HSR Act. (a) If required pursuant to the HSR Act, as promptly as practicable, BRPA and the Company shall use reasonable best efforts to (a) each prepare and file the notification required of it thereunder in connection with the Merger as soon as reasonably practicable but no later than twenty (20) Business Days following January 14, 2021, (b) promptly and in good faith respond to all information requested of it by the Federal Trade Commission and Department of Justice in connection with such notification and otherwise cooperate in good faith with each other and such Governmental Entities, (c) each request early termination of any waiting period under the HSR Act, and (d) submit, as soon as practicable, any other required applications or filings pursuant to any Antitrust Laws and furnish to the other Party as promptly as reasonably practicable all information required for any application or other filing required to be made pursuant to any Antitrust Law. BRPA and the Company shall substantially comply with any information or document requests by the Federal Trade Commission or the Department of Justice in connection with the Merger. BRPA and the Company shall (i) promptly inform the other of any substantive communication to or from the Federal Trade Commission, the Department of Justice or any other Governmental Entity regarding the Merger and permit counsel to the other Party an opportunity to review in advance, and each Party shall consider in good faith the views of such counsel in connection with, any proposed written communications by such Party to any Governmental Entity concerning the Merger, (ii) give the other prompt notice of the commencement of any judicial or administrative action, suit, litigation, arbitration, proceeding by or before any Governmental Entity with respect to such transactions, and (iii) keep the other reasonably informed as to the status of any such action. Each Party agrees to provide, to the extent permitted by the applicable Governmental Entity, the other Party and its counsel the opportunity, on reasonable advance notice, to participate in any substantive meetings or discussions, either in person or by telephone, between such Party and/or any of its Affiliates, agents or advisors, on the one hand, and any Governmental Entity, on the other hand, concerning or in connection with the Merger; provided, neither Party shall extend any waiting period or comparable period under the HSR Act or enter into any agreement with any Governmental Entity without the written consent of the other Party. Any materials exchanged in connection with this Section 5.3 may be redacted or withheld as necessary to address reasonable privilege or confidentiality concerns of legal counsel of the Company, and to remove references concerning the valuation of the Company or other competitively sensitive material; provided, that the Company may, as it deems advisable and necessary, designate any materials provided to the BRPA under this Section 5.3 as “outside counsel only.” Filing fees with respect to the notifications required under the HSR Act shall be paid by the Company. (b) BRPA shall not, and shall cause its Subsidiaries not to, acquire or agree to acquire, by merging with or into or consolidating with, or by purchasing a portion of the assets of or equity in, or by any other manner, any business or any corporation, partnership, association or other business organization or division thereof, or otherwise acquire or agree to acquire any assets, or take any other action, if the entering into of a definitive agreement relating to, or the consummation of such acquisition, merger or consolidation, or the taking of any other action, would reasonably be expected to (i) impose any material delay in the obtaining of, or materially increase the risk of not obtaining, any authorizations, consents, orders or declarations of any Governmental Entities or the expiration or termination of any applicable waiting period; (ii) materially increase the risk of any Governmental Entity entering an order prohibiting the consummation of the transaction contemplated hereby; (iii) materially increase the risk of not being able to remove any such order on appeal or otherwise; or (iv) materially delay or prevent the consummation of the transactions contemplated hereby. Notwithstanding anything in this Agreement to the contrary, the restrictions and obligations set forth in this Section 5.3(b) shall not apply to or be binding upon BRPA’s Affiliates, the Sponsor, their respective Affiliates or any investment funds or investment vehicles affiliated with, or managed or advised by, BRPA’s Affiliates, the Sponsor, or any portfolio company (as such term is commonly understood in the private equity industry) or investment of BRPA’s Affiliates, the Sponsor, or of any such investment fund or investment vehicle.
Appears in 3 contracts
Samples: Agreement and Plan of Merger (BRAC Lending Group LLC), Merger Agreement (Big Rock Partners Sponsor, LLC), Merger Agreement (Big Rock Partners Acquisition Corp.)
HSR Act. (a) If Each Parent shall as promptly as practicable, but in no event later than five Business Days following the execution and delivery hereof, file with the United States Federal Trade Commission (the “FTC”) and the United States Department of Justice (the “Antitrust Division”) the notification and report form, if any, required for the Transactions and any supplemental information requested in connection therewith pursuant to the HSR Act. Any such notification and report form and supplemental information shall be in substantial compliance with the requirements of the HSR Act. To the extent permissible under applicable Legal Requirements, as promptly as practicableeach Parent shall obtain all requisite approvals, BRPA clearances and authorizations for the Company shall Transactions under the HSR Act or other Antitrust Laws and use its reasonable best efforts to do each of the following with respect to matters relating to Antitrust Laws: (ai) each prepare and file cooperate reasonably in all respects with the notification required of it thereunder other Parent in connection with the Merger as soon as reasonably practicable but no later than twenty (20) Business Days following January 14, 2021, (b) promptly any filing or submission and in good faith respond to all information requested of it by the Federal Trade Commission and Department of Justice in connection with such notification and otherwise cooperate in good faith with each any investigation or other and such Governmental Entitiesinquiry, including any proceeding initiated by a private party, (c) each request early termination of any waiting period under the HSR Act, and (d) submit, as soon as practicable, any other required applications or filings pursuant to any Antitrust Laws and furnish to the other Party as promptly as reasonably practicable all information required for any application or other filing required to be made pursuant to any Antitrust Law. BRPA and the Company shall substantially comply with any information or document requests by the Federal Trade Commission or the Department of Justice in connection with the Merger. BRPA and the Company shall (iii) promptly inform the other Parent of any substantive communication to received by such Party from, or from the Federal Trade Commissiongiven by such Party to, the Department of Justice Antitrust Division, the FTC or any other Governmental Entity Authority and of any material communication received or given in connection with any proceeding by a private party, in each case regarding any of the Merger and Transactions, (iii) permit counsel to the other Party an opportunity Parent, or the other Parent’s legal counsel, to review in advanceany material communication given by it to, and consult with each Party shall consider other in good faith advance of any meeting or conference with, the views of Antitrust Division, the FTC or any such counsel other Governmental Authority or, in connection withwith any proceeding by a private party, with any proposed written communications by such Party to any Governmental Entity concerning the Mergerother Person, (iiiv) give the other prompt notice of Parent the commencement of any judicial or administrative action, suit, litigation, arbitration, proceeding by or before any Governmental Entity with respect opportunity to attend and participate in such transactions, meetings and (iii) keep the other reasonably informed as to the status of any such action. Each Party agrees to provide, conferences to the extent permitted allowed by applicable Legal Requirements or by the applicable Governmental EntityAuthority, (v) in the event one Parent is prohibited by applicable Legal Requirements or by the applicable Governmental Authority from participating in or attending any meetings or conferences, keep the other Party promptly and its counsel reasonably apprised with respect thereto, (vi) cooperate reasonably in the opportunityfiling of any memoranda, on reasonable advance noticewhite papers, filings, correspondence, or other written communications explaining or defending the Transactions, articulating any regulatory or competitive argument, and/or responding to participate in requests or objections made by any substantive meetings or discussionsGovernmental Authority and (vii) furnish the other Parent with copies of all correspondence, either in person or by telephonefilings, and written communications between such Party and/or any of its Affiliates, agents or advisors, on the one hand, Parent and any Governmental EntityAuthority with respect to this Agreement and the Transactions, on the other handexcept that any materials containing valuation information, concerning internal financial information, or in connection with the Merger; provided, neither Party shall extend any waiting period or comparable period under the HSR Act or enter into any agreement with any Governmental Entity without the written consent of the other Party. Any materials exchanged in connection with this Section 5.3 competitively sensitive information may be redacted or withheld designated for limited distribution as necessary to address reasonable privilege or confidentiality concerns of legal counsel of the Company, and to remove references concerning the valuation of the Company or other competitively sensitive material; provided, that the Company appropriate. Either Parent may, as it deems advisable and necessary, reasonably designate any materials competitively sensitive material provided to the BRPA other Parent under this Section 5.3 6.13(a) as “outside counsel only.” Filing fees with respect Such materials and the information contained therein shall be given only to the notifications required under outside legal counsel of the HSR Act shall recipient and will not be paid disclosed by such outside counsel to employees, officers, or directors of the Companyrecipient, unless express written permission is obtained in advance from the source of the materials.
(b) BRPA shall not, and shall cause its Subsidiaries not to, acquire or agree Each Parent will use reasonable best efforts to acquire, by merging with or into or consolidating with, or by purchasing a portion of the assets of or equity in, or resolve any objections that may be asserted by any Person with respect to the Transactions under any Antitrust Law. In connection with the foregoing, if any proceeding is instituted or threatened to be instituted challenging any Transaction as violative of any Antitrust Law, each Parent will cooperate in good faith in all respects with each other mannerand use reasonable best efforts to contest and resist any such proceeding and to have vacated, lifted, reversed or overturned any business or any corporationdecree, partnershipjudgment, association injunction or other business organization order, whether temporary, preliminary or division thereofpermanent, that is in effect and that prohibits, prevents or otherwise acquire or agree to acquire any assets, or take any other action, if the entering into of a definitive agreement relating to, or the consummation of such acquisition, merger or consolidation, or the taking of any other action, would reasonably be expected to (i) impose any material delay in the obtaining of, or materially increase the risk of not obtaining, any authorizations, consents, orders or declarations of any Governmental Entities or the expiration or termination of any applicable waiting period; (ii) materially increase the risk of any Governmental Entity entering an order prohibiting the restricts consummation of the transaction contemplated hereby; (iii) materially increase Transactions, including by pursuing all available avenues of administrative and judicial appeal, unless by mutual agreement the risk of Members decide that litigation is not being able in their respective best interests. Each Parent shall use reasonable best efforts to remove any take such order on appeal or otherwise; or (iv) materially delay or prevent action as may be required to cause the consummation expiration of the transactions contemplated herebynotice periods under the HSR Act or other Antitrust Laws with respect to such Transactions as promptly as possible after the execution of this Agreement. Notwithstanding anything in this Agreement In connection with and without limiting the foregoing, each Parent shall use reasonable best efforts to take promptly any and all steps necessary to avoid or eliminate each and every impediment under any Antitrust Laws that may be asserted by any Governmental Authority, so as to enable the contrary, Parties to close the restrictions and obligations set forth in this Section 5.3(b) shall not apply to or be binding upon BRPA’s Affiliates, the Sponsor, their respective Affiliates or any investment funds or investment vehicles affiliated with, or managed or advised by, BRPA’s Affiliates, the Sponsor, or any portfolio company (Transactions as such term is commonly understood in the private equity industry) or investment of BRPA’s Affiliates, the Sponsor, or of any such investment fund or investment vehicleexpeditiously as possible.
Appears in 3 contracts
Samples: Asset Purchase and Contribution Agreement (Alaska Communications Systems Group Inc), Asset Purchase and Contribution Agreement (Gci Inc), Asset Purchase and Contribution Agreement (Alaska Communications Systems Group Inc)
HSR Act. (a) If required pursuant In connection with the transactions contemplated by this Agreement, Industrea shall (and, to the extent required, shall cause its Affiliates to) (i) comply promptly, but in no event later than five (5) Business Days after the date hereof, with the notification and reporting requirements of the HSR Act, Act and use its reasonable best efforts to obtain early termination of the waiting period under the HSR Act and (ii) as promptly soon as practicable, BRPA and the Company make such other filings or start pre-notification proceedings with any foreign Governmental Authorities as may be required under any applicable similar foreign Law. Industrea shall use its reasonable best efforts to substantially comply with any Antitrust Information or Document Requests made of Industrea or any of its Affiliates.
(b) Industrea shall exercise its reasonable best efforts to (ai) each prepare and file obtain termination or expiration of the notification required of it thereunder in connection with the Merger as soon as reasonably practicable but no later than twenty (20) Business Days following January 14, 2021, (b) promptly and in good faith respond to all information requested of it by the Federal Trade Commission and Department of Justice in connection with such notification and otherwise cooperate in good faith with each other and such Governmental Entities, (c) each request early termination of any waiting period under the HSR ActAct and such other approvals, consents and (d) submitclearances as may be necessary, proper or advisable under any foreign antitrust or competition laws, in each case, as soon as practicablepracticable (but in any event prior to the Termination Date), any other required applications or filings pursuant to any Antitrust Laws and (ii) furnish to the other Party as promptly as reasonably practicable Company all information reasonably required for any application or other filing required to be made pursuant to any Antitrust Law. BRPA and the Company shall substantially comply with any information or document requests by the Federal Trade Commission or the Department of Justice Law in connection with the Mergertransactions contemplated by this Agreement (including, to the extent permitted by Law, responding to any reasonable requests for copies of documents filed with Industrea’s prior filings), and (iii) otherwise reasonably cooperate with the Company in connection with any filing and in connection with resolving any investigation or other inquiry of any Governmental Authority. BRPA In connection therewith, if any Action is instituted (or threatened to be instituted) challenging any transaction contemplated by this Agreement as in violation of the HSR Act, any antitrust or applicable foreign competition Law, Industrea shall use its reasonable best efforts to contest and resist any such Action, including to prevent the entry in any Action brought by an Antitrust Authority or any other Person of any Governmental Order which would prohibit, make unlawful or delay the consummation of the transactions contemplated by this Agreement, and initiate and exhaust all appeals, and post bonds in connection therewith) necessary to have vacated, lifted, reversed or overturned as soon as practicable (but in any event prior to the Termination Date) any decree, judgment, injunction or other order, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents, limits or restricts consummation of the transactions contemplated by this Agreement, unless, by mutual agreement, Industrea and the Company decide that litigation is not in their respective best interests. Industrea shall not, without the written consent of the Company, “pull-and-refile” pursuant to 16 C.F.R. 803.12 any filing made under the HSR Act, or take any similar action without prior written approval from the Company with respect to any filing made with any Antitrust Authority.
(ic) Industrea shall promptly inform furnish to the other Company and the Holder Representative copies of any substantive communication to notices or from the Federal Trade Commission, the Department of Justice written communications received or given by Industrea or any other of its Affiliates from or to any third party or any Governmental Entity regarding Authority with respect to the Merger transactions contemplated by this Agreement, and Industrea shall permit counsel to the other Party Company an opportunity to review in advance, and each Party Industrea shall consider in good faith the views of such counsel in connection with, any proposed written communications by such Party Industrea and its Affiliates to any third party or any Governmental Entity Authority concerning the Merger, (ii) give the other prompt notice of the commencement of any judicial or administrative action, suit, litigation, arbitration, proceeding transactions contemplated by or before any Governmental Entity with respect to such transactions, and (iii) keep the other reasonably informed as to the status of any such actionthis Agreement. Each Party Industrea agrees to provide, to provide the extent permitted by the applicable Governmental EntityCompany, the other Party Holder Representative and its counsel the opportunity, on reasonable advance notice, to participate in any substantive meetings or discussions, either in person or by telephone, between such Party and/or Industrea and any of its Affiliates, agents or advisors, on the one hand, and any third party or any Governmental EntityAuthority, on the other hand, concerning or in connection with the Merger; provided, neither Party transactions contemplated hereby.
(d) Industrea shall extend any waiting period or comparable period under be solely responsible for and pay all fees payable to the HSR Act or enter into any agreement with any Governmental Entity without the written consent of the other Party. Any materials exchanged Antitrust Authorities in connection with the transactions contemplated by this Section 5.3 may be redacted Agreement. Each party shall bear its own legal or withheld as necessary to address reasonable privilege advisor fees in connection with any filings, Actions or confidentiality concerns of legal counsel of the Company, and to remove references concerning the valuation of the Company or other competitively sensitive material; provided, that the Company may, as it deems advisable and necessary, designate any materials provided to the BRPA litigation under this Section 5.3 as “outside counsel only7.1.” Filing fees with respect to the notifications required under the HSR Act shall be paid by the Company.
(b) BRPA shall not, and shall cause its Subsidiaries not to, acquire or agree to acquire, by merging with or into or consolidating with, or by purchasing a portion of the assets of or equity in, or by any other manner, any business or any corporation, partnership, association or other business organization or division thereof, or otherwise acquire or agree to acquire any assets, or take any other action, if the entering into of a definitive agreement relating to, or the consummation of such acquisition, merger or consolidation, or the taking of any other action, would reasonably be expected to (i) impose any material delay in the obtaining of, or materially increase the risk of not obtaining, any authorizations, consents, orders or declarations of any Governmental Entities or the expiration or termination of any applicable waiting period; (ii) materially increase the risk of any Governmental Entity entering an order prohibiting the consummation of the transaction contemplated hereby; (iii) materially increase the risk of not being able to remove any such order on appeal or otherwise; or (iv) materially delay or prevent the consummation of the transactions contemplated hereby. Notwithstanding anything in this Agreement to the contrary, the restrictions and obligations set forth in this Section 5.3(b) shall not apply to or be binding upon BRPA’s Affiliates, the Sponsor, their respective Affiliates or any investment funds or investment vehicles affiliated with, or managed or advised by, BRPA’s Affiliates, the Sponsor, or any portfolio company (as such term is commonly understood in the private equity industry) or investment of BRPA’s Affiliates, the Sponsor, or of any such investment fund or investment vehicle.
Appears in 2 contracts
Samples: Merger Agreement (Industrea Acquisition Corp.), Merger Agreement
HSR Act. (ai) If required pursuant to Mondavi and Constellation shall, promptly after the HSR Actexecution and delivery of this Agreement, as promptly as practicable, BRPA and the Company shall use reasonable best efforts to (a) each prepare and file the notification required of it thereunder in connection with the Merger as soon as reasonably practicable but no later than twenty (20) Business Days following January 14, 2021, (b) promptly and in good faith respond to all information requested of it by the Federal Trade Commission and the Department of Justice the notification required to be filed with respect to the transactions provided in connection with such notification this Agreement under the HSR Act (and otherwise cooperate in good faith with each other and such Governmental Entities, (c) each request early termination of any the waiting period period) and shall file promptly with the appropriate Governmental Authorities all notifications required under applicable Foreign Antitrust Laws. Each of Constellation and Mondavi shall, in connection therewith, cooperate as necessary to promptly amend such filings or supply additional information and documentary material as may be requested pursuant to the HSR ActAct or Foreign Antitrust Laws.
(ii) Each party hereto, and through outside counsel, will (dA) submitpromptly notify every other party hereto of any written communication to that party from any Governmental Authority concerning this Agreement or the transactions contemplated hereby and, as soon as if practicable, any permit each other required applications or filings pursuant to any Antitrust Laws and furnish to the other Party as promptly as reasonably practicable all information required for any application or other filing required to be made pursuant to any Antitrust Law. BRPA and the Company shall substantially comply with any information or document requests by the Federal Trade Commission or the Department of Justice in connection with the Merger. BRPA and the Company shall (i) promptly inform the other of any substantive communication to or from the Federal Trade Commission, the Department of Justice or any other Governmental Entity regarding the Merger and permit party’s counsel to the other Party an opportunity to review in advance, and each Party shall consider in good faith the views of such counsel in connection with, advance any proposed written communications by such Party communication to any such Governmental Entity Authority concerning this Agreement or the Merger, transactions contemplated hereby and incorporate each other party’s reasonable comments; (iiB) give the other prompt notice of the commencement not agree to participate in any substantive meeting or discussion with any such Governmental Authority in respect of any judicial filing, investigation or administrative actioninquiry concerning this Agreement or the transactions contemplated hereby unless it consults with each other party’s counsel in advance, suit, litigation, arbitration, proceeding by or before any Governmental Entity with respect to such transactions, and (iii) keep the other reasonably informed as to the status of any such action. Each Party agrees to provideand, to the extent permitted by such Governmental Authority, gives each other party the applicable Governmental Entityopportunity to attend and (C) furnish to each other party’s counsel copies of all correspondence, the other Party filings, and its counsel the opportunity, on reasonable advance notice, to participate in any substantive meetings or discussions, either in person or by telephone, written communications between such Party and/or any of its Affiliates, agents or advisors, them and their respective representatives on the one hand, and any such Governmental Entity, Authority or its respective staff on the other hand, concerning with respect to this Agreement or the transactions contemplated hereby.
(iii) Notwithstanding anything to the contrary contained in this Agreement, Constellation shall not be required to agree, and Mondavi shall not agree without Constellation’s prior written consent, to waive any substantial rights or to accept any substantial limitation on its operations or to dispose of any significant assets in connection with the Merger; provided, neither Party shall extend obtaining any waiting period consent or comparable period authorization under the HSR Act or enter into any agreement with any Governmental Entity without the written consent of the other Party. Any materials exchanged in connection with this Section 5.3 may be redacted under Foreign Antitrust Laws unless such waiver, limitation or withheld as necessary to address reasonable privilege or confidentiality concerns of legal counsel of the Company, and to remove references concerning the valuation of the Company or other competitively sensitive material; provided, that the Company may, as it deems advisable and necessary, designate any materials provided to the BRPA under this Section 5.3 as “outside counsel only.” Filing fees with respect to the notifications required under the HSR Act shall be paid by the Company.
(b) BRPA shall not, and shall cause its Subsidiaries disposition would not to, acquire or agree to acquire, by merging with or into or consolidating with, or by purchasing a portion of the assets of or equity in, or by any other manner, any business or any corporation, partnership, association or other business organization or division thereof, or otherwise acquire or agree to acquire any assets, or take any other action, if the entering into of a definitive agreement relating to, or the consummation of such acquisition, merger or consolidation, or the taking of any other action, would reasonably be expected to (i) impose have a Material Adverse Effect on Constellation or Mondavi, provided, however, that at Constellation’s written request, Mondavi shall agree to any material delay in the obtaining ofsuch waiver, limitation or materially increase the risk of not obtainingdisposal, any authorizationswhich agreement may, consentsat Mondavi’s option, orders or declarations of any Governmental Entities or the expiration or termination of any applicable waiting period; (ii) materially increase the risk of any Governmental Entity entering an order prohibiting the consummation be conditioned upon and effective only as of the transaction contemplated hereby; (iii) materially increase the risk of not being able to remove any such order on appeal or otherwise; or (iv) materially delay or prevent the consummation of the transactions contemplated hereby. Notwithstanding anything in this Agreement to the contrary, the restrictions and obligations set forth in this Section 5.3(b) shall not apply to or be binding upon BRPA’s Affiliates, the Sponsor, their respective Affiliates or any investment funds or investment vehicles affiliated with, or managed or advised by, BRPA’s Affiliates, the Sponsor, or any portfolio company (as such term is commonly understood in the private equity industry) or investment of BRPA’s Affiliates, the Sponsor, or of any such investment fund or investment vehicleEffective Time.
Appears in 2 contracts
Samples: Merger Agreement (Mondavi Robert Corp), Merger Agreement (Mondavi Robert Corp)
HSR Act. (a) If required pursuant to As soon as practicable, and in any event no later than fifteen Business Days after the either Purchaser or Target determines that the transaction contemplated hereby requires filings under the HSR Act, as promptly as practicable, BRPA each of the parties hereto will file any Notification and the Company shall use reasonable best efforts Report Forms and related material required to (a) each prepare and file the notification required of be filed by it thereunder in connection with the Merger as soon as reasonably practicable but no later than twenty (20) Business Days following January 14, 2021, (b) promptly and in good faith respond to all information requested of it by the Federal Trade Commission and the Antitrust Division of the United States Department of Justice under the HSR Act (if any) with respect to the Merger, will use its reasonable efforts to obtain an early termination of the applicable waiting period, and shall promptly make any further filings pursuant thereto that may be necessary, proper or advisable. Purchaser and Target agree to cooperate with respect to, and shall cause each of their respective Subsidiaries to cooperate with respect to, and agree to use all reasonable efforts to contest and resist, any Action, including legislative, administrative or judicial Action, and to have vacated, lifted, reversed or overturned any decree, judgment, injunction or other order (whether temporary, preliminary or permanent) (an “Order”) of any Governmental Entity that is in effect and that restricts, prevents or prohibits the consummation of the Merger or any other transactions contemplated by this Agreement, including, without limitation, by pursuing all available avenues of administrative and judicial appeal and all available legislative action. Upon the terms and subject to the conditions set forth in this Agreement, in connection with such notification and otherwise cooperate in good faith with each other and such Governmental Entities, (c) each request early termination of any waiting period under the HSR Act, each of Target and (d) submitPurchaser agrees to take, as soon as or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable to consummate and make effective, in the most expeditious manner practicable, the Merger and the other transactions contemplated by this Agreement, including the obtaining of all necessary actions or nonactions, waivers, consents and approvals from Governmental Authorities and the making of all necessary registrations and filings (including filings with Governmental Authorities, if any) and the taking of all reasonable steps as may be necessary to obtain an approval or waiver from, or to avoid an action or proceeding by, any other required applications or filings Governmental Entity; provided, however, that a party shall not be obligated to take any action pursuant to any Antitrust Laws and furnish to the other Party as promptly as reasonably practicable all information required for any application or other filing required to be made pursuant to any Antitrust Law. BRPA and foregoing if the Company shall substantially comply with any information or document requests by the Federal Trade Commission taking of such action or the Department obtaining of Justice any waiver, consent, approval or exemption is reasonably likely (x) to impact in connection with a materially adverse manner the Merger. BRPA and economic or business benefits of the Company shall transactions contemplated by this Agreement so as to render inadvisable the consummation of the Merger or (y) to result in an Order (i) promptly inform prohibiting or limiting the ownership or operation by Purchaser of any material portion of the business or assets of Target or compelling Purchaser to dispose of or hold separate any of the business or assets of Purchaser or any material portion of the business or assets of Target as a result of the Merger or any of the other of any substantive communication to or from the Federal Trade Commission, the Department of Justice or any other Governmental Entity regarding the Merger and permit counsel to the other Party an opportunity to review in advance, and each Party shall consider in good faith the views of such counsel in connection with, any proposed written communications transactions contemplated by such Party to any Governmental Entity concerning the Mergerthis Agreement, (ii) give imposing limitations on the other prompt notice ability of Purchaser to acquire or hold, or exercise full rights of ownership of, any shares of capital stock of Target, including, without limitation, the commencement of any judicial right to vote such capital stock on all matters properly presented to the Target Stockholders, or administrative action, suit, litigation, arbitration, proceeding by or before any Governmental Entity with respect to such transactions, and (iii) keep the other reasonably informed as to the status of any such action. Each Party agrees to provide, to the extent permitted by the applicable Governmental Entity, the other Party and its counsel the opportunity, on reasonable advance notice, to participate prohibiting Purchaser from effectively controlling in any substantive meetings material respect the business or discussionsoperations of Target. The parties acknowledge that, either in person or by telephone, between such Party and/or any of its Affiliates, agents or advisors, based on the one handprice of Purchaser’s Common Stock as of the date hereof, and any Governmental Entity, on the other hand, concerning or in connection with the Merger; provided, neither Party shall extend any waiting period or comparable period no filings under the HSR Act or enter into any agreement with any Governmental Entity without the written consent of the other Party. Any materials exchanged in connection with this Section 5.3 may be redacted or withheld as necessary to address reasonable privilege or confidentiality concerns of legal counsel of the Company, and to remove references concerning the valuation of the Company or other competitively sensitive material; provided, that the Company may, as it deems advisable and necessary, designate any materials provided to the BRPA under this Section 5.3 as “outside counsel only.” Filing fees are required with respect to the notifications required under the HSR Act shall be paid by the Company.
(b) BRPA shall not, and shall cause its Subsidiaries not to, acquire or agree to acquire, by merging with or into or consolidating with, or by purchasing a portion of the assets of or equity in, or by any other manner, any business or any corporation, partnership, association or other business organization or division thereof, or otherwise acquire or agree to acquire any assets, or take any other action, if the entering into of a definitive agreement relating to, or the consummation of such acquisition, merger or consolidation, or the taking of any other action, would reasonably be expected to (i) impose any material delay in the obtaining of, or materially increase the risk of not obtaining, any authorizations, consents, orders or declarations of any Governmental Entities or the expiration or termination of any applicable waiting period; (ii) materially increase the risk of any Governmental Entity entering an order prohibiting the consummation of the transaction contemplated hereby; (iii) materially increase the risk of not being able to remove any such order on appeal or otherwise; or (iv) materially delay or prevent the consummation of the transactions contemplated hereby. Notwithstanding anything in this Agreement to the contrary, the restrictions and obligations set forth in this Section 5.3(b) shall not apply to or be binding upon BRPA’s Affiliates, the Sponsor, their respective Affiliates or any investment funds or investment vehicles affiliated with, or managed or advised by, BRPA’s Affiliates, the Sponsor, or any portfolio company (as such term is commonly understood in the private equity industry) or investment of BRPA’s Affiliates, the Sponsor, or of any such investment fund or investment vehicle.
Appears in 2 contracts
Samples: Merger Agreement (Resource Capital Fund v L.P.), Merger Agreement (Uranium Resources Inc /De/)
HSR Act. (ai) If required In furtherance and not in limitation of Section 7.04(a), each Party agrees, to the extent necessary, to file the appropriate notices, reports, and other documents pursuant to the HSR Act and under any other antitrust Law with respect to the Transactions as promptly as practicable (but, in respect of filings pursuant to the HSR Act, in no event later than fifteen (15) Business Days after the date of the Original Asset Purchase Agreement), and to supply as promptly as practicablepracticable any additional information and documentary material that reasonably may be requested pursuant to the HSR Act or any other antitrust Law and, BRPA subject to the other terms hereof, to take all other actions necessary, proper or advisable to cause the expiration or termination of the applicable waiting periods under the HSR Act and the Company shall use reasonable best efforts to receipt of any of the requisite clearances, approvals and authorizations under any other antitrust Law.
(aii) each prepare The Sellers and file the notification required of it thereunder Purchaser shall, in connection with the Merger as soon as reasonably practicable but no later than twenty efforts referenced in Section 7.04(d)(i) to obtain any requisite clearances, approvals and authorizations under the HSR Act and other antitrust Laws for the Transactions, use their respective commercially reasonable efforts to (20A) Business Days following January 14, 2021, (b) promptly and in good faith respond to all information requested of it by the Federal Trade Commission and Department of Justice cooperate with each other in connection with such notification and otherwise cooperate in good faith with each other and such Governmental Entities, (c) each request early termination of any waiting period filing or submission under the HSR Act, and (d) submit, as soon as practicable, any other required applications or filings pursuant to any Antitrust Laws and furnish to the other Party as promptly as reasonably practicable all information required for any application or other filing required to be made pursuant to any Antitrust Law. BRPA and the Company shall substantially comply with any information or document requests by the Federal Trade Commission or the Department of Justice in connection with the Merger. BRPA and the Company shall (i) promptly inform the other of any substantive communication to or from the Federal Trade Commission, the Department of Justice Act or any other Governmental Entity regarding the Merger and permit counsel to the other Party an opportunity to review in advance, and each Party shall consider in good faith the views of such counsel in connection with, any proposed written communications by such Party to any Governmental Entity concerning the Merger, antitrust Law; (ii) give the other prompt notice of the commencement of any judicial or administrative action, suit, litigation, arbitration, proceeding by or before any Governmental Entity with respect to such transactions, and (iiiB) keep the other Parties reasonably informed as to the status of any communication received from, or given to, any Governmental Entity regarding any requisite clearances, approvals and authorizations of such action. Each Party agrees Governmental Entity in respect of the Transactions contemplated hereby; and (C) permit the other Parties to providereview in advance on an outside counsel only basis any written communication given by it to, and consult with each other in advance of any meeting or conference with, any Governmental Entity in respect of the HSR Act or any other antitrust Laws and, to the extent permitted not prohibited by the such applicable Governmental Entity, give the other Party Parties the opportunity to attend and its counsel the opportunity, on reasonable advance notice, to participate in any substantive such meetings or discussions, either in person or by telephone, between such Party and/or any of its Affiliates, agents or advisorsand conferences.
(iii) Purchaser, on the one hand, and any Governmental Entitythe Sellers, on the other hand, concerning or in connection with the Merger; provided, neither Party shall agree not to extend any waiting period or comparable period under the HSR Act or enter into any agreement with any Governmental Entity without not to consummate the Transactions for any period of time, except with the prior written consent of the other Party. Any materials exchanged in connection with this Section 5.3 may be redacted or withheld as necessary to address reasonable privilege or confidentiality concerns of legal counsel of the Companyother, and to remove references concerning the valuation of the Company or other competitively sensitive material; provided, that the Company may, as it deems advisable and necessary, designate any materials provided to the BRPA under this Section 5.3 as “outside counsel only.” Filing fees with respect to the notifications required under the HSR Act shall be paid by the Company.
(b) BRPA shall not, and shall cause its Subsidiaries not to, acquire or agree to acquire, by merging with or into or consolidating with, or by purchasing a portion of the assets of or equity in, or by any other manner, any business or any corporation, partnership, association or other business organization or division thereof, or otherwise acquire or agree to acquire any assets, or take any other action, if the entering into of a definitive agreement relating to, or the consummation of such acquisition, merger or consolidation, or the taking of any other action, would reasonably be expected to (i) impose any material delay in the obtaining of, or materially increase the risk of not obtaining, any authorizations, consents, orders or declarations of any Governmental Entities or the expiration or termination of any applicable waiting period; (ii) materially increase the risk of any Governmental Entity entering an order prohibiting the consummation of the transaction contemplated hereby; (iii) materially increase the risk of not being able to remove any such order on appeal or otherwise; or (iv) materially delay or prevent the consummation of the transactions contemplated hereby. Notwithstanding anything in this Agreement to the contrary, the restrictions and obligations set forth in this Section 5.3(b) which consent shall not apply to be unreasonably withheld, conditioned or be binding upon BRPA’s Affiliates, the Sponsor, their respective Affiliates or any investment funds or investment vehicles affiliated with, or managed or advised by, BRPA’s Affiliates, the Sponsor, or any portfolio company (as such term is commonly understood in the private equity industry) or investment of BRPA’s Affiliates, the Sponsor, or of any such investment fund or investment vehicledelayed.
Appears in 2 contracts
Samples: Asset Purchase Agreement, Residential Servicing Asset Purchase Agreement (Nationstar Mortgage Holdings Inc.)
HSR Act. (a) If required pursuant Each party hereto shall (i) take promptly all actions necessary to make the HSR Act, as promptly as practicable, BRPA and the Company shall use reasonable best efforts to (a) each prepare and file the notification filings required of it thereunder or any of its affiliates under the applicable Antitrust -33- 38 Laws (as defined in Section 4.09(e) hereof) in connection with this Agreement and the Merger as soon as reasonably practicable but no later than twenty (20) Business Days following January 14, 2021transactions contemplated hereby, (bii) promptly and in good faith respond to all comply at the earliest practicable date with any request for additional information requested or documentary material received by it or any of it by its affiliates from the Federal Trade Commission and Department (the "FTC") or the Antitrust Division of Justice in connection with such notification and otherwise cooperate in good faith with each other and such Governmental Entities, (c) each request early termination of any waiting period under the HSR Act, and (d) submit, as soon as practicable, any other required applications or filings pursuant to any Antitrust Laws and furnish to the other Party as promptly as reasonably practicable all information required for any application or other filing required to be made pursuant to any Antitrust Law. BRPA and the Company shall substantially comply with any information or document requests by the Federal Trade Commission or the Department of Justice in connection with (the Merger. BRPA and the Company shall (i"Antitrust Division") promptly inform the other of any substantive communication to or from the Federal Trade Commission, the Department of Justice or any other Governmental Entity regarding the Merger and permit counsel to the other Party an opportunity to review in advance, and each Party shall consider in good faith the views of such counsel in connection with, any proposed written communications by such Party to any Governmental Entity concerning the Merger, (ii) give the other prompt notice of the commencement of any judicial or administrative action, suit, litigation, arbitration, proceeding by or before any Governmental Entity with respect to such transactions, and (iii) keep the other reasonably informed as to the status of any such action. Each Party agrees to provide, to the extent permitted by the applicable Governmental Entity, the other Party and its counsel the opportunity, on reasonable advance notice, to participate in any substantive meetings or discussions, either in person or by telephone, between such Party and/or any of its Affiliates, agents or advisors, on the cooperate with one hand, and any Governmental Entity, on the other hand, concerning or another in connection with the Merger; provided, neither Party shall extend any waiting period or comparable period filing under the HSR Act or enter into any agreement with any Governmental Entity without the written consent of the other Party. Any materials exchanged applicable Antitrust Laws and in connection with this Section 5.3 may be redacted resolving any investigation or withheld as necessary to address reasonable privilege or confidentiality concerns of legal counsel of the Company, and to remove references other inquiry concerning the valuation of the Company or other competitively sensitive material; provided, that the Company may, transactions contemplated by this Agreement initiated by any Antitrust Authority (as it deems advisable and necessary, designate any materials provided to the BRPA under this defined in Section 5.3 as “outside counsel only.” Filing fees with respect to the notifications required under the HSR Act shall be paid by the Company4.09(e) hereof).
(b) BRPA Each party hereto shall notuse its reasonable best efforts to resolve such objections, if any, as may be asserted with respect to the transactions contemplated by this Agreement under any Antitrust Law. Without limiting the generality of the foregoing, "reasonable best efforts" shall include, without limitation:
(i) in the case of each of Parent and the Company:
(A) filing with the appropriate Antitrust Authorities no later than the fifth Business Day following the date hereof a Notification and Report Form with respect to the transactions contemplated by this Agreement; and
(B) if Parent or the Company receives a second request for information and documents from an Antitrust Authority, substantially complying with such second request within 60 days following the date of its receipt thereof;
(ii) in the case of Parent only, taking any and all actions reasonably necessary, proper or advisable to cause the HSR Condition and Section 5.01(b) hereof to be satisfied and to permit the Closing to occur as soon as possible, but in any event on or prior to the Outside Date (as defined below) (it being understood that, without limiting Parent's obligations hereunder, the timing of the Closing shall cause its Subsidiaries be as set forth in Section 2.11); provided, however, that Parent's obligations hereunder shall not to, acquire include agreeing to dispose of or agree to acquire, by merging with hold separately all or into or consolidating with, or by purchasing a any material portion of the business or assets of Parent and its subsidiaries, taken as a whole or equity inthe Company and its Subsidiaries, taken as a whole, or by any other manner, any business or any corporation, partnership, association or other business organization or division thereof, or otherwise acquire or agree to acquire any assets, or take any other actionaction which would materially and adversely effect the business, if the entering into assets or operations of Parent and its subsidiaries taken as a definitive agreement relating to, whole or the consummation Company and its Subsidiaries taken as a whole; and
(iii) in the case of such acquisitionthe Company only, merger or consolidation, or the taking of any other action, would reasonably be expected subject to Parent's compliance with clauses (i) impose any material delay in the obtaining of, or materially increase the risk of not obtaining, any authorizations, consents, orders or declarations of any Governmental Entities or the expiration or termination of any applicable waiting period; and (ii) materially increase the risk of above, not frustrating or impeding Parent's strategy or negotiating positions with any Governmental Entity entering an order prohibiting the consummation of the transaction contemplated hereby; (iii) materially increase the risk of not being able to remove any such order on appeal or otherwise; or (iv) materially delay or prevent the consummation of the transactions contemplated hereby. Notwithstanding anything in this Agreement to the contrary, the restrictions and obligations set forth in this Section 5.3(b) shall not apply to or be binding upon BRPA’s Affiliates, the Sponsor, their respective Affiliates or any investment funds or investment vehicles affiliated with, or managed or advised by, BRPA’s Affiliates, the Sponsor, or any portfolio company (as such term is commonly understood in the private equity industry) or investment of BRPA’s Affiliates, the Sponsor, or of any such investment fund or investment vehicleAntitrust Authority.
Appears in 2 contracts
Samples: Merger Agreement (Lift Acquisition Co Inc), Merger Agreement (Raymond Corp)
HSR Act. (a) If required pursuant to the HSR Actapplicable Law, as promptly as practicable, BRPA and the Company each Party shall use reasonable best efforts to (a) each prepare and file the notification required of it thereunder in connection with the Merger as soon as reasonably practicable but no later than twenty (20) Business Days following January 14, 2021, (b) promptly and in good faith respond to all information requested of it by the Federal Trade Commission and Department of Justice in connection with such notification and otherwise cooperate in good faith with each other and such Governmental Entities, (c) each request early termination of any waiting period under the HSR Act, and (d) submit, as soon as practicable, and in any other required applications or filings pursuant to any event no later than ten (10) Business Days after the Execution Date a Notification and Report Form under the HSR Act with the United States Federal Trade Commission and the Antitrust Laws and furnish to Division of the other United States Department of Justice. As deemed advisable, each Party shall respond as promptly as reasonably practicable all information required for any application or other filing required to be made pursuant to any Antitrust Law. BRPA and inquiries or requests received from any Governmental Authority in the Company shall substantially comply with any Territory for additional information or document requests by the Federal Trade Commission or the Department of Justice in connection with the Mergerdocumentation. BRPA and the Company Each Party shall (i) promptly inform the other of any substantive communication to or from the Federal Trade Commission, the Department of Justice or any other Governmental Entity regarding the Merger and permit counsel to notify the other Party an opportunity of any communication to that Party or its Affiliates from any Governmental Authority and, subject to applicable Law, permit the other Party or the other Party's counsel to review in advance, and each Party shall consider in good faith the views of such counsel in connection with, advance any proposed written communications by such Party communication to any Governmental Entity concerning of the Merger, foregoing; (ii) give not participate, or permit its Affiliates to participate, in any substantive meeting or discussion with any Governmental Authority in respect of any filings, investigation or inquiry concerning this Agreement unless it consults with the other prompt notice of the commencement of any judicial or administrative action, suit, litigation, arbitration, proceeding by or before any Governmental Entity with respect to such transactions, and (iii) keep the other reasonably informed as to the status of any such action. Each Party agrees to providein advance and, to the extent permitted by such Governmental Authority in the applicable Governmental EntityTerritory, gives the other Party the opportunity to attend and participate thereat; and (iii) with the exception of business documents deemed confidential by Purchaser (including documents submitted as attachments to each of Purchaser's Notification and Report Form under the HSR Act), furnish Seller with copies of all correspondence, filings, and communication (and memoranda setting forth the substance thereof) between Purchaser (its affiliates, and its counsel the opportunity, on reasonable advance notice, to participate in any substantive meetings or discussions, either in person or by telephone, between such Party and/or any of its Affiliates, agents or advisors, respective representatives) on the one hand, and any Governmental Entity, Authority or members of their respective staffs on the other hand, concerning or in connection with the Merger; provided, neither Party shall extend any waiting period or comparable period under the HSR Act or enter into any agreement with any Governmental Entity without the written consent of the other Party. Any materials exchanged in connection with this Section 5.3 may be redacted or withheld as necessary to address reasonable privilege or confidentiality concerns of legal counsel of the Company, and to remove references concerning the valuation of the Company or other competitively sensitive material; provided, that the Company may, as it deems advisable and necessary, designate any materials provided to the BRPA under this Section 5.3 as “outside counsel only.” Filing fees with respect to the notifications this Agreement. Purchaser shall bear sole responsibility for any required under the HSR Act shall be paid by the Companyfiling fees.
(b) BRPA If any administrative, judicial or legislative Action is instituted (or threatened to be instituted) challenging the sale and purchase of the Purchased Assets or any of the Transactions as violative of any anti-competition Law, Purchaser shall notin its sole discretion determine whether to contest and resist any such Action, and shall cause its Subsidiaries not toto seek to have vacated, acquire lifted, reversed or agree to acquireoverturned any decree, by merging with or into or consolidating withjudgment, or by purchasing a portion of the assets of or equity in, or by any other manner, any business or any corporation, partnership, association injunction or other business organization order that is in effect and that restricts, prevents or division thereof, or otherwise acquire or agree to acquire any assets, or take any other action, if the entering into of a definitive agreement relating to, or the consummation of such acquisition, merger or consolidation, or the taking of any other action, would reasonably be expected to (i) impose any material delay in the obtaining of, or materially increase the risk of not obtaining, any authorizations, consents, orders or declarations of any Governmental Entities or the expiration or termination of any applicable waiting period; (ii) materially increase the risk of any Governmental Entity entering an order prohibiting prohibits the consummation of the transaction contemplated hereby; (iii) materially increase the risk of not being able to remove Transactions. Seller shall cooperate in a commercially reasonable manner with any such order on appeal or otherwise; or (iv) materially delay or prevent the consummation of the transactions contemplated hereby. Notwithstanding anything in this Agreement to the contrary, the restrictions and obligations set forth in this Section 5.3(b) shall not apply to or efforts as may be binding upon BRPA’s Affiliates, the Sponsor, their respective Affiliates or any investment funds or investment vehicles affiliated with, or managed or advised by, BRPA’s Affiliates, the Sponsor, or any portfolio company (as such term is commonly understood in the private equity industry) or investment of BRPA’s Affiliates, the Sponsor, or of any such investment fund or investment vehiclereasonably requested by Purchaser.
Appears in 2 contracts
Samples: Asset Purchase and Sale Agreement (Prometheus Laboratories Inc), Asset Purchase and Sale Agreement (Prometheus Laboratories Inc)
HSR Act. (a) If required Subject to the terms and conditions of this Agreement, each of the parties will (i) use commercially reasonable efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary under applicable Antitrust Laws to consummate the transactions contemplated by this Agreement, (ii) use commercially reasonable efforts to file a Notification and Report Form pursuant to the HSR ActAct with respect to the transactions contemplated hereby within 15 Business Days of the date hereof, supplying as promptly as practicable, BRPA practicable any additional information and documentary material that may be requested pursuant to the Company shall HSR Act and (iii) use commercially reasonable best efforts to (a) each prepare cause the expiration or termination of the applicable waiting periods under the HSR Act as soon as practicable. Sellers shall pay 50% and file Buyer shall pay 50% of the notification filing fees required of it thereunder in connection with the Merger as soon as reasonably practicable but no later than twenty (20) Business Days following January 14, 2021, (b) promptly all filings by Buyer and in good faith respond to all information requested of it by the Federal Trade Commission and Department of Justice in connection with such notification and otherwise cooperate in good faith with each other and such Governmental Entities, (c) each request early termination of any waiting period Sellers under the HSR Act, and .
(db) submit, as soon as practicable, any other required applications or filings pursuant to any Antitrust Laws and furnish to the other Party as promptly as reasonably practicable all information required for any application or other filing required to be made pursuant to any Antitrust Law. BRPA and the Company shall substantially comply with any information or document requests by the Federal Trade Commission or the Department of Justice in In connection with the Merger. BRPA efforts referenced in SECTION 5.3(a) to obtain all requisite approvals and authorizations for the Company shall (i) promptly inform the other of any substantive communication to or from the Federal Trade Commission, the Department of Justice or any other Governmental Entity regarding the Merger and permit counsel to the other Party an opportunity to review in advance, and each Party shall consider in good faith the views of such counsel in connection with, any proposed written communications transactions contemplated by such Party to any Governmental Entity concerning the Merger, (ii) give the other prompt notice of the commencement of any judicial or administrative action, suit, litigation, arbitration, proceeding by or before any Governmental Entity with respect to such transactions, and (iii) keep the other reasonably informed as to the status of any such action. Each Party agrees to provide, to the extent permitted by the applicable Governmental Entity, the other Party and its counsel the opportunity, on reasonable advance notice, to participate in any substantive meetings or discussions, either in person or by telephone, between such Party and/or any of its Affiliates, agents or advisors, on the one hand, and any Governmental Entity, on the other hand, concerning or in connection with the Merger; provided, neither Party shall extend any waiting period or comparable period this Agreement under the HSR Act or enter into any agreement with any Governmental Entity without the written consent other Antitrust Law, each of the parties shall use commercially reasonable efforts to (i) cooperate, and assist as reasonably requested, with each other Party. Any materials exchanged in connection with this Section 5.3 may be redacted any filing or withheld as necessary to address reasonable privilege submission and in connection with any investigation or confidentiality concerns other inquiry, including any proceeding initiated by a private party, (ii) keep the other parties informed in all material respects of legal counsel any material communication received by such party from, or given by such party to, the Federal Trade Commission (the "FTC"), the Antitrust Division of the CompanyDepartment of Justice (the "DOJ") or any other Government authority and of any material communication received or given in connection with any proceeding by a private party, in each case regarding any of the transactions contemplated hereby and (iii) permit the other parties to review any material communication given to it by, and to remove references concerning consult with each other in advance of any meeting or conference with, the valuation of FTC, the Company DOJ or any other competitively sensitive material; provided, that the Company may, as it deems advisable and necessary, designate Government authority in connection with any materials provided proceeding by a private party. The foregoing obligations in this SECTION 5.3(b) shall be subject to the BRPA under this Section 5.3 as “outside counsel only.” Filing fees Confidentiality Agreement and a confidentiality agreement (the "ANTITRUST CA") by and between Sellers and Buyer of even date herewith with respect to the notifications required under the HSR Act shall be paid by the Company.
(b) BRPA shall notconfidential information of Buyer, and shall cause its Subsidiaries not toany attorney-client, acquire work product or agree to acquireother privilege, by merging with or into or consolidating with, or by purchasing a portion and each of the assets of or equity in, or by any parties hereto will coordinate and cooperate fully with the other manner, any business or any corporation, partnership, association or parties hereto in exchanging such information and providing such assistance as such other business organization or division thereof, or otherwise acquire or agree to acquire any assets, or take any other action, if parties may reasonably request in connection with the entering into of a definitive agreement relating to, or the consummation of such acquisition, merger or consolidation, or the taking of any other action, would reasonably be expected to (i) impose any material delay foregoing and in the obtaining of, or materially increase the risk of not obtaining, any authorizations, consents, orders or declarations of any Governmental Entities or the expiration or seeking early termination of any applicable waiting period; (ii) materially increase periods under the risk of any Governmental Entity entering an order prohibiting the consummation of the transaction contemplated hereby; (iii) materially increase the risk of not being able HSR Act. Any competitively sensitive information that is disclosed pursuant to remove any such order on appeal or otherwise; or (iv) materially delay or prevent the consummation of the transactions contemplated hereby. Notwithstanding anything in this Agreement to the contrary, the restrictions and obligations set forth in this Section SECTION 5.3(b) shall not apply will be limited to or be binding upon BRPA’s Affiliates, the Sponsor, their each party's respective Affiliates or any investment funds or investment vehicles affiliated with, or managed or advised by, BRPA’s Affiliates, the Sponsor, or any portfolio company (as such term is commonly understood in the private equity industry) or investment of BRPA’s Affiliates, the Sponsor, or of any such investment fund or investment vehiclecounsel and economists pursuant to a separate customary confidentiality agreement.
Appears in 2 contracts
Samples: Asset Purchase Agreement (International Steel Group Inc), Asset Purchase Agreement (LTV Corp)
HSR Act. (a) If required pursuant Each party hereto hereby undertakes and agrees to the HSR Act, as promptly as practicable, BRPA and the Company shall use reasonable best efforts to (a) each prepare and file the notification required of it thereunder in connection with the Merger as soon as reasonably practicable but no later than twenty (20) Business Days following January 14, 2021, (b) promptly and in good faith respond to all information requested of it by the Federal Trade Commission and Department of Justice in connection with such notification and otherwise cooperate in good faith with each other and such Governmental Entities, (c) each request early termination of any waiting period under the HSR Act, and (d) submit, as soon as practicable, and in any event within thirty (30) days after the date hereof, a Notification and Report Form under the HSR Act with the United States Federal Trade Commission (the "FTC") and the United States Department of Justice, Antitrust Division (the "Antitrust Division"), and to make any other applicable competition filing or notifications required applications or filings pursuant to by any Antitrust Laws and furnish to the other Party governmental authority as promptly as reasonably practicable. Each party hereto shall (as applicable): (a) respond in a commercially reasonable manner and as promptly as practicable to any formal or informal inquiries received from the FTC or the Antitrust Division for additional information or documentary materials, and to all information required for inquiries and requests received from any application State Attorney General or other filing required to be made pursuant to any Antitrust Law. BRPA and the Company shall substantially comply with any information or document requests by the Federal Trade Commission or the Department of Justice governmental authority in connection with the Merger. BRPA and the Company shall antitrust or competition matters; (ib) promptly inform the other take all commercially reasonable steps to seek early termination of any substantive communication to or from the Federal Trade Commission, the Department of Justice or any other Governmental Entity regarding the Merger and permit counsel to the other Party an opportunity to review in advance, and each Party shall consider in good faith the views of such counsel in connection with, any proposed written communications by such Party to any Governmental Entity concerning the Merger, (ii) give the other prompt notice of the commencement of any judicial or administrative action, suit, litigation, arbitration, proceeding by or before any Governmental Entity with respect to such transactions, and (iii) keep the other reasonably informed as to the status of any such action. Each Party agrees to provide, to the extent permitted by the applicable Governmental Entity, the other Party and its counsel the opportunity, on reasonable advance notice, to participate in any substantive meetings or discussions, either in person or by telephone, between such Party and/or any of its Affiliates, agents or advisors, on the one hand, and any Governmental Entity, on the other hand, concerning or in connection with the Merger; provided, neither Party shall extend any waiting period or comparable period under the HSR Act or enter any similar laws and to obtain all required approvals; and (c) refrain from entering into any agreement with the FTC or the Antitrust Division or any Governmental Entity without governmental authority not to consummate or delay consummation of or to give notice of consummation other than as required by law, of the transactions contemplated by this Agreement, except with the prior written consent of the other Partyparties hereto (which shall not be unreasonably withheld or delayed). Any materials exchanged Each party hereto shall promptly notify each other party hereto of any written or oral communication to that party from the FTC, the Antitrust Division, any State Attorney General or any other governmental authority and shall permit each such other party or its counsel to review in advance any proposed written communication or response to any of the foregoing. Notwithstanding the foregoing or any other covenant herein contained, in connection with this Section 5.3 may be redacted or withheld as the receipt of any necessary to address reasonable privilege or confidentiality concerns of legal counsel of approvals under the HSR Act, neither the Buyer, any Seller, the Company, and any Subsidiary nor any of its respective Affiliates shall be required to: (a) divest or hold separate or otherwise take or commit to remove references concerning take any action that limits the valuation Buyer's freedom of action with respect to, or its ability to retain, the Company or other competitively sensitive material; providedany Subsidiary or any material portions thereof or any of the businesses, that product lines, properties or assets of the Company mayBuyer, as it deems advisable and necessary, designate any materials provided to the BRPA under this Section 5.3 as “outside counsel only.” Filing fees with respect to the notifications required under the HSR Act shall be paid by the Company.
, or any Subsidiary, without the Buyer's prior written consent; or (b) BRPA shall not, and shall cause its Subsidiaries not to, acquire or agree commence any litigation against any entity in order to acquire, by merging with or into or consolidating with, or by purchasing a portion of the assets of or equity in, or by any other manner, any business or any corporation, partnership, association or other business organization or division thereof, or otherwise acquire or agree to acquire any assets, or take any other action, if the entering into of a definitive agreement relating to, or facilitate the consummation of such acquisition, merger or consolidation, or the taking of any other action, would reasonably be expected to (i) impose any material delay in the obtaining of, or materially increase the risk of not obtaining, any authorizations, consents, orders or declarations of any Governmental Entities or the expiration or termination of any applicable waiting period; (ii) materially increase the risk of any Governmental Entity entering an order prohibiting the consummation of the transaction contemplated hereby; (iii) materially increase the risk of not being able to remove any such order on appeal or otherwise; or (iv) materially delay or prevent the consummation of the transactions contemplated hereby. Notwithstanding anything in this Agreement to the contrary, the restrictions and obligations set forth in this Section 5.3(b) shall not apply to or be binding upon BRPA’s Affiliates, the Sponsor, their respective Affiliates or any investment funds or investment vehicles affiliated with, or managed or advised by, BRPA’s Affiliates, the Sponsor, or any portfolio company (as such term is commonly understood in the private equity industry) or investment of BRPA’s Affiliates, the Sponsor, or of any such investment fund or investment vehicle.
Appears in 2 contracts
Samples: Securities Purchase Agreement (Jarden Corp), Securities Purchase Agreement (Jarden Corp)
HSR Act. As soon as practicable after the execution hereof but in no event later than ten business days after the execution hereof, each of PCC and FBC shall make such filings, if any, required by the Hart-Xxxxx-Xxxxxx Xxxitrust Improvements Act of 1976, as amended (a) If required pursuant to the "HSR Act, ") as promptly as practicable, BRPA a result of the transactions contemplated by this Option Agreement and the Company shall use reasonable best efforts Time Brokerage Agreement. PCC and FBC agree to (a) cooperate with each prepare and file the notification required of it thereunder other in connection with all such HSR Act filings, which cooperation shall include furnishing the Merger as soon as other with any information or documents that may be reasonably practicable but no later than twenty (20) Business Days following January 14, 2021, required in connection with such filings; (b) promptly and in good faith respond to all information requested of it file, after any request by the Federal Trade Commission and ("FTC") or Department of Justice in connection ("DOJ") and after appropriate negotiation with the FTC or DOJ of the scope of such notification request, any information or documents requested by the FTC or DOJ; and otherwise cooperate in good faith with each other and such Governmental Entities, (c) furnish each request early termination of other with any waiting period under the HSR Actcorrespondence from or to, and (d) submit, as soon as practicable, any other required applications or filings pursuant to any Antitrust Laws and furnish to the other Party as promptly as reasonably practicable all information required for any application or other filing required to be made pursuant to any Antitrust Law. BRPA and the Company shall substantially comply with any information or document requests by the Federal Trade Commission or the Department of Justice in connection with the Merger. BRPA and the Company shall (i) promptly inform the notify each other of any substantive communication to or from the Federal Trade Commissionother communications with, the Department of Justice FTC or any other Governmental Entity regarding the Merger and permit counsel DOJ that relates to the other Party an opportunity to review in advancetransactions contemplated hereunder and under the Time Brokerage Agreement, and each Party shall consider in good faith the views of such counsel in connection with, any proposed written communications by such Party to any Governmental Entity concerning the Merger, (ii) give the other prompt notice of the commencement of any judicial or administrative action, suit, litigation, arbitration, proceeding by or before any Governmental Entity with respect to such transactions, and (iii) keep the other reasonably informed as to the status of any such action. Each Party agrees to provide, to the extent permitted by the applicable Governmental Entitypracticable, the to permit each other Party and its counsel the opportunity, on reasonable advance notice, to participate in any substantive meetings or discussions, either in person or by telephone, between such Party and/or any of its Affiliates, agents or advisors, on the one hand, and any Governmental Entity, on the other hand, concerning or in connection conferences with the Merger; provided, neither Party shall extend any FTC or DOJ. The transfer of the Assets pursuant to the Asset Purchase Agreement and the commencement of the transaction contemplated by the Time Brokerage Agreement are expressly conditioned upon the waiting period relating to any such filings the ("HSR Waiting Period") having duly expired or comparable period under been terminated by the HSR Act or enter into any agreement with any Governmental Entity appropriate government agencies without the written consent enforcement of any action by any such agencies to restrain or postpone the other Partytransactions contemplated hereby. Any materials exchanged in connection with this Section 5.3 may filing fees required to be redacted or withheld paid as necessary to address reasonable privilege or confidentiality concerns a result of legal counsel of the Company, and to remove references concerning the valuation of the Company or other competitively sensitive material; provided, that the Company may, as it deems advisable and necessary, designate any materials provided to the BRPA under this Section 5.3 as “outside counsel only.” Filing fees with respect to the notifications required under the HSR Act shall be paid one-half by the CompanyPCC and one-half by FBC.
(b) BRPA shall not, and shall cause its Subsidiaries not to, acquire or agree to acquire, by merging with or into or consolidating with, or by purchasing a portion of the assets of or equity in, or by any other manner, any business or any corporation, partnership, association or other business organization or division thereof, or otherwise acquire or agree to acquire any assets, or take any other action, if the entering into of a definitive agreement relating to, or the consummation of such acquisition, merger or consolidation, or the taking of any other action, would reasonably be expected to (i) impose any material delay in the obtaining of, or materially increase the risk of not obtaining, any authorizations, consents, orders or declarations of any Governmental Entities or the expiration or termination of any applicable waiting period; (ii) materially increase the risk of any Governmental Entity entering an order prohibiting the consummation of the transaction contemplated hereby; (iii) materially increase the risk of not being able to remove any such order on appeal or otherwise; or (iv) materially delay or prevent the consummation of the transactions contemplated hereby. Notwithstanding anything in this Agreement to the contrary, the restrictions and obligations set forth in this Section 5.3(b) shall not apply to or be binding upon BRPA’s Affiliates, the Sponsor, their respective Affiliates or any investment funds or investment vehicles affiliated with, or managed or advised by, BRPA’s Affiliates, the Sponsor, or any portfolio company (as such term is commonly understood in the private equity industry) or investment of BRPA’s Affiliates, the Sponsor, or of any such investment fund or investment vehicle.
Appears in 2 contracts
Samples: Option Agreement (Paxson Communications Corp), Option Agreement (Paxson Communications Corp)
HSR Act. (a) If required Subject to the terms and conditions of this Agreement, each party shall use its commercially reasonable efforts to (i) take, or cause to be taken, all actions and to do, or cause to be done, all things necessary under applicable Laws to consummate the transactions contemplated by this Agreement; (ii) if required, file a Notification and Report Form pursuant to the HSR Act, Act with respect to the transactions contemplated hereby within five Business Days after entry of the Sale Order; (iii) supply as promptly as practicable any additional information and documentary material that may be requested or required pursuant to any Antitrust Law, including the HSR Act and (iv) if applicable, cause the expiration or termination of the applicable waiting periods under the HSR Act or any other Antitrust Law as soon as practicable, BRPA and .
(b) Each of the Company parties shall use commercially reasonable best efforts to (a) cooperate with each prepare other in connection with any filing or submission and file in connection with any investigation or other inquiry, including any proceeding initiated by a private party; (b) keep the notification required other parties informed in all material respects of any material communication received by such party from, or given by such party to, any Governmental Entity and of any material communication received or given in connection with any proceeding by a private party, in each case regarding any of the transactions contemplated hereby and (c) permit the other party to review any material communication given to it thereunder by, and consult with each other in advance of any meeting or conference with any Governmental Entity, including in connection with any proceeding by a private party. The foregoing obligations in this Section 8.4 shall be subject to the Confidentiality Agreement and any attorney-client, work product or other privilege, and each of the parties hereto shall coordinate and cooperate fully with the other parties hereto in exchanging such information and providing such assistance as such other parties may reasonably request in connection with the Merger as soon as reasonably practicable but no later than twenty (20) Business Days following January 14, 2021, (b) promptly foregoing and in good faith respond to all information requested of it by the Federal Trade Commission and Department of Justice in connection with such notification and otherwise cooperate in good faith with each other and such Governmental Entities, (c) each request seeking early termination of any waiting period under the HSR Act, and (d) submit, as soon as practicable, any other required applications or filings pursuant to any Antitrust Laws and furnish to the other Party as promptly as reasonably practicable all information required for any application or other filing required to be made pursuant to any Antitrust Law. BRPA and the Company shall substantially comply with any information or document requests by the Federal Trade Commission or the Department of Justice in connection with the Merger. BRPA and the Company shall (i) promptly inform the other of any substantive communication to or from the Federal Trade Commission, the Department of Justice or any other Governmental Entity regarding the Merger and permit counsel to the other Party an opportunity to review in advance, and each Party shall consider in good faith the views of such counsel in connection with, any proposed written communications by such Party to any Governmental Entity concerning the Merger, (ii) give the other prompt notice of the commencement of any judicial or administrative action, suit, litigation, arbitration, proceeding by or before any Governmental Entity with respect to such transactions, and (iii) keep the other reasonably informed as to the status of any such action. Each Party agrees to provide, to the extent permitted by the applicable Governmental Entity, the other Party and its counsel the opportunity, on reasonable advance notice, to participate in any substantive meetings or discussions, either in person or by telephone, between such Party and/or any of its Affiliates, agents or advisors, on the one hand, and any Governmental Entity, on the other hand, concerning or in connection with the Merger; provided, neither Party shall extend any waiting period or comparable period under the HSR Act or enter into any agreement with any Governmental Entity without the written consent of the other Party. Any materials exchanged in connection with this Section 5.3 may be redacted or withheld as necessary to address reasonable privilege or confidentiality concerns of legal counsel of the Company, and to remove references concerning the valuation of the Company or other competitively sensitive material; provided, that the Company may, as it deems advisable and necessary, designate any materials provided to the BRPA under this Section 5.3 as “outside counsel only.” Filing fees with respect to the notifications required under the HSR Act shall be paid by the Company.
(b) BRPA shall not, and shall cause its Subsidiaries not to, acquire or agree to acquire, by merging with or into or consolidating with, or by purchasing a portion of the assets of or equity in, or by any other manner, any business or any corporation, partnership, association or other business organization or division thereof, or otherwise acquire or agree to acquire any assets, or take any other action, if the entering into of a definitive agreement relating to, or the consummation of such acquisition, merger or consolidation, or the taking of any other action, would reasonably be expected to (i) impose any material delay in the obtaining of, or materially increase the risk of not obtaining, any authorizations, consents, orders or declarations of any Governmental Entities or the expiration or termination of any applicable waiting period; (ii) materially increase periods under Antitrust Law. The parties will not take any action that will have the risk effect of delaying, impairing or impeding the receipt of any Governmental Entity entering an order prohibiting required authorizations, consents, Orders or approvals. “Antitrust Law” means the consummation of the transaction contemplated hereby; (iii) materially increase the risk of not being able to remove any such order on appeal or otherwise; or (iv) materially delay or prevent the consummation of the transactions contemplated hereby. Notwithstanding anything in this Agreement to the contraryXxxxxxx Act, as amended, the restrictions and obligations set forth in this Section 5.3(b) shall not apply to or be binding upon BRPA’s AffiliatesXxxxxxx Act, as amended, the Sponsor, their respective Affiliates or any investment funds or investment vehicles affiliated with, or managed or advised by, BRPA’s AffiliatesHSR Act, the SponsorFederal Trade Commission Act, as amended, and all other Applicable Laws that are designed or intended to prohibit, restrict or regulate actions having the purpose or effect of monopolization or restraint of trade or lessening of competition through merger or acquisition. Fees incurred in connection with complying with any portfolio company (as such term is commonly understood in the private equity industry) or investment of BRPA’s Affiliates, the Sponsor, or of any such investment fund or investment vehicleAntitrust Law shall be borne solely by Seller.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Evergreen Solar Inc), Asset Purchase Agreement
HSR Act. (a) If required pursuant to In connection with the HSR Acttransactions contemplated by this Agreement, as promptly as practicable, BRPA and the Company shall (and, to the extent required, shall cause its Affiliates to) (i) comply promptly, but in no event later than five (5) Business Days after the date hereof, with the notification and reporting requirements of the HSR Act and make all further filings pursuant thereto that may be necessary (including resubmit filings that are rejected for any reason whatsoever by the relevant Governmental Authority) and (ii) use its reasonable best efforts to obtain early termination of the waiting period under the HSR Act and to obtain such other approvals, consents and clearances as may be required under any foreign antitrust or competition laws. The Company shall use its reasonable best efforts to comply with any Antitrust Information or Document Requests made of the Company or any of its Affiliates and to participate in or defend against any Action or litigation as set forth in Section 7.1 herein.
(b) The Company shall exercise its reasonable best efforts to (ai) each prepare and file the notification required of it thereunder in connection with the Merger as soon as reasonably practicable but no later than twenty (20) Business Days following January 14, 2021, (b) promptly and in good faith respond furnish to Industrea all information requested of it by the Federal Trade Commission and Department of Justice in connection with such notification and otherwise cooperate in good faith with each other and such Governmental Entities, (c) each request early termination of any waiting period under the HSR Act, and (d) submit, as soon as practicable, any other required applications or filings pursuant to any Antitrust Laws and furnish to the other Party as promptly as reasonably practicable all information required for any application or other filing required to be made pursuant to any Antitrust Law. BRPA and the Company shall substantially comply with any information or document requests by the Federal Trade Commission or the Department of Justice Law in connection with the Merger. BRPA transactions contemplated by this Agreement (including, to the extent permitted by Law, responding to any reasonable requests for copies of documents filed with Industrea’s prior filings) and (ii) otherwise reasonably cooperate with Industrea in connection with any filing and in connection with resolving any investigation or other inquiry of any Governmental Authority.
(c) The Company and the Holder Representative shall promptly furnish to Industrea copies of any notices or written communications received or given by them or any of their Affiliates from or to any third party or any Governmental Authority with respect to the transactions contemplated by this Agreement, and the Company and the Holder Representative shall (i) promptly inform the other of any substantive communication to or from the Federal Trade Commission, the Department of Justice or any other Governmental Entity regarding the Merger and permit counsel to the other Party Industrea an opportunity to review in advance, and each Party the Company and the Holder Representative shall consider in good faith the views of such counsel in connection with, any proposed written communications by such Party the Company and/or the Holder Representative or their respective Affiliates to any third party or any Governmental Entity Authority concerning the Merger, (ii) give transactions contemplated by this Agreement. The Company and the other prompt notice of the commencement of any judicial or administrative action, suit, litigation, arbitration, proceeding by or before any Governmental Entity with respect Holder Representative agree to such transactions, and (iii) keep the other reasonably informed as to the status of any such action. Each Party agrees to provide, to the extent permitted by the applicable Governmental Entity, the other Party provide Industrea and its counsel the opportunity, on reasonable advance notice, to participate in any substantive meetings or discussions, either in person or by telephone, between such Party the Company and/or the Holder Representative and any of its their respective Affiliates, agents or advisors, on the one hand, and any third party or any Governmental EntityAuthority, on the other hand, concerning or in connection with the Merger; provided, neither Party shall extend any waiting period or comparable period under the HSR Act or enter into any agreement with any Governmental Entity without the written consent of the other Party. Any materials exchanged in connection with this Section 5.3 may be redacted or withheld as necessary to address reasonable privilege or confidentiality concerns of legal counsel of the Company, and to remove references concerning the valuation of the Company or other competitively sensitive material; provided, that the Company may, as it deems advisable and necessary, designate any materials provided to the BRPA under this Section 5.3 as “outside counsel only.” Filing fees with respect to the notifications required under the HSR Act shall be paid by the Company.
(b) BRPA shall not, and shall cause its Subsidiaries not to, acquire or agree to acquire, by merging with or into or consolidating with, or by purchasing a portion of the assets of or equity in, or by any other manner, any business or any corporation, partnership, association or other business organization or division thereof, or otherwise acquire or agree to acquire any assets, or take any other action, if the entering into of a definitive agreement relating to, or the consummation of such acquisition, merger or consolidation, or the taking of any other action, would reasonably be expected to (i) impose any material delay in the obtaining of, or materially increase the risk of not obtaining, any authorizations, consents, orders or declarations of any Governmental Entities or the expiration or termination of any applicable waiting period; (ii) materially increase the risk of any Governmental Entity entering an order prohibiting the consummation of the transaction contemplated hereby; (iii) materially increase the risk of not being able to remove any such order on appeal or otherwise; or (iv) materially delay or prevent the consummation of the transactions contemplated hereby. Notwithstanding anything in this Agreement to the contrary, the restrictions and obligations set forth in this Section 5.3(b) shall not apply to or be binding upon BRPA’s Affiliates, the Sponsor, their respective Affiliates or any investment funds or investment vehicles affiliated with, or managed or advised by, BRPA’s Affiliates, the Sponsor, or any portfolio company (as such term is commonly understood in the private equity industry) or investment of BRPA’s Affiliates, the Sponsor, or of any such investment fund or investment vehicle.
Appears in 2 contracts
Samples: Merger Agreement (Industrea Acquisition Corp.), Merger Agreement
HSR Act. (ai) If required pursuant to Mondavi and Constellation shall, promptly after the HSR Actexecution and delivery of this Agreement, as promptly as practicable, BRPA and the Company shall use reasonable best efforts to (a) each prepare and file the notification required of it thereunder in connection with the Merger as soon as reasonably practicable but no later than twenty (20) Business Days following January 14, 2021, (b) promptly and in good faith respond to all information requested of it by the Federal Trade Commission and the Department of Justice the notification required to be filed with respect to the transactions provided in connection with such notification this Agreement under the HSR Act (and otherwise cooperate in good faith with each other and such Governmental Entities, (c) each request early termination of any the waiting period period) and shall file promptly with the appropriate Governmental Authorities all notifications required under applicable Foreign Antitrust Laws. Each of Constellation and Mondavi shall, in connection therewith, cooperate as necessary to promptly amend such filings or supply additional information and documentary material as may be requested pursuant to the HSR ActAct or Foreign Antitrust Laws.
(ii) Each party hereto, and through outside counsel, will (dA) submitpromptly notify every other party hereto of any written communication to that party from any Governmental Authority concerning this Agreement or the transactions contemplated hereby and, as soon as if practicable, any permit each other required applications or filings pursuant to any Antitrust Laws and furnish to the other Party as promptly as reasonably practicable all information required for any application or other filing required to be made pursuant to any Antitrust Law. BRPA and the Company shall substantially comply with any information or document requests by the Federal Trade Commission or the Department of Justice in connection with the Merger. BRPA and the Company shall (i) promptly inform the other of any substantive communication to or from the Federal Trade Commission, the Department of Justice or any other Governmental Entity regarding the Merger and permit party's counsel to the other Party an opportunity to review in advance, and each Party shall consider in good faith the views of such counsel in connection with, advance any proposed written communications by such Party communication to any such Governmental Entity Authority concerning this Agreement or the Merger, transactions contemplated hereby and incorporate each other party's reasonable comments; (iiB) give the other prompt notice of the commencement not agree to participate in any substantive meeting or discussion with any such Governmental Authority in respect of any judicial filing, investigation or administrative actioninquiry concerning this Agreement or the transactions contemplated hereby unless it consults with each other party's counsel in advance, suit, litigation, arbitration, proceeding by or before any Governmental Entity with respect to such transactions, and (iii) keep the other reasonably informed as to the status of any such action. Each Party agrees to provideand, to the extent permitted by such Governmental Authority, gives each other party the applicable Governmental Entityopportunity to attend and (C) furnish to each other party's counsel copies of all correspondence, the other Party filings, and its counsel the opportunity, on reasonable advance notice, to participate in any substantive meetings or discussions, either in person or by telephone, written communications between such Party and/or any of its Affiliates, agents or advisors, them and their respective representatives on the one hand, and any such Governmental Entity, Authority or its respective staff on the other hand, concerning with respect to this Agreement or the transactions contemplated hereby.
(iii) Notwithstanding anything to the contrary contained in this Agreement, Constellation shall not be required to agree, and Mondavi shall not agree without Constellation's prior written consent, to waive any substantial rights or to accept any substantial limitation on its operations or to dispose of any significant assets in connection with the Merger; provided, neither Party shall extend obtaining any waiting period consent or comparable period authorization under the HSR Act or enter into any agreement with any Governmental Entity without the written consent of the other Party. Any materials exchanged in connection with this Section 5.3 may be redacted under Foreign Antitrust Laws unless such waiver, limitation or withheld as necessary to address reasonable privilege or confidentiality concerns of legal counsel of the Company, and to remove references concerning the valuation of the Company or other competitively sensitive material; provided, that the Company may, as it deems advisable and necessary, designate any materials provided to the BRPA under this Section 5.3 as “outside counsel only.” Filing fees with respect to the notifications required under the HSR Act shall be paid by the Company.
(b) BRPA shall not, and shall cause its Subsidiaries disposition would not to, acquire or agree to acquire, by merging with or into or consolidating with, or by purchasing a portion of the assets of or equity in, or by any other manner, any business or any corporation, partnership, association or other business organization or division thereof, or otherwise acquire or agree to acquire any assets, or take any other action, if the entering into of a definitive agreement relating to, or the consummation of such acquisition, merger or consolidation, or the taking of any other action, would reasonably be expected to (i) impose have a Material Adverse Effect on Constellation or Mondavi, PROVIDED, HOWEVER, that at Constellation's written request, Mondavi shall agree to any material delay in the obtaining ofsuch waiver, limitation or materially increase the risk of not obtainingdisposal, any authorizationswhich agreement may, consentsat Mondavi's option, orders or declarations of any Governmental Entities or the expiration or termination of any applicable waiting period; (ii) materially increase the risk of any Governmental Entity entering an order prohibiting the consummation be conditioned upon and effective only as of the transaction contemplated hereby; (iii) materially increase the risk of not being able to remove any such order on appeal or otherwise; or (iv) materially delay or prevent the consummation of the transactions contemplated hereby. Notwithstanding anything in this Agreement to the contrary, the restrictions and obligations set forth in this Section 5.3(b) shall not apply to or be binding upon BRPA’s Affiliates, the Sponsor, their respective Affiliates or any investment funds or investment vehicles affiliated with, or managed or advised by, BRPA’s Affiliates, the Sponsor, or any portfolio company (as such term is commonly understood in the private equity industry) or investment of BRPA’s Affiliates, the Sponsor, or of any such investment fund or investment vehicleEffective Time.
Appears in 2 contracts
Samples: Merger Agreement (Constellation Brands, Inc.), Merger Agreement (Constellation Brands, Inc.)
HSR Act. (a) If required pursuant to the HSR Act, as promptly as practicable, BRPA and the Company shall use reasonable best efforts to (a) each prepare and file the notification required of it thereunder in connection with the Merger as soon as reasonably practicable but no later than twenty (20) Business Days following January 14, 2021, (b) promptly and in good faith respond to all information requested of it by the Federal Trade Commission and Department of Justice in connection with such notification and otherwise cooperate in good faith with each other and such Governmental Entities, (c) each request early termination of any waiting period under the HSR Act, and (d) submit, as soon as practicable, any other required applications or filings pursuant to any Antitrust Laws and furnish to the other Party as promptly as reasonably practicable all information required for any application or other filing required to be made pursuant to any Antitrust Law. BRPA and the Company shall substantially comply with any information or document requests by the Federal Trade Commission or the Department of Justice in connection with the Merger. BRPA and the Company Each party hereto shall (i) take promptly inform all actions necessary to make the other filings required of any substantive communication to or from the Federal Trade Commission, the Department of Justice it or any other Governmental Entity regarding the Merger and permit counsel to the other Party an opportunity to review in advance, and each Party shall consider in good faith the views of such counsel its affiliates under any applicable Antitrust Laws in connection with, any proposed written communications by such Party to any Governmental Entity concerning with this Agreement and the Mergertransactions contemplated hereby, (ii) give comply at the other prompt notice earliest practicable date with any formal or informal request for additional information or documentary material received by it or any of the commencement of its affiliates from any judicial or administrative action, suit, litigation, arbitration, proceeding by or before any Governmental Entity with respect to such transactions, Antitrust Authority and (iii) keep the other reasonably informed as to the status of any such action. Each Party agrees to provide, to the extent permitted by the applicable Governmental Entity, the other Party and its counsel the opportunity, on reasonable advance notice, to participate in any substantive meetings or discussions, either in person or by telephone, between such Party and/or any of its Affiliates, agents or advisors, on the cooperate with one hand, and any Governmental Entity, on the other hand, concerning or another in connection with the Merger; provided, neither Party shall extend any waiting period or comparable period filing under the HSR Act or enter into any agreement with any Governmental Entity without the written consent of the other Party. Any materials exchanged applicable Antitrust Laws and in connection with this Section 5.3 may be redacted resolving any investigation or withheld as necessary to address reasonable privilege or confidentiality concerns of legal counsel of the Company, and to remove references other inquiry concerning the valuation of the Company or other competitively sensitive material; provided, that the Company may, as it deems advisable and necessary, designate transactions contemplated by this Agreement initiated by any materials provided to the BRPA under this Section 5.3 as “outside counsel only.” Filing fees with respect to the notifications required under the HSR Act shall be paid by the CompanyAntitrust Authority.
(b) BRPA Each party hereto shall notuse its reasonable best efforts to resolve such objections, if any, as may be asserted with respect to the transactions contemplated by this -39- 45 Agreement under any Antitrust Law. Without limiting the generality of the foregoing, "reasonable best efforts" shall include, without limitation:
(i) in the case of each of Parent and the Company:
(A) filing with the appropriate Antitrust Authorities no later than the fifth (5th) day following the date hereof a Notification and Report Form with respect to the transactions contemplated by this Agreement; and
(B) if Parent or the Company receives a formal request for information and documents from an Antitrust Authority, substantially complying with such formal request within 60 days following the date of its receipt thereof or such shorter period as is required by applicable Antitrust Laws; and
(ii) in the case of the Company only, subject to Parent's compliance with clause (i) above, not frustrating or impeding Parent's strategy or negotiating positions with any Antitrust Authority, PROVIDED THAT in no event shall cause Parent or any of its Subsidiaries not tosubsidiaries be required to agree or commit to divest, acquire hold separate, offer for sale, abandon, limit its operation of or agree take similar action with respect to acquireany assets (tangible or intangible) or any business interest of it or any of its subsidiaries (including, by merging without limitation, the Surviving Corporation after consummation of the Offer or the Merger) in connection, with or into as a condition to receiving the consent or consolidating with, or by purchasing a portion of the assets of or equity in, or by any other mannerapproval of, any business or Antitrust Authority.
(c) Each party hereto shall promptly inform the other parties of any corporation, partnership, association or other business organization or division thereof, or otherwise acquire or agree to acquire any assets, or take any other action, if the entering into of a definitive agreement relating material communication made to, or the consummation of received by such acquisitionparty from, merger any Antitrust Authority or consolidation, or the taking of any other action, would reasonably be expected to (i) impose governmental or regulatory authority regarding any material delay in the obtaining of, or materially increase the risk of not obtaining, any authorizations, consents, orders or declarations of any Governmental Entities or the expiration or termination of any applicable waiting period; (ii) materially increase the risk of any Governmental Entity entering an order prohibiting the consummation of the transaction contemplated hereby; (iii) materially increase the risk of not being able to remove any such order on appeal or otherwise; or (iv) materially delay or prevent the consummation of the transactions contemplated hereby. Notwithstanding anything in this Agreement to the contrary, the restrictions and obligations set forth in this Section 5.3(b) shall not apply to or be binding upon BRPA’s Affiliates, the Sponsor, their respective Affiliates or any investment funds or investment vehicles affiliated with, or managed or advised by, BRPA’s Affiliates, the Sponsor, or any portfolio company (as such term is commonly understood in the private equity industry) or investment of BRPA’s Affiliates, the Sponsor, or of any such investment fund or investment vehicle.
Appears in 2 contracts
Samples: Merger Agreement (Wang Laboratories Inc), Merger Agreement (Wang Laboratories Inc)
HSR Act. (a) If required Subject to the terms and conditions of this Agreement, each of the parties will (i) use commercially reasonable efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary under applicable antitrust Laws to consummate the transactions contemplated by this Agreement, (ii) use commercially reasonable efforts to supply as promptly as practicable any additional information and documentary material that may be requested pursuant to the HSR Act, as promptly as practicable, BRPA Act and the Company shall (iii) use commercially reasonable best efforts to (a) each prepare and file cause the notification required of it thereunder in connection with the Merger as soon as reasonably practicable but no later than twenty (20) Business Days following January 14, 2021, (b) promptly and in good faith respond to all information requested of it by the Federal Trade Commission and Department of Justice in connection with such notification and otherwise cooperate in good faith with each other and such Governmental Entities, (c) each request early expiration or termination of any the applicable waiting period periods under the HSR Act, and (d) submit, Act as soon as practicable, any other required applications or filings pursuant to any Antitrust Laws and furnish to the other Party as promptly as reasonably practicable all information required for any application or other filing required to be made pursuant to any Antitrust Law. BRPA and the Company shall substantially comply with any information or document requests by the Federal Trade Commission or the Department of Justice in .
(b) In connection with the Merger. BRPA efforts to obtain all requisite approvals and authorizations for the Company shall (i) promptly inform the other of any substantive communication to or from the Federal Trade Commission, the Department of Justice or any other Governmental Entity regarding the Merger and permit counsel to the other Party an opportunity to review in advance, and each Party shall consider in good faith the views of such counsel in connection with, any proposed written communications transactions contemplated by such Party to any Governmental Entity concerning the Merger, (ii) give the other prompt notice of the commencement of any judicial or administrative action, suit, litigation, arbitration, proceeding by or before any Governmental Entity with respect to such transactions, and (iii) keep the other reasonably informed as to the status of any such action. Each Party agrees to provide, to the extent permitted by the applicable Governmental Entity, the other Party and its counsel the opportunity, on reasonable advance notice, to participate in any substantive meetings or discussions, either in person or by telephone, between such Party and/or any of its Affiliates, agents or advisors, on the one hand, and any Governmental Entity, on the other hand, concerning or in connection with the Merger; provided, neither Party shall extend any waiting period or comparable period this Agreement under the HSR Act or enter into any agreement with any Governmental Entity without the written consent other antitrust Law, each of the other Party. Any materials exchanged in connection with this Section 5.3 may be redacted or withheld as necessary to address parties shall use commercially reasonable privilege or confidentiality concerns of legal counsel of the Company, and to remove references concerning the valuation of the Company or other competitively sensitive material; provided, that the Company may, as it deems advisable and necessary, designate any materials provided to the BRPA under this Section 5.3 as “outside counsel only.” Filing fees with respect to the notifications required under the HSR Act shall be paid by the Company.
(b) BRPA shall not, and shall cause its Subsidiaries not to, acquire or agree to acquire, by merging with or into or consolidating with, or by purchasing a portion of the assets of or equity in, or by any other manner, any business or any corporation, partnership, association or other business organization or division thereof, or otherwise acquire or agree to acquire any assets, or take any other action, if the entering into of a definitive agreement relating to, or the consummation of such acquisition, merger or consolidation, or the taking of any other action, would reasonably be expected efforts to (i) impose cooperate, and assist as reasonably requested, with each other in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by a private party, (ii) keep the other parties informed in all material respects of any material delay in the obtaining ofcommunication received by such party from, or materially increase given by such party to, the risk Federal Trade Commission (the "FTC"), the Antitrust Division of not obtaining, the Department of Justice (the "DOJ") or any authorizations, consents, orders or declarations other Governmental Authority and of any material, communication received or given in connection with any proceeding by a private party, in each case regarding any of the transactions contemplated hereby and (iii) permit the other parties to review any material communication given to it by, and consult with each other in advance of any meeting or conference with, the FTC, the DOJ or any other Governmental Entities or Authority in connection with any proceeding by a private party. Each of the expiration or parties thereto will coordinate and cooperate fully with the other parties hereto in exchanging information and providing such assistance as such other parties may reasonably request in connection with the foregoing and in seeking early termination of any applicable waiting period; (ii) materially increase periods under the risk of HSR Act. Sellers shall maintain in the strictest confidence any Governmental Entity entering an order prohibiting the consummation of the transaction contemplated hereby; (iii) materially increase the risk of not being able to remove any such order on appeal or otherwise; or (iv) materially delay or prevent the consummation of the transactions contemplated hereby. Notwithstanding anything in this Agreement to the contrarymaterial, the restrictions and obligations set forth in this Section 5.3(b) shall not apply to or be binding upon BRPA’s Affiliates, the Sponsor, their respective Affiliates non-public information about Purchaser or any investment funds of Purchaser's direct or investment vehicles affiliated withindirect Affiliates obtained in connection with the foregoing efforts and shall cause any employee, officer, director or managed or advised by, BRPA’s Affiliates, the Sponsor, or any portfolio company (as representative of Sellers to maintain such term is commonly understood information in the private equity industry) or investment of BRPA’s Affiliates, the Sponsor, or of any such investment fund or investment vehiclestrictest confidence.
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Samples: Asset Purchase Agreement (Blue Steel Capital Corp), Asset Purchase Agreement (Republic Technologies International Holdings LLC)
HSR Act. (a) If As promptly as reasonably practicable following the execution of this Agreement, but in no event later than ten (10) Business Days following the date of this Agreement, the parties shall make or cause its respective ultimate parent entity (as defined in the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended, and the rules and regulations promulgated thereunder (the “HSR Act”)) to make any filings required pursuant to under the HSR Act, as promptly as practicable, BRPA . Each of the AMGP Parties and the Company AMLP Parties shall use take reasonable best efforts to (a) each prepare and file the notification required of it thereunder in connection with the Merger as soon as reasonably practicable but no later than twenty (20) Business Days following January 14, 2021, (b) promptly and in good faith respond to all information requested of it by the Federal Trade Commission and Department of Justice in connection with such notification and otherwise cooperate in good faith fully with each other and shall furnish to the other such Governmental Entitiesnecessary information and reasonable assistance as the other may reasonably request in connection with its preparation of any filings under the HSR Act. Unless otherwise agreed, (c) the AMGP Parties and AMLP Parties shall each request early use its reasonable best efforts to obtain the prompt expiration or termination of any applicable waiting period under the HSR Act, . The AMGP Parties and (d) submit, as soon as practicable, any other required applications or filings pursuant AMLP Parties shall each use its reasonable best efforts to any Antitrust Laws respond to and furnish to the other Party as promptly as reasonably practicable all information required for any application or other filing required to be made pursuant to any Antitrust Law. BRPA and the Company shall substantially comply with any request for information or document requests by documentary material from any Governmental Entity charged with enforcing, applying, administering, or investigating the Federal Trade Commission HSR Act or any other Law designed to prohibit, restrict or regulate actions for the Department purpose or effect of Justice in connection with the Merger. BRPA and the Company shall mergers, monopolization, restraining trade or abusing a dominant position (i) promptly inform the other of any substantive communication to or from collectively, “Antitrust Laws”), including the Federal Trade Commission, the Antitrust Division of the U.S. Department of Justice Justice, any attorney general of any state of the United States, or any other Governmental Entity regarding competition authority of any jurisdiction (“Antitrust Authority”).
(b) Each of the Merger AMGP Parties and permit counsel AMLP Parties shall, in connection with the efforts referenced in Section 7.4(a), (i) use its reasonable best efforts to cooperate in all respects with each other in connection with any review, proceeding, investigation or other inquiry, including any proceeding initiated by a private party under the Antitrust Laws; (ii) promptly notify the other Party an opportunity party of any communication concerning this Agreement or any of the transactions contemplated hereby to review that party from or with any Governmental Entity, or from any other Person alleging that the consent of such person (or another Person) under any Antitrust Laws is or may be required in advanceconnection with the Transactions, and each Party shall consider in good faith the views of the other party and keep the other party reasonably informed of the status of matters related to the transactions contemplated by this Agreement, including furnishing the other party with any written notices or other communications received by such counsel party from, or given by such party to, any Governmental Entity and of any communication received or given in connection withwith any proceeding by a private party, in each case regarding any of the transactions contemplated hereby, except that any materials concerning one party’s valuation of the other party may be redacted; and (iii) permit the other party to review all drafts of any proposed written communications communication to be submitted by such Party it to any Governmental Entity concerning the Mergeror other Person in connection with any review, (ii) give the inquiry, investigation or consent under any Antitrust Laws with reasonable time and opportunity to comment, and consult with each other prompt notice of the commencement in advance of any judicial in-person or administrative action, suit, litigation, arbitration, proceeding by telephonic meeting or before conference with any Governmental Entity or, in connection with respect to such transactionsany proceeding by a private party, and (iii) keep the with any other reasonably informed as to the status of any such action. Each Party agrees to providePerson, to the extent permitted and, unless prohibited by the applicable Governmental EntityEntity or Person, the other Party and its counsel the opportunity, on reasonable advance notice, not agree to participate in any substantive meetings meeting or discussions, either in person or by telephone, between such Party and/or any of its Affiliates, agents or advisors, on the one hand, and any Governmental Entity, on the other hand, concerning or in connection with the Merger; provided, neither Party shall extend any waiting period or comparable period under the HSR Act or enter into any agreement discussion with any Governmental Entity without the written consent relating to any filings or investigations concerning this Agreement or any of the transactions contemplated hereby unless it consults with the other Partyparty and its Representatives in advance and invites the other party’s Representatives to attend in accordance with applicable Laws. Any materials exchanged in connection AMGP shall be entitled to direct any Proceedings with this Section 5.3 may be redacted any Antitrust Authority or withheld as necessary other Person relating to address reasonable privilege or confidentiality concerns of legal counsel any of the Company, and to remove references concerning the valuation of the Company or other competitively sensitive materialforegoing; provided, however, that it shall afford the Company mayAMLP Parties a reasonable opportunity to participate therein. The AMGP Parties and AMLP Parties shall take reasonable efforts to share information protected from disclosure under the attorney-client privilege, work product doctrine, joint defense privilege or any other privilege pursuant to this section so as to preserve any applicable privilege.
(c) In furtherance and not in limitation of the foregoing, each of the AMGP Parties and the AMLP Parties and its Subsidiaries shall each use its reasonable best efforts to resolve objections, if any, as it deems advisable and necessary, designate any materials provided to the BRPA under this Section 5.3 as “outside counsel only.” Filing fees may be asserted with respect to the notifications transactions contemplated by this Agreement under any Laws, including any Antitrust Laws; provided, however, that if, in order to resolve any objections, the AMLP Parties are required under to divest, sell, dispose of, hold separate or otherwise take or commit to take any action that limits its freedom with respect to its or its Subsidiaries’ ability to retain or operate any of the HSR Act businesses, product lines, or assets of AMLP or its Subsidiaries, such actions shall be paid by the Company.
(b) BRPA shall not, and shall cause its Subsidiaries not to, acquire or agree to acquire, by merging with or into or consolidating with, or by purchasing a portion of the assets of or equity in, or by any other manner, any business or any corporation, partnership, association or other business organization or division thereof, or otherwise acquire or agree to acquire any assets, or take any other action, if the entering into of a definitive agreement relating to, or the consummation of such acquisition, merger or consolidation, or the taking of any other action, would reasonably be expected to (i) impose any material delay in the obtaining of, or materially increase the risk of not obtaining, any authorizations, consents, orders or declarations of any Governmental Entities or the expiration or termination of any applicable waiting period; (ii) materially increase the risk of any Governmental Entity entering an order prohibiting conditioned upon the consummation of the transaction contemplated hereby; (iii) materially increase Merger. In furtherance of the risk foregoing, each of not being able the AMGP Parties and AMLP Parties shall use reasonable best efforts to remove defend any such order on appeal lawsuits or otherwise; other legal proceedings, whether judicial or (iv) materially delay administrative, challenging this Agreement or prevent the consummation of the transactions contemplated hereby. Notwithstanding anything in this Agreement hereby (including seeking to the contraryhave any stay, the restrictions and obligations set forth in this Section 5.3(b) shall not apply to temporary restraining order or be binding upon BRPA’s Affiliates, the Sponsor, their respective Affiliates preliminary injunction entered by any court or any investment funds other Governmental Entity vacated or investment vehicles affiliated with, or managed or advised by, BRPA’s Affiliates, the Sponsor, or any portfolio company (as such term is commonly understood in the private equity industry) or investment of BRPA’s Affiliates, the Sponsor, or of any such investment fund or investment vehiclereversed).
Appears in 1 contract
Samples: Simplification Agreement (Antero Midstream Partners LP)
HSR Act. (a) If required pursuant to the HSR Act, as promptly as practicable, BRPA and in any event within twenty (20) Business Days from the date of this Agreement, Parent and the Company shall use reasonable best efforts to each: (a) each prepare and file the notification required of it thereunder in connection with the Merger as soon as reasonably practicable but no later than twenty (20) Business Days following January 14Merger, 2021, and (b) promptly and in good faith respond to all information requested of it by the Federal Trade Commission and Department of Justice in connection with such notification and otherwise cooperate in good faith with each other and such Governmental Entities, (c) each request early termination of any waiting period under the HSR Act, and (d) submit, as soon as practicable, any other required applications or filings pursuant to any Antitrust Laws and furnish to the other Party as promptly as reasonably practicable all information required for any application or other filing required to be made pursuant to any Antitrust LawAuthorities. BRPA and the Company shall substantially comply with any information or document requests by the Federal Trade Commission or the Department of Justice in connection with the Merger. BRPA Parent and the Company shall (i) promptly inform the other of any substantive communication to or from the Federal Trade Commission, the Department of Justice or any other Governmental Entity Authority regarding the Merger transactions contemplated by this Agreement and permit counsel to the other Party an opportunity to review in advanceadvance (subject to appropriate redactions for confidentiality and attorney-client privilege concerns), and each Party shall consider in good faith the views of such counsel in connection with, any proposed written communications by such Party to any Governmental Entity Authority concerning the Mergertransactions contemplated by this Agreement, (ii) give the other prompt notice of the commencement of any judicial or administrative action, suit, litigation, arbitration, proceeding Action by or before any Governmental Entity Authority with respect to such transactions, transactions and (iii) keep the other reasonably informed as to the status of any such actionAction. Each Party agrees to provide, to the extent permitted by the applicable Governmental EntityAuthority, the other Party and its counsel the opportunity, on reasonable advance notice, to participate in any substantive meetings or discussions, either in person or by telephone, between such Party and/or any of its Affiliates, agents or advisors, on the one hand, and any Governmental EntityAuthority, on the other hand, concerning or in connection with the Mergertransactions contemplated hereby; provided, neither no Party shall extend any waiting period or comparable period under the HSR Act or enter into any agreement with any Governmental Entity Authority without the written consent of the other PartyParties. Any materials exchanged in connection with this Section 5.3 may be redacted or withheld as necessary to address reasonable privilege or confidentiality concerns of legal counsel of the Company, and to remove references concerning the valuation of the Company or other competitively sensitive material; provided, that the Company may, as it deems advisable and necessary, designate any materials provided to the BRPA under this Section 5.3 as “outside counsel only.” Filing fees with respect to the notifications required under the HSR Act shall be paid borne equally by Parent and the Company.
(b) BRPA . Nothing in this Section 4.7 shall not, and shall cause its Subsidiaries not to, acquire or obligate any Affiliate of Parent to agree to acquire(A) sell, by merging with or into or consolidating with, or by purchasing a portion of the assets of or equity in, or by any other manner, any business or any corporation, partnership, association or other business organization or division thereof, license or otherwise acquire or agree to acquire any assets, or take any other action, if the entering into of a definitive agreement relating to, or the consummation of such acquisition, merger or consolidation, or the taking of any other action, would reasonably be expected to (i) impose any material delay in the obtaining dispose of, or materially increase the risk of not obtaininghold separate and agree to sell, license or otherwise dispose of, any authorizationsentities, consentsassets or facilities of such Affiliate, orders (B) terminate, amend or declarations of any Governmental Entities assign existing relationships and contractual rights or the expiration obligations, (C) amend, assign or termination of any applicable waiting period; (ii) materially increase the risk of any Governmental Entity entering an order prohibiting the consummation of the transaction contemplated hereby; (iii) materially increase the risk of not being able to remove any such order on appeal terminate existing licenses or otherwise; other agreements, or (ivD) materially delay enter into new licenses or prevent the consummation of the transactions contemplated hereby. Notwithstanding anything in this Agreement to the contrary, the restrictions and obligations set forth in this Section 5.3(b) shall not apply to or be binding upon BRPA’s Affiliates, the Sponsor, their respective Affiliates or any investment funds or investment vehicles affiliated with, or managed or advised by, BRPA’s Affiliates, the Sponsor, or any portfolio company (as such term is commonly understood in the private equity industry) or investment of BRPA’s Affiliates, the Sponsor, or of any such investment fund or investment vehicleother agreements.
Appears in 1 contract
HSR Act. (a) If required pursuant Subject to the HSR Actterms and conditions of this Agreement, as promptly as practicable, BRPA the Seller Parties and the Company Purchaser shall use their respective reasonable best efforts to make all necessary filings required under the HSR Act (aincluding, but not limited to, the Notification and Report Form (16 C.F.R. Part 803 - Appendix)) each prepare and file the notification required of it thereunder in connection with the Merger as soon as reasonably the Purchaser determines in prudent and practicable but no not later than twenty (20) Business Days following January 14after the date of this Agreement, 2021and each party agrees to supply as promptly as practicable to the appropriate Governmental Entities any additional information and documentary material that may be requested pursuant thereto. From the date of this Agreement until the earlier of the Closing Date and the termination of this Agreement, (b) each party hereto shall promptly notify the other party of any pending or threatened action or investigation by any Governmental Entity seeking to restrain or prohibit the consummation of the transactions contemplated hereby or otherwise limit the right of the Purchaser to own or operate all or any portion of the Business or the Acquired Assets. To the extent permitted by applicable Law, the parties will consult and cooperate with one another, and consider in good faith respond to all information requested the views of it by the Federal Trade Commission and Department of Justice one another, in connection with such notification all filings, applications, notices, analyses, appearances, presentations, memoranda, submissions, briefs, arguments, opinions and otherwise cooperate in good faith with each other and such Governmental Entities, (c) each request early termination proposals made or submitted by or on behalf of any waiting period under the HSR Act, and (d) submit, as soon as practicable, party before any other required applications or filings pursuant to any Antitrust Laws and furnish to the other Party as promptly as reasonably practicable all information required for any application or other filing required to be made pursuant to any Antitrust Law. BRPA and the Company shall substantially comply with any information or document requests by the Federal Trade Commission or the Department of Justice Governmental Entity in connection with the Mergerapproval of the contemplated transactions (except with respect to Taxes); provided, however, that in the event of a disagreement concerning any such filing, application, notice, analysis, appearance, presentation, memorandum, brief, argument, opinion or proposal, the determination of the Purchaser shall be conclusive; and provided, further that nothing will prevent a party from responding to or complying with a subpoena or other legal process required by Law or submitting factual information in response to a request therefore. BRPA and In addition, except as prohibited by Law, the Company shall (i) promptly inform notify the other Purchaser of any substantive communication to or the Company from the Federal Trade Commission, the Department of Justice or any other Governmental Entity regarding the Merger and permit counsel to the other Party an opportunity to review in advance, and each Party shall consider in good faith the views of such counsel in connection with, any proposed written communications by such Party to any Governmental Entity concerning relating to the Merger, approval or disapproval of the transactions contemplated hereby; and (ii) give the other prompt notice of the commencement of not participate in any judicial meetings or administrative action, suit, litigation, arbitration, proceeding by or before substantive discussions with any Governmental Entity with respect thereto without consulting with and offering the Purchaser a meaningful opportunity to participate in such transactions, and (iii) keep the other reasonably informed as meetings or discussions. Notwithstanding anything to the status of contrary in this Agreement, the Purchaser shall take all actions that are necessary to permit and cause the Closing to occur as soon as possible and in any such action. Each Party agrees event prior to provideSeptember 30, 2007, including taking all actions that are necessary to the extent permitted comply with any requirement, request or condition sought or imposed by the applicable United States Federal Trade Commission ("FTC") or the Antitrust Division of the United States Department of Justice ("DOJ") or other Governmental Entity, the other Party and its counsel the opportunity, on reasonable advance notice, to participate relating in any substantive meetings way to this Agreement or discussions, either in person or by telephone, between such Party and/or any of its Affiliates, agents or advisors, on the one hand, and any Governmental Entity, on the other hand, concerning or in connection with the Merger; provided, neither Party shall extend any waiting period or comparable period under the HSR Act or enter into any agreement with any Governmental Entity without the written consent of the other Party. Any materials exchanged in connection with this Section 5.3 may be redacted or withheld as necessary to address reasonable privilege or confidentiality concerns of legal counsel of the Company, and to remove references concerning the valuation of the Company or other competitively sensitive material; provided, that the Company may, as it deems advisable and necessary, designate any materials provided to the BRPA under this Section 5.3 as “outside counsel only.” Filing fees with respect to the notifications required under the HSR Act shall be paid by the Company.
(b) BRPA shall not, and shall cause its Subsidiaries not to, acquire or agree to acquire, by merging with or into or consolidating with, or by purchasing a portion of the assets of or equity in, or by any other manner, any business or any corporation, partnership, association or other business organization or division thereof, or otherwise acquire or agree to acquire any assets, or take any other action, if the entering into of a definitive agreement relating to, or the consummation of such acquisition, merger or consolidation, or the taking of any other action, would reasonably be expected to (i) impose any material delay in the obtaining of, or materially increase the risk of not obtaining, any authorizations, consents, orders or declarations of any Governmental Entities or the expiration or termination of any applicable waiting period; (ii) materially increase the risk of any Governmental Entity entering an order prohibiting the consummation of the transaction contemplated hereby; (iii) materially increase the risk of not being able to remove any such order on appeal or otherwise; or (iv) materially delay or prevent the consummation of the transactions contemplated hereby ("Government Conditions"), where the failure to satisfy any Government Condition would prevent or make illegal such timely consummation of the transactions contemplated hereby, including (i) proposing, negotiating, offering to commit and effect, by consent decree, hold separate order, or otherwise, the sale, divestiture, out- license or other disposition of such of the Acquired Assets as the Purchaser deems necessary (a "Disposition"), and (ii) taking all other actions necessary or reasonable, as determined by the Purchaser, including instigating or defending any proceeding or litigation, making reasonable offers of compromise, and promptly removing or causing to be removed any direction, determination, requirement, injunction, order, condition or limitation, that prevents or would prevent, or that makes illegal, the timely consummation of the transactions contemplated by this Agreement. Notwithstanding anything the immediately preceding sentence, (x) the Purchaser, in this its sole discretion, may decide not to enter into any Disposition, settlement, undertaking, condition or limitation otherwise necessary to comply with any Government Conditions, and (y) the Purchaser shall not be required to enter into a Disposition with respect to any assets other than the Acquired Assets. In furtherance of the foregoing, except as prohibited by Law, the Company shall, at the Purchaser's request, take all actions that are reasonably necessary to comply with any Government Conditions; provided, however, that in the event that the Acquired Assets are to be sold, divested, out-licensed or otherwise disposed of in a transaction other than the Closing, the Seller Parties shall not be obligated to take any such action unless as a condition to such transaction the third party involved therein is required to execute and deliver the Outside Field License Agreement or in lieu thereof, the Seller Parties shall otherwise be compensated therefor or otherwise receive the benefit of their bargain pursuant thereto. If the Closing Date shall not have occurred on or prior to September 30, 2007, the Purchaser shall thereafter be required to use its continuous best efforts to cause the Closing to occur as promptly as reasonably practicable thereafter, and the Seller Parties shall provide such cooperation and assistance as shall be necessary in connection therewith without unreasonable disruption to the contraryoperation of the business of the Seller Parties (other than the Business); provided, however, no party shall be required to take or refrain from taking any action in violation of applicable Law. The Purchaser shall indemnify the restrictions Seller Indemnified Parties and obligations set forth in hold the Seller Indemnified Parties harmless against any Damages that the Seller Indemnified Parties incur by reason of their compliance with this Section 5.3(b) shall not apply to or be binding upon BRPA’s Affiliates, the Sponsor, their respective Affiliates or any investment funds or investment vehicles affiliated with, or managed or advised by, BRPA’s Affiliates, the Sponsor, or any portfolio company (as such term is commonly understood in the private equity industry) or investment of BRPA’s Affiliates, the Sponsor, or of any such investment fund or investment vehicle7.5.
Appears in 1 contract
HSR Act. (aWithout limiting the generality of anything contained in Section 6.2(a) If required pursuant or elsewhere in this Agreement, each of the parties undertakes and agrees to file as soon as practicable, and in any event within 12 business days after the date of this Agreement, a Notification and Report Form under the HSR ActAct with the United States Federal Trade Commission (the "FTC") and the United States Department of Justice, Antitrust Division (the "Antitrust Division") and all other filings required under applicable antitrust or competition laws, rules or regulations. Each of the parties shall (i) respond as promptly as practicablepracticable to any inquiries received from the FTC, BRPA the Antitrust Division or other applicable Governmental Authorities for additional information or documentation and the Company shall use reasonable best efforts to (a) each prepare all inquiries and file the notification required of it thereunder requests received from any State Attorney General or other Governmental Authority in connection with antitrust matters; (ii) take all commercially reasonable steps to avoid any extension of the Merger as soon as reasonably practicable but no later than twenty (20) Business Days following January 14, 2021, (b) promptly and in good faith respond to all information requested of it by the Federal Trade Commission and Department of Justice in connection with such notification and otherwise cooperate in good faith with each other and such Governmental Entities, (c) each request early termination of any waiting period under the HSR ActAct and other applicable antitrust or competition laws, rules or regulations; and (diii) submitrefrain from entering into any agreement with the FTC, as soon as practicablethe Antitrust Division or other applicable Governmental Authorities not to consummate the transactions contemplated by this Agreement, any other required applications or filings pursuant to any Antitrust Laws and furnish to except with the prior written consent of the other Party as promptly as reasonably practicable all information required for any application or other filing required to be made pursuant to any Antitrust Lawparties hereto. BRPA and the Company shall substantially comply with any information or document requests by the Federal Trade Commission or the Department of Justice in connection with the Merger. BRPA and the Company Each party shall (i) promptly inform notify the other party of any substantive written communication to that party or its affiliates from the Federal Trade Commissionany Governmental Authority and, the Department of Justice or any other Governmental Entity regarding the Merger and subject to applicable law, permit counsel to the other Party an opportunity party to review in advance, and each Party shall consider in good faith the views of such counsel in connection with, advance any proposed written communications by such Party communication to any Governmental Entity concerning of the Merger, foregoing; (ii) give not agree to participate, or to permit its affiliates to participate, in any substantive meeting or discussion with any Governmental Authority in respect of any filings, investigation or inquiry concerning this Agreement or the Merger unless it consults with the other prompt notice of the commencement of any judicial or administrative action, suit, litigation, arbitration, proceeding by or before any Governmental Entity with respect to such transactions, and (iii) keep the other reasonably informed as to the status of any such action. Each Party agrees to provideparty in advance and, to the extent permitted by the applicable such Governmental EntityAuthority, gives the other Party party the opportunity to attend and its counsel the opportunity, on reasonable advance notice, to participate in any substantive meetings or discussionssuch meeting; and (iii) furnish the other party with copies of all correspondence, either in person or by telephonefilings, and communications (and memoranda setting forth the substance thereof) between such Party and/or any of its Affiliates, agents or advisors, them and their affiliates and their respective representatives on the one hand, and any Governmental Entity, Authority or members of their respective staffs on the other hand, concerning or in connection with the Merger; provided, neither Party shall extend any waiting period or comparable period under the HSR Act or enter into any agreement with any Governmental Entity without the written consent of the other Party. Any materials exchanged in connection with this Section 5.3 may be redacted or withheld as necessary to address reasonable privilege or confidentiality concerns of legal counsel of the Company, and to remove references concerning the valuation of the Company or other competitively sensitive material; provided, that the Company may, as it deems advisable and necessary, designate any materials provided to the BRPA under this Section 5.3 as “outside counsel only.” Filing fees with respect to the notifications required under the HSR Act shall be paid by the Company.
(b) BRPA shall not, and shall cause its Subsidiaries not to, acquire or agree to acquire, by merging with or into or consolidating with, or by purchasing a portion of the assets of or equity in, or by any other manner, any business or any corporation, partnership, association or other business organization or division thereof, or otherwise acquire or agree to acquire any assets, or take any other action, if the entering into of a definitive agreement relating to, or the consummation of such acquisition, merger or consolidation, or the taking of any other action, would reasonably be expected to (i) impose any material delay in the obtaining of, or materially increase the risk of not obtaining, any authorizations, consents, orders or declarations of any Governmental Entities or the expiration or termination of any applicable waiting period; (ii) materially increase the risk of any Governmental Entity entering an order prohibiting the consummation of the transaction contemplated hereby; (iii) materially increase the risk of not being able to remove any such order on appeal or otherwise; or (iv) materially delay or prevent the consummation of the transactions contemplated hereby. Notwithstanding anything in this Agreement to and the contrary, the restrictions and obligations set forth in this Section 5.3(b) shall not apply to or be binding upon BRPA’s Affiliates, the Sponsor, their respective Affiliates or any investment funds or investment vehicles affiliated with, or managed or advised by, BRPA’s Affiliates, the Sponsor, or any portfolio company (as such term is commonly understood in the private equity industry) or investment of BRPA’s Affiliates, the Sponsor, or of any such investment fund or investment vehicleMerger.
Appears in 1 contract
HSR Act. (a) If required pursuant Each party hereto shall (i) take promptly all actions necessary to make the HSR Act, as promptly as practicable, BRPA and the Company shall use reasonable best efforts to (a) each prepare and file the notification filings required of it thereunder or any of its affiliates under the applicable Antitrust Laws (as defined in Section 4.09(e) hereof) in connection with this Agreement and the Merger as soon as reasonably practicable but no later than twenty (20) Business Days following January 14, 2021transactions contemplated hereby, (bii) promptly and in good faith respond to all comply at the earliest practicable date with any request for additional information requested or documentary material received by it or any of it by its affiliates from the Federal Trade Commission and Department (the "FTC") or the Antitrust Division of Justice in connection with such notification and otherwise cooperate in good faith with each other and such Governmental Entities, (c) each request early termination of any waiting period under the HSR Act, and (d) submit, as soon as practicable, any other required applications or filings pursuant to any Antitrust Laws and furnish to the other Party as promptly as reasonably practicable all information required for any application or other filing required to be made pursuant to any Antitrust Law. BRPA and the Company shall substantially comply with any information or document requests by the Federal Trade Commission or the Department of Justice in connection with (the Merger. BRPA and the Company shall (i"Antitrust Division") promptly inform the other of any substantive communication to or from the Federal Trade Commission, the Department of Justice or any other Governmental Entity regarding the Merger and permit counsel to the other Party an opportunity to review in advance, and each Party shall consider in good faith the views of such counsel in connection with, any proposed written communications by such Party to any Governmental Entity concerning the Merger, (ii) give the other prompt notice of the commencement of any judicial or administrative action, suit, litigation, arbitration, proceeding by or before any Governmental Entity with respect to such transactions, and (iii) keep the other reasonably informed as to the status of any such action. Each Party agrees to provide, to the extent permitted by the applicable Governmental Entity, the other Party and its counsel the opportunity, on reasonable advance notice, to participate in any substantive meetings or discussions, either in person or by telephone, between such Party and/or any of its Affiliates, agents or advisors, on the cooperate with one hand, and any Governmental Entity, on the other hand, concerning or another in connection with the Merger; provided, neither Party shall extend any waiting period or comparable period filing under the HSR Act or enter into any agreement with any Governmental Entity without the written consent of the other Party. Any materials exchanged applicable Antitrust Laws and in connection with this Section 5.3 may be redacted resolving any investigation or withheld as necessary to address reasonable privilege or confidentiality concerns of legal counsel of the Company, and to remove references other inquiry concerning the valuation of the Company or other competitively sensitive material; provided, that the Company may, transactions contemplated by this Agreement initiated by any Antitrust Authority (as it deems advisable and necessary, designate any materials provided to the BRPA under this defined in Section 5.3 as “outside counsel only.” Filing fees with respect to the notifications required under the HSR Act shall be paid by the Company4.09(e) hereof).
(b) BRPA Each party hereto shall notuse its reasonable best efforts to resolve such objections, if any, as may be asserted with respect to the transactions contemplated by this Agreement under any Antitrust Law. Without limiting the generality of the foregoing, "reasonable best efforts" shall include, without limitation:
(i) in the case of each of Parent and the Company:
(A) filing with the appropriate Antitrust Authorities no later than the fifth Business Day following the date hereof a Notification and Report Form with respect to the transactions contemplated by this Agreement; and
(B) if Parent or the Company receives a second request for information and documents from an Antitrust Authority, substantially complying with such second request within 60 days following the date of its receipt thereof;
(ii) in the case of Parent only, taking any and all actions reasonably necessary, proper or advisable to cause the HSR Condition and Section 5.01(b) hereof to be satisfied and to permit the Closing to occur as soon as possible, but in any event on or prior to the Outside Date (as defined below) (it being understood that, without limiting Parent's obligations hereunder, the timing of the Closing shall cause its Subsidiaries be as set forth in Section 2.11); provided, however, that Parent's obligations hereunder shall not to, acquire include agreeing to dispose of or agree to acquire, by merging with hold separately all or into or consolidating with, or by purchasing a any material portion of the business or assets of Parent and its subsidiaries, taken as a whole or equity inthe Company and its Subsidiaries, taken as a whole, or by any other manner, any business or any corporation, partnership, association or other business organization or division thereof, or otherwise acquire or agree to acquire any assets, or take any other actionaction which would materially and adversely effect the business, if assets or operations of Parent and its subsidiaries taken as a whole or the entering into Company and its Subsidiaries taken as a whole; and
(iii) in the case of a definitive agreement relating the Company only, subject to Parent's compliance with clauses (i) and (ii) above, not frustrating or impeding Parent's strategy or negotiating positions with any Antitrust Authority.
(c) Notwithstanding the foregoing, Parent's obligations pursuant to Section 4.09(b)(ii) above shall not include defending any administrative, judicial or legislative action brought by any Antitrust Authority or other Person or otherwise litigating against any Antitrust Authority or other person. Should Parent nonetheless elect to litigate against any Antitrust Authority or other person, the Company shall cooperate with Parent in any such proceeding.
(d) Each party hereto shall promptly inform the other parties of any material communication made to, or the consummation of received by such acquisitionparty from, merger any Antitrust Authority or consolidation, or the taking of any other action, would reasonably be expected to (i) impose governmental or regulatory authority regarding any material delay in the obtaining of, or materially increase the risk of not obtaining, any authorizations, consents, orders or declarations of any Governmental Entities or the expiration or termination of any applicable waiting period; (ii) materially increase the risk of any Governmental Entity entering an order prohibiting the consummation of the transaction contemplated hereby; (iii) materially increase the risk of not being able to remove any such order on appeal or otherwise; or (iv) materially delay or prevent the consummation of the transactions contemplated hereby. Notwithstanding anything in this Agreement In addition, and without limiting the generality of the foregoing, Parent and the Company each shall cause its counsel to (i) afford to the contraryother party's counsel the opportunity to receive and to review for a reasonable period in advance of filing or submission to any Antitrust Authority all forms, letters and memoranda (excluding documents submitted as attachments or enclosed with such forms, letters or memoranda) proposed to be filed or submitted to any Antitrust Authority regarding the transactions contemplated hereby, and give reasonable consideration to any comments or proposals such counsel may make with respect to any such forms, letters or memoranda, (ii) give reasonable advance notice to the other party's counsel of each meeting or pre-arranged telephone call with any Antitrust Authority regarding the transactions contemplated hereby, so that such counsel may request to attend or otherwise participate therein, and to give reasonable consideration to such request, and (iii) promptly inform the other party's counsel of the substance of each other material communication (written or oral, in person or by telephone) with any Antitrust Authority regarding the transactions contemplated hereby.
(e) For purposes hereof, (i) "Antitrust Authorities" means the FTC, the restrictions Antitrust Division and obligations set forth in this Section 5.3(bthe attorneys general of the several states of the United States and (ii) shall not apply to or be binding upon BRPA’s Affiliates"Antitrust Law" means the Xxxxxxx Act, as amended, the SponsorXxxxxxx Act, their respective Affiliates or any investment funds or investment vehicles affiliated with, or managed or advised by, BRPA’s Affiliatesas amended, the Sponsor, or any portfolio company (as such term is commonly understood in the private equity industry) or investment of BRPA’s AffiliatesAntitrust Improvements Act, the SponsorFederal Trade Commission Act, as amended, and all other federal and state statutes, rules, regulations, orders, decrees, administrative and judicial doctrines, and other laws that are designed or intended to prohibit, restrict or regulate actions having the purpose or effect of any such investment fund monopolization or investment vehiclerestraint of trade.
Appears in 1 contract
Samples: Merger Agreement (Raymond Corp)
HSR Act. (a) If Each party hereto shall (i) take promptly all actions necessary to make the filings required pursuant to the HSR Act, as promptly as practicable, BRPA of it or any of its affiliates under any applicable Antitrust Laws in connection with this Agreement and the Company transactions contemplated hereby, (ii) comply at the earliest practicable date with any formal or informal request for additional information or documentary material received by it or any of its affiliates from any Antitrust Authority and (iii) cooperate with one another in connection with any filing under applicable Antitrust Laws and in connection with resolving any investigation or other inquiry concerning the transactions contemplated by this Agreement initiated by any Antitrust Authority.
(b) Each party hereto shall use its reasonable best efforts to (a) each prepare and file the notification required of it thereunder in connection with the Merger as soon as reasonably practicable but no later than twenty (20) Business Days following January 14resolve such objections, 2021, (b) promptly and in good faith respond to all information requested of it by the Federal Trade Commission and Department of Justice in connection with such notification and otherwise cooperate in good faith with each other and such Governmental Entities, (c) each request early termination of any waiting period under the HSR Act, and (d) submitif any, as soon as practicable, any other required applications or filings pursuant to any Antitrust Laws and furnish may be asserted with respect to the other Party as promptly as reasonably practicable all information required for any application or other filing required to be made pursuant to transactions contemplated by this Agreement under any Antitrust Law. BRPA Without limiting the generality of the foregoing, "reasonable best efforts" shall include, without limitation:
(i) in the case of each of Parent and the Company:
(A) filing with the appropriate Antitrust Authorities no later than the fifth (5/th/) day following the date hereof a Notification and Report Form with respect to the transactions contemplated by this Agreement; and
(B) if Parent or the Company shall receives a formal request for information and documents from an Antitrust Authority, substantially comply complying with such formal request within 60 days following the date of its receipt thereof or such shorter period as is required by applicable Antitrust Laws; and
(ii) in the case of the Company only, subject to Parent's compliance with clause (i) above, not frustrating or impeding Parent's strategy or negotiating positions with any information Antitrust Authority; provided, however, that in no event shall Parent or document requests by any of its Subsidiaries be required to agree or commit to divest, hold separate, offer for sale, abandon, limit its operation of or take similar action with respect to any assets (tangible or intangible) or any business interest of it or any of its Subsidiaries (including, without limitation, the Federal Trade Commission Surviving Corporation after consummation of the Offer or the Department of Justice Merger) in connection with or as a condition to receiving the Merger. BRPA and the Company consent or approval of any Antitrust Authority.
(c) Each party hereto shall (i) promptly inform the other parties of any substantive material communication to made to, or from received by such party from, any Antitrust Authority or any other governmental or regulatory authority regarding any of the transactions contemplated hereby.
(d) For purposes of this Agreement, (i) "Antitrust Authorities" means the Federal Trade Commission, the Department of Justice or any other Governmental Entity regarding the Merger and permit counsel to the other Party an opportunity to review in advance, and each Party shall consider in good faith the views of such counsel in connection with, any proposed written communications by such Party to any Governmental Entity concerning the Merger, (ii) give the other prompt notice of the commencement of any judicial or administrative action, suit, litigation, arbitration, proceeding by or before any Governmental Entity with respect to such transactions, and (iii) keep the other reasonably informed as to the status of any such action. Each Party agrees to provide, to the extent permitted by the applicable Governmental EntityAntitrust Division, the other Party and its counsel the opportunity, on reasonable advance notice, to participate in any substantive meetings or discussions, either in person or by telephone, between such Party and/or any of its Affiliates, agents or advisors, on the one hand, and any Governmental Entity, on the other hand, concerning or in connection with the Merger; provided, neither Party shall extend any waiting period or comparable period under the HSR Act or enter into any agreement with any Governmental Entity without the written consent of the other Party. Any materials exchanged in connection with this Section 5.3 may be redacted or withheld as necessary to address reasonable privilege or confidentiality concerns of legal counsel of the Company, and to remove references concerning the valuation of the Company or other competitively sensitive material; provided, that the Company may, as it deems advisable and necessary, designate any materials provided to the BRPA under this Section 5.3 as “outside counsel only.” Filing fees with respect to the notifications required under the HSR Act shall be paid by the Company.
(b) BRPA shall not, and shall cause its Subsidiaries not to, acquire or agree to acquire, by merging with or into or consolidating with, or by purchasing a portion of the assets of or equity in, or by any other manner, any business or any corporation, partnership, association or other business organization or division thereof, or otherwise acquire or agree to acquire any assets, or take any other action, if the entering into of a definitive agreement relating to, or the consummation of such acquisition, merger or consolidation, or the taking of any other action, would reasonably be expected to (i) impose any material delay in the obtaining of, or materially increase the risk of not obtaining, any authorizations, consents, orders or declarations of any Governmental Entities or the expiration or termination of any applicable waiting period; (ii) materially increase the risk of any Governmental Entity entering an order prohibiting the consummation of the transaction contemplated hereby; (iii) materially increase the risk of not being able to remove any such order on appeal or otherwise; or (iv) materially delay or prevent the consummation of the transactions contemplated hereby. Notwithstanding anything in this Agreement to the contrary, the restrictions and obligations set forth in this Section 5.3(b) shall not apply to or be binding upon BRPA’s Affiliates, the Sponsor, their respective Affiliates or any investment funds or investment vehicles affiliated with, or managed or advised by, BRPA’s Affiliates, the Sponsor, or any portfolio company (as such term is commonly understood in the private equity industry) or investment of BRPA’s Affiliates, the Sponsor, or of any such investment fund or investment vehicle.attorneys general
Appears in 1 contract
Samples: Merger Agreement (New England Business Service Inc)
HSR Act. Each party hereto shall (ai) If take promptly all actions necessary to make the filings required of it or any of its Affiliates under any applicable Antitrust Laws in connection with this Agreement and the transactions contemplated hereby, including but not limited to filing pursuant to the HSR ActAct no later than the tenth (10th) day following the date hereof a Notification and Report Form with respect to the transactions contemplated by this Agreement, as promptly as practicable(ii) comply at the earliest practicable date with any formal or informal request for additional information or documentary material received by it or any of its Affiliates from any Antitrust Authority, BRPA and (iii) cooperate with one another in connection with any filing under applicable Antitrust Laws and in connection with resolving any investigation or other inquiry concerning the Company shall use reasonable best efforts to transactions contemplated by this Agreement initiated by any Antitrust Authority.
(a) each prepare and file the notification required of it thereunder in connection with the Merger as soon as reasonably practicable but no later than twenty (20) Business Days following January 14Each party hereto shall use its commercially reasonable efforts to resolve such objections, 2021, (b) promptly and in good faith respond to all information requested of it by the Federal Trade Commission and Department of Justice in connection with such notification and otherwise cooperate in good faith with each other and such Governmental Entities, (c) each request early termination of any waiting period under the HSR Act, and (d) submitif any, as soon as practicable, any other required applications or filings pursuant to any Antitrust Laws and furnish may be asserted with respect to the other Party as promptly as reasonably practicable all information required for any application or other filing required to be made pursuant to transactions contemplated by this Agreement under any Antitrust Law. BRPA and Without limiting the Company generality of the foregoing, "commercially reasonable efforts" shall substantially comply with any information or document requests by the Federal Trade Commission or the Department of Justice in connection with the Merger. BRPA and the Company shall include:
(i) in the case of each of Parent and the Company, if Parent or the Company receives a formal request for additional information or documentary material from an Antitrust Authority, substantially complying with such formal request within sixty (60) days following the date of its receipt thereof or such; and
(ii) in the case of the Company only, subject to Parent's compliance with clause (i) above, not frustrating or impeding Parent's strategy or negotiating positions with any Antitrust Authority.
(b) Each party hereto shall promptly inform the other parties of any substantive material communication to made to, or from the Federal Trade Commissionreceived by such party from, the Department of Justice any Antitrust Authority or any other Governmental Entity regarding the Merger and permit counsel to the other Party an opportunity to review in advance, and each Party shall consider in good faith the views of such counsel in connection with, any proposed written communications by such Party to any Governmental Entity concerning the Merger, (ii) give the other prompt notice of the commencement of any judicial or administrative action, suit, litigation, arbitration, proceeding by or before any Governmental Entity with respect to such transactions, and (iii) keep the other reasonably informed as to the status of any such action. Each Party agrees to provide, to the extent permitted by the applicable Governmental Entity, the other Party and its counsel the opportunity, on reasonable advance notice, to participate in any substantive meetings or discussions, either in person or by telephone, between such Party and/or any of its Affiliates, agents or advisors, on the one hand, and any Governmental Entity, on the other hand, concerning or in connection with the Merger; provided, neither Party shall extend any waiting period or comparable period under the HSR Act or enter into any agreement with any Governmental Entity without the written consent of the other Party. Any materials exchanged in connection with this Section 5.3 may be redacted or withheld as necessary to address reasonable privilege or confidentiality concerns of legal counsel of the Company, and to remove references concerning the valuation of the Company or other competitively sensitive material; provided, that the Company may, as it deems advisable and necessary, designate any materials provided to the BRPA under this Section 5.3 as “outside counsel only.” Filing fees with respect to the notifications required under the HSR Act shall be paid by the Company.
(b) BRPA shall not, and shall cause its Subsidiaries not to, acquire or agree to acquire, by merging with or into or consolidating with, or by purchasing a portion of the assets of or equity in, or by any other manner, any business or any corporation, partnership, association or other business organization or division thereof, or otherwise acquire or agree to acquire any assets, or take any other action, if the entering into of a definitive agreement relating to, or the consummation of such acquisition, merger or consolidation, or the taking of any other action, would reasonably be expected to (i) impose any material delay in the obtaining of, or materially increase the risk of not obtaining, any authorizations, consents, orders or declarations of any Governmental Entities or the expiration or termination of any applicable waiting period; (ii) materially increase the risk of any Governmental Entity entering an order prohibiting the consummation of the transaction contemplated hereby; (iii) materially increase the risk of not being able to remove any such order on appeal or otherwise; or (iv) materially delay or prevent the consummation of the transactions contemplated hereby. Notwithstanding anything in this Agreement to the contrary, the restrictions and obligations set forth in this Section 5.3(b) shall not apply to or be binding upon BRPA’s Affiliates, the Sponsor, their respective Affiliates or any investment funds or investment vehicles affiliated with, or managed or advised by, BRPA’s Affiliates, the Sponsor, or any portfolio company (as such term is commonly understood in the private equity industry) or investment of BRPA’s Affiliates, the Sponsor, or of any such investment fund or investment vehicle.
Appears in 1 contract
HSR Act. (a) If required the Company delivers an Option Exercise Notice and the issuance of Securities pursuant to such Option Exercise Notice requires a filing under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976 or any successor statute, as amended and in effect from time to time (the “HSR Act”), as (i) the Parties shall promptly as practicable, BRPA and the Company shall use reasonable best efforts to (a) each prepare and file the notification required of it thereunder in connection with the Merger as soon as reasonably practicable but no later than twenty (20) Business Days following January 14, 2021, (b) promptly and in good faith respond to all information requested of it by the United States Federal Trade Commission (the “FTC”) and the Antitrust Division of the United States Department of Justice in connection with (the “DOJ”) a Notification and Report Form relating to such notification issuance of Shares and otherwise cooperate in good faith with each other and (ii) the Closing Date for such Governmental Entities, issuance of Shares shall be delayed until the date that is ten (c10) each request early business days following the expiration or termination of any the applicable waiting period under the HSR Act, and .
(db) submit, as soon as practicable, any other required applications or filings pursuant to any Antitrust Laws and furnish to the other Party as promptly as reasonably practicable all information required for any application or other filing required to be made pursuant to any Antitrust Law. BRPA and the Company shall substantially comply with any information or document requests by the Federal Trade Commission or the Department of Justice in connection with the Merger. BRPA and the Company shall (i) promptly inform the other of any substantive communication to or from the Federal Trade Commission, the Department of Justice or any other Governmental Entity regarding the Merger and permit counsel to the other Party an opportunity to review in advance, and each Party shall consider in good faith the views of such counsel in connection with, any proposed written communications by such Party to any Governmental Entity concerning the Merger, (ii) give the other prompt notice Each of the commencement of any judicial or administrative action, suit, litigation, arbitration, proceeding by or before any Governmental Entity with respect to such transactions, and (iii) keep the other reasonably informed as to the status of any such action. Each Party agrees to provideParties shall, to the extent permitted by applicable Law and not prohibited by the applicable Governmental EntityFTC or DOJ, the other Party and its counsel the opportunity, on reasonable advance notice, to participate in any substantive meetings or discussions, either in person or by telephone, between such Party and/or any of its Affiliates, agents or advisors, on the one hand, and any Governmental Entity, on the other hand, concerning or in connection with the Merger; provided, neither Party shall extend any waiting period or comparable period under the HSR Act or enter into any agreement with any Governmental Entity without the written consent of the other Party. Any materials exchanged in connection with this Section 5.3 may be redacted or withheld as necessary to address reasonable privilege or confidentiality concerns of legal counsel of the Company, and to remove references concerning the valuation of the Company or other competitively sensitive material; provided, that the Company may, as it deems advisable and necessary, designate any materials provided to the BRPA under this Section 5.3 as “outside counsel only.” Filing fees with respect to the notifications filing described in clause (a) above: (i) cooperate and coordinate with the other in the making of such filing (including providing copies, or portions thereof, of all such documents to the other Party prior to filing and considering all reasonable additions, deletions or changes suggested in connection therewith) and in connection with resolving any investigation, request or other inquiry of any Governmental Authority with respect to such filing; (ii) supply the other Party (or its outside counsel) with any information that may be required or requested by any Governmental Authority in connection with such filing; (iii) respond as promptly as reasonably practicable and advisable to any inquiries received from the FTC or the DOJ in connection with such filing; and (iv) use reasonable efforts to take, or cause to be taken, all actions and to do, or cause to be done, and to assist and cooperate with the other Party hereto in doing, all things necessary, proper or advisable to cause the expiration or termination as early as possible of the applicable waiting periods under the HSR Act shall Act, provided that neither the Company nor any Lennar Entity, nor any of their respective subsidiaries or affiliates, will be paid by the Company.
(b) BRPA shall not, and shall cause its Subsidiaries not to, acquire or agree required to acquire, by merging with or into or consolidating with, or by purchasing a portion of the assets dispose of or equity in, or by discontinue any other manner, any aspect of its business or any corporation, partnership, association or other business organization or division thereof, or otherwise acquire or agree in order to acquire any assets, or take any other action, if the entering into of a definitive agreement relating to, or the consummation of such acquisition, merger or consolidation, or the taking of any other action, would reasonably be expected to (i) impose any material delay in the obtaining of, or materially increase the risk of not obtaining, any authorizations, consents, orders or declarations of any Governmental Entities or cause the expiration or termination of any applicable the HSR Act waiting period; (ii) materially increase the risk of any Governmental Entity entering an order prohibiting the consummation of the transaction contemplated hereby; (iii) materially increase the risk of not being able to remove any such order on appeal or otherwise; or (iv) materially delay or prevent the consummation of the transactions contemplated hereby. Notwithstanding anything in this Agreement to the contrary, the restrictions and obligations set forth in this Section 5.3(b) shall not apply to or be binding upon BRPA’s Affiliates, the Sponsor, their respective Affiliates or any investment funds or investment vehicles affiliated with, or managed or advised by, BRPA’s Affiliates, the Sponsor, or any portfolio company (as such term is commonly understood in the private equity industry) or investment of BRPA’s Affiliates, the Sponsor, or of any such investment fund or investment vehicleperiods.
Appears in 1 contract
Samples: Securities Purchase Agreement (Five Point Holdings, LLC)
HSR Act. If, in connection with any exercise of any the Holder’s or the Corporation’s conversion rights pursuant to this Section 7, the Corporation or any such Holder determines, after consultation with counsel, that any filings are required to be made pursuant to the Hxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (athe “HSR Act”) If in connection with the acquisition of Common Stock by such Holder pursuant to such conversion, then (i) the Corporation and such Holder shall, and shall cause their respective Affiliates to, undertake commercially reasonable efforts to make or cause to be made promptly the filings required of such party or its Affiliates pursuant to the HSR Act; provided, as promptly as practicablehowever, BRPA that all fees payable to any governmental authorities relating to filings required to be made pursuant to the HSR Act shall be paid and borne equally by such Holder and the Company Corporation and (ii) the Conversion Date for such conversion shall use reasonable best efforts not occur prior to (a) each prepare and file the notification required of it thereunder in connection with the Merger as soon as reasonably practicable but no later than twenty (20) Business Days following January 14, 2021, (b) promptly and in good faith respond to all information requested of it by the Federal Trade Commission and Department of Justice in connection with such notification and otherwise cooperate in good faith with each other and such Governmental Entities, (c) each request early expiration or termination of any the waiting period under the HSR Act. In furtherance and not in limitation of the foregoing, the Corporation and such Holder shall, to the extent permissible by law, (di) submit, as soon as practicable, any cooperate with the other required applications or filings pursuant to any Antitrust Laws party and furnish to the other Party as promptly as reasonably practicable party all information required for any application or other filing required to be made pursuant to any Antitrust Law. BRPA and the Company shall substantially comply with any information or document requests by the Federal Trade Commission or the Department of Justice in such party’s possession that is reasonably necessary in connection with the Merger. BRPA and the Company shall such other party’s filings; (iii) promptly inform the other of any substantive communication to or from the Federal Trade Commission, the Department of Justice or any other Governmental Entity regarding the Merger and permit counsel to the other Party an opportunity to review in advanceparty of, and each Party shall consider in good faith the views of supply to such counsel in connection other party copies of, any material communication (or other correspondence or memoranda) from or to, and any proposed understanding or agreement with, any proposed written communications governmental authority in respect of such filings; (iii) consult and cooperate with the other party and provide each other with a reasonable opportunity to provide comments in connection with any analyses, appearances, presentations, memoranda, briefs, arguments, and opinions made or submitted by or on behalf of any party in connection with all meetings, actions and proceedings with any governmental authority relating to such filings; and (iv) comply, as promptly as is reasonably practicable, with any requests received by such Party party or any of its Affiliates under the HSR Act for additional information, documents, or other materials. If either party intends to participate in any Governmental Entity concerning the Merger, (ii) give the other prompt notice of the commencement of material communication or meeting with any judicial or administrative action, suit, litigation, arbitration, proceeding by or before any Governmental Entity governmental authority with respect to such transactionsfilings, and (iii) keep it shall give the other reasonably informed as to the status of any such action. Each Party agrees to provideparty reasonable notice thereof and, to the extent permitted by the applicable Governmental Entitygovernmental authority, the other Party and its counsel the opportunity, on reasonable advance notice, an opportunity to participate in any substantive meetings such meeting or discussionscommunication. Notwithstanding anything in this Section 7(g) to the contrary, either in person no event shall the Corporation or by telephone, between such Party and/or any of its AffiliatesAffiliates or such Holder or any of its Affiliates be required, agents or advisors, on the one hand, and any Governmental Entity, on the other hand, concerning or in connection with the Merger; provided, neither Party shall extend any waiting period or comparable period under the HSR Act or enter into any agreement with any Governmental Entity without the written consent of the other Party. Any materials exchanged in connection with this Section 5.3 may be redacted or withheld as necessary to address reasonable privilege or confidentiality concerns of legal counsel of the Companyotherwise, and to remove references concerning the valuation of the Company or other competitively sensitive material; provided, that the Company may, as it deems advisable and necessary, designate any materials provided to the BRPA under this Section 5.3 as “outside counsel only.” Filing fees with respect to the notifications required under the HSR Act shall be paid by the Company.
(b) BRPA shall not, and shall cause its Subsidiaries not to, acquire or agree to acquire, by merging with or into or consolidating with, or by purchasing a portion of the assets of or equity in, or by any other manner, any business or any corporation, partnership, association or other business organization or division thereof, or otherwise acquire or agree to acquire any assets, or take any other action, if the entering into of a definitive agreement relating to, or the consummation of such acquisition, merger or consolidation, or the taking of any other action, would reasonably be expected to (i) impose any material delay in propose, negotiate, agree to or effect, by consent decree, hold separate order or otherwise, the obtaining ofsale, divestiture or materially increase the risk of not obtaining, any authorizations, consents, orders or declarations disposition of any Governmental Entities assets or the expiration or termination businesses of any applicable waiting period; such Person, (ii) materially increase the risk accept any condition, undertake any obligation, or take or refrain from taking any action that would limit such Person’s freedom of action with respect to, or its ability to own or operate, any Governmental Entity entering an order prohibiting the consummation of the transaction contemplated herebyits businesses or assets; (iii) materially increase contest, resist or seek to have vacated, lifted, reversed or overturned any governmental order or judicial order that is in effect that prohibits, prevents or restricts the risk conversion of not being able to remove any such order on appeal or otherwiseshares of Preferred Stock; or (iv) materially delay litigate or prevent the consummation of the transactions contemplated hereby. Notwithstanding anything in this Agreement to the contrary, the restrictions and obligations set forth in this Section 5.3(bdefend against any administrative or judicial action or proceeding (including any proceeding seeking a temporary restraining order or preliminary injunction) shall not apply to or be binding upon BRPA’s Affiliates, the Sponsor, their respective Affiliates or any investment funds or investment vehicles affiliated with, or managed or advised by, BRPA’s Affiliates, the Sponsor, or any portfolio company (as such term is commonly understood in the private equity industry) or investment of BRPA’s Affiliates, the Sponsor, or of challenging any such investment fund or investment vehicleconversion.
Appears in 1 contract
HSR Act. In the event that Parent, the Company or any shareholder of Parent or the Company reasonably determines that it is required to make pre-merger notification filings (an “Antitrust Filing”) under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the “HSR Act”), and any corresponding law or regulation of any foreign Governmental Authority (a “Foreign Antitrust Filing”) with respect to the Merger and the other transactions contemplated hereby such party shall promptly notify each other party of such requirement and thereafter each of the parties will:
(a) If required pursuant to the HSR Act, as promptly as is practicable, BRPA make its required filings under the HSR Act or any laws mandating a Foreign Antitrust Filing and in connection therewith seek early termination of any applicable waiting periods thereunder;
(b) as promptly as is practicable after receiving any governmental request under the Company shall HSR Act or any corresponding law or regulation of any foreign Governmental Authority for additional information, documents, or other materials, use its commercially reasonable best efforts to comply with such request;
(ac) each prepare and file cooperate with the notification required of it thereunder other in connection with resolving any governmental inquiry or investigation, whether domestic or foreign, relating to their respective HSR Act filings, Foreign Antitrust Filings, the Merger as soon as reasonably practicable but no later than twenty (20) Business Days following January 14, 2021, (b) promptly and in good faith respond to all information requested of it by the Federal Trade Commission and Department of Justice in connection with such notification and otherwise cooperate in good faith with each other and such Governmental Entities, (c) each request early termination of or any waiting period under the HSR Act, and related inquiry or investigation;
(d) submit, as soon as practicable, any other required applications or filings pursuant to any Antitrust Laws and furnish to the other Party as promptly as reasonably practicable all information required for any application or other filing required to be made pursuant to any Antitrust Law. BRPA and the Company shall substantially comply with any information or document requests by the Federal Trade Commission or the Department of Justice in connection with the Merger. BRPA and the Company shall (i) promptly inform the other of any substantive communication with, and any proposed understanding, agreement, or undertaking with any governmental entity, whether domestic or foreign, relating to or from the Federal Trade Commissiontheir respective HSR Act filings, Foreign Antitrust Filings, the Department of Justice Merger or any other Governmental Entity regarding the Merger and permit counsel related inquiry or investigation;
(e) to the other Party an opportunity to review in advanceextent reasonably practicable, and each Party shall consider in good faith the views of such counsel in connection with, any proposed written communications by such Party to any Governmental Entity concerning the Merger, (ii) give the other prompt reasonable advance notice of the commencement of any judicial or administrative action, suit, litigation, arbitration, proceeding by or before any Governmental Entity with respect to such transactionsof, and the opportunity to participate in (iii) keep directly or through its representatives), any meeting or conference with any governmental entity, whether domestic or foreign, relating to their respective HSR Act filings, Foreign Antitrust Filings, the other reasonably informed as to the status of Merger or any such action. Each Party agrees to provide, related inquiry or investigation to the extent permitted allowed by the applicable Governmental Entity, the other Party and its counsel the opportunity, on reasonable advance notice, law; and
(f) pay any filing fees required to participate in any substantive meetings or discussions, either in person or by telephone, between such Party and/or any of its Affiliates, agents or advisors, on the one hand, and any Governmental Entity, on the other hand, concerning or be paid in connection with the Merger; providedsuch filings, neither Party shall extend any waiting period or comparable period if any, under the HSR Act or enter into any agreement with any Governmental Entity without the written consent of the other Party. Any materials exchanged in connection with this Section 5.3 may be redacted or withheld as necessary to address reasonable privilege or confidentiality concerns of legal counsel of the Company, and to remove references concerning the valuation of the Company or other competitively sensitive material; provided, that the Company may, as it deems advisable and necessary, designate any materials provided to the BRPA under this Section 5.3 as “outside counsel onlyForeign Antitrust Filings.” Filing fees with respect to the notifications required under the HSR Act shall be paid by the Company.
(b) BRPA shall not, and shall cause its Subsidiaries not to, acquire or agree to acquire, by merging with or into or consolidating with, or by purchasing a portion of the assets of or equity in, or by any other manner, any business or any corporation, partnership, association or other business organization or division thereof, or otherwise acquire or agree to acquire any assets, or take any other action, if the entering into of a definitive agreement relating to, or the consummation of such acquisition, merger or consolidation, or the taking of any other action, would reasonably be expected to (i) impose any material delay in the obtaining of, or materially increase the risk of not obtaining, any authorizations, consents, orders or declarations of any Governmental Entities or the expiration or termination of any applicable waiting period; (ii) materially increase the risk of any Governmental Entity entering an order prohibiting the consummation of the transaction contemplated hereby; (iii) materially increase the risk of not being able to remove any such order on appeal or otherwise; or (iv) materially delay or prevent the consummation of the transactions contemplated hereby. Notwithstanding anything in this Agreement to the contrary, the restrictions and obligations set forth in this Section 5.3(b) shall not apply to or be binding upon BRPA’s Affiliates, the Sponsor, their respective Affiliates or any investment funds or investment vehicles affiliated with, or managed or advised by, BRPA’s Affiliates, the Sponsor, or any portfolio company (as such term is commonly understood in the private equity industry) or investment of BRPA’s Affiliates, the Sponsor, or of any such investment fund or investment vehicle.
Appears in 1 contract
Samples: Merger Agreement (Cytyc Corp)
HSR Act. (a) If a filing is required pursuant to by the HSR ActAct and rules and regulations thereunder, each of the Parties hereto shall as promptly as practicable, BRPA but in no event later than ten business days following the execution and delivery of this Agreement, (i) file or cause to be filed with the United States Federal Trade Commission (the "FTC") and the Company shall use reasonable best efforts to United States Department of Justice (athe "DOJ") each prepare and file the notification and report form required for the transactions contemplated hereby and any supplemental information requested in connection therewith pursuant to the HSR Act and (ii) make such other filings as are necessary in other jurisdictions in order to comply with all applicable laws relating to competition and, subject to the provisions in the last sentence of it thereunder this Section 4.3, shall promptly provide any supplemental information requested by applicable Governmental Entities relating thereto. Any such filing, notification and report form and supplemental information shall be in substantial compliance with the requirements of the HSR Act or such other applicable law. Each of the parties hereto shall furnish to the others such necessary information and reasonable assistance as the others may request in connection with the Merger as soon as reasonably practicable but no later than twenty (20) Business Days following January 14, 2021, (b) promptly and in good faith respond to all information requested of it by the Federal Trade Commission and Department of Justice in connection with such notification and otherwise cooperate in good faith with each other and such Governmental Entities, (c) each request early termination its preparation of any waiting period under the HSR Act, and (d) submit, as soon as practicable, any other required applications filing or filings pursuant to any Antitrust Laws and furnish to the other Party as promptly as reasonably practicable all information required for any application or other filing required to be made pursuant to any Antitrust Law. BRPA and the Company shall substantially comply with any information or document requests by the Federal Trade Commission or the Department of Justice in connection with the Merger. BRPA and the Company shall (i) promptly inform the other of any substantive communication to or from the Federal Trade Commission, the Department of Justice or any other Governmental Entity regarding the Merger and permit counsel to the other Party an opportunity to review in advance, and each Party shall consider in good faith the views of such counsel in connection with, any proposed written communications by such Party to any Governmental Entity concerning the Merger, (ii) give the other prompt notice of the commencement of any judicial or administrative action, suit, litigation, arbitration, proceeding by or before any Governmental Entity with respect to such transactions, and (iii) keep the other reasonably informed as to the status of any such action. Each Party agrees to provide, to the extent permitted by the applicable Governmental Entity, the other Party and its counsel the opportunity, on reasonable advance notice, to participate in any substantive meetings or discussions, either in person or by telephone, between such Party and/or any of its Affiliates, agents or advisors, on the one hand, and any Governmental Entity, on the other hand, concerning or in connection with the Merger; provided, neither Party shall extend any waiting period or comparable period submission that is necessary under the HSR Act or enter into such other applicable law. Each of the parties hereto shall keep the others apprised of the status of any agreement communications with, and any inquiries or requests for additional information from, the FTC, the DOJ and any other applicable Governmental Entities and shall comply promptly with any Governmental Entity without the written consent of the other Partysuch inquiry or request. Any materials exchanged in connection with this Section 5.3 may be redacted or withheld as necessary Each party shall use reasonable commercial efforts to address reasonable privilege or confidentiality concerns of legal counsel of the Company, and to remove references concerning the valuation of the Company or other competitively sensitive material; provided, that the Company may, as it deems advisable and necessary, designate obtain any materials provided to the BRPA under this Section 5.3 as “outside counsel only.” Filing fees with respect to the notifications clearance required under the HSR Act shall be paid by the Company.
(b) BRPA shall not, and shall cause its Subsidiaries not to, acquire or agree to acquire, by merging with or into or consolidating with, or by purchasing a portion of the assets of or equity in, or by any such other manner, any business or any corporation, partnership, association or other business organization or division thereof, or otherwise acquire or agree to acquire any assets, or take any other action, if the entering into of a definitive agreement relating to, or the consummation of such acquisition, merger or consolidation, or the taking of any other action, would reasonably be expected to (i) impose any material delay in the obtaining of, or materially increase the risk of not obtaining, any authorizations, consents, orders or declarations of any Governmental Entities or the expiration or termination of any applicable waiting period; (ii) materially increase the risk of any Governmental Entity entering an order prohibiting the consummation of the transaction contemplated hereby; (iii) materially increase the risk of not being able to remove any such order on appeal or otherwise; or (iv) materially delay or prevent law for the consummation of the transactions contemplated hereby. Notwithstanding by this Agreement; provided that, notwithstanding anything in this Agreement to the contrarycontrary contained herein, the restrictions and obligations set forth in this Section 5.3(b) Buyer shall not apply be obligated to (A) respond to formal requests for additional information or be binding upon BRPA’s Affiliates, documentary material pursuant to 16 C.F.R. 803.20 under the Sponsor, their respective Affiliates HSR Act except to the extent it elects to do so in its sole discretion or (B) to sell or dispose of or hold separately (through a trust or otherwise) any of the Acquired Assets or any investment funds other assets or investment vehicles affiliated with, businesses of the Buyer or managed or advised by, BRPA’s Affiliates, the Sponsor, or any portfolio company (as such term is commonly understood in the private equity industry) or investment of BRPA’s Affiliates, the Sponsor, or of any such investment fund or investment vehicleits affiliates.
Appears in 1 contract
HSR Act. (a) If required pursuant Subject to the HSR Actterms and conditions of this Agreement, as promptly as practicable, BRPA the Seller Parties and the Company Purchaser shall use their respective reasonable best efforts to make all necessary filings required under the HSR Act (aincluding, but not limited to, the Notification and Report Form 67 CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY [***], HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED. (16 C.F.R. Part 803 - Appendix)) each prepare and file the notification required of it thereunder in connection with the Merger as soon as reasonably the Purchaser determines is prudent and practicable but no not later than twenty (20) Business Days following January 14after the date of this Agreement, 2021and each party agrees to supply as promptly as practicable to the appropriate Governmental Entities any additional information and documentary material that may be requested pursuant thereto. From the date of this Agreement until the earlier of the Closing Date and the termination of this Agreement, (b) each party hereto shall promptly notify the other party of any pending or threatened action or investigation by any Governmental Entity seeking to restrain or prohibit the consummation of the transactions contemplated hereby or otherwise limit the right of the Purchaser to own or operate all or any portion of the Business or the Acquired Assets. To the extent permitted by applicable Law, the parties will consult and cooperate with one another, and consider in good faith respond to all information requested the views of it by the Federal Trade Commission and Department of Justice one another, in connection with such notification all filings, applications, notices, analyses, appearances, presentations, memoranda, submissions, briefs, arguments, opinions and otherwise cooperate in good faith with each other and such Governmental Entities, (c) each request early termination proposals made or submitted by or on behalf of any waiting period under the HSR Act, and (d) submit, as soon as practicable, party before any other required applications or filings pursuant to any Antitrust Laws and furnish to the other Party as promptly as reasonably practicable all information required for any application or other filing required to be made pursuant to any Antitrust Law. BRPA and the Company shall substantially comply with any information or document requests by the Federal Trade Commission or the Department of Justice Governmental Entity in connection with the Mergerapproval of the contemplated transactions (except with respect to Taxes); provided, however, that in the event of a disagreement concerning any such filing, application, notice, analysis, appearance, presentation, memorandum, brief, argument, opinion or proposal, the determination of the Purchaser shall be conclusive; provided, further that nothing will prevent a party from responding to or complying with a subpoena or other legal process required by Law or submitting factual information in response to a request therefore. BRPA and In addition, except as prohibited by Law, the Company shall (i) promptly inform notify the other Purchaser of any substantive communication to or the Company from the Federal Trade Commission, the Department of Justice or any other Governmental Entity regarding the Merger and permit counsel to the other Party an opportunity to review in advance, and each Party shall consider in good faith the views of such counsel in connection with, any proposed written communications by such Party to any Governmental Entity concerning relating to the Merger, approval or disapproval of the transactions contemplated hereby; and (ii) give the other prompt notice of the commencement of not participate in any judicial meetings or administrative action, suit, litigation, arbitration, proceeding by or before substantive discussions with any Governmental Entity with 68 CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY [***], HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED. respect thereto without consulting with and offering the Purchaser a meaningful opportunity to participate in such transactions, and (iii) keep the other reasonably informed as meetings or discussions. Notwithstanding anything to the status of contrary in this Agreement, the Purchaser shall take all actions that are necessary to permit and cause the Closing to occur as soon as possible and in any such action. Each Party agrees to provide, event prior to the extent permitted September 30, 2007, including taking all actions that are necessary to comply with any requirement, request or condition sought or imposed by the applicable United States Federal Trade Commission ("FTC") or the Antitrust Division of the United States Department of Justice ("DOJ") or other Governmental Entity, the other Party and its counsel the opportunity, on reasonable advance notice, to participate relating in any substantive meetings way to this Agreement or discussions, either in person or by telephone, between such Party and/or any of its Affiliates, agents or advisors, on the one hand, and any Governmental Entity, on the other hand, concerning or in connection with the Merger; provided, neither Party shall extend any waiting period or comparable period under the HSR Act or enter into any agreement with any Governmental Entity without the written consent of the other Party. Any materials exchanged in connection with this Section 5.3 may be redacted or withheld as necessary to address reasonable privilege or confidentiality concerns of legal counsel of the Company, and to remove references concerning the valuation of the Company or other competitively sensitive material; provided, that the Company may, as it deems advisable and necessary, designate any materials provided to the BRPA under this Section 5.3 as “outside counsel only.” Filing fees with respect to the notifications required under the HSR Act shall be paid by the Company.
(b) BRPA shall not, and shall cause its Subsidiaries not to, acquire or agree to acquire, by merging with or into or consolidating with, or by purchasing a portion of the assets of or equity in, or by any other manner, any business or any corporation, partnership, association or other business organization or division thereof, or otherwise acquire or agree to acquire any assets, or take any other action, if the entering into of a definitive agreement relating to, or the consummation of such acquisition, merger or consolidation, or the taking of any other action, would reasonably be expected to (i) impose any material delay in the obtaining of, or materially increase the risk of not obtaining, any authorizations, consents, orders or declarations of any Governmental Entities or the expiration or termination of any applicable waiting period; (ii) materially increase the risk of any Governmental Entity entering an order prohibiting the consummation of the transaction contemplated hereby; (iii) materially increase the risk of not being able to remove any such order on appeal or otherwise; or (iv) materially delay or prevent the consummation of the transactions contemplated hereby ("Government Conditions"), where the failure to satisfy any Government Condition would prevent or make illegal such timely consummation of the transactions contemplated hereby, including (i) proposing, negotiating, offering to commit and effect, by consent decree, hold separate order, or otherwise, the sale, divestiture, out- license or other disposition of such of the Acquired Assets as the Purchaser deems necessary (a "Disposition"), and (ii) taking all other actions necessary or reasonable, as determined by the Purchaser, including instigating or defending any proceeding or litigation, making reasonable offers of compromise, and promptly removing or causing to be removed any direction, determination, requirement, injunction, order, condition or limitation, that prevents or would prevent, or that makes illegal, the timely consummation of the transactions contemplated by this Agreement. Notwithstanding anything the immediately preceding sentence, (x) the Purchaser, in this its sole discretion, may decide not to enter into any Disposition, settlement, undertaking, condition or limitation otherwise necessary to comply with any Government Conditions, and (y) the Purchaser shall not be required to enter into a Disposition with respect to any assets other than the Acquired Assets. In furtherance of the foregoing, except as prohibited by Law, the Company shall, at the Purchaser's request, take all actions that are reasonably necessary to comply with any Government Conditions; provided, however, that in the event that the Acquired Assets are to be sold, divested, out-licensed or otherwise disposed of in a transaction other than the Closing, the Seller Parties shall not be obligated to take any such action unless as a condition to such transaction the third party involved therein is required to execute and deliver the Non-Competition, Confidentiality and Development Agreement or in lieu thereof, the Entrepreneurs shall otherwise be compensated therefor or otherwise receive the benefit of their bargain pursuant thereto. If the Closing Date shall not have occurred on or prior to September 30, 2007, the Purchaser shall thereafter be required to use its continuous best efforts to cause the Closing to occur as promptly as reasonably practicable thereafter, and the Seller Parties shall provide such cooperation and assistance as shall be necessary in connection therewith without unreasonable disruption to the contraryoperation of the business of the Seller Parties (other than the Business); provided, however, no party shall be required to take or refrain from taking any action in violation of applicable Law. The Purchaser shall indemnify the restrictions Seller Indemnified Parties and obligations set forth in hold the Seller Indemnified Parties harmless against any Damages that the Seller Indemnified Parties incur by reason of their compliance with this Section 5.3(b) shall not apply to or be binding upon BRPA’s Affiliates, the Sponsor, their respective Affiliates or any investment funds or investment vehicles affiliated with, or managed or advised by, BRPA’s Affiliates, the Sponsor, or any portfolio company (as such term is commonly understood in the private equity industry) or investment of BRPA’s Affiliates, the Sponsor, or of any such investment fund or investment vehicle7.5.
Appears in 1 contract
HSR Act. 5.7.1 Each of Bergen and PharMerica shall (aA) If make or cause to be made the filings required pursuant of such party or any of its subsidiaries or affiliates under the HSR Act with respect to the HSR Act, transactions contemplated hereby as promptly as practicable, BRPA practicable and in any event within five business days after the Company shall use reasonable best efforts to (a) each prepare and file the notification required date of it thereunder in connection with the Merger as soon as reasonably practicable but no later than twenty (20) Business Days following January 14, 2021this Agreement, (bB) promptly and in good faith respond to all information requested comply at the earliest practicable date with any request under the HSR Act for additional information, documents, or other materials received by such party or any of it by its subsidiaries from the Federal Trade Commission and or the Department of Justice or any other Governmental Authority in respect of such filings or such transactions, and (C) cooperate with the other party in connection with any such notification filing (including without limitation the exchange between the parties, or where prudent, between the outside counsel of the parties, of relevant materials prior to the filing of such materials, provided that nothing herein shall obligate a party hereto to waive attorney-client protections or similar protections, and, if requested, to accept all reasonable additions, deletions or changes suggested in connection therewith) and otherwise cooperate in good faith connection with each resolving any investigation or other and such Governmental Entities, (c) each request early termination inquiry of any waiting period such agency or other Governmental Authority under the HSR Act, and (d) submit, as soon as practicable, any other required applications or filings pursuant to any Antitrust Laws and (as hereinafter defined) with respect to any such filing or any such transaction. Each party shall use all reasonable efforts to furnish to the each other Party as promptly as reasonably practicable all information required for any application or other filing required to be made pursuant to any Antitrust Law. BRPA and the Company shall substantially comply with any information or document requests by the Federal Trade Commission or the Department of Justice Applicable Law in connection with the Merger. BRPA Merger and the Company other transactions contemplated by this Agreement. Each party shall (i) promptly inform the other party of any substantive communication to or from the Federal Trade Commission, the Department of Justice or any other Governmental Entity regarding the Merger and permit counsel to the other Party an opportunity to review in advancewith, and each Party shall consider in good faith the views of such counsel in connection any proposed understanding, undertaking, or agreement with, any proposed written communications by Governmental Authority regarding any such Party to filings or any such transaction. Neither party shall independently participate in any formal meeting with any Governmental Entity concerning Authority in respect of any filing, investigation or other inquiry relating to the Merger, (ii) give Merger without giving the other prompt party prior notice of the commencement of any judicial or administrative action, suit, litigation, arbitration, proceeding by or before any Governmental Entity with respect to such transactions, and (iii) keep the other reasonably informed as to the status of any such action. Each Party agrees to providemeeting and, to the extent permitted by the applicable such Governmental EntityAuthority, the opportunity to attend and/or participate. The parties hereto will consult and cooperate with one another, in connection with any analyses, appearances, presentations, memoranda, briefs, arguments, opinions and proposals made or submitted by or on behalf of any party hereto in connection with proceedings relating to the Merger under or relating to the HSR Act or other Party Antitrust Laws.
5.7.2 Each of Bergen and its counsel PharMerica shall use all reasonable efforts to resolve such objections, if any, as may be asserted by any Governmental Authority with respect to the opportunitytransactions contemplated by this Agreement under the HSR Act, on reasonable advance noticethe Clayxxx Xxx, to participate in any substantive meetings or discussionsas amended, either in person or by telephonethe Sherxxx Xxxitrust Act, between such Party and/or any of its Affiliatesas amended, agents or advisorsthe Federal Trade Commission Act, on the one handas amended, and any Governmental Entityother federal, on state or foreign statues, rules, regulations, orders, decrees, guidelines, administrative or judicial doctrines or other laws that are designed to prohibit, restrict or regulate actions having the purpose or effect of monopolization or restraint of trade or competition (collectively, "Antitrust Laws"). In connection therewith and subject to Section 5.7.3, if any administrative or judicial action or proceeding is instituted (or threatened to be instituted) challenging any transaction contemplated by this Agreement as violative of any Antitrust Law, each of Bergen and PharMerica shall cooperate and use all reasonable efforts vigorously to contest and resist any such action or proceeding, including without limitation any legislative, administrative or judicial action, and to have vacated, lifted, reversed, or overturned any decree, judgment, injunction or other handorder whether temporary, concerning preliminary or permanent (each an "Order"), that is in connection effect and that prohibits, prevents, or restricts consummation of the Merger or any other transactions contemplated by this Agreement, including, without limitation, by vigorously pursuing all available avenues of administrative and judicial appeal and all available legislative action, unless by mutual agreement Bergen and PharMerica decide that any such action is not in their respective best interests. Notwithstanding the foregoing or any other provision of this Agreement, nothing in this Section 5.7 shall limit a party's right to terminate this Agreement pursuant to Section 7.1, so long as such party has up to then complied in all material respects with its obligations under this Section 5.7. Each of Bergen and PharMerica shall use all reasonable efforts to take such action as may be required to cause the Merger; provided, neither Party shall extend any early termination or expiration of the waiting period or comparable period periods under the HSR Act or enter into any agreement with any Governmental Entity without the written consent of the other Party. Any materials exchanged in connection with this Section 5.3 may be redacted or withheld as necessary to address reasonable privilege or confidentiality concerns of legal counsel of the Company, and to remove references concerning the valuation of the Company or other competitively sensitive material; provided, that the Company may, as it deems advisable and necessary, designate any materials provided to the BRPA under this Section 5.3 as “outside counsel only.” Filing fees Antitrust Laws with respect to such transactions as promptly as possible after the notifications execution of this Agreement.
5.7.3 If required to avoid a Governmental Authority instituting an action challenging the transactions contemplated by this Agreement under the HSR Act shall be paid Antitrust Laws and seeking to enjoin or prohibit the consummation of any of the transactions contemplated by this Agreement (or if required to settle any such action previously instituted by a Governmental Authority), Bergen shall, and, at the Company.
(b) BRPA shall notdirection of Bergen, PharMerica shall, propose, negotiate, commit to and shall cause its Subsidiaries not to, acquire or agree to acquireeffect, by merging with or into or consolidating withconsent decree, hold separate order, or by purchasing a portion otherwise, the sale, divestiture or disposition of the assets any of their respective businesses or equity in, or by any other manner, any business or any corporation, partnership, association or other business organization or division thereof, or otherwise acquire or agree to acquire any assets, or take or agree to take any other action, if action or agree to any limitation as may be required in order to avoid the entering into of a definitive agreement relating to, or the consummation of such acquisition, merger or consolidation, or the taking of any other action, would reasonably be expected to (i) impose any material delay in the obtaining entry of, or materially increase to effect the risk of not obtainingdissolution of, any authorizationsinjunction, consentstemporary restraining order or other order in any suit or proceeding, orders which would otherwise have the effect of preventing or declarations delaying the Closing; provided, however, that this Section 5.7.3 shall not require Bergen to take any action if such action, in the reasonable judgment of any Governmental Entities or Bergen's Board of Directors, would be reasonably likely to have a Bergen Material Adverse Effect after the expiration or termination of any applicable waiting period; (ii) materially increase the risk of any Governmental Entity entering an order prohibiting the consummation of the transaction contemplated hereby; (iii) materially increase the risk of not being able Effective Time giving effect to remove any such order on appeal or otherwise; or (iv) materially delay or prevent the consummation of the transactions contemplated hereby. Notwithstanding anything in by this Agreement to the contrary, the restrictions and obligations set forth in this Section 5.3(b) shall not apply to or be binding upon BRPA’s Affiliates, the Sponsor, their respective Affiliates or any investment funds or investment vehicles affiliated with, or managed or advised by, BRPA’s Affiliates, the Sponsor, or any portfolio company (as such term is commonly understood in the private equity industry) or investment of BRPA’s Affiliates, the Sponsor, or of any such investment fund or investment vehicleAgreement.
Appears in 1 contract
Samples: Merger Agreement (Pharmerica Inc)
HSR Act. (a) If Each party hereto shall (i) take promptly all actions necessary to make the filings required of it or any of its Affiliates under any applicable Antitrust Laws in connection with this Agreement and the transactions contemplated hereby, including but not limited to filing pursuant to the HSR ActAct no later than the tenth (10th) day following the date hereof a Notification and Report Form with respect to the transactions contemplated by this Agreement, as promptly as practicable(ii) comply at the earliest practicable date with any formal or informal request for additional information or documentary material received by it or any of its Affiliates from any Antitrust Authority, BRPA and the Company shall use reasonable best efforts to (aiii) each prepare and file the notification required of it thereunder cooperate with one another in connection with any filing under applicable Antitrust Laws and in connection with resolving any investigation or other inquiry concerning the Merger as soon as reasonably practicable but no later than twenty (20) Business Days following January 14, 2021, transactions contemplated by this Agreement initiated by any Antitrust Authority.
(b) promptly and in good faith respond Each party hereto shall use its commercially reasonable efforts to all information requested of it by the Federal Trade Commission and Department of Justice in connection with resolve such notification and otherwise cooperate in good faith with each other and such Governmental Entitiesobjections, (c) each request early termination of any waiting period under the HSR Act, and (d) submitif any, as soon as practicable, any other required applications or filings pursuant to any Antitrust Laws and furnish may be asserted with respect to the other Party as promptly as reasonably practicable all information required for any application or other filing required to be made pursuant to transactions contemplated by this Agreement under any Antitrust Law. BRPA and Without limiting the Company generality of the foregoing, "commercially reasonable efforts" shall substantially comply with any information or document requests by the Federal Trade Commission or the Department of Justice in connection with the Merger. BRPA and the Company shall include:
(i) in the case of each of Parent and the Company, if Parent or the Company receives a formal request for additional information or documentary material from an Antitrust Authority, substantially complying with such formal request within sixty (60) days following the date of its receipt thereof or such; and
(ii) in the case of the Company only, subject to Parent's compliance with clause (i) above, not frustrating or impeding Parent's strategy or negotiating positions with any Antitrust Authority.
(c) Each party hereto shall promptly inform the other parties of any substantive material communication to made to, or from the Federal Trade Commissionreceived by such party from, the Department of Justice any Antitrust Authority or any other Governmental Entity regarding the Merger and permit counsel to the other Party an opportunity to review in advance, and each Party shall consider in good faith the views of such counsel in connection with, any proposed written communications by such Party to any Governmental Entity concerning the Merger, (ii) give the other prompt notice of the commencement of any judicial or administrative action, suit, litigation, arbitration, proceeding by or before any Governmental Entity with respect to such transactions, and (iii) keep the other reasonably informed as to the status of any such action. Each Party agrees to provide, to the extent permitted by the applicable Governmental Entity, the other Party and its counsel the opportunity, on reasonable advance notice, to participate in any substantive meetings or discussions, either in person or by telephone, between such Party and/or any of its Affiliates, agents or advisors, on the one hand, and any Governmental Entity, on the other hand, concerning or in connection with the Merger; provided, neither Party shall extend any waiting period or comparable period under the HSR Act or enter into any agreement with any Governmental Entity without the written consent of the other Party. Any materials exchanged in connection with this Section 5.3 may be redacted or withheld as necessary to address reasonable privilege or confidentiality concerns of legal counsel of the Company, and to remove references concerning the valuation of the Company or other competitively sensitive material; provided, that the Company may, as it deems advisable and necessary, designate any materials provided to the BRPA under this Section 5.3 as “outside counsel only.” Filing fees with respect to the notifications required under the HSR Act shall be paid by the Company.
(b) BRPA shall not, and shall cause its Subsidiaries not to, acquire or agree to acquire, by merging with or into or consolidating with, or by purchasing a portion of the assets of or equity in, or by any other manner, any business or any corporation, partnership, association or other business organization or division thereof, or otherwise acquire or agree to acquire any assets, or take any other action, if the entering into of a definitive agreement relating to, or the consummation of such acquisition, merger or consolidation, or the taking of any other action, would reasonably be expected to (i) impose any material delay in the obtaining of, or materially increase the risk of not obtaining, any authorizations, consents, orders or declarations of any Governmental Entities or the expiration or termination of any applicable waiting period; (ii) materially increase the risk of any Governmental Entity entering an order prohibiting the consummation of the transaction contemplated hereby; (iii) materially increase the risk of not being able to remove any such order on appeal or otherwise; or (iv) materially delay or prevent the consummation of the transactions contemplated hereby. Notwithstanding anything in this Agreement to the contrary, the restrictions and obligations set forth in this Section 5.3(b) shall not apply to or be binding upon BRPA’s Affiliates, the Sponsor, their respective Affiliates or any investment funds or investment vehicles affiliated with, or managed or advised by, BRPA’s Affiliates, the Sponsor, or any portfolio company (as such term is commonly understood in the private equity industry) or investment of BRPA’s Affiliates, the Sponsor, or of any such investment fund or investment vehicle.
Appears in 1 contract
HSR Act. (a) If required pursuant to the HSR Actapplicable Law, as promptly as practicable, BRPA and the Company each Party shall use reasonable best efforts to (a) each prepare and file the notification required of it thereunder in connection with the Merger as soon as reasonably practicable but no later than twenty (20) Business Days following January 14, 2021, (b) promptly and in good faith respond to all information requested of it by the Federal Trade Commission and Department of Justice in connection with such notification and otherwise cooperate in good faith with each other and such Governmental Entities, (c) each request early termination of any waiting period under the HSR Act, and (d) submit, as soon as practicable, and in any event no later than three (3) Business Days after the execution of a LOI by the Parties, or if no LOI is executed by the Parties, after the Execution Date except as mutually agreed otherwise, a Notification and Report Form under the HSR Act with the United States Federal Trade Commission and the Antitrust Division of the United States Department of Justice, as well as any other required applications necessary premerger or filings pursuant to any Antitrust Laws and furnish to the other competition filings. As deemed advisable, each Party shall respond as promptly as reasonably practicable all information required for any application or other filing required to be made pursuant to any Antitrust Law. BRPA and inquiries or requests received from any Governmental Authority in the Company shall substantially comply with any Territory for additional information or document requests by the Federal Trade Commission or the Department of Justice in connection with the Mergerdocumentation. BRPA and the Company Each Party shall (i) promptly inform the other of any substantive communication to or from the Federal Trade Commission, the Department of Justice or any other Governmental Entity regarding the Merger and permit counsel to notify the other Party an opportunity of any communication to that Party or its Affiliates from any Governmental Authority and, subject to applicable Law, permit the other Party or the other Party's counsel to review in advance, and each Party shall consider in good faith the views of such counsel in connection with, advance any proposed written communications by such Party communication to any Governmental Entity concerning of the Merger, foregoing; (ii) give not participate, or permit its Affiliates to participate, in any substantive meeting or discussion with any Governmental Authority in respect of any filings, investigation or inquiry concerning this Agreement unless it consults with the other prompt notice of the commencement of any judicial or administrative action, suit, litigation, arbitration, proceeding by or before any Governmental Entity with respect to such transactions, and (iii) keep the other reasonably informed as to the status of any such action. Each Party agrees to providein advance and, to the extent permitted by such Governmental Authority in the applicable Governmental EntityTerritory, gives the other Party the opportunity to attend and its counsel participate thereat; and (iii) subject to applicable Law and any other reasonable confidentiality obligations of the opportunitydisclosing Party, on reasonable advance noticefurnish the other Party with copies of all correspondence, filings, and communication (and memoranda setting forth the substance thereof) (including documents submitted as attachments to participate in any substantive meetings or discussions, either in person or by telephone, each Party's Notification and Report Form under the HSR Act) between such Party and/or any of (its Affiliatesaffiliates, agents or advisors, and its respective Representatives) on the one hand, and any Governmental Entity, Authority or members of their respective staffs on the other hand, concerning or in connection with the Merger; provided, neither Party shall extend any waiting period or comparable period under the HSR Act or enter into any agreement with any Governmental Entity without the written consent of the other Party. Any materials exchanged in connection with this Section 5.3 may be redacted or withheld as necessary to address reasonable privilege or confidentiality concerns of legal counsel of the Company, and to remove references concerning the valuation of the Company or other competitively sensitive material; provided, that the Company may, as it deems advisable and necessary, designate any materials provided to the BRPA under this Section 5.3 as “outside counsel only.” Filing fees with respect to the notifications this Agreement. The responsibility for any required under the HSR Act filing fees shall be paid by the Companysplit 50/50 between Purchaser and Seller.
(b) BRPA shall not, In furtherance and shall cause its Subsidiaries not to, acquire or agree to acquire, by merging with or into or consolidating with, or by purchasing a portion in limitation of the assets other covenants of or equity inthe Parties contained herein, or by any other mannerPurchaser shall have the right, any business or any corporationbut not the obligation, partnership, association or other business organization or division thereof, or otherwise acquire or agree to acquire any assets, or take any other action, if the entering into of a definitive agreement relating to, or the consummation of such acquisition, merger or consolidation, or the taking of any other action, would reasonably be expected seek to (i) impose remedy any material delay in the obtaining of, or materially increase the risk of not obtaining, any authorizations, consents, orders or declarations of competition concerns that any Governmental Entities or the expiration or termination of any applicable waiting period; (ii) materially increase the risk of any Governmental Entity entering an order prohibiting Authority may have with respect to the consummation of the transaction contemplated hereby; Transactions. If any administrative, judicial or legislative Action is instituted (iiior threatened to be instituted) materially increase challenging the risk sale and purchase of the Purchased Assets or any of the Transactions as violative of any anti-competition Law, Purchaser may, but shall not being able be required to, elect to remove contest and resist any such Action, and to have vacated, lifted, reversed or overturned any decree, judgment, injunction or other order on appeal that is in effect and that restricts, prevents or otherwise; or (iv) materially delay or prevent prohibits the consummation of the transactions contemplated herebyTransactions. Notwithstanding anything in In the event Purchaser elects not to seek to remedy any such competition concerns of a Governmental Authority after being given notice thereof, Seller may terminate this Agreement by giving notice of termination to the contrary, the restrictions and obligations set forth Purchaser. Seller shall cooperate in this Section 5.3(b) shall not apply a commercially reasonable manner with any efforts of Purchaser to or be binding upon BRPA’s Affiliates, the Sponsor, their respective Affiliates or any investment funds or investment vehicles affiliated with, or managed or advised by, BRPA’s Affiliates, the Sponsor, or any portfolio company (as such term is commonly understood in the private equity industry) or investment of BRPA’s Affiliates, the Sponsor, or of remedy any such investment fund or investment vehiclecompetition concerns of a Governmental Authority.
Appears in 1 contract
HSR Act. (a) If required pursuant Prior to the HSR Actdate hereof, as promptly as practicableBuyer and CBIZ, BRPA on the one hand, and Seller, on the other hand, have filed with the U.S. Federal Trade Commission (“FTC”) and the Company Antitrust Division of the U.S. Department of Justice (the “DOJ”) an appropriate Notification and Report Form relating to this Agreement and the transactions contemplated hereby as required by the HSR Act (the “HSR Filing”). Each of Buyer and Seller shall (i) use reasonable best efforts to (a) each prepare and file supply any additional information that reasonably may be required or requested by the notification required of it thereunder FTC or the DOJ in connection with the Merger as soon as reasonably practicable but no later than twenty HSR Filing, and (20ii) Business Days following January 14, 2021, (b) promptly and in good faith respond use reasonable best efforts to all information requested of it by cause the Federal Trade Commission and Department of Justice in connection with such notification and otherwise cooperate in good faith with each other and such Governmental Entities, (c) each request early expiration or termination of any the applicable waiting period periods under the HSR Act, and (d) submit, Act as soon as practicable. Buyer and CBIZ, any other required applications or filings pursuant to any Antitrust Laws on the one hand, and furnish to Seller, on the other Party as promptly as reasonably practicable all information required for any application or other filing required to be made pursuant to any Antitrust Law. BRPA and the Company hand, shall substantially comply with any information or document requests by the Federal Trade Commission or the Department of Justice in connection with the Merger. BRPA and the Company shall (i) promptly inform the other of any substantive communication from any Governmental Authority regarding any of the transactions contemplated by this Agreement in connection with any filings or investigations with, by or before any Governmental Authority relating to this Agreement or from the Federal Trade Commissiontransactions contemplated hereby, including any proceedings initiated by a private party. In connection with and without limiting the Department of Justice or any other Governmental Entity regarding the Merger and permit counsel foregoing, to the extent reasonably practicable and unless prohibited by applicable Law or by the applicable Governmental Authority, each of Buyer and CBIZ, on the one hand, and Seller, on the other Party hand, shall (i) give each other reasonable advance notice of all meetings with any Governmental Authority relating to the transaction contemplated by this Agreement, (ii) give each other an opportunity to participate in each of such meetings, (iii) keep such other party reasonably apprised with respect to any oral communications with any Governmental Authority regarding the transaction contemplated by this Agreement, (iv) reasonably cooperate in the filing of any analyses, presentations, memoranda, briefs, arguments, opinions or other written communications explaining or defending the transaction contemplated by this Agreement, articulating any regulatory or competitive argument and/or responding to requests or objections made by any Governmental Authority, (v) provide each other with a reasonable advance opportunity to review in advanceand comment upon, and each Party shall consider in good faith the views of such counsel in connection withthe other with respect to, any proposed all written communications (including any analyses, presentations, memoranda, briefs, arguments and opinions) with a Governmental Authority regarding the transactions contemplated by such Party this Agreement, (vi) provide each other (or counsel of each party, as appropriate) with copies of all written communications to or from any Governmental Entity concerning Authority relating to the Mergertransactions contemplated by this Agreement, and (iivii) give cooperate and provide each other with a reasonable opportunity to participate in, and consider in good faith the views of the other prompt notice of the commencement of any judicial or administrative actionwith respect to, suit, litigation, arbitration, proceeding by or before any Governmental Entity all material deliberations with respect to all efforts to satisfy the conditions set forth in Section 7.1(b). Any such transactionsdisclosures, and (iii) keep rights to participate or provisions of information by one party to the other reasonably informed as to the status of any such action. Each Party agrees to provide, may be made on a counsel-only basis to the extent permitted by required under applicable Law or as appropriate to protect confidential business information. Notwithstanding any provision contained in this Agreement to the applicable Governmental Entitycontrary (including Section 6.1(a)), the other Party and its counsel the opportunityneither Buyer, on reasonable advance noticeCBIZ nor any Affiliate of Buyer or CBIZ shall be required to: (A) (1) sell, divest, hold separate, license, cause a third party to participate in acquire, or otherwise dispose of, any substantive meetings subsidiary, operations, divisions, businesses, product lines, customers or discussionsassets of Buyer, either in person CBIZ or by telephone, between such Party and/or any of their Affiliates or Seller contemporaneously with or after the Closing and regardless as to whether a third party purchaser has been identified or approved prior to the Closing, (2) accept any operational restriction or take or commit to take such other actions that may limit Buyer’s, CBIZ’s or any of their Affiliates’ freedom of action with respect to, or its Affiliatesability to retain, agents one or advisorsmore of its operations, on divisions, businesses, products lines, customers or assets (including, without limitation, any of the one handAcquired Assets), and or (3) propose, negotiate, offer or enter into any judgment, consent decree, hold separate order or other agreement to effectuate any of the foregoing; (B) terminate, amend or otherwise modify any Contract or other business relationship as may be required to obtain any necessary clearance of any Governmental EntityAuthority or to obtain termination of any applicable waiting period under any the HSR Act; or (C) defend, on the other handcontest or resist any action or proceeding, concerning whether judicial or administrative, or to take any action to have vacated, lifted, reversed or overturned any judgment, in connection with the Merger; provided, neither Party shall transactions contemplated by this Agreement. No party hereto will agree to extend any waiting period or comparable period under the HSR Act or enter into any agreement or understanding with any Governmental Entity Authority without the prior written consent of the other Party. Any materials exchanged in connection with this Section 5.3 may be redacted or withheld as necessary to address reasonable privilege or confidentiality concerns of legal counsel of the Company, and to remove references concerning the valuation of the Company or other competitively sensitive material; provided, that the Company may, as it deems advisable and necessary, designate any materials provided to the BRPA under this Section 5.3 as “outside counsel only.” Filing fees with respect to the notifications required under the HSR Act shall be paid by the Company.
parties (b) BRPA shall not, and shall cause its Subsidiaries not to, acquire or agree to acquire, by merging with or into or consolidating with, or by purchasing a portion of the assets of or equity in, or by any other manner, any business or any corporation, partnership, association or other business organization or division thereof, or otherwise acquire or agree to acquire any assets, or take any other action, if the entering into of a definitive agreement relating to, or the consummation of such acquisition, merger or consolidation, or the taking of any other action, would reasonably be expected to (i) impose any material delay in the obtaining of, or materially increase the risk of not obtaining, any authorizations, consents, orders or declarations of any Governmental Entities or the expiration or termination of any applicable waiting period; (ii) materially increase the risk of any Governmental Entity entering an order prohibiting the consummation of the transaction contemplated hereby; (iii) materially increase the risk of not being able to remove any such order on appeal or otherwise; or (iv) materially delay or prevent the consummation of the transactions contemplated hereby. Notwithstanding anything in this Agreement to the contrary, the restrictions and obligations set forth in this Section 5.3(b) which consent shall not apply to be unreasonably withheld or be binding upon BRPA’s Affiliates, the Sponsor, their respective Affiliates or any investment funds or investment vehicles affiliated with, or managed or advised by, BRPA’s Affiliates, the Sponsor, or any portfolio company (as such term is commonly understood in the private equity industry) or investment of BRPA’s Affiliates, the Sponsor, or of any such investment fund or investment vehicledelayed).
Appears in 1 contract
HSR Act. (a) If required Subject to the terms and conditions of this Agreement, each of the parties will (i) use commercially reasonable efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary under applicable Antitrust Laws to consummate the transactions contemplated by this Agreement, (ii) if the transactions contemplated hereby require a Notification and Report Form pursuant to the HSR Act, as promptly as practicable, BRPA and the Company shall use commercially reasonable best efforts to file such Notification and Report Form with respect to the transactions contemplated by this Agreement within ten (a) each prepare and file the notification required of it thereunder in connection with the Merger as soon as reasonably practicable but no later than twenty (2010) Business Days following January 14the Effective Date, 2021, supplying as promptly as practicable any additional information and documentary material that may be requested pursuant to the HSR Act and (biii) promptly and in good faith respond use commercially reasonable efforts to all information requested of it by cause the Federal Trade Commission and Department of Justice in connection with such notification and otherwise cooperate in good faith with each other and such Governmental Entities, (c) each request early expiration or termination of any the applicable waiting period periods under the HSR Act, and (d) submit, Act as soon as practicable, any other required applications or filings pursuant to any Antitrust Laws and furnish to the other Party as promptly as reasonably practicable all information required for any application or other filing required to be made pursuant to any Antitrust Law. BRPA and the Company shall substantially comply with any information or document requests by the Federal Trade Commission or the Department of Justice in .
(b) In connection with the Merger. BRPA efforts referenced in Section 5.3(a) to obtain all requisite approvals and authorizations for the Company shall (i) promptly inform the other of any substantive communication to or from the Federal Trade Commission, the Department of Justice or any other Governmental Entity regarding the Merger and permit counsel to the other Party an opportunity to review in advance, and each Party shall consider in good faith the views of such counsel in connection with, any proposed written communications transactions contemplated by such Party to any Governmental Entity concerning the Merger, (ii) give the other prompt notice of the commencement of any judicial or administrative action, suit, litigation, arbitration, proceeding by or before any Governmental Entity with respect to such transactions, and (iii) keep the other reasonably informed as to the status of any such action. Each Party agrees to provide, to the extent permitted by the applicable Governmental Entity, the other Party and its counsel the opportunity, on reasonable advance notice, to participate in any substantive meetings or discussions, either in person or by telephone, between such Party and/or any of its Affiliates, agents or advisors, on the one hand, and any Governmental Entity, on the other hand, concerning or in connection with the Merger; provided, neither Party shall extend any waiting period or comparable period this Agreement under the HSR Act or enter into any agreement with any Governmental Entity without the written consent other Antitrust Law, each of the parties shall use commercially reasonable efforts to (i) cooperate with each other Party. Any materials exchanged in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by a private party, (ii) keep the other parties informed in all material respects of any material communication received by such party from, or given by such party to, the Federal Trade Commission (the “FTC”), the Antitrust Division of the Department of Justice (the “DOJ”) or any other Government authority and of any material communication received or given in connection with any proceeding by a private party, in each case regarding any of the transactions contemplated by this Agreement and (iii) permit the other parties to review any material communication given to it by, and consult with each other in advance of any meeting or conference with, the FTC, the DOJ or any other Government authority in connection with any proceeding by a private party. The foregoing obligations in this Section 5.3 may 5.3(b) shall be redacted or withheld as necessary to address reasonable privilege or confidentiality concerns of legal counsel of the Company, and to remove references concerning the valuation of the Company or other competitively sensitive material; provided, that the Company may, as it deems advisable and necessary, designate any materials provided subject to the BRPA under this Section 5.3 as “outside counsel only.” Filing fees Confidentiality Agreement with respect to the notifications required under the HSR Act shall be paid by the Company.
(b) BRPA shall notconfidential information of Buyer and Seller, and shall cause its Subsidiaries not toany attorney-client, acquire work product or agree to acquireother privilege, by merging with or into or consolidating with, or by purchasing a portion and each of the assets of or equity in, or by any parties to this Agreement will coordinate and cooperate fully with the other manner, any business or any corporation, partnership, association or parties to this Agreement in exchanging such information and providing such assistance as such other business organization or division thereof, or otherwise acquire or agree to acquire any assets, or take any other action, if parties may reasonably request in connection with the entering into of a definitive agreement relating to, or the consummation of such acquisition, merger or consolidation, or the taking of any other action, would reasonably be expected to (i) impose any material delay foregoing and in the obtaining of, or materially increase the risk of not obtaining, any authorizations, consents, orders or declarations of any Governmental Entities or the expiration or seeking early termination of any applicable waiting period; periods under the HSR Act. Any competitively sensitive information that is disclosed pursuant to this Section 5.3(b) will be limited to each party’s respective counsel and economists pursuant to a separate customary confidentiality agreement.
(iic) materially increase the risk of any Governmental Entity entering an order prohibiting the consummation of the transaction contemplated hereby; (iii) materially increase the risk of not being able to remove any such order on appeal or otherwise; or (iv) materially delay or prevent the consummation of the transactions contemplated hereby. Notwithstanding anything in this Agreement to the contrary, in no event will Buyer be obligated to propose or agree to accept any undertaking or condition, to enter into any consent decree, to make any divestiture, to accept any operational restriction, or take any other action that, in the restrictions and obligations set forth reasonable judgment of Buyer, could be expected to limit the right of Buyer to own or operate all or any portion of their respective businesses or assets. Neither Seller nor any of its Affiliates shall, without Buyer’s written consent, in this Section 5.3(b) shall not apply Buyer’s sole discretion, discuss or commit to any divestiture transaction, or be binding upon BRPAdiscuss or commit to alter its businesses or commercial practices in any way, or otherwise take or commit to take any action that limits Buyer’s Affiliatesfreedom of action with respect to, or Buyer’s ability to retain any of the businesses, product lines or assets of, the Sponsor, their respective Affiliates Business to be acquired or any investment funds or investment vehicles affiliated with, or managed or advised by, BRPA’s Affiliates, otherwise receive the Sponsor, or any portfolio company (as such term is commonly understood in the private equity industry) or investment full benefits of BRPA’s Affiliates, the Sponsor, or of any such investment fund or investment vehiclethis Agreement.
Appears in 1 contract
HSR Act. (a) If required Heptares and Neurocrine shall as soon as reasonably practicable, but in any event within [***] Business Days after the Execution Date, file a Notification and Report Form (an “HSR Filing”) pursuant to the HSR Act and each Party shall use commercially reasonable efforts to obtain early termination or expiration of the waiting period under the HSR Act, as promptly as practicable, BRPA and including by requesting early termination of the Company shall use reasonable best efforts to (a) each prepare and file the notification required of it thereunder in HSR waiting period. In connection with obtaining any necessary approvals under the Merger as soon as reasonably practicable but no later than twenty (20) Business Days following January 14HSR Act, 2021, (b) each Party shall promptly and in good faith respond to all any request for additional information requested of it by the U.S. Federal Trade Commission and U.S. Department of Justice in connection with such notification and otherwise cooperate in good faith with each other and such Governmental EntitiesAuthority, provided that no Party shall have any obligation to (i) litigate any action or claim filed by a Governmental Authority in state or federal court alleging violation of any antitrust or other laws, (cii) sell, divest, hold separate or license any of their assets or lines of business, or (iii) change or modify any course of conduct or otherwise make any commitments to any Governmental Authority regarding future operations of Neurocrine’s or Heptares’ business. For the avoidance of doubt, Neurocrine shall be responsible for paying any filing fees required in connection with such HSR Act filing.
(b) For any HSR Filings required, neither Neurocrine nor Heptares shall, and each request early termination shall use reasonable best efforts to cause their respective Affiliates not to, directly or indirectly take any action, including, directly or indirectly, acquiring or investing in any person or acquiring, leasing or licensing any assets, or agreement to do any of the foregoing, if doing so would reasonably be expected to impose any waiting period material delay in the obtaining of, or significantly increase the risk of not obtaining, any required approval under the HSR Act. Neurocrine and Heptares will promptly provide the other with copies of all substantive written communications (and memoranda setting forth the substance of all substantive oral communications) between each of them, any of their subsidiaries and their respective agents, representatives and advisors, on the one hand, and (d) submitany Governmental Authority, as soon as practicable, any other required applications or filings pursuant to any Antitrust Laws and furnish to on the other Party as promptly as reasonably practicable all information required for any application or other filing required hand, with respect to be made pursuant to any Antitrust Lawthis Agreement. BRPA Without limiting the foregoing, Neurocrine and the Company shall substantially comply with any information or document requests by the Federal Trade Commission or the Department of Justice in connection with the Merger. BRPA and the Company shall Heptares shall: (i) promptly inform the other of any substantive communication to or from the U.S. Federal Trade Commission, Commission or the U.S. Department of Justice or any other Governmental Entity regarding the Merger and Agreement; (ii) permit counsel to the each other Party an opportunity to review in advance, and each Party shall consider in good faith the views of such counsel in connection with, advance any proposed substantive written communications by such Party communication to any such Governmental Entity concerning the Merger, Authority and incorporate reasonable comments thereto; (iiiii) give the other prompt written notice of the commencement of any judicial or administrative action, suit, litigation, arbitration, legal proceeding by or before any Governmental Entity with respect to the Agreement; (iv) not agree to participate in any substantive meeting or discussion with any such transactionsGovernmental Authority in respect of any filing, and investigation or inquiry concerning this Agreement unless, to the extent reasonably practicable, it consults with the other Party in advance and, to the extent permitted by such Governmental Authority, gives the other Party the opportunity to attend; (iiiv) keep the other reasonably informed as to the status of any such action. Each Party agrees to providelegal proceeding; and (vi) promptly furnish each other with copies of all correspondence, to filings (except for filings made under the extent permitted by the applicable Governmental Entity, the other Party HSR Act) and its counsel the opportunity, on reasonable advance notice, to participate in any substantive meetings or discussions, either in person or by telephone, written communications between such Party and/or any of its Affiliatesand their Affiliates and their respective agents, agents or representatives and advisors, on the one hand, and any such Governmental EntityAuthority, on the other hand, concerning or in connection each case, with the Mergerrespect to this Agreement; provided, neither Party shall extend any waiting period or comparable period under the HSR Act or enter into any agreement with any Governmental Entity without the written consent of the other Party. Any provided that materials exchanged in connection with required to be supplied pursuant to this Section 5.3 clause may be redacted or withheld (1) to remove references concerning valuation, (2) as necessary to comply with contractual arrangements, (3) as necessary to comply with applicable Law, and (4) as necessary to address reasonable privilege or confidentiality concerns of legal counsel of the Companyconcerns; provided further, and to remove references concerning the valuation of the Company or other that a Party may reasonably designate any competitively sensitive material; provided, that the Company may, as it deems advisable and necessary, designate any materials material provided to the BRPA another party under this Section 5.3 clause as “outside counsel onlyOutside Counsel Only”.” Filing fees with respect to the notifications required under the HSR Act shall be paid by the Company.
(b) BRPA shall not, and shall cause its Subsidiaries not to, acquire or agree to acquire, by merging with or into or consolidating with, or by purchasing a portion of the assets of or equity in, or by any other manner, any business or any corporation, partnership, association or other business organization or division thereof, or otherwise acquire or agree to acquire any assets, or take any other action, if the entering into of a definitive agreement relating to, or the consummation of such acquisition, merger or consolidation, or the taking of any other action, would reasonably be expected to (i) impose any material delay in the obtaining of, or materially increase the risk of not obtaining, any authorizations, consents, orders or declarations of any Governmental Entities or the expiration or termination of any applicable waiting period; (ii) materially increase the risk of any Governmental Entity entering an order prohibiting the consummation of the transaction contemplated hereby; (iii) materially increase the risk of not being able to remove any such order on appeal or otherwise; or (iv) materially delay or prevent the consummation of the transactions contemplated hereby. Notwithstanding anything in this Agreement to the contrary, the restrictions and obligations set forth in this Section 5.3(b) shall not apply to or be binding upon BRPA’s Affiliates, the Sponsor, their respective Affiliates or any investment funds or investment vehicles affiliated with, or managed or advised by, BRPA’s Affiliates, the Sponsor, or any portfolio company (as such term is commonly understood in the private equity industry) or investment of BRPA’s Affiliates, the Sponsor, or of any such investment fund or investment vehicle.
Appears in 1 contract
Samples: Collaboration and License Agreement (Neurocrine Biosciences Inc)
HSR Act. (a) If To the extent required under the pre-merger notification requirements of the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the “HSR Act”), each of the Purchaser and the Company agrees (i) to make an appropriate filing of a Notification and Report Form pursuant to the HSR Act, Act with respect to the transactions contemplated hereby as promptly as practicable, BRPA and in substantial compliance with the requirements of the Antitrust Laws (with the applicable filing fees to be paid by the Purchaser), (ii) to supply as promptly as reasonably practicable any additional information and documentary material that may be requested pursuant to the HSR Act and (iii) subject to subparagraph (e) below, to take all other reasonable actions necessary, proper or advisable to avoid each and every impediment under any Antitrust Law that may be asserted by any Governmental Authority with respect to the transactions contemplated hereby so as to enable the Closing to occur as soon as reasonably possible, and cause the expiration or termination of the applicable waiting periods under the HSR Act, including by requesting early termination of the waiting period provided for in the HSR Act.
(b) Each of Purchaser and the Company shall use their respective reasonable best efforts to (ai) cooperate in all respects with each prepare and file the notification required of it thereunder other in connection with the Merger as soon as reasonably practicable but no later than twenty (20) Business Days following January 14, 2021, (b) promptly any filing or submission and in good faith respond to all information requested of it by the Federal Trade Commission and Department of Justice in connection with such notification and otherwise cooperate in good faith with each any investigation or other and such Governmental Entitiesinquiry (including any proceeding initiated by a private party), (c) each request early termination of any waiting period under the HSR Act, and (d) submit, as soon as practicable, any other required applications or filings pursuant to any Antitrust Laws and furnish to the other Party as promptly as reasonably practicable all information required for any application or other filing required to be made pursuant to any Antitrust Law. BRPA and the Company shall substantially comply with any information or document requests by the Federal Trade Commission or the Department of Justice in connection with the Merger. BRPA and the Company shall (iii) promptly inform the other party to this Agreement of any substantive communication to received by such party from, or from the Federal Trade Commissiongiven by such party to, the Department of Justice or any other Governmental Entity regarding the Merger and permit counsel to the other Party an opportunity to review in advanceAuthority, and each Party shall consider in good faith the views of such counsel any material communication received or given in connection withwith any proceeding by a private party, in each case regarding any proposed written communications by such Party to any Governmental Entity concerning the Merger, (ii) give the other prompt notice of the commencement of any judicial or administrative action, suit, litigation, arbitration, proceeding by or before any Governmental Entity with respect to such transactionstransactions contemplated hereby, and (iii) keep permit the other reasonably informed as party to the status review any communication given by it to, and consult with each other in advance of any meeting or conference with, any such action. Each Party agrees to provideGovernmental Authority or, in connection with any proceeding by a private party, with any other person, and to the extent permitted by the applicable such Governmental EntityAuthority or other person, give the other Party party the opportunity to attend and its counsel the opportunity, on reasonable advance notice, to participate in such meetings and conferences.
(c) If any substantive meetings or discussions, either in person or by telephone, between such Party and/or any of its Affiliates, agents or advisors, on objections are asserted with respect to the one hand, and any Governmental Entity, on the other hand, concerning or in connection with the Merger; provided, neither Party shall extend any waiting period or comparable period transactions contemplated hereby under the HSR Act or enter into if any agreement with suit is instituted (or threatened to be instituted) by any applicable Governmental Entity without the written consent Authority or any private party challenging any of the other Party. Any materials exchanged in connection with this Section 5.3 may be redacted or withheld transactions contemplated hereby as necessary to address reasonable privilege or confidentiality concerns violative of legal counsel of the Company, and to remove references concerning the valuation of the Company or other competitively sensitive material; provided, that the Company may, as it deems advisable and necessary, designate any materials provided to the BRPA under this Section 5.3 as “outside counsel only.” Filing fees with respect to the notifications required under the HSR Act shall be paid by the Company.
(b) BRPA shall notor which would otherwise prevent, and shall cause its Subsidiaries not to, acquire or agree to acquire, by merging with or into or consolidating with, or by purchasing a portion of the assets of or equity in, or by any other manner, any business or any corporation, partnership, association or other business organization or division thereof, or otherwise acquire or agree to acquire any assets, or take any other action, if the entering into of a definitive agreement relating to, or the consummation of such acquisition, merger or consolidation, or the taking of any other action, would reasonably be expected to (i) impose any material delay in the obtaining of, materially impede or materially increase the risk of not obtaining, any authorizations, consents, orders or declarations of any Governmental Entities or the expiration or termination of any applicable waiting period; (ii) materially increase the risk of any Governmental Entity entering an order prohibiting the consummation of the transaction contemplated hereby; (iii) materially increase the risk of not being able to remove any such order on appeal or otherwise; or (iv) materially delay or prevent the consummation of the transactions contemplated hereby. , each of Purchaser and the Company shall use its reasonable best efforts to resolve any such objections or suits so as to permit consummation of the transactions contemplated by this Agreement, including in order to resolve such objections or suits which, in any case if not resolved, could reasonably be expected to prevent, materially impede or materially delay the consummation of the transactions contemplated hereby.
(d) In the event that any administrative or judicial action or proceeding is instituted (or threatened to be instituted) by a Governmental Authority or private party challenging the transactions contemplated by this Agreement, each of Purchaser and the Company shall cooperate in all respects with each other and use its respective reasonable best efforts to contest and resist any such 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 transactions contemplated by this Agreement.
(e) Notwithstanding anything in the foregoing or any other provision of this Agreement the parties hereto understand and agree that the reasonable best efforts of any party hereto shall not obligate Purchaser or any of its Affiliates to divest or otherwise hold separate (including by establishing a trust or otherwise), or take any similar action (or otherwise agreeing to do any of the foregoing) with respect to any business, asset or property that was owned by the Company, the Purchaser or such Affiliate prior to the contrary, the restrictions and obligations set forth in this Section 5.3(b) shall not apply to or be binding upon BRPA’s Affiliates, the Sponsor, their respective Affiliates or any investment funds or investment vehicles affiliated with, or managed or advised by, BRPA’s Affiliates, the Sponsor, or any portfolio company (as such term is commonly understood in the private equity industry) or investment of BRPA’s Affiliates, the Sponsor, or of any such investment fund or investment vehicledate hereof.
Appears in 1 contract
Samples: Unit Purchase Agreement (Calumet Specialty Products Partners, L.P.)
HSR Act. If applicable, UNOVA and Purchaser shall promptly file the Pre-merger Notification and Report Form (a“HSR Filing”) If required pursuant to by the Hxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the “HSR Act”) in connection with the transactions contemplated hereby, as and shall promptly as practicablerespond to any requests for information. In connection with the efforts referenced herein, BRPA each of the Purchasing Entities on the one hand, and each of the Company Selling Entities on the other hand, shall (i) use its reasonable best efforts to (a) each prepare and file cooperate in all respects with the notification required of it thereunder other Parties hereto in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by a private party, regarding the Merger as soon as reasonably practicable but no later than twenty (20) Business Days following January 14, 2021transactions contemplated hereby, (bii) promptly and in good faith respond keep the other Parties, including their counsel, as the case may be, informed of any material communication by or to all information requested of it by such party or its counsel from or to the Federal Trade Commission and Department (the “FTC”), the Antitrust Division of Justice in connection with such notification and otherwise cooperate in good faith with each other and such Governmental Entities, (c) each request early termination of any waiting period under the HSR Act, and (d) submit, as soon as practicable, any other required applications or filings pursuant to any Antitrust Laws and furnish to the other Party as promptly as reasonably practicable all information required for any application or other filing required to be made pursuant to any Antitrust Law. BRPA and the Company shall substantially comply with any information or document requests by the Federal Trade Commission or the Department of Justice in connection with (the Merger. BRPA and the Company shall (i“DOJ”) promptly inform the other of any substantive communication to or from the Federal Trade Commission, the Department of Justice or any other Governmental Entity Body and of any material communication received or given in connection with any proceeding by a private party, in each case regarding any of the Merger transactions contemplated hereby, (iii) permit the other Parties and permit their legal counsel to the review, consult with each other Party an opportunity to review in advance, advance of and each Party shall consider in good faith the views of such counsel the other in connection withwith any correspondence, any proposed written filings or communications given by such Party to any Governmental Entity concerning the Mergerit to, (ii) give the other prompt notice of the commencement of any judicial or administrative action, suit, litigation, arbitration, proceeding by or before any Governmental Entity with respect to such transactions, and (iii) keep the other reasonably informed as to the status of any such action. Each Party agrees to provide, to the extent permitted by the applicable Governmental Entitybetween it and, the FTC, the DOJ or any other Party and its counsel the opportunity, on reasonable advance notice, to participate in any substantive meetings or discussions, either in person or by telephone, between such Party and/or any of its Affiliates, agents or advisors, on the one hand, and any Governmental Entity, on the other hand, concerning Body or in connection with the Merger; providedany proceeding by a private party, neither Party shall extend any waiting period or comparable period under the HSR Act or enter into any agreement with any Governmental Entity without the written consent of the other Party. Any materials exchanged in connection with this Section 5.3 may be redacted or withheld as necessary to address reasonable privilege or confidentiality concerns of legal counsel of the Company, and to remove references concerning the valuation of the Company or other competitively sensitive material; provided, that the Company may, as it deems advisable and necessary, designate any materials provided to the BRPA under this Section 5.3 as “outside counsel only.” Filing fees with respect to the notifications required under the HSR Act shall be paid by the Company.
(b) BRPA shall not, and shall cause its Subsidiaries not to, acquire or agree to acquire, by merging with or into or consolidating with, or by purchasing a portion of the assets of or equity in, or by any other manner, any business or any corporation, partnership, association or other business organization or division thereof, or otherwise acquire or agree to acquire any assets, or take any other action, if the entering into of a definitive agreement relating to, or the consummation of such acquisition, merger or consolidation, or the taking of any other action, would reasonably be expected to (i) impose any material delay in the obtaining of, or materially increase the risk of not obtaining, any authorizations, consents, orders or declarations of any Governmental Entities or the expiration or termination of any applicable waiting period; (ii) materially increase the risk of any Governmental Entity entering an order prohibiting the consummation of the transaction contemplated hereby; (iii) materially increase the risk of not being able to remove any such order on appeal or otherwise; or (iv) materially delay or prevent the consummation of regarding the transactions contemplated hereby. Notwithstanding anything in this Agreement , and (iv) permit the other Parties and their legal counsel to the contraryattend and participate in, any meeting or conference with, the restrictions and obligations set forth in this Section 5.3(b) shall not apply to or be binding upon BRPA’s AffiliatesFTC, the Sponsor, their respective Affiliates DOJ or any investment funds or investment vehicles affiliated withsuch other Governmental Body or, or managed or advised byin connection with any proceeding by a private party, BRPA’s Affiliateswith any other Person, regarding the Sponsor, or any portfolio company (as such term is commonly understood in the private equity industry) or investment of BRPA’s Affiliates, the Sponsor, or of any such investment fund or investment vehicletransactions contemplated hereby.
Appears in 1 contract
HSR Act. (a) If required pursuant to the HSR ActThe Parties shall, as promptly as practicable, BRPA and the Company shall use reasonable best efforts to (a) each prepare and file the notification any notifications required of it thereunder in connection with the Merger as soon as reasonably practicable but no later than twenty (20) Business Days following January 14, 2021, (b) promptly and in good faith respond to all information requested of it by the Federal Trade Commission and Department of Justice in connection with such notification and otherwise cooperate in good faith with each other and such Governmental Entities, (c) each request early termination of any waiting period under the HSR ActAct with respect to the transactions contemplated hereby. The Parties shall enter into good faith negotiations regarding how, and (d) submitin the best interests of both Parties, as soon as practicable, any other required applications or filings pursuant to respond to any Antitrust Laws and furnish to the other Party as promptly as reasonably practicable all information required for any application inquiries or other filing required to be made pursuant to any Antitrust Law. BRPA and the Company shall substantially comply with any information or document requests by received from the Federal Trade Commission or the Department of Justice for additional information or documentation in connection with the Mergerantitrust or related matters. BRPA and the Company Each Party shall (iA) promptly give the other Parties notice of the commencement or threat of commencement of any legal proceeding by or before any court or Governmental Authority with respect to the Merger or any of the other transactions contemplated by this Agreement, (B) keep the other Parties informed as to the status of any such legal proceeding or threat, and (C) inform the other Parties of any substantive communication to or from the Federal Trade Commission, the Department of Justice or any other Governmental Entity Authority regarding the Merger Merger. Except as may be (i) prohibited by any Governmental Authority or by any Applicable Law or (ii) necessary in order to protect the confidential information of Parent, Parent, on the one hand, and permit counsel to the Company, on the other Party an opportunity to review in advancehand, will (1) consult and cooperate with one another, and each Party shall will consider in good faith the views of such counsel one another, in connection withwith any analysis, appearance, presentation, memorandum, brief, argument, opinion or proposal made or submitted in connection with any proposed written communications by legal proceeding under or relating to the HSR Act and (2) will permit authorized Representatives of the other to be present at each meeting or conference relating to any such Party legal proceeding to and be consulted in connection with any document, opinion or proposal made or submitted to any Governmental Entity concerning the Merger, (ii) give the other prompt notice of the commencement of any judicial or administrative action, suit, litigation, arbitration, proceeding by or before any Governmental Entity with respect to such transactions, and (iii) keep the other reasonably informed as to the status of any such action. Each Party agrees to provide, to the extent permitted by the applicable Governmental Entity, the other Party and its counsel the opportunity, on reasonable advance notice, to participate in any substantive meetings or discussions, either in person or by telephone, between such Party and/or any of its Affiliates, agents or advisors, on the one hand, and any Governmental Entity, on the other hand, concerning or Authority in connection with the Merger; providedany such legal proceeding. The foregoing notwithstanding, neither Party Parent shall extend have no obligation to agree to any waiting period request or comparable period under the HSR Act demand for action or enter into inaction, or any agreement with other proposal, made by any Governmental Entity without the written consent antitrust regulatory agency as a condition for any antitrust related approval of the other Party. Any materials exchanged in connection with this Section 5.3 may be redacted or withheld as necessary to address reasonable privilege or confidentiality concerns of legal counsel of the Company, and to remove references concerning the valuation of the Company or other competitively sensitive material; provided, that the Company may, as it deems advisable and necessary, designate any materials provided to the BRPA under this Section 5.3 as “outside counsel only.” Filing fees with respect to the notifications required under the HSR Act shall be paid by the Company.
(b) BRPA shall not, and shall cause its Subsidiaries not to, acquire or agree to acquire, by merging with or into or consolidating withtransaction, or by purchasing a portion of the assets of or equity in, or by any other manner, any business or any corporation, partnership, association or other business organization or division combination thereof, or otherwise acquire or agree to acquire any assets, or take any other action, if the entering into of a definitive agreement relating toaction or inaction requested or demanded could, or the consummation of such acquisition, merger or consolidation, or the taking of any other action, would reasonably be expected to (i) impose any material delay in the obtaining ofreasonable discretion of Parent, or materially increase the risk of not obtaining, any authorizations, consents, orders or declarations of any Governmental Entities or the expiration or termination of any applicable waiting period; (ii) materially increase the risk of any Governmental Entity entering an order prohibiting the consummation impact its ability to enjoy all of the transaction contemplated hereby; (iii) materially increase the risk of not being able to remove any such order on appeal or otherwise; or (iv) materially delay or prevent the consummation anticipated synergies, efficiencies and/or profitability of the transactions contemplated hereby. Notwithstanding anything in this Agreement to the contrary, the restrictions and obligations set forth in this Section 5.3(b) shall not apply to or be binding upon BRPA’s Affiliates, the Sponsor, their respective Affiliates or any investment funds or investment vehicles affiliated with, or managed or advised by, BRPA’s Affiliates, the Sponsor, or any portfolio company (as such term is commonly understood in the private equity industry) or investment of BRPA’s Affiliates, the Sponsor, or of any such investment fund or investment vehicleproposed transaction.
Appears in 1 contract
HSR Act. In addition to and without limiting the foregoing, Bayer and Genzyme will (a) If required take promptly all actions necessary to prepare any filings, or cause their “ultimate parent entities” as that term is defined in the HSR Act or relevant regulations to [**] = Portions of this exhibit have been omitted pursuant to a confidential treatment request. An unredacted version of this exhibit has been filed separately with the Commission. promptly prepare any filings required of any of them under the HSR Act, Act or other antitrust or competiton Legal Requirements or as promptly as practicable, BRPA and required by the Company shall use reasonable best efforts to (a) each prepare and file the notification required of it thereunder in connection with the Merger as soon as reasonably practicable but no later than twenty (20) Business Days following January 14, 2021, SOT Order; (b) promptly and in good faith respond make such filings at the time directed by Genzyme (with reasonable advance notice to all information requested of it by the Federal Trade Commission and Department of Justice in connection with such notification and otherwise cooperate in good faith with each other and such Governmental Entities, Bayer); (c) each request early termination of any waiting period under use commercially reasonable efforts to comply at the HSR Act, and (d) submit, as soon as practicable, any other required applications or filings pursuant to any Antitrust Laws and furnish to the other Party as promptly as reasonably earliest practicable all information required for any application or other filing required to be made pursuant to any Antitrust Law. BRPA and the Company shall substantially comply date with any request for additional information or document requests received by any of them from the Federal Trade Commission FTC or the Department Antitrust Division of Justice in connection with the Merger. BRPA and the Company shall (i) promptly inform the other of any substantive communication to or from the Federal Trade Commission, the Department of Justice or any other Governmental Entity Authority with authority regarding the Merger and permit counsel to the other Party an opportunity to review in advance, and each Party shall consider in good faith the views of such counsel in connection with, any proposed written communications by such Party to any Governmental Entity concerning the Merger, (ii) give the other prompt notice of the commencement of any judicial antitrust or administrative action, suit, litigation, arbitration, proceeding by or before any Governmental Entity with respect to such transactions, competition matters; and (iiid) keep the reasonably cooperate with each other reasonably informed as to the status of any such action. Each Party agrees to provide, to the extent permitted by the applicable Governmental Entity, the other Party and its counsel the opportunity, on reasonable advance notice, to participate in any substantive meetings or discussions, either in person or by telephone, between such Party and/or any of its Affiliates, agents or advisors, on the one hand, and any Governmental Entity, on the other hand, concerning or in connection with the Merger; providedpreparation and making of any such filings and the clearance of the Contemplated Transactions under antitrust or competition Legal Requirements. Notwithstanding the foregoing, neither Party nothing in this Agreement shall extend require Genzyme or Bayer or any waiting period of their respective Subsidiaries or comparable period under Affiliates to sell, hold separate, license or otherwise dispose of any assets or conduct their business in a specified manner, or agree or proffer to sell, hold separate, license or otherwise dispose of any assets or conduct their business in a specified manner, or permit or agree to the HSR Act sale, holding separate, licensing or enter into other disposition of, any agreement with assets of Genzyme or Bayer or any of their respective Subsidiaries or Affiliates, whether as a condition to obtaining any approval from, or to avoid potential litigation or administrative action by, a Governmental Authority or any other Person or for any other reason. Each party agrees to notify the other party promptly of any material communication from a Governmental Authority regarding the Contemplated Transactions. Without limiting the generality of the foregoing, each party shall provide to the other party (or its Representatives) upon request copies of all correspondence and written productions between such party and any Governmental Entity without Authority relating to the written consent of the other PartyContemplated Transactions. Any materials exchanged in connection with this Section 5.3 may be redacted or withheld as necessary to address reasonable privilege or confidentiality concerns of legal counsel of the Company, and to remove references concerning the valuation of the Company or other competitively sensitive material; provided, that the Company The parties may, as it deems advisable and necessarythey deem advisable, designate any competitively sensitive materials provided to the BRPA other party under this Section 5.3 8.3.3 as “outside counsel only.” Filing fees with respect to Such materials and the notifications required under the HSR Act information contained therein shall be paid given only to outside counsel of the recipient and will not be disclosed by such outside counsel to employees, officers, or directors of the Company.
(b) BRPA shall notrecipient without the advance consent of the party providing such materials. Subject to Legal Requirements, the parties will consult and cooperate with each other in connection with any analyses, appearances, presentations, memoranda, briefs, arguments, and shall cause its Subsidiaries not to, acquire proposals made or agree submitted to acquire, any Governmental Authority regarding the Contemplated Transactions by merging with or into or consolidating with, or by purchasing a portion of the assets of or equity in, or by any other manner, any business or any corporation, partnership, association or other business organization or division thereof, or otherwise acquire or agree to acquire any assets, or take any other action, if the entering into of a definitive agreement relating to, or the consummation of such acquisition, merger or consolidation, or the taking on behalf of any other action, would reasonably be expected to (i) impose any material delay in the obtaining of, or materially increase the risk of not obtaining, any authorizations, consents, orders or declarations of any Governmental Entities or the expiration or termination of any applicable waiting period; (ii) materially increase the risk of any Governmental Entity entering an order prohibiting the consummation of the transaction contemplated hereby; (iii) materially increase the risk of not being able to remove any such order on appeal or otherwise; or (iv) materially delay or prevent the consummation of the transactions contemplated hereby. Notwithstanding anything in this Agreement to the contrary, the restrictions and obligations set forth in this Section 5.3(b) shall not apply to or be binding upon BRPA’s Affiliates, the Sponsor, their respective Affiliates or any investment funds or investment vehicles affiliated with, or managed or advised by, BRPA’s Affiliates, the Sponsor, or any portfolio company (as such term is commonly understood in the private equity industry) or investment of BRPA’s Affiliates, the Sponsor, or of any such investment fund or investment vehicleparty.
Appears in 1 contract
Samples: License and Asset Purchase Agreement (Genzyme Corp)
HSR Act. (a) If required In furtherance and not in limitation of the foregoing, Buyer (on one hand) and the Seller (on the other hand) shall make an appropriate filing of a “Notification and Report Form” pursuant to the HSR Act, Act with respect to the transactions contemplated hereby as promptly as practicablepracticable and in any event within five (5) business days of the date hereof and respond as promptly as practicable to any request for additional information and documentary material from a Governmental Authority pursuant to the HSR Act relating to the transactions contemplated hereby, BRPA and the Company shall use reasonable best efforts to (a) each prepare and file take all other actions necessary to cause the notification required of it thereunder in connection with the Merger as soon as reasonably practicable but no later than twenty (20) Business Days following January 14, 2021, (b) promptly and in good faith respond to all information requested of it by the Federal Trade Commission and Department of Justice in connection with such notification and otherwise cooperate in good faith with each other and such Governmental Entities, (c) each request early expiration or termination of any the applicable waiting period periods under the HSR Act, and (d) submit, Act as soon as practicable, any other required applications or filings pursuant to any Antitrust Laws including, without limitation, by requesting early termination of such waiting periods. The Seller (on one hand) and furnish to Buyer (on the other Party as promptly as reasonably practicable all information required for any application or other filing required to be made pursuant to any Antitrust Law. BRPA and the Company shall substantially comply with any information or document requests by the Federal Trade Commission or the Department of Justice in connection with the Merger. BRPA and the Company hand) shall (i) give the other party prompt notice of the commencement of any legal proceeding by or before any Governmental Authority with respect to the transactions contemplated hereby, (ii) keep the other party informed as to the status of any such legal proceeding and (iii) promptly inform the other party and provide it with copies of any substantive communication to or from the Federal Trade Commission, the Department of Justice or any other Governmental Entity Authority regarding the Merger transactions contemplated hereby. Buyer (on one hand) and permit counsel to the Seller (on the other Party an opportunity to review in advancehand) will consult and cooperate with one another, and each Party shall will consider in good faith the views of such counsel one another, in connection withwith any analysis, appearance, presentation, memorandum, brief, argument, opinion or proposal made or submitted in connection with any proposed written communications by such Party investigation or legal proceeding under any antitrust law relating to any Governmental Entity concerning the Merger, transactions contemplated hereby. Buyer (ii) give with the other prompt notice consultation of the commencement Seller’s Representative) shall be entitled to direct the course of any judicial proceedings or administrative action, suit, litigation, arbitration, proceeding by negotiations with or before a Governmental Authority under any Governmental Entity with respect to such transactions, and (iii) keep the other reasonably informed as antitrust law relating to the status of any such actiontransactions contemplated hereby. Each Party agrees Subject to providereasonable confidentiality considerations, to the extent permitted by the applicable Governmental Entity, the other Party and its counsel the opportunity, Buyer (on reasonable advance notice, to participate in any substantive meetings or discussions, either in person or by telephone, between such Party and/or any of its Affiliates, agents or advisors, on the one hand, ) and any Governmental Entity, the Seller (on the other hand) shall provide to the other party, concerning in advance and with a reasonable opportunity to review and comment thereon, copies of all communications to a Governmental Authority investigating the transactions contemplated hereby under any antitrust law. The Seller (on one hand) and Buyer (on the other hand) shall provide the other party with reasonable advance notice of any meetings, conferences or other communications with a Governmental Authority investigating the transactions contemplated hereby under any antitrust law and, except as may be prohibited by the Governmental Authority, shall permit the other party to attend and participate in connection such meetings, conferences or other communications.
(b) Nothing in this Agreement obligates Buyer, and the Seller shall not without Buyer’s prior written consent undertake, to:
(i) (A) propose, negotiate, offer to commit and effect (and if such offer is
(ii) accepted, commit to and effect), by order, consent decree, hold separate order, trust or otherwise, the sale, divestiture, license, disposition or holding separate of such assets or businesses of Buyer, each Company, or any of their respective Affiliates, or otherwise offer or offer to commit to any action, non-action, condition or conduct requirement (including those that limit Buyer’s freedom of action, ownership or control with respect to, or limit its ability to retain or hold, any of the Merger; providedbusinesses, neither Party shall extend assets, product lines, properties or services of Buyer, any waiting period Company, or comparable period any of their respective Affiliates), (B) terminate, relinquish, modify or waive existing relationships, ventures, contractual rights, obligations or other arrangements of Buyer or its Affiliates (including such properties, assets or operations of any Company), or (C) create any relationships, ventures, contractual rights, obligations or other arrangements of Buyer or its Affiliates, in each case, even if such action may be required or advisable in order (x) to obtain clearance under the HSR Act or enter into any agreement with other similar merger control, antitrust or competition law, (y) to avoid the entry of, effect the dissolution of, vacate or lift any Governmental Entity without the written consent of the other Party. Any materials exchanged in connection with this Section 5.3 may be redacted or withheld as necessary to address reasonable privilege or confidentiality concerns of legal counsel of the Companydecree, and to remove references concerning the valuation of the Company judgment, injunction or other competitively sensitive material; providedorder (whether temporary, preliminary or permanent) that would otherwise have the Company mayeffect of restraining, as it deems advisable and necessary, designate any materials provided to the BRPA under this Section 5.3 as “outside counsel only.” Filing fees with respect to the notifications required under the HSR Act shall be paid by the Company.
(b) BRPA shall not, and shall cause its Subsidiaries not to, acquire preventing or agree to acquire, by merging with or into or consolidating with, or by purchasing a portion of the assets of or equity in, or by any other manner, any business or any corporation, partnership, association or other business organization or division thereof, or otherwise acquire or agree to acquire any assets, or take any other action, if the entering into of a definitive agreement relating to, or the consummation of such acquisition, merger or consolidation, or the taking of any other action, would reasonably be expected to (i) impose any material delay in the obtaining of, or materially increase the risk of not obtaining, any authorizations, consents, orders or declarations of any Governmental Entities or the expiration or termination of any applicable waiting period; (ii) materially increase the risk of any Governmental Entity entering an order prohibiting the consummation of the transaction contemplated hereby; (iii) materially increase the risk of not being able to remove any such order on appeal or otherwise; or (iv) materially delay or prevent delaying the consummation of the transactions contemplated hereby. Notwithstanding anything , or (z) to avoid the commencement of any action or proceeding that seeks to prohibit the transaction contemplated hereby; or
(iii) if any Governmental Authority refuses to accept any divestitures or other
(iv) remedies as described in Section 5.8(b)(i), or if any action is instituted by any Governmental Authority or other third party that challenges the validity or legality of this Agreement or the transactions contemplated hereby, contest, resist or use its best efforts to resolve any such objection or action or to have vacated, lifted, reversed or overturned any order, whether temporary, preliminary or permanent, that prohibits, prevents or restricts the contrary, consummation of the restrictions and obligations set forth in transactions contemplated by this Section 5.3(b) shall not apply to or be binding upon BRPA’s Affiliates, the Sponsor, their respective Affiliates or any investment funds or investment vehicles affiliated withAgreement, or managed to commence or advised by, BRPA’s Affiliates, threaten to commence and pursue any action reasonably believed by the Sponsor, Seller to be helpful in obtaining authorization from Governmental Authorities or in terminating any portfolio company (as such term is commonly understood in the private equity industry) or investment of BRPA’s Affiliates, the Sponsor, or of any such investment fund or investment vehicleoutstanding action.
Appears in 1 contract
HSR Act. (a) If required pursuant The Company and the Buyer each undertakes and agrees to promptly file a Notification and Report Form under the HSR ActAct with the United States Federal Trade Commission (the "FTC") and the United States Department of Justice, Antitrust Division (the "Antitrust Division"), and to make any other applicable competition filing or notifications required by any other Governmental Entity (including under foreign competition Laws) as promptly as practicable, BRPA . The Company and the Company Buyer each shall use reasonable best efforts to (as applicable): (a) each prepare respond in a commercially reasonable manner and file as promptly as practicable to any formal or informal inquiries received from the notification required of it thereunder FTC or the Antitrust Division for additional information or documentary materials, and to all inquiries and requests received from any State Attorney General or other Governmental Entity in connection with the Merger as soon as reasonably practicable but no later than twenty (20) Business Days following January 14, 2021, antitrust or competition matters; (b) promptly and in good faith respond take all commercially reasonable steps to all information requested of it by the Federal Trade Commission and Department of Justice in connection with such notification and otherwise cooperate in good faith with each other and such Governmental Entities, (c) each request seek early termination of any applicable waiting period under the HSR Act, Act or any similar Laws and to obtain all required approvals; and (dc) submit, as soon as practicable, refrain from entering into any other required applications or filings pursuant to any Antitrust Laws and furnish to agreement with the other Party as promptly as reasonably practicable all information required for any application or other filing required to be made pursuant to any Antitrust Law. BRPA and the Company shall substantially comply with any information or document requests by the Federal Trade Commission FTC or the Department of Justice in connection with the Merger. BRPA and the Company shall (i) promptly inform the other of any substantive communication to Antitrust Division or from the Federal Trade Commission, the Department of Justice or any other Governmental Entity regarding the Merger and permit counsel to the other Party an opportunity to review in advance, and each Party shall consider in good faith the views of such counsel in connection with, any proposed written communications by such Party to any Governmental Entity concerning the Merger, (ii) not to consummate or delay consummation of or to give the other prompt notice of consummation, other than as required by Law, of the commencement transactions contemplated by this Agreement, except with the prior written consent of any judicial or administrative action, suit, litigation, arbitration, proceeding by or before any Governmental Entity with respect to such transactions, and (iii) keep the other reasonably informed as to the status of any such action. Each Party agrees to provide, to the extent permitted by the applicable Governmental Entity, the other Party and its counsel the opportunity, on reasonable advance notice, to participate in any substantive meetings or discussions, either in person or by telephone, between such Party and/or any of its Affiliates, agents or advisorsBuyer, on the one hand, and the Company and the Majority Sellers, on the other hand (which consent shall not be unreasonably withheld or delayed). Each party hereto shall promptly notify each other party hereto of any written or oral communication to that party from the FTC, the Antitrust Division, any State Attorney General or any other Governmental EntityEntity and shall permit the Buyer, on the one hand, and the Company and the Majority Sellers, on the other hand, concerning or their respective counsel to review in advance any proposed written communication or response to any of the foregoing; provided, however, that no party hereto shall be required to disclose to any other party hereto or its counsel any information that such disclosing party deems to be competitively or commercially sensitive thereto. In connection with the Merger; provided, neither Party shall extend receipt of any waiting period or comparable period necessary approvals under the HSR Act and any foreign competition Laws, the Buyer shall propose, negotiate and cooperate with the Company and the Majority Sellers to effect prior to the Closing Date, by consent decree, hold separate order or enter into any agreement with any Governmental Entity without otherwise, the written consent sale, divestiture or disposition of such assets or businesses of the other Party. Any materials exchanged Buyer and its subsidiaries or the Company and the Subsidiaries (in connection with this Section 5.3 may be redacted or withheld as necessary either case in an amount not to address reasonable privilege or confidentiality concerns exceed, in the aggregate, the value of legal counsel 5% of the Companyaggregate assets of the Business), and or otherwise take any action that reasonably limits the freedom of action with respect to remove references concerning any of the valuation businesses, product lines, or assets of any of the Buyer, the Buyer's subsidiaries, the Company or other competitively sensitive material; provided, that the Company maySubsidiaries, as it deems advisable and necessary, designate any materials provided may be required in order to avoid the BRPA under this Section 5.3 as “outside counsel only.” Filing fees with respect to the notifications required under the HSR Act shall be paid by the Company.
(b) BRPA shall not, and shall cause its Subsidiaries not to, acquire or agree to acquire, by merging with or into or consolidating with, or by purchasing a portion of the assets of or equity in, or by any other manner, any business or any corporation, partnership, association or other business organization or division thereof, or otherwise acquire or agree to acquire any assets, or take any other action, if the entering into of a definitive agreement relating to, or the consummation of such acquisition, merger or consolidation, or the taking of any other action, would reasonably be expected to (i) impose any material delay in the obtaining entry of, or materially increase to effect the risk of not obtainingdissolution of, any authorizationsinjunction, consentstemporary restraining order, orders or declarations other order in any Proceedings, which would otherwise have the effect of any Governmental Entities preventing or the expiration or termination of any applicable waiting period; (ii) materially increase the risk of any Governmental Entity entering an order prohibiting the consummation of the transaction contemplated hereby; (iii) materially increase the risk of not being able to remove any such order on appeal or otherwise; or (iv) materially delay or prevent delaying the consummation of the transactions contemplated hereby. Notwithstanding anything in this Agreement to the contrary, the restrictions and obligations set forth in this Section 5.3(b) shall not apply to or be binding upon BRPA’s Affiliates, the Sponsor, their respective Affiliates or any investment funds or investment vehicles affiliated with, or managed or advised by, BRPA’s Affiliates, the Sponsor, or any portfolio company (as such term is commonly understood in the private equity industry) or investment of BRPA’s Affiliates, the Sponsor, or of any such investment fund or investment vehicle.
Appears in 1 contract
HSR Act. (a) If required pursuant to In furtherance and not in limitation of the HSR Actforegoing, as promptly as practicable, BRPA and the Company Parties hereto shall use their respective reasonable best efforts to resolve such objections, if any, as may be asserted with respect to the transactions contemplated by this Agreement under any antitrust, competition or trade regulatory laws, rules or regulations of any Governmental Entity, including the HSR Act (a) each prepare and file "Antitrust Laws"); provided, however, that neither HWI or any HWI Subsidiary, nor any Lemmerz Holding or any Lemmerz Subsidiary, shall be required to dispose of any assets, or commit to any divestiture transaction, which would reasonably be expected to cause an HWI Material Adverse Effect or a Lemmerz Material Adverse Effect, or materially impair the notification required ability of HWI or any HWI Subsidiary, or Lemmerz Holding or any Lemmerz Subsidiary, to conduct its business after the Closing in the manner it thereunder in connection with the Merger as soon as reasonably practicable but no later than twenty (20) Business Days following January 14, 2021, is now being conducted.
(b) promptly and in good faith respond to all information requested of it by the Federal Trade Commission and Department of Justice in connection with such notification and otherwise cooperate in good faith with each other and such Governmental Entities, (c) each request early termination of any waiting period under the HSR Act, and (d) submit, as soon as practicable, any other required applications or filings pursuant to any Antitrust Laws and furnish to the other Each Party as promptly as reasonably practicable all information required for any application or other filing required to be made pursuant to any Antitrust Law. BRPA and the Company hereto shall substantially comply with any information or document requests by the Federal Trade Commission or the Department of Justice in connection with the Merger. BRPA and the Company shall (i) promptly inform the other of any substantive material communication from the United States Federal Trade Commission, the Department of Justice, the German Federal Cartel Office or any other Governmental Entity regarding any of the transactions contemplated by 98 105 this Agreement. If any Party or any Affiliate thereof receives a request for additional information or documentary material from any such Governmental Entity with respect to the transactions contemplated by this Agreement, then such Party will cause to be made, as soon as reasonably practicable and after consultation with the other Parties, an appropriate response in compliance with such request. The Lemmerz Shareholders shall advise HWI promptly in respect of any understandings, undertakings or from agreements (oral or written) which any of them, or Lemmerz Holding or any Lemmerz Subsidiary, proposes to make or enter into with the Federal Trade Commission, the Department of Justice Justice, the German Federal Cartel Office or any other Governmental Entity regarding the Merger and permit counsel to the other Party an opportunity to review in advance, and each Party shall consider in good faith the views of such counsel in connection with, any proposed written communications by such Party to any Governmental Entity concerning the Merger, (ii) give the other prompt notice of the commencement of any judicial or administrative action, suit, litigation, arbitration, proceeding by or before any Governmental Entity with respect to such transactions, and (iii) keep the other reasonably informed as to the status of any such action. Each Party agrees to provide, to the extent permitted by the applicable Governmental Entity, the other Party and its counsel the opportunity, on reasonable advance notice, to participate in any substantive meetings or discussions, either in person or by telephone, between such Party and/or any of its Affiliates, agents or advisors, on the one hand, and any Governmental Entity, on the other hand, concerning or in connection with the Merger; provided, neither Party shall extend any waiting period or comparable period under the HSR Act or enter into any agreement with any Governmental Entity without the written consent of the other Party. Any materials exchanged in connection with this Section 5.3 may be redacted or withheld as necessary to address reasonable privilege or confidentiality concerns of legal counsel of the Company, and to remove references concerning the valuation of the Company or other competitively sensitive material; provided, that the Company may, as it deems advisable and necessary, designate any materials provided to the BRPA under this Section 5.3 as “outside counsel only.” Filing fees with respect to the notifications required under the HSR Act shall be paid by the Company.
(b) BRPA shall not, and shall cause its Subsidiaries not to, acquire or agree to acquire, by merging with or into or consolidating with, or by purchasing a portion of the assets of or equity in, or by any other manner, any business or any corporation, partnership, association or other business organization or division thereof, or otherwise acquire or agree to acquire any assets, or take any other action, if the entering into of a definitive agreement relating to, or the consummation of such acquisition, merger or consolidation, or the taking of any other action, would reasonably be expected to (i) impose any material delay in the obtaining of, or materially increase the risk of not obtaining, any authorizations, consents, orders or declarations of any Governmental Entities or the expiration or termination of any applicable waiting period; (ii) materially increase the risk of any Governmental Entity entering an order prohibiting the consummation of the transaction contemplated hereby; (iii) materially increase the risk of not being able to remove any such order on appeal or otherwise; or (iv) materially delay or prevent the consummation of the transactions contemplated hereby. Notwithstanding anything in by this Agreement to the contrary, the restrictions and obligations set forth in this Section 5.3(b) shall not apply to or be binding upon BRPA’s Affiliates, the Sponsor, their respective Affiliates or any investment funds or investment vehicles affiliated with, or managed or advised by, BRPA’s Affiliates, the Sponsor, or any portfolio company (as such term is commonly understood in the private equity industry) or investment of BRPA’s Affiliates, the Sponsor, or of any such investment fund or investment vehicleAgreement.
Appears in 1 contract
Samples: Purchase Agreement (Hayes Wheels International Inc)
HSR Act. (a) If required pursuant to the HSR Act, as promptly as practicable, BRPA EdtechX and the Company (i) shall use reasonable best efforts to (a) each prepare and file the notification required of it thereunder in connection with the Merger as soon as reasonably practicable but no later than twenty (20) Business Days following January 14, 2021transactions contemplated by this Agreement, (bii) shall promptly and in good faith respond to all information requested of it by the Federal Trade Commission and Department of Justice in connection with such notification and otherwise cooperate in good faith with each other and such Governmental Entities, Entities and (ciii) shall each request early termination of any waiting period under the HSR Act, and (d) submit, as soon as practicable, any other required applications or filings pursuant to any Antitrust Laws and furnish to the other Party as promptly as reasonably practicable all information required for any application or other filing required to be made pursuant to any Antitrust Law. BRPA and the Company shall substantially comply with any information or document requests by the Federal Trade Commission or the Department of Justice in connection with the Merger. BRPA EdtechX and the Company shall (ia) promptly inform the other of any substantive communication to or from the Federal Trade Commission, the Department of Justice or any other Governmental Entity regarding the Merger transactions contemplated by this Agreement and permit counsel to the other Party an opportunity to review in advance, and each Party shall consider in good faith the views of such counsel in connection with, any proposed written communications by such Party to any Governmental Entity concerning the Mergertransactions contemplated by this Agreement, (iib) give the other prompt notice of the commencement of any judicial or administrative action, suit, litigation, arbitration, proceeding or investigation by or before any Governmental Entity with respect to such transactions, transactions and (iiic) keep the other reasonably informed as to the status of any such action, suit, litigation, arbitration, proceeding or investigation. Each Party agrees to provide, to the extent permitted by the applicable Governmental Entity, the other Party and its counsel the opportunity, on reasonable advance notice, to participate in any substantive meetings or discussions, either in person or by telephone, between such Party and/or any of its Affiliates, agents or advisors, on the one hand, and any Governmental Entity, on the other hand, concerning or in connection with the Mergertransactions contemplated hereby; provided, neither Party shall extend any waiting period or comparable period under the HSR Act or enter into any agreement with any Governmental Entity without the written consent of the other Party. Any materials exchanged in connection with this Section 5.3 may be redacted or withheld as necessary to address reasonable privilege or confidentiality concerns of legal counsel of the Company, and to remove references concerning the valuation of the Company or other competitively sensitive material; provided, that the Company may, as it deems advisable and necessary, designate any materials provided to the BRPA under this Section 5.3 as “outside counsel only.” Filing fees with respect to the notifications required under the HSR Act shall be paid shared equally by EdtechX and the Company.
(b) BRPA shall not, and shall cause its Subsidiaries not to, acquire or agree to acquire, by merging with or into or consolidating with, or by purchasing a portion of the assets of or equity in, or by any other manner, any business or any corporation, partnership, association or other business organization or division thereof, or otherwise acquire or agree to acquire any assets, or take any other action, if the entering into of a definitive agreement relating to, or the consummation of such acquisition, merger or consolidation, or the taking of any other action, would reasonably be expected to (i) impose any material delay in the obtaining of, or materially increase the risk of not obtaining, any authorizations, consents, orders or declarations of any Governmental Entities or the expiration or termination of any applicable waiting period; (ii) materially increase the risk of any Governmental Entity entering an order prohibiting the consummation of the transaction contemplated hereby; (iii) materially increase the risk of not being able to remove any such order on appeal or otherwise; or (iv) materially delay or prevent the consummation of the transactions contemplated hereby. Notwithstanding anything in this Agreement to the contrary, the restrictions and obligations set forth in this Section 5.3(b) shall not apply to or be binding upon BRPA’s Affiliates, the Sponsor, their respective Affiliates or any investment funds or investment vehicles affiliated with, or managed or advised by, BRPA’s Affiliates, the Sponsor, or any portfolio company (as such term is commonly understood in the private equity industry) or investment of BRPA’s Affiliates, the Sponsor, or of any such investment fund or investment vehicle.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (EdtechX Holdings Acquisition Corp.)
HSR Act. (a) If required pursuant to the HSR Actapplicable Law, as promptly as practicable, BRPA and the Company each Party shall use reasonable best efforts to (a) each prepare and file the notification required of it thereunder in connection with the Merger as soon as reasonably practicable but no later than twenty (20) Business Days following January 14, 2021, (b) promptly and in good faith respond to all information requested of it by the Federal Trade Commission and Department of Justice in connection with such notification and otherwise cooperate in good faith with each other and such Governmental Entities, (c) each request early termination of any waiting period under the HSR Act, and (d) submit, as soon as practicable, and in any event no later than fifteen (15) business days after the Agreement Date a Notification and Report Form under the HSR Act with the United States Federal Trade Commission and the Antitrust Division of the United States Department of Justice and any similar such filing(s) with any other required applications or filings pursuant to any Antitrust Laws and furnish Governmental Entity. As deemed advisable by outside legal counsel to the other Parties, each Party shall respond as promptly as reasonably practicable all information required for any application or other filing required to be made pursuant to any Antitrust Law. BRPA and the Company shall substantially comply with inquiries or requests received from any Governmental Entity for additional information or document requests by the Federal Trade Commission or the Department of Justice in connection with the Mergerdocumentation. BRPA and the Company Each Party shall (i) promptly inform the other of any substantive communication to or from the Federal Trade Commission, the Department of Justice or any other Governmental Entity regarding the Merger and permit counsel to notify the other Party an opportunity of any communication to that Party or its Affiliates from any Governmental Entity related to the Acquisition and, subject to applicable Law, permit the other Party or the other Party’s counsel to review in advance, and each Party shall consider in good faith the views of such counsel in connection with, advance any proposed written communications by such Party communication to any of the foregoing; (ii) not participate, or permit its Affiliates to participate, in any substantive meeting or discussion with any Governmental Entity in respect of any filings, investigation or inquiry concerning the Merger, (ii) give this Agreement unless it consults with the other prompt notice of the commencement of any judicial or administrative action, suit, litigation, arbitration, proceeding by or before any Governmental Entity with respect to such transactions, and (iii) keep the other reasonably informed as to the status of any such action. Each Party agrees to providein advance and, to the extent permitted by the applicable such Governmental Entity, gives the other Party the opportunity to attend and participate thereat; and (iii) with the exception of business documents deemed confidential by Purchaser (including documents submitted as attachments to each of Purchaser’s Notification and Report Form under the HSR Act and any similar such filing(s) with any other Governmental Entity), furnish Seller with copies of all correspondence, filings, and communication (and memoranda setting forth the substance thereof) between Purchaser (its counsel the opportunity, on reasonable advance notice, to participate in any substantive meetings or discussions, either in person or by telephone, between such Party and/or any of its Affiliates, agents or advisors, Affiliates and Representatives) on the one hand, and any Governmental Entity, Entity or members of their respective staffs on the other hand, concerning or in connection with respect to this Agreement. Purchaser shall bear the Merger; provided, neither Party shall extend responsibility for any waiting period or comparable period under the HSR Act or enter into any agreement with any Governmental Entity without the written consent of the other Party. Any materials exchanged in connection with this Section 5.3 may be redacted or withheld as necessary to address reasonable privilege or confidentiality concerns of legal counsel of the Company, and to remove references concerning the valuation of the Company or other competitively sensitive material; provided, that the Company may, as it deems advisable and necessary, designate any materials provided to the BRPA required filing fees under this Section 5.3 as “outside counsel only.” Filing fees with respect to the notifications required under the HSR Act shall be paid by the Company4.4(a).
(b) BRPA shall not, In furtherance and shall cause its Subsidiaries not to, acquire or agree to acquire, by merging with or into or consolidating with, or by purchasing a portion in limitation of the assets other covenants of or equity inthe Parties contained herein, or by Purchaser shall use its commercially reasonable efforts to remedy any other manner, any business or any corporation, partnership, association or other business organization or division thereof, or otherwise acquire or agree to acquire any assets, or take any other action, if the entering into of a definitive agreement relating to, or the consummation of such acquisition, merger or consolidation, or the taking of any other action, would reasonably be expected to (i) impose any material delay in the obtaining of, or materially increase the risk of not obtaining, any authorizations, consents, orders or declarations of any Governmental Entities or the expiration or termination of any applicable waiting period; (ii) materially increase the risk of antitrust concerns that any Governmental Entity entering an order prohibiting may have with respect to the consummation of the transaction contemplated hereby; Acquisition. If any administrative, judicial or legislative Proceeding is instituted (iiior threatened to be instituted) materially increase challenging the risk sale and purchase of not being able the Acquired Assets or the Agreement as violative of any anti-competition Law, Purchaser shall cooperate and use its commercially reasonable efforts to remove contest and resist any such Proceeding, and to have vacated, lifted, reversed or overturned any decree, judgment, injunction or other order on appeal that is in effect and that restricts, prevents or otherwise; or (iv) materially delay or prevent prohibits the consummation of the transactions contemplated herebyAcquisition. Notwithstanding anything Seller shall cooperate in this Agreement to the contrary, the restrictions and obligations set forth in this Section 5.3(b) shall not apply to or be binding upon BRPA’s Affiliates, the Sponsor, their respective Affiliates or any investment funds or investment vehicles affiliated with, or managed or advised by, BRPA’s Affiliates, the Sponsor, or any portfolio company (as a commercially reasonable manner with such term is commonly understood in the private equity industry) or investment of BRPA’s Affiliates, the Sponsor, or of any such investment fund or investment vehicleefforts.
Appears in 1 contract
HSR Act. (ai) If Each of Seller, the Company and Buyer shall: (A) if and to the extent required pursuant to by the HSR Act, file or cause to be filed, as promptly as practicable, BRPA and the Company shall use reasonable best efforts to (a) each prepare and file the notification required of it thereunder in connection with the Merger as soon as reasonably practicable but in no event later than twenty the tenth (2010th) Business Days following January 14Day after the execution and delivery of this Agreement, 2021, (b) promptly and in good faith respond to all information requested of it by with the Federal Trade Commission and the Antitrust Division of the United States Department of Justice in connection with such notification Justice, a Notification and otherwise cooperate in good faith with each other Report Form and such Governmental Entities, (c) each request early termination of any waiting period other documents required to be filed by such Party under the HSR Act, Act concerning the transactions contemplated hereby; and (dB) submit, as soon as practicable, any other required applications or filings pursuant to any Antitrust Laws promptly and furnish to the other Party as promptly as reasonably practicable all information required for any application or other filing required to be made pursuant to any Antitrust Law. BRPA and the Company shall substantially comply with or cause to be substantially complied with any information or document requests request by the Federal Trade Commission or the Antitrust Division of the United States Department of Justice Justice, including any request for additional documents and information concerning such transactions necessary to obtain any governmental clearances required for Closing with respect to the HSR Act or any other federal or state antitrust, competition or fair trade laws (“Other Regulatory Laws”), including, without limitation, the expiration or early termination of the waiting period applicable to this Agreement and the transactions contemplated hereby under the HSR Act and any applicable Other Regulatory Laws.
(ii) Seller, the Company and Buyer shall cooperate with and furnish to each other such necessary information and reasonable assistance as the other may reasonably request in connection with the Mergerpreparation of such filings and any further necessary filings or submissions under the HSR Act and any applicable Other Regulatory Laws. BRPA Seller, the Company and Buyer shall consult with one another prior to taking any substantive position with respect to the filings under the HSR Act or any Other Regulatory Laws, in any written submission to, or, to the extent possible, in any discussions with any Governmental Authority. Seller, the Company and Buyer shall consult and cooperate with one another, and permit one another to review and discuss in advance and consider in good faith the views of one another, in connection with any analyses, appearances, presentations, memoranda, briefs, arguments, opinions and proposals to be made or submitted by or on behalf of any Party to any Governmental Authority in connection with proceedings under or relating to the HSR Act or any Other Regulatory Laws. Except as prohibited by law, each of Seller and the Company Company, on the one hand, and Buyer, on the other hand, shall (iA) promptly inform notify the other party of any substantive communication to or from the Federal Trade Commission, the Antitrust Division of the Department of Justice Justice, any State Attorney General or any other Governmental Entity regarding the Merger and Authority and, subject to applicable laws, permit counsel to the other Party an opportunity to review and discuss in advance, and each Party shall consider in good faith the views of such counsel in connection with, advance any proposed written communications by such Party communication to any Governmental Entity concerning of the Mergerforegoing, (iiB) give the other prompt notice of the commencement of any judicial or administrative action, suit, litigation, arbitration, proceeding by or before any Governmental Entity with respect to such transactions, and (iii) keep the other reasonably informed as to the status of any such action. Each Party agrees to provide, to the extent permitted by the applicable Governmental Entity, the other Party and its counsel the opportunity, on reasonable advance notice, not agree to participate in any substantive meetings meeting or discussionsdiscussion with any Governmental Authority in respect of any filings, either investigation or inquiry concerning this Agreement, any related document or the transactions contemplated by this Agreement unless it consults in person advance with the other Party and provides the other Party with reasonable advance notice of such meeting or by telephonediscussion and permits the other Party to attend such meeting or discussion (unless such Governmental Authority expressly prohibits the other Party from attending, between in which case, or in the case such Party and/or is unable to attend, the attending Party shall give the other Party a summary of such meeting or discussion promptly thereafter); and (C) supply to each other copies of all correspondence, filings or written communications (and memoranda setting forth the substance thereof) and a summary of the material contents of any of oral communications to or from such Party or its Affiliates, agents or advisors, on the one hand, Affiliates and any Governmental EntityAuthority or staff members thereof, on with respect to the other hand, concerning or in connection with the Merger; provided, neither Party shall extend any waiting period or comparable period under transactions contemplated by this Agreement and relating to the HSR Act or enter into any agreement with any Governmental Entity without the written consent of the other Party. Any Other Regulatory Laws; provided, however, that materials exchanged in connection with this Section 5.3 required to be provided pursuant to clause (C) may be redacted (1) to remove references concerning the valuation of Seller or withheld the Company, (2) as necessary to comply with contractual arrangements and (3) as necessary to address reasonable privilege or confidentiality concerns concerns. Buyer shall pay all filing fees payable in connection with the filings by the Parties required by the HSR Act and any applicable Other Regulatory Laws in connection with the transactions contemplated by this Agreement.
(iii) The Company, Buyer, and any of legal counsel their respective Subsidiaries, shall, if required by a Governmental Authority, sell, license, dispose of, hold separate or operate in any specified manner any of their respective assets or businesses that are located outside Georgia and any of their respective assets or businesses that are not quarries located inside Georgia (or the Company, Buyer, and any of their respective Subsidiaries shall agree to remove references concerning any of the valuation foregoing). Nothing contained in this Section 6.1 shall be construed so as to require the Company, or Buyer, or any of their respective Subsidiaries, without Buyer’s written consent, to sell, license, dispose of, hold separate or operate in any specified manner any of Buyer’s, the Company’s or any of their respective Subsidiaries’ quarries that are located in Georgia (or to require the Company or other competitively sensitive material; provided, that Buyer or any of their respective Subsidiaries to agree to any of the Company may, as it deems advisable and necessary, designate any materials provided to the BRPA under this Section 5.3 as “outside counsel only.” Filing fees with respect to the notifications required under the HSR Act shall be paid by the Companyforegoing).
(biv) BRPA From the Signing Date until the Closing, Buyer shall not, and shall cause its Subsidiaries Affiliates not to, acquire or agree to acquire, by merging with or into or consolidating with, or by purchasing a substantial portion of the assets of or equity in, or by any other manner, any business or any corporation, partnership, association or other business organization or division thereof, or otherwise acquire or agree to acquire any assets, or take any other action, if the entering into of a definitive agreement relating tothereto, or the consummation of such acquisition, merger or consolidation, or the taking of any other action, would could reasonably be expected to to: (iA) impose any material delay in the obtaining of, or materially increase the risk of not obtaining, any authorizations, consents, orders or declarations consents of any Governmental Entities Authority necessary to consummate the transactions contemplated hereby or the expiration or termination of any applicable waiting period; (ii) materially increase period under the risk of HSR Act or any Governmental Entity entering an order prohibiting the consummation of the transaction contemplated hereby; (iii) materially increase the risk of not being able to remove any such order on appeal or otherwiseapplicable Other Regulatory Law; or (ivB) materially delay delay, prohibit, prevent or prevent restrict the consummation of the transactions contemplated hereby. Notwithstanding anything in this Agreement to the contrary, the restrictions and obligations set forth in this Section 5.3(b) shall not apply to or be binding upon BRPA’s Affiliates, the Sponsor, their respective Affiliates or any investment funds or investment vehicles affiliated with, or managed or advised by, BRPA’s Affiliates, the Sponsor, or any portfolio company (as such term is commonly understood in the private equity industry) or investment of BRPA’s Affiliates, the Sponsor, or of any such investment fund or investment vehicleClosing.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Vulcan Materials CO)
HSR Act. (a) If required pursuant to the HSR Act, as As promptly as practicablepracticable after the date of this Agreement and in any event within ten (10) business days, BRPA Parent and the Company shall use reasonable best efforts to (a) each prepare and file the notification required of it thereunder under the HSR Act in connection with the Merger as soon as reasonably practicable but no later than twenty (20) Business Days following January 14, 2021, (b) Transactions and shall promptly and in good faith respond to all information requested of it by the Federal Trade Commission and Department of Justice in connection with such notification and otherwise cooperate in good faith with each other and such Governmental Entities, (c) each . Each Party will promptly furnish to the other such information and assistance as the other may reasonably request early termination in connection with its preparation of any waiting period filing or submission that is necessary under the HSR Act, Act and (d) submit, will take all other actions necessary or desirable to cause the expiration or termination of the applicable waiting periods as soon as practicable. Each Party will promptly provide the other with copies of all written communications (and memoranda setting forth the substance of all oral communications) between each of them, any other required applications or filings pursuant to of their Affiliates and their respective agents, representatives and advisors, on the one hand, and any Antitrust Laws and furnish to Governmental Entity, on the other Party as promptly as reasonably practicable all information required for any application or other filing required hand, with respect to be made pursuant to any Antitrust Law. BRPA and the Company shall substantially comply with any information or document requests by the Federal Trade Commission this Agreement or the Department of Justice in connection with Transactions. Without limiting the Merger. BRPA foregoing, Parent and the Company shall (ia) promptly inform the other of any substantive communication to or from the Federal Trade Commission, the Department of Justice or any other Governmental Entity regarding the Merger and Transactions, (b) permit counsel to the each other Party an opportunity to review in advance, and each Party shall consider in good faith the views of such counsel in connection with, advance any proposed written communications by such Party communication to any such Governmental Entity concerning the Mergerand incorporate reasonable comments thereto, (iic) give the other prompt written notice of the commencement of any judicial or administrative action, suit, litigation, arbitration, proceeding by or before any Governmental Entity Legal Proceeding with respect to such transactions, transactions and (iiid) not agree to participate in any substantive meeting or discussion with any such Governmental Entity in respect of any filing, investigation or inquiry concerning this Agreement or the Transactions unless, to the extent reasonably practicable, it consults with the other Party in advance and, to the extent permitted by such Governmental Entity, gives the other Party the opportunity to attend, (e) keep the other reasonably informed as to the status of any such action. Each Party agrees to provideLegal Proceeding and (f) promptly furnish each other with copies of all correspondence, to filings (except for filings made under the extent permitted by the applicable Governmental Entity, the other Party HSR Act) and its counsel the opportunity, on reasonable advance notice, to participate in any substantive meetings or discussions, either in person or by telephone, written communications between such Party and/or any of its Affiliatesand their Affiliates and their respective agents, agents or representatives and advisors, on the one hand, and any such Governmental Entity, on the other hand, concerning or in connection each case, with respect to this Agreement and the Merger; provided, neither Party shall extend any waiting period or comparable period under the HSR Act or enter into any agreement with any Governmental Entity without the written consent of the other PartyTransactions. Any materials exchanged in connection with this Section 5.3 may be redacted or withheld as necessary to address reasonable privilege or confidentiality concerns of legal counsel of the Company, and to remove references concerning the valuation of the Company or other competitively sensitive material; provided, that the Company may, as it deems advisable and necessary, designate any materials provided to the BRPA under this Section 5.3 as “outside counsel only.” Filing fees with respect to the notifications required under the HSR Act shall be paid borne by the Company.
(b) BRPA shall not, and shall cause its Subsidiaries not to, acquire or agree to acquire, by merging with or into or consolidating with, or by purchasing a portion of the assets of or equity in, or by any other manner, any business or any corporation, partnership, association or other business organization or division thereof, or otherwise acquire or agree to acquire any assets, or take any other action, if the entering into of a definitive agreement relating to, or the consummation of such acquisition, merger or consolidation, or the taking of any other action, would reasonably be expected to (i) impose any material delay in the obtaining of, or materially increase the risk of not obtaining, any authorizations, consents, orders or declarations of any Governmental Entities or the expiration or termination of any applicable waiting period; (ii) materially increase the risk of any Governmental Entity entering an order prohibiting the consummation of the transaction contemplated hereby; (iii) materially increase the risk of not being able to remove any such order on appeal or otherwise; or (iv) materially delay or prevent the consummation of the transactions contemplated hereby. Notwithstanding anything in this Agreement to the contrary, the restrictions and obligations set forth in this Section 5.3(b) shall not apply to or be binding upon BRPA’s Affiliates, the Sponsor, their respective Affiliates or any investment funds or investment vehicles affiliated with, or managed or advised by, BRPA’s Affiliates, the Sponsor, or any portfolio company (as such term is commonly understood in the private equity industry) or investment of BRPA’s Affiliates, the Sponsor, or of any such investment fund or investment vehicle.
Appears in 1 contract
HSR Act. (a) If As promptly as practicable and advisable after the date hereof, to the extent required pursuant by applicable Laws, Seller and Buyer shall file, and shall cause their respective Affiliates to file, with the FTC and the Antitrust Division of the DOJ any notifications and other information required to be filed with such commission or department under the HSR Act, or any rules and regulations promulgated thereunder, with respect to the transactions contemplated by this Agreement, and shall request early termination of the waiting period thereunder. Each of Seller and Buyer shall file, and shall cause their respective Affiliates to file, as promptly as practicable and advisable such additional information as may be reasonably requested to be filed by such commission or department. Buyer and Seller shall each bear their own costs of any filing fees payable under the HSR Act in connection with the notifications described in this Section 6.2(a).
(b) In furtherance of and without limiting the generality of the foregoing, Buyer and Seller shall, and shall cause their respective Affiliates to, use reasonable best efforts (i) to (x) obtain clearance of the transactions under the HSR Act and (y) obtain all consents under any Competition Laws that may be required by any Governmental Entity with competent jurisdiction, so as to enable the parties to close the transactions contemplated by this Agreement as promptly as practicable, BRPA (ii) to contest and seek to resolve (including by means of litigation) (x) any Actions brought, or threatened to be brought, by any Governmental Entity or any other Person seeking to enjoin, restrain, prevent, prohibit or make illegal the Company shall use consummation of any of the transactions contemplated hereby, and (y) any Order that enjoins, restrains, prevents, prohibits or makes illegal the consummation of any of the transactions contemplated hereby and (iii) to take any and all actions reasonably necessary to resolve any objections any Governmental Entity may assert under any applicable Law with respect to the transactions contemplated by this Agreement. Regarding any Actions or Orders referred to in this paragraph, reasonable best efforts shall require vigorous litigation of such Actions and opposition through vigorous litigation to (a) each prepare and file any such Orders. Notwithstanding the notification foregoing, neither Buyer nor any of its Affiliates shall be required of it thereunder in connection with the Merger as soon as reasonably practicable but no later than twenty (20) Business Days following January 14to agree to or make any divestitures or to otherwise sell, 2021, (b) promptly and in good faith respond to all information requested of it by the Federal Trade Commission and Department of Justice in connection with such notification and otherwise cooperate in good faith with each other and such Governmental Entities, (c) each request early termination license or dispose of any waiting period assets, product lines or businesses, enter into any hold separate arrangements or consent decrees, terminate, assign or modify any Contracts (or portions thereof) or other business relationships, accept any restrictions on business operations or assets, or enter into any other commitments or obligations or modify or withdraw any pending matters, including pending filings under the HSR Act, or agree to the termination of any pending investigations before any Governmental Entity under any Competition Laws, and (d) submitneither Seller nor any of its Affiliates shall be permitted, as soon as practicablewithout Buyer’s prior written consent, to propose, agree or commit to any of the foregoing. Buyer or one of its Affiliates shall have the principal responsibility for devising and implementing the strategy for obtaining any consents or approvals required under any Competition Law, including leading all efforts to obtain clearance of the transactions under the HSR Act, or any other required applications Competition Laws that may be required, and shall lead and direct all submissions to and meetings and communications with any Governmental Entity or filings pursuant other Person in connection with antitrust and competition matters, including any Actions brought, or threatened to be brought, by any Governmental Entity or any other Person seeking to enjoin, restrain, prevent, prohibit or make illegal the consummation of any of the transactions contemplated hereby or other litigation matters with respect to any Antitrust Laws and furnish Competition Law. Buyer shall be entitled to control, with counsel of its choosing, the other Party as promptly as reasonably practicable all information required for defense of any application contest (including litigation) brought, or other filing required threatened to be made pursuant brought, by any Governmental Entity or any other Person seeking to enjoin, restrain, prevent, prohibit or make illegal the consummation of any Antitrust Law. BRPA and of the Company shall substantially comply with transactions contemplated hereby or seeking damages or to impose any information terms or document requests by the Federal Trade Commission or the Department of Justice conditions in connection with the Mergertransactions contemplated hereby. BRPA Seller will have the right to retain legal counsel of its own choice to represent it, at Seller’s costs and expense; and Buyer’s counsel shall reasonably cooperate with any legal counsel designated by Sellers in the Company defense of any such Action. Buyer shall give good faith consideration to any recommendations or requests made by Seller or Seller’s counsel with regard to such strategy or the defense of any such contest (including litigation).
(c) Without limiting any other provision of this Section 6.2, Seller and Buyer shall (i) promptly inform the other of any substantive communication to or from the Federal Trade Commission, the Department of Justice or any other Governmental Entity regarding the Merger and permit counsel to the other Party an opportunity to review in advance, and each Party shall consider in good faith the views of such counsel in connection with, any proposed written communications by such Party to any Governmental Entity concerning the Merger, (ii) give the other party prompt notice of the commencement of any judicial or administrative action, suit, litigation, arbitration, proceeding Action by or before any Governmental Entity with respect to such transactions, and the transactions contemplated by this Agreement; (iiiii) keep the other party reasonably informed as to the status of any such action. Each Party agrees Action; (iii) promptly inform the other party of any communication to provideor from the FTC, the Antitrust Division of the DOJ, or any other Governmental Entity regarding this Agreement or the transactions contemplated hereby; and (iv) permit the other party to review in advance any proposed material communication by such party to any Governmental Entity with respect to the transactions contemplated by this Agreement.
(d) None of the parties to this Agreement shall agree to participate in any meeting with any Governmental Entity in respect of any filings, investigation (including any settlement of an investigation), or other inquiry regarding this Agreement or the transactions contemplated hereby unless, in the case of Seller or the Business or the Purchased Assets, Seller consults with Buyer in advance and, in the case of Buyer, Buyer consults with Seller in advance and, in either case, to the extent permitted by the applicable such Governmental Entity, gives such other party the other Party opportunity to attend and its counsel the opportunity, on reasonable advance notice, to participate in any substantive meetings or discussions, either in person or by telephone, between at such Party and/or any of its Affiliates, agents or advisors, on the one hand, and any Governmental Entity, on the other hand, concerning or in connection with the Merger; provided, neither Party shall extend any waiting period or comparable period under the HSR Act or enter into any agreement with any Governmental Entity without the written consent of the other Partymeeting. Any materials exchanged in connection with this Section 5.3 may be redacted or withheld as necessary to address reasonable privilege or confidentiality concerns of legal counsel of the Company, and to remove references concerning the valuation of the Company or other competitively sensitive material; provided, that the Company may, as it deems advisable and necessary, designate any materials provided to the BRPA under this Section 5.3 as “outside counsel only.” Filing fees with respect to the notifications required under the HSR Act shall be paid by the Company.
(b) BRPA shall notEach party hereto shall, and shall cause its Subsidiaries not Affiliates and its and their respective Representatives to, acquire or agree to acquire, by merging coordinate and cooperate fully with or into or consolidating with, or by purchasing a portion of the assets of or equity in, or by any other manner, any business or any corporation, partnership, association or parties hereto in exchanging such information and providing such assistance as the other business organization or division thereof, or otherwise acquire or agree to acquire any assets, or take any other action, if the entering into of a definitive agreement relating to, or the consummation of such acquisition, merger or consolidation, or the taking of any other action, would parties hereto may reasonably be expected to (i) impose any material delay request in the obtaining of, or materially increase the risk of not obtaining, any authorizations, consents, orders or declarations of any Governmental Entities or the expiration or termination of any applicable waiting period; (ii) materially increase the risk of any Governmental Entity entering an order prohibiting the consummation of the transaction contemplated hereby; (iii) materially increase the risk of not being able to remove any such order on appeal or otherwise; or (iv) materially delay or prevent the consummation of the transactions contemplated hereby. Notwithstanding anything in this Agreement to the contrary, the restrictions and obligations set forth in this Section 5.3(b) shall not apply to or be binding upon BRPA’s Affiliates, the Sponsor, their respective Affiliates or any investment funds or investment vehicles affiliated with, or managed or advised by, BRPA’s Affiliates, the Sponsor, or any portfolio company (as such term is commonly understood in the private equity industry) or investment of BRPA’s Affiliates, the Sponsor, or of any such investment fund or investment vehicle.connection with the
Appears in 1 contract
HSR Act. (a) If To the extent required pursuant under any Laws that are designed to prohibit, restrict or regulate actions having the purpose or effect of monopolization or restraint of trade, including the HSR ActAct (“Antitrust Laws”), as each party hereto agrees to promptly as practicable, BRPA (and the Company shall use reasonable best efforts to (a) each prepare and file the notification required of it thereunder in connection with the Merger as soon as reasonably practicable but no later than twenty (20) Business Days following January 14, 2021, (b) promptly and in good faith respond to all information requested of it by the Federal Trade Commission and Department of Justice in connection with such notification and otherwise cooperate in good faith with each other and such Governmental Entities, (c) each request early termination of any waiting period required filings under the HSR Act, no later than ten (10) Business Days after the date of this Agreement) make any required filing or application under Antitrust Laws, as applicable. The parties hereto agree to supply as promptly as reasonably practicable any additional information and (d) submitdocumentary material that may be requested pursuant to Antitrust Laws and to take all other actions necessary, proper or advisable to cause the expiration or termination of the applicable waiting periods or obtain required approvals, as applicable under Antitrust Laws as soon as practicable, any other required applications or filings pursuant to any Antitrust Laws and furnish to the other Party as promptly as reasonably practicable all information required for any application or other filing required to be made pursuant to any Antitrust Law. BRPA and the Company shall substantially comply with any information or document requests including by the Federal Trade Commission or the Department of Justice in connection with the Merger. BRPA and the Company shall (i) promptly inform the other of any substantive communication to or from the Federal Trade Commission, the Department of Justice or any other Governmental Entity regarding the Merger and permit counsel to the other Party an opportunity to review in advance, and each Party shall consider in good faith the views of such counsel in connection with, any proposed written communications by such Party to any Governmental Entity concerning the Merger, (ii) give the other prompt notice requesting early termination of the commencement of any judicial or administrative action, suit, litigation, arbitration, proceeding by or before any Governmental Entity with respect to such transactions, and (iii) keep the other reasonably informed as to the status of any such action. Each Party agrees to provide, to the extent permitted by the applicable Governmental Entity, the other Party and its counsel the opportunity, on reasonable advance notice, to participate in any substantive meetings or discussions, either in person or by telephone, between such Party and/or any of its Affiliates, agents or advisors, on the one hand, and any Governmental Entity, on the other hand, concerning or in connection with the Merger; provided, neither Party shall extend any waiting period or comparable period provided for under the HSR Act or enter into any agreement with any Governmental Entity without the written consent of the other Party. Any materials exchanged in connection with this Section 5.3 may be redacted or withheld as necessary to address reasonable privilege or confidentiality concerns of legal counsel of the Company, and to remove references concerning the valuation of the Company or other competitively sensitive material; provided, that the Company may, as it deems advisable and necessary, designate any materials provided to the BRPA under this Section 5.3 as “outside counsel only.” Filing fees with respect to the notifications required under the HSR Act shall be paid by the CompanyAct.
(b) BRPA shall notEach party hereto shall, in connection with its efforts to obtain all requisite approvals and shall cause authorizations for the transactions contemplated hereby under any Antitrust Law, use its Subsidiaries not reasonable best efforts to, acquire or agree to acquire, by merging with or into or consolidating with, or by purchasing a portion of the assets of or equity in, or by any other manner, any business or any corporation, partnership, association or other business organization or division thereof, or otherwise acquire or agree to acquire any assets, or take any other action, if the entering into of a definitive agreement relating to, or the consummation of such acquisition, merger or consolidation, or the taking of any other action, would reasonably be expected to : (i) impose cooperate in all respects with each other party or its affiliates in connection with any material delay filing or submission and in the obtaining ofconnection with any investigation or other inquiry, or materially increase the risk of not obtaining, including any authorizations, consents, orders or declarations of any Governmental Entities or the expiration or termination of any applicable waiting periodAction initiated by a private person; (ii) materially increase keep the risk other parties reasonably informed of any communication received by such party or its Representatives from, or given by such party or its Representatives to, any Governmental Entity entering an order prohibiting the consummation Authority and of any communication received or given in connection with any Action by a private person, in each case regarding any of the transaction transactions contemplated hereby; (iii) materially increase permit a Representative of the risk other parties and their respective outside counsel to review any communication given by it to, and consult with each other in advance of not being able any meeting or conference with, any Governmental Authority or, in connection with any Action by a private person, with any other person, and to remove any the extent permitted by such order on appeal Governmental Authority or otherwiseother person, give a Representative or Representatives of the other parties the opportunity to attend and participate in such meetings and conferences; or (iv) materially delay in the event a party’s Representative is prohibited from participating in or prevent attending any meetings or conferences, the consummation other parties shall keep such party promptly and reasonably apprised with respect thereto; and (v) use reasonable best efforts to cooperate in the filing of any memoranda, white papers, filings, correspondence or other written communications explaining or defending the transactions contemplated hereby. Notwithstanding anything in this Agreement , articulating any regulatory or competitive argument or responding to requests or objections made by any Governmental Authority.
(c) party hereto shall take any action that could reasonably be expected to adversely affect or materially delay the contrary, the restrictions and obligations set forth in this Section 5.3(b) shall not apply to or be binding upon BRPA’s Affiliates, the Sponsor, their respective Affiliates or any investment funds or investment vehicles affiliated with, or managed or advised by, BRPA’s Affiliates, the Sponsor, or any portfolio company (as such term is commonly understood in the private equity industry) or investment of BRPA’s Affiliates, the Sponsor, or approval of any such investment fund Governmental Authority of any required filings or investment vehicleapplications under Antitrust Laws. The parties hereto further covenant and agree, with respect to a threatened or pending preliminary or permanent injunction or other order, decree or ruling or statute, rule, regulation or executive order that would adversely affect the ability of the parties hereto to consummate the transactions contemplated hereby, to use reasonable best efforts to prevent or lift the entry, enactment or promulgation thereof, as the case may be.
Appears in 1 contract
Samples: Business Combination Agreement (Aurora Technology Acquisition Corp.)
HSR Act. (a) If required pursuant to the HSR Act, as As promptly as practicablepracticable after the date of this Agreement (but in no event later than ten (10) Business Days after the date of this Agreement), BRPA Parent and the Company shall use reasonable best efforts to (a) each prepare and file the notification required of it thereunder under the HSR Act in connection with the Merger as soon as reasonably practicable but no later than twenty (20) Business Days following January 14, 2021, (b) transactions contemplated by this Agreement and shall promptly and in good faith respond to all information requested of it by the Federal Trade Commission and Department of Justice in connection with such notification and otherwise cooperate in good faith with each other and such Governmental Entities, (c) each request early termination of any waiting period under the HSR Act, and (d) submit, as soon as practicable, any other required applications or filings pursuant to any Antitrust Laws and furnish to the other Party as promptly as reasonably practicable all information required for any application or other filing required to be made pursuant to any Antitrust Law. BRPA and the Company shall substantially comply with any information or document requests by the Federal Trade Commission or the Department of Justice in connection with the Merger. BRPA Parent and the Company shall (ia) promptly inform the other of any substantive communication to or from the Federal Trade Commission, the Department of Justice or any other Governmental Entity regarding the Merger and permit counsel to the other Party an opportunity to review in advance, and each Party shall consider in good faith the views of such counsel in connection with, any proposed written communications transactions contemplated by such Party to any Governmental Entity concerning the Mergerthis Agreement, (iib) give the other prompt notice of the commencement of any judicial or administrative action, suit, litigation, arbitration, proceeding or investigation by or before any Governmental Entity with respect to such transactions, and (iiic) keep the other reasonably informed as to the status of any such action. Each Party agrees to provide, to suit, litigation, arbitration, proceeding or investigation, (d) not participate in any meeting with any Governmental Entity in respect of any filing, investigation or inquiry concerning this Agreement or the extent permitted transactions contemplated hereby without giving the other party reasonable prior notice of the meeting and, if requested by the applicable Governmental Entityother party, the Company or Parent (as applicable) shall request that the other Party and its counsel the opportunity, on reasonable advance notice, party be permitted to participate in any substantive meetings or discussions, either in person or by telephone, between such Party and/or any of its Affiliates, agents or advisors, on the meeting and (e) consult and cooperate with one hand, and any Governmental Entity, on the other hand, concerning or another in connection with any analyses, appearances, presentations, memoranda, briefs, arguments, opinions and proposals made or submitted by or on behalf of either such party in connection with all meetings, actions and proceedings under or relating to the MergerHSR Act or any other applicable competition laws; provided, however, that notwithstanding anything in this Agreement to the contrary, neither Party the Company nor Parent (nor their respective ultimate parent entities, as such term is used in the HSR Act) shall extend be required to disclose to any waiting period other party any information contained in its HSR Notification and Report Form (or comparable period other applicable form, filing, application or submission made or submitted under any other applicable competition law) which such Person, in its sole discretion, deems confidential. Each of Parent and the Company shall use commercially reasonable efforts to take such action as may be required to cause the termination or expiration of the notice periods under the HSR Act or enter into and any agreement with any Governmental Entity without other applicable competition Laws as promptly as possible after the written consent date of the other Partythis Agreement. Any materials exchanged in connection with this Section 5.3 may be redacted or withheld as necessary to address reasonable privilege or confidentiality concerns of legal counsel of the Company, and to remove references concerning the valuation of the Company or other competitively sensitive material; provided, that the Company may, as it deems advisable and necessary, designate any materials provided to the BRPA under this Section 5.3 as “outside counsel only.” Filing fees with respect to the notifications required under the HSR Act shall be paid by split evenly between Parent and the Company.
(b) BRPA shall not, and shall cause its Subsidiaries not to, acquire or agree to acquire, by merging with or into or consolidating with, or by purchasing a portion of the assets of or equity in, or by any other manner, any business or any corporation, partnership, association or other business organization or division thereof, or otherwise acquire or agree to acquire any assets, or take any other action, if the entering into of a definitive agreement relating to, or the consummation of such acquisition, merger or consolidation, or the taking of any other action, would reasonably be expected to (i) impose any material delay in the obtaining of, or materially increase the risk of not obtaining, any authorizations, consents, orders or declarations of any Governmental Entities or the expiration or termination of any applicable waiting period; (ii) materially increase the risk of any Governmental Entity entering an order prohibiting the consummation of the transaction contemplated hereby; (iii) materially increase the risk of not being able to remove any such order on appeal or otherwise; or (iv) materially delay or prevent the consummation of the transactions contemplated hereby. Notwithstanding anything in this Agreement to the contrary, the restrictions and obligations set forth in this Section 5.3(b) shall not apply to or be binding upon BRPA’s Affiliates, the Sponsor, their respective Affiliates or any investment funds or investment vehicles affiliated with, or managed or advised by, BRPA’s Affiliates, the Sponsor, or any portfolio company (as such term is commonly understood in the private equity industry) or investment of BRPA’s Affiliates, the Sponsor, or of any such investment fund or investment vehicle.
Appears in 1 contract
HSR Act. (ai) If required In furtherance and not in limitation of Section 7.04(a), each Party agrees, to the extent necessary, to file the appropriate notices, reports, and other documents pursuant to the HSR Act and under any other antitrust Law with respect to the Transactions as promptly as practicable (but, in respect of filings pursuant to the HSR Act, in no event later than fifteen (15) Business Days after the date hereof), and to supply as promptly as practicablepracticable any additional information and documentary material that reasonably may be requested pursuant to the HSR Act or any other antitrust Law and, BRPA subject to the other terms hereof, to take all other actions necessary, proper or advisable to cause the expiration or termination of the applicable waiting periods under the HSR Act and the Company shall use reasonable best efforts to receipt of any of the requisite clearances, approvals and authorizations under any other antitrust Law.
(aii) each prepare The Sellers and file the notification required of it thereunder Purchaser shall, in connection with the Merger as soon as reasonably practicable but no later than twenty efforts referenced in Section 7.04(d)(i) to obtain any requisite clearances, approvals and authorizations under the HSR Act and other antitrust Laws for the Transactions, use their respective commercially reasonable efforts to (20A) Business Days following January 14, 2021, (b) promptly and in good faith respond to all information requested of it by the Federal Trade Commission and Department of Justice cooperate with each other in connection with such notification and otherwise cooperate in good faith with each other and such Governmental Entities, (c) each request early termination of any waiting period filing or submission under the HSR Act, and (d) submit, as soon as practicable, any other required applications or filings pursuant to any Antitrust Laws and furnish to the other Party as promptly as reasonably practicable all information required for any application or other filing required to be made pursuant to any Antitrust Law. BRPA and the Company shall substantially comply with any information or document requests by the Federal Trade Commission or the Department of Justice in connection with the Merger. BRPA and the Company shall (i) promptly inform the other of any substantive communication to or from the Federal Trade Commission, the Department of Justice Act or any other Governmental Entity regarding the Merger and permit counsel to the other Party an opportunity to review in advance, and each Party shall consider in good faith the views of such counsel in connection with, any proposed written communications by such Party to any Governmental Entity concerning the Merger, antitrust Law; (ii) give the other prompt notice of the commencement of any judicial or administrative action, suit, litigation, arbitration, proceeding by or before any Governmental Entity with respect to such transactions, and (iiiB) keep the other Parties reasonably informed as to the status of any communication received from, or given to, any Governmental Entity regarding any requisite clearances, approvals and authorizations of such action. Each Party agrees Governmental Entity in respect of the Transactions contemplated hereby; and (C) permit the other Parties to providereview in advance on an outside counsel only basis any written communication given by it to, and consult with each other in advance of any meeting or conference with, any Governmental Entity in respect of the HSR Act or any other antitrust Laws and, to the extent permitted not prohibited by the such applicable Governmental Entity, give the other Party Parties the opportunity to attend and its counsel the opportunity, on reasonable advance notice, to participate in any substantive such meetings or discussions, either in person or by telephone, between such Party and/or any of its Affiliates, agents or advisorsand conferences.
(iii) Purchaser, on the one hand, and any Governmental Entitythe Sellers, on the other hand, concerning or in connection with the Merger; provided, neither Party shall agree not to extend any waiting period or comparable period under the HSR Act or enter into any agreement with any Governmental Entity without not to consummate the Transactions for any period of time, except with the prior written consent of the other Party. Any materials exchanged in connection with this Section 5.3 may be redacted or withheld as necessary to address reasonable privilege or confidentiality concerns of legal counsel of the Companyother, and to remove references concerning the valuation of the Company or other competitively sensitive material; provided, that the Company may, as it deems advisable and necessary, designate any materials provided to the BRPA under this Section 5.3 as “outside counsel only.” Filing fees with respect to the notifications required under the HSR Act shall be paid by the Company.
(b) BRPA shall not, and shall cause its Subsidiaries not to, acquire or agree to acquire, by merging with or into or consolidating with, or by purchasing a portion of the assets of or equity in, or by any other manner, any business or any corporation, partnership, association or other business organization or division thereof, or otherwise acquire or agree to acquire any assets, or take any other action, if the entering into of a definitive agreement relating to, or the consummation of such acquisition, merger or consolidation, or the taking of any other action, would reasonably be expected to (i) impose any material delay in the obtaining of, or materially increase the risk of not obtaining, any authorizations, consents, orders or declarations of any Governmental Entities or the expiration or termination of any applicable waiting period; (ii) materially increase the risk of any Governmental Entity entering an order prohibiting the consummation of the transaction contemplated hereby; (iii) materially increase the risk of not being able to remove any such order on appeal or otherwise; or (iv) materially delay or prevent the consummation of the transactions contemplated hereby. Notwithstanding anything in this Agreement to the contrary, the restrictions and obligations set forth in this Section 5.3(b) which consent shall not apply to be unreasonably withheld, conditioned or be binding upon BRPA’s Affiliates, the Sponsor, their respective Affiliates or any investment funds or investment vehicles affiliated with, or managed or advised by, BRPA’s Affiliates, the Sponsor, or any portfolio company (as such term is commonly understood in the private equity industry) or investment of BRPA’s Affiliates, the Sponsor, or of any such investment fund or investment vehicledelayed.
Appears in 1 contract
Samples: Residential Servicing Asset Purchase Agreement (Nationstar Mortgage LLC)
HSR Act. (ai) If required pursuant required, each of the parties hereto shall file a premerger notification and report form under the Hart-Xxxxx-Xxxxxx Xxxitrust Improvements Act of 1976, as amended (the "HSR Act")and under any other similar applicable laws of any jurisdiction other than the United States with respect to the HSR Act, as promptly as practicable, BRPA and the Company shall use reasonable best efforts to (a) each prepare and file the notification required of it thereunder in connection with the Merger as soon as reasonably practicable but no later than twenty (20) Business Days following January 14, 2021, (b) promptly and in good faith respond to all information requested of it by the Federal Trade Commission and Department of Justice in connection with such notification and otherwise cooperate in good faith with each other and such Governmental Entities, (c) each request early termination of any waiting period under the HSR Act, and (d) submit, as soon as practicable, any other required applications or filings pursuant to any Antitrust Laws and furnish to the other Party transactions contemplated hereby as promptly as reasonably practicable all possible following execution and delivery of this Formation Agreement. Each of the parties agrees to use reasonable efforts to promptly respond to any request for additional information required for any application pursuant to Section (e)(1) of the HSR Act or other filing required to be made pursuant to any Antitrust Law. BRPA and the Company shall substantially comply with any information or document requests by the Federal Trade Commission or the Department of Justice in connection with the Merger. BRPA and the Company shall (i) promptly inform the such other of any substantive communication to or from the Federal Trade Commission, the Department of Justice or any other Governmental Entity regarding the Merger and permit counsel to the other Party an opportunity to review in advance, and each Party shall consider in good faith the views of such counsel in connection with, any proposed written communications by such Party to any Governmental Entity concerning the Merger, applicable laws.
(ii) give Except as otherwise required by United States regulatory considerations, Weatxxxxxxx xxxl furnish to GE Capital copies of all correspondence, filings or communications (or memoranda setting forth the other prompt notice of the commencement of substance thereof (collectively, "Weatxxxxxxx XXX Documents")) between any judicial Weatxxxxxxx Xxxity, or administrative action, suit, litigation, arbitration, proceeding by or before any Governmental Entity with respect to such transactions, and (iii) keep the other reasonably informed as to the status of any such action. Each Party agrees to provide, to the extent permitted by the applicable Governmental Entity, the other Party and its counsel the opportunity, on reasonable advance notice, to participate in any substantive meetings or discussions, either in person or by telephone, between such Party and/or any of its Affiliates, agents or advisorsrespective representatives, on the one hand, and any Governmental EntityAuthority, or members of the staff of such agency or authority, on the other hand, concerning or in connection with the Merger; provided, neither Party shall extend any waiting period or comparable period under the HSR Act or enter into any agreement with any Governmental Entity without the written consent of the other Party. Any materials exchanged in connection with this Section 5.3 may be redacted or withheld as necessary to address reasonable privilege or confidentiality concerns of legal counsel of the Company, and to remove references concerning the valuation of the Company or other competitively sensitive material; provided, that the Company may, as it deems advisable and necessary, designate any materials provided to the BRPA under this Section 5.3 as “outside counsel only.” Filing fees with respect to the notifications required under the HSR Act shall be paid by the Company.
(b) BRPA shall not, and shall cause its Subsidiaries not to, acquire this Formation Agreement or agree to acquire, by merging with or into or consolidating with, or by purchasing a portion of the assets of or equity in, or by any other manner, any business or any corporation, partnership, association or other business organization or division thereof, or otherwise acquire or agree to acquire any assets, or take any other action, if the entering into of a definitive agreement relating to, or the consummation of such acquisition, merger or consolidation, or the taking of any other action, would reasonably be expected to (i) impose any material delay in the obtaining of, or materially increase the risk of not obtaining, any authorizations, consents, orders or declarations of any Governmental Entities or the expiration or termination of any applicable waiting period; (ii) materially increase the risk of any Governmental Entity entering an order prohibiting the consummation of the transaction contemplated hereby; (iii) materially increase the risk of not being able to remove any such order on appeal or otherwise; or (iv) materially delay or prevent the consummation of the transactions contemplated hereby. Notwithstanding anything in this Agreement ; provided, however, that (x) with respect to documents and other materials filed by or on behalf of any Weatxxxxxxx Xxxity with the contraryAntitrust Division of the Department of Justice, the restrictions and obligations set forth in this Section 5.3(b) shall not apply to or be binding upon BRPA’s Affiliates, the Sponsor, their respective Affiliates or any investment funds or investment vehicles affiliated with, or managed or advised by, BRPA’s Affiliates, the SponsorFederal Trade Commission, or any portfolio company state attorneys general that are available for review by GE Capital, copies will not be required to be provided to GE Capital and (as such term is commonly understood y) with respect to any Weatxxxxxxx XXX Documents (1) that contain any information which, in the private equity industryreasonable judgment of Fulbright & Jawoxxxx X.X.P., should not be furnished to GE Capital because of antitrust considerations or (2) or investment relating to a request for additional information pursuant to Section (e)(1) of BRPA’s Affiliatesthe HSR Act, the Sponsorobligation of Weatxxxxxxx xx furnish any such Weatxxxxxxx XXX Documents to GE Capital shall be satisfied by the delivery of such Weatxxxxxxx XXX Documents on a confidential basis to Weil, Gotshal & Mangxx XXX pursuant to a confidentiality agreement in form and substance reasonably satisfactory to GE Capital. Except as otherwise required by United States regulatory considerations, GE Capital will furnish to Weatxxxxxxx xxxies of all correspondence, filings or communications (or memoranda setting forth the substance thereof (collectively, "GE Capital HSR Documents")) between any GE Entity or any of its respective representatives, on the one hand, and any Governmental Authority, or member of the staff of such agency or authority, on the other hand, with respect to this Formation Agreement or the transactions contemplated hereby; provided, however, that (x) with respect to documents and other materials filed by or on behalf of any GE Entity with the Antitrust Division of the Department of Justice, the Federal Trade Commission, or any state attorneys general that are available for review by Weatxxxxxxx, xxpies will not be required to be provided to Weatxxxxxxx, xxd (y) with respect to any GE Capital HSR Documents (1) that contain any information which, in the reasonable judgment of Weil, Gotshal & Mangxx XXX, should not be furnished to Weatxxxxxxx xxxause of antitrust considerations or (2) relating to a request for additional information pursuant to Section (e)(1) of the HSR Act, the obligation of GE Capital to furnish any such investment fund GE Capital HSR Documents to Weatxxxxxxx xxxll be satisfied by the delivery of such GE Capital HSR Documents on a confidential basis to Fulbright & Jawoxxxx X.X.P. pursuant to a confidentiality agreement in form and substance reasonably satisfactory to Weatxxxxxxx.
(iii) Nothing contained in this Formation Agreement shall be construed so as to require any GE Entity or investment vehicleany Weatxxxxxxx Xxxity, or any of their respective subsidiaries or affiliates, to sell, license, dispose of, or hold separate, or to operate in any specified manner, any material assets or businesses of the Global Compression Business, the Weatxxxxxxx Xxxpression Business or the Partnership (or to require the Global Compression Business or the Weatxxxxxxx Xxxpression Business to agree to any of the foregoing). The obligations of each party under Section 4.3 to use reasonable efforts with respect to antitrust matters shall be limited to compliance with the reporting provisions of the HSR Act and with its obligations under this Section 4.3(c)(iii).
Appears in 1 contract
Samples: Formation Agreement (Weatherford International Inc /New/)
HSR Act. Each of the parties will:
(a) If required pursuant to the HSR Act, as promptly as is practicable, BRPA and but in any event within five (5) business days following the Company shall execution of this Agreement, make its required filings under the HSR Act (as defined in Section 17.1);
(b) as promptly as is practicable after receiving any governmental request under the HSR Act for additional information, documents, or other materials, use its reasonable best efforts to comply with such request;
(ac) each prepare and file cooperate with the notification required of it thereunder other in connection with resolving any governmental inquiry or investigation relating to their respective HSR Act filings, the Merger as soon as reasonably practicable but no later than twenty (20) Business Days following January 14Merger, 2021, (b) promptly and in good faith respond to all information requested of it by the Federal Trade Commission and Department of Justice in connection with such notification and otherwise cooperate in good faith with each other and such Governmental Entities, (c) each request early termination of or any waiting period under the HSR Act, and related inquiry or investigation;
(d) submit, as soon as practicable, any other required applications or filings pursuant to any Antitrust Laws and furnish to the other Party as promptly as reasonably practicable all information required for any application or other filing required to be made pursuant to any Antitrust Law. BRPA and the Company shall substantially comply with any information or document requests by the Federal Trade Commission or the Department of Justice in connection with the Merger. BRPA and the Company shall (i) promptly inform the other of any substantive communication with, and any proposed understanding, agreement, or undertaking with any governmental entity relating to or from the Federal Trade Commissiontheir respective HSR Act filings, the Department of Justice Merger, or any related inquiry or investigation;
(e) to the extent reasonably practicable, give the other Governmental Entity regarding reasonable advance notice of, and the opportunity to participate in (directly or through its representatives), any meeting or conference with any governmental entity relating to their respective HSR Act filings, the Merger, or any related inquiry or investigation;
(f) use its reasonable best efforts to take, or cause to be taken, all appropriate action, and to do, or cause to be done, all things necessary, proper or advisable under applicable laws and regulations to consummate and make effective the Merger and permit counsel the transactions contemplated hereby, including, without limitation, using its reasonable best efforts to the other Party an opportunity to review in advance, and each Party shall consider in good faith the views of such counsel in connection with, any proposed written communications by such Party to any Governmental Entity concerning the Merger, (ii) give the other prompt notice of the commencement of any judicial or administrative action, suit, litigation, arbitration, proceeding by or before any Governmental Entity with respect to such transactions, and (iii) keep the other reasonably informed as to the status of any such action. Each Party agrees to provide, to the extent permitted by the applicable Governmental Entity, the other Party and its counsel the opportunity, on reasonable advance notice, to participate in any substantive meetings or discussions, either in person or by telephone, between such Party and/or any of its Affiliates, agents or advisors, on the one hand, and any Governmental Entity, on the other hand, concerning or in connection with the Merger; provided, neither Party shall extend any waiting period or comparable period under the HSR Act or enter into any agreement with any Governmental Entity without the written consent of the other Party. Any materials exchanged in connection with this Section 5.3 may be redacted or withheld as necessary to address reasonable privilege or confidentiality concerns of legal counsel of the Company, and to remove references concerning the valuation of the Company or other competitively sensitive material; provided, that the Company may, as it deems advisable and necessary, designate any materials provided to the BRPA under this Section 5.3 as “outside counsel only.” Filing fees with respect to the notifications required under the HSR Act shall be paid by the Company.
(b) BRPA shall not, and shall cause its Subsidiaries not to, acquire or agree to acquire, by merging with or into or consolidating with, or by purchasing a portion of the assets of or equity in, or by any other manner, any business or any corporation, partnership, association or other business organization or division thereof, or otherwise acquire or agree to acquire any assets, or take any other action, if the entering into of a definitive agreement relating to, or the consummation of such acquisition, merger or consolidation, or the taking of any other action, would reasonably be expected to (i) impose any material delay in the obtaining of, or materially increase the risk of not obtaining, any authorizationsobtain all permits, consents, approvals, authorizations, qualifications and orders or declarations of any Governmental Entities or the expiration or termination of any applicable waiting period; (ii) materially increase the risk of any Governmental Entity entering an order prohibiting governmental authorities as are necessary for the consummation of the transaction contemplated hereby; (iii) materially increase Merger and the risk of not being able to remove any such order on appeal or otherwise; or (iv) materially delay or prevent the consummation of the other transactions contemplated hereby. Notwithstanding anything in this Agreement hereby and to fulfill the contrary, the restrictions and obligations conditions set forth in Sections 11 through 13; PROVIDED that neither BUYER nor the Company will be required by this Section 5.3(b8.3(f) shall not apply to take any action that would have a Material Adverse Effect on the Company or be binding upon BRPA’s AffiliatesBUYER, the Sponsorincluding entering into any consent decree, their respective Affiliates hold separate orders or any investment funds or investment vehicles affiliated with, or managed or advised by, BRPA’s Affiliates, the Sponsor, or any portfolio company (as such term is commonly understood in the private equity industry) or investment of BRPA’s Affiliates, the Sponsor, or of any such investment fund or investment vehicle.other arrangements that would have a Material
Appears in 1 contract
HSR Act. (a) If Each of Genzyme and Wyeth shall, as promptly as practicable after the date hereof, file or supply, or cause to be filed or supplied, all notifications and information required to be filed or supplied pursuant to the HSR Act in connection with the transactions contemplated by this Agreement. Each of Genzyme and Wyeth shall furnish to the other such necessary information and reasonable assistance as the other may request in connection with its preparation of any filing or submission which is necessary under the HSR Act, as . As promptly as practicable, BRPA Genzyme and Wyeth shall make, or cause to be made, all such other filings and submissions under laws, rules and regulations applicable to them, or to their Affiliates, as may be required for them to consummate the Company shall use reasonable best efforts to (a) each prepare and file the notification required of it thereunder transactions contemplated hereby in connection accordance with the Merger as soon as reasonably practicable but no later than twenty (20) Business Days following January 14terms of this Agreement. Genzyme and Wyeth shall keep one another apprised of the status of any communications with, 2021and inquiries or requests for additional information from, (b) promptly and in good faith respond to all information requested of it by any governmental authority, including the United States Federal Trade Commission and the Antitrust Division of the United States Department of Justice, and shall comply promptly with any such inquiry or request. Genzyme shall pay the costs of all filing fees under the HSR Act.
(b) Each of Genzyme and Wyeth shall use reasonable commercial efforts to resolve any objections that may be asserted by the United States Federal Trade Commission and the Antitrust Division of the United States Department of Justice in connection with such notification respect to the transactions contemplated hereby, and otherwise shall cooperate in good faith with each other to contest any challenges to the transactions contemplated hereby by any such governmental entity. The Parties agree to cooperate and such Governmental Entitiesto use their respective reasonable commercial efforts to obtain any government clearances or approvals required for Closing under the HSR Act, (c) each request early termination of to respond to any waiting period government requests for information under the HSR Act, and (d) submit, as soon as practicable, to contest and resist any other required applications or filings pursuant to any Antitrust Laws and furnish to the other Party as promptly as reasonably practicable all information required for any application or other filing required to be made pursuant to any Antitrust Law. BRPA and the Company shall substantially comply with any information or document requests by the Federal Trade Commission or the Department of Justice in connection with the Merger. BRPA and the Company shall (i) promptly inform the other of any substantive communication to or from the Federal Trade Commission, the Department of Justice or any other Governmental Entity regarding the Merger and permit counsel to the other Party an opportunity to review in advance, and each Party shall consider in good faith the views of such counsel in connection with, any proposed written communications by such Party to any Governmental Entity concerning the Merger, (ii) give the other prompt notice of the commencement of any judicial or administrative action, suitincluding any legislative, litigation, arbitration, proceeding by administrative or before any Governmental Entity with respect to such transactions, and (iii) keep the other reasonably informed as to the status of any such judicial action. Each Party agrees to provide, to the extent permitted by the applicable Governmental Entity, the other Party and its counsel the opportunity, on reasonable advance notice, to participate in any substantive meetings or discussions, either in person or by telephone, between such Party and/or any of its Affiliates, agents or advisors, on the one hand, and any Governmental Entity, on the other hand, concerning or in connection with the Merger; provided, neither Party shall extend any waiting period or comparable period under the HSR Act or enter into any agreement with any Governmental Entity without the written consent of the other Party. Any materials exchanged in connection with this Section 5.3 may be redacted or withheld as necessary to address reasonable privilege or confidentiality concerns of legal counsel of the Company, and to remove references concerning the valuation of the Company have vacated, lifted, reversed or overturned any decree, judgment, injunction or other competitively sensitive material; providedorder (whether temporary, preliminary or permanent) that the Company mayrestricts, as it deems advisable and necessary, designate any materials provided to the BRPA under this Section 5.3 as “outside counsel only.” Filing fees with respect to the notifications required under the HSR Act shall be paid by the Company.
(b) BRPA shall not, and shall cause its Subsidiaries not to, acquire prevents or agree to acquire, by merging with or into or consolidating with, or by purchasing a portion of the assets of or equity in, or by any other manner, any business or any corporation, partnership, association or other business organization or division thereof, or otherwise acquire or agree to acquire any assets, or take any other action, if the entering into of a definitive agreement relating to, or the consummation of such acquisition, merger or consolidation, or the taking of any other action, would reasonably be expected to (i) impose any material delay in the obtaining of, or materially increase the risk of not obtaining, any authorizations, consents, orders or declarations of any Governmental Entities or the expiration or termination of any applicable waiting period; (ii) materially increase the risk of any Governmental Entity entering an order prohibiting the consummation of the transaction contemplated hereby; (iii) materially increase the risk of not being able to remove any such order on appeal or otherwise; or (iv) materially delay or prevent prohibits the consummation of the transactions contemplated hereby. Notwithstanding anything in by this Agreement under the HSR Act or which is otherwise required to consummate the contrary, the restrictions and obligations set forth in transactions contemplated by this Section 5.3(b) shall not apply to or be binding upon BRPA’s Affiliates, the Sponsor, their respective Affiliates or any investment funds or investment vehicles affiliated with, or managed or advised by, BRPA’s Affiliates, the Sponsor, or any portfolio company (as such term is commonly understood in the private equity industry) or investment of BRPA’s Affiliates, the Sponsor, or of any such investment fund or investment vehicleAgreement.
Appears in 1 contract
Samples: Termination and Transition Agreement (Genzyme Corp)
HSR Act. (a) If required pursuant to the HSR ActEach of Endoceutics and AMAG shall, as promptly as practicable, BRPA and the Company shall use reasonable best efforts to within ten (a) each prepare and file the notification required of it thereunder in connection with the Merger as soon as reasonably practicable but no later than twenty (2010) Business Days following January 14after Execution Date, 2021, (b) promptly and in good faith respond to all information requested of it by file with the United States Federal Trade Commission and the Antitrust Division of the United States Department of Justice in connection Justice, any HSR Filing required of it under the HSR Act with such notification and otherwise cooperate in good faith with each other and such Governmental Entitiesrespect to the subject matter of this Agreement, (c) each which forms shall specifically request early termination of the initial HSR Act waiting period. The Parties will cooperate with one another to the extent reasonably necessary in the preparation of any such HSR Filing. [***].
(b) Each of Endoceutics and AMAG hereby covenants and agrees to use its commercially reasonable efforts to secure, and not to take any action that will have the effect of delaying, impairing or impeding, the early termination or expiration of any waiting period periods under the HSR Act, and (d) submit, as soon as practicable, Act for the transactions contemplated hereby. The Parties shall each cooperate reasonably with one another in connection with resolving any other required applications inquiry or filings pursuant to any Antitrust Laws and furnish to the other Party as promptly as reasonably practicable all information required for any application or other filing required to be made pursuant to any Antitrust Law. BRPA and the Company shall substantially comply with any information or document requests investigation by the Federal Trade Commission or the Department of Justice in connection with Antitrust Division (“DOJ”) or Federal Trade Commission (“FTC”) relating to their respective HSR Filings or the Mergertransactions contemplated hereby. BRPA and Without limiting the Company foregoing, each Party shall (i) promptly inform the other Party of any substantive written or oral communication received from DOJ or FTC relating to its HSR Filing or the transactions contemplated hereby (and if in writing, furnish the other Party with a copy of such communication); (ii) respond as promptly as practicable to any request from DOJ or FTC for information, documents or other materials in connection with a review of the Federal Trade Commission, the Department of Justice or any other Governmental Entity regarding the Merger and permit counsel transactions contemplated hereby; (iii) provide to the other Party, and permit the other Party an to review and comment in advance of submission, all proposed correspondence, filings, and written communications to DOJ or FTC with respect to the transactions contemplated hereby; and (iv) not participate in any substantive meeting or discussion with DOJ or FTC in respect of investigation or inquiry concerning the transactions contemplated hereby unless it consults with the other Party in advance and, except as prohibited by applicable Law or DOJ or FTC, gives the other Party the opportunity to review in advanceattend and participate thereat. The Parties shall consult and cooperate with each other, and each Party shall consider in good faith the views of such counsel one another, in connection withwith any analyses, appearances, presentations, memoranda, briefs, arguments, opinions and proposals made or submitted by or on behalf of any proposed written communications Party in connection with proceedings under or relating to any Antitrust Law, except as may be prohibited or restricted by such Law.
(c) Nothing in this Section 16.13 requires either Party to any Governmental Entity concerning consent to the Merger, (ii) give the divestiture or other prompt notice of the commencement disposition of any judicial of its or administrative action, suit, litigation, arbitration, proceeding by its Affiliates’ assets or before to consent to any Governmental Entity with respect to such transactionsother structural or conduct remedy, and (iii) keep the other reasonably informed as to the status of any such action. Each Party agrees to provide, to the extent permitted by the applicable Governmental Entity, the other each Party and its counsel the opportunityAffiliates has no obligation to contest, on reasonable advance notice, to participate in any substantive meetings or discussions, either in person or by telephone, between such Party and/or any of its Affiliates, agents or advisors, on the one hand, and any Governmental Entity, on the other hand, concerning administratively or in connection with the Merger; providedcourt, neither Party shall extend any waiting period ruling, order or comparable period under the HSR Act or enter into any agreement with any Governmental Entity without the written consent other action of the other Party. Any materials exchanged in connection with FTC, DOJ or any Third Party respecting the transactions contemplated by this Section 5.3 may be redacted or withheld as necessary to address reasonable privilege or confidentiality concerns of legal counsel of the Company, and to remove references concerning the valuation of the Company or other competitively sensitive material; provided, that the Company may, as it deems advisable and necessary, designate any materials provided to the BRPA under this Section 5.3 as “outside counsel only.” Filing fees with respect to the notifications required under the HSR Act shall be paid by the CompanyAgreement.
(bd) BRPA Except for the specific provisions expressly identified in Section 16.13(e), this Agreement shall not, not be effective until the HSR Conditions are met (such date the “Effective Date”).
(e) Notwithstanding Section 16.13(d) and shall cause its Subsidiaries not to, acquire or agree to acquire, by merging with or into or consolidating with, or by purchasing a portion of the assets of or equity in, or by any other manner, any business or any corporation, partnership, association or other business organization or division thereof, or otherwise acquire or agree to acquire any assets, or take any other action, if the entering into of a definitive agreement relating to, or the consummation of such acquisition, merger or consolidation, or the taking of any other action, would reasonably be expected to (i) impose any material delay in the obtaining of, or materially increase the risk of not obtaining, any authorizations, consents, orders or declarations of any Governmental Entities or the expiration or termination of any applicable waiting period; (ii) materially increase the risk of any Governmental Entity entering an order prohibiting the consummation of the transaction contemplated hereby; (iii) materially increase the risk of not being able to remove any such order on appeal or otherwise; or (iv) materially delay or prevent the consummation of the transactions contemplated hereby. Notwithstanding anything in this Agreement to the contrary, the restrictions following provisions of this Agreement shall be in full force and obligations set forth in this Section 5.3(beffect as of the Execution Date: Article 1 (Definitions) shall not apply (to or be binding upon BRPA’s Affiliatesthe extent applicable to the other Sections), the SponsorArticle 13 (other than 13.4), their respective Affiliates or any investment funds or investment vehicles affiliated with, or managed or advised by, BRPA’s Affiliates, the Sponsor, or any portfolio company and Article 16 (as such term is commonly understood in the private equity industry) or investment of BRPA’s Affiliates, the Sponsor, or of any such investment fund or investment vehicleother than Sections 16.10).
Appears in 1 contract
HSR Act. (a) If required pursuant to the HSR Actapplicable Law, as promptly as practicable, BRPA and the Company each Party shall use reasonable best efforts to (a) each prepare and file the notification required of it thereunder in connection with the Merger as soon as reasonably practicable but no later than twenty (20) Business Days following January 14, 2021, (b) promptly and in good faith respond to all information requested of it by the Federal Trade Commission and Department of Justice in connection with such notification and otherwise cooperate in good faith with each other and such Governmental Entities, (c) each request early termination of any waiting period under the HSR Act, and (d) submit, as soon as practicable, and in any event no later than three (3) Business Days after the execution of a LOI by the Parties, or if no LOI is executed by the Parties, after the Execution Date except as mutually agreed otherwise, a Notification and Report Form under the HSR Act with the United States Federal Trade Commission and the Antitrust Division of the United States Department of Justice, as well as any other required applications necessary premerger or filings pursuant to any Antitrust Laws and furnish to the other competition filings. As deemed advisable, each Party shall respond as promptly as reasonably practicable all information required for any application or other filing required to be made pursuant to any Antitrust Law. BRPA and inquiries or requests received from any Governmental Authority in the Company shall substantially comply with any Territory for additional information or document requests by the Federal Trade Commission or the Department of Justice in connection with the Mergerdocumentation. BRPA and the Company Each Party shall (i) promptly inform the other of any substantive communication to or from the Federal Trade Commission, the Department of Justice or any other Governmental Entity regarding the Merger and permit counsel to notify the other Party an opportunity of any communication to that Party or its Affiliates from any Governmental Authority and, subject to applicable Law, permit the other Party or the other Party’s counsel to review in advance, and each Party shall consider in good faith the views of such counsel in connection with, advance any proposed written communications by such Party communication to any Governmental Entity concerning of the Merger, foregoing; (ii) give not participate, or permit its Affiliates to participate, in any substantive meeting or discussion with any Governmental Authority in respect of any filings, investigation or inquiry concerning this Agreement unless it consults with the other prompt notice of the commencement of any judicial or administrative action, suit, litigation, arbitration, proceeding by or before any Governmental Entity with respect to such transactions, and (iii) keep the other reasonably informed as to the status of any such action. Each Party agrees to providein advance and, to the extent permitted by such Governmental Authority in the applicable Governmental EntityTerritory, gives the other Party the opportunity to attend and its counsel participate thereat; and (iii) subject to applicable Law and any other reasonable confidentiality obligations of the opportunitydisclosing Party, on reasonable advance noticefurnish the other Party with copies of all correspondence, filings, and communication (and memoranda setting forth the substance thereof) (including documents submitted as attachments to participate in any substantive meetings or discussions, either in person or by telephone, each Party’s Notification and Report Form under the HSR Act) between such Party and/or any of (its Affiliatesaffiliates, agents or advisors, and its respective Representatives) on the one hand, and any Governmental Entity, Authority or members of their respective staffs on the other hand, concerning or in connection with the Merger; provided, neither Party shall extend any waiting period or comparable period under the HSR Act or enter into any agreement with any Governmental Entity without the written consent of the other Party. Any materials exchanged in connection with this Section 5.3 may be redacted or withheld as necessary to address reasonable privilege or confidentiality concerns of legal counsel of the Company, and to remove references concerning the valuation of the Company or other competitively sensitive material; provided, that the Company may, as it deems advisable and necessary, designate any materials provided to the BRPA under this Section 5.3 as “outside counsel only.” Filing fees with respect to the notifications this Agreement. The responsibility for any required under the HSR Act filing fees shall be paid by the Companysplit 50/50 between Purchaser and Seller.
(b) BRPA shall not, In furtherance and shall cause its Subsidiaries not to, acquire or agree to acquire, by merging with or into or consolidating with, or by purchasing a portion in limitation of the assets other covenants of or equity inthe Parties contained herein, or by any other mannerPurchaser shall have the right, any business or any corporationbut not the obligation, partnership, association or other business organization or division thereof, or otherwise acquire or agree to acquire any assets, or take any other action, if the entering into of a definitive agreement relating to, or the consummation of such acquisition, merger or consolidation, or the taking of any other action, would reasonably be expected seek to (i) impose remedy any material delay in the obtaining of, or materially increase the risk of not obtaining, any authorizations, consents, orders or declarations of competition concerns that any Governmental Entities or the expiration or termination of any applicable waiting period; (ii) materially increase the risk of any Governmental Entity entering an order prohibiting Authority may have with respect to the consummation of the transaction contemplated hereby; Transactions. If any administrative, judicial or legislative Action is instituted (iiior threatened to be instituted) materially increase challenging the risk sale and purchase of the Purchased Assets or any of the Transactions as violative of any anti-competition Law, Purchaser may, but shall not being able be required to, elect to remove contest and resist any such Action, and to have vacated, lifted, reversed or overturned any decree, judgment, injunction or other order on appeal that is in effect and that restricts, prevents or otherwise; or (iv) materially delay or prevent prohibits the consummation of the transactions contemplated herebyTransactions. Notwithstanding anything in In the event Purchaser elects not to seek to remedy any such competition concerns of a Governmental Authority after being given notice thereof, Seller may terminate this Agreement by giving notice of termination to the contrary, the restrictions and obligations set forth Purchaser. Seller shall cooperate in this Section 5.3(b) shall not apply a commercially reasonable manner with any efforts of Purchaser to or be binding upon BRPA’s Affiliates, the Sponsor, their respective Affiliates or any investment funds or investment vehicles affiliated with, or managed or advised by, BRPA’s Affiliates, the Sponsor, or any portfolio company (as such term is commonly understood in the private equity industry) or investment of BRPA’s Affiliates, the Sponsor, or of remedy any such investment fund or investment vehiclecompetition concerns of a Governmental Authority.
Appears in 1 contract
HSR Act. (ai) If required pursuant Each of the Parties shall: (A) file or cause to the HSR Actbe filed, as promptly as practicable, BRPA and the Company shall use reasonable best efforts to (a) each prepare and file the notification required of it thereunder in connection with the Merger as soon as reasonably practicable but in no event later than twenty five (205) Business Days following January 14after the execution and delivery of this Agreement, 2021, (b) promptly and in good faith respond to all information requested of it by with the Federal Trade Commission and the Antitrust Division of the United States Department of Justice in connection with such notification Justice, a Notification and otherwise cooperate in good faith with each other Report Form and such Governmental Entities, (c) each request early termination of any waiting period other documents as required to be filed by such Party under the HSR Act, Act concerning the transactions contemplated by this Agreement; and (dB) submit, as soon as practicable, any other required applications or filings pursuant to any Antitrust Laws promptly and furnish to the other Party as promptly as reasonably practicable all information required for any application or other filing required to be made pursuant to any Antitrust Law. BRPA and the Company shall substantially comply with or cause to be substantially complied with any information or document requests request by the Federal Trade Commission or the Antitrust Division of the United States Department of Justice Justice, including any request for additional documents and information concerning such transactions necessary to obtain any governmental clearances required for Closing with respect to the HSR Act, including the expiration or early termination of the waiting period applicable to this Agreement and the transactions contemplated hereby under the HSR Act. Whether or not the transactions contemplated by this Agreement are consummated, Buyer shall be responsible for the payment of all filing fees in connection with any filings made under the HSR Act in connection with the Merger. BRPA transactions contemplated by this Agreement.
(ii) The Parties shall cooperate with and the Company shall (i) promptly inform furnish to each other such necessary information and reasonable assistance as the other may reasonably request in connection with the preparation of such filings and any further necessary filings or submissions under the HSR Act. The Parties shall consult with one another prior to taking any substantive communication position with respect to or from the Federal Trade Commissionfilings under the HSR Act, in any written submission to, or, to the Department of Justice or extent possible, in any other discussions with any Governmental Entity regarding the Merger Authority. The Parties shall consult and cooperate with one another, and permit counsel to the other Party an opportunity one another to review and discuss in advance, advance and each Party shall consider in good faith the views of such counsel one another, in connection withwith any analyses, appearances, presentations, memoranda, briefs, arguments, opinions and proposals to be made or submitted by or on behalf of any proposed written communications by such Party to any Governmental Entity concerning Authority in connection with proceedings under or relating to the Merger, (ii) give the other prompt notice of the commencement of any judicial or administrative action, suit, litigation, arbitration, proceeding HSR Act. Subject to applicable Laws and as required by or before any Governmental Entity with respect to such transactions, and (iii) keep the other reasonably informed as to the status of any such action. Each Party agrees to provide, to the extent permitted by the applicable Governmental EntityAuthority, the other Party Seller Parties and its counsel the opportunity, on reasonable advance notice, to participate in any substantive meetings or discussions, either in person or by telephone, between such Party and/or any of its Affiliates, agents or advisorsCompany, on the one hand, and any Governmental EntityBuyer, on the other hand, concerning or in connection with shall (A) keep the Merger; provided, neither Party shall extend any waiting period or comparable period under the HSR Act or enter into any agreement with any Governmental Entity without the written consent other apprised of the other Party. Any materials exchanged in connection with this Section 5.3 may be redacted or withheld as necessary status of matters relating to address reasonable privilege or confidentiality concerns of legal counsel of the Company, and to remove references concerning the valuation of the Company or other competitively sensitive material; provided, that the Company may, as it deems advisable and necessary, designate any materials provided to the BRPA under this Section 5.3 as “outside counsel only.” Filing fees with respect to the notifications required under the HSR Act shall be paid by the Company.
(b) BRPA shall not, and shall cause its Subsidiaries not to, acquire or agree to acquire, by merging with or into or consolidating with, or by purchasing a portion of the assets of or equity in, or by any other manner, any business or any corporation, partnership, association or other business organization or division thereof, or otherwise acquire or agree to acquire any assets, or take any other action, if the entering into of a definitive agreement relating to, or the consummation of such acquisition, merger or consolidation, or the taking of any other action, would reasonably be expected to (i) impose any material delay in the obtaining of, or materially increase the risk of not obtaining, any authorizations, consents, orders or declarations of any Governmental Entities or the expiration or termination of any applicable waiting period; (ii) materially increase the risk of any Governmental Entity entering an order prohibiting the consummation of the transaction contemplated hereby; (iii) materially increase the risk of not being able to remove any such order on appeal or otherwise; or (iv) materially delay or prevent the consummation of the transactions contemplated hereby. Notwithstanding anything by this Agreement, (B) promptly notify the other Party of any communication from any Governmental Authority and, subject to applicable Laws, permit the other Party to review and discuss in advance any proposed written communication to any of the foregoing, (C) not agree to participate in any substantive meeting or discussion with any Governmental Authority in respect of any filings, investigation or inquiry concerning this Agreement, any related document or the transactions contemplated by this Agreement unless it consults in advance with the other Party and provides the other Party with reasonable advance notice of such meeting or discussion and permits the other Party to attend such meeting or discussion (unless such Governmental Authority expressly prohibits the other Party from attending, in which case, or in the case such Party is unable to attend, the attending Party shall give the other Party a summary of such meeting or discussion promptly thereafter); and (D) supply to each other copies of all correspondence, filings or written communications (and memoranda setting forth the substance thereof) and a summary of the material contents of any oral communications to or from such Party or its Affiliates and any Governmental Authority or staff members thereof, with respect to the transactions contemplated by this Agreement and relating to the HSR Act, except to the extent prohibited by applicable laws or the instructions of such Governmental Authority.
(iii) Buyer shall not “pull-and-refile” pursuant to 16 C.F.R. 803.12 or otherwise withdraw any filing under the HSR Act and refile it unless Seller has consented in writing in advance to such withdrawal and refiling, and Buyer shall not extend any waiting period under the HSR Act except with the prior written consent of Seller.
(iv) Each Party shall use commercially reasonable efforts to avoid or eliminate any impediment under the HSR Act with respect to the transactions contemplated by this Agreement; provided, however, that nothing contained in this Agreement, including this Section 6.03, shall be construed so as to require: (A) any Party or any of its Affiliates to commence any litigation against any Governmental Authority in order to facilitate the consummation of the transactions contemplated by this Agreement; (B) any of the Seller Parties and their respective Affiliates to proffer to, or agree to, hold separate or divest any of its assets or agree to limit its future activities, method or place of doing business, other than the Company’s assets, future activities or method or place of doing business (provided, further, that nothing contained in this Agreement shall be construed to require the Seller Parties or the Company to proffer to, or agree to, hold separate or divest any of the Company’s assets or agree to limit the Company’s future activities, method or place of doing business unless the effectiveness of such action is conditioned upon the Closing); or (C) Buyer or any of its Affiliates to proffer to, or agree to, hold separate or divest any of its assets or agree to limit its future activities, method or place of doing business, other than the Company’s assets, future activities or method or place of doing business (provided, further, that (x) nothing contained in this Agreement shall be construed to require Buyer to proffer to, or agree to, hold separate or divest any of the Company’s assets or agree to limit the Company’s future activities, method or place of doing business if such action would, individually or in the aggregate, reasonably be expected to have a material adverse effect on the financial condition, assets, liabilities, business operations or results of operations of the Company and (y) Buyer shall not take or agree to take any such action with respect to the contraryCompany’s assets, future activities or method or place of doing business unless it is conditioned upon the restrictions and obligations set forth in this Section 5.3(b) shall not apply to or be binding upon BRPA’s Affiliates, the Sponsor, their respective Affiliates or any investment funds or investment vehicles affiliated with, or managed or advised by, BRPA’s Affiliates, the Sponsor, or any portfolio company (as such term is commonly understood in the private equity industry) or investment of BRPA’s Affiliates, the Sponsor, or of any such investment fund or investment vehicleClosing).
Appears in 1 contract
Samples: Stock Purchase Agreement (American Eagle Outfitters Inc)
HSR Act. (a) If required Each party hereto shall use its commercially reasonable ------- efforts to obtain all authorizations, consents, orders and approvals of, and to give all notices and to make all filings with, all Governmental Agencies and other third parties that may be or become necessary for its execution and delivery of, and the performance of its obligations pursuant to, this Agreement, and each party will cooperate fully, to the extent commercially reasonable, with the other party in promptly seeking to obtain all such authorizations, consents, orders and approvals, giving such notices, and making such filings. Each party hereto agrees to make an appropriate filing of a Notification and Report Form pursuant to the HSR Act with respect to the transactions contemplated hereby within five days of the date of this Agreement and to supply as promptly as practicable any additional information and documentary material that may be requested pursuant to the HSR Act. The parties hereto agree not to take any action that will have the effect of unreasonably delaying, as impairing or impeding the receipt of any required authorizations, consents, orders or approvals; provided that in no event shall -------- the foregoing provisions of this sentence require the parties to act in a manner that is not commercially reasonable. Each party shall promptly as practicablenotify the other party of any material communication to that party from any Governmental Agency and consult with the other party regarding any proposed communication to any Governmental Agency in respect of any filings, BRPA investigation or other inquiry and to the extent appropriate give the other party the opportunity to attend and participate thereat. Subject to the Confidentiality Agreement referred to in Section 9.2.3, and the Company shall use reasonable best efforts to joint defense privilege, each party will coordinate and cooperate fully with the other in providing and exchanging such information (aeither directly or through counsel) each prepare and file providing such assistance as the notification required of it thereunder other may reasonably request in connection with the Merger as soon as reasonably practicable but no later than twenty (20) Business Days following January 14, 2021, (b) foregoing. Each party agrees to use its commercially reasonable efforts to respond promptly to and in good faith respond to all comply fully with any request for additional information requested of it by the Federal Trade Commission and Department of Justice in connection with such notification and otherwise cooperate in good faith with each other and such Governmental Entities, (c) each request early termination of any waiting period or documents under the HSR Act, and (d) submit, as soon as practicable, any Act or other required applications or filings pursuant to any Antitrust Laws and furnish applicable Laws. Subject to the other Party as promptly as reasonably practicable all information required for any application or other filing required Confidentiality Agreement referred to be made pursuant to any Antitrust Law. BRPA in Section 9.2.3 and the Company shall substantially comply with any information joint defense privilege, counsel for the parties may exchange correspondence, filings or document requests by communications (or memoranda setting forth the Federal Trade Commission or the Department of Justice in connection with the Merger. BRPA and the Company shall (isubstance thereof) promptly inform the other of any substantive communication to or from the Federal Trade Commission, the Department of Justice or any other Governmental Entity regarding the Merger and permit counsel to the other Party an opportunity to review in advance, and each Party shall consider in good faith the views of such counsel in connection with, any proposed written communications by such Party to any Governmental Entity concerning the Merger, (ii) give the other prompt notice of the commencement of any judicial or administrative action, suit, litigation, arbitration, proceeding by or before any Governmental Entity with respect to such transactions, and (iii) keep the other reasonably informed as to the status of any such action. Each Party agrees to provide, to the extent permitted by the applicable Governmental Entity, the other Party and its counsel the opportunity, on reasonable advance notice, to participate in any substantive meetings or discussions, either in person or by telephone, between such Party and/or party or any of its Affiliates, agents or advisorsrepresentatives, on the one hand, and any Governmental EntityAgency or members of its staff, on the other hand, concerning or in connection with the Merger; provided, neither Party shall extend any waiting period or comparable period under the HSR Act or enter into any agreement with any Governmental Entity without the written consent of the other Party. Any materials exchanged in connection with this Section 5.3 may be redacted or withheld as necessary to address reasonable privilege or confidentiality concerns of legal counsel of the Company, and to remove references concerning the valuation of the Company or other competitively sensitive material; provided, that the Company may, as it deems advisable and necessary, designate any materials provided to the BRPA under this Section 5.3 as “outside counsel only.” Filing fees with respect to the notifications required under the HSR Act shall be paid by the Company.
(b) BRPA shall not, this Agreement and shall cause its Subsidiaries not to, acquire or agree to acquire, by merging with or into or consolidating with, or by purchasing a portion of the assets of or equity in, or by any other manner, any business or any corporation, partnership, association or other business organization or division thereof, or otherwise acquire or agree to acquire any assets, or take any other action, if the entering into of a definitive agreement relating to, or the consummation of such acquisition, merger or consolidation, or the taking of any other action, would reasonably be expected to (i) impose any material delay in the obtaining of, or materially increase the risk of not obtaining, any authorizations, consents, orders or declarations of any Governmental Entities or the expiration or termination of any applicable waiting period; (ii) materially increase the risk of any Governmental Entity entering an order prohibiting the consummation of the transaction contemplated hereby; (iii) materially increase the risk of not being able to remove any such order on appeal or otherwise; or (iv) materially delay or prevent the consummation of the transactions contemplated hereby. Notwithstanding anything in this Agreement to the contrary, the restrictions and obligations set forth in this Section 5.3(b) shall not apply to or be binding upon BRPA’s Affiliates, the Sponsor, their respective Affiliates or any investment funds or investment vehicles affiliated with, or managed or advised by, BRPA’s Affiliates, the Sponsor, or any portfolio company (as such term is commonly understood in the private equity industry) or investment of BRPA’s Affiliates, the Sponsor, or of any such investment fund or investment vehicle.
Appears in 1 contract
HSR Act. (a) If required pursuant to the HSR Act, as promptly as practicable, BRPA and the Company shall use reasonable best efforts to (a) each prepare and file the notification required of it thereunder in connection with the Merger as soon as reasonably practicable but no later than twenty (20) Business Days following January 14, 2021, (b) promptly and in good faith respond to all information requested of it by the Federal Trade Commission and Department of Justice in connection with such notification and otherwise cooperate in good faith with each other and such Governmental Entities, (c) each request early termination of any waiting period under the HSR Act, and (d) submit, as soon as practicable, any other required applications or filings pursuant to any Antitrust Laws and furnish to the other Party as promptly as reasonably practicable all information required for any application or other filing required to be made pursuant to any Antitrust Law. BRPA and the Company shall substantially comply with any information or document requests by the Federal Trade Commission or the Department of Justice in connection with the Merger. BRPA and the Company Each party hereto shall (i) take promptly inform ------- all actions necessary to make the other filings required of any substantive communication to or from the Federal Trade Commission, the Department of Justice it or any other Governmental Entity regarding the Merger and permit counsel to the other Party an opportunity to review in advance, and each Party shall consider in good faith the views of such counsel its affiliates under any applicable Antitrust Laws in connection with, any proposed written communications by such Party to any Governmental Entity concerning with this Agreement and the Mergertransactions contemplated hereby, (ii) give comply at the other prompt notice earliest practicable date with any formal or informal request for additional information or documentary material received by it or any of the commencement of its affiliates from any judicial or administrative action, suit, litigation, arbitration, proceeding by or before any Governmental Entity with respect to such transactions, Antitrust Authority and (iii) keep the other reasonably informed as to the status of any such action. Each Party agrees to provide, to the extent permitted by the applicable Governmental Entity, the other Party and its counsel the opportunity, on reasonable advance notice, to participate in any substantive meetings or discussions, either in person or by telephone, between such Party and/or any of its Affiliates, agents or advisors, on the cooperate with one hand, and any Governmental Entity, on the other hand, concerning or another in connection with the Merger; provided, neither Party shall extend any waiting period or comparable period filing under the HSR Act or enter into any agreement with any Governmental Entity without the written consent of the other Party. Any materials exchanged applicable Antitrust Laws and in connection with this Section 5.3 may be redacted resolving any investigation or withheld as necessary to address reasonable privilege or confidentiality concerns of legal counsel of the Company, and to remove references other inquiry concerning the valuation of the Company or other competitively sensitive material; provided, that the Company may, as it deems advisable and necessary, designate transactions contemplated by this Agreement initiated by any materials provided to the BRPA under this Section 5.3 as “outside counsel only.” Filing fees with respect to the notifications required under the HSR Act shall be paid by the CompanyAntitrust Authority.
(b) BRPA Each party hereto shall notuse its reasonable best efforts to resolve such objections, if any, as may be asserted with respect to the transactions contemplated by this Agreement under any Antitrust Law. Without limiting the generality of the foregoing, "reasonable best efforts" shall include, without limitation:
(i) in the case of each of Parent and the Company:
(A) filing with the appropriate Antitrust Authorities no later than the fifth (5th) day following the date hereof a Notification and Report Form with respect to the transactions contemplated by this Agreement; and
(B) if Parent or the Company receives a formal request for information and documents from an Antitrust Authority, substantially complying with such formal request within 60 days following the date of its receipt thereof or such shorter period as is required by applicable Antitrust Laws; and
(ii) in the case of the Company only, subject to Parent's compliance with clause (i) above, not frustrating or impeding Parent's strategy or negotiating positions with any Antitrust Authority, provided that in no -------- ---- event shall cause Parent or any of its Subsidiaries not tosubsidiaries be required to agree or commit to divest, acquire hold separate, offer for sale, abandon, limit its operation of or agree take similar action with respect to acquireany assets (tangible or intangible) or any business interest of it or any of its subsidiaries (including, by merging without limitation, the Surviving Corporation after consummation of the Offer or the Merger) in connection, with or into as a condition to receiving the consent or consolidating with, or by purchasing a portion of the assets of or equity in, or by any other mannerapproval of, any business or Antitrust Authority.
(c) Each party hereto shall promptly inform the other parties of any corporation, partnership, association or other business organization or division thereof, or otherwise acquire or agree to acquire any assets, or take any other action, if the entering into of a definitive agreement relating material communication made to, or the consummation of received by such acquisitionparty from, merger any Antitrust Authority or consolidation, or the taking of any other action, would reasonably be expected to (i) impose governmental or regulatory authority regarding any material delay in the obtaining of, or materially increase the risk of not obtaining, any authorizations, consents, orders or declarations of any Governmental Entities or the expiration or termination of any applicable waiting period; (ii) materially increase the risk of any Governmental Entity entering an order prohibiting the consummation of the transaction contemplated hereby; (iii) materially increase the risk of not being able to remove any such order on appeal or otherwise; or (iv) materially delay or prevent the consummation of the transactions contemplated hereby. Notwithstanding anything in this Agreement to the contrary, the restrictions and obligations set forth in this Section 5.3(b) shall not apply to or be binding upon BRPA’s Affiliates, the Sponsor, their respective Affiliates or any investment funds or investment vehicles affiliated with, or managed or advised by, BRPA’s Affiliates, the Sponsor, or any portfolio company (as such term is commonly understood in the private equity industry) or investment of BRPA’s Affiliates, the Sponsor, or of any such investment fund or investment vehicle.
Appears in 1 contract
Samples: Merger Agreement (Getronics N V)
HSR Act. The Company and the Purchaser will as promptly as practicable, but in no event later than five (a5) If Business Days following the execution and delivery of this Agreement, file with the United States Federal Trade Commission (the “FTC”) and the United States Department of Justice (the “DOJ”) the notification and report form, if any, required for the Transactions and any supplemental information requested in connection therewith pursuant to the HSR Act, as promptly as practicable, BRPA . Any such notification and report form and supplemental information will be in substantial compliance with the requirements of the HSR Act. The Company and the Purchaser shall furnish to the other such necessary information and reasonable assistance as the other may request in connection with its preparation of any filing or submission which is necessary under the HSR Act. Each of the Company shall and Purchaser will use such Party’s reasonable best efforts to (a) each prepare obtain any clearance required under the HSR Act for the Transactions and file the notification required of it thereunder in connection with the Merger as soon as reasonably practicable but no later than twenty (20) Business Days following January 14, 2021, (b) promptly and in good faith respond to all information requested of it by the Federal Trade Commission and Department of Justice in connection with such notification and otherwise cooperate in good faith with each other and such Governmental Entities, (c) each request early termination of any and a waiver from the applicable waiting period under the HSR ActAct and any similar foreign laws and regulations. Notwithstanding the foregoing, (i) Purchaser shall not be required to (A) consent to the divestiture, license or other disposition or holding separate (through the establishment of a trust or otherwise) of any of its or its Affiliates’ assets or any assets of the Company or (B) consent to any other structural or conduct remedy or enter into any settlement or agree to any Order regarding antitrust matters respecting the Transactions and (ii) Purchaser and its Affiliates shall have no obligation to contest, administratively or in court, any ruling, order or other action of any Governmental Entity or any other Person respecting the Transactions. The Company and the Purchaser shall keep each other apprised of the status of any communications with, and (d) submitinquiries or requests for additional information from, as soon as practicable, the FTC and the DOJ and shall comply promptly with any other required applications such inquiry or filings pursuant to any Antitrust Laws and furnish request. In addition to the other Party as promptly as reasonably practicable all information required for any application or other filing required to be made pursuant to any Antitrust Law. BRPA foregoing, the Company and the Company Purchaser shall substantially comply with any information additional requests for information, including requests for production of documents and production of witnesses for interviews or document requests depositions, by any antitrust authority. If necessary, the Federal Trade Commission or the Department of Justice in connection with the Merger. BRPA Company and the Company Purchaser shall (i) promptly inform the other of any substantive communication to or from the Federal Trade Commission, the Department of Justice or any other Governmental Entity regarding the Merger and permit counsel to the other Party an opportunity to review in advance, and each Party shall consider in good faith the views of such counsel in connection with, any proposed written communications by such Party to any Governmental Entity concerning the Merger, (ii) give the other prompt notice of the commencement of any judicial or administrative action, suit, litigation, arbitration, proceeding by or before any Governmental Entity with respect to such transactions, and (iii) keep the other reasonably informed as to the status of any such action. Each Party agrees to provide, to the extent permitted by the applicable Governmental Entity, the other Party and its counsel the opportunity, on reasonable advance notice, to participate in any substantive meetings or discussions, either in person or by telephone, between such Party and/or any of its Affiliates, agents or advisors, on the one hand, and any Governmental Entity, on the other hand, concerning or in connection with the Merger; provided, neither Party shall extend any waiting period or comparable period under the HSR Act or enter into any agreement file with any Governmental applicable foreign Government Entity without the written consent of the other Party. Any materials exchanged in connection with this Section 5.3 may be redacted any required notifications under applicable foreign antitrust or withheld as necessary to address reasonable privilege or confidentiality concerns of legal counsel of the Company, and to remove references concerning the valuation of the Company or other competitively sensitive material; provided, that the Company may, as it deems advisable and necessary, designate any materials provided to the BRPA under this Section 5.3 as “outside counsel onlycompetition Law.” Filing fees with respect to the notifications required under the HSR Act shall be paid by the Company.
(b) BRPA shall not, and shall cause its Subsidiaries not to, acquire or agree to acquire, by merging with or into or consolidating with, or by purchasing a portion of the assets of or equity in, or by any other manner, any business or any corporation, partnership, association or other business organization or division thereof, or otherwise acquire or agree to acquire any assets, or take any other action, if the entering into of a definitive agreement relating to, or the consummation of such acquisition, merger or consolidation, or the taking of any other action, would reasonably be expected to (i) impose any material delay in the obtaining of, or materially increase the risk of not obtaining, any authorizations, consents, orders or declarations of any Governmental Entities or the expiration or termination of any applicable waiting period; (ii) materially increase the risk of any Governmental Entity entering an order prohibiting the consummation of the transaction contemplated hereby; (iii) materially increase the risk of not being able to remove any such order on appeal or otherwise; or (iv) materially delay or prevent the consummation of the transactions contemplated hereby. Notwithstanding anything in this Agreement to the contrary, the restrictions and obligations set forth in this Section 5.3(b) shall not apply to or be binding upon BRPA’s Affiliates, the Sponsor, their respective Affiliates or any investment funds or investment vehicles affiliated with, or managed or advised by, BRPA’s Affiliates, the Sponsor, or any portfolio company (as such term is commonly understood in the private equity industry) or investment of BRPA’s Affiliates, the Sponsor, or of any such investment fund or investment vehicle.
Appears in 1 contract
HSR Act. With respect to the transactions contemplated herein, each applicable Party will (aor will cause its applicable Affiliate to), within seven Business Days after the Signing Date (or sooner, to the extent required by Applicable Law), file with the United States Federal Trade Commission (the “FTC”) If and the United States Department of Justice (the “DOJ”) the required notification and report form pursuant to the HSR ActAct and related requirements. Thereafter, as promptly as practicable, BRPA each applicable Party will (or will cause its applicable Affiliate to) submit and the Company shall use reasonable best efforts to (a) each prepare and file the notification required of it thereunder otherwise provide any supplemental or additional information reasonably requested in connection with the Merger as soon as reasonably practicable but no later than twenty (20) Business Days following January 14therewith pursuant to such Applicable Laws, 2021including any reasonable request for additional information or documentary material pursuant to 16 C.F.R. § 803.20. Such actions will comply, (b) promptly and in good faith respond to all information requested of it by the Federal Trade Commission and Department of Justice in connection material respects, with such notification Applicable Laws. Buyer will pay when due all filing and otherwise cooperate in good faith with each other and such Governmental Entities, (c) each request early termination of any waiting period submission fees under the HSR Act. Each applicable Party will furnish, and (d) submitor cause to be furnished, as soon as practicable, any other required applications or filings pursuant to any Antitrust Laws and furnish to the other Party any necessary information and reasonable assistance as promptly as the other may reasonably practicable all information required for any application or other filing required to be made pursuant to any Antitrust Law. BRPA and the Company shall substantially comply with any information or document requests by the Federal Trade Commission or the Department of Justice request in connection with the Merger. BRPA and the Company shall (i) promptly inform the other its preparation of any substantive communication to filing or from the Federal Trade Commission, the Department of Justice or any other Governmental Entity regarding the Merger and permit counsel to the other submission necessary under such Applicable Laws. Each applicable Party an opportunity to review in advance, and each Party shall consider in good faith the views of such counsel in connection with, any proposed written communications by such Party to any Governmental Entity concerning the Merger, (ii) give the other prompt notice of the commencement of any judicial or administrative action, suit, litigation, arbitration, proceeding by or before any Governmental Entity with respect to such transactions, and (iii) will keep the other Parties reasonably informed as to the status of any such action. Each Party agrees to provideinformed, to the extent permitted by Applicable Laws, of the applicable status of any communications with, and inquiries or requests for additional information from, the FTC, DOJ or any other Governmental EntityAuthority, and, except as provided below in this Section 5.1(a), will use its reasonable best efforts (and, if applicable, cause its appropriate Affiliate to) and act in good faith and reasonably cooperate with the other Party and its counsel the opportunity, on reasonable advance notice, to participate in any substantive meetings or discussions, either in person or by telephone, between such Party and/or any of its Affiliates, agents or advisors, on the one hand, and any Governmental Entity, on the other hand, concerning or in connection with the Merger; providedany Antitrust Filings and in connection with resolving any investigation, neither Party shall extend request for information or other inquiry of any waiting period such agency or comparable period other Governmental Authority under the HSR Act or enter into any agreement with any Governmental Entity without the written consent of the other Party. Any materials exchanged in connection with this Section 5.3 may be redacted or withheld as necessary to address reasonable privilege or confidentiality concerns of legal counsel of the Company, and to remove references concerning the valuation of the Company or other competitively sensitive material; provided, that the Company may, as it deems advisable and necessary, designate any materials provided to the BRPA under this Section 5.3 as “outside counsel only.” Filing fees with respect to such filing, this Agreement or the notifications transactions contemplated hereby. Each applicable Party will (and, if applicable, will cause its appropriate Affiliate to) act in good faith to request and pursue early termination of the waiting period required under the HSR Act Act. Notwithstanding anything to the contrary set forth in this Agreement, including Section 5.1, none of Buyer, Merger Sub or any of their Subsidiaries shall be paid by the Company.
(b) BRPA shall notrequired to, and the Company shall cause its not (and shall not permit any of the Company Subsidiaries not to), without the prior written consent of Buyer, become subject to, acquire consent to, or offer or agree to acquire, by merging with or into or consolidating with, or by purchasing a portion of the assets of or equity in, or by any other manner, any business or any corporation, partnership, association or other business organization or division thereofto, or otherwise acquire or agree to acquire any assets, or take any other action, if the entering into of a definitive agreement relating action with respect to, any requirement, condition, limitation, understanding, agreement or the consummation of such acquisition, merger or consolidation, or the taking of any other action, would reasonably be expected order to (i) impose any material delay in the obtaining ofsell, license, assign, transfer, divest, hold separate or materially increase the risk of not obtaining, any authorizations, consents, orders or declarations otherwise dispose of any Governmental Entities assets, business or the expiration or termination portion of business of any applicable waiting period; of the Acquired Companies, the Surviving Corporation, Buyer, Merger Sub or any of their respective Subsidiaries, (ii) materially increase conduct, restrict, operate, invest or otherwise change the risk assets, business or portion of business of any Governmental Entity entering an order prohibiting the consummation of the transaction contemplated hereby; Acquired Companies, the Surviving Corporation, Buyer, Merger Sub or any of their respective Subsidiaries in any manner, (iii) materially increase impose any restriction, requirement or limitation on the risk operation of not being able to remove the business or portion of the business of any of the Acquired Companies, the Surviving Corporation, Buyer, Merger Sub or any of their respective Subsidiaries; provided that, if requested by Buyer, the Company shall (and shall cause the Company Subsidiaries to) become subject to, consent to, or offer or agree to, or otherwise take any action with respect to, any such requirement, condition, limitation, understanding, agreement or order so long as such requirement, condition, limitation, understanding, agreement or order is only binding on appeal the Company or otherwise; any of the Company Subsidiaries in the event the Closing occurs, or (iv) materially delay modify or prevent the consummation waive any of the transactions contemplated herebyterms or conditions of this Agreement. Notwithstanding anything in this Agreement to the contrary, the restrictions and obligations contrary set forth in this Agreement, including Section 5.3(b5.1, none of Buyer, Merger Sub or any of their Affiliates shall be required to file, take, defend, contest or resist any action or proceeding, whether judicial or administrative (or to take any action to have vacated, lifted, reversed or overturned any order, writ, assessment, decision, injunction, decree, ruling or judgment) shall not apply to of or be binding upon BRPA’s Affiliatesagainst a Governmental Authority, whether temporary, preliminary or permanent, in connection with the transactions contemplated by this Agreement. For the avoidance of doubt, the Sponsor, their respective Affiliates or any investment funds or investment vehicles affiliated with, or managed or advised by, BRPA’s Affiliates, Sellers’ Representative is not an “applicable Party” for the Sponsor, or any portfolio company (as such term is commonly understood in the private equity industry) or investment purposes of BRPA’s Affiliates, the Sponsor, or of any such investment fund or investment vehiclethis Section 5.1(a).
Appears in 1 contract
HSR Act. As promptly as practicable after the date of this Agreement and in any event within ten (a10) If Business Days, Parent and the Company shall, if required pursuant to by the HSR Act, as promptly as practicable, BRPA and the Company shall use reasonable best efforts to (a) each prepare and file the notification required of it thereunder under the HSR Act in connection with the Merger as soon as reasonably practicable but no later than twenty (20) Business Days following January 14, 2021, (b) Transactions and shall promptly and in good faith respond to all information requested of it by the U.S. Federal Trade Commission and U.S. Department of Justice in connection with such notification and otherwise cooperate in good faith with each other and such Governmental Entities, (c) each . Each Party will promptly furnish to the other such information and assistance as the other may reasonably request early termination in connection with its preparation of any waiting period filing or submission that is necessary under the HSR Act, Act and (d) submit, will take all other actions necessary or desirable to cause the expiration or termination of the applicable waiting periods as soon as practicable, any other required applications or filings pursuant to any Antitrust Laws and furnish to the other Party as promptly as reasonably practicable all information required for any application or other filing required to be made pursuant to any Antitrust Law. BRPA and the Company shall substantially comply with any information or document requests by the Federal Trade Commission or the Department of Justice in connection with the Merger. BRPA and the Company shall (i) promptly inform the other of any substantive communication to or from the Federal Trade Commission, the Department of Justice or any other Governmental Entity regarding the Merger and permit counsel to the other Party an opportunity to review in advance, and each Party shall consider in good faith the views of such counsel in connection with, any proposed written communications by such Party to any Governmental Entity concerning the Merger, (ii) give the other prompt notice of the commencement of any judicial or administrative action, suit, litigation, arbitration, proceeding by or before any Governmental Entity with respect to such transactions, and (iii) keep the other reasonably informed as to the status of any such action. Each Party agrees to provide, to the extent permitted by the applicable Governmental Entity, will promptly provide the other Party with copies of all written communications (and its counsel memoranda setting forth the opportunitysubstance of all oral communications) between each of them, on reasonable advance notice, to participate in any substantive meetings or discussions, either in person or by telephone, between such Party and/or any of its Affiliatestheir Affiliates and their respective agents, agents or representatives and advisors, on the one hand, and any Governmental Entity, on the other hand, with respect to this Agreement or the Transactions. Without limiting the foregoing, Parent and the Company shall: (a) promptly inform the other of any communication to or from the U.S. Federal Trade Commission, the U.S. Department of Justice or any other Governmental Entity regarding the Transactions; (b) permit each other to review in advance any proposed written communication to any such Governmental Entity and incorporate reasonable comments thereto; (c) give the other prompt written notice of the commencement of any Legal Proceeding with respect to such transactions; (d) not agree to participate in any substantive meeting or discussion with any such Governmental Entity in respect of any filing, investigation or inquiry concerning this Agreement or the Transactions unless, to the extent reasonably practicable, it consults with the other Party in advance and, to the extent permitted by such Governmental Entity, gives the other Party the opportunity to attend; (e) keep the other reasonably informed as to the status of any such Legal Proceeding; and (f) promptly furnish each other with copies of all correspondence, filings (except for filings made under the HSR Act) and written communications between such Party and their Affiliates and their respective agents, representatives and advisors, on one hand, and any such Governmental Entity, on the other hand, in each case, with respect to this Agreement and the Transactions. Parent, on the one hand, and the Company, on the other hand, shall each pay 50% of any filing fees required by Governmental Entities, including with respect to any registrations, declarations and filings required in connection with the Merger; providedexecution, neither Party shall extend any waiting period or comparable period under delivery and performance of this Agreement, the HSR Act or enter into any agreement with any Governmental Entity without the written consent performance of the other Party. Any materials exchanged in connection with this Section 5.3 may be redacted or withheld as necessary to address reasonable privilege or confidentiality concerns of legal counsel of the Company, obligations hereunder and to remove references concerning the valuation of the Company or other competitively sensitive material; provided, that the Company may, as it deems advisable and necessary, designate any materials provided to the BRPA under this Section 5.3 as “outside counsel only.” Filing fees with respect to the notifications required under the HSR Act shall be paid by the Company.
(b) BRPA shall not, and shall cause its Subsidiaries not to, acquire or agree to acquire, by merging with or into or consolidating with, or by purchasing a portion of the assets of or equity in, or by any other manner, any business or any corporation, partnership, association or other business organization or division thereof, or otherwise acquire or agree to acquire any assets, or take any other action, if the entering into of a definitive agreement relating to, or the consummation of such acquisition, merger or consolidation, or the taking of any other action, would reasonably be expected to (i) impose any material delay in the obtaining of, or materially increase the risk of not obtaining, any authorizations, consents, orders or declarations of any Governmental Entities or the expiration or termination of any applicable waiting period; (ii) materially increase the risk of any Governmental Entity entering an order prohibiting the consummation of the transaction contemplated hereby; (iii) materially increase Transactions, including filing fees in connection with filings under the risk of not being able to remove any such order on appeal or otherwise; or (iv) materially delay or prevent the consummation of the transactions contemplated hereby. Notwithstanding anything in this Agreement to the contrary, the restrictions and obligations set forth in this Section 5.3(b) shall not apply to or be binding upon BRPA’s Affiliates, the Sponsor, their respective Affiliates or any investment funds or investment vehicles affiliated with, or managed or advised by, BRPA’s Affiliates, the Sponsor, or any portfolio company (as such term is commonly understood in the private equity industry) or investment of BRPA’s Affiliates, the Sponsor, or of any such investment fund or investment vehicleHSR Act.
Appears in 1 contract
HSR Act. 5.7.1 Each of Bergen and PharMerica shall (aA) If make or cause to be made the filings required pursuant of such party or any of its subsidiaries or affiliates under the HSR Act with respect to the HSR Act, transactions contemplated hereby as promptly as practicable, BRPA practicable and in any event within five business days after the Company shall use reasonable best efforts to (a) each prepare and file the notification required date of it thereunder in connection with the Merger as soon as reasonably practicable but no later than twenty (20) Business Days following January 14, 2021this Agreement, (bB) promptly and in good faith respond to all information requested comply at the earliest practicable date with any request under the HSR Act for additional information, documents, or other materials received by such party or any of it by its subsidiaries from the Federal Trade Commission and or the Department of Justice or any other Governmental Authority in respect of such filings or such transactions, and (C) cooperate with the other party in connection with any such notification filing (including without limitation the exchange between the parties, or where prudent, between the outside counsel of the parties, of relevant materials prior to the filing of such materials, provided that nothing herein shall obligate a party hereto to waive attorney-client protections or similar protections, and, if requested, to accept all reasonable additions, deletions or changes suggested in connection therewith) and otherwise cooperate in good faith connection with each resolving any investigation or other and such Governmental Entities, (c) each request early termination inquiry of any waiting period such agency or other Governmental Authority under the HSR Act, and (d) submit, as soon as practicable, any other required applications or filings pursuant to any Antitrust Laws and (as hereinafter defined) with respect to any such filing or any such transaction. Each party shall use all reasonable efforts to furnish to the each other Party as promptly as reasonably practicable all information required for any application or other filing required to be made pursuant to any Antitrust Law. BRPA and the Company shall substantially comply with any information or document requests by the Federal Trade Commission or the Department of Justice Applicable Law in connection with the Merger. BRPA Merger and the Company other transactions contemplated by this Agreement. Each party shall (i) promptly inform the other party of any substantive communication to or from the Federal Trade Commission, the Department of Justice or any other Governmental Entity regarding the Merger and permit counsel to the other Party an opportunity to review in advancewith, and each Party shall consider in good faith the views of such counsel in connection any proposed understanding, undertaking, or agreement with, any proposed written communications by Governmental Authority regarding any such Party to filings or any such transaction. Neither party shall independently participate in any formal meeting with any Governmental Entity concerning Authority in respect of any filing, investigation or other inquiry relating to the Merger, (ii) give Merger without giving the other prompt party prior notice of the commencement of any judicial or administrative action, suit, litigation, arbitration, proceeding by or before any Governmental Entity with respect to such transactions, and (iii) keep the other reasonably informed as to the status of any such action. Each Party agrees to providemeeting and, to the extent permitted by the applicable such Governmental EntityAuthority, the opportunity to attend and/or participate. The parties hereto will consult and cooperate with one another, in connection with any analyses, appearances, presentations, memoranda, briefs, arguments, opinions and proposals made or submitted by or on behalf of any party hereto in connection with proceedings relating to the Merger under or relating to the HSR Act or other Party Antitrust Laws.
5.7.2 Each of Bergen and its counsel PharMerica shall use all reasonable efforts to resolve such objections, if any, as may be asserted by any Governmental Authority with respect to the opportunitytransactions contemplated by this Agreement under the HSR Act, on reasonable advance noticethe Xxxxxxx Act, to participate in any substantive meetings or discussionsas amended, either in person or by telephonethe Xxxxxxx Antitrust Act, between such Party and/or any of its Affiliatesas amended, agents or advisorsthe Federal Trade Commission Act, on the one handas amended, and any Governmental Entityother federal, on state or foreign statues, rules, regulations, orders, decrees, guidelines, administrative or judicial doctrines or other laws that are designed to prohibit, restrict or regulate actions having the purpose or effect of monopolization or restraint of trade or competition (collectively, "Antitrust Laws"). In connection therewith and subject to Section 5.7.3, if any administrative or judicial action or proceeding is instituted (or threatened to be instituted) challenging any transaction contemplated by this Agreement as violative of any Antitrust Law, each of Bergen and PharMerica shall cooperate and use all reasonable efforts vigorously to contest and resist any such action or proceeding, including without limitation any legislative, administrative or judicial action, and to have vacated, lifted, reversed, or overturned any decree, judgment, injunction or other handorder whether temporary, concerning preliminary or permanent (each an "Order"), that is in connection effect and that prohibits, prevents, or restricts consummation of the Merger or any other transactions contemplated by this Agreement, including, without limitation, by vigorously pursuing all available avenues of administrative and judicial appeal and all available legislative action, unless by mutual agreement Bergen and PharMerica decide that any such action is not in their respective best interests. Notwithstanding the foregoing or any other provision of this Agreement, nothing in this Section 5.7 shall limit a party's right to terminate this Agreement pursuant to Section 7.1, so long as such party has up to then complied in all material respects with its obligations under this Section 5.7. Each of Bergen and PharMerica shall use all reasonable efforts to take such action as may be required to cause the Merger; provided, neither Party shall extend any early termination or expiration of the waiting period or comparable period periods under the HSR Act or enter into any agreement with any Governmental Entity without the written consent of the other Party. Any materials exchanged in connection with this Section 5.3 may be redacted or withheld as necessary to address reasonable privilege or confidentiality concerns of legal counsel of the Company, and to remove references concerning the valuation of the Company or other competitively sensitive material; provided, that the Company may, as it deems advisable and necessary, designate any materials provided to the BRPA under this Section 5.3 as “outside counsel only.” Filing fees Antitrust Laws with respect to such transactions as promptly as possible after the notifications execution of this Agreement.
5.7.3 If required to avoid a Governmental Authority instituting an action challenging the transactions contemplated by this Agreement under the HSR Act shall be paid Antitrust Laws and seeking to enjoin or prohibit the consummation of any of the transactions contemplated by this Agreement (or if required to settle any such action previously instituted by a Governmental Authority), Bergen shall, and, at the Company.
(b) BRPA shall notdirection of Bergen, PharMerica shall, propose, negotiate, commit to and shall cause its Subsidiaries not to, acquire or agree to acquireeffect, by merging with or into or consolidating withconsent decree, hold separate order, or by purchasing a portion otherwise, the sale, divestiture or disposition of the assets any of their respective businesses or equity in, or by any other manner, any business or any corporation, partnership, association or other business organization or division thereof, or otherwise acquire or agree to acquire any assets, or take or agree to take any other action, if action or agree to any limitation as may be required in order to avoid the entering into of a definitive agreement relating to, or the consummation of such acquisition, merger or consolidation, or the taking of any other action, would reasonably be expected to (i) impose any material delay in the obtaining entry of, or materially increase to effect the risk of not obtainingdissolution of, any authorizationsinjunction, consentstemporary restraining order or other order in any suit or proceeding, orders which would otherwise have the effect of preventing or declarations delaying the Closing; provided, however, that this Section 5.7.3 shall not require Bergen to take any action if such action, in the reasonable judgment of any Governmental Entities or Bergen's Board of Directors, would be reasonably likely to have a Bergen Material Adverse Effect after the expiration or termination of any applicable waiting period; (ii) materially increase the risk of any Governmental Entity entering an order prohibiting the consummation of the transaction contemplated hereby; (iii) materially increase the risk of not being able Effective Time giving effect to remove any such order on appeal or otherwise; or (iv) materially delay or prevent the consummation of the transactions contemplated hereby. Notwithstanding anything in by this Agreement to the contrary, the restrictions and obligations set forth in this Section 5.3(b) shall not apply to or be binding upon BRPA’s Affiliates, the Sponsor, their respective Affiliates or any investment funds or investment vehicles affiliated with, or managed or advised by, BRPA’s Affiliates, the Sponsor, or any portfolio company (as such term is commonly understood in the private equity industry) or investment of BRPA’s Affiliates, the Sponsor, or of any such investment fund or investment vehicleAgreement.
Appears in 1 contract
HSR Act.
(a) If required Without limiting the generality of anything contained in this Section 6.16, each Party agrees to: (i) within fifteen (15) Business Days of the date of determination that a filing is required, make an appropriate filing of a Notification and Report Form pursuant to the HSR Act, as promptly as practicable, BRPA and the Company shall use reasonable best efforts to Act (a) each prepare and file the notification required of it thereunder in connection with the Merger as soon as reasonably practicable but no later than twenty (20) Business Days following January 14, 2021, (b) promptly and in good faith respond to all information requested of it by the Federal Trade Commission and Department of Justice in connection with such notification and otherwise cooperate in good faith with each other and such Governmental Entities, (c) each request including seeking early termination of any the waiting period under the HSR Act, and (d) submit, as soon as practicable, any other required applications or filings pursuant to any Antitrust Laws and furnish with respect to the other Party transactions contemplated by this Agreement, (ii) supply as promptly as reasonably practicable all any additional information required for any application or other filing required to and documentary material that may be made requested pursuant to any Antitrust Law. BRPA and the Company shall substantially comply with any information or document requests HSR Act by the United States Federal Trade Commission or the United States Department of Justice and (iii) use its commercially reasonable efforts to take or cause to be taken all other actions necessary, proper or advisable consistent with this Section 6.16 to cause the expiration or termination of the applicable waiting periods, or receipt of required authorizations, as applicable, under the HSR Act as soon as practicable. Buyer and the SPAC will be entitled to direct the antitrust defense of the transactions contemplated by this Agreement, or negotiations with, any Governmental Authority or other third party relating to the transactions contemplated by this Agreement or regulatory filings under applicable competition Law, subject to the provisions of this Section 6.16. Seller and each Company will use their reasonable best efforts to provide full and effective support of Buyer and the SPAC in all material respects in all such negotiations and other discussions or actions to the extent requested by Buyer or the SPAC. Seller and each Company will not make any offer, acceptance or counter-offer to or otherwise engage in negotiations or discussions with any Governmental Authority with respect to any proposed settlement, consent decree, commitment or remedy, or, in the event of litigation, discovery, admissibility of evidence, timing or scheduling, except as specifically requested by or agreed with Buyer and the SPAC. Buyer will be responsible for all filing fees in connection with any filings made under the HSR Act pursuant to this Section 6.16. Seller and each Company will not commit to or agree with any Governmental Authority to stay, toll or extend any applicable waiting period under the HSR Act or applicable competition Law, without the prior written consent of Buyer and the SPAC. If any request for additional information and documents, including a “second request” under the HSR Act, is received from any Governmental Authority then the Parties will substantially comply with any such request at the earliest practicable date.
(b) Without limiting the generality of the Parties’ undertakings pursuant to subsections (a) above, each of the Parties will use commercially reasonable efforts to:
(i) respond to any inquiries by any Governmental Authority regarding antitrust or other matters with respect to the transactions contemplated by this Agreement or any ancillary document;
(ii) avoid the imposition of any order or the taking of any action that would restrain, alter or enjoin the transactions contemplated by this Agreement or any ancillary document; and
(iii) in the event any Order adversely affecting the ability of the Parties to consummate the transactions contemplated by this Agreement or any ancillary document has been issued, to have such Order vacated or lifted.
(c) All analyses, appearances, meetings, discussions, presentations, memoranda, briefs, filings, arguments, and proposals made by or on behalf of either Party before any Governmental Authority or the staff or regulators of any Governmental Authority, in connection with the Merger. BRPA transactions contemplated hereunder (but, for the avoidance of doubt, not including any interactions between a Party and any Governmental Authority in the Company shall (i) promptly inform the other ordinary course of business, any substantive communication to or from the Federal Trade Commission, the Department of Justice disclosure which is not permitted by Law or any other Governmental Entity regarding the Merger and permit counsel disclosure containing confidential or privileged information) will be disclosed to the other Party an opportunity to review Parties hereunder in advanceadvance of any filing, submission or attendance, it being the intent that the Parties will consult and cooperate with one another, and each Party shall consider in good faith the views of such counsel one another, in connection withwith any such analyses, appearances, meetings, discussions, presentations, memoranda, briefs, filings, arguments, and proposals. Each Party will give notice to the other Parties with respect to any meeting, discussion, appearance or contact with any Governmental Authority or the staff or regulators of any Governmental Authority, with such notice being sufficient to provide the other Party with the opportunity to attend and participate in such meeting, discussion, appearance or contact.
(d) Notwithstanding the foregoing, nothing in this Section 6.16 will require, or be construed to require, Buyer, the SPAC or any of their Affiliates to agree to (i) sell, hold, divest, discontinue or limit, before or after the Closing Date, any proposed written communications by such Party to assets, businesses or interests of Buyer, the SPAC or any Governmental Entity concerning of its current or potential Affiliates, including those being purchased in the Merger, Other Transactions; (ii) give the other prompt notice of the commencement of any judicial or administrative action, suit, litigation, arbitration, proceeding by or before any Governmental Entity with respect to such transactions, and (iii) keep the other reasonably informed as to the status of any such action. Each Party agrees to provide, to the extent permitted by the applicable Governmental Entity, the other Party and its counsel the opportunity, on reasonable advance notice, to participate in any substantive meetings or discussions, either in person or by telephone, between such Party and/or any of its Affiliates, agents or advisors, on the one hand, and any Governmental Entity, on the other hand, concerning or in connection with the Merger; provided, neither Party shall extend any waiting period or comparable period under the HSR Act or enter into any agreement with any Governmental Entity without the written consent of the other Party. Any materials exchanged in connection with this Section 5.3 may be redacted or withheld as necessary to address reasonable privilege or confidentiality concerns of legal counsel of the Company, and to remove references concerning the valuation of the Company or other competitively sensitive material; provided, that the Company may, as it deems advisable and necessary, designate any materials provided to the BRPA under this Section 5.3 as “outside counsel only.” Filing fees with respect to the notifications required under the HSR Act shall be paid by the Company.
(b) BRPA shall not, and shall cause its Subsidiaries not to, acquire or agree to acquire, by merging with or into or consolidating with, or by purchasing a portion of the assets of or equity in, or by any other manner, any business or any corporation, partnership, association or other business organization or division thereof, or otherwise acquire or agree to acquire any assets, or take any other action, if the entering into of a definitive agreement conditions relating to, or changes or restrictions in, the consummation of such acquisition, merger or consolidation, or the taking operations of any other actionsuch assets, would businesses or interests which, in either case, could reasonably be expected to (i) impose any material delay result in the obtaining of, a Material Adverse Effect or materially increase and adversely impact the risk of not obtaining, any authorizations, consents, orders economic or declarations of any Governmental Entities business benefits to Buyer or the expiration or termination of any applicable waiting period; (ii) materially increase the risk of any Governmental Entity entering an order prohibiting the consummation SPAC of the transaction transactions contemplated herebyby this Agreement and any ancillary documents; (iii) materially increase any material modification or waiver of the risk terms and conditions of not being able to remove any such order on appeal or otherwisethis Agreement; or (iv) materially delay any material modification or prevent the consummation waiver of the transactions contemplated hereby. Notwithstanding anything in this Agreement to the contrary, the restrictions terms and obligations set forth in this Section 5.3(b) shall not apply to or be binding upon BRPA’s Affiliates, the Sponsor, their respective Affiliates or any investment funds or investment vehicles affiliated with, or managed or advised by, BRPA’s Affiliates, the Sponsor, or any portfolio company (as such term is commonly understood in the private equity industry) or investment of BRPA’s Affiliates, the Sponsor, or conditions of any such investment fund of the Other Transactions or investment vehicleterminate any of the Other Transactions.
Appears in 1 contract
Samples: Equity Purchase Agreement
HSR Act. (a) If Each of Buyer and Sellers shall (i) make or cause to be made all filings required pursuant of each of them or any of their respective Affiliates under the HSR Act with respect to the HSR Act, transactions contemplated hereby as promptly as practicablepracticable and, BRPA and the Company shall use reasonable best efforts to in any event, within ten (a) each prepare and file the notification required of it thereunder in connection with the Merger as soon as reasonably practicable but no later than twenty (2010) Business Days following January 14entry of the Sale Order, 2021, (b) promptly and in good faith respond to all information requested of it by the Federal Trade Commission and Department of Justice in connection with such notification and otherwise cooperate in good faith with each other and such Governmental Entities, (c) each request early termination of any the applicable waiting period under the HSR Act, and (d) submit, as soon as practicable, any other required applications or filings pursuant to any Antitrust Laws and furnish to the other Party as promptly as reasonably practicable all information required for any application or other filing required to be made pursuant to any Antitrust Law. BRPA and the Company shall substantially comply with any information or document requests by the Federal Trade Commission or the Department of Justice in connection with the Merger. BRPA and the Company shall (i) promptly inform the other of any substantive communication to or from the Federal Trade Commission, the Department of Justice or any other Governmental Entity regarding the Merger and permit counsel to the other Party an opportunity to review in advance, and each Party shall consider in good faith the views of such counsel in connection with, any proposed written communications by such Party to any Governmental Entity concerning the Mergerthereunder, (ii) give substantially comply at the earliest practicable date with any request under the HSR Act for additional information, documents, or other prompt notice materials received by each of the commencement them or any of any judicial or administrative action, suit, litigation, arbitration, proceeding by or before their respective Affiliates from any Governmental Entity with Authority in respect to of such filings or such transactions, and (iii) keep the cooperate with and assist each other reasonably informed as to the status of in connection with any such action. Each Party agrees to providefiling (including, to the extent permitted by applicable Law, providing copies of all such documents to the applicable Governmental Entitynon-filing Party prior to filing and considering all reasonable additions, the other Party deletions or changes suggested in connection therewith) and its counsel the opportunity, on reasonable advance notice, to participate in any substantive meetings or discussions, either in person or by telephone, between such Party and/or any of its Affiliates, agents or advisors, on the one hand, and any Governmental Entity, on the other hand, concerning or in connection with the Merger; provided, neither Party shall extend resolving any waiting period investigation or comparable period other inquiry of any Governmental Authority under the HSR Act with respect to any such filing or enter into any agreement such transaction. Each Party shall promptly inform the other Party of any oral communication with, and provide copies of written communications with, any Governmental Authority regarding any such filings. No Party shall independently participate in any formal meeting or discussion with any Governmental Entity Authority in respect of any such filings, investigation, or other inquiry without giving the written consent other Party prior notice of the meeting and, to the extent permitted by such Governmental Authority, the opportunity to attend and/or participate. Subject to applicable Law, Buyer and Sellers will consult and cooperate with one another in connection with, and permit the other Party to review and discuss in advance, and will consider the views of the other Party. Any materials exchanged Party in connection with this Section 5.3 may with, any analyses, appearances, presentations, memoranda, briefs, arguments, opinions and proposals to be redacted made or withheld as necessary submitted by or on behalf of any Party relating to address reasonable privilege or confidentiality concerns of legal counsel of proceedings under the Company, HSR Act. Buyer and to remove references concerning the valuation of the Company or other competitively sensitive material; provided, that the Company Sellers may, as it each deems advisable and necessary, reasonably designate any materials competitively sensitive material provided to the BRPA other under this Section 5.3 7.3 as “outside counsel only.” Filing fees with respect Such materials and the information contained therein shall be given only to the notifications outside legal counsel of the recipient and will not be disclosed by such outside counsel to employees, officers, or directors of the recipient, unless express written permission is obtained in advance from the source of the materials. Notwithstanding anything in this Section 7.3 to the contrary, materials provided to the other Party or its outside counsel may be redacted (i) to remove references concerning valuation, (ii) as necessary to comply with contractual arrangements and (iii) as necessary to address reasonable attorney-client or other privilege or confidentiality concerns. Buyer shall pay one hundred percent (100%) of any filing fees in connection with the filings required under the HSR Act Act, which such obligation shall be paid by survive any termination of this Agreement notwithstanding any provisions herein to the Companycontrary.
(b) BRPA Each of Buyer and Sellers shall notuse their commercially reasonable efforts to resolve such objections, if any, as may be asserted by any Governmental Authority with respect to the transactions contemplated by this Agreement under the HSR Act, the Xxxxxxx Act, as amended, the Xxxxxxx Act, as amended, the Federal Trade Commission Act, as amended, and any other United States federal or state or foreign statutes, rules, regulations, orders, decrees, administrative or judicial doctrines or other Laws that are designed to prohibit, restrict or regulate actions having the purpose or effect of monopolization or restraint of trade (collectively, the “Antitrust Laws”). In connection therewith, if any Legal Proceeding is instituted (or threatened to be instituted) challenging any transaction contemplated by this Agreement as in violation of any Antitrust Law, each of Buyer and Sellers shall cause its Subsidiaries not use their commercially reasonable efforts 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 transactions contemplated by this Agreement; provided that, notwithstanding anything to the contrary set forth in this Agreement, in no event shall Sellers, Buyer or their respective Affiliates be required hereunder to (i) proffer to, acquire or agree to, sell, divest, lease, license, transfer, dispose of or otherwise encumber or hold separate and agree to acquiresell, divest, lease, license, transfer, dispose of or otherwise encumber before or after the Closing, any of the Purchased Assets or any material assets, licenses, operations, rights, product lines, services, products, businesses or interest therein owned or operated by merging with Buyer or into any of its Affiliates (or consolidating withto consent to any sale, divestiture, lease, license, transfer, disposition or other encumbrance by any Seller of any of the Purchased Assets or to any agreement by any Seller to take any of the foregoing actions) or to agree to any material change (including through a licensing arrangement) or restriction on, or by purchasing a portion other impairment of Buyer’s ability to own or operate any of the assets of or equity inPurchased Assets, or (ii) initiate or contest and defend any Legal Proceeding challenging any transaction contemplated by any other manner, any business or any corporation, partnership, association or other business organization or division thereof, or otherwise acquire or agree to acquire any assetsthis Agreement, or take any other action, action under this Section 7.3 if the entering into U.S. Department of a definitive agreement relating to, Justice or the consummation of such acquisitionU.S. Federal Trade Commission authorizes its staff to seek a preliminary injunction, merger restraining order or consolidation, or the taking of any other action, would reasonably be expected Legal Proceeding to (i) impose any material delay in the obtaining of, or materially increase the risk of not obtaining, any authorizations, consents, orders or declarations of any Governmental Entities or the expiration or termination of any applicable waiting period; (ii) materially increase the risk of any Governmental Entity entering an order prohibiting the consummation of the transaction contemplated hereby; (iii) materially increase the risk of not being able to remove any such order on appeal or otherwise; or (iv) materially delay or prevent the enjoin consummation of the transactions contemplated herebyby this Agreement; (iii) make any material payments, other than filing fees required by Law, or provide any other material consideration in connection with any waiver or consent reasonably necessary, proper or advisable to consummate and make effective the transactions contemplated hereby (or to consent to any material payment, other than filing fees required by Law, or provide any other material consideration in connection with such waivers or consents). Notwithstanding anything in this Agreement Subject to the contrary, the restrictions and obligations set forth in provisions of this Section 5.3(b) 7.3, Buyer and Sellers shall not apply to or be binding upon BRPA’s Affiliates, the Sponsor, each use their respective Affiliates commercially reasonable efforts to take such action as may be required to cause the expiration or any investment funds early termination of the notice periods under the HSR Act or investment vehicles affiliated with, or managed or advised by, BRPA’s Affiliates, other Antitrust Laws with respect to such transactions as promptly as possible after the Sponsor, or any portfolio company (as such term is commonly understood in the private equity industry) or investment execution of BRPA’s Affiliates, the Sponsor, or of any such investment fund or investment vehiclethis Agreement.
Appears in 1 contract
Samples: Asset Purchase and Sale Agreement
HSR Act. (a) If required pursuant Without limiting the foregoing, each of the parties undertakes and agrees to the HSR Act, as promptly as practicable, BRPA and the Company shall use reasonable best efforts to (a) each prepare and file the notification required of it thereunder in connection with the Merger as soon as reasonably practicable but no later than twenty (20) Business Days following January 14, 2021, (b) promptly and in good faith respond to all information requested of it by the Federal Trade Commission and Department of Justice in connection with such notification and otherwise cooperate in good faith with each other and such Governmental Entities, (c) each request early termination of any waiting period under the HSR Act, and (d) submit, as soon as practicable, and in any event within five business days after the date of this Agreement, a Notification and Report Form under the HSR Act with the United States Federal Trade Commission (the “FTC”) and the United States Department of Justice, Antitrust Division (the “Antitrust Division”), and to make any other competition filing or notifications required applications or filings pursuant to by any Antitrust Laws and furnish to the other Party Governmental Authority as promptly as reasonably practicable all information required for any application or other filing required to be made pursuant to any Antitrust Lawpracticable. BRPA and Each of the Company shall substantially comply with any information or document requests by the Federal Trade Commission or the Department of Justice in connection with the Merger. BRPA and the Company parties shall (i) respond as promptly inform the other of as practicable to any substantive communication to formal or informal inquiries received from the Federal Trade CommissionFTC or the Antitrust Division for additional information or documentary materials, the Department of Justice and to all inquiries and requests received from any State Attorney General or any other Governmental Entity regarding the Merger and permit counsel to the other Party an opportunity to review Authority in advanceconnection with antitrust or competition matters, and each Party shall consider in good faith the views of such counsel in connection with, any proposed written communications by such Party to any Governmental Entity concerning the Merger, (ii) give the other prompt notice of the commencement take all commercially reasonable steps to seek early termination of any judicial or administrative action, suit, litigation, arbitration, proceeding by or before any Governmental Entity with respect to such transactions, and (iii) keep the other reasonably informed as to the status of any such action. Each Party agrees to provide, to the extent permitted by the applicable Governmental Entity, the other Party and its counsel the opportunity, on reasonable advance notice, to participate in any substantive meetings or discussions, either in person or by telephone, between such Party and/or any of its Affiliates, agents or advisors, on the one hand, and any Governmental Entity, on the other hand, concerning or in connection with the Merger; provided, neither Party shall extend any waiting period or comparable period under the HSR Act or enter any similar laws and to obtain all required approvals, and (iii) refrain from entering into any agreement with the FTC or the Antitrust Division or any Governmental Entity without Authority not to consummate or delay consummation of or to give notice of consummation other than as required by law, of the transactions contemplated by this Agreement, except with the prior written consent of the other Partyparties hereto (which shall not be unreasonably withheld or delayed). Any materials exchanged in connection with this Section 5.3 may be redacted Each of the parties or withheld as necessary to address reasonable privilege its counsel shall promptly notify the other party or confidentiality concerns of legal its counsel of any written or oral communication to that party or counsel from the CompanyFTC, the Antitrust Division, any State Attorney General or any other Governmental Authority and shall permit the other party or its counsel to remove references concerning the valuation review in advance any proposed written communication to any of the Company foregoing. Notwithstanding the foregoing or other competitively sensitive material; provided, that the Company may, as it deems advisable and necessary, designate any materials provided to the BRPA under this Section 5.3 as “outside counsel only.” Filing fees with respect to the notifications required under the HSR Act shall be paid by the Company.
(b) BRPA shall not, and shall cause its Subsidiaries not to, acquire or agree to acquire, by merging with or into or consolidating with, or by purchasing a portion of the assets of or equity in, or by any other manner, any business or any corporation, partnership, association or other business organization or division thereof, or otherwise acquire or agree to acquire any assets, or take any other action, if the entering into of a definitive agreement relating to, provisions contained in this Agreement or the consummation of such acquisition, merger or consolidation, or the taking of any other action, would reasonably be expected to (i) impose any material delay in the obtaining of, or materially increase the risk of not obtaining, any authorizations, consents, orders or declarations of any Governmental Entities or the expiration or termination of any applicable waiting period; (ii) materially increase the risk of any Governmental Entity entering an order prohibiting the consummation of the transaction contemplated hereby; (iii) materially increase the risk of not being able to remove any such order on appeal or otherwise; or (iv) materially delay or prevent the consummation of the transactions contemplated hereby. Notwithstanding anything in this Tender and Option Agreement to the contrary, neither Parent nor the restrictions Company nor any of their affiliates shall be under any obligation of any kind to (i) respond to a second request for information under the HSR Act or to enter into any negotiations or to otherwise agree with or litigate against any Governmental Authority, including but not limited to any governmental or regulatory authority with jurisdiction over the enforcement of any applicable federal, state, local and obligations set forth in this Section 5.3(bforeign antitrust, competition or other similar laws, or (ii) shall not apply to or be binding upon BRPA’s Affiliates, the Sponsor, their respective Affiliates otherwise agree with any Governmental Authority or any investment funds other party to sell or investment vehicles affiliated withotherwise dispose of, agree to any limitations on the ownership or control of, or managed hold separate (through the establishment of a trust or advised byotherwise) particular assets or categories of assets or businesses of any of the Company, BRPA’s Affiliatesits subsidiaries, the Sponsor, Parent or any portfolio company (as such term is commonly understood in the private equity industry) or investment of BRPAParent’s Affiliates, the Sponsor, or of any such investment fund or investment vehicleaffiliates.
Appears in 1 contract
Samples: Merger Agreement (Hunt Corp)
HSR Act.
(a) If required pursuant Subject to the HSR Actterms and conditions of this Agreement, as promptly as practicable, BRPA the Seller Parties and the Company Purchaser shall use their respective reasonable best efforts to make all necessary filings required under the HSR Act (aincluding, but not limited to, the Notification and Report Form (16 C.F.R. Part 803 – Appendix)) each prepare and file the notification required of it thereunder in connection with the Merger as soon as reasonably the Purchaser determines in prudent and practicable but no not later than twenty (20) Business Days following January 14after the date of this Agreement, 2021, and each party agrees to supply as promptly as practicable to the appropriate Governmental Entities any additional information and documentary material that may be requested pursuant thereto.
(b) From the date of this Agreement until the earlier of the Closing Date and the termination of this Agreement, each party hereto shall promptly notify the other party of any pending or threatened action or investigation by any Governmental Entity seeking to restrain or prohibit the consummation of the transactions contemplated hereby or otherwise limit the right of the Purchaser to own or operate all or any portion of the Business or the Acquired Assets.
(c) To the extent permitted by applicable Law, the parties will consult and cooperate with one another, and consider in good faith respond to all information requested the views of it by the Federal Trade Commission and Department of Justice one another, in connection with such notification all filings, applications, notices, analyses, appearances, presentations, memoranda, submissions, briefs, arguments, opinions and otherwise cooperate in good faith with each other and such Governmental Entities, (c) each request early termination proposals made or submitted by or on behalf of any waiting period under the HSR Act, and (d) submit, as soon as practicable, party before any other required applications or filings pursuant to any Antitrust Laws and furnish to the other Party as promptly as reasonably practicable all information required for any application or other filing required to be made pursuant to any Antitrust Law. BRPA and the Company shall substantially comply with any information or document requests by the Federal Trade Commission or the Department of Justice Governmental Entity in connection with the Mergerapproval of the contemplated transactions (except with respect to Taxes); provided, however, that in the event of a disagreement concerning any such filing, application, notice, analysis, appearance, presentation, memorandum, brief, argument, opinion or proposal, the determination of the Purchaser shall be conclusive; and provided, further that nothing will prevent a party from responding to or complying with a subpoena or other legal process required by Law or submitting factual information in response to a request therefore. BRPA and In addition, except as prohibited by Law, the Company shall (i) promptly inform notify the other Purchaser of any substantive communication to or the Company from the Federal Trade Commission, the Department of Justice or any other Governmental Entity regarding the Merger and permit counsel to the other Party an opportunity to review in advance, and each Party shall consider in good faith the views of such counsel in connection with, any proposed written communications by such Party to any Governmental Entity concerning relating to the Merger, approval or disapproval of the transactions contemplated hereby; and (ii) give the other prompt notice of the commencement of not participate in any judicial meetings or administrative action, suit, litigation, arbitration, proceeding by or before substantive discussions with any Governmental Entity with respect thereto without consulting with and offering the Purchaser a meaningful opportunity to participate in such transactions, and meetings or discussions.
(iiid) keep the other reasonably informed as Notwithstanding anything to the status of contrary in this Agreement, the Purchaser shall take all actions that are necessary to permit and cause the Closing to occur as soon as possible and in any such action. Each Party agrees event prior to provideSeptember 30, 2007, including taking all actions that are necessary to the extent permitted comply with any requirement, request or condition sought or imposed by the applicable United States Federal Trade Commission (“FTC”) or the Antitrust Division of the United States Department of Justice (“DOJ”) or other Governmental Entity, the other Party and its counsel the opportunity, on reasonable advance notice, to participate relating in any substantive meetings way to this Agreement or discussions, either in person or by telephone, between such Party and/or any of its Affiliates, agents or advisors, on the one hand, and any Governmental Entity, on the other hand, concerning or in connection with the Merger; provided, neither Party shall extend any waiting period or comparable period under the HSR Act or enter into any agreement with any Governmental Entity without the written consent of the other Party. Any materials exchanged in connection with this Section 5.3 may be redacted or withheld as necessary to address reasonable privilege or confidentiality concerns of legal counsel of the Company, and to remove references concerning the valuation of the Company or other competitively sensitive material; provided, that the Company may, as it deems advisable and necessary, designate any materials provided to the BRPA under this Section 5.3 as “outside counsel only.” Filing fees with respect to the notifications required under the HSR Act shall be paid by the Company.
(b) BRPA shall not, and shall cause its Subsidiaries not to, acquire or agree to acquire, by merging with or into or consolidating with, or by purchasing a portion of the assets of or equity in, or by any other manner, any business or any corporation, partnership, association or other business organization or division thereof, or otherwise acquire or agree to acquire any assets, or take any other action, if the entering into of a definitive agreement relating to, or the consummation of such acquisition, merger or consolidation, or the taking of any other action, would reasonably be expected to (i) impose any material delay in the obtaining of, or materially increase the risk of not obtaining, any authorizations, consents, orders or declarations of any Governmental Entities or the expiration or termination of any applicable waiting period; (ii) materially increase the risk of any Governmental Entity entering an order prohibiting the consummation of the transaction contemplated hereby; (iii) materially increase the risk of not being able to remove any such order on appeal or otherwise; or (iv) materially delay or prevent the consummation of the transactions contemplated hereby (“Government illegal such timely consummation of the transactions contemplated hereby, including (i) proposing, negotiating, offering to commit and effect, by consent decree, hold separate order, or otherwise, the sale, divestiture, out-license or other disposition of such of the Acquired Assets as the Purchaser deems necessary (a “Disposition”), and (ii) taking all other actions necessary or reasonable, as determined by the Purchaser, including instigating or defending any proceeding or litigation, making reasonable offers of compromise, and promptly removing or causing to be removed any direction, determination, requirement, injunction, order, condition or limitation, that prevents or would prevent, or that makes illegal, the timely consummation of the transactions contemplated by this Agreement. Notwithstanding anything the immediately preceding sentence, (x) the Purchaser, in this its sole discretion, may decide not to enter into any Disposition, settlement, undertaking, condition or limitation otherwise necessary to comply with any Government Conditions, and (y) the Purchaser shall not be required to enter into a Disposition with respect to any assets other than the Acquired Assets. In furtherance of the foregoing, except as prohibited by Law, the Company shall, at the Purchaser’s request, take all actions that are reasonably necessary to comply with any Government Conditions; provided, however, that in the event that the Acquired Assets are to be sold, divested, out-licensed or otherwise disposed of in a transaction other than the Closing, the Seller Parties shall not be obligated to take any such action unless as a condition to such transaction the third party involved therein is required to execute and deliver the Outside Field License Agreement or in lieu thereof, the Seller Parties shall otherwise be compensated therefor or otherwise receive the benefit of their bargain pursuant thereto.
(e) If the Closing Date shall not have occurred on or prior to September 30, 2007, the Purchaser shall thereafter be required to use its continuous best efforts to cause the Closing to occur as promptly as reasonably practicable thereafter, and the Seller Parties shall provide such cooperation and assistance as shall be necessary in connection therewith without unreasonable disruption to the contraryoperation of the business of the Seller Parties (other than the Business); provided, however, no party shall be required to take or refrain from taking any action in violation of applicable Law.
(f) The Purchaser shall indemnify the Seller Indemnified Parties and hold the Seller Indemnified Parties harmless against any Damages that the Seller Indemnified Parties incur by reason of their compliance with this Section 7.5.
(g) The Purchaser shall be entitled to receive and retain any Net Proceeds (as defined below) from Dispositions under this Agreement. “Net Proceeds” shall mean, for any Disposition, the restrictions sum of all amounts received in respect of such Disposition net of (a) expenses reasonably incurred by the Seller Parties in connection with such Disposition, and obligations set forth (b) without duplication any amounts in this Damages pursuant to Section 5.3(b) 7.5(f). For the avoidance of doubt, Net Proceeds shall not apply include any proceeds or payments allocable to any assets or be binding upon BRPA’s Affiliates, rights other than the Sponsor, their respective Affiliates or any investment funds or investment vehicles affiliated with, or managed or advised by, BRPA’s Affiliates, Acquired Assets that are the Sponsor, or any portfolio company (as subject of such term is commonly understood in the private equity industry) or investment of BRPA’s Affiliates, the Sponsor, or of any such investment fund or investment vehicleDisposition.
Appears in 1 contract
Samples: Asset Purchase Agreement
HSR Act. In furtherance and not in limitation of the terms of Section 5.5, (ai) If required pursuant to the HSR Actextent required by applicable Law, as promptly as practicable, BRPA each of the Buyer and the Company shall use reasonable best efforts file, or cause to be filed, a Notification and Report Form pursuant to the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended, and the rules and regulations promulgated thereunder (athe “HSR Act”) each prepare and file with respect to the notification required of it thereunder in connection with the Merger transactions contemplated by this Agreement as soon promptly as reasonably practicable but no later than twenty (20and in any event within three (3) Business Days following January 14unless the parties agree to a longer period) after the date of this Agreement (including, 2021in the case of the Buyer, (b) promptly and in good faith respond to all information requested of it by the Federal Trade Commission and Department of Justice in connection with such notification and otherwise cooperate in good faith with each other and such Governmental Entities, (c) each a request for early termination of any the applicable waiting period under the HSR Act), and (d) submit, as soon as practicable, any other required applications or filings pursuant to any Antitrust Laws and furnish to the other Party shall supply as promptly as reasonably practicable all any additional information required for and documentary material that may be reasonably requested by any application Governmental Entity (including the Antitrust Division of the United States Department of Justice and the United States Federal Trade Commission) pursuant to the HSR Act or any other antitrust Laws, and (ii) each of the Buyer and the Company shall cooperate and coordinate in connection with the making of any filing or submission that is required to be made pursuant to under any Antitrust Law. BRPA applicable antitrust Laws and the Company shall substantially comply with any information or document requests by the Federal Trade Commission or the Department of Justice in connection with resolving any investigation or other inquiry concerning the Mergertransactions contemplated by this Agreement commenced by any Governmental Entity, including the United States Federal Trade Commission, the Antitrust Division of the United States Department of Justice, or the office of any state attorney general. BRPA Subject to any limitations under applicable Laws, each of the Buyer and the Company shall (i) promptly inform the other of any substantive communication to or from the Federal Trade Commission, the Department of Justice or any other Governmental Entity regarding the Merger and permit counsel to the other Party an opportunity to review in advance, and each Party shall consider in good faith the views of such counsel in connection with, any proposed written communications by such Party to any Governmental Entity concerning the Merger, (ii) give the other prompt notice of the commencement of any judicial or administrative action, suit, litigation, arbitration, proceeding by or before any Governmental Entity with respect to such transactions, and (iii) keep the other reasonably informed as to party apprised of the status of any such action. Each Party agrees to provide, to the extent permitted by the applicable Governmental Entity, the other Party and its counsel the opportunity, on reasonable advance notice, to participate in any substantive meetings or discussions, either in person or by telephone, between such Party and/or any of its Affiliates, agents or advisors, on the one hand, and any Governmental Entity, on the other hand, matters concerning or in connection with the Merger; provided, neither Party shall extend any waiting period or comparable period under the HSR Act or enter into any agreement with any Governmental Entity without the written consent of the other Party. Any materials exchanged in connection with this Section 5.3 may be redacted or withheld as necessary to address reasonable privilege or confidentiality concerns of legal counsel of the Company, and to remove references concerning the valuation of the Company or other competitively sensitive material; provided, that the Company may, as it deems advisable and necessary, designate any materials provided to the BRPA under this Section 5.3 as “outside counsel only.” Filing fees with respect to the notifications required under the HSR Act shall be paid by the Company.
(b) BRPA shall not, and shall cause its Subsidiaries not to, acquire or agree to acquire, by merging with or into or consolidating with, or by purchasing a portion of the assets of or equity in, or by any other manner, any business or any corporation, partnership, association or other business organization or division thereof, or otherwise acquire or agree to acquire any assets, or take any other action, if the entering into of a definitive agreement relating to, or the consummation of such acquisition, merger or consolidation, or the taking of any other action, would reasonably be expected to (i) impose any material delay in the obtaining of, or materially increase the risk of not obtaining, any authorizations, consents, orders or declarations of any Governmental Entities or the expiration or termination of any applicable waiting period; (ii) materially increase the risk of any Governmental Entity entering an order prohibiting the consummation of the transaction contemplated hereby; (iii) materially increase the risk of not being able to remove any such order on appeal or otherwise; or (iv) materially delay or prevent the consummation of the transactions contemplated hereby. Notwithstanding anything in this Agreement , including, to the contraryextent permitted by Law, promptly furnishing the restrictions and obligations set forth in this Section 5.3(b) shall not apply other party with copies of all notices or other communications sent or received by it or its representatives to or be binding upon BRPA’s Affiliates, from any Governmental Entity on the Sponsor, their respective Affiliates or any investment funds or investment vehicles affiliated with, or managed or advised by, BRPA’s Affiliates, subject of such transactions; and (ii) permit the Sponsor, or any portfolio company (as such term is commonly understood other party to review in the private equity industry) or investment of BRPA’s Affiliates, the Sponsor, or of advance any such investment fund proposed notices or investment vehicleother communications to any Governmental Entity and reasonably consider any comments the other party may have. Each of the Buyer and the Company agrees not to participate in any meeting or discussion with any Governmental Entity on the subject of the transactions unless it consults with the other party in advance and, to the extent permitted by Law, gives the other party the opportunity to attend and participate in such meeting or discussion.
Appears in 1 contract
Samples: Merger Agreement (LogMeIn, Inc.)
