Further Actions; Regulatory Approvals; Required Actions. (a) Subject to the terms and conditions of this Agreement, each of the Parties shall use its reasonable best efforts to take, or cause to be taken, all actions, and do, or cause to be done, and assist and cooperate with the other Parties in doing, all things necessary to cause the conditions to the Closing set forth in Article VII to be satisfied as promptly as reasonably practicable and to effect the Closing as promptly as reasonably practicable thereafter, including (i) making all necessary Filings with Governmental Entities or third parties, (ii) obtaining the Required Consents and any third-party Consents that are necessary, proper or advisable to consummate the Merger, (iii) obtaining the Required Approvals and all other Consents of Governmental Entities that are necessary, proper or advisable to consummate the Merger and the other transactions contemplated hereby and (iv) executing and delivering any additional instruments that are necessary, proper or advisable to consummate the Merger and the other transactions contemplated hereby. (b) In connection with and without limiting the generality of Section 6.03(a) and subject to the obligations of Section 6.06, (i) each of Parent and the Company shall make or cause to be made, in consultation and cooperation with the other, at a mutually agreeable time after the date of this Agreement, (1) an appropriate filing of a Notification and Report Form pursuant to the HSR Act relating to the Merger, (2) all other necessary Filings relating to the Merger with other Governmental Entities under any other Antitrust Law, and (3) all necessary filings with the U.S. Federal Communications Commission; (ii) each of Parent and the Company shall use reasonable best efforts to obtain CFIUS Approval, which shall include (1) preparing and filing a declaration with CFIUS with respect to the transactions contemplated by this Agreement as promptly as practicable after the date of this Agreement and in any event within twenty (20) Business Days (unless otherwise agreed by the Parties) and (2), if applicable, as promptly as practicable, and in any event, within twenty (20) Business Days (unless otherwise agreed by the Parties) following receipt of written notification (including by email) from CFIUS that, based on its assessment of the declaration, CFIUS requests that the parties file a joint voluntary notice of the transactions contemplated by this Agreement, prefiling and filing a final joint voluntary notice with CFIUS with respect to the transactions contemplated by this Agreement, in each case pursuant to the DPA; (iii) other than those filings referenced in Section 6.03(b)(i) and Section 6.03(b)(ii), the Company shall make or cause to be made, in consultation and cooperation with and upon consent of Parent, such consent not to be unreasonably withheld, conditioned, or delayed, as promptly as reasonably practicable after the date of this Agreement and in any event within seventy-five (75) days after the date of this Agreement, which may be extended by mutual agreement of the Parties (such consent not to be unreasonably withheld, conditioned or delayed), all necessary Filings with other Governmental Entities relating to the Merger, including any such Filings necessary to obtain any Required Approval; (iv) each of Parent and the Company shall furnish to the other all assistance, cooperation and information reasonably required for any such Filing made by such Party and in order to achieve the effects set forth in this Section 6.03; (v) unless prohibited by applicable Law or by a Governmental Entity, each of Parent and the Company shall give the other Parties reasonable prior notice of any such Filing and, to the extent reasonably practicable, of any written or oral communication with any Governmental Entity relating to the Merger (including with respect to any of the actions referred to in this Section 6.03(b)) and, to the extent reasonably practicable, permit the other to review and discuss in advance, and consider in good faith the views and comments of, and secure the participation of (including supplying appropriate witnesses to the extent necessary or advisable), the other in connection with any such Filing (except for HSR Act filings) or communication; (vi) each of Parent and the Company shall respond as promptly as reasonably practicable under the circumstances (and, with respect to CFIUS, in any event, no later than the applicable timeline requested by CFIUS pursuant to the DPA, including any extensions granted thereunder) to any inquiries directed to such Party received from any Governmental Entity or any other authority enforcing the DPA or applicable Antitrust Laws for additional information, documentation, certifications or other materials in connection with the CFIUS Approval, antitrust, competition or similar matters (including a “second request” under the HSR Act) and not enter into any agreement with any such Governmental Entity or other authorities not to consummate the Merger, except with the prior written consent of the other Parties, such consent not to be unreasonably withheld, conditioned, or delayed; (vii) each of Parent and the Company shall make an appropriate response to any requests made of such Party by any Governmental Entity in connection with any review or investigation of the transactions contemplated by this Agreement; and (viii) unless prohibited by applicable Law or a Governmental Entity, to the extent reasonably practicable, each of Parent and the Company shall (1) not participate in or attend any meeting, telephone call or conference or engage in any substantive conversation with any Governmental Entity (including any member or representative of any Governmental Entity’s staff) regarding specific approval of the Merger without the other Parties, (2) give the other reasonable prior notice of and invitation to any such meeting, telephone call or conference or conversation (in each case, with full participation rights) and considering in good faith the views of the other Party in connection therewith, and, in the event one Party is prohibited by applicable Law or by the applicable Governmental Entity from participating in or attending any such meeting, telephone call or conference or engaging in any such conversation, keep such Party apprised (including by providing summaries, if applicable) with respect thereto, (3) cooperate in the filing of any substantive memoranda, white papers, filings, pleadings, correspondence, responses or other written communications explaining or defending or otherwise in connection with this Agreement or the Merger, articulating any regulatory or competitive argument or responding to requests or objections made by any Governmental Entity or any intervenor in any proceeding relating to a Required Approval and (4) furnish the other Parties with copies (including any drafts submitted to a Governmental Entity) of all substantive correspondence, Filings (except HSR Act filings) and communications (and memoranda setting forth the substance thereof) between it and its Affiliates and their respective Representatives on the one hand, and any Governmental Entity or members of any Governmental Entity’s staff, on the other hand, with respect to this Agreement or the Merger; provided that the Parties shall be permitted to designate any correspondence, Filing or communication as “outside counsel only” to the extent such correspondence, Filing or communication contains commercially sensitive information and the receiving outside counsel shall not provide these materials to the Party it represents; provided, further, any information required to be provided pursuant to this Section 6.03(b)(viii) may be redacted (A) to remove references concerning the valuation of the Company, (B) as necessary to comply with contractual arrangements, (C) as necessary to comply with applicable Law, (D) to remove any “personal identifier information” (as defined in the DPA), and (E) as necessary to address reasonable privilege or confidentiality concerns. For the avoidance of doubt, this Section 6.03(b) shall not apply to Tax matters. (c) Parent shall not, and shall not knowingly cause its Affiliates to, (I) enter into any transaction to acquire any asset, property, business or Person (by way of merger, consolidation, share exchange, investment, other business combination, asset, stock or equity purchase, or otherwise) or (II) enter into any new commercial activities or businesses unrelated to the transactions contemplated by this Agreement in the State of Minnesota or the State of Wisconsin, in each case of clause (I) and clause (II), that would reasonably be expected to materially increase the risk of (w) not obtaining any Required Approval, (x) not making any Consent or Filing contemplated by this Section 6.03 or (y) materially delaying the receipt of any Required Approval or the making of any making any Consent or Filing contemplated by this Section 6.03. In furtherance of and without limiting any of Parent’s covenants and agreements under this Section 6.03 and Section 6.06, Parent shall use its reasonable best efforts to avoid or eliminate each and every impediment that may be asserted by a Governmental Entity so as to enable the Closing to occur as soon as reasonably possible, which such reasonable best efforts shall include the following: (i) defending through litigation on the merits, any Claim asserted in any court or other proceeding by any Person, including any Governmental Entity, that seeks to or could prevent or prohibit or impede, interfere with or materially delay the consummation of the Closing, and shall have the right, but not the obligation, to appeal an adverse decision on the merits; (ii) proposing, negotiating, committing to and effecting, by consent decree, hold separate order or otherwise, the sale, divestiture, licensing or disposition of any assets or businesses of Parent or the Company or the Company Subsidiaries, including entering into customary ancillary agreements on commercially reasonable terms relating to any such sale, divestiture, licensing or disposition; (iii) agreeing to any limitation on the conduct of Parent (including, after the Closing, the Surviving Corporation and the Company Subsidiaries); and (iv) agreeing to take any other action as may be required by a Governmental Entity in order to effect each of the following: (1) obtaining all Required Approvals as soon as reasonably possible and in any event before the End Date, (2) having vacated, lifted, dissolved, reversed or overturned any Judgment that is in effect that prohibits, prevents or restricts the consummation of, or impedes, interferes with or materially delays the Closing and (3) effecting the expiration or termination of any waiting period, which would otherwise have the effect of preventing, prohibiting or restricting consummation of the Closing or impeding, interfering with or materially delaying the Closing. (d) Notwithstanding anything to the contrary, nothing in this Section 6.03 (other than the first sentence of Section 6.03(c)) shall require Parent to take, or agree to take, any action (other than with respect to any restrictions on information sharing or any other action which is not material to Parent or such Person) related to (x) any of its Affiliates, (y) any Sponsor or their respective direct or indirect portfolio companies owned, managed, advised or controlled by any of the Sponsors or any of their respective Affiliates or (z) any limited partner or other direct or indirect investors in any investment fund affiliated with, advised or managed by any Sponsor or any of their respective Affiliates, or any of the respective Affiliates of any such limited partners or investors; provided, further, that the provisions of this Section 6.03 shall not be construed to (x) require Parent, Merger Sub or any Affiliate of Parent or (y) permit the Company without the prior written consent of Parent (which consent shall not to be unreasonably withheld, conditioned, or delayed), to undertake any efforts or take any action (including accepting any terms, conditions, liabilities, obligations, commitment, sanctions or other measures and proposing, negotiating, committing to and effect, by consent decree, hold separate order or otherwise, the sale, divestiture, licensing or disposition of assets or businesses of Parent or the Company or their respective Affiliates) if the taking of such efforts or action, individually or in the aggregate, has resulted or would reasonably be expected to result in a Burdensome Condition; provided, further, that notwithstanding anything contained in this Agreement to the contrary, in no event shall Parent, Merger Sub or any Affiliate of Parent be required to pursue or defend any Claim against CFIUS in connection with the transactions contemplated hereby, including the Merger. Nothing in this Section 6.03 shall obligate the Parent, the Company or any of their respective Affiliates to take any action that is not conditioned on the Closing. (e) Parent shall promptly notify the Company and the Company shall notify Parent of any notice or other communication from any Person alleging that such Person’s Consent is or may be required in connection with the Merger.
Appears in 2 contracts
Samples: Merger Agreement (Allete Inc), Merger Agreement (Allete Inc)
Further Actions; Regulatory Approvals; Required Actions. (a) Subject to the terms and conditions of this Agreement, each of the Parties shall use its respective reasonable best efforts to take, or cause to be taken, all actions, and do, or cause to be done, and assist and cooperate with the other Parties in doing, all things necessary to cause the conditions to the Closing set forth in Article VII to be satisfied as promptly as reasonably practicable and or to effect the Closing as promptly as reasonably practicable thereafterpracticable, including (i) making all necessary Filings with Governmental Entities or third parties, (ii) obtaining the Required Consents and any all other third-party Consents that are necessary, proper or advisable to consummate the Merger, (iii) obtaining the Required Statutory Approvals and all other Consents of Governmental Entities that are necessary, proper or advisable to consummate the Merger and the other transactions contemplated hereby and (iv) executing and delivering any additional instruments that are necessary, proper or advisable to consummate the Merger and the other transactions contemplated hereby.
(b) In connection with and without limiting the generality of Section 6.03(a) and subject to the obligations of Section 6.06,
(i) ), each of Parent and the Company shall shall:
(i) make or cause to be made, in consultation and cooperation with the other, at a mutually agreeable time after the date of this Agreement, (1) an appropriate filing of a Notification and Report Form pursuant to the HSR Act relating to the Merger, and (2) all other necessary Filings relating to the Merger with other Governmental Entities under any other Antitrust Law, and (3) all necessary filings with the U.S. Federal Communications Commission;
(ii) each of Parent and the Company shall use reasonable best efforts to obtain CFIUS Approval, which shall include (1) preparing and filing a declaration with CFIUS with respect to the transactions contemplated by this Agreement as promptly as practicable after the date of this Agreement and in any event within twenty (20) Business Days (unless otherwise agreed by the Parties) and (2), if applicable, as promptly as practicable, and in any event, within twenty (20) Business Days (unless otherwise agreed by the Parties) following receipt of written notification (including by email) from CFIUS that, based on its assessment of the declaration, CFIUS requests that the parties file a joint voluntary notice of the transactions contemplated by this Agreement, prefiling and filing a final joint voluntary notice with CFIUS with respect to the transactions contemplated by this Agreement, in each case pursuant to the DPA;
(iii) other than those filings referenced in Section 6.03(b)(i) and Section 6.03(b)(ii), the Company shall make or cause to be made, in consultation and cooperation with and upon consent of Parent, such consent not to be unreasonably withheld, conditioned, or delayed, as promptly as reasonably practicable after the date of this Agreement and in any event within seventy-five sixty (7560) days after the date of this Agreement, which may be extended by mutual agreement of the Parties (such consent not to be unreasonably withheld, conditioned or delayed)Parties, all necessary Filings with other Governmental Entities relating to the Merger, including any such Filings necessary to obtain any Required Statutory Approval;
(iviii) each of Parent and the Company shall furnish to the other all assistance, cooperation and information reasonably required for any such Filing made by such Party and in order to achieve the effects set forth in this Section 6.03;
(viv) unless prohibited by applicable Law or by a Governmental Entity, each of Parent and the Company shall give the other Parties reasonable prior notice of any such Filing and, to the extent reasonably practicable, of any written or oral communication with any Governmental Entity relating to the Merger (including with respect to any of the actions referred to in this Section 6.03(b)) and, to the extent reasonably practicable, permit the other to review and discuss in advance, and consider in good faith the views and comments of, and secure the participation of (including supplying appropriate witnesses to the extent necessary or advisable)of, the other in connection with any such Filing (except for HSR Act filings) or communication;
(viv) each of Parent and the Company shall respond as promptly as reasonably practicable under the circumstances (and, with respect to CFIUS, in any event, no later than the applicable timeline requested by CFIUS pursuant to the DPA, including any extensions granted thereunder) to any inquiries directed to such Party received from any Governmental Entity or any other authority enforcing the DPA or applicable Antitrust Laws for additional information, documentation, certifications information or other materials documentation in connection with the CFIUS Approval, antitrust, competition or similar matters (including a “second request” under the HSR Act) and not extend any waiting period under the HSR Act or enter into any agreement with any such Governmental Entity or other authorities not to consummate the Merger, except with the prior written consent of the other Parties, such consent not to be unreasonably withheld, conditioned, or delayedParty;
(viivi) each of Parent and the Company shall make an appropriate response to provide any requests made of such Party information requested by any Governmental Entity in connection with any review or investigation of the transactions contemplated by this Agreement; and and
(viiivii) unless prohibited by applicable Law or a Governmental Entity, to the extent reasonably practicable, each of Parent and the Company shall (1) not participate in or attend any meeting, telephone call or conference meeting or engage in any substantive conversation with any Governmental Entity (including any member or representative of any Governmental Entity’s staff) regarding specific approval in respect of the Merger without the other PartiesParty, (2) to the extent reasonably practicable, give the other reasonable prior notice of and invitation to any such meeting, telephone call or conference meeting or conversation (in each case, with full participation rights) and considering in good faith the views of the other Party in connection therewith, and, in the event one Party is prohibited by applicable Law or by the applicable Governmental Entity from participating in or attending any such meeting, telephone call or conference meeting or engaging in any such conversation, keep such Party apprised (including by providing summaries, if applicable) with respect thereto, (3) cooperate in the filing of any substantive memoranda, white papers, filings, pleadings, correspondence, responses correspondence or other written communications explaining or defending or otherwise in connection with this Agreement or the Merger, articulating any regulatory or competitive argument or responding to requests or objections made by any Governmental Entity or any intervenor in any proceeding relating to a Required Approval and (4) furnish the other Parties Party with copies (including any drafts submitted to a Governmental Entity) of all substantive correspondence, Filings (except HSR Act filings) and communications (and memoranda setting forth the substance thereof) between it and its Affiliates and their respective Representatives on the one hand, and any Governmental Entity or members of any Governmental Entity’s staff, on the other hand, with respect to this Agreement or the Merger; provided that the Parties shall be permitted to designate redact any correspondence, Filing or communication as “outside counsel only” to the extent such correspondence, Filing or communication contains commercially sensitive information and the receiving outside counsel shall not provide these materials to the Party it represents; provided, further, any information required to be provided pursuant to this Section 6.03(b)(viii) may be redacted (A) to remove references concerning the valuation of the Company, (B) as necessary to comply with contractual arrangements, (C) as necessary to comply with applicable Law, (D) to remove any “personal identifier information” (as defined in the DPA), and (E) as necessary to address reasonable privilege or confidentiality concerns. For the avoidance of doubt, this Section 6.03(b) shall not apply to Tax matters.
(c) Parent shall not, and shall not knowingly cause its Affiliates not to, (I) enter into take any transaction to acquire action, including acquiring any asset, property, business or Person (by way of merger, consolidation, share exchange, investment, other business combination, asset, stock or equity purchase, or otherwise) or (II) enter into any new commercial activities or businesses unrelated to the transactions contemplated by this Agreement in the State of Minnesota or the State of Wisconsin, in each case of clause (I) and clause (II), that would could reasonably be expected to materially increase the risk of (w) not obtaining any Required Approval, (x) not or making any Consent or Filing contemplated by this Section 6.03 or (y) materially delaying the timely receipt of any Required Approval or the making of any making any Consent or Filing contemplated by this Section 6.03thereof. In furtherance of and without limiting any of Parent’s covenants and agreements under this Section 6.03 and Section 6.066.03, Parent shall use its reasonable best efforts to avoid or eliminate each and every impediment that may be asserted by a Governmental Entity pursuant to any Antitrust Law with respect to the Merger or in connection with granting any Required Statutory Approval so as to enable the Closing to occur as soon as reasonably possible, which such reasonable best efforts shall include the following:
(i) defending through litigation on the merits, including appeals, any Claim asserted in any court or other proceeding by any Person, including any Governmental Entity, that seeks to or could prevent or prohibit or impede, interfere with or materially delay the consummation of the Closing, and shall have the right, but not the obligation, to appeal an adverse decision on the merits;
(ii) proposing, negotiating, committing to and effecting, by consent decree, hold separate order or otherwise, the sale, divestiture, licensing or disposition of any assets or businesses of Parent or its Affiliates or the Company or the Company Subsidiaries, including entering into customary ancillary agreements on commercially reasonable terms relating to any such sale, divestiture, licensing or disposition;
(iii) agreeing to any limitation on the conduct of Parent or its Affiliates (including, after the Closing, the Surviving Corporation and the Company Subsidiaries); and
(iv) agreeing to take any other action as may be required by a Governmental Entity in order to effect each of the following: (1) obtaining all Required Statutory Approvals as soon as reasonably possible and in any event before the End Date, (2) avoiding the entry of, or having vacated, lifted, dissolved, reversed or overturned any Judgment Judgment, whether temporary, preliminary or permanent, that is in effect that prohibits, prevents or restricts the consummation of, or impedes, interferes with or materially delays delays, the Closing and (3) effecting the expiration or termination of any waiting period, which would otherwise have the effect of preventing, prohibiting or restricting consummation of the Closing or impeding, interfering with or materially delaying the Closing.
(d) Notwithstanding ; provided that, notwithstanding anything to the contrary, nothing else contained in this Section 6.03 (other than the first sentence of Section 6.03(c)) shall require Parent to takeAgreement, or agree to take, any action (other than with respect to any restrictions on information sharing or any other action which is not material to Parent or such Person) related to (x) any of its Affiliates, (y) any Sponsor or their respective direct or indirect portfolio companies owned, managed, advised or controlled by any of the Sponsors or any of their respective Affiliates or (z) any limited partner or other direct or indirect investors in any investment fund affiliated with, advised or managed by any Sponsor or any of their respective Affiliates, or any of the respective Affiliates of any such limited partners or investors; provided, further, that the provisions of this Section 6.03 shall not be construed to (xi) require Parent, Merger Sub or any Affiliate of Parent Subsidiary or (yii) permit the Company or any Company Subsidiary without the prior written consent of Parent (which consent shall not to be unreasonably withheld, conditioned, or delayed)Parent, to undertake any efforts or take any action (including accepting any terms, conditions, liabilities, obligations, commitmentcommitments, sanctions or other measures and proposing, negotiating, committing to and effecteffecting, by consent decree, hold separate order or otherwise, the sale, divestiture, licensing or disposition of assets or businesses of Parent or the Company or their respective AffiliatesSubsidiaries) if the taking of such efforts or action, individually or in the aggregate, has resulted or would reasonably be expected to result in a Burdensome Condition; provided, further, that notwithstanding Regulatory Material Adverse Effect.
(d) Notwithstanding anything contained in this Agreement to the contrary, in no event shall Parent, Merger Sub or any Affiliate of Parent be required to pursue or defend any Claim against CFIUS in connection with the transactions contemplated hereby, including the Merger. Nothing contrary in this Section 6.03 6.03, (i) Parent shall obligate have primary responsibility for, and shall take the Parentlead in, scheduling and conducting any meeting with any Governmental Entity, coordinating and making any applications and filings with, and resolving any investigation or other inquiry of, any agency or other Governmental Entity, obtaining the Parent Required Statutory Approvals and the Company Required Statutory Approvals, Required Consents, Consents, Permits and other approvals and confirmations from any Governmental Entity necessary, proper or advisable to consummate the Transactions; provided that, Parent agrees to consult with the Company reasonably in advance of taking any of their respective Affiliates to take any action that is not conditioned on the Closing.
(e) such action. Parent shall promptly notify the Company and the Company shall notify Parent of any notice or other communication from any Person alleging that such Person’s Consent is or may be required in connection with the Merger.
Appears in 2 contracts
Samples: Merger Agreement (Westar Energy Inc /Ks), Merger Agreement (Kansas City Power & Light Co)
Further Actions; Regulatory Approvals; Required Actions. (a) Subject to the terms and conditions of this Agreement, each of the Parties Party shall use its reasonable best efforts to take, or cause to be taken, all actions, and do, or cause to be done, and assist and cooperate with the other Parties in doing, all things necessary to cause the conditions to the Closing set forth in Article VII ARTICLE VI to be satisfied as promptly as reasonably practicable and to effect the Closing as promptly as reasonably practicable thereafterpracticable, including (i) making all necessary Filings registrations, declarations, notices or filings (“Filings”) with Governmental Entities Authorities or third parties, parties and (ii) requesting early termination of the waiting period under the HSR Act applicable to the Transactions and obtaining the Required Consents HSR Clearance and any third-party Consents all other consents, waivers and permits (“Consents”) of Governmental Authorities that are necessary, proper or advisable necessary to consummate the Merger, Transactions as promptly as reasonably practicable. Buyer shall be responsible for 100% of the filing fees associated with any Filings or Consents contemplated by this Section 5.6 (iii) obtaining including filing fees under the Required Approvals and all other Consents of Governmental Entities that are necessary, proper or advisable to consummate the Merger and the other transactions contemplated hereby and (iv) executing and delivering any additional instruments that are necessary, proper or advisable to consummate the Merger and the other transactions contemplated herebyHSR Act).
(b) In connection with and without limiting the generality of Section 6.03(a) and subject to the obligations of Section 6.06,5.6(a), each Party shall:
(i) each of Parent and the Company shall make file or cause to be madefiled with the Department of Justice and the Federal Trade Commission, in consultation and cooperation with the other, at a mutually agreeable time after the date of this Agreement, (1) an appropriate filing of a Notification and Report Form pursuant to the HSR Act relating to the Merger, (2) all other necessary Filings relating to the Merger with other Governmental Entities under any other Antitrust Law, and (3) all necessary filings with the U.S. Federal Communications Commission;
(ii) each of Parent and the Company shall use reasonable best efforts to obtain CFIUS Approval, which shall include (1) preparing and filing a declaration with CFIUS with respect to the transactions contemplated by this Agreement as promptly as practicable after the date of this Agreement and in any event within twenty (20) Business Days (unless otherwise agreed by the Parties) and (2)and, if applicable, as promptly as practicable, and in any event, within twenty (20) Business Days (unless otherwise agreed by the Parties) following receipt of written notification (including by email) from CFIUS thatno later than June 28, based on its assessment of the declaration2024, CFIUS requests that the parties file a joint voluntary notice of the transactions contemplated by this Agreement, prefiling an appropriate “Notification and filing a final joint voluntary notice with CFIUS with respect to the transactions contemplated by this Agreement, in each case Report Form” pursuant to the DPAHSR Act relating to the Transactions;
(iiiii) other than those filings referenced in Section 6.03(b)(i) and Section 6.03(b)(ii), the Company shall make or cause to be made, in consultation and cooperation with and upon consent of Parent, such consent not to be unreasonably withheld, conditioned, or delayed, as promptly as reasonably practicable after the date of this Agreement and in any event within seventy-five (75) days after the date of this Agreement, which may be extended by mutual agreement of the Parties (such consent not to be unreasonably withheld, conditioned or delayed), all necessary Filings with other Governmental Entities relating to the Merger, including any such Filings necessary to obtain any Required Approval;
(iv) each of Parent and the Company shall furnish to the other all assistance, cooperation and information reasonably required for any such Filing made by such Party and in order to achieve the effects set forth in this Section 6.035.6;
(viii) unless prohibited by applicable Law or by a Governmental EntityAuthority, each of Parent and the Company shall give the other Parties reasonable prior notice of any such Filing and, to the extent reasonably practicable, of any written or oral communication with any Governmental Entity Authority relating to the Merger Transactions (including with respect to any of the actions referred to in this Section 6.03(b5.6(b)) and, to the extent reasonably practicable, permit the other to review and discuss in advance, and consider in good faith the views and comments of, and secure the participation of (including supplying appropriate witnesses to the extent necessary or advisable)of, the other in connection with any such Filing (except for HSR Act filings) or communication;
(viiv) each of Parent and the Company shall respond as promptly as reasonably practicable under the circumstances (and, with respect to CFIUS, in any event, no later than the applicable timeline requested by CFIUS pursuant to the DPA, including any extensions granted thereunder) to any inquiries directed to such Party received from any Governmental Entity Authority or any other authority enforcing the DPA or applicable Antitrust Laws for additional information, documentation, certifications information or other materials documentation in connection with the CFIUS Approval, antitrust, competition or similar matters (including a “second request” and not extend any waiting period under the HSR Act) and not Act or enter into any agreement with any such Governmental Entity Authority or other authorities not to consummate the MergerTransactions, except with the prior written consent of the other Parties, such consent not to be unreasonably withheld, conditioned, or delayed;Party; and
(vii) each of Parent and the Company shall make an appropriate response to any requests made of such Party by any Governmental Entity in connection with any review or investigation of the transactions contemplated by this Agreement; and (viiiv) unless prohibited by applicable Law or a Governmental EntityAuthority, to the extent reasonably practicable, each of Parent and the Company shall (1) not participate in or attend any meetingmeeting (whether in person or via telephone) with any Governmental Authority in respect of the Transactions without the other Party, telephone call (2) keep the other Party apprised with respect to any meeting or conference or engage in any substantive conversation with any Governmental Entity (including any member or representative of any Governmental Entity’s staff) regarding specific approval Authority in respect of the Merger without the other Parties, (2) give the other reasonable prior notice of and invitation to any such meeting, telephone call or conference or conversation (in each case, with full participation rights) and considering in good faith the views of the other Party in connection therewith, and, in the event one Party is prohibited by applicable Law or by the applicable Governmental Entity from participating in or attending any such meeting, telephone call or conference or engaging in any such conversation, keep such Party apprised (including by providing summaries, if applicable) with respect theretoTransactions, (3) cooperate in the filing of any substantive memoranda, white papers, filings, pleadings, correspondence, responses correspondence or other written communications explaining or defending or otherwise in connection with this Agreement Agreement, the Ancillary Agreements, or the MergerTransactions, articulating any regulatory or competitive argument or responding to requests or objections made by any Governmental Entity or any intervenor in any proceeding relating to a Required Approval Authority and (4) furnish the other Parties Party with copies (including any drafts submitted to a Governmental Entity) of all substantive correspondence, Filings (except HSR Act filings) and communications (and memoranda setting forth the substance thereof) between it and its Affiliates and their respective Representatives Representatives, on the one hand, and any Governmental Entity Authority or members of any Governmental EntityAuthority’s staff, on the other hand, with respect to this Agreement Agreement, the Ancillary Agreements, or the MergerTransactions; provided provided, however, that the Parties shall be permitted to designate redact any correspondence, Filing or communication as “outside counsel only” to the extent such correspondence, Filing or communication contains commercially sensitive information and the receiving outside counsel shall not provide these materials to the Party it represents; provided, further, any information required to be provided pursuant to this Section 6.03(b)(viii) may be redacted (A) to remove references concerning the valuation of the Company, (B) as necessary to comply with contractual arrangements, (C) as necessary to comply with applicable Law, (D) to remove any “personal identifier information” (as defined in the DPA), and (E) as necessary to address reasonable privilege or confidentiality concerns. For the avoidance of doubt, this Section 6.03(b5.6(b) and Section 5.6(e) shall not apply with respect to Tax matters.
(c) Parent Buyer shall not, and shall not knowingly cause its Affiliates not to, (I) enter into take any transaction to acquire action, including acquiring any asset, property, business or Person (by way of merger, consolidation, share exchange, investment, other business combination, asset, stock or equity purchase, or otherwise) or (II) enter into any new commercial activities or businesses unrelated to the transactions contemplated by this Agreement in the State of Minnesota or the State of Wisconsin, in each case of clause (I) and clause (II), that would could reasonably be expected to materially increase the risk of (w) not adversely affect obtaining any Required Approval, (x) not or making any Consent or Filing contemplated by this Section 6.03 or (y) materially delaying the receipt of any Required Approval 5.6 or the making of any making any Consent or Filing contemplated by this Section 6.03timely receipt thereof. In furtherance of and without limiting any of ParentBuyer’s covenants and agreements under this Section 6.03 and Section 6.065.6, Parent Buyer shall use its reasonable best efforts take actions reasonably necessary, proper or advisable to avoid or eliminate each and every impediment that may be asserted by a Governmental Entity Authority with respect to the Transactions, including pursuant to any Antitrust Law, so as to enable the Closing to occur as soon as reasonably possible, which such reasonable best efforts shall include the following:
(i) defending through litigation on the merits, any Claim asserted in any court or other proceeding by any Person, including any Governmental Entity, that seeks to or could prevent or prohibit or impede, interfere with or materially delay the consummation of the Closing, and shall have the right, but not the obligation, to appeal an adverse decision on the merits;
(ii) proposing, negotiating, committing to and effecting, by consent decree, hold separate order or otherwise, the sale, divestiture, licensing or disposition of any assets or businesses of Parent or the Company or the Company Subsidiaries, including entering into customary ancillary agreements on commercially reasonable terms relating to any such sale, divestiture, licensing or disposition;
(iii) agreeing to any limitation on the conduct of Parent (including, after the Closing, the Surviving Corporation and the Company Subsidiaries); and
(iv) agreeing to take any other action as may be required by a Governmental Entity in order to effect each of the following: (1) obtaining all Required Approvals as soon as reasonably possible and in any event before the End Date, (2) having vacated, lifted, dissolved, reversed or overturned any Judgment that is in effect that prohibits, prevents or restricts the consummation of, or impedes, interferes with or materially delays the Closing and (3) effecting the expiration or termination of any waiting period, which would otherwise have the effect of preventing, prohibiting or restricting consummation of the Closing or impeding, interfering with or materially delaying the Closing.
(d) Notwithstanding anything in this Agreement to the contrary, nothing in this Section 6.03 it is expressly understood and agreed that: (other than the first sentence of Section 6.03(c)i) neither Buyer nor Sellers shall require Parent have any obligation to take, litigate or agree to take, contest any action (other than with respect to any restrictions on information sharing administrative or judicial Action or any decree, judgment, injunction or other action which is not material order, whether temporary, preliminary or permanent; and (ii) neither Buyer nor Sellers shall be under any obligation to Parent make any proposals, execute or such Person) related carry out agreements, enter into consent decrees or submit to orders providing for (x) any of its Affiliatesthe sale, (y) any Sponsor or their respective direct or indirect portfolio companies owneddivestiture, managed, advised or controlled by any of the Sponsors or any of their respective Affiliates or (z) any limited partner license or other direct disposition or indirect investors in holding separate (through the establishment of a trust or otherwise) of any investment fund affiliated withassets or categories of assets of Buyer, advised or managed by any Sponsor Sellers or any of their respective Affiliates, or any of the respective Affiliates of any such limited partners or investors; provided, further, that the provisions of this Section 6.03 shall not be construed to (x) require Parent, Merger Sub or any Affiliate of Parent or (y) permit the Company without imposition of any limitation or regulation on the prior written consent ability of Parent (which consent shall not to be unreasonably withheldBuyer, conditioned, or delayed), to undertake any efforts or take any action (including accepting any terms, conditions, liabilities, obligations, commitment, sanctions or other measures and proposing, negotiating, committing to and effect, by consent decree, hold separate order or otherwise, the sale, divestiture, licensing or disposition of assets or businesses of Parent or the Company or their respective Affiliates) if the taking of such efforts or action, individually or in the aggregate, has resulted or would reasonably be expected to result in a Burdensome Condition; provided, further, that notwithstanding anything contained in this Agreement to the contrary, in no event shall Parent, Merger Sub or any Affiliate of Parent be required to pursue or defend any Claim against CFIUS in connection with the transactions contemplated hereby, including the Merger. Nothing in this Section 6.03 shall obligate the Parent, the Company Sellers or any of their respective Affiliates to take freely conduct their business or own such assets, or (z) the holding separate of any action that is not conditioned on the Closingshares or assets.
(e) Parent The Parties shall (i) promptly notify the Company other prior to the making or commencement of any request, inquiry, investigation, Action by or before any Governmental Authority with respect to the Transactions, (ii) keep the other Parties informed as to the status of any such request, inquiry, investigation, Action and (iii) promptly inform the Company shall other Parties of any communication to or from any Governmental Authority regarding the Transactions, and (iv) promptly notify Parent the other of any notice or other communication from any Person alleging that such Person’s Consent is or may be required in connection with the MergerTransactions.
(f) Prior to the Closing, Sellers shall use their commercially reasonable efforts to obtain the written consent of or provide notice to any third party (other than a Governmental Authority) that is disclosed in Schedule 5.6(f); provided, however, that Sellers shall not be required to expend material amounts of money or offer or grant any material accommodation (financial or otherwise) to any such third party or any other Person. Buyer shall use its commercially reasonable efforts to assist Sellers in obtaining each such consent. Notwithstanding the foregoing, and without limiting Section 6.3(g), the receipt of any consent identified on Schedule 5.6(f) shall not be a condition to any Party’s obligation to effect the Closing.
Appears in 1 contract
Further Actions; Regulatory Approvals; Required Actions. (a) Subject to the terms and conditions of this Agreement, each of the Parties shall use its reasonable best efforts to take, or cause to be taken, all actions, and do, or cause to be done, and assist and cooperate with the other Parties in doing, all things necessary to cause the conditions to the Closing set forth in Article VII to be satisfied as promptly as reasonably practicable and or to effect the Closing as promptly as reasonably practicable thereafterpracticable, including (i) making all necessary Filings with Governmental Entities or third parties, (ii) obtaining the Required Consents and any all other third-party Consents that are necessary, proper or advisable to consummate the Merger, (iii) obtaining the Required Statutory Approvals and all other Consents of Governmental Entities that are necessary, proper or advisable to consummate the Merger and the other transactions contemplated hereby and (iv) executing and delivering any additional instruments that are necessary, proper or advisable to consummate the Merger and the other transactions contemplated herebyMerger.
(b) In connection with and without limiting the generality of Section 6.03(a) and subject to the obligations of Section 6.06,
(i) ), each of Parent and the Company shall shall, as applicable:
(i) make or cause to be made, in consultation and cooperation with the other, at a mutually agreeable time as promptly as practicable after the date of this Agreement and in any event within forty-five (45) days after the date of this Agreement, (1) an appropriate filing of a Notification and Report Form pursuant to the HSR Act relating to the Merger, (2) all other necessary Filings relating to the Merger with other Governmental Entities under any other Antitrust Law, and (3) all necessary filings with the U.S. Federal Communications Commission;Merger;
(ii) each of Parent and the Company shall use reasonable best efforts make or cause to obtain CFIUS Approvalbe made, which shall include (1) preparing and filing a declaration with CFIUS with respect to the transactions contemplated by this Agreement as promptly as practicable after the date of this Agreement and in any event within twenty (20) Business Days (unless otherwise agreed by the Parties) and (2), if applicable, as promptly as practicable, and in any event, within twenty (20) Business Days (unless otherwise agreed by the Parties) following receipt of written notification (including by email) from CFIUS that, based on its assessment of the declaration, CFIUS requests that the parties file a joint voluntary notice of the transactions contemplated by this Agreement, prefiling and filing a final joint voluntary notice with CFIUS with respect to the transactions contemplated by this Agreement, in each case pursuant to the DPA;
(iii) other than those filings referenced in Section 6.03(b)(i) and Section 6.03(b)(ii), the Company shall make or cause to be made, in consultation and cooperation with and upon consent of Parent, such consent not to be unreasonably withheld, conditioned, or delayed, as promptly as reasonably practicable after the date of this Agreement and in any event within seventyforty-five (7545) days after the date of this Agreement, which may be extended by mutual agreement of the Parties (such consent not to be unreasonably withheld, conditioned or delayed), all necessary Filings with other Governmental Entities (including the State Utilities Commissions) relating to the Merger, including any such Filings necessary to obtain any Required Approval;Statutory Approval;
(iviii) each of Parent and the Company shall furnish to the other all assistance, cooperation and information reasonably required for any such Filing made by such Party and in order to achieve the effects set forth in this Section 6.03;6.03;
(viv) unless prohibited by applicable Law or by a Governmental Entity, each of Parent and the Company shall give the other Parties reasonable prior notice of any such Filing and, to the extent reasonably practicable, of any written or oral communication with any Governmental Entity relating to the Merger (including with respect to any of the actions referred to in this Section 6.03(b)) and, to the extent reasonably practicable, permit the other to review and discuss in advance, and consider in good faith the views and reasonable comments of, and secure the participation of (including supplying appropriate witnesses to the extent necessary or advisable)of, the other in connection with any such Filing (except for HSR Act filings) or communication;communication;
(viv) each of Parent and the Company shall respond as promptly as reasonably practicable under the circumstances (and, with respect to CFIUS, in any event, no later than the applicable timeline requested by CFIUS pursuant to the DPA, including any extensions granted thereunder) to any inquiries directed to such Party received from any Governmental Entity or any other authority enforcing the DPA or applicable Antitrust Laws for additional information, documentation, certifications information or other materials documentation in connection with the CFIUS Approval, antitrust, competition or similar matters (including a any “second request” under the HSR Act) and not extend any waiting period under the HSR Act or enter into any agreement with any such Governmental Entity or other authorities not to consummate the Merger, except with the prior written consent of the other Parties, such consent not to be unreasonably withheld, conditioned, or delayed;Party;
(vii) each of Parent and the Company shall make an appropriate response to any requests made of such Party by any Governmental Entity in connection with any review or investigation of the transactions contemplated by this Agreement; and (viiivi) unless prohibited by applicable Law or a Governmental Entity, to the extent reasonably practicable, each of Parent and the Company shall : (1) not participate in or attend any meeting, telephone call formal meeting with any Governmental Entity in respect of the Merger without a representative of the other Party; (2) keep the other Party apprised with respect to any meeting or conference or engage in any substantive conversation with any Governmental Entity (including any member or representative of any Governmental Entity’s staff) regarding specific approval in respect of the Merger without the other Parties, (2) give the other reasonable prior notice of and invitation to any such meeting, telephone call or conference or conversation (in each case, with full participation rights) and considering in good faith the views of the other Party in connection therewith, and, in the event one Party is prohibited by applicable Law or by the applicable Governmental Entity from participating in or attending any such meeting, telephone call or conference or engaging in any such conversation, keep such Party apprised (including by providing summaries, if applicable) with respect thereto, Merger; (3) cooperate in the filing of any substantive memoranda, white papers, filings, pleadings, correspondence, responses correspondence or other written communications explaining or defending or otherwise in connection with this Agreement or the Merger, articulating any regulatory or competitive argument or responding to requests or objections made by any Governmental Entity or any intervenor in any proceeding relating to a Required Approval Entity; and (4) furnish the other Parties Party with copies (including any drafts submitted to a Governmental Entity) of all substantive correspondence, Filings (except HSR Act filings) and communications (and memoranda setting forth the substance thereof) between it and its Affiliates and their respective Representatives on the one hand, and any Governmental Entity or members of any Governmental Entity’s staff, on the other hand, with respect to this Agreement or the Merger; Merger (provided that the Parties shall be permitted to designate redact any correspondence, Filing or communication as “outside counsel only” to the extent such correspondence, Filing or communication contains commercially sensitive information, which information and the receiving outside counsel shall not provide these materials to the Party it represents; provided, further, any information required to be provided pursuant to this Section 6.03(b)(viii) may be redacted (A) to remove references concerning the valuation of the Companycounsel on a confidential, (B) as necessary to comply with contractual arrangements, (C) as necessary to comply with applicable Law, (D) to remove any “personal identifier information” (as defined in the DPAcounsel-to-counsel basis), and (E) as necessary to address reasonable privilege or confidentiality concerns. For the avoidance of doubt, this Section 6.03(b) shall not apply to Tax matters.
(c) Parent shall not, and shall not knowingly cause its Affiliates Subsidiaries not to, (I) enter into take any transaction to acquire action, including acquiring any asset, property, business or Person (by way of merger, consolidation, share exchange, investment, other business combination, asset, stock or equity purchase, or otherwise) or (II) enter into any new commercial activities or businesses unrelated to the transactions contemplated by this Agreement in the State of Minnesota or the State of Wisconsin, in each case of clause (I) and clause (II), that would reasonably be expected to materially increase the risk of (w) not and adversely affect Parent’s obtaining any Required Approval, (x) not or making any Consent or Filing contemplated by this Section 6.03 or (y) materially delaying delay the timely receipt of any Required Approval or the making of any making any Consent or Filing contemplated by this Section 6.03thereof. In furtherance of and without limiting any of Parent’s covenants and agreements under this Section 6.03 and Section 6.066.03, Parent shall use its Parent’s reasonable best efforts with respect to avoid or eliminate each and every impediment that may be asserted by a Governmental Entity so as to enable the Closing to occur as soon as reasonably possible, which such reasonable best efforts any Required Statutory Approvals shall include the following:; provided that, except with respect to the liabilities, obligations and commitments of the Fund under the Equity Letter, Parent shall not be required to take any action or make any undertaking, or commit to take any action to make any undertaking, including accepting any term, condition liability, obligation, commitment or sanction, that would impose any undertaking, term, condition, liability, obligation, commitment or sanction on the Fund or any Affiliate of or any entity in which the Fund directly or indirectly owns any equity interests (other than Parent or its Subsidiaries):
(i) defending through litigation on the merits, any Claim asserted in any court or other proceeding by any Person, including any Governmental Entity, that seeks to or could prevent or prohibit or impede, interfere with or materially delay the consummation of the Closing, and shall have the right, but not the obligation, to appeal an adverse decision on the merits;
(ii) proposing, negotiating, committing to and effecting, by consent decree, hold separate order or otherwise, the sale, divestiture, licensing or disposition of any assets or businesses of Parent or its Subsidiaries or the Company or the Company Subsidiaries, including entering into customary ancillary agreements on commercially reasonable terms relating to any such sale, divestiture, licensing or disposition;disposition;
(iiiii) agreeing to any limitation on the conduct of Parent or its Subsidiaries (including, after the Closing, the Surviving Corporation and the Company Subsidiaries); , including accepting financial restrictions on the Surviving Corporation or the Company Subsidiaries and accepting governance and operational restrictions, including restrictions on the scope of the business of the Surviving Corporation or the Company Subsidiaries; and
(iviii) agreeing to take any other action as may be required by a Governmental Entity in order to effect each of the following: (1) obtaining all Required Statutory Approvals as soon as reasonably possible practicable and in any event before the End Date, ; (2) avoiding the entry of, or having vacated, lifted, dissolved, reversed or overturned any Judgment Judgment, whether temporary, preliminary or permanent, that is in effect that prohibits, prevents or restricts the consummation of, or impedes, interferes with or materially delays delays, the Closing Closing; and (3) effecting the expiration or termination of any waiting period, which that would otherwise have the effect of preventing, prohibiting or restricting consummation of the Closing or impeding, interfering with or materially delaying the Closing.
(d) Notwithstanding anything to the contrary, nothing contrary in this Section 6.03 (other than the first sentence of Section 6.03(c)) shall require Parent to takeor elsewhere in this Agreement, or agree to takereasonable best efforts, any action (other than including with respect to any restrictions on information sharing or any other action which is the matters contemplated by this Section 6.03, shall not material to require Parent or such Person) related to (x) any of its Affiliates, Affiliates (y) any Sponsor or their respective direct or indirect portfolio companies owned, managed, advised or controlled by any of including the Sponsors Company or any of their respective Affiliates Company Subsidiary after the Closing), or (z) any limited partner or other direct or indirect investors in any investment fund affiliated with, advised or managed by any Sponsor or any of their respective Affiliates, permit the Company or any of the respective Affiliates of any such limited partners or investors; provided, further, that the provisions of this Section 6.03 shall not be construed to (x) require Parent, Merger Sub or any Affiliate of Parent or (y) permit the Company without the prior written consent of Parent (which consent shall not to be unreasonably withheld, conditioned, or delayed)Subsidiaries, to undertake any efforts or take any action (including accepting any of the actions listed in Section 6.03(c), or agree to or accept any order, action or regulatory condition (including any Final Order) of any Governmental Entity containing terms, conditions, liabilities, obligations, commitmentcommitments or sanctions, sanctions or other measures and proposing, negotiating, committing to and effect, by consent decree, hold separate order or otherwise, the sale, divestiture, licensing or disposition of assets or businesses of Parent or the Company or their respective Affiliates) if the taking of such efforts or actionthat, individually or in the aggregate, has resulted or would reasonably be expected to result in a Burdensome Condition; providedmaterial adverse effect on the business, furtherassets, that notwithstanding anything contained in this Agreement liabilities, properties, financial condition or results of operations of Parent, the Company and the Company Subsidiaries, taken as a whole after giving effect to the contrary, in no event shall Parent, Merger Sub or any Affiliate of such that Parent be required to pursue or defend any Claim against CFIUS in connection with the transactions contemplated hereby, and its Subsidiaries (including the Merger. Nothing Surviving Corporation and the Company Subsidiaries) for this purpose shall be deemed to be a consolidated group of entities of the size and scale of a hypothetical company that is 100% of the size and scale of the Company and its Subsidiaries, taken as a whole (a “Burdensome Effect”); provided that none of the following shall constitute or be taken into account in this Section 6.03 shall obligate determining whether any such terms, conditions, liabilities, obligations, commitments or sanctions would, individually or in the Parentaggregate, have such a Burdensome Effect: (1) any Judgment issued by any of the State Utilities Commissions prior to the date hereof and applicable to the Company or any of their respective Affiliates to take the Company Subsidiaries; (2) any action that is not conditioned rate cases, including any Proceedings, involving the Company or any of the Company Subsidiaries; or (3) any other terms, conditions, liabilities, obligations, commitments or sanctions imposed by any of the State Utilities Commissions on the ClosingCompany or any of the Company Subsidiaries other than in connection with obtaining a Required Statutory Approval.
(e) Parent shall promptly notify the Company Company, and the Company shall notify Parent Parent, of any notice or other communication from any Person alleging that such Person’s Consent is or may be required in connection with the Merger.
(f) Nothing in this Section 6.03 shall obligate Parent or the Company or any of their respective Subsidiaries to take any action that is not conditioned on Closing.
Appears in 1 contract
Samples: Merger Agreement (Gas Natural Inc.)
Further Actions; Regulatory Approvals; Required Actions. (a) Subject to the terms and conditions of this Agreement, each of the Parties Party shall use its reasonable best efforts to take, or cause to be taken, all actions, and do, or cause to be done, and assist and cooperate with the other Parties in doing, all things necessary to cause the Offer Conditions and the conditions to the Closing set forth in Article VII to be satisfied as promptly as reasonably practicable and to effect the Closing as promptly as reasonably practicable thereafterpracticable, including (i) making and cooperating with all necessary Filings with Governmental Entities Authorities, including but not limited to the Insurance Filings (which Parent and the Company shall file or third partiescause to be filed no later than ten (10) Business Days after the date of this Agreement), (ii) requesting early termination of the waiting period under the HSR Act applicable to the Offer and the Merger and obtaining the Required Consents and any third-party Consents that are necessary, proper or advisable to consummate the Merger, (iii) obtaining the Required Approvals HSR Clearance and all other Consents of Governmental Entities Authorities that are necessary, proper or advisable necessary to consummate the Offer or the Merger and the other transactions contemplated hereby as promptly as reasonably practicable and (iviii) executing and delivering any additional instruments that are necessary, proper or advisable necessary to consummate the Merger Offer and the other transactions Merger. Parent shall be responsible for 100% of the fees, costs and expenses (except for the fees, costs and expenses of the Company’s advisors), including any filing fees, associated with any Filings or Consents contemplated herebyby this Section 6.04.
(b) In connection with and without limiting the generality of Section 6.03(a) and subject to the obligations of Section 6.06,
(i) 6.04(a), each of Parent and the Company shall shall:
(i) file or cause to be filed with the Department of Justice and the Federal Trade Commission, in consultation and cooperation with the other, as promptly as practicable after the date of this Agreement and, in any event, no later than ten (10) Business Days after the date of this Agreement, an appropriate Notification and Report Form pursuant to the HSR Act relating to the Offer and the Merger;
(ii) make or cause to be made, in consultation and cooperation with the other, at a mutually agreeable time after the date of this Agreement, (1) an appropriate filing of a Notification and Report Form pursuant to the HSR Act relating to the Merger, (2) all other necessary Filings relating to the Merger with other Governmental Entities under any other Antitrust Law, and (3) all necessary filings with the U.S. Federal Communications Commission;
(ii) each of Parent and the Company shall use reasonable best efforts to obtain CFIUS Approval, which shall include (1) preparing and filing a declaration with CFIUS with respect to the transactions contemplated by this Agreement as promptly as practicable after the date of this Agreement and in any event within twenty (20) Business Days (unless otherwise agreed by the Parties) and (2)and, if applicable, as promptly as practicable, and in any event, within twenty no later than ten (2010) Business Days (unless otherwise agreed by after the Parties) following receipt date of written notification (including by email) from CFIUS that, based on its assessment of the declaration, CFIUS requests that the parties file a joint voluntary notice of the transactions contemplated by this Agreement, prefiling and filing a final joint voluntary notice with CFIUS all other necessary, proper or advisable Filings under any Antitrust Law with respect to the transactions contemplated by this Agreement, in each case pursuant to Offer or the DPAMerger;
(iii) other than those filings referenced in Section 6.03(b)(i) and Section 6.03(b)(ii), the Company shall make or cause to be made, in consultation and cooperation with and upon consent of Parent, such consent not to be unreasonably withheld, conditioned, or delayed, as promptly as reasonably practicable after the date of this Agreement and in any event within seventy-five (75) days after the date of this Agreement, which may be extended by mutual agreement of the Parties (such consent not to be unreasonably withheld, conditioned or delayed), all other necessary Filings with other Governmental Entities Authorities relating to the Offer or the Merger, including any such Filings necessary to obtain any Required Approval;
(iv) each of Parent and the Company shall furnish to the other all assistance, cooperation and information reasonably required for any such Filing made by such Party and in order to achieve the effects set forth in this Section 6.036.04;
(v) unless prohibited by applicable Law or by a Governmental EntityAuthority, each of Parent and the Company shall give the other Parties reasonable prior notice of any such Filing and, to the extent reasonably practicable, of any written or oral material communication with any Governmental Entity Authority relating to the Offer or the Merger (including with respect to any of the actions referred to in this Section 6.03(b6.04(b)) and, to the extent reasonably practicable, permit the other to review and discuss in advance, and consider in good faith the views and comments of, and secure the participation of (including supplying appropriate witnesses to the extent necessary or advisable)of, the other in connection with any such Filing (except for HSR Act filings) or communication;
(vi) each of Parent and the Company shall respond as promptly as reasonably practicable under the circumstances (and, with respect to CFIUS, in any event, no later than the applicable timeline requested by CFIUS pursuant to the DPA, including any extensions granted thereunder) to any inquiries directed to such Party received from any Governmental Entity Authority or any other authority enforcing the DPA or applicable Antitrust Laws for additional information, documentation, certifications information or other materials documentation in connection with the CFIUS Approval, antitrust, competition or similar matters (including a “second request” under the HSR Act) and not extend any waiting period under the HSR Act or enter into any agreement with any such Governmental Entity Authority or other authorities not to consummate the Offer or the Merger, except with the prior written consent of, in the case of the other PartiesCompany, such consent not to be unreasonably withheldParent and Purchaser, conditionedor, in the case of Parent or delayed;Purchaser, the Company; and
(vii) each of Parent and the Company shall make an appropriate response to any requests made of such Party by any Governmental Entity in connection with any review or investigation of the transactions contemplated by this Agreement; and (viii) unless prohibited by applicable Law or a Governmental EntityAuthority, to the extent reasonably practicable, each of Parent and the Company shall (1A) not participate in or attend any meetingsubstantive meeting (whether in person, via telephone call or conference otherwise) with any Governmental Authority in respect of the Offer or engage the Merger without, in the case of the Company, Parent and Purchaser, or, in the case of Parent or Purchaser, the Company, (B) keep, in the case of the Company, Parent and Purchaser, or, in the case of Parent or Purchaser, the Company, apprised with respect to any meeting or substantive conversation with any Governmental Entity (including any member or representative of any Governmental Entity’s staff) regarding specific approval Authority in respect of the Merger without Offer or the other PartiesMerger, (2) give the other reasonable prior notice of and invitation to any such meeting, telephone call or conference or conversation (in each case, with full participation rights) and considering in good faith the views of the other Party in connection therewith, and, in the event one Party is prohibited by applicable Law or by the applicable Governmental Entity from participating in or attending any such meeting, telephone call or conference or engaging in any such conversation, keep such Party apprised (including by providing summaries, if applicable) with respect thereto, (3C) cooperate in the filing of any substantive memoranda, white papers, filings, pleadings, correspondence, responses correspondence or other written communications explaining or defending or otherwise in connection with this Agreement or the Offer or the Merger, articulating any regulatory or competitive argument or responding to requests or objections made by any Governmental Entity or any intervenor in any proceeding relating to a Required Approval Authority and (4D) furnish furnish, in the other Parties case of the Company, Parent and Purchaser, or, in the case of Parent or Purchaser, the Company, with copies (including any drafts submitted to a Governmental Entity) of all substantive correspondence, Filings (except HSR Act filings) and communications (and memoranda setting forth the substance thereof) between it and its Affiliates and their respective Representatives on the one hand, and any Governmental Entity Authority or members of any Governmental EntityAuthority’s staff, on the other hand, with respect to this Agreement Agreement, the Offer or the Merger; provided provided, however, that the Parties shall be permitted to designate redact any correspondence, Filing or communication as “outside counsel only” to the extent such correspondence, Filing or communication contains commercially sensitive information and the receiving outside counsel shall not provide these materials to the Party it represents; provided, further, any information required to be provided pursuant to this Section 6.03(b)(viii) may be redacted (A) to remove references concerning the valuation of the Company, (B) as necessary to comply with contractual arrangements, (C) as necessary to comply with applicable Law, (D) to remove any “personal identifier information” (as defined in the DPA), and (E) as necessary to address reasonable privilege or confidentiality concerns. For the avoidance of doubt, this Section 6.03(b) 6.04 shall not apply with respect to Tax matters. Notwithstanding anything to the contrary in this Agreement, in no event will Parent or Purchaser be obligated pursuant to this Agreement to, and the Company will not (and will cause its Subsidiaries not to) without the prior written consent of Parent, sell, divest, license or hold separate any capital stock or other equity or voting interest, assets (whether tangible or intangible), rights, products or businesses, or to take or commit to take any action, unless the consummation or such transaction or effectiveness of such action is conditioned upon the Closing.
(c) Parent The Parties shall not, and shall cause their respective Affiliates not knowingly cause its Affiliates to, (I) enter into take any transaction to acquire action, including acquiring any asset, property, business or Person (by way of merger, consolidation, share exchange, investment, other business combination, asset, stock or equity purchase, or otherwise) or (II) enter into any new commercial activities or businesses unrelated to the transactions contemplated by this Agreement in the State of Minnesota or the State of Wisconsin), in each case of clause (I) and clause (II)case, that would could reasonably be expected to materially increase the risk of (w) not adversely affect obtaining any Required Approval, (x) not or making any Consent or Filing contemplated by this Section 6.03 or (y) materially delaying the receipt of any Required Approval 6.04 or the making of any making any Consent or Filing contemplated by this Section 6.03timely receipt thereof. In furtherance of and without limiting any of Parent’s covenants and agreements under this Section 6.03 6.04, if and Section 6.06to the extent necessary to obtain clearance of the transactions contemplated by this Agreement pursuant to the HSR Act and any other Antitrust Law applicable to the transactions contemplated by this Agreement, Parent shall use its reasonable best efforts take all actions necessary, proper or advisable to avoid or eliminate each and every impediment that may be asserted by a Governmental Entity Authority with respect to the Offer or the Merger, including pursuant to any Antitrust Law, so as to enable the Closing to occur as soon as reasonably possiblepossible (and in each case, sufficiently before the End Date in order to allow Closing by the End Date), which such reasonable best efforts actions shall include the following:
(i) defending through litigation on the merits, including appeals, any Claim asserted in any court or other proceeding by any Person, including any Governmental EntityAuthority, that seeks to or could prevent or prohibit or impede, interfere with or materially delay the consummation of the Closing, and shall have the right, but not the obligation, to appeal an adverse decision on the merits;
(ii) proposing, negotiating, committing to and effecting, by consent decree, hold separate order or otherwise, the sale, divestiture, licensing or disposition of any assets or businesses of Parent or the Company its Affiliates or the Company SubsidiariesEntities, including entering into customary ancillary agreements on commercially reasonable terms relating to any such sale, divestiture, licensing or disposition;
(iii) agreeing to any limitation regarding future operations of Parent or its Affiliates, on the conduct of Parent (includingone hand, after the Closing, the Surviving Corporation and the Company Subsidiaries)Entities, on the other hand; and
(iv) agreeing to take any other action as may be required by a Governmental Entity Authority in order to effect each of the following: (1A) obtaining all Required Approvals the HSR Clearance and any other Consent of a Governmental Authority under any Antitrust Law that is necessary, appropriate or advisable to consummate the Offer or the Merger, in each case, as soon as reasonably possible and in any event before the End Date; (B) avoiding the entry of, (2) or having vacated, lifted, dissolved, reversed or overturned any Judgment Judgment, whether temporary, preliminary or permanent, that is in effect that prohibits, prevents or restricts the consummation of, or impedes, interferes with or materially delays delays, the Closing on or before the End Date; and (3C) effecting the expiration or termination of any waiting period, which would otherwise have the effect of preventing, prohibiting or restricting consummation of the Closing or impeding, interfering with or materially delaying the Closing.
(d) Notwithstanding anything to the contrary, nothing in this Section 6.03 (other than the first sentence of Section 6.03(c)) shall require Parent to take, or agree to take, any action (other than with respect to any restrictions on information sharing or any other action which is not material to Parent or such Person) related to (x) any of its Affiliates, (y) any Sponsor or their respective direct or indirect portfolio companies owned, managed, advised or controlled by any of the Sponsors or any of their respective Affiliates or (z) any limited partner or other direct or indirect investors in any investment fund affiliated with, advised or managed by any Sponsor or any of their respective Affiliates, or any of the respective Affiliates of any such limited partners or investors; provided, further, that the provisions of this Section 6.03 shall not be construed to (x) require Parent, Merger Sub or any Affiliate of Parent or (y) permit the Company without the prior written consent of Parent (which consent shall not to be unreasonably withheld, conditioned, or delayed), to undertake any efforts or take any action (including accepting any terms, conditions, liabilities, obligations, commitment, sanctions or other measures and proposing, negotiating, committing to and effect, by consent decree, hold separate order or otherwise, the sale, divestiture, licensing or disposition of assets or businesses of Parent or the Company or their respective Affiliates) if the taking of such efforts or action, individually or in the aggregate, has resulted or would reasonably be expected to result in a Burdensome Condition; provided, further, that notwithstanding anything contained in this Agreement to the contrary, in no event shall Parent, Merger Sub or any Affiliate of Parent be required to pursue or defend any Claim against CFIUS in connection with the transactions contemplated hereby, including the Merger. Nothing in this Section 6.03 shall obligate the Parent, the Company or any of their respective Affiliates to take any action that is not conditioned on the Closing.
(e) Parent Purchaser shall promptly notify the Company Company, and the Company shall notify Parent Parent, of (i) any notice or other communication from any Person alleging that such Person’s Consent is or may be required in connection with the MergerOffer or the Merger and (ii) any material written notice from any Governmental Authority in connection with the transactions contemplated by this Agreement.
(e) Upon the request of Purchaser with respect to any item of Intellectual Property, the Company shall, between the date hereof and the Closing, use all commercially reasonable efforts to correct any deficiencies in the title to any such Intellectual Property owned or purported to be owned by any Company Entity and specified by Purchaser, including the filing of inventor assignments and all other documents necessary or desirable to correct all such deficiencies.
Appears in 1 contract
Samples: Merger Agreement (RPX Corp)
Further Actions; Regulatory Approvals; Required Actions. (a) Subject to the terms and conditions of this Agreement, each of the Parties Party shall use its their respective reasonable best efforts to take, or cause to be taken, all actions, and do, or cause to be done, and assist and cooperate with the other Parties in doing, all things necessary necessary, proper and advisable to cause the conditions to the Closing set forth in Article VII VI to be satisfied as promptly as reasonably practicable and to effect the Closing as promptly as reasonably practicable thereafterpracticable, including (i) making making, as promptly as practicable, all necessary Filings with Governmental Entities Authorities or third parties, excluding the filing of the Proxy Statement and any other Filings required in connection therewith, (ii) obtaining the Required Consents and any third-party Consents that are taking, or causing to be taken, all actions necessary, proper or advisable to consummate obtain the Merger, (iii) obtaining the Required Approvals HSR Clearance as promptly as practicable and all other Consents of Governmental Entities Authorities or third parties that are necessary, proper or advisable necessary to consummate the Merger and the other transactions contemplated hereby as promptly as practicable and (iviii) executing and delivering delivering, as promptly as practicable, any reasonable additional instruments that are necessary, proper or advisable necessary to consummate the Merger and Merger. Parent shall be responsible for 100% of any filing fees under the other HSR Act incurred in connection with the transactions contemplated herebyby this Agreement (excluding, for the avoidance of doubt, the Education Transaction).
(b) In connection with and without limiting the generality of Section 6.03(a) 5.05(a), and subject to the obligations of Section 6.06,
(i) 5.05(c), each of Parent and the Company shall use their respective reasonable best efforts to:
(i) (1) file or cause to be filed with the Department of Justice and the Federal Trade Commission, in consultation and cooperation with the other, as promptly as practicable after the date of this Agreement and, in any event, no later than ten (10) days after the date of this Agreement, an appropriate Notification and Report Form pursuant to the HSR Act relating to the Merger and (2) request early termination of the waiting period under the HSR Act that is applicable to the transactions contemplated by this Agreement, including the Merger;
(ii) solely with respect to Parent, (1) in consultation and cooperation with the Company, (i) file or cause to be filed with the Department of Justice and the Federal Trade Commission, as promptly as practicable after the date of this Agreement and, in any event, no later than ten (10) days after the date of this Agreement, the Secondary Acquisition Notification and (ii) prior to the filing of the Secondary Acquisition Notification with the Department of Justice and the Federal Trade Commission, notify Evolent in writing of Parent’s intention to make the Secondary Acquisition Filing, which notice shall comply, in form and substance, with the HSR Act in all material respects and (2) request early termination of the waiting period under the HSR Act that is applicable to the transactions contemplated by the Secondary Acquisition Notification;
(iii) make or cause to be made, in consultation and cooperation with the other, at a mutually agreeable time after the date of this Agreement, (1) an appropriate filing of a Notification and Report Form pursuant to the HSR Act relating to the Merger, (2) all other necessary Filings relating to the Merger with other Governmental Entities under any other Antitrust Law, and (3) all necessary filings with the U.S. Federal Communications Commission;
(ii) each of Parent and the Company shall use reasonable best efforts to obtain CFIUS Approval, which shall include (1) preparing and filing a declaration with CFIUS with respect to the transactions contemplated by this Agreement as promptly as practicable after the date of this Agreement and in any event within twenty (20) Business Days (unless otherwise agreed by the Parties) and (2), if applicable, as promptly as practicable, and in any event, within twenty (20) Business Days (unless otherwise agreed by the Parties) following receipt of written notification (including by email) from CFIUS that, based on its assessment of the declaration, CFIUS requests that the parties file a joint voluntary notice of the transactions contemplated by this Agreement, prefiling and filing a final joint voluntary notice with CFIUS all other necessary, proper or advisable Filings under any Antitrust Law with respect to the transactions contemplated by this Agreement, in each case pursuant to the DPAMerger;
(iiiiv) other than those filings referenced in Section 6.03(b)(i) and Section 6.03(b)(ii), the Company shall make or cause to be made, in consultation and cooperation with and upon consent of Parent, such consent not to be unreasonably withheld, conditioned, or delayed, as promptly as reasonably practicable after the date of this Agreement and in any event within seventy-five (75) days after the date of this Agreement, which may be extended by mutual agreement of the Parties (such consent not to be unreasonably withheld, conditioned or delayed), all other necessary Filings with other Governmental Entities Authorities relating to the Merger, including any such Filings necessary to obtain any Required Approval;
(ivv) each of Parent and the Company shall furnish to the other all assistance, cooperation and information reasonably required for any such Filing made by such Party and in order to achieve the effects set forth in this Section 6.035.05;
(vvi) unless prohibited by applicable Law or by a Governmental EntityAuthority, each of Parent and the Company shall give the other Parties reasonable prior notice of any such Filing and, to the extent reasonably practicable, of any written or oral communication with any Governmental Entity Authority relating to the Merger (including with respect to any of the actions referred to in this Section 6.03(b5.05(b)) and, to the extent reasonably practicable, permit the other a reasonable opportunity to review and discuss in advance, and consider in good faith the views and comments of, and secure the participation of (including supplying appropriate witnesses to the extent necessary or advisable)of, the other in connection with any such Filing (except for HSR Act filings) or communication;
(vivii) each of Parent and the Company shall respond as promptly as reasonably practicable under the circumstances (and, with respect to CFIUS, in any event, no later than the applicable timeline requested by CFIUS pursuant to the DPA, including any extensions granted thereunder) to any inquiries directed to such Party received from any Governmental Entity Authority or any other authority enforcing the DPA or applicable Antitrust Laws for additional information, documentation, certifications information or other materials documentation in connection with the CFIUS Approval, antitrust, competition or similar matters (including a “second request” under the HSR Act) ); provided that the Parties agree that Parent shall have the principal, but not sole, responsibility to devise the strategy for all filings, notifications, submissions and not enter into any agreement communications in connection with any Filing pursuant to Antitrust Laws subject to this Section 5.05, so long as such Governmental Entity or other authorities not to consummate the Merger, except strategy complies with the prior written consent terms and conditions of the other Partiesthis Agreement; provided, such consent not to be unreasonably withheldfurther, conditioned, or delayed;
(vii) that each of Parent and the Company shall make an appropriate response consult with the other with respect to any requests made of such Party by any Governmental Entity strategy and consider in connection with any review or investigation good faith the views of the transactions contemplated by this Agreement; and other with respect to such strategy;
(viii) unless prohibited by applicable Law or a Governmental EntityAuthority, to the extent reasonably practicable, each of Parent and the Company shall (1) not participate in or attend any meeting, telephone call meeting (whether in person or conference or engage in any substantive conversation via telephone) with any Governmental Entity (including any member or representative of any Governmental Entity’s staff) regarding specific approval Authority in respect of the Merger without the other PartiesParty, (2) give the other reasonable prior notice of and invitation to any such meeting, telephone call or conference or conversation (in each case, with full participation rights) and considering in good faith the views of keep the other Party in connection therewith, and, in the event one Party is prohibited by applicable Law or by the applicable Governmental Entity from participating in or attending any such meeting, telephone call or conference or engaging in any such conversation, keep such Party reasonably apprised (including by providing summaries, if applicable) with respect theretoto any meeting or substantive conversation with any Governmental Authority in respect of the Merger, (3) cooperate in the filing of any substantive memoranda, white papers, filings, pleadings, correspondence, responses correspondence or other written communications explaining or defending or otherwise in connection with this Agreement or the Merger, articulating any regulatory or competitive argument or responding to requests or objections made by any Governmental Entity or any intervenor in any proceeding relating to a Required Approval Authority and (4) furnish the other Parties Party with copies (including any drafts submitted to a Governmental Entity) of all substantive correspondence, Filings (except HSR Act filings) and communications (and memoranda setting forth the substance thereof) between it and its Affiliates and their respective Representatives on the one hand, and any Governmental Entity Authority or members of any Governmental EntityAuthority’s staff, on the other hand, with respect to this Agreement or the Merger; provided provided, however, that the Parties shall be permitted to designate redact any correspondence, Filing or communication as “outside counsel only” (i) to the extent such correspondence, Filing or communication contains commercially sensitive information and the receiving outside counsel shall not provide these materials to the Party it represents; provided, further, any information required to be provided pursuant to this Section 6.03(b)(viii) may be redacted (A) to remove references concerning the valuation of the Company, Company and the Merger or (B) as necessary to comply with contractual arrangements, (C) as necessary to comply with applicable Law, (D) to remove any “personal identifier information” (as defined in the DPA), and (Eii) as necessary to address reasonable privilege concerns; and
(ix) Parent and the Company may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section 5.05 as “Antitrust Counsel Only Material,” and such materials and the information contained therein shall be given only to the outside antitrust counsel of the recipient and will not be disclosed by such outside counsel to employees, officers or confidentiality concernsdirectors of the recipient unless express permission is obtained in advance from the source of the materials (Parent or the Company, as the case may be) or its legal counsel. For the avoidance of doubt, this Section 6.03(b5.05(b) shall not apply with respect to Tax matters.
(c) Parent shall notand the Company shall, and shall not knowingly cause its their respective Affiliates to, (I) enter into any transaction to acquire any asset, property, business or Person (by way of merger, consolidation, share exchange, investment, other business combination, asset, stock or equity purchase, or otherwise) or (II) enter into any new commercial activities or businesses unrelated to the transactions contemplated by this Agreement in the State of Minnesota or the State of Wisconsin, in each case of clause (I) and clause (II), that would reasonably be expected to materially increase the risk of (w) not obtaining any Required Approval, (x) not making any Consent or Filing contemplated by this Section 6.03 or (y) materially delaying the receipt of any Required Approval or the making of any making any Consent or Filing contemplated by this Section 6.03. In furtherance of and without limiting any of Parent’s covenants and agreements under this Section 6.03 and Section 6.06, Parent shall use its reasonable best efforts to avoid or eliminate each and every impediment that may be asserted by a Governmental Entity so as to enable the Closing to occur as soon as reasonably possible, which such reasonable best efforts shall include the following:
(i) defending through litigation on the merits, any Claim asserted in any court or other proceeding by any Person, including any Governmental Entity, that seeks to or could prevent or prohibit or impede, interfere with or materially delay the consummation of the Closing, and shall have the right, but not the obligation, to appeal an adverse decision on the merits;
(ii) proposing, negotiating, committing to and effecting, by consent decree, hold separate order or otherwise, the sale, divestiture, licensing or disposition of any assets or businesses of Parent or the Company or the Company Subsidiaries, including entering into customary ancillary agreements on commercially reasonable terms relating to any such sale, divestiture, licensing or disposition;
(iii) agreeing to any limitation on the conduct of Parent (including, after the Closing, the Surviving Corporation and the Company Subsidiaries); and
(iv) agreeing to take any other action as may be required by a Governmental Entity in order to effect each of the following: (1) obtaining all Required Approvals as soon as reasonably possible and in any event before the End Date, (2) having vacated, lifted, dissolved, reversed or overturned any Judgment that is in effect effect, whether temporary, preliminary or permanent, that prohibitswould restrain, prevents prevent or restricts the consummation of, or impedes, interferes with or materially delays delay the Closing on or before the End Date and (3ii) effecting defend (with sufficient time for resolution in advance of the expiration End Date) through litigation on the merits against any administrative or termination judicial Claim (including any Claim seeking a temporary restraining order or preliminary injunction) that is threatened or instituted challenging any of the transactions contemplated by this Agreement as violative of any waiting periodAntitrust Law, which would otherwise have the effect of preventing, prohibiting or restricting consummation of the Closing or impeding, interfering with or materially delaying the Closing.
(d) Notwithstanding anything to the contrary, nothing in this Section 6.03 (other than the first sentence of Section 6.03(c)) shall require Parent to take, or agree to take, unless any action (other than or the results of any action taken with respect to any restrictions on information sharing or any other action which is not material to Parent or such Person(i) related to (x) any of its Affiliates, (y) any Sponsor or their respective direct or indirect portfolio companies owned, managed, advised or controlled by any of the Sponsors or any of their respective Affiliates or (zii) any limited partner or other direct or indirect investors in any investment fund affiliated with, advised or managed by any Sponsor or any of their respective Affiliates, or any of the respective Affiliates of any such limited partners or investors; provided, further, that the provisions of this Section 6.03 shall not be construed to (x) require Parent, Merger Sub or any Affiliate of Parent or (y) permit the Company without the prior written consent of Parent (which consent shall not to be unreasonably withheld, conditioned, or delayed), to undertake any efforts or take any action (including accepting any terms, conditions, liabilities, obligations, commitment, sanctions or other measures and proposing, negotiating, committing to and effect, by consent decree, hold separate order or otherwise, the sale, divestiture, licensing or disposition of assets or businesses of Parent or the Company or their respective Affiliates) if the taking of such efforts or actionwould, individually or in the aggregate, has resulted have a material adverse effect on the Company Entities, taken as a whole.
(d) Notwithstanding the foregoing or would reasonably be expected to result in a Burdensome Condition; provided, further, that notwithstanding anything contained in this Agreement to the contrary, and except as expressly set forth in this Agreement, in no event shall Parent or any of its Affiliates be required to, and the Company and its Affiliates shall not, without the prior written consent of Parent, Merger Sub (i) pay any sums or any Affiliate concede anything of Parent be value in excess of $100,000, except, in each case, for costs and expenses of the Company Entities’, Parent’s and their respective Affiliates’ respective advisors or as required by the last sentence of Section 5.05(a), (ii) sell or otherwise dispose of, or hold separate and agree to pursue sell or defend any Claim against CFIUS in connection with the transactions contemplated herebyotherwise dispose of, including the Merger. Nothing in this Section 6.03 shall obligate the Parentassets, categories of assets or businesses of the Company or any of Parent or their respective Affiliates Subsidiaries or Affiliates, or otherwise take or commit to take any action that is not conditioned on could reasonably limit Parent’s, the ClosingCompany’s or any of their Affiliates’ freedom of action with respect to, or their ability to retain, one or more businesses, product lines or assets, (iii) terminate, modify or extend any existing relationships and contractual rights and obligations of the Company or Parent or their respective Subsidiaries or Affiliates, (iv) establish or create any relationships and contractual rights and obligations of the Company or Parent or their respective Subsidiaries or Affiliates, (v) terminate any relevant venture or other arrangement and (vi) effectuate any other change or restructuring of the Company or Parent or their respective Subsidiaries or Affiliates (and, in each case, to enter into agreements or stipulate to the entry of a Judgment), in each case under this Section 5.05(d), solely in order to obtain any Consent of a Governmental Authority contemplated by this Section 5.05.
(e) Parent shall promptly notify the Company Company, and the Company shall promptly notify Parent Parent, of any notice or other communication from any Person alleging that such Person’s Consent is or may be required in connection with the Merger.
Appears in 1 contract
Samples: Merger Agreement (Advisory Board Co)
Further Actions; Regulatory Approvals; Required Actions. (a) Subject to the terms and conditions of this Agreement, each of the Parties shall use its reasonable best efforts to take, or cause to be taken, all actions, and do, or cause to be done, and assist and cooperate with the other Parties in doing, all things necessary to cause the conditions to the Closing set forth in Article VII to be satisfied as promptly as reasonably practicable and to effect the Closing as promptly as reasonably practicable thereafter, including (i) making all necessary Filings with Governmental Entities or third parties, (ii) obtaining the Required Consents and any all other third-party Consents that are necessary, proper or advisable to consummate the Merger, provided, however, that Parent shall not be required to, and the Company shall not without Parent’s prior written consent, make, or commit or agree to make, any concession or payment to, or incur any obligation to, any Person to obtain any such Required Consent or other Consent or make, or commit or agree to make, any such concession or payment to, or incur any such obligation that is not conditioned on the consummation of the Merger, (iii) obtaining the Required Approvals and all other Consents of Governmental Entities that are necessary, proper or advisable to consummate the Merger and the other transactions contemplated hereby and (iv) executing and delivering any additional instruments that are necessary, proper or advisable to consummate the Merger and the other transactions contemplated hereby.
(b) In connection with and without limiting the generality of Section 6.03(a) ), and subject to the obligations of Section 6.06,
(i) , each of Parent and the Company shall shall:
(i) make or cause to be made, in consultation and cooperation with the other, at a mutually agreeable time after the date of this Agreement, (1A) an appropriate filing of a Notification and Report Form pursuant to the HSR Act relating to the Merger, and (2B) all other necessary Filings relating to the Merger with other Governmental Entities under any other Antitrust Law, and (3) all necessary filings with the U.S. Federal Communications Commission;
(ii) each of Parent and the Company shall use reasonable best efforts to obtain CFIUS Approval, which shall include (1) preparing and filing a declaration with CFIUS with respect to the transactions contemplated by this Agreement as promptly as practicable after the date of this Agreement and in any event within twenty (20) Business Days (unless otherwise agreed by the Parties) and (2), if applicable, as promptly as practicable, and in any event, within twenty (20) Business Days (unless otherwise agreed by the Parties) following receipt of written notification (including by email) from CFIUS that, based on its assessment of the declaration, CFIUS requests that the parties file a joint voluntary notice of the transactions contemplated by this Agreement, prefiling and filing a final joint voluntary notice with CFIUS with respect to the transactions contemplated by this Agreement, in each case pursuant to the DPA;
(iii) other than those filings referenced in Section 6.03(b)(i) and Section 6.03(b)(ii), the Company shall make or cause to be made, in consultation and cooperation with and upon consent of Parent, such consent not to be unreasonably withheld, conditioned, or delayed, as promptly as reasonably practicable after the date of this Agreement and in any event within seventy-five sixty (7560) days after the date of this Agreement, which may be extended by mutual agreement of the Parties (such consent not to be unreasonably withheld, conditioned or delayed)Parties, all necessary Filings with other Governmental Entities relating to the Merger, including any such Filings necessary to obtain any Required Approval;
(iviii) each of Parent and the Company shall furnish to the other all assistance, cooperation and information reasonably required for any such Filing made by such Party and in order to achieve the effects set forth in this Section 6.03;
(viv) unless prohibited by applicable Law or by a Governmental Entity, each of Parent and the Company shall give the other Parties Party reasonable prior notice of any such Filing and, to the extent reasonably practicable, of any written or oral communication with any Governmental Entity relating to the Merger (including with respect to any of the actions referred to in this Section 6.03(b)) and, to the extent reasonably practicable, permit the other to review and discuss in advance, and consider in good faith the views and comments of, and secure the participation of (including supplying appropriate witnesses to the extent necessary or advisable)of, the other in connection with any such Filing (except for HSR Act filings) or communication;
(viv) each of Parent and the Company shall respond as promptly as reasonably practicable under the circumstances (and, with respect to CFIUS, in any event, no later than the applicable timeline requested by CFIUS pursuant to the DPA, including any extensions granted thereunder) to any inquiries directed to such Party received from any Governmental Entity or any other authority enforcing the DPA or applicable Antitrust Laws for additional information, documentation, certifications information or other materials documentation in connection with the CFIUS Approval, antitrust, competition or similar matters (including a “second request” under the HSR Act) and not extend any waiting period under the HSR Act or enter into any agreement with any such Governmental Entity or other authorities not to consummate the Merger, except with the prior written consent of the other Parties, such consent not to be unreasonably withheld, conditioned, or delayedParty;
(viivi) each of Parent and the Company shall make an appropriate response to provide any requests made of such Party information reasonably requested by any Governmental Entity in connection with any review or investigation of the transactions contemplated by this Agreement; and provided, however that with respect to the Required Approval, neither Party shall be prevented from filing reasonable objections to discovery requests in any contested proceeding relating to obtaining such Required Approval; and
(viiivii) unless prohibited by applicable Law or a Governmental Entity, to the extent reasonably practicable, each of Parent and the Company shall (1A) not participate in or attend any meeting, telephone call or conference meeting or engage in any substantive conversation with any Governmental Entity (including any member or representative of any Governmental Entity’s staff) regarding specific approval in respect of the Merger without the other PartiesParty, (2B) to the extent reasonably practicable, give the other reasonable prior notice of of, and invitation to summaries after (if applicable), any such meeting, telephone call or conference meeting or conversation (in each case, with full participation rights) and considering in good faith the views of the other Party in connection therewith, and, in the event one Party is prohibited by applicable Law or by the applicable Governmental Entity from participating in or attending any such meeting, telephone call or conference meeting or engaging in any such conversation, keep such Party apprised (including by providing summaries, if applicable) with respect thereto, (3C) cooperate in the filing of any substantive memoranda, white papers, filings, pleadings, correspondence, responses correspondence or other written communications explaining or defending or otherwise in connection with this Agreement or the Merger, articulating any regulatory or competitive argument or responding to requests or objections made by any Governmental Entity or any intervenor in any proceeding relating to a Required Approval and (4D) furnish the other Parties Party with copies (including any drafts submitted to a Governmental Entity) of all substantive correspondence, Filings (except HSR Act filings) and communications (and memoranda setting forth the substance thereof) between it and its Affiliates and their respective Representatives on the one hand, and any Governmental Entity or members of any Governmental Entity’s staff, on the other hand, with respect to this Agreement or the Merger; provided that the Parties shall be permitted, to the extent permitted by applicable Law or a Governmental Entity, to designate any correspondence, Filing or communication as “outside counsel only” to the extent such correspondence, Filing or communication contains commercially sensitive information and the receiving outside counsel shall not provide these materials to the Party it represents; provided, further, any information required to be provided pursuant to this Section 6.03(b)(viii) may be redacted (A) to remove references concerning the valuation of the Company, (B) as necessary to comply with contractual arrangements, (C) as necessary to comply with applicable Law, (D) to remove any “personal identifier information” (as defined in the DPA), and (E) as necessary to address reasonable privilege or confidentiality concerns. For the avoidance of doubt, this Section 6.03(b) shall not apply to Tax matters.
(c) Parent shall not, and shall not knowingly cause its Affiliates not to, (I) enter into any new commercial activities or businesses unrelated to the transactions contemplated by this Agreement or enter into any transaction to acquire any asset, property, business or Person (by way of merger, consolidation, share exchange, investment, other business combination, asset, stock or equity purchase, or otherwise) or (II) enter into any new commercial activities or businesses unrelated to the transactions contemplated by this Agreement in the State of Minnesota or the State of Wisconsin, in each case of clause (I) and clause (II), that would reasonably be expected to materially increase the risk of (w) not obtaining any Required Approval, (x) not or making any Consent or Filing contemplated by this Section 6.03 or (y) materially delaying the timely receipt of any Required Approval or the making of any making any Consent or Filing contemplated by this Section 6.03thereof. In furtherance of and without limiting any of Parent’s covenants and agreements under this Section 6.03 and Section 6.06, Parent shall use its reasonable best efforts to avoid or eliminate each and every impediment that may be asserted by a Governmental Entity so as to enable the Closing to occur as soon as reasonably possible, which such reasonable best efforts shall include the following:
(i) defending through litigation on the merits, including appeals, any Claim asserted in any court or other proceeding by any Person, including any Governmental Entity, that seeks to or could prevent or prohibit or impede, interfere with or materially delay the consummation of the Closing, and shall have the right, but not the obligation, to appeal an adverse decision on the merits;
(ii) proposing, negotiating, committing to and effecting, by consent decree, hold separate order or otherwise, the sale, divestiture, licensing or disposition of any assets or businesses of Parent or the Company its Affiliates or the Company SubsidiariesCompany, including entering into customary ancillary agreements on commercially reasonable terms relating to any such sale, divestiture, licensing or disposition;
(iii) agreeing to any limitation on the conduct of Parent or its Affiliates (including, after the Closing, the Surviving Corporation and the Company SubsidiariesCorporation); and
(iv) agreeing to take any other action as may be required by a Governmental Entity in order to effect each of the following: (1A) obtaining all Required Approvals as soon as reasonably possible and in any event before the End Date, (2B) avoiding the entry of, or having vacated, lifted, dissolved, reversed or overturned any Judgment Judgment, whether temporary, preliminary or permanent, that is in effect that prohibits, prevents or restricts the consummation of, or impedes, interferes with or materially delays delays, the Closing and (3C) effecting the expiration or termination of any waiting period, which would otherwise have the effect of preventing, prohibiting or restricting consummation of the Closing or impeding, interfering with or materially delaying the Closing.
(d) Notwithstanding anything to the contrary. provided that, nothing in this Section 6.03 (other than the first sentence of Section 6.03(c)) shall require Parent to take, or agree to take, any action (other than with respect to any restrictions on information sharing or any other action which is not material to Parent or such Person) related to (x) any of its Affiliates, (y) any Sponsor or their respective direct or indirect portfolio companies owned, managed, advised or controlled by any of the Sponsors or any of their respective Affiliates or (z) any limited partner or other direct or indirect investors in any investment fund affiliated with, advised or managed by any Sponsor or any of their respective Affiliates, or any of the respective Affiliates of any such limited partners or investors; provided, further, that the provisions of this Section 6.03 or any other provision on this Agreement shall not be construed to (xi) require Parent, Merger Sub or any Affiliate Subsidiary of Parent or (yii) permit the Company without the prior written consent of Parent (which consent shall not to be unreasonably withheld, conditioned, or delayed)Parent, to undertake any efforts or take any action (action, including proposing, negotiating, committing to, effecting, or accepting any undertakings, terms, conditions, liabilities, obligations, commitmentcommitments, sanctions or other measures and proposing, negotiating, committing to and effect, by consent decree, hold separate order or otherwise, provisions (including the sale, divestiture, licensing or disposition of assets or businesses of Parent or its Subsidiaries or the Company Company, by consent decree, hold separate order or their respective Affiliates) otherwise), if the taking of such efforts or action, individually or in the aggregate, has resulted or would reasonably be expected to result in a Burdensome Condition; provided, further, that notwithstanding .
(d) Notwithstanding anything contained in this Section 6.03 or any other provision of this Agreement to the contrary, in no event subject to applicable Law, Parent shall Parenthave primary responsibility for, Merger Sub and shall take the lead in, scheduling and conducting any meeting with any Governmental Entity or any Affiliate of intervenor in any proceeding relating to a Required Approval, coordinating and making any applications and filings with, and communicating with and resolving any investigation or other inquiry of, any agency or other Governmental Entity, and determining the strategy and timing for, and making all material decisions relating to, obtaining the Required Approvals, Required Consents, Consents, Permits and other approvals and confirmations from any Governmental Entity or other Person necessary, proper or advisable to consummate the Merger; provided, that, Parent be required agrees to pursue or defend any Claim against CFIUS in connection consult with the transactions contemplated hereby, including Company reasonably in advance of taking any such action and consider in good faith the MergerCompany’s views and recommendations with respect thereto. Nothing in this Section 6.03 shall obligate the Parent, the Company or any of their respective Affiliates to take any action that is not conditioned on the Closing.
(e) Parent shall promptly notify the Company and the Company shall notify Parent of any notice or other communication from any Person alleging that such Person’s Consent is or may be required in connection with the Merger.
Appears in 1 contract
Further Actions; Regulatory Approvals; Required Actions. (a) Subject to the terms and conditions of this Agreement, each of the Parties Party shall use its reasonable best efforts to take, or cause to be taken, all actions, and to do, or cause to be done, and to assist and to cooperate with the other Parties in doing, all things necessary to cause the conditions to the Closing set forth in Article VII to be satisfied as promptly as reasonably practicable and to effect the Closing as promptly as reasonably practicable thereafterpracticable, including (i) making all necessary Filings with Governmental Entities Authorities or third parties, (ii) obtaining requesting early termination of the Required Consents waiting period under the HSR Act applicable to the Merger and any third-party Consents that are necessary, proper or advisable using reasonable best efforts to consummate obtain the Merger, (iii) obtaining the Required Approvals HSR Clearance and all other Consents of Governmental Entities Authorities that are necessary, proper or advisable necessary to consummate the Merger and the other transactions contemplated hereby as promptly as reasonably practicable and (iviii) executing and delivering any additional instruments using reasonable best efforts to obtain consents, approvals or waivers from third parties that are necessary, proper or advisable necessary to consummate the Merger Merger. Parent shall be responsible for 100% of the fees, costs and expenses (except for the other transactions fees, costs and expenses of the Company’s advisors), including any filing fees, associated with any Filings or Consents contemplated herebyby this Section 6.05.
(b) In connection with and without limiting the generality of Section 6.03(a) and subject to the obligations of Section 6.06,
(i) 6.05(a), each of Parent and the Company shall shall:
(i) file or cause to be filed with the U.S. Department of Justice and the Federal Trade Commission, in consultation and cooperation with the other, as promptly as practicable after the date of this Agreement and, in any event, no later than ten (10) Business Days after the date of this Agreement, an appropriate Notification and Report Form pursuant to the HSR Act relating to the Merger;
(ii) make or cause to be made, in consultation and cooperation with the other, at all other necessary, proper or advisable Filings under any Antitrust Law with respect to the Merger, or, where the Filing is made pursuant to an Antitrust Law where the Governmental Authority first reviews drafts of the relevant filing, a mutually agreeable time draft of the relevant filing, as promptly as reasonably practicable and, in any event, no later than thirty (30) Business Days after the date of this Agreement, (1) with the exception of either the request for an appropriate filing of advisory opinion or a Notification and Report Form Filing pursuant to the HSR Act relating Antitrust Laws of Argentina, which request or Filing shall be made no later than the earlier of (x) seven (7) days following the Closing assuming the such Law is not suspensory or (y) within thirty (30) days of such law becoming suspensory and applicable to the Merger, (2) all other necessary Filings relating to the Merger with other Governmental Entities under any other Antitrust Law, and (3) all necessary filings with the U.S. Federal Communications Commission;
(ii) each of Parent and the Company shall use reasonable best efforts to obtain CFIUS Approval, which shall include (1) preparing and filing a declaration with CFIUS with respect to the transactions contemplated by this Agreement as promptly as practicable after the date of this Agreement and in any event within twenty (20) Business Days (unless otherwise agreed by the Parties) and (2), if applicable, as promptly as practicable, and in any event, within twenty (20) Business Days (unless otherwise agreed by the Parties) following receipt of written notification (including by email) from CFIUS that, based on its assessment of the declaration, CFIUS requests that the parties file a joint voluntary notice of the transactions contemplated by this Agreement, prefiling and filing a final joint voluntary notice with CFIUS with respect to the transactions contemplated by this Agreement, in each case pursuant to the DPA;
(iii) other than those filings referenced in Section 6.03(b)(i) and Section 6.03(b)(ii), the Company shall make or cause to be made, in consultation and cooperation with and upon consent of Parent, such consent not to be unreasonably withheld, conditioned, or delayed, as promptly as reasonably practicable after the date of this Agreement and in any event within seventy-five (75) days after the date of this Agreement, which may be extended by mutual agreement of the Parties (such consent not to be unreasonably withheld, conditioned or delayed), all other necessary Filings with other Governmental Entities Authorities relating to the Merger, including any such Filings necessary to obtain any Required Approval;
(iv) each of Parent and the Company shall furnish to the other all assistance, cooperation and information reasonably required for any such Filing made by such Party and in order to achieve the effects set forth in this Section 6.036.05;
(v) unless prohibited by applicable Law or by a Governmental EntityAuthority, each of Parent and the Company shall give the other Parties reasonable prior notice of any such Filing and, to the extent reasonably practicable, of any written or oral communication with any Governmental Entity Authority relating to the Merger (including with respect to any of the actions referred to in this Section 6.03(b6.05(b)) and, to the extent reasonably practicable, permit the other to review and discuss in advance, and consider in good faith the views and comments of, and secure the participation of (including supplying appropriate witnesses to the extent necessary or advisable)of, the other in connection with any such Filing (except for HSR Act filings) or communication;
(vi) each of Parent and the Company shall respond as promptly as reasonably practicable under the circumstances (and, with respect to CFIUS, in any event, no later than the applicable timeline requested by CFIUS pursuant to the DPA, including any extensions granted thereunder) to any inquiries directed to such Party received from any Governmental Entity Authority or any other authority enforcing the DPA or applicable Antitrust Laws for additional information, documentation, certifications information or other materials documentation in connection with the CFIUS Approval, antitrust, competition or similar matters (including a “second request” under the HSR Act) and not extend any waiting period under the HSR Act or enter into any agreement with any such Governmental Entity Authority or other authorities not to consummate the Merger, except with the prior written consent of the other Parties, such consent not to be unreasonably withheld, conditioned, or delayed;Party; and
(vii) each of Parent and the Company shall make an appropriate response to any requests made of such Party by any Governmental Entity in connection with any review or investigation of the transactions contemplated by this Agreement; and (viii) unless prohibited by applicable Law or a Governmental EntityAuthority, to the extent reasonably practicable, each of Parent and the Company shall (1) not participate in or attend any meeting, telephone call meeting (whether in person or conference or engage in any substantive conversation via telephone) with any Governmental Entity (including any member or representative of any Governmental Entity’s staff) regarding specific approval Authority in respect of the Merger without the other PartiesParty, (2) give the other reasonable prior notice of and invitation to any such meeting, telephone call or conference or conversation (in each case, with full participation rights) and considering in good faith the views of keep the other Party in connection therewith, and, in the event one Party is prohibited by applicable Law or by the applicable Governmental Entity from participating in or attending any such meeting, telephone call or conference or engaging in any such conversation, keep such Party apprised (including by providing summaries, if applicable) with respect theretoto any meeting or substantive conversation with any Governmental Authority in respect of the Merger, (3) cooperate in the filing of any substantive memoranda, white papers, filings, pleadings, correspondence, responses correspondence or other written communications explaining or defending or otherwise in connection with this Agreement or the Merger, articulating any regulatory or competitive argument or responding to requests or objections made by any Governmental Entity or any intervenor in any proceeding relating to a Required Approval Authority and (4) furnish the other Parties Party with copies (including any drafts submitted to a Governmental Entity) of all substantive correspondence, Filings (except HSR Act filings) and communications (and memoranda setting forth the substance thereof) between it and its Affiliates and their respective Representatives on the one hand, and any Governmental Entity Authority or members of any Governmental EntityAuthority’s staff, on the other hand, with respect to this Agreement or the Merger; provided provided, however, that the Parties shall be permitted to designate redact any correspondence, Filing or communication as “outside counsel only” to the extent such correspondence, Filing or communication contains commercially sensitive information and the receiving outside counsel shall not provide these materials to the Party it represents; provided, further, any information required to be provided pursuant to this Section 6.03(b)(viii) may be redacted (A) to remove references concerning the valuation of the Company, (B) as necessary to comply with contractual arrangementsarrangements or applicable Law, and (C) as necessary to comply with applicable Law, (D) to remove any “personal identifier information” (as defined in the DPA), and (E) as necessary to address reasonable attorney-client or other privilege or confidentiality concerns. Each Party may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section 6.05(b) as “outside counsel only.” Such materials and the information contained therein shall be given only to the outside legal counsel and will not be disclosed by such outside counsel to employees, officers, or directors of the recipient unless express permission is obtained in advance from the source of the materials (Parent or the Company, as the case may be) or its legal counsel. For the avoidance of doubt, this Section 6.03(b6.05(b) shall not apply with respect to Tax matters.
(c) Parent shall not, and shall not knowingly cause its Affiliates not to, (I) enter into any a transaction relating to acquire any asset, property, right, business or Person (including by way of merger, consolidation, share exchange, investment, joint venture, strategic alliance, other business combination, asset, stock or equity purchase, purchase or otherwise) or (II) enter into any new commercial activities or businesses unrelated to the transactions contemplated by this Agreement in the State of Minnesota or the State of Wisconsin, in each case of clause (I) and clause (II), that would reasonably be expected to prevent or materially increase delay satisfaction of the risk conditions set forth in Section 7.01(a), Section 7.01(b) and Section 7.01(d). For the avoidance of doubt, a delay beyond the End Date would constitute a material delay for purposes of the preceding sentence.
(wd) not obtaining Notwithstanding anything in this Agreement to the contrary, in no event shall Parent, Merger Sub or any Required Approvalof their respective Affiliates be obligated to take any action, including entering into any consent decree, hold separate order or other arrangement, that (xi) not making requires the sale, divestiture, licensing or disposition of any Consent assets or Filing contemplated by this Section 6.03 businesses of any of the Company, Parent or Merger Sub or any of their respective Subsidiaries, or (yii) materially delaying limits the receipt conduct of Parent or its Affiliates (including, after the Closing, the Surviving Corporation and the Company Subsidiaries) or Parent’s freedom of action with respect to, or its ability to retain, the Company and the Company Subsidiaries or any Required Approval portion thereof or the making of any making any Consent or Filing contemplated by this Section 6.03. In furtherance of and without limiting any of Parent’s covenants and agreements under or its Affiliates’ other assets or businesses, or (iii) in Parent’s reasonable judgment, would be expected to have a material adverse impact on any of its businesses, or the businesses to be acquired by it pursuant to this Section 6.03 and Section 6.06Agreement, either individually or in the aggregate; provided, however, that, to the extent necessary to obtain the HSR Clearance or any other Consent of a Governmental Authority that is required to consummate the Merger, Parent shall agree to propose, negotiate, offer to commit and effect (and if such offer is accepted, commit to and effect), by consent decree, hold separate order, or otherwise, the sale, divestiture, license, or disposition of the assets or businesses of the Company and its Subsidiaries (excluding, for the avoidance of doubt, any assets or businesses of Parent or its Affiliates), so long as such actions would not, and would not reasonably be expected to, individually or in the aggregate, materially and adversely affect the business of the Company and its Subsidiaries (or, after the Closing, the Surviving Corporation and the Company Subsidiaries). With regard to any Governmental Authority, neither the Company nor any of its Subsidiaries shall, without Parent’s written consent, which may be withheld in Parent’s sole discretion, take, or commit to take, any action inconsistent with the limitations set forth in the preceding sentence. Nothing in this Agreement shall require any party to take or agree to take any action with respect to its business or operations in connection with obtaining the HSR Clearance or any other Consent of a Governmental Authority, unless the effectiveness of such agreement or action is conditioned upon the Closing.
(e) Subject to Section 6.05(c), each Party agrees to cooperate and use its reasonable best efforts to avoid or eliminate each and every impediment that may be asserted by a Governmental Entity so as to enable the Closing to occur as soon as reasonably possible, which such reasonable best efforts shall include the following:
(i) defending defend through litigation on the merits, including appeals, any Claim asserted in any court or other proceeding by any Person, including any Governmental EntityAuthority, that seeks to or could prevent or prohibit or impede, interfere with or materially delay the consummation of the Closing. Parent shall be entitled to direct the defense in any antitrust investigation or litigation by, or negotiations with, any Governmental Authority or other Person relating to the Merger or regulatory filings under applicable Law, subject to prior consultation with, and shall have good faith consideration of the rightviews of, the Company (including but not limited to the obligation, to appeal an adverse decision on the merits;
(iiactivities described in Sections 6.04(b)(v) proposing, negotiating, committing to and effecting, by consent decree, hold separate order or otherwise, the sale, divestiture, licensing or disposition of any assets or businesses of Parent or the Company or the Company Subsidiaries, including entering into customary ancillary agreements on commercially reasonable terms relating to any such sale, divestiture, licensing or disposition;
(iii) agreeing to any limitation on the conduct of Parent (including, after the Closing, the Surviving Corporation and the Company Subsidiaries); and
(iv) agreeing to take any other action as may be required by a Governmental Entity in order to effect each of the following: (1) obtaining all Required Approvals as soon as reasonably possible and in any event before the End Date, (2) having vacated, lifted, dissolved, reversed or overturned any Judgment that is in effect that prohibits, prevents or restricts the consummation of, or impedes, interferes with or materially delays the Closing and (3) effecting the expiration or termination of any waiting period, which would otherwise have the effect of preventing, prohibiting or restricting consummation of the Closing or impeding, interfering with or materially delaying the Closingvii)).
(d) Notwithstanding anything to the contrary, nothing in this Section 6.03 (other than the first sentence of Section 6.03(c)) shall require Parent to take, or agree to take, any action (other than with respect to any restrictions on information sharing or any other action which is not material to Parent or such Person) related to (x) any of its Affiliates, (y) any Sponsor or their respective direct or indirect portfolio companies owned, managed, advised or controlled by any of the Sponsors or any of their respective Affiliates or (z) any limited partner or other direct or indirect investors in any investment fund affiliated with, advised or managed by any Sponsor or any of their respective Affiliates, or any of the respective Affiliates of any such limited partners or investors; provided, further, that the provisions of this Section 6.03 shall not be construed to (x) require Parent, Merger Sub or any Affiliate of Parent or (y) permit the Company without the prior written consent of Parent (which consent shall not to be unreasonably withheld, conditioned, or delayed), to undertake any efforts or take any action (including accepting any terms, conditions, liabilities, obligations, commitment, sanctions or other measures and proposing, negotiating, committing to and effect, by consent decree, hold separate order or otherwise, the sale, divestiture, licensing or disposition of assets or businesses of Parent or the Company or their respective Affiliates) if the taking of such efforts or action, individually or in the aggregate, has resulted or would reasonably be expected to result in a Burdensome Condition; provided, further, that notwithstanding anything contained in this Agreement to the contrary, in no event shall Parent, Merger Sub or any Affiliate of Parent be required to pursue or defend any Claim against CFIUS in connection with the transactions contemplated hereby, including the Merger. Nothing in this Section 6.03 shall obligate the Parent, the Company or any of their respective Affiliates to take any action that is not conditioned on the Closing.
(ef) Parent shall promptly notify the Company Company, and the Company shall notify Parent Parent, of (i) any notice or other communication from any Person alleging that such Person’s Consent is or may be required in connection with the Merger, (ii) any material notice or other communication from any Governmental Authority or Nasdaq (or any other securities market) in connection with the transactions contemplated by this Agreement, (iii) any Claim commenced or, to the Knowledge of the Company, threatened, that (A) relates to or involves or otherwise affects the Company or any of its Subsidiaries, and (B) relates to the transactions contemplated by this Agreement, and (iv) the occurrence of an event which would or would be reasonably likely to (A) prevent or materially delay the consummation of the transactions contemplated by this Agreement, or (B) result in the failure of any condition set forth in Article VII or Exhibit A to be satisfied.
(g) Parent, Merger Sub and the Company shall, and shall cause their respective Affiliates to, use their reasonable best efforts to obtain CFIUS Approval as promptly as practical after the date hereof. Such reasonable best efforts shall include promptly after the date hereof making any draft and final filings required in connection with the CFIUS Approval in accordance with the DPA, which draft filings shall be made within thirty (30) calendar days hereof, unless the parties hereto agree in writing otherwise, and providing any information requested by CFIUS or any other agency or branch of the U.S. government in connection with the CFIUS review or investigation of the transactions contemplated by this Agreement within the timeframes required by the DPA unless CFIUS agrees in writing to an extension of such timeframe. Each of Parent, Merger Sub and the Company shall, in connection with the efforts to obtain CFIUS Approval, (i) cooperate in all respects and consult with each other in connection with the CFIUS Notice, including by allowing the other party to have a reasonable opportunity to review in advance and comment on drafts of filings and submissions, (ii) promptly inform the other party of any communication (orally or in writing) received by such party from, or given by such party to, CFIUS, including by promptly providing copies to the other party of any such written communications and (iii) permit the other party to review in advance any communication that it gives to, and consult with each other in advance of any meeting, substantive telephone call or conference with CFIUS, and to the extent not prohibited by CFIUS, give the other party the opportunity to attend and participate in any in-person meetings with CFIUS. With respect to Parent and Merger Sub, such reasonable best efforts shall also include taking reasonable steps to mitigate national security concerns as may be required by CFIUS in connection with the CFIUS Approval. Notwithstanding the foregoing, Parent and Merger Sub shall not be required to take any steps in connection with obtaining CFIUS Approval that would materially and adversely affect the business of the Company and its Subsidiaries or any other business of Parent or the ability by Parent or Merger Sub to govern the Company or any other business of Parent. In the event that the President of the United States acts to prohibit the Merger (a “CFIUS Turndown”), this Agreement may be terminated in accordance with Section 8.01(c)(iii) or Section 8.01(d)(iii).
(h) Parent shall promptly notify the Company, and the Company shall notify Parent, of (i) any notice or other communication from any Person alleging that such Person’s Consent is or may be required in connection with the Merger and (ii) any material written notice from any Governmental Authority in connection with the transactions contemplated by this Agreement.
Appears in 1 contract
Samples: Merger Agreement (Schulman a Inc)
Further Actions; Regulatory Approvals; Required Actions. (a) Subject to the terms and conditions of this Agreement, each of the Parties shall use its respective reasonable best efforts to take, or cause to be taken, all actions, and do, or cause to be done, and assist and cooperate with the other Parties in doing, all things necessary to cause the conditions to the Closing set forth in Article VII to be satisfied as promptly as reasonably practicable and or to effect the Closing as promptly as reasonably practicable thereafterpracticable, including (i) making all necessary Filings with Governmental Entities or third parties, (ii) obtaining the Required Consents and any all other third-party Consents that are necessary, proper or advisable to consummate the MergerMergers, (iii) obtaining the Required Statutory Approvals and all other Consents of Governmental Entities that are necessary, proper or advisable to consummate the Merger Mergers and the other transactions contemplated hereby and (iv) executing and delivering any additional instruments that are necessary, proper or advisable to consummate the Merger Mergers and the other transactions contemplated hereby. For the avoidance of doubt, any Filings made, or Consents or Required Statutory Approvals sought, obtained or denied based on the transactions contemplated by the Original Merger Agreement shall not be considered for any purposes of this Agreement, including Sections 6.03, 7.01(b), 7.01(c), 7.02(e) and 7.03(e), other than the Filings, Consents or Required Statutory Approvals set forth on Section 6.03 of the A&R GPE Disclosure Letter or that the Parties otherwise expressly agree are unaffected by the amendment and restatement of the Original Merger Agreement.
(b) In connection with and without limiting the generality of Section 6.03(a) ), each of GPE and subject to the obligations of Section 6.06,Westar shall:
(i) each of Parent and the Company shall make or cause to be made, in consultation and cooperation with the other, at a mutually agreeable time after the date of this Agreement, (1) an appropriate filing of a Notification and Report Form pursuant to the HSR Act relating to the MergerMergers, and (2) all other necessary Filings relating to the Merger Mergers with other Governmental Entities under any other Antitrust Law, and (3) all necessary filings with the U.S. Federal Communications Commission;
(ii) each of Parent and the Company shall use reasonable best efforts to obtain CFIUS Approval, which shall include (1) preparing and filing a declaration with CFIUS with respect to the transactions contemplated by this Agreement as promptly as practicable after the date of this Agreement and in any event within twenty (20) Business Days (unless otherwise agreed by the Parties) and (2), if applicable, as promptly as practicable, and in any event, within twenty (20) Business Days (unless otherwise agreed by the Parties) following receipt of written notification (including by email) from CFIUS that, based on its assessment of the declaration, CFIUS requests that the parties file a joint voluntary notice of the transactions contemplated by this Agreement, prefiling and filing a final joint voluntary notice with CFIUS with respect to the transactions contemplated by this Agreement, in each case pursuant to the DPA;
(iii) other than those filings referenced in Section 6.03(b)(i) and Section 6.03(b)(ii), the Company shall make or cause to be made, in consultation and cooperation with and upon consent of Parent, such consent not to be unreasonably withheld, conditioned, or delayed, as promptly as reasonably practicable after the date of this Agreement and in any event within seventy-five sixty (7560) days after the date of this Agreement, which may be extended by mutual agreement of the Parties (such consent not to be unreasonably withheld, conditioned or delayed)Parties, all necessary Filings with other Governmental Entities relating to the MergerMergers, including any such Filings necessary to obtain any Required Statutory Approval;
(iviii) each of Parent and the Company shall furnish to the other all assistance, cooperation and information reasonably required for any such Filing made by such Party and in order to achieve the effects set forth in this Section 6.03;
(viv) unless prohibited by applicable Law or by a Governmental Entity, each of Parent and the Company shall give the other Parties reasonable prior notice of any such Filing and, to the extent reasonably practicable, of any written or oral communication with any Governmental Entity relating to the Merger Mergers (including with respect to any of the actions referred to in this Section 6.03(b)) and, to the extent reasonably practicable, permit the other to review and discuss in advance, and consider in good faith the views and comments of, and secure the participation of (including supplying appropriate witnesses to the extent necessary or advisable)of, the other in connection with any such Filing (except for HSR Act filings) or communication;
(viv) each of Parent and the Company shall respond as promptly as reasonably practicable under the circumstances (and, with respect to CFIUS, in any event, no later than the applicable timeline requested by CFIUS pursuant to the DPA, including any extensions granted thereunder) to any inquiries directed to such Party received from any Governmental Entity or any other authority enforcing the DPA or applicable Antitrust Laws for additional information, documentation, certifications information or other materials documentation in connection with the CFIUS Approval, antitrust, competition or similar matters (including a “second request” under the HSR Act) and not extend any waiting period under the HSR Act or enter into any agreement with any such Governmental Entity or other authorities not to consummate the MergerMergers, except with the prior written consent of the other Parties, such consent not to be unreasonably withheld, conditioned, or delayedParty;
(viivi) each of Parent and the Company shall make an appropriate response to provide any requests made of such Party information requested by any Governmental Entity in connection with any review or investigation of the transactions contemplated by this Agreement; and and
(viiivii) unless prohibited by applicable Law or a Governmental Entity, to the extent reasonably practicable, each of Parent and the Company shall (1) not participate in or attend any meeting, telephone call or conference meeting or engage in any substantive conversation with any Governmental Entity (including any member or representative of any Governmental Entity’s staff) regarding specific approval in respect of the Merger Mergers without the other PartiesParty, (2) to the extent reasonably practicable, give the other reasonable prior notice of and invitation to any such meeting, telephone call or conference meeting or conversation (in each case, with full participation rights) and considering in good faith the views of the other Party in connection therewith, and, in the event one Party is prohibited by applicable Law or by the applicable Governmental Entity from participating in or attending any such meeting, telephone call or conference meeting or engaging in any such conversation, keep such Party apprised (including by providing summaries, if applicable) with respect thereto, (3) cooperate in the filing of any substantive memoranda, white papers, filings, pleadings, correspondence, responses correspondence or other written communications explaining or defending or otherwise in connection with this Agreement or the MergerMergers, articulating any regulatory or competitive argument or responding to requests or objections made by any Governmental Entity or any intervenor in any proceeding relating to a Required Approval and (4) furnish the other Parties Party with copies (including any drafts submitted to a Governmental Entity) of all substantive correspondence, Filings (except HSR Act filings) and communications (and memoranda setting forth the substance thereof) between it and its Affiliates and their respective Representatives on the one hand, and any Governmental Entity or members of any Governmental Entity’s staff, on the other hand, with respect to this Agreement or the MergerMergers; provided that the Parties shall be permitted to designate redact any correspondence, Filing or communication as “outside counsel only” to the extent such correspondence, Filing or communication contains commercially sensitive information and the receiving outside counsel shall not provide these materials to the Party it represents; provided, further, any information required to be provided pursuant to this Section 6.03(b)(viii) may be redacted (A) to remove references concerning the valuation of the Company, (B) as necessary to comply with contractual arrangements, (C) as necessary to comply with applicable Law, (D) to remove any “personal identifier information” (as defined in the DPA), and (E) as necessary to address reasonable privilege or confidentiality concerns. For the avoidance of doubt, this Section 6.03(b) shall not apply to Tax matters.
(c) Parent shall notNeither GPE nor Westar shall, and each shall not knowingly cause its Affiliates not to, (I) enter into take any transaction to acquire action, including acquiring any asset, property, business or Person (by way of merger, consolidation, share exchange, investment, other business combination, asset, stock or equity purchase, or otherwise) or (II) enter into any new commercial activities or businesses unrelated to the transactions contemplated by this Agreement in the State of Minnesota or the State of Wisconsin, in each case of clause (I) and clause (II), that would could reasonably be expected to materially increase the risk of (w) not obtaining any Required Approval, (x) not or making any Consent or Filing contemplated by this Section 6.03 or (y) materially delaying the timely receipt of any Required Approval or the making of any making any Consent or Filing contemplated by this Section 6.03thereof. In furtherance of and without limiting any of ParentGPE’s or Westar’s covenants and agreements under this Section 6.03 6.03, each of GPE and Section 6.06, Parent Westar shall use its reasonable best efforts to avoid or eliminate each and every impediment that may be asserted by a Governmental Entity pursuant to any Antitrust Law with respect to the Mergers or in connection with granting any Required Statutory Approval so as to enable the Closing to occur as soon as reasonably possible, which such reasonable best efforts shall include the following:
(i) defending through litigation on the merits, including appeals, any Claim asserted in any court or other proceeding by any Person, including any Governmental Entity, that seeks to or could prevent or prohibit or impede, interfere with or materially delay the consummation of the Closing, and shall have the right, but not the obligation, to appeal an adverse decision on the merits;
(ii) proposing, negotiating, committing to and effecting, by consent decree, hold separate order or otherwise, the sale, divestiture, licensing or disposition of any assets or businesses of Parent GPE or its Affiliates or Westar or the Company or the Company Westar Subsidiaries, including entering into customary ancillary agreements on commercially reasonable terms relating to any such sale, divestiture, licensing or disposition;
(iii) agreeing to any limitation on the conduct of Parent GPE, Westar or their respective Affiliates (including, after the Closing, the Surviving Corporation Holdco and the Company Subsidiariesits Affiliates); and
(iv) agreeing to take any other action as may be required by a Governmental Entity in order to effect each of the following: (1) obtaining all Required Statutory Approvals as soon as reasonably possible and in any event before the End Date, (2) avoiding the entry of, or having vacated, lifted, dissolved, reversed or overturned any Judgment Judgment, whether temporary, preliminary or permanent, that is in effect that prohibits, prevents or restricts the consummation of, or impedes, interferes with or materially delays delays, the Closing and (3) effecting the expiration or termination of any waiting period, which would otherwise have the effect of preventing, prohibiting or restricting consummation of the Closing or impeding, interfering with or materially delaying the Closing.
(d) Notwithstanding ; provided that, notwithstanding anything to the contrary, nothing else contained in this Section 6.03 (other than the first sentence of Section 6.03(c)) shall require Parent to takeAgreement, or agree to take, any action (other than with respect to any restrictions on information sharing or any other action which is not material to Parent or such Person) related to (x) any of its Affiliates, (y) any Sponsor or their respective direct or indirect portfolio companies owned, managed, advised or controlled by any of the Sponsors or any of their respective Affiliates or (z) any limited partner or other direct or indirect investors in any investment fund affiliated with, advised or managed by any Sponsor or any of their respective Affiliates, or any of the respective Affiliates of any such limited partners or investors; provided, further, that the provisions of this Section 6.03 shall not be construed to (xi) require ParentGPE, Westar, Holdco, Merger Sub Sub, any GPE Subsidiary or any Affiliate of Parent Westar Subsidiary or (yii) permit the Company GPE, any GPE Subsidiary, Westar or any Westar Subsidiary without the prior written consent of Parent (which consent shall not to be unreasonably withheld, conditioned, or delayed)the other Party, to undertake any efforts or take any action (including accepting any terms, conditions, liabilities, obligations, commitmentcommitments, sanctions or other measures and proposing, negotiating, committing to and effecteffecting, by consent decree, hold separate order or otherwise, the sale, divestiture, licensing or disposition of assets or businesses of Parent GPE or the Company Westar or their respective AffiliatesSubsidiaries) if the taking of such efforts or action, individually or in the aggregate, has resulted or would reasonably be expected to result in a Burdensome Condition; provided, further, that notwithstanding anything contained in this Agreement to the contrary, in no event shall Parent, Merger Sub or any Affiliate of Parent be required to pursue or defend any Claim against CFIUS in connection with the transactions contemplated hereby, including the Merger. Nothing in this Section 6.03 shall obligate the Parent, the Company or any of their respective Affiliates to take any action that is not conditioned on the ClosingRegulatory Material Adverse Effect.
(e) Parent shall promptly notify the Company and the Company shall notify Parent of any notice or other communication from any Person alleging that such Person’s Consent is or may be required in connection with the Merger.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Great Plains Energy Inc)
Further Actions; Regulatory Approvals; Required Actions. (a) Subject to the terms and conditions of this Agreement, each of the Parties shall use its reasonable best efforts to take, or cause to be taken, all actions, and do, or cause to be done, and assist and cooperate with the other Parties in doing, all things necessary or advisable to cause the conditions to the Closing set forth in Article VII to be satisfied as promptly as reasonably practicable and to effect the Closing as promptly as reasonably practicable thereafterpracticable, including (i) making all necessary Filings with Governmental Entities or third parties, (ii) obtaining the Required Consents and any all other third-party Consents that are necessary, proper or advisable necessary to consummate the Merger, (iii) obtaining the Required Statutory Approvals and all other Consents of Governmental Entities that are necessary, proper or advisable necessary to consummate the Merger, (iv) avoiding the entry, enactment or application of any Law, Judgment, or other Legal Restraint that might impede or delay consummation of the Merger and the other transactions contemplated hereby and (ivv) executing and delivering any additional instruments that are necessary, proper or advisable necessary to consummate the Merger Merger. Parent shall be responsible for 100% of the fees, costs and expenses (except for the other transactions fees, costs and expenses of the Company's advisors), including any filing fees, associated with any Filings or Consents contemplated herebyby this Section 6.03.
(b) In connection with and without limiting the generality of Section 6.03(a) and subject to the obligations of Section 6.06,
(i) ), each of Parent and the Company shall do the following:
(i) make or cause to be made, in consultation and cooperation with the other, at a mutually agreeable time as promptly as reasonably practicable after the date of this Agreement, (1) an appropriate filing of a Notification and Report Form pursuant to the HSR Act relating to the Merger, (2) all other necessary Filings relating to the Merger with other Governmental Entities under any other Antitrust Law, and (3) all necessary filings with the U.S. Federal Communications Commission;
(ii) each of Parent and the Company shall use reasonable best efforts to obtain CFIUS Approval, which shall include (1) preparing and filing a declaration with CFIUS with respect to the transactions contemplated by this Agreement as promptly as practicable after the date of this Agreement and in any event within twenty (20) Business Days (unless otherwise agreed by the Parties) and (2), if applicable, as promptly as practicable, and in any event, within twenty (20) Business Days (unless otherwise agreed by the Parties) following receipt of written notification (including by email) from CFIUS that, based on its assessment of the declaration, CFIUS requests that the parties file a joint voluntary notice of the transactions contemplated by this Agreement, prefiling and filing a final joint voluntary notice with CFIUS with respect to the transactions contemplated by this Agreement, in each case pursuant to the DPA;
(iii) other than those filings referenced in Section 6.03(b)(i) and Section 6.03(b)(ii), the Company shall make or cause to be made, in consultation and cooperation with and upon consent of Parent, such consent not to be unreasonably withheld, conditioned, or delayed, as promptly as reasonably practicable after the date of this Agreement and in any event within seventy-five (75) days advisable after the date of this Agreement, which may be extended by mutual agreement of the Parties (such consent not to be unreasonably withheld, conditioned or delayed), all necessary Filings with other Governmental Entities relating to the Merger, including any such Filings necessary to obtain any Required Statutory Approval;
(iviii) each of Parent and the Company shall furnish to the other all assistance, cooperation and information reasonably required for any such Filing made by such Party and in order to achieve the effects set forth in this Section 6.03;
(viv) unless prohibited by applicable Law or by a Governmental Entity, each of Parent and the Company shall give the other Parties reasonable prior notice of any such Filing and, to the extent reasonably practicable, of any written or material oral communication with any Governmental Entity relating to the Merger (including with respect to any of the actions referred to in this Section 6.03(b)6.03) and, to the extent reasonably practicable, permit the other to review and discuss in advance, and consider in good faith the views and comments of, and secure the participation of (including supplying appropriate witnesses to the extent necessary or advisable)of, the other in connection with any such Filing Filing, written communication (except for HSR Act filings) other than administrative or ministerial communications), or material oral communication;
(viv) each of Parent and respond, or provide the Company shall respond other Party with information allowing it to respond, as promptly as reasonably practicable and advisable under the circumstances (and, with respect to CFIUS, in any event, no later than the applicable timeline requested by CFIUS pursuant to the DPA, including any extensions granted thereunder) to any inquiries directed to such Party received from any Governmental Entity or any other authority enforcing the DPA or applicable Antitrust Laws for additional information, documentation, certifications information or other materials documentation in connection with the CFIUS Approval, antitrust, competition or similar matters (including a “"second request” " under the HSR Act) and not extend any waiting period under the HSR Act or enter into any agreement with any such Governmental Entity or other authorities not to consummate the Merger, except with the prior written consent of the other Parties, such consent not to be unreasonably withheld, conditioned, or delayedParty;
(viivi) each of Parent and to the Company shall make an appropriate response to extent practicable, provide any requests made of such Party information requested by any Governmental Entity in connection with any review or investigation of the transactions contemplated by this Agreement; and and
(viiivii) unless prohibited by applicable Law or a Governmental Entity, to the extent reasonably practicable, each of Parent and the Company shall (1) not participate in or attend any meetingmeeting or material telephone conference with any Governmental Entity in respect of the Merger without affording the other Party the opportunity to participate, telephone call (2) keep the other Party apprised with respect to any meeting or conference or engage in any substantive material conversation with any Governmental Entity (including any member or representative of any Governmental Entity’s staff) regarding specific approval in respect of the Merger without the other Parties, (2) give the other reasonable prior notice of and invitation to any such meeting, telephone call or conference or conversation (in each case, with full participation rights) and considering in good faith the views of the other Party in connection therewith, and, in the event one Party is prohibited by applicable Law or by the applicable Governmental Entity from participating in or attending any such meeting, telephone call or conference or engaging in any such conversation, keep such Party apprised (including by providing summaries, if applicable) with respect theretoMerger, (3) cooperate in the filing of any substantive memoranda, white papers, filings, pleadings, correspondence, responses correspondence or other written and oral communications explaining or defending or otherwise in connection with this Agreement or the Merger, articulating any regulatory or competitive argument or responding to requests or objections made by any Governmental Entity or any intervenor in any proceeding relating to a Required Approval and (4) furnish the other Parties Party with copies (including any drafts submitted to a Governmental Entity) of all material or substantive correspondence, Filings (except HSR Act filings) and communications (and memoranda setting forth the substance thereof) between it and its Affiliates and their respective Representatives on the one hand, and any Governmental Entity or members of any Governmental Entity’s 's staff, on the other hand, with respect to this Agreement or the Merger; provided that Parent shall have the principal responsibility for making determinations about the overall merger clearance strategy and shall take the overall lead in determining that strategy, including issues of timing, and the negotiation of any potential remedies, in its reasonable discretion consistent with its obligations under this Section 6.03; provided, however, that no party shall participate in any meeting or substantive communication with any Governmental Entity in connection with this Agreement or the Merger unless it consults with the other party in advance and, to the extent not prohibited by such Governmental Entity, gives the other party the opportunity to attend and participate therein or thereat; and provided further that the Parties shall be permitted to designate information "for outside counsel only" and to redact any correspondence, Filing or communication as “outside counsel only” to the extent such correspondence, Filing or communication contains commercially sensitive information and the receiving outside counsel information. Written communications of a purely administrative or ministerial nature shall not provide these materials to the Party it represents; provided, further, any information required to be provided pursuant subject to this Section 6.03(b)(viii) may be redacted (A) to remove references concerning the valuation of the Company, (B) as necessary to comply with contractual arrangements, (C) as necessary to comply with applicable Law, (D) to remove any “personal identifier information” (as defined in the DPA), and (E) as necessary to address reasonable privilege or confidentiality concernsparagraph. For the avoidance of doubt, this Section 6.03(b) shall not apply to Tax matters.44
(c) Parent shall not, and shall not knowingly cause its Affiliates to, (I) enter into any transaction to acquire any asset, property, business or Person (by way of merger, consolidation, share exchange, investment, other business combination, asset, stock or equity purchase, or otherwise) or (II) enter into any new commercial activities or businesses unrelated Subject to the transactions contemplated by this Agreement limitations set forth in Section 6.03(d) below, each of Parent and the State of Minnesota or the State of Wisconsin, in each case of clause (I) and clause (II), that would reasonably be expected to materially increase the risk of (w) not obtaining any Required Approval, (x) not making any Consent or Filing contemplated by this Section 6.03 or (y) materially delaying the receipt of any Required Approval or the making of any making any Consent or Filing contemplated by this Section 6.03. In furtherance of and without limiting any of Parent’s covenants and agreements under this Section 6.03 and Section 6.06, Parent Company shall use its reasonable best efforts to avoid or eliminate each and every impediment that may be asserted by a Governmental Entity pursuant to any Antitrust Law with respect to the Merger or in connection with granting any Required Statutory Approval so as to enable the Closing to occur as soon promptly as reasonably possiblepracticable, which such reasonable best efforts shall include the following:
(i) defending through litigation on the merits, any Claim asserted in any court or other proceeding by any Person, including any Governmental Entity, that seeks to or could prevent or prohibit or impede, interfere with or materially delay the consummation of the Closing, and shall have the right, but not the obligation, to appeal an adverse decision on the merits;
(ii) proposing, negotiating, committing to and effecting, by consent decree, hold separate order or otherwise, the sale, divestiture, licensing or disposition of any assets or businesses of Parent or the Company or the Company Subsidiaries, including entering into customary ancillary agreements on commercially reasonable terms relating to any such sale, divestiture, licensing or disposition;
(iii) agreeing to any limitation on the conduct of Parent (including, after the Closing, the Surviving Corporation and the Company Subsidiaries); and
(iv) agreeing to take any other action as may be required by a Governmental Entity in order to effect each of the following: (1) obtaining all Required Statutory Approvals as soon as reasonably possible and in any event before the End DateDate (as it may be extended pursuant to Section 8.01(b)(i)), (2) avoiding the entry of, or having vacated, lifted, dissolved, reversed or overturned any Judgment Judgment, whether temporary, preliminary or permanent, that is in effect that prohibits, prevents or restricts the consummation of, or impedes, interferes with or materially delays delays, the Closing and (3) effecting the expiration or termination of any waiting period, which would otherwise have the effect of preventing, prohibiting or restricting consummation of the Closing or impeding, interfering with or materially delaying the Closing.;
(dii) Notwithstanding anything defending through litigation on the merits, any Claim asserted in any court or other proceeding by any Person, including any Governmental Entity, that seeks to or would reasonably be expected to prevent or prohibit or impede, interfere with or delay the contraryconsummation of the Closing, nothing such actions to include contesting and resisting any action or proceeding and to have vacated, lifted, reversed or overturned any decree, judgment, injunction or other order, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents or restricts consummation of the Merger; provided, however, that the obligations of Parent and the Company pursuant to this Section 6.03 (other than 6.03(c) will cease to apply in respect of Antitrust Laws of the first sentence United States in the event of Section 6.03(c)) shall the entry after customary court proceedings of any preliminary or permanent injunction in respect of the applicable Antitrust Law of the United States and such obligations will not require Parent to take, the bringing or agree to take, defending of any action (other than appeal with respect to any restrictions on information sharing or any other action which is not material to Parent or such Person) related to (x) any injunction in respect of its Affiliates, (y) any Sponsor or their respective direct or indirect portfolio companies owned, managed, advised or controlled by any Antitrust Laws of the Sponsors or United States; and further provided that the obligations of Parent and the Company pursuant to this Section 6.03(c) will cease to apply in respect of Antitrust Laws of any of their respective Affiliates or (z) country other than the United States at such time as any limited partner or other direct or indirect investors in any investment fund affiliated with, advised or managed by any Sponsor or any of their respective Affiliates, or any actions required of the respective Affiliates parties are no longer reasonably likely to lead to the satisfaction of the conditions precedent to Closing set forth in Sections 7.01(b) and 7.01(c) prior to the End Date, as it may be extended pursuant to Section 8.01(b)(i) ("ROW Conclusion").
(iii) to the extent necessary to obtain any such limited partners or investors; providedRequired Statutory Approval, furtheroffering, that the provisions of this Section 6.03 shall not be construed to (x) require Parent, Merger Sub or any Affiliate of Parent or (y) permit the Company without the prior written consent of Parent (which consent shall not to be unreasonably withheld, conditioned, or delayed), to undertake any efforts or take any action (including accepting any terms, conditions, liabilities, obligations, commitment, sanctions or other measures and proposing, negotiating, committing to and effecteffecting, by consent decree, hold separate order or otherwise, the sale, divestiture, licensing or disposition of any products, assets or lines of business, including any intellectual property rights, subject to the limitations set forth in Section 6.03(d), of the Company or the Company Subsidiaries, including entering into customary ancillary agreements relating to any such sale, divestiture, licensing or disposition; and
(iv) agreeing to any limitation on the conduct of Parent or its Affiliates (including, after the Closing, the Surviving Corporation and the Company Subsidiaries); provided, that neither Parent nor the Company nor any of their respective Affiliates shall be required to commit, agree or submit (or offer to commit, agree or submit) to any action, term or condition in connection with its obligations under clauses (iii) or (iv) of this Section 6.03(c) that is not conditioned upon consummation of the Merger.
(d) Notwithstanding anything to the contrary in this Agreement, the obligation of Parent (including Subsidiaries or Affiliates) to propose or accept any remedies or undertakings, or to take any action pursuant to Section 6.03(c) or any other provision of this Agreement shall be expressly limited as follows:
(i) Parent shall not be required to offer or accept remedies, divestitures or other dispositions with respect to (A) assets, products or lines of business of the Company or its Affiliates or (B) undertakings involving a limitation on the conduct of the Company, Parent or their respective Affiliates, which, taken in the aggregate across all jurisdictions in which a remedy is applied or has effect, would produce or represent in excess of $600 million in revenues (it being agreed that the calculation of revenues with respect to any asset, product, line of business, or limitation of conduct of the Company or its Affiliates governed by the foregoing clauses (A) and (B) is to be made on the basis of the revenues of the Company reflected in the audited Company consolidated accounts as of October 30, 2015 and, in the case of conduct restrictions on Parent or its Affiliates governed by the foregoing clause (B), on the basis of the revenues of the Guarantor reflected in the audited Guarantor consolidated accounts as of March 31, 2016.
(ii) Parent shall not be required to offer or agree to the sale, divestiture, hold separate, licensing or disposition of any assets or businesses of Parent or its Affiliates.
(iii) Parent shall not be required to offer or accept any remedies or divestitures consisting of or impeding the use of Intellectual Property in the SR Drive Technology ("SR Drive Rights") unless such remedies or divestitures permit Parent and its Affiliates to retain either ownership of, or an unrestricted, perpetual, worldwide, royalty-free license to, the SR Drive Rights to the extent of the SR Drive Rights owned by or licensed to the Company or their respective any of its Affiliates, prior to the Effective Time.
(e) if Notwithstanding anything to the taking of such efforts or action, individually or in the aggregate, has resulted or would reasonably be expected to result in a Burdensome Condition; provided, further, that notwithstanding anything contained contrary set forth in this Agreement Agreement, but without limiting any of Parent or Merger Sub's obligations hereunder, the Company may not, without the prior written consent of Parent, become subject to, consent to, or offer or agree to, or otherwise take any action with respect to, any requirement, condition, limitation, understanding, agreement or order to (i) sell, license, assign, transfer, divest, hold separate or otherwise dispose of any assets, business or portion of business of the contraryCompany, in no event shall the Surviving Corporation, Parent, Merger Sub or any Affiliate of Parent be required to pursue their respective Affiliates, (ii) conduct, restrict, operate, invest or defend any Claim against CFIUS in connection with otherwise change the transactions contemplated herebyassets, including business or portion of business of the Merger. Nothing in this Section 6.03 shall obligate Company, the Surviving Corporation, Parent, the Company Merger Sub or any of their respective Affiliates in any manner (subject to Section 5.01), or (iii) impose any restriction, requirement or limitation on the operation of the business or portion of the business of the Company, the Surviving Corporation, Parent, Merger Sub or any of their respective Affiliates; provided that, if requested by Parent, the Company will become subject to, consent to, or offer or agree to, or otherwise take any action that with respect to, any such requirement, condition, limitation, understanding, agreement or order so long as such requirement, condition, limitation, understanding, agreement or order is not conditioned only binding on the ClosingCompany in the event the Closing occurs.
(ef) Parent shall promptly notify the Company and the Company shall notify Parent of any notice or other communication from any Person alleging that such Person’s 's Consent is or may be required in connection with the Merger.
Appears in 1 contract
Samples: Merger Agreement (Joy Global Inc)
Further Actions; Regulatory Approvals; Required Actions. (a) Subject to the terms and conditions of this Agreement, each of the Parties shall, and shall use cause its reasonable best efforts to Affiliates (and, in the case of Parent, the Equity Investor and their Affiliates) to, take, or cause to be taken, all actions, and do, or cause to be done, and assist and cooperate with the other Parties in doing, doing all things necessary or advisable to cause the conditions to the Closing set forth in Article VII to be satisfied as promptly as reasonably practicable and to effect the Closing as promptly as reasonably practicable thereafterand in any event before the End Date, including (i) making all necessary Filings with Governmental Entities or third parties, (ii) obtaining the Required Consents and any all other third-party Consents that are necessary, proper or advisable necessary to consummate the Merger, (iii) obtaining the Required Statutory Approvals and all other Consents of Governmental Entities that are necessary, proper or advisable necessary to consummate the Merger and the other transactions contemplated hereby and (iv) executing and delivering any additional instruments that are necessary, proper or advisable necessary to consummate the Merger Merger. Parent shall be responsible for all fees, costs and expenses (except for the fees, costs and expenses of the Company’s advisors), including any filing fees, associated with any Filings or Consents contemplated by this Section 6.02. Notwithstanding the foregoing or any other provision of this Agreement, Parent will control (in a manner consistent with this Section 6.02) and lead all communications and strategy relating to obtaining the Required Statutory Approvals, and the other transactions contemplated herebyCompany will not, and will cause its representatives not to, (A) make any proposal to, or (except to the extent required by Law) any Filings with, Governmental Entities in respect of any matter related to the Required Statutory Approvals without the prior written consent of Parent or its counsel, given or withheld in Parent’s sole discretion or (B) otherwise contact Governmental Entities to communicate with them in respect of any matter related to the Required Statutory Approvals without the prior written consent of Parent or its counsel, given or withheld in Parent’s reasonable discretion; provided that Parent shall keep the Company reasonably informed on a current basis, consult with and consider in good faith the views and comments of the Company in connection with such communications and strategy.
(b) In connection with and without limiting the generality of Section 6.03(a) and subject to the obligations of Section 6.06,
(i) 6.02(a), each of Parent and the Company shall, and shall cause its respective Affiliates (and, in the case of Parent, the Equity Investor and their Affiliates) to:
(i) make or cause to be made, in consultation and cooperation with the other, at a mutually agreeable time as promptly as reasonably practicable after the date of this Agreement and in any event within ten (10) Business Days after the date of this Agreement, (1) an appropriate filing of a Notification and Report Form pursuant to the HSR Act relating to the Merger, (2) all other necessary Filings relating to the Merger with other Governmental Entities under any other Antitrust Law, and (3) all necessary filings with the U.S. Federal Communications Commission;
(ii) each of Parent and the Company shall use reasonable best efforts to obtain CFIUS Approval, which shall include (1) preparing and filing a declaration with CFIUS with respect to the transactions contemplated by this Agreement as promptly as practicable after the date of this Agreement and in any event within twenty (20) Business Days (unless otherwise agreed by the Parties) and (2), if applicable, as promptly as practicable, and in any event, within twenty (20) Business Days (unless otherwise agreed by the Parties) following receipt of written notification (including by email) from CFIUS that, based on its assessment of the declaration, CFIUS requests that the parties file a joint voluntary notice of the transactions contemplated by this Agreement, prefiling and filing a final joint voluntary notice with CFIUS with respect to the transactions contemplated by this Agreement, in each case pursuant to the DPA;
(iii) other than those filings referenced in Section 6.03(b)(i) and Section 6.03(b)(ii), the Company shall make or cause to be made, in consultation and cooperation with and upon consent of Parent, such consent not to be unreasonably withheld, conditioned, or delayed, as promptly as reasonably practicable after the date of this Agreement and in any event within seventy-five (75) days after the date of this Agreement, which may be extended by mutual agreement of the Parties (such consent not to be unreasonably withheld, conditioned or delayed), all necessary Filings with other Governmental Entities relating to the Merger, including any such Filings necessary to obtain any Required Statutory Approval;
(iviii) each of Parent and the Company shall furnish to the other all assistance, cooperation and information reasonably required for any such Filing made by such Party and in order to achieve the effects set forth in this Section 6.036.02;
(viv) unless prohibited by applicable Law or by a Governmental Entity, each of Parent and the Company shall give the other Parties reasonable prior notice of any such Filing and, to the extent reasonably practicable, of any written or oral substantive communication with any Governmental Entity relating to the Merger (including with respect to any of the actions referred to in this Section 6.03(b6.02(b)) and, to the extent reasonably practicable, permit the other to review and discuss in advance, and consider in good faith the views and comments of, and secure the participation of (including supplying appropriate witnesses to the extent necessary or advisable)of, the other in connection with any such Filing (except for HSR Act filings) or substantive communication;
(viv) each of Parent and the Company shall respond as promptly as reasonably practicable under the circumstances (and, with respect to CFIUS, in any event, no later than the applicable timeline requested by CFIUS pursuant to the DPA, including any extensions granted thereunder) to any inquiries directed to such Party requests received from any Governmental Entity or any other authority enforcing the DPA or applicable Antitrust Laws for additional information, documentation, certifications information or other materials documentary material in connection with the CFIUS Approval, antitrust, competition or similar matters (including a any “second requestSecond Request” under the HSR Act) and not agree to extend any waiting period under the HSR Act or enter into any agreement with any such Governmental Entity or other authorities not that, in either case, would reasonably be expected to consummate extend the Merger, except with Closing Date beyond the prior written consent of the other Parties, such consent not to be unreasonably withheld, conditioned, or delayed;End Date; and
(vii) each of Parent and the Company shall make an appropriate response to any requests made of such Party by any Governmental Entity in connection with any review or investigation of the transactions contemplated by this Agreement; and (viiivi) unless prohibited by applicable Law or a Governmental Entity, to the extent reasonably practicable, each of Parent and the Company shall (1A) not participate in or attend any meetingmeeting (whether in person, telephone call via telephone, or conference or engage in any substantive conversation otherwise) with any Governmental Entity (including any member or representative of any Governmental Entity’s staff) regarding specific approval in respect of the Merger without the other PartiesParty, (2B) give the other reasonable prior notice of and invitation to any such meeting, telephone call or conference or conversation (in each case, with full participation rights) and considering in good faith the views of keep the other Party in connection therewith, and, in the event one Party is prohibited by applicable Law apprised with respect to any meeting or by the applicable conversation with any Governmental Entity from participating in or attending any such meeting, telephone call or conference or engaging in any such conversation, keep such Party apprised (including by providing summaries, if applicable) with respect theretoof the Merger, (3C) cooperate in the filing of any substantive memoranda, white papers, filings, pleadings, correspondence, responses material correspondence or other material written communications explaining or defending or otherwise in connection with this Agreement or the Merger, articulating any regulatory or competitive argument or responding to requests or objections made by any Governmental Entity or any intervenor in any proceeding relating to a Required Approval and (4D) furnish the other Parties Party with copies (including any drafts submitted to a Governmental Entity) of all substantive material correspondence, Filings (except HSR Act filings) and substantive communications (and memoranda setting forth the substance thereof) between it and its Affiliates and their respective Representatives on the one hand, and any Governmental Entity or members of any Governmental Entity’s staff, on the other hand, with respect to this Agreement or the Merger; provided that the Parties or their respective counsel shall be permitted to designate information “for outside counsel only” and to redact any correspondence, Filing or communication as “outside counsel only” (1) to the extent such correspondence, Filing or communication contains commercially sensitive information, trade secrets, confidential information and the receiving outside counsel shall not provide these materials to the Party it represents; providedof third parties, furtherpersonal identifying information, any information required to be provided pursuant to this Section 6.03(b)(viii) may be redacted (A) to remove or references concerning the valuation of the Company, any Company Subsidiaries or the Merger, or (B) as necessary to comply with contractual arrangements, (C) as necessary to comply with applicable Law, (D2) to remove prevent the loss of any “personal identifier information” (as defined in the DPA), and (E) as necessary to address reasonable privilege attorney-client or confidentiality concerns. For the avoidance of doubt, this Section 6.03(b) shall not apply to Tax mattersother legal privilege.
(c) Parent shall not, and shall not knowingly cause its Affiliates (and the Equity Investor and its Affiliates) not to, (I) enter into and the Company shall not, and shall cause its Affiliates not to, take any transaction action, including acquiring, or agreeing to acquire acquire, any asset, property, business or Person (by way of merger, consolidation, share exchange, investment, other business combination, asset, stock or equity purchase, or otherwise) ), or (II) enter entering into any new commercial activities or businesses unrelated to the transactions contemplated by this Agreement in the State of Minnesota or the State of Wisconsin, in each case of clause (I) and clause (II)Contract, that would could reasonably be expected to materially increase the risk of (w) not adversely affect or delay obtaining any Required Approval, (x) not or making any Consent or Filing Filing, including any Required Statutory Approval, contemplated by this Section 6.03 or (y) materially delaying the receipt of any Required Approval 6.02 or the making of any making any Consent or Filing contemplated by this Section 6.03timely receipt thereof. In furtherance of and without limiting any of Parent’s covenants and agreements under this Section 6.03 and Section 6.066.02, Parent shall, and shall use cause its reasonable best efforts Affiliates to, take all actions necessary, proper or advisable to avoid or eliminate each and every impediment impediment, including any Judgment, that may be asserted by a Governmental Entity pursuant to any Antitrust Law with respect to the Merger or in connection with granting any Required Statutory Approval or other Consent of a Governmental Entity so as to enable the Closing to occur as soon as reasonably possiblepossible (and in each case, which such reasonable best efforts shall include sufficiently before the followingEnd Date in order to allow Closing by the End Date), and, in furtherance thereof, shall:
(i) in the case of any civil, criminal or administrative action, suit, litigation, arbitration, proceeding or investigation that is instituted (or threatened to be instituted) challenging the consummation of the Merger or any other transaction contemplated by this Agreement as violative of any Antitrust Law, take any and all steps not prohibited by applicable Law to avoid the entry of, or to have vacated, lifted, reversed or overturned any order that would restrain, prevent or delay the Closing on or before the End Date, including defending through litigation on the merits, including appeals, any Claim asserted in any court or other proceeding by any Person, including any Governmental Entity, with respect to the Merger or this Agreement that seeks to or could would reasonably be expected to prevent or prohibit or impede, interfere with or materially delay the consummation of the Closing, and shall have the right, but not the obligation, to appeal an adverse decision on the merits;
(ii) proposingpropose, negotiatingnegotiate, committing commit to and effectingeffect, by consent decree, hold separate order or otherwise, the sale, divestiture, licensing or disposition of any assets assets, properties or businesses of Parent or its Affiliates or the Company or the Company Subsidiaries, including by entering into customary ancillary agreements on commercially reasonable terms relating to any such sale, divestiture, licensing or dispositiondisposition in order to avoid the entry of, or to have vacated, lifted, reversed or overturned any decree, Judgment, injunction or other order, whether temporary, preliminary or permanent, that would prevent the consummation of the transactions contemplated hereby as soon as practicable (and in each case, sufficiently before the End Date in order to allow Closing by the End Date);
(iii) agreeing agree to any limitation on the conduct of Parent or its Affiliates (including, after the Closing, the Surviving Corporation and the Company Subsidiaries)) proposed by a Governmental Entity enforcing applicable Laws; and
(iv) agreeing agree to take any other action as may be required by a Governmental Entity in order to effect each of the following: (1A) obtaining all Required Statutory Approvals as soon as reasonably possible and in any event before the End Date; (B) avoiding the entry of, (2) or having vacated, lifted, dissolved, reversed or overturned any Judgment judgment, whether temporary, preliminary or permanent, that is in effect that prohibits, prevents or restricts the consummation of, or impedes, interferes with or materially delays delays, the Closing Closing; and (3C) effecting the expiration or termination of any waiting period, which would otherwise have the effect of preventing, prohibiting or restricting consummation of the Closing or impeding, interfering with or materially delaying the Closing. The Company shall provide such reasonable assistance as Parent may reasonably request in connection with Parent effectuating any of the transactions or restrictions contemplated by this Section 6.02(c), provided that such transactions or restrictions are subject to, conditioned upon and effective only after the Closing. Unless prohibited by applicable Law or by a Governmental Entity, Parent shall keep the Company reasonably informed on a current basis of, and shall permit the Company to review and discuss in advance, any plans, proposals, discussions, negotiations or other actions (including the agreement to or effectuation of any transactions or restrictions) contemplated by this Section 6.02(c), and Parent shall consider in good faith the views of the Company in connection therewith.
(d) Notwithstanding anything to the contrary, nothing in this Section 6.03 (other than the first sentence of Section 6.03(c)) shall require Parent to take, or agree to take, any action (other than with respect to any restrictions on information sharing or any other action which is not material to Parent or such Person) related to (x) any of its Affiliates, (y) any Sponsor or their respective direct or indirect portfolio companies owned, managed, advised or controlled by any of the Sponsors or any of their respective Affiliates or (z) any limited partner or other direct or indirect investors in any investment fund affiliated with, advised or managed by any Sponsor or any of their respective Affiliates, or any of the respective Affiliates of any such limited partners or investors; provided, further, that the provisions of this Section 6.03 shall not be construed to (x) require Parent, Merger Sub or any Affiliate of Parent or (y) permit the Company without the prior written consent of Parent (which consent shall not to be unreasonably withheld, conditioned, or delayed), to undertake any efforts or take any action (including accepting any terms, conditions, liabilities, obligations, commitment, sanctions or other measures and proposing, negotiating, committing to and effect, by consent decree, hold separate order or otherwise, the sale, divestiture, licensing or disposition of assets or businesses of Parent or the Company or their respective Affiliates) if the taking of such efforts or action, individually or in the aggregate, has resulted or would reasonably be expected to result in a Burdensome Condition; provided, further, that notwithstanding anything contained in this Agreement to the contrary, in no event shall Parent, Merger Sub or any Affiliate of Parent be required to pursue or defend any Claim against CFIUS in connection with the transactions contemplated hereby, including the Merger. Nothing in this Section 6.03 shall obligate the Parent, the Company or any of their respective Affiliates to take any action that is not conditioned on the Closing.
(e) Parent shall promptly notify the Company and the Company shall promptly notify Parent of any notice or other communication from any Person alleging that such Person’s Consent is or may be required in connection with the Merger.
Appears in 1 contract
Samples: Merger Agreement (W R Grace & Co)
Further Actions; Regulatory Approvals; Required Actions. (a) Subject to the terms and conditions of this Agreement, each of the Parties Party shall use its reasonable best efforts to take, or cause to be taken, all actions, and do, or cause to be done, and assist and cooperate with the other Parties in doing, all things necessary to cause the conditions to the Closing set forth in Article VII VI to be satisfied as promptly as reasonably practicable and to effect the Closing as promptly as reasonably practicable thereafterpracticable, including (i) making and cooperating with all necessary Filings with Governmental Entities or third partiesAuthorities, and (ii) obtaining the Required Consents and any third-party Consents that are necessary, proper or advisable to consummate the Merger, (iii) obtaining the Required Approvals and all other Consents of Governmental Entities that are necessary, proper or advisable to consummate the Merger and the other transactions contemplated hereby and (iv) executing and delivering any additional instruments that are necessary, proper or advisable necessary to consummate the Merger Merger. Each of the Company and the other transactions Parent shall be responsible for fifty percent (50%) of any filing fees associated with any Filings or Consents contemplated herebyby this Section 5.05.
(b) In connection with and without limiting the generality of Section 6.03(a) 5.05(a), each of Parent and subject to the obligations of Section 6.06,Company shall:
(i) promptly prepare and submit to the applicable government contracting officer with respect to a Company Government Contract listed on Schedule 5.05(b)(i), no later than fifteen (15) days after the date of this Agreement, a joint statement regarding the inapplicability of obtaining a novation with respect to such Company Government Contract pursuant to the Federal Acquisition Regulation (including 48 CFR § 42.1204) or other applicable Law;
(ii) in the event that an applicable government contracting officer advises either Parent or the Company that a novation is required of a Company Government Contract listed on Schedule 5.05(b)(i) under the Federal Acquisition Regulation or other applicable Law, jointly confer with the applicable government contracting officer regarding the parties’ belief that no novation is required. If the applicable government contracting officer nonetheless continues to advise that a novation is required for such a Company Government Contract, then each of Parent and the Company shall cooperate and use their commercially reasonable efforts to obtain approval of a novation agreement; provided, however, that nothing herein shall require the Company to pay any consideration, or agree to relinquish or modify any rights in exchange for obtaining any novation; provided, further that if Parent or the Company is advised by an applicable government contracting officer prior to the Closing that such novation must be obtained prior to the Closing, obtaining any such novation will be a condition to Parent’s closing obligations under Section 6.02 unless the applicable government contracting officer subsequently advises that no such novation is required to be obtained;
(iii) make or cause to be made, in consultation and cooperation with the other, at a mutually agreeable time after the date of this Agreement, (1) an appropriate filing of a Notification and Report Form pursuant to the HSR Act relating to the Merger, (2) all other necessary Filings relating to the Merger with other Governmental Entities under any other Antitrust Law, and (3) all necessary filings with the U.S. Federal Communications Commission;
(ii) each of Parent and the Company shall use reasonable best efforts to obtain CFIUS Approval, which shall include (1) preparing and filing a declaration with CFIUS with respect to the transactions contemplated by this Agreement as promptly as practicable after the date of this Agreement and in any event within twenty (20) Business Days (unless otherwise agreed by the Parties) and (2), if applicable, as promptly as practicable, and in any event, within twenty (20) Business Days (unless otherwise agreed by the Parties) following receipt of written notification (including by email) from CFIUS that, based on its assessment of the declaration, CFIUS requests that the parties file a joint voluntary notice of the transactions contemplated by this Agreement, prefiling and filing a final joint voluntary notice with CFIUS with respect to the transactions contemplated by this Agreement, in each case pursuant to the DPA;
(iii) all other than those filings referenced in Section 6.03(b)(i) and Section 6.03(b)(ii), the Company shall make or cause to be made, in consultation and cooperation with and upon consent of Parent, such consent not to be unreasonably withheld, conditioned, or delayed, as promptly as reasonably practicable after the date of this Agreement and in any event within seventy-five (75) days after the date of this Agreement, which may be extended by mutual agreement of the Parties (such consent not to be unreasonably withheld, conditioned or delayed), all necessary Filings with other Governmental Entities Authorities relating to the Merger, including any such Filings necessary to obtain any Required Approval;
(iv) each of Parent and the Company shall furnish to the other all assistance, cooperation and information reasonably required for any such Filing made by such Party and in order to achieve the effects set forth in this Section 6.035.05;
(v) unless prohibited by applicable Law or by a Governmental EntityAuthority, each of Parent and the Company shall give the other Parties reasonable prior notice of any such Filing and, to the extent reasonably practicable, of any written or oral communication with any Governmental Entity Authority relating to the Merger (including with respect to any of the actions referred to in this Section 6.03(b5.05(b)) and, to the extent reasonably practicable, permit the other to review and discuss in advance, and consider in good faith the views and comments of, and secure the participation of (including supplying appropriate witnesses to the extent necessary or advisable)of, the other in connection with any such Filing (except for HSR Act filings) or communication;
(vi) each of Parent and the Company shall respond as promptly as reasonably practicable under the circumstances (and, with respect to CFIUS, in any event, no later than the applicable timeline requested by CFIUS pursuant to the DPA, including any extensions granted thereunder) to any inquiries directed to such Party or requests received from any Governmental Entity Authority or any other authority enforcing the DPA or applicable Antitrust Laws for additional information, documentation, certifications information or other materials documentation in connection with the CFIUS Approval, antitrust, competition or similar matters (including a “second request” under the HSR Act) and not enter into (A) agree to extend any agreement with waiting period or agree to refile under any such Governmental Entity or other authorities not to consummate the Merger, Antitrust Laws (except with the prior written consent of the other Parties, such consent Party) or (B) enter into any agreement with any Governmental Authority agreeing not to be unreasonably withheld, conditioned, consummate the Merger or delayed;
(vii) each of Parent and the Company shall make an appropriate response to any requests made of such Party by any Governmental Entity in connection with any review or investigation of the other transactions contemplated by this AgreementAgreement (except with the prior written consent of the other Party); and and
(viiivii) unless prohibited by applicable Law or a Governmental EntityAuthority, to the extent reasonably practicable, each of Parent and the Company shall (1A) not participate in or attend any meeting, telephone call meeting or conference (whether in person, via telephone or engage otherwise) with any Governmental Authority in respect of the Merger without offering, in the case of the Company, Parent and Merger Sub, or, in the case of Parent or Merger Sub, the Company, the option to participate in or attend the meeting (to the extent permitted by such Governmental Authority), (B) keep, in the case of the Company, Parent and Merger Sub, or, in the case of Parent or Merger Sub, the Company, apprised with respect to any substantive meeting or conversation with any Governmental Entity (including any member or representative of any Governmental Entity’s staff) regarding specific approval Authority in respect of the Merger without the other PartiesMerger, (2) give the other reasonable prior notice of and invitation to any such meeting, telephone call or conference or conversation (in each case, with full participation rights) and considering in good faith the views of the other Party in connection therewith, and, in the event one Party is prohibited by applicable Law or by the applicable Governmental Entity from participating in or attending any such meeting, telephone call or conference or engaging in any such conversation, keep such Party apprised (including by providing summaries, if applicable) with respect thereto, (3C) cooperate in the filing of any substantive memoranda, white papers, filingsFilings, pleadings, correspondence, responses correspondence or other written communications explaining or defending or otherwise in connection with this Agreement or the Merger, articulating any regulatory or competitive argument or responding to requests or objections made by any Governmental Entity or any intervenor in any proceeding relating to a Required Approval Authority and (4D) furnish furnish, in the other Parties case of the Company, Parent and Merger Sub, or, in the case of Parent or Merger Sub, the Company, with copies (including any drafts submitted to a Governmental Entity) of all substantive correspondence, Filings (except HSR Act filings) and communications (and memoranda setting forth the substance thereof) between it and its Affiliates and their respective Representatives on the one hand, and any Governmental Entity Authority or members of any Governmental EntityAuthority’s staff, on the other hand, with respect to this Agreement or the Merger; provided provided, however, that the Parties shall be permitted to reasonably designate material provided to the other party as “Outside Counsel Only Material.” Such material or information shall be given only to the outside counsel or consultants of the recipient Party and will not be disclosed by such outside counsel or consultants to employees, officers or directors of the recipient Party without the advance written notice of the Party providing such materials. The Parties shall be permitted to reasonably redact any correspondence, Filing or communication as “outside counsel only” to the extent such correspondence, Filing or communication contains (i) commercially sensitive information and the receiving outside counsel shall not provide these materials to the Party it represents; providedinformation, further, any information required to be provided pursuant to this Section 6.03(b)(viii(ii) may be redacted (A) to remove references concerning the valuation of the CompanyCompany and the Merger, (Biii) as necessary references to comply with contractual arrangementspersonally sensitive information, or (Civ) as necessary legally privileged information, or to comply with applicable Law.
(viii) Without limiting the foregoing or any of the other provisions of this Section 5.05, (D) the Parties agree that it is Parent’s sole right to remove any “personal identifier information” (as defined in devise and control the DPA)strategy for filings, notifications, submissions, and (E) as necessary communications with or to address reasonable privilege or confidentiality concernsany Governmental Authority. For the avoidance of doubt, this Section 6.03(b5.05(b) shall not apply with respect to Tax matters.
(c) Parent shall not, and shall not knowingly cause its Affiliates Subsidiaries not to, (I) enter into take any transaction to acquire action, including acquiring any asset, property, business or Person (by way of merger, consolidation, share exchange, investment, other business combination, asset, stock or equity purchase, or otherwise) or (II) enter into any new commercial activities or businesses unrelated to the transactions contemplated by this Agreement in the State of Minnesota or the State of Wisconsin), in each case of clause (I) and clause (II)case, that would could reasonably be expected to materially increase the risk of (w) not adversely affect obtaining any Required Approval, (x) not or making any Consent or Filing contemplated by this Section 6.03 or (y) materially delaying the receipt of any Required Approval 5.05 or the making of any making any Consent or Filing contemplated by this Section 6.03timely receipt thereof. In furtherance of and without limiting any of Parent’s covenants and agreements under this Section 6.03 and Section 6.065.05, Parent shall use its take all reasonable best efforts actions necessary, proper or advisable to avoid or eliminate each and every impediment that may be asserted by a Governmental Entity Authority with respect to the Merger, including pursuant to any Antitrust Law, so as to enable the Closing to occur as soon as reasonably possiblepossible (and in each case, which such reasonable best efforts shall include sufficiently before the following:
End Date in order to allow Closing by the End Date), including (i) defending through litigation on the merits, any Claim asserted in any court or other proceeding by any Person, including any Governmental Entity, that seeks to or could prevent or prohibit or impede, interfere with or materially delay the consummation of the Closing, and shall have the right, but not the obligation, to appeal an adverse decision on the merits;
(ii) proposing, negotiating, committing to and effecting, by consent decree, hold separate order orders, or otherwise, the sale, divestiture, licensing divestiture or disposition of any assets such of its or the Company’s assets, properties or businesses or of Parent the assets, properties or businesses to be acquired by it pursuant hereto, and the Company or the Company Subsidiariesentrance into such other arrangements, including entering into customary ancillary agreements on commercially reasonable terms relating to any such sale, divestiture, licensing or disposition;
, in order to avoid the entry of, or to have vacated, lifted, reversed or overturned any decree, judgment, injunction or other order, whether temporary, preliminary or permanent, that would prevent the consummation of the transactions contemplated hereby as soon as practicable; (iiiii) agreeing to any limitation on the conduct of Parent or its Subsidiaries (including, after the Closing, the Surviving Corporation and the Company SubsidiariesCorporation); and
and (iviii) agreeing to take any other action or make any other commitment as may be required by a Governmental Entity Authority in order to effect each of the following: (1A) obtaining all Required Approvals as soon as reasonably possible and in any event before avoiding the End Dateentry of, (2) or having vacated, lifted, dissolved, reversed or overturned any Judgment Judgment, whether temporary, preliminary or permanent, that is in effect that prohibits, prevents or restricts the consummation of, or impedes, interferes with or materially delays delays, the Closing and on or before the End Date; (3B) effecting the expiration or termination of any waiting period, which would otherwise have the effect of preventing, prohibiting or restricting consummation of the Closing or impeding, interfering with or materially delaying the ClosingClosing (such actions in clauses (i) through (iii) “Antitrust Actions”); provided, however, that any such Antitrust Actions are conditioned upon the closing of the Merger and become effective only from and after the Effective Time. For the avoidance of doubt, Antitrust Actions does not include a requirement for Parent to, in case any civil, criminal or administrative action, suit, litigation, arbitration, proceeding is instituted (or threatened to be instituted) challenging the consummation of the Merger or any other transaction contemplated by this Agreement as violative of any Antitrust Law, take any action to avoid the entry of, or to have vacated, lifted, reversed or overturned any order that would restrain, prevent or delay the Closing on or before the End Date, including no requirement to defend through litigation on the merits.
(d) Notwithstanding anything to the contrary, nothing in this Section 6.03 (other than the first sentence of Section 6.03(c)) shall require Parent to take, or agree to take, any action (other than with respect to any restrictions on information sharing or any other action which is not material to Parent or such Person) related to (x) any of its Affiliates, (y) any Sponsor or their respective direct or indirect portfolio companies owned, managed, advised or controlled by any of the Sponsors or any of their respective Affiliates or (z) any limited partner or other direct or indirect investors in any investment fund affiliated with, advised or managed by any Sponsor or any of their respective Affiliates, or any of the respective Affiliates of any such limited partners or investors; provided, further, that the provisions of this Section 6.03 shall not be construed to (x) require Parent, and Merger Sub or any Affiliate of Parent or (y) permit the Company without the prior written consent of Parent (which consent shall not to be unreasonably withheld, conditioned, or delayed), to undertake any efforts or take any action (including accepting any terms, conditions, liabilities, obligations, commitment, sanctions or other measures and proposing, negotiating, committing to and effect, by consent decree, hold separate order or otherwise, the sale, divestiture, licensing or disposition of assets or businesses of Parent or the Company or their respective Affiliates) if the taking of such efforts or action, individually or in the aggregate, has resulted or would reasonably be expected to result in a Burdensome Condition; provided, further, that notwithstanding anything contained in this Agreement to the contrary, in no event shall Parent, Merger Sub or any Affiliate of Parent be required to pursue or defend any Claim against CFIUS in connection with the transactions contemplated hereby, including the Merger. Nothing in this Section 6.03 shall obligate the Parent, the Company or any of their respective Affiliates to take any action that is not conditioned on the Closing.
(e) Parent shall promptly notify the Company Company, and the Company shall promptly notify Parent Parent, of (i) any notice or other communication from any Person alleging that such Person’s Consent is or may be required in connection with the MergerMerger and (ii) any material written notice from any Governmental Authority in connection with the transactions contemplated by this Agreement.
Appears in 1 contract
Further Actions; Regulatory Approvals; Required Actions.
(a) Subject to the terms and conditions of this Agreement, each of the Parties shall use its respective reasonable best efforts to take, or cause to be taken, all actions, and do, or cause to be done, and assist and cooperate with the other Parties in doing, all things necessary to cause the conditions to the Closing set forth in Article VII to be satisfied as promptly as reasonably practicable and or to effect the Closing as promptly as reasonably practicable thereafterpracticable, including (i) making all necessary Filings with Governmental Entities or third parties, (ii) obtaining the Required Consents and any all other third-party Consents that are necessary, proper or advisable to consummate the Merger, (iii) obtaining the Required Statutory Approvals and all other Consents of Governmental Entities that are necessary, proper or advisable to consummate the Merger and the other transactions contemplated hereby and (iv) executing and delivering any additional instruments that are necessary, proper or advisable to consummate the Merger and the other transactions contemplated hereby.hereby.
(b) In connection with and without limiting the generality of Section 6.03(a) and subject to the obligations of Section 6.06,
(i) ), each of Parent and the Company shall shall:
(i) make or cause to be made, in consultation and cooperation with the other, at a mutually agreeable time after the date of this Agreement, (1) an appropriate filing of a Notification and Report Form pursuant to the HSR Act relating to the Merger, and (2) all other necessary Filings relating to the Merger with other Governmental Entities under any other Antitrust Law, and (3) all necessary filings with the U.S. Federal Communications Commission;
(ii) each of Parent and the Company shall use reasonable best efforts to obtain CFIUS Approval, which shall include (1) preparing and filing a declaration with CFIUS with respect to the transactions contemplated by this Agreement as promptly as practicable after the date of this Agreement and in any event within twenty (20) Business Days (unless otherwise agreed by the Parties) and (2), if applicable, as promptly as practicable, and in any event, within twenty (20) Business Days (unless otherwise agreed by the Parties) following receipt of written notification (including by email) from CFIUS that, based on its assessment of the declaration, CFIUS requests that the parties file a joint voluntary notice of the transactions contemplated by this Agreement, prefiling and filing a final joint voluntary notice with CFIUS with respect to the transactions contemplated by this Agreement, in each case pursuant to the DPA;
(iii) other than those filings referenced in Section 6.03(b)(i) and Section 6.03(b)(ii), the Company shall make or cause to be made, in consultation and cooperation with and upon consent of Parent, such consent not to be unreasonably withheld, conditioned, or delayed, as promptly as reasonably practicable after the date of this Agreement and in any event within seventy-five sixty (7560) days after the date of this Agreement, which may be extended by mutual agreement of the Parties (such consent not to be unreasonably withheld, conditioned or delayed)Parties, all necessary Filings with other Governmental Entities relating to the Merger, including any such Filings necessary to obtain any Required Statutory Approval;
(iviii) each of Parent and the Company shall furnish to the other all assistance, cooperation and information reasonably required for any such Filing made by such Party and in order to achieve the effects set forth in this Section 6.03;
(viv) unless prohibited by applicable Law or by a Governmental Entity, each of Parent and the Company shall give the other Parties reasonable prior notice of any such Filing and, to the extent reasonably practicable, of any written or oral communication with any Governmental Entity relating to the Merger (including with respect to any of the actions referred to in this Section 6.03(b)) and, to the extent reasonably practicable, permit the other to review and discuss in advance, and consider in good faith the views and comments of, and secure the participation of (including supplying appropriate witnesses to the extent necessary or advisable)of, the other in connection with any such Filing (except for HSR Act filings) or communication;
(viv) each of Parent and the Company shall respond as promptly as reasonably practicable under the circumstances (and, with respect to CFIUS, in any event, no later than the applicable timeline requested by CFIUS pursuant to the DPA, including any extensions granted thereunder) to any inquiries directed to such Party received from any Governmental Entity or any other authority enforcing the DPA or applicable Antitrust Laws for additional information, documentation, certifications information or other materials documentation in connection with the CFIUS Approval, antitrust, competition or similar matters (including a “second request” under the HSR Act) and not extend any waiting period under the HSR Act or enter into any agreement with any such Governmental Entity or other authorities not to consummate the Merger, except with the prior written consent of the other Parties, such consent not to be unreasonably withheld, conditioned, or delayedParty;
(viivi) each of Parent and the Company shall make an appropriate response to provide any requests made of such Party information requested by any Governmental Entity in connection with any review or investigation of the transactions contemplated by this Agreement; and and
(viiivii) unless prohibited by applicable Law or a Governmental Entity, to the extent reasonably practicable, each of Parent and the Company shall (1) not participate in or attend any meeting, telephone call or conference meeting or engage in any substantive conversation with any Governmental Entity (including any member or representative of any Governmental Entity’s staff) regarding specific approval in respect of the Merger without the other PartiesParty, (2) to the extent reasonably practicable, give the other reasonable prior notice of and invitation to any such meeting, telephone call or conference meeting or conversation (in each case, with full participation rights) and considering in good faith the views of the other Party in connection therewith, and, in the event one Party is prohibited by applicable Law or by the applicable Governmental Entity from participating in or attending any such meeting, telephone call or conference meeting or engaging in any such conversation, keep such Party apprised (including by providing summaries, if applicable) with respect thereto, (3) cooperate in the filing of any substantive memoranda, white papers, filings, pleadings, correspondence, responses or other written communications explaining or defending or otherwise in connection with this Agreement or the Merger, articulating any regulatory or competitive argument or responding to requests or objections made by any Governmental Entity or any intervenor in any proceeding relating to a Required Approval and (4) furnish the other Parties with copies (including any drafts submitted to a Governmental Entity) of all substantive correspondence, Filings (except HSR Act filings) and communications (and memoranda setting forth the substance thereof) between it and its Affiliates and their respective Representatives on the one hand, and any Governmental Entity or members of any Governmental Entity’s staff, on the other hand, with respect to this Agreement or the Merger; provided that the Parties shall be permitted to designate any correspondence, Filing or communication as “outside counsel only” to the extent such correspondence, Filing or communication contains commercially sensitive information and the receiving outside counsel shall not provide these materials to the Party it represents; provided, further, any information required to be provided pursuant to this Section 6.03(b)(viii) may be redacted (A) to remove references concerning the valuation of the Company, (B) as necessary to comply with contractual arrangements, (C) as necessary to comply with applicable Law, (D) to remove any “personal identifier information” (as defined in the DPA), and (E) as necessary to address reasonable privilege or confidentiality concerns. For the avoidance of doubt, this Section 6.03(b) shall not apply to Tax matters.
(c) Parent shall not, and shall not knowingly cause its Affiliates to, (I) enter into any transaction to acquire any asset, property, business or Person (by way of merger, consolidation, share exchange, investment, other business combination, asset, stock or equity purchase, or otherwise) or (II) enter into any new commercial activities or businesses unrelated to the transactions contemplated by this Agreement in the State of Minnesota or the State of Wisconsin, in each case of clause (I) and clause (II), that would reasonably be expected to materially increase the risk of (w) not obtaining any Required Approval, (x) not making any Consent or Filing contemplated by this Section 6.03 or (y) materially delaying the receipt of any Required Approval or the making of any making any Consent or Filing contemplated by this Section 6.03. In furtherance of and without limiting any of Parent’s covenants and agreements under this Section 6.03 and Section 6.06, Parent shall use its reasonable best efforts to avoid or eliminate each and every impediment that may be asserted by a Governmental Entity so as to enable the Closing to occur as soon as reasonably possible, which such reasonable best efforts shall include the following:
(i) defending through litigation on the merits, any Claim asserted in any court or other proceeding by any Person, including any Governmental Entity, that seeks to or could prevent or prohibit or impede, interfere with or materially delay the consummation of the Closing, and shall have the right, but not the obligation, to appeal an adverse decision on the merits;
(ii) proposing, negotiating, committing to and effecting, by consent decree, hold separate order or otherwise, the sale, divestiture, licensing or disposition of any assets or businesses of Parent or the Company or the Company Subsidiaries, including entering into customary ancillary agreements on commercially reasonable terms relating to any such sale, divestiture, licensing or disposition;
(iii) agreeing to any limitation on the conduct of Parent (including, after the Closing, the Surviving Corporation and the Company Subsidiaries); and
(iv) agreeing to take any other action as may be required by a Governmental Entity in order to effect each of the following: (1) obtaining all Required Approvals as soon as reasonably possible and in any event before the End Date, (2) having vacated, lifted, dissolved, reversed or overturned any Judgment that is in effect that prohibits, prevents or restricts the consummation of, or impedes, interferes with or materially delays the Closing and (3) effecting the expiration or termination of any waiting period, which would otherwise have the effect of preventing, prohibiting or restricting consummation of the Closing or impeding, interfering with or materially delaying the Closing.
(d) Notwithstanding anything to the contrary, nothing in this Section 6.03 (other than the first sentence of Section 6.03(c)) shall require Parent to take, or agree to take, any action (other than with respect to any restrictions on information sharing or any other action which is not material to Parent or such Person) related to (x) any of its Affiliates, (y) any Sponsor or their respective direct or indirect portfolio companies owned, managed, advised or controlled by any of the Sponsors or any of their respective Affiliates or (z) any limited partner or other direct or indirect investors in any investment fund affiliated with, advised or managed by any Sponsor or any of their respective Affiliates, or any of the respective Affiliates of any such limited partners or investors; provided, further, that the provisions of this Section 6.03 shall not be construed to (x) require Parent, Merger Sub or any Affiliate of Parent or (y) permit the Company without the prior written consent of Parent (which consent shall not to be unreasonably withheld, conditioned, or delayed), to undertake any efforts or take any action (including accepting any terms, conditions, liabilities, obligations, commitment, sanctions or other measures and proposing, negotiating, committing to and effect, by consent decree, hold separate order or otherwise, the sale, divestiture, licensing or disposition of assets or businesses of Parent or the Company or their respective Affiliates) if the taking of such efforts or action, individually or in the aggregate, has resulted or would reasonably be expected to result in a Burdensome Condition; provided, further, that notwithstanding anything contained in this Agreement to the contrary, in no event shall Parent, Merger Sub or any Affiliate of Parent be required to pursue or defend any Claim against CFIUS in connection with the transactions contemplated hereby, including the Merger. Nothing in this Section 6.03 shall obligate the Parent, the Company or any of their respective Affiliates to take any action that is not conditioned on the Closing.
(e) Parent shall promptly notify the Company and the Company shall notify Parent of any notice or other communication from any Person alleging that such Person’s Consent is or may be required in connection with the Merger.,
Appears in 1 contract
Samples: Merger Agreement
Further Actions; Regulatory Approvals; Required Actions. (a) Subject to the terms and conditions of this Agreement, each of the Parties Party shall use its reasonable best efforts to take, or cause to be taken, all actions, and do, or cause to be done, and assist and cooperate with the other Parties in doing, all things necessary to cause the conditions to the Closing set forth in Article VII VI to be satisfied as promptly as reasonably practicable and to effect the Closing as promptly as reasonably practicable thereafterpracticable, including (i) making and cooperating with all necessary Filings with Governmental Entities or third partiesAuthorities, (ii) requesting early termination of the waiting period under the HSR Act applicable to the Merger and obtaining the Required Consents and any third-party Consents that are necessaryHSR Clearance, proper or advisable to consummate the MergerAntitrust Clearances, (iii) obtaining the Required Approvals French Foreign Investment Clearance and all other Consents of Governmental Entities Authorities that are necessary, proper or advisable necessary to consummate the Merger and the other transactions contemplated hereby as promptly as reasonably practicable and (iviii) executing and delivering any additional instruments that are necessary, proper or advisable necessary to consummate the Merger and the other transactions Merger. Parent shall be responsible for one hundred percent (100%) of any filing fees associated with any Filings or Consents contemplated herebyby this Section 5.05.
(b) In connection with and without limiting the generality of Section 6.03(a) and subject to the obligations of Section 6.06,
(i) 5.05(a), each of Parent and the Company shall shall:
(i) file or cause to be filed with the U.S. Department of Justice and the Federal Trade Commission, in consultation and cooperation with the other, as promptly as practicable after the date of this Agreement and, in any event, no later than ten (10) Business 829649.04-LACSR01A - MSW Days after the date of this Agreement, an appropriate Notification and Report Form pursuant to the HSR Act relating to the Merger;
(ii) make or cause to be made, in consultation and cooperation with the other, at a mutually agreeable time after the date of this Agreement, (1) an appropriate filing of a Notification and Report Form pursuant to the HSR Act relating to the Merger, (2) all other necessary Filings relating to the Merger with other Governmental Entities under any other Antitrust Law, and (3) all necessary filings with the U.S. Federal Communications Commission;
(ii) each of Parent and the Company shall use reasonable best efforts to obtain CFIUS Approval, which shall include (1) preparing and filing a declaration with CFIUS with respect to the transactions contemplated by this Agreement as promptly as practicable after the date of this Agreement and in any event within twenty (20) Business Days (unless otherwise agreed by the Parties) and (2), if applicable, as promptly as practicable, and in any event, within twenty (20) Business Days (unless otherwise agreed by the Parties) following receipt of written notification (including by email) from CFIUS that, based on its assessment of the declaration, CFIUS requests that the parties file a joint voluntary notice of the transactions contemplated by this Agreement, prefiling and filing a final joint voluntary notice with CFIUS all other necessary, proper or advisable Filings under any Antitrust Law, including, with respect to Parent, the transactions contemplated Filing required to be made by this Agreement, in each case pursuant to it with the DPAFrench Ministre de l’Economie under the French Foreign Investment Laws;
(iii) other than those filings referenced in Section 6.03(b)(i) and Section 6.03(b)(ii), the Company shall make or cause to be made, in consultation and cooperation with and upon consent of Parent, such consent not to be unreasonably withheld, conditioned, or delayedthe other, as promptly as reasonably practicable after the date of this Agreement and in any event within seventy-five (75) days after the date of this Agreement, which may be extended by mutual agreement of the Parties (such consent not to be unreasonably withheld, conditioned or delayed), all other necessary Filings with other Governmental Entities Authorities relating to the Merger, including any such Filings necessary to obtain any Required Approval;
(iv) each of Parent and the Company shall furnish to the other all assistance, cooperation and information reasonably required for any such Filing made by such Party and in order to achieve the effects set forth in this Section 6.035.05;
(v) unless prohibited by applicable Law or by a Governmental EntityAuthority, each of Parent and the Company shall give the other Parties reasonable prior notice of any such Filing and, to the extent reasonably practicable, of any written or oral communication with any Governmental Entity Authority relating to the Merger (including with respect to any of the actions referred to in this Section 6.03(b5.05(b)) and, to the extent reasonably practicable, permit the other to review and discuss in advance, and consider in good faith the views and comments of, and secure the participation of (including supplying appropriate witnesses to the extent necessary or advisable)of, the other in connection with any such Filing (except for HSR Act filings) or communication;
(vi) each of Parent and the Company shall respond as promptly as reasonably practicable under the circumstances (and, with respect to CFIUS, in any event, no later than the applicable timeline requested by CFIUS pursuant to the DPA, including any extensions granted thereunder) to any inquiries directed to such Party or requests received from any Governmental Entity Authority or any other authority enforcing the DPA or applicable Antitrust Laws for additional information, documentation, certifications information or other materials documentation in connection with the CFIUS Approval, antitrust, competition or similar matters (including a “second request” under the HSR Act) and not enter into (A) agree to extend any agreement with waiting period or agree to refile under any such Governmental Entity or other authorities not to consummate the Merger, Antitrust Laws (except with the prior written consent of the other Parties, such consent Party) or (B) enter into any agreement with any Governmental Authority agreeing not to be unreasonably withheld, conditioned, consummate the Merger or delayed;
(vii) each of Parent and the Company shall make an appropriate response to any requests made of such Party by any Governmental Entity in connection with any review or investigation of the other transactions contemplated by this AgreementAgreement (except with the prior written consent of the other Party); and and
(viiivii) unless prohibited by applicable Law or a Governmental EntityAuthority, to the extent reasonably practicable, each of Parent and the Company shall (1A) not participate in or attend any meeting, telephone call meeting or conference (whether in person, via telephone or engage otherwise) with any Governmental Authority in respect of the Merger without offering, in the case of the Company, Parent and Merger Sub, or, in the case of Parent or Merger Sub, the Company, the option to participate in or attend the meeting (to the extent permitted by such Governmental Authority), (B) keep, in the case of the Company, Parent and Merger Sub, or, in the case of Parent or Merger Sub, the Company, apprised with respect to any substantive meeting or conversation with any Governmental Entity (including any member or representative of any Governmental Entity’s staff) regarding specific approval Authority in respect of the Merger without the other PartiesMerger, (2) give the other reasonable prior notice of and invitation to any such meeting, telephone call or conference or conversation (in each case, with full participation rights) and considering in good faith the views of the other Party in connection therewith, and, in the event one Party is prohibited by applicable Law or by the applicable Governmental Entity from participating in or attending any such meeting, telephone call or conference or engaging in any such conversation, keep such Party apprised (including by providing summaries, if applicable) with respect thereto, (3C) cooperate in the filing of any substantive memoranda, white papers, filingsFilings, pleadings, correspondence, responses correspondence or other written communications explaining or defending or otherwise in connection with this Agreement or the Merger, articulating any regulatory or competitive argument or responding to requests or objections made by any Governmental Entity or any intervenor in any proceeding relating to a Required Approval Authority and (4) furnish the other Parties with copies (including any drafts submitted to a Governmental Entity) of all substantive correspondence, Filings (except HSR Act filings) and communications (and memoranda setting forth the substance thereof) between it and its Affiliates and their respective Representatives on the one hand, and any Governmental Entity or members of any Governmental Entity’s staff, on the other hand, with respect to this Agreement or the Merger; provided that the Parties shall be permitted to designate any correspondence, Filing or communication as “outside counsel only” to the extent such correspondence, Filing or communication contains commercially sensitive information and the receiving outside counsel shall not provide these materials to the Party it represents; provided, further, any information required to be provided pursuant to this Section 6.03(b)(viii) may be redacted (A) to remove references concerning the valuation of the Company, (B) as necessary to comply with contractual arrangements, (C) as necessary to comply with applicable Law, (D) to remove any “personal identifier information” (as defined in the DPA), and (E) as necessary to address reasonable privilege or confidentiality concerns. For the avoidance of doubt, this Section 6.03(b) shall not apply to Tax matters.
(c) Parent shall not, and shall not knowingly cause its Affiliates to, (I) enter into any transaction to acquire any asset, property, business or Person (by way of merger, consolidation, share exchange, investment, other business combination, asset, stock or equity purchase, or otherwise) or (II) enter into any new commercial activities or businesses unrelated to the transactions contemplated by this Agreement in the State of Minnesota or the State of Wisconsin, in each case of clause (I) and clause (II), that would reasonably be expected to materially increase the risk of (w) not obtaining any Required Approval, (x) not making any Consent or Filing contemplated by this Section 6.03 or (y) materially delaying the receipt of any Required Approval or the making of any making any Consent or Filing contemplated by this Section 6.03. In furtherance of and without limiting any of Parent’s covenants and agreements under this Section 6.03 and Section 6.06, Parent shall use its reasonable best efforts to avoid or eliminate each and every impediment that may be asserted by a Governmental Entity so as to enable the Closing to occur as soon as reasonably possible, which such reasonable best efforts shall include the following:
(i) defending through litigation on the merits, any Claim asserted in any court or other proceeding by any Person, including any Governmental Entity, that seeks to or could prevent or prohibit or impede, interfere with or materially delay the consummation of the Closing, and shall have the right, but not the obligation, to appeal an adverse decision on the merits;
(ii) proposing, negotiating, committing to and effecting, by consent decree, hold separate order or otherwise, the sale, divestiture, licensing or disposition of any assets or businesses of Parent or the Company or the Company Subsidiaries, including entering into customary ancillary agreements on commercially reasonable terms relating to any such sale, divestiture, licensing or disposition;
(iii) agreeing to any limitation on the conduct of Parent (including, after the Closing, the Surviving Corporation and the Company Subsidiaries); and
(iv) agreeing to take any other action as may be required by a Governmental Entity in order to effect each of the following: (1) obtaining all Required Approvals as soon as reasonably possible and in any event before the End Date, (2) having vacated, lifted, dissolved, reversed or overturned any Judgment that is in effect that prohibits, prevents or restricts the consummation of, or impedes, interferes with or materially delays the Closing and (3) effecting the expiration or termination of any waiting period, which would otherwise have the effect of preventing, prohibiting or restricting consummation of the Closing or impeding, interfering with or materially delaying the Closing.
(d) Notwithstanding anything to the contrary, nothing in this Section 6.03 (other than the first sentence of Section 6.03(c)) shall require Parent to take, or agree to take, any action (other than with respect to any restrictions on information sharing or any other action which is not material to Parent or such Person) related to (x) any of its Affiliates, (y) any Sponsor or their respective direct or indirect portfolio companies owned, managed, advised or controlled by any of the Sponsors or any of their respective Affiliates or (z) any limited partner or other direct or indirect investors in any investment fund affiliated with, advised or managed by any Sponsor or any of their respective Affiliates, or any of the respective Affiliates of any such limited partners or investors; provided, further, that the provisions of this Section 6.03 shall not be construed to (x) require Parent, Merger Sub or any Affiliate of Parent or (y) permit the Company without the prior written consent of Parent (which consent shall not to be unreasonably withheld, conditioned, or delayed), to undertake any efforts or take any action (including accepting any terms, conditions, liabilities, obligations, commitment, sanctions or other measures and proposing, negotiating, committing to and effect, by consent decree, hold separate order or otherwise, the sale, divestiture, licensing or disposition of assets or businesses of Parent or the Company or their respective Affiliates) if the taking of such efforts or action, individually or in the aggregate, has resulted or would reasonably be expected to result in a Burdensome Condition; provided, further, that notwithstanding anything contained in this Agreement to the contrary, in no event shall Parent, Merger Sub or any Affiliate of Parent be required to pursue or defend any Claim against CFIUS in connection with the transactions contemplated hereby, including the Merger. Nothing in this Section 6.03 shall obligate the Parent, the Company or any of their respective Affiliates to take any action that is not conditioned on the Closing.
(e) Parent shall promptly notify the Company and the Company shall notify Parent of any notice or other communication from any Person alleging that such Person’s Consent is or may be required in connection with the Merger.829649.04-LACSR01A - MSW
Appears in 1 contract
Further Actions; Regulatory Approvals; Required Actions. (a) Subject to the terms and conditions of this Agreement, each of the Parties Party shall use its reasonable best efforts to take, or cause to be taken, all actions, and do, or cause to be done, and assist and cooperate with the other Parties in doing, all things necessary to cause the conditions to the Closing set forth in Article VII VI to be satisfied as promptly as reasonably practicable and to effect the Closing as promptly as reasonably practicable thereafterpracticable, including (i) making all necessary Filings with Governmental Entities Authorities or third parties, Third Parties and (ii) requesting early termination of the waiting period under the HSR Act applicable to the transactions contemplated by this Agreement and obtaining the Required Consents and any third-party Consents that are necessary, proper or advisable to consummate the Merger, (iii) obtaining the Required Approvals HSR Clearance and all other Consents of Governmental Entities Authorities that are necessary, proper or advisable necessary to consummate the Merger and the other transactions contemplated hereby by this Agreement as promptly as reasonably practicable. The Purchaser Group shall be responsible for 100% of the fees, costs and expenses (iv) executing except for the fees, costs and delivering expenses of the Seller’s advisors), including any additional instruments that are necessaryfiling fees, proper associated with any Filings or advisable to consummate the Merger and the other transactions Consents contemplated herebyby this Section 5.05.
(b) In connection with and without limiting the generality of Section 6.03(a) and subject to the obligations of Section 6.06,5.05(a), each Party shall:
(i) each file or cause to be filed with the Department of Parent Justice and the Company shall Federal Trade Commission, in consultation and cooperation with the other, as promptly as practicable after the date of this Agreement and, in any event, no later than ten (10) days after the date of this Agreement, an appropriate Notification and Report Form pursuant to the HSR Act relating to the transactions contemplated by this Agreement;
(ii) make or cause to be made, in consultation and cooperation with the other, at a mutually agreeable time after the date of this Agreement, (1) an appropriate filing of a Notification and Report Form pursuant to the HSR Act relating to the Merger, (2) all other necessary Filings relating to the Merger with other Governmental Entities under any other Antitrust Law, and (3) all necessary filings with the U.S. Federal Communications Commission;
(ii) each of Parent and the Company shall use reasonable best efforts to obtain CFIUS Approval, which shall include (1) preparing and filing a declaration with CFIUS with respect to the transactions contemplated by this Agreement as promptly as practicable after the date of this Agreement and in any event within twenty (20) Business Days (unless otherwise agreed by the Parties) and (2), if applicable, as promptly as practicable, and in any event, within twenty (20) Business Days (unless otherwise agreed by the Parties) following receipt of written notification (including by email) from CFIUS that, based on its assessment of the declaration, CFIUS requests that the parties file a joint voluntary notice of the transactions contemplated by this Agreement, prefiling and filing a final joint voluntary notice with CFIUS all other necessary, proper or advisable Filings under any Antitrust Law with respect to the transactions contemplated by this Agreement, in each case pursuant to the DPA;
(iii) other than those filings referenced in Section 6.03(b)(i) and Section 6.03(b)(ii), the Company shall make or cause to be made, in consultation and cooperation with and upon consent of Parent, such consent not to be unreasonably withheld, conditioned, or delayed, as promptly as reasonably practicable after the date of this Agreement and in any event within seventy-five (75) days after the date of this Agreement, which may be extended by mutual agreement of the Parties (such consent not to be unreasonably withheld, conditioned or delayed), all other necessary Filings with other Governmental Entities Authorities relating to the Merger, including any such Filings necessary to obtain any Required Approvaltransactions contemplated by this Agreement;
(iv) each of Parent and the Company shall furnish to the other all assistance, cooperation and information reasonably required for any such Filing made by such Party and in order to achieve the effects set forth in this Section 6.035.05;
(v) unless prohibited by applicable Law or by a Governmental EntityAuthority, each of Parent and the Company shall give the other Parties reasonable prior notice of any such Filing and, to the extent reasonably practicable, of any written or oral communication with any Governmental Entity Authority relating to the Merger transactions contemplated by this Agreement (including with respect to any of the actions referred to in this Section 6.03(b5.05(b)) and, to the extent reasonably practicable, permit the other to review and discuss in advance, and consider in good faith the views and comments of, and secure the participation of (including supplying appropriate witnesses to the extent necessary or advisable)of, the other in connection with any such Filing (except for HSR Act filings) or communication;
(vi) each of Parent and the Company shall respond as promptly as reasonably practicable under the circumstances (and, with respect to CFIUS, in any event, no later than the applicable timeline requested by CFIUS pursuant to the DPA, including any extensions granted thereunder) to any inquiries directed to such Party received from any Governmental Entity Authority or any other authority enforcing the DPA or applicable Antitrust Laws for additional information, documentation, certifications information or other materials documentation in connection with the CFIUS Approval, antitrust, competition or similar matters (including a “second request” under the HSR Act) and not extend any waiting period under the HSR Act or enter into any agreement with any such Governmental Entity Authority or other authorities not to consummate the Mergertransactions contemplated by this Agreement, except with the prior written consent of the other Parties, such consent not to be unreasonably withheld, conditioned, or delayed;Party; and
(vii) each of Parent and the Company shall make an appropriate response to any requests made of such Party by any Governmental Entity in connection with any review or investigation of the transactions contemplated by this Agreement; and (viii) unless prohibited by applicable Law or a Governmental EntityAuthority, to the extent reasonably practicable, each of Parent and the Company shall (1) not participate in or attend any meetingmeeting (whether in person or via telephone) with any Governmental Authority in respect of the transactions contemplated by this Agreement without the other Party, telephone call (2) keep the other Party apprised with respect to any meeting or conference or engage in any substantive conversation with any Governmental Entity (including any member or representative of any Governmental Entity’s staff) regarding specific approval Authority in respect of the Merger without the other Parties, (2) give the other reasonable prior notice of and invitation to any such meeting, telephone call or conference or conversation (in each case, with full participation rights) and considering in good faith the views of the other Party in connection therewith, and, in the event one Party is prohibited transactions contemplated by applicable Law or by the applicable Governmental Entity from participating in or attending any such meeting, telephone call or conference or engaging in any such conversation, keep such Party apprised (including by providing summaries, if applicable) with respect theretothis Agreement, (3) cooperate in the filing of any substantive memoranda, white papers, filings, pleadings, correspondence, responses correspondence or other written communications explaining or defending or otherwise in connection with this Agreement or the Mergertransactions contemplated by this Agreement, articulating any regulatory or competitive argument or responding to requests or objections made by any Governmental Entity or any intervenor in any proceeding relating to a Required Approval Authority and (4) furnish the other Parties Party with copies (including any drafts submitted to a Governmental Entity) of all substantive correspondence, Filings (except HSR Act filings) and communications (and memoranda setting forth the substance thereof) between it and its Affiliates and their respective Representatives Representatives, on the one hand, and any Governmental Entity Authority or members of any Governmental EntityAuthority’s staff, on the other hand, with respect to this Agreement or Agreement, the Mergertransactions contemplated by this Agreement; provided provided, however, that the Parties shall be permitted to designate redact any correspondence, Filing or communication as “outside counsel only” to the extent such correspondence, Filing or communication contains commercially sensitive information and the receiving outside counsel shall not provide these materials to the Party it represents; provided, further, any information required to be provided pursuant to this Section 6.03(b)(viii) may be redacted (A) to remove references concerning the valuation of the Company, (B) as necessary to comply with contractual arrangements, (C) as necessary to comply with applicable Law, (D) to remove any “personal identifier information” (as defined in the DPA), and (E) as necessary to address reasonable privilege or confidentiality concerns. For the avoidance of doubt, this Section 6.03(b5.05(b) and Section 5.05(d) shall not apply with respect to Tax matters.
(c) Parent The Purchaser Group shall not, and shall not knowingly cause its Affiliates not to, (I) enter into take any transaction to acquire action, including acquiring any asset, property, business or Person (by way of merger, consolidation, share exchange, investment, other business combination, asset, stock or equity purchase, or otherwise) or (II) enter into any new commercial activities or businesses unrelated to the transactions contemplated by this Agreement in the State of Minnesota or the State of Wisconsin, in each case of clause (I) and clause (II), that would could reasonably be expected to materially increase the risk of (w) not adversely affect obtaining any Required Approval, (x) not or making any Consent or Filing contemplated by this Section 6.03 or (y) materially delaying the receipt of any Required Approval 5.05 or the making of any making any Consent or Filing contemplated by this Section 6.03timely receipt thereof. In furtherance of and without limiting any of Parentthe Purchaser Group’s covenants and agreements under this Section 6.03 and Section 6.065.05, Parent the Purchaser Group shall use its reasonable best efforts take all actions necessary, proper or advisable to avoid or eliminate each and every impediment that may be asserted by a Governmental Entity Authority with respect to the transactions contemplated by this Agreement, including pursuant to any Antitrust Law, so as to enable the Closing to occur as soon as reasonably possible, which such reasonable best efforts actions shall include the following:
(i) defending through litigation on the merits, including appeals, any Claim asserted in any court or other proceeding by any Person, including any Governmental EntityAuthority, that seeks to or could prevent or prohibit or impede, interfere with or materially delay the consummation of the Closing, and shall have the right, but not the obligation, to appeal an adverse decision on the merits;
(ii) proposing, negotiating, committing to and effecting, by consent decree, hold separate order or otherwise, the sale, divestiture, licensing or disposition of any assets or businesses of Parent the Purchaser Group or its Affiliates or the Company or the Company SubsidiariesEducation Entities, including entering into customary ancillary agreements on commercially reasonable terms relating to any such sale, divestiture, licensing or disposition;
(iii) agreeing to any limitation on the conduct of Parent the Purchaser Group or its Affiliates (including, after the Closing, the Surviving Corporation and the Company SubsidiariesEducation Entities); and
(iv) agreeing to take any other action as may be required by a Governmental Entity Authority in order to effect each of the following: (1) obtaining all Required Approvals as soon as reasonably possible the HSR Clearance and in any event before other Consent of a Governmental Authority under any Antitrust Law that is necessary, appropriate or advisable to consummate the End Datetransactions contemplated by this Agreement, (2) avoiding the entry of, or having vacated, lifted, dissolved, reversed or overturned any Judgment Judgment, whether temporary, preliminary or permanent, that is in effect that prohibits, prevents or restricts the consummation of, or impedes, interferes with or materially delays delays, the Closing and (3) effecting the expiration or termination of any waiting period, which would otherwise have the effect of preventing, prohibiting or restricting consummation of the Closing or impeding, interfering with or materially delaying the Closing.
(d) Notwithstanding anything The Parties shall (i) promptly notify the other prior to the contrarymaking or commencement of any request, nothing in this Section 6.03 (other than the first sentence of Section 6.03(c)) shall require Parent to takeinquiry, investigation, action or agree to take, legal proceeding by or before any action (other than Governmental Authority with respect to any restrictions on information sharing or any other action which is not material to Parent or such Person) related to (x) any of its Affiliatesthe transactions contemplated by this Agreement, (yii) any Sponsor or their respective direct or indirect portfolio companies owned, managed, advised or controlled by any of keep the Sponsors or any of their respective Affiliates or (z) any limited partner or other direct or indirect investors in any investment fund affiliated with, advised or managed by any Sponsor or any of their respective Affiliates, or any of Parties informed as to the respective Affiliates status of any such limited partners request, inquiry, investigation, action or investors; provided, further, that legal proceeding and (iii) promptly inform the provisions other Parties of this Section 6.03 shall not be construed any communication to (x) require Parent, Merger Sub or from any Affiliate of Parent or (y) permit the Company without the prior written consent of Parent (which consent shall not to be unreasonably withheld, conditioned, or delayed), to undertake any efforts or take any action (including accepting any terms, conditions, liabilities, obligations, commitment, sanctions or other measures and proposing, negotiating, committing to and effect, by consent decree, hold separate order or otherwise, the sale, divestiture, licensing or disposition of assets or businesses of Parent or the Company or their respective Affiliates) if the taking of such efforts or action, individually or in the aggregate, has resulted or would reasonably be expected to result in a Burdensome Condition; provided, further, that notwithstanding anything contained in this Agreement to the contrary, in no event shall Parent, Merger Sub or any Affiliate of Parent be required to pursue or defend any Claim against CFIUS in connection with Governmental Authority regarding the transactions contemplated herebyby this Agreement, including the Merger. Nothing in this Section 6.03 shall obligate the Parent, the Company or any of their respective Affiliates to take any action that is not conditioned on the Closing.
and (eiv) Parent shall promptly notify the Company and the Company shall notify Parent other of any notice or other communication from any Person alleging that such Person’s Consent is or may be required in connection with the Mergertransactions contemplated by this Agreement.
(e) Prior to the Closing, the Seller shall use its commercially reasonable efforts to obtain the written Consent of any Third Party (other than a Governmental Authority) that is disclosed in Section 3.05(a)(ii) of the Seller Disclosure Letter and that is necessary, proper or advisable to consummate the transactions contemplated by this Agreement; provided, however, that (i) the Seller shall not be required to expend material amounts of money, commence any litigation or offer or grant any accommodation (financial or otherwise) to any such Third Party or any other Person and (ii) the Seller shall not have any obligation under this Section 5.05(e) with respect to any Inactive Contract. The Purchaser Group shall use its commercially reasonable efforts to assist the Seller in obtaining each such Consent. Notwithstanding the foregoing, the receipt of any such Consent shall not be a condition to any Party’s obligation to effect the Closing.
Appears in 1 contract
Samples: Stock and Asset Purchase Agreement (Advisory Board Co)
Further Actions; Regulatory Approvals; Required Actions. (a) Subject to the terms and conditions of this Agreement, each of the Parties shall use its reasonable best efforts to take, or cause to be taken, all actions, and do, or cause to be done, and assist and cooperate with the other Parties in doing, all things necessary to cause the conditions to the Closing set forth in Article VII to be satisfied as promptly as reasonably practicable and or to effect the Closing as promptly as reasonably practicable thereafterpracticable, including (i) making all necessary Filings with Governmental Entities or third parties, (ii) obtaining the Required Consents and any all other third-party Consents that are necessary, proper or advisable to consummate the Merger, (iii) obtaining the Required Statutory Approvals and all other Consents of Governmental Entities that are necessary, proper or advisable to consummate the Merger and the other transactions contemplated hereby and (iv) executing and delivering any additional instruments that are necessary, proper or advisable to consummate the Merger Merger. Parent shall be responsible for 100% of the fees, costs and expenses (except for the other transactions fees, costs and expenses of the Company’s advisors), including any filing fees associated with any Filings or Consents contemplated herebyby this Section 6.03.
(b) In connection with and without limiting the generality of Section 6.03(a) and subject to the obligations of Section 6.06,
(i) ), each of Parent and the Company shall shall:
(i) make or cause to be made, in consultation and cooperation with the other, at a mutually agreeable time after the date of this Agreement, (1) an appropriate filing of a Notification and Report Form pursuant to the HSR Act relating to the Merger, following the filing of all initial applications for, and at least six months prior to the reasonably expected date of receipt of, all Required Statutory Approvals, and (2) all other necessary Filings relating to the Merger with other Governmental Entities under any other Antitrust Law, draft and (3) all necessary final filings required in connection with the U.S. Federal Communications Commission;
(ii) each of Parent and the Company shall use reasonable best efforts to obtain CFIUS Approval, which shall include (1) preparing and filing a declaration Approval in accordance with CFIUS with respect to the transactions contemplated by this Agreement 31 C.F.R. Part 800 as promptly as practicable after the date of this Agreement and in any event within twenty Agreement;
(20ii) Business Days (unless otherwise agreed by the Parties) and (2), if applicable, as promptly as practicable, and in any event, within twenty (20) Business Days (unless otherwise agreed by the Parties) following receipt of written notification (including by email) from CFIUS that, based on its assessment of the declaration, CFIUS requests that the parties file a joint voluntary notice of the transactions contemplated by this Agreement, prefiling and filing a final joint voluntary notice with CFIUS with respect to the transactions contemplated by this Agreement, in each case pursuant to the DPA;
(iii) other than those filings referenced in Section 6.03(b)(i) and Section 6.03(b)(ii), the Company shall make or cause to be made, in consultation and cooperation with and upon consent of Parent, such consent not to be unreasonably withheld, conditioned, or delayed, as promptly as reasonably practicable after the date of this Agreement and in any event within seventy-five (75) days after the date of this Agreement, which may be extended by mutual agreement of the Parties (such consent not make or cause to be unreasonably withheldmade all necessary Filings to the FERC relating to the Merger;
(iii) as promptly as practicable after the date of this Agreement, conditioned make or delayed), cause to be made all necessary Filings with other Governmental Entities relating to the Merger, including any such Filings necessary to obtain any Required Statutory Approval;
(iv) each of Parent and the Company shall furnish to the other all assistance, cooperation and information reasonably required for any such Filing made by such Party and in order to achieve the effects set forth in this Section 6.03;
(v) unless prohibited by applicable Law or by a Governmental Entity, each of Parent and the Company shall give the other Parties reasonable prior notice of any such Filing and, to the extent reasonably practicable, of any written or oral communication with any Governmental Entity relating to the Merger (including with respect to any of the actions referred to in this Section 6.03(b)) and, to the extent reasonably practicable, permit the other to review and discuss in advance, and consider in good faith the views and comments of, and secure the participation of (including supplying appropriate witnesses to the extent necessary or advisable)of, the other in connection with any such Filing (except for HSR Act filings) or communication;
(vi) each of Parent and the Company shall respond as promptly as reasonably practicable under the circumstances (and, with respect to CFIUS, in any event, no later than the applicable timeline requested by CFIUS pursuant to the DPA, including any extensions granted thereunder) to any inquiries directed to such Party received from any Governmental Entity or any other authority enforcing the DPA or applicable Antitrust Laws for additional information, documentation, certifications information or other materials documentation in connection with the CFIUS Approval, antitrust, competition or similar matters (including a “second request” under the HSR Act) and not extend any waiting period under the HSR Act or enter into any agreement with any such Governmental Entity or other authorities not to consummate the Merger, except with the prior written consent of the other Parties, such consent not to be unreasonably withheld, conditioned, or delayedParty;
(vii) each provide any information requested by CFIUS or any other agency or branch of Parent and the Company shall make an appropriate response to any requests made of such Party by any Governmental Entity U.S. government in connection with any the CFIUS review or investigation of the transactions contemplated by this Agreement; and and
(viii) unless prohibited by applicable Law or a Governmental Entity, to the extent commercially reasonably practicable, each of Parent and the Company shall (1) not participate in or attend any meetingformal meeting with any Governmental Entity in respect of the Merger without the other Party, telephone call (2) keep the other Party apprised with respect to any meeting or conference or engage in any substantive conversation with any Governmental Entity (including any member or representative of any Governmental Entity’s staff) regarding specific approval in respect of the Merger without the other Parties, (2) give the other reasonable prior notice of and invitation to any such meeting, telephone call or conference or conversation (in each case, with full participation rights) and considering in good faith the views of the other Party in connection therewith, and, in the event one Party is prohibited by applicable Law or by the applicable Governmental Entity from participating in or attending any such meeting, telephone call or conference or engaging in any such conversation, keep such Party apprised (including by providing summaries, if applicable) with respect theretoMerger, (3) cooperate in the filing of any substantive memoranda, white papers, filings, pleadings, correspondence, responses correspondence or other written communications explaining or defending or otherwise in connection with this Agreement or the Merger, articulating any regulatory or competitive argument or responding to requests or objections made by any Governmental Entity or any intervenor in any proceeding relating to a Required Approval and (4) furnish the other Parties Party with copies (including any drafts submitted to a Governmental Entity) of all substantive correspondence, Filings (except HSR Act filings) and communications (and memoranda setting forth the substance thereof) between it and its Affiliates and their respective Representatives on the one hand, and any Governmental Entity or members of any Governmental Entity’s staff, on the other hand, with respect to this Agreement or the Merger; provided that the Parties shall be permitted to designate redact any correspondence, Filing or communication as “outside counsel only” to the extent such correspondence, Filing or communication contains commercially sensitive information and the receiving outside counsel shall not provide these materials to the Party it represents; provided, further, any information required to be provided pursuant to this Section 6.03(b)(viii) may be redacted (A) to remove references concerning the valuation of the Company, (B) as necessary to comply with contractual arrangements, (C) as necessary to comply with applicable Law, (D) to remove any “personal identifier information” (as defined in the DPA), and (E) as necessary to address reasonable privilege or confidentiality concerns. For the avoidance of doubt, this Section 6.03(b) shall not apply to Tax matters.
(c) Parent shall not, and shall not knowingly cause its Affiliates not to, (I) enter into take any transaction to acquire action, including acquiring any asset, property, business or Person (by way of merger, consolidation, share exchange, investment, other business combination, asset, stock or equity purchase, or otherwise) or (II) enter into any new commercial activities or businesses unrelated to the transactions contemplated by this Agreement in the State of Minnesota or the State of Wisconsin, in each case of clause (I) and clause (II), that would could reasonably be expected to materially increase the risk of (w) not adversely affect obtaining any Required Approval, (x) not or making any Consent or Filing contemplated by this Section 6.03 or (y) materially delaying the timely receipt of any Required Approval or the making of any making any Consent or Filing contemplated by this Section 6.03thereof. In furtherance of and without limiting any of Parent’s covenants and agreements under this Section 6.03 and Section 6.066.03, Parent shall use its reasonable best efforts to avoid or eliminate each and every impediment that may be asserted by a Governmental Entity pursuant to any Antitrust Law with respect to the Merger or in connection with granting any Required Statutory Approval so as to enable the Closing to occur as soon as reasonably possible; provided, which however, that notwithstanding the foregoing or any other provision of this Agreement, Parent and its Affiliates shall not be obligated to, and Company shall not and shall cause the Company Subsidiaries not to, take any action or to agree or consent to or accept any terms, conditions, liabilities, obligations, commitments, sanctions or undertakings in connection with any Required Statutory Approval that, individually or in the aggregate, would be reasonably likely to have a material adverse effect on the business, properties, financial condition or results of operations of Liberty Utilities and its Subsidiaries (including for such purpose, the Company and its Subsidiaries), taken as a whole (a “Burdensome Effect”). Subject to the foregoing limitation, such reasonable best efforts shall include the following:
(i) defending through litigation on the merits, including appeals, any Claim asserted in any court or other proceeding by any Person, including any Governmental Entity, that seeks to or could prevent or prohibit or impede, interfere with or materially delay the consummation of the Closing, and shall have the right, but not the obligation, to appeal an adverse decision on the merits;
(ii) proposing, negotiating, committing to and effecting, by consent decree, hold separate order or otherwise, the sale, divestiture, licensing or disposition of any assets or businesses of Parent or its Affiliates or the Company or the Company Subsidiaries, including entering into customary ancillary agreements on commercially reasonable terms relating to any such sale, divestiture, licensing or disposition;
(iii) agreeing to any limitation on the conduct of Parent or its Affiliates (including, after the Closing, the Surviving Corporation and the Company Subsidiaries);
(iv) not withdrawing and/or refiling any HSR Act submission, extending any waiting period or entering into any agreement or understanding with any Governmental Entity without consulting and obtaining written consent from the Company; and
(ivv) agreeing to take any other action as may be required by a Governmental Entity in order to effect each of the following: (1) obtaining all Required Statutory Approvals as soon as reasonably possible and in any event before the End Date, (2) avoiding the entry of, or having vacated, lifted, dissolved, reversed or overturned any Judgment Judgment, whether temporary, preliminary or permanent, that is in effect that prohibits, prevents or restricts the consummation of, or impedes, interferes with or materially delays delays, the Closing and (3) effecting the expiration or termination of any waiting period, which would otherwise have the effect of preventing, prohibiting or restricting consummation of the Closing or impeding, interfering with or materially delaying the Closing.
(d) Notwithstanding anything to the contrary, nothing in this Section 6.03 (other than the first sentence of Section 6.03(c)) shall require Parent to take, or agree to take, any action (other than with respect to any restrictions on information sharing or any other action which is not material to Parent or such Person) related to (x) any of its Affiliates, (y) any Sponsor or their respective direct or indirect portfolio companies owned, managed, advised or controlled by any of the Sponsors or any of their respective Affiliates or (z) any limited partner or other direct or indirect investors in any investment fund affiliated with, advised or managed by any Sponsor or any of their respective Affiliates, or any of the respective Affiliates of any such limited partners or investors; provided, further, that the provisions of this Section 6.03 shall not be construed to (x) require Parent, Merger Sub or any Affiliate of Parent or (y) permit the Company without the prior written consent of Parent (which consent shall not to be unreasonably withheld, conditioned, or delayed), to undertake any efforts or take any action (including accepting any terms, conditions, liabilities, obligations, commitment, sanctions or other measures and proposing, negotiating, committing to and effect, by consent decree, hold separate order or otherwise, the sale, divestiture, licensing or disposition of assets or businesses of Parent or the Company or their respective Affiliates) if the taking of such efforts or action, individually or in the aggregate, has resulted or would reasonably be expected to result in a Burdensome Condition; provided, further, that notwithstanding anything contained in this Agreement to the contrary, in no event shall Parent, Merger Sub or any Affiliate of Parent be required to pursue or defend any Claim against CFIUS in connection with the transactions contemplated hereby, including the Merger. Nothing in this Section 6.03 shall obligate the Parent, the Company or any of their respective Affiliates to take any action that is not conditioned on the Closing.
(e) Parent shall promptly notify the Company and the Company shall notify Parent of any notice or other communication from any Person alleging that such Person’s Consent is or may be required in connection with the Merger.
Appears in 1 contract
Further Actions; Regulatory Approvals; Required Actions. (a) Subject to the terms and conditions of this Agreement, each of the Parties Party shall use its reasonable best efforts to take, or cause to be taken, all actions, and do, or cause to be done, and assist and cooperate with the other Parties in doing, all things necessary to cause the conditions to the Closing set forth in Article VII VI to be satisfied as promptly as reasonably practicable and to effect the Closing as promptly as reasonably practicable thereafterpracticable, including (i) making and cooperating with all necessary Filings with Governmental Entities or third partiesAuthorities, (ii) requesting early termination of the waiting period under the HSR Act applicable to the Merger and obtaining the Required Consents and any third-party Consents that are necessaryHSR Clearance, proper or advisable to consummate the MergerAntitrust Clearances, (iii) obtaining the Required Approvals French Foreign Investment Clearance and all other Consents of Governmental Entities Authorities that are necessary, proper or advisable necessary to consummate the Merger and the other transactions contemplated hereby as promptly as reasonably practicable and (iviii) executing and delivering any additional instruments that are necessary, proper or advisable necessary to consummate the Merger and the other transactions Merger. Parent shall be responsible for one hundred percent (100%) of any filing fees associated with any Filings or Consents contemplated herebyby this Section 5.05.
(b) In connection with and without limiting the generality of Section 6.03(a) and subject to the obligations of Section 6.06,
(i) 5.05(a), each of Parent and the Company shall shall:
(i) file or cause to be filed with the U.S. Department of Justice and the Federal Trade Commission, in consultation and cooperation with the other, as promptly as practicable after the date of this Agreement and, in any event, no later than ten (10) Business Days after the date of this Agreement, an appropriate Notification and Report Form pursuant to the HSR Act relating to the Merger;
(ii) make or cause to be made, in consultation and cooperation with the other, at a mutually agreeable time after the date of this Agreement, (1) an appropriate filing of a Notification and Report Form pursuant to the HSR Act relating to the Merger, (2) all other necessary Filings relating to the Merger with other Governmental Entities under any other Antitrust Law, and (3) all necessary filings with the U.S. Federal Communications Commission;
(ii) each of Parent and the Company shall use reasonable best efforts to obtain CFIUS Approval, which shall include (1) preparing and filing a declaration with CFIUS with respect to the transactions contemplated by this Agreement as promptly as practicable after the date of this Agreement and in any event within twenty (20) Business Days (unless otherwise agreed by the Parties) and (2), if applicable, as promptly as practicable, and in any event, within twenty (20) Business Days (unless otherwise agreed by the Parties) following receipt of written notification (including by email) from CFIUS that, based on its assessment of the declaration, CFIUS requests that the parties file a joint voluntary notice of the transactions contemplated by this Agreement, prefiling and filing a final joint voluntary notice with CFIUS all other necessary, proper or advisable Filings under any Antitrust Law, including, with respect to Parent, the transactions contemplated Filing required to be made by this Agreement, in each case pursuant to it with the DPAFrench Ministre de l’Economie under the French Foreign Investment Laws;
(iii) other than those filings referenced in Section 6.03(b)(i) and Section 6.03(b)(ii), the Company shall make or cause to be made, in consultation and cooperation with and upon consent of Parent, such consent not to be unreasonably withheld, conditioned, or delayedthe other, as promptly as reasonably practicable after the date of this Agreement and in any event within seventy-five (75) days after the date of this Agreement, which may be extended by mutual agreement of the Parties (such consent not to be unreasonably withheld, conditioned or delayed), all other necessary Filings with other Governmental Entities Authorities relating to the Merger, including any such Filings necessary to obtain any Required Approval;
(iv) each of Parent and the Company shall furnish to the other all assistance, cooperation and information reasonably required for any such Filing made by such Party and in order to achieve the effects set forth in this Section 6.035.05;
(v) unless prohibited by applicable Law or by a Governmental EntityAuthority, each of Parent and the Company shall give the other Parties reasonable prior notice of any such Filing and, to the extent reasonably practicable, of any written or oral communication with any Governmental Entity Authority relating to the Merger (including with respect to any of the actions referred to in this Section 6.03(b5.05(b)) and, to the extent reasonably practicable, permit the other to review and discuss in advance, and consider in good faith the views and comments of, and secure the participation of (including supplying appropriate witnesses to the extent necessary or advisable)of, the other in connection with any such Filing (except for HSR Act filings) or communication;
(vi) each of Parent and the Company shall respond as promptly as reasonably practicable under the circumstances (and, with respect to CFIUS, in any event, no later than the applicable timeline requested by CFIUS pursuant to the DPA, including any extensions granted thereunder) to any inquiries directed to such Party or requests received from any Governmental Entity Authority or any other authority enforcing the DPA or applicable Antitrust Laws for additional information, documentation, certifications information or other materials documentation in connection with the CFIUS Approval, antitrust, competition or similar matters (including a “second request” under the HSR Act) and not enter into (A) agree to extend any agreement with waiting period or agree to refile under any such Governmental Entity or other authorities not to consummate the Merger, Antitrust Laws (except with the prior written consent of the other Parties, such consent Party) or (B) enter into any agreement with any Governmental Authority agreeing not to be unreasonably withheld, conditioned, consummate the Merger or delayed;
(vii) each of Parent and the Company shall make an appropriate response to any requests made of such Party by any Governmental Entity in connection with any review or investigation of the other transactions contemplated by this AgreementAgreement (except with the prior written consent of the other Party); and and
(viiivii) unless prohibited by applicable Law or a Governmental EntityAuthority, to the extent reasonably practicable, each of Parent and the Company shall (1A) not participate in or attend any meeting, telephone call meeting or conference (whether in person, via telephone or engage otherwise) with any Governmental Authority in respect of the Merger without offering, in the case of the Company, Parent and Merger Sub, or, in the case of Parent or Merger Sub, the Company, the option to participate in or attend the meeting (to the extent permitted by such Governmental Authority), (B) keep, in the case of the Company, Parent and Merger Sub, or, in the case of Parent or Merger Sub, the Company, apprised with respect to any substantive meeting or conversation with any Governmental Entity (including any member or representative of any Governmental Entity’s staff) regarding specific approval Authority in respect of the Merger without the other PartiesMerger, (2) give the other reasonable prior notice of and invitation to any such meeting, telephone call or conference or conversation (in each case, with full participation rights) and considering in good faith the views of the other Party in connection therewith, and, in the event one Party is prohibited by applicable Law or by the applicable Governmental Entity from participating in or attending any such meeting, telephone call or conference or engaging in any such conversation, keep such Party apprised (including by providing summaries, if applicable) with respect thereto, (3C) cooperate in the filing of any substantive memoranda, white papers, filingsFilings, pleadings, correspondence, responses correspondence or other written communications explaining or defending or otherwise in connection with this Agreement or the Merger, articulating any regulatory or competitive argument or responding to requests or objections made by any Governmental Entity or any intervenor in any proceeding relating to a Required Approval and (4) furnish the other Parties with copies (including any drafts submitted to a Governmental Entity) of all substantive correspondence, Filings (except HSR Act filings) and communications (and memoranda setting forth the substance thereof) between it and its Affiliates and their respective Representatives on the one hand, and any Governmental Entity or members of any Governmental Entity’s staff, on the other hand, with respect to this Agreement or the Merger; provided that the Parties shall be permitted to designate any correspondence, Filing or communication as “outside counsel only” to the extent such correspondence, Filing or communication contains commercially sensitive information and the receiving outside counsel shall not provide these materials to the Party it represents; provided, further, any information required to be provided pursuant to this Section 6.03(b)(viii) may be redacted (A) to remove references concerning the valuation of the Company, (B) as necessary to comply with contractual arrangements, (C) as necessary to comply with applicable Law, (D) to remove any “personal identifier information” (as defined in the DPA), and (E) as necessary to address reasonable privilege or confidentiality concerns. For the avoidance of doubt, this Section 6.03(b) shall not apply to Tax matters.
(c) Parent shall not, and shall not knowingly cause its Affiliates to, (I) enter into any transaction to acquire any asset, property, business or Person (by way of merger, consolidation, share exchange, investment, other business combination, asset, stock or equity purchase, or otherwise) or (II) enter into any new commercial activities or businesses unrelated to the transactions contemplated by this Agreement in the State of Minnesota or the State of Wisconsin, in each case of clause (I) and clause (II), that would reasonably be expected to materially increase the risk of (w) not obtaining any Required Approval, (x) not making any Consent or Filing contemplated by this Section 6.03 or (y) materially delaying the receipt of any Required Approval or the making of any making any Consent or Filing contemplated by this Section 6.03. In furtherance of and without limiting any of Parent’s covenants and agreements under this Section 6.03 and Section 6.06, Parent shall use its reasonable best efforts to avoid or eliminate each and every impediment that may be asserted by a Governmental Entity so as to enable the Closing to occur as soon as reasonably possible, which such reasonable best efforts shall include the following:
(i) defending through litigation on the merits, any Claim asserted in any court or other proceeding by any Person, including any Governmental Entity, that seeks to or could prevent or prohibit or impede, interfere with or materially delay the consummation of the Closing, and shall have the right, but not the obligation, to appeal an adverse decision on the merits;
(ii) proposing, negotiating, committing to and effecting, by consent decree, hold separate order or otherwise, the sale, divestiture, licensing or disposition of any assets or businesses of Parent or the Company or the Company Subsidiaries, including entering into customary ancillary agreements on commercially reasonable terms relating to any such sale, divestiture, licensing or disposition;
(iii) agreeing to any limitation on the conduct of Parent (including, after the Closing, the Surviving Corporation and the Company Subsidiaries); Authority and
(iv) agreeing to take any other action as may be required by a Governmental Entity in order to effect each of the following: (1) obtaining all Required Approvals as soon as reasonably possible and in any event before the End Date, (2) having vacated, lifted, dissolved, reversed or overturned any Judgment that is in effect that prohibits, prevents or restricts the consummation of, or impedes, interferes with or materially delays the Closing and (3) effecting the expiration or termination of any waiting period, which would otherwise have the effect of preventing, prohibiting or restricting consummation of the Closing or impeding, interfering with or materially delaying the Closing.
(d) Notwithstanding anything to the contrary, nothing in this Section 6.03 (other than the first sentence of Section 6.03(c)) shall require Parent to take, or agree to take, any action (other than with respect to any restrictions on information sharing or any other action which is not material to Parent or such Person) related to (x) any of its Affiliates, (y) any Sponsor or their respective direct or indirect portfolio companies owned, managed, advised or controlled by any of the Sponsors or any of their respective Affiliates or (z) any limited partner or other direct or indirect investors in any investment fund affiliated with, advised or managed by any Sponsor or any of their respective Affiliates, or any of the respective Affiliates of any such limited partners or investors; provided, further, that the provisions of this Section 6.03 shall not be construed to (x) require Parent, Merger Sub or any Affiliate of Parent or (y) permit the Company without the prior written consent of Parent (which consent shall not to be unreasonably withheld, conditioned, or delayed), to undertake any efforts or take any action (including accepting any terms, conditions, liabilities, obligations, commitment, sanctions or other measures and proposing, negotiating, committing to and effect, by consent decree, hold separate order or otherwise, the sale, divestiture, licensing or disposition of assets or businesses of Parent or the Company or their respective Affiliates) if the taking of such efforts or action, individually or in the aggregate, has resulted or would reasonably be expected to result in a Burdensome Condition; provided, further, that notwithstanding anything contained in this Agreement to the contrary, in no event shall Parent, Merger Sub or any Affiliate of Parent be required to pursue or defend any Claim against CFIUS in connection with the transactions contemplated hereby, including the Merger. Nothing in this Section 6.03 shall obligate the Parent, the Company or any of their respective Affiliates to take any action that is not conditioned on the Closing.
(e) Parent shall promptly notify the Company and the Company shall notify Parent of any notice or other communication from any Person alleging that such Person’s Consent is or may be required in connection with the Merger.
Appears in 1 contract
Further Actions; Regulatory Approvals; Required Actions. (a) Subject to the terms and conditions of this Agreement, each of the Parties shall use its reasonable best efforts to take, or cause to be taken, all actions, and do, or cause to be done, and assist and cooperate with the other Parties in doing, all things necessary to cause the conditions to the Closing set forth in Article VII to be satisfied as promptly as reasonably practicable and or to effect the Closing as promptly as reasonably practicable thereafterpracticable, including (i) making all necessary Filings with Governmental Entities or third parties, (ii) obtaining the Required Consents and any all other third-party Consents that are necessary, proper or advisable to consummate the Merger, (iii) obtaining the Required Statutory Approvals and all other Consents of Governmental Entities that are necessary, proper or advisable to consummate the Merger and the other transactions contemplated hereby and (iv) executing and delivering any additional instruments that are necessary, proper or advisable to consummate the Merger Merger. Parent shall be responsible for 100% of the fees, costs and expenses (except for the other transactions fees, costs and expenses of the Company’s advisors), including any filing fees, associated with any Filings or Consents contemplated herebyby this Section 6.03.
(b) In connection with and without limiting the generality of Section 6.03(a) and subject to the obligations of Section 6.06,
(i) ), each of Parent and the Company shall shall:
(i) make or cause to be made, in consultation and cooperation with the other, at a mutually agreeable time as promptly as practicable after the date of this Agreement, (1) an appropriate filing of a Notification and Report Form pursuant to the HSR Act relating to the Merger, (2) all other necessary Filings relating to the Merger with other Governmental Entities under any other Antitrust Law, Law and (3) all necessary draft and final filings required in connection with the U.S. Federal Communications CommissionCFIUS Approval in accordance with 31 C.F.R. Part 800;
(ii) each of Parent and the Company shall use reasonable best efforts make or cause to obtain CFIUS Approvalbe made, which shall include (1) preparing and filing a declaration with CFIUS with respect to the transactions contemplated by this Agreement as promptly as practicable after the date of this Agreement and in any event within twenty thirty (2030) Business Days (unless otherwise agreed by days after the Parties) and (2), if applicable, as promptly as practicable, and in any event, within twenty (20) Business Days (unless otherwise agreed by the Parties) following receipt date of written notification (including by email) from CFIUS that, based on its assessment of the declaration, CFIUS requests that the parties file a joint voluntary notice of the transactions contemplated by this Agreement, prefiling and filing a final joint voluntary notice with CFIUS with respect all necessary Filings to the transactions contemplated by this Agreement, in each case pursuant FERC relating to the DPAMerger;
(iii) other than those filings referenced in Section 6.03(b)(i) and Section 6.03(b)(ii), the Company shall make or cause to be made, in consultation and cooperation with and upon consent of Parent, such consent not to be unreasonably withheld, conditioned, or delayed, as promptly as reasonably practicable after the date of this Agreement and in any event within seventyforty-five (7545) days after the date of this Agreement, which may be extended by mutual agreement of the Parties (such consent not to be unreasonably withheld, conditioned or delayed), all necessary Filings with other Governmental Entities relating to the Merger, including any such Filings necessary to obtain any Required Statutory Approval;
(iv) each of Parent and the Company shall furnish to the other all assistance, cooperation and information reasonably required for any such Filing made by such Party and in order to achieve the effects set forth in this Section 6.03;
(v) unless prohibited by applicable Law or by a Governmental Entity, each of Parent and the Company shall give the other Parties reasonable prior notice of any such Filing and, to the extent reasonably practicable, of any written or oral communication with any Governmental Entity relating to the Merger (including with respect to any of the actions referred to in this Section 6.03(b)) and, to the extent reasonably practicable, permit the other to review and discuss in advance, and consider in good faith the views and comments of, and secure the participation of (including supplying appropriate witnesses to the extent necessary or advisable)of, the other in connection with any such Filing (except for HSR Act filings) or communication;
(vi) each of Parent and the Company shall respond as promptly as reasonably practicable under the circumstances (and, with respect to CFIUS, in any event, no later than the applicable timeline requested by CFIUS pursuant to the DPA, including any extensions granted thereunder) to any inquiries directed to such Party received from any Governmental Entity or any other authority enforcing the DPA or applicable Antitrust Laws for additional information, documentation, certifications information or other materials documentation in connection with the CFIUS Approval, antitrust, competition or similar matters (including a “second request” under the HSR Act) and not extend any waiting period under the HSR Act or enter into any agreement with any such Governmental Entity or other authorities not to consummate the Merger, except with the prior written consent of the other Parties, such consent not to be unreasonably withheld, conditioned, or delayedParty;
(vii) each provide any information requested by CFIUS or any other agency or branch of Parent and the Company shall make an appropriate response to any requests made of such Party by any Governmental Entity U.S. government in connection with any the CFIUS review or investigation of the transactions contemplated by this Agreement; and and
(viii) unless prohibited by applicable Law or a Governmental Entity, to the extent commercially reasonably practicable, each of Parent and the Company shall (1) not participate in or attend any meetingformal meeting with any Governmental Entity in respect of the Merger without the other Party, telephone call (2) keep the other Party apprised with respect to any meeting or conference or engage in any substantive conversation with any Governmental Entity (including any member or representative of any Governmental Entity’s staff) regarding specific approval in respect of the Merger without the other Parties, (2) give the other reasonable prior notice of and invitation to any such meeting, telephone call or conference or conversation (in each case, with full participation rights) and considering in good faith the views of the other Party in connection therewith, and, in the event one Party is prohibited by applicable Law or by the applicable Governmental Entity from participating in or attending any such meeting, telephone call or conference or engaging in any such conversation, keep such Party apprised (including by providing summaries, if applicable) with respect theretoMerger, (3) cooperate in the filing of any substantive memoranda, white papers, filings, pleadings, correspondence, responses correspondence or other written communications explaining or defending or otherwise in connection with this Agreement or the Merger, articulating any regulatory or competitive argument or responding to requests or objections made by any Governmental Entity or any intervenor in any proceeding relating to a Required Approval and (4) furnish the other Parties Party with copies (including any drafts submitted to a Governmental Entity) of all substantive correspondence, Filings (except HSR Act filings) and communications (and memoranda setting forth the substance thereof) between it and its Affiliates and their respective Representatives on the one hand, and any Governmental Entity or members of any Governmental Entity’s staff, on the other hand, with respect to this Agreement or the Merger; provided that the Parties shall be permitted to designate redact any correspondence, Filing or communication as “outside counsel only” to the extent such correspondence, Filing or communication contains commercially sensitive information and the receiving outside counsel shall not provide these materials to the Party it represents; provided, further, any information required to be provided pursuant to this Section 6.03(b)(viii) may be redacted (A) to remove references concerning the valuation of the Company, (B) as necessary to comply with contractual arrangements, (C) as necessary to comply with applicable Law, (D) to remove any “personal identifier information” (as defined in the DPA), and (E) as necessary to address reasonable privilege or confidentiality concerns. For the avoidance of doubt, this Section 6.03(b) shall not apply to Tax matters.
(c) Parent shall not, and shall not knowingly cause its Affiliates not to, (I) enter into take any transaction to acquire action, including acquiring any asset, property, business or Person (by way of merger, consolidation, share exchange, investment, other business combination, asset, stock or equity purchase, or otherwise) or (II) enter into any new commercial activities or businesses unrelated to the transactions contemplated by this Agreement in the State of Minnesota or the State of Wisconsin, in each case of clause (I) and clause (II), that would could reasonably be expected to materially increase the risk of (w) not adversely affect obtaining any Required Approval, (x) not or making any Consent or Filing contemplated by this Section 6.03 or (y) materially delaying the timely receipt of any Required Approval or the making of any making any Consent or Filing contemplated by this Section 6.03thereof. In furtherance of and without limiting any of Parent’s covenants and agreements under this Section 6.03 and Section 6.066.03, Parent shall use its reasonable best efforts to avoid or eliminate each and every impediment that may be asserted by a Governmental Entity pursuant to any Antitrust Law with respect to the Merger or in connection with granting any Required Statutory Approval so as to enable the Closing to occur as soon as reasonably possible, which such reasonable best efforts shall include the following:
(i) defending through litigation on the merits, including appeals, any Claim asserted in any court or other proceeding by any Person, including any Governmental Entity, that seeks to or could prevent or prohibit or impede, interfere with or materially delay the consummation of the Closing, and shall have the right, but not the obligation, to appeal an adverse decision on the merits;
(ii) proposing, negotiating, committing to and effecting, by consent decree, hold separate order or otherwise, the sale, divestiture, licensing or disposition of any assets or businesses of Parent or its Affiliates or the Company or the Company Subsidiaries, including entering into customary ancillary agreements on commercially reasonable terms relating to any such sale, divestiture, licensing or disposition;
(iii) agreeing to any limitation on the conduct of Parent or its Affiliates (including, after the Closing, the Surviving Corporation and the Company Subsidiaries); and
(iv) agreeing to take any other action as may be required by a Governmental Entity in order to effect each of the following: (1) obtaining all Required Statutory Approvals as soon as reasonably possible and in any event before the End Date, (2) avoiding the entry of, or having vacated, lifted, dissolved, reversed or overturned any Judgment Judgment, whether temporary, preliminary or permanent, that is in effect that prohibits, prevents or restricts the consummation of, or impedes, interferes with or materially delays delays, the Closing and (3) effecting the expiration or termination of any waiting period, which would otherwise have the effect of preventing, prohibiting or restricting consummation of the Closing or impeding, interfering with or materially delaying the Closing.
(d) Notwithstanding anything In addition, Parent hereby (i) agrees that, from and after the Closing, it shall cause the Company and each Company Subsidiary subject to the contrary, nothing in this Section 6.03 (other than the first sentence of Section 6.03(c)) shall require Parent New Mexico Order to take, or agree to take, any action (other than comply with respect to any restrictions on information sharing or any other action which is not material to Parent or such Person) related to (x) any of its Affiliates, (y) any Sponsor or their respective direct or indirect portfolio companies owned, managed, advised or controlled by any of the Sponsors or any all of their respective Affiliates or obligations under the New Mexico Order and (zii) any limited partner or other direct or indirect investors in any investment fund affiliated with, advised or managed by any Sponsor or any of their respective Affiliates, or any of the respective Affiliates of any such limited partners or investors; provided, further, that the provisions of this Section 6.03 shall not be construed to (x) require Parent, Merger Sub or any Affiliate of Parent or (y) permit the Company without the prior written consent of Parent (which consent shall not to be unreasonably withheld, conditioned, or delayed), to undertake any efforts or take any action (including accepting any terms, conditions, liabilities, obligations, commitment, sanctions or other measures and proposing, negotiating, committing to and effect, by consent decree, hold separate order or otherwise, the sale, divestiture, licensing or disposition of assets or businesses of Parent or the Company or their respective Affiliates) if the taking of such efforts or action, individually or in the aggregate, has resulted or would reasonably be expected to result in a Burdensome Condition; provided, further, that notwithstanding anything contained in this Agreement to the contrary, in no event shall Parent, Merger Sub or any Affiliate of Parent be required to pursue or defend any Claim against CFIUS in connection with the transactions contemplated hereby, including the Merger. Nothing in this Section 6.03 shall obligate the Parent, the Company or any of their respective Affiliates agrees to take any action that is not conditioned on and all actions required or requested by the ClosingNMPRC to confirm such agreement.
(e) Parent shall promptly notify the Company and the Company shall notify Parent of any notice or other communication from any Person alleging that such Person’s Consent is or may be required in connection with the Merger.
Appears in 1 contract
Samples: Merger Agreement (Teco Energy Inc)
Further Actions; Regulatory Approvals; Required Actions. (a) Subject to the terms and conditions of this Agreement, each of the Parties Party shall use its reasonable best efforts to take, or cause to be taken, all actions, and do, or cause to be done, and assist and cooperate with the other Parties in doing, all things necessary to cause the conditions to the Closing set forth in Article VII ARTICLE V to be satisfied as promptly as reasonably practicable and to effect the Closing and consummate the sale of the Nutrition Entities to Purchaser as promptly as reasonably practicable thereafterpracticable, including (i) making all necessary Filings registrations, declarations, notices or filings (“Filings”) with Governmental Entities Authorities or third partiesThird Parties, (ii) not taking any action after the date of this Agreement to materially delay the obtaining the Required Consents of, or result in requiring or not obtaining, any Consent from any Governmental Authorities or Third Parties necessary to be obtained prior to Closing, and any third-party Consents that are necessary, proper or advisable to consummate the Merger, (iii) obtaining the Required Approvals HSR Clearance and all other Consents consents, waivers and Permits (“Consents”) of Governmental Entities Authorities that are necessary, proper or advisable necessary to consummate the Merger Transactions as promptly as reasonably practicable. The Purchaser Group shall be responsible for 100% of the filing fees associated with any Filings or Consents contemplated by this Section 4.05 with respect to Antitrust Laws. Aside from the filing fees and except as otherwise set forth in this Agreement, all other fees, costs and expenses shall be borne by the other transactions contemplated hereby and (iv) executing and delivering any additional instruments that are necessary, proper or advisable to consummate the Merger and the other transactions contemplated herebyParties in accordance with Section 4.07.
(b) In connection with and without limiting the generality of Section 6.03(a) and subject to the obligations of Section 6.06,4.05(a), each Party shall:
(i) each of Parent and the Company shall make file or cause to be madefiled with the Department of Justice and the Federal Trade Commission, in consultation and cooperation with the other, at a mutually agreeable time as promptly as practicable after the date of this Agreement and, in any event, no later than five (5) Business Days after the date of this Agreement, (1) an appropriate filing of a Notification and Report Form pursuant to the HSR Act relating to the Merger, (2) all other necessary Filings relating to the Merger with other Governmental Entities under any other Antitrust Law, and (3) all necessary filings with the U.S. Federal Communications CommissionTransactions;
(ii) each of Parent and the Company shall use reasonable best efforts to obtain CFIUS Approval, which shall include (1) preparing and filing a declaration with CFIUS with respect to the transactions contemplated by this Agreement as promptly as practicable after the date of this Agreement and in any event within twenty (20) Business Days (unless otherwise agreed by the Parties) and (2), if applicable, as promptly as practicable, and in any event, within twenty (20) Business Days (unless otherwise agreed by the Parties) following receipt of written notification (including by email) from CFIUS that, based on its assessment of the declaration, CFIUS requests that the parties file a joint voluntary notice of the transactions contemplated by this Agreement, prefiling and filing a final joint voluntary notice with CFIUS with respect to the transactions contemplated by this Agreement, in each case pursuant to the DPA;
(iii) other than those filings referenced in Section 6.03(b)(i) and Section 6.03(b)(ii), the Company shall make or cause to be made, in consultation and cooperation with and upon consent of Parent, such consent not to be unreasonably withheld, conditioned, or delayed, as promptly as reasonably practicable after the date of this Agreement and in any event within seventy-five (75) days after the date of this Agreement, which may be extended by mutual agreement of the Parties (such consent not to be unreasonably withheld, conditioned or delayed), all necessary Filings with other Governmental Entities relating to the Merger, including any such Filings necessary to obtain any Required Approval;
(iv) each of Parent and the Company shall furnish to the other all assistance, cooperation and information reasonably required for any such Filing made by such Party and in order to achieve the effects set forth in this Section 6.034.05;
(viii) unless prohibited by applicable Law or by a Governmental EntityAuthority, each of Parent and the Company shall give the other Parties reasonable prior notice of any such Filing and, to the extent reasonably practicable, of any written or oral communication with any Governmental Entity Authority relating to the Merger Transactions (including with respect to any of the actions referred to in this Section 6.03(b4.05(b)) and, to the extent reasonably practicable, permit the other to review and discuss in advance, and consider in good faith the views and comments of, and secure the participation of (including supplying appropriate witnesses to the extent necessary or advisable)of, the other in connection with any such Filing (except for HSR Act filings) or communication;
(viiv) each of Parent and the Company shall respond as promptly as reasonably practicable under the circumstances (and, with respect to CFIUS, in any event, no later than the applicable timeline requested by CFIUS pursuant to the DPA, including any extensions granted thereunder) to any inquiries directed to such Party received from any Governmental Entity Authority or any other authority enforcing the DPA or applicable Antitrust Laws for additional information, documentation, certifications information or other materials documentation in connection with the CFIUS Approval, antitrust, competition or similar matters (including a “second request” and not extend any waiting period under the HSR Act) and not Act or enter into any agreement with any such Governmental Entity Authority or other authorities not to consummate the MergerTransactions, except with the prior written consent of the other Parties, such consent not to be unreasonably withheld, conditioned, or delayed;Party; and
(vii) each of Parent and the Company shall make an appropriate response to any requests made of such Party by any Governmental Entity in connection with any review or investigation of the transactions contemplated by this Agreement; and (viiiv) unless prohibited by applicable Law or a Governmental EntityAuthority, to the extent reasonably practicable, each of Parent and the Company shall (1) not participate in or attend any meetingmeeting (whether in person or via telephone) with any Governmental Authority in respect of the Transactions without the other Party, telephone call (2) keep the other Party apprised with respect to any meeting or conference or engage in any substantive conversation with any Governmental Entity (including any member or representative of any Governmental Entity’s staff) regarding specific approval Authority in respect of the Merger without the other Parties, (2) give the other reasonable prior notice of and invitation to any such meeting, telephone call or conference or conversation (in each case, with full participation rights) and considering in good faith the views of the other Party in connection therewith, and, in the event one Party is prohibited by applicable Law or by the applicable Governmental Entity from participating in or attending any such meeting, telephone call or conference or engaging in any such conversation, keep such Party apprised (including by providing summaries, if applicable) with respect theretoTransactions, (3) cooperate in the filing of any substantive memoranda, white papers, filings, pleadings, correspondence, responses correspondence or other written communications explaining or defending or otherwise in connection with this Agreement or the MergerTransactions, articulating any regulatory or competitive argument or responding to requests or objections made by any Governmental Entity or any intervenor in any proceeding relating to a Required Approval Authority and (4) furnish the other Parties Party with copies (including any drafts submitted to a Governmental Entity) of all substantive correspondence, Filings (except HSR Act filings) and communications (and memoranda setting forth the substance thereof) between it and its Affiliates and their respective Representatives Representatives, on the one hand, and any Governmental Entity Authority or members of any Governmental EntityAuthority’s staff, on the other hand, with respect to this Agreement or the MergerTransactions; provided provided, however, that the Parties shall be permitted to designate redact any correspondence, Filing or communication as “outside counsel only” to the extent such correspondence, Filing or communication contains commercially sensitive information and the receiving outside counsel shall not provide these materials to the Party it represents; provided, further, any information required to be provided pursuant to this Section 6.03(b)(viii) may be redacted (A) to remove references concerning the valuation of the Company, (B) as necessary to comply with contractual arrangements, (C) as necessary to comply with applicable Law, (D) to remove any “personal identifier information” (as defined in the DPA), and (E) as necessary to address reasonable privilege or confidentiality concerns. For the avoidance of doubt, this Section 6.03(b4.05(b) and Section 4.05(d) shall not apply with respect to Tax matters.
(c) Parent The Purchaser Group shall not, and shall not knowingly cause its Affiliates not to, (I) enter into take any transaction to acquire action, including acquiring any asset, property, business or Person (by way of merger, consolidation, share exchange, investment, other business combination, asset, stock or equity purchase, or otherwise) or (II) enter into any new commercial activities or businesses unrelated to the transactions contemplated by this Agreement in the State of Minnesota or the State of Wisconsin, in each case of clause (I) and clause (II), that would reasonably be expected to materially increase the risk of (w) not have a material adverse affect on obtaining any Required Approval, (x) not or making any Consent or Filing contemplated by this Section 6.03 or (y) materially delaying the receipt of any Required Approval 4.05 or the making of any making any Consent or Filing contemplated by this Section 6.03timely receipt thereof. In furtherance of and without limiting any of Parentthe Purchaser Group’s covenants and agreements under this Section 6.03 and Section 6.064.05, Parent the Purchaser Group shall use its reasonable best efforts take all actions necessary, proper or advisable to avoid or eliminate each and every impediment that may be asserted by a Governmental Entity Authority with respect to the Transactions pursuant to any Antitrust Law, so as to enable the Closing to occur as soon as reasonably possible, which such reasonable best efforts actions (with respect to Antitrust Laws) shall include the following:
(i) defending through litigation on the merits, including appeals, any Claim asserted in any court or other proceeding by any Person, including any Governmental EntityAuthority, that seeks to or could prevent or prohibit or impede, interfere with or materially delay the consummation of the Closing, and shall have the right, but not the obligation, to appeal an adverse decision on the merits;
(ii) proposing, negotiating, committing to and effecting, by consent decree, hold separate order or otherwise, the sale, divestiture, licensing or disposition of any assets or businesses of Parent the Purchaser Group or its Affiliates or the Company or the Company SubsidiariesNutrition Entities, including entering into customary ancillary agreements on commercially reasonable terms relating to any such sale, divestiture, licensing or disposition;
(iii) agreeing to any limitation on the conduct of Parent the Purchaser Group or its Affiliates (including, after the Closing, the Surviving Corporation and the Company SubsidiariesNutrition Entities); and
(iv) agreeing to take any other action as may be required by a Governmental Entity Authority in order to effect each of the following: (1) obtaining all Required Approvals as soon as reasonably possible the HSR Clearance and in any event before other Consent of a Governmental Authority under any Antitrust Law that is necessary, appropriate or advisable to consummate the End DateTransactions, (2) avoiding the entry of, or having vacated, lifted, dissolved, reversed or overturned any Judgment Order, whether temporary, preliminary or permanent, that is in effect that prohibits, prevents or restricts the consummation of, or impedes, interferes with or materially delays delays, the Closing and (3) effecting the expiration or termination of any waiting period, which would otherwise have the effect of preventing, prohibiting or restricting consummation of the Closing or impeding, interfering with or materially delaying the Closing.
(d) Notwithstanding anything Each of the Parties shall (i) promptly notify the other Parties prior to the contrarymaking or commencement of any request, nothing in this Section 6.03 (other than the first sentence of Section 6.03(c)) shall require Parent to takeinquiry, investigation, action or agree to take, legal proceeding by or before any action (other than Governmental Authority with respect to any restrictions on information sharing or any other action which is not material to Parent or such Person) related to (x) any of its Affiliatesthe Transactions, (yii) any Sponsor or their respective direct or indirect portfolio companies owned, managed, advised or controlled by any of keep the Sponsors or any of their respective Affiliates or (z) any limited partner or other direct or indirect investors in any investment fund affiliated with, advised or managed by any Sponsor or any of their respective Affiliates, or any of Parties informed as to the respective Affiliates status of any such limited partners request, inquiry, investigation, action or investors; providedlegal proceeding and (iii) promptly inform the other Parties of any communication to or from any Governmental Authority regarding the Transactions, further, that the provisions of this Section 6.03 shall not be construed to and (xiv) require Parent, Merger Sub or any Affiliate of Parent or (y) permit the Company without the prior written consent of Parent (which consent shall not to be unreasonably withheld, conditioned, or delayed), to undertake any efforts or take any action (including accepting any terms, conditions, liabilities, obligations, commitment, sanctions or other measures and proposing, negotiating, committing to and effect, by consent decree, hold separate order or otherwise, the sale, divestiture, licensing or disposition of assets or businesses of Parent or the Company or their respective Affiliates) if the taking of such efforts or action, individually or in the aggregate, has resulted or would reasonably be expected to result in a Burdensome Condition; provided, further, that notwithstanding anything contained in this Agreement to the contrary, in no event shall Parent, Merger Sub or any Affiliate of Parent be required to pursue or defend any Claim against CFIUS in connection with the transactions contemplated hereby, including the Merger. Nothing in this Section 6.03 shall obligate the Parent, the Company or any of their respective Affiliates to take any action that is not conditioned on the Closing.
(e) Parent shall promptly notify the Company and the Company shall notify Parent other of any notice or other communication from any Person alleging that such Person’s Consent is or may be required in connection with the MergerTransactions, and in each case to keep the other Party reasonably informed with respect thereto.
(e) Prior to the Closing, Seller shall use its reasonable best efforts to obtain the written Consent, in form and substance reasonably acceptable to Purchaser, of (i) the third parties set forth in Section 4.05(e)(i) of the Seller Disclosure Letter and (ii) any other third party (other than a Governmental Authority) listed on Section 4.05(e)(ii) of the Seller Disclosure Letter; provided, however, that Seller, with respect to the those Consents in clause (i), shall not be required to expend material amounts of money, commence any litigation or offer or grant any accommodation (financial or otherwise) to any such third party or any other Person. The Purchaser Group shall use its reasonable best efforts to assist Seller in obtaining each such Consent. Notwithstanding the foregoing, the receipt of any such Consent shall not be a condition to any Party’s obligation to effect the Closing.
Appears in 1 contract
Further Actions; Regulatory Approvals; Required Actions. (a) Subject to the terms and conditions of this Agreement, each of the Parties shall use its reasonable best efforts to take, or cause to be taken, all actions, and do, or cause to be done, and assist and cooperate with the other Parties in doing, all things necessary to cause the conditions to the Closing set forth in Article VII to be satisfied as promptly as reasonably practicable and or to effect the Closing as promptly as reasonably practicable thereafterpracticable, including (i) making all necessary Filings with Governmental Entities or third parties, (ii) obtaining the Required Consents and any all other third-party Consents that are necessary, proper or advisable to consummate the Merger, (iii) obtaining the Required Statutory Approvals, the Required State Approvals and all other Consents of Governmental Entities that are necessary, proper or advisable to consummate the Merger and the other transactions contemplated hereby and (iv) executing and delivering any additional instruments that are necessary, proper or advisable to consummate the Merger and the other transactions contemplated hereby.
(b) In connection with and without limiting the generality of Section 6.03(a) and subject to the obligations of Section 6.06,
(i) ), each of Parent and the Company shall shall:
(i) make or cause to be made, in consultation and cooperation with the other, at a mutually agreeable time after the date of this Agreement, (1) an appropriate filing of a Notification and Report Form pursuant to the HSR Act relating to the Merger, (2) all other necessary Filings relating to the Merger with other Governmental Entities under any other Antitrust Law, and (3) all necessary filings with the U.S. Federal Communications Commission;
(ii) each of Parent and the Company shall use reasonable best efforts to obtain CFIUS Approval, which shall include (1) preparing and filing a declaration with CFIUS with respect to the transactions contemplated by this Agreement as promptly as practicable after the date of this Agreement and in any event within twenty (20) Business Days (unless otherwise agreed by the Parties) and (2), if applicable, as promptly as practicable, and in any event, within twenty (20) Business Days (unless otherwise agreed by the Parties) following receipt of written notification (including by email) from CFIUS that, based on its assessment of the declaration, CFIUS requests that the parties file a joint voluntary notice of the transactions contemplated by this Agreement, prefiling and filing a final joint voluntary notice with CFIUS with respect to the transactions contemplated by this Agreement, in each case pursuant to the DPA;
(iii) other than those filings referenced in Section 6.03(b)(i) and Section 6.03(b)(ii), the Company shall make or cause to be made, in consultation and cooperation with and upon consent of Parent, such consent not to be unreasonably withheld, conditioned, or delayed, as promptly as reasonably practicable after the date of this Agreement and in any event within seventy-five sixty (7560) days after the date of this Agreement, which may be extended by mutual agreement of the Parties (such consent not to be unreasonably withheld, conditioned or delayed)Parties, all necessary Filings with other Governmental Entities relating to the Merger, including any such Filings necessary to obtain any Required Statutory Approval and any Required State Approval;
(iviii) each of Parent and the Company shall furnish to the other all assistance, cooperation and information reasonably required for any such Filing made by such Party and in order to achieve the effects set forth in this Section 6.03;
(viv) unless prohibited by applicable Law or by a Governmental Entity, each of Parent and the Company shall give the other Parties Party reasonable prior notice of any such Filing and, to the extent reasonably practicable, of any written or oral communication with any Governmental Entity relating to the Merger (including with respect to any of the actions referred to in this Section 6.03(b)) and, to the extent reasonably practicable, permit the other to review and discuss in advance, and consider in good faith the views and comments of, and secure the participation of (including supplying appropriate witnesses to the extent necessary or advisable)of, the other in connection with any such Filing (except for HSR Act filings) or communication;
(viv) each of Parent and the Company shall respond as promptly as reasonably practicable under the circumstances (and, with respect to CFIUS, in any event, no later than the applicable timeline requested by CFIUS pursuant to the DPA, including any extensions granted thereunder) to any inquiries directed to such Party received from any Governmental Entity or any other authority enforcing the DPA or applicable Antitrust Laws for additional information, documentation, certifications information or other materials documentation in connection with the CFIUS Approval, antitrust, competition or similar matters (including a “second request” under the HSR Act) and not extend any waiting period under the HSR Act or enter into any agreement with any such Governmental Entity or other authorities not to consummate the Merger, except with the prior written consent of the other Parties, such consent not to be unreasonably withheld, conditioned, or delayedParty;
(viivi) each of Parent and the Company shall make an appropriate response to provide any requests made of such Party information requested by any Governmental Entity in connection with any review or investigation of the transactions contemplated by this Agreement; and and
(viiivii) unless prohibited by applicable Law or a Governmental Entity, to the extent reasonably practicable, each of Parent and the Company shall (1A) not participate in or attend any meeting, telephone call or conference meeting or engage in any substantive conversation with any Governmental Entity (including any member or representative of any Governmental Entity’s staff) regarding specific approval in respect of the Merger without the other PartiesParty, (2B) to the extent reasonably practicable, give the other reasonable prior notice of and invitation to any such meeting, telephone call or conference meeting or conversation (in each case, with full participation rights) and considering in good faith the views of the other Party in connection therewith, and, in the event one Party is prohibited by applicable Law or by the applicable Governmental Entity from participating in or attending any such meeting, telephone call or conference meeting or engaging in any such conversation, keep such Party apprised (including by providing summaries, if applicable) with respect thereto, (3) cooperate in the filing of any substantive memoranda, white papers, filings, pleadings, correspondence, responses or other written communications explaining or defending or otherwise in connection with this Agreement or the Merger, articulating any regulatory or competitive argument or responding to requests or objections made by any Governmental Entity or any intervenor in any proceeding relating to a Required Approval and (4) furnish the other Parties with copies (including any drafts submitted to a Governmental Entity) of all substantive correspondence, Filings (except HSR Act filings) and communications (and memoranda setting forth the substance thereof) between it and its Affiliates and their respective Representatives on the one hand, and any Governmental Entity or members of any Governmental Entity’s staff, on the other hand, with respect to this Agreement or the Merger; provided that the Parties shall be permitted to designate any correspondence, Filing or communication as “outside counsel only” to the extent such correspondence, Filing or communication contains commercially sensitive information and the receiving outside counsel shall not provide these materials to the Party it represents; provided, further, any information required to be provided pursuant to this Section 6.03(b)(viii) may be redacted (A) to remove references concerning the valuation of the Company, (B) as necessary to comply with contractual arrangements, (C) as necessary to comply with applicable Law, (D) to remove any “personal identifier information” (as defined in the DPA), and (E) as necessary to address reasonable privilege or confidentiality concerns. For the avoidance of doubt, this Section 6.03(b) shall not apply to Tax matters.
(c) Parent shall not, and shall not knowingly cause its Affiliates to, (I) enter into any transaction to acquire any asset, property, business or Person (by way of merger, consolidation, share exchange, investment, other business combination, asset, stock or equity purchase, or otherwise) or (II) enter into any new commercial activities or businesses unrelated to the transactions contemplated by this Agreement in the State of Minnesota or the State of Wisconsin, in each case of clause (I) and clause (II), that would reasonably be expected to materially increase the risk of (w) not obtaining any Required Approval, (x) not making any Consent or Filing contemplated by this Section 6.03 or (y) materially delaying the receipt of any Required Approval or the making of any making any Consent or Filing contemplated by this Section 6.03. In furtherance of and without limiting any of Parent’s covenants and agreements under this Section 6.03 and Section 6.06, Parent shall use its reasonable best efforts to avoid or eliminate each and every impediment that may be asserted by a Governmental Entity so as to enable the Closing to occur as soon as reasonably possible, which such reasonable best efforts shall include the following:
(i) defending through litigation on the merits, any Claim asserted in any court or other proceeding by any Person, including any Governmental Entity, that seeks to or could prevent or prohibit or impede, interfere with or materially delay the consummation of the Closing, and shall have the right, but not the obligation, to appeal an adverse decision on the merits;
(ii) proposing, negotiating, committing to and effecting, by consent decree, hold separate order or otherwise, the sale, divestiture, licensing or disposition of any assets or businesses of Parent or the Company or the Company Subsidiaries, including entering into customary ancillary agreements on commercially reasonable terms relating to any such sale, divestiture, licensing or disposition;
(iii) agreeing to any limitation on the conduct of Parent (including, after the Closing, the Surviving Corporation and the Company Subsidiaries); and
(iv) agreeing to take any other action as may be required by a Governmental Entity in order to effect each of the following: (1) obtaining all Required Approvals as soon as reasonably possible and in any event before the End Date, (2) having vacated, lifted, dissolved, reversed or overturned any Judgment that is in effect that prohibits, prevents or restricts the consummation of, or impedes, interferes with or materially delays the Closing and (3) effecting the expiration or termination of any waiting period, which would otherwise have the effect of preventing, prohibiting or restricting consummation of the Closing or impeding, interfering with or materially delaying the Closing.
(d) Notwithstanding anything to the contrary, nothing in this Section 6.03 (other than the first sentence of Section 6.03(c)) shall require Parent to take, or agree to take, any action (other than with respect to any restrictions on information sharing or any other action which is not material to Parent or such Person) related to (x) any of its Affiliates, (y) any Sponsor or their respective direct or indirect portfolio companies owned, managed, advised or controlled by any of the Sponsors or any of their respective Affiliates or (z) any limited partner or other direct or indirect investors in any investment fund affiliated with, advised or managed by any Sponsor or any of their respective Affiliates, or any of the respective Affiliates of any such limited partners or investors; provided, further, that the provisions of this Section 6.03 shall not be construed to (x) require Parent, Merger Sub or any Affiliate of Parent or (y) permit the Company without the prior written consent of Parent (which consent shall not to be unreasonably withheld, conditioned, or delayed), to undertake any efforts or take any action (including accepting any terms, conditions, liabilities, obligations, commitment, sanctions or other measures and proposing, negotiating, committing to and effect, by consent decree, hold separate order or otherwise, the sale, divestiture, licensing or disposition of assets or businesses of Parent or the Company or their respective Affiliates) if the taking of such efforts or action, individually or in the aggregate, has resulted or would reasonably be expected to result in a Burdensome Condition; provided, further, that notwithstanding anything contained in this Agreement to the contrary, in no event shall Parent, Merger Sub or any Affiliate of Parent be required to pursue or defend any Claim against CFIUS in connection with the transactions contemplated hereby, including the Merger. Nothing in this Section 6.03 shall obligate the Parent, the Company or any of their respective Affiliates to take any action that is not conditioned on the Closing.
(e) Parent shall promptly notify the Company and the Company shall notify Parent of any notice or other communication from any Person alleging that such Person’s Consent is or may be required in connection with the Merger.,
Appears in 1 contract
Samples: Merger Agreement
Further Actions; Regulatory Approvals; Required Actions. (a) Subject to the terms and conditions of this Agreement, each of the Parties shall use its reasonable best efforts to take, or cause to be taken, all actions, and do, or cause to be done, and assist and cooperate with the other Parties in doing, all things necessary to cause the conditions to the Closing set forth in Article VII to be satisfied as promptly as reasonably practicable and or to effect the Closing as promptly as reasonably practicable thereafterpracticable, including (i) making all necessary Filings with Governmental Entities or third parties, (ii) obtaining the Required Consents and any all other third-party Consents that are necessary, proper or advisable to consummate the Merger, (iii) obtaining the Required Statutory Approvals, the Required State Approvals and all other Consents of Governmental Entities that are necessary, proper or advisable to consummate the Merger and the other transactions contemplated hereby and (iv) executing and delivering any additional instruments that are necessary, proper or advisable to consummate the Merger and the other transactions contemplated hereby.
(b) In connection with and without limiting the generality of Section 6.03(a) and subject to the obligations of Section 6.06,
(i) ), each of Parent and the Company shall shall:
(i) make or cause to be made, in consultation and cooperation with the other, at a mutually agreeable time after the date of this Agreement, (1) an appropriate filing of a Notification and Report Form pursuant to the HSR Act relating to the Merger, (2) all other necessary Filings relating to the Merger with other Governmental Entities under any other Antitrust Law, and (3) all necessary filings with the U.S. Federal Communications Commission;
(ii) each of Parent and the Company shall use reasonable best efforts to obtain CFIUS Approval, which shall include (1) preparing and filing a declaration with CFIUS with respect to the transactions contemplated by this Agreement as promptly as practicable after the date of this Agreement and in any event within twenty (20) Business Days (unless otherwise agreed by the Parties) and (2), if applicable, as promptly as practicable, and in any event, within twenty (20) Business Days (unless otherwise agreed by the Parties) following receipt of written notification (including by email) from CFIUS that, based on its assessment of the declaration, CFIUS requests that the parties file a joint voluntary notice of the transactions contemplated by this Agreement, prefiling and filing a final joint voluntary notice with CFIUS with respect to the transactions contemplated by this Agreement, in each case pursuant to the DPA;
(iii) other than those filings referenced in Section 6.03(b)(i) and Section 6.03(b)(ii), the Company shall make or cause to be made, in consultation and cooperation with and upon consent of Parent, such consent not to be unreasonably withheld, conditioned, or delayed, as promptly as reasonably practicable after the date of this Agreement and in any event within seventy-five sixty (7560) days after the date of this Agreement, which may be extended by mutual agreement of the Parties (such consent not to be unreasonably withheld, conditioned or delayed)Parties, all necessary Filings with other Governmental Entities relating to the Merger, including any such Filings necessary to obtain any Required Statutory Approval and any Required State Approval;
(iviii) each of Parent and the Company shall furnish to the other all assistance, cooperation and information reasonably required for any such Filing made by such Party and in order to achieve the effects set forth in this Section 6.03;
(viv) unless prohibited by applicable Law or by a Governmental Entity, each of Parent and the Company shall give the other Parties Party reasonable prior notice of any such Filing and, to the extent reasonably practicable, of any written or oral communication with any Governmental Entity relating to the Merger (including with respect to any of the actions referred to in this Section 6.03(b)) and, to the extent reasonably practicable, permit the other to review and discuss in advance, and consider in good faith the views and comments of, and secure the participation of (including supplying appropriate witnesses to the extent necessary or advisable)of, the other in connection with any such Filing (except for HSR Act filings) or communication;
(viv) each of Parent and the Company shall respond as promptly as reasonably practicable under the circumstances (and, with respect to CFIUS, in any event, no later than the applicable timeline requested by CFIUS pursuant to the DPA, including any extensions granted thereunder) to any inquiries directed to such Party received from any Governmental Entity or any other authority enforcing the DPA or applicable Antitrust Laws for additional information, documentation, certifications information or other materials documentation in connection with the CFIUS Approval, antitrust, competition or similar matters (including a “second request” under the HSR Act) and not extend any waiting period under the HSR Act or enter into any agreement with any such Governmental Entity or other authorities not to consummate the Merger, except with the prior written consent of the other Parties, such consent not to be unreasonably withheld, conditioned, or delayedParty;
(viivi) each of Parent and the Company shall make an appropriate response to provide any requests made of such Party information requested by any Governmental Entity in connection with any review or investigation of the transactions contemplated by this Agreement; and and
(viiivii) unless prohibited by applicable Law or a Governmental Entity, to the extent reasonably practicable, each of Parent and the Company shall (1A) not participate in or attend any meeting, telephone call or conference meeting or engage in any substantive conversation with any Governmental Entity (including any member or representative of any Governmental Entity’s staff) regarding specific approval in respect of the Merger without the other PartiesParty, (2B) to the extent reasonably practicable, give the other reasonable prior notice of and invitation to any such meeting, telephone call or conference meeting or conversation (in each case, with full participation rights) and considering in good faith the views of the other Party in connection therewith, and, in the event one Party is prohibited by applicable Law or by the applicable Governmental Entity from participating in or attending any such meeting, telephone call or conference meeting or engaging in any such conversation, keep such Party apprised (including by providing summaries, if applicable) with respect thereto, (3C) cooperate in the filing of any substantive memoranda, white papers, filings, pleadings, correspondence, responses correspondence or other written communications explaining or defending or otherwise in connection with this Agreement or the Merger, articulating any regulatory or competitive argument or responding to requests or objections made by any Governmental Entity or any intervenor in any proceeding relating to a Required Approval and (4D) furnish the other Parties Party with copies (including any drafts submitted to a Governmental Entity) of all substantive correspondence, Filings (except HSR Act filings) and communications (and memoranda setting forth the substance thereof) between it and its Affiliates and their respective Representatives on the one hand, and any Governmental Entity or members of any Governmental Entity’s staff, on the other hand, with respect to this Agreement or the Merger; provided provided, that the Parties shall be permitted to designate redact any correspondence, Filing or communication as “outside counsel only” to the extent such correspondence, Filing or communication contains commercially sensitive information and the receiving outside counsel shall not provide these materials to the Party it represents; provided, further, any information required to be provided pursuant to this Section 6.03(b)(viii) may be redacted (A) to remove references concerning the valuation of the Company, (B) as necessary to comply with contractual arrangements, (C) as necessary to comply with applicable Law, (D) to remove any “personal identifier information” (as defined in the DPA), and (E) as necessary to address reasonable privilege or confidentiality concerns. For the avoidance of doubt, this Section 6.03(b) shall not apply to Tax matters.
(c) Parent shall not, and shall not knowingly cause its Affiliates not to, (I) enter into take any transaction to acquire action, including acquiring any asset, property, business or Person (by way of merger, consolidation, share exchange, investment, other business combination, asset, stock or equity purchase, or otherwise) or (II) enter into any new commercial activities or businesses unrelated to the transactions contemplated by this Agreement in the State of Minnesota or the State of Wisconsin, in each case of clause (I) and clause (II), that would could reasonably be expected to materially increase the risk of (w) not obtaining any Required Approval, (x) not or making any Consent or Filing contemplated by this Section 6.03 or (y) materially delaying the timely receipt of any Required Approval or the making of any making any Consent or Filing contemplated by this Section 6.03thereof. In furtherance of and without limiting any of Parent’s covenants and agreements under this Section 6.03 6.03, but subject to the other terms and conditions of this Section 6.066.03, Parent shall use its reasonable best efforts to avoid or eliminate each and every impediment that may be asserted by a Governmental Entity so as to enable the Closing to occur as soon as reasonably possible, which such reasonable best efforts shall include the following:
(i) defending through litigation on the merits, including appeals, any Claim asserted in any court or other proceeding by any Person, including any Governmental Entity, that seeks to or could prevent or prohibit or impede, interfere with or materially delay the consummation of the Closing, and shall have the right, but not the obligation, to appeal an adverse decision on the merits;
(ii) proposing, negotiating, committing to and effecting, by consent decree, hold separate order or otherwise, the sale, divestiture, licensing or disposition of any assets or businesses of Parent or its Affiliates or the Company or the Company Subsidiaries, including entering into customary ancillary agreements on commercially reasonable terms relating to any such sale, divestiture, licensing or disposition;
(iii) agreeing to any limitation on the conduct of Parent or its Affiliates (including, after the Closing, the Surviving Corporation and the Company Subsidiaries); and
(iv) agreeing to take any other action as may be required by a Governmental Entity in order to effect each of the following: (1A) obtaining all Required Statutory Approvals and Required State Approvals as soon as reasonably possible and in any event before the End Date, (2B) avoiding the entry of, or having vacated, lifted, dissolved, reversed or overturned any Judgment Judgment, whether temporary, preliminary or permanent, that is in effect that prohibits, prevents or restricts the consummation of, or impedes, interferes with or materially delays delays, the Closing and (3C) effecting the expiration or termination of any waiting period, which would otherwise have the effect of preventing, prohibiting or restricting consummation of the Closing or impeding, interfering with or materially delaying the Closing.
(d) Notwithstanding ; provided that, notwithstanding anything to the contrary, nothing contained in this Section 6.03 (other than the first sentence of Section 6.03(c)) shall require Parent to takeAgreement, or agree to take, any action (other than with respect to any restrictions on information sharing or any other action which is not material to Parent or such Person) related to (x) any of its Affiliates, (y) any Sponsor or their respective direct or indirect portfolio companies owned, managed, advised or controlled by any of the Sponsors or any of their respective Affiliates or (z) any limited partner or other direct or indirect investors in any investment fund affiliated with, advised or managed by any Sponsor or any of their respective Affiliates, or any of the respective Affiliates of any such limited partners or investors; provided, further, that the provisions of this Section 6.03 shall not be construed to (xi) require Parent, Merger Sub or any Affiliate Subsidiary of Parent or (yii) permit the Company or any Company Subsidiary without the prior written consent of Parent (which consent shall not to be unreasonably withheld, conditioned, or delayed)Parent, to undertake any efforts or take any action (including accepting any terms, conditions, liabilities, obligations, commitment, sanctions or other measures and proposing, negotiating, committing to and effect, by consent decree, hold separate order or otherwise, the sale, divestiture, licensing or disposition of assets or businesses of Parent or the Company or their respective AffiliatesSubsidiaries) if the taking of such efforts or action, individually or in the aggregate, has resulted or would reasonably be expected to result in a Burdensome Condition; provided, further, that notwithstanding .
(d) Notwithstanding anything contained in this Agreement Section 6.03 to the contrary, in no event (i) Parent shall Parenthave primary responsibility for, Merger Sub and shall take the lead in, scheduling and conducting any meeting with any Governmental Entity, coordinating and making any applications and filings with, and resolving any investigation or other inquiry of, any Affiliate of agency or other Governmental Entity, obtaining the Parent be required Required Statutory Approvals and the Company Required Statutory Approvals, the Required State Approvals, Required Consents, Consents, Permits and other approvals and confirmations from any Governmental Entity necessary, proper or advisable to pursue or defend any Claim against CFIUS in connection consummate the Merger; provided, that, Parent agrees to consult with the transactions contemplated hereby, including the MergerCompany reasonably in advance of taking any such action. Nothing in this Section 6.03 shall obligate the Parent, the Company or any of their respective Affiliates to take any action that is not conditioned on the Closing.
(e) Parent shall promptly notify the Company and the Company shall notify Parent of any notice or other communication from any Person alleging that such Person’s Consent is or may be required in connection with the Merger.
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