Mutual Covenants Regarding the Arrangement. From the Agreement Date until the earlier of the completion of the Arrangement and the termination of this Agreement in accordance with Article 8, each Party shall: (a) use its reasonable commercial efforts to complete the Arrangement on or before December 12, 2013; (b) use its reasonable commercial efforts to satisfy (or cause the satisfaction of) the conditions precedent to its obligations hereunder and to take, or cause to be taken, all other action and to do, or cause to be done, all other things necessary, proper or advisable under Applicable Laws to complete the Arrangement, including using reasonable commercial efforts to: (i) obtain all waivers, consents and approvals from other parties to loan agreements, leases and other Contracts to which it is a party that may be necessary or desirable to permit the completion of the Arrangement on the terms contemplated hereby; (ii) obtain all necessary consents, assignments, waivers and amendments to, or terminations of, any instruments or other documents to which it is a party, or by which it is bound, that may be necessary to permit it to carry out the transactions contemplated by this Agreement and to take such other steps and actions as may be necessary or appropriate to fulfill its obligations hereunder; and (iii) oppose, lift or rescind any injunction or restraining or other order seeking to stop, or otherwise adversely affecting its ability to consummate, the Arrangement and to defend, or cause to be defended, any proceedings to which it is a party or brought against it or its directors or officers challenging this Agreement or the consummation of the transactions contemplated hereby. (c) in connection with the Competition Act Approval: (i) Bellatrix and Angle shall as promptly as reasonably practicable and in any event within 10 Business Days of the Agreement Date, duly file with the Commissioner a request for an ARC pursuant to Section 102 of the Competition Act and supply the Commissioner with such additional information as the Commissioner may request. Bellatrix shall have the primary responsibility for the preparation and submission of a request for an ARC pursuant to Section 102 of the Competition Act. Bellatrix and Angle shall respond as promptly as reasonably practicable under the circumstances to any inquiries received from the Commissioner for additional information or documentation and to all inquiries and requests received from the Commissioner; (ii) the Parties shall coordinate and cooperate in exchanging information and supplying assistance that is reasonably requested in connection with the Competition Act Approval, including providing each other with advance copies and reasonable opportunities to comment on all filings made to the Commissioner and any additional or supplementary information supplied pursuant thereto in respect of the Competition Act, and all notices and correspondence received from the Commissioner with respect to any filings under the Competition Act and shall consider in good faith their respective comments on all draft filings; and (iii) notwithstanding any other provision herein, in no event will Bellatrix be required hereunder or otherwise to agree to any hold separate, divestiture or other order, decree or restriction on the businesses of Bellatrix or any other business, the conduct thereof or future transactions; (d) use its reasonable commercial efforts to effect all necessary registrations and filings and submissions of information requested by Governmental Authorities or required to be effected or submitted by it in connection with the Arrangement, including, without limitation, under the Competition Act as set out above in Subsection 3.3(c), and to obtain all necessary consents, waivers and approvals required to be obtained by it in connection with the Arrangement, and each of Bellatrix and Angle will use its reasonable commercial efforts to cooperate with the other in connection with the performance by the other Party of its obligations under this Subsection 3.3(d) including, without limitation, assisting with the preparation and filing of any applications and continuing to provide reasonable access to information and to maintain ongoing communications as between officers of Bellatrix and Angle, subject in all cases to the Angle Confidentiality Agreement and Bellatrix Confidentiality Agreement. Without limiting the generality of the foregoing, to the extent Competition Act Approval represents a condition precedent under Subsection 5.1(g) each of Bellatrix and Angle shall furnish to the other Party such information and assistance as the other Party may reasonably request in connection with its preparation of any filing or submission that may be necessary or advisable in connection with the Arrangement; and (e) notwithstanding any other provision in this Agreement, (including Subsections 3.3(c)(ii), 3.3(d) and 3.3 (f) except as otherwise required by Applicable Law, where either Bellatrix or Angle, as the case may be, is obligated to provide information that it deems, acting reasonably, to be competitively sensitive information to the other Party in connection with the Competition Act Approval, Bellatrix or Angle, as the case may be, shall provide such competitively sensitive information only to the external legal counsel of the other Party or to external experts hired by external counsel to Bellatrix or Angle (or both) on the basis that such competitively sensitive information shall not be shared by such counsel or external experts with any other Person other than the Commissioner; and
Appears in 1 contract
Mutual Covenants Regarding the Arrangement. From the Agreement Date until the earlier of the completion of the Arrangement Effective Time and the termination of this Agreement in accordance with Article 8, each Party shall:
(a) use its reasonable commercial efforts to complete the Arrangement on or before December 12August 31, 20132018;
(b) use its reasonable commercial efforts to satisfy (or cause the satisfaction of) the conditions precedent to its obligations hereunder and to take, or cause to be taken, all other action and to do, or cause to be done, all other things necessary, proper or advisable under Applicable Laws to complete the Arrangement, including using reasonable commercial efforts to:
(i) obtain all waivers, consents and approvals from other parties to loan agreements, leases and other Contracts to which it is a party that may be necessary or desirable to permit the completion of the Arrangement on the terms contemplated herebyhereby or required to maintain the Material Contracts in full force and effect following the Effective Time, in each case on terms that are reasonably satisfactory to the Parties;
(ii) obtain all necessary consents, assignments, waivers and amendments to, or terminations of, any instruments or other documents to which it is a party, or by which it is bound, that may be necessary to permit it to carry out the transactions contemplated by this Agreement and to take such other steps and actions as may be necessary or appropriate to fulfill its obligations hereunder; and;
(iii) oppose, lift or rescind any injunction or restraining or other order seeking to stop, or otherwise adversely affecting its ability to consummate, the Arrangement and to defend, or cause to be defended, any proceedings to which it is a party or brought against it or its directors or officers challenging this Agreement or the consummation of the transactions contemplated hereby.; and
(iv) use all commercially reasonable efforts to cause each of the Baytex Supporting Shareholders and Raging River Supporting Shareholders to vote in favour of the Arrangement Resolution and the Share Issuance Resolution, as applicable, as required by and subject to the Baytex Support Agreements and the Raging River Support Agreements, respectively;
(c) prior to (i) the date scheduled for the printing of the Circular, agree on the composition of the Amalco Board following the Effective Time, provided that unless otherwise agreed to by the Parties in writing, the Amalco Board immediately following the Effective time shall: (A) have no more than 10 members, (B) be comprised of six representatives from the Baytex Board (to be determined by Baytex in its sole discretion, subject to the limitations specified in (C) and (D) below) and the following four representatives from the Raging River Board: Xxxx Xxxxxxx, Xxxx Xxxxxxx, Xxxxx Xxxxx and Xxxxx Xxxxxx, (C) have at least one member who is a woman, and (D) have no more than two non-independent members (as determined in accordance with Applicable Canadian Securities Laws); and (ii) the date that is 10 Business Days prior to the Effective Date, agree on the committees of the Amalco Board that will exist following the Effective Time and the composition of such committees;
(d) as soon as reasonably practicable following the Agreement Date and in any event no later than 10 Business Days prior to the Effective Date, Baytex and Raging River shall agree, acting reasonably, on the names and positions of the officers of Baytex following the Effective Date provided such officers will include, without limitation, the officers identified in the joint news release of the Parties announcing the transactions contemplated hereby issued on or after the Agreement Date;
(e) in connection with the Competition Act Approval and the HSR Act Approval:
(i) Bellatrix Baytex and Angle Raging River shall as promptly as reasonably practicable and in any event within 10 Business Days of the Agreement Date, duly file with (i) the Commissioner a request for an ARC pursuant to Section 102 of the Competition Act and supply the Commissioner with such additional information as the Commissioner may request; and (ii) the U.S. Antitrust Agencies Notification and Report Forms pursuant to the HSR Act. Bellatrix Baytex shall have the primary responsibility for the preparation and submission of a request for an ARC pursuant to Section 102 of the Competition Act. Bellatrix Baytex and Angle Raging River shall respond as promptly as reasonably practicable under the circumstances to any inquiries received from the Commissioner for additional information or documentation and to all inquiries and requests received from the CommissionerCommissioner and the U.S. Antitrust Agencies pursuant to the HSR Act;
(ii) the Parties shall coordinate and cooperate in exchanging information and supplying assistance that is reasonably requested in connection with the Competition Act Approval and the HSR Act Approval, including providing each other with advance copies and reasonable opportunities to comment on all filings made to the Commissioner and the U.S. Antitrust Agencies and any additional or supplementary information supplied pursuant thereto in respect of the Competition Act and the HSR Act, and all notices and correspondence received from the Commissioner and the U.S. Antitrust Agencies with respect to any filings under the Competition Act and the HSR Act and shall consider in good faith their respective comments on all draft filings;
(iii) no Party may participate in any substantive meeting or discussion (whether in person, by telephone or otherwise) with the Commissioner or the U.S. Antitrust Agencies in respect of obtaining or concluding the Competition Act Approval and the HSR Act Approval without the participation or consent of the Other Party; and
(iiiiv) notwithstanding any if an ARC or No-Action Letter is not received within 14 Business Days of the filing of the request for an ARC pursuant to Section 3.3(e)(i) above, either Party may, acting reasonably, give notice to the other provision hereinof its intention to file a premerger notification form pursuant to Section 114(1) of the Competition Act, in no event will Bellatrix be required hereunder or otherwise which case each Party shall file a premerger notification form as soon as reasonably practical following such notice of intention to agree to any hold separate, divestiture or other order, decree or restriction on the businesses of Bellatrix or any other business, the conduct thereof or future transactionsfile;
(df) use its reasonable commercial efforts to effect all necessary registrations and filings and submissions of information requested by Governmental Authorities or required to be effected or submitted by it in connection with the Arrangement, including, without limitation, under the Competition Act and the HSR Act as set out above in Subsection 3.3(c3.3(e), and to obtain all necessary consents, waivers and approvals required to be obtained by it in connection with the Arrangement, and each of Bellatrix Baytex and Angle Raging River will use its reasonable commercial efforts to cooperate with the other in connection with the performance by the other Other Party of its obligations under this Subsection 3.3(d3.3(f) including, without limitation, assisting with the preparation and filing of any applications and continuing to provide reasonable access to information and to maintain ongoing communications as between officers of Bellatrix Baytex and AngleRaging River, subject in all cases to the Angle Raging River Confidentiality Agreement and Bellatrix Baytex Confidentiality Agreement. Without limiting the generality of the foregoing, to the extent Competition Act Approval represents a condition precedent under Subsection 5.1(g) each of Bellatrix and Angle shall furnish to the other Party such information and assistance as the other Party may reasonably request in connection with its preparation of any filing or submission that may be necessary or advisable in connection with the Arrangement; and;
(eg) notwithstanding any other provision in this Agreement, (including Subsections 3.3(c)(ii3.3(e)(ii), 3.3(d3.3(f) and 3.3
(f3.3(h)) except as otherwise required by Applicable Law, where either Bellatrix Baytex or AngleRaging River, as the case may be, is obligated to provide information that it deems, acting reasonably, to be competitively sensitive information to the other Other Party in connection with the Competition Act Approval or the HSR Act Approval, Bellatrix Baytex or AngleRaging River, as the case may be, shall provide such competitively sensitive information only to the external legal counsel of the other Other Party or to external experts hired by external counsel to Bellatrix Baytex or Angle Raging River (or both) on the basis that such competitively sensitive information shall not be shared by such counsel or external experts with any other Person other than external counsel and external experts for the CommissionerOther Party and the Commissioner or U.S. Antitrust Agencies, provided that the disclosing Party also provides the Other Party with a redacted version of any such application, notice, filing, submissions, undertakings, correspondence or communications (including responses to requests for information and inquiries from any Governmental Authority) which does not contain any such competitively sensitive or other restricted information; and
(h) use its reasonable commercial efforts to cooperate with the Other Party in connection with the performance by the Other Party of its obligations under this Agreement including, without limitation, continuing to provide reasonable access to information and to maintain ongoing communications as between Representatives of Baytex and Raging River, subject in all cases to the Baytex Confidentiality Agreement or Raging River Confidentiality Agreement, as applicable.
Appears in 1 contract
Mutual Covenants Regarding the Arrangement. From In addition to the specific covenants contained in this Agreement Date and subject to the provisions of this Agreement, each of the Parties shall, and shall cause their respective subsidiaries to, during the period from the date of this Agreement until the earlier of the completion of the Arrangement Effective Time and the termination of time that this Agreement is terminated in accordance with Article 8its terms, use commercially reasonable efforts to perform all obligations required or desirable to be performed by them under this Agreement, co-operate with each other in connection therewith, and do all such other acts and things as may be necessary or desirable in order to consummate and make effective, as soon as reasonably practicable, the Transactions and, without limiting the generality of the foregoing, each Party of Coeur and Northern Empire shall, and shall cause their respective subsidiaries to:
(a) use its commercially reasonable commercial efforts to complete the Arrangement on or before December 12, 2013;
(b) use its reasonable commercial efforts to satisfy (or cause the satisfaction of) the conditions precedent to its obligations hereunder hereunder, as set forth in Article 8, to the extent the same is within its control, and to take, take or cause to be takentaken other actions, all other action and to do, do or cause to be donedone other things, all other things necessary, proper or advisable under Applicable applicable Laws to complete consummate the Arrangement, including using commercially reasonable commercial efforts to:
: (i) obtain all waivers, consents and approvals from other parties to loan agreements, leases and other Contracts to which it is a party that may be necessary or desirable to permit the completion of the Arrangement on the terms contemplated hereby;
(ii) obtain all necessary consents, assignments, waivers and amendments to, or terminations of, any instruments or other documents to which it is a party, or by which it is bound, that may be necessary to permit it to carry out the transactions contemplated by this Agreement and to take such other steps and actions as may be necessary or appropriate to fulfill its obligations hereunder; and
(iii) oppose, lift or rescind any injunction or restraining order against it or other order or action against it seeking to stop, or otherwise adversely affecting its ability to consummatemake and complete, the Arrangement Arrangement; and (ii) co-operate with the other Parties in connection with the performance by it and its subsidiaries of their obligations hereunder;
(b) both before and after the Effective Date, use commercially reasonable efforts to defendexecute and do all acts, further deeds, things and assurances as may be required in the reasonable opinion of the other Party’s legal counsel to permit the completion of the Transactions;
(c) use commercially reasonable efforts to obtain necessary waivers, consents and approvals required to be obtained in connection with the Transactions from other parties to the Northern Empire Material Contracts; provided, however, that notwithstanding anything to the contrary in this Agreement, in connection with obtaining any approval or consent from any person (other than a Governmental Entity or stock exchange) with respect to the Transactions, (i) neither Northern Empire or any of its subsidiaries shall be required to pay or commit to pay to such person whose approval or consent is being solicited any cash or other consideration, or cause make any commitment or incur any liability or other obligation due to such person, and (ii) neither Coeur nor any of its affiliates shall be defendedrequired to pay or commit to pay to such person whose approval or consent is being solicited any cash or other consideration, or make any commitment or incur any liability or other obligation to such person;
(d) use commercially reasonable efforts to effect all necessary registrations, filings, requests and submissions of information required by Governmental Entities or stock exchanges from the Parties or any of their respective subsidiaries relating to the Arrangement;
(e) apply for and use commercially reasonable efforts to obtain all Regulatory Approvals and, in doing so, keep the other Parties reasonably informed as to the status of the proceedings related to which it obtaining any Regulatory Approval, including providing the other Parties with copies of all related applications and notifications, in draft form, in order for the other Parties to provide comments thereon; provided, however, that notwithstanding anything to the contrary in this Agreement, in connection with obtaining any Regulatory Approval, neither Northern Empire nor Coeur is a party under any obligation to (i) negotiate or brought against it agree to the sale, divestiture or disposition of the assets, properties or businesses of either Party or either Party’s subsidiaries, (ii) negotiate or agree to any form of behavioural remedy including an interim or permanent hold separate order, or any form of undertakings or other restrictions on the assets, properties or businesses of either Party or either Party’s subsidiaries, or (iii) take any steps or actions that would, in its sole discretion, affect either Party’s right to own, use or exploit any of its assets or any of the assets of any of its subsidiaries or its directors right to own, use or officers exploit any of its assets or any of the assets of any of its subsidiaries;
(f) use commercially reasonable efforts to defend all lawsuits or other legal, regulatory or other proceedings involving such Party or any of its affiliates challenging or affecting this Agreement or the consummation of the transactions contemplated hereby.Transactions;
(cg) in connection with promptly notify the Competition Act Approvalother Party of:
(i) Bellatrix and Angle shall as promptly as reasonably practicable and any written communication from any person alleging that the consent of such person (or another person) is or may be required in any event within 10 Business Days of the Agreement Date, duly file connection with the Commissioner a request for an ARC pursuant to Section 102 of Transactions (and the Competition Act and supply the Commissioner with response thereto from such additional information as the Commissioner may request. Bellatrix shall have the primary responsibility for the preparation and submission of a request for an ARC pursuant to Section 102 of the Competition Act. Bellatrix and Angle shall respond as promptly as reasonably practicable under the circumstances to any inquiries received from the Commissioner for additional information Party, its subsidiaries or documentation and to all inquiries and requests received from the Commissionerits Representatives);
(ii) the Parties shall coordinate and cooperate in exchanging information and supplying assistance that is reasonably requested any material communication from any Governmental Entity or stock exchange in connection with the Competition Act ApprovalTransactions (and the response thereto from such Party, including providing each other with advance copies and reasonable opportunities to comment on all filings made to the Commissioner and any additional its subsidiaries or supplementary information supplied pursuant thereto in respect of the Competition Act, and all notices and correspondence received from the Commissioner with respect to any filings under the Competition Act and shall consider in good faith their respective comments on all draft filingsits Representatives); and
(iii) notwithstanding any other provision herein, in no event will Bellatrix be required hereunder Legal Actions threatened or commenced against or otherwise affecting such Party or any of its subsidiaries that are related to the Transactions.
(h) not agree to any hold separatevoluntary extension of any statutory deadline or waiting period or to any voluntary delay of the consummation of Transactions at the request of any Governmental Entity, divestiture or other order, decree or restriction on the businesses of Bellatrix stock exchange or any other business, person without the conduct thereof or future transactions;
(d) use its reasonable commercial efforts to effect all necessary registrations and filings and submissions of information requested by Governmental Authorities or required to be effected or submitted by it in connection with the Arrangement, including, without limitation, under the Competition Act as set out above in Subsection 3.3(c), and to obtain all necessary consents, waivers and approvals required to be obtained by it in connection with the Arrangement, and each of Bellatrix and Angle will use its reasonable commercial efforts to cooperate with the other in connection with the performance by the other Party of its obligations under this Subsection 3.3(d) including, without limitation, assisting with the preparation and filing of any applications and continuing to provide reasonable access to information and to maintain ongoing communications as between officers of Bellatrix and Angle, subject in all cases to the Angle Confidentiality Agreement and Bellatrix Confidentiality Agreement. Without limiting the generality of the foregoing, to the extent Competition Act Approval represents a condition precedent under Subsection 5.1(g) each of Bellatrix and Angle shall furnish to the other Party such information and assistance as the other Party may reasonably request in connection with its preparation of any filing or submission that may be necessary or advisable in connection with the Arrangement; and
(e) notwithstanding any other provision in this Agreement, (including Subsections 3.3(c)(ii), 3.3(d) and 3.3
(f) except as otherwise required by Applicable Law, where either Bellatrix or Angle, as the case may be, is obligated to provide information that it deems, acting reasonably, to be competitively sensitive information to the other Party in connection with the Competition Act Approval, Bellatrix or Angle, as the case may be, shall provide such competitively sensitive information only to the external legal counsel written consent of the other Party (such consent not to be unreasonably withheld, conditioned or to external experts hired by external counsel to Bellatrix or Angle (or both) on the basis that such competitively sensitive information shall not be shared by such counsel or external experts with any other Person other than the Commissioner; anddelayed).
Appears in 1 contract
Mutual Covenants Regarding the Arrangement. From the date of this Agreement Date until the earlier of the completion of the Arrangement and the Effective Date or termination of this Agreement in accordance with Article 8Agreement, each Party shall:
(a) of ARC and Storm will use its reasonable commercial efforts to complete the Arrangement on or before December 12, 2013;
to: (bi) use its reasonable commercial efforts to satisfy (or cause the satisfaction of) the conditions precedent to its obligations hereunder (and those of any of its subsidiaries) hereunder; (ii) not take, or cause to be taken, any action or cause anything to be done that would cause such obligations not to be fulfilled in a timely manner; and (iii) take, or cause to be taken, all other action and to do, or cause to be done, all other things necessary, proper or advisable under Applicable Laws to complete the Arrangement, including using reasonable commercial efforts toefforts:
(ia) obtain all waivers, consents and approvals from other parties to loan agreements, leases and other Contracts to which it is a party that may be necessary or desirable to permit the completion of the Arrangement on the terms contemplated hereby;
(ii) obtain all necessary consents, assignments, waivers and amendments to, to or terminations of, of any instruments or other documents to which it is a party, or by which it is bound, that agreements and take such measures as may be necessary appropriate to permit it fulfill its obligations hereunder and to carry out the transactions contemplated by this Agreement and to take such other steps and actions as may be necessary or appropriate to fulfill its obligations hereunder; andhereby;
(iiib) to effect all necessary registrations, filings and submissions of information requested by Governmental Authorities required to be effected by it in connection with the Arrangement;
(c) to oppose, lift or rescind any injunction or restraining or other order seeking to stop, or otherwise adversely affecting its ability to consummate, the Arrangement and to defend, or cause to be defended, any proceedings to which it is a party or brought against it or its directors or officers challenging this Agreement or the consummation of the transactions contemplated hereby.
(c) in connection with the Competition Act Approval:
(i) Bellatrix and Angle shall as promptly as reasonably practicable and in any event within 10 Business Days of the Agreement Date, duly file with the Commissioner a request for an ARC pursuant to Section 102 of the Competition Act and supply the Commissioner with such additional information as the Commissioner may request. Bellatrix shall have the primary responsibility for the preparation and submission of a request for an ARC pursuant to Section 102 of the Competition Act. Bellatrix and Angle shall respond as promptly as reasonably practicable under the circumstances to any inquiries received from the Commissioner for additional information or documentation and to all inquiries and requests received from the Commissioner;
(ii) the Parties shall coordinate and cooperate in exchanging information and supplying assistance that is reasonably requested in connection with the Competition Act Approval, including providing each other with advance copies and reasonable opportunities to comment on all filings made to the Commissioner and any additional or supplementary information supplied pursuant thereto in respect of the Competition Act, and all notices and correspondence received from the Commissioner with respect to any filings under the Competition Act and shall consider in good faith their respective comments on all draft filings; and
(iiid) notwithstanding any to reasonably cooperate with the other provision hereinParty and its tax advisors in structuring the Arrangement in a tax effective manner, and assist the other Party and its tax advisors in no event will Bellatrix making such investigations and inquiries with respect to such Party in that regard, as the other Party and its tax advisors shall consider necessary, acting reasonably, provided that such Party shall not be required hereunder obligated to consent or otherwise to agree to any hold separate, divestiture or other order, decree or restriction on structuring that has the businesses effect of Bellatrix or any other business, reducing the conduct thereof or future transactions;
(d) use its reasonable commercial efforts to effect all necessary registrations and filings and submissions of information requested by Governmental Authorities or required consideration to be effected or submitted by it in connection with received under the Arrangement, including, without limitation, under the Competition Act as set out above in Subsection 3.3(c), . Each of ARC and to obtain all necessary consents, waivers and approvals required to be obtained by it in connection with the Arrangement, and each of Bellatrix and Angle Storm will use its reasonable commercial efforts to cooperate with the other in connection with the performance by the other Party of its their obligations under this Subsection 3.3(d) Section 3.4 and this Agreement including, without limitation, assisting with the preparation and filing of any applications and continuing to provide reasonable access to information and to maintain ongoing communications as between officers of Bellatrix ARC and AngleStorm, subject in all cases to the Angle Confidentiality Agreement and Bellatrix Confidentiality Agreement. Without limiting the generality of the foregoing, to the extent Competition Act Approval represents a condition precedent under Subsection 5.1(g) each of Bellatrix and Angle shall furnish to the other Party such information and assistance as the other Party may reasonably request in connection with its preparation of any filing or submission that may be necessary or advisable in connection with the Arrangement; and
(e) notwithstanding any other provision in this Agreement, (including Subsections 3.3(c)(ii), 3.3(d) and 3.3
(f) except as otherwise required by Applicable Law, where either Bellatrix or Angle, as the case may be, is obligated to provide information that it deems, acting reasonably, to be competitively sensitive information to the other Party in connection with the Competition Act Approval, Bellatrix or Angle, as the case may be, shall provide such competitively sensitive information only to the external legal counsel of the other Party or to external experts hired by external counsel to Bellatrix or Angle (or both) on the basis that such competitively sensitive information shall not be shared by such counsel or external experts with any other Person other than the Commissioner; and.
Appears in 1 contract
Mutual Covenants Regarding the Arrangement. From the Agreement Date date hereof until the earlier of the completion of the Arrangement and the termination of this Agreement in accordance with Article 8, each Party shall:
(a) use its reasonable commercial efforts to complete the Arrangement on October 5, 2023 or before December 12as soon thereafter as reasonably practicable and, 2013in any event, by no later than the Outside Date;
(b) use its reasonable commercial efforts to satisfy (or cause the satisfaction of) the conditions precedent to its obligations hereunder and to take, or cause to be taken, all other action actions and to do, or cause to be done, all other things necessary, proper or advisable under Applicable Laws to complete the Arrangement, including using its reasonable commercial efforts to:
(i) obtain all necessary waivers, consents and approvals required to be obtained by it from other parties to loan agreements, leases and other Contracts to which it is a party that may be necessary or desirable to permit the completion of the Arrangement on the terms contemplated herebycontracts;
(ii) obtain all necessary exemptions, consents, assignments, waivers and amendments to, to or terminations of, of any instruments or other documents to which it is a party, or by which it is bound, that and take such measures as may be necessary appropriate to permit it fulfill its obligations hereunder and to carry out the transactions contemplated by this Agreement and to take such other steps and actions as may be necessary or appropriate to fulfill its obligations hereunder; andAgreement;
(iii) upon reasonable consultation with the Other Party, oppose, lift or rescind any injunction or injunction, restraining or other order order, decree or ruling seeking to stoprestrain, enjoin or otherwise prohibit or adversely affecting its ability to consummate, the Arrangement and to defend, or cause to be defended, any proceedings to which it is a party or brought against it or its directors or officers challenging this Agreement or affect the consummation of the transactions contemplated hereby.Arrangement; and
(iv) fulfill all conditions and satisfy all provisions of this Agreement and this Arrangement;
(c) use its commercially reasonable efforts to obtain all Regulatory Approvals in accordance with Section 2.8 and all other necessary waivers, consents and approvals required to be obtained by it in connection with the Arrangement from Governmental Authorities and effect all necessary registrations and filings and the submission of all information requested by Governmental Authorities required to be effected by it in connection with the Arrangement;
(d) cooperate with each other in taking, or causing to be taken, all actions necessary to delist the Renewables Shares from the TSX in accordance with the policies and procedures of the TSX following completion of the steps set out in the Plan of Arrangement; provided, however, that such delisting will not be effective until after the Effective Time;
(e) in connection with the Competition Act AUC Approval:
(i) Bellatrix TransAlta and Angle Renewables shall as promptly as reasonably practicable and in any event within 10 Business Days of the Agreement Date, duly file with the Commissioner AUC a request for an ARC pursuant to Section 102 of the Competition Act AUC Approval and supply the Commissioner AUC with such additional information as the Commissioner AUC may request. Bellatrix TransAlta shall have the primary responsibility for the preparation and submission of a request the requests for an ARC pursuant to Section 102 of the Competition ActAUC Approval. Bellatrix TransAlta and Angle Renewables shall respond as promptly as reasonably practicable under the circumstances to any inquiries received from the Commissioner AUC for additional information or documentation and to all inquiries and requests received from the Commissioner;AUC; and
(ii) the Parties shall coordinate and cooperate in exchanging information and supplying assistance that is reasonably requested in connection with the Competition Act ApprovalSubsection 3.3(e)(i) above, including providing each other with advance copies and reasonable opportunities to comment on all filings made to with the Commissioner AUC and any additional or supplementary information supplied pursuant thereto in respect of the Competition ActPUA (except for information which TransAlta or Renewables, in each case acting reasonably, consider highly confidential and sensitive which may be provided on a confidential and privileged basis to outside counsel of the Other Party), and all notices and correspondence received from the Commissioner AUC with respect to any filings under the Competition Act and shall consider in good faith their respective comments on all draft filings; and
(iii) notwithstanding any other provision herein, in no event will Bellatrix be required hereunder or otherwise to agree to any hold separate, divestiture or other order, decree or restriction on the businesses of Bellatrix or any other business, the conduct thereof or future transactionsPUA;
(df) use its reasonable commercial efforts to effect all necessary registrations and filings and submissions of information requested by Governmental Authorities or required to be effected or submitted by it in connection with the Arrangement, including, without limitation, under the Competition Act as set out above in Subsection 3.3(c), and to obtain all necessary consents, waivers and approvals required to be obtained by it in connection with the Arrangement, and each of Bellatrix and Angle will use its reasonable commercial efforts to cooperate with the other Other Party in connection with the performance by the other Other Party of its their obligations under this Subsection 3.3(d) Section 3.3 including, without limitation, assisting with the preparation and filing of any applications and continuing to provide the Other Party with a reasonable access opportunity to information review and comment on all filings and material correspondence with and to Governmental Authorities and to promptly provide final copies thereof to the Other Party once filed or given, to promptly provide the Other Party with all approvals and material notices and correspondence received from Governmental Authorities, and to maintain ongoing communications as between officers representatives of Bellatrix and Anglethe Parties in respect of the Regulatory Approvals, subject in all cases to the Angle Confidentiality Agreement and Bellatrix Confidentiality Agreement. Without limiting the generality of the foregoing, to the extent Competition Act Approval represents a condition precedent under Subsection 5.1(g) each of Bellatrix and Angle shall furnish to the other Party such information and assistance as the other Party may reasonably request in connection with its preparation of any filing or submission that may be necessary or advisable in connection with the Arrangement; and
(eg) notwithstanding cooperate with each other in the preparation of the Circular and provide to the Other Party, in a timely and expeditious manner, the Renewables Information and the TransAlta Information, as applicable, for inclusion in the Circular, and any amendments or supplements thereto, in each case complying in all material respects with all Applicable Laws on the date of issue thereof and not containing any misrepresentation, and each Party shall provide the Other Party and its Representatives with a reasonable opportunity to review and comment on the Renewables Information or the TransAlta Information, as applicable, and any other provision in this Agreement, (including Subsections 3.3(c)(ii), 3.3(d) relevant documentation and 3.3
(f) except as otherwise required reasonable consideration shall be given to any comments made by Applicable Law, where either Bellatrix or Angle, as the case may be, is obligated to provide information that it deems, acting reasonably, to be competitively sensitive information to the other Other Party in connection with the Competition Act Approval, Bellatrix or Angle, as the case may be, shall provide such competitively sensitive information only to the external legal counsel of the other Party or to external experts hired by external counsel to Bellatrix or Angle (or both) on the basis that such competitively sensitive information shall not be shared by such counsel or external experts with any other Person other than the Commissioner; andCircular.
Appears in 1 contract
Mutual Covenants Regarding the Arrangement. From Subject to the provisions of this Agreement, each of the Parties shall, during the period from the date of this Agreement Date until the earlier of the completion of the Arrangement Effective Time and the termination of time that this Agreement is terminated in accordance with Article 8its terms, use all commercially reasonable efforts to perform all obligations required or desirable to be performed by them under this Agreement, co-operate with each other in connection therewith, and do all such other acts and things as may be necessary or desirable in order to consummate and make effective, as soon as reasonably practicable, the Arrangement and, without limiting the generality of the foregoing, each Party of the Parties shall:
(a) use its all commercially reasonable commercial efforts to complete the Arrangement on or before December 12, 2013;
(b) use its reasonable commercial efforts to satisfy (or cause the satisfaction of) the conditions precedent to its obligations hereunder hereunder, as set forth in Article 8, to the extent the same is within its control, and to take, take or cause to be taken, taken all other action actions, and to do, do or cause to be done, done all other things things, necessary, proper or advisable under Applicable all applicable Laws to complete consummate the Arrangement, including using all commercially reasonable commercial efforts to:
: (i) obtain all waivers, consents and approvals from other parties to loan agreements, leases and other Contracts to which it is a party that may be necessary or desirable to permit the completion of the Arrangement on the terms contemplated hereby;
(ii) obtain all necessary consents, assignments, waivers and amendments to, or terminations of, any instruments or other documents to which it is a party, or by which it is bound, that may be necessary to permit it to carry out the transactions contemplated by this Agreement and to take such other steps and actions as may be necessary or appropriate to fulfill its obligations hereunder; and
(iii) oppose, lift or rescind any injunction or restraining order against it or other order or action against it seeking to stop, or otherwise adversely affecting its ability to consummatemake and complete, the Arrangement Arrangement; and to defend, (ii) co-operate with the other Parties in connection with the performance by it and its subsidiaries of their obligations hereunder;
(b) not knowingly take or cause to be defendedtaken any action, or refrain from taking any commercially reasonable action, or permit any action to be taken or any commercially reasonable action to not be taken, which is inconsistent with this Agreement or which would reasonably be expected to significantly impede the consummation of the Arrangement or to prevent or materially delay the consummation of the transactions contemplated hereby;
(c) take all action within its control to ensure that the representations and warranties in Article 3, in the case of the Company, and Article 4, in the case of the Acquiror and Gerdau, remain true and correct as of the Effective Date as if such representations and warranties were made at and as of such date except to the extent such representations and warranties speak as of an earlier date;
(d) both before and after the Effective Date, use all commercially reasonable efforts to execute and do all acts, further deeds, things and assurances as may be required in the reasonable opinion of the other Parties’ legal counsel to permit the completion of the Arrangement;
(e) use all commercially reasonable efforts to effect all necessary registrations, filings, requests and submissions of information required by Governmental Entities from such Party relating to the Arrangement;
(f) use all commercially reasonable efforts to defend all lawsuits or other legal, regulatory or other proceedings to which it is a party involving such Party or brought against it any of its affiliates challenging or its directors or officers challenging affecting this Agreement or the consummation of the transactions contemplated hereby.;
(cg) in connection with promptly notify the Competition Act Approvalother Parties of:
(i) Bellatrix and Angle shall as promptly as reasonably practicable and any communication from any person alleging that the consent of such person (or another person) is or may be required in any event within 10 Business Days of the Agreement Date, duly file connection with the Commissioner a request for an ARC pursuant to Section 102 of Arrangement (and the Competition Act and supply the Commissioner with response thereto from such additional information as the Commissioner may request. Bellatrix shall have the primary responsibility for the preparation and submission of a request for an ARC pursuant to Section 102 of the Competition Act. Bellatrix and Angle shall respond as promptly as reasonably practicable under the circumstances to any inquiries received from the Commissioner for additional information Party, its subsidiaries or documentation and to all inquiries and requests received from the Commissionerits representatives);
(ii) the Parties shall coordinate and cooperate in exchanging information and supplying assistance that is reasonably requested any material communication from any Governmental Entity in connection with the Competition Act ApprovalArrangement (and the response thereto from such Party, including providing each other with advance copies and reasonable opportunities to comment on all filings made to the Commissioner and any additional its subsidiaries or supplementary information supplied pursuant thereto in respect of the Competition Act, and all notices and correspondence received from the Commissioner with respect to any filings under the Competition Act and shall consider in good faith their respective comments on all draft filingsits representatives); and
(iii) notwithstanding any other provision herein, in no event will Bellatrix be required hereunder Legal Action threatened or commenced against or otherwise to agree to any hold separate, divestiture or other order, decree or restriction on the businesses of Bellatrix affecting such Party or any other business, the conduct thereof or future transactions;
(d) use its reasonable commercial efforts to effect all necessary registrations and filings and submissions of information requested by Governmental Authorities or required to be effected or submitted by it in connection with the Arrangement, including, without limitation, under the Competition Act as set out above in Subsection 3.3(c), and to obtain all necessary consents, waivers and approvals required to be obtained by it in connection with the Arrangement, and each of Bellatrix and Angle will use its reasonable commercial efforts to cooperate with the other in connection with the performance by the other Party of its obligations under this Subsection 3.3(d) including, without limitation, assisting with the preparation and filing of any applications and continuing subsidiaries that is related to provide reasonable access to information and to maintain ongoing communications as between officers of Bellatrix and Angle, subject in all cases to the Angle Confidentiality Agreement and Bellatrix Confidentiality Agreement. Without limiting the generality of the foregoing, to the extent Competition Act Approval represents a condition precedent under Subsection 5.1(g) each of Bellatrix and Angle shall furnish to the other Party such information and assistance as the other Party may reasonably request in connection with its preparation of any filing or submission that may be necessary or advisable in connection with the Arrangement; and
(eh) notwithstanding any other provision in this Agreementsubject to applicable Laws, (including Subsections 3.3(c)(ii), 3.3(d) the Acquiror and 3.3
(f) except as otherwise required by Applicable Law, where either Bellatrix or Angle, as the case may be, is obligated Company shall use their commercially reasonable efforts to provide information that it deems, acting reasonably, cause the Common Shares to be competitively sensitive information de-listed from the TSX and the NYSE and de-registered under the United States Securities Exchange Act of 1934, promptly, with effect immediately following the acquisition by the Acquiror of the Common Shares pursuant to the other Party in connection with the Competition Act Approval, Bellatrix or Angle, as the case may be, shall provide such competitively sensitive information only to the external legal counsel Plan of the other Party or to external experts hired by external counsel to Bellatrix or Angle (or both) on the basis that such competitively sensitive information shall not be shared by such counsel or external experts with any other Person other than the Commissioner; andArrangement.
Appears in 1 contract
Samples: Arrangement Agreement (Gerdau S.A.)
Mutual Covenants Regarding the Arrangement. From the Agreement Date date hereof until the earlier Effective Date, each of the completion of the Arrangement Purchaser and the termination of this Agreement in accordance with Article 8, each Party shall:
(a) Harvest will use its commercially reasonable commercial efforts to complete the Arrangement on or before December 12to, 2013;
(b) use its reasonable commercial efforts to as soon as practicable, satisfy (or cause the satisfaction of) the conditions precedent to its obligations hereunder and to take, or cause to be taken, all other action and to do, or cause to be done, all other things necessary, proper or advisable under Applicable Laws to complete the Arrangement, including using commercially reasonable commercial efforts toefforts:
(ia) to obtain all Regulatory Approvals (including all Required Approvals) and all necessary waivers, consents and approvals required to be obtained by it from other parties to loan agreements, leases and other Contracts to which it is a party contracts, including those Regulatory Approvals, waivers, consents and approvals that may be necessary or desirable to permit the completion of the Arrangement on the terms contemplated herebyare Required Approvals;
(iib) obtain all necessary consents, assignments, waivers and amendments to, or terminations of, any instruments or other documents to which it is a party, or by which it is bound, that may be necessary to permit it to carry out the transactions contemplated by this Agreement and to take such other steps and actions as may be necessary or appropriate to fulfill its obligations hereunder; and
(iii) oppose, lift or rescind any injunction or restraining or other order seeking to stop, or otherwise adversely affecting its ability to consummate, the Arrangement and to defend, or cause to be defended, any proceedings to which it is a party or brought against it or its directors or officers challenging this Agreement or the consummation of the transactions contemplated hereby.; and
(c) in connection with the Competition Act Approval:
(i) Bellatrix and Angle shall as promptly as reasonably practicable and in any event within 10 Business Days of the Agreement Date, duly file with the Commissioner a request for an ARC pursuant to Section 102 of the Competition Act and supply the Commissioner with such additional information as the Commissioner may request. Bellatrix shall have the primary responsibility for the preparation and submission of a request for an ARC pursuant to Section 102 of the Competition Act. Bellatrix and Angle shall respond as promptly as reasonably practicable under the circumstances to any inquiries received from the Commissioner for additional information or documentation and to all inquiries and requests received from the Commissioner;
(ii) the Parties shall coordinate and cooperate in exchanging information and supplying assistance that is reasonably requested in connection with the Competition Act Approval, including providing each other with advance copies and reasonable opportunities to comment on all filings made to the Commissioner and any additional or supplementary information supplied pursuant thereto in respect of the Competition Act, and all notices and correspondence received from the Commissioner with respect to any filings under the Competition Act and shall consider in good faith their respective comments on all draft filings; and
(iii) notwithstanding any other provision herein, in no event will Bellatrix be required hereunder or otherwise to agree to any hold separate, divestiture or other order, decree or restriction on the businesses of Bellatrix or any other business, the conduct thereof or future transactions;
(d) use its reasonable commercial efforts to effect all necessary registrations and filings and submissions of information requested by Governmental Authorities or required to be effected or submitted by it in connection with the Arrangement, including, without limitation, under the Competition Act as set out above in Subsection 3.3(c), and to obtain all necessary consentswaivers, waivers consents and approvals required to be obtained by it in connection with the Arrangement, the failure of which to obtain would render completion of the Arrangement unlawful, and each of Bellatrix and Angle the Parties will use its commercially reasonable commercial efforts to cooperate with the other in connection with the performance by the other Party of its their obligations under this Subsection 3.3(d) Section 3.3 including, without limitation, assisting with the preparation and filing of any applications and procuring the cooperation, involvement and attendance of representatives of senior management in connection with all of the foregoing, and each of the Purchaser and Harvest will use its commercially reasonable efforts to cooperate with the other in connection with the performance by the other of their obligations under this Section 3.3 including, without limitation, continuing to provide reasonable access to information and to maintain ongoing communications as between officers of Bellatrix the Purchaser and AngleHarvest, subject in all cases to the Angle Confidentiality Agreement and Bellatrix Confidentiality Agreement. Without limiting the generality of the foregoing, to the extent Competition Act Approval represents a condition precedent under Subsection 5.1(g) each of Bellatrix and Angle shall furnish to the other Party such information and assistance as the other Party may reasonably request in connection with its preparation of any filing or submission that may be necessary or advisable in connection with the Arrangement; and
(e) notwithstanding any other provision in this Agreement, (including Subsections 3.3(c)(ii), 3.3(d) and 3.3
(f) except as otherwise required by Applicable Law, where either Bellatrix or Angle, as the case may be, is obligated to provide information that it deems, acting reasonably, to be competitively sensitive information to the other Party in connection with the Competition Act Approval, Bellatrix or Angle, as the case may be, shall provide such competitively sensitive information only to the external legal counsel of the other Party or to external experts hired by external counsel to Bellatrix or Angle (or both) on the basis that such competitively sensitive information shall not be shared by such counsel or external experts with any other Person other than the Commissioner; and.
Appears in 1 contract
Mutual Covenants Regarding the Arrangement. From the Agreement Date until the earlier of the completion of the Arrangement and the termination of this Agreement in accordance with Article 8, each Party shall:
(a) Each of the Petrus Parties and the PhosCan Parties will use its reasonable commercial efforts to complete the Arrangement on or before December 12, 2013;to:
(bi) use its reasonable commercial efforts to satisfy (or cause the satisfaction of) the conditions precedent to its obligations hereunder (and those of any of its subsidiaries) hereunder; (ii) not take, or cause to be taken, any action or cause anything to be done that would cause such obligations not to be fulfilled in a timely manner; and (iii) take, or cause to be taken, all other action and to do, or cause to be done, all other things necessary, proper or advisable under Applicable Laws to complete the PhosCan Continuance and the Arrangement, including using reasonable commercial efforts toefforts:
(i) obtain all waivers, consents and approvals from other parties to loan agreements, leases and other Contracts to which it is a party that may be necessary or desirable to permit the completion of the Arrangement on the terms contemplated hereby;
(ii) obtain all necessary consents, assignments, waivers and amendments to, to or terminations of, of any instruments or other documents to which it is a party, or by which it is bound, that agreements and take such measures as may be necessary appropriate to permit it fulfill its obligations hereunder and to carry out the transactions contemplated hereby;
(ii) to effect all necessary registrations and filings and submissions of information requested by this Agreement Governmental Authorities or required to be effected by it i n connection with the PhosCan Continuance and the Arrangement, and to take such other steps obtain all necessary waivers, consents and actions as may approvals required to be necessary or appropriate to fulfill its obligations hereunderobtained by it in connection with the PhosCan Continuance and the Arrangement; and
(iii) to oppose, lift or rescind any injunction or restraining or other order seeking to stop, or otherwise adversely affecting its ability to consummate, consummate the PhosCan Continuance or the Arrangement and to defend, or cause to be defended, any proceedings to which it is a party or brought against it or its directors or officers challenging this Agreement or the consummation of the transactions contemplated hereby.
(cb) The exchange of Petrus Shares and PhosCan Shares, respectively, for Petrus AcquisitionCo Shares is intended to constitute a transaction described in connection with the Competition Act Approval:
(i) Bellatrix and Angle shall as promptly as reasonably practicable and in any event within 10 Business Days section 351 of the Agreement Date, duly file with the Commissioner a request for an ARC pursuant to Section 102 U.S. Tax Code. Each of the Competition Act Petrus Parties and supply the Commissioner PhosCan Parties agrees that all reporting for U.S. Taxes shall be consistent with such additional information as characterization unless otherwise required under applicable tax law. Notwithstanding the Commissioner may request. Bellatrix shall have the primary responsibility for the preparation and submission of a request for an ARC pursuant to Section 102 foregoing, none of the Competition Act. Bellatrix Petrus Parties and Angle shall respond as promptly as reasonably practicable under the circumstances PhosCan Parties makes any representation, warranty or covenant to any inquiries received from the Commissioner for additional information other Party or documentation and to all inquiries and requests received from the Commissioner;
(ii) the Parties shall coordinate and cooperate in exchanging information and supplying assistance that is reasonably requested in connection with the Competition Act Approval, including providing each other with advance copies and reasonable opportunities to comment on all filings made to the Commissioner and any additional or supplementary information supplied pursuant thereto in respect of the Competition Act, and all notices and correspondence received from the Commissioner with respect to any filings under the Competition Act and shall consider in good faith their respective comments on all draft filings; and
(iii) notwithstanding any other provision hereinPetrus Shareholder, in no event will Bellatrix be required hereunder or otherwise to agree to any hold separate, divestiture PhosCan Shareholder or other orderholder of Petrus securities or PhosCan securities (including, decree without limitation, stock options, warrants, debt instruments or restriction on other similar rights or instruments) regarding the businesses U.S. tax treatment of Bellatrix or any other business, the conduct thereof or future transactions;
(d) use its reasonable commercial efforts to effect all necessary registrations and filings and submissions of information requested by Governmental Authorities or required to be effected or submitted by it in connection with the Arrangement, including, without limitationbut not limited to, under whether the Competition Act Arrangement will qualify as set out above in Subsection 3.3(c), a tax-deferred transaction within the meaning of section 351 of the U.S. Tax Code or as a tax- deferred transaction for purposes of any United States state or local income tax law.
(c) Each of the Petrus Parties and to obtain all necessary consents, waivers and approvals required to be obtained by it in connection with the Arrangement, and each of Bellatrix and Angle PhosCan Parties will use its reasonable commercial efforts to cooperate with the other in connection with the performance by the other Party of its their obligations under this Subsection 3.3(d) section 3.3 and this Agreement including, without limitation, assisting with the preparation and filing of any applications and continuing to provide reasonable access to information and to maintain ongoing communications as between officers of Bellatrix the Petrus Parties and Anglethe PhosCan Parties, subject in all cases to the Angle Confidentiality Agreement and Bellatrix Confidentiality Agreement. Without limiting the generality of the foregoing, to the extent Competition Act Approval represents a condition precedent under Subsection 5.1(g) each of Bellatrix and Angle shall furnish to the other Party such information and assistance as the other Party may reasonably request in connection with its preparation of any filing or submission that may be necessary or advisable in connection with the Arrangement; and
(e) notwithstanding any other provision in this Agreement, (including Subsections 3.3(c)(ii), 3.3(d) and 3.3
(f) except as otherwise required by Applicable Law, where either Bellatrix or Angle, as the case may be, is obligated to provide information that it deems, acting reasonably, to be competitively sensitive information to the other Party in connection with the Competition Act Approval, Bellatrix or Angle, as the case may be, shall provide such competitively sensitive information only to the external legal counsel of the other Party or to external experts hired by external counsel to Bellatrix or Angle (or both) on the basis that such competitively sensitive information shall not be shared by such counsel or external experts with any other Person other than the Commissioner; and.
Appears in 1 contract
Samples: Credit Agreement
Mutual Covenants Regarding the Arrangement. From Subject to the Agreement Date terms and conditions herein provided, each party covenants and agrees that, from the date hereof until the earlier of the completion of the Arrangement Effective Time and the termination of this Agreement in accordance with Article 87, each Party shall:
(a) except with the prior written consent of the other party, it shall use its reasonable commercial efforts to complete the Arrangement on or before December 12, 2013;
(b) use its reasonable commercial efforts to satisfy (or cause the satisfaction of) to be satisfied the conditions precedent to its obligations hereunder hereunder, and to take, take or cause to be taken, taken all other action and to do, do or cause to be done, done all other things necessary, proper or advisable under Applicable Laws to complete the Arrangement as soon as practicable after the date hereof, and to cooperate with each other in connection with the foregoing, including to:
(a) make and diligently prosecute a joint application to the Court for the Interim Order in respect of the Arrangement;
(b) prepare the Circular in accordance with all Applicable Laws;
(c) cause the Circular to be mailed to the Arsenal Shareholders and the Lone Pine Shareholders as soon as practicable, and in any event not later than July 29, 2016;
(d) subject to obtaining the approvals as contemplated in the Interim Order and as may be directed by the Court in the Interim Order, take all steps necessary or desirable jointly with the other party to submit the Arrangement to the Court and apply for the Final Order;
(e) jointly with the other party send the Articles of Arrangement to the Registrar upon satisfaction or waiver of the conditions set forth in Article 5;
(f) do all things necessary or desirable to give effect to the Arrangement, including using reasonable commercial efforts to:making and actively prosecuting applications for all applicable required regulatory consents, approvals and permissions as provided for herein;
(g) effect all necessary registrations, filings and submissions of records or information required to be effected by it or requested of it by Governmental Authorities in connection with the Arrangement;
(h) promptly notify the other party of any communication from or with any Governmental Authority regarding this Agreement or the Arrangement; and
(i) obtain all necessary waivers, consents and approvals from other parties to loan agreements, leases and other Contracts to which it is a party that may be necessary or desirable to permit the completion of the Arrangement on the terms contemplated hereby;
(ii) obtain all necessary consents, assignments, waivers and amendments to, or terminations of, any instruments or other documents to which it is a party, or by which it is bound, that may be necessary to permit it to carry out the transactions contemplated by this Agreement and to take such other steps and actions as may be necessary or appropriate to fulfill its obligations hereunder; and
(iii) oppose, lift or rescind any injunction or restraining or other order seeking to stop, or otherwise adversely affecting its ability to consummate, the Arrangement and to defend, or cause to be defended, any proceedings to which it is a party or brought against it or its directors or officers challenging this Agreement or the consummation of the transactions contemplated hereby.
(c) in connection with the Competition Act Approval:
(i) Bellatrix and Angle shall as promptly as reasonably practicable and in any event within 10 Business Days of the Agreement Date, duly file with the Commissioner a request for an ARC pursuant to Section 102 of the Competition Act and supply the Commissioner with such additional information as the Commissioner may request. Bellatrix shall have the primary responsibility for the preparation and submission of a request for an ARC pursuant to Section 102 of the Competition Act. Bellatrix and Angle shall respond as promptly as reasonably practicable under the circumstances to any inquiries received from the Commissioner for additional information or documentation and to all inquiries and requests received from the Commissioner;
(ii) the Parties shall coordinate and cooperate in exchanging information and supplying assistance that is reasonably requested in connection with the Competition Act Approval, including providing each other with advance copies and reasonable opportunities to comment on all filings made to the Commissioner and any additional or supplementary information supplied pursuant thereto in respect of the Competition Act, and all notices and correspondence received from the Commissioner with respect to any filings under the Competition Act and shall consider in good faith their respective comments on all draft filings; and
(iii) notwithstanding any other provision herein, in no event will Bellatrix be required hereunder or otherwise to agree to any hold separate, divestiture or other order, decree or restriction on the businesses of Bellatrix or any other business, the conduct thereof or future transactions;
(d) use its reasonable commercial efforts to effect all necessary registrations and filings and submissions of information requested by Governmental Authorities or required to be effected or submitted by it in connection with the Arrangement, including, without limitation, under the Competition Act as set out above in Subsection 3.3(c), and to obtain all necessary consents, waivers and approvals required to be obtained by it from third parties under any agreement or other instrument in connection with the Arrangement. If Competition Act Clearance is required, Lone Pine shall prepare (with the cooperation of Arsenal) and submit as soon as practicable to the Commissioner a request for an advance ruling certificate under the Competition Act and each party shall prepare and submit any other notifications, applications or filings as may be necessary or desirable to obtain the Competition Act Clearance, and in connection therewith each party shall share information as the other party may reasonably request in order to prepare and submit such request and such other notifications, applications and filings and to respond to any request for additional information by the Commissioner. Each party shall provide the other party, in advance, a copy of Bellatrix each such notification, application and Angle will filing for review and approval by the other party (not to be unreasonably withheld or delayed) and the parties shall use its reasonable commercial efforts to cooperate respond promptly to any request or notice from the Commissioner requiring the parties, or any one of them, to supply additional information. Neither party shall extend or consent to any extension of any waiting period under the Competition Act, if applicable, or enter into any agreement with any Governmental Authority to not consummate the Arrangement, except with the other in connection with the performance by consent of the other Party party (not to be unreasonably withheld or delayed). Each of its obligations under Arsenal and Lone Pine shall be responsible for paying one-half of the filing fee payable in respect of obtaining the Competition Act Clearance. Any information shared pursuant to this Subsection 3.3(d) including, without limitation, assisting with the preparation and filing of any applications and continuing to provide reasonable access to information and to maintain ongoing communications as between officers of Bellatrix and Angle, subsection 3.3 is subject in all cases to the Angle Confidentiality Agreement and Bellatrix Confidentiality Agreement. Without limiting the generality of the foregoing, Nothing in this subsection 3.3 shall require one party to the extent Competition Act Approval represents a condition precedent under Subsection 5.1(g) each of Bellatrix and Angle shall furnish disclose to the other Party such party any information and assistance as that, in the other Party may reasonably request in connection with its preparation opinion of any filing or submission that may be necessary or advisable in connection with the Arrangement; and
(e) notwithstanding any other provision in this Agreement, (including Subsections 3.3(c)(ii), 3.3(d) and 3.3
(f) except as otherwise required by Applicable Law, where either Bellatrix or Angle, as the case may be, is obligated to provide information that it deemsfirst-mentioned party, acting reasonably, to be is competitively sensitive information sensitive; provided, however, that external counsel to the other Party party shall have access to such information on a privileged and confidential basis in connection with obtaining the Competition Act Approval, Bellatrix or Angle, as the case may be, shall provide such competitively sensitive information only to the external legal counsel of the other Party or to external experts hired by external counsel to Bellatrix or Angle (or both) on the basis that such competitively sensitive information shall not be shared by such counsel or external experts with any other Person other than the Commissioner; andClearance.
Appears in 1 contract
Samples: Arrangement Agreement
Mutual Covenants Regarding the Arrangement. From Each of the Parties covenants and agrees that, subject to the terms and conditions of this Agreement, during that period from the date of this Agreement Date until the earlier of the completion of the Arrangement Effective Time and the termination of time that this Agreement is terminated in accordance with Article 8, each Party shallits terms:
(a) it shall use its commercially reasonable commercial efforts to, and shall cause its Subsidiaries to complete the Arrangement on or before December 12use all commercially reasonable efforts to, 2013;
(b) use its reasonable commercial efforts to satisfy (or cause the satisfaction of) the conditions precedent to its obligations hereunder as set forth in Article 5 to the extent the same is within its control and to take, or cause to be taken, all other action and to do, or cause to be done, all other things necessary, proper or advisable under all Applicable Laws to complete the Arrangement, including using its commercially reasonable commercial efforts to:
to promptly: (i) obtain all necessary and material waivers, consents and approvals required to be obtained by it from other parties to loan agreements, leases and other Contracts to which it is a party that may be necessary or desirable to permit the completion of the Arrangement on the terms contemplated hereby;
any Contracts; (ii) obtain all necessary consents, assignments, waivers and amendments to, material Authorizations as are required to be obtained by it or terminations of, any instruments or other documents to which it is a party, or by which it is bound, that may be necessary to permit it to carry out the transactions contemplated by of its Subsidiaries under Applicable Laws; (iii) fulfill all conditions and satisfy all provisions of this Agreement and to take such the Arrangement; and (iv) co-operate with the other steps Party in connection with the performance by it and actions as may be necessary or appropriate to fulfill its Subsidiaries of their obligations hereunder; and;
(iiib) opposeit shall not take any action, lift shall refrain from taking any action, and shall not permit any action to be taken or rescind any injunction not taken, which is inconsistent with this Agreement or restraining which would reasonably be expected to, individually or in the aggregate, materially impede or materially delay the consummation of the Arrangement or the other transactions contemplated herein;
(c) it shall use commercially reasonable efforts to: (i) defend all lawsuits or other order seeking to stoplegal, regulatory or otherwise adversely other proceedings against itself or any of its Subsidiaries challenging or affecting its ability to consummate, the Arrangement and to defend, or cause to be defended, any proceedings to which it is a party or brought against it or its directors or officers challenging this Agreement or the consummation of the transactions contemplated hereby.
(c) in connection with the Competition Act Approval:
(i) Bellatrix and Angle shall as promptly as reasonably practicable and in any event within 10 Business Days of the Agreement Date, duly file with the Commissioner a request for an ARC pursuant to Section 102 of the Competition Act and supply the Commissioner with such additional information as the Commissioner may request. Bellatrix shall have the primary responsibility for the preparation and submission of a request for an ARC pursuant to Section 102 of the Competition Act. Bellatrix and Angle shall respond as promptly as reasonably practicable under the circumstances to any inquiries received from the Commissioner for additional information or documentation and to all inquiries and requests received from the Commissioner;
; (ii) appeal, overturn or have lifted or rescinded any injunction or restraining order or other order, including orders, relating to itself or any of its Subsidiaries which may materially adversely affect the ability of the Parties shall coordinate to consummate the Arrangement; and cooperate in exchanging information and supplying assistance that is reasonably requested in connection with the Competition Act Approval, including providing each other with advance copies and reasonable opportunities to comment on all filings made to the Commissioner and any additional (iii) appeal or supplementary information supplied pursuant thereto overturn or otherwise have lifted or rendered non-applicable in respect of the Competition ActArrangement, and all notices and correspondence received any Applicable Law that makes consummation of the Arrangement illegal or otherwise prohibits or enjoins Ample or Akerna from consummating the Commissioner with respect to any filings under the Competition Act and shall consider in good faith their respective comments on all draft filingsArrangement; and
(iii) notwithstanding any other provision herein, in no event will Bellatrix be required hereunder or otherwise to agree to any hold separate, divestiture or other order, decree or restriction on the businesses of Bellatrix or any other business, the conduct thereof or future transactions;
(d) it shall carry out the terms of the Interim Order and Final Order applicable to it and use its commercially reasonable commercial efforts to effect comply promptly with all necessary registrations and filings and submissions of information requested by Governmental Authorities requirements which Applicable Laws may impose on it or required its Subsidiaries or Affiliates with respect to be effected or submitted by it in connection with the Arrangement, including, without limitation, under the Competition Act as set out above in Subsection 3.3(c), and to obtain all necessary consents, waivers and approvals required to be obtained by it in connection with the Arrangement, and each of Bellatrix and Angle transactions contemplated hereby. Each Party will use its commercially reasonable commercial efforts to cooperate with the other in connection with the performance by the other Party of its their obligations under this Subsection 3.3(d) including, without limitation, assisting with the preparation Section 3.5 and filing of any applications and this Agreement including continuing to provide reasonable access to information and to maintain ongoing communications as between officers of Bellatrix and Angleeach Party, subject in all cases to the Angle Confidentiality Agreement and Bellatrix Confidentiality Agreement. Without limiting the generality of the foregoing, to the extent Competition Act Approval represents a condition precedent under Subsection 5.1(g) each of Bellatrix and Angle shall furnish to the other Party such information and assistance as the other Party may reasonably request in connection with its preparation of any filing or submission that may be necessary or advisable in connection with the Arrangement; and
(e) notwithstanding any other provision in this Agreement, (including Subsections 3.3(c)(ii), 3.3(d) and 3.3
(f) except as otherwise required by Applicable Law, where either Bellatrix or Angle, as the case may be, is obligated to provide information that it deems, acting reasonably, to be competitively sensitive information to the other Party in connection with the Competition Act Approval, Bellatrix or Angle, as the case may be, shall provide such competitively sensitive information only to the external legal counsel of the other Party or to external experts hired by external counsel to Bellatrix or Angle (or both) on the basis that such competitively sensitive information shall not be shared by such counsel or external experts with any other Person other than the Commissioner; and.
Appears in 1 contract
Samples: Arrangement Agreement (Akerna Corp.)
Mutual Covenants Regarding the Arrangement. From Each Party shall perform, and shall cause its Subsidiaries to perform, all obligations required or desirable to be performed by such Party or any of its Subsidiaries under this Agreement, co- operate with the Agreement Date until the earlier of the completion of the Arrangement other Party in connection therewith, and the termination of this Agreement do all such other acts and things as may be necessary or desirable in accordance with Article 8, each Party shall:
(a) use its reasonable commercial efforts to complete the Arrangement on or before December 12, 2013;
(b) use its reasonable commercial efforts order to satisfy (or cause the satisfaction of) the conditions precedent to its obligations hereunder as set forth in Article 5 (to the extent the same is within its control) and to takeconsummate and make effective, or as soon as reasonably practicable, the transactions contemplated in this Agreement and, without limiting the generality of the foregoing, each Party shall and, where appropriate, shall cause to be taken, all other action and to do, or cause to be done, all other things necessary, proper or advisable under Applicable Laws to complete the Arrangement, including using reasonable commercial efforts its Subsidiaries to:
(ia) apply for and use all commercially reasonable efforts to obtain, and use all commercially reasonable efforts to assist the other Party to obtain, all Regulatory Approvals relating to such Party or any of its Subsidiaries and, in doing so, keep the other Party reasonably informed as to the status of the proceedings related to obtaining the Regulatory Approvals, including providing the other Party and its advisors with copies of all related applications and notifications, in draft form, in order for the other Party and its advisors to provide their comments thereon;
(b) apply for and use all commercially reasonable efforts to obtain all necessary waivers, consents and approvals required to be obtained by such Party or any of its Subsidiaries in connection with the Arrangement from other parties to loan agreementsContracts (without paying, leases and without committing itself or the other Contracts Party to which it is a pay any consideration or incur any liability or obligation to or in respect of any such other party that may be necessary or desirable to permit without the completion prior written consent of the Arrangement on the terms contemplated herebyother Party);
(iic) obtain effect all necessary consentsregistrations, assignments, waivers filings and amendments to, submissions of information requested by Governmental Entities required to be effected by such Party or terminations of, any instruments or other documents to which it is a party, or by which it is bound, that may be necessary to permit it to carry out the transactions contemplated by this Agreement and to take such other steps and actions as may be necessary or appropriate to fulfill of its obligations hereunder; and
(iii) oppose, lift or rescind any injunction or restraining or other order seeking to stop, or otherwise adversely affecting its ability to consummate, Subsidiaries in connection with the Arrangement and to defend, or cause to be defended, participate and appear in any proceedings of either Party before Governmental Entities;
(d) use all commercially reasonable efforts to comply promptly with all requirements which it is a party applicable Laws may impose on such Party or brought any of its Subsidiaries with respect to the Arrangement;
(e) defend all lawsuits or other legal, regulatory or other proceedings against it such Party or any of its directors Subsidiaries challenging or officers challenging affecting this Agreement or the consummation of the transactions contemplated hereby.;
(cf) use all commercially reasonable efforts to have lifted or rescinded any injunction or restraining order relating to such Party or any of its Subsidiaries or other order which may adversely affect the ability of the Parties to consummate the Arrangement;
(g) not knowingly take or cause to be taken any action that would or could reasonably be expected to impede, interfere with, prevent or delay the transactions contemplated by this Agreement or the Arrangement or to materially reduce the benefits of the other Party under this Agreement or the Arrangement; and
(h) promptly advise the other Party orally and, if then requested, in connection with the Competition Act Approvalwriting:
(i) Bellatrix and Angle shall of any event occurring subsequent to the date of this Agreement that would render any representation or warranty in respect of such Party contained in this Agreement (except any such representation or warranty which speaks solely as promptly of a date prior to the occurrence of such event), if made on or as reasonably practicable and of the date of such event or the Effective Time, untrue or inaccurate in any event within 10 Business Days of the Agreement Date, duly file with the Commissioner a request for an ARC pursuant to Section 102 of the Competition Act and supply the Commissioner with such additional information as the Commissioner may request. Bellatrix shall have the primary responsibility for the preparation and submission of a request for an ARC pursuant to Section 102 of the Competition Act. Bellatrix and Angle shall respond as promptly as reasonably practicable under the circumstances to any inquiries received from the Commissioner for additional information or documentation and to all inquiries and requests received from the Commissionermaterial respect;
(ii) the Parties shall coordinate and cooperate of any material breach by such Party of any covenant or agreement contained in exchanging information and supplying assistance that is reasonably requested in connection with the Competition Act Approval, including providing each other with advance copies and reasonable opportunities to comment on all filings made to the Commissioner and any additional or supplementary information supplied pursuant thereto in respect of the Competition Act, and all notices and correspondence received from the Commissioner with respect to any filings under the Competition Act and shall consider in good faith their respective comments on all draft filingsthis Agreement; and
(iii) notwithstanding of any other provision hereinchange, in no effect, event will Bellatrix or occurrence which would reasonably be required hereunder expected to have a Material Adverse Effect on such Party, or otherwise to agree materially impair or delay the consummation of the transactions contemplated by this Agreement or the ability of such Party to any hold separate, divestiture or other order, decree or restriction on the businesses of Bellatrix or any other business, the conduct thereof or future transactions;
(d) use its reasonable commercial efforts to effect all necessary registrations and filings and submissions of information requested by Governmental Authorities or required to be effected or submitted by it in connection with the Arrangement, including, without limitation, under the Competition Act as set out above in Subsection 3.3(c), and to obtain all necessary consents, waivers and approvals required to be obtained by it in connection with the Arrangement, and each of Bellatrix and Angle will use its reasonable commercial efforts to cooperate with the other in connection with the performance by the other Party of perform its obligations under this Subsection 3.3(d) including, without limitation, assisting with the preparation and filing of any applications and continuing to provide reasonable access to information and to maintain ongoing communications as between officers of Bellatrix and Angle, subject in all cases to the Angle Confidentiality Agreement and Bellatrix Confidentiality Agreement. Without limiting the generality of the foregoing, to the extent Competition Act Approval represents a condition precedent under Subsection 5.1(g) each of Bellatrix and Angle shall furnish to the other Party such information and assistance as the other Party may reasonably request in connection with its preparation of any filing or submission that may be necessary or advisable in connection with the Arrangement; and
(e) notwithstanding any other provision in this Agreement, (including Subsections 3.3(c)(ii), 3.3(d) and 3.3
(f) except as otherwise required by Applicable Law, where either Bellatrix or Angle, as the case may be, is obligated to provide information that it deems, acting reasonably, to be competitively sensitive information to the other Party in connection with the Competition Act Approval, Bellatrix or Angle, as the case may be, shall provide such competitively sensitive information only to the external legal counsel of the other Party or to external experts hired by external counsel to Bellatrix or Angle (or both) on the basis that such competitively sensitive information shall not be shared by such counsel or external experts with any other Person other than the Commissioner; andhereunder.
Appears in 1 contract
Samples: Arrangement Agreement
Mutual Covenants Regarding the Arrangement. From the Agreement Date until the earlier of the completion of the Arrangement and the termination of this Agreement in accordance with Article 8, each Party shall:
(a) use its each Party shall make commercially reasonable commercial efforts to complete cause the Arrangement Effective Date to occur on or before December 12about ten Business Days after the date of the Meetings and, 2013in any event, by the Outside Date;
(b) use its each Party shall make commercially reasonable commercial efforts to satisfy (or cause the satisfaction of) the conditions precedent to its obligations hereunder (to the extent that the satisfaction of the same is within the control of such Party) and to take, or cause to be taken, all other action and to do, or cause to be done, all other things necessary, proper or advisable under Applicable Laws to complete the Arrangement, including using making commercially reasonable commercial efforts to:
: (i) obtain all waivers, consents and approvals from other parties to loan agreements, leases and other Contracts to which it is a party that may be necessary or desirable to permit the completion of the Arrangement on the terms contemplated hereby;
; (ii) obtain all necessary consents, assignments, waivers and amendments to, or terminations of, any instruments or other documents to which it is a party, or by which it is bound, that may be necessary to permit it to carry out the transactions contemplated by this Agreement and to take such other steps and actions as may be necessary or appropriate to fulfill its obligations hereunder; and
and (iii) oppose, lift or rescind any injunction or restraining or other order seeking to stop, or otherwise adversely affecting its ability to consummate, the Arrangement and to defend, or cause to be defended, any proceedings to which it is a party or brought against it or its directors or officers challenging this Agreement or the consummation of the transactions contemplated hereby.;
(c) each Party agrees that it will not take any action, refrain from taking any commercially reasonable action, or permit any action to be taken or commercially reasonable action to not be taken, which is inconsistent with this Agreement or which would render or may reasonably be expected to render any representation or warranty made by it in this Agreement untrue in any material respect prior to the Effective Date or which would reasonably be expected to materially impede the consummation of the Arrangement or to prevent or delay the consummation of the transactions contemplated hereby, in each case, except as permitted by this Agreement;
(d) notwithstanding anything else in this Agreement, in connection with obtaining the Competition Act Approval:
(i) Bellatrix and Angle the Parties shall use commercially reasonable efforts to obtain Competition Act Approval as promptly soon as reasonably practicable and in any event within 10 Business Days of prior to the Agreement Outside Date, duly . In connection therewith:
(A) Cona shall prepare and file with the Commissioner a request for an ARC pursuant to Section 102 of the Competition Act and supply the Commissioner with such additional information as the Commissioner may request. Bellatrix shall have the primary responsibility for the preparation and submission in support of a request for an ARC pursuant to Section under section 102 of the Competition Act. Bellatrix and Angle shall respond Act as promptly soon as reasonably practicable under but in any event no later than five Business Days following the circumstances to any inquiries received from execution of this Agreement or such later date as the Commissioner for additional information or documentation and to all inquiries and requests received from the Commissioner;
(ii) the Parties shall coordinate and cooperate parties may mutually agree in exchanging information and supplying assistance that is reasonably requested in connection with the Competition Act Approval, including providing each other with advance copies and reasonable opportunities to comment on all filings made to the Commissioner and any additional or supplementary information supplied pursuant thereto in respect of the Competition Act, and all notices and correspondence received from the Commissioner with respect to any filings under the Competition Act and shall consider in good faith their respective comments on all draft filingswriting; and
(iii) notwithstanding any other provision herein, in no event will Bellatrix be required hereunder or otherwise to agree to any hold separate, divestiture or other order, decree or restriction on the businesses of Bellatrix or any other business, the conduct thereof or future transactions;
(d) use its reasonable commercial efforts to effect all necessary registrations and filings and submissions of information requested by Governmental Authorities or required to be effected or submitted by it in connection with the Arrangement, including, without limitation, under the Competition Act as set out above in Subsection 3.3(c), and to obtain all necessary consents, waivers and approvals required to be obtained by it in connection with the Arrangement, and each of Bellatrix and Angle will use its reasonable commercial efforts to cooperate with the other in connection with the performance by the other Party of its obligations under this Subsection 3.3(d) including, without limitation, assisting with the preparation and filing of any applications and continuing to provide reasonable access to information and to maintain ongoing communications as between officers of Bellatrix and Angle, subject in all cases to the Angle Confidentiality Agreement and Bellatrix Confidentiality Agreement. Without limiting the generality of the foregoing, to the extent Competition Act Approval represents a condition precedent under Subsection 5.1(g) each of Bellatrix and Angle shall furnish to the other Party such information and assistance as the other Party may reasonably request in connection with its preparation of any filing or submission that may be necessary or advisable in connection with the Arrangement; and
(e) notwithstanding any other provision in this Agreement, (including Subsections 3.3(c)(ii), 3.3(d) and 3.3
(f) except as otherwise required by Applicable Law, where either Bellatrix or Angle, as the case may be, is obligated to provide information that it deems, acting reasonably, to be competitively sensitive information to the other Party in connection with the Competition Act Approval, Bellatrix or Angle, as the case may be, shall provide such competitively sensitive information only to the external legal counsel of the other Party or to external experts hired by external counsel to Bellatrix or Angle (or both) on the basis that such competitively sensitive information shall not be shared by such counsel or external experts with any other Person other than the Commissioner; and
Appears in 1 contract
Mutual Covenants Regarding the Arrangement. From the Agreement Date until the earlier of the completion of the Arrangement Effective Time and the termination of this Agreement in accordance with Article 8, each Party shall:
(a) use its reasonable commercial efforts to complete the Arrangement on or before December 12August 31, 20132018;
(b) use its reasonable commercial efforts to satisfy (or cause the satisfaction of) the conditions precedent to its obligations hereunder and to take, or cause to be taken, all other action and to do, or cause to be done, all other things necessary, proper or advisable under Applicable Laws to complete the Arrangement, including using reasonable commercial efforts to:
(i) obtain all waivers, consents and approvals from other parties to loan agreements, leases and other Contracts to which it is a party that may be necessary or desirable to permit the completion of the Arrangement on the terms contemplated herebyhereby or required to maintain the Material Contracts in full force and effect following the Effective Time, in each case on terms that are reasonably satisfactory to the Parties;
(ii) obtain all necessary consents, assignments, waivers and amendments to, or terminations of, any instruments or other documents to which it is a party, or by which it is bound, that may be necessary to permit it to carry out the transactions contemplated by this Agreement and to take such other steps and actions as may be necessary or appropriate to fulfill its obligations hereunder; and;
(iii) oppose, lift or rescind any injunction or restraining or other order seeking to stop, or otherwise adversely affecting its ability to consummate, the Arrangement and to defend, or cause to be defended, any proceedings to which it is a party or brought against it or its directors or officers challenging this Agreement or the consummation of the transactions contemplated hereby.; and
(iv) use all commercially reasonable efforts to cause each of the Baytex Supporting Shareholders and Raging River Supporting Shareholders to vote in favour of the Arrangement Resolution and the Share Issuance Resolution, as applicable, as required by and subject to the Baytex Support Agreements and the Raging River Support Agreements, respectively;
(c) prior to (i) the date scheduled for the printing of the Circular, agree on the composition of the Baytex Board following the Effective Time, provided that unless otherwise agreed to by the Parties in writing, the Baytex Board immediately following the Effective Time shall: (A) have no more than 10 members, (B) be comprised of six current representatives from the Baytex Board (to be determined by Baytex in its sole discretion, subject to the limitations specified in (C) and (D) below) and the following four representatives from the Raging River Board: Xxxx Xxxxxxx, Xxxx Xxxxxxx, Xxxxx Xxxxx and Xxxxx Xxxxxx, (C) have at least one member who is a woman, and (D) have no more than two non-independent members (as determined in accordance with Applicable Canadian Securities Laws); and (ii) the date that is 10 Business Days prior to the Effective Date, agree on the committees of the Baytex Board that will exist following the Effective Time and the composition of such committees;
(d) as soon as reasonably practicable following the Agreement Date and in any event no later than 10 Business Days prior to the Effective Date, Baytex and Raging River shall agree, acting reasonably, on the names and positions of the officers of Baytex following the Effective Date provided such officers will include, without limitation, the officers identified in the joint news release of the Parties announcing the transactions contemplated hereby issued on or after the Agreement Date;
(e) in connection with the Competition Act Approval:
(i) Bellatrix Baytex and Angle Raging River shall as promptly as reasonably practicable and in any event within 10 Business Days of the Agreement Date, duly file with the Commissioner a request for an ARC pursuant to Section 102 of the Competition Act and supply the Commissioner with such additional information as the Commissioner may request. Bellatrix Baytex shall have the primary responsibility for the preparation and submission of a request for an ARC pursuant to Section 102 of the Competition Act. Bellatrix Baytex and Angle Raging River shall respond as promptly as reasonably practicable under the circumstances to any inquiries received from the Commissioner for additional information or documentation and to all inquiries and requests received from the Commissionerdocumentation;
(ii) the Parties shall coordinate and cooperate in exchanging information and supplying assistance that is reasonably requested in connection with the Competition Act Approval, including providing each other with advance copies and reasonable opportunities to comment on all filings made to the Commissioner and any additional or supplementary information supplied pursuant thereto in respect of the Competition Act, and all notices and correspondence received from the Commissioner with respect to any filings under the Competition Act and shall consider in good faith their respective comments on all draft filings;
(iii) no Party may participate in any substantive meeting or discussion (whether in person, by telephone or otherwise) with the Commissioner in respect of obtaining or concluding the Competition Act Approval without the participation or consent of the Other Party; and
(iiiiv) notwithstanding any if an ARC or No-Action Letter is not received within 14 Business Days of the filing of the request for an ARC pursuant to Section 3.3(e)(i) above, either Party may, acting reasonably, give notice to the other provision hereinof its intention to file a premerger notification form pursuant to Section 114(1) of the Competition Act, in no event will Bellatrix be required hereunder or otherwise which case each Party shall file a premerger notification form as soon as reasonably practical following such notice of intention to agree to any hold separate, divestiture or other order, decree or restriction on the businesses of Bellatrix or any other business, the conduct thereof or future transactionsfile;
(df) use its reasonable commercial efforts to effect all necessary registrations and filings and submissions of information requested by Governmental Authorities or required to be effected or submitted by it in connection with the Arrangement, including, without limitation, under the Competition Act as set out above in Subsection 3.3(c3.3(e), and to obtain all necessary consents, waivers and approvals required to be obtained by it in connection with the Arrangement, and each of Bellatrix Baytex and Angle Raging River will use its reasonable commercial efforts to cooperate with the other in connection with the performance by the other Other Party of its obligations under this Subsection 3.3(d3.3(f) including, without limitation, assisting with the preparation and filing of any applications and continuing to provide reasonable access to information and to maintain ongoing communications as between officers of Bellatrix Baytex and AngleRaging River, subject in all cases to the Angle Raging River Confidentiality Agreement and Bellatrix Baytex Confidentiality Agreement. Without limiting the generality of the foregoing, to the extent Competition Act Approval represents a condition precedent under Subsection 5.1(g) each of Bellatrix and Angle shall furnish to the other Party such information and assistance as the other Party may reasonably request in connection with its preparation of any filing or submission that may be necessary or advisable in connection with the Arrangement; and;
(eg) notwithstanding any other provision in this Agreement, (including Subsections 3.3(c)(ii3.3(e)(ii), 3.3(d3.3(f) and 3.3
(f3.3(h)) except as otherwise required by Applicable Law, where either Bellatrix Baytex or AngleRaging River, as the case may be, is obligated to provide information that it deems, acting reasonably, to be competitively sensitive information to the other Other Party in connection with the Competition Act Approval, Bellatrix Baytex or AngleRaging River, as the case may be, shall provide such competitively sensitive information only to the external legal counsel of the other Other Party or to external experts hired by external counsel to Bellatrix Baytex or Angle Raging River (or both) on the basis that such competitively sensitive information shall not be shared by such counsel or external experts with any other Person other than external counsel and external experts for the Other Party and the Commissioner, provided that the disclosing Party also provides the Other Party with a redacted version of any such application, notice, filing, submissions, undertakings, correspondence or communications (including responses to requests for information and inquiries from any Governmental Authority) which does not contain any such competitively sensitive or other restricted information; and
(h) use its reasonable commercial efforts to cooperate with the Other Party in connection with the performance by the Other Party of its obligations under this Agreement including, without limitation, continuing to provide reasonable access to information and to maintain ongoing communications as between Representatives of Baytex and Raging River, subject in all cases to the Baytex Confidentiality Agreement or Raging River Confidentiality Agreement, as applicable.
Appears in 1 contract
Mutual Covenants Regarding the Arrangement. From the Agreement Date until the earlier of the completion of the Arrangement and the termination of this Agreement in accordance with Article 8, each Party shall:
: (a) use its each Party shall make commercially reasonable commercial efforts to complete cause the Arrangement Effective Date to occur on or before December 12about ten Business Days after the date of the Meetings and, 2013;
in any event, by the Outside Date; (b) use its each Party shall make commercially reasonable commercial efforts to satisfy (or cause the satisfaction of) the conditions precedent to its obligations hereunder (to the extent that the satisfaction of the same is within the control of such Party) and to take, or cause to be taken, all other action and to do, or cause to be done, all other things necessary, proper or advisable under Applicable Laws to complete the Arrangement, including using making commercially reasonable commercial efforts to:
: (i) obtain all waivers, consents and approvals from other parties to loan agreements, leases and other Contracts to which it is a party that may be necessary or desirable to permit the completion of the Arrangement on the terms contemplated hereby;
; (ii) obtain all necessary consents, assignments, waivers and amendments to, or terminations of, any instruments or other documents to which it is a party, or by which it is bound, that may be necessary to permit it to carry out the transactions contemplated by this Agreement and to take such other steps and actions as may be necessary or appropriate to fulfill its obligations hereunder; and
and (iii) oppose, lift or rescind any injunction or restraining or other order seeking to stop, or otherwise adversely affecting its ability to consummate, the Arrangement and to defend, or cause to be defended, any proceedings to which it is a party or brought against it or its directors or officers challenging this Agreement or the consummation of the transactions contemplated hereby.
; (c) in connection with the Competition Act Approval:
(i) Bellatrix and Angle shall as promptly as reasonably practicable and in each Party agrees that it will not take any event within 10 Business Days of the Agreement Dateaction, duly file with the Commissioner a request for an ARC pursuant to Section 102 of the Competition Act and supply the Commissioner with such additional information as the Commissioner may request. Bellatrix shall have the primary responsibility for the preparation and submission of a request for an ARC pursuant to Section 102 of the Competition Act. Bellatrix and Angle shall respond as promptly as reasonably practicable under the circumstances to refrain from taking any inquiries received from the Commissioner for additional information commercially reasonable action, or documentation and to all inquiries and requests received from the Commissioner;
(ii) the Parties shall coordinate and cooperate in exchanging information and supplying assistance that is reasonably requested in connection with the Competition Act Approval, including providing each other with advance copies and reasonable opportunities to comment on all filings made to the Commissioner and permit any additional or supplementary information supplied pursuant thereto in respect of the Competition Act, and all notices and correspondence received from the Commissioner with respect to any filings under the Competition Act and shall consider in good faith their respective comments on all draft filings; and
(iii) notwithstanding any other provision herein, in no event will Bellatrix be required hereunder or otherwise to agree to any hold separate, divestiture or other order, decree or restriction on the businesses of Bellatrix or any other business, the conduct thereof or future transactions;
(d) use its reasonable commercial efforts to effect all necessary registrations and filings and submissions of information requested by Governmental Authorities or required action to be effected taken or submitted commercially reasonable action to not be taken, which is inconsistent with this Agreement or which would render or may reasonably be expected to render any representation or warranty made by it in connection with the Arrangement, including, without limitation, under the Competition Act as set out above this Agreement untrue in Subsection 3.3(c), and to obtain all necessary consents, waivers and approvals required to be obtained by it in connection with the Arrangement, and each of Bellatrix and Angle will use its reasonable commercial efforts to cooperate with the other in connection with the performance by the other Party of its obligations under this Subsection 3.3(d) including, without limitation, assisting with the preparation and filing of any applications and continuing to provide reasonable access to information and to maintain ongoing communications as between officers of Bellatrix and Angle, subject in all cases material respect prior to the Angle Confidentiality Agreement and Bellatrix Confidentiality Agreement. Without limiting Effective Date or which would reasonably be expected to materially impede the generality consummation of the foregoingArrangement or to prevent or delay the consummation of the transactions contemplated hereby, to the extent Competition Act Approval represents a condition precedent under Subsection 5.1(g) in each of Bellatrix and Angle shall furnish to the other Party such information and assistance case, except as the other Party may reasonably request in connection with its preparation of any filing or submission that may be necessary or advisable in connection with the Arrangement; and
(e) notwithstanding any other provision in permitted by this Agreement, (including Subsections 3.3(c)(ii), 3.3(d) and 3.3
(f) except as otherwise required by Applicable Law, where either Bellatrix or Angle, as the case may be, is obligated to provide information that it deems, acting reasonably, to be competitively sensitive information to the other Party in connection with the Competition Act Approval, Bellatrix or Angle, as the case may be, shall provide such competitively sensitive information only to the external legal counsel of the other Party or to external experts hired by external counsel to Bellatrix or Angle (or both) on the basis that such competitively sensitive information shall not be shared by such counsel or external experts with any other Person other than the Commissioner; and;
Appears in 1 contract
Mutual Covenants Regarding the Arrangement. From Subject to Applicable Laws, from the Agreement Date until the earlier of the completion of the Arrangement and Effective Time or the termination of this Agreement in accordance with Article 89, each except as otherwise expressly permitted or specifically contemplated by this Agreement (including the Plan of Arrangement), or as otherwise required by Applicable Laws or except with the prior written consent of the Other Party shall:(such consent not to be unreasonably withheld, conditioned or delayed):
(a) each Party will comply promptly with all requirements imposed by Law on it with respect to this Agreement and the Arrangement, including seeking all required securityholder approvals at the Husky Meeting and the Cenovus Meeting, as applicable;
(b) each Party will use its reasonable commercial efforts to complete assist the Arrangement on Other Party in obtaining the Interim Order and the Final Order and to carry out the intent or before December 12, 2013effect of this Agreement and the Arrangement;
(bc) each Party shall use its reasonable commercial efforts to satisfy (or cause the satisfaction of) the conditions precedent to its obligations hereunder under this Agreement (to the extent the satisfaction of the same is within the control of such Party) and to take, or cause to be taken, all other action actions and to do, or cause to be done, all other things necessary, proper or advisable under Applicable Laws to complete and give effect to the transactions contemplated by this Agreement and the Arrangement, including using its reasonable commercial efforts to:
to promptly: (i) obtain and maintain all necessary waivers, consents consents, permits, exemptions, orders, agreements, amendments (including, if applicable, in respect of the Interim Order), confirmations and approvals required to be obtained from any Person in connection with the Arrangement (including from counterparties to any material Contracts); and notwithstanding anything to the contrary in this Agreement, in connection with obtaining any approval or consent from any Person (other parties than a Governmental Authority) with respect to loan agreementsany transaction contemplated by this Agreement: (A) not, leases and other Contracts to which it is a party that may be necessary or desirable to permit without the completion prior written consent of the Arrangement on Other Party (such consent not to be unreasonably withheld, conditioned or delayed), pay or commit to pay to such Person whose approval or consent is being solicited any material amount of cash or other consideration, or make any material commitment or incur any liability or other obligation due to such Person to the terms contemplated hereby;
extent that such payments are not provided for in a Contract with such Person; and (B) neither Party nor any of their respective affiliates shall be required to pay or commit to pay to such Person whose approval or consent is being solicited any material amount of cash or other consideration, or make any commitment or incur any liability or other obligation to such Person to the extent that such payments are not provided for in a Contract with such Person; (ii) other than in connection with obtaining the Key Regulatory Approvals, which approvals shall be governed by the provisions of Section 3.7, obtain all necessary consents, assignments, waivers and amendments to, or terminations of, any instruments or other documents to which it is a party, or by which it is bound, that may be necessary to permit it to carry out the transactions contemplated by this Agreement and to take such other steps and actions as may be necessary or appropriate to fulfill its obligations hereunder; and
(iii) other than in connection with obtaining the Key Regulatory Approvals, which approvals shall be governed by the provisions of Section 3.7, effect all necessary registrations, filings and submissions of information required by Governmental Authority from such Party and its subsidiaries relating to the Arrangement; (iv) other than in connection with obtaining the Key Regulatory Approvals, which approvals shall be governed by the provisions of Section 3.7, obtain all necessary exemptions, consents, orders, approvals and authorizations as are required by it under all Applicable Laws to permit it to carry out the transactions contemplated by this Agreement and/or necessary to complete the Arrangement; and (v) upon reasonable consultation with the Other Party, oppose, lift or rescind any injunction or injunction, restraining or other order order, decree or ruling seeking to stopretain, enjoin or otherwise prohibit or adversely affecting its ability to consummate, affect the consummation of the Arrangement and to defend, or cause to be defended, any all lawsuits or other legal, regulatory or other proceedings to which it is a party challenging or brought against it affecting the Arrangement or its directors or officers challenging this Agreement or the consummation of the transactions contemplated hereby.
(c) in connection with the Competition Act Approval:
(i) Bellatrix and Angle shall as promptly as reasonably practicable and in any event within 10 Business Days of the Agreement Date, duly file with the Commissioner a request for an ARC pursuant to Section 102 of the Competition Act and supply the Commissioner with such additional information as the Commissioner may request. Bellatrix shall have the primary responsibility for the preparation and submission of a request for an ARC pursuant to Section 102 of the Competition Act. Bellatrix and Angle shall respond as promptly as reasonably practicable under the circumstances to any inquiries received from the Commissioner for additional information or documentation and to all inquiries and requests received from the Commissioner;
(ii) the Parties shall coordinate and cooperate in exchanging information and supplying assistance that is reasonably requested in connection with the Competition Act Approval, including providing each other with advance copies and reasonable opportunities to comment on all filings made to the Commissioner and any additional or supplementary information supplied pursuant thereto in respect of the Competition Act, and all notices and correspondence received from the Commissioner with respect to any filings under the Competition Act and shall consider in good faith their respective comments on all draft filings; and
(iii) notwithstanding any other provision herein, in no event will Bellatrix be required hereunder or otherwise to agree to any hold separate, divestiture or other order, decree or restriction on the businesses of Bellatrix or any other business, the conduct thereof or future transactions;
(d) use each Party will promptly provide to the Other Party, for review by the Other Party and its counsel, prior to filing or issuance of the same, any proposed public disclosure document, including any news release or material change report, subject to such Party's obligations under Applicable Canadian Securities Laws and Applicable U.S. Securities Laws to make continuous disclosure and timely disclosure of material information, and the Other Party agrees to keep such information confidential until it is filed as part of such Party's public disclosure record on SEDAR and XXXXX, as applicable;
(e) no member of the Husky Group or the Cenovus Group, as applicable, shall take any action, refrain from taking any reasonable commercial efforts action, or permit any action to effect all necessary registrations and filings and submissions be taken or reasonable commercial action to not be taken, which is inconsistent with this Agreement or which would reasonably be expected to prevent, materially impede or significantly delay the consummation of information requested the Arrangement or the transactions contemplated hereby, or which would render, or may reasonably be expected to render, any representation or warranty made by such Party in this Agreement untrue in any material respect;
(f) each Party will promptly notify the Other Party in writing of: (i) any notice or other communication from any Person (other than Governmental Authorities or required to be effected or submitted by it in connection with the ArrangementKey Regulatory Approvals) alleging that the consent or waiver, includingpermit, without limitationexemption, under order, approval, agreement, amendment or confirmation of such Person (or another Person) is or may be required in connection with this Agreement or the Competition Act as set out above in Subsection 3.3(c)Arrangement and the response thereto from such Party, and to obtain all necessary consents, waivers and approvals required to be obtained by it its subsidiaries or its Representatives; (ii) any material communication from any Governmental Authority in connection with the transactions and Key Regulatory Approvals contemplated by this Agreement and the response thereto from such Party, its subsidiaries or its Representatives; (iii) any material Governmental Authority or third party complaints, investigations or hearings (or communications indicating that the same may be contemplated) in respect of any member of the Husky Group or the Cenovus Group, as applicable, or the Arrangement, and any material change in relation thereto; (iv) all material matters relating to material claims, actions, enquiries, applications, suits, demands, arbitrations, charges, indictments, hearings or other civil, criminal, administrative or investigative proceedings, or other investigations or examinations pending or, to the knowledge of such Party, threatened, against any member of the Husky Group or the Cenovus Group, as applicable, or related to the Arrangement; and (v) any material change (actual, anticipated, contemplated or, to the knowledge of such Party, threatened) in its business, operations, affairs, assets, capitalization, financial condition, licenses, permits, rights, privileges or liabilities, whether contractual or otherwise, or of any change in any representation or warranty provided by such Party in this Agreement which change is or may be of such a nature to render any representation or warranty misleading or untrue in any material respect; and such Party shall in good faith discuss with the Other Party any change in circumstances (actual, anticipated, contemplated, or to the knowledge of such Party, threatened) which is of such a nature that there may be a reasonable question as to whether notice need to be given to the Other Party pursuant to this Section 3.3(f);
(g) each Party shall promptly inform the Other Party as soon as it is aware of Bellatrix and Angle any material communication (written or oral) received by such Party or its Representatives from the Husky Common Shareholders, the Husky Preferred Shareholders or the holders of Husky Options (in the case of Husky) or the Cenovus Common Shareholders (in the case of Cenovus) in opposition to the Arrangement or the transactions contemplated in this Agreement;
(h) each Party will use its reasonable commercial efforts to cooperate maintain its status as a "reporting issuer" (or similarly designated entity) not in default under the securities legislation in force in all provinces and territories of Canada where it is a reporting issuer at the Agreement Date;
(i) each Party shall indemnify and save harmless the Other Party and its subsidiaries and their respective directors, officers, employees, representatives and agents from and against any and all liabilities, claims, demands, losses, costs, damages and expenses (excluding any loss of profits or consequential damages) to which any of such Persons may be subject or which any of such Persons may suffer or incur, whether under the provisions of any Law or otherwise, in any way caused by, or arising, directly or indirectly, from or in consequence of: (i) any misrepresentation or alleged misrepresentation by such Party in the Husky Information (in the case of Husky) or the Cenovus Information (in the case of Cenovus) contained in the Circular; or (ii) any order made or any inquiry, investigation or proceeding by any securities commission or other competent authority based upon any untrue statement or omission of a material fact or alleged untrue statement or omission of a material fact or any misrepresentation or any alleged misrepresentation by such Party in the Husky Information (in the case of Husky) or the Cenovus Information (in the case of Cenovus) contained in the Circular, except that such Party shall not be liable in any such case to the extent that any such liabilities, claims, demands, losses, costs, damages and expenses arise out of or are based solely upon any untrue statement or omission of a material fact or alleged untrue statement or omission of a material fact or any misrepresentation or any alleged misrepresentation in the Circular that is based solely on the Cenovus Information or the Husky Information, as applicable, included in the Circular or the non-compliance by the Other Party with the other any requirement of Applicable Laws in connection with the performance transactions contemplated by this Agreement;
(j) except for proxies and non-substantive communications with the other Party holders of its obligations under this Subsection 3.3(d) includingsecurities and communications that a Party is required to keep confidential pursuant to Applicable Law, without limitation, assisting with the preparation and filing of any applications and continuing to provide reasonable access to information and to maintain ongoing communications as between officers of Bellatrix and Angle, subject in all cases such Party shall furnish promptly to the Angle Confidentiality Agreement and Bellatrix Confidentiality Agreement. Without limiting Other Party, or the generality Other Party's counsel, a copy of the foregoingeach notice, to the extent Competition Act Approval represents a condition precedent under Subsection 5.1(g) each report, schedule or other document delivered, filed or received by such Party from holders of Bellatrix and Angle shall furnish to the other Party such information and assistance as the other Party may reasonably request Party's securities or regulatory agencies in connection with its preparation of with: (i) the Arrangement; (ii) the Husky Meeting or the Cenovus Meeting, as applicable; (iii) any filing or submission that may be necessary or advisable filings under Applicable Laws in connection with the Arrangementtransactions contemplated by this Agreement; andand (iv) any dealings with stock exchanges or regulatory agencies, in connection with the transactions contemplated by this Agreement;
(ek) notwithstanding any other provision than in this Agreementconnection with obtaining the Key Regulatory Approvals, (including Subsections 3.3(c)(ii)which approvals shall be governed by the provisions of Section 3.7, 3.3(d) each Party shall make all filings and 3.3
(f) except as otherwise applications under Applicable Laws that are required by Applicable Law, where either Bellatrix or Angle, as the case may be, is obligated to provide information that it deems, acting reasonably, to be competitively sensitive information to the other made by such Party in connection with the Competition Act ApprovalArrangement and shall take all reasonable commercial action necessary to be in compliance, Bellatrix in all material respects, with such Applicable Laws; and
(l) each Party shall ensure that it has available funds to permit the payment of the Cenovus Termination Amount pursuant to Section 7.2, the Husky Termination Amount pursuant to Section 7.3 or Angleexpense reimbursement pursuant to Section 7.5, as the case applicable, having regard to its other liabilities and obligations, and will take all such actions as may be, shall provide be necessary to ensure that it maintains such competitively sensitive information only availability to the external legal counsel of the other Party or ensure that it is able to external experts hired by external counsel to Bellatrix or Angle (or both) on the basis that pay such competitively sensitive information shall not be shared by such counsel or external experts with any other Person other than the Commissioner; andamount if required.
Appears in 1 contract
Mutual Covenants Regarding the Arrangement. From the date of this Agreement Date until the earlier of the completion of the Arrangement and the Effective Date or termination of this Agreement in accordance with Article 8Agreement, each Party shall:
(a) of Precision and Trinidad will use its reasonable commercial efforts to complete the Arrangement on or before December 12, 2013;
to: (bi) use its reasonable commercial efforts to satisfy (or cause the satisfaction of) the conditions precedent to its obligations hereunder hereunder; (ii) not take, or cause to be taken, any action or cause anything to be done that would cause such conditions or obligations not to be fulfilled in a timely manner; and to (iii) take, or cause to be taken, all other action and to do, or cause to be done, all other things necessary, proper or advisable under Applicable Laws to complete the Arrangement, including using reasonable commercial efforts toefforts:
(ia) to effect all necessary registrations and filings and submissions of information requested by Governmental Authorities or required to be effected by it in connection with the Arrangement, and to obtain and maintain all necessary waivers, consents and approvals from other third parties required to be obtained by it, including from parties to loan agreements, leases and other Contracts to which it is a party that may be necessary or desirable to permit Contracts, in connection with the completion of the Arrangement on the terms contemplated herebyArrangement;
(iib) obtain all necessary consents, assignments, waivers and amendments to, or terminations of, any instruments or other documents to which it is a party, or by which it is bound, that may be necessary to permit it to carry out the transactions contemplated by this Agreement and to take such other steps and actions as may be necessary or appropriate to fulfill its obligations hereunder; and
(iii) oppose, lift or rescind any injunction or restraining or other order seeking to stop, or otherwise adversely affecting its ability to consummate, the Arrangement and to defend, or cause to be defended, any proceedings to which it is a party or brought against it or its directors or officers challenging this Agreement or the consummation of the transactions contemplated hereby.; and
(c) to cooperate with each other in connection with taking, or causing to be taken, all actions necessary to delist the Competition Act Approval:
(i) Bellatrix and Angle shall as promptly as reasonably practicable and in any event within 10 Business Days of the Agreement Date, duly file with the Commissioner a request for an ARC pursuant to Section 102 of the Competition Act and supply the Commissioner with such additional information as the Commissioner may request. Bellatrix shall have the primary responsibility for the preparation and submission of a request for an ARC pursuant to Section 102 of the Competition Act. Bellatrix and Angle shall respond as promptly as reasonably practicable under the circumstances to any inquiries received Trinidad Shares from the Commissioner for additional information or documentation TSX; provided, however, that such delisting will not be effective until after the Effective Time. Each of Precision and to all inquiries and requests received from the Commissioner;
(ii) the Parties shall coordinate and cooperate in exchanging information and supplying assistance that is reasonably requested in connection with the Competition Act Approval, including providing each other with advance copies and reasonable opportunities to comment on all filings made to the Commissioner and any additional or supplementary information supplied pursuant thereto in respect of the Competition Act, and all notices and correspondence received from the Commissioner with respect to any filings under the Competition Act and shall consider in good faith their respective comments on all draft filings; and
(iii) notwithstanding any other provision herein, in no event will Bellatrix be required hereunder or otherwise to agree to any hold separate, divestiture or other order, decree or restriction on the businesses of Bellatrix or any other business, the conduct thereof or future transactions;
(d) use its reasonable commercial efforts to effect all necessary registrations and filings and submissions of information requested by Governmental Authorities or required to be effected or submitted by it in connection with the Arrangement, including, without limitation, under the Competition Act as set out above in Subsection 3.3(c), and to obtain all necessary consents, waivers and approvals required to be obtained by it in connection with the Arrangement, and each of Bellatrix and Angle Trinidad will use its reasonable commercial efforts to cooperate with the other in connection with the performance by the other Party of its their obligations under this Subsection 3.3(d) Section 3.4 and this Agreement including, without limitation, assisting with the preparation and filing of any applications and continuing to provide reasonable access to information and to maintain ongoing communications as between officers of Bellatrix Precision and AngleTrinidad, subject in all cases to the Angle Confidentiality Agreement and Bellatrix Confidentiality Agreement. Without limiting the generality of the foregoing, to the extent Competition Act Approval represents a condition precedent under Subsection 5.1(g) each of Bellatrix and Angle shall furnish to the other Party such information and assistance as the other Party may reasonably request in connection with its preparation of any filing or submission that may be necessary or advisable in connection with the Arrangement; and
(e) notwithstanding any other provision in this Agreement, (including Subsections 3.3(c)(ii), 3.3(d) and 3.3
(f) except as otherwise required by Applicable Law, where either Bellatrix or Angle, as the case may be, is obligated to provide information that it deems, acting reasonably, to be competitively sensitive information to the other Party in connection with the Competition Act Approval, Bellatrix or Angle, as the case may be, shall provide such competitively sensitive information only to the external legal counsel of the other Party or to external experts hired by external counsel to Bellatrix or Angle (or both) on the basis that such competitively sensitive information shall not be shared by such counsel or external experts with any other Person other than the Commissioner; andAgreements.
Appears in 1 contract
Mutual Covenants Regarding the Arrangement. From the Agreement Date until the earlier of the completion of the Arrangement and the termination of this Agreement in accordance with Article 8, each Party shall:
(a) use its each Party shall make commercially reasonable commercial efforts to complete cause the Arrangement Effective Date to occur on or before December 12about ten Business Days after the date of the Meetings and, 2013in any event, by the Outside Date;
(b) use its each Party shall make commercially reasonable commercial efforts to satisfy (or cause the satisfaction of) the conditions precedent to its obligations hereunder (to the extent that the satisfaction of the same is within the control of such Party) and to take, or cause to be taken, all other action and to do, or cause to be done, all other things necessary, proper or advisable under Applicable Laws to complete the Arrangement, including using making commercially reasonable commercial efforts to:
(i) obtain all waivers, consents and approvals from other parties to loan agreements, leases and other Contracts to which it is a party that may be necessary or desirable to permit the completion of the Arrangement on the terms contemplated hereby;
(ii) obtain all necessary consents, assignments, waivers and amendments to, or terminations of, any instruments or other documents to which it is a party, or by which it is bound, that may be necessary to permit it to carry out the transactions contemplated by this Agreement and to take such other steps and actions as may be necessary or appropriate to fulfill its obligations hereunder; and
(iii) oppose, lift or rescind any injunction or restraining or other order seeking to stop, or otherwise adversely affecting its ability to consummate, the Arrangement and to defend, or cause to be defended, any proceedings to which it is a party or brought against it or its directors or officers challenging this Agreement or the consummation of the transactions contemplated hereby.;
(c) each Party agrees that it will not take any action, refrain from taking any commercially reasonable action, or permit any action to be taken or commercially reasonable action to not be taken, which is inconsistent with this Agreement or which would render or may reasonably be expected to render any representation or warranty made by it in this Agreement untrue in any material respect prior to the Effective Date or which would reasonably be expected to materially impede the consummation of the Arrangement or to prevent or delay the consummation of the transactions contemplated hereby, in each case, except as permitted by this Agreement;
(d) notwithstanding anything else in this Agreement, in connection with obtaining the Competition Act Approval:
(i) Bellatrix and Angle the Parties shall use commercially reasonable efforts to obtain Competition Act Approval as promptly soon as reasonably practicable and in any event within 10 Business Days of prior to the Agreement Outside Date, duly . In connection therewith:
(A) Cona shall prepare and file with the Commissioner a request for an ARC pursuant to Section 102 of the Competition Act and supply the Commissioner with such additional information as the Commissioner may request. Bellatrix shall have the primary responsibility for the preparation and submission in support of a request for an ARC pursuant to Section under section 102 of the Competition Act. Bellatrix Act as soon as practicable but in any event no later than five Business Days following the execution of this Agreement or such later date as the parties may mutually agree in writing; and
(B) Cona and Angle Pengrowth shall respond each file with the Commissioner a notification pursuant to Part IX of the Competition Act as promptly soon as practicable but in any event no later than five Business Days following the execution of this Agreement or such later date as the parties may mutually agree in writing;
(ii) each of the Parties shall not take any action, including entering into any separate transaction or commercial relation, that will have, or might reasonably practicable under be expected to have, the circumstances effect of delaying, impairing or impeding the granting of the Competition Act Approval;
(iii) each Party will:
(A) cooperate with one another, including by way of furnishing such information as may be reasonably requested by a Party, in connection with the preparation and submission of all applications, notices, filings, submissions, undertakings, correspondence and communications of any nature (including responses to any requests for information and inquiries received from the Commissioner for additional information Commissioner) as may be or documentation and to all inquiries and requests become necessary or desirable in connection with obtaining Competition Act Approval;
(B) promptly inform the other Parties of any material communication received by that Party from the Commissioner;
(iiC) the Parties shall coordinate and cooperate in exchanging information and supplying assistance that is reasonably requested in connection with the Competition Act Approval, including providing each other with advance copies and use commercially reasonable opportunities efforts to comment on all filings made respond promptly to the Commissioner and any additional request or supplementary information supplied pursuant thereto in respect of the Competition Act, and all notices and correspondence received notice from the Commissioner with respect requiring the Parties, or any one of them, to supply additional information that is relevant to the review of the transactions contemplated by this Agreement;
(D) permit the other Parties to review in advance any filings under proposed applications, notices, filings, submissions, undertakings, correspondence and communications of any nature (including responses to requests for information and inquiries from the Competition Act Commissioner), and shall provide the other Parties a reasonable opportunity to comment thereon and agree to consider those comments in good faith their respective comments on all draft faith;
(E) promptly provide the other Party with any applications, notices, filings, submissions, undertakings, correspondence and communications of any nature (including responses to requests for information and inquiries from the Commissioner);
(F) make commercially reasonable efforts to ensure that, to the extent permitted by Applicable Law, prior to participating in any substantive meetings or discussions (whether in person, by telephone or otherwise) with the Commissioner, the other Party is consulted in advance, and such other Party or its external legal counsel is given the opportunity to attend and participate thereat unless the representatives of the Commissioner requests otherwise; and
(iiiG) keep the other Parties informed, including through their respective external legal counsel, of the status of discussions relating to obtaining Competition Act Approval; and
(iv) notwithstanding any other provision hereinrequirement in this Section 3.3, if a Party (in no event will Bellatrix this Section 3.3 only, a “Disclosing Party”) is required to provide information to another Party (a “Receiving Party”) that the Disclosing Party deems to be required hereunder competitively sensitive information or otherwise reasonably determines in respect thereof that disclosure should be restricted, the Disclosing Party may restrict the provision of such competitively sensitive and other information only to agree external legal counsel of the Receiving Party, provided that the Disclosing Party also provides the Receiving Party a redacted version of any such application, notice, filing, submissions, undertakings, correspondence or communications (including responses to requests for information and inquiries from the Commissioner) which does not contain any hold separate, divestiture such competitively sensitive or other order, decree or restriction on the businesses of Bellatrix or any other business, the conduct thereof or future transactionsrestricted information;
(de) use its in connection with obtaining the Regulatory Approvals (other than Competition Act Approval):
(i) each Party shall make commercially reasonable commercial efforts to effect all necessary registrations and filings and submissions of information requested by Governmental Authorities or required to be effected or submitted by it in connection with the Arrangement, including, without limitation, under the Competition Act as set out above in Subsection 3.3(c), and to obtain all necessary consents, waivers and approvals required to be obtained by it in connection with the Arrangement, and each of Bellatrix Cona and Angle Pengrowth will use its make commercially reasonable commercial efforts to cooperate with the other in connection with the performance by the other Party of its obligations under this Subsection 3.3(dSection 3.3(e)(i) including, without limitation, assisting with the preparation and filing of any applications and continuing to provide reasonable access to information and to maintain ongoing communications as between officers of Bellatrix Cona and AnglePengrowth;
(ii) Cona shall not make any filing, subject in all cases to the Angle Confidentiality Agreement and Bellatrix Confidentiality Agreement. Without limiting the generality of the foregoing, to the extent Competition Act Approval represents a condition precedent under Subsection 5.1(g) each of Bellatrix and Angle shall furnish to the other Party such information and assistance as the other Party may reasonably request in connection with its preparation of any filing application or submission to a Governmental Authority that may is not required to be necessary or advisable made in connection with order to consummate the Arrangement; andtransaction contemplated by this Agreement unless Cona has sought and obtained the written permission of Pengrowth, which permission Pengrowth shall have the sole and absolute right to refuse;
(eiii) notwithstanding any other provision in this Agreement, (including Subsections 3.3(c)(ii), 3.3(d) and 3.3
(f) except as otherwise required by Applicable Law, where either Bellatrix any of Cona, the WEF Parties or AnglePengrowth, as the case may be, is obligated to provide information that it deems, acting reasonably, to be competitively sensitive information to the any other Party in connection with obtaining any other Regulatory Approvals, Cona or the Competition Act Approval, Bellatrix WEF Parties or AnglePengrowth, as the case may be, shall provide such competitively sensitive information only to the external legal counsel of the other Party or to external experts hired by external counsel to Bellatrix Cona or Angle the WEF Parties or Pengrowth (or both) on the basis that such competitively sensitive information shall not be shared by such counsel or external experts with any other Person other than the CommissionerGovernmental Authority;
(iv) promptly inform the other Parties of any material communication received by that Party from any Governmental Authority in respect of obtaining the other Regulatory Approvals;
(v) keep the other Parties informed of the status of discussions related to obtaining the other Regulatory Approvals; and
(f) each Party shall make commercially reasonable efforts to cooperate with the other Parties in connection with the performance by another Party of its obligations under this Agreement including, without limitation, continuing to provide reasonable access to information and to maintain ongoing communications as between Representatives of Cona and Pengrowth.
Appears in 1 contract
Samples: Arrangement Agreement
Mutual Covenants Regarding the Arrangement. From the Agreement Date date hereof until the earlier of the completion of the Arrangement and the termination of this Agreement in accordance with Article 8Effective Date, each Party shall:
(a) use its reasonable commercial efforts to complete the Arrangement on or before December 12of Harvest, 2013;
(b) HOC, Viking and VHI will use its reasonable commercial efforts to satisfy (or cause the satisfaction of) the conditions precedent to its obligations hereunder and to take, or cause to be taken, all other action and to do, or cause to be done, all other things necessary, proper or advisable under Applicable Laws to complete the Arrangement, including using reasonable commercial efforts toefforts:
(ia) to obtain all necessary waivers, consents and approvals required to be obtained by it from other parties to loan agreements, leases and other Contracts to which it is a party that may be necessary or desirable to permit the completion of the Arrangement on the terms contemplated herebycontracts;
(iib) to, on or before the Effective Date, cause confirmations of employment to be made to the Continued Employees;
(c) to obtain all necessary consents, assignments, waivers and amendments to, to or terminations of, of any instruments or other documents to which it is a party, or by which it is bound, that and take such measures as may be necessary appropriate to permit it fulfill its obligations hereunder and to carry out the transactions contemplated by this Agreement and to take such other steps and actions as may be necessary or appropriate to fulfill its obligations hereunder; and
(iii) oppose, lift or rescind any injunction or restraining or other order seeking to stop, or otherwise adversely affecting its ability to consummate, the Arrangement and to defend, or cause to be defended, any proceedings to which it is a party or brought against it or its directors or officers challenging this Agreement or the consummation of the transactions contemplated hereby.
(c) in connection with the Competition Act Approval:
(i) Bellatrix and Angle shall as promptly as reasonably practicable and in any event within 10 Business Days of the Agreement Date, duly file with the Commissioner a request for an ARC pursuant to Section 102 of the Competition Act and supply the Commissioner with such additional information as the Commissioner may request. Bellatrix shall have the primary responsibility for the preparation and submission of a request for an ARC pursuant to Section 102 of the Competition Act. Bellatrix and Angle shall respond as promptly as reasonably practicable under the circumstances to any inquiries received from the Commissioner for additional information or documentation and to all inquiries and requests received from the Commissioner;
(ii) the Parties shall coordinate and cooperate in exchanging information and supplying assistance that is reasonably requested in connection with the Competition Act Approval, including providing each other with advance copies and reasonable opportunities to comment on all filings made to the Commissioner and any additional or supplementary information supplied pursuant thereto in respect of the Competition Act, and all notices and correspondence received from the Commissioner with respect to any filings under the Competition Act and shall consider in good faith their respective comments on all draft filings; and
(iii) notwithstanding any other provision herein, in no event will Bellatrix be required hereunder or otherwise to agree to any hold separate, divestiture or other order, decree or restriction on the businesses of Bellatrix or any other business, the conduct thereof or future transactions;
(d) use its reasonable commercial efforts to effect all necessary registrations and filings and submissions of information requested by Governmental Authorities or Entities required to be effected or submitted by it in connection with the Arrangement, including, without limitation, under the Competition Act as set out above in Subsection 3.3(c), and to obtain all necessary consents, waivers and approvals required to be obtained by it in connection with the Arrangement, and each of Bellatrix Harvest and Angle Viking will use its reasonable commercial efforts to cooperate with the other in connection with the performance by the other Party of its their obligations under this Subsection 3.3(d) Section 3.3 including, without limitation, assisting with the preparation and filing of any applications and continuing to provide reasonable access to information and to maintain ongoing communications as between officers of Bellatrix HOC and AngleVHI, subject in all cases to the Angle Confidentiality Agreement and Bellatrix Confidentiality Agreement. Without limiting the generality of the foregoing, to the extent Competition Act Approval represents a condition precedent under Subsection 5.1(g;
(e) each of Bellatrix and Angle shall furnish to reasonably cooperate with the other Party and its tax advisors in structuring the Arrangement in a tax effective manner, and assist the other Party and its tax advisors in making such information investigations and assistance inquiries with respect to such Party in that regard, as the other Party may and its tax advisors shall consider necessary, acting reasonably, provided that such Party shall not be obligated to consent or agree to any structuring that has the effect of reducing the consideration to be received under the Arrangement by any of its securityholders;
(f) use their reasonable commercial efforts to cause the mailing of the Information Circular to their respective securityholders (the "MAILING DATE") to occur as soon as reasonably request practicable following the date hereof and in connection with its preparation of any filing or submission that may be necessary or advisable in connection with the Arrangementevent by February 15, 2006; and
(eg) notwithstanding any other provision in this Agreementuse their reasonable commercial efforts to continue the listing on the NYSE of the outstanding Harvest Units and to obtain the approval of the NYSE for the additional listing as of the Effective Date of the Harvest Units issuable pursuant to (i) the Arrangement, (including Subsections 3.3(c)(ii)ii) the Harvest Unit Award Incentive Plan, 3.3(d(iii) the Harvest Trust Unit Rights Incentive Plan and 3.3
(fiv) except as otherwise required by Applicable Law, where either Bellatrix or Angle, as the case may be, is obligated to provide information that it deems, acting reasonably, to be competitively sensitive information to the other Party in connection with the Competition Act Approval, Bellatrix or Angle, as the case may be, shall provide such competitively sensitive information only to the external legal counsel of the other Party or to external experts hired by external counsel to Bellatrix or Angle (or both) on the basis that such competitively sensitive information shall not be shared by such counsel or external experts with any other Person other than the Commissioner; andViking Debentures.
Appears in 1 contract
Samples: Arrangement Agreement (Viking Energy Royalty Trust)
Mutual Covenants Regarding the Arrangement. From the date of this Agreement Date until the earlier of the completion of the Arrangement and the Effective Date or termination of this Agreement in accordance with Article 8Agreement, each Party shall:
(a) of Purchaser and Crew will use its reasonable commercial efforts to complete the Arrangement on or before December 12, 2013;
to: (bi) use its reasonable commercial efforts to satisfy (or cause the satisfaction of) the conditions precedent to its obligations hereunder hereunder; (ii) not take, or cause to be taken, any action or cause anything to be done that would cause such obligations not to be fulfilled in a timely manner; and to (iii) take, or cause to be taken, all other action and to do, or cause to be done, all other things necessary, proper or advisable under Applicable Laws to complete the Arrangement, including using reasonable commercial efforts toefforts:
(ia) obtain all waivers, consents and approvals from other parties to loan agreements, leases and other Contracts to which it is a party that may be necessary or desirable to permit the completion of the Arrangement on the terms contemplated hereby;
(ii) obtain all necessary consents, assignments, waivers and amendments to, to or terminations of, of any instruments or other documents to which it is a party, or by which it is bound, that agreements and take such measures as may be necessary appropriate to permit it fulfill its obligations hereunder and to carry out the transactions contemplated hereby;
(b) to effect all necessary registrations and filings and submissions of information requested by this Agreement Governmental Authorities or required to be effected by it in connection with the Arrangement, and to take such other steps obtain all necessary waivers, consents and actions as may approvals required to be necessary or appropriate to fulfill its obligations hereunderobtained by it in connection with the Arrangement, including, without limitation, the Competition Act Approval; and
(iiic) to oppose, lift or rescind any injunction or restraining or other order seeking to stop, or otherwise adversely affecting its ability to consummate, the Arrangement and to defend, or cause to be defended, any proceedings to which it is a party or brought against it or its directors or officers challenging this Agreement or the consummation of the transactions contemplated hereby.
(c) in connection with the Competition Act Approval:
(i) Bellatrix . Each of Purchaser and Angle shall as promptly as reasonably practicable and in any event within 10 Business Days of the Agreement Date, duly file with the Commissioner a request for an ARC pursuant to Section 102 of the Competition Act and supply the Commissioner with such additional information as the Commissioner may request. Bellatrix shall have the primary responsibility for the preparation and submission of a request for an ARC pursuant to Section 102 of the Competition Act. Bellatrix and Angle shall respond as promptly as reasonably practicable under the circumstances to any inquiries received from the Commissioner for additional information or documentation and to all inquiries and requests received from the Commissioner;
(ii) the Parties shall coordinate and cooperate in exchanging information and supplying assistance that is reasonably requested in connection with the Competition Act Approval, including providing each other with advance copies and reasonable opportunities to comment on all filings made to the Commissioner and any additional or supplementary information supplied pursuant thereto in respect of the Competition Act, and all notices and correspondence received from the Commissioner with respect to any filings under the Competition Act and shall consider in good faith their respective comments on all draft filings; and
(iii) notwithstanding any other provision herein, in no event will Bellatrix be required hereunder or otherwise to agree to any hold separate, divestiture or other order, decree or restriction on the businesses of Bellatrix or any other business, the conduct thereof or future transactions;
(d) use its reasonable commercial efforts to effect all necessary registrations and filings and submissions of information requested by Governmental Authorities or required to be effected or submitted by it in connection with the Arrangement, including, without limitation, under the Competition Act as set out above in Subsection 3.3(c), and to obtain all necessary consents, waivers and approvals required to be obtained by it in connection with the Arrangement, and each of Bellatrix and Angle Crew will use its reasonable commercial efforts to cooperate with the other in connection with the performance by the other Party of its their obligations under this Subsection 3.3(d) Section 3.4 and this Agreement including, without limitation, assisting with the preparation and filing of any applications and continuing to provide reasonable access to information and to maintain ongoing communications as between officers of Bellatrix Purchaser and AngleCrew, subject in all cases to the Angle Confidentiality Agreement and Bellatrix Confidentiality Agreement. Without limiting the generality of the foregoing, to the extent Competition Act Approval represents a condition precedent under Subsection 5.1(g) each of Bellatrix and Angle shall furnish to the other Party such information and assistance as the other Party may reasonably request in connection with its preparation of any filing or submission that may be necessary or advisable in connection with the Arrangement; and
(e) notwithstanding any other provision in this Agreement, (including Subsections 3.3(c)(ii), 3.3(d) and 3.3
(f) except as otherwise required by Applicable Law, where either Bellatrix or Angle, as the case may be, is obligated to provide information that it deems, acting reasonably, to be competitively sensitive information to the other Party in connection with the Competition Act Approval, Bellatrix or Angle, as the case may be, shall provide such competitively sensitive information only to the external legal counsel of the other Party or to external experts hired by external counsel to Bellatrix or Angle (or both) on the basis that such competitively sensitive information shall not be shared by such counsel or external experts with any other Person other than the Commissioner; andAgreements.
Appears in 1 contract
Samples: Arrangement Agreement
Mutual Covenants Regarding the Arrangement. From the Agreement Date until the earlier of the completion of the Arrangement and the termination of this Agreement in accordance with Article 8, each Party shall:
(a) use its each Party shall make commercially reasonable commercial efforts to complete cause the Arrangement on or before December 12Effective Date to occur as soon as reasonably practicable and, 2013in any event, by the Outside Date;
(b) use its each Party shall make commercially reasonable commercial efforts to satisfy (or cause the satisfaction of) the conditions precedent to its obligations hereunder and to take, or cause to be taken, all other action and to do, or cause to be done, all other things necessary, proper or advisable under Applicable Laws to complete the Arrangement, including using making commercially reasonable commercial efforts to:
(i) obtain all waivers, consents and approvals from other parties to loan agreements, leases and other Contracts to which it is a party that may be necessary or desirable to permit the completion of the Arrangement on the terms contemplated hereby;
(ii) obtain all necessary consents, assignments, waivers and amendments to, or terminations of, any instruments or other documents to which it is a party, or by which it is bound, that may be necessary to permit it to carry out the transactions contemplated by this Agreement and to take such other steps and actions as may be necessary or appropriate to fulfill its obligations hereunderhereunder (provided neither Purchaser nor Pure shall be required to pay any consent fees or make other accommodations to any counterparties thereunder in exercising commercially reasonable efforts to obtain such consents); and
(iii) as directed by Purchaser, oppose, lift or rescind any injunction or restraining or other order seeking to stop, or otherwise adversely affecting its ability to consummate, the Arrangement and Arrangement, to defend, or cause to be defended, any proceedings to which it is a party or brought against it or its directors or officers challenging this Agreement or the consummation of the transactions contemplated hereby, and to cooperate with the other Party with respect to the defense and settlement of any such proceeding.
(c) each Party agrees that it will not take any action, refrain from taking any commercially reasonable action, or permit any action to be taken or commercially reasonable action to not be taken, which is inconsistent with this Agreement or which would render or may reasonably be expected to render any representation or warranty made by it in this Agreement untrue in any material respect prior to the Effective Date or which would reasonably be expected to materially impede the consummation of the Arrangement or to prevent or delay the consummation of the transactions contemplated hereby, in each case, except as permitted by this Agreement;
(d) in connection with obtaining the Competition Act HSR Approval:
(i) Bellatrix Purchaser shall use all reasonable best efforts to take or cause to be taken, any and Angle all steps and to make or give, or cause to be made or given, all things necessary or proper to obtain HSR Approval prior to the Outside Date. In connection therewith:
(A) Each of Purchaser and Pure shall (i) prepare and jointly file, as promptly soon as reasonably practicable and and, in any event event, within ten 10 Business Days days after the date of execution of this Agreement, file a Notification and Report Form pursuant to the HSR Act with respect to the transactions contemplated hereby, and (ii) if requested, promptly supply any additional information that may be requested pursuant to the HSR Act; and
(B) if any objections or concerns are asserted with respect to the transactions contemplated by this Agreement or Purchaser is advised that HSR Approval is unlikely to be obtained on the terms and conditions filed, Purchaser shall, without limitation, (i) enter into any settlement, undertaking, stipulation or agreement or agree to any order regarding competition law matters in connection with any objections, requests or requirements of any Governmental Authority to the transactions contemplated hereby and (ii) agree to divest or otherwise hold separate (including by establishing a trust or otherwise), or take any other action with respect to any portion of the Agreement DatePurchaser’s or Pure’s business, duly file assets or properties;
(ii) each Party will:
(A) cooperate with the Commissioner a request for an ARC pursuant to Section 102 one another, including by way of the Competition Act and supply the Commissioner with furnishing such additional information as the Commissioner may request. Bellatrix shall have the primary responsibility for be reasonably requested by a Party, in connection with the preparation and submission of a request all applications, notices, filings, submissions, undertakings, correspondence and communications of any nature (including responses to requests for an ARC pursuant to Section 102 of the Competition Act. Bellatrix information and Angle shall respond inquiries from any Governmental Authority) as promptly as reasonably practicable under the circumstances to any inquiries received from the Commissioner for additional information may be or documentation and to all inquiries and requests received from the Commissionerbecome necessary or desirable in connection with obtaining HSR Approval;
(iiB) promptly inform the other Parties shall coordinate and cooperate in exchanging information and supplying assistance of any material communication received by that is reasonably requested in connection with the Competition Act Approval, including providing each other with advance copies and reasonable opportunities to comment on all filings made to the Commissioner and Party from any additional or supplementary information supplied pursuant thereto Governmental Authority in respect of obtaining HSR Approval;
(C) use commercially reasonable efforts to respond promptly to any request or notice from any Governmental Authority requiring the Competition ActParties, or any one of them, to supply additional information that is relevant to the review of the transactions contemplated by this Agreement in respect of obtaining HSR Approval;
(D) permit the other Parties to review in advance any proposed applications, notices, filings, submissions, undertakings, correspondence and communications of any nature (including responses to requests for information and inquiries from any Governmental Authority) in respect of obtaining HSR Approval, and all notices will provide the other Parties a reasonable opportunity to comment thereon where timing permits and correspondence received from the Commissioner with respect agree to any filings under the Competition Act and shall consider those comments in good faith their respective comments on all draft faith;
(E) promptly provide the other Party with any applications, notices, filings; and, submissions, undertakings, correspondence and communications of any nature (including responses to requests for information and inquiries from any Governmental Authority) that were submitted to a Governmental Authority in respect of obtaining HSR Approval;
(F) make commercially reasonable efforts to ensure that, to the extent permitted by Applicable Law, prior to participating in any substantive meetings or discussions (whether in person, by telephone or otherwise) with any Governmental Authority, the other Party is consulted in advance, and such other Party or its external legal counsel is given the opportunity to attend and participate thereat unless the representatives of the Governmental Authority request otherwise;
(G) keep the other Parties informed of the status of discussions relating to obtaining HSR Approval;
(iii) notwithstanding any other provision hereinrequirement in this Section 3.3, if a Party (in no event will Bellatrix this Section 3.3 only, a “Disclosing Party”) is required to provide information to another Party (a “Receiving Party”) that the Disclosing Party deems to be required hereunder competitively sensitive information or otherwise reasonably determines in respect thereof that disclosure should be restricted, the Disclosing Party may restrict the provision of such competitively sensitive and other information only to agree external legal counsel of the Receiving Party, provided that the Disclosing Party also provides the Receiving Party a redacted version of any such application, notice, filing, submissions, undertakings, correspondence or communications (including responses to requests for information and inquiries from any hold separate, divestiture Governmental Authority) which does not contain any such competitively sensitive or other order, decree or restriction on the businesses of Bellatrix or any other business, the conduct thereof or future transactionsrestricted information;
(de) use its in connection with obtaining all other Regulatory Approvals:
(i) each Party shall, as directed by Purchaser, make commercially reasonable commercial efforts to effect all necessary registrations and filings and submissions of information requested by Governmental Authorities or required to be effected or submitted by it in connection with the Arrangement, including, without limitation, under the Competition Act as set out above in Subsection 3.3(c), and to obtain all necessary consents, waivers and approvals required to be obtained by it in connection with the Arrangement, and each of Bellatrix Purchaser and Angle Pure will use its make commercially reasonable commercial efforts to cooperate with the other in connection with the performance by the other Party of its obligations under this Subsection 3.3(dSection 3.3(e)(i) including, without limitation, assisting with the preparation and filing of any applications and continuing to provide reasonable access to information and to maintain ongoing communications as between officers of Bellatrix Purchaser and AnglePure, subject in all cases to the Angle Confidentiality Agreement and Bellatrix Confidentiality Agreement. Without limiting the generality of the foregoing, to the extent Competition Act Approval represents a condition precedent under Subsection 5.1(g) each of Bellatrix and Angle shall furnish to the other Party such information and assistance as the other Party may reasonably request in connection with its preparation of any filing or submission that may be necessary or advisable in connection with the Arrangement; and;
(eii) notwithstanding any other provision in this Agreement, (including Subsections 3.3(c)(ii), 3.3(d) and 3.3
(f) except as otherwise required by Applicable Law, where either Bellatrix Purchaser or AnglePure, as the case may be, is obligated to provide information that it deems, acting reasonably, to be competitively sensitive information to the other Party in connection with the Competition Act Approvalobtaining any other Regulatory Approvals, Bellatrix Purchaser or AnglePure, as the case may be, shall provide such competitively sensitive information only to the external legal counsel of the other Party or to external experts hired by external counsel to Bellatrix Purchaser or Angle Pure (or both) on the basis that such competitively sensitive information shall not be shared by such counsel or external experts with any other Person other than the CommissionerGovernmental Authority;
(iii) promptly inform the other Parties of any material communication received by that Party from any Governmental Authority in respect of obtaining the other Regulatory Approvals; and
(iv) keep the other Parties informed of the status of discussions related to obtaining the other Regulatory Approvals; and
(f) each Party shall make commercially reasonable efforts to cooperate with the other Parties in connection with the performance by another Party of its obligations under this Agreement including, without limitation, continuing to provide reasonable access to information and to maintain ongoing communications as between Representatives of Purchaser and Pure, subject in all cases to the applicable Confidentiality Agreement.
Appears in 1 contract
Samples: Arrangement Agreement (Xylem Inc.)
Mutual Covenants Regarding the Arrangement. From the Agreement Date date hereof until the earlier of the completion of the Arrangement and the termination of this Agreement in accordance with Article 8, each Party shall:
(a) use its reasonable commercial efforts to complete the Arrangement on December 23, 2024 or before December 12as soon thereafter as reasonably practicable and, 2013in any event, by no later than the Outside Date;
(b) use its reasonable commercial efforts to satisfy (or cause the satisfaction of) the conditions precedent to its obligations hereunder and to take, or cause to be taken, all other action actions and to do, or cause to be done, all other things necessary, proper or advisable under Applicable Laws to complete the Arrangement, including using its reasonable commercial efforts to:
(i) obtain all necessary waivers, consents and approvals required to be obtained by it from other parties to loan agreements, leases Leases and other Contracts to which it is a party that may be necessary or desirable to permit the completion of the Arrangement on the terms contemplated herebycontracts;
(ii) obtain all necessary exemptions, consents, assignments, waivers and amendments to, to or terminations of, of any instruments or other documents to which it is a party, or by which it is bound, that and take such measures as may be necessary appropriate to permit it fulfill its obligations hereunder and to carry out the transactions contemplated by this Agreement and to take such other steps and actions as may be necessary or appropriate to fulfill its obligations hereunder; andAgreement;
(iii) upon reasonable consultation with the Other Party, appeal, oppose, lift or rescind any injunction or injunction, restraining or other order Order, decree or ruling seeking to stoprestrain, enjoin or otherwise prohibit or adversely affecting its ability to consummate, affect the consummation of the Arrangement and to defend, or cause to be defended, any proceedings Proceedings to which it is a party or brought against it or its directors or officers challenging the Arrangement, this Agreement or the consummation transactions contemplated under this Agreement; provided that neither Party nor any of such Party's subsidiaries or affiliates, consent to the entry of any judgment or settlement with respect to any such Proceeding without the prior written approval of the transactions contemplated hereby.Other Party, not be unreasonably withheld, conditioned or delayed; and
(iv) fulfill all conditions and satisfy all provisions of this Agreement and the Arrangement;
(c) in connection with the Competition Act Approval:
(i) Bellatrix and Angle shall as promptly as reasonably practicable and in any event within 10 Business Days of the Agreement Date, duly file with the Commissioner a request for an ARC pursuant to Section 102 of the Competition Act and supply the Commissioner with such additional information as the Commissioner may request. Bellatrix shall have the primary responsibility for the preparation and submission of a request for an ARC pursuant to Section 102 of the Competition Act. Bellatrix and Angle shall respond as promptly as reasonably practicable under the circumstances to any inquiries received from the Commissioner for additional information or documentation and to all inquiries and requests received from the Commissioner;
(ii) the Parties shall coordinate and cooperate in exchanging information and supplying assistance that is reasonably requested in connection with the Competition Act Approval, including providing each other with advance copies and reasonable opportunities to comment on all filings made to the Commissioner and any additional or supplementary information supplied pursuant thereto in respect of the Competition Act, and all notices and correspondence received from the Commissioner with respect to any filings under the Competition Act and shall consider in good faith their respective comments on all draft filings; and
(iii) notwithstanding any other provision herein, in no event will Bellatrix be required hereunder or otherwise to agree to any hold separate, divestiture or other order, decree or restriction on the businesses of Bellatrix or any other business, the conduct thereof or future transactions;
(d) use its commercially reasonable commercial efforts to effect all necessary registrations and filings and submissions of information requested by Governmental Authorities or required to be effected or submitted by it in connection with the Arrangement, including, without limitation, under the Competition Act as set out above in Subsection 3.3(c), and to obtain all Regulatory Approvals in accordance with Section 3.4 and all other necessary consentswaivers, waivers consents and approvals required to be obtained by it in connection with the Arrangement from Governmental Authorities and effect all necessary registrations and filings and the submission of all information requested by Governmental Authorities required to be effected by it or by any of its subsidiaries in connection with the Arrangement;
(d) cooperate with each other in taking, or causing to be taken, all actions necessary to delist the STEP Shares from the TSX in accordance with the policies and each procedures of Bellatrix and Angle the TSX following completion of the steps set out in the Plan of Arrangement; provided, however, that such delisting will not be effective until after the Effective Time;
(e) use its reasonable commercial efforts to cooperate with the other Other Party in connection with the performance by the other Other Party of its their obligations under this Subsection 3.3(d) Section 3.3 including, without limitation, assisting with the preparation and filing of any applications and continuing to provide the Other Party with a reasonable access opportunity to information review and comment on all filings and material correspondence with and to Governmental Authorities and to promptly provide final copies thereof to the Other Party once filed or given, to promptly provide the Other Party with all approvals and material notices and correspondence received from Governmental Authorities, and to maintain ongoing communications as between officers representatives of Bellatrix and Anglethe Parties in respect of the Regulatory Approvals, subject in all cases to the Angle Confidentiality Agreement and Bellatrix Confidentiality Agreement. Without limiting the generality of the foregoing, to the extent Competition Act Approval represents a condition precedent under Subsection 5.1(g) each of Bellatrix and Angle shall furnish to the other Party such information and assistance as the other Party may reasonably request in connection with its preparation of any filing or submission that may be necessary or advisable in connection with the Arrangement; and
(ef) notwithstanding cooperate with each other in the preparation of the Circular and provide to the Other Party, in a timely and expeditious manner, the STEP Information or the Purchaser Parties Information, as applicable, for inclusion in the Circular, and any amendments or supplements thereto, in each case complying in all material respects with all Applicable Laws on the date of issue thereof and not containing any misrepresentation, and each Party shall provide the Other Party and its Representatives with a reasonable opportunity to review and comment on the STEP Information or the Purchaser Parties Information, as applicable, and any other provision in this Agreement, (including Subsections 3.3(c)(ii), 3.3(d) relevant documentation and 3.3
(f) except as otherwise required reasonable consideration shall be given to any comments made by Applicable Law, where either Bellatrix or Angle, as the case may be, is obligated to provide information that it deems, acting reasonably, to be competitively sensitive information to the other Other Party in connection with the Competition Act Approval, Bellatrix or Angle, as the case may be, shall provide such competitively sensitive information only to the external legal counsel of the other Party or to external experts hired by external counsel to Bellatrix or Angle (or both) on the basis that such competitively sensitive information shall not be shared by such counsel or external experts with any other Person other than the Commissioner; andCircular.
Appears in 1 contract
Samples: Arrangement Agreement
