Filings; Other Actions; Notifications. (1) Subject to the terms and conditions set forth in this Agreement, the Parties shall cooperate with each other and use (and shall cause their respective Subsidiaries to use) their respective reasonable best efforts to take or cause to be taken all actions, and do or cause to be done all things, reasonably necessary, proper or advisable to consummate and make effective the Transactions as soon as reasonably practicable, including, subject to the provisions of this Section 4.2, preparing and filing as promptly as practicable all documentation to effect all necessary notices, reports and other filings and to obtain as promptly as reasonably practicable all consents, registrations, approvals, permits and authorizations necessary or advisable to be obtained from any Governmental Entity in order to consummate the Transactions, including the Required Regulatory Approvals. To the extent requested by the Parent, the Company shall use its reasonable best efforts, and shall cause each of its Subsidiaries to use its reasonable best efforts, to take or cause to be taken all actions, and do or cause to be done all things, reasonably necessary, proper or advisable on its part under this Agreement and Law to obtain as promptly as reasonably practicable all third party consents under Contracts of the Company and its Subsidiaries that are necessary or advisable to be obtained in order to consummate the Transactions; provided that the Parent shall cooperate with the Company in identifying, and to the extent reasonably requested by the Company, obtaining such third party consents. Subject to Law relating to the exchange of information and its compliance with the terms of this Agreement, the Parent shall have the right to direct all matters with any Governmental Entity with respect to the Required Regulatory Approvals consistent with its obligations hereunder and, where reasonably requested by the Parent, the Company shall use its reasonable best efforts to make available its personnel and Representatives at reasonable times for meetings or telephone calls pertaining to such matters; provided that the Parent and, except for communications, submissions, filings and meetings with Governmental Entities in relation to the ICA, the Company shall: (i) have the right to review in advance and, to the extent practicable, consult with the other on and consider in good faith the views of the other in connection with, all of the information relating to the Parent or the Company, as the case may be, and any of their respective Subsidiaries, that appears in any filing made with, or written materials submitted to, any third party and/or any Governmental Entity in connection with the Transactions, and (ii) to the extent permitted by such Governmental Entity, have the right to attend any meetings or telephone calls with any Governmental Entities regarding such matters. In exercising the foregoing rights, each of the Company and the Parent shall act reasonably and as promptly as practicable. Notwithstanding anything in this Agreement to the contrary (other than Section 8.3), in no event shall the Company, the Parent or any of their respective Subsidiaries be required to (x) make any payments to any third parties if such payment is not contingent upon the occurrence of the Effective Time (other than payments to the Company’s or the Parent’s Representatives for services rendered in connection with the Transactions) or (y) concede anything of value if such concession is not contingent upon the occurrence of the Effective Time, in the case of the foregoing clauses (x) or (y), in order to obtain any consent, approval or waiver under Contracts of the Company and its Subsidiaries or of the Parent and its Subsidiaries from any Person. (2) Without limiting the generality of Section 4.2(1), each of the Parties shall as promptly as practicable, and in any event within 15 Business Days after the date hereof in the case of the filings under the HSR Act, the Competition Act and the ICA (provided that the Parent has received all information that it has requested from the Company and its Subsidiaries that is reasonably necessary or appropriate to prepare a filing), make all registrations and filings, and thereafter make any other required submissions with any Governmental Entity or other Persons necessary in connection with the consummation of the Transactions, including the filings required of them or their “ultimate parent entities” under Antitrust Laws. No Party shall voluntarily extend any waiting period under the Antitrust Laws or enter into any agreement with any Governmental Entity to delay or not to consummate the Transactions except with the prior written consent of the other Parties. (3) The Company and the Parent each shall, upon request by the other, furnish the other with all information concerning itself, its Subsidiaries, directors, officers and stockholders and such other matters as may be reasonably necessary or advisable in connection with any statement, filing, notice or application made by or on behalf of the Parent, the Company or any of their respective Subsidiaries to any third party and/or any Governmental Entity in connection with the Transactions; provided, however, that neither the Parent nor the Company is obligated to furnish to the other (other than to outside counsel of such other party on an “outside counsel only” basis) under this Section 4.2 any non-public information or documentation that (x) is submitted with any such statement, filing, notice or application or (y) is unrelated to the Transactions. (4) Subject to Law and as required by any Governmental Entity, the Company and the Parent each shall keep the other apprised of the status of matters relating to completion of the Transactions, including promptly furnishing the other with copies of notices or other communications received by the Parent or the Company, as the case may be, or any of its Subsidiaries, from any third party and/or any Governmental Entity with respect to such transactions, as well as final copies of any submissions or filings to, or material communications with, any Governmental Entities; provided that the Parent shall not be obligated to provide the Company with communications, submissions and filings with Governmental Entities in relation to the ICA so long as the Parent keeps the Company reasonably apprised of the status thereof. (5) Subject to the terms and conditions set forth in this Agreement, including this Section 4.2(5), each of the Company and the Parent agrees to take or cause to be taken the following actions: (a) the prompt provision to each and every federal, state, local or foreign court or Governmental Entity with jurisdiction over enforcement of any applicable antitrust or competition Laws of non-privileged information and documents requested by any such Governmental Entity or that are necessary, proper or advisable to permit consummation of the Transactions; (b) the prompt use of its reasonable best efforts to avoid the entry of any permanent, preliminary or temporary injunction or other order, decree, decision, determination or judgment that would delay, restrain, prevent, enjoin or otherwise prohibit consummation of the Transactions; and (c) the prompt use of its reasonable best efforts to take, in the event that any permanent, preliminary or temporary injunction, decision, order, judgment, determination or decree is entered or issued, or becomes reasonably foreseeable to be entered or issued, in any proceeding or inquiry of any kind that would make consummation of the Arrangement in accordance with the terms of this Agreement unlawful or that would delay, restrain, prevent, enjoin or otherwise prohibit consummation of the Transactions, any and all steps necessary to modify, reverse, suspend or remove such actual, anticipated or threatened injunction, decision, order, judgment, determination or decree so as to permit such consummation. (6) Notwithstanding anything to the contrary contained in this Agreement, the Parent agrees to use its reasonable best efforts to take (and to cause its Subsidiaries to take) as promptly as practicable (i) any and all steps necessary or advisable to avoid or eliminate each and every impediment and obtain all consents under the Antitrust Laws that may be required by any Governmental Entity so as to enable the consummation of the Transactions as promptly as practicable (and in any event no later than the Outside Date), including, as promptly as practicable, proposing, negotiating, accepting, committing to and effecting, by consent decrees, hold separate orders, trusts, or otherwise (and the entry into agreements with, and submission to orders of, the relevant Governmental Entity) (A) the sale, divestiture, license or grant of a right of use, disposition of, or holding separate of assets, businesses, rights, licenses or products or product lines of the Company, the Parent and/or their respective Subsidiaries and (B) operational or other restrictions or limitations) with respect to the Company, the Parent and their respective Affiliates (such steps in the foregoing clauses (A) and (B), (the “Regulatory Efforts Steps”), in each case as may be required in order to avoid the entry of, or to effect the dissolution of or vacate or lift, any Order (including any preliminary or permanent injunction), that would otherwise have the effect of preventing or materially delaying the consummation of Transactions and (ii) any and all actions necessary or advisable in order to ensure that (I) no requirement for any non-action by or consent or approval of any Governmental Entity with respect to any Antitrust Law, (II) no Order in any suit or proceeding with respect to any Antitrust Laws, and (III) no other matter relating to any Antitrust Laws would prevent or materially delay the consummation of the Transactions; provided, that, notwithstanding the foregoing or anything to the contrary contained in this Agreement, the Parties hereby agree and acknowledge that neither this Section 4.2(6) nor any other provisions in this Agreement shall require, or be construed to require, the Parent or the Company or any of their respective Subsidiaries or other Affiliates, in order to obtain any Required Regulatory Approvals under Antitrust Laws, to agree to, accept or implement any Regulatory Efforts Steps or other actions of the type described in the foregoing clause (ii) to the extent that such Regulatory Efforts Steps or other actions would constitute a Burdensome Condition; provided further that Parent can compel the Company and its Subsidiaries to take or agree to take any Regulatory Efforts Steps or other actions to the extent such Regulatory Efforts Steps would only take effect after the Effective Time. (7) The obligations of the Company under this Section 4.2 shall not limit or modify its rights under Article 5. The obligations of the Company with respect to the Company Meeting and the Company Circular shall be governed by Section 2.3 and Section 2.4 and not this Section 4.2. (8) Notwithstanding anything to the contrary herein or in the Plan of Arrangement, each document, instrument or agreement necessary or contemplated to effectuate the steps set forth in Section 2.3(a) through Section 2.3(i), and Section 2.3(l) through Section 2.3(m) of the Plan of Arrangement (including the Funding Note, the Company Sub 2 Repayment Agreement, the Company Sub 2 Luxco Repayment Agreement and the Company Sub 3 Luxco Repayment Agreement (each as defined in the Plan of Arrangement)) shall be in form and substance satisfactory to the Parent and the Company, each acting reasonably. Without limiting the generality of the foregoing, no such document, instrument or agreement shall contain terms or conditions that would prevent or delay the consummation of the Arrangement or impose additional conditions with respect thereto.
Appears in 2 contracts
Samples: Arrangement Agreement (Catamaran Corp), Arrangement Agreement (Unitedhealth Group Inc)
Filings; Other Actions; Notifications. (1a) Subject to the terms Sellers and conditions set forth in this Agreement, the Parties Purchaser shall cooperate with each other and use (and shall cause their respective Subsidiaries to use) their respective reasonable best efforts to take or cause to be taken all actions, and do or cause to be done all things, reasonably necessary, proper or advisable to consummate and make effective the Transactions as soon as reasonably practicable, including, subject to the provisions of this Section 4.2, preparing and filing as promptly as practicable all documentation to effect all necessary notices, reports and other filings and to obtain as promptly as reasonably practicable all consents, registrations, approvals, permits and authorizations necessary or advisable to be obtained from any Governmental Entity in order to consummate the Transactions, including the Required Regulatory Approvals. To the extent requested by the Parent, the Company shall use its reasonable best efforts, and shall cause each of its Subsidiaries to use its reasonable best efforts, to take or cause to be taken all actions, and do or cause to be done all things, reasonably necessary, proper or advisable on its part under this Agreement and Law applicable Laws to consummate and make effective the transactions contemplated hereby as soon as practicable, including preparing and filing as soon as practicable all documentation to effect or obtain as promptly soon as reasonably practicable all third party consents under Contracts of the Company consents, approvals, waivers, authorizations, reports, registrations, filings and its Subsidiaries that are notices necessary or advisable to be obtained from any third party and/or any Governmental Entity in order to consummate the Transactions; provided that the Parent shall cooperate with the Company in identifying, and to the extent reasonably requested by the Company, obtaining such third party consents. transactions contemplated hereby.
(b) Subject to Law applicable Laws relating to the exchange of information and its compliance with the terms preservation of this Agreementany applicable attorney-client privilege, the Parent Sellers and Purchaser shall have the right to direct all matters with any Governmental Entity with respect to the Required Regulatory Approvals consistent with its obligations hereunder and, where reasonably requested by the Parent, the Company shall use its reasonable best efforts to make available its personnel and Representatives at reasonable times for meetings or telephone calls pertaining to such matters; provided that the Parent and, except for communications, submissions, filings and meetings with Governmental Entities in relation to the ICA, the Company shall: (i) have the right to review in advance andadvance, and to the extent practicable, practicable each will consult with the other on and consider in good faith the views of the other in connection withon, all of the information relating to the Parent Sellers or the CompanyPurchaser, as the case may be, and any of their respective SubsidiariesAffiliates, that appears appear in any filing statement, filing, notice or application made with, or written materials submitted to, any third party and/or any Governmental Entity in connection with the Transactions, and (ii) to the extent permitted transactions contemplated by such Governmental Entity, have the right to attend any meetings or telephone calls with any Governmental Entities regarding such mattersthis Agreement. In exercising the foregoing rightsright, each of the Company Sellers and the Parent Purchaser shall act reasonably and as promptly as practicable. Notwithstanding anything in this Agreement to the contrary (other than Section 8.3), in no event shall the Company, the Parent or any of their respective Subsidiaries be required to (x) make any payments to any third parties if such payment is not contingent upon the occurrence of the Effective Time (other than payments to the Company’s or the Parent’s Representatives for services rendered in connection with the Transactions) or (y) concede anything of value if such concession is not contingent upon the occurrence of the Effective Time, in the case of the foregoing clauses (x) or (y), in order to obtain any consent, approval or waiver under Contracts of the Company and its Subsidiaries or of the Parent and its Subsidiaries from any Person.
(2c) Without limiting Subject to applicable Laws and the generality preservation of Section 4.2(1), each of the Parties shall as promptly as practicable, and in any event within 15 Business Days after the date hereof in the case of the filings under the HSR Actapplicable attorney-client privilege, the Competition Act Sellers and the ICA (provided that the Parent has received all information that it has requested from the Company and its Subsidiaries that is reasonably necessary or appropriate to prepare a filing), make all registrations and filings, and thereafter make any other required submissions with any Governmental Entity or other Persons necessary in connection with the consummation of the Transactions, including the filings required of them or their “ultimate parent entities” under Antitrust Laws. No Party shall voluntarily extend any waiting period under the Antitrust Laws or enter into any agreement with any Governmental Entity to delay or not to consummate the Transactions except with the prior written consent of the other Parties.
(3) The Company and the Parent Purchaser each shall, upon request by the other, furnish the other with all information concerning itself, its Subsidiaries, directors, officers and stockholders and such other matters as may be reasonably necessary or advisable in connection with the Provisional Consent Order, any final order of the FTC in respect thereof, the State Consent Order, the Charter and any statement, filing, notice or application made by or on behalf of the ParentSellers, the Company Companies or Purchaser or any of their respective Subsidiaries to any third party and/or any Governmental Entity in connection with the Transactions; provided, however, that neither the Parent nor the Company is obligated to furnish to the other (other than to outside counsel of such other party on an “outside counsel only” basis) under transactions contemplated by this Section 4.2 any non-public information or documentation that (x) is submitted with any such statement, filing, notice or application or (y) is unrelated to the TransactionsAgreement.
(4d) Subject to Law and as required by any Governmental Entity, Without limiting the Company and the Parent each shall keep the other apprised generality of the status of matters relating undertakings pursuant to completion of the Transactions, including promptly furnishing the other with copies of notices or other communications received by the Parent or the Company, as the case may be, or any of its Subsidiaries, from any third party and/or any Governmental Entity with respect to such transactions, as well as final copies of any submissions or filings to, or material communications with, any Governmental Entities; provided that the Parent shall not be obligated to provide the Company with communications, submissions and filings with Governmental Entities in relation to the ICA so long as the Parent keeps the Company reasonably apprised of the status thereof.
(5) Subject to the terms and conditions set forth in this Agreement, including this Section 4.2(5)5.4, each of the Company Seller and the Parent Purchaser agrees to take or cause to be taken the following actions:
: (ai) the prompt provision provide promptly to each and every federal, state, local or foreign court or any Governmental Entity with jurisdiction over enforcement of any applicable antitrust or competition Competition Laws of non-privileged ("GOVERNMENT ANTITRUST ENTITY") information and documents requested by any such Governmental Government Antitrust Entity or that are necessary, proper or advisable to permit consummation of the Transactions;
transactions contemplated by this Agreement, (bii) the prompt use of its reasonable best efforts contest and resist any action seeking to avoid the entry of have imposed any permanent, preliminary or temporary injunction or other order, decree, decisionjudgment, determination injunction, ruling or judgment other order (whether temporary, preliminary or permanent) other than the Provisional Consent Order, any final order of the FTC in respect thereof and the State Consent Order (an "ORDER"), that would materially delay, restrain, prevent, enjoin or otherwise prohibit consummation of the Transactionstransactions contemplated hereby; and
(c) the prompt use of its reasonable best efforts to take, it being understood that in the event that any permanent, such temporary or preliminary or temporary injunction, decision, order, judgment, determination or decree Order is entered or issued, or becomes reasonably foreseeable to be entered or issued, in any proceeding or inquiry of any kind that would make consummation of the Arrangement transactions contemplated hereby in accordance with the terms of this Agreement unlawful or that would delay, restrain, prevent, enjoin prevent or otherwise prohibit materially delay consummation of the Transactions, any and all steps necessary to modify, reverse, suspend or remove such actual, anticipated or threatened injunction, decision, order, judgment, determination or decree so as to permit such consummation.
(6) Notwithstanding anything to the contrary contained in transactions contemplated by this Agreement, the Parent each Seller and Purchaser agrees to use its reasonable best efforts to take (and to cause its Subsidiaries to take) as promptly as practicable (i) any and all steps (including the appeal thereof, the posting of a bond or the taking of the steps contemplated by clause (i) of this paragraph) necessary to vacate, modify or advisable to avoid or eliminate each and every impediment and obtain all consents under the Antitrust Laws that may be required by any Governmental Entity suspend such Order so as to enable permit such consummation and (iii) use its reasonable best efforts to take all action necessary or reasonably required in order for ARCO and BP Amoco to obtain and to comply with the Provisional Consent Order, any final order of the FTC in respect thereof, the State Consent Order and the Charter and to consummate the transactions contemplated hereby in a manner consistent with the Provisional Consent Order, any final order of the FTC in respect thereof, the State Consent Order and the Charter, PROVIDED, that no party shall be required to take any such action if the result of such action would be to affect materially and adversely the economic benefits reasonably expected to be derived by such party from the consummation of the Transactions as promptly as practicable (and in any event no later than the Outside Date), including, as promptly as practicable, proposing, negotiating, accepting, committing to and effecting, by consent decrees, hold separate orders, trusts, or otherwise (and the entry into agreements with, and submission to orders of, the relevant Governmental Entity) (A) the sale, divestiture, license or grant of a right of use, disposition of, or holding separate of assets, businesses, rights, licenses or products or product lines of the Company, the Parent and/or their respective Subsidiaries and (B) operational or other restrictions or limitations) with respect to the Company, the Parent and their respective Affiliates (such steps in the foregoing clauses (A) and (B), (the “Regulatory Efforts Steps”), in each case as may be required in order to avoid the entry of, or to effect the dissolution of or vacate or lift, any Order (including any preliminary or permanent injunction), that would otherwise have the effect of preventing or materially delaying the consummation of Transactions and (ii) any and all actions necessary or advisable in order to ensure that (I) no requirement for any non-action by or consent or approval of any Governmental Entity with respect to any Antitrust Law, (II) no Order in any suit or proceeding with respect to any Antitrust Laws, and (III) no other matter relating to any Antitrust Laws would prevent or materially delay the consummation of the Transactions; provided, that, notwithstanding the foregoing or anything to the contrary contained in this Agreement, the Parties hereby agree and acknowledge that neither this Section 4.2(6) nor any other provisions in this Agreement shall require, or be construed to require, the Parent or the Company or any of their respective Subsidiaries or other Affiliates, in order to obtain any Required Regulatory Approvals under Antitrust Laws, to agree to, accept or implement any Regulatory Efforts Steps or other actions of the type described in the foregoing clause (ii) to the extent that such Regulatory Efforts Steps or other actions would constitute a Burdensome Condition; provided further that Parent can compel the Company and its Subsidiaries to take or agree to take any Regulatory Efforts Steps or other actions to the extent such Regulatory Efforts Steps would only take effect after the Effective Time.
(7) The obligations of the Company under this Section 4.2 shall not limit or modify its rights under Article 5. The obligations of the Company with respect to the Company Meeting and the Company Circular shall be governed by Section 2.3 and Section 2.4 and not this Section 4.2.
(8) Notwithstanding anything to the contrary herein or in the Plan of Arrangement, each document, instrument or agreement necessary or transactions contemplated to effectuate the steps set forth in Section 2.3(a) through Section 2.3(i), and Section 2.3(l) through Section 2.3(m) of the Plan of Arrangement (including the Funding Note, the Company Sub 2 Repayment Agreement, the Company Sub 2 Luxco Repayment Agreement and the Company Sub 3 Luxco Repayment Agreement (each as defined in the Plan of Arrangement)) shall be in form and substance satisfactory to the Parent and the Company, each acting reasonably. Without limiting the generality of the foregoing, no such document, instrument or agreement shall contain terms or conditions that would prevent or delay the consummation of the Arrangement or impose additional conditions with respect thereto.hereby
Appears in 2 contracts
Samples: Master Purchase and Sale Agreement (Phillips Petroleum Co), Master Purchase and Sale Agreement (Atlantic Richfield Co /De)
Filings; Other Actions; Notifications. (1a) Subject to the terms and conditions set forth in of this Agreement, the Parties Seller and Buyer shall cooperate with each other and use (and shall cause their respective Subsidiaries subsidiaries, and Seller’s and Buyer’s and their respective subsidiaries’ respective directors, managers, officers, stockholders, members and employees, to use) their respective commercially reasonable best efforts to take or cause to be taken all actions, and do or cause to be done all things, reasonably necessary, proper or advisable to consummate and make effective the Transactions as soon as reasonably practicable, including, subject to the provisions of this Section 4.2, preparing and filing as promptly as practicable all documentation to effect all necessary notices, reports and other filings and to obtain as promptly as reasonably practicable all consents, registrations, approvals, permits and authorizations necessary or advisable to be obtained from any Governmental Entity in order to consummate the Transactions, including the Required Regulatory Approvals. To the extent requested by the Parent, the Company shall use its reasonable best efforts, and shall cause each of its Subsidiaries to use its reasonable best efforts, to take or cause to be taken all actions, and do or cause to be done all things, reasonably necessary, proper or advisable on its part under this Agreement and Law applicable Laws to obtain satisfy the closing conditions set forth in Article VII as promptly soon as reasonably practicable practicable, including promptly preparing and filing, as practicable, all third party consents under Contracts of the Company documentation to effect all necessary notices, reports and its Subsidiaries that are other filings and to promptly obtain and maintain all consents, registrations, approvals, Permits and authorizations necessary or advisable to be obtained from any third party and/or any Governmental Authority (including any Gaming Authority) in order to consummate the Transactionstransactions contemplated by this Agreement (which shall include a jointly prepared detailed change-over memorandum in such form as may be required by any Gaming Authorities and submit it to the Gaming Authorities with sufficient time to allow their review and approval prior to the Second Closing Date); provided provided, that without limiting the Parent generality of the foregoing, Buyer shall submit all applicable initial applications and filings required under Gaming Laws to the relevant Gaming Authorities within forty-five (45) days after the date of this Agreement. Seller and Buyer shall cooperate with the Company in identifyingeach other and use (and shall cause their respective subsidiaries, and Seller’s and Buyer’s and their respective subsidiaries’ respective directors, managers, officers, stockholders, members and employees, to use) their respective commercially reasonable efforts to take or cause to be taken all actions, and do or cause to be done all things, reasonably necessary, proper or advisable on its part under this Agreement and applicable Laws to submit and diligently pursue approval and execution by NDOT of the Tenth Amendment to Highway Lease and Consent to Assignment and Encumbrance of Lease for Security in substantially the form agreed upon by Xxxxx and Seller prior to the extent reasonably requested by execution of this Agreement. Buyer and its Representatives and Affiliates shall act diligently and promptly to pursue such Gaming Approvals and other applicable Permits or approvals from any Governmental Authority in connection with the Company, obtaining such third party consentsmaking of all filings and submissions required hereby. Buyer shall use commercially reasonable efforts to schedule and attend any hearings or meetings with Government Authorities required to obtain the Gaming Approvals and other applicable Permits or approvals as promptly as possible. Subject to Law applicable Laws relating to the exchange of information information, Buyer and its compliance with the terms of this Agreement, the Parent Seller shall have the right to direct all matters with any Governmental Entity with respect to the Required Regulatory Approvals consistent with its obligations hereunder and, where reasonably requested by the Parent, the Company shall use its reasonable best efforts to make available its personnel and Representatives at reasonable times for meetings or telephone calls pertaining to such matters; provided that the Parent and, except for communications, submissions, filings and meetings with Governmental Entities in relation to the ICA, the Company shall: (i) have the right to review in advance and, to the extent practicablepracticable and upon the request of the other, each will consult with the other on and consider in good faith the views of the other in connection with, all of the information relating to the Parent Buyer or the CompanySeller, as the case may be, and any of their respective Subsidiariessubsidiaries, that appears in any filing made with, or written communication or materials submitted to, any third party and/or any Governmental Entity Authority (including any Government Antitrust/Gaming Entity) in connection with the Transactionstransactions contemplated by this Agreement, and (ii) provided, that in no event will Buyer or Seller be entitled to the extent permitted by such Governmental Entity, have the right to attend any meetings review confidential or telephone calls with any Governmental Entities regarding such matters. In exercising the foregoing rights, each privileged information of the Company and the Parent shall act reasonably and as promptly as practicableother (or one of their Affiliates). Notwithstanding anything herein to the contrary, Xxxxx shall determine the strategy to be pursued for obtaining, and lead any efforts to obtain, all necessary actions or nonactions with respect to consents, registrations, approvals, Permits and authorizations from any Governmental Authority necessary to consummate the transactions contemplated by this Agreement; provided, that Xxxxx agrees to take into consideration Seller’s reasonable views, suggestions and comments regarding such strategy and efforts. Nothing in this Agreement shall require a Party or its subsidiaries to take or agree to take any action with respect to its business or operations unless the contrary (other than Section 8.3)effectiveness of such agreement or action is conditioned upon First Closing, in no event shall the Company, the Parent or any of their respective Subsidiaries be required as to (x) make any payments requirements relating to any third parties if such payment is not contingent upon the occurrence Buyer’s acquisition of the Effective Time (other than payments to the Company’s Smooth Bourbon Interest, or the ParentSecond Closing, as to requirements relating to Buyer’s Representatives for services rendered in connection with the Transactions) or (y) concede anything of value if such concession is not contingent upon the occurrence acquisition of the Effective Time, in the case of the foregoing clauses (x) or (y), in order to obtain any consent, approval or waiver under Contracts of the Company and its Subsidiaries or of the Parent and its Subsidiaries from any PersonNugget Sparks Interest.
(2b) Without limiting Subject to applicable Laws and the generality of provisions in Section 4.2(15.09(a), each of the Parties shall as promptly as practicable, Buyer and in any event within 15 Business Days after the date hereof in the case of the filings under the HSR Act, the Competition Act and the ICA (provided that the Parent has received all information that it has requested from the Company and its Subsidiaries that is reasonably necessary or appropriate to prepare a filing), make all registrations and filings, and thereafter make any other required submissions with any Governmental Entity or other Persons necessary in connection with the consummation of the Transactions, including the filings required of them or their “ultimate parent entities” under Antitrust Laws. No Party shall voluntarily extend any waiting period under the Antitrust Laws or enter into any agreement with any Governmental Entity to delay or not to consummate the Transactions except with the prior written consent of the other Parties.
(3) The Company and the Parent Seller each shall, upon request by the other, furnish the other with all information concerning itself, its SubsidiariesAffiliates, directors, managers, officers and stockholders equityholders and such other matters as may be reasonably necessary or advisable in connection with any statement, filing, notice or application made by or on behalf of the ParentBuyer, the Company Seller or any of their respective Subsidiaries Affiliates to any third party and/or any Governmental Entity Authority in connection with the Transactions; providedtransactions contemplated hereby, however, that neither the Parent nor the Company is obligated to furnish to the other (other than to outside counsel of such other party on an “outside counsel only” basis) under this Section 4.2 any non-public information that is confidential or documentation that (x) is submitted with any such statement, filing, notice or application or (y) is unrelated to the Transactionsprivileged.
(4c) Subject to Law applicable Laws and as required by the instructions of any Governmental EntityAuthority, the Company Buyer and the Parent Seller each shall use commercially reasonable efforts to keep the other apprised of the status of matters relating to the completion of the Transactionstransactions contemplated hereby, including promptly updating the other party regarding any material developments in its discussions with any Government Antitrust/Gaming Entity and furnishing the other with copies of notices or other communications received by the Parent Buyer or the CompanySeller, as the case may be, or any of its Subsidiariessubsidiaries, from any third party and/or any Governmental Entity Authority with respect to such transactionsthe transactions contemplated hereby. Except with respect to routine communications with Gaming Authorities, as well as final copies neither Buyer nor Seller shall permit any of its Representatives to participate in any substantive telephone discussion or meeting with any Governmental Authority (including any Government Antitrust/Gaming Entity) in respect of any submissions filings, investigation or filings to, or material communications with, any Governmental Entities; provided that the Parent shall not be obligated to provide the Company other inquiry with communications, submissions and filings with Governmental Entities in relation respect to the ICA so long as transactions contemplated hereby unless, to the Parent keeps extent practicable, (i) it consults with the Company reasonably apprised of other Party in advance and (ii) unless prohibited by such Governmental Authority, gives the status thereofother Party the opportunity to attend and participate in such meeting or substantive telephone discussion.
(5d) Subject to the terms and conditions set forth in this Agreement, including this without limiting the generality of the other undertakings pursuant to Section 4.2(5)5.09, each of Seller (in the Company case of Section 5.09(d)(i) set forth below) and the Parent agrees Buyer (in all cases set forth below) (and each Party shall cause its subsidiaries and its and their respective directors, managers, officers, equityholders, members and employees to in respect of such provisions) agree to use commercially reasonable efforts to take or cause to be taken the following actions:
(ai) the prompt provision to each and every federal, state, local or foreign court or Governmental Entity Authority with jurisdiction over enforcement of any applicable antitrust or competition Laws or Gaming Laws (“Government Antitrust/Gaming Entity”) of non-privileged information and documents requested by any such Governmental Government Antitrust/Gaming Entity or that are necessary, proper or advisable to permit consummation of the Transactionstransactions contemplated by this Agreement;
(bii) the prompt use of its reasonable best efforts all actions reasonably necessary or advisable to avoid the entry of any permanent, preliminary or temporary injunction or other order, decree, decision, determination or judgment Order that would delay, restrain, prevent, enjoin or otherwise prohibit consummation of the Transactionstransactions contemplated by this Agreement and resolve, avoid, or eliminate impediments or objections, if any, that may be asserted with respect to the transactions contemplated by this Agreement under any antitrust or competition Law or any Gaming Law; and
provided, that, such commercially reasonable efforts shall not include (cx) the prompt use defense through litigation on the merits of its reasonable best efforts to take, in the event that any permanent, preliminary or temporary injunction, decision, order, judgment, determination or decree is entered or issued, or becomes reasonably foreseeable to be entered or issued, claim asserted in any court, agency or other proceeding or inquiry of by any kind that would make consummation of the Arrangement in accordance with the terms of this Agreement unlawful or that would Governmental Authority, seeking to delay, restrain, prevent, enjoin or otherwise prohibit consummation of such transactions, (y) the Transactionsproffer or agreement by Buyer or its subsidiaries of its willingness to sell, lease, license or otherwise dispose of, or hold separate pending such disposition, any and all steps necessary assets, rights, product lines, licenses, categories of assets or businesses or other operations, or interests therein, of Buyer, Xxxxx’s subsidiaries and/or the Company Entities or (z) taking or committing to modifytake actions that would limit Buyer, reverseBuyer’s subsidiaries and/or the Company Entities’ freedom of action with respect to, suspend or remove such actualits or their ability to retain any assets, anticipated properties, products, rights, services or threatened injunction, decision, order, judgment, determination businesses or decree so as to permit such consummation.any interest or interests therein; and
(6e) Notwithstanding anything With respect to the contrary contained in this Agreement, the Parent agrees to use its reasonable best efforts to take (all filings and to cause its Subsidiaries to take) as promptly as practicable (i) any and all steps necessary or advisable to avoid or eliminate each and every impediment and obtain all consents submissions under the Antitrust Laws that HSR Act as may be required by any Governmental Entity so as to enable of the Parties for the consummation of the Transactions transactions contemplated hereby, each of the Parties shall coordinate and cooperate with the other Parties in exchanging such information and assistance as promptly the other Parties hereto may reasonably request, provided that neither Party shall be obligated to share any privileged or confidential information to the other. Each of the Parties shall use commercially reasonable efforts to comply with any additional requests for information, including requests for production of documents and production of witnesses for interviews or depositions by any Government Antitrust/Gaming Entity. In addition, no Party shall extend any waiting period under the HSR Act or enter into any agreement with any Government Antitrust/Gaming Entity not to consummate the transactions contemplated hereby, except with the prior written consent of the other Party, which shall not be unreasonably withheld.
(f) From the date of this Agreement until the delivery of any Form 8-K Financial Statements (or, if this Agreement is terminated pursuant to Article VII, the date of such termination), to the extent that Buyer or Guarantor (such Persons, a “Requesting Acquiror”) reasonably determines that any financial statements of Seller or a Company are required to be filed with the SEC, including under Rule 3-05 or Rule 3-14 or Article 11 of Regulation S-X under the Securities Act of 1933, as practicable amended (and “Regulation S-X”) (such financial statements, “S-X Financial Statements”), (x) to satisfy such Requesting Acquiror’s reporting obligations on Current Reports on Form 8-K (or any amendments thereto) in connection with the transactions contemplated hereby as a result of the applicable Closing (such financial statements, “Form 8-K Financial Statements”), upon reasonable notice from such Requesting Acquiror at any event time after the date hereof but no later than the Outside tenth (10th) day following the applicable Closing Date, Seller shall, and prior to such Closing shall cause each Company to (in all cases at the Requesting Acquiror’s sole expense), use commercially reasonable efforts to assist the Requesting Acquiror in preparing such Form 8-K Financial Statements as soon as reasonably practical (but in no event later than the sixty-fifth (65th) day following such Closing Date), includingand (y) in connection with any registration statement, as promptly as practicableproxy statement, proposing, negotiating, accepting, committing to and effecting, by consent decrees, hold separate orders, trustsprospectus, or otherwise prospectus supplement filed with the SEC, or offering memorandum prepared by or on behalf of the Requesting Acquiror, Seller shall use commercially reasonable efforts prior to such Closing to cause each Company (at the Requesting Acquiror’s sole expense) to assist the Requesting Acquiror in preparing such S-X Financial Statements as soon as reasonably practical. From and after the entry into agreements withapplicable Closing, the Requesting Acquirors shall cause the Company Entities to provide Seller with access to the books and records and financial information and financial data as necessary for Seller to take the foregoing actions.
(g) Seller shall prior to or after the applicable Closing Date, and submission prior to orders ofthe applicable Closing shall and shall cause the Company Entities to, use commercially reasonable efforts, upon reasonable request of the relevant Governmental Entity) Requesting Acquiror prior to the applicable Closing, to
(A) provide reasonable assistance and cooperation with such Requesting Acquiror’s preparation of such financial statements (including by providing reasonable access to such financial information and financial data as shall be reasonably requested by the saleRequesting Acquiror or its Representatives in connection with the preparation of such financial statements) and any required pro forma financial information and pro forma financial statements or any required non-GAAP reconciliations, divestiturein each case, license or grant of a right of usein accordance with Regulation S-X, disposition of, or holding separate of assets, businesses, rights, licenses or products or product lines of the Company, the Parent and/or their respective Subsidiaries and (B) operational provide reasonable assistance to the Requesting Acquiror and its independent accounting firm in completing audits and the preparation of such financial statements and other financial information, (C) deliver to the Requesting Acquiror or other restrictions or limitationsits independent accounting firm, a customary representation letter signed by an authorized officer of the Company in such form as is reasonably required by the Requesting Acquiror’s independent accounting firm, and (D) to cause the Company Entities’ independent accounting firm to take the actions contemplated by Section 5.03(iv) with respect to the Company, the Parent and their respective Affiliates (such steps in the foregoing clauses (A) and (B), (the “Regulatory Efforts Steps”), in each case as may be required in order S-X Financial Statements or other financial statements or information prepared pursuant to avoid the entry of, or to effect the dissolution of or vacate or lift, any Order (including any preliminary or permanent injunction), that would otherwise have the effect of preventing or materially delaying the consummation of Transactions and (ii) any and all actions necessary or advisable in order to ensure that (I) no requirement for any non-action by or consent or approval of any Governmental Entity with respect to any Antitrust Law, (II) no Order in any suit or proceeding with respect to any Antitrust Laws, and (III) no other matter relating to any Antitrust Laws would prevent or materially delay the consummation of the Transactionsthis Section 5.09; provided, that, notwithstanding the foregoing or anything to the contrary contained that nothing in this Agreement, Section 5.09(g) shall unreasonably interfere with the Parties hereby agree and acknowledge that neither this Section 4.2(6) nor any other provisions in this Agreement shall require, business or be construed to require, operations of the Parent or the Company Seller or any of their respective Subsidiaries or other Affiliates, in order to obtain any Required Regulatory Approvals under Antitrust Laws, to agree to, accept or implement any Regulatory Efforts Steps or other actions of the type described in the foregoing clause (ii) to the extent that such Regulatory Efforts Steps or other actions would constitute a Burdensome Condition; provided further that Parent can compel the Company and its Subsidiaries to take or agree to take any Regulatory Efforts Steps or other actions to the extent such Regulatory Efforts Steps would only take effect after the Effective TimeCompany.
(7) The obligations of the Company under this Section 4.2 shall not limit or modify its rights under Article 5. The obligations of the Company with respect to the Company Meeting and the Company Circular shall be governed by Section 2.3 and Section 2.4 and not this Section 4.2.
(8) Notwithstanding anything to the contrary herein or in the Plan of Arrangement, each document, instrument or agreement necessary or contemplated to effectuate the steps set forth in Section 2.3(a) through Section 2.3(i), and Section 2.3(l) through Section 2.3(m) of the Plan of Arrangement (including the Funding Note, the Company Sub 2 Repayment Agreement, the Company Sub 2 Luxco Repayment Agreement and the Company Sub 3 Luxco Repayment Agreement (each as defined in the Plan of Arrangement)) shall be in form and substance satisfactory to the Parent and the Company, each acting reasonably. Without limiting the generality of the foregoing, no such document, instrument or agreement shall contain terms or conditions that would prevent or delay the consummation of the Arrangement or impose additional conditions with respect thereto.
Appears in 1 contract
Filings; Other Actions; Notifications. (1a) Subject to the terms and conditions set forth in of this Agreement, the Parties Seller and Buyer shall cooperate with each other and use (and shall cause their respective Subsidiaries subsidiaries, and Seller’s and Buyer’s and their respective subsidiaries’ respective directors, managers, officers, stockholders, members and employees, to use) their respective commercially reasonable best efforts to take or cause to be taken all actions, and do or cause to be done all things, reasonably necessary, proper or advisable to consummate and make effective the Transactions as soon as reasonably practicable, including, subject to the provisions of this Section 4.2, preparing and filing as promptly as practicable all documentation to effect all necessary notices, reports and other filings and to obtain as promptly as reasonably practicable all consents, registrations, approvals, permits and authorizations necessary or advisable to be obtained from any Governmental Entity in order to consummate the Transactions, including the Required Regulatory Approvals. To the extent requested by the Parent, the Company shall use its reasonable best efforts, and shall cause each of its Subsidiaries to use its reasonable best efforts, to take or cause to be taken all actions, and do or cause to be done all things, reasonably necessary, proper or advisable on its part under this Agreement and Law applicable Laws to obtain satisfy the closing conditions set forth in Article VII as promptly soon as reasonably practicable practicable, including promptly preparing and filing, as practicable, all third party consents under Contracts of the Company documentation to effect all necessary notices, reports and its Subsidiaries that are other filings and to promptly obtain and maintain all consents, registrations, approvals, Permits and authorizations necessary or advisable to be obtained from any third party and/or any Governmental Authority (including any Gaming Authority) in order to consummate the Transactionstransactions contemplated by this Agreement (which shall include a jointly prepared detailed change-over memorandum in such form as may be required by any Gaming Authorities and submit it to the Gaming Authorities with sufficient time to allow their review and approval prior to the Second Closing Date); provided provided, that without limiting the Parent generality of the foregoing, Buyer shall submit all applicable initial applications and filings required under Gaming Laws to the relevant Gaming Authorities within forty-five (45) days after the date of this Agreement. Seller and Buyer shall cooperate with the Company in identifyingeach other and use (and shall cause their respective subsidiaries, and Seller’s and Buyer’s and their respective subsidiaries’ respective directors, managers, officers, stockholders, members and employees, to use) their respective commercially reasonable efforts to take or cause to be taken all actions, and do or cause to be done all things, reasonably necessary, proper or advisable on its part under this Agreement and applicable Laws to submit and diligently pursue approval and execution by NDOT of the Tenth Amendment to Highway Lease and Consent to Assignment and Encumbrance of Lease for Security in substantially the form agreed upon by Buyer and Seller prior to the extent reasonably requested by execution of this Agreement. Buyer and its Representatives and Affiliates shall act diligently and promptly to pursue such Gaming Approvals and other applicable Permits or approvals from any Governmental Authority in connection with the Company, obtaining such third party consentsmaking of all filings and submissions required hereby. Buyer shall use commercially reasonable efforts to schedule and attend any hearings or meetings with Government Authorities required to obtain the Gaming Approvals and other applicable Permits or approvals as promptly as possible. Subject to Law applicable Laws relating to the exchange of information information, Buyer and its compliance with the terms of this Agreement, the Parent Seller shall have the right to direct all matters with any Governmental Entity with respect to the Required Regulatory Approvals consistent with its obligations hereunder and, where reasonably requested by the Parent, the Company shall use its reasonable best efforts to make available its personnel and Representatives at reasonable times for meetings or telephone calls pertaining to such matters; provided that the Parent and, except for communications, submissions, filings and meetings with Governmental Entities in relation to the ICA, the Company shall: (i) have the right to review in advance and, to the extent practicablepracticable and upon the request of the other, each will consult with the other on and consider in good faith the views of the other in connection with, all of the information relating to the Parent Buyer or the CompanySeller, as the case may be, and any of their respective Subsidiariessubsidiaries, that appears in any filing made with, or written communication or materials submitted to, any third party and/or any Governmental Entity Authority (including any Government Antitrust/Gaming Entity) in connection with the Transactionstransactions contemplated by this Agreement, and (ii) provided, that in no event will Buyer or Seller be entitled to the extent permitted by such Governmental Entity, have the right to attend any meetings review confidential or telephone calls with any Governmental Entities regarding such matters. In exercising the foregoing rights, each privileged information of the Company and the Parent shall act reasonably and as promptly as practicableother (or one of their Affiliates). Notwithstanding anything herein to the contrary, Buyer shall determine the strategy to be pursued for obtaining, and lead any efforts to obtain, all necessary actions or nonactions with respect to consents, registrations, approvals, Permits and authorizations from any Governmental Authority necessary to consummate the transactions contemplated by this Agreement; provided, that Buyer agrees to take into consideration Seller’s reasonable views, suggestions and comments regarding such strategy and efforts. Nothing in this Agreement shall require a Party or its subsidiaries to take or agree to take any action with respect to its business or operations unless the contrary (other than Section 8.3)effectiveness of such agreement or action is conditioned upon First Closing, in no event shall the Company, the Parent or any of their respective Subsidiaries be required as to (x) make any payments requirements relating to any third parties if such payment is not contingent upon the occurrence Buyer’s acquisition of the Effective Time (other than payments to the Company’s Smooth Bourbon Interest, or the ParentSecond Closing, as to requirements relating to Buyer’s Representatives for services rendered in connection with the Transactions) or (y) concede anything of value if such concession is not contingent upon the occurrence acquisition of the Effective Time, in the case of the foregoing clauses (x) or (y), in order to obtain any consent, approval or waiver under Contracts of the Company and its Subsidiaries or of the Parent and its Subsidiaries from any PersonNugget Sparks Interest.
(2b) Without limiting Subject to applicable Laws and the generality of provisions in Section 4.2(15.09(a), each of the Parties shall as promptly as practicable, Buyer and in any event within 15 Business Days after the date hereof in the case of the filings under the HSR Act, the Competition Act and the ICA (provided that the Parent has received all information that it has requested from the Company and its Subsidiaries that is reasonably necessary or appropriate to prepare a filing), make all registrations and filings, and thereafter make any other required submissions with any Governmental Entity or other Persons necessary in connection with the consummation of the Transactions, including the filings required of them or their “ultimate parent entities” under Antitrust Laws. No Party shall voluntarily extend any waiting period under the Antitrust Laws or enter into any agreement with any Governmental Entity to delay or not to consummate the Transactions except with the prior written consent of the other Parties.
(3) The Company and the Parent Seller each shall, upon request by the other, furnish the other with all information concerning itself, its SubsidiariesAffiliates, directors, managers, officers and stockholders equityholders and such other matters as may be reasonably necessary or advisable in connection with any statement, filing, notice or application made by or on behalf of the ParentBuyer, the Company Seller or any of their respective Subsidiaries Affiliates to any third party and/or any Governmental Entity Authority in connection with the Transactions; providedtransactions contemplated hereby, however, that neither the Parent nor the Company is obligated to furnish to the other (other than to outside counsel of such other party on an “outside counsel only” basis) under this Section 4.2 any non-public information that is confidential or documentation that (x) is submitted with any such statement, filing, notice or application or (y) is unrelated to the Transactions.privileged. 60
(4c) Subject to Law applicable Laws and as required by the instructions of any Governmental EntityAuthority, the Company Buyer and the Parent Seller each shall use commercially reasonable efforts to keep the other apprised of the status of matters relating to the completion of the Transactionstransactions contemplated hereby, including promptly updating the other party regarding any material developments in its discussions with any Government Antitrust/Gaming Entity and furnishing the other with copies of notices or other communications received by the Parent Buyer or the CompanySeller, as the case may be, or any of its Subsidiariessubsidiaries, from any third party and/or any Governmental Entity Authority with respect to such transactionsthe transactions contemplated hereby. Except with respect to routine communications with Gaming Authorities, as well as final copies neither Buyer nor Seller shall permit any of its Representatives to participate in any substantive telephone discussion or meeting with any Governmental Authority (including any Government Antitrust/Gaming Entity) in respect of any submissions filings, investigation or filings to, or material communications with, any Governmental Entities; provided that the Parent shall not be obligated to provide the Company other inquiry with communications, submissions and filings with Governmental Entities in relation respect to the ICA so long as transactions contemplated hereby unless, to the Parent keeps extent practicable, (i) it consults with the Company reasonably apprised of other Party in advance and (ii) unless prohibited by such Governmental Authority, gives the status thereofother Party the opportunity to attend and participate in such meeting or substantive telephone discussion.
(5d) Subject to the terms and conditions set forth in this Agreement, including this without limiting the generality of the other undertakings pursuant to Section 4.2(5)5.09, each of Seller (in the Company case of Section 5.09(d)(i) set forth below) and the Parent agrees Buyer (in all cases set forth below) (and each Party shall cause its subsidiaries and its and their respective directors, managers, officers, equityholders, members and employees to in respect of such provisions) agree to use commercially reasonable efforts to take or cause to be taken the following actions:
(ai) the prompt provision to each and every federal, state, local or foreign court or Governmental Entity Authority with jurisdiction over enforcement of any applicable antitrust or competition Laws or Gaming Laws (“Government Antitrust/Gaming Entity”) of non-privileged information and documents requested by any such Governmental Government Antitrust/Gaming Entity or that are necessary, proper or advisable to permit consummation of the Transactionstransactions contemplated by this Agreement;
(bii) the prompt use of its reasonable best efforts all actions reasonably necessary or advisable to avoid the entry of any permanent, preliminary or temporary injunction or other order, decree, decision, determination or judgment Order that would delay, restrain, prevent, enjoin or otherwise prohibit consummation of the Transactionstransactions contemplated by this Agreement and resolve, avoid, or eliminate impediments or objections, if any, that may be asserted with respect to the transactions contemplated by this Agreement under any antitrust or competition Law or any Gaming Law; and
provided, that, such commercially reasonable efforts shall not include (cx) the prompt use defense through litigation on the merits of its reasonable best efforts to take, in the event that any permanent, preliminary or temporary injunction, decision, order, judgment, determination or decree is entered or issued, or becomes reasonably foreseeable to be entered or issued, claim asserted in any court, agency or other proceeding or inquiry of by any kind that would make consummation of the Arrangement in accordance with the terms of this Agreement unlawful or that would Governmental Authority, seeking to delay, restrain, prevent, enjoin or otherwise prohibit consummation of such transactions, (y) the Transactionsproffer or agreement by Buyer or its subsidiaries of its willingness to sell, lease, license or otherwise dispose of, or hold separate pending such disposition, any assets, rights, product lines, licenses, categories of assets or businesses or other operations, or interests therein, of Buyer, Buyer’s subsidiaries and/or the Company Entities or (z) taking or committing to take actions that would limit Buyer, Buyer’s subsidiaries and/or the Company Entities’ freedom of action with respect to, or its or their ability to retain any assets, properties, products, rights, services or businesses or any interest or interests therein; and all steps necessary to modify, reverse, suspend or remove such actual, anticipated or threatened injunction, decision, order, judgment, determination or decree so as to permit such consummation.61
(6e) Notwithstanding anything With respect to the contrary contained in this Agreement, the Parent agrees to use its reasonable best efforts to take (all filings and to cause its Subsidiaries to take) as promptly as practicable (i) any and all steps necessary or advisable to avoid or eliminate each and every impediment and obtain all consents submissions under the Antitrust Laws that HSR Act as may be required by any Governmental Entity so as to enable of the Parties for the consummation of the Transactions transactions contemplated hereby, each of the Parties shall coordinate and cooperate with the other Parties in exchanging such information and assistance as promptly the other Parties hereto may reasonably request, provided that neither Party shall be obligated to share any privileged or confidential information to the other. Each of the Parties shall use commercially reasonable efforts to comply with any additional requests for information, including requests for production of documents and production of witnesses for interviews or depositions by any Government Antitrust/Gaming Entity. In addition, no Party shall extend any waiting period under the HSR Act or enter into any agreement with any Government Antitrust/Gaming Entity not to consummate the transactions contemplated hereby, except with the prior written consent of the other Party, which shall not be unreasonably withheld.
(f) From the date of this Agreement until the delivery of any Form 8-K Financial Statements (or, if this Agreement is terminated pursuant to Article VII, the date of such termination), to the extent that Buyer or Guarantor (such Persons, a “Requesting Acquiror”) reasonably determines that any financial statements of Seller or a Company are required to be filed with the SEC, including under Rule 3-05 or Rule 3-14 or Article 11 of Regulation S-X under the Securities Act of 1933, as practicable amended (and “Regulation S-X”) (such financial statements, “S-X Financial Statements”), (x) to satisfy such Requesting Acquiror’s reporting obligations on Current Reports on Form 8-K (or any amendments thereto) in connection with the transactions contemplated hereby as a result of the applicable Closing (such financial statements, “Form 8-K Financial Statements”), upon reasonable notice from such Requesting Acquiror at any event time after the date hereof but no later than the Outside tenth (10th) day following the applicable Closing Date, Seller shall, and prior to such Closing shall cause each Company to (in all cases at the Requesting Acquiror’s sole expense), use commercially reasonable efforts to assist the Requesting Acquiror in preparing such Form 8-K Financial Statements as soon as reasonably practical (but in no event later than the sixty-fifth (65th) day following such Closing Date), includingand (y) in connection with any registration statement, as promptly as practicableproxy statement, proposing, negotiating, accepting, committing to and effecting, by consent decrees, hold separate orders, trustsprospectus, or otherwise prospectus supplement filed with the SEC, or offering memorandum prepared by or on behalf of the Requesting Acquiror, Seller shall use commercially reasonable efforts prior to such Closing to cause each Company (at the Requesting Acquiror’s sole expense) to assist the Requesting Acquiror in preparing such S-X Financial Statements as soon as reasonably practical. From and after the entry into agreements withapplicable Closing, the Requesting Acquirors shall cause the Company Entities to provide Seller with access to the books and records and financial information and financial data as necessary for Seller to take the foregoing actions.
(g) Seller shall prior to or after the applicable Closing Date, and submission prior to orders ofthe applicable Closing shall and shall cause the Company Entities to, use commercially reasonable efforts, upon reasonable request of the relevant Governmental Entity) Requesting Acquiror prior to the applicable Closing, to (A) provide reasonable assistance and cooperation with such Requesting Acquiror’s preparation of such financial statements (including by providing reasonable access to such financial information and financial data as shall be reasonably requested by the saleRequesting Acquiror or its Representatives in connection with the preparation of such financial statements) and any required pro forma financial information and pro forma financial statements or any required non-GAAP reconciliations, divestiturein each case, license or grant of a right of usein accordance with Regulation S-X, disposition of, or holding separate of assets, businesses, rights, licenses or products or product lines of the Company, the Parent and/or their respective Subsidiaries and (B) operational provide reasonable assistance to the Requesting Acquiror and its independent accounting firm in completing audits and the preparation of such financial statements and other financial information, (C) deliver to the Requesting Acquiror or other restrictions or limitationsits independent accounting firm, a customary representation letter signed by an authorized officer of the Company in such form as is reasonably required by the Requesting 62 Acquiror’s independent accounting firm, and (D) to cause the Company Entities’ independent accounting firm to take the actions contemplated by Section 5.03(iv) with respect to the Company, the Parent and their respective Affiliates (such steps in the foregoing clauses (A) and (B), (the “Regulatory Efforts Steps”), in each case as may be required in order S-X Financial Statements or other financial statements or information prepared pursuant to avoid the entry of, or to effect the dissolution of or vacate or lift, any Order (including any preliminary or permanent injunction), that would otherwise have the effect of preventing or materially delaying the consummation of Transactions and (ii) any and all actions necessary or advisable in order to ensure that (I) no requirement for any non-action by or consent or approval of any Governmental Entity with respect to any Antitrust Law, (II) no Order in any suit or proceeding with respect to any Antitrust Laws, and (III) no other matter relating to any Antitrust Laws would prevent or materially delay the consummation of the Transactionsthis Section 5.09; provided, that, notwithstanding the foregoing or anything to the contrary contained that nothing in this Agreement, Section 5.09(g) shall unreasonably interfere with the Parties hereby agree and acknowledge that neither this Section 4.2(6) nor any other provisions in this Agreement shall require, business or be construed to require, operations of the Parent or the Company Seller or any of their respective Subsidiaries or other Affiliates, in order to obtain any Required Regulatory Approvals under Antitrust Laws, to agree to, accept or implement any Regulatory Efforts Steps or other actions of the type described in the foregoing clause (ii) to the extent that such Regulatory Efforts Steps or other actions would constitute a Burdensome Condition; provided further that Parent can compel the Company and its Subsidiaries to take or agree to take any Regulatory Efforts Steps or other actions to the extent such Regulatory Efforts Steps would only take effect after the Effective TimeCompany.
(7) The obligations of the Company under this Section 4.2 shall not limit or modify its rights under Article 5. The obligations of the Company with respect to the Company Meeting and the Company Circular shall be governed by Section 2.3 and Section 2.4 and not this Section 4.2.
(8) Notwithstanding anything to the contrary herein or in the Plan of Arrangement, each document, instrument or agreement necessary or contemplated to effectuate the steps set forth in Section 2.3(a) through Section 2.3(i), and Section 2.3(l) through Section 2.3(m) of the Plan of Arrangement (including the Funding Note, the Company Sub 2 Repayment Agreement, the Company Sub 2 Luxco Repayment Agreement and the Company Sub 3 Luxco Repayment Agreement (each as defined in the Plan of Arrangement)) shall be in form and substance satisfactory to the Parent and the Company, each acting reasonably. Without limiting the generality of the foregoing, no such document, instrument or agreement shall contain terms or conditions that would prevent or delay the consummation of the Arrangement or impose additional conditions with respect thereto.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Century Casinos Inc /Co/)
Filings; Other Actions; Notifications. (1a) Subject to the terms and conditions set forth in this Agreement, Parent, Merger Sub and the Parties Sellers shall, and shall cause their respective Affiliates to, cooperate with each other and use (and shall cause their respective Subsidiaries to use) their respective reasonable best efforts to take or cause to be taken all actions, and do or cause to be done all things, reasonably necessary, proper or advisable on their part under this Agreement and applicable Law to consummate and make effective the Transactions as soon as reasonably practicable, including, subject to the provisions of this Section 4.2, including preparing and filing as promptly as practicable all documentation to effect all necessary notices, reports and other filings and to obtain as promptly as reasonably practicable all consents, registrations, approvals, permits and authorizations necessary or advisable to be obtained from any third party and/or any Governmental Entity Authority in order to consummate the Transactions, including the Required Regulatory Approvals. To the extent requested not prohibited by applicable Law and subject to Section 5.02, each of Parent and its Affiliates, on the Parent, the Company shall use its reasonable best effortsone hand, and shall cause each of its Subsidiaries to use its reasonable best effortsthe Sellers and their Affiliates (including the Company), to take or cause to be taken all actionson the other hand, and do or cause to be done all things, reasonably necessary, proper or advisable on its part under this Agreement and Law to obtain as promptly as reasonably practicable all third party consents under Contracts of the Company and its Subsidiaries that are necessary or advisable to be obtained in order to consummate the Transactions; provided that the Parent shall cooperate with the Company each other in identifying, and to the extent reasonably requested by the Company, obtaining such third party consents. Subject to Law relating to the exchange of information and its compliance connection with the terms matters contemplated by this Section 5.01 and Section 5.02 including (i) with respect to determining whether any action taken by or in respect of, or filing with, any Governmental Authority, is required, (ii) promptly notifying the other of, and, if in writing, furnishing the other with copies of this Agreement(or, in the Parent shall have case of material oral communications, advising the right to direct all matters other orally of) any communications from or with any Governmental Entity Authority with respect to the Required Regulatory Approvals consistent with its obligations hereunder andTransactions, where reasonably requested by (iii) permitting the Parent, the Company shall use its reasonable best efforts to make available its personnel and Representatives at reasonable times for meetings or telephone calls pertaining to such matters; provided that the Parent and, except for communications, submissions, filings and meetings with Governmental Entities in relation to the ICA, the Company shall: (i) have the right other to review and discuss in advance andadvance, to the extent practicable, consult with the other on and consider considering in good faith the views of the other in connection with, all of the information relating to the Parent any proposed written (or the Companyany material proposed oral) communication with any such Governmental Authority, as the case may be(iv) not participating, and not permitting any of their respective Subsidiariesits agents or representatives to participate, that appears in any filing made withmeeting with any such Governmental Authority unless it notifies the other in advance and, or written materials submitted to, any third party and/or any Governmental Entity in connection with the Transactions, and (ii) to the extent permitted by applicable Law and such Governmental EntityAuthority, have gives the right other the opportunity to attend and participate thereat, (v) furnishing the other with copies of all correspondence, filings and communications (and memoranda setting forth the substance thereof) between it and any meetings or telephone calls such Governmental Authority with any Governmental Entities regarding such matters. In exercising the foregoing rights, each of the Company and the Parent shall act reasonably and as promptly as practicable. Notwithstanding anything in respect to this Agreement to the contrary and Transactions (other than Section 8.3), in no event shall the Company, the Parent or any of their respective Subsidiaries be required to (x) make any payments except that with respect to any third parties if such payment is not contingent upon the occurrence of the Effective Time (other than payments filing submitted pursuant to the Company’s or the Parent’s Representatives for services rendered in connection with the Transactions) or (y) concede anything of value if such concession is not contingent upon the occurrence of the Effective Time, in the case of the foregoing clauses (x) or (y), in order to obtain any consent, approval or waiver under Contracts of the Company and its Subsidiaries or of the Parent and its Subsidiaries from any Person.
(2) Without limiting the generality of Section 4.2(1), each of the Parties shall as promptly as practicable, and in any event within 15 Business Days after the date hereof in the case of the filings under the HSR Act, the Competition Act Parties agree to limit any shared material to Items 1-3 and the ICA (provided that NAICS codes of the Parent has received all information that it has requested from the Company Notification and its Subsidiaries that is reasonably necessary or appropriate to prepare a filingReport Form), make all registrations and filings, (vi) cooperating with the other to furnish the other Parties with such necessary information and thereafter make any reasonable assistance as the other required submissions with any Governmental Entity or other Persons necessary party may reasonably request in connection with the consummation parties’ mutual cooperation in preparing any necessary filings or submissions of the Transactionsinformation to any such Governmental Authority. The Parties agree that with respect to any material exchanged pursuant to this Section 5.01 or Section 5.02, including the filings required of them such material may be redacted to protect competitively sensitive information or their “ultimate parent entities” under Antitrust Laws. No Party shall voluntarily extend any waiting period under the Antitrust Laws or enter into any agreement applicable privileges in accordance with any Governmental Entity to delay or not to consummate the Transactions except with the prior written consent of the other Partiesapplicable Laws.
(3) The Company and the Parent each shall, upon request by the other, furnish the other with all information concerning itself, its Subsidiaries, directors, officers and stockholders and such other matters as may be reasonably necessary or advisable in connection with any statement, filing, notice or application made by or on behalf of the Parent, the Company or any of their respective Subsidiaries to any third party and/or any Governmental Entity in connection with the Transactions; provided, however, that neither the Parent nor the Company is obligated to furnish to the other (other than to outside counsel of such other party on an “outside counsel only” basis) under this Section 4.2 any non-public information or documentation that (x) is submitted with any such statement, filing, notice or application or (y) is unrelated to the Transactions.
(4b) Subject to applicable Law and as required by any Governmental EntityAuthority, each of Parent and its Affiliates, on the Company one hand, and the Parent each Sellers and their Affiliates (including the Company), on the one hand, shall keep the other apprised of the status of matters relating to completion of the Transactionstransactions contemplated by this Agreement, including promptly furnishing the other with copies of notices or other communications received by Parent, the Parent Sellers or the Companytheir respective Affiliates, as the case may be, or any of its Subsidiaries, from any third party and/or any Governmental Entity Authority with respect to the Transactions. After the Closing, at the request of a Party, the other Parties shall cooperate and use commercially reasonable efforts to carry out the intent of this Agreement, and each will execute and deliver such transactionsother instruments of conveyance, as well as final copies of any submissions or filings toassignment, or material communications with, any Governmental Entities; provided that the Parent shall not be obligated to provide the Company with communications, submissions transfer and filings with Governmental Entities in relation to the ICA so long delivery and take such other actions as the Parent keeps other reasonably may request in order to consummate, complete and carry out the Company reasonably apprised of the status thereofTransactions.
(5c) Subject to After the terms and conditions set forth in this Agreement, including this Section 4.2(5)Closing, each of the Company Party agrees that it will reasonably cooperate with and the Parent agrees to take make available (or cause to be taken made available) to the following actions:
(a) other Party, during normal business hours, all books, records and information retained or remaining in existence after the prompt provision to each and every federalClosing Date which are necessary or useful in connection with any Tax Contest, state, local any litigation or foreign court investigation or Governmental Entity with jurisdiction over enforcement of any applicable antitrust or competition Laws of non-privileged information and documents requested by other matter requiring any such Governmental Entity books, records or that are necessary, proper or advisable to permit consummation of the Transactions;
(b) the prompt use of its information for any reasonable best efforts to avoid the entry of any permanent, preliminary or temporary injunction or other order, decree, decision, determination or judgment that would delay, restrain, prevent, enjoin or otherwise prohibit consummation of the Transactions; and
(c) the prompt use of its reasonable best efforts to take, in the event that any permanent, preliminary or temporary injunction, decision, order, judgment, determination or decree is entered or issued, or becomes reasonably foreseeable to be entered or issued, business purpose but in any proceeding or inquiry of any kind that would make consummation of the Arrangement in accordance with the terms of this Agreement unlawful or that would delay, restrain, prevent, enjoin or otherwise prohibit consummation of the Transactions, any and all steps necessary to modify, reverse, suspend or remove such actual, anticipated or threatened injunction, decision, order, judgment, determination or decree so as to permit such consummation.
(6) Notwithstanding anything case only primarily relating to the contrary contained in this Agreement, the Parent agrees to use its reasonable best efforts to take (and to cause its Subsidiaries to take) as promptly as practicable (i) any and all steps necessary or advisable to avoid or eliminate each and every impediment and obtain all consents under the Antitrust Laws that may be required by any Governmental Entity so as to enable the consummation of the Transactions as promptly as practicable (and in any event no later than the Outside Date), including, as promptly as practicable, proposing, negotiating, accepting, committing to and effecting, by consent decrees, hold separate orders, trusts, or otherwise (and the entry into agreements with, and submission to orders of, the relevant Governmental Entity) (A) the sale, divestiture, license or grant of a right of use, disposition of, or holding separate of assets, businesses, rights, licenses or products or product lines business of the Company, the Parent and/or their respective Subsidiaries and (B) operational or other restrictions or limitations) with respect to the Company, the Parent and their respective Affiliates (such steps in the foregoing clauses (A) and (B), (the “Regulatory Efforts Steps”), in each case as may be required in order to avoid the entry of, or to effect the dissolution of or vacate or lift, any Order (including any preliminary or permanent injunction), that would otherwise have the effect of preventing or materially delaying the consummation of Transactions and (ii) any and all actions necessary or advisable in order to ensure that (I) no requirement for any non-action by or consent or approval of any Governmental Entity with respect to any Antitrust Law, (II) no Order in any suit or proceeding with respect to any Antitrust Laws, and (III) no other matter relating to any Antitrust Laws would prevent or materially delay the consummation of the Transactions; provided, that, notwithstanding the foregoing or anything to the contrary contained in this Agreement, the Parties hereby agree and acknowledge that neither this Section 4.2(6) nor any other provisions in this Agreement shall require, or be construed to require, the Parent or the Company or any of their respective Subsidiaries or other Affiliates, in order to obtain any Required Regulatory Approvals under Antitrust Laws, to agree to, accept or implement any Regulatory Efforts Steps or other actions of the type described in the foregoing clause (ii) to the extent that such Regulatory Efforts Steps or other actions would constitute a Burdensome Condition; provided further that Parent can compel the Company and its Subsidiaries to take or agree to take any Regulatory Efforts Steps or other actions to the extent such Regulatory Efforts Steps would only take effect after the Effective Time.
(7) The obligations of the Company under this Section 4.2 shall not limit or modify its rights under Article 5. The obligations of the Company with respect to the Company Meeting and the Company Circular shall be governed by Section 2.3 and Section 2.4 and not this Section 4.2.
(8) Notwithstanding anything to the contrary herein or in the Plan of Arrangement, each document, instrument or agreement necessary or contemplated to effectuate the steps set forth in Section 2.3(a) through Section 2.3(i), and Section 2.3(l) through Section 2.3(m) of the Plan of Arrangement (including the Funding Note, the Company Sub 2 Repayment Agreement, the Company Sub 2 Luxco Repayment Agreement and the Company Sub 3 Luxco Repayment Agreement (each as defined in the Plan of Arrangement)) shall be in form and substance satisfactory to the Parent and the Company, each acting reasonably. Without limiting the generality of the foregoing, no such document, instrument or agreement shall contain terms or conditions that would prevent or delay the consummation of the Arrangement or impose additional conditions with respect thereto.
Appears in 1 contract
Samples: Merger Agreement (Envestnet, Inc.)
