HSR Act and Other Approvals. (a) Subject to the terms and conditions of this Agreement, from the date hereof until the Closing Date, each of the Parties shall use its commercially reasonable efforts to take, or cause to be taken, all actions, and to do, or cause to be done and cooperate with each other in order to do, all things necessary, proper or advisable (subject to any applicable laws) to consummate the transactions contemplated hereby as promptly as practicable, including the preparation and filing of all reports, forms, registrations, documents, instruments and notices required to be filed to consummate the transactions contemplated hereby, and the taking of such actions as are necessary to seek any requisite consents, authorizations or approvals from any Person or Governmental Authority; provided that the Seller’s Shareholders and the Companies shall split equally with Purchaser the out of pocket fees paid to a Governmental Authority in connection with the HSR Act filing. Purchaser agrees that the Seller, Seller’s Shareholders and the Companies shall not have any liability to the Purchaser (and the Purchaser shall not be entitled to assert any claims) arising out of or relating to the failure to obtain any consents or because of the default, acceleration or termination of or loss of right under any contract or other agreement or this Agreement as a result thereof. Notwithstanding anything in this Agreement to the contrary, the provisions of Sections 6.5(c) and (d), and not the provisions of this Section 6.5(a), shall apply with respect to the subject matter of Sections 6.5(c) and (d). (b) To the extent permitted by applicable law, each Party shall consult with the other Parties with respect to, and provide any information and assistance reasonably requested by the other Parties in connection with, all material filings made with any Governmental Authority in connection with this Agreement and the transactions contemplated hereby. If any Party or any of its Affiliates receives a request for information or documentary material from any Governmental Authority with respect to this Agreement or any of the transactions contemplated hereby, then such Party shall endeavor in good faith to make, or cause to be made, as soon as reasonably practicable and, to the extent permitted by applicable law, after consultation with, and the good faith consideration of the views of, the other Parties, an appropriate response in substantial compliance with such request. (c) In addition to and without limiting any of the other covenants of the Parties contained in this Section 6.5, the Parties shall use reasonable best efforts to (i) prepare and make any appropriate filings under the HSR Act as promptly as practicable after the execution of this Agreement (and in any event no later than two (2) Business Days following the date of this Agreement), (ii) substantially comply, at the earliest practicable date, with any request for additional information or documentary material received by them, or any of their respective Affiliates from the Federal Trade Commission (“FTC”) or the Antitrust Division of the Department of Justice (“DOJ”) pursuant to the HSR Act or from any state attorney general or other Governmental Authority in connection with antitrust matters concerning the transactions contemplated hereby, (iii) cooperate with and assist each other in connection with any filing under the HSR Act and in connection with attempting to resolve any antitrust investigation or other inquiry concerning the transactions contemplated hereby commenced by the FTC, the DOJ, any state attorney general or any other Governmental Authority, (iv) attempt to resolve such objections, if any, as may be asserted with respect to the transactions contemplated hereby under any antitrust law so as to enable the Closing to occur as soon as reasonably possible, and (v) advise the other Parties promptly of any communication received by such Party from the FTC, the DOJ, any state attorney general or any other Governmental Authority regarding any of the transactions contemplated hereby, and, subject to applicable law, permit the other Parties to review in advance, and consider in good faith the views of the other Parties in connection with, any proposed communication to the FTC, the DOJ, any state attorney general or any other Governmental Authority regarding the transactions contemplated hereby. In addition, no Party shall agree to participate in any substantive meeting or discussion with, submit any materials to or take any material substantive position with the FTC, the DOJ, any state attorney general or any other Governmental Authority in respect of any filings, investigation or another inquiry regarding the transactions contemplated hereby, or enter into any agreements with the FTC, the DOJ, any state attorney general or any other Governmental Authority, including, without limitation, extending any antitrust waiting periods, unless it consults with, and considers in good faith the views of, the other Parties in advance and, to the extent permitted by the FTC, the DOJ, any state attorney general or any other Governmental Authority, gives the other Parties the opportunity to attend and participate. Each party shall furnish counsel to the other Parties with copies of all correspondence, filings and communications between them and their Affiliates and representatives, on the one hand, and any Governmental Authority or members of their staffs, on the other hand, regarding the transactions contemplated hereby. Notwithstanding the foregoing or anything in this Agreement to the contrary, Purchaser shall, on behalf of the Parties, control and lead all communications and strategy relating to any inquiry by any Governmental Authority and lead the process to obtain any necessary approval, consents, waivers, authorizations, and other confirmations from any Governmental Authority, subject to good faith consultations with the Company. (d) Each Party will use reasonable best efforts to take such action as may be required to cause the expiration of the waiting period under the HSR Act as promptly as practicable with respect to the transactions contemplated by this Agreement and in any event prior to the Expiration Date. Each Party will use reasonable best efforts to resolve any inquiry or objections as may be asserted by any Governmental Authority under the Antitrust Laws with respect to the transactions contemplated by this Agreement. Concurrently with the filing of notifications under the HSR Act or as soon thereafter as practicable, the Parties shall each request early termination of the applicable waiting period under the HSR Act. In addition to and without limiting the foregoing, the Parties agree that if any Governmental Authority objects to or prohibits the closing of any of the transactions contemplated by this Agreement under any Antitrust Law, the Parties shall work together in good faith and with reasonable best efforts to agree upon a mutually acceptable solution to the objection or prohibition. If, after ten days following formal receipt of such an objection or prohibition by any Governmental Authority and no mutually acceptable solution can be agreed upon, the Parties may terminate this Agreement. Notwithstanding the above, no Party may terminate this Agreement under the above provision if the Governmental Authority will permit the transactions contemplated by this Agreement upon the exclusion from these transactions and the separate sale of ten or less stores identified by the Governmental Authority. The Parties shall cooperate to sell the identified stores and, subject to the occurrence of Closing under this Agreement, provide Purchaser the proceeds from such sale(s). Within two Business Days after the closing of the sale of the identified stores, Xxxxxxxx shall pay to Purchaser one half of (i) the product of the total number of stores required to be sold minus five, multiplied by (ii) the average store price differential, calculated as the amount by which (A) the trailing twelve months EBITDA for all stores required to be sold, multiplied by the multiple of EBITDA paid by Purchaser in this transaction, exceeds (B) the total proceeds received by Purchaser for the sale(s) of all such identified stores required to be sold, divided by (C) the number of stores required to be sold. The Purchase Price shall not otherwise be reduced. As a further inducement for the Seller to enter into this Agreement, the Purchaser covenants and agrees that it will not, either directly or indirectly, affiliate in any manner with any third party to fund, consummate or participate in any manner with the transactions contemplated by this Agreement that could adversely impact the ability to obtain consents from any Governmental Authority without the express written consent of the Seller. The Purchaser acknowledges and agrees that Seller shall under no circumstances be obligated to so consent and the Seller may reasonably withhold its consent in its sole and complete discretion. The Purchaser shall advise the Seller in writing of the identity and scope of participation of each such third party within five (5) Business Days of the date hereof. The Seller shall advise the Purchaser of the grant or withholding of consent within two (2) Business Days of receipt of the complete information with respect to such third party as described above. In the event the Purchaser or its Affiliates intends to provide or share any Confidential Information of the Seller or the Companies to or with any third party prior to the Closing Date, the Purchaser shall cause such third party, as a condition precedent to receiving such information, to enter into a confidentiality agreement with the Seller in form and substance substantially the same as the Confidentiality Agreement.
Appears in 1 contract
Samples: Equity Purchase Agreement (Caseys General Stores Inc)
HSR Act and Other Approvals. (a) Subject to On the terms and conditions of this Agreement, from the date hereof until the Closing Integration Commencement Date, each of the Parties shall use its commercially reasonable efforts to take, or cause to be taken, all actions, and to do, or cause to be done and cooperate with each other in order to do, all things necessary, proper or advisable (subject to any applicable laws) to consummate the transactions contemplated hereby as promptly as practicable, including the preparation and filing of all reports, forms, registrations, documents, instruments and notices required to be filed to consummate the transactions contemplated hereby, and the taking of such actions as are necessary to seek any requisite consents, authorizations or approvals from any Person or Governmental Authority; provided that the Seller’s Shareholders and the Companies shall split equally with Purchaser the out of pocket fees paid to a Governmental Authority in connection with the HSR Act filing. Purchaser agrees that the Seller, Seller’s Shareholders and the Companies shall not have any liability to the Purchaser (and the Purchaser shall not be entitled to assert any claims) arising out of or relating to the failure to obtain any consents or because of the default, acceleration or termination of or loss of right under any contract or other agreement or this Agreement as a result thereof. Notwithstanding anything in this Agreement to the contrary, the provisions of Sections 6.5(c) and (d), and not the provisions of this Section 6.5(a), shall apply with respect to the subject matter of Sections 6.5(c) and (d).
(b) To the extent permitted by applicable law, each Party shall consult with the other Parties with respect to, and provide any information and assistance reasonably requested by the other Parties in connection with, all material filings made with any Governmental Authority in connection with this Agreement and the transactions contemplated hereby. If any Party or any of its Affiliates receives a request for information or documentary material from any Governmental Authority with respect to this Agreement or any of the transactions contemplated hereby, then such Party shall endeavor in good faith to make, or cause to be made, as soon as reasonably practicable and, to the extent permitted by applicable law, after consultation with, and the good faith consideration of the views of, the other Parties, an appropriate response in substantial compliance with such request.
(c) In addition to and without limiting any of the other covenants of the Parties contained in this Section 6.5, the Parties shall use reasonable best efforts to (i) prepare and make any appropriate filings under the HSR Act as promptly as practicable after the execution of this Agreement (and in any event no later than two (2) Business Days following the date of this Agreement), (ii) substantially comply, at the earliest practicable date, with any request for additional information or documentary material received by them, or any of their respective Affiliates from the Federal Trade Commission (“FTC”) or the Antitrust Division of the Department of Justice (“DOJ”) pursuant to the HSR Act or from any state attorney general or other Governmental Authority in connection with antitrust matters concerning the transactions contemplated hereby, (iii) cooperate with and assist each other in connection with any filing under the HSR Act and in connection with attempting to resolve any antitrust investigation or other inquiry concerning the transactions contemplated hereby commenced by the FTC, the DOJ, any state attorney general or any other Governmental Authority, (iv) attempt to resolve such objections, if any, as may be asserted with respect to the transactions contemplated hereby under any antitrust law so as to enable the Closing to occur as soon as reasonably possible, and (v) advise the other Parties promptly of any communication received by such Party from the FTC, the DOJ, any state attorney general or any other Governmental Authority regarding any of the transactions contemplated hereby, and, subject to applicable law, permit the other Parties to review in advance, and consider in good faith the views of the other Parties in connection with, any proposed communication to the FTC, the DOJ, any state attorney general or any other Governmental Authority regarding the transactions contemplated hereby. In addition, no Party shall agree to participate in any substantive meeting or discussion with, submit any materials to or take any material substantive position with the FTC, the DOJ, any state attorney general or any other Governmental Authority in respect of any filings, investigation or another inquiry regarding the transactions contemplated hereby, or enter into any agreements with the FTC, the DOJ, any state attorney general or any other Governmental Authority, including, without limitation, extending any antitrust waiting periods, unless it consults with, and considers in good faith the views of, the other Parties in advance and, to the extent permitted by the FTC, the DOJ, any state attorney general or any other Governmental Authority, gives the other Parties the opportunity to attend and participate. Each party shall furnish counsel to the other Parties with copies of all correspondence, filings and communications between them and their Affiliates and representatives, on the one hand, and any Governmental Authority or members of their staffs, on the other hand, regarding the transactions contemplated hereby. Notwithstanding the foregoing or anything in this Agreement to the contrary, Purchaser shall, on behalf of the Parties, control and lead all communications and strategy relating to any inquiry by any Governmental Authority and lead the process to obtain any necessary approval, consents, waivers, authorizations, and other confirmations from any Governmental Authority, subject to good faith consultations with the Company.
(d) Each Party will use reasonable best efforts to take such action as may be required to cause the expiration of the waiting period under the HSR Act as promptly as practicable with respect relating to the transactions contemplated by this Agreement and the Other Purchase Agreements shall have expired or been terminated, (ii) the Required Regulatory Approvals shall have been obtained or filed or shall have occurred and be in effect, and (iii) all other authorizations, consents, orders or approvals of, or regulations, declarations or filings with, or expirations of applicable waiting periods imposed by, any event prior to Authority necessary for the Expiration Date. Each Party will use reasonable best efforts to resolve any inquiry or objections as may be asserted by any Governmental Authority under the Antitrust Laws with respect to consummation of the transactions contemplated by this Agreement. Concurrently with , any other Operative Agreement or any Integration Agreement, including filings and consents required pursuant to other applicable antitrust and competition Laws, shall have been obtained or filed or shall have occurred and be in effect, except where the filing failure of notifications under which to be obtained or filed or to have occurred and be in effect, individually or in the HSR Act aggregate, would not have or as soon thereafter as practicablereasonably be expected to have a Parent Material Adverse Effect or a Company Material Adverse Effect or result in a violation of any criminal laws.
(b) On the Integration Commencement Date, the Parties there shall have been obtained or received and in effect (i) each request early termination of the applicable waiting period under Consents listed or described on Schedule 7.3(b) of the HSR Act. In addition Parent Disclosure Schedule, (ii) each of the Consents listed or described on Schedule 7.3(b) of the Company Disclosure Schedule and (iii) any other Consents from third Persons (other than Authorities) to and without limiting the foregoing, the Parties agree that if any Governmental Authority objects to or prohibits the closing of any of the transactions contemplated by this Agreement under any Antitrust Law, the Parties shall work together in good faith and with reasonable best efforts to agree upon a mutually acceptable solution to the objection or prohibition. If, after ten days following formal receipt of such an objection or prohibition by any Governmental Authority and no mutually acceptable solution can be agreed upon, the Parties may terminate this Agreement. Notwithstanding the above, no Party may terminate this Agreement under the above provision if the Governmental Authority will permit the transactions contemplated by this Agreement upon the exclusion from these transactions and the separate sale of ten or less stores identified by the Governmental Authority. The Parties shall cooperate to sell the identified stores and, subject to the occurrence of Closing under this Agreement, provide Purchaser the proceeds from such sale(s). Within two Business Days after the closing of the sale of the identified stores, Xxxxxxxx shall pay to Purchaser one half of (i) the product of the total number of stores required to be sold minus five, multiplied by (ii) the average store price differential, calculated as the amount by which (A) the trailing twelve months EBITDA for all stores required to be sold, multiplied by the multiple of EBITDA paid by Purchaser in this transaction, exceeds (B) the total proceeds received by Purchaser for the sale(s) of all such identified stores required to be sold, divided by (C) the number of stores required to be sold. The Purchase Price shall not otherwise be reduced. As a further inducement for the Seller to enter into this Agreement, the Purchaser covenants and agrees other Operative Agreements or any Integration Agreements that it will notmay be required under any Contract or License to which Parent, either directly US Acquisition Sub, US Acquisition Sub II, any Seller or indirectlyany Company, affiliate in or any manner with of their respective direct or indirect Subsidiaries, is a party or by which any third party to fund, consummate or participate in any manner with the transactions contemplated by this Agreement that could adversely impact the ability to obtain consents from any Governmental Authority without the express written consent of the Seller. The Purchaser acknowledges and agrees that Seller shall under no circumstances be obligated to so consent and the Seller may reasonably withhold its consent in its sole and complete discretion. The Purchaser shall advise the Seller in writing of the identity and scope of participation of each such third party within five (5) Business Days of the date hereof. The Seller shall advise the Purchaser of the grant or withholding of consent within two (2) Business Days of receipt of the complete information Persons is bound with respect to such third party as described above. In which the event failure to obtain or receive would, individually or in the Purchaser aggregate, have or its Affiliates intends reasonably be expected to provide have a Parent Material Adverse Effect or share any Confidential Information of the Seller or the Companies to or with any third party prior to the Closing Date, the Purchaser shall cause such third party, as a condition precedent to receiving such information, to enter into a confidentiality agreement with the Seller in form and substance substantially the same as the Confidentiality AgreementCompany Material Adverse Effect.
Appears in 1 contract
HSR Act and Other Approvals. (a) Subject to On the terms and conditions of this Agreement, from the date hereof until the Closing Integration Commencement Date, each of the Parties shall use its commercially reasonable efforts to take, or cause to be taken, all actions, and to do, or cause to be done and cooperate with each other in order to do, all things necessary, proper or advisable (subject to any applicable laws) to consummate the transactions contemplated hereby as promptly as practicable, including the preparation and filing of all reports, forms, registrations, documents, instruments and notices required to be filed to consummate the transactions contemplated hereby, and the taking of such actions as are necessary to seek any requisite consents, authorizations or approvals from any Person or Governmental Authority; provided that the Seller’s Shareholders and the Companies shall split equally with Purchaser the out of pocket fees paid to a Governmental Authority in connection with the HSR Act filing. Purchaser agrees that the Seller, Seller’s Shareholders and the Companies shall not have any liability to the Purchaser (and the Purchaser shall not be entitled to assert any claims) arising out of or relating to the failure to obtain any consents or because of the default, acceleration or termination of or loss of right under any contract or other agreement or this Agreement as a result thereof. Notwithstanding anything in this Agreement to the contrary, the provisions of Sections 6.5(c) and (d), and not the provisions of this Section 6.5(a), shall apply with respect to the subject matter of Sections 6.5(c) and (d).
(b) To the extent permitted by applicable law, each Party shall consult with the other Parties with respect to, and provide any information and assistance reasonably requested by the other Parties in connection with, all material filings made with any Governmental Authority in connection with this Agreement and the transactions contemplated hereby. If any Party or any of its Affiliates receives a request for information or documentary material from any Governmental Authority with respect to this Agreement or any of the transactions contemplated hereby, then such Party shall endeavor in good faith to make, or cause to be made, as soon as reasonably practicable and, to the extent permitted by applicable law, after consultation with, and the good faith consideration of the views of, the other Parties, an appropriate response in substantial compliance with such request.
(c) In addition to and without limiting any of the other covenants of the Parties contained in this Section 6.5, the Parties shall use reasonable best efforts to (i) prepare and make any appropriate filings under the HSR Act as promptly as practicable after the execution of this Agreement (and in any event no later than two (2) Business Days following the date of this Agreement), (ii) substantially comply, at the earliest practicable date, with any request for additional information or documentary material received by them, or any of their respective Affiliates from the Federal Trade Commission (“FTC”) or the Antitrust Division of the Department of Justice (“DOJ”) pursuant to the HSR Act or from any state attorney general or other Governmental Authority in connection with antitrust matters concerning the transactions contemplated hereby, (iii) cooperate with and assist each other in connection with any filing under the HSR Act and in connection with attempting to resolve any antitrust investigation or other inquiry concerning the transactions contemplated hereby commenced by the FTC, the DOJ, any state attorney general or any other Governmental Authority, (iv) attempt to resolve such objections, if any, as may be asserted with respect to the transactions contemplated hereby under any antitrust law so as to enable the Closing to occur as soon as reasonably possible, and (v) advise the other Parties promptly of any communication received by such Party from the FTC, the DOJ, any state attorney general or any other Governmental Authority regarding any of the transactions contemplated hereby, and, subject to applicable law, permit the other Parties to review in advance, and consider in good faith the views of the other Parties in connection with, any proposed communication to the FTC, the DOJ, any state attorney general or any other Governmental Authority regarding the transactions contemplated hereby. In addition, no Party shall agree to participate in any substantive meeting or discussion with, submit any materials to or take any material substantive position with the FTC, the DOJ, any state attorney general or any other Governmental Authority in respect of any filings, investigation or another inquiry regarding the transactions contemplated hereby, or enter into any agreements with the FTC, the DOJ, any state attorney general or any other Governmental Authority, including, without limitation, extending any antitrust waiting periods, unless it consults with, and considers in good faith the views of, the other Parties in advance and, to the extent permitted by the FTC, the DOJ, any state attorney general or any other Governmental Authority, gives the other Parties the opportunity to attend and participate. Each party shall furnish counsel to the other Parties with copies of all correspondence, filings and communications between them and their Affiliates and representatives, on the one hand, and any Governmental Authority or members of their staffs, on the other hand, regarding the transactions contemplated hereby. Notwithstanding the foregoing or anything in this Agreement to the contrary, Purchaser shall, on behalf of the Parties, control and lead all communications and strategy relating to any inquiry by any Governmental Authority and lead the process to obtain any necessary approval, consents, waivers, authorizations, and other confirmations from any Governmental Authority, subject to good faith consultations with the Company.
(d) Each Party will use reasonable best efforts to take such action as may be required to cause the expiration of the waiting period under the HSR Act as promptly as practicable with respect relating to the transactions contemplated by this Agreement and the Other Purchase Agreements shall have expired or been terminated, (ii) the Required Regulatory Approvals shall have been obtained or filed or shall have occurred and be in effect, and (iii) all other authorizations, consents, orders or approvals of, or regulations, declarations or filings with, or expirations of applicable waiting periods imposed by, any event prior to Authority necessary for the Expiration Date. Each Party will use reasonable best efforts to resolve any inquiry or objections as may be asserted by any Governmental Authority under the Antitrust Laws with respect to consummation of the transactions contemplated by this Agreement. Concurrently with , any other Operative Agreement or any Integration Agreement, including filings and consents required pursuant to other applicable antitrust and competition Laws, shall have been obtained or filed or shall have occurred and be in effect, except where the filing failure of notifications under which to be obtained or filed or to have occurred and be in effect, individually or in the HSR Act aggregate, would not have or as soon thereafter as practicablereasonably be expected to have a Parent Material Adverse Effect or a Company Material Adverse Effect or result in a violation of any criminal laws.
(b) On the Integration Commencement Date, the Parties there shall have been obtained or received and in effect (i) each request early termination of the applicable waiting period under Consents listed or described on Schedule 7.3(b) of the HSR Act. In addition Parent Disclosure Schedule, (ii) each of the Consents listed or described on Schedule 7.3(b) of the Company Disclosure Schedule and (iii) any other Consents from third Persons (other than Authorities) to and without limiting the foregoing, the Parties agree that if any Governmental Authority objects to or prohibits the closing of any of the transactions contemplated by this Agreement under any Antitrust Law, the Parties shall work together in good faith and with reasonable best efforts to agree upon a mutually acceptable solution to the objection or prohibition. If, after ten days following formal receipt of such an objection or prohibition by any Governmental Authority and no mutually acceptable solution can be agreed upon, the Parties may terminate this Agreement. Notwithstanding the above, no Party may terminate this Agreement under the above provision if the Governmental Authority will permit the transactions contemplated by this Agreement upon the exclusion from these transactions and the separate sale of ten or less stores identified by the Governmental Authority. The Parties shall cooperate to sell the identified stores and, subject to the occurrence of Closing under this Agreement, provide Purchaser the proceeds from such sale(s). Within two Business Days after the closing of the sale of the identified stores, Xxxxxxxx shall pay to Purchaser one half of (i) the product of the total number of stores required to be sold minus five, multiplied by (ii) the average store price differential, calculated as the amount by which (A) the trailing twelve months EBITDA for all stores required to be sold, multiplied by the multiple of EBITDA paid by Purchaser in this transaction, exceeds (B) the total proceeds received by Purchaser for the sale(s) of all such identified stores required to be sold, divided by (C) the number of stores required to be sold. The Purchase Price shall not otherwise be reduced. As a further inducement for the Seller to enter into this Agreement, the Purchaser covenants and agrees other Operative Agreements or any Integration Agreements that it will notmay be required under any Contract or License to which Parent, either directly US Acquisition Sub, Australia Acquisition Sub, any Seller or indirectlyany Company, affiliate in or any manner with of their respective direct or indirect Subsidiaries, is a party or by which any third party to fund, consummate or participate in any manner with the transactions contemplated by this Agreement that could adversely impact the ability to obtain consents from any Governmental Authority without the express written consent of the Seller. The Purchaser acknowledges and agrees that Seller shall under no circumstances be obligated to so consent and the Seller may reasonably withhold its consent in its sole and complete discretion. The Purchaser shall advise the Seller in writing of the identity and scope of participation of each such third party within five (5) Business Days of the date hereof. The Seller shall advise the Purchaser of the grant or withholding of consent within two (2) Business Days of receipt of the complete information Persons is bound with respect to such third party as described above. In which the event failure to obtain or receive would, individually or in the Purchaser aggregate, have or its Affiliates intends reasonably be expected to provide have a Parent Material Adverse Effect or share any Confidential Information of the Seller or the Companies to or with any third party prior to the Closing Date, the Purchaser shall cause such third party, as a condition precedent to receiving such information, to enter into a confidentiality agreement with the Seller in form and substance substantially the same as the Confidentiality AgreementCompany Material Adverse Effect.
Appears in 1 contract
HSR Act and Other Approvals. (a) Subject to On the terms and conditions of this Agreement, from the date hereof until the Closing Integration Commencement Date, each of the Parties shall use its commercially reasonable efforts to take, or cause to be taken, all actions, and to do, or cause to be done and cooperate with each other in order to do, all things necessary, proper or advisable (subject to any applicable laws) to consummate the transactions contemplated hereby as promptly as practicable, including the preparation and filing of all reports, forms, registrations, documents, instruments and notices required to be filed to consummate the transactions contemplated hereby, and the taking of such actions as are necessary to seek any requisite consents, authorizations or approvals from any Person or Governmental Authority; provided that the Seller’s Shareholders and the Companies shall split equally with Purchaser the out of pocket fees paid to a Governmental Authority in connection with the HSR Act filing. Purchaser agrees that the Seller, Seller’s Shareholders and the Companies shall not have any liability to the Purchaser (and the Purchaser shall not be entitled to assert any claims) arising out of or relating to the failure to obtain any consents or because of the default, acceleration or termination of or loss of right under any contract or other agreement or this Agreement as a result thereof. Notwithstanding anything in this Agreement to the contrary, the provisions of Sections 6.5(c) and (d), and not the provisions of this Section 6.5(a), shall apply with respect to the subject matter of Sections 6.5(c) and (d).
(b) To the extent permitted by applicable law, each Party shall consult with the other Parties with respect to, and provide any information and assistance reasonably requested by the other Parties in connection with, all material filings made with any Governmental Authority in connection with this Agreement and the transactions contemplated hereby. If any Party or any of its Affiliates receives a request for information or documentary material from any Governmental Authority with respect to this Agreement or any of the transactions contemplated hereby, then such Party shall endeavor in good faith to make, or cause to be made, as soon as reasonably practicable and, to the extent permitted by applicable law, after consultation with, and the good faith consideration of the views of, the other Parties, an appropriate response in substantial compliance with such request.
(c) In addition to and without limiting any of the other covenants of the Parties contained in this Section 6.5, the Parties shall use reasonable best efforts to (i) prepare and make any appropriate filings under the HSR Act as promptly as practicable after the execution of this Agreement (and in any event no later than two (2) Business Days following the date of this Agreement), (ii) substantially comply, at the earliest practicable date, with any request for additional information or documentary material received by them, or any of their respective Affiliates from the Federal Trade Commission (“FTC”) or the Antitrust Division of the Department of Justice (“DOJ”) pursuant to the HSR Act or from any state attorney general or other Governmental Authority in connection with antitrust matters concerning the transactions contemplated hereby, (iii) cooperate with and assist each other in connection with any filing under the HSR Act and in connection with attempting to resolve any antitrust investigation or other inquiry concerning the transactions contemplated hereby commenced by the FTC, the DOJ, any state attorney general or any other Governmental Authority, (iv) attempt to resolve such objections, if any, as may be asserted with respect to the transactions contemplated hereby under any antitrust law so as to enable the Closing to occur as soon as reasonably possible, and (v) advise the other Parties promptly of any communication received by such Party from the FTC, the DOJ, any state attorney general or any other Governmental Authority regarding any of the transactions contemplated hereby, and, subject to applicable law, permit the other Parties to review in advance, and consider in good faith the views of the other Parties in connection with, any proposed communication to the FTC, the DOJ, any state attorney general or any other Governmental Authority regarding the transactions contemplated hereby. In addition, no Party shall agree to participate in any substantive meeting or discussion with, submit any materials to or take any material substantive position with the FTC, the DOJ, any state attorney general or any other Governmental Authority in respect of any filings, investigation or another inquiry regarding the transactions contemplated hereby, or enter into any agreements with the FTC, the DOJ, any state attorney general or any other Governmental Authority, including, without limitation, extending any antitrust waiting periods, unless it consults with, and considers in good faith the views of, the other Parties in advance and, to the extent permitted by the FTC, the DOJ, any state attorney general or any other Governmental Authority, gives the other Parties the opportunity to attend and participate. Each party shall furnish counsel to the other Parties with copies of all correspondence, filings and communications between them and their Affiliates and representatives, on the one hand, and any Governmental Authority or members of their staffs, on the other hand, regarding the transactions contemplated hereby. Notwithstanding the foregoing or anything in this Agreement to the contrary, Purchaser shall, on behalf of the Parties, control and lead all communications and strategy relating to any inquiry by any Governmental Authority and lead the process to obtain any necessary approval, consents, waivers, authorizations, and other confirmations from any Governmental Authority, subject to good faith consultations with the Company.
(d) Each Party will use reasonable best efforts to take such action as may be required to cause the expiration of the waiting period under the HSR Act as promptly as practicable with respect relating to the transactions contemplated by this Agreement and the Other Purchase Agreements shall have expired or been terminated, (ii) the Required Regulatory Approvals and the Required Securities Approvals shall have been obtained or filed or shall have occurred and be in effect, and (iii) all other authorizations, consents, orders or approvals of, or regulations, declarations or filings with, or expirations of applicable waiting periods imposed by, any event prior to Authority necessary for the Expiration Date. Each Party will use reasonable best efforts to resolve any inquiry or objections as may be asserted by any Governmental Authority under the Antitrust Laws with respect to consummation of the transactions contemplated by this Agreement. Concurrently with , any other Operative Agreement or any Integration Agreement, including filings and consents required pursuant to other applicable antitrust and competition Laws, shall have been obtained or filed or shall have occurred and be in effect, except where the filing failure of notifications under which to be obtained or filed or to have occurred and be in effect, individually or in the HSR Act aggregate, would not have or as soon thereafter as practicablereasonably be expected to have a Parent Material Adverse Effect or a Company Material Adverse Effect or result in a violation of any criminal laws.
(b) On the Integration Commencement Date, the Parties there shall have been obtained or received and in effect (i) each request early termination of the applicable waiting period under Consents listed or described on Schedule 7.3(b) of the HSR Act. In addition Parent Disclosure Schedule, (ii) each of the Consents listed or described on Schedule 7.3(b) of the Company Disclosure Schedule and (iii) any other Consents from third Persons (other than Authorities) to and without limiting the foregoing, the Parties agree that if any Governmental Authority objects to or prohibits the closing of any of the transactions contemplated by this Agreement under any Antitrust Law, the Parties shall work together in good faith and with reasonable best efforts to agree upon a mutually acceptable solution to the objection or prohibition. If, after ten days following formal receipt of such an objection or prohibition by any Governmental Authority and no mutually acceptable solution can be agreed upon, the Parties may terminate this Agreement. Notwithstanding the above, no Party may terminate this Agreement under the above provision if the Governmental Authority will permit the transactions contemplated by this Agreement upon the exclusion from these transactions and the separate sale of ten or less stores identified by the Governmental Authority. The Parties shall cooperate to sell the identified stores and, subject to the occurrence of Closing under this Agreement, provide Purchaser the proceeds from such sale(s). Within two Business Days after the closing of the sale of the identified stores, Xxxxxxxx shall pay to Purchaser one half of (i) the product of the total number of stores required to be sold minus five, multiplied by (ii) the average store price differential, calculated as the amount by which (A) the trailing twelve months EBITDA for all stores required to be sold, multiplied by the multiple of EBITDA paid by Purchaser in this transaction, exceeds (B) the total proceeds received by Purchaser for the sale(s) of all such identified stores required to be sold, divided by (C) the number of stores required to be sold. The Purchase Price shall not otherwise be reduced. As a further inducement for the Seller to enter into this Agreement, the Purchaser covenants and agrees other Operative Agreements or any Integration Agreements that it will notmay be required under any Contract or License to which Parent, either directly any JLW Partnership or indirectlyany Company, affiliate in or any manner with of their respective direct or indirect Subsidiaries, is a party or by which any third party to fund, consummate or participate in any manner with the transactions contemplated by this Agreement that could adversely impact the ability to obtain consents from any Governmental Authority without the express written consent of the Seller. The Purchaser acknowledges and agrees that Seller shall under no circumstances be obligated to so consent and the Seller may reasonably withhold its consent in its sole and complete discretion. The Purchaser shall advise the Seller in writing of the identity and scope of participation of each such third party within five (5) Business Days of the date hereof. The Seller shall advise the Purchaser of the grant or withholding of consent within two (2) Business Days of receipt of the complete information Persons is bound with respect to such third party as described above. In which the event failure to obtain or receive would, individually or in the Purchaser aggregate, have or its Affiliates intends reasonably be expected to provide have a Parent Material Adverse Effect or share any Confidential Information of the Seller or the Companies to or with any third party prior to the Closing Date, the Purchaser shall cause such third party, as a condition precedent to receiving such information, to enter into a confidentiality agreement with the Seller in form and substance substantially the same as the Confidentiality AgreementCompany Material Adverse Effect.
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