Further Action; Efforts. (a) Subject to the terms and conditions of this Agreement, each party shall use reasonable efforts to take, or cause to be taken, all actions and to use reasonable efforts to do, or cause to be done, and assist and cooperate with the other parties in doing, all things reasonably necessary, proper or advisable under this Agreement and applicable Law to satisfy the conditions to the completion of the Sale and, except as prohibited or required by any Governmental Order, to consummate as soon as reasonably practicable the Sale and the other transactions contemplated by this Agreement in accordance with the terms hereof and, except as prohibited or required by any Governmental Order, shall not, and it shall cause its Representatives not to, take any action that could be reasonably expected to materially impede or interfere with, materially delay, materially postpone or materially and adversely affect the consummation of the Sale or the other transactions contemplated by this Agreement. (b) In connection with and without limiting the foregoing, each party shall provide, or cause to be provided, all necessary notices, applications, requests and information to, and enter into discussions with, each Governmental Entity from whom any consent, approval, authorization or other action or non-action is required to be obtained in order to consummate the Sale or the other transactions contemplated by this Agreement or in connection herewith (collectively, the “Governmental Consents”), use reasonable efforts to obtain all such Governmental Consents and, except as prohibited or required by any Governmental Order, to eliminate each and every other impediment that may be asserted by any Governmental Entity with respect to the Sale or the other transactions contemplated by this Agreement, in each case so as to enable the Sale and the other transactions contemplated hereby to occur as soon as reasonably practicable. Without limitation of the foregoing sentence, Purchaser and its Affiliates shall be responsible for all filing fees under the HSR Act payable in connection with the Sale. (c) In connection with and without limiting the foregoing, Purchaser shall provide, or cause to be provided, all necessary notices and information to, and enter into discussions with, any Person (other than any Governmental Entity) from whom any Consent is required to be obtained in connection with the Sale or the other transactions contemplated by this Agreement and use reasonable efforts to obtain all such Consents, and Seller will provide reasonable cooperation to Purchaser, at Purchaser’s expense, in promptly seeking to obtain all such Consents. Purchaser shall be responsible for all costs and expenses to obtain such Consents pursuant to this Section 5.4(c). If a Consent to the assignment by GSI or any of its Subsidiaries of any such Contract is obtained, Purchaser shall not, and shall not permit any of the Purchased Entities to, (i) amend such Contract in a manner that would increase the Liability of GSI or such Subsidiary thereunder or (ii) renew, expand or enter into any extension of any such Contract unless GSI or such Subsidiary has been released of all its Liabilities under or relating to the Contract in question. (d) In connection with and without limiting the generality of the foregoing, each party shall (i) make or cause to be made, in consultation and cooperation with the other parties, all necessary and appropriate registrations, declarations, notices and filings relating to or in connection with the Sale and the other transactions contemplated by this Agreement with the relevant Governmental Entities under all applicable Antitrust Laws; (ii) use reasonable efforts to furnish to the other parties all reasonable assistance, cooperation and information required for any such registration, declaration, notice or filing and in order to achieve the effects set forth in Section 5.4(b); (iii) give the other parties reasonable prior notice of any such registration, declaration, notice or filing and, to the extent reasonably practicable, of any material communication with any Governmental Entity with respect to applicable Antitrust Laws regarding the Sale or the other transactions contemplated hereby (including with respect to any of the actions referred to in Section 5.4(b)), and permit the other parties to review and discuss in advance, and consider in good faith the views of, and secure the participation of, the other parties in connection with, any such registration, declaration, notice, filing or communication; (iv) respond as promptly as practicable under the circumstances to any inquiries received from any Governmental Entity with respect to applicable Antitrust Laws regarding the Sale or the other transactions contemplated hereby; (v) unless prohibited by applicable Law or by the applicable Governmental Entity, (A) to the extent reasonably practicable, not participate in or attend any meeting, or engage in any material substantive conversation with any Governmental Entity with respect to applicable Antitrust Laws regarding the Sale or the other transactions contemplated hereby (including with respect to any of the actions referred to in Section 5.4(b)) without the other party hereto, (B) to the extent reasonably practicable, give the other party hereto reasonable prior notice of any such meeting or conversation, (C) in the event one party is prohibited by applicable Law or by the applicable Governmental Entity from participating or attending any such meeting or engaging in any such conversation, keep the other parties reasonably apprised with respect thereto, (D) cooperate in the filing of any substantive memoranda, white papers, filings, correspondence or other written communications explaining or defending this Agreement, the Sale or the other transactions contemplated hereby and thereby, articulating any regulatory or competitive argument, and/or responding to requests or objections made by any Governmental Entity under applicable Antitrust Laws, and (E) furnish the other party hereto with copies of all material correspondence, filings and communications (and memoranda setting forth the substance thereof) between it and its Representatives, on the one hand, and any Governmental Entity or members of any Governmental Entity’s staff, on the other hand, with respect to applicable Antitrust Laws that concern this Agreement, the Sale or the other transactions contemplated hereby and thereby. (e) In the event that any Action is instituted (or threatened to be instituted) by a Governmental Entity or private party challenging any transaction contemplated by this Agreement, each party shall, except as prohibited or required by any Governmental Order, (i) provide reasonable cooperation to the other party hereto and use its respective reasonable efforts to contest and resist any such Action and to have vacated, lifted, reversed or overturned any decree, judgment, injunction or other Governmental Order, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents or restricts consummation of the transactions contemplated by this Agreement, and (ii) at its own cost and expense, defend any such Actions against it or its Affiliates in connection with the transactions contemplated by this Agreement.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Gsi Commerce Inc), Stock Purchase Agreement (Gsi Commerce Inc)
Further Action; Efforts. (a) Subject to Upon the terms and subject to the conditions of set forth in this Agreement, each party of the parties shall and shall cause each of their respective Subsidiaries and their respective Affiliates to use its reasonable best efforts to take, or cause to be taken, all actions actions, and to use reasonable efforts to do, or cause to be done, and to reasonably assist and cooperate with the other parties party in doing, all things reasonably necessary, proper or advisable under this Agreement and applicable Law to satisfy the conditions to the completion of the Sale andconsummate and make effective, except as prohibited or required by any Governmental Order, to consummate as soon promptly as reasonably practicable the Sale and the other transactions contemplated by this Agreement in accordance with the terms hereof and, except as prohibited or required by any Governmental Order, shall not, and it shall cause its Representatives not to, take any action that could be reasonably expected to materially impede or interfere with, materially delay, materially postpone or materially and adversely affect the consummation of the Sale or the other transactions contemplated by this Agreement.
(b) In connection with and without limiting the foregoing, each party shall provide, or cause to be provided, all necessary notices, applications, requests and information to, and enter into discussions with, each Governmental Entity from whom any consent, approval, authorization or other action or non-action is required to be obtained in order to consummate the Sale or the other transactions contemplated by this Agreement or in connection herewith (collectivelypracticable, the “Governmental Consents”), use reasonable efforts to obtain all such Governmental Consents and, except as prohibited or required by any Governmental Order, to eliminate each and every other impediment that may be asserted by any Governmental Entity with respect to the Sale or the other transactions contemplated by this Agreement, including (i) taking all actions necessary to cause the conditions to Closing required to be satisfied by such party set forth in each case so Article VI to be satisfied, (ii) preparing and filing any applications, notices, registrations and requests as may be required or advisable to enable be filed with or submitted to any Governmental Entity in order to consummate the Sale and the other transactions contemplated hereby to occur as soon as reasonably practicable. Without limitation of the foregoing sentenceby this Agreement, Purchaser (iii) obtaining all necessary or advisable actions or nonactions, waivers, consents and its Affiliates shall be responsible for all filing fees under the HSR Act payable approvals from Governmental Entities or other Persons necessary in connection with the Sale.
(c) In connection with and without limiting consummation of the foregoing, Purchaser shall provide, or cause to be provided, all necessary notices and information to, and enter into discussions with, any Person (other than any Governmental Entity) from whom any Consent is required to be obtained in connection with the Sale or the other transactions contemplated by this Agreement and use the making of all necessary or advisable registrations and filings (including filings with Governmental Entities, if any) and the taking of all reasonable efforts steps as may be necessary or advisable to obtain all such Consentsan approval or waiver from, and Seller will provide reasonable cooperation or to Purchaseravoid an Action by, at Purchaser’s expense, in promptly seeking to obtain all such Consents. Purchaser shall be responsible for all costs and expenses to obtain such Consents pursuant to this Section 5.4(c). If a Consent to the assignment by GSI any Governmental Entity or any of its Subsidiaries of any such Contract is obtained, Purchaser shall not, and shall not permit any of the Purchased Entities to, (i) amend such Contract in a manner that would increase the Liability of GSI or such Subsidiary thereunder or (ii) renew, expand or enter into any extension of any such Contract unless GSI or such Subsidiary has been released of all its Liabilities under or relating to the Contract in question.
(d) In connection with and without limiting the generality of the foregoing, each party shall (i) make or cause to be made, in consultation and cooperation with the other parties, all Persons necessary and appropriate registrations, declarations, notices and filings relating to or in connection with the Sale consummation of the transactions contemplated by this Agreement, (iv) subject to Section 5.7(c), defending any lawsuits or other legal proceedings, whether judicial or administrative, against such party challenging this Agreement or the consummation of the transactions contemplated by this Agreement, including seeking to have any stay or temporary restraining order entered by any court or other Governmental Entity vacated or reversed, and (v) executing and delivering any additional instruments necessary or advisable to consummate the other transactions contemplated by this Agreement and to fully carry out the purposes of this Agreement, other than in the case of each of clauses (i) through (v), with respect to registrations, filings, approvals, consents, authorizations or orders, lawsuits or other legal proceedings, from or by any Governmental Entity or the expiration of any waiting periods, in each case relating to Antitrust Laws, which are the subject of Section 5.7(b) and Section 5.7(c) and not this Section 5.7(a).
(b) Upon the terms and subject to the conditions set forth in this Agreement, each of the parties agrees to make any filings required to be made pursuant to the HSR Act and any other applicable Antitrust Laws with respect to the transactions contemplated by this Agreement as promptly as reasonably practicable (and in any event, with respect to any filings to be made pursuant to the HSR Act, within 10 Business Days following the date of this Agreement) and to supply as promptly as reasonably practicable to the appropriate Governmental Entities any additional information and documentary material that may be requested by such Governmental Entities pursuant to any Antitrust Laws. The parties shall request early termination of the applicable HSR Act waiting period and use commercially reasonable efforts to obtain the termination of such waiting period as promptly as reasonably practicable (and in any event by the Termination Date). The parties shall use their reasonable best efforts to ensure that all such antitrust filings to be made shall be made in substantial compliance with the relevant Governmental Entities under all requirements of the applicable Antitrust Laws; (ii) . In furtherance, and without limiting the generality, of the foregoing, the parties shall use their reasonable best efforts to furnish (i) cooperate with and assist each other in good faith to (A) provide or cause to be provided as promptly as reasonably practicable to the other parties party all reasonable assistancenecessary information and assistance as any Governmental Entity may from time to time require of such party in connection with obtaining the relevant waivers, permits, consents, approvals, authorizations, qualifications, orders or expiration of waiting periods (collectively, “Consents”) in relation to such filings or in connection with any other review or investigation of the transactions contemplated by this Agreement by a Governmental Entity pursuant to any Antitrust Laws and (B) provide or cause to be provided as promptly as reasonably practicable all assistance and cooperation to allow the other party to prepare and information required for submit any such registrationfilings or submissions required to be submitted under any Antitrust Laws, declaration, notice or filing and in order including providing to achieve the effects set forth in Section 5.4(b); (iii) give the other parties reasonable prior notice party any information that the other party may from time to time reasonably require for the purpose of any filing with, notification to, application with, or request for further information made by, any Governmental Entity in respect of any such registrationfiling. Notwithstanding anything to the contrary in this Agreement, declarationParent shall direct and control all aspects of the strategy and process relating to obtaining Consents under Antitrust Laws; provided, notice or filing andhowever, that Parent shall reasonably consult with the Company and in good faith consider the Company’s views regarding the overall strategic direction of obtaining such Consents. To the extent permitted by applicable Law, (x) each party shall consult with the other party prior to taking any material substantive position in any written submissions or, to the extent reasonably practicable, of in any material communication discussions with any Governmental Entity Entities with respect to applicable Consents under Antitrust Laws regarding the Sale or the other transactions contemplated hereby and (including with respect to any of the actions referred to in Section 5.4(b)), and y) each party shall permit the other parties party to review and discuss in advance, and shall consider in good faith the views of, and secure the participation of, of the other parties party in connection with, any such registrationanalyses, declarationpresentations, noticememoranda, filing briefs, written arguments, opinions, written proposals or communication; (iv) respond as promptly as practicable under other materials to be submitted to the circumstances to any inquiries received from any Governmental Entity Entities in connection with respect to applicable Antitrust Laws regarding the Sale or the other transactions contemplated hereby; (v) unless prohibited by applicable Law or by the applicable Governmental Entity, (A) to the extent reasonably practicable, not this Agreement. No party will independently participate in or attend any meeting, or engage in any material substantive conversation formal meeting with any Governmental Entity with respect to applicable Antitrust Laws regarding the Sale or transactions contemplated by this Agreement without giving the other transactions contemplated hereby (including parties prior notice of the meeting and, to the extent permitted by such Governmental Entity, the opportunity to attend and participate in such meeting. To the extent permitted by applicable Law, each party shall keep the other apprised of the material content and status of any material communications with, and material communications from, any Governmental Entity with respect to any of the actions referred to in Section 5.4(b)) without transactions contemplated by this Agreement, including promptly notifying the other party hereto, (B) of any material communication it receives from any Governmental Entity relating to any review or investigation of the transactions contemplated by this Agreement under any Antitrust Laws. To the extent reasonably practicable, give the other party hereto reasonable prior notice of any such meeting or conversation, (C) in the event one party is prohibited permitted by applicable Law or by Law, the applicable Governmental Entity from participating or attending any such meeting or engaging in any such conversationparties shall, keep and shall use their reasonable best efforts to cause their respective Affiliates to, use their reasonable best efforts to provide the other parties reasonably apprised with respect thereto, (D) cooperate in the filing of any substantive memoranda, white papers, filings, correspondence or other written communications explaining or defending this Agreement, the Sale or the other transactions contemplated hereby and thereby, articulating any regulatory or competitive argument, and/or responding to requests or objections made by any Governmental Entity under applicable Antitrust Laws, and (E) furnish the other party hereto with copies of all material correspondence, filings and or communications (and memoranda setting forth the substance thereof) between it and its them or any of their respective Representatives, on the one hand, and any Governmental Entity or members of any Governmental Entity’s its staff, on the other hand, with respect to applicable Antitrust Laws this Agreement or the transactions contemplated hereunder; provided, however, that concern materials may be redacted (1) to remove references concerning the valuation of Parent and its Subsidiaries and Affiliates or the Company and its Subsidiaries, as applicable, (2) as necessary to comply with any Laws, and (3) as necessary to address reasonable attorney-client or other privilege or confidentiality concerns.
(c) Notwithstanding anything to the contrary set forth in this Agreement, the Sale obligations of Parent under Section 5.7(b) shall include Parent committing to (i) selling, divesting, or otherwise conveying particular assets, categories, portions or parts of assets or businesses of Parent and its Affiliates, (ii) agreeing to sell, divest, or otherwise convey any particular asset, category, portion or part of an asset or business of the Company and its Subsidiaries contemporaneously with or subsequent to the Effective Time, and (iii) licensing, holding separate or entering into similar arrangements with respect to its respective assets or the assets of the Company or any of their respective Subsidiaries or conduct of business arrangements or terminating any and all existing relationships and contractual rights and obligations as a condition to obtaining any and all expirations of waiting periods under the HSR Act; provided that notwithstanding anything in this Agreement to the contrary, (a) neither Parent nor any of its Affiliates shall be required to take, nor shall the Company or any of its Subsidiaries be permitted to take, any action in connection with obtaining any Consent under any Antitrust Law unless (x) it is conditioned upon consummation of the Merger and (y) such action would not individually and in the aggregate with all other actions taken or to be taken in connection with obtaining Consents under Antitrust Laws have the result specified in Section 5.7(c) of the Company Disclosure Letter and (b) neither the Company nor any of its Affiliates will take any action, or propose, commit or agree to take any action, that relates to its businesses, assets, properties, product lines, equity interests, relationships, ventures, contractual rights, or obligations in connection with obtaining Consents under Antitrust Laws without the prior written consent of Parent. In the event of any conflict between subsections (a), (b), (c) or (d) of this Section 5.7, the provisions of this Section 5.7(c) shall, with respect to the matters addressed in this Section 5.7(c), supersede the provisions of subsections (a), (b) and (d) of this Section 5.7.
(d) Each of the parties shall, and shall cause each of their respective Subsidiaries to, defend through litigation on the merits so as to enable the parties to close the transactions contemplated hereby as promptly as reasonably practicable (and thereby.
(ein any event prior to the Termination Date) In the event that any Action is instituted (claim asserted in court or threatened to be instituted) an administrative or other tribunal by a any antitrust or competition Governmental Entity under Antitrust Laws in order to avoid entry of, or private party challenging any transaction contemplated by this Agreement, each party shall, except as prohibited or required by any Governmental Order, (i) provide reasonable cooperation to the other party hereto and use its respective reasonable efforts to contest and resist any such Action and to have vacatedvacated or terminated, lifted, reversed or overturned any decree, judgment, injunction or other Governmental Order, order (whether temporary, preliminary or permanent) that could prevent or delay beyond the Termination Date the Closing from occurring; provided, that is however, that, for the avoidance of doubt, such litigation shall in effect no way limit the obligations of the parties to comply with their other obligations under the terms of this Section 5.7. Parent shall direct and that prohibitscontrol, prevents and the Company shall be entitled to participate in, any such litigation, each with counsel of its own choosing.
(e) Notwithstanding anything to the contrary in this Agreement, in connection with obtaining any approval or restricts consummation of consent from any Person (other than any Governmental Entity) with respect to the transactions contemplated by this Agreement, and neither Parent nor the Company nor any of their respective Representatives, shall be obligated to pay or commit to pay to such Person whose approval or consent is being solicited any cash or other consideration, make any accommodation or commitment or incur any liability or other obligation to such Person (ii) at its own cost and expense, defend except as may be required under applicable Law or any Contract with any such Actions against it Person). Subject to the immediately foregoing sentence, the parties shall cooperate with respect to reasonable accommodations that may be requested or its Affiliates appropriate to obtain such consents. The parties acknowledge and agree that the obligation to agree to obtain the Consents or otherwise consummate the transactions contemplated by this Agreement “as promptly as reasonably practicable” shall not preclude or restrict Parent from (i) engaging in connection discussions or negotiations with any applicable Governmental Entity regarding the requirement, advisability, scope or terms of actions that may be required to obtain the Consents or otherwise consummate the transactions contemplated by this Agreement, or (ii) engaging in litigation (including any appeals) with any Governmental Entity relating to the matters contemplated by this Section 5.4.
Appears in 2 contracts
Samples: Merger Agreement (Continental Building Products, Inc.), Merger Agreement (Continental Building Products, Inc.)
Further Action; Efforts. (a) Subject to the terms and conditions of this Agreement, each party shall will use reasonable best efforts to take, or cause to be taken, all actions and to use reasonable efforts to do, or cause to be done, and assist and cooperate with the other parties in doing, all things reasonably necessary, proper or advisable under this Agreement and applicable Law to satisfy the conditions to the completion of the Sale and, except as prohibited or required by any Governmental Order, to consummate as soon as reasonably practicable the Sale and the other transactions contemplated by this Agreement in accordance with the terms hereof and, except as prohibited or required by any Governmental Order, shall not, and it shall cause its Representatives not to, take any action that could be reasonably expected to materially impede or interfere with, materially delay, materially postpone or materially and adversely affect the consummation of the Sale or the other transactions contemplated by this Agreement.
(b) In connection with and without limiting the foregoing, each party shall provide, or cause to be provided, all necessary notices, applications, requests and information to, and enter into discussions with, each Governmental Entity from whom any consent, approval, authorization or other action or non-action is required to be obtained in order to consummate the Sale or the other transactions contemplated by this Agreement or in connection herewith (collectively, the “Governmental Consents”), use reasonable efforts to obtain all such Governmental Consents and, except as prohibited or required by any Governmental Order, to eliminate each and every other impediment that may be asserted by any Governmental Entity with respect to the Sale or the other transactions contemplated by this Agreement, in each case so as to enable the Sale and the other transactions contemplated hereby to occur as soon as reasonably practicable. Without limitation of the foregoing sentence, Purchaser and its Affiliates shall be responsible for all filing fees under the HSR Act payable in connection with the Sale.
(c) In connection with and without limiting the foregoing, Purchaser shall provide, or cause to be provided, all necessary notices and information to, and enter into discussions with, any Person (other than any Governmental Entity) from whom any Consent is required to be obtained in connection with the Sale or the other transactions contemplated by this Agreement and use reasonable efforts to obtain all such Consents, and Seller will provide reasonable cooperation to Purchaser, at Purchaser’s expense, in promptly seeking to obtain all such Consents. Purchaser shall be responsible for all costs and expenses to obtain such Consents pursuant to this Section 5.4(c). If a Consent to the assignment by GSI or any of its Subsidiaries of any such Contract is obtained, Purchaser shall not, and shall not permit any of the Purchased Entities to, (i) amend such Contract in a manner that would increase the Liability of GSI or such Subsidiary thereunder or (ii) renew, expand or enter into any extension of any such Contract unless GSI or such Subsidiary has been released of all its Liabilities under or relating to the Contract in question.
(d) In connection with and without limiting the generality of the foregoing, each party shall (i) make or cause to be made, in consultation and cooperation with the other parties, all necessary and appropriate registrations, declarations, notices and filings relating to or in connection with the Sale and the other transactions contemplated by this Agreement with the relevant Governmental Entities under all applicable Antitrust Laws; (ii) use reasonable efforts to furnish to the other parties all reasonable assistance, cooperation and information required for any such registration, declaration, notice or filing and in order to achieve the effects set forth in Section 5.4(b); (iii) give the other parties reasonable prior notice of any such registration, declaration, notice or filing and, to the extent reasonably practicable, of any material communication with any Governmental Entity with respect to applicable Antitrust Laws regarding the Sale or the other transactions contemplated hereby (including with respect to any of the actions referred to in Section 5.4(b)), and permit the other parties to review and discuss in advance, and consider in good faith the views of, and secure the participation of, the other parties in connection with, any such registration, declaration, notice, filing or communication; (iv) respond as promptly as practicable under the circumstances to any inquiries received from any Governmental Entity with respect to applicable Antitrust Laws regarding the Sale or the other transactions contemplated hereby; (v) unless prohibited by applicable Law or by the applicable Governmental Entity, (A) to the extent reasonably practicable, not participate in or attend any meeting, or engage in any material substantive conversation with any Governmental Entity with respect to applicable Antitrust Laws regarding the Sale or the other transactions contemplated hereby (including with respect to any of the actions referred to in Section 5.4(b)) without the other party hereto, (B) to the extent reasonably practicable, give the other party hereto reasonable prior notice of any such meeting or conversation, (C) in the event one party is prohibited by applicable Law or by the applicable Governmental Entity from participating or attending any such meeting or engaging in any such conversation, keep the other parties reasonably apprised with respect thereto, (D) cooperate in the filing of any substantive memoranda, white papers, filings, correspondence or other written communications explaining or defending this Agreement, the Sale or the other transactions contemplated hereby and thereby, articulating any regulatory or competitive argument, and/or responding to requests or objections made by any Governmental Entity under applicable Antitrust Laws, and (E) furnish the other party hereto with copies of all material correspondence, filings and communications (and memoranda setting forth the substance thereof) between it and its Representatives, on the one hand, and any Governmental Entity or members of any Governmental Entity’s staff, on the other hand, with respect to applicable Antitrust Laws that concern this Agreement, the Sale or the other transactions contemplated hereby and thereby.
(e) In the event that any Action is instituted (or threatened to be instituted) by a Governmental Entity or private party challenging any transaction contemplated by this Agreement, each party shall, except as prohibited or required by any Governmental Order, (i) provide reasonable cooperation to the other party hereto and use its respective reasonable efforts to contest and resist any such Action and to have vacated, lifted, reversed or overturned any decree, judgment, injunction or other Governmental Order, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents or restricts consummation of the transactions contemplated by this Agreement, and (ii) at its own cost no party hereto shall fail to take or cause to be taken any action that would reasonably be expected to prevent, impede or materially delay the consummation of the transactions contemplated hereby. Notwithstanding the foregoing, and expenseexcept as otherwise contemplated by Section 5.6(c), defend nothing in this Agreement shall require Parent or Merger Sub to, and the Company shall not without the prior written consent of Parent, agree to any such Actions against it modification to or its Affiliates accommodation under any Contract or undertake any liability in connection with obtaining any consent under any Contract. In furtherance and not in limitation of the foregoing, each party hereto agrees to make, if required, appropriate filings under any Antitrust Law, including an appropriate filing of a Notification and Report Form pursuant to the HSR Act with respect to the transactions contemplated hereby as promptly as practicable and, in the case of the HSR Act, in any event within ten Business Days of the date hereof and to supply as promptly as reasonably practicable and advisable any additional information and documentary material that may be requested pursuant to the HSR Act and to take all other commercially reasonable actions necessary, proper or advisable to cause the expiration or termination of the applicable waiting periods under the HSR Act as soon as practicable, including by requesting early termination of the waiting period provided for in the HSR Act.
(b) Each of Parent and Merger Sub, on the one hand, and the Company, on the other hand, shall, in connection with the efforts referenced in Section 5.6(a) to obtain all requisite approvals and authorizations for the transactions contemplated by this Agreement under the HSR Act or any other Antitrust Law, use its reasonable best efforts to (i) cooperate in all respects with each other in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by a private party, (ii) keep the other party reasonably informed of any communication received by such party from, or given by such party to, the Federal Trade Commission (the “FTC”), the Antitrust Division of the DOJ or any other U.S. or foreign Governmental Entity and of any communication received or given in connection with any proceeding by a private party, in each case regarding any of the transactions contemplated hereby and (iii) permit the other party a reasonable opportunity to review any substantive written communication given by it to, and consult with each other in advance of any scheduled substantive meeting or conference with, the FTC, the DOJ or any other Governmental Entity or, in connection with any proceeding by a private party, with any other Person, and to the extent permitted by the FTC, the DOJ or such other applicable Governmental Entity or other Person, give the other party the reasonable opportunity to attend and participate in such meetings and conferences. Notwithstanding the foregoing, the Company and Parent may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other side under this Section 5.6(b) as “Antitrust Counsel Only Material.” Such materials and the information contained therein shall be given only to the outside counsel regarding Antitrust Law of the recipient and will not be disclosed by outside counsel to employees, officers, directors or consultants of the recipient or any of its Affiliates unless express permission is obtained in advance from the source of the materials (the Company or Parent, as the case may be) or its legal counsel. Each of the Company and Parent shall cause its respective counsel regarding Antitrust Law to comply with this Section 5.6(b). Notwithstanding anything to the contrary in this Section 5.6(b), materials provided to the other party or its counsel may be redacted to remove references concerning the valuation of the Company and privileged communications.
(c) Notwithstanding anything in this Agreement to the contrary, neither Parent nor any of its Subsidiaries or Affiliates shall be obligated to, and neither the Company nor any of its Subsidiaries shall without the prior written consent of Parent (which consent shall be in sole discretion of Parent), (i) proffer to, agree to or become subject to any order, judgment or decree to (A), sell, license or dispose of or hold separate before or after the Closing, any assets, businesses, product lines or interest in any assets or businesses of Parent or any of its Affiliates, (B) make or accept, any changes, modifications, limitations or restrictions in the operations of any assets or businesses of Parent or any of its Subsidiaries, any Contract to which Parent or any of its Subsidiaries is a party or otherwise bound or any of the relationships of Parent or any of its Subsidiaries with any other Persons (contractual or otherwise) or (C) any concession, accommodation or liability relating to Parent or any of its Subsidiaries or (ii) proffer to, agree to or become subject to any order, judgment or decree to (or consent to) (A) sell, license or dispose of or hold separate before or after the Closing, any assets, businesses, product lines or interest in any assets or businesses of the Company or any of its Subsidiaries, (B) any changes, modifications, limitations or restrictions in the operations of any assets or businesses of the Company or any of its Subsidiaries, any Contract to which the Company or any of its Subsidiaries is a party or otherwise bound or any of the relationships of the Company or any of its Subsidiaries with any other Persons (contractual or otherwise) or (C) any concession, accommodation or liability with respect to the Company or any of its Subsidiaries that, in the case of clause (ii)(A) through clause (ii)(C) would, individually or in the aggregate, materially diminish the expected benefits of the transactions contemplated by this Agreement to Parent and its Subsidiaries (including the Company and its Subsidiaries, taken as a whole (the items in clauses (i) through (ii), a “Burdensome Action”) or (iii) commence or participate in any litigation.
(d) For purposes of this Agreement, “Antitrust Law” means the Xxxxxxx Act, as amended, the Xxxxxxx Act, as amended, the HSR Act, the Federal Trade Commission Act, as amended, Foreign Antitrust Laws and all other Laws that are designed or intended to prohibit, restrict or regulate actions having the purpose or effect of monopolization or restraint of trade or lessening of competition through merger or acquisition.
Appears in 2 contracts
Samples: Merger Agreement (Ingredion Inc), Merger Agreement (Penford Corp)
Further Action; Efforts. (a) Subject to the terms and conditions of this Agreement, each party shall will use reasonable best efforts to take, or cause to be taken, all actions and to use reasonable efforts to do, or cause to be done, and assist and cooperate with the other parties in doing, all things reasonably necessary, proper or advisable under this Agreement and applicable Law to satisfy consummate the conditions to the completion of the Sale and, except as prohibited or required by any Governmental Order, to consummate as soon as reasonably practicable the Sale and the other transactions contemplated by this Agreement in accordance with the terms hereof and, except as prohibited or required by any Governmental Order, shall notTransactions, and it no party hereto shall fail to take or cause its Representatives not to, take to be taken any action that could would reasonably be reasonably expected to materially prevent, impede or interfere with, materially delay, materially postpone or materially and adversely affect delay the consummation of the Sale or the other transactions contemplated by this Agreement.
(b) In connection with and without limiting Transactions. Notwithstanding the foregoing, each party nothing in this Agreement shall providerequire Parent, Merger Sub or cause to be provided, all necessary notices, applications, requests and information Merger LLC to, and enter into discussions withno Acquired Company shall, each Governmental Entity from whom without the prior written consent of Parent, agree to any consentmodification to or accommodation under any Contract or pay any fee, approval, authorization penalty or other action consideration to any third party for any consent or non-action is approval required to be obtained in order to consummate for the Sale or the other transactions contemplated by this Agreement or in connection herewith (collectively, the “Governmental Consents”), use reasonable efforts to obtain all such Governmental Consents and, except as prohibited or required by any Governmental Order, to eliminate each and every other impediment that may be asserted by any Governmental Entity with respect to the Sale or the other transactions contemplated by this Agreement, in each case so as to enable the Sale and the other transactions contemplated hereby to occur as soon as reasonably practicable. Without limitation consummation of the foregoing sentence, Purchaser Transactions. In furtherance and its Affiliates shall be responsible for all filing fees under the HSR Act payable not in connection with the Sale.
(c) In connection with and without limiting the foregoing, Purchaser shall provide, or cause to be provided, all necessary notices and information to, and enter into discussions with, any Person (other than any Governmental Entity) from whom any Consent is required to be obtained in connection with the Sale or the other transactions contemplated by this Agreement and use reasonable efforts to obtain all such Consents, and Seller will provide reasonable cooperation to Purchaser, at Purchaser’s expense, in promptly seeking to obtain all such Consents. Purchaser shall be responsible for all costs and expenses to obtain such Consents pursuant to this Section 5.4(c). If a Consent to the assignment by GSI or any of its Subsidiaries of any such Contract is obtained, Purchaser shall not, and shall not permit any of the Purchased Entities to, (i) amend such Contract in a manner that would increase the Liability of GSI or such Subsidiary thereunder or (ii) renew, expand or enter into any extension of any such Contract unless GSI or such Subsidiary has been released of all its Liabilities under or relating to the Contract in question.
(d) In connection with and without limiting the generality limitation of the foregoing, each party shall hereto agrees to make (i) make an appropriate filing of a Notification and Report Form pursuant to the HSR Act with respect to the Transactions within fifteen (15) Business Days from the date hereof and to supply as promptly as reasonably practicable and advisable any additional information and documentary material that may be requested pursuant to the HSR Act and to take all other commercially reasonable actions necessary, proper or advisable to cause to be madethe expiration or termination of the applicable waiting periods under the HSR Act as soon as practicable, including by requesting early termination of the waiting period provided for in consultation and cooperation with the other partiesHSR Act, all necessary and appropriate registrations, declarations, notices and filings relating to or in connection with the Sale and the other transactions contemplated by this Agreement with the relevant Governmental Entities under all applicable Antitrust Laws; (ii) use reasonable efforts to furnish to the other parties all reasonable assistanceif required, cooperation appropriate filings under any Regulatory Law as soon as reasonably practicable and information required for any such registration, declaration, notice or filing and in order to achieve the effects set forth in Section 5.4(b); (iii) give the any other parties reasonable prior notice of any such registrationnecessary, declaration, notice proper or filing and, to the extent reasonably practicable, of any material communication with any Governmental Entity with respect to applicable Antitrust Laws regarding the Sale or the other transactions contemplated hereby (including with respect to any of the actions referred to in Section 5.4(b)), and permit the other parties to review and discuss in advance, and consider in good faith the views of, and secure the participation of, the other parties in connection with, any such registration, declaration, notice, filing or communication; (iv) respond as promptly as practicable under the circumstances to any inquiries received from any Governmental Entity with respect to applicable Antitrust Laws regarding the Sale or the other transactions contemplated hereby; (v) unless prohibited by applicable Law or by the applicable Governmental Entity, (A) to the extent reasonably practicable, not participate in or attend any meeting, or engage in any material substantive conversation with any Governmental Entity with respect to applicable Antitrust Laws regarding the Sale or the other transactions contemplated hereby (including with respect to any of the actions referred to in Section 5.4(b)) without the other party hereto, (B) to the extent reasonably practicable, give the other party hereto reasonable prior notice of any such meeting or conversation, (C) in the event one party is prohibited by applicable Law or by the applicable Governmental Entity from participating or attending any such meeting or engaging in any such conversation, keep the other parties reasonably apprised with respect thereto, (D) cooperate in the filing of any substantive memoranda, white papers, filings, correspondence or other written communications explaining or defending this Agreement, the Sale or the other transactions contemplated hereby and thereby, articulating any regulatory or competitive argument, and/or responding to requests or objections made by any Governmental Entity under applicable Antitrust Laws, and (E) furnish the other party hereto with copies of all material correspondenceadvisable registrations, filings and communications notices within twenty (and memoranda setting forth 20) Business Days after the substance thereof) between it and its Representatives, on the one handdate hereof. Subject to applicable Law, and any Governmental Entity or members of any Governmental Entity’s staff, on the other hand, with respect to applicable Antitrust Laws that concern this Agreement, the Sale or the other transactions contemplated hereby and thereby.
(e) In the event that any Action is instituted (or threatened to be instituted) by a Governmental Entity or private party challenging any transaction contemplated by this Agreement, each party shall, except as prohibited or required by any Governmental Order, (i) provide reasonable cooperation to the other party hereto and use its respective reasonable efforts to contest and resist any such Action and to have vacated, lifted, reversed or overturned any decree, judgment, injunction or other Governmental Order, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents or restricts consummation of the transactions contemplated by this Agreement, and (ii) at its own cost and expense, defend any such Actions against it or its Affiliates in connection with the transactions contemplated by this Agreement.67
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