Filings; Consents. (a) Each of the parties will use its commercially reasonable efforts to obtain as promptly as practicable all Consents of any Governmental Entity or, upon the Parent’s reasonable request, any other person, required in connection with, and waivers of any breaches or violations of any material contracts, permits, licenses, or other agreements that may be caused by, the consummation of the transactions contemplated by the Offer and this Agreement; provided, however, that the Company (i) need not use any effort to obtain the Consent of the Company’s lenders pursuant to the agreements set forth in the SEC Reports and (ii) need not expend funds to obtain Consents from persons other than Governmental Entities unless Parent has agreed to reimburse the Company therefor. For the avoidance of doubt, the parties hereto hereby agree that Parent may engage in discussions with any franchisors regarding any Consents or waivers that may be necessary or desirable to obtain from such franchisors in connection with the transactions contemplated by the Offer and this Agreement. (b) Without limiting the generality of Section 6.04(a), subject to the terms and conditions in this Agreement, the Company and Parent shall (i) promptly make their respective filings and thereafter make any other required submissions under the HSR Act, and (ii) use reasonable efforts to cooperate with one another in (A) determining whether any filings are required to be made with, or consents, permits, authorizations, or approvals are required to be obtained from, the United States government or any agencies, departments, or instrumentalities thereof, or other governmental or regulatory bodies or authorities of federal, state, local, and foreign jurisdictions in connection with the execution and delivery of this Agreement and the consummation of the transactions contemplated by this Agreement, (B) timely making all such filings and timely seeking all such consents, permits, authorizations, or approvals, and (C) taking or undertaking all such further action as may be necessary to resolve such objections, if any, as the Federal Trade Commission, the Antitrust Division of the Department of Justice, state antitrust enforcement authorities, or competition authorities of any other jurisdiction or any other person may assert under relevant antitrust or competition laws with respect to the transactions contemplated by this Agreement. (c) Without limiting the generality of the undertakings pursuant to Section 6.04(b): (i) each of the Parent and the Company shall provide promptly to the Governmental Entities with regulatory jurisdiction over enforcement of any applicable antitrust laws (each a “Government Antitrust Entity”) information and documents requested by such Government Antitrust Entity or necessary, or reasonably requested, to permit consummation of the transactions contemplated by this Agreement; (ii) without in any way limiting the provisions of Section 6.04(b)(i), each of the Parent and the Company shall file any Notification and Report Form and related material required under the HSR Act as soon as reasonably practicable after the date of this Agreement, and thereafter use its commercially reasonable efforts to certify as soon as reasonably practicable its substantial compliance with any requests for additional information or documentary material that are required to be made under the HSR Act; (iii) each of the Company and the Parent will keep the other informed of any material communication, and provide to the other copies of all correspondence, between it (or its advisors) and any Government Antitrust Entity relating to this Agreement or any of the matters described in this Section 6.04(c); and (iv) each of the Company and the Parent shall permit the other to review any material communication to be given by it to, and shall consult with each other in advance of any telephonic call, meeting, or conference with, any Government Antitrust Entity and, to the extent permitted, give the other party the opportunity to attend and participate in such telephonic calls, meetings, and conferences. Notwithstanding any of the foregoing, no failure to obtain termination of the waiting period under the HSR Act shall be deemed to be a breach of this Agreement by the Company or Parent. Notwithstanding the provisions of Section 6.04(b) and 6.04(c), in the event that either Parent or the Company is requested, as a condition to obtaining the approval of any Governmental Antitrust Entity to the transactions contemplated by this Agreement, to divest material assets or take any other action which, if taken, could reasonably be expected to have a material adverse effect on the combined consolidated businesses, assets, operations, or prospects of the Parent and the Company, then neither the Parent nor the Company shall be required to take such action, and no failure by either the Parent or the Company to take such action shall be deemed a breach of this Section 6.04 or of any other provision of this Agreement.
Appears in 3 contracts
Samples: Merger Agreement (Main Street Restaurant Group, Inc.), Merger Agreement (Main Street Restaurant Group, Inc.), Merger Agreement (Main Street Acquisition CORP)
Filings; Consents. (ai) Each of Buyer and Seller will: (i) promptly make and effect all registrations, filings and submissions required to be made or effected by them under applicable laws with respect to this Agreement and the parties will transactions contemplated under this Agreement; and (ii) use its commercially reasonable efforts to obtain as promptly as practicable cause to be taken on a timely basis, all Consents other actions necessary or appropriate for the purpose of any Governmental Entity or, upon the Parent’s reasonable request, any other person, required in connection with, consummating and waivers of any breaches or violations of any material contracts, permits, licenses, or other agreements that may be caused by, the consummation of effectuating the transactions contemplated by the Offer and this Agreement; provided, howeverincluding the obtaining of all necessary consents, that the Company (i) need not use any effort approvals or waivers from third parties. Each party will reasonably cooperate in efforts to obtain the Consent of the Company’s lenders pursuant to the agreements set forth in the SEC Reports such consents, waivers and approvals.
(ii) need Promptly following the execution of this Agreement, Buyer and Seller shall cooperate, pursuant to and in accordance with Buyer’s lawful instructions, to:
(A) instruct the CCC to reopen Seller’s marijuana retailer license application (the “Application”) pending before the CCC to amend the Application to make all disclosures necessary to reflect the transactions contemplated by this Agreement, including, but not expend funds limited to, listing Buyer as the sole “owner” and Buyer’s representative as the sole “persons with direct or indirect control” as those terms are defined by 935 CMR 500;
(B) provide all information requested by or required to be submitted to the CCC or other governmental authority in connection with the amendment of the Application, this Agreement or any of the other transactions contemplated by this Agreement;
(C) take, and cause its Affiliates to take, all other actions and steps necessary to obtain Consents any clearance or approval required to be obtained from persons the CCC or other than Governmental Entities unless Parent has agreed to reimburse the Company therefor. For the avoidance of doubt, the parties hereto hereby agree that Parent may engage in discussions with any franchisors regarding any Consents or waivers that may be necessary or desirable to obtain from such franchisors governmental authority in connection with the transactions contemplated by the Offer and this Agreement.;
(bD) Without limiting request from the generality City of Section 6.04(a), subject to Framingham all required consents for the terms assignment of the HCA and conditions in this Agreement, the Company and Parent shall (i) promptly make their respective filings and thereafter make any other permits, approvals, licenses, or consents required submissions under to operate the HSR Act, and License;
(iiE) use reasonable efforts to cooperate with one another in (A) determining whether any filings are provide all information requested by or required to be made withsubmitted to the City of Framingham in connection with the assignment of the HCA, this Agreement or consentsany of the other transactions contemplated by this Agreement;
(F) take, permitsand cause its Affiliates to take, authorizations, all other actions and steps necessary to obtain any clearance or approvals are approval required to be obtained from, from the United States government or any agencies, departments, or instrumentalities thereof, or other governmental or regulatory bodies or authorities City of federal, state, local, and foreign jurisdictions Framingham in connection with the execution transactions contemplated by this Agreement;
(G) negotiate the Lease;
(H) cause all drafts of the Lease to be reviewed and delivery approved by Buyer prior to Seller’s execution; and
(I) incorporate all revisions requested by Buyer into drafts of the Lease, at Buyer’s expense, for transmittal to the owner of the Premises. The Lease shall contain a provision for assignment to Buyer, which assignment shall be delivered to Buyer prior to Closing on forms acceptable to Buyer. Seller shall not execute the Lease or any other agreement related to the Premises without the written consent of Buyer.
(iii) Buyer and Seller shall: (A) give the other party prompt notice of the commencement or threat of any investigation, action or legal proceeding by or before any governmental authority with respect to this Agreement and the consummation or any of the other transactions contemplated by this Agreement, (B) timely making all keep the other party informed as to the status of any such filings and timely seeking all such consentsinvestigation, permits, authorizations, action or approvalslegal proceeding, and (C) taking promptly inform the other party of any communication to or undertaking all such further action as may be necessary to resolve such objections, if any, as the Federal Trade Commission, the Antitrust Division from any governmental authority regarding this Agreement or any of the Department of Justice, state antitrust enforcement authorities, or competition authorities of any other jurisdiction or any other person may assert under relevant antitrust or competition laws with respect to the transactions contemplated by this Agreement.
(c) Without limiting the generality of the undertakings pursuant to Section 6.04(b): (i) each of the Parent and the Company shall provide promptly to the Governmental Entities with regulatory jurisdiction over enforcement of any applicable antitrust laws (each a “Government Antitrust Entity”) information and documents requested by such Government Antitrust Entity or necessary, or reasonably requested, to permit consummation of the transactions contemplated by this Agreement; (ii) without in any way limiting the provisions of Section 6.04(b)(i), each of the Parent and the Company shall file any Notification and Report Form and related material required under the HSR Act as soon as reasonably practicable after the date of this Agreement, and thereafter use its commercially reasonable efforts to certify as soon as reasonably practicable its substantial compliance with any requests for additional information or documentary material that are required to be made under the HSR Act; (iii) each of the Company and the Parent will keep the other informed of any material communication, and provide to the other copies of all correspondence, between it (or its advisors) and any Government Antitrust Entity relating to this Agreement or any of the matters described in this Section 6.04(c); and (iv) each of the Company and the Parent shall permit the other to review any material communication to be given by it to, and shall consult with each other in advance of any telephonic call, meeting, or conference with, any Government Antitrust Entity and, to the extent permitted, give the other party the opportunity to attend and participate in such telephonic calls, meetings, and conferences. Notwithstanding any of the foregoing, no failure to obtain termination of the waiting period under the HSR Act shall be deemed to be a breach of this Agreement by the Company or Parent. Notwithstanding the provisions of Section 6.04(b) and 6.04(c), in the event that either Parent or the Company is requested, as a condition to obtaining the approval of any Governmental Antitrust Entity to the transactions contemplated by this Agreement, to divest material assets or take any other action which, if taken, could reasonably be expected to have a material adverse effect on the combined consolidated businesses, assets, operations, or prospects of the Parent and the Company, then neither the Parent nor the Company shall be required to take such action, and no failure by either the Parent or the Company to take such action shall be deemed a breach of this Section 6.04 or of any other provision of this Agreement.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Trulieve Cannabis Corp.), Asset Purchase Agreement (Trulieve Cannabis Corp.)
Filings; Consents. (a) Each Provided that Seller may delay the submission of the parties will COCR and all related materials, only until such time as the License is issued in place of the provisional Marijuana Retailer License MRN282049 for use its at the Premises held by Seller as of the Agreement Date:
(i) Buyer and Seller will: (i) promptly make and effect all registrations, filings and submissions required to be made or effected by them under applicable laws with respect to this Agreement and the transactions contemplated under this Agreement; and (ii) use commercially reasonable efforts to obtain as promptly as practicable cause to be taken on a timely basis, all Consents other actions necessary or appropriate for the purpose of any Governmental Entity or, upon the Parent’s reasonable request, any other person, required in connection with, consummating and waivers of any breaches or violations of any material contracts, permits, licenses, or other agreements that may be caused by, the consummation of effectuating the transactions contemplated by the Offer and this Agreement; provided, howeverincluding the obtaining of all necessary consents, that the Company (i) need not use any effort approvals or waivers from third parties. Each party will reasonably cooperate in efforts to obtain such consents, waivers and approvals.
(ii) Promptly following the Consent execution of this Agreement, Buyer and Seller shall cooperate to:
(A) submit the COCR for approval by the CCC;
(B) ensure that each performs all actions necessary to cause the CCC to issue the License in place of the Company’s lenders provisional Marijuana Retailer License MRN282049 for use at the Premises held by Seller as of the Agreement Date;
(C) make or cause to be made any filings, applications, submissions and notices required by the CCC pursuant to the agreements set forth COCR to issue the CCC Approval and the License;
(D) provide all information requested by or required to be submitted to the CCC or other governmental authority in connection with the SEC Reports issuance of the License, the COCR, this Agreement or any of the other transactions contemplated by this Agreement;
(E) take, and (ii) need not expend funds cause its Affiliates to take, all other actions and steps necessary to obtain Consents any clearance or approval required to be obtained from persons the CCC or other than Governmental Entities unless Parent has agreed to reimburse the Company therefor. For the avoidance of doubt, the parties hereto hereby agree that Parent may engage in discussions with any franchisors regarding any Consents or waivers that may be necessary or desirable to obtain from such franchisors governmental authority in connection with the transactions contemplated by the Offer and this Agreement.;
(bF) Without limiting request from the generality City of Section 6.04(a), subject to Worcester all required consents for the terms assignment of the HCA and conditions in this Agreement, the Company and Parent shall (i) promptly make their respective filings and thereafter make any other permits, approvals, licenses, or consents required submissions under to operate the HSR Act, and License;
(iiG) use reasonable efforts to cooperate with one another in (A) determining whether any filings are provide all information requested by or required to be made withsubmitted to the City of Worcester in connection with the assignment of the HCA, this Agreement or consentsany of the other transactions contemplated by this Agreement;
(H) take, permitsand cause its Affiliates to take, authorizations, all other actions and steps necessary to obtain any clearance or approvals are approval required to be obtained from, from the United States government or any agencies, departments, or instrumentalities thereof, or other governmental or regulatory bodies or authorities City of federal, state, local, and foreign jurisdictions Worcester in connection with the execution and delivery transactions contemplated by this Agreement;
(I) request from the Landlord all required consents for the assignment of the Lease to Buyer;
(J) provide all information requested by or required to be submitted to the Landlord in connection with the assignment of the Lease, this Agreement and the consummation or any of the other transactions contemplated by this Agreement, and Seller Parent shall cause Tenant (as a wholly owned subsidiary of Seller Parent) to assign all of its rights, title and interest in and under the Lease to the Buyer;
(K) take, and cause its Affiliates to take, all other actions and steps necessary to obtain approval required to be obtained from the Landlord in connection with the transactions contemplated by this Agreement;
(iii) Buyer and Seller shall: (A) give the other party prompt notice of the commencement or threat of any investigation, action or legal proceeding by or before any governmental authority with respect to this Agreement or any of the other transactions contemplated by this Agreement, (B) timely making all keep the other party informed as to the status of any such filings and timely seeking all such consentsinvestigation, permits, authorizations, action or approvalslegal proceeding, and (C) taking promptly inform the other party of any communication to or undertaking all such further action as may be necessary to resolve such objections, if any, as the Federal Trade Commission, the Antitrust Division from any governmental authority regarding this Agreement or any of the Department of Justice, state antitrust enforcement authorities, or competition authorities of any other jurisdiction or any other person may assert under relevant antitrust or competition laws with respect to the transactions contemplated by this Agreement.
(c) Without limiting the generality of the undertakings pursuant to Section 6.04(b): (i) each of the Parent and the Company shall provide promptly to the Governmental Entities with regulatory jurisdiction over enforcement of any applicable antitrust laws (each a “Government Antitrust Entity”) information and documents requested by such Government Antitrust Entity or necessary, or reasonably requested, to permit consummation of the transactions contemplated by this Agreement; (ii) without in any way limiting the provisions of Section 6.04(b)(i), each of the Parent and the Company shall file any Notification and Report Form and related material required under the HSR Act as soon as reasonably practicable after the date of this Agreement, and thereafter use its commercially reasonable efforts to certify as soon as reasonably practicable its substantial compliance with any requests for additional information or documentary material that are required to be made under the HSR Act; (iii) each of the Company and the Parent will keep the other informed of any material communication, and provide to the other copies of all correspondence, between it (or its advisors) and any Government Antitrust Entity relating to this Agreement or any of the matters described in this Section 6.04(c); and (iv) each of the Company and the Parent shall permit the other to review any material communication to be given by it to, and shall consult with each other in advance of any telephonic call, meeting, or conference with, any Government Antitrust Entity and, to the extent permitted, give the other party the opportunity to attend and participate in such telephonic calls, meetings, and conferences. Notwithstanding any of the foregoing, no failure to obtain termination of the waiting period under the HSR Act shall be deemed to be a breach of this Agreement by the Company or Parent. Notwithstanding the provisions of Section 6.04(b) and 6.04(c), in the event that either Parent or the Company is requested, as a condition to obtaining the approval of any Governmental Antitrust Entity to the transactions contemplated by this Agreement, to divest material assets or take any other action which, if taken, could reasonably be expected to have a material adverse effect on the combined consolidated businesses, assets, operations, or prospects of the Parent and the Company, then neither the Parent nor the Company shall be required to take such action, and no failure by either the Parent or the Company to take such action shall be deemed a breach of this Section 6.04 or of any other provision of this Agreement.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Trulieve Cannabis Corp.), Asset Purchase Agreement (Trulieve Cannabis Corp.)
Filings; Consents. (a) Each of the parties will use its commercially reasonable efforts to obtain as promptly as practicable all Consents of any Governmental Entity or, upon the Parent’s reasonable request, any other person, required in connection with, and waivers of any breaches or violations of any material contracts, permits, licenses, or other agreements that may be caused by, the consummation of the transactions contemplated by the Offer and this Agreement; provided, however, that the Company (i) need not use any effort to obtain the Consent of the Company’s lenders pursuant to the agreements set forth in the SEC Reports and (ii) need not expend funds to obtain Consents from persons other than Governmental Entities unless Parent has agreed to reimburse the Company therefor. For the avoidance of doubt, the parties hereto hereby agree that Parent may engage in discussions with any franchisors regarding any Consents or waivers that may be necessary or desirable to obtain from such franchisors in connection with the transactions contemplated by the Offer and this Agreement.
(b) Without limiting the generality of Section 6.04(a), subject Subject to the terms and conditions in of this Agreement, each party will use commercially reasonable efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under applicable Laws and regulations to consummate the Company Transactions by the Initial Closing Date or the Second Closing Date, as applicable. In furtherance of, and Parent shall (i) not in limitation of, the foregoing, if required, each party hereto agrees to make an appropriate filing of a Notification and Report Form pursuant to the HSR Act with respect to the Transactions as promptly make their respective filings as practicable after the date hereof, to supply as promptly as practicable any additional information and thereafter make any other required submissions under documentary material that may be requested pursuant to the HSR Act, and (ii) use reasonable efforts to cooperate with one another in (A) determining whether any filings are required take all other actions necessary to be made with, cause the expiration or consents, permits, authorizations, or approvals are required to be obtained from, the United States government or any agencies, departments, or instrumentalities thereof, or other governmental or regulatory bodies or authorities of federal, state, local, and foreign jurisdictions in connection with the execution and delivery of this Agreement and the consummation termination of the transactions contemplated by this Agreement, (B) timely making all such filings and timely seeking all such consents, permits, authorizations, or approvals, and (C) taking or undertaking all such further action as may be necessary to resolve such objections, if any, as the Federal Trade Commission, the Antitrust Division of the Department of Justice, state antitrust enforcement authorities, or competition authorities of any other jurisdiction or any other person may assert under relevant antitrust or competition laws with respect to the transactions contemplated by this Agreement.
(c) Without limiting the generality of the undertakings pursuant to Section 6.04(b): (i) each of the Parent and the Company shall provide promptly to the Governmental Entities with regulatory jurisdiction over enforcement of any applicable antitrust laws (each a “Government Antitrust Entity”) information and documents requested by such Government Antitrust Entity or necessary, or reasonably requested, to permit consummation of the transactions contemplated by this Agreement; (ii) without in any way limiting the provisions of Section 6.04(b)(i), each of the Parent and the Company shall file any Notification and Report Form and related material required waiting periods under the HSR Act as soon as reasonably practicable after practicable. Seller and Purchaser acknowledge that under the date current structure of the Transactions, no filing is required under the HSR Act. In addition, subject to the provisions hereinafter set forth in this AgreementSection 5.4(a), each of Seller and thereafter Purchaser shall use its commercially reasonable efforts to certify as soon as reasonably practicable its substantial compliance (i) (A) make all appropriate filings and submissions with any requests for additional information Governmental Authority that may be necessary, proper or documentary material that are required to be made advisable under the HSR Act; (iii) each applicable Laws or regulations in respect of any of the Company Transactions, including, without limitation, filings with FERC, (B) cooperate in all respects with each other in connection with any such filing or submission and the Parent will keep in connection with any investigation or other inquiry, including any proceeding initiated by a private Person, (C) promptly inform the other informed party of any communication received by such party from, or given by such party to, any Governmental Authority and of any material communicationcommunication received or given in connection with any proceeding by a private Person, and provide to the other copies of all correspondence, between it (or its advisors) and any Government Antitrust Entity relating to this Agreement or in each case regarding any of the matters described in this Section 6.04(c); Transactions and (ivD) each of the Company and the Parent shall permit the other party to review any material communication to be given by it to, and shall consult with each other in advance of any telephonic call, meeting, meeting or conference with, any Government Antitrust Entity andGovernmental Authority or, in connection with any proceeding by a private Person, with any other Person, and to the extent permittedpermitted by such Governmental Authority or other Person, give the other party the opportunity to attend and participate in such telephonic calls, meetingsmeetings and conferences, and conferences(ii) obtain the Seller Consents (including, without limitation, the consent required under the DBA License) and the Purchaser Consents, as the case may be. Notwithstanding any Seller agrees to provide promptly to Deutsche Xxxxxxx Anlagen GmbH and Fisia Xxxxxxx Environment GmbH the written notice required pursuant to Sections 3.11.4 and 4.3.2 of the foregoingDBA License. With respect to any filings to be made under this Agreement with FERC to secure the authorization and approval from FERC for the disposition to Purchaser of the Seller Interests insofar as they relate to the Project Partnerships, no failure Seller shall be responsible for submitting such filing (which shall be styled as a joint application by Seller and Purchaser), and Purchaser and Seller shall cooperate concerning the preparation of such filing and FERC's review of and actions in connection with such filing. As soon as practicable following the execution of this Agreement, (y) Seller shall submit an Application for an Applicability Determination to the New Jersey Department of Environmental Protection ("NJDEP") pursuant to N.J.A.C. 7:26B-2.2 to seek to obtain termination a written determination (a "Letter of Nonapplicability") from the NJDEP of the waiting period nonapplicability of the provisions of the New Jersey Industrial Site Recovery Act, N.J.S.A. § 13:IK-6 et seq. and regulations promulgated thereunder (collectively, "ISRA") to the Transactions, and (z) Purchaser and Seller agree to jointly make appropriate filings to receive any required approvals of the New Jersey Department of Environmental Protection for the Transactions under the HSR Solid Waste Utility Control Act (N.J.S.A. 48:13A-1 et seq.) or other applicable provisions of Title 48 of the New Jersey Statutes. In the event that Purchaser or any Affiliate of Purchaser (including DLJMB or any Affiliate of DLJMB), at any time prior to the Initial Closing, acquires, or enters into a binding agreement to acquire, directly or indirectly, by means of a sale, merger or any similar transaction, all or any part of UAE's interest in Duke/UAE, ARC or Essex (a "UAE Transaction"), Seller and Purchaser agree to cooperate with UAE in UAE's filing of an Application for Applicability Determination with respect to such transaction and to use commercially reasonable efforts to obtain such a Letter of Nonapplicability; provided, that Seller shall not be deemed required to pay or to agree to pay any fee or other amount, or agree to any reduction in the purchase price payable hereunder or any other amount payable to Seller or DCC, in order to obtain such Letter of Nonapplicability. In the event that Seller obtains a Letter of Nonapplicability for the Transactions, Purchaser agrees to cause any Affiliate entering into a UAE Transaction not to close the UAE Transaction prior to, or simultaneously with, the Initial Closing, unless Seller has received an indemnity, in form and substance reasonably satisfactory to it, for any costs of compliance with ISRA in excess of $500,000.
(b) In furtherance and not in limitation of the covenants of the parties contained in Section 5.4(a), if any administrative or judicial action or proceeding, including any proceeding by a private Person, is instituted (or threatened to be a breach instituted) challenging any Transaction as violative of this Agreement by any Law, each of Purchaser and Seller shall cooperate in all respects with each other and use commercially reasonable efforts to contest and resist any such action or proceeding and to have vacated, lifted, reversed or overturned any decree, judgment, injunction or other order, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents or restricts consummation of the Company or ParentTransactions. Notwithstanding the provisions of Section 6.04(b) and 6.04(c), in the event that either Parent foregoing or the Company is requested, as a condition to obtaining the approval of any Governmental Antitrust Entity to the transactions contemplated by this Agreement, to divest material assets or take any other action which, if taken, could reasonably be expected to have a material adverse effect on the combined consolidated businesses, assets, operations, or prospects of the Parent and the Company, then neither the Parent nor the Company shall be required to take such action, and no failure by either the Parent or the Company to take such action shall be deemed a breach of this Section 6.04 or of any other provision of this Agreement, nothing in this Section 5.4 shall limit a party's right to terminate this Agreement pursuant to Sections 8.1(c)(ii) so long as such party has complied in all material respects with its obligations under this Section 5.4.
(c) Purchaser and Seller agree to use commercially reasonable efforts to make an initial joint filing with FERC seeking approval under Section 203 of the FPA for the Transactions as contemplated by Section 5.4(a) (the "Initial 203 Filing") as soon as practicable after the date hereof, but in no event later than March 26, 2003. If on or before the filing of the Initial 203 Filing, either Purchaser or Seller provides the other party with new information (i.e., information that has not been provided to the parties as of the date hereof) that such other party reasonably determines would be required to be included in the Initial 203 Filing and the inclusion of such information in the Initial 203 Filing would reasonably be expected to (i) result in any delay beyond the Termination Date in obtaining a determination from FERC in respect of the Initial 203 Filing, or (ii) raise materially the risk of FERC not granting approval for the Transactions under Section 203 of the FPA, the nondisclosing party may terminate this Agreement by written notice to the disclosing party within two Business Days of receipt of such new information (in which event, notwithstanding anything to the contrary contained herein, neither Seller nor Purchaser shall have any liability to the other party under this Agreement).
Appears in 1 contract
Filings; Consents. (a) Each of the parties will use its commercially reasonable best efforts to obtain as promptly as practicable all Consents of any Governmental Entity or, upon the Parent’s 's reasonable request, any other person, person required in connection with, and waivers of any breaches or violations of any material contractsContracts, permits, licenses, licenses or other agreements that may be caused by, the consummation of the transactions contemplated by the Offer and this Agreement; provided, howeverPROVIDED, HOWEVER, that the Company (iy) need not use any effort to obtain the Consent of the Company’s 's senior lenders pursuant to or the agreements set forth in the SEC Reports holders of Convertible Notes and (iiz) need not expend funds to obtain Consents from persons other than Governmental Entities unless Parent has agreed to reimburse the Company therefor. For the avoidance of doubt, the parties hereto hereby agree that Parent may engage in discussions with any franchisors regarding any Consents or waivers that may be necessary or desirable to obtain from such franchisors in connection with the transactions contemplated by the Offer and this Agreement.
(b) Without limiting the generality of Section 6.04(a), subject to the terms and conditions in this Agreementherein provided, the Company and Parent shall (i) promptly make their respective filings and thereafter make any other required submissions under the HSR Act, and (ii) use reasonable efforts to cooperate with one another in (A) determining whether any filings are required to be made with, or consents, permits, authorizations, authorizations or approvals are required to be obtained from, the United States government or any agencies, departments, departments or instrumentalities thereof, thereof or other governmental or regulatory bodies or authorities of federal, state, local, local and foreign jurisdictions in connection with the execution and delivery of this Agreement and the consummation of the transactions contemplated by this Agreementhereby and thereby, (B) timely making all such filings and timely seeking all such consents, permits, authorizations, authorizations or approvals, and (C) taking or undertaking all such further action as may be necessary to resolve such objections, if any, as the Federal Trade Commission, the Antitrust Division of the Department of Justice, state antitrust enforcement authorities, authorities or competition authorities of any other nation or other jurisdiction or any other person may assert under relevant antitrust or competition laws with respect to the transactions contemplated by this Agreementhereby.
(c) Without limiting the generality of the undertakings pursuant to Section 6.04(b): (i) each of the Parent and the Company shall provide promptly to the Governmental Entities with regulatory jurisdiction over enforcement of any applicable antitrust laws (each a “a, "Government Antitrust Entity”") information and documents requested by such Government Antitrust Entity or necessary, or reasonably requested, requested to permit consummation of the transactions contemplated by this Agreement; (ii) without in any way limiting the provisions of Section 6.04(b)(i)) above, each of the Parent and the Company shall file any Notification and Report Form and related material required under the HSR Act as soon as reasonably practicable after the date of this Agreement, and thereafter use its commercially reasonable efforts to certify as soon as reasonably practicable its substantial compliance with any requests for additional information or documentary material that are required to be made under the HSR Act; (iii) each of the Company and the Parent will keep the other informed of any material communication, and provide to the other copies of all correspondence, between it (or its advisors) and any Government Antitrust Entity relating to this Agreement or any of the matters described in this Section 6.04(c); and (iv) each of the Company and the Parent shall permit the other to review any material communication to be given by it to, and shall consult with each other in advance of any telephonic callcalls, meeting, meeting or conference with, any Government Antitrust Entity and, to the extent permitted, give the other party the opportunity to attend and participate in such telephonic calls, meetings, meetings and conferences. Notwithstanding any of the foregoing, no failure to obtain termination of the waiting period under the HSR Act shall be deemed to be a breach of this Agreement hereunder by the Company or Parent. Notwithstanding the provisions of Section 6.04(b) and 6.04(c), in the event that either Parent or the Company is requested, as a condition to obtaining the approval of any Governmental Antitrust Entity to the transactions contemplated by this Agreementhereunder, to divest material assets or take any other action which, which if taken, taken could reasonably be expected to have a material adverse effect Material Adverse Effect on the combined consolidated businesses, assets, operations, operations or prospects of the Parent and the Company, then neither the Parent nor the Company shall be required to take such action, action and no failure by either the Parent or the Company to take such action shall be deemed a breach of this Section 6.04 or of any other provision of this Agreement.
Appears in 1 contract
Filings; Consents. (a) Each Upon the terms and conditions hereof each of the parties will hereto shall, and shall cause its Subsidiaries to, use its commercially reasonable best efforts to obtain as promptly as practicable all material Consents of any Governmental Entity or, upon the Parent’s reasonable request, or any other person, person required in connection with, and waivers of any material breaches or material violations of any material contractsContracts, permits, licenses, licenses or other material agreements that may be caused by, the consummation of the transactions contemplated by the Offer and this Agreement; provided, howeverincluding, that the Company without limitation, by (i) need not use any effort to obtain the Consent of the Company’s lenders pursuant to the agreements set forth in the SEC Reports and (ii) need not expend funds to obtain Consents from persons other than Governmental Entities unless Parent has agreed to reimburse the Company therefor. For the avoidance of doubtfiling, the parties hereto hereby agree that Parent may engage in discussions with any franchisors regarding any Consents or waivers that may be necessary or desirable to obtain from such franchisors in connection with the transactions contemplated by the Offer and this Agreement.
(b) Without limiting the generality of Section 6.04(a), subject to the terms and conditions in this Agreement, the Company and Parent shall (i) promptly make their respective filings and thereafter make any other required submissions under the HSR Act, and (ii) use reasonable efforts to cooperate with one another in (A) determining whether any filings are required causing to be made withfiled, or consents, permits, authorizations, or approvals are required to be obtained from, the United States government or any agencies, departments, or instrumentalities thereof, or other governmental or regulatory bodies or authorities of federal, state, local, and foreign jurisdictions in connection with the execution and delivery of this Agreement and the consummation of the transactions contemplated by this Agreement, (B) timely making all such filings and timely seeking all such consents, permits, authorizations, or approvals, and (C) taking or undertaking all such further action as may be necessary to resolve such objections, if any, as the Federal Trade Commission, the Antitrust Division of the Department of Justice, state antitrust enforcement authorities, or competition authorities of any other jurisdiction or any other person may assert under relevant antitrust or competition laws with respect to the transactions contemplated by this Agreement.
(c) Without limiting the generality of the undertakings pursuant to Section 6.04(b): (i) each of the Parent and the Company shall provide promptly to the Governmental Entities with regulatory jurisdiction over enforcement of any applicable antitrust laws (each a “Government Antitrust Entity”) information and documents requested by such Government Antitrust Entity or necessary, or reasonably requested, to permit consummation of the transactions contemplated by this Agreement; (ii) without in any way limiting the provisions of Section 6.04(b)(i), each of the Parent and the Company shall file any Notification and Report Form and related material required under the HSR Act as soon as reasonably practicable after the date of this Agreement but, in any event, unless specifically agreed otherwise by the Company and Parent, no later than thirty (30) calendar days after the date of this Agreement, and thereafter use by using its commercially reasonable best efforts to certify be able to certify, and to certify, as soon as reasonably practicable practicable, its substantial compliance with any such requests for additional information or documentary material that are required to may be made under the HSR Act; , unless Parent and the Company mutually determine that it is reasonable under the circumstances not to comply substantially with any requests for additional information and documentary material under the HSR Act, (ii) promptly making all other required filings or submissions to Governmental Entities, (iii) cooperating and consulting with one another in (A) determining whether any other filings are required, or are deemed advisable, to be made with, or Consents, permits, authorizations or approvals are required, or are deemed advisable, to be obtained from, any third party, the United States government or any other Governmental Entity in connection with the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby and (B) timely making all such filings and timely seeking all such Consents, permits, authorizations, approvals or waivers and (iv) generally, taking, or causing to be taken, all other actions necessary to avoid or eliminate each and every impediment under any antitrust, competition or trade regulation law that may be asserted by any Governmental Entity with respect to the Merger so as to enable the Closing to occur as soon as reasonably possible, and in any event no later than the Extended Termination Date (as defined in Section 7.01(b)) or, if applicable, the Final Termination Date (as defined in Section 7.01(b)), provided that the Company shall not be required to obtain any Consent from any person other than Governmental Entities unless Parent reimburses the Company for all reasonable out-of-pocket expenses incurred in obtaining such Consent; provided, however, that the Company shall not pay or agree to pay any fee or other similar charge to any such person in order to obtain its Consent without the prior written approval of Parent not to be unreasonably withheld. In furtherance of the foregoing, Parent shall, and shall cause its Subsidiaries to, take all such actions, including, without limitation, (x) proposing, negotiating, committing to and effecting, by consent decree, hold separate order, or otherwise, the sale, divestiture or disposition of such assets or businesses of Parent or any of its Subsidiaries or, after the Effective Time, of the Company or of any of its Subsidiaries and (y) otherwise taking or committing to take actions that limit or would limit Parent’s or its Subsidiaries’ (including, after the Effective Time, the Company’s and its Subsidiaries’ as Subsidiaries of Parent) freedom of action with respect to, or its ability to retain, one or more of their respective businesses, product lines or assets, in each case as may be required in order to avoid the entry of any order, judgment, decree, injunction, temporary restraining order, or ruling of a court of competent jurisdiction or any Governmental Entity in any suit or proceeding, which would otherwise have the effect of preventing or materially delaying the Closing; provided further, however, that Parent shall not be required to take any such action, and the failure to do so shall not be deemed to be a failure to exercise its reasonable best efforts as required by this Section 5.04(a), if such actions, individually or in the aggregate, would require the sale, divestiture, licensing or other disposition in any form (collectively, a “Divestiture”) of any one or more businesses or assets, including without limitation, product lines, brands, or other particular types or groups of assets (collectively, the “Specified Assets”) and: (A) in the case of one or more required Divestitures of Specified Assets of Parent or one or more of its Subsidiaries, and/or the Company and or one or more of its Subsidiaries, that are sold at wholesale, such Specified Assets accounted for more than $85 million in the worldwide consolidated net sales of Parent or the Company, as the case may be, to all customers, including the amount of the intercompany sales of such Specified Assets by each party to its own retail division or retail segment, as the case may be; or (B) without limiting the applicability of clause (A) above, in the case of one or more required Divestitures of Specified Assets of Parent or one or more of its Subsidiaries, and/or the Company and one or more of its Subsidiaries, that are not sold at wholesale, including, without limitation, Specified Assets consisting of retail assets, such Specified Assets accounted for more than $100 million in the worldwide consolidated net sales of Parent or the Company, as the case may be; with, in each such case, consolidated net sales to be determined for the four most recently completed consecutive fiscal quarters of Parent and/or the Company, as the case may be. Neither the Company nor any of its Subsidiaries shall propose, negotiate, or commit to any such sale, divestiture or disposition of any of its assets, businesses or product lines without Parent’s prior written consent.
(b) Each of the Company and the Parent will keep shall, without limitation: (i) promptly notify the other informed of any material communicationof, and provide if in writing, furnish the other with copies of (or, in the case of oral communications, advise the other of) any communications from or with any Governmental Entity with respect to the other copies of all correspondence, between it transactions contemplated by this Agreement; (or its advisorsii) and any Government Antitrust Entity relating to this Agreement or any of the matters described in this Section 6.04(c); and (iv) each of the Company and the Parent shall permit the other to review any material communication to be given by it toand discuss in advance, and shall consult with each consider in good faith the views of the other in advance of any telephonic call, meeting, or conference connection with, any Government Antitrust proposed written or any oral communication with any such Governmental Entity; (iii) not participate in any meeting or have any communication with any such Governmental Entity unless it has given the other an opportunity to consult with it in advance and, to the extent permittedpermitted by such Governmental Entity, give the other party the opportunity to attend and participate in such telephonic calls, meetings, therein; and conferences. Notwithstanding any (iv) furnish the other party with copies of the foregoing, no failure to obtain termination of the waiting period under the HSR Act shall be deemed to be a breach of this Agreement by the Company all filings and communications between it (or Parent. Notwithstanding the provisions of Section 6.04(bits advisors) and 6.04(c), in the event that either Parent or the Company is requested, as a condition to obtaining the approval of any such Governmental Antitrust Entity with respect to the transactions contemplated by this Agreement; provided, to divest material assets or take any other action whichhowever, if takenthat, could reasonably be expected to have a material adverse effect on notwithstanding the combined consolidated businessesforegoing, assets, operations, or prospects the rights of the Company and Parent and the Company, then neither the Parent nor the Company shall be required to take such action, and no failure by either the Parent or the Company to take such action shall be deemed a breach of under this Section 6.04 or of any other provision of this Agreement5.04(b) may be exercised on their behalf by their respective outside counsel.
Appears in 1 contract
Filings; Consents. (a) Each of the parties will use its commercially reasonable efforts to obtain as As promptly as practicable after the date hereof, Sellers and Purchaser shall (i) cooperate with one another to identify all Consents of any Governmental Entity ornotices, upon the Parent’s reasonable requestdeclarations, any other person, filings and registrations required in connection to be filed with, and all consents, authorizations, approvals and waivers of required to be obtained from, any breaches third person or violations of any material contracts, permits, licenses, or other agreements that may be caused by, the consummation of the transactions contemplated by the Offer and this Agreement; provided, however, that the Company (i) need not use any effort to obtain the Consent of the Company’s lenders pursuant to the agreements set forth in the SEC Reports and (ii) need not expend funds to obtain Consents from persons other than Governmental Entities unless Parent has agreed to reimburse the Company therefor. For the avoidance of doubt, the parties hereto hereby agree that Parent may engage in discussions with any franchisors regarding any Consents or waivers that may be necessary or desirable to obtain from such franchisors governmental authority in connection with the transactions contemplated by the Offer this Agreement and this Agreement(ii) cooperate with one another to take such actions as may be necessary to cause such notices, declarations, filings and registrations to be filed and such consents, authorizations, approvals and waivers to be obtained.
(b) Without limiting the generality limitation of Section 6.04(a5.4(a), subject to the terms and conditions in this Agreement, the Company and Parent shall (i) promptly make their respective filings and thereafter make any other required submissions under the HSR Act, and (ii) use reasonable efforts to cooperate with one another in (A) determining whether any filings are required to be made with, or consents, permits, authorizations, or approvals are required to be obtained from, the United States government or any agencies, departments, or instrumentalities thereof, or other governmental or regulatory bodies or authorities of federal, state, local, and foreign jurisdictions in connection with after the execution and delivery of this Agreement Agreement, Sellers, on the one hand, and Purchaser, on the consummation other, shall make any and all filings required under the HSR Act and shall furnish to each other such necessary information and reasonable assistance as the other may request (including, without limitation, copies of all correspondence, filings or communications with representatives of any governmental agency) in connection with its preparation of necessary filings or submissions to any governmental agency. The parties shall keep each other appraised of the transactions contemplated by this Agreement, (B) timely making all such filings and timely seeking all such consents, permits, authorizations, or approvalsstatus of any communications with, and (C) taking inquiries or undertaking all such further action as may be necessary to resolve such objectionsrequests for additional information from, if any, as the Federal Trade Commission, the Antitrust Division of Commission and the Department of Justice, state antitrust enforcement authorities, Justice and shall comply promptly with any such inquiry or competition authorities of any other jurisdiction or any other person may assert under relevant antitrust or competition laws request and shall use their best efforts to reach mutually agreeable resolutions with respect to any action required to obtain clearance of the transactions contemplated by this Agreement.
(c) Without limiting limitation of Section 5.4(a), Purchaser shall promptly make all filings with the generality DEA and the NYBCS necessary for obtaining all permits that will be required for its continuing operations at the Building (the "Required DEA/NYBCS Permits") and shall diligently prosecute such applications. In addition, Purchaser and Sellers shall cooperate in identifying alterations that will be required at the Building in order for Purchaser to obtain the Required DEA/NYBCS Permits, and Sellers shall make such alterations at Purchaser's sole expense.
(d) Each of the undertakings pursuant parties hereto agrees to Section 6.04(b): (i) each use its best efforts to bring about the satisfaction of the Parent and the Company shall provide promptly to the Governmental Entities with regulatory jurisdiction over enforcement of any applicable antitrust laws (each a “Government Antitrust Entity”) information and documents requested by such Government Antitrust Entity or necessary, or reasonably requested, to permit consummation of the transactions contemplated by this Agreement; (ii) without in any way limiting the provisions of Section 6.04(b)(i), each of the Parent and the Company shall file any Notification and Report Form and related material required under the HSR Act as soon as reasonably practicable after the date of this Agreement, and thereafter use its commercially reasonable efforts to certify as soon as reasonably practicable its substantial compliance with any requests for additional information or documentary material that are conditions required to be made under the HSR Act; (iii) each of the Company and the Parent will keep the other informed of any material communication, and provide to the other copies of all correspondence, between it (or its advisors) and any Government Antitrust Entity relating to this Agreement or any of the matters described in this Section 6.04(c); and (iv) each of the Company and the Parent shall permit the other to review any material communication to be given performed by it to, hereunder prior to or at the Closing and shall consult with each other in advance of any telephonic call, meeting, or conference with, any Government Antitrust Entity and, to the extent permitted, give the other party the opportunity to attend and participate in such telephonic calls, meetings, and conferences. Notwithstanding any of the foregoing, no failure to obtain termination of the waiting period under the HSR Act shall be deemed to be a breach of this Agreement by the Company or Parent. Notwithstanding the provisions of Section 6.04(b) and 6.04(c), in the event that either Parent or the Company is requested, as a condition to obtaining the approval of any Governmental Antitrust Entity to the transactions contemplated by this Agreement, to divest material assets or take any other action which, if taken, could reasonably be expected to have a material adverse effect on the combined consolidated businesses, assets, operations, or prospects of the Parent and the Company, then neither the Parent nor the Company shall be required to take such action, and no failure by either the Parent or the Company to take such action shall be deemed a breach of this Section 6.04 or of any other provision of this AgreementClosing.
Appears in 1 contract
Samples: Asset Purchase Agreement (Endo Pharmaceuticals Holdings Inc)
Filings; Consents. (a) Each Upon the terms and conditions hereof, each of the parties will hereto shall, and shall cause its Subsidiaries to, use its commercially reasonable best efforts to obtain as promptly as practicable all Consents of any Governmental Entity or, upon the Parent’s reasonable request, or any other person, person required in connection with, and waivers of any breaches or violations of any material contractsContracts, permits, licenses, licenses or other agreements that may be caused by, the consummation of the transactions contemplated by the Offer and this Agreement; provided, howeverincluding, that the Company without limitation, by (i) need not use any effort to obtain the Consent of the Company’s lenders pursuant to the agreements set forth in the SEC Reports and (ii) need not expend funds to obtain Consents from persons other than Governmental Entities unless Parent has agreed to reimburse the Company therefor. For the avoidance of doubtfiling, the parties hereto hereby agree that Parent may engage in discussions with any franchisors regarding any Consents or waivers that may be necessary or desirable to obtain from such franchisors in connection with the transactions contemplated by the Offer and this Agreement.
(b) Without limiting the generality of Section 6.04(a), subject to the terms and conditions in this Agreement, the Company and Parent shall (i) promptly make their respective filings and thereafter make any other required submissions under the HSR Act, and (ii) use reasonable efforts to cooperate with one another in (A) determining whether any filings are required causing to be made withfiled, or consents, permits, authorizations, or approvals are required to be obtained from, the United States government or any agencies, departments, or instrumentalities thereof, or other governmental or regulatory bodies or authorities of federal, state, local, and foreign jurisdictions in connection with the execution and delivery of this Agreement and the consummation of the transactions contemplated by this Agreement, (B) timely making all such filings and timely seeking all such consents, permits, authorizations, or approvals, and (C) taking or undertaking all such further action as may be necessary to resolve such objections, if any, as the Federal Trade Commission, the Antitrust Division of the Department of Justice, state antitrust enforcement authorities, or competition authorities of any other jurisdiction or any other person may assert under relevant antitrust or competition laws with respect to the transactions contemplated by this Agreement.
(c) Without limiting the generality of the undertakings pursuant to Section 6.04(b): (i) each of the Parent and the Company shall provide promptly to the Governmental Entities with regulatory jurisdiction over enforcement of any applicable antitrust laws (each a “Government Antitrust Entity”) information and documents requested by such Government Antitrust Entity or necessary, or reasonably requested, to permit consummation of the transactions contemplated by this Agreement; (ii) without in any way limiting the provisions of Section 6.04(b)(i), each of the Parent and the Company shall file any Notification and Report Form and related material required under the HSR Act as soon as reasonably practicable after the date of this Agreement but, in any event, unless specifically agreed otherwise by the Company and Parent, no later than thirty (30) calendar days after the date of this Agreement, and thereafter use by using its commercially reasonable best efforts to certify be able to certify, and to certify, as soon as reasonably practicable practicable, its substantial compliance with any such requests for additional information or documentary material that are required to may be made under the HSR Act; , unless Parent and the Company mutually determine that it is reasonable under the circumstances not to comply substantially with any requests for additional information and documentary material under the HSR Act, (ii) promptly making all other required filings or submissions to Governmental Entities, including, without limitation, filings under the Required Franchise Laws, (iii) cooperating with one another in (A) determining whether any other filings are required to be made with, or Consents, permits, authorizations or approvals are required to be obtained from, any third party, the United States government or any other Governmental Entity in connection with the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby and (B) timely making all such filings and timely seeking all such Consents, permits, authorizations or approvals, (iv) seeking to avoid the entry of, or seeking to have vacated or terminated, any decree, order, or judgment that would restrain, prevent or delay the Closing, including, without limitation, by defending through litigation on the merits any claim asserted in any court by any person and (v) taking, or causing to be taken, all other actions necessary to avoid or eliminate each and every impediment under any antitrust, competition or trade regulation law that may be asserted by any Governmental Entity with respect to the Merger so as to enable the Closing to occur as soon as reasonably possible, and in any event no later than the Final Termination Date (as defined in Section 7.01(b)), provided that the Company shall not be required to obtain (x) any Consent from any person other than Governmental Entities unless Parent reimburses the Company for all reasonable out-of-pocket expenses incurred in obtaining such Consent or (y) the Consent of the Company's senior lenders or of the holders of Xxxx National Group's 87/8% Senior Subordinated Notes or 85/8% Senior Subordinated Notes; provided, further that the Company shall not pay or agree to pay any fee or other similar charge to any such person in order to obtain its Consent without the prior written approval of Parent not to be unreasonably withheld. In furtherance of the foregoing, Parent shall, and shall cause its Subsidiaries to, take all such actions, including, without limitation (x) proposing, negotiating, committing to and effecting, by consent decree, hold separate order, or otherwise, the sale, divestiture or disposition of such assets or businesses of Parent or any of its Subsidiaries or, after the Effective Time, of the Company or of any of its Subsidiaries and (y) otherwise taking or committing to take actions that limit or would limit Parent's or its Subsidiaries' (including, after the Effective Time, the Company's and its Subsidiaries' as Subsidiaries of Parent) freedom of action with respect to, or its ability to retain, one or more of their respective businesses, product lines or assets, in each case as may be required in order to avoid the entry of, or to effect the dissolution of, any injunction, temporary restraining order, or other order in any suit or proceeding, which would otherwise have the effect of preventing or materially delaying the Closing; provided, however, that Parent shall not be required to take any such action, and the failure to do so shall not be deemed to be a failure to exercise its best efforts as required by the preceding sentence, if: (i) such action would require the sale, divestiture or disposition of businesses, product lines or assets of Parent (whether alone or together with businesses, product lines or assets of the Company) that accounted for more than $55 million in consolidated net revenues of Parent, or (ii) subject to clause (i), such action would require the sale, divestiture or disposition of businesses, product lines or assets of the Company alone, or of the Company and Parent, that accounted for more than $110 million in consolidated net revenues of the Company alone, or of the Company and Parent will in the aggregate, as the case may be, during, for each of clause (i) and (ii), the most recently completed period of four consecutive fiscal quarters of Parent or the Company, as the case may be. The Company shall take such of the foregoing actions as Parent may request, provided that any such action is conditioned upon the consummation of the Merger. Neither the Company nor any of its Subsidiaries shall propose, negotiate, or commit to any such sale, divestiture or disposition of any of its assets, businesses or product lines without Parent's prior written consent.
(b) Each of the Company and Parent shall keep the other informed of any material communication, and provide to the other copies of all correspondence, correspondence between it (or its advisors) and any Government Antitrust Entity relating to this Agreement or any of the matters described in this Section 6.04(c); and (iv) each of the Company and the Parent shall permit the other to review any material communication to be given by it to, and shall consult with each the other in advance of any telephonic calltelephone calls, meeting, meetings or conference conferences with, any Government Antitrust Entity and, to the extent permitted, give the other party the opportunity to attend and participate in such telephonic telephone calls, meetings, meetings and conferences. Notwithstanding any of the foregoing, no failure to obtain termination of the waiting period under the HSR Act shall be deemed to be a breach of this Agreement by the Company or Parent. Notwithstanding the provisions of Section 6.04(b) and 6.04(c), in the event that either Parent or the Company is requested, as a condition to obtaining the approval of any Governmental Antitrust Entity to the transactions contemplated by this Agreement, to divest material assets or take any other action which, if taken, could reasonably be expected to have a material adverse effect on the combined consolidated businesses, assets, operations, or prospects of the Parent and the Company, then neither the Parent nor the Company shall be required to take such action, and no failure by either the Parent or the Company to take such action shall be deemed a breach of this Section 6.04 or of any other provision of this Agreement.
Appears in 1 contract
Filings; Consents. (a) Each Upon the terms and conditions hereof each of the parties will hereto shall, and shall cause its Subsidiaries to, use its commercially reasonable best efforts to obtain as promptly as practicable all material Consents of any Governmental Entity or, upon the Parent’s reasonable request, or any other person, person required in connection with, and waivers of any material breaches or material violations of any material contractsContracts, permits, licenses, licenses or other material agreements that may be caused by, the consummation of the transactions contemplated by the Offer and this Agreement; provided, howeverincluding, that the Company without limitation, by (i) need not use any effort to obtain the Consent of the Company’s lenders pursuant to the agreements set forth in the SEC Reports and (ii) need not expend funds to obtain Consents from persons other than Governmental Entities unless Parent has agreed to reimburse the Company therefor. For the avoidance of doubtfiling, the parties hereto hereby agree that Parent may engage in discussions with any franchisors regarding any Consents or waivers that may be necessary or desirable to obtain from such franchisors in connection with the transactions contemplated by the Offer and this Agreement.
(b) Without limiting the generality of Section 6.04(a), subject to the terms and conditions in this Agreement, the Company and Parent shall (i) promptly make their respective filings and thereafter make any other required submissions under the HSR Act, and (ii) use reasonable efforts to cooperate with one another in (A) determining whether any filings are required causing to be made withfiled, or consents, permits, authorizations, or approvals are required to be obtained from, the United States government or any agencies, departments, or instrumentalities thereof, or other governmental or regulatory bodies or authorities of federal, state, local, and foreign jurisdictions in connection with the execution and delivery of this Agreement and the consummation of the transactions contemplated by this Agreement, (B) timely making all such filings and timely seeking all such consents, permits, authorizations, or approvals, and (C) taking or undertaking all such further action as may be necessary to resolve such objections, if any, as the Federal Trade Commission, the Antitrust Division of the Department of Justice, state antitrust enforcement authorities, or competition authorities of any other jurisdiction or any other person may assert under relevant antitrust or competition laws with respect to the transactions contemplated by this Agreement.
(c) Without limiting the generality of the undertakings pursuant to Section 6.04(b): (i) each of the Parent and the Company shall provide promptly to the Governmental Entities with regulatory jurisdiction over enforcement of any applicable antitrust laws (each a “Government Antitrust Entity”) information and documents requested by such Government Antitrust Entity or necessary, or reasonably requested, to permit consummation of the transactions contemplated by this Agreement; (ii) without in any way limiting the provisions of Section 6.04(b)(i), each of the Parent and the Company shall file any Notification and Report Form and related material required under the HSR Act as soon as reasonably practicable after the date of this Agreement but, in any event, unless specifically agreed otherwise by the Company and Parent, no later than thirty (30) calendar days after the date of this Agreement, and thereafter use by using its commercially reasonable best efforts to certify be able to certify, and to certify, as soon as reasonably practicable practicable, its substantial compliance with any such requests for additional information or documentary material that are required to may be made under the HSR Act; , unless Parent and the Company mutually determine that it is reasonable under the circumstances not to comply substantially with any requests for additional information and documentary material under the HSR Act, (ii) promptly making all other required filings or submissions to Governmental Entities, (iii) cooperating and consulting with one another in (A) determining whether any other filings are required, or are deemed advisable, to be made with, or Consents, permits, authorizations or approvals are required, or are deemed advisable, to be obtained from, any third party, the United States government or any other Governmental Entity in connection with the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby and (B) timely making all such filings and timely seeking all such Consents, permits, authorizations, approvals or waivers and (iv) generally, taking, or causing to be taken, all other actions necessary to avoid or eliminate each and every impediment under any antitrust, competition or trade regulation law that may be asserted by any Governmental Entity with respect to the Merger so as to enable the Closing to occur as soon as reasonably possible, and in any event no later than the Extended Termination Date (as defined in Section 7.01(b)) or, if applicable, the Final Termination Date (as defined in Section 7.01(b)), provided that the Company shall not be required to obtain any Consent from any person other than Governmental Entities unless Parent reimburses the Company for all reasonable out-of-pocket expenses incurred in obtaining such Consent; provided, however, that the Company shall not pay or agree to pay any fee or other similar charge to any such person in order to obtain its Consent without the prior written approval of Parent not to be unreasonably withheld. In furtherance of the foregoing, Parent shall, and shall cause its Subsidiaries to, take all such actions, including, without limitation, (x) proposing, negotiating, committing to and effecting, by consent decree, hold separate order, or otherwise, the sale, divestiture or disposition of such assets or businesses of Parent or any of its Subsidiaries or, after the Effective Time, of the Company or of any of its Subsidiaries and (y) otherwise taking or committing to take actions that limit or would limit Parent's or its Subsidiaries' (including, after the Effective Time, the Company's and its Subsidiaries' as Subsidiaries of Parent) freedom of action with respect to, or its ability to retain, one or more of their respective businesses, product lines or assets, in each case as may be required in order to avoid the entry of any order, judgment, decree, injunction, temporary restraining order, or ruling of a court of competent jurisdiction or any Governmental Entity in any suit or proceeding, which would otherwise have the effect of preventing or materially delaying the Closing; provided further, however, that Parent shall not be required to take any such action, and the failure to do so shall not be deemed to be a failure to exercise its reasonable best efforts as required by this Section 5.04(a), if such actions, individually or in the aggregate, would require the sale, divestiture, licensing or other disposition in any form (collectively, a "DIVESTITURE") of any one or more businesses or assets, including without limitation, product lines, brands, or other particular types or groups of assets (collectively, the "SPECIFIED ASSETS") and: (A) in the case of one or more required Divestitures of Specified Assets of Parent or one or more of its Subsidiaries, and/or the Company and or one or more of its Subsidiaries, that are sold at wholesale, such Specified Assets accounted for more than $85 million in the worldwide consolidated net sales of Parent or the Company, as the case may be, to all customers, including the amount of the intercompany sales of such Specified Assets by each party to its own retail division or retail segment, as the case may be; or (B) without limiting the applicability of clause (A) above, in the case of one or more required Divestitures of Specified Assets of Parent or one or more of its Subsidiaries, and/or the Company and one or more of its Subsidiaries, that are not sold at wholesale, including, without limitation, Specified Assets consisting of retail assets, such Specified Assets accounted for more than $100 million in the worldwide consolidated net sales of Parent or the Company, as the case may be; with, in each such case, consolidated net sales to be determined for the four most recently completed consecutive fiscal quarters of Parent and/or the Company, as the case may be. Neither the Company nor any of its Subsidiaries shall propose, negotiate, or commit to any such sale, divestiture or disposition of any of its assets, businesses or product lines without Parent's prior written consent.
(b) Each of the Company and the Parent will keep shall, without limitation: (i) promptly notify the other informed of any material communicationof, and provide if in writing, furnish the other with copies of (or, in the case of oral communications, advise the other of) any communications from or with any Governmental Entity with respect to the other copies of all correspondence, between it transactions contemplated by this Agreement; (or its advisorsii) and any Government Antitrust Entity relating to this Agreement or any of the matters described in this Section 6.04(c); and (iv) each of the Company and the Parent shall permit the other to review any material communication to be given by it toand discuss in advance, and shall consult with each consider in good faith the views of the other in advance of any telephonic call, meeting, or conference connection with, any Government Antitrust proposed written or any oral communication with any such Governmental Entity; (iii) not participate in any meeting or have any communication with any such Governmental Entity unless it has given the other an opportunity to consult with it in advance and, to the extent permittedpermitted by such Governmental Entity, give the other party the opportunity to attend and participate in such telephonic calls, meetings, therein; and conferences. Notwithstanding any (iv) furnish the other party with copies of the foregoing, no failure to obtain termination of the waiting period under the HSR Act shall be deemed to be a breach of this Agreement by the Company all filings and communications between it (or Parent. Notwithstanding the provisions of Section 6.04(bits advisors) and 6.04(c), in the event that either Parent or the Company is requested, as a condition to obtaining the approval of any such Governmental Antitrust Entity with respect to the transactions contemplated by this Agreement; provided, to divest material assets or take any other action whichhowever, if takenthat, could reasonably be expected to have a material adverse effect on notwithstanding the combined consolidated businessesforegoing, assets, operations, or prospects the rights of the Company and Parent and the Company, then neither the Parent nor the Company shall be required to take such action, and no failure by either the Parent or the Company to take such action shall be deemed a breach of under this Section 6.04 or of any other provision of this Agreement5.04(b) may be exercised on their behalf by their respective outside counsel.
Appears in 1 contract
Samples: Merger Agreement (Oakley Inc)
Filings; Consents. (a) Each Upon the terms and conditions hereof, each of the parties will hereto shall, and shall cause its Subsidiaries to, use its commercially reasonable best efforts to obtain as promptly as practicable all Consents of any Governmental Entity or, upon the Parent’s reasonable request, or any other person, person required in connection with, and waivers of any breaches or violations of any material contractsContracts, permits, licenses, licenses or other agreements that may be caused by, the consummation of the transactions contemplated by the Offer and this Agreement; provided, howeverincluding, that the Company without limitation, by (i) need not use any effort to obtain the Consent of the Company’s lenders pursuant to the agreements set forth in the SEC Reports and (ii) need not expend funds to obtain Consents from persons other than Governmental Entities unless Parent has agreed to reimburse the Company therefor. For the avoidance of doubtfiling, the parties hereto hereby agree that Parent may engage in discussions with any franchisors regarding any Consents or waivers that may be necessary or desirable to obtain from such franchisors in connection with the transactions contemplated by the Offer and this Agreement.
(b) Without limiting the generality of Section 6.04(a), subject to the terms and conditions in this Agreement, the Company and Parent shall (i) promptly make their respective filings and thereafter make any other required submissions under the HSR Act, and (ii) use reasonable efforts to cooperate with one another in (A) determining whether any filings are required causing to be made withfiled, or consents, permits, authorizations, or approvals are required to be obtained from, the United States government or any agencies, departments, or instrumentalities thereof, or other governmental or regulatory bodies or authorities of federal, state, local, and foreign jurisdictions in connection with the execution and delivery of this Agreement and the consummation of the transactions contemplated by this Agreement, (B) timely making all such filings and timely seeking all such consents, permits, authorizations, or approvals, and (C) taking or undertaking all such further action as may be necessary to resolve such objections, if any, as the Federal Trade Commission, the Antitrust Division of the Department of Justice, state antitrust enforcement authorities, or competition authorities of any other jurisdiction or any other person may assert under relevant antitrust or competition laws with respect to the transactions contemplated by this Agreement.
(c) Without limiting the generality of the undertakings pursuant to Section 6.04(b): (i) each of the Parent and the Company shall provide promptly to the Governmental Entities with regulatory jurisdiction over enforcement of any applicable antitrust laws (each a “Government Antitrust Entity”) information and documents requested by such Government Antitrust Entity or necessary, or reasonably requested, to permit consummation of the transactions contemplated by this Agreement; (ii) without in any way limiting the provisions of Section 6.04(b)(i), each of the Parent and the Company shall file any Notification and Report Form and related material required under the HSR Act as soon as reasonably practicable after the date of this Agreement but, in any event, unless specifically agreed otherwise by the Company and Parent, no later than thirty (30) calendar days after the date of this Agreement, and thereafter use by using its commercially reasonable best efforts to certify be able to certify, and to certify, as soon as reasonably practicable practicable, its substantial compliance with any such requests for additional information or documentary material that are required to may be made under the HSR Act; , unless Parent and the Company mutually determine that it is reasonable under the circumstances not to comply substantially with any requests for additional information and documentary material under the HSR Act, (ii) promptly making all other required filings or submissions to Governmental Entities, including, without limitation, filings under the Required Franchise Laws, (iii) cooperating with one another in (A) determining whether any other filings are required to be made with, or Consents, permits, authorizations or approvals are required to be obtained from, any third party, the United States government or any other Governmental Entity in connection with the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby and (B) timely making all such filings and timely seeking all such Consents, permits, authorizations or approvals, (iv) seeking to avoid the entry of, or seeking to have vacated or terminated, any decree, order, or judgment that would restrain, prevent or delay the Closing, including, without limitation, by defending through litigation on the merits any claim asserted in any court by any person and (v) taking, or causing to be taken, all other actions necessary to avoid or eliminate each and every impediment under any antitrust, competition or trade regulation law that may be asserted by any Governmental Entity with respect to the Merger so as to enable the Closing to occur as soon as reasonably possible, and in any event no later than the Final Termination Date (as defined in Section 7.01(b)), provided that the Company shall not be required to obtain (x) any Consent from any person other than Governmental Entities unless Parent reimburses the Company for all reasonable out-of-pocket expenses incurred in obtaining such Consent or (y) the Consent of the Company's senior lenders or of the holders of Cole National Group's 8-7/8% Senior Subordinated Notes or 8-5/8% Sexxxx Subordinated Notes; provided, further that the Company shall not pay or agree to pay any fee or other similar charge to any such person in order to obtain its Consent without the prior written approval of Parent not to be unreasonably withheld. In furtherance of the foregoing, Parent shall, and shall cause its Subsidiaries to, take all such actions, including, without limitation (x) proposing, negotiating, committing to and effecting, by consent decree, hold separate order, or otherwise, the sale, divestiture or disposition of such assets or businesses of Parent or any of its Subsidiaries or, after the Effective Time, of the Company or of any of its Subsidiaries and (y) otherwise taking or committing to take actions that limit or would limit Parent's or its Subsidiaries' (including, after the Effective Time, the Company's and its Subsidiaries' as Subsidiaries of Parent) freedom of action with respect to, or its ability to retain, one or more of their respective businesses, product lines or assets, in each case as may be required in order to avoid the entry of, or to effect the dissolution of, any injunction, temporary restraining order, or other order in any suit or proceeding, which would otherwise have the effect of preventing or materially delaying the Closing; provided, however, that Parent shall not be required to take any such action, and the failure to do so shall not be deemed to be a failure to exercise its best efforts as required by the preceding sentence, if: (i) such action would require the sale, divestiture or disposition of businesses, product lines or assets of Parent (whether alone or together with businesses, product lines or assets of the Company) that accounted for more than $55 million in consolidated net revenues of Parent, or (ii) subject to clause (i), such action would require the sale, divestiture or disposition of businesses, product lines or assets of the Company alone, or of the Company and Parent, that accounted for more than $110 million in consolidated net revenues of the Company alone, or of the Company and Parent will in the aggregate, as the case may be, during, for each of clause (i) and (ii), the most recently completed period of four consecutive fiscal quarters of Parent or the Company, as the case may be. The Company shall take such of the foregoing actions as Parent may request, provided that any such action is conditioned upon the consummation of the Merger. Neither the Company nor any of its Subsidiaries shall propose, negotiate, or commit to any such sale, divestiture or disposition of any of its assets, businesses or product lines without Parent's prior written consent.
(b) Each of the Company and Parent shall keep the other informed of any material communication, and provide to the other copies of all correspondence, correspondence between it (or its advisors) and any Government Antitrust Entity relating to this Agreement or any of the matters described in this Section 6.04(c); and (iv) each of the Company and the Parent shall permit the other to review any material communication to be given by it to, and shall consult with each the other in advance of any telephonic calltelephone calls, meeting, meetings or conference conferences with, any Government Antitrust Entity and, to the extent permitted, give the other party the opportunity to attend and participate in such telephonic telephone calls, meetings, meetings and conferences. Notwithstanding any of the foregoing, no failure to obtain termination of the waiting period under the HSR Act shall be deemed to be a breach of this Agreement by the Company or Parent. Notwithstanding the provisions of Section 6.04(b) and 6.04(c), in the event that either Parent or the Company is requested, as a condition to obtaining the approval of any Governmental Antitrust Entity to the transactions contemplated by this Agreement, to divest material assets or take any other action which, if taken, could reasonably be expected to have a material adverse effect on the combined consolidated businesses, assets, operations, or prospects of the Parent and the Company, then neither the Parent nor the Company shall be required to take such action, and no failure by either the Parent or the Company to take such action shall be deemed a breach of this Section 6.04 or of any other provision of this Agreement.
Appears in 1 contract
Filings; Consents. (a) Each Upon the terms and conditions hereof, each of the parties will to this Agreement shall use its commercially reasonable best efforts to obtain as promptly as practicable all material Consents of any Governmental Entity or, upon the Parent’s reasonable request, or any other person, person required in connection with, and waivers of any breaches or violations of any material contracts, permits, licenses, or other agreements that may be caused by, with the consummation of the transactions contemplated by the Offer and this Agreement; provided, however, that the Company (i) need not use any effort to obtain the Consent of the Company’s lenders pursuant to the agreements set forth in the SEC Reports and (ii) need not expend funds to obtain Consents from persons other than Governmental Entities unless Parent has agreed to reimburse the Company therefor. For the avoidance of doubt, the parties hereto hereby agree that Parent may engage in discussions with any franchisors regarding any Consents or waivers that may be necessary or desirable to obtain from such franchisors in connection with the transactions contemplated by the Offer and this Agreement.
(b) Without limiting the generality of Section 6.04(a), subject to the terms and conditions in this Agreement, the Company and Parent shall including without limitation, by (i) promptly make their respective making all required filings or submissions to Governmental Entities, including, but not limited to, all required federal securities and thereafter make any other required submissions under the HSR Actstate "blue sky" filings, and (ii) use reasonable efforts to cooperate cooperating and consulting with one another in (A) determining whether any other filings are required required, or are deemed advisable, to be made with, or consentsConsents, permits, authorizations, authorizations or approvals are required required, or are deemed advisable, to be obtained fromfrom any third party, the United States government or any agencies, departments, or instrumentalities thereof, or other governmental or regulatory bodies or authorities of federal, state, local, and foreign jurisdictions Governmental Entity in connection with the execution and delivery of this Agreement and the consummation of the transactions contemplated by this Agreementhereby, and (B) timely making all such filings and timely seeking all such consentsConsents, permits, authorizations, approvals or approvalswaivers.
(b) Each of Parent, Parent Stockholder, Merger Sub and the Company shall, without limitation, (i) promptly notify the other of, and if in writing, furnish the other with copies of (Cor, in the case of oral communications, advise the other of) taking any communications from or undertaking all such further action as may be necessary to resolve such objections, if any, as the Federal Trade Commission, the Antitrust Division of the Department of Justice, state antitrust enforcement authorities, or competition authorities of with any other jurisdiction or any other person may assert under relevant antitrust or competition laws Governmental Entity with respect to the transactions contemplated by this Agreement.
(c) Without limiting the generality of the undertakings pursuant to Section 6.04(b): (i) each of the Parent and the Company shall provide promptly to the Governmental Entities with regulatory jurisdiction over enforcement of any applicable antitrust laws (each a “Government Antitrust Entity”) information and documents requested by such Government Antitrust Entity or necessary, or reasonably requested, to permit consummation of the transactions contemplated by this Agreement; (ii) without in any way limiting the provisions of Section 6.04(b)(i), each of the Parent and the Company shall file any Notification and Report Form and related material required under the HSR Act as soon as reasonably practicable after the date of this Agreement, and thereafter use its commercially reasonable efforts to certify as soon as reasonably practicable its substantial compliance with any requests for additional information or documentary material that are required to be made under the HSR Act; (iii) each of the Company and the Parent will keep the other informed of any material communication, and provide to the other copies of all correspondence, between it (or its advisors) and any Government Antitrust Entity relating to this Agreement or any of the matters described in this Section 6.04(c); and (iv) each of the Company and the Parent shall permit the other to review any material communication to be given by it toand discuss in advance, and shall consult with each consider in good faith, the views of the other in advance of any telephonic call, meeting, or conference connection with, any Government Antitrust proposed written or any oral communications with any such Governmental Entity; and (iii) not participate in any meeting or have any communication with any such Governmental Entity unless it has given the other an opportunity to consult with it in advance and, to the extent permittedpermitted by such Governmental Entity, give the other party the opportunity to attend and participate in such telephonic calls, meetings, therein; and conferences. Notwithstanding any (iv) furnish the other party with copies of the foregoing, no failure to obtain termination of the waiting period under the HSR Act shall be deemed to be a breach of this Agreement by the Company all filings and communications between it (or Parent. Notwithstanding the provisions of Section 6.04(bits advisors) and 6.04(c), in the event that either Parent or the Company is requested, as a condition to obtaining the approval of any such Governmental Antitrust Entity with respect to the transactions contemplated by this Agreement; provided, to divest material assets or take any other action whichhowever, if takenthat notwithstanding the foregoing, could reasonably be expected to have a material adverse effect on the combined consolidated businesses, assets, operations, or prospects rights of the Parent and the Company, then neither the Parent, Parent nor the Company shall be required to take such action, Stockholder and no failure by either the Parent or the Company to take such action shall be deemed a breach of Merger Sub under this Section 6.04 or of any other provision of this Agreement5.5(b) may be exercised on their behalf by their respective outside counsel.
Appears in 1 contract
Filings; Consents. (a) Each Pursuant to the Merger Agreement, each of the parties will use its commercially reasonable best efforts to obtain as promptly as practicable all Consents consents of any Governmental Entity governmental entity or, upon the Parent’s 's reasonable request, any other person, person required in connection with, and waivers of any breaches or violations of any material contracts, permits, licenses, licenses or other agreements that may be caused by, the consummation of the transactions contemplated by the Offer and this the Merger Agreement; provided, howeverPROVIDED, HOWEVER, that the Company (iy) need not use any effort to obtain the Consent consent of the Company’s 's senior lenders pursuant to or the agreements set forth in holders of the SEC Reports Company's 5 1/4% Convertible Notes and (iiz) need not expend funds to obtain Consents consents from persons other than Governmental Entities governmental entities unless Parent has agreed to reimburse the Company therefor. For the avoidance of doubt, the parties hereto hereby agree that Parent may engage in discussions with any franchisors regarding any Consents or waivers that may be necessary or desirable to obtain from such franchisors in connection with the transactions contemplated by the Offer and this Agreement.
(b) Without limiting the generality of Section 6.04(a), subject to the terms and conditions in this AgreementIn addition, the Company and Parent shall (i) promptly make their respective filings and thereafter make any other required submissions under the HSR Act, and (ii) use reasonable efforts to cooperate with one another in (A) determining whether any filings are required to be made with, or consents, permits, authorizations, authorizations or approvals are required to be obtained from, the United States government or any agencies, departments, departments or instrumentalities thereof, thereof or other governmental or regulatory bodies or authorities of federal, state, local, local and foreign jurisdictions in connection with the execution and delivery of this the Merger Agreement and the consummation of the transactions contemplated by this Agreementhereby and thereby, (B) timely making all such filings and timely seeking all such consents, permits, authorizations, authorizations or approvals, and (C) taking or undertaking all such further action as may be necessary to resolve such objections, if any, as the Federal Trade Commission, the Antitrust Division of the Department of Justice, state antitrust enforcement authorities, authorities or competition authorities of any other nation or other jurisdiction or any other person may assert under relevant antitrust or competition laws with respect to the transactions contemplated by this Agreement.
hereby, (ciii) Without limiting the generality of the undertakings pursuant to Section 6.04(b): (i) each of the Parent and the Company shall provide promptly to the Governmental Entities governmental entities with regulatory jurisdiction over enforcement of any applicable antitrust laws (each a “a, "Government Antitrust Entity”") information and documents requested by such Government Antitrust Entity or necessary, or reasonably requested, requested to permit consummation of the transactions contemplated by this the Merger Agreement; , (iiiv) without in any way limiting the provisions of Section 6.04(b)(i), each of the Parent and the Company shall file any Notification and Report Form and related material required under the HSR Act as soon as reasonably practicable after the date of this the Merger Agreement, and thereafter use its commercially reasonable efforts to certify as soon as reasonably practicable its substantial compliance with any requests for additional information or documentary material that are required to be made under the HSR Act; , (iiiv) keep each of the Company and the Parent will keep the other informed of any material communication, and provide to the other copies of all correspondence, between it (or its advisors) either of the parties and any Government Antitrust Entity relating to this the Merger Agreement or any of the matters described in this Section 6.04(c); paragraph, and (ivvi) permit each of the Company and the Parent shall permit the other to review any material communication to be given by it to, and shall consult with each other in advance of any telephonic callcalls, meeting, meeting or conference with, any Government Antitrust Entity and, to the extent permitted, give the other party the opportunity to attend and participate in such telephonic calls, meetings, meetings and conferences. Notwithstanding any of the foregoing, no failure to obtain termination of the waiting period under the HSR Act shall be deemed to be a breach of this Agreement by the Company or Parent. Notwithstanding the provisions of Section 6.04(b) and 6.04(c), in the event that either Parent or the Company is requested, as a condition to obtaining the approval of any Governmental Antitrust Entity to the transactions contemplated by this Agreement, to divest material assets or take any other action which, if taken, could reasonably be expected to have a material adverse effect on the combined consolidated businesses, assets, operations, or prospects of the Parent and the Company, then neither the Parent nor the Company shall be required to take such action, and no failure by either the Parent or the Company to take such action shall be deemed a breach of this Section 6.04 or of any other provision of this Agreement.
Appears in 1 contract
