if not prohibited by the offer is accepted, taking or committing to take such action, (ii) terminating, amending, relinquishing, modifying, waiving or assigning existing relationships, ventures or contractual rights, obligations or other arrangements Governmental Authority. Each of the Buyer Buyer, Merger Sub I and Merger Sub II LLC will advise the Company promptly in respect of any understandings, undertakings or its Subsidiariesagreements (oral or written) which the Buyer, (iii) changing Merger Sub I or modifying, Merger Sub II LLC proposes to make or agreeing not to engage in, any course of conduct regarding future operations, (iv) creating any relationships, ventures, contractual rights, obligations or other arrangements of the Buyer or its Subsidiaries, (v) committing to take any such actions in the foregoing clauses (i), (ii), (iii) or (iv), (vi) entering or offering to enter into agreements and stipulating to with the entry Federal Trade Commission, the Department of an Order Justice or decree or filing appropriate applications with any other Governmental Authority in connection with any of the actions contemplated by the foregoing clauses (i), (ii), (iii) or (iv), and (vii) opposing, and causing its Subsidiaries to oppose, through and including Action on the merits (and all appeals with respect thereto), any Action asserted in court or other forum by any Governmental Authority or other Person in order to avoid entry of, or to have vacated or terminated, any decree, Order or judgment (whether temporary, preliminary or permanent) that would restrain or prevent the Closing by the Termination Date; provided, however, that the Buyer shall not be required to take, or commit or agree to take (or cause its Affiliates to take, or commit or agree to take), any of the foregoing actions to the extent (x) such action involves the assets, properties or rights of the Buyer or any of its Affiliates (other than, following the Closing, the Company and its Subsidiaries), except with respect to actions that are of an administrative or ministerial nature, or (y) such action would have a material adverse effect on the Company Group, taken as a whole, assuming that the Company Group has the same enterprise value and other financial attributes as the Buyer and its Subsidiaries, taken as a whole, as of the date hereof. For the avoidance of doubt, the Buyer shall not require the Seller or member of the Company Group to, and neither the Seller nor any member of the Company Group shall be required to take (x) any action with respect to any Order or any applicable Law that would bind any member of the Company Group prior to the Closing or bind the Seller at any time or (y) any action contemplated by clauses (i) through (vi) of the immediately prior sentence that is not conditioned upon the Closing. In addition and without limiting the other provisions of this Section 7.4, the Buyer shall use reasonable best efforts to defend through litigation, appealing, contesting or otherwise resisting any Action or Order by any Governmental Authority or private party, challenging the transactions contemplated hereby, including to defend through litigation on the merits any claim asserted in court by any Person in order to avoid entry of, or to have vacated or terminated, any Order (whether temporary, preliminary or permanent) that would delay the Closing or prevent the Closing by the Termination Date; provided, however, that such litigation in no way limits the other obligations of the Buyer set forth in this Section 7.4(d)Agreement.
(ef) Except as specifically required by this AgreementEach of the Buyer, the Buyer Merger Sub I and Merger Sub II LLC shall not, and shall cause all not permit any of its Subsidiaries not Affiliates to, acquire or agree to enter into a business combination or otherwise acquire by merging or consolidating with, or by purchasing a substantial portion of the assets of of, or equity in in, or otherwise make any investment in, or by any other manner, any Person or portion thereof, or otherwise acquire or agree to acquire or make any investment in any material assets, if the entering into of a definitive agreement relating to or the consummation of such acquisition, merger, business combination, consolidation, or investment would or would reasonably be expected to (i) impose any material delay in the obtaining of, or materially increase the risk of not obtaining, any consent, approval, authorization, declaration, waiver, license, franchise, permit, certificate or order of any Governmental Authority necessary to satisfy the conditions to Closing set forth in Section 8.4, Section 8.5, Section 8.6, Section 9.4, Section 9.6 or Section 9.7 to consummate the transactions contemplated hereby or the expiration or termination of any applicable waiting period, (ii) materially increase the risk of any Governmental Authority entering an order prohibiting the consummation of the transactions contemplated hereby, (iii) materially increase the risk of not being able to remove any such order on appeal or otherwise or (iv) increase the risk of any Governmental Authority asserting jurisdiction over the transactions contemplated hereby. Each of the Seller and the Company shall take such actions as set forth on Section 7.4(e)(ii) of the Disclosure Letter in accordance with the terms thereof and, for the avoidance of doubt, the Buyer agrees to the terms and conditions set forth therein.
(f) Each Party shall promptly inform the other Parties of any material communication from the Federal Trade Commission, the Department of Justice or any other Governmental Authority regarding any of the transactions contemplated by this Agreement. Each Party will, and will cause its Affiliates to, provide the other Parties with copies of all substantive correspondence, filings or communications between them or any of their Representatives, on the one hand, and any Governmental Authority or members of its staff, on the other hand, with respect to this Agreement and the transactions contemplated by this Agreement; provided, however, that materials may be redacted as necessary to (i) comply with contractual arrangements and (ii) address reasonable attorney-client or other privilege or confidentiality concerns. If any Party or any Affiliate thereof receives a request for additional information or documentary material from any such Governmental Authority with respect to the transactions contemplated by this Agreement, then such Party will use its reasonable best efforts to make, or cause to be made, as soon as reasonably practicable and after consultation with the other Party, an appropriate response in compliance with such request. Each Party will advise the other Parties promptly in respect of any understandings, undertakings or agreements (oral or written) that any Party proposes, in its sole discretion, to make or enter into with the Federal Trade Commission, the Department of Justice or any other Governmental Authority in connection with the transactions contemplated by this Agreement, and give such other Parties the opportunity to attend and participate at any meetings with respect thereto. None of the Parties (including their respective Subsidiaries) will agree to participate in any substantive meeting, telephone call or discussion with a Governmental Authority in respect of any submissions, filings, investigation (including any settlement of the investigation), litigation or other inquiry relating to the matters that are the subject of this Agreement unless it consults with the other Parties in advance (in each case to the extent reasonably practicable) and, except as may be prohibited by a Governmental Authority or by any Law, will permit authorized Representatives of the other Parties to be present at each substantive meeting, telephone call or discussion.
Appears in 1 contract
Samples: Agreement and Plan of Merger (M III Acquisition Corp.)
Filings and Authorizations; Consummation. (a) The Buyer and Each of the Company parties hereto shall, as promptly as reasonably practicable following the date hereof if required by applicable Law, no later than ten (10) Business Days, file or supply, or cause to be filed or supplied in connection with the transactions contemplated herein, all filings (notifications and information required to the extent relevant, draft versions of filings) and briefing papers set forth on Section 8.4 of the Disclosure Letterbe filed or supplied pursuant to any Antitrust Law. The Buyer acknowledges and agrees that it shall pay and shall be solely responsible for the payment of all filing fees required to be paid in respect of any filing contemplated by this Section 7.4associated with such filings.
(b) Subject to Section 7.4(d), each Each of the Partiesparties hereto, as promptly as practicable, shall make, or cause to be made, all other filings and submissions not otherwise addressed under Section 7.4(a), including Antitrust Laws, Laws applicable to it, or to its Subsidiaries or and Affiliates, as may be required for it to consummate the transactions contemplated herein and use its commercially reasonable best efforts (which shall not require a Party any party to make any payment or concession to any Person in connection with obtaining such Person’s consent) to obtain, or cause to be obtained, all other authorizations, approvals, consents and waivers from all Persons and Governmental Authorities necessary to be obtained by it, or its Subsidiaries or Affiliates, in order for it to consummate such transactions. None of the Parties shall (The parties hereto acknowledge that certain consents and shall cause their Affiliates not to) (i) consent waivers with respect to any voluntary extension of any statutory deadline or waiting period; (ii) pull and refile any filing made under any Antitrust Laws; or (iii) consent to any other voluntary delay of the consummation of the transactions contemplated by this Agreement at may be required from parties to Contracts to which the behest of any Governmental Authority, in each case, without Target Entities or a Company Subsidiary is a party and that may not be obtained prior to the prior written consent of the other Parties, such consent not to be unreasonably withheld, conditioned or delayedClosing.
(c) The Parties parties hereto shall coordinate and reasonably cooperate with one another in promptly exchanging and providing such information to each other and in making the filings and requests referred to in Sections 7.4(aparagraphs (a) and 7.4(b(b) above. The Parties parties hereto shall promptly supply such reasonable assistance as may be reasonably requested by any other Party party hereto in connection with the foregoing; provided, however, that the parties hereby agree that any commercially sensitive information may be shared on a counsel to counsel basis only.
(d) Notwithstanding anything to the contrary in this Agreement, each Party shall use, and shall cause its Subsidiaries to use, reasonable best efforts to consummate if any Order is made or any Action is threatened or instituted challenging any of the transactions contemplated by this Agreement prior to the Termination Date. For the as violating any Antitrust Law, Buyer shall, and shall cause its Subsidiaries Affiliates to, take any and all such action (but not the Seller and its Subsidiaries), “reasonable best efforts” shall include using such efforts to (x) avoid or eliminate each and every impediment, resolve any objection and obtain all consents under any applicable Law (including Antitrust Laws) as promptly as practicable so as to enable the Parties to consummate the transactions contemplated by this Agreement and (y) avoid the entry or to effect the dissolution of, or vacate or lift, any order, objection of any Governmental Authority or cause the termination of any waiting period under applicable Law (including Antitrust Laws) that would otherwise have the effect of preventing, impairing or delaying the Closing, including including: (i) proposing, negotiating and negotiating, offering to commit and effect (and if such offer is accepted, committing to and effecting), by orderOrder, consent decree, hold separate order, trust, or otherwise, the sale, divestiture, license, divestiture, disposition or hold separate of such entities, assets, Intellectual Property, businesses, product lines, equity interests, properties assets or services businesses of the Buyer or its Subsidiaries (including, following the Closing, members of the Company Group)Affiliates, or otherwise offering to take or offering to commit to take any action (including any action that limits their its freedom of action, ownership or control with respect to, or their its ability to retain or hold, any of the businesses, assets, product lines, equity interests, properties or services of the Buyer or its Subsidiaries Affiliates or of the Target Entities, any Company GroupSubsidiary or their respective affiliates) to the extent legally permissible, and if the offer is accepted, taking or committing to take such action, ; (ii) terminating, amending, relinquishing, modifying, modifying or waiving or assigning existing relationships, ventures or ventures, contractual rights, obligations or other arrangements of the Buyer or its Subsidiaries, Affiliates; (iii) changing or modifying, or agreeing not to engage in, any course of conduct regarding future operations, (iv) creating any relationships, ventures, contractual rights, obligations or other arrangements of the Buyer or its Subsidiaries, (v) committing to take any such actions in the foregoing clauses (i), (ii), (iii) or Affiliates; (iv), (vi) entering or offering to enter into agreements and stipulating to the entry of an Order or decree or filing appropriate applications with any Governmental Authority in connection with any of the actions contemplated by the foregoing clauses (i), (ii), (iii) or (iv), and (vii) opposing, and causing its Subsidiaries to oppose, through and including Action on the merits (and all appeals with respect thereto), any Action asserted in court or other forum by any Governmental Authority or other Person in order to avoid entry of, or to have vacated or terminated, any decree, Order or judgment (whether temporary, preliminary or permanent) that would restrain or prevent the Closing by the Termination Date; provided, however, that the Buyer shall not be required to take, or commit or agree to take (or cause its Affiliates to take, or commit or agree to take), any of the foregoing actions to the extent (x) such action involves the assets, properties or rights of the Buyer or any of its Affiliates (other than, following the Closing, the Company and its Subsidiaries), except with respect to actions that are of an administrative or ministerial nature, or (y) such action would have a material adverse effect on the Company Group, taken as a whole, assuming that the Company Group has the same enterprise value and other financial attributes as the Buyer and its Subsidiaries, taken as a whole, as of the date hereof. For the avoidance of doubt, the Buyer shall not require the Seller or member of the Company Group to, and neither the Seller nor any member of the Company Group shall be required to take (x) any action with respect to any Order or any applicable Law that would bind any member of the Company Group prior to the Closing or bind the Seller at any time or (y) any action contemplated by clauses (i) through (viiii); or (v) of the immediately prior sentence that is not conditioned upon the Closing. In addition and without limiting the other provisions of this Section 7.4, the Buyer shall use reasonable best efforts to defend through litigation, appealingdefending, contesting or otherwise resisting any Action or Order by any Governmental Authority or private party, challenging the transactions contemplated hereby) as may be required (x) by the applicable Governmental Authority (including the Antitrust Division of the United States Department of Justice or the Federal Trade Commission) in order to resolve such objections as such Governmental Authority may have to such transactions under such Antitrust Law or (y) by any domestic or foreign court or similar tribunal, including to defend through litigation on the merits in any claim asserted in court action brought by any Person or Governmental Authority challenging the transactions contemplated by this Agreement as violating any Antitrust Law, in order to avoid the entry of, or to have vacated or terminatedeffect the dissolution of, any injunction, temporary restraining order or other Order (whether temporary, preliminary that has the effect of delaying or permanent) that would delay the Closing or prevent the Closing by the Termination Date; provided, however, that such litigation in no way limits the other obligations of the Buyer set forth in this Section 7.4(d).
(e) Except as specifically required by this Agreement, the Buyer shall not, and shall cause all of its Subsidiaries not to, acquire or agree to enter into a business combination or otherwise acquire by merging or consolidating with, or by purchasing a substantial portion of the assets of or equity in or otherwise make any investment in, or by any other manner, any Person or portion thereof, or otherwise acquire or agree to acquire or make any investment in any assets, if the entering into of a definitive agreement relating to or the consummation of such acquisition, merger, business combination, consolidation, or investment would or would reasonably be expected to (i) impose any material delay in the obtaining of, or materially increase the risk of not obtaining, any consent, approval, authorization, declaration, waiver, license, franchise, permit, certificate or order of any Governmental Authority necessary to satisfy the conditions to Closing set forth in Section 8.4, Section 8.5, Section 8.6, Section 9.4, Section 9.6 or Section 9.7 to consummate the transactions contemplated hereby or the expiration or termination of any applicable waiting period, (ii) materially increase the risk of any Governmental Authority entering an order prohibiting preventing the consummation of the transactions contemplated herebyby this Agreement. It shall not be deemed a failure to satisfy the conditions specified in Section 8.1(c) or Section 8.2(c), (iii) materially increase the risk of not being able to remove if in any such order on appeal suit brought by any Person or otherwise or (iv) increase the risk of any Governmental Authority asserting jurisdiction over challenging the transactions contemplated hereby. Each by this Agreement as violating any Antitrust Law, a court enters or the applicable Governmental Authority makes an Order permitting the transactions contemplated by this Agreement, but requiring that any of the Seller businesses, product lines or assets of any of Buyer or its Affiliates or of the Target Entities, the Company Subsidiaries or their respective Affiliates be divested or held separate by Buyer, or that would otherwise limit Buyer’s freedom of action with respect to, or its ability to retain, the Target Entities and the Company shall take such actions as set forth on Section 7.4(e)(ii) Subsidiaries or any portion thereof or any of the Disclosure Letter in accordance with the terms thereof and, for the avoidance of doubt, the Buyer agrees to the terms and conditions set forth thereinBuyer’s or its Affiliates’ other assets or businesses.
(fe) Each Party party hereto shall promptly inform the other Parties parties of any material communication from the Federal Trade Commission, the Department of Justice or any other Governmental Authority regarding any of the transactions contemplated by this Agreement. Each Party will, and will cause its Affiliates to, provide to the extent informing the other Parties party is consistent with copies applicable Law and would not result in a waiver of all substantive correspondence, filings or communications between them or any of their Representatives, on the one hand, and any Governmental Authority or members of its staff, on the other hand, with respect to this Agreement and the transactions contemplated by this Agreement; provided, however, that materials may be redacted as necessary to (i) comply with contractual arrangements and (ii) address reasonable attorney-client or other privilege or confidentiality concernsapplicable privilege. If any Party party hereto or any Affiliate thereof receives a request for additional information or documentary material from any such Governmental Authority with respect to the transactions contemplated by this Agreement, then such Party party will use its reasonable best efforts endeavor in good faith to make, or cause to be made, as soon as reasonably practicable and after consultation with the other Partyparty, an appropriate response in compliance with such request, to the extent such response is consistent with applicable Law and would not result in a waiver of any applicable privilege. Each Party Buyer will advise the other Parties Target Entities promptly in respect of any understandings, undertakings or agreements (oral or written) that any Party proposes, in its sole discretion, which Buyer proposes to make or enter into with the Federal Trade Commission, the Department of Justice or any other Governmental Authority in connection with the transactions contemplated by this Agreement, and give such other Parties the Target Entities the opportunity to attend and participate at any meetings with respect thereto. None of the Parties (including their respective Subsidiaries) will agree to participate in any substantive meeting, telephone call or discussion with a Governmental Authority in respect of any submissions, filings, investigation (including any settlement of the investigation), litigation or other inquiry relating to the matters that are the subject of this Agreement unless it consults with the other Parties in advance (in each case to the extent reasonably practicable) and, except as may be prohibited by a Governmental Authority or by any Law, will permit authorized Representatives of the other Parties to be present at each substantive meeting, telephone call or discussion.
Appears in 1 contract
Filings and Authorizations; Consummation. (a) The Buyer Prior to the Closing Date, the Seller and the Company shall, as promptly as reasonably practicable following the date hereof file or supply, or cause to be filed or supplied in connection with the transactions contemplated herein, all filings (and to the extent relevant, draft versions of filings) and briefing papers set forth on Section 8.4 of the Disclosure Letter. The Buyer acknowledges and agrees that it shall pay and shall be solely responsible for the payment of all filing fees required to be paid in respect of any filing contemplated by this Section 7.4.
(b) Subject to Section 7.4(d), each of the Parties, as promptly as practicable, shall make, or cause to be made, all other filings and submissions not otherwise addressed under Section 7.4(a), including Antitrust Laws, applicable to it, or to its Subsidiaries or Affiliates, as may be required for it to consummate the transactions contemplated herein and use its their respective commercially reasonable best efforts (which shall not require a Party to make any payment or concession to any Person in connection with obtaining such Person’s consent) to obtain, or cause their respective Affiliates to be obtainedobtain, all other the authorizations, approvalsconsents, consents Orders and waivers from all Persons approvals necessary for the execution and delivery of, and the performance of their respective obligations pursuant to each Transaction Document. The parties have previously filed a Pre-Merger Notification and Report Form under the HSR Act with respect to the Contemplated Transactions. Each party hereto agrees to supply promptly any additional information and documentary material that may be requested pursuant to the HSR Act. The Seller and the Buyer shall use their respective commercially reasonable efforts to obtain such other approvals of, and take such action with respect to, any Governmental Authorities Authority, as may be necessary to be obtained by itconsummate the Contemplated Transactions; except that, or its Subsidiaries or Affiliatesnotwithstanding anything to the contrary, in order for it no event shall the Buyer or any of its Affiliates be required to consummate such transactions. None (a) commence or threaten to commence litigation; (b) agree to hold separate, divest, license or cause a third party to purchase, any of the Parties shall assets or businesses of the Buyer or any of its Affiliates; (c) make any payment in excess of usual and shall cause their Affiliates not tocustomary filing fees or (d) (i) consent otherwise agree to any voluntary extension restrictions on the businesses of the Buyer or any statutory deadline of its Affiliates in connection with avoiding or waiting period; (ii) pull and refile eliminating any filing made under any Antitrust Laws; or (iii) consent restrictions to any other voluntary delay of the consummation of the transactions contemplated by this Agreement at the behest of Contemplated Transactions under any Governmental Authority, in each case, without the prior written consent of the other Parties, such consent not to be unreasonably withheld, conditioned applicable Law or delayed.
(c) Order. The Parties parties hereto shall coordinate and reasonably cooperate with one another in promptly exchanging and providing such information to each other and in making the filings and requests referred to in Sections 7.4(a) and 7.4(b) abovethis Section 7.6. The Parties parties hereto shall promptly use commercially reasonable efforts to supply such reasonable assistance as may be reasonably requested by any other Party party hereto in connection with the foregoing.
(d) . Notwithstanding anything in this Agreement to the contrary contrary, with respect to the matters covered in this AgreementSection 7.6, each Party shall useit is agreed that the Buyer, and shall cause its Subsidiaries to use, reasonable best efforts to consummate the transactions contemplated by this Agreement prior to the Termination Date. For the Buyer and its Subsidiaries (but not after consulting with the Seller and its Subsidiaries)considering the Seller’s views in good faith, “reasonable best efforts” shall include using such efforts to (x) avoid or eliminate each make all decisions, lead all discussions, negotiations and every impediment, resolve any objection and obtain all consents under any applicable Law (including Antitrust Laws) as promptly as practicable so as to enable the Parties to consummate the transactions contemplated by this Agreement and (y) avoid the entry or to effect the dissolution of, or vacate or lift, any order, objection of any Governmental Authority or cause the termination of any waiting period under applicable Law (including Antitrust Laws) that would otherwise have the effect of preventing, impairing or delaying the Closing, including (i) proposing, negotiating and offering to commit and effect (and if such offer is accepted, committing to and effecting), by order, consent decree, hold separate order, trust, or otherwise, the sale, license, divestiture, disposition or hold separate of such entities, assets, Intellectual Property, businesses, product lines, equity interests, properties or services of the Buyer or its Subsidiaries (including, following the Closing, members of the Company Group), or otherwise offering to take or offering to commit to take any action (including any action that limits their freedom of action, ownership or control with respect to, or their ability to retain or hold, any of the businesses, assets, product lines, equity interests, properties or services of the Buyer or its Subsidiaries or of the Company Group) to the extent legally permissibleother proceedings, and if the offer is accepted, taking or committing to take such action, (ii) terminating, amending, relinquishing, modifying, waiving or assigning existing relationships, ventures or contractual rights, obligations or other arrangements of the Buyer or its Subsidiaries, (iii) changing or modifying, or agreeing not to engage in, any course of conduct regarding future operations, (iv) creating any relationships, ventures, contractual rights, obligations or other arrangements of the Buyer or its Subsidiaries, (v) committing to take any such actions in the foregoing clauses (i), (ii), (iii) or (iv), (vi) entering or offering to enter into agreements and stipulating to the entry of an Order or decree or filing appropriate applications with any Governmental Authority in connection with any of the actions contemplated by the foregoing clauses (i), (ii), (iii) or (iv), and (vii) opposing, and causing its Subsidiaries to oppose, through and including Action on the merits (and coordinate all appeals with respect thereto), any Action asserted in court or other forum by any Governmental Authority or other Person in order to avoid entry of, or to have vacated or terminated, any decree, Order or judgment (whether temporary, preliminary or permanent) that would restrain or prevent the Closing by the Termination Date; provided, however, that the Buyer shall not be required to take, or commit or agree to take (or cause its Affiliates to take, or commit or agree to take), any of the foregoing actions to the extent (x) such action involves the assets, properties or rights of the Buyer or any of its Affiliates (other than, following the Closing, the Company and its Subsidiaries), except with respect to actions that are of an administrative or ministerial nature, or (y) such action would have a material adverse effect on the Company Group, taken as a whole, assuming that the Company Group has the same enterprise value and other financial attributes as the Buyer and its Subsidiaries, taken as a whole, as of the date hereof. For the avoidance of doubt, the Buyer shall not require the Seller or member of the Company Group to, and neither the Seller nor any member of the Company Group shall be required to take (x) any action activities with respect to any Order requests that may be made by, or any applicable Law actions, consents, undertakings, approvals, or waivers that would bind may be sought by or from, any member Governmental Authority, including determining the manner in which to contest or otherwise respond, by litigation or otherwise, to objections to, or proceedings or other actions challenging, the consummation of the Company Group prior to Contemplated Transactions. At the Closing or bind Buyer’s request, the Seller at any time or (y) any action contemplated by clauses (i) through (vi) of the immediately prior sentence agrees to take all actions that is not conditioned upon the Closing. In addition and without limiting the other provisions of this Section 7.4, the Buyer shall use reasonable best efforts reasonably deems prudent in order to defend through litigationobtain any actions, appealingconsents, contesting undertakings, approvals or otherwise resisting any Action waivers by or Order by from any Governmental Authority for or private partyin connection with, challenging and to assist the transactions contemplated herebyBuyer in litigating or otherwise contesting any objections to or proceedings or other actions challenging, including to defend through litigation on the merits any claim asserted in court by any Person in order to avoid entry of, or to have vacated or terminated, any Order (whether temporary, preliminary or permanent) that would delay the Closing or prevent the Closing by the Termination Date; provided, however, that such litigation in no way limits the other obligations consummation of the Buyer set forth in this Section 7.4(d).
(e) Except as specifically required by this Agreement, the Buyer Contemplated Transactions. The Seller shall not, and shall cause all of its Subsidiaries not to, acquire or agree to enter into a business combination or otherwise acquire by merging or consolidating with, or by purchasing a substantial portion of the assets of or equity in or otherwise make any investment in, or by any other manner, any Person or portion thereof, or otherwise acquire or agree to acquire or make any investment in any assets, if the entering into of a definitive agreement relating to or the consummation of such acquisition, merger, business combination, consolidation, or investment would or would reasonably be expected to (i) impose any material delay in the obtaining of, or materially increase the risk of not obtaining, any consent, approval, authorization, declaration, waiver, license, franchise, permit, certificate or order of any Governmental Authority necessary to satisfy the conditions to Closing set forth in Section 8.4, Section 8.5, Section 8.6, Section 9.4, Section 9.6 or Section 9.7 to consummate the transactions contemplated hereby or the expiration or termination of any applicable waiting period, (ii) materially increase the risk of any Governmental Authority entering an order prohibiting the consummation of the transactions contemplated hereby, (iii) materially increase the risk of not being able to remove any such order on appeal or otherwise or (iv) increase the risk of any Governmental Authority asserting jurisdiction over the transactions contemplated hereby. Each of the Seller and the Company shall take such actions as set forth on Section 7.4(e)(ii) of the Disclosure Letter in accordance with the terms thereof and, for the avoidance of doubt, the Buyer agrees to the terms and conditions set forth therein.
(f) Each Party shall promptly inform the other Parties of any material communication from the Federal Trade Commission, the Department of Justice or any other Governmental Authority regarding any of the transactions contemplated by this Agreement. Each Party will, and will cause its Affiliates toto not, provide the other Parties with copies of all substantive correspondence, filings or communications between them or permit any of their Representatives, on the one hand, and any Governmental Authority or members of its staff, on the other hand, with respect to this Agreement and the transactions contemplated by this Agreement; provided, however, that materials may be redacted as necessary to (i) comply with contractual arrangements and (ii) address reasonable attorney-client or other privilege or confidentiality concerns. If any Party or any Affiliate thereof receives a request for additional information or documentary material from any such Governmental Authority with respect to the transactions contemplated by this Agreement, then such Party will use its reasonable best efforts to make, or cause to be made, as soon as reasonably practicable and after consultation with the other Party, an appropriate response in compliance with such request. Each Party will advise the other Parties promptly in respect of any understandings, undertakings or agreements (oral or written) that any Party proposes, in its sole discretion, to make or enter into with the Federal Trade Commission, the Department of Justice or any other Governmental Authority in connection with the transactions contemplated by this Agreement, and give such other Parties the opportunity to attend and participate at any meetings with respect thereto. None of the Parties (including their respective Subsidiaries) will agree representatives to participate in any substantive meeting, telephone call or discussion meeting with a any Governmental Authority in respect of any submissions, filings, investigation (including any settlement of the investigation), litigation proceeding or other inquiry relating matters related to the matters that are the subject of this Agreement or the Contemplated Transactions unless it the Seller consults with the other Parties Buyer in advance (in each case and, to the extent reasonably practicable) andpermitted by such Governmental Authority, except as may be prohibited by a Governmental Authority or by any Law, will permit authorized Representatives of gives the other Parties Buyer the opportunity to be present attend and lead the discussions at each substantive such meeting, telephone call or discussion.
Appears in 1 contract
Filings and Authorizations; Consummation. (a) The Buyer Subject to the terms and the Company shallconditions herein, as promptly as reasonably practicable following the date hereof file or supplyeach party hereto agrees to use its reasonable best efforts to take, or cause to be filed taken, all actions and to do, or supplied cause to be done as promptly as practicable, all things necessary, proper and advisable under applicable Laws to consummate and make effective as promptly as practicable the Merger and the other transactions contemplated hereby. Subject to appropriate confidentiality protections and applicable Law, each party hereto shall furnish to the other parties such necessary information and reasonable assistance as such other party may reasonably request in connection with the transactions contemplated herein, all filings (and to the extent relevant, draft versions of filings) and briefing papers set forth on Section 8.4 of the Disclosure Letter. The Buyer acknowledges and agrees that it shall pay and shall be solely responsible for the payment of all filing fees required to be paid in respect of any filing contemplated by this Section 7.4foregoing.
(b) Subject to Section 7.4(d), each Each of the Parties, as promptly as practicable, parties shall make, or cause to be made, all other filings and submissions not otherwise addressed under Section 7.4(a), including Antitrust Laws, applicable to it, or to its Subsidiaries or Affiliates, as may be required for it to consummate the transactions contemplated herein cooperate with one another in good faith and use its reasonable best efforts to prepare all necessary documentation (which including furnishing all information required under the HSR Act or other applicable Competition Laws) to effect promptly all necessary filings and to obtain all consents, waivers and approvals necessary to consummate the transactions contemplated by this Agreement (including complying with all Nuclear Regulatory Commission (“NRC”) regulations requiring licensees to notify the NRC of proposed changes of control prior to the transfer of licensed activities and use reasonable best efforts to obtain prior written consent from NRC for the transactions contemplated by this Agreement, including the Merger). Each such party shall not require a Party promptly inform the other parties hereto of any oral communication with, and provide copies of written communications between it (or its advisors) and any Governmental Authority relating to make the Merger or any payment of the matters described in this Section 6.4. No party hereto shall independently participate in any meeting, conference, or concession telephone call with any Governmental Authority in respect of any such filings, investigation, or other inquiry without giving the other parties hereto prior notice of the meeting, conference, or telephone call and, to any Person the extent permitted by such Governmental Authority, the opportunity to attend and/or participate. Subject to applicable Law, the parties hereto will consult and cooperate with one another in connection with obtaining such Person’s consent) with, and allow the other party to obtainhave a reasonable opportunity to review in advance and comment on, any analyses, appearances, presentations, memoranda, briefs, arguments, opinions and proposals made or cause submitted by or on behalf of any party hereto relating to be obtained, all proceedings under the HSR Act or other authorizations, approvals, consents and waivers from all Persons and Governmental Authorities necessary to be obtained by it, or its Subsidiaries or Affiliates, in order for it to consummate such transactionsapplicable Competition Laws. None of the Parties parties shall (and shall cause their Affiliates not to) (i) consent to any voluntary extension of any statutory deadline or waiting period; (ii) pull and refile any filing made under any Antitrust Laws; period or (iii) consent to any other voluntary delay of the consummation of the transactions contemplated by this Agreement Merger at the behest of any Governmental Authority, in each case, Antitrust Entity without the prior written consent of the other Partiesparties, such which consent shall not to be unreasonably withheld, conditioned withheld or delayed.
(c) The Parties Without limiting the generality of the undertakings pursuant to this Section 6.4, but subject to Section 6.4(e), the parties hereto shall coordinate and reasonably cooperate with one another as promptly as practicable, but in promptly exchanging and providing such information to each other and in making no event later than five (5) Business Days after the date hereof, submit all filings and requests referred to in Sections 7.4(a) and 7.4(b) aboverequired under the HSR Act. The Parties parties shall respond as promptly supply such reasonable assistance as practicable and advisable to any request for additional information or documentary material that may be reasonably requested by made and under the HSR Act and any requests for information under any other Party in connection applicable Competition Law. Parent shall be responsible for fees associated with filings required by the foregoingHSR Act and any other applicable Competition Laws.
(d) Notwithstanding anything to the contrary in this AgreementFurther, each Party shall use, of Parent and shall cause its Subsidiaries the Company agrees to use, reasonable best efforts promptly take any and all steps and actions necessary to consummate the transactions contemplated by this Agreement prior to the Termination Date. For the Buyer and its Subsidiaries (but not the Seller and its Subsidiaries), “reasonable best efforts” shall include using such efforts to (x) avoid or eliminate each and every impedimentimpediment under the HSR Act or other applicable Competition Laws that may be asserted by any Governmental Antitrust Entity, resolve any objection and obtain all consents under any applicable Law (including Antitrust Laws) as promptly as practicable so as to enable the Parties parties to consummate the transactions contemplated by this Agreement Merger as expeditiously as possible and no later than the Termination Date. In connection therewith, if any Action is instituted (yor reasonably foreseeable or threatened to be instituted) avoid challenging the entry or to effect the dissolution of, or vacate or lift, any order, objection Merger as in violation of any Governmental Authority applicable Competition Law, each of the parties hereto shall cooperate and use its best efforts to contest and resist any such Action, and to have vacated, lifted, reversed or cause overturned any Order whether temporary, preliminary or permanent, that is in effect and that delays, prohibits, prevents or restricts consummation of the termination of any waiting period under applicable Law (including Antitrust Laws) that would otherwise have the effect of preventing, impairing or delaying the ClosingMerger, including by pursuing all available avenues of administrative and judicial appeal and all available legislative action, unless, by mutual agreement, Parent and the Stockholders’ Representative decide that litigation is not in their respective best interests. Without limiting the generality of the foregoing, Parent shall:
(i) at Parent’s sole cost, comply with all restrictions and conditions, if any, imposed, required or requested by any (A) Governmental Antitrust Entity with respect to Competition Laws in connection with granting any necessary clearance or terminating any applicable waiting period including (1) proposing, negotiating and negotiating, offering to commit and effect (and if such offer is accepted, committing to and effecting)) to sell, by order, consent decreedivest, hold separate order, trust, or otherwise, the saleseparate, license, divestiturecause a third party to acquire, disposition or hold separate of such entitiesotherwise dispose of, assetsany Subsidiary, Intellectual Propertyoperations, divisions, businesses, product lines, equity interestscustomers or assets of Parent, properties its Affiliates, or services any of its or their respective Subsidiaries contemporaneously with or after the Buyer Closing and regardless as to whether a third party buyer has been identified or its Subsidiaries approved prior to the Closing (including, following the Closing, members of the Company Groupa “Divestiture”), or otherwise offering to take or offering to commit to take any action (including any action that limits their freedom of action, ownership or control with respect to, or their ability to retain or hold, any of the businesses, assets, product lines, equity interests, properties or services of the Buyer or its Subsidiaries or of the Company Group2) to the extent legally permissible, and if the offer is accepted, taking or committing to take such actionother actions that may limit Parent, its Affiliates, or any of its or their respective Subsidiaries’ freedom of action with respect to, or its ability to retain, one or more of its operations, divisions, businesses, products lines, customers or assets, and (ii3) terminating, amending, relinquishing, modifying, waiving or assigning existing relationships, ventures or contractual rights, obligations entering into any Order or other arrangements agreement to effectuate any of the Buyer foregoing or its Subsidiaries(B) third party in connection with a Divestiture (provided, (iii) changing or modifying, or agreeing that the Company shall not to engage in, any course of conduct regarding future operations, (iv) creating any relationships, ventures, contractual rights, obligations or other arrangements of the Buyer or its Subsidiaries, (v) committing be obligated to take any such actions in unless the foregoing clauses (itaking of such action is conditioned on the consummation of the Merger), ;
(ii), ) terminate any Contract or other business relationship as may be required to obtain any necessary clearance or approval of any Governmental Antitrust Entity or to obtain termination of any applicable waiting period under the HSR Act or any other Competition Laws; and
(iii) not extend any waiting period or (iv), (vi) entering or offering to enter into agreements and stipulating to the entry of an Order any agreement or decree or filing appropriate applications understanding with any Governmental Authority in connection with any Antitrust Entity without the prior written consent of the actions contemplated by the foregoing clauses (i), (ii), (iii) or (iv), and (vii) opposing, and causing its Subsidiaries to oppose, through and including Action on the merits (and all appeals with respect thereto), any Action asserted in court or other forum by any Governmental Authority or other Person in order to avoid entry of, or to have vacated or terminated, any decree, Order or judgment (whether temporary, preliminary or permanent) that would restrain or prevent the Closing by the Termination Date; provided, however, that the Buyer shall not be required to take, or commit or agree to take (or cause its Affiliates to take, or commit or agree to take), any of the foregoing actions to the extent (x) such action involves the assets, properties or rights of the Buyer or any of its Affiliates (other than, following the Closing, the Company and its Subsidiaries), except with respect to actions that are of an administrative or ministerial nature, or (y) such action would have a material adverse effect on the Company Group, taken as a whole, assuming that the Company Group has the same enterprise value and other financial attributes as the Buyer and its Subsidiaries, taken as a whole, as of the date hereof. For the avoidance of doubt, the Buyer shall not require the Seller or member of the Company Group to, and neither the Seller nor any member of the Company Group shall be required to take (x) any action with respect to any Order or any applicable Law that would bind any member of the Company Group prior to the Closing or bind the Seller at any time or (y) any action contemplated by clauses (i) through (vi) of the immediately prior sentence that is not conditioned upon the Closing. In addition and without limiting the other provisions of this Section 7.4, the Buyer shall use reasonable best efforts to defend through litigation, appealing, contesting or otherwise resisting any Action or Order by any Governmental Authority or private party, challenging the transactions contemplated hereby, including to defend through litigation on the merits any claim asserted in court by any Person in order to avoid entry of, or to have vacated or terminated, any Order (whether temporary, preliminary or permanent) that would delay the Closing or prevent the Closing by the Termination Date; provided, however, that such litigation in no way limits the other obligations of the Buyer set forth in this Section 7.4(d)Company.
(e) Except as specifically required by this Agreement, the Buyer shall not, and shall cause all of its Subsidiaries not to, acquire or agree to enter into a business combination or otherwise acquire by merging or consolidating with, or by purchasing a substantial portion In respect of the assets of or equity Investment Canada Act notification in or otherwise make any investment in, or by any other manner, any Person or portion thereof, or otherwise acquire or agree to acquire or make any investment in any assets, if connection with the entering into of a definitive agreement relating to or the consummation of such acquisition, merger, business combination, consolidation, or investment would or would reasonably be expected to Merger: (i) impose any material delay in Parent shall as soon as reasonably practicable after the obtaining ofClosing Date, or materially increase file a notification under the risk of not obtaining, any consent, approval, authorization, declaration, waiver, license, franchise, permit, certificate or order of any Governmental Authority necessary to satisfy the conditions to Closing set forth in Section 8.4, Section 8.5, Section 8.6, Section 9.4, Section 9.6 or Section 9.7 to consummate the transactions contemplated hereby or the expiration or termination of any applicable waiting period, (ii) materially increase the risk of any Governmental Authority entering an order prohibiting the consummation of the transactions contemplated hereby, (iii) materially increase the risk of not being able to remove any such order on appeal or otherwise or (iv) increase the risk of any Governmental Authority asserting jurisdiction over the transactions contemplated hereby. Each of the Seller and the Company shall take such actions as set forth on Section 7.4(e)(ii) of the Disclosure Letter in accordance with the terms thereof and, for the avoidance of doubt, the Buyer agrees to the terms and conditions set forth therein.
(f) Each Party shall promptly inform the other Parties of any material communication from the Federal Trade Commission, the Department of Justice or any other Governmental Authority regarding any of the transactions contemplated by this Agreement. Each Party will, and will cause its Affiliates to, provide the other Parties with copies of all substantive correspondence, filings or communications between them or any of their Representatives, on the one hand, and any Governmental Authority or members of its staff, on the other hand, with respect to this Agreement and the transactions contemplated by this Agreement; provided, however, that materials may be redacted as necessary to (i) comply with contractual arrangements and (ii) address reasonable attorney-client or other privilege or confidentiality concerns. If any Party or any Affiliate thereof receives a request for additional information or documentary material from any such Governmental Authority Investment Canada Act with respect to the transactions contemplated by under this Agreement; and (ii) prior to the Closing, then such Party will the Company shall provide Parent with all requested assistance that the Parent reasonably considers necessary in respect of preparing the notification.
(f) The Company and the Company Subsidiaries shall use its commercially reasonable best efforts to makeobtain, or cause to be madeand shall cooperate with Parent in obtaining, as soon as reasonably practicable possible after the execution of this Agreement, all approvals, consents and after consultation with the other Party, an appropriate response in compliance with such request. Each Party will advise the other Parties promptly waivers in respect of any understandings, undertakings or agreements (oral or written) the Contracts set forth on Section 4.5 of the Company Disclosure Letter; provided that any Party proposes, in its sole discretion, the Company shall not be required to make or enter into with the Federal Trade Commission, the Department of Justice or any other Governmental Authority payment in connection with the transactions contemplated by this Agreementobtaining such approvals, consents, and give such other Parties the opportunity to attend and participate at any meetings with respect thereto. None of the Parties (including their respective Subsidiaries) will agree to participate in any substantive meeting, telephone call or discussion with a Governmental Authority in respect of any submissions, filings, investigation (including any settlement of the investigation), litigation or other inquiry relating to the matters that are the subject of this Agreement unless it consults with the other Parties in advance (in each case to the extent reasonably practicable) and, except as may be prohibited by a Governmental Authority or by any Law, will permit authorized Representatives of the other Parties to be present at each substantive meeting, telephone call or discussionwaivers.
Appears in 1 contract
Samples: Merger Agreement (Acuren Corp)
Filings and Authorizations; Consummation. (a) The Buyer Subject to the terms and conditions of this Agreement, the Sellers, the Company and the Buyer shall use their respective commercially reasonable efforts (which shall not require any Seller, the Company shallor the Buyer to make any payment or concession to, or commence or threaten to commence any Action against, any Person in connection with obtaining such Person’s consent) to take, or cause to be taken, all action and to do, or cause to be done, and assist and cooperate with each other in doing, all things necessary, proper or advisable under applicable Law to obtain the authorizations, consents, Orders and approvals necessary for their execution and delivery of, and the performance of their obligations pursuant to each Transaction Document and to consummate the Contemplated Transactions as soon as practicable after the execution of this Agreement, including (i) promptly making any required submissions and filings under applicable Competition Laws with respect to the Contemplated Transactions, (ii) promptly furnishing information required in connection with such submissions and filing under such Competition Laws, (iii) keeping the other parties reasonably informed with respect to the status of any such submissions and filings under Competition Laws, including with respect to: (A) the receipt of any non-action, action, clearance, consent, approval or waiver, (B) the expiration of any waiting period, (C) the commencement or proposed or threatened commencement of any investigation, litigation or administrative or judicial action or proceeding under Competition Laws and (D) the nature and status of any objections raised or proposed or threatened to be raised under Competition Laws with respect to the Contemplated Transactions, (iv) filing all notices or other documentation and obtaining all actions or non-actions, approvals, consents, waivers, registrations, permits, authorizations and other confirmations from any Governmental Authority or third party necessary, proper or advisable to consummate the Contemplated Transaction as soon as practicable (whether or not such approvals, consents, waivers, registrations, permits, authorizations and other confirmations are conditions to the consummation of the Contemplated Transactions pursuant to Article IX and Article X), and (v) supplying the other parties with any information that may be reasonably practicable required in order to effectuate the taking of such actions.
(b) In furtherance of and without limiting Section 7.8(a), the Sellers, the Company and the Buyer shall use their respective commercially reasonable efforts to, if required by applicable Law, within five (5) Business Days following the date hereof hereof, file or supply, or cause to be filed or supplied in connection with the transactions contemplated herein, all filings (notifications and to the extent relevant, draft versions of filings) and briefing papers set forth on Section 8.4 of the Disclosure Letter. The Buyer acknowledges and agrees that it shall pay and shall be solely responsible for the payment of all filing fees information required to be paid in respect of any filed or supplied pursuant to the HSR Act, and the Buyer shall pay all filing contemplated by this Section 7.4.
(b) Subject to Section 7.4(d)fees, each application fees or other fees of the Parties, as promptly as practicable, shall make, or cause to be made, all other filings and submissions not otherwise addressed under Section 7.4(a), including Antitrust Laws, applicable to it, or to its Subsidiaries or Affiliates, as may be required for it to consummate Governmental Authority associated with the transactions contemplated herein and use its reasonable best efforts (which shall not require a Party to make any payment or concession to any Person in connection with obtaining such Person’s consent) to obtain, or cause to be obtained, all other authorizations, approvals, consents and waivers from all Persons and Governmental Authorities necessary to be obtained by it, or its Subsidiaries or Affiliates, in order for it to consummate such transactions. None of the Parties shall (and shall cause their Affiliates not to) (i) consent to any voluntary extension of any statutory deadline or waiting period; (ii) pull and refile any filing made under any Antitrust Laws; or (iii) consent to any other voluntary delay of the consummation of the transactions contemplated by this Agreement at the behest of any Governmental Authority, in each case, without the prior written consent of the other Parties, such consent not to be unreasonably withheld, conditioned or delayedHSR Act filing.
(c) The Parties shall coordinate and reasonably cooperate with one another in promptly exchanging and providing such information to each other and in making the filings and requests referred to in Sections 7.4(a) and 7.4(b) above. The Parties shall promptly supply such reasonable assistance as may be reasonably requested by any other Party in connection with the foregoing.
(d) Notwithstanding anything to the contrary in this Agreement, each Party shall use, and shall cause its Subsidiaries to use, reasonable best efforts to consummate the transactions contemplated by this Agreement prior to the Termination Date. For the Buyer and its Subsidiaries (but not the Seller and its Subsidiaries), “reasonable best efforts” shall include using such efforts to (x) avoid or eliminate each and every impediment, resolve any objection and obtain all consents under any applicable Law (including Antitrust Laws) as promptly as practicable so as to enable the Parties to consummate the transactions contemplated by this Agreement and (y) avoid the entry or to effect the dissolution of, or vacate or lift, any order, objection of any Governmental Authority or cause the termination of any waiting period under applicable Law (including Antitrust Laws) that would otherwise have the effect of preventing, impairing or delaying the Closing, including (i) proposing, negotiating and offering to commit and effect (and if such offer is accepted, committing to and effecting), by order, consent decree, hold separate order, trust, or otherwise, the sale, license, divestiture, disposition or hold separate of such entities, assets, Intellectual Property, businesses, product lines, equity interests, properties or services of the Buyer or its Subsidiaries (including, following the Closing, members of the Company Group), or otherwise offering to take or offering to commit to take any action (including any action that limits their freedom of action, ownership or control with respect to, or their ability to retain or hold, any of the businesses, assets, product lines, equity interests, properties or services of the Buyer or its Subsidiaries or of the Company Group) to the extent legally permissible, and if the offer is accepted, taking or committing to take such action, (ii) terminating, amending, relinquishing, modifying, waiving or assigning existing relationships, ventures or contractual rights, obligations or other arrangements of the Buyer or its Subsidiaries, (iii) changing or modifying, or agreeing not to engage in, any course of conduct regarding future operations, (iv) creating any relationships, ventures, contractual rights, obligations or other arrangements of the Buyer or its Subsidiaries, (v) committing to take any such actions in the foregoing clauses (i), (ii), (iii) or (iv), (vi) entering or offering to enter into agreements and stipulating to the entry of an Order or decree or filing appropriate applications with any Governmental Authority in connection with any of the actions contemplated by the foregoing clauses (i), (ii), (iii) or (iv), and (vii) opposing, and causing its Subsidiaries to oppose, through and including Action on the merits (and all appeals with respect thereto), any Action asserted in court or other forum by any Governmental Authority or other Person in order to avoid entry of, or to have vacated or terminated, any decree, Order or judgment (whether temporary, preliminary or permanent) that would restrain or prevent the Closing by the Termination Date; provided, however, that the Buyer shall not be required to take, or commit or agree to take (or cause its Affiliates to take, or commit or agree to take), any of the foregoing actions to the extent (x) such action involves the assets, properties or rights of the Buyer or any of its Affiliates (other than, following the Closing, the Company and its Subsidiaries), except with respect to actions that are of an administrative or ministerial nature, or (y) such action would have a material adverse effect on the Company Group, taken as a whole, assuming that the Company Group has the same enterprise value and other financial attributes as the Buyer and its Subsidiaries, taken as a whole, as of the date hereof. For the avoidance of doubt, the Buyer shall not require the Seller or member of the Company Group to, and neither the Seller nor any member of the Company Group shall be required to take (x) any action with respect to any Order or any applicable Law that would bind any member of the Company Group prior to the Closing or bind the Seller at any time or (y) any action contemplated by clauses (i) through (vi) of the immediately prior sentence that is not conditioned upon the Closing. In addition and without limiting the other provisions of this Section 7.4, the Buyer shall use reasonable best efforts to defend through litigation, appealing, contesting or otherwise resisting any Action or Order by any Governmental Authority or private party, challenging the transactions contemplated hereby, including to defend through litigation on the merits any claim asserted in court by any Person in order to avoid entry of, or to have vacated or terminated, any Order (whether temporary, preliminary or permanent) that would delay the Closing or prevent the Closing by the Termination Date; provided, however, that such litigation in no way limits the other obligations of the Buyer set forth in this Section 7.4(d).
(e) Except as specifically required by this Agreement, the Buyer shall not, and shall cause all of its Subsidiaries not to, acquire or agree to enter into a business combination or otherwise acquire by merging or consolidating with, or by purchasing a substantial portion of the assets of or equity in or otherwise make any investment in, or by any other manner, any Person or portion thereof, or otherwise acquire or agree to acquire or make any investment in any assets, if the entering into of a definitive agreement relating to or the consummation of such acquisition, merger, business combination, consolidation, or investment would or would reasonably be expected to (i) impose any material delay in the obtaining of, or materially increase the risk of not obtaining, any consent, approval, authorization, declaration, waiver, license, franchise, permit, certificate or order of any Governmental Authority necessary to satisfy the conditions to Closing set forth in Section 8.4, Section 8.5, Section 8.6, Section 9.4, Section 9.6 or Section 9.7 to consummate the transactions contemplated hereby or the expiration or termination of any applicable waiting period, (ii) materially increase the risk of any Governmental Authority entering an order prohibiting the consummation of the transactions contemplated hereby, (iii) materially increase the risk of not being able to remove any such order on appeal or otherwise or (iv) increase the risk of any Governmental Authority asserting jurisdiction over the transactions contemplated hereby. Each of the Seller and the Company shall take such actions as set forth on Section 7.4(e)(ii) of the Disclosure Letter in accordance with the terms thereof and, for the avoidance of doubt, the Buyer agrees to the terms and conditions set forth therein.
(f) Each Party party hereto shall promptly inform the other Parties parties of any material communication from the Federal Trade Commission, the Department of Justice or any other Governmental Authority regarding any of the transactions contemplated by this Agreement. Each Party will, and will cause its Affiliates to, provide the other Parties with copies of all substantive correspondence, filings or communications between them or any of their Representatives, on the one hand, and any Governmental Authority or members of its staff, on the other hand, with respect to this Agreement and the transactions contemplated by this Agreement; provided, however, that materials may be redacted as necessary to (i) comply with contractual arrangements and (ii) address reasonable attorney-client or other privilege or confidentiality concernsContemplated Transactions. If any Party party hereto or any Affiliate thereof receives a request for additional information or documentary material from any such Governmental Authority with respect to the transactions contemplated by this AgreementContemplated Transactions, then such Party will party shall use its commercially reasonable best efforts to make, or cause to be made, as soon as reasonably practicable and after consultation with the other Partyparties hereto, an appropriate response in compliance with such request. Each Party party hereto will advise the other Parties parties promptly in respect of any understandings, undertakings or agreements (oral or written) that any Party proposes, in its sole discretion, which such party proposes to make or enter into with the Federal Trade Commission, the Department of Justice or any other Governmental Authority in connection with the transactions contemplated by this Agreement, and give such other Parties the opportunity Contemplated Transactions.
(d) Buyer shall not enter into any transaction or any agreement to attend and participate at effect any meetings with respect thereto. None of the Parties (including their respective Subsidiaries) will agree to participate in any substantive meeting, telephone call or discussion with a Governmental Authority in respect of any submissions, filings, investigation transaction (including any settlement merger or acquisition) that would reasonably be expected to make it materially more difficult to (i) obtain the expiration and termination of the investigation), litigation or other inquiry relating waiting period under the HSR Act applicable to the matters that are Contemplated Transactions, or (ii) obtain all permits of Governmental Authorities necessary for the subject consummation of this Agreement unless it consults with the other Parties in advance Contemplated Transactions.
(in each case e) Notwithstanding anything to the extent reasonably practicablecontrary herein, none of Buyer or any of its Affiliates shall be required to (i) andcommence or threaten to commence litigation, except as may be prohibited by (ii) agree to hold separate, divest, license or cause a Governmental Authority or by third party to purchase, any Law, will permit authorized Representatives of the other Parties assets or businesses of Buyer, the Company or any of their respective Affiliates (including, for clarity, any Subsidiary after the Closing) or (iii) otherwise agree to be present at each substantive meetingany restrictions on the businesses of Buyer, telephone call the Company or discussionany of their respective Affiliates (including, for clarity, any Subsidiary after the Closing) in connection with avoiding or eliminating any restrictions to the consummation of the Contemplated Transactions under any applicable Law.
Appears in 1 contract
Filings and Authorizations; Consummation. (a) The Buyer and the Company shall, as promptly as reasonably practicable within five (5) Business Days following the date hereof hereof, file or supply, or cause to be filed or supplied in connection with the transactions contemplated herein, all filings (notifications and information required to be filed or supplied pursuant to the extent relevant, draft versions of filings) and briefing papers set forth on Section 8.4 of the Disclosure LetterHSR Act. The Buyer Xxxxx acknowledges and agrees that it shall pay and shall be solely responsible for the payment of all filing fees required to be paid in respect of any filing contemplated by connection with the filings under this Section 7.47.4(a).
(b) Subject to Section 7.4(d), each Each of Buyer and the PartiesCompany, as promptly as reasonably practicable, shall make, or cause to be made, all other filings and submissions not otherwise addressed under Section 7.4(a), including Antitrust Laws, as required under Laws applicable to it, or to its Subsidiaries or Seller, the Company Group and their respective Affiliates, as may be required for it to consummate the transactions contemplated herein and shall use its reasonable best efforts (which shall not require a Party either party to make any payment or concession to any Person in connection with obtaining such Person’s consent) to obtain, or cause to be obtained, all other authorizations, approvals, consents and waivers from all Persons and Governmental Authorities necessary to be obtained by it, the Company Group, Seller or its Subsidiaries or their respective Affiliates, in order for it to consummate such transactions. None of the Parties Buyer shall (and shall cause their Affiliates not to) not: (i) consent to any voluntary extension of any statutory deadline or waiting period; (ii) pull and refile any filing made under any Antitrust Lawsthe HSR Act; or (iii) consent to any other voluntary delay of the consummation of the transactions contemplated by this Agreement at the behest of any Governmental Authority, in each case, without the prior written consent of the other PartiesCompany, such which consent shall not to be unreasonably withheld, conditioned or delayed.
(c) The Parties parties hereto shall coordinate and reasonably cooperate with one another in promptly exchanging and providing such information to each other and in making the filings and requests referred to in Sections Section 7.4(a) and Section 7.4(b) above). The Parties Each party hereto shall promptly supply such reasonable assistance as may be reasonably requested by any the other Party party hereto in connection with the foregoing, including providing drafts of all substantive written communications and submissions intended to be sent to any Governmental Authority.
(d) Each of Buyer and the Company shall use its reasonable best efforts to obtain, or cause to be obtained, all authorizations, approvals, consents and waivers from all Persons and Governmental Authorities necessary to be obtained by it under Section 7.4(a). Notwithstanding anything to the contrary in this Agreement, each Party neither Buyer nor its Affiliates shall use, and shall cause its Subsidiaries be required to use, reasonable best efforts to consummate do any of the transactions contemplated by this Agreement prior to the Termination Date. For the Buyer and its Subsidiaries (but not the Seller and its Subsidiaries), “reasonable best efforts” shall include using such efforts to (x) avoid or eliminate each and every impediment, resolve any objection and obtain all consents under any applicable Law (including Antitrust Laws) as promptly as practicable so as to enable the Parties to consummate the transactions contemplated by this Agreement and (y) avoid the entry or to effect the dissolution of, or vacate or lift, any order, objection of any Governmental Authority or cause the termination of any waiting period under applicable Law (including Antitrust Laws) that would otherwise have the effect of preventing, impairing or delaying the Closing, including following (i) proposingselling, negotiating and offering to commit and effect (and if such offer is acceptedlicensing, committing to and effecting), by order, consent decree, hold divesting or disposing of or holding separate order, trust, or otherwise, the sale, license, divestiture, disposition or hold separate of such any entities, assets, Intellectual Property, Property or businesses, product lines, equity interests, properties or services of the Buyer or its Subsidiaries (including, following the Closing, members of the Company Group), or otherwise offering to take or offering to commit to take any action (including any action that limits their freedom of action, ownership or control with respect to, or their ability to retain or hold, any of the businesses, assets, product lines, equity interests, properties or services of the Buyer or its Subsidiaries or of the Company Group) to the extent legally permissible, and if the offer is accepted, taking or committing to take such action, (ii) terminating, amending, relinquishing, modifying, waiving amending or assigning existing relationships, ventures relationships or contractual rights, obligations or other arrangements of the Buyer or its Subsidiariesrights and obligations, (iii) changing or modifying, or agreeing not to engage in, any course of conduct regarding future operations, (iv) creating any relationshipsotherwise taking actions that would limit its freedom of action with respect to, ventures, contractual rights, obligations or other arrangements of the Buyer or its Subsidiariesability to retain, one or more of their respective businesses, assets or rights or interests therein and (v) committing to take any such actions in the foregoing clauses (i), (ii), (iii) or (iv), (vi) entering or offering to enter into agreements and stipulating to the entry of an Order or decree or filing appropriate applications with any Governmental Authority in connection with any of the actions contemplated by the foregoing clauses (i), (ii), (iii) or (iv), and (vii) opposing, and causing its Subsidiaries to oppose, through and including Action on the merits (and all appeals with respect thereto), any Action asserted in court or other forum by any Governmental Authority or other Person in order to avoid entry of, or to have vacated or terminated, any decree, Order or judgment (whether temporary, preliminary or permanent) that would restrain or prevent the Closing by the Termination Date; provided, however, that the . Buyer shall not be required to take, or commit or agree to take (or cause its Affiliates to take, or commit or agree to take), any of the foregoing actions to the extent (x) such action involves the assets, properties or rights of the Buyer require Seller or any of its Affiliates (other than, following the Closing, the Company and its Subsidiaries), except with respect to actions that are of an administrative or ministerial nature, or (y) such action would have a material adverse effect on the Company Group, taken as a whole, assuming that the Company Group has the same enterprise value and other financial attributes as the Buyer and its Subsidiaries, taken as a whole, as of the date hereof. For the avoidance of doubt, the Buyer shall not require the Seller or nor any member of the Company Group to, and neither the Seller or any of its Affiliates, nor any member of the Company Group shall be required to to, take (x) any action with respect to any Order order or any applicable Law that would bind any member other than solely with respect to the members of the Company Group prior to the Closing (but not Seller or bind the Seller at any time or (yof its other Affiliates) but any such action contemplated by clauses (i) through (vi) of the immediately prior sentence that is not shall be conditioned upon on the Closing. In addition and without limiting the other provisions of this Section 7.4, the Buyer shall use reasonable best efforts to defend through litigation, appealing, contesting or otherwise resisting any Action or Order by any Governmental Authority or private party, challenging the transactions contemplated hereby, including to defend through litigation on the merits any claim asserted in court by any Person in order to avoid entry of, or to have vacated or terminated, any Order (whether temporary, preliminary or permanent) that would delay the Closing or prevent the Closing by the Termination Date; provided, however, that such litigation in no way limits the other obligations of the Buyer set forth in this Section 7.4(d).
(e) Each party hereto shall promptly inform the other parties of any material communication from the Federal Trade Commission, the Department of Justice or any other Governmental Authority regarding any of the transactions contemplated by this Agreement. Each party hereto shall provide to the other parties copies of all substantive correspondence between it (or its advisors) and any Governmental Authority relating to the transactions contemplated by this Agreement or any of the matters described in this Section 7.4. Each party shall promptly inform the other of any substantive oral communication with, and provide copies of substantive written communications with, any Governmental Authority regarding any such filings or any such transaction. No party hereto shall independently participate in any formal meeting with any Governmental Authority in respect of any such filings, investigation, or other inquiry without giving the other parties prior notice of, and an opportunity to consult with the other party in advance of, the meeting and, to the extent permitted by such Governmental Authority, the opportunity to attend and/or participate. To the extent permissible under applicable Law, each party shall consult and cooperate with the other parties in connection with any analyses, appearances, presentations, memoranda, briefs, arguments, opinions and proposals made or submitted by or on behalf of any party relating to proceedings under the Antitrust Laws or related to a filing. Each party shall furnish the other parties with copies of all of the foregoing information or documents, provided that it may, as it deems advisable, designate any competitively sensitive materials provided to the other under this Section 7.4(e) or any other section of this Agreement as “outside counsel only.” Such materials and the information contained therein shall be given only to outside counsel of the recipient and shall not be disclosed by such outside counsel to employees, officers, or directors of the recipient without the advance written consent of the party providing such materials. If any party or any Affiliate thereof receives a request for additional information or documentary material from any such Governmental Authority with respect to the transactions contemplated by this Agreement, then such party will make, or cause to be made, as soon as reasonably practicable and after consultation with the other party, an appropriate response in compliance with such request. Buyer will advise Seller promptly in respect of any understandings, undertakings or agreements (oral or written) which Xxxxx proposes to make or enter into with the Federal Trade Commission, the Department of Justice or any other Governmental Authority in connection with the transactions contemplated by this Agreement.
(f) Except as specifically required by this Agreement, Buyer shall not take, and shall cause its Affiliates not to take, any action, or refrain from taking any action, which would reasonably be expected to delay or impede the ability of the parties hereto to consummate the transactions contemplated by this Agreement. Without limiting the generality of the foregoing, Buyer shall not, and shall cause all of its Subsidiaries Affiliates not to, acquire or agree to enter into a business combination or otherwise acquire by merging or consolidating with, or by purchasing a substantial portion of the assets of or equity in or otherwise make any investment in, or by any other manner, any Person or portion thereof, or otherwise acquire or agree to acquire or make any investment in any assets, if the entering into of a definitive agreement relating to or the consummation of such acquisition, merger, business combination, consolidation, merger or investment would or would consolidation could reasonably be expected to (i) impose any material delay in the obtaining of, or materially increase the risk of not obtaining, any consent, approval, authorization, declaration, waiver, license, franchise, permit, certificate or order of any Governmental Authority necessary to satisfy the conditions to Closing set forth in Section 8.4, Section 8.5, Section 8.6, Section 9.4, Section 9.6 or Section 9.7 to consummate the transactions contemplated hereby or the expiration or termination of any applicable waiting period, (ii) materially increase the risk of any Governmental Authority entering an order prohibiting the consummation of the transactions contemplated hereby, hereby or (iii) materially increase delay the risk consummation of not being able to remove any such order on appeal or otherwise or (iv) increase the risk of any Governmental Authority asserting jurisdiction over the transactions contemplated hereby. Each of the Seller and the Company shall take such actions as set forth on Section 7.4(e)(ii) of the Disclosure Letter in accordance with the terms thereof and, for the avoidance of doubt, the Buyer agrees to the terms and conditions set forth therein.
(f) Each Party shall promptly inform the other Parties of any material communication from the Federal Trade Commission, the Department of Justice or any other Governmental Authority regarding any of the transactions contemplated by this Agreement. Each Party will, and will cause its Affiliates to, provide the other Parties with copies of all substantive correspondence, filings or communications between them or any of their Representatives, on the one hand, and any Governmental Authority or members of its staff, on the other hand, with respect to this Agreement and the transactions contemplated by this Agreement; provided, however, that materials may be redacted as necessary to (i) comply with contractual arrangements and (ii) address reasonable attorney-client or other privilege or confidentiality concerns. If any Party or any Affiliate thereof receives a request for additional information or documentary material from any such Governmental Authority with respect to the transactions contemplated by this Agreement, then such Party will use its reasonable best efforts to make, or cause to be made, as soon as reasonably practicable and after consultation with the other Party, an appropriate response in compliance with such request. Each Party will advise the other Parties promptly in respect of any understandings, undertakings or agreements (oral or written) that any Party proposes, in its sole discretion, to make or enter into with the Federal Trade Commission, the Department of Justice or any other Governmental Authority in connection with the transactions contemplated by this Agreement, and give such other Parties the opportunity to attend and participate at any meetings with respect thereto. None of the Parties (including their respective Subsidiaries) will agree to participate in any substantive meeting, telephone call or discussion with a Governmental Authority in respect of any submissions, filings, investigation (including any settlement of the investigation), litigation or other inquiry relating to the matters that are the subject of this Agreement unless it consults with the other Parties in advance (in each case to the extent reasonably practicable) and, except as may be prohibited by a Governmental Authority or by any Law, will permit authorized Representatives of the other Parties to be present at each substantive meeting, telephone call or discussion.
Appears in 1 contract
Samples: Share Purchase Agreement (PTC Inc.)
Filings and Authorizations; Consummation. (a) The Buyer Upon the terms and subject to the conditions hereof, each of the Partnership and the Company shallSubscribers shall use its or his commercially reasonable efforts to take or cause to be taken all actions, and to do or cause to be done all other things, necessary, proper or advisable to consummate the transactions contemplated hereby as promptly as reasonably practicable following practicable.
(b) Each of the parties hereto shall, if required by applicable law, promptly but in any event no later than five (5) Business Days after the date hereof of this Agreement, file or supply, or cause to be filed or supplied in connection with the transactions contemplated herein, all filings (notifications and information required to be filed or supplied pursuant to the HSR Act. Each party hereto also agrees to request early termination of the applicable waiting period thereunder and to supply promptly any additional information and documentary material that may be requested pursuant to the extent relevant, draft versions of filings) and briefing papers set forth on Section 8.4 of the Disclosure LetterHSR Act. The Buyer Partnership acknowledges and agrees that it shall pay and shall be solely responsible for the payment of all filing fees required to be paid in respect of any for the filing contemplated by this Section 7.4under the HSR Act.
(bc) Subject to Section 7.4(d), each Each of the Partiesparties hereto, as promptly as practicable, shall make, or cause to be made, all other filings and submissions not otherwise addressed under Section 7.4(a)laws, including Antitrust Laws, rules and regulations applicable to it, or to its Subsidiaries or Affiliates, as may be required for it to consummate the transactions contemplated herein and use its commercially reasonable best efforts (which shall not require a Party to make any payment or concession to any Person in connection with obtaining such Person’s consent) to obtain, or cause to be obtained, all other authorizations, approvals, consents and waivers from all Persons and Governmental Authorities necessary to be obtained by it, or its Subsidiaries subsidiaries or Affiliates, in order for it to consummate such transactions. None of the Parties shall (and shall cause their Affiliates not to) (i) consent to any voluntary extension of any statutory deadline or waiting period; (ii) pull and refile any filing made under any Antitrust Laws; or (iii) consent to any other voluntary delay of the consummation of the transactions contemplated by this Agreement at the behest of any Governmental Authority, in each case, without the prior written consent of the other Parties, such consent not to be unreasonably withheld, conditioned or delayed.
(cd) The Parties parties hereto shall coordinate and reasonably cooperate with one another in promptly exchanging and providing such information to each other and in making the filings and requests referred to in Sections 7.4(aparagraphs (b) and 7.4(b(c) above. The Parties parties hereto shall promptly supply such reasonable assistance as may be reasonably requested by any other Party party hereto in connection with the foregoing.
(d) Notwithstanding anything to the contrary in this Agreement, each Party shall use, and shall cause its Subsidiaries to use, reasonable best efforts to consummate the transactions contemplated by this Agreement prior to the Termination Date. For the Buyer and its Subsidiaries (but not the Seller and its Subsidiaries), “reasonable best efforts” shall include using such efforts to (x) avoid or eliminate each and every impediment, resolve any objection and obtain all consents under any applicable Law (including Antitrust Laws) as promptly as practicable so as to enable the Parties to consummate the transactions contemplated by this Agreement and (y) avoid the entry or to effect the dissolution of, or vacate or lift, any order, objection of any Governmental Authority or cause the termination of any waiting period under applicable Law (including Antitrust Laws) that would otherwise have the effect of preventing, impairing or delaying the Closing, including (i) proposing, negotiating and offering to commit and effect (and if such offer is accepted, committing to and effecting), by order, consent decree, hold separate order, trust, or otherwise, the sale, license, divestiture, disposition or hold separate of such entities, assets, Intellectual Property, businesses, product lines, equity interests, properties or services of the Buyer or its Subsidiaries (including, following the Closing, members of the Company Group), or otherwise offering to take or offering to commit to take any action (including any action that limits their freedom of action, ownership or control with respect to, or their ability to retain or hold, any of the businesses, assets, product lines, equity interests, properties or services of the Buyer or its Subsidiaries or of the Company Group) to the extent legally permissible, and if the offer is accepted, taking or committing to take such action, (ii) terminating, amending, relinquishing, modifying, waiving or assigning existing relationships, ventures or contractual rights, obligations or other arrangements of the Buyer or its Subsidiaries, (iii) changing or modifying, or agreeing not to engage in, any course of conduct regarding future operations, (iv) creating any relationships, ventures, contractual rights, obligations or other arrangements of the Buyer or its Subsidiaries, (v) committing to take any such actions in the foregoing clauses (i), (ii), (iii) or (iv), (vi) entering or offering to enter into agreements and stipulating to the entry of an Order or decree or filing appropriate applications with any Governmental Authority in connection with any of the actions contemplated by the foregoing clauses (i), (ii), (iii) or (iv), and (vii) opposing, and causing its Subsidiaries to oppose, through and including Action on the merits (and all appeals with respect thereto), any Action asserted in court or other forum by any Governmental Authority or other Person in order to avoid entry of, or to have vacated or terminated, any decree, Order or judgment (whether temporary, preliminary or permanent) that would restrain or prevent the Closing by the Termination Date; provided, however, that the Buyer shall not be required to take, or commit or agree to take (or cause its Affiliates to take, or commit or agree to take), any of the foregoing actions to the extent (x) such action involves the assets, properties or rights of the Buyer or any of its Affiliates (other than, following the Closing, the Company and its Subsidiaries), except with respect to actions that are of an administrative or ministerial nature, or (y) such action would have a material adverse effect on the Company Group, taken as a whole, assuming that the Company Group has the same enterprise value and other financial attributes as the Buyer and its Subsidiaries, taken as a whole, as of the date hereof. For the avoidance of doubt, the Buyer shall not require the Seller or member of the Company Group to, and neither the Seller nor any member of the Company Group shall be required to take (x) any action with respect to any Order or any applicable Law that would bind any member of the Company Group prior to the Closing or bind the Seller at any time or (y) any action contemplated by clauses (i) through (vi) of the immediately prior sentence that is not conditioned upon the Closing. In addition and without limiting the other provisions of this Section 7.4, the Buyer shall use reasonable best efforts to defend through litigation, appealing, contesting or otherwise resisting any Action or Order by any Governmental Authority or private party, challenging the transactions contemplated hereby, including to defend through litigation on the merits any claim asserted in court by any Person in order to avoid entry of, or to have vacated or terminated, any Order (whether temporary, preliminary or permanent) that would delay the Closing or prevent the Closing by the Termination Date; provided, however, that such litigation in no way limits the other obligations of the Buyer set forth in this Section 7.4(d).
(e) Except as specifically required by this Agreement, the Buyer shall not, and shall cause all of its Subsidiaries not to, acquire or agree to enter into a business combination or otherwise acquire by merging or consolidating with, or by purchasing a substantial portion of the assets of or equity in or otherwise make any investment in, or by any other manner, any Person or portion thereof, or otherwise acquire or agree to acquire or make any investment in any assets, if the entering into of a definitive agreement relating to or the consummation of such acquisition, merger, business combination, consolidation, or investment would or would reasonably be expected to (i) impose any material delay in the obtaining of, or materially increase the risk of not obtaining, any consent, approval, authorization, declaration, waiver, license, franchise, permit, certificate or order of any Governmental Authority necessary to satisfy the conditions to Closing set forth in Section 8.4, Section 8.5, Section 8.6, Section 9.4, Section 9.6 or Section 9.7 to consummate the transactions contemplated hereby or the expiration or termination of any applicable waiting period, (ii) materially increase the risk of any Governmental Authority entering an order prohibiting the consummation of the transactions contemplated hereby, (iii) materially increase the risk of not being able to remove any such order on appeal or otherwise or (iv) increase the risk of any Governmental Authority asserting jurisdiction over the transactions contemplated hereby. Each of the Seller and the Company shall take such actions as set forth on Section 7.4(e)(ii) of the Disclosure Letter in accordance with the terms thereof and, for the avoidance of doubt, the Buyer agrees to the terms and conditions set forth therein.
(f) Each Party party hereto shall promptly inform the other Parties parties of any material communication from the Federal Trade Commission, the Department of Justice or any other Governmental Authority regarding any of the transactions contemplated by this Agreement. Each Party will.
(f) The parties hereto will not take any action that will have the effect of delaying, impairing or impeding the receipt of any required approvals and will cause its Affiliates to, provide the other Parties with copies of all substantive correspondence, filings or communications between them or shall promptly respond to any of their Representatives, on the one hand, and requests for additional information from any Governmental Authority or members of its staff, on the other hand, with respect to this Agreement and the transactions contemplated by this Agreement; provided, however, that materials may be redacted as necessary to (i) comply with contractual arrangements and (ii) address reasonable attorney-client or other privilege or confidentiality concerns. If any Party or any Affiliate thereof receives a request for additional information or documentary material from any such Governmental Authority with respect to the transactions contemplated by this Agreement, then such Party will use its reasonable best efforts to make, or cause to be made, as soon as reasonably practicable and after consultation with the other Party, an appropriate response in compliance with such request. Each Party will advise the other Parties promptly third party in respect of any understandings, undertakings or agreements (oral or written) that any Party proposes, in its sole discretion, to make or enter into with the Federal Trade Commission, the Department of Justice or any other Governmental Authority in connection with the transactions contemplated by this Agreement, and give such other Parties the opportunity to attend and participate at any meetings with respect thereto. None of the Parties (including their respective Subsidiaries) will agree to participate in any substantive meeting, telephone call or discussion with a Governmental Authority in respect of any submissions, filings, investigation (including any settlement of the investigation), litigation or other inquiry relating to the matters that are the subject of this Agreement unless it consults with the other Parties in advance (in each case to the extent reasonably practicable) and, except as may be prohibited by a Governmental Authority or by any Law, will permit authorized Representatives of the other Parties to be present at each substantive meeting, telephone call or discussionthereof.
Appears in 1 contract
Filings and Authorizations; Consummation. (a) The Buyer Each of the Parties and the Company shall, as promptly as reasonably practicable following the date hereof file or supply, or cause to be filed or supplied in connection with the transactions contemplated herein, all filings (and to the extent relevant, draft versions of filings) and briefing papers set forth on Section 8.4 of the Disclosure Letter. The Buyer acknowledges and agrees that it shall pay and shall be solely responsible for the payment of all filing fees required to be paid in respect of any filing contemplated by this Section 7.4.
(b) Subject to Section 7.4(d), each of the PartiesControlling Stockholder, as promptly as practicable, shall make, or cause to be made, all other filings and submissions not otherwise addressed under Section 7.4(a)laws, including Antitrust Laws, rules and regulations applicable to it, or to its Subsidiaries or Affiliates, as may be required for it to consummate the transactions contemplated herein Transactions and use its reasonable best efforts in good faith (which shall not require a any Party to make any payment (other than filing fees or other non-punitive fees required to be paid to any Governmental Body) or concession to any Person in connection with obtaining such Person’s consent) to obtain, or cause to be obtained, all other authorizations, approvals, consents and waivers from all Governmental Bodies and other Persons and Governmental Authorities necessary to be obtained by it, or its Subsidiaries or Affiliates, in order for it to consummate such transactions. None the Transactions.
(b) Each of the Parties shall (and shall cause their Affiliates not to) (i) consent to any voluntary extension of any statutory deadline or waiting period; (ii) pull and refile any filing made under any Antitrust Laws; or (iii) consent to any other voluntary delay of the consummation of the transactions contemplated by this Agreement at the behest of any Governmental Authority, in each case, without the prior written consent of the other Parties, such consent not to be unreasonably withheld, conditioned or delayed.
(c) The Parties Controlling Stockholder shall coordinate and reasonably cooperate with one another in promptly exchanging and providing such information to each other and in making the filings and requests referred to in Sections 7.4(a) and 7.4(b) aboveSection 5.2(a). The Parties and the Controlling Stockholder shall promptly supply such reasonable assistance as may be reasonably requested by any other Party in connection with the foregoing.
(dc) Notwithstanding anything to the contrary in this Agreement, each Party shall use, and shall cause its Subsidiaries to use, reasonable best efforts to consummate the transactions contemplated by this Agreement prior to the Termination Date. For the Buyer and its Subsidiaries (but not the Seller and its Subsidiaries), “reasonable best efforts” shall include using such efforts to (x) avoid or eliminate each and every impediment, resolve any objection and obtain all consents under any applicable Law (including Antitrust Laws) as promptly as practicable so as to enable the Parties to consummate the transactions contemplated by this Agreement and (y) avoid the entry or to effect the dissolution of, or vacate or lift, any order, objection of any Governmental Authority or cause the termination of any waiting period under applicable Law (including Antitrust Laws) that would otherwise have the effect of preventing, impairing or delaying the Closing, including (i) proposing, negotiating and offering to commit and effect (and if such offer is accepted, committing to and effecting), by order, consent decree, hold separate order, trust, or otherwise, the sale, license, divestiture, disposition or hold separate of such entities, assets, Intellectual Property, businesses, product lines, equity interests, properties or services of the Buyer or its Subsidiaries (including, following the Closing, members of the Company Group), or otherwise offering to take or offering to commit to take any action (including any action that limits their freedom of action, ownership or control with respect to, or their ability to retain or hold, any of the businesses, assets, product lines, equity interests, properties or services of the Buyer or its Subsidiaries or of the Company Group) to the extent legally permissible, and if the offer is accepted, taking or committing to take such action, (ii) terminating, amending, relinquishing, modifying, waiving or assigning existing relationships, ventures or contractual rights, obligations or other arrangements of the Buyer or its Subsidiaries, (iii) changing or modifying, or agreeing not to engage in, any course of conduct regarding future operations, (iv) creating any relationships, ventures, contractual rights, obligations or other arrangements of the Buyer or its Subsidiaries, (v) committing to take any such actions in the foregoing clauses (i), (ii), (iii) or (iv), (vi) entering or offering to enter into agreements and stipulating to the entry of an Order or decree or filing appropriate applications with any Governmental Authority in connection with any of the actions contemplated by the foregoing clauses (i), (ii), (iii) or (iv), and (vii) opposing, and causing its Subsidiaries to oppose, through and including Action on the merits (and all appeals with respect thereto), any Action asserted in court or other forum by any Governmental Authority or other Person in order to avoid entry of, or to have vacated or terminated, any decree, Order or judgment (whether temporary, preliminary or permanent) that would restrain or prevent the Closing by the Termination Date; provided, however, that the Buyer shall not be required to take, or commit or agree to take (or cause its Affiliates to take, or commit or agree to take), any of the foregoing actions to the extent (x) such action involves the assets, properties or rights of the Buyer or any of its Affiliates (other than, following the Closing, the Company and its Subsidiaries), except with respect to actions that are of an administrative or ministerial nature, or (y) such action would have a material adverse effect on the Company Group, taken as a whole, assuming that the Company Group has the same enterprise value and other financial attributes as the Buyer and its Subsidiaries, taken as a whole, as of the date hereof. For the avoidance of doubt, the Buyer shall not require the Seller or member of the Company Group to, and neither the Seller nor any member of the Company Group shall be required to take (x) any action with respect to any Order or any applicable Law that would bind any member of the Company Group prior to the Closing or bind the Seller at any time or (y) any action contemplated by clauses (i) through (vi) of the immediately prior sentence that is not conditioned upon the Closing. In addition and without limiting the other provisions of this Section 7.4, the Buyer shall use reasonable best efforts to defend through litigation, appealing, contesting or otherwise resisting any Action or Order by any Governmental Authority or private party, challenging the transactions contemplated hereby, including to defend through litigation on the merits any claim asserted in court by any Person in order to avoid entry of, or to have vacated or terminated, any Order (whether temporary, preliminary or permanent) that would delay the Closing or prevent the Closing by the Termination Date; provided, however, that such litigation in no way limits the other obligations of the Buyer set forth in this Section 7.4(d).
(e) Except as specifically required by this Agreement, the Buyer shall not, and shall cause all of its Subsidiaries not to, acquire or agree to enter into a business combination or otherwise acquire by merging or consolidating with, or by purchasing a substantial portion of the assets of or equity in or otherwise make any investment in, or by any other manner, any Person or portion thereof, or otherwise acquire or agree to acquire or make any investment in any assets, if the entering into of a definitive agreement relating to or the consummation of such acquisition, merger, business combination, consolidation, or investment would or would reasonably be expected to (i) impose any material delay in the obtaining of, or materially increase the risk of not obtaining, any consent, approval, authorization, declaration, waiver, license, franchise, permit, certificate or order of any Governmental Authority necessary to satisfy the conditions to Closing set forth in Section 8.4, Section 8.5, Section 8.6, Section 9.4, Section 9.6 or Section 9.7 to consummate the transactions contemplated hereby or the expiration or termination of any applicable waiting period, (ii) materially increase the risk of any Governmental Authority entering an order prohibiting the consummation of the transactions contemplated hereby, (iii) materially increase the risk of not being able to remove any such order on appeal or otherwise or (iv) increase the risk of any Governmental Authority asserting jurisdiction over the transactions contemplated hereby. Each of the Seller Parties and the Company shall take such actions as set forth on Section 7.4(e)(ii) of the Disclosure Letter in accordance with the terms thereof and, for the avoidance of doubt, the Buyer agrees to the terms and conditions set forth therein.
(f) Each Party Controlling Stockholder shall promptly inform the other Parties of any material communication from the Federal Trade Commission, the Department of Justice or any other Governmental Authority Body regarding any of the transactions contemplated by this AgreementTransactions and, if in writing, to furnish a copy thereof to the others. Each Party will, and will cause its Affiliates to, provide If the other Parties with copies of all substantive correspondence, filings or communications between them or any of their Representatives, on the one hand, and any Governmental Authority or members of its staff, on the other hand, with respect to this Agreement and the transactions contemplated by this Agreement; provided, however, that materials may be redacted as necessary to (i) comply with contractual arrangements and (ii) address reasonable attorney-client or other privilege or confidentiality concerns. If any Party or any Affiliate thereof respective Affiliates receives a request for additional information or documentary material from any such Governmental Authority Body with respect to the transactions contemplated by this AgreementTransactions, then such Party will use its reasonable best efforts endeavor in good faith to make, or cause to be made, as soon as reasonably practicable and after consultation with the other Partyparties, an appropriate response in compliance with such request. Each Party and the Controlling Stockholder will advise the other Parties and the Controlling Stockholder promptly in respect of any understandings, undertakings or agreements (oral or written) that any Party proposes, in its sole discretion, which such Person proposes to make or enter into with the Federal Trade Commission, the Department of Justice or any other Governmental Authority Body in connection with the transactions contemplated by this Agreement, and give such other Parties the opportunity to attend and participate at any meetings with respect thereto. None of the Parties (including their respective Subsidiaries) will agree to participate in any substantive meeting, telephone call or discussion with a Governmental Authority in respect of any submissions, filings, investigation (including any settlement of the investigation), litigation or other inquiry relating to the matters that are the subject of this Agreement unless it consults with the other Parties in advance (in each case to the extent reasonably practicable) and, except as may be prohibited by a Governmental Authority or by any Law, will permit authorized Representatives of the other Parties to be present at each substantive meeting, telephone call or discussionTransactions.
Appears in 1 contract
Samples: Securities Purchase Agreement (Emmis Communications Corp)
Filings and Authorizations; Consummation. (a) The Buyer Each of the parties hereto shall prepare and the Company shall, file as promptly as reasonably practicable following the date hereof file or supplyall documentation to effect all necessary notices, or cause to be filed or supplied in connection with the transactions contemplated herein, all reports and other filings (and to the extent relevant, draft versions of filings) and briefing papers set forth on Section 8.4 of the Disclosure Letter. The Buyer acknowledges and agrees that it shall pay and shall be solely responsible for the payment of all filing fees required to be paid in respect of any filing contemplated by this Section 7.4.
(b) Subject to Section 7.4(d), each of the Parties, obtain as promptly as practicablepracticable all consents, shall makeclearances, or cause to be made, all other filings and submissions not otherwise addressed under Section 7.4(a), including Antitrust Laws, applicable to it, or to its Subsidiaries or Affiliates, as may be required for it to consummate the transactions contemplated herein and use its reasonable best efforts (which shall not require a Party to make any payment or concession to any Person in connection with obtaining such Person’s consent) to obtain, or cause to be obtained, all other authorizationsregistrations, approvals, consents permits and waivers from all Persons and Governmental Authorities authorizations necessary or advisable to be obtained by it, or its Subsidiaries or Affiliates, from any Governmental Authority under Antitrust Laws in order for it to consummate such transactions. None of the Parties shall (and shall cause their Affiliates not to) (i) consent to any voluntary extension of any statutory deadline or waiting period; (ii) pull and refile any filing made under any Antitrust Laws; or (iii) consent to any other voluntary delay of the consummation of the transactions contemplated by this Agreement at the behest of any Governmental Authority, in each case, without the prior written consent of the other Parties, such consent not to be unreasonably withheld, conditioned or delayed.
(c) The Parties shall coordinate and reasonably cooperate with one another in promptly exchanging and providing such information to each other and in making the filings and requests referred to in Sections 7.4(a) and 7.4(b) above. The Parties shall promptly supply such reasonable assistance as may be reasonably requested by any other Party in connection with the foregoing.
(d) Notwithstanding anything to the contrary in this Agreement, each Party shall use, and shall cause its Subsidiaries to use, reasonable best efforts to consummate the transactions contemplated by this Agreement prior to Agreement. Without limiting the Termination Date. For the Buyer and its Subsidiaries (but not the Seller and its Subsidiaries), “reasonable best efforts” shall include using such efforts to (x) avoid or eliminate each and every impediment, resolve any objection and obtain all consents under any applicable Law (including Antitrust Laws) as promptly as practicable so as to enable the Parties to consummate the transactions contemplated by this Agreement and (y) avoid the entry or to effect the dissolution of, or vacate or lift, any order, objection of any Governmental Authority or cause the termination of any waiting period under applicable Law (including Antitrust Laws) that would otherwise have the effect of preventing, impairing or delaying the Closing, including (i) proposing, negotiating and offering to commit and effect (and if such offer is accepted, committing to and effecting), by order, consent decree, hold separate order, trust, or otherwise, the sale, license, divestiture, disposition or hold separate of such entities, assets, Intellectual Property, businesses, product lines, equity interests, properties or services of the Buyer or its Subsidiaries (including, following the Closing, members of the Company Group), or otherwise offering to take or offering to commit to take any action (including any action that limits their freedom of action, ownership or control with respect to, or their ability to retain or hold, any of the businesses, assets, product lines, equity interests, properties or services of the Buyer or its Subsidiaries or of the Company Group) to the extent legally permissible, and if the offer is accepted, taking or committing to take such action, (ii) terminating, amending, relinquishing, modifying, waiving or assigning existing relationships, ventures or contractual rights, obligations or other arrangements of the Buyer or its Subsidiaries, (iii) changing or modifying, or agreeing not to engage in, any course of conduct regarding future operations, (iv) creating any relationships, ventures, contractual rights, obligations or other arrangements of the Buyer or its Subsidiaries, (v) committing to take any such actions in the foregoing clauses (i), (ii), (iii) or (iv), (vi) entering or offering to enter into agreements and stipulating to the entry of an Order or decree or filing appropriate applications with any Governmental Authority in connection with any of the actions contemplated by the foregoing clauses (i), (ii), (iii) or (iv), and (vii) opposing, and causing its Subsidiaries to oppose, through and including Action on the merits (and all appeals with respect thereto), any Action asserted in court or other forum by any Governmental Authority or other Person in order to avoid entry of, or to have vacated or terminated, any decree, Order or judgment (whether temporary, preliminary or permanent) that would restrain or prevent the Closing by the Termination Date; provided, however, that the Buyer shall not be required to take, or commit or agree to take (or cause its Affiliates to take, or commit or agree to take), any of the foregoing actions to the extent (x) such action involves the assets, properties or rights of the Buyer or any of its Affiliates (other than, following the Closingforegoing, the Company and its Subsidiaries), except with respect to actions that are of an administrative or ministerial nature, or (y) such action would have a material adverse effect on the Company Group, taken as a whole, assuming that the Company Group has the same enterprise value and other financial attributes as the Buyer and its Subsidiaries, taken as a whole, as of the date hereof. For the avoidance of doubt, the Buyer shall not require make their respective filings (or, where customary, draft filings to be followed in the Seller or member of the Company Group to, and neither the Seller nor any member of the Company Group shall be required to take (xordinary course by formal filings) any action with respect to any Order or any applicable Law that would bind any member of the Company Group prior to the Closing or bind the Seller at any time or (y) any action contemplated by clauses (i) through (vi) of the immediately prior sentence that is not conditioned upon the Closing. In addition and without limiting the other provisions of this Section 7.4, the Buyer shall use reasonable best efforts to defend through litigation, appealing, contesting or otherwise resisting any Action or Order by any Governmental Authority or private party, challenging the transactions contemplated hereby, including to defend through litigation on the merits any claim asserted in court by any Person in order to avoid entry of, or to have vacated or terminated, any Order (whether temporary, preliminary or permanent) that would delay the Closing or prevent the Closing by the Termination Date; provided, however, that such litigation in no way limits the other obligations of the Buyer set forth in this Section 7.4(d).
(e) Except as specifically required by this Agreement, the Buyer shall not, and shall cause all of its Subsidiaries not to, acquire or agree to enter into a business combination or otherwise acquire by merging or consolidating with, or by purchasing a substantial portion of the assets of or equity in or otherwise make any investment in, or by any other manner, any Person or portion thereof, or otherwise acquire or agree to acquire or make any investment in any assets, if the entering into of a definitive agreement relating to or the consummation of such acquisition, merger, business combination, consolidation, or investment would or would reasonably be expected pursuant to (i) impose any material delay in the obtaining of, or materially increase the risk of not obtaining, any consent, approval, authorization, declaration, waiver, license, franchise, permit, certificate or order of any Governmental Authority necessary to satisfy the conditions to Closing set forth in Section 8.4, Section 8.5, Section 8.6, Section 9.4, Section 9.6 or Section 9.7 to consummate the transactions contemplated hereby or the expiration or termination of any applicable waiting period, (ii) materially increase the risk of any Governmental Authority entering an order prohibiting the consummation of the transactions contemplated hereby, (iii) materially increase the risk of not being able to remove any such order on appeal or otherwise or (iv) increase the risk of any Governmental Authority asserting jurisdiction over the transactions contemplated hereby. Each of the Seller and the Company shall take such actions as set forth on Section 7.4(e)(ii) of the Disclosure Letter in accordance with the terms thereof and, for the avoidance of doubt, the Buyer agrees to the terms and conditions set forth therein.
(f) Each Party shall promptly inform the other Parties of any material communication from the Federal Trade Commission, the Department of Justice or any other Governmental Authority regarding any of the transactions contemplated by this Agreement. Each Party will, and will cause its Affiliates to, provide the other Parties with copies of all substantive correspondence, filings or communications between them or any of their Representatives, on the one hand, and any Governmental Authority or members of its staff, on the other hand, with respect to this Agreement and the transactions contemplated by this Agreement; provided, however, that materials may be redacted as necessary to (i) comply with contractual arrangements and (ii) address reasonable attorney-client or other privilege or confidentiality concerns. If any Party or any Affiliate thereof receives a request for additional information or documentary material from any such Governmental Authority HSR Act with respect to the transactions contemplated by this Agreement as promptly as reasonably practicable and no later than ten (10) Business Days after the date of this Agreement and (ii) the authorizations or approvals listed on Schedule 7.4(a) (the “Required Approvals”) as promptly as reasonably practicable and no later than twenty (20) Business Days after the date of this Agreement; provided that in each case, then such Party will if any relevant Governmental Authority has informed, requested, advised or publicly announced that an applicable filing (or draft filing) should not or cannot be made within the foregoing timeline, or if an applicable filing (or draft filing) cannot be made within the foregoing timeline for any other reason related to COVID-19, the Company and the Buyer shall use its their respective reasonable best efforts to make, or cause to be made, make the applicable filing as soon promptly as reasonably practicable and after consultation with the other Party, an appropriate response in compliance with such requestthereafter. Each Party will advise of the other Parties parties hereto shall promptly in respect of provide documents requested by any understandings, undertakings or agreements (oral or written) that any Party proposes, in its sole discretion, to make or enter into with the Federal Trade Commission, the Department of Justice or any other Governmental Authority to the extent reasonably necessary or advisable to obtain as promptly as practicable all consents, registrations, approvals, permits and authorizations necessary or advisable to be obtained from such Governmental Authority under Antitrust Laws in connection with order to consummate the transactions contemplated by this Agreement, and give such other Parties the opportunity to attend and participate at any meetings with respect thereto. None of the Parties (including their respective Subsidiaries) will The parties agree to participate in any substantive meetingrequest, telephone call or discussion with a Governmental Authority in respect of any submissions, filings, investigation (including any settlement of the investigation), litigation or other inquiry relating to the matters that are the subject of this Agreement unless it consults with the other Parties in advance (in each case to the extent reasonably practicable) and, except as may be prohibited by a Governmental Authority or by any Law, will permit authorized Representatives of the other Parties cause to be present at each substantive meetingrequested, telephone call or discussion.early termination under the HSR Act and any other Antitrust Laws, if applicable. The parties shall consider in good faith whether it would be worthwhile to request the Spanish Competition and Markets authority (la
Appears in 1 contract
Samples: Stock Purchase Agreement (Wanda Sports Group Co LTD)
Filings and Authorizations; Consummation. (a) The Buyer and Each of the Company Parties shall, as promptly as reasonably practicable if required by applicable Law, within twenty (20) Business Days following the date hereof other than provided below, file or supplysupply (and not withdraw), or cause to be filed or supplied (and not withdrawn) in connection with the transactions contemplated herein, all filings (notifications and information required to be filed or supplied pursuant to the extent relevant, draft versions of filings) and briefing papers set forth on Section 8.4 of the Disclosure LetterHSR Act. The Buyer acknowledges Acquiror shall pay, or cause to be paid, and agrees that it shall pay and shall be solely responsible for the payment of one hundred percent (100%) of all filing fees required for the filing under the HSR Act and any other filings and submissions under applicable Law; provided, that the API Entities shall be solely responsible as a Transaction Expense for the payment of one hundred percent (100%) of the filings, if any, made under the HSR Act with respect to be paid in respect their (or their Affiliates) receipts of any filing contemplated by this Section 7.4PubCo stock.
(b) Subject to Section 7.4(d), each Each of the Parties, as promptly as practicable, practicable following the date hereof shall make, or cause to be made, all other filings and submissions not otherwise addressed under Section 7.4(a)Law, including Antitrust Laws, applicable to it, or to its Subsidiaries or and Affiliates, as may be required for it to consummate the transactions contemplated herein Transactions and use its reasonable best efforts (which shall not require a Party to make any payment or concession to any Person in connection with obtaining such Person’s consent) to obtain, or cause to be obtained, all other authorizations, approvals, consents and waivers from all Persons and Governmental Authorities necessary to be obtained by it, or its Subsidiaries or Affiliates, in order for it to consummate such transactionsthe Transactions. None of the Parties shall (and shall cause their Affiliates not to) (i) consent to any voluntary extension of any statutory deadline or waiting period; (ii) pull and refile any filing made under any Antitrust Laws; or (iii) consent to any other voluntary delay of the consummation of the transactions contemplated by this Agreement at the behest of any Governmental Authority, in each case, without the prior written consent of the other Parties, such consent not to be unreasonably withheld, conditioned or delayed.
(c) The Parties shall coordinate and reasonably cooperate with one another in promptly exchanging and providing such information to each other and in making the filings and requests referred to in Sections 7.4(a) and 7.4(b) abovethis Section 6.5. The Parties shall promptly supply such reasonable assistance as may be reasonably requested by any other Party in connection with the foregoing.
(dc) Notwithstanding anything The Acquiror Parties shall, and shall cause their Affiliates to, use reasonable best efforts to take, or cause to be taken, all actions, and to do or cause to be done, all things necessary, proper, or advisable to effect the contrary consummation of the transactions contemplated in this Agreement, each Party including but not limited to offering, negotiating, committing to or effect any sale, divestiture, license or other disposition, restriction, or arrangement to hold separate any of the equity securities, assets, rights, products or businesses of the Company Group Entities; provided that the Acquiror Parties shall usenot be required to (and the Company Group Entities shall not, and without the prior written consent of the Acquiror Parties) offer, negotiate, commit to or effect any sale, divestiture, license or other disposition, restriction, or arrangement to hold separate with respect to any of the equity securities, assets, rights, products or businesses of (i) the Acquiror Parties (excluding the Company Group Entities) or (ii) the Company Group Entities, if such action, individually or in the aggregate, would reasonably be expected to result in a material adverse effect on the Company Group Entities. The Acquiror Parties shall cause its Subsidiaries to use, use reasonable best efforts to consummate in defending, contesting or otherwise resisting any action or Order challenging the transactions contemplated by this Agreement prior to the Termination Date. For the Buyer and its Subsidiaries (but not the Seller and its Subsidiaries), “reasonable best efforts” shall include using such efforts to (x) avoid or eliminate each and every impediment, resolve any objection and obtain all consents under any applicable Law (including Antitrust Laws) as promptly as practicable so as to enable the Parties to consummate the transactions contemplated by this Agreement and (y) avoid the entry or to effect the dissolution of, or vacate or lift, any order, objection of any Governmental Authority or cause the termination of any waiting period under applicable Law (including Antitrust Laws) that would otherwise have the effect of preventing, impairing or delaying the Closing, including (i) proposing, negotiating and offering to commit and effect (and if such offer is accepted, committing to and effecting), by order, consent decree, hold separate order, trust, or otherwise, the sale, license, divestiture, disposition or hold separate of such entities, assets, Intellectual Property, businesses, product lines, equity interests, properties or services of the Buyer or its Subsidiaries (including, following the Closing, members of the Company Group), or otherwise offering to take or offering to commit to take any action (including any action that limits their freedom of action, ownership or control with respect to, or their ability to retain or hold, any of the businesses, assets, product lines, equity interests, properties or services of the Buyer or its Subsidiaries or of the Company Group) to the extent legally permissible, and if the offer is accepted, taking or committing to take such action, (ii) terminating, amending, relinquishing, modifying, waiving or assigning existing relationships, ventures or contractual rights, obligations or other arrangements of the Buyer or its Subsidiaries, (iii) changing or modifying, or agreeing not to engage in, any course of conduct regarding future operations, (iv) creating any relationships, ventures, contractual rights, obligations or other arrangements of the Buyer or its Subsidiaries, (v) committing to take any such actions in the foregoing clauses (i), (ii), (iii) or (iv), (vi) entering or offering to enter into agreements and stipulating to the entry of an Order or decree or filing appropriate applications with any Governmental Authority in connection with any of the actions contemplated by the foregoing clauses (i), (ii), (iii) or (iv), and (vii) opposing, and causing its Subsidiaries to oppose, through and including Action on the merits (and all appeals with respect thereto), any Action asserted in court or other forum by any Governmental Authority or other Person hereby in order to avoid entry of, or to have vacated vacated, lifted, reversed, or terminated, overturned any such decree, Order judgment, injunction or judgment (other Order, whether temporary, preliminary preliminary, or permanent) that would restrain or prevent the Closing by the Termination Date; provided, however, that the Buyer shall not be required to takeis in effect and that prohibits, prevents or commit or agree to take (or cause its Affiliates to take, or commit or agree to take), any restricts consummation of the foregoing actions transactions contemplated by this Agreement. Notwithstanding anything to the extent (x) such action involves contrary herein, nothing in this Section 6.5 shall require the assets, properties or rights of the Buyer Company Group Entities or any of its their respective Affiliates (other thanto agree to any condition, following the Closing, the Company and its Subsidiaries), except with respect to actions take any measure or action or enter into any agreement that are of an administrative or ministerial nature, or (y) such action would have a material adverse effect is not contingent on the Company Group, taken as a whole, assuming that the Company Group has the same enterprise value and other financial attributes as the Buyer and its Subsidiaries, taken as a whole, as of the date hereof. For the avoidance of doubt, the Buyer shall not require the Seller Closing or member of the Company Group to, and neither the Seller nor any member of the Company Group shall be required to take (x) any action with respect to any Order or any applicable Law that would bind any member of the Company Group be effective prior to the Closing or bind the Seller at any time or (y) any action contemplated by clauses (i) through (vi) of the immediately prior sentence that is not conditioned upon the Closing. In addition and without limiting the other provisions of this Section 7.4, the Buyer shall use reasonable best efforts to defend through litigation, appealing, contesting or otherwise resisting any Action or Order by any Governmental Authority or private party, challenging the transactions contemplated hereby, including to defend through litigation on the merits any claim asserted in court by any Person in order to avoid entry of, or to have vacated or terminated, any Order (whether temporary, preliminary or permanent) that would delay the Closing or prevent the Closing by the Termination Date; provided, however, that such litigation in no way limits the other obligations of the Buyer set forth in this Section 7.4(d).
(ed) Except as specifically required by this Agreement, the Buyer The Acquiror Parties shall not, and shall cause all not permit any of its Subsidiaries not to, Affiliates to acquire or agree to enter into a business combination or otherwise acquire by merging or consolidating with, or by purchasing a substantial portion of the assets of or equity in or otherwise make making any investment in, or by any other manner, any Person or portion thereof, or otherwise acquire or agree to acquire or make any investment in any assets, or agree to a commercial or strategic relationship with any Person, if the entering into of a definitive agreement relating to or the consummation of such acquisition, merger, business combination, consolidation, or investment would or action would reasonably be expected to (i) impose any material delay in the obtaining of, or materially increase the risk of not obtaining, any consent, approval, authorization, declaration, waiver, license, franchise, permit, certificate or order Order of any Governmental Authority necessary to satisfy the conditions to Closing set forth in Section 8.4, Section 8.5, Section 8.6, Section 9.4, Section 9.6 or Section 9.7 to consummate the transactions contemplated hereby or the expiration or termination of any applicable waiting period, or (ii) materially increase the risk of any Governmental Authority entering an order prohibiting the consummation of the transactions contemplated hereby, (iii) materially increase the risk of not being able to remove any such order on appeal or otherwise or (iv) increase the risk of any Governmental Authority asserting jurisdiction over the transactions contemplated hereby. Each of the Seller and the Company shall take such actions as set forth on Section 7.4(e)(ii) of the Disclosure Letter in accordance with the terms thereof and, for the avoidance of doubt, the Buyer agrees to the terms and conditions set forth therein.
(fe) Each Party shall promptly inform the other Parties of any material communication from the Federal Trade Commission, the Department of Justice or any other Governmental Authority regarding any of the transactions contemplated by this Agreement. Each Party will, and will cause its Affiliates to, provide the other Parties with copies of all substantive correspondence, filings or communications between them or any of their Representatives, on the one hand, and any Governmental Authority or members of its staff, on the other hand, with respect to this Agreement and the transactions contemplated by this Agreement; provided, however, that materials may be redacted as necessary to (i) comply with contractual arrangements and (ii) address reasonable attorney-client or other privilege or confidentiality concerns. If any Party or any Affiliate thereof receives a request for additional information or documentary material from any such Governmental Authority with respect to the transactions contemplated by this Agreement, then such Party will use its reasonable best efforts endeavor in good faith to make, or cause to be made, as soon as reasonably practicable and after consultation with the other Party, an appropriate response in compliance with to such request. Each Party The Acquiror Parties will advise the other Parties promptly in respect of not make or enter into any understandings, undertakings or agreements (oral or written) that any Party proposes, in its sole discretion, to make or enter into with the Federal Trade Commission, the Department of Justice or any other Governmental Authority in connection with the transactions contemplated by this AgreementAgreement without the prior written consent of the Companies (not to be unreasonably withheld, conditioned or delayed), and will give such other Parties the Companies a reasonable opportunity to review and comment on any documentation with respect thereto and to attend and participate at any meetings with respect thereto. None of the Parties (including their respective Subsidiaries) will agree to participate in any substantive meeting, telephone call or discussion with a Governmental Authority in respect of any submissions, filings, investigation (including any settlement of the investigation), litigation or other inquiry relating to the matters that are the subject of this Agreement unless it consults with the other Parties in advance (in each case to the extent reasonably practicable) and, except as may be prohibited by a Governmental Authority or by any Law, will permit authorized Representatives of the other Parties to be present at each substantive meeting, telephone call or discussion.
Appears in 1 contract
Samples: Transaction Agreement (TPG Inc.)
Filings and Authorizations; Consummation. (a) The Buyer Each of the Seller and the Company shall, as promptly as reasonably practicable following Buyer represents and warrants that it has filed the date hereof file or supply, or cause Pre-Merger Notification and Report Form required to be filed or supplied under the HSR Act in connection with the transactions contemplated herein, all filings (and to the extent relevant, draft versions of filings) and briefing papers set forth on Section 8.4 of the Disclosure Letterby this Agreement. The Buyer acknowledges and agrees that it shall pay and shall be solely responsible for the payment of all filing fees required to be paid in respect and other charges for the filing under the HSR Act; provided, however, that fifty percent (50%) of any and all such filing contemplated fees paid by this Section 7.4the Buyer shall constitute Company Expenses.
(b) Subject to Section 7.4(d), each Each of the Partiesparties hereto, as promptly as practicable, shall make, or cause to be made, all other filings and submissions not otherwise addressed under Section 7.4(a)laws, including Antitrust Laws, rules and regulations applicable to it, or to its Subsidiaries or and Affiliates, as may be required for it to consummate the transactions contemplated herein and use its commercially reasonable best efforts (which shall not require a Party either party to make any payment or concession to any Person in connection with obtaining such Person’s consent) to obtain, or cause to be obtained, all other authorizations, approvals, consents and waivers from all Persons and Governmental Authorities necessary to be obtained by it, or its Subsidiaries or Affiliates, in order for it to consummate such transactions. None of In the Parties event the Buyer elects to obtain title insurance reasonably acceptable to Buyer with respect to the Real Property, the Company, and/or the applicable Company Subsidiary shall (execute and shall cause their Affiliates not to) deliver to the Buyer (i) consent affidavits as to any voluntary extension of any statutory deadline or waiting period; parties in possession and mechanic’s and materialmen’s liens in form reasonably satisfactory to the Buyer’s title company, and (ii) pull and refile any filing made under any Antitrust Laws; or (iii) consent to any other voluntary delay of documents reasonably requested by the consummation of Buyer and/or the transactions contemplated by this Agreement at Buyer’s title company necessary for the behest of any Governmental Authority, in each case, without Buyer to obtain title insurance with respect to the prior written consent of the other Parties, such consent not to be unreasonably withheld, conditioned or delayedReal Property.
(c) The Parties parties hereto shall coordinate and reasonably cooperate with one another in promptly exchanging and providing such information to each other one another and in making the filings and requests referred to in Sections 7.4(aparagraphs (a) and 7.4(b(b) above. The Parties parties hereto shall promptly supply such reasonable assistance as may be reasonably requested by any other Party party hereto in connection with the foregoing.
(d) Subject to the Buyer’s compliance with Section 7.3(e), and notwithstanding the foregoing, nothing in this Section 7.3 shall require, or be construed to require, the Buyer or any of its Affiliates to agree to (i) sell, hold, divest, discontinue or limit, before or after the Closing Date, any assets, businesses or interests of the Buyer, the Company, any Company Subsidiary 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 be expected to result in a Material Adverse Effect or materially and adversely impact the economic or business benefits to the Buyer of the transactions contemplated by this Agreement; or (iii) any material modification or waiver of the terms and conditions of this Agreement.
(e) Notwithstanding anything to the contrary in herein, if (i) following the date hereof and prior to the Closing, the Buyer or any of its Affiliates acquires or enters into any agreement to acquire (by merger, consolidation, acquisition of equity interests or assets, joint venture or otherwise) the business of any Person which is similar to or competitive with the business of the Company and the Company Subsidiaries (other than pursuant to the transactions contemplated by this Agreement) and (ii) as a result of the actions of the Buyer or its Affiliates under clause (i) above, each Party shall use, and shall cause its Subsidiaries to use, reasonable best efforts to consummate any order is made by any Governmental Authority or any suit is threatened or instituted challenging any of the transactions contemplated by this Agreement prior to the Termination Date. For as violative of any Antitrust Law, the Buyer shall take any and its Subsidiaries (but not the Seller and its Subsidiaries), “reasonable best efforts” shall include using all such efforts to (x) avoid or eliminate each and every impediment, resolve any objection and obtain all consents under any applicable Law (including Antitrust Laws) as promptly as practicable so as to enable the Parties to consummate the transactions contemplated by this Agreement and (y) avoid the entry or to effect the dissolution of, or vacate or lift, any order, objection of any Governmental Authority or cause the termination of any waiting period under applicable Law (including Antitrust Laws) that would otherwise have the effect of preventing, impairing or delaying the Closing, including (i) proposing, negotiating and offering to commit and effect (and if such offer is accepted, committing to and effecting), by order, consent decree, hold separate order, trust, or otherwise, the sale, license, divestiture, disposition or hold separate of such entities, assets, Intellectual Property, businesses, product lines, equity interests, properties or services of the Buyer or its Subsidiaries actions (including, following the Closingwithout limitation, members of the Company Group), agreeing to hold separate or otherwise offering to take or offering to commit to take any action (including any action that limits their freedom of action, ownership or control with respect to, or their ability to retain or hold, divest any of the businesses, assets, product lines, equity interests, properties lines or services of the Buyer or its Subsidiaries or of the Company Group) to the extent legally permissible, and if the offer is accepted, taking or committing to take such action, (ii) terminating, amending, relinquishing, modifying, waiving or assigning existing relationships, ventures or contractual rights, obligations or other arrangements of the Buyer or its Subsidiaries, (iii) changing or modifying, or agreeing not to engage in, any course of conduct regarding future operations, (iv) creating any relationships, ventures, contractual rights, obligations or other arrangements of the Buyer or its Subsidiaries, (v) committing to take any such actions in the foregoing clauses (i), (ii), (iii) or (iv), (vi) entering or offering to enter into agreements and stipulating to the entry of an Order or decree or filing appropriate applications with any Governmental Authority in connection with any of the actions contemplated by the foregoing clauses (i), (ii), (iii) or (iv), and (vii) opposing, and causing its Subsidiaries to oppose, through and including Action on the merits (and all appeals with respect thereto), any Action asserted in court or other forum by any Governmental Authority or other Person in order to avoid entry of, or to have vacated or terminated, any decree, Order or judgment (whether temporary, preliminary or permanent) that would restrain or prevent the Closing by the Termination Date; provided, however, that the Buyer shall not be required to take, or commit or agree to take (or cause its Affiliates to take, or commit or agree to take), any of the foregoing actions to the extent (x) such action involves the assets, properties or rights assets of the Buyer or any of its Affiliates or of the Company, any Company Subsidiary or their respective Affiliates) as may be required (other thanA) by the applicable Governmental Authority (including, following the Closingwithout limitation, the Company and its Subsidiaries), except with respect Antitrust Division of the United States Department of Justice or the Federal Trade Commission) in order to actions that are of an administrative or ministerial natureresolve such objections as such Governmental Authority may have to such transactions under such Antitrust Law, or (yB) such action would have a material adverse effect on the Company Group, taken as a whole, assuming that the Company Group has the same enterprise value and other financial attributes as the Buyer and its Subsidiaries, taken as a whole, as of the date hereof. For the avoidance of doubt, the Buyer shall not require the Seller or member of the Company Group to, and neither the Seller nor any member of the Company Group shall be required to take (x) any action with respect to any Order or any applicable Law that would bind any member of the Company Group prior to the Closing or bind the Seller at any time or (y) any action contemplated by clauses (i) through (vi) of the immediately prior sentence that is not conditioned upon the Closing. In addition and without limiting the other provisions of this Section 7.4, the Buyer shall use reasonable best efforts to defend through litigation, appealing, contesting or otherwise resisting any Action or Order by any domestic or foreign court or similar tribunal, in any suit brought by any Person or Governmental Authority or private party, challenging the transactions contemplated herebyby this Agreement as violative of any Antitrust Law, including to defend through litigation on the merits any claim asserted in court by any Person in order to avoid the entry of, or to have vacated or terminatedeffect the dissolution of, any Order (whether temporaryinjunction, preliminary temporary restraining order or permanent) other order that would delay has the Closing or prevent the Closing by the Termination Date; provided, however, that such litigation in no way limits the other obligations effect of the Buyer set forth in this Section 7.4(d).
(e) Except as specifically required by this Agreement, the Buyer shall not, and shall cause all of its Subsidiaries not to, acquire or agree to enter into a business combination or otherwise acquire by merging or consolidating with, or by purchasing a substantial portion of the assets of or equity in or otherwise make any investment in, or by any other manner, any Person or portion thereof, or otherwise acquire or agree to acquire or make any investment in any assets, if the entering into of a definitive agreement relating to or the consummation of such acquisition, merger, business combination, consolidation, or investment would or would reasonably be expected to (i) impose any material delay in the obtaining of, or materially increase the risk of not obtaining, any consent, approval, authorization, declaration, waiver, license, franchise, permit, certificate or order of any Governmental Authority necessary to satisfy the conditions to Closing set forth in Section 8.4, Section 8.5, Section 8.6, Section 9.4, Section 9.6 or Section 9.7 to consummate the transactions contemplated hereby or the expiration or termination of any applicable waiting period, (ii) materially increase the risk of any Governmental Authority entering an order prohibiting preventing the consummation of the transactions contemplated herebyby this Agreement. If the Buyer or any of its Affiliates takes any of the actions set forth in clause (i) above, (iii) materially increase it shall not be deemed a failure to satisfy the risk of not being able to remove conditions specified in Sections 8.4 or 9.4, if in any such order on appeal suit brought by any Person or otherwise or (iv) increase the risk of any Governmental Authority asserting jurisdiction over challenging the transactions contemplated hereby. Each by this Agreement as violative of any Antitrust Law, a court enters or the applicable Governmental Authority makes an order or decree permitting the transactions contemplated by this Agreement, but requiring that any of the Seller businesses, product lines or assets of any of the Buyer or its Affiliates or of the Company, the Company Subsidiaries or their respective Affiliates be divested or held separate by the Buyer, or that would otherwise limit the Buyer’s freedom of action with respect to, or its ability to retain, the Company and the Company shall take such actions as set forth on Section 7.4(e)(ii) Subsidiaries or any portion thereof or any of the Disclosure Letter in accordance with the terms thereof and, for the avoidance of doubt, the Buyer agrees to the terms and conditions set forth thereinBuyer’s or its Affiliates’ other assets or businesses.
(f) Each Party party hereto shall promptly inform the other Parties parties of any material communication from the Federal Trade Commission, the Department of Justice or any other Governmental Authority regarding any of the transactions contemplated by this Agreement. Each Party will, and will cause its Affiliates to, provide the other Parties with copies of all substantive correspondence, filings or communications between them or any of their Representatives, on the one hand, and any Governmental Authority or members of its staff, on the other hand, with respect to this Agreement and the transactions contemplated by this Agreement; provided, however, that materials may be redacted as necessary to (i) comply with contractual arrangements and (ii) address reasonable attorney-client or other privilege or confidentiality concerns. If any Party party or any Affiliate thereof receives a request for additional information or documentary material from any such Governmental Authority with respect to the transactions contemplated by this Agreement, then such Party party will use its reasonable best efforts endeavor in good faith to make, or cause to be made, as soon as reasonably practicable and after consultation with the other Partyparty, an appropriate response in compliance with such request. Each Party The Buyer will advise the other Parties Company promptly in respect of any understandings, undertakings or agreements (oral or written) that any Party proposes, in its sole discretion, which the Buyer proposes to make or enter into with the Federal Trade Commission, the Department of Justice or any other Governmental Authority in connection with the transactions contemplated by this Agreement, and give such other Parties the opportunity to attend and participate at any meetings with respect thereto. None of the Parties (including their respective Subsidiaries) will agree to participate in any substantive meeting, telephone call or discussion with a Governmental Authority in respect of any submissions, filings, investigation (including any settlement of the investigation), litigation or other inquiry relating to the matters that are the subject of this Agreement unless it consults with the other Parties in advance (in each case to the extent reasonably practicable) and, except as may be prohibited by a Governmental Authority or by any Law, will permit authorized Representatives of the other Parties to be present at each substantive meeting, telephone call or discussion.
Appears in 1 contract
Filings and Authorizations; Consummation. (a) The Buyer and Each of the Company shall, as promptly as reasonably practicable Parties shall within ten (10) Business Days following the date hereof of this Agreement, file or supply, or cause to be filed or supplied supplied, in connection with the transactions contemplated herein, all filings (notifications and information required to be filed or supplied pursuant to the extent relevantHSR Act (it being understood that if there are changes in the applicable regulations under the HSR Act between the date hereof and the date of filing pursuant to the HSR Act, draft versions of filings) the Company and briefing papers set forth on Section 8.4 of Parent shall file or cause to be filed all required notification and report forms under the Disclosure LetterHSR Act as promptly as reasonably practicable thereafter). The Buyer Parent acknowledges and agrees that it shall pay and shall be solely responsible for the payment of all filing fees required to be paid in respect of any and other charges for the filing contemplated by this Section 7.4under the HSR Act.
(b) Subject to Section 7.4(d), each Each of the Parties, as promptly as practicable, shall make, or cause to be made, all other filings and submissions not otherwise addressed under Section 7.4(a)applicable Law, including Antitrust Laws and Healthcare Notification Laws, applicable to it, or to its Subsidiaries or and Affiliates, as may be required for it to consummate the transactions contemplated herein and use its commercially reasonable best efforts (which which, except as set forth in Section 6.3(d), shall not require a either Party to make any payment or concession to any Person in connection with obtaining such Person’s consent) to obtain, or cause to be obtained, all other authorizations, approvals, consents and waivers from all Persons and Governmental Authorities necessary to be obtained by it, or its Subsidiaries or Affiliates, in order for it to consummate such transactions. None Prior to the Closing Date, the Company shall use commercially reasonable efforts to obtain third party consents and waivers pursuant to any Material Contracts and shall coordinate with Parent with respect to such efforts and keep Parent reasonably informed of the Parties shall (and shall cause their Affiliates not to) (i) consent to any voluntary extension results of such efforts; provided, that the Company’s receipt of any statutory deadline such third party consent or waiting periodwaiver shall not be a condition to Parent’s or Merger Sub’s obligation to close the transactions contemplated under this Agreement; (ii) pull and refile provided, further, that such commercially reasonable efforts shall not include any filing made under requirement to make any Antitrust Laws; payment or (iii) consent agree to any other voluntary delay of the consummation of the transactions contemplated by this Agreement at the behest of material action in connection with seeking any Governmental Authority, in each case, without the prior written consent of the other Parties, such consent not to be unreasonably withheld, conditioned consents or delayedwaivers.
(c) The Parties shall coordinate and reasonably cooperate with one another in promptly exchanging and providing such information to each other and in making the filings and requests referred to in Sections 7.4(a6.3(a) and 7.4(b(b) above, including any additional information, documentary material, or subsequent filings as may be requested. The Parties shall promptly supply such reasonable assistance as may be reasonably requested by any other Party in connection with the foregoing.
(d) Notwithstanding anything to the contrary in this Agreement, each Party shall use, and shall cause its Subsidiaries to use, reasonable best efforts to consummate if any order is made by any Governmental Authority or any suit is threatened or instituted challenging any of the transactions contemplated by this Agreement prior to the Termination Date. For the Buyer as violating any Antitrust Law or Healthcare Notification Law, Parent shall, and shall cause its Subsidiaries (but not the Seller and its Subsidiaries)controlled Affiliates to, “use reasonable best efforts” shall include using such efforts to (x) avoid or eliminate each and every impediment, resolve any objection and obtain all consents impediment under any applicable Law (including Antitrust Laws or Healthcare Notification Laws) , as promptly as practicable applicable, so as to enable the Parties Closing to consummate occur as soon as reasonably possible (and in any event no later than the transactions contemplated Termination Date); provided, however, that neither Parent nor any of its Affiliates shall have any obligation to (i) propose, negotiate, commit to or effect, by this Agreement and consent decree, hold separate order, or otherwise, the sale, divestiture or disposition of any businesses, product lines or assets of Parent or its Affiliates, including, after the Closing Date, of the Company, any Company Subsidiary or their respective Affiliates, or (yii) otherwise take or commit to take actions that after the Closing Date would limit Parent’s or its Affiliates’ freedom of action with respect to, or its or their ability to retain, one or more of the businesses, product lines or assets of Parent or its Affiliates, including, after the Closing Date, of the Company, any Company Subsidiary or their respective Affiliates, in order to avoid the entry of, or to effect the dissolution of, any preliminary or vacate or liftpermanent injunction, any order, objection of any Governmental Authority or cause the termination of any waiting period under applicable Law (including Antitrust Laws) that would otherwise have the effect of preventing, impairing or delaying the Closing, including (i) proposing, negotiating and offering to commit and effect (and if such offer is accepted, committing to and effecting), by order, consent decree, hold separate order, trust, or otherwise, the sale, license, divestiture, disposition or hold separate of such entities, assets, Intellectual Property, businesses, product lines, equity interests, properties or services of the Buyer or its Subsidiaries (including, following the Closing, members of the Company Group), or otherwise offering to take or offering to commit to take any action (including any action that limits their freedom of action, ownership or control with respect to, or their ability to retain or hold, any of the businesses, assets, product lines, equity interests, properties or services of the Buyer or its Subsidiaries or of the Company Group) to the extent legally permissible, and if the offer is accepted, taking or committing to take such action, (ii) terminating, amending, relinquishing, modifying, waiving or assigning existing relationships, ventures or contractual rights, obligations or other arrangements of the Buyer or its Subsidiaries, (iii) changing or modifying, or agreeing not to engage in, any course of conduct regarding future operations, (iv) creating any relationships, ventures, contractual rights, obligations or other arrangements of the Buyer or its Subsidiaries, (v) committing to take any such actions in the foregoing clauses (i), (ii), (iii) or (iv), (vi) entering or offering to enter into agreements and stipulating to the entry of an Order or decree or filing appropriate applications with any Governmental Authority in connection with any of the actions contemplated by the foregoing clauses (i), (ii), (iii) or (iv), and (vii) opposing, and causing its Subsidiaries to oppose, through and including Action on the merits (and all appeals with respect thereto), any Action asserted in court under any Antitrust Laws or other forum by any Governmental Authority or other Person in order to avoid entry of, or to have vacated or terminated, any decree, Order or judgment (whether temporary, preliminary or permanent) that would restrain or prevent the Closing by the Termination Date; provided, however, that the Buyer shall not be required to take, or commit or agree to take (or cause its Affiliates to take, or commit or agree to take), any of the foregoing actions to the extent (x) such action involves the assets, properties or rights of the Buyer or any of its Affiliates (other than, following the Closing, the Company and its Subsidiaries), except with respect to actions that are of an administrative or ministerial nature, or (y) such action would have a material adverse effect on the Company Group, taken as a whole, assuming that the Company Group has the same enterprise value and other financial attributes as the Buyer and its Subsidiaries, taken as a whole, as of the date hereof. For the avoidance of doubt, the Buyer shall not require the Seller or member of the Company Group to, and neither the Seller nor any member of the Company Group shall be required to take (x) any action with respect to any Order or any applicable Law that would bind any member of the Company Group prior to the Closing or bind the Seller at any time or (y) any action contemplated by clauses (i) through (vi) of the immediately prior sentence that is not conditioned upon the Closing. In addition and without limiting the other provisions of this Section 7.4, the Buyer shall use reasonable best efforts to defend through litigation, appealing, contesting or otherwise resisting any Action or Order by any Governmental Authority or private party, challenging the transactions contemplated hereby, including to defend through litigation on the merits any claim asserted in court by any Person in order to avoid entry of, or to have vacated or terminated, any Order (whether temporary, preliminary or permanent) that would delay the Closing or prevent the Closing by the Termination Date; provided, however, that such litigation in no way limits the other obligations of the Buyer set forth in this Section 7.4(d)Healthcare Notification Laws.
(e) Except as specifically required by this Agreement, the Buyer shall not, and shall cause all of its Subsidiaries not to, acquire or agree to enter into a business combination or otherwise acquire by merging or consolidating with, or by purchasing a substantial portion of the assets of or equity in or otherwise make any investment in, or by any other manner, any Person or portion thereof, or otherwise acquire or agree to acquire or make any investment in any assets, if the entering into of a definitive agreement relating to or the consummation of such acquisition, merger, business combination, consolidation, or investment would or would reasonably be expected to (i) impose any material delay in the obtaining of, or materially increase the risk of not obtaining, any consent, approval, authorization, declaration, waiver, license, franchise, permit, certificate or order of any Governmental Authority necessary to satisfy the conditions to Closing set forth in Section 8.4, Section 8.5, Section 8.6, Section 9.4, Section 9.6 or Section 9.7 to consummate the transactions contemplated hereby or the expiration or termination of any applicable waiting period, (ii) materially increase the risk of any Governmental Authority entering an order prohibiting the consummation of the transactions contemplated hereby, (iii) materially increase the risk of not being able to remove any such order on appeal or otherwise or (iv) increase the risk of any Governmental Authority asserting jurisdiction over the transactions contemplated hereby. Each of the Seller and the Company shall take such actions as set forth on Section 7.4(e)(ii) of the Disclosure Letter in accordance with the terms thereof and, for the avoidance of doubt, the Buyer agrees to the terms and conditions set forth therein.
(f) Each Party shall promptly inform the other Parties of any material communication from the Federal Trade Commission, the Department of Justice Justice, or any other Governmental Authority regarding any of the transactions contemplated by this Agreement. Each Party will, and will cause its Affiliates to, provide the other Parties with copies of all substantive correspondence, filings or communications between them or any of their Representatives, on the one hand, and any Governmental Authority or members of its staff, on the other hand, with respect to this Agreement and the transactions contemplated by this Agreement; provided, however, that materials may be redacted as necessary to (i) comply with contractual arrangements and (ii) address reasonable attorney-client or other privilege or confidentiality concerns. If any Party or any Affiliate thereof receives a request for additional information or documentary material from any such Governmental Authority with respect to the transactions contemplated by this Agreement, then such Party will use its reasonable best efforts endeavor in good faith to make, or cause to be made, as soon as reasonably practicable and after consultation with the other Party, an appropriate response in compliance with such request. Each Party will Notwithstanding anything to the contrary in this Agreement, Parent shall have responsibility for directing, devising, and implementing the strategy for, and advise the other Parties Company promptly in respect of any understandings, undertakings or agreements (oral or written) that any Party proposes, in its sole discretion, which Parent proposes to make or enter into with for, obtaining authorizations, consents and approvals of or the expiration or termination of any waiting periods from the Federal Trade Commission, the Department of Justice or any other Governmental Authority in connection with the transactions contemplated by this Agreement, and give such other Parties the Company the opportunity to attend and participate at any meetings with respect thereto. None .
(f) Until the earlier to occur of the Parties (including their respective Subsidiaries) will agree to participate in any substantive meeting, telephone call or discussion with a Governmental Authority in respect of any submissions, filings, investigation (including any settlement of the investigation), litigation or other inquiry relating to the matters that are the subject termination of this Agreement unless it consults with pursuant to Article 9 and the Effective Time, without the prior written consent of the other Parties Party, neither Parent and Merger Sub, on the one hand, nor the Company, on the other hand, shall, and each shall cause its Subsidiaries and Affiliates not to, enter into, agree to enter into, permit or agree to permit any Person (other than its Affiliates) to enter into, or consummate any Contracts or arrangements for an acquisition (including by way of acquiring or agreeing to acquire by merger or consolidating with, or by purchasing a substantial portion of the assets of or equity in advance (in each case to the extent reasonably practicable) andor otherwise making any investment in, except as may be prohibited by a Governmental Authority or by any Lawother manner, will permit authorized Representatives any Person or portion thereof, or otherwise acquiring or agreeing to acquire or make any investment in any assets, or agreeing to a commercial or strategic relationship with any Person) of any ownership interest, equity interests, assets or rights in or of any Person, that would reasonably be expected to, individually or in the aggregate, prevent, materially delay or materially impede the consummation of the other Parties transactions contemplated hereby including by (i) imposing any material delay in the obtaining of, or materially increase the risk of not obtaining, any clearance, consent, approval, authorization, declaration, waiver, license, franchise, permit, certificate, order, action or non-action of any Governmental Authority necessary to consummate the transactions contemplated hereby or the expiration or termination of any applicable waiting period, (ii) materially increasing the risk of any Governmental Authority entering an order, ruling, judgment or injunction prohibiting the consummation of the transactions contemplated hereby, or (iii) causing Parent, Merger Sub or the Company to be present at each substantive meetingrequired to obtain any additional clearances, telephone call consents, approvals, authorizations, declarations, waivers, licenses, franchises, permits, certificates, orders, actions, waiting period expirations or discussionterminations, non-actions or other authorizations under any Antitrust Laws with respect to the transactions contemplated hereby.
Appears in 1 contract
Filings and Authorizations; Consummation. (a) The Upon the terms and subject to the conditions hereof, each of the Buyer and the Company shallSellers shall use its or his commercially reasonable efforts to take or cause to be taken all actions, and to do or cause to be done all other things, necessary, proper or advisable to consummate the transactions contemplated hereby as promptly as reasonably practicable following practicable.
(b) Each of the parties hereto shall, if required by applicable law, promptly but in any event no later than five (5) Business Days after the date hereof of this Agreement, file or supply, or cause to be filed or supplied in connection with the transactions contemplated herein, all filings (notifications and information required to be filed or supplied pursuant to the HSR Act. Each party hereto also agrees to request early termination of the applicable waiting period thereunder and to supply promptly any additional information and documentary material that may be requested pursuant to the extent relevant, draft versions of filings) and briefing papers set forth on Section 8.4 of the Disclosure LetterHSR Act. The Buyer acknowledges and agrees that it shall pay and shall be solely responsible for the payment of all filing fees required to be paid in respect of any for the filing contemplated by this Section 7.4under the HSR Act.
(bc) Subject to Section 7.4(d), each Each of the Partiesparties hereto, as promptly as practicable, shall make, or cause to be made, all other filings and submissions not otherwise addressed under Section 7.4(a)laws, including Antitrust Laws, rules and regulations applicable to it, or to its Subsidiaries or Affiliates, as may be required for it to consummate the transactions contemplated herein and use its commercially reasonable best efforts (which shall not require a Party to make any payment or concession to any Person in connection with obtaining such Person’s consent) to obtain, or cause to be obtained, all other authorizations, approvals, consents and waivers from all Persons and Governmental Authorities necessary to be obtained by it, or its Subsidiaries subsidiaries or Affiliates, in order for it to consummate such transactions. None of the Parties shall (and shall cause their Affiliates not to) (i) consent to any voluntary extension of any statutory deadline or waiting period; (ii) pull and refile any filing made under any Antitrust Laws; or (iii) consent to any other voluntary delay of the consummation of the transactions contemplated by this Agreement at the behest of any Governmental Authority, in each case, without the prior written consent of the other Parties, such consent not to be unreasonably withheld, conditioned or delayed.
(cd) The Parties parties hereto shall coordinate and reasonably cooperate with one another in promptly exchanging and providing such information to each other and in making the filings and requests referred to in Sections 7.4(aparagraphs (b) and 7.4(b(c) above. The Parties parties hereto shall promptly supply such reasonable assistance as may be reasonably requested by any other Party party hereto in connection with the foregoing.
(d) Notwithstanding anything to the contrary in this Agreement, each Party shall use, and shall cause its Subsidiaries to use, reasonable best efforts to consummate the transactions contemplated by this Agreement prior to the Termination Date. For the Buyer and its Subsidiaries (but not the Seller and its Subsidiaries), “reasonable best efforts” shall include using such efforts to (x) avoid or eliminate each and every impediment, resolve any objection and obtain all consents under any applicable Law (including Antitrust Laws) as promptly as practicable so as to enable the Parties to consummate the transactions contemplated by this Agreement and (y) avoid the entry or to effect the dissolution of, or vacate or lift, any order, objection of any Governmental Authority or cause the termination of any waiting period under applicable Law (including Antitrust Laws) that would otherwise have the effect of preventing, impairing or delaying the Closing, including (i) proposing, negotiating and offering to commit and effect (and if such offer is accepted, committing to and effecting), by order, consent decree, hold separate order, trust, or otherwise, the sale, license, divestiture, disposition or hold separate of such entities, assets, Intellectual Property, businesses, product lines, equity interests, properties or services of the Buyer or its Subsidiaries (including, following the Closing, members of the Company Group), or otherwise offering to take or offering to commit to take any action (including any action that limits their freedom of action, ownership or control with respect to, or their ability to retain or hold, any of the businesses, assets, product lines, equity interests, properties or services of the Buyer or its Subsidiaries or of the Company Group) to the extent legally permissible, and if the offer is accepted, taking or committing to take such action, (ii) terminating, amending, relinquishing, modifying, waiving or assigning existing relationships, ventures or contractual rights, obligations or other arrangements of the Buyer or its Subsidiaries, (iii) changing or modifying, or agreeing not to engage in, any course of conduct regarding future operations, (iv) creating any relationships, ventures, contractual rights, obligations or other arrangements of the Buyer or its Subsidiaries, (v) committing to take any such actions in the foregoing clauses (i), (ii), (iii) or (iv), (vi) entering or offering to enter into agreements and stipulating to the entry of an Order or decree or filing appropriate applications with any Governmental Authority in connection with any of the actions contemplated by the foregoing clauses (i), (ii), (iii) or (iv), and (vii) opposing, and causing its Subsidiaries to oppose, through and including Action on the merits (and all appeals with respect thereto), any Action asserted in court or other forum by any Governmental Authority or other Person in order to avoid entry of, or to have vacated or terminated, any decree, Order or judgment (whether temporary, preliminary or permanent) that would restrain or prevent the Closing by the Termination Date; provided, however, that the Buyer shall not be required to take, or commit or agree to take (or cause its Affiliates to take, or commit or agree to take), any of the foregoing actions to the extent (x) such action involves the assets, properties or rights of the Buyer or any of its Affiliates (other than, following the Closing, the Company and its Subsidiaries), except with respect to actions that are of an administrative or ministerial nature, or (y) such action would have a material adverse effect on the Company Group, taken as a whole, assuming that the Company Group has the same enterprise value and other financial attributes as the Buyer and its Subsidiaries, taken as a whole, as of the date hereof. For the avoidance of doubt, the Buyer shall not require the Seller or member of the Company Group to, and neither the Seller nor any member of the Company Group shall be required to take (x) any action with respect to any Order or any applicable Law that would bind any member of the Company Group prior to the Closing or bind the Seller at any time or (y) any action contemplated by clauses (i) through (vi) of the immediately prior sentence that is not conditioned upon the Closing. In addition and without limiting the other provisions of this Section 7.4, the Buyer shall use reasonable best efforts to defend through litigation, appealing, contesting or otherwise resisting any Action or Order by any Governmental Authority or private party, challenging the transactions contemplated hereby, including to defend through litigation on the merits any claim asserted in court by any Person in order to avoid entry of, or to have vacated or terminated, any Order (whether temporary, preliminary or permanent) that would delay the Closing or prevent the Closing by the Termination Date; provided, however, that such litigation in no way limits the other obligations of the Buyer set forth in this Section 7.4(d).
(e) Except as specifically required by this Agreement, the Buyer shall not, and shall cause all of its Subsidiaries not to, acquire or agree to enter into a business combination or otherwise acquire by merging or consolidating with, or by purchasing a substantial portion of the assets of or equity in or otherwise make any investment in, or by any other manner, any Person or portion thereof, or otherwise acquire or agree to acquire or make any investment in any assets, if the entering into of a definitive agreement relating to or the consummation of such acquisition, merger, business combination, consolidation, or investment would or would reasonably be expected to (i) impose any material delay in the obtaining of, or materially increase the risk of not obtaining, any consent, approval, authorization, declaration, waiver, license, franchise, permit, certificate or order of any Governmental Authority necessary to satisfy the conditions to Closing set forth in Section 8.4, Section 8.5, Section 8.6, Section 9.4, Section 9.6 or Section 9.7 to consummate the transactions contemplated hereby or the expiration or termination of any applicable waiting period, (ii) materially increase the risk of any Governmental Authority entering an order prohibiting the consummation of the transactions contemplated hereby, (iii) materially increase the risk of not being able to remove any such order on appeal or otherwise or (iv) increase the risk of any Governmental Authority asserting jurisdiction over the transactions contemplated hereby. Each of the Seller and the Company shall take such actions as set forth on Section 7.4(e)(ii) of the Disclosure Letter in accordance with the terms thereof and, for the avoidance of doubt, the Buyer agrees to the terms and conditions set forth therein.
(f) Each Party party hereto shall promptly inform the other Parties parties of any material communication from the Federal Trade Commission, the Department of Justice or any other Governmental Authority regarding any of the transactions contemplated by this Agreement. Each Party will.
(f) The parties hereto will not take any action that will have the effect of delaying, impairing or impeding the receipt of any required approvals and will cause its Affiliates to, provide the other Parties with copies of all substantive correspondence, filings or communications between them or shall promptly respond to any of their Representatives, on the one hand, and requests for additional information from any Governmental Authority or members of its staff, on the other hand, with respect to this Agreement and the transactions contemplated by this Agreement; provided, however, that materials may be redacted as necessary to (i) comply with contractual arrangements and (ii) address reasonable attorney-client or other privilege or confidentiality concerns. If any Party or any Affiliate thereof receives a request for additional information or documentary material from any such Governmental Authority with respect to the transactions contemplated by this Agreement, then such Party will use its reasonable best efforts to make, or cause to be made, as soon as reasonably practicable and after consultation with the other Party, an appropriate response in compliance with such request. Each Party will advise the other Parties promptly third party in respect of any understandings, undertakings or agreements (oral or written) that any Party proposes, in its sole discretion, to make or enter into with the Federal Trade Commission, the Department of Justice or any other Governmental Authority in connection with the transactions contemplated by this Agreement, and give such other Parties the opportunity to attend and participate at any meetings with respect thereto. None of the Parties (including their respective Subsidiaries) will agree to participate in any substantive meeting, telephone call or discussion with a Governmental Authority in respect of any submissions, filings, investigation (including any settlement of the investigation), litigation or other inquiry relating to the matters that are the subject of this Agreement unless it consults with the other Parties in advance (in each case to the extent reasonably practicable) and, except as may be prohibited by a Governmental Authority or by any Law, will permit authorized Representatives of the other Parties to be present at each substantive meeting, telephone call or discussionthereof.
Appears in 1 contract
Filings and Authorizations; Consummation. (a) The Buyer Each party hereto shall use commercially reasonable efforts, and shall cooperate with the other parties to this Agreement, to obtain as promptly as practicable any and all authorizations, approvals, orders, consents, licenses, waivers, no action acknowledgments, certificates, permits, registrations, qualifications or other rights and privileges of any Governmental Authority or third party (collectively, “Consents”) necessary or advisable for the performance of its obligations under, or the consummation of the transactions contemplated by, this Agreement, including the Seller Approvals, the Company Approvals and the Company shallBuyer Approvals.
(b) Each party hereto shall have the right to review in advance, and, to the extent practicable, each shall consult with the other parties to this Agreement, in each case subject to applicable Laws relating to the exchange of information, with respect to all material written information submitted to any Governmental Authority or third party in connection with the performance of its obligations under, or the consummation of the transactions contemplated by, this Agreement. In exercising the foregoing right, each party hereto agrees to act reasonably and as promptly as practicable. Each party hereto agrees that it shall consult with the other parties to this Agreement with respect to the obtaining of all material Consents necessary or advisable for the performance of its obligations under, or the consummation of the transactions contemplated by, this Agreement, and each party shall keep the other parties to this Agreement apprised of the status of material matters relating to the performance of its obligations under, or the consummation of the transactions contemplated by, this Agreement.
(c) Each party hereto agrees, upon the written request of any other party to this Agreement, to furnish such other party with all information concerning itself or such other matters as may be reasonably necessary or advisable in connection with any filing, notice or application made by or on behalf of such other party to any Governmental Authority to the extent permitted by applicable Law.
(d) Subject to the terms and conditions set forth in this Agreement, without limiting the generality of the undertakings pursuant to this Section 7.5, each of the Seller and the Buyer agrees to:
(i) provide to each and every Governmental Authority with jurisdiction over enforcement of any applicable antitrust or Competition Law (“Antitrust Governmental Authority”), including the Brazilian Conselho Administrativo de Defesa Econômica (Administrative Council of Economic Defense), as promptly as reasonably practicable following the date hereof file practicable, any information and documents requested by any Antitrust Governmental Authority that are reasonably necessary, proper or supply, or cause advisable to be filed or supplied in connection with permit consummation of the transactions contemplated herein, all filings (and to the extent relevant, draft versions of filings) and briefing papers set forth on Section 8.4 of the Disclosure Letter. The Buyer acknowledges and agrees that it shall pay and shall be solely responsible for the payment of all filing fees required to be paid in respect of any filing contemplated by this Section 7.4.hereby; and
(bii) Subject to Section 7.4(d), each of the Partiesuse commercially reasonable efforts, as promptly as reasonably practicable, shall maketo take, in the event that any permanent, preliminary or temporary injunction, decision, order, judgment, determination or decree is entered or issued, or cause becomes reasonably foreseeable to be made, all other filings and submissions not otherwise addressed under Section 7.4(a), including Antitrust Laws, applicable to it, entered or to its Subsidiaries or Affiliates, as may be required for it to consummate the transactions contemplated herein and use its reasonable best efforts (which shall not require a Party to make any payment or concession to any Person in connection with obtaining such Person’s consent) to obtain, or cause to be obtained, all other authorizations, approvals, consents and waivers from all Persons and Governmental Authorities necessary to be obtained by it, or its Subsidiaries or Affiliatesissued, in order for it to consummate such transactions. None of the Parties shall (and shall cause their Affiliates not to) (i) consent to any voluntary extension proceeding or inquiry of any statutory deadline or waiting period; (ii) pull and refile any filing made under any Antitrust Laws; or (iii) consent to any other voluntary delay of the kind that would make consummation of the transactions contemplated by this Agreement at the behest of any Governmental Authority, in each case, without the prior written consent of the other Parties, such consent not to be unreasonably withheld, conditioned or delayed.
(c) The Parties shall coordinate and reasonably cooperate with one another in promptly exchanging and providing such information to each other and in making the filings and requests referred to in Sections 7.4(a) and 7.4(b) above. The Parties shall promptly supply such reasonable assistance as may be reasonably requested by any other Party in connection with the foregoing.
(d) Notwithstanding anything to the contrary in this Agreement, each Party shall use, and shall cause its Subsidiaries to use, reasonable best efforts to consummate the transactions contemplated by this Agreement prior to the Termination Date. For the Buyer and its Subsidiaries (but not the Seller and its Subsidiaries), “reasonable best efforts” shall include using such efforts to (x) avoid or eliminate each and every impediment, resolve any objection and obtain all consents under any applicable Law (including Antitrust Laws) as promptly as practicable so as to enable the Parties to consummate the transactions contemplated by this Agreement and (y) avoid the entry or to effect the dissolution of, or vacate or lift, any order, objection of any Governmental Authority or cause the termination of any waiting period under applicable Law (including Antitrust Laws) that would otherwise have the effect of preventing, impairing or delaying the Closing, including (i) proposing, negotiating and offering to commit and effect (and if such offer is accepted, committing to and effecting), by order, consent decree, hold separate order, trust, or otherwise, the sale, license, divestiture, disposition or hold separate of such entities, assets, Intellectual Property, businesses, product lines, equity interests, properties or services of the Buyer or its Subsidiaries (including, following the Closing, members of the Company Group), or otherwise offering to take or offering to commit to take any action (including any action that limits their freedom of action, ownership or control with respect to, or their ability to retain or hold, any of the businesses, assets, product lines, equity interests, properties or services of the Buyer or its Subsidiaries or of the Company Group) to the extent legally permissible, and if the offer is accepted, taking or committing to take such action, (ii) terminating, amending, relinquishing, modifying, waiving or assigning existing relationships, ventures or contractual rights, obligations or other arrangements of the Buyer or its Subsidiaries, (iii) changing or modifying, or agreeing not to engage in, any course of conduct regarding future operations, (iv) creating any relationships, ventures, contractual rights, obligations or other arrangements of the Buyer or its Subsidiaries, (v) committing to take any such actions in the foregoing clauses (i), (ii), (iii) or (iv), (vi) entering or offering to enter into agreements and stipulating to the entry of an Order or decree or filing appropriate applications with any Governmental Authority in connection with any of the actions contemplated by the foregoing clauses (i), (ii), (iii) or (iv), and (vii) opposing, and causing its Subsidiaries to oppose, through and including Action on the merits (and all appeals with respect thereto), any Action asserted in court or other forum by any Governmental Authority or other Person in order to avoid entry of, or to have vacated or terminated, any decree, Order or judgment (whether temporary, preliminary or permanent) that would restrain or prevent the Closing by the Termination Date; provided, however, that the Buyer shall not be required to take, or commit or agree to take (or cause its Affiliates to take, or commit or agree to take), any of the foregoing actions to the extent (x) such action involves the assets, properties or rights of the Buyer or any of its Affiliates (other than, following the Closing, the Company and its Subsidiaries), except with respect to actions that are of an administrative or ministerial nature, or (y) such action would have a material adverse effect on the Company Group, taken as a whole, assuming that the Company Group has the same enterprise value and other financial attributes as the Buyer and its Subsidiaries, taken as a whole, as of the date hereof. For the avoidance of doubt, the Buyer shall not require the Seller or member of the Company Group to, and neither the Seller nor any member of the Company Group shall be required to take (x) any action with respect to any Order or any applicable Law that would bind any member of the Company Group prior to the Closing or bind the Seller at any time or (y) any action contemplated by clauses (i) through (vi) of the immediately prior sentence that is not conditioned upon the Closing. In addition and without limiting the other provisions of this Section 7.4, the Buyer shall use reasonable best efforts to defend through litigation, appealing, contesting or otherwise resisting any Action or Order by any Governmental Authority or private party, challenging the transactions contemplated hereby, including to defend through litigation on the merits any claim asserted in court by any Person in order to avoid entry of, or to have vacated or terminated, any Order (whether temporary, preliminary or permanent) that would delay the Closing or prevent the Closing by the Termination Date; provided, however, that such litigation in no way limits the other obligations of the Buyer set forth in this Section 7.4(d).
(e) Except as specifically required by this Agreement, the Buyer shall not, and shall cause all of its Subsidiaries not to, acquire or agree to enter into a business combination or otherwise acquire by merging or consolidating with, or by purchasing a substantial portion of the assets of or equity in or otherwise make any investment in, or by any other manner, any Person or portion thereof, or otherwise acquire or agree to acquire or make any investment in any assets, if the entering into of a definitive agreement relating to or the consummation of such acquisition, merger, business combination, consolidation, or investment would or would reasonably be expected to (i) impose any material delay in the obtaining of, or materially increase the risk of not obtaining, any consent, approval, authorization, declaration, waiver, license, franchise, permit, certificate or order of any Governmental Authority necessary to satisfy the conditions to Closing set forth in Section 8.4, Section 8.5, Section 8.6, Section 9.4, Section 9.6 or Section 9.7 to consummate the transactions contemplated hereby or the expiration or termination of any applicable waiting period, (ii) materially increase the risk of any Governmental Authority entering an order prohibiting the consummation of the transactions contemplated hereby, (iii) materially increase the risk of not being able to remove any such order on appeal or otherwise or (iv) increase the risk of any Governmental Authority asserting jurisdiction over the transactions contemplated hereby. Each of the Seller and the Company shall take such actions as set forth on Section 7.4(e)(ii) of the Disclosure Letter in accordance with the terms thereof andof this Agreement unlawful or that would delay, for the avoidance of doubtrestrain, the Buyer agrees to the terms and conditions set forth therein.
(f) Each Party shall promptly inform the other Parties of any material communication from the Federal Trade Commissionprevent, the Department of Justice enjoin or any other Governmental Authority regarding any otherwise prohibit consummation of the transactions contemplated by this Agreement. Each Party will, any and will cause its Affiliates toall steps reasonably necessary, provide the other Parties with copies of all substantive correspondenceproper or advisable to resist, filings vacate, modify, reverse, suspend, prevent, eliminate or communications between them remove such actual, anticipated or any of their Representativesthreatened injunction, decision, order, judgment, determination or decree so as to permit such consummation on the one hand, and any Governmental Authority or members of its staff, on the other hand, with respect a schedule as close as possible to this Agreement and the transactions that contemplated by this Agreement; provided, however, that materials may be redacted as necessary to (i) comply with contractual arrangements and (ii) address reasonable attorney-client or other privilege or confidentiality concerns. If any Party or any Affiliate thereof receives a request for additional information or documentary material from any such Governmental Authority with respect to the transactions contemplated by this Agreement, then such Party will use its reasonable best efforts to make, or cause to be made, as soon as reasonably practicable and after consultation with the other Party, an appropriate response in compliance with such request. Each Party will advise the other Parties promptly in respect of any understandings, undertakings or agreements (oral or written) that any Party proposes, in its sole discretion, to make or enter into with the Federal Trade Commission, the Department of Justice or any other Governmental Authority in connection with the transactions contemplated by this Agreement, and give such other Parties the opportunity to attend and participate at any meetings with respect thereto. None of the Parties (including their respective Subsidiaries) will agree to participate in any substantive meeting, telephone call or discussion with a Governmental Authority in respect of any submissions, filings, investigation (including any settlement of the investigation), litigation or other inquiry relating to the matters that are the subject of this Agreement unless it consults with the other Parties in advance (in each case to the extent reasonably practicable) and, except as may be prohibited by a Governmental Authority or by any Law, will permit authorized Representatives of the other Parties to be present at each substantive meeting, telephone call or discussion.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Tredegar Corp)
Filings and Authorizations; Consummation. (a) The Buyer Parent and the Company shall, as promptly as reasonably practicable within ten (10) Business Days following the date hereof hereof, file or supply, or cause to be filed or supplied in connection with the transactions contemplated herein, all notifications and information required to be filed or supplied pursuant to the HSR Act. If applicable, each of Parent and the Company shall request early termination of the waiting period under the HSR Act. Parent and the Company shall, promptly following the date hereof, file or supply, or cause to be filed or supplied in connection with the transactions contemplated herein, all filings (and to the extent relevant, draft versions of filings) and briefing papers set forth on Section 8.4 4.6 of the Disclosure Letter. The Buyer Parent acknowledges and agrees that it shall pay and shall be solely responsible for the payment of all filing fees required to be paid in respect of any filing contemplated by connection with the filings under this Section 7.46.3(a).
(b) Subject to Section 7.4(d), each Each of Parent and the PartiesCompany, as promptly as practicable, shall make, or cause to be made, all other filings and submissions not otherwise addressed under Section 7.4(a6.3(a), including Antitrust Laws, as required under Laws applicable to it, or to its Subsidiaries or the Company Group and their respective Affiliates, as may be required for it to consummate the transactions contemplated herein and shall use its commercially reasonable best efforts (which shall not require a Party either party to make any payment or concession (other than payment of any required filing fees) to any Person in connection with obtaining such Person’s consent) to obtain, or cause to be obtained, all other authorizations, approvals, consents and waivers from all Persons and Governmental Authorities necessary to be obtained by it, the Company Group or its Subsidiaries or their respective Affiliates, in order for it to consummate such transactions. None of the Parties Parent shall (and shall cause their Affiliates not to) (i) consent to any voluntary extension of any statutory deadline or waiting period; (ii) pull and refile any filing made under the HSR Act, or any other Antitrust Laws; or (iii) consent to any other voluntary delay of the consummation of the transactions contemplated by this Agreement at the behest of any Governmental Authority, in each case, Authority without the prior written consent of the Company. Notwithstanding anything herein to the contrary, Parent shall not be required by this Section 6.3, and neither the Company nor any of the Company Subsidiaries shall agree, to take, agree or commit to undertake any action, including entering into any consent decree, hold separate order or other arrangement, that would (A) require the divestiture of any assets of the Parent Parties or the Company or any of their respective Affiliates or (B) limit the Parent Parties’ freedom of action with respect to, such consent not or its ability to be unreasonably withheldconsolidate and control, conditioned the Company and the Company Subsidiaries or delayedany of their assets or businesses or any of the Parent Parties’ or its Affiliates’ other assets or businesses.
(c) The Parties parties hereto shall coordinate and reasonably cooperate with one another in promptly exchanging and providing such information to each other and in making the filings and requests referred to in Sections 7.4(aparagraphs (a) and 7.4(b(b) above. The Parties Each party hereto shall promptly supply such reasonable assistance as may be reasonably requested by any the other Party party hereto in connection with the foregoing.
(d) Notwithstanding anything to the contrary in this Agreement, each Party shall use, and shall cause its Subsidiaries to use, reasonable best efforts to consummate the transactions contemplated by this Agreement prior to the Termination Date. For the Buyer and its Subsidiaries (but not the Seller and its Subsidiaries), “reasonable best efforts” shall include using such efforts to (x) avoid or eliminate each and every impediment, resolve any objection and obtain all consents under any applicable Law (including Antitrust Laws) as promptly as practicable so as to enable the Parties to consummate the transactions contemplated by this Agreement and (y) avoid the entry or to effect the dissolution of, or vacate or lift, any order, objection of any Governmental Authority or cause the termination of any waiting period under applicable Law (including Antitrust Laws) that would otherwise have the effect of preventing, impairing or delaying the Closing, including (i) proposing, negotiating and offering to commit and effect (and if such offer is accepted, committing to and effecting), by order, consent decree, hold separate order, trust, or otherwise, the sale, license, divestiture, disposition or hold separate of such entities, assets, Intellectual Property, businesses, product lines, equity interests, properties or services of the Buyer or its Subsidiaries (including, following the Closing, members of the Company Group), or otherwise offering to take or offering to commit to take any action (including any action that limits their freedom of action, ownership or control with respect to, or their ability to retain or hold, any of the businesses, assets, product lines, equity interests, properties or services of the Buyer or its Subsidiaries or of the Company Group) to the extent legally permissible, and if the offer is accepted, taking or committing to take such action, (ii) terminating, amending, relinquishing, modifying, waiving or assigning existing relationships, ventures or contractual rights, obligations or other arrangements of the Buyer or its Subsidiaries, (iii) changing or modifying, or agreeing not to engage in, any course of conduct regarding future operations, (iv) creating any relationships, ventures, contractual rights, obligations or other arrangements of the Buyer or its Subsidiaries, (v) committing to take any such actions in the foregoing clauses (i), (ii), (iii) or (iv), (vi) entering or offering to enter into agreements and stipulating to the entry of an Order or decree or filing appropriate applications with any Governmental Authority in connection with any of the actions contemplated by the foregoing clauses (i), (ii), (iii) or (iv), and (vii) opposing, and causing its Subsidiaries to oppose, through and including Action on the merits (and all appeals with respect thereto), any Action asserted in court or other forum by any Governmental Authority or other Person in order to avoid entry of, or to have vacated or terminated, any decree, Order or judgment (whether temporary, preliminary or permanent) that would restrain or prevent the Closing by the Termination Date; provided, however, that the Buyer shall not be required to take, or commit or agree to take (or cause its Affiliates to take, or commit or agree to take), any of the foregoing actions to the extent (x) such action involves the assets, properties or rights of the Buyer or any of its Affiliates (other than, following the Closing, the Company and its Subsidiaries), except with respect to actions that are of an administrative or ministerial nature, or (y) such action would have a material adverse effect on the Company Group, taken as a whole, assuming that the Company Group has the same enterprise value and other financial attributes as the Buyer and its Subsidiaries, taken as a whole, as of the date hereof. For the avoidance of doubt, the Buyer shall not require the Seller or member of the Company Group to, and neither the Seller nor any member of the Company Group shall be required to take (x) any action with respect to any Order or any applicable Law that would bind any member of the Company Group prior to the Closing or bind the Seller at any time or (y) any action contemplated by clauses (i) through (vi) of the immediately prior sentence that is not conditioned upon the Closing. In addition and without limiting the other provisions of this Section 7.4, the Buyer shall use reasonable best efforts to defend through litigation, appealing, contesting or otherwise resisting any Action or Order by any Governmental Authority or private party, challenging the transactions contemplated hereby, including to defend through litigation on the merits any claim asserted in court by any Person in order to avoid entry of, or to have vacated or terminated, any Order (whether temporary, preliminary or permanent) that would delay the Closing or prevent the Closing by the Termination Date; provided, however, that such litigation in no way limits the other obligations of the Buyer set forth in this Section 7.4(d).
(e) Except as specifically required by this Agreement, the Buyer shall not, and shall cause all of its Subsidiaries not to, acquire or agree to enter into a business combination or otherwise acquire by merging or consolidating with, or by purchasing a substantial portion of the assets of or equity in or otherwise make any investment in, or by any other manner, any Person or portion thereof, or otherwise acquire or agree to acquire or make any investment in any assets, if the entering into of a definitive agreement relating to or the consummation of such acquisition, merger, business combination, consolidation, or investment would or would reasonably be expected to (i) impose any material delay in the obtaining of, or materially increase the risk of not obtaining, any consent, approval, authorization, declaration, waiver, license, franchise, permit, certificate or order of any Governmental Authority necessary to satisfy the conditions to Closing set forth in Section 8.4, Section 8.5, Section 8.6, Section 9.4, Section 9.6 or Section 9.7 to consummate the transactions contemplated hereby or the expiration or termination of any applicable waiting period, (ii) materially increase the risk of any Governmental Authority entering an order prohibiting the consummation of the transactions contemplated hereby, (iii) materially increase the risk of not being able to remove any such order on appeal or otherwise or (iv) increase the risk of any Governmental Authority asserting jurisdiction over the transactions contemplated hereby. Each of the Seller and the Company shall take such actions as set forth on Section 7.4(e)(ii) of the Disclosure Letter in accordance with the terms thereof and, for the avoidance of doubt, the Buyer agrees to the terms and conditions set forth therein.
(f) Each Party party hereto shall promptly inform the other Parties parties of any material communication from the Federal Trade Commission, the Department of Justice or any other Governmental Authority regarding any of the transactions contemplated by this Agreement. Each Party will, and will cause its Affiliates to, provide the other Parties with copies of all substantive correspondence, filings or communications between them or any of their Representatives, on the one hand, and any Governmental Authority or members of its staff, on the other hand, with respect to this Agreement and the transactions contemplated by this Agreement; provided, however, that materials may be redacted as necessary to (i) comply with contractual arrangements and (ii) address reasonable attorney-client or other privilege or confidentiality concerns. If any Party party or any Affiliate thereof receives a request for additional information or documentary material from any such Governmental Authority with respect to the transactions contemplated by this Agreement, then such Party party will use its reasonable best efforts endeavor in good faith to make, or cause to be made, as soon as reasonably practicable and after consultation with the other Partyparty, an appropriate response in compliance with such request. Each Party Parent will advise the other Parties Company promptly in respect of any understandings, undertakings or agreements (oral or written) that any Party proposes, in its sole discretion, which Parent proposes to make or enter into with the Federal Trade Commission, the Department of Justice or any other Governmental Authority in connection with the transactions contemplated by this Agreement.
(e) The Company shall use reasonable best efforts to, and shall cause the Company Subsidiaries to use reasonable best efforts to, give promptly such notice to third parties and obtain such third party consents and waivers as Parent may reasonably request in connection with the transactions contemplated by this Agreement and the Ancillary Agreements. Parent shall cooperate with and assist the Company in giving such notices and obtaining such consents and waiver; provided, however, that Parent shall have no obligation to give any guarantee or other Parties consideration of any nature in connection with any such notice, consent or waiver or consent to any change in the opportunity terms of any agreement or arrangement that Parent in its sole discretion may deem adverse to attend and participate at the interests of Parent or the Company or any meetings with respect thereto. None of the Parties (including their respective Company Subsidiaries) will agree to participate in any substantive meeting, telephone call or discussion with a Governmental Authority in respect of any submissions, filings, investigation (including any settlement of the investigation), litigation or other inquiry relating to the matters that are the subject of this Agreement unless it consults with the other Parties in advance (in each case to the extent reasonably practicable) and, except as may be prohibited by a Governmental Authority or by any Law, will permit authorized Representatives of the other Parties to be present at each substantive meeting, telephone call or discussion.
Appears in 1 contract
Samples: Merger Agreement (ModivCare Inc)
Filings and Authorizations; Consummation. (a) The Each of Buyer and the Company Seller shall, as and shall cause their respective Subsidiaries to, use reasonable best efforts to promptly as reasonably practicable following obtain the date hereof file consents of all Governmental Authorities necessary, proper or supplyadvisable to consummate the transactions contemplated by this Agreement in accordance with this Agreement.
(b) On August 10, or cause to be 2021, the Parties filed or supplied and supplied, in connection with the transactions contemplated herein, all filings (the notifications and information required to be filed or supplied pursuant to the extent relevant, draft versions of filings) HSR Act and briefing papers set forth on Section 8.4 requested early termination of the Disclosure Letterwaiting period under the HSR Act. The Buyer acknowledges and agrees that it shall pay paid and shall be is solely responsible for the payment of all filing fees and other charges for the filing under the HSR Act. None of Buyer, Seller, the Companies, the Fabri-Kal Subsidiaries or their respective officers, directors or employees shall be required to be paid in respect of execute or enter into or perform any filing contemplated by action or agreement pursuant to this Section 7.47.3 that is not contingent upon the Closing.
(bc) Subject to Section 7.4(d), each Each of the Parties, as promptly as practicable, shall make, or cause to be made, all other filings and submissions not otherwise addressed under Section 7.4(a)Law, including Antitrust Laws, applicable to it, or to its Subsidiaries or and Affiliates, as may be required for it to consummate the transactions contemplated herein and use its commercially reasonable best efforts (which shall not require a Party to make any payment or concession to any Person in connection with obtaining such Person’s consent) to obtain, or cause to be obtained, all other authorizations, approvals, consents and waivers from all Persons and Governmental Authorities necessary to be obtained by it, or its Subsidiaries or Affiliates, in order for it to consummate such transactions. None of the Parties shall (Buyer acknowledges that certain consents and shall cause their Affiliates not to) (i) consent waivers with respect to any voluntary extension of any statutory deadline or waiting period; (ii) pull and refile any filing made under any Antitrust Laws; or (iii) consent to any other voluntary delay of the consummation of the transactions contemplated by this Agreement at may be required from parties to Contracts to which the behest of any Governmental Authority, in each case, without Companies or the prior written consent of the other Parties, Fabri-Kal Subsidiaries are parties and that such consent consents and waivers have not to been and may not be unreasonably withheld, conditioned or delayedobtained.
(cd) The Parties shall coordinate and reasonably cooperate with one another in promptly exchanging and providing such information to each other and in making the filings and requests referred to in Sections 7.4(a7.3(a) and 7.4(b7.3(c) above. The Parties shall promptly supply such reasonable assistance as may be reasonably requested by any other Party in connection with the foregoing.
(de) Notwithstanding anything to the contrary in this Agreement, each Party shall use, and shall cause its Subsidiaries to use, reasonable best efforts to consummate nothing herein obligates the transactions contemplated by this Agreement prior to the Termination Date. For the Buyer and its Subsidiaries (but not the Seller and its Subsidiaries), “reasonable best efforts” shall include using such efforts Parties or their Affiliates to (xA) avoid sell, license or eliminate each otherwise dispose of, hold separate and every impedimentagree to sell, resolve license or otherwise dispose of, any objection and obtain all consents under entities, assets or facilities of any applicable Law (including Antitrust Laws) as promptly as practicable so as to enable of the Parties or their Affiliates, (B) propose, negotiate, commit to consummate the transactions contemplated by this Agreement and (y) avoid the entry or to effect the dissolution of, or vacate or lift, any order, objection of any Governmental Authority or cause the termination of any waiting period under applicable Law (including Antitrust Laws) that would otherwise have the effect of preventing, impairing or delaying the Closing, including (i) proposing, negotiating and offering to commit and effect (and if such offer is accepted, committing to and effecting), by order, consent decree, hold separate order, trust, agreement or otherwise, the sale, license, divestiture, disposition ) any behavioral or hold separate of such entities, assets, Intellectual Property, businesses, product lines, equity interests, properties structural limitations or services of the Buyer or its Subsidiaries conduct restrictions (including, following the Closing, members of the Company Groupmodifying or adopting any business or operational practice or procedure), or otherwise offering to take or offering to commit to take any action (including any action that limits their other limitation on the freedom of action, ownership or control with respect to, or their ability to retain or hold, any of the businesses, assets, product lines, equity interests, properties or services of the Buyer or its Subsidiaries or of the Company Group) to the extent legally permissible, and if the offer is accepted, taking or committing to take such action, (ii) terminating, amending, relinquishing, modifying, waiving or assigning existing relationships, ventures or contractual rights, obligations or other arrangements of the Buyer or its Subsidiaries, (iii) changing or modifying, or agreeing not to engage in, any course of conduct regarding future operations, (iv) creating any relationships, ventures, contractual rights, obligations or other arrangements of the Buyer or its Subsidiaries, (v) committing to take any such actions in the foregoing clauses (i), (ii), (iii) or (iv), (vi) entering or offering to enter into agreements and stipulating to the entry of an Order or decree or filing appropriate applications with any Governmental Authority in connection with any of the actions contemplated by the foregoing clauses (i), (ii), (iii) or (iv), and (vii) opposing, and causing its Subsidiaries to oppose, through and including Action on the merits (and all appeals with respect thereto), any Action asserted in court or other forum by any Governmental Authority or other Person in order to avoid entry of, or to have vacated or terminated, any decree, Order or judgment (whether temporary, preliminary or permanent) that would restrain or prevent the Closing by the Termination Date; provided, however, that the Buyer shall not be required to take, or commit or agree to take (or cause its Affiliates to take, or commit or agree to take), any of the foregoing actions to the extent (x) such action involves the assets, properties or rights of the Buyer or any of its Affiliates (other than, following the Closing, the Company and its Subsidiaries), except with respect to actions that are of an administrative or ministerial nature, or (y) such action would have a material adverse effect on the Company Group, taken as a whole, assuming that the Company Group has the same enterprise value and other financial attributes as the Buyer and its Subsidiaries, taken as a whole, as of the date hereof. For the avoidance of doubt, the Buyer shall not require the Seller or member of the Company Group to, and neither the Seller nor any member of the Company Group shall be required to take (x) any action with respect to any Order or any applicable Law that would bind any member of the Company Group prior to the Closing Parties or bind the Seller at any time their Affiliates, or (yC) otherwise provide all such assurances, entering into such agreements or resolving any action contemplated objections as may be required, requested, or imposed by clauses (i) through (vi) a Governmental Authority in relation to any of the immediately prior sentence that is not conditioned upon the Closing. In addition and without limiting the other provisions of this Section 7.4, the Buyer shall use reasonable best efforts to defend through litigation, appealing, contesting Parties or otherwise resisting any Action or Order by any Governmental Authority or private party, challenging the transactions contemplated hereby, including to defend through litigation on the merits any claim asserted in court by any Person in order to avoid entry of, or to have vacated or terminated, any Order (whether temporary, preliminary or permanent) that would delay the Closing or prevent the Closing by the Termination Date; provided, however, that such litigation in no way limits the other obligations of the Buyer set forth in this Section 7.4(d)their Affiliates.
(ef) Except as specifically required by this Agreement, the Buyer shall not, and shall cause all not permit any of its Subsidiaries not to, to acquire or agree to enter into a business combination or otherwise acquire by merging or consolidating with, or by purchasing a substantial portion of the assets of or equity in or otherwise make any investment in, or by any other manner, any Person or portion thereof, or otherwise acquire or agree to acquire or make any investment in any assets, if the entering into of a definitive agreement relating to or the consummation of such acquisition, merger, business combination, consolidation, or investment would or Person that would reasonably be expected to (i) impose any material delay in the obtaining of, or materially increase the risk of not obtaining, any consent, approval, authorization, declaration, waiver, license, franchise, permit, certificate or order of any Governmental Authority necessary to satisfy the conditions to Closing set forth in Section 8.4, Section 8.5, Section 8.6, Section 9.4, Section 9.6 or Section 9.7 to consummate the transactions contemplated hereby or the expiration or termination of any applicable waiting period, (ii) materially increase the risk of any Governmental Authority entering an order prohibiting the consummation of the transactions contemplated hereby, hereby or (iii) materially increase delay the risk consummation of not being able to remove any such order on appeal or otherwise or (iv) increase the risk of any Governmental Authority asserting jurisdiction over the transactions contemplated hereby. Each of the Seller and the Company shall take such actions as set forth on Section 7.4(e)(ii) of the Disclosure Letter in accordance with the terms thereof and, for the avoidance of doubt, the Buyer agrees to the terms and conditions set forth therein.
(fg) Each Party shall promptly inform the other Parties of any material communication from the Federal Trade Commission, the Department of Justice or any other Governmental Authority regarding any of the transactions contemplated by this Agreement. Each Party will, and will cause its Affiliates to, provide the other Parties with copies of all substantive correspondence, filings or communications between them or any of their Representatives, on the one hand, and any Governmental Authority or members of its staff, on the other hand, with respect to this Agreement and the transactions contemplated by this Agreement; provided, however, that materials may be redacted as necessary to (i) comply with contractual arrangements and (ii) address reasonable attorney-client or other privilege or confidentiality concerns. If any Party or any Affiliate thereof receives a request for additional information or documentary material from any such Governmental Authority with respect to the transactions contemplated by this Agreement, then such Party will use its reasonable best efforts to make, or cause to be made, as soon as reasonably practicable and after consultation with the other Party, an appropriate response in compliance with such request. Each Party will advise the other Parties promptly in respect of any understandings, undertakings or agreements (oral or written) that any Party proposes, in its sole discretion, to make or enter into with the Federal Trade Commission, the Department of Justice or any other Governmental Authority in connection with the transactions contemplated by this Agreement, and give such other Parties the opportunity to attend and participate at any meetings with respect thereto. None of the Parties (including their respective Subsidiaries) will shall not agree to participate in any substantive meeting, telephone call meeting or discussion with a any such Governmental Authority in respect of any submissions, filingsfiling, investigation (including any settlement of the investigation), litigation or other inquiry relating to the matters that are the subject of concerning this Agreement or the transactions contemplated hereby unless it consults with the other Parties party hereto in advance (in each case and, to the extent reasonably practicable) andpermitted by such Governmental Authority, except as may be prohibited by gives the other party the opportunity to attend, and furnish the other party with copies of all correspondence, submissions and material written communications (and summaries of any material oral communications which a Governmental Authority or by any Law, will does not permit authorized Representatives of the other Parties party to attend) between them and their Affiliates and their respective representatives on one hand and any such Governmental Authority or its respective staff on the other hand, with respect to this Agreement and the transactions contemplated hereby. Buyer and Seller shall consult with each other prior to taking any material position in discussions with or filings to be present at each substantive meeting, telephone call or discussionsubmitted to any Governmental Authority.
Appears in 1 contract
Filings and Authorizations; Consummation. (a) The Buyer and the Company shall, as promptly as reasonably practicable within five (5) Business Days following the date hereof hereof, file or supply, or cause to be filed or supplied in connection with the transactions contemplated herein, all notifications and information required to be filed or supplied pursuant to the HSR Act. Buyer and the Company shall, promptly following the date hereof, file or supply, or cause to be filed or supplied in connection with the transactions contemplated herein, all filings (and to the extent relevant, draft versions of filings) and briefing papers set forth on Section 8.4 of the Disclosure LetterSchedule 4.6. The Buyer acknowledges and agrees that it shall pay and shall be solely responsible for the payment of all filing fees required to be paid in respect of any filing contemplated by connection with the filings under this Section 7.47.3(a).
(b) Subject to Section 7.4(d), each Each of Buyer and the PartiesCompany, as promptly as practicable, shall make, or cause to be made, all other filings and submissions not otherwise addressed under Section 7.4(a7.3(a), including Antitrust Laws, as required under Laws applicable to it, or to its Subsidiaries or the Company Group and their respective Affiliates, as may be required for it to consummate the transactions contemplated herein and shall use its commercially reasonable best efforts (which shall not require a Party either party to make any payment or concession to any Person in connection with obtaining such Person’s consent) to obtain, or cause to be obtained, all other authorizations, approvals, consents and waivers from all Persons and Governmental Authorities necessary to be obtained by it, the Company Group or its Subsidiaries or their respective Affiliates, in order for it to consummate such transactions. None of the Parties shall (and shall cause their Affiliates not to) (i) consent to any voluntary extension of any statutory deadline or waiting period; (ii) pull and refile any filing made under any Antitrust Laws; or (iii) consent to any other voluntary delay of the consummation of the transactions contemplated by this Agreement at the behest of any Governmental Authority, in each case, without the prior written consent of the other Parties, such consent not to be unreasonably withheld, conditioned or delayed.
(c) The Parties parties hereto shall coordinate and reasonably cooperate with one another in promptly exchanging and providing such information to each other and in making the filings and requests referred to in Sections 7.4(aparagraphs (a) and 7.4(b(b) above. The Parties Each party hereto shall promptly supply such reasonable assistance as may be reasonably requested by any the other Party party hereto in connection with the foregoing.
(d) Notwithstanding anything Without limiting the generality of the parties’ undertakings pursuant to the contrary in this AgreementSections 7.3(b) and 7.3(c), each Party shall use, and shall cause its Subsidiaries Buyer agrees to use, use reasonable best efforts and to consummate take any and all steps necessary to avoid or eliminate each and every impediment under any Antitrust Laws or other Law that may be asserted by any Governmental Authority or any other Person so as to enable the parties hereto to expeditiously close the transactions contemplated by this Agreement prior to no later than the Termination Date. For the Buyer and its Subsidiaries (but not the Seller and its Subsidiaries), “reasonable best efforts” shall include using such efforts to (x) avoid or eliminate each and every impediment, resolve any objection and obtain all consents under any applicable Law (including Antitrust Laws) as promptly as practicable so as to enable the Parties to consummate the transactions contemplated by this Agreement and (y) avoid the entry or to effect the dissolution of, or vacate or lift, any order, objection of any Governmental Authority or cause the termination of any waiting period under applicable Law (including Antitrust Laws) that would otherwise have the effect of preventing, impairing or delaying the Closing, including (i) proposing, negotiating and offering to commit and effect (and if such offer is acceptednegotiating, committing to and effecting), by order, consent decree, hold separate order, trustorders, or otherwise, the sale, license, divestiture, divesture or disposition or hold separate of such entities, its assets, Intellectual Property, businesses, product lines, equity interests, properties or services of the Buyer or its Subsidiaries (including, following the Closing, members of the Company Group), or otherwise offering to take or offering to commit to take any action (including any action that limits their freedom of action, ownership or control with respect to, or their ability to retain or hold, any of the businesses, assets, product lines, equity interests, properties or services of the Buyer or its Subsidiaries businesses or of the Company Group) to the extent legally permissible, and if the offer is accepted, taking or committing to take such action, (ii) terminating, amending, relinquishing, modifying, waiving or assigning existing relationships, ventures or contractual rights, obligations or other arrangements of the Buyer or its Subsidiaries, (iii) changing or modifying, or agreeing not to engage in, any course of conduct regarding future operations, (iv) creating any relationships, ventures, contractual rights, obligations or other arrangements of the Buyer or its Subsidiaries, (v) committing to take any such actions in the foregoing clauses (i), (ii), (iii) or (iv), (vi) entering or offering to enter into agreements and stipulating to the entry of an Order or decree or filing appropriate applications with any Governmental Authority in connection with any of the actions contemplated by the foregoing clauses (i), (ii), (iii) or (iv), and (vii) opposing, and causing its Subsidiaries to oppose, through and including Action on the merits (and all appeals with respect thereto), any Action asserted in court or other forum by any Governmental Authority or other Person in order to avoid entry of, or to have vacated or terminated, any decree, Order or judgment (whether temporary, preliminary or permanent) that would restrain or prevent the Closing by the Termination Date; provided, however, that the Buyer shall not be required to take, or commit or agree to take (or cause its Affiliates to take, or commit or agree to take), any of the foregoing actions to the extent (x) such action involves the assets, properties or rights businesses to be acquired by it pursuant hereto as are required to be divested in order to avoid any injunction (or to effect the dissolution thereof), temporary restraining order or other order or decision in any suit or proceeding, which would otherwise have the effect of materially delaying or preventing the consummation of such transactions. In addition, Buyer or any of its Affiliates (other than, following the Closing, and the Company and its Subsidiaries), except with respect to actions that are of an administrative or ministerial nature, or (y) such action would have a material adverse effect on the Company Group, taken as a whole, assuming that the Company Group has the same enterprise value and other financial attributes as the Buyer and its Subsidiaries, taken as a whole, as of the date hereof. For the avoidance of doubt, the Buyer shall not require the Seller or member of the Company Group to, and neither the Seller nor any member of the Company Group shall be required to take (x) any action with respect to any Order or any applicable Law that would bind any member of the Company Group prior to the Closing or bind the Seller at any time or (y) any action contemplated by clauses (i) through (vi) of the immediately prior sentence that is not conditioned upon the Closing. In addition and without limiting the other provisions of this Section 7.4, the Buyer shall use commercially reasonable best efforts to defend through litigation, appealing, contesting or otherwise resisting any Action or Order by any Governmental Authority or private party, challenging the transactions contemplated hereby, including to defend through litigation on the merits any claim asserted in court by any Person in order to avoid entry of, or to have vacated or terminated, any Order decree, order or judgment (whether temporary, preliminary or permanent) that would delay the Closing or prevent the Closing by the Termination Date; provided, however, that such litigation in no way limits the other obligations of the Buyer set forth in this Section 7.4(d).
(e) Each party hereto shall promptly inform the other parties of any material communication from the Federal Trade Commission, the Department of Justice or any other Governmental Authority regarding any of the transactions contemplated by this Agreement. If any party or any Affiliate thereof receives a request for additional information or documentary material from any such Governmental Authority with respect to the transactions contemplated by this Agreement, then such party will endeavor in good faith to make, or cause to be made, as soon as reasonably practicable and after consultation with the other party, an appropriate response in compliance with such request. Buyer will advise the Company promptly in respect of any understandings, undertakings or agreements (oral or written) which Buyer proposes to make or enter into with the Federal Trade Commission, the Department of Justice or any other Governmental Authority in connection with the transactions contemplated by this Agreement.
(f) Except as specifically required by this Agreement, Buyer, on the one hand, and the Company Group on the other hand, shall not knowingly take any action, or knowingly refrain from taking any action, the effect of which would be to delay or impede the ability of the parties hereto to consummate the transactions contemplated by this Agreement. Without limiting the generality of the foregoing, Buyer shall not, and shall cause all not permit any of its Subsidiaries not Affiliates to, acquire or agree to enter into a business combination or otherwise acquire by merging or consolidating with, or by purchasing a substantial portion of the assets of or equity in or otherwise make any investment in, or by any other manner, any Person or portion thereof, or otherwise acquire or agree to acquire or make any investment in any assets, if the entering into of a definitive agreement relating to or the consummation of such acquisition, merger, business combination, consolidation, merger or investment would or would consolidation could reasonably be expected to (i) impose any material delay in the obtaining of, or materially increase the risk of not obtaining, any consent, approval, authorization, declaration, waiver, license, franchise, permit, certificate or order of any Governmental Authority necessary to satisfy the conditions to Closing set forth in Section 8.4, Section 8.5, Section 8.6, Section 9.4, Section 9.6 or Section 9.7 to consummate the transactions contemplated hereby or the expiration or termination of any applicable waiting period, (ii) materially increase the risk of any Governmental Authority entering an order prohibiting the consummation of the transactions contemplated hereby, hereby or (iii) materially increase delay the risk consummation of not being able to remove any such order on appeal or otherwise or (iv) increase the risk of any Governmental Authority asserting jurisdiction over the transactions contemplated hereby. Each of the Seller and the Company shall take such actions as set forth on Section 7.4(e)(ii) of the Disclosure Letter in accordance with the terms thereof and, for the avoidance of doubt, the Buyer agrees to the terms and conditions set forth therein.
(f) Each Party shall promptly inform the other Parties of any material communication from the Federal Trade Commission, the Department of Justice or any other Governmental Authority regarding any of the transactions contemplated by this Agreement. Each Party will, and will cause its Affiliates to, provide the other Parties with copies of all substantive correspondence, filings or communications between them or any of their Representatives, on the one hand, and any Governmental Authority or members of its staff, on the other hand, with respect to this Agreement and the transactions contemplated by this Agreement; provided, however, that materials may be redacted as necessary to (i) comply with contractual arrangements and (ii) address reasonable attorney-client or other privilege or confidentiality concerns. If any Party or any Affiliate thereof receives a request for additional information or documentary material from any such Governmental Authority with respect to the transactions contemplated by this Agreement, then such Party will use its reasonable best efforts to make, or cause to be made, as soon as reasonably practicable and after consultation with the other Party, an appropriate response in compliance with such request. Each Party will advise the other Parties promptly in respect of any understandings, undertakings or agreements (oral or written) that any Party proposes, in its sole discretion, to make or enter into with the Federal Trade Commission, the Department of Justice or any other Governmental Authority in connection with the transactions contemplated by this Agreement, and give such other Parties the opportunity to attend and participate at any meetings with respect thereto. None of the Parties (including their respective Subsidiaries) will agree to participate in any substantive meeting, telephone call or discussion with a Governmental Authority in respect of any submissions, filings, investigation (including any settlement of the investigation), litigation or other inquiry relating to the matters that are the subject of this Agreement unless it consults with the other Parties in advance (in each case to the extent reasonably practicable) and, except as may be prohibited by a Governmental Authority or by any Law, will permit authorized Representatives of the other Parties to be present at each substantive meeting, telephone call or discussion.
Appears in 1 contract
Filings and Authorizations; Consummation. (a) The Buyer and Each of the Company parties hereto shall, as promptly as reasonably practicable following the date hereof if required by applicable Law, file or supply, or cause to be filed or supplied in connection with the transactions contemplated herein, all filings notifications (and or, if required by the relevant Governmental Authorities, drafts thereof) required to be filed or supplied pursuant to the extent relevantHSR Act or any other Antitrust Law, draft versions within one month following the date hereof, and all such filings shall not be withdrawn or otherwise rescinded without the prior written consent of filings) and briefing papers set forth on Section 8.4 of the Disclosure Letterall parties hereto. The Buyer acknowledges and agrees that it shall pay and shall be solely responsible for the payment of all filing fees required to be paid in respect of any and other charges for the filing contemplated by this Section 7.4under the Antitrust Laws.
(b) Subject to Section 7.4(d), each Each of the Partiesparties hereto, as promptly as practicable, shall make, or cause to be made, all other filings and submissions not otherwise addressed under Section 7.4(a), including Antitrust Laws, Laws applicable to it, or to its Subsidiaries or and Affiliates, as may be required for it to consummate the transactions contemplated herein hereby and shall, subject to Section 6.3(d) below, use its reasonable best efforts (which shall not require a Party to make any payment or concession to any Person in connection with obtaining such Person’s consent) to obtain, or cause to be obtained, all other authorizations, approvals, consents and waivers from all Persons and Governmental Authorities necessary to be obtained by it, or its Subsidiaries or Affiliates, in order for it to consummate such transactions. None ; provided, however that the parties hereto acknowledge and agree that none of the Parties Sellers or their respective Affiliates shall have any obligation to pay any material consideration or agree to grant any material credit support or other accommodation (and shall cause their Affiliates not to) (i) consent to financial or otherwise), including any voluntary extension of any statutory deadline or waiting period; (ii) pull and refile any filing made under any Antitrust Laws; or (iii) consent to any other voluntary delay of the consummation of the transactions contemplated by this Agreement at the behest of any Governmental Authorityguarantee, in each case, without connection with obtaining the prior written consent of the other Parties, such consent not consents or approvals referred to be unreasonably withheld, conditioned or delayedin this Section 6.3.
(c) The Parties parties hereto shall coordinate and reasonably cooperate with one another in promptly exchanging and providing such information to each other and in making the filings and requests referred to in Sections 7.4(aparagraphs (a) and 7.4(b(b) above. The Parties parties hereto shall promptly supply such reasonable assistance as may be reasonably requested by any other Party party hereto in connection with the foregoing.
(d) Notwithstanding anything to the contrary in this Agreementherein, each Party shall useBuyer shall, and shall cause its Subsidiaries to useAffiliates to, reasonable best efforts to consummate the transactions contemplated by this Agreement prior to the Termination Date. For the Buyer take any and its Subsidiaries (but not the Seller and its Subsidiaries), “reasonable best efforts” shall include using all such efforts to (x) avoid or eliminate each and every impediment, resolve any objection and obtain all consents under any applicable Law action (including Antitrust Laws(i) initiating or defending against any Action and entering into agreements as promptly as practicable so as to enable the Parties to consummate the transactions contemplated by this Agreement and (y) avoid the entry or are necessary in order to effect the dissolution ofof any injunction, temporary restraining order or other Order in any Action, (ii) agreeing to hold separate or to divest, license or otherwise dispose of any of the businesses, product lines or assets of Buyer or any of its Affiliates, including, after the Closing Date, of the Business Companies, the Business, the Business JVs or any investment held directly or indirectly by the Transferred Entities, (iii) terminating existing relationships, contractual rights or obligations of Buyer or any of its Affiliates, including, after the Closing Date, of the Business Companies, the Business, the Business JVs or any investment held directly or indirectly by the Transferred Entities, (iv) creating any relationship, contractual right, obligation or other arrangement of Buyer or its Affiliates, including, after the Closing Date, of the Business Companies, the Business, the Business JVs or any investment held directly or indirectly by the Transferred Entities, (v) taking or committing to take such other actions that may limit Buyer’s or its Affiliates’, including, after the Closing Date, the Business Companies’, the Business’, the Business JVs’ (or any investment’s held directly or indirectly by the Transferred Entities) freedom of action with respect to, or vacate its ability to retain, one or liftmore of its operations, any order, objection of any Governmental Authority or cause the termination of any waiting period under applicable Law (including Antitrust Laws) that would otherwise have the effect of preventing, impairing or delaying the Closing, including (i) proposing, negotiating and offering to commit and effect (and if such offer is accepted, committing to and effecting), by order, consent decree, hold separate order, trust, or otherwise, the sale, license, divestiture, disposition or hold separate of such entities, assets, Intellectual Propertydivisions, businesses, product lines, equity interests, properties customer or services of the Buyer or its Subsidiaries (including, following the Closing, members of the Company Group), or otherwise offering to take or offering to commit to take any action (including any action that limits their freedom of action, ownership or control with respect to, or their ability to retain or hold, any of the businesses, assets, product lines, equity interests, properties or services of the Buyer or its Subsidiaries or of the Company Group) to the extent legally permissible, assets and if the offer is accepted, taking or committing to take such action, (ii) terminating, amending, relinquishing, modifying, waiving or assigning existing relationships, ventures or contractual rights, obligations or other arrangements of the Buyer or its Subsidiaries, (iii) changing or modifying, or agreeing not to engage in, any course of conduct regarding future operations, (iv) creating any relationships, ventures, contractual rights, obligations or other arrangements of the Buyer or its Subsidiaries, (v) committing to take any such actions in the foregoing clauses (i), (ii), (iii) or (iv), (vi) entering or offering to enter into agreements and stipulating to the entry of an Order or decree or filing appropriate applications with any Governmental Authority in connection with any of the actions contemplated by the foregoing clauses (i) through (v)), in each case, as may be required (ii), (iiiA) by any applicable Governmental Authority in order to resolve such objections as such Governmental Authority has to the transactions contemplated by this Agreement under applicable Antitrust Law or (iv)B) by any domestic or foreign court or similar tribunal, and (vii) opposing, and causing its Subsidiaries to oppose, through and including Action on the merits (and all appeals with respect thereto), in any Action asserted in court or other forum brought by any Person or Governmental Authority or other Person challenging the transactions contemplated by this Agreement as violative of any Antitrust Law, in order to avoid the entry of, or to have vacated or terminatedeffect the dissolution of, any decreeinjunction, temporary restraining order or other Order that has the effect of delaying or judgment (whether temporary, preliminary or permanent) that would restrain or prevent preventing the Closing consummation of the transactions contemplated by the Termination Datethis Agreement; provided, however, that neither the Buyer provisions of this Section 6.3 nor any other provision of this Agreement shall not be required to take, or commit or agree to take (or cause its Affiliates to take, or commit or agree to take), any of the foregoing actions to the extent (x) such action involves the assets, properties or rights of the require Buyer or any of its Affiliates Subsidiaries to undertake (other than, following or to request or authorize any Business Company or Business JV to undertake) any of the Closing, the Company and its Subsidiaries), except with respect to forgoing actions that are of an administrative or ministerial naturewould, or (y) such action would have reasonably be expected to, individually or taken together with all other of the foregoing actions, result in a material adverse effect on the Company Groupbusiness, financial condition or results of operation of Buyer and its Subsidiaries (including for this purpose the Business Companies and the Business JVs), taken as a whole, assuming that with material adverse effect measured against an enterprise the Company Group has size of the same enterprise value Business Companies and other financial attributes as the Buyer and its SubsidiariesBusiness JVs, taken as a whole, as whole (without giving effect to the consummation of the date hereof. For the avoidance of doubt, the transactions contemplated hereby).
(e) Buyer shall not require (i) control the Seller or member strategy for obtaining any consents, waivers and approvals from any Governmental Authority in connection with the transactions contemplated by this Agreement and (ii) control the overall development of the Company Group topositions to be taken and the regulatory actions to be requested in any filing or submission with a Governmental Authority in connection with the transactions contemplated by this Agreement and in connection with any investigation or other inquiry or litigation by or before, or any negotiations with, a Governmental Authority relating to the transactions contemplated by this Agreement and neither of all other regulatory matters incidental thereto; provided that Buyer shall consult and cooperate with the Seller nor any member of the Company Group shall be required to take (x) any action Sellers with respect to such strategy, positions and requested regulatory action (including in connection with any Order analyses, appearances, presentations, memoranda, briefs, arguments, opinions and proposals made or submitted by or on behalf of any party hereto relating to proceedings under the HSR Act or other Antitrust Laws) and consider the Sellers’ views in good faith. Each party hereto shall promptly inform the other parties of any material communication from the Federal Trade Commission, the Department of Justice or any applicable Law that would bind other Governmental Authority regarding any member of the Company Group transactions contemplated by this Agreement and shall promptly furnish the other party with copies of all substantive notices or other communications received from any third party and/or any Governmental Authority with respect to such transactions. If any party or any Affiliate thereof receives a request for additional information or documentary material from any such Governmental Authority with respect to the transactions contemplated by this Agreement, then such party will endeavor in good faith to make, or cause to be made an appropriate response in compliance with such request as soon as reasonably practicable, after providing the other party with a reasonable advance opportunity to review and comment upon such response (and after considering in good faith the view of the other in connection with such response). Each party shall, to the extent practicable, provide the other party and its counsel with advance notice of and the opportunity to participate in any substantive discussion, telephone call, video conference or meeting with any Governmental Authority in respect of any filing, investigation or other inquiry in connection with the transactions contemplated by this Agreement and to participate in the preparation for such discussion, telephone call, video conference or meeting, to the extent not prohibited by the Governmental Authority. Buyer will advise the Sellers promptly in respect of any understandings, undertakings or agreements (oral or written) which Buyer proposes to make or enter into with the Federal Trade Commission, the Department of Justice or any other Governmental Authority in connection with the transactions contemplated by this Agreement (and which the Sellers shall be given opportunity to review and provide comments on, which Buyer shall consider in good faith, prior to the Closing their taking effect) and shall not make or bind the Seller at propose any time or (y) any action contemplated by clauses (i) through (vi) of the immediately prior sentence such undertaking that is not conditioned upon the Closing. In addition and without limiting the other provisions of this Section 7.4, the Buyer shall use reasonable best efforts to defend through litigation, appealing, contesting or otherwise resisting any Action or Order by any Governmental Authority or private party, challenging the transactions contemplated hereby, including to defend through litigation on the merits any claim asserted in court by any Person in order to avoid entry of, or to have vacated or terminated, any Order (whether temporary, preliminary or permanent) that would delay the Closing or prevent the Closing by the Termination Date; provided, however, that such litigation in no way limits the other obligations completion of the Buyer set forth in this Section 7.4(d)Closing.
(ef) Except as specifically required by this Agreement, the Buyer The parties hereto shall not, and shall cause all not permit any of its Subsidiaries not their respective Affiliates to, acquire or agree to enter into a business combination or otherwise acquire by merging or consolidating with, or by purchasing a substantial portion of the assets of or equity in or otherwise make any investment in, or by any other manner, any Person or portion thereof, or otherwise acquire or agree to acquire or make any investment in any assets, if the entering into of a definitive agreement relating to or the consummation of such acquisition, merger, business combination, consolidation, consolidation or investment would or would reasonably be expected to (i) impose any material delay in the obtaining of, or materially increase the risk of not obtaining, any consent, approval, authorization, declaration, waiver, license, franchise, permit, certificate or order Order of any Governmental Authority necessary to satisfy the conditions to Closing set forth in Section 8.4, Section 8.5, Section 8.6, Section 9.4, Section 9.6 or Section 9.7 to consummate the transactions contemplated hereby or the expiration or termination of any applicable waiting period, (ii) materially increase the risk of any Governmental Authority entering an order Order prohibiting the consummation of the transactions contemplated hereby, hereby or (iii) materially increase delay the risk consummation of not being able to remove any such order on appeal or otherwise or (iv) increase the risk of any Governmental Authority asserting jurisdiction over the transactions contemplated hereby. Each of the Seller and the Company shall take such actions as set forth on Section 7.4(e)(ii) of the Disclosure Letter in accordance with the terms thereof and, for the avoidance of doubt, the Buyer agrees to the terms and conditions set forth therein.
(f) Each Party shall promptly inform the other Parties of any material communication from the Federal Trade Commission, the Department of Justice or any other Governmental Authority regarding any of the transactions contemplated by this Agreement. Each Party will, and will cause its Affiliates to, provide the other Parties with copies of all substantive correspondence, filings or communications between them or any of their Representatives, on the one hand, and any Governmental Authority or members of its staff, on the other hand, with respect to this Agreement and the transactions contemplated by this Agreement; provided, however, that materials may be redacted as necessary to (i) comply with contractual arrangements and (ii) address reasonable attorney-client or other privilege or confidentiality concerns. If any Party or any Affiliate thereof receives a request for additional information or documentary material from any such Governmental Authority with respect to the transactions contemplated by this Agreement, then such Party will use its reasonable best efforts to make, or cause to be made, as soon as reasonably practicable and after consultation with the other Party, an appropriate response in compliance with such request. Each Party will advise the other Parties promptly in respect of any understandings, undertakings or agreements (oral or written) that any Party proposes, in its sole discretion, to make or enter into with the Federal Trade Commission, the Department of Justice or any other Governmental Authority in connection with the transactions contemplated by this Agreement, and give such other Parties the opportunity to attend and participate at any meetings with respect thereto. None of the Parties (including their respective Subsidiaries) will agree to participate in any substantive meeting, telephone call or discussion with a Governmental Authority in respect of any submissions, filings, investigation (including any settlement of the investigation), litigation or other inquiry relating to the matters that are the subject of this Agreement unless it consults with the other Parties in advance (in each case to the extent reasonably practicable) and, except as may be prohibited by a Governmental Authority or by any Law, will permit authorized Representatives of the other Parties to be present at each substantive meeting, telephone call or discussion.
Appears in 1 contract
Samples: Securities Purchase Agreement (Martin Marietta Materials Inc)
