FURTHER ACTION; REASONABLE BEST EFFORTS; NOTICE OF CERTAIN EVENTS. (a) Upon the terms and subject to the conditions of this Agreement, subject to Sections 6.09(b) and (c), each of the Company, Parent and Merger Co agrees to use its reasonable best efforts to effect the consummation of the Merger as soon as practicable after the date hereof. Without limiting the foregoing, (i) each of the Company, Parent and Merger Co agrees to use its reasonable best efforts to take, or cause to be taken, all actions necessary to comply promptly with all legal requirements that may be imposed on itself with respect to the Merger (which actions shall include furnishing all information required under the HSR Act, as provided in Section 6.09(b) below, and in connection with approvals of or filings with any other Governmental Authority) and shall promptly cooperate with and furnish information to each other in connection with any such requirements imposed upon any of them or any of their Subsidiaries in connection with the Merger, (ii) each of the Company, Parent and Merger Co shall, and shall cause its subsidiaries to, use its or their reasonable best efforts to obtain (and shall cooperate with each other in obtaining) any consent, authorization, order or approval of, or any exemption by, any Governmental Authority or other public or private third Person required to be obtained or made by Parent, Merger Co, the Company or any of their subsidiaries in connection with the Merger or the taking of any action contemplated thereby or by this Agreement, and (iii) each of the Company, Parent and Merger Co shall, and shall cause its subsidiaries to, use its reasonable best efforts to cause the conditions set forth in Section 7.01(b) and 7.03(d) to be satisfied. The Company, Parent and Merger Co each hereby agree promptly (and in any event within three business days) to notify each other party hereto of any event, circumstance or condition of which the Company, Parent or Merger Co becomes aware that could reasonably be expected to constitute or give rise to a material breach of any representation or warranty, covenant or condition contained in this Agreement.
Appears in 2 contracts
Samples: Merger Agreement (Morgan Stanley), Merger Agreement (Morgan Stanley)
FURTHER ACTION; REASONABLE BEST EFFORTS; NOTICE OF CERTAIN EVENTS. (a) Upon the terms and subject to the conditions of this Agreement, subject to Sections 6.09(b) and (c), each of the Company, Parent and Merger Co agrees to use its reasonable best efforts to effect the consummation of the Merger as soon as practicable after the date hereof. Without limiting the foregoing, (i) each of the Company, Parent and Merger Co agrees to use its reasonable best efforts to take, or cause to be taken, all actions necessary to comply promptly with all legal requirements that may be imposed on itself with respect to the Merger (which actions shall include furnishing all information required under the HSR Act, as provided in Section 6.09(b) below, and in connection with approvals of or filings with any other Governmental Authority) and shall promptly cooperate with and furnish information to each other in connection with any such requirements imposed upon any of them or any of their Subsidiaries in connection with the Merger, (ii) each of the Company, Parent and Merger Co shall, and shall cause its subsidiaries to, use its or their reasonable best efforts to obtain (and shall cooperate with each other in obtaining) any consent, authorization, order or approval of, or any exemption by, any Governmental Authority or other public or private third Person required to be obtained or made by Parent, Merger Co, the Company or any of their subsidiaries in connection with the Merger or the taking of any action contemplated thereby or by this Agreement, and (iii) each of the Company, Parent and Merger Co shall, and shall cause its subsidiaries to, use its reasonable best efforts to cause the conditions set forth in Section 7.01(b) and 7.03(d) to be satisfied. The Company, Parent and Merger Co each hereby agree promptly (and in any event within three business days) to notify each other party hereto of any event, circumstance or condition of which the Company, Parent or Merger Co becomes aware that could reasonably be expected to constitute or give rise to a material breach of any representation or warranty, covenant or condition contained in this Agreement.
(b) Without limiting the generality of the foregoing:
(i) Each party agrees to make 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 following the date of this Agreement and to supply promptly any additional information and documentary material (a "SECOND REQUEST") that may be requested pursuant to the HSR Act. In the event a Second Request is made, the Expiration Date shall automatically be extended until December 31, 2006.
(ii) Parent, Merger Co and the Company shall:
(A) take promptly any or all of the following actions to the extent necessary to eliminate any concerns on the part of any Governmental Authority with jurisdiction over the enforcement, of any applicable antitrust Law ("GOVERNMENT ANTITRUST AUTHORITY") regarding the legality under any antitrust Law of the Merger: entering into negotiations, providing information, making proposals, entering into and performing agreements or submitting to judicial or administrative orders, or selling or otherwise disposing of, or holding separate (through the establishment of a trust or otherwise), particular assets or categories of assets, or businesses, of (1) the Parent and Merger Co or any of their subsidiaries (which for purposes of this Section 6.09 shall only be deemed to include an entity in which Parent owns, directly or indirectly, 50% or more of the voting securities or equity of such entity) or (2) the Company and its Subsidiaries;
(B) use their reasonable best efforts to prevent the entry in a judicial or administrative proceeding brought under any antitrust Law by any Government Antitrust Authority of any permanent or preliminary injunction or other order that would make consummation of the Merger in accordance with the terms of this Agreement unlawful or that would prevent or delay such consummation;
(C) take promptly, in the event that such an injunction or order has been issued in such a proceeding, any and all steps, including, without limitation, the appeal thereof, the posting of a bond or the other steps contemplated by clause (A) above, necessary to vacate, modify or suspend such injunction or order so as to permit such consummation on a schedule as close as possible to that contemplated by this Agreement; and
(D) take promptly all other actions and do all other things necessary and proper to avoid or eliminate each and every impediment under any antitrust Law that may be asserted by any Government Antitrust Authority or any other party to the consummation of the Merger by Parent and Merger Co in accordance with the terms of this Agreement.
(iii) Notwithstanding anything to the contrary set forth in this Section 6.09(b), none of Parent, Merger Co nor the Company (nor any Affiliate of the foregoing) shall be required to take any of the actions described in subsections (A) through (D) of Section 6.09(b)(ii), if to do so would result in a divestiture of, or "hold separate" agreement with respect to, stock or other assets having an aggregate fair market value of at least $50 million, or another operational restriction that would be expected, in the reasonable, good faith judgment of the board of directors of Parent, to have an adverse financial impact on Parent and its Subsidiaries and Affiliates (including the Surviving Corporation, the General Partner, TransMontaigne Partners, and the MLP Subsidiaries), taken as a whole, following the Merger, in excess of $50 million. If after complying with all of the terms of this Section 6.09, Parent, Merger Co or any of their Subsidiaries or Affiliates would be required to agree to or take any action referred to in, or having the effect referred to in, this Section 6.09(b)(iii), Parent shall have the option of terminating this Agreement upon (A) a final determination by the Government Antitrust Authority that taking or agreeing to take such action is required in order to consummate the Merger and (B) payment to the Company of the Reverse Termination Fee.
(c) Notwithstanding anything to the contrary set forth in this Section 6.09, neither Parent nor Merger Co, nor any of their respective Affiliates, shall be required to take any action that, in the opinion of Parent after consultation with outside counsel, is reasonably likely to cause Xxxxxx Xxxxxxx or any of its subsidiaries or Affiliates, other than persons so subject as of the date hereof, to be subject to the reporting requirements of Section 13(a) or 15(d) of the Exchange Act or otherwise be required to file periodic reports under the Exchange Act.
(d) Prior to the Closing, at the written request of Parent, the Company shall commence a tender offer and consent solicitation with respect to any or all of the Notes in accordance with the written terms and conditions provided by Parent to the Company and applicable Law (collectively, the "DEBT TENDER"). Unless otherwise agreed by the Company in writing, the Debt Tender shall not be required to close on or prior to the Closing. In the event this Agreement is terminated by either party pursuant to Article VIII, then Parent shall promptly reimburse the Company for any reasonable out-of-pocket costs, fees and expenses incurred by the Company (including reasonable fees and expenses incurred by counsel and financial advisers to the Company and any other third parties engaged by the Company with the consent of Parent) in connection with the Debt Tenders and shall indemnify the Company and its officers, directors, employees, agents and other representatives (collectively, the "INDEMNITEES") for any other liabilities incurred by the Company and the indemnitees in connection with the Debt Tender except for liabilities resulting from actions taken, or failed to be taken, by the Company or the indemnitees that are contrary to the written instructions of the Parent.
Appears in 1 contract
Samples: Merger Agreement (Morgan Stanley)
FURTHER ACTION; REASONABLE BEST EFFORTS; NOTICE OF CERTAIN EVENTS. (a) Upon the terms and subject to the conditions of this Agreement, subject to Sections 6.09(b) and (c), each of the Company, Parent and Merger Co agrees to use its reasonable best efforts to effect the consummation of the Merger as soon as practicable after the date hereof. Without limiting the foregoing, (i) each of the Company, Parent and Merger Co agrees to use its reasonable best efforts to take, or cause to be taken, all actions necessary to comply promptly with all legal requirements that may be imposed on itself with respect to the Merger (which actions shall include furnishing all information required under the HSR Act, as provided in Section 6.09(b) below, and in connection with approvals of or filings with any other Governmental Authority) and shall promptly cooperate with and furnish information to each other in connection with any such requirements imposed upon any of them or any of their Subsidiaries in connection with the Merger, (ii) each of the Company, Parent and Merger Co shall, and shall cause its subsidiaries to, use its or their reasonable best efforts to obtain (and shall cooperate with each other in obtaining) any consent, authorization, order or approval of, or any exemption by, any Governmental Authority or other public or private third Person required to be obtained or made by Parent, Merger Co, the Company or any of their subsidiaries in connection with the Merger or the taking of any action contemplated thereby or by this Agreement, and (iii) each of the Company, Parent and Merger Co shall, and shall cause its subsidiaries to, use its reasonable best efforts to cause the conditions set forth in Section 7.01(b) and 7.03(d) to be satisfied. The Company, Parent and Merger Co each hereby agree promptly (and in any event within three business days) to notify each other party hereto of any event, circumstance or condition of which the Company, Parent or Merger Co becomes aware that could reasonably be expected to constitute or give rise to a material breach of any representation or warranty, covenant or condition contained in this Agreement.
(b) Without limiting the generality of the foregoing:
(i) Each party agrees to make 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 following the date of this Agreement and to supply promptly any additional information and documentary material (a “Second Request”) that may be requested pursuant to the HSR Act. In the event a Second Request is made, the Expiration Date shall automatically be extended until December 31, 2006.
(ii) Parent, Merger Co and the Company shall:
(A) take promptly any or all of the following actions to the extent necessary to eliminate any concerns on the part of any Governmental Authority with jurisdiction over the enforcement, of any applicable antitrust Law (“Government Antitrust Authority”) regarding the legality under any antitrust Law of the Merger: entering into negotiations, providing information, making proposals, entering into and performing agreements or submitting to judicial or administrative orders, or selling or otherwise disposing of, or holding separate (through the establishment of a trust or otherwise), particular assets or categories of assets, or businesses, of (1) the Parent and Merger Co or any of their subsidiaries (which for purposes of this Section 6.09 shall only be deemed to include an entity in which SemGroup LP owns, directly or indirectly, 50% or more of the voting securities or equity of such entity) or (2) the Company and its Subsidiaries;
(B) use their reasonable best efforts to prevent the entry in a judicial or administrative proceeding brought under any antitrust Law by any Government Antitrust Authority of any permanent or preliminary injunction or other order that would make consummation of the Merger in accordance with the terms of this Agreement unlawful or that would prevent or delay such consummation;
(C) take promptly, in the event that such an injunction or order has been issued in such a proceeding, any and all steps, including, without limitation, the appeal thereof, the posting of a bond or the other steps contemplated by clause (A) above, necessary to vacate, modify or suspend such injunction or order so as to permit such consummation on a schedule as close as possible to that contemplated by this Agreement; and
(D) take promptly all other actions and do all other things necessary and proper to avoid or eliminate each and every impediment under any antitrust Law that may be asserted by any Government Antitrust Authority or any other party to the consummation of the Merger by the Parent and Merger Co in accordance with the terms of this Agreement.
(iii) Notwithstanding anything to the contrary set forth in this Section 6.09(b), none of Parent, Merger Co nor the Company (nor any Affiliate of the foregoing) shall be required to take any of the actions described in subsections (A) through (D) of Section 6.09(b)(ii), if to do so would, in the reasonable, good faith judgment of the management committee of the general partner of SemGroup LP, have a material adverse effect upon the business plans of SemGroup LP for the conduct of the business after the Closing of (x) the Surviving Corporation and its Subsidiaries; (y) TransMontaigne Partners and the MLP Subsidiaries; and (z) SemGroup LP and its Subsidiaries, all taken as a whole. If after complying with all of the terms of this Section 6.09, Parent and Merger Co and their Subsidiaries or Affiliates would be required to agree to or take any action having the effect referred to in the first sentence of this Section 6.09(b)(iii), Parent shall have the option of terminating this Agreement upon (A) a final determination by the Government Antitrust Authority that taking or agreeing to take such action is required in order to consummate the Merger and (B) payment to the Company of the Reverse Termination Fee. For clarity, in order for a material adverse effect to be deemed to occur the actions referred to in the first sentence of this Section 6.09(b)(iii) would have to result in a minimum financial impact in excess of $50 million.
(c) Notwithstanding anything to the contrary set forth in this Section 6.09, neither Parent nor Merger Co, nor any of their respective Affiliates, shall be required to take any action that, in the opinion of Parent after consultation with outside counsel, is reasonably likely to cause SemGroup LP or any of its subsidiaries or Affiliates, other than the Company (and its Subsidiaries) and TransMontaigne Partners (and its subsidiaries) after the Effective Time, to be subject to the reporting requirements of Section 13(a) or 15(d) of the Exchange Act or otherwise be required to file periodic reports under the Exchange Act.
(d) Prior to the Closing, at the written request of Parent, the Company shall commence a tender offer and consent solicitation with respect to any or all of the Notes in accordance with the written terms and conditions provided by Parent to the Company and applicable Law (collectively, the “Debt Tender”). Unless otherwise agreed by the Company in writing, the Debt Tender shall not be required to close on or prior to the Closing. In the event this Agreement is terminated by either party pursuant to Article VIII, then Parent shall promptly reimburse the Company for any reasonable out-of-pocket costs, fees and expenses incurred by the Company (including reasonable fees and expenses incurred by counsel and financial advisers to the Company and any other third parties engaged by the Company with the consent of Parent) in connection with the Debt Tenders and shall indemnify the Company and its officers, directors, employees, agents and other representatives (collectively, the “indemnitees”) for any other liabilities incurred by the Company and the indemnitees in connection with the Debt Tender except for liabilities resulting from actions taken, or failed to be taken, by the Company or the indemnitees that are contrary to the written instructions of the Parent.
Appears in 1 contract
FURTHER ACTION; REASONABLE BEST EFFORTS; NOTICE OF CERTAIN EVENTS. (a) Upon the terms and subject to the conditions of this Agreement, subject to Sections 6.09(b) and (c), each of the Company, Parent and Merger Co agrees to use its reasonable best efforts to effect the consummation of the Merger as soon as practicable after the date hereof. Without limiting the foregoing, (i) each of the Company, Parent and Merger Co agrees to use its reasonable best efforts to take, or cause to be taken, all actions necessary to comply promptly with all legal requirements that may be imposed on itself with respect to the Merger (which actions shall include furnishing all information required under the HSR Act, as provided in Section 6.09(b) below, and in connection with approvals of or filings with any other Governmental Authority) and shall promptly cooperate with and furnish information to each other in connection with any such requirements imposed upon any of them or any of their Subsidiaries in connection with the Merger, (ii) each of the Company, Parent and Merger Co shall, and shall cause its subsidiaries to, use its or their reasonable best efforts to obtain (and shall cooperate with each other in obtaining) any consent, authorization, order or approval of, or any exemption by, any Governmental Authority or other public or private third Person required to be obtained or made by Parent, Merger Co, the Company or any of their subsidiaries in connection with the Merger or the taking of any action contemplated thereby or by this Agreement, and (iii) each of the Company, Parent and Merger Co shall, and shall cause its subsidiaries to, use its reasonable best efforts to cause the conditions set forth in Section 7.01(b) and 7.03(d) to be satisfied. The Company, Parent and Merger Co each hereby agree promptly (and in any event within three business days) to notify each other party hereto of any event, circumstance or condition of which the Company, Parent or Merger Co becomes aware that could reasonably be expected to constitute or give rise to a material breach of any representation or warranty, covenant or condition contained in this Agreement.
(b) Without limiting the generality of the foregoing:
(i) Each party agrees to make 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 following the date of this Agreement and to supply promptly any additional information and documentary material (a “Second Request”) that may be requested pursuant to the HSR Act. In the event a Second Request is made, the Expiration Date shall automatically be extended until December 31, 2006.
(ii) Parent, Merger Co and the Company shall:
(A) take promptly any or all of the following actions to the extent necessary to eliminate any concerns on the part of any Governmental Authority with jurisdiction over the enforcement, of any applicable antitrust Law (“Government Antitrust Authority”) regarding the legality under any antitrust Law of the Merger: entering into negotiations, providing information, making proposals, entering into and performing agreements or submitting to judicial or administrative orders, or selling or otherwise disposing of, or holding separate (through the establishment of a trust or otherwise), particular assets or categories of assets, or businesses, of (1) the Parent and Merger Co or any of their subsidiaries (which for purposes of this Section 6.09 shall only be deemed to include an entity in which SemGroup LP owns, directly or indirectly, 50% or more of the voting securities or equity of such entity) or (2) the Company and its Subsidiaries;
(B) use their reasonable best efforts to prevent the entry in a judicial or administrative proceeding brought under any antitrust Law by any Government Antitrust Authority of any permanent or preliminary injunction or other order that would make consummation of the Merger in accordance with the terms of this Agreement unlawful or that would prevent or delay such consummation;
(C) take promptly, in the event that such an injunction or order has been issued in such a proceeding, any and all steps, including, without limitation, the appeal thereof, the posting of a bond or the other steps contemplated by clause (A) above, necessary to vacate, modify or suspend such injunction or order so as to permit such consummation on a schedule as close as possible to that contemplated by this Agreement; and
(D) take promptly all other actions and do all other things necessary and proper to avoid or eliminate each and every impediment under any antitrust Law that may be asserted by any Government Antitrust Authority or any other party to the consummation of the Merger by the Parent and Merger Co in accordance with the terms of this Agreement.
(iii) Notwithstanding anything to the contrary set forth in this Section 6.09(b), none of Parent, Merger Co nor the Company (nor any Affiliate of the foregoing) shall be required to take any of the actions described in subsections (A) through (D) of Section 6.09(b)(ii), if to do so would, in the reasonable, good faith judgment of the management committee of the general partner of SemGroup LP, have a material adverse effect upon the business plans of SemGroup LP for the conduct of the business after the Closing of (x) the Surviving Corporation and its Subsidiaries; (y) TransMontaigne Partners and the MLP Subsidiaries; and (z) SemGroup LP and its Subsidiaries, all taken as a whole. If after complying with all of the terms of this Section 6.09, Parent and Merger Co and their Subsidiaries or Affiliates would be required to agree to or take any action having the effect referred to in the first sentence of this Section 6.09(b)(iii), Parent shall have the option of terminating this Agreement upon a final determination by the Government Antitrust Authority that taking or agreeing to take such action is required in order to consummate the Merger.
(c) Notwithstanding anything to the contrary set forth in this Section 6.09, neither Parent nor Merger Co, nor any of their respective Affiliates, shall be required to take any action that, in the opinion of Parent after consultation with outside counsel, is reasonably likely to cause SemGroup LP or any of its subsidiaries or Affiliates, other than the Company (and its Subsidiaries) and TransMontaigne Partners (and its subsidiaries) after the Effective Time, to be subject to the reporting requirements of Section 13(a) or 15(d) of the Exchange Act or otherwise be required to file periodic reports under the Exchange Act.
(d) Prior to the Closing, at the written request of Parent, the Company shall commence a tender offer and consent solicitation with respect to any or all of the Notes in accordance with the written terms and conditions provided by Parent to the Company and applicable Law (collectively, the “Debt Tender”). Unless otherwise agreed by the Company in writing, the Debt Tender shall not be required to close on or prior to the Closing. In the event this Agreement is terminated by either party pursuant to Article VIII, then Parent shall promptly reimburse the Company for any reasonable out-of-pocket costs, fees and expenses incurred by the Company (including reasonable fees and expenses incurred by counsel and financial advisers to the Company and any other third parties engaged by the Company with the consent of Parent) in connection with the Debt Tenders and shall indemnify the Company and its officers, directors, employees, agents and other representatives (collectively, the “indemnitees”) for any other liabilities incurred by the Company and the indemnitees in connection with the Debt Tender except for liabilities resulting from actions taken, or failed to be taken, by the Company or the indemnitees that are contrary to the written instructions of the Parent.
Appears in 1 contract
FURTHER ACTION; REASONABLE BEST EFFORTS; NOTICE OF CERTAIN EVENTS. (a) Upon the terms and subject to the conditions of this Agreement, subject to Sections 6.09(b) and (c), each of the Company, Parent and Merger Co agrees to use its reasonable best efforts to effect the consummation of the Merger as soon as practicable after the date hereof. Without limiting the foregoing, (i) each of the Company, Parent and Merger Co agrees to use its reasonable best efforts to take, or cause to be taken, all actions necessary to comply promptly with all legal requirements that may be imposed on itself with respect to the Merger (which actions shall include furnishing all information required under the HSR Act, as provided in Section 6.09(b) below, and in connection with approvals of or filings with any other Governmental Authority) and shall promptly cooperate with and furnish information to each other in connection with any such requirements imposed upon any of them or any of their Subsidiaries in connection with the Merger, (ii) each of the Company, Parent and Merger Co shall, and shall cause its subsidiaries to, use its or their reasonable best efforts to obtain (and shall cooperate with each other in obtaining) any consent, authorization, order or approval of, or any exemption by, any Governmental Authority or other public or private third Person required to be obtained or made by Parent, Merger Co, the Company or any of their subsidiaries in connection with the Merger or the taking of any action contemplated thereby or by this Agreement, and (iii) each of the Company, Parent and Merger Co shall, and shall cause its subsidiaries to, use its reasonable best efforts to cause the conditions set forth in Section 7.01(b) and 7.03(d) to be satisfied. The Company, Parent and Merger Co each hereby agree promptly (and in any event within three business days) to notify each other party hereto of any event, circumstance or condition of which the Company, Parent or Merger Co becomes aware that could reasonably be expected to constitute or give rise to a material breach of any representation or warranty, covenant or condition contained in this Agreement.
(b) Without limiting the generality of the foregoing:
(i) Each party agrees to make 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 following the date of this Agreement and to supply promptly any additional information and documentary material (a "Second Request") that may be requested pursuant to the HSR Act. In the event a Second Request is made, the Expiration Date shall automatically be extended until October 31, 2006.
(ii) Parent, Merger Co and the Company shall:
(A) take promptly any or all of the following actions to the extent necessary to eliminate any concerns on the part of any Governmental Authority with jurisdiction over the enforcement, of any applicable antitrust Law ("Government Antitrust Authority") regarding the legality under any antitrust Law of the Merger: entering into negotiations, providing information, making proposals, entering into and performing agreements or submitting to judicial or administrative orders, or selling or otherwise disposing of, or holding separate (through the establishment of a trust or otherwise), particular assets or categories of assets, or businesses, of (1) the Parent and Merger Co or any of their subsidiaries (which for purposes of this Section 6.09 shall only be deemed to include an entity in which SemGroup LP owns, directly or indirectly, 50% or more of the voting securities or equity of such entity) or (2) the Company and its Subsidiaries;
(B) use their reasonable best efforts to prevent the entry in a judicial or administrative proceeding brought under any antitrust Law by any Government Antitrust Authority of any permanent or preliminary injunction or other order that would make consummation of the Merger in accordance with the terms of this Agreement unlawful or that would prevent or delay such consummation;
(C) take promptly, in the event that such an injunction or order has been issued in such a proceeding, any and all steps, including, without limitation, the appeal thereof, the posting of a bond or the other steps contemplated by clause (A) above, necessary to vacate, modify or suspend such injunction or order so as to permit such consummation on a schedule as close as possible to that contemplated by this Agreement; and
(D) take promptly all other actions and do all other things necessary and proper to avoid or eliminate each and every impediment under any antitrust Law that may be asserted by any Government Antitrust Authority or any other party to the consummation of the Merger by the Parent and Merger Co in accordance with the terms of this Agreement.
(iii) Notwithstanding anything to the contrary set forth in this Section 6.09(b), Parent, Merger Co and the Company shall not be required (A) to agree to or make any divestiture of shares of capital stock or of any business, assets or property of Parent, Merger Co or the Company, or any of their respective subsidiaries or Affiliates if, as a result of such request, the aggregate fair market value of the shares of capital stock or of any business, assets or property required to be divested or held separate by Parent, Merger Co and their subsidiaries, on the one hand, or by the Company and its Subsidiaries, on the other hand, would exceed $5,000,000; or (B) take any of the actions described in subsections (A) through (D) of Section 6.09(b)(ii), if to do so would, in the reasonable, good faith judgment of the management committee of the general partner of SemGroup LP, have a material adverse effect upon the business plans of SemGroup LP for the conduct of the business after the Closing of (x) the Surviving Corporation and its Subsidiaries, taken as a whole; (y) TransMontaigne Partners and the MLP Subsidiaries, taken as a whole; and/or
Appears in 1 contract
