Notices and Consents. (a) Each of the Buyer and the Sellers will, and the Sellers will cause the Company Entities to, give any notices to, make any filings with, and use their reasonable best efforts to obtain any authorizations, consents and approvals of, any Governmental Authority that are necessary in connection with the transactions contemplated hereby, it being understood that nothing in this Agreement shall require, or be construed to require, the Buyer, the Sellers or any of the Company Entities to make any payment in connection with fulfilling such conditions precedent, other than legal and accounting fees and disbursements and regulatory filing fees and costs. The Sellers shall use their reasonable best efforts to give all notices to, and obtain all consents from, all third parties that are listed in Section 2.6(a)(v) of the Schedules. Each party shall cooperate fully with the other party and its Affiliates in promptly seeking to obtain all such authorizations, consents and approvals. The parties hereto shall not willfully take any action that will have the effect of delaying, impairing or impeding the receipt of any required consents, authorizations, orders and approvals. (b) Without limiting the generality of the parties’ undertakings pursuant to Section 5.2(a), each of the parties hereto shall use commercially reasonable efforts to: (i) respond to any inquiries by any Governmental Authority with respect to the transactions contemplated by this Agreement or any Ancillary Agreement; (ii) avoid the imposition of any order or the taking of any action that would restrain, alter or enjoin the transactions contemplated by this Agreement or any Ancillary Agreement; and (iii) in the event any order of a Governmental Authority adversely affecting the ability of the parties to consummate the transactions contemplated by this Agreement or any Ancillary Agreement is issued, to have such order vacated or lifted. (c) All analyses, appearances, meetings, discussions, presentations, memoranda, briefs, filings, arguments, and proposals made by or on behalf of either party before any Governmental Authority or the staff or regulators of any Governmental Authority, in connection with the transactions contemplated hereunder (but, for the avoidance of doubt, not including any interactions between the Company Entities or the Buyer with Governmental Authorities in the ordinary course of business, any notices or filings made in connection with the Name Change, any disclosure which is not permitted by Law or any disclosure containing confidential information) shall be disclosed to the other party hereunder in advance of any filing, submission or attendance, it being the intent that the parties will consult and cooperate with one another, and consider in good faith the views of one another, in connection with any such analyses, appearances, meetings, discussions, presentations, memoranda, briefs, filings, arguments, and proposals. Each party shall give notice to the other party with respect to any meeting, discussion, appearance or contact with any Governmental Authority or the staff or regulators of any Governmental Authority, with such notice being sufficient to provide the other party with the opportunity to attend and participate in such meeting, discussion, appearance or contact. (d) Notwithstanding the foregoing, nothing in this Section 5.2 shall require, or be construed to require, the Buyer or any of its Affiliates to agree to (i) sell, hold, divest, discontinue or limit, before or after the Closing Date, any assets, businesses or interests of the Buyer, the Company Entities or any of their respective Affiliates; (ii) any conditions relating to, or changes or restrictions in, the operations of any such assets, businesses or interests which, in either case, could reasonably be expected to adversely impact the economic or business benefits to the Buyer of the transactions contemplated by this Agreement; or (iii) any material modification or waiver of the terms and conditions of this Agreement.
Appears in 2 contracts
Samples: Equity Interest Purchase Agreement, Equity Interest Purchase Agreement
Notices and Consents. (a) 5.2.1 Promptly following the date of this Agreement until the earlier of the Closing Date or the termination of this Agreement, the Seller will give any notices to Third Parties, and will use commercially reasonable efforts to obtain the Third Party consents, required under any Assigned Contract in connection with the consummation of the transactions contemplated by this Agreement, or otherwise required to prevent a Material Adverse Effect from occurring prior to or after the Closing. Each of the Buyer and the Sellers will, and the Sellers Parties will cause the Company Entities to, promptly give any notices to, make any filings with, and use their all commercially reasonable best efforts to obtain any authorizations, consents consents, and approvals of Governmental Authorities, including consents to, or approval of, the assignment or transfer of the Licenses and Permits. Notwithstanding anything in this Agreement to the contrary, each Buyer shall take all commercially reasonable actions necessary to satisfy promptly (but in any event before the Termination Date) the conditions specified in Section 7.1.5. Each Party hereto shall promptly inform the other Parties of any material communication made to, or received by such Party from, the FTC, the Antitrust Division or any other Governmental Authority regarding any of the transactions contemplated hereby. Each Party has agreed to and has paid one-half of the filing fees required by the HSR Act in connection with the filings made thereunder.
5.2.2 Each of the Buyers and the Seller shall each give prompt written notice to the others of the receipt of any written or oral notice or other written or oral communication (or a site visit) from (i) any Person alleging that are necessary the consent of such Person is or may be required in connection with the transactions contemplated hereby, it being understood that nothing in this Agreement shall require, or be construed to require, the Buyer, the Sellers or any of the Company Entities to make any payment in connection with fulfilling such conditions precedent, other than legal and accounting fees and disbursements and regulatory filing fees and costs. The Sellers shall use their reasonable best efforts to give all notices to, and obtain all consents from, all third parties that are listed in Section 2.6(a)(v(ii) of the Schedules. Each party shall cooperate fully with the other party and its Affiliates in promptly seeking to obtain all such authorizations, consents and approvals. The parties hereto shall not willfully take any action that will have the effect of delaying, impairing or impeding the receipt of any required consents, authorizations, orders and approvals.
(b) Without limiting the generality of the parties’ undertakings pursuant to Section 5.2(a), each of the parties hereto shall use commercially reasonable efforts to: (i) respond to any inquiries by any Governmental Authority with respect notifying such Party that it may seek to the transactions contemplated by this Agreement delay or any Ancillary Agreement; (ii) avoid the imposition of any order or the taking of any action that would restrain, alter or enjoin the transactions contemplated by this Agreement or any Ancillary Agreement; and (iii) in the event any order of a Governmental Authority adversely affecting impede the ability of either a Buyer or the parties Seller, respectively, to consummate the transactions contemplated by this Agreement or any Ancillary Agreement is issuedto fulfill their respective obligations set forth herein, to have such order vacated or lifted.
(ciii) All analyses, appearances, meetings, discussions, presentations, memoranda, briefs, filings, arguments, and proposals made by or on behalf of either party before any Governmental Authority or other Person regarding the staff initiation or regulators threat of initiation of any claims, actions, suits, proceedings, arbitrations or investigations against, relating to, or involving or otherwise affecting the Business, the Assets, either of the Buyers or the Seller (provided, however, that with respect to the initiation or threat of initiation of any claims or other actions against either of the Buyers or the Seller by any Person other than a Governmental Authority, in connection with only claims or actions that relate to the consummation of the transactions contemplated hereunder (but, for the avoidance of doubt, not including any interactions between the Company Entities or the Buyer with Governmental Authorities in the ordinary course of business, any notices or filings made in connection with the Name Change, any disclosure which is not permitted by Law or any disclosure containing confidential information) shall hereby need be disclosed to the other party hereunder in advance Party) or (iv) any Person regarding the occurrence or nonoccurrence of any filing, submission event the occurrence or attendance, it being nonoccurrence of which would be reasonably likely to cause any condition to the intent that the parties will consult and cooperate with one another, and consider in good faith the views obligations of one another, in connection with any such analyses, appearances, meetings, discussions, presentations, memoranda, briefs, filings, arguments, and proposals. Each party shall give notice to the other party with respect to consummate the transactions contemplated hereby not to be satisfied.
5.2.3 Each of the Buyers and the Seller each agree to cooperate and to use commercially reasonable efforts to contest and to resist any meetingaction, discussionincluding legislative, appearance administrative or contact with judicial action, and to have vacated, lifted, reversed or overturned any order (whether temporary, preliminary or permanent) of any court or other Governmental Authority that is in effect and that restricts, prevents or prohibits the staff or regulators of any Governmental Authority, with such notice being sufficient to provide the other party with the opportunity to attend and participate in such meeting, discussion, appearance or contact.
(d) Notwithstanding the foregoing, nothing in this Section 5.2 shall require, or be construed to require, the Buyer or any of its Affiliates to agree to (i) sell, hold, divest, discontinue or limit, before or after the Closing Date, any assets, businesses or interests of the Buyer, the Company Entities or any of their respective Affiliates; (ii) any conditions relating to, or changes or restrictions in, the operations of any such assets, businesses or interests which, in either case, could reasonably be expected to adversely impact the economic or business benefits to the Buyer consummation of the transactions contemplated by this Agreement; or (iii, including the pursuit of all commercially reasonable available avenues of administrative and judicial appeal.
5.2.4 Prior to the Closing, Buyers will identify for Seller the transferee(s) any material modification or waiver of the terms Licenses and conditions of this AgreementPermits.
Appears in 2 contracts
Samples: Asset Sale and Purchase Agreement (Holly Corp), Asset Sale and Purchase Agreement (Holly Energy Partners Lp)
Notices and Consents. (ai) Each of the Buyer and the Sellers will, and will cause each of their Affiliates (including the Targets) to, at Sellers’ expense, give any notices to third parties, and will use their reasonable best efforts, and will cause each such Affiliate to use its reasonable best efforts, at Sellers’ expense, to obtain all third-party consents that may be or may become reasonably necessary, proper or advisable to be obtained by Sellers or their Affiliates to consummate and make effective the transactions contemplated by this Agreement and the Ancillary Agreements, including those referred to in Section 4(c) above, the Lease Consents, and the items set forth in Section 5(b) of the Sellers Disclosure Schedule. Each of the Parties will (and Sellers will cause the Company Entities each Target to, ) (A) give any notices to, and make any filings with, any Governmental Authorities, and use their its reasonable best efforts to obtain any authorizationsGovernmental Approvals, consents in each case, that are required in connection with the execution of this Agreement and approvals ofthe other Transaction Agreements and the consummation of the transactions contemplated hereby and thereby, and (B) reasonably cooperate with the other Parties, and furnish the other Parties with such necessary information and reasonable assistance as such other Parties may reasonably request, in connection with the preparation of any such notices and filings and obtaining such Governmental Approvals, provided, however, in no event will any Party be required to disclose to any other Party any proprietary or commercially sensitive information in respect of itself or its Affiliates, or any personally identifiable information. Subject to Section 5(b)(v), each of the Parties shall use its reasonable best efforts to: (I) resolve any objections of any Governmental Authority with respect to the transactions contemplated hereby (including objections under antitrust or competition laws); (II) prevent the entry of and have vacated, lifted, reversed or overturned, any order of any Governmental Authority or other tribunal that are would prevent, prohibit, restrict or delay the consummation of the transactions contemplated hereby; and (III) comply fully with all restrictions and conditions imposed or requested by any Governmental Authority in connection with granting any necessary consent or approval, including asset divestitures or conduct-limiting conditions.
(ii) The Parties agree that they will consult with each other with respect to the obtaining of all required Governmental Approvals and each Party will keep the other Parties reasonably apprised of the status of matters relating to such Governmental Approvals. Buyer and Sellers shall have the right to review in advance, and to the extent practicable, and subject to any restrictions under Applicable Law, each will consult the other on, any material filing made with, or written materials submitted to, any third party or any Governmental Authority in connection with the transactions contemplated hereby, it being understood that nothing in by this Agreement shall requireor the Ancillary Agreements; provided, however, in no event will any Party be required to disclose to any other Party any proprietary or commercially sensitive information in respect of a Party or its Affiliates, or any personally identifiable information. Buyer and Sellers shall promptly furnish to each other copies of all such filings and written materials after their filing or submission, in each case subject to Applicable Laws; provided, however, in no event will any party be construed required to requiredisclose to any other Party any proprietary or commercially sensitive information in respect of a Party or its Affiliates, or any personally identifiable information.
(iii) Subject to Applicable Law, Buyer and Sellers shall promptly advise each other upon receiving any communication from any Governmental Authority whose consent or approval is required for consummation of the transactions contemplated by this Agreement or the Ancillary Agreements, including promptly furnishing each other copies of any written or electronic communications.
(iv) Each of Buyer, on the Sellers or any of one hand, and Sellers, on the Company Entities to make any payment in connection with fulfilling such conditions precedentother hand, other than legal and accounting fees and disbursements and regulatory filing fees and costs. The Sellers shall use their reasonable best efforts to give all notices toensure that Representatives of the other have the right to attend or participate in any hearing, and obtain all consents fromproceeding, all third parties meeting, conference or similar event before or with a Governmental Authority (excluding any such event or portion thereof relating to matters that are listed in Section 2.6(a)(vconfidential under Applicable Law) of to the Schedules. Each party shall cooperate fully with the other party and its Affiliates in promptly seeking to obtain all such authorizations, consents and approvals. The parties hereto shall not willfully take any action that will have the effect of delaying, impairing or impeding the receipt of any required consents, authorizations, orders and approvals.
(b) Without limiting the generality of the parties’ undertakings pursuant to Section 5.2(a), each of the parties hereto shall use commercially reasonable efforts to: (i) respond extent relating specifically to any inquiries by any Governmental Authority with respect to Approvals required for the consummation of the transactions contemplated by this Agreement or any Ancillary Agreement; .
(iiv) avoid Notwithstanding anything herein to the imposition contrary, Buyer shall not be obligated to take or refrain from taking or to agree to it, its Affiliates or any of the Targets or any of their respective Representatives taking or refraining from taking any action (including any amendment, waiver or termination of any order agreement, including this Agreement or the taking of any action Ancillary Agreement) or to permit or suffer to exist any restriction, condition, limitation or requirement which, individually or together with all other such actions, restrictions, conditions, limitations or requirements, would or would reasonably be expected to result in a Burdensome Condition being imposed by a Governmental Authority. A “Burdensome Condition” shall mean any arrangement, condition or restriction (a) that would restrainreasonably be expected to materially and adversely affect the economic, alter Tax or enjoin business benefits that Buyer and its Affiliates reasonably expect to derive from the transactions contemplated by this Agreement or any and the Ancillary Agreement; and Agreements, (iiib) in the event any order of a Governmental Authority that materially adversely affecting affects the ability of the parties to consummate the transactions contemplated by this Agreement or any Ancillary Agreement is issuedTargets, taken as a whole, to have such order vacated or lifted.
conduct the Business in the same manner as the Business is being conducted as of the date hereof, (c) All analysesrequiring the sale, appearanceslease, meetingslicense, discussionsdisposal or holding separate of any material assets, presentationsrights, memorandaproduct lines, briefslicenses, filingscategories of assets or business or other operations or interests of Buyer, arguments, and proposals made by or on behalf of either party before any Governmental Authority its Affiliates or the staff or regulators of any Governmental AuthorityTargets, in connection with the transactions contemplated hereunder (but, for the avoidance of doubt, not including any interactions between the Company Entities or the Buyer with Governmental Authorities in the ordinary course of business, any notices or filings made in connection with the Name Change, any disclosure which is not permitted by Law or any disclosure containing confidential information) shall be disclosed to the other party hereunder in advance of any filing, submission or attendance, it being the intent that the parties will consult and cooperate with one another, and consider in good faith the views of one another, in connection with any such analyses, appearances, meetings, discussions, presentations, memoranda, briefs, filings, arguments, and proposals. Each party shall give notice to the other party with respect to any meeting, discussion, appearance or contact with any Governmental Authority or the staff or regulators of any Governmental Authority, with such notice being sufficient to provide the other party with the opportunity to attend and participate in such meeting, discussion, appearance or contact.
(d) Notwithstanding the foregoing, nothing in this Section 5.2 shall require, or be construed to require, the that requires Buyer or any of its Affiliates to agree make available or provide any material capital contribution or enter into or provide any material indemnity agreement, support agreement, statement of support, bond, guarantee, letter of credit, keep well, or capital maintenance agreement or arrangement or maintaining a minimum risk-based capital level or rating (including an obligation to (imake available or provide capital or other support necessary to maintain a minimum risk-based capital level or rating) sellwith respect to, hold, divest, discontinue or limit, before or after the Closing Datein connection with, any assets, businesses or interests of the BuyerTargets (other than the capital contribution contemplated by Section 2(h)) or (e) that otherwise is reasonably likely to have a Material Adverse Effect or a material adverse effect on the business, the Company Entities financial condition, operations or results of operations of Buyer or any of its Affiliates. Without the prior written consent of Buyer, Sellers shall not, and shall cause their respective Affiliates; (ii) any conditions relating , the Targets and their respective Representatives not to, take or changes refrain from or restrictions into agree to the taking or refraining from any action (including any amendment, the operations waiver or termination of any such assetsagreement, businesses including this Agreement or interests whichany Ancillary Agreement) or to permit or suffer to exist any restriction, in either casecondition, could limitation or requirement that would constitute, or would reasonably be expected to adversely impact result in the economic or business benefits to the Buyer of the transactions contemplated by this Agreement; or (iii) any material modification or waiver of the terms and conditions of this Agreementimposition of, a Burdensome Condition.
Appears in 2 contracts
Samples: Stock Purchase Agreement (HC2 Holdings, Inc.), Stock Purchase Agreement (HC2 Holdings, Inc.)
Notices and Consents. (a) Each of the Buyer and the Sellers will, Seller will (and the Sellers Seller will cause the Company Entities to, ) give any notices to, make any filings with, and use their reasonable best efforts Commercially Reasonable Efforts to obtain any authorizations, consents and approvals of, of any Governmental Authority that are third party necessary in connection with the transactions contemplated herebyby this Agreement, it being understood that nothing in this Agreement shall requireincluding the Buyers’ Required Consents and the Seller’s Required Consents, as applicable, and the Exelon Consent. Each Buyer will use Commercially Reasonable Efforts to obtain such consents and agreements with Persons to which the Buyers or the Company pledge, assign, or be construed grants a security interest in its right, title, and interest in and to require, the Buyer, Exelon Agreements (as defined in the Sellers or any of the Company Entities to make any payment Exelon Consent) in customary form that such Persons reasonably may request in connection with fulfilling such conditions precedent, other than legal any financing that will close at or promptly after the Closing and accounting fees that do not adversely affect Exelon’s rights under the Exelon Agreements. If each of the Exelon Consent and disbursements the consents and regulatory agreements described in the immediately preceding sentence has not been executed and delivered by all parties to it within 60 days after the filing fees and costs. The Sellers shall use their reasonable best efforts to give all notices to, and obtain all consents from, all third parties that are of the application for the approval listed in as item 1 on Section 2.6(a)(v1(b) of the Schedules. Each party shall cooperate fully with Seller’s Disclosure Schedule, the other party and its Affiliates in promptly seeking Seller may terminate this Agreement pursuant to obtain all such authorizationsSection 11.1(i) of this Agreement by providing written notice of termination to each Buyer; provided, consents and approvals. The parties hereto however, that the Seller shall not willfully take be entitled to so terminate this Agreement in the event the Seller has breached its obligations under Section 6.6 hereof, and any action that will have notice of termination delivered pursuant to this Section 6.2(a) shall include a certificate executed and delivered by the Seller to the effect of delaying, impairing or impeding that the receipt of any required consents, authorizations, orders and approvalsSeller has not breached its obligations under Section 6.6 hereof.
(b) Unless such a filing is not required, as promptly as practicable after the date of this Agreement, each of the Parties will file any Notification and Report Forms and related material that it may be required to file with the Federal Trade Commission and the Antitrust Division of the United States Department of Justice under the HSR Act, will use Commercially Reasonable Efforts to obtain an early termination of the applicable waiting period and will make (and the Seller will cause the Company to make) any further filings that may be necessary, proper or advisable relating to the HSR Act. Each of the Parties will cooperate and coordinate with the other Party in connection with such filings and actions. Each Party will bear its own costs of the preparation of any such filings, and Seller and Buyers each will pay one-half of the entire amount of the filing fee with respect to all filings made pursuant to the HSR Act and Buyers will bear all costs associated with any experts or consultants reasonably necessary in connection with such filings.
(c) As promptly as practicable after the date of this Agreement, each Buyer and the Seller will (and the Seller will cause the Company to) give any notices to, make any filings with, and use Commercially Reasonable Efforts to obtain the Buyers’ Required Regulatory Approvals and the Seller’s Required Regulatory Approvals, as applicable, and any other authorizations, consents and approvals of any Governmental Authority necessary in connection with the transactions contemplated by this Agreement. Each of the Parties will cooperate and coordinate with the other Party in connection with such filings and actions. The Parties will respond promptly to any requests for additional information made by such Governmental Authority and will use Commercially Reasonable Efforts to cause all such consents and approvals to be obtained or waived at the earliest possible date after the date of filing. Each Party will bear its own costs of the preparation of any such filing or notice, except that each Buyer will bear its respective percentage of all costs associated with any experts or consultants reasonably necessary for the preparation of any such filing or notice or reasonably necessary to obtain such consents and approvals as promptly as practicable.
(d) In furtherance of Section 6.2(c) above, as promptly as practicable after the date of this Agreement, the Seller will (and the Seller will cause the Company to) make all filings required to be made by it under the Federal Power Act, as amended. The Buyers will cooperate with the Seller in preparing such applications. Without limiting the generality of the parties’ undertakings pursuant foregoing, the Parties shall use Commercially Reasonable Efforts to cause the application for the approval listed as item 1 on Section 5.2(a), each 1(b) of the parties hereto shall use commercially reasonable efforts to: Seller’s Disclosure Schedule to be filed by October 11, 2004. The Seller will be solely responsible for the cost of preparing and filing such applications, as well as all petition(s) for rehearing and all reapplications. If any filing is rejected by the FERC, the Seller will petition the FERC for rehearing or permission to re-submit an application with the FERC.
(e) The Seller, at its sole expense, will (i) respond use all Commercially Reasonable Efforts to any inquiries by any Governmental Authority with respect to cause the transactions contemplated by this Agreement or any Ancillary to be permitted, as of the Closing, under the Existing Debt Documents, including Section 5.02(e)(v) of the Common Terms Agreement and Section 9.08(a) of the Security and Intercreditor Agreement; , and (ii) avoid will timely seek and cause the imposition of any order or the taking of any action that would restrain, alter or enjoin the transactions contemplated by this Agreement or any Ancillary Agreement; and (iii) in the event any order of a Governmental Authority adversely affecting the ability of the parties Company timely to consummate the transactions contemplated by this Agreement or any Ancillary Agreement is issued, to have such order vacated or lifted.
(c) All analyses, appearances, meetings, discussions, presentations, memoranda, briefs, filings, argumentsseek, and proposals made by or on behalf of either party before any Governmental Authority or the staff or regulators of any Governmental Authority, in connection with the transactions contemplated hereunder (but, for the avoidance of doubt, not including any interactions between the Company Entities or the Buyer with Governmental Authorities in the ordinary course of business, any notices or filings made in connection with the Name Change, any disclosure which is not permitted by Law or any disclosure containing confidential information) shall be disclosed will use all Commercially Reasonable Efforts to the other party hereunder in advance of any filing, submission or attendance, it being the intent that the parties will consult and cooperate with one another, and consider in good faith the views of one another, in connection with any such analyses, appearances, meetings, discussions, presentations, memoranda, briefs, filings, arguments, and proposals. Each party shall give notice to the other party with respect to any meeting, discussion, appearance or contact with any Governmental Authority or the staff or regulators of any Governmental Authority, with such notice being sufficient to provide the other party with the opportunity to attend and participate in such meeting, discussion, appearance or contact.
(d) Notwithstanding the foregoing, nothing in this Section 5.2 shall require, or be construed to requireobtain, the Buyer or any of its Affiliates to agree to (i) sell, hold, divest, discontinue or limit, before or after the Closing Date, any assets, businesses or interests of the Buyer, the Company Entities or any of their respective Affiliates; (ii) any conditions relating to, or changes or restrictions in, the operations of any such assets, businesses or interests which, releases described in either case, could reasonably be expected to adversely impact the economic or business benefits to the Buyer of the transactions contemplated by this Agreement; or (iii) any material modification or waiver of the terms and conditions of this AgreementSection 8.1(r).
Appears in 2 contracts
Samples: Purchase Agreement (Allegheny Energy Inc), Purchase Agreement (Allegheny Energy Supply Co LLC)
Notices and Consents. (a) Each of the Buyer and the Sellers will, and the Sellers will cause the Company Entities to, give any notices to, make any filings with, and Parties shall use their commercially reasonable best efforts to (i) obtain from any authorizationsGovernmental Body any Consents or Permits (including Environmental Permits) required to be obtained or made by Buyer or Seller, consents and approvals ofor to avoid any Proceeding by, any Governmental Authority that are necessary Body in connection with the transactions contemplated herebyauthorization, it being understood execution and delivery of this Agreement and the consummation of the Transactions, and (ii) as promptly as practicable, and in any event no later than fifteen (15) Business Days after the date hereof, make all necessary filings, and thereafter make any other required submissions, with respect to this Agreement required under any applicable Law, including the Xxxx-Xxxxx-Xxxxxx Act; provided, however, that the Parties shall cooperate with each other in connection with the making of all such filings, and each Party will (and, if applicable, will cause its appropriate Affiliates to) use its commercially reasonable efforts to cause the expiration of the waiting period required under the Xxxx-Xxxxx-Xxxxxx Act (including pursuing early termination of such waiting period); provided, further, that nothing in this Agreement Section 4.2(a) shall require, or be construed to require, the Buyer, the Sellers require either Party or any of the Company Entities its respective Affiliates to make (1) agree to sell, divest, license, dispose of or hold separate any payment in connection with fulfilling such conditions precedentassets or businesses, other than legal and accounting fees and disbursements and regulatory filing fees and costs. The Sellers shall use their reasonable best efforts or otherwise take or commit to give all notices to, and obtain all consents from, all third parties that are listed in Section 2.6(a)(v) of the Schedules. Each party shall cooperate fully with the other party and its Affiliates in promptly seeking to obtain all such authorizations, consents and approvals. The parties hereto shall not willfully take any action that will have could limit its freedom with respect to, or its ability to retain, one or more of its businesses, product lines or assets, (2) agree to the requirement of expenditure of money by Buyer or Seller to a Third Party in exchange for any Consent, or (3) litigate, pursue or defend against any Proceeding (including any temporary restraining order or preliminary injunction) challenging the Transactions as violative of the Xxxx-Xxxxx-Xxxxxx Act. Buyer and Seller shall promptly furnish to each other all information reasonably required for any application or other filing to be made by the other in connection with the Transactions pursuant and subject to the rules and regulations of any applicable Law. Except as required or permitted by this Agreement, the Parties shall not knowingly take any action, or knowingly refrain from taking any action, the effect of delaying, impairing which would be to delay or impeding impede the receipt ability of the Parties to consummate the Transactions. The filing fees under the Xxxx-Xxxxx-Xxxxxx Act and any required consents, authorizations, orders and approvalsapplicable non-U.S. competition Laws shall be borne by Buyer.
(b) Without limiting Subject to applicable Law and the generality requirements of the parties’ undertakings pursuant to Section 5.2(a)applicable Governmental Bodies, each of the parties hereto shall use commercially reasonable efforts to: (i) respond to any inquiries by any Governmental Authority with respect to the transactions contemplated by this Agreement or any Ancillary Agreement; (ii) avoid the imposition of any order or the taking of any action that would restrain, alter or enjoin the transactions contemplated by this Agreement or any Ancillary Agreement; Seller and (iii) in the event any order of a Governmental Authority adversely affecting the ability of the parties to consummate the transactions contemplated by this Agreement or any Ancillary Agreement is issued, to have such order vacated or lifted.
(c) All analyses, appearances, meetings, discussions, presentations, memoranda, briefs, filings, arguments, Buyer and proposals made by or on behalf of either party before any Governmental Authority or the staff or regulators of any Governmental Authoritytheir respective counsel shall, in connection with the transactions contemplated hereunder efforts referenced in Section 4.2(a), (but, for the avoidance of doubt, not including i) cooperate in all reasonable respects with each other in connection with any interactions between the Company Entities filing or the Buyer submission with a Governmental Authorities in the ordinary course of business, any notices or filings made Body in connection with the Name Change, Transactions and in connection with any disclosure which is not permitted investigation or other inquiry by Law or any disclosure containing confidential information) shall be disclosed before a Governmental Body relating to the other party hereunder Transactions, including any Proceeding initiated by a private person, (ii) where legally permissible, have the right to review in advance of any filingadvance, submission or attendance, it being and to the intent that the parties will extent practicable each shall consult and cooperate with one another, and consider in good faith the views of one anotherthe other regarding, any material filing made with, or written materials to be submitted to, any Governmental Body in connection with the Transactions and of any material communication received or given in connection with any such analysesProceeding by a private person, appearancesin each case with respect to the Transactions, meetings(iii) promptly inform each other of any material communication (or any other material correspondence or memoranda) received from, discussionsor given to, presentationsthe Antitrust Division of the Department of Justice or the FTC or any other applicable Governmental Body and (iv) where legally permissible, memorandapromptly furnish each other with copies of all correspondence, briefsfilings and written communications between them or their Subsidiaries or Affiliates, filings, argumentson the one hand, and proposals. Each party shall give notice any Governmental Body or its respective staff, on the other hand, with respect to the other party Transactions. Subject to applicable Law and the requirements of applicable Governmental Bodies, Seller and Buyer shall (with respect to any in-person discussion or meeting), discussionand shall to the extent practicable (with respect to any telephonic discussion or meeting), appearance provide the other Party and its counsel with advance notice of and the opportunity to participate in any material discussion or contact meeting with any Governmental Authority or the staff or regulators Body in respect of any Governmental Authorityfiling, investigation or other inquiry in connection with the Transactions. In the event of any dispute between the Parties relating to the strategy or appropriate course of action or content of any submission made in connection with obtaining any clearances under applicable completion Laws with respect to the Transactions, Buyer shall, following consultation with Seller and after giving due consideration to Seller’s views, have the right to make, in good faith, the final determination with respect to such notice being sufficient matter. Buyer and Seller may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to provide the other party under this Section as “Antitrust Counsel Only Material.”
(c) As promptly as practicable after the date hereof, the Seller Entities and Acquired Companies will solicit the Consents and Permits set forth on Schedule 4.2(c). At the expense of the Seller Entities, the Seller Entities and the Acquired Companies will use commercially reasonable efforts, and Buyer will cooperate in all reasonable respects with the opportunity Seller Entities and the Acquired Companies, as applicable, to attend obtain prior to the Closing all such Consents and participate Permits (provided that no Seller Entity or Acquired Company will be required to pay any consideration to any third party any connection with obtaining such Consents and Permits and provided further that the failure obtain any such Consents or Permits in such meeting, discussion, appearance or contact.
(d) Notwithstanding the foregoing, nothing in and of itself shall not constitute a breach of this Section 5.2 shall require, or be construed to require, the Buyer or any of its Affiliates to agree to (i) sell, hold, divest, discontinue or limit, before or after the Closing Date, any assets, businesses or interests of the Buyer, the Company Entities or any of their respective Affiliates; (ii) any conditions relating to, or changes or restrictions in, the operations of any such assets, businesses or interests which, in either case, could reasonably be expected to adversely impact the economic or business benefits to the Buyer of the transactions contemplated by this Agreement; or (iii) any material modification or waiver of the terms and conditions of this Agreement4.2(c)).
Appears in 2 contracts
Samples: Purchase Agreement (Cree Inc), Purchase Agreement (Cree Inc)
Notices and Consents. The Company and its Subsidiaries will give any -------------------- notices to third parties, and will use reasonable best efforts to obtain any third party consents, that the Parent reasonably may request in connection with the matters referred to in (aS)4(c) above. Each of the Buyer and the Sellers will, and the Sellers Parties will cause the Company Entities to, give any notices to, make any filings with, and use their its reasonable best efforts to obtain any authorizations, consents consents, and approvals of, any Governmental Authority that are necessary of governments and governmental agencies in connection with any matters pertaining to such Party and referred to in (S)3(a)(ii), (S)3(b)(ii), and (S)4(c) above. Without limiting the transactions contemplated hereby, it being understood that nothing in generality of the foregoing:
(i) Not later than five (5) business days after the execution of this Agreement shall require, or be construed to requireAgreement, the Buyer, Parent and the Sellers or Company will file any Notification and Report Forms and related material that may be required to file with the Federal Trade Commission and the Antitrust Division of the Company Entities to make any payment in connection with fulfilling such conditions precedentUnited States Department of Justice under the Xxxx-Xxxxx-Xxxxxx Act, other than legal and accounting fees and disbursements and regulatory filing fees and costs. The Sellers shall will use their reasonable best efforts to give all notices toobtain a waiver from the applicable waiting period, and obtain all consents fromwill make any further filings pursuant thereto that may be necessary, all third parties that are listed proper, or advisable in Section 2.6(a)(v) of the Schedules. Each party shall cooperate fully with the other party and its Affiliates in promptly seeking to obtain all such authorizations, consents and approvals. The parties hereto shall not willfully take any action that will have the effect of delaying, impairing or impeding the receipt of any required consents, authorizations, orders and approvals.connection therewith; and
(b) Without limiting the generality of the parties’ undertakings pursuant to Section 5.2(a), each of the parties hereto shall use commercially reasonable efforts to: (i) respond to any inquiries by any Governmental Authority with respect to the transactions contemplated by this Agreement or any Ancillary Agreement; (ii) avoid The Parent and the imposition of any order Company diligently shall take or cooperate in the taking of all steps which are reasonably necessary or appropriate to expedite the prosecution and grant of the Transfer of Control Application. No party by commission or omission shall put in jeopardy its qualifications as an FCC licensee, or impair the routine processing of the Transfer of Control Application. The Company will use its best efforts and otherwise cooperate with the Parent, and the Stockholders shall likewise use their reasonable best efforts and otherwise cooperate with the Parent in responding to any action that would restraininformation requested by the FCC related to the Transfer of Control Application and in defending against any petition, alter complaint or enjoin objection which may be filed against the transactions contemplated by this Agreement or any Ancillary Agreement; and (iii) in Transfer of Control Application. In the event the Transfer of Control Application as tendered is rejected for any order of a Governmental Authority adversely affecting reason, the ability of the parties to consummate the transactions contemplated by this Agreement or any Ancillary Agreement is issued, to have such order vacated or lifted.
(c) All analyses, appearances, meetings, discussions, presentations, memoranda, briefs, filings, arguments, and proposals made by or on behalf of either party before any Governmental Authority or the staff or regulators of any Governmental Authority, in connection with the transactions contemplated hereunder (but, Party liable for the avoidance of doubtrejection shall take all reasonable steps to cure the basis for rejection and the Stockholders, not including any interactions between the Parent and the Company Entities or shall jointly resubmit the Buyer with Governmental Authorities in the ordinary course Transfer of business, any notices or filings made in connection with the Name Change, any disclosure which is not permitted by Law or any disclosure containing confidential information) shall be disclosed to the other party hereunder in advance of any filing, submission or attendance, it being the intent that the parties will consult and cooperate with one another, and consider in good faith the views of one another, in connection with any such analyses, appearances, meetings, discussions, presentations, memoranda, briefs, filings, arguments, and proposals. Each party shall give notice to the other party with respect to any meeting, discussion, appearance or contact with any Governmental Authority or the staff or regulators of any Governmental Authority, with such notice being sufficient to provide the other party with the opportunity to attend and participate in such meeting, discussion, appearance or contactControl Application.
(d) Notwithstanding the foregoing, nothing in this Section 5.2 shall require, or be construed to require, the Buyer or any of its Affiliates to agree to (i) sell, hold, divest, discontinue or limit, before or after the Closing Date, any assets, businesses or interests of the Buyer, the Company Entities or any of their respective Affiliates; (ii) any conditions relating to, or changes or restrictions in, the operations of any such assets, businesses or interests which, in either case, could reasonably be expected to adversely impact the economic or business benefits to the Buyer of the transactions contemplated by this Agreement; or (iii) any material modification or waiver of the terms and conditions of this Agreement.
Appears in 2 contracts
Samples: Merger Agreement (Radio One Inc), Merger Agreement (Radio One Inc)
Notices and Consents. (ai) Each Seller will give, and use reasonable best efforts to cause Tiwest to give, any notices to third parties, and each Seller will use its reasonable best efforts to obtain, and use reasonably best efforts to cause Tiwest to obtain, any third party consents or sublicenses, in connection with the matters referred to in Section 5(b)(i) of the Disclosure Schedule.
(ii) In accordance with the terms and conditions of the Tiwest Joint Venture Documents, promptly following the entry of the Sale Order (or at such earlier time as Tronox Australia reasonably believes that it is required to do so), Tronox Australia shall deliver to the Tiwest Joint Venture Participants a notice of an offer to purchase the Tiwest Joint Venture Interests at the Tiwest Amount and otherwise in accordance with the Tiwest Joint Venture Documents. Tronox Australia shall give Australia Buyer a reasonable opportunity to review and comment on such notice and offer in advance of such delivery to the Tiwest Joint Venture Participants and incorporate Australia Buyer’s reasonable comments thereto.
(iii) Subject to, in the case of Sellers, the Bankruptcy Code and the orders of the Bankruptcy Court, each of Sellers willand Australia Buyer will give, and the Sellers will shall use reasonable best efforts to cause the Company Entities toTiwest to give, give any notices to, make any filings with, and use their its reasonable best efforts to obtain obtain, and Sellers shall use reasonable best efforts to cause Tiwest to obtain, any authorizations, consents consents, and approvals ofof Governmental Entities (A) referred to in Section 5(b)(iii) of the Disclosure Schedule or (B) as are otherwise necessary to consummate the transactions contemplated hereby (other than matters related to the HSR Act or any other Competition/Investment Laws or filings with the Bankruptcy Court which, in each case, are exclusively governed by Sections 5(b)(iv) through (vi) and Section 5(c)). With respect to Sellers’ and Buyer’s obligations in clause (B) of the preceding sentence, the Parties will reasonably cooperate with one another (1) in promptly determining whether any filings are required to be or should be made or consents, approvals, permits or authorizations are required to be or should be obtained under any other federal, state or foreign law in addition to those contemplated by Section 5(b)(iv) of this Agreement and (2) in promptly making any such filings, furnishing information required in connection therewith and seeking to obtain timely any such consents, permits, authorizations, approvals or waivers.
(iv) The Parties and Guarantor shall (A) make or cause to be made all filings required of each of them or any of their respective Subsidiaries or Affiliates under the HSR Act with respect to this Agreement and the transactions contemplated hereby within ten Business Days following the entry of the Bidding Procedures Order and make other required filings pursuant to the Competition/Investment Laws listed on Section 5(b)(iv) of the Disclosure Schedule with respect to this Agreement and the transactions contemplated hereby as promptly as practicable after entry of the Bidding Procedures Order and (B) supply any additional information and documentary materials that may be requested from the United States Federal Trade Commission (the “FTC”), the Antitrust Division of the United States Department of Justice (the “Antitrust Division”) or any other Governmental Entity pursuant to the HSR Act or other Competition/Investment Laws, and to use its reasonable best efforts to take or cause to be taken all actions necessary, proper or advisable to cause the expiration or termination of the applicable waiting periods under the HSR Act or obtain the relevant approvals under such Competition/Investment Laws as soon as practicable after the entry of the Sale Order (and in any event prior to the End Date). Buyers shall pay the filing fees required under the HSR Act and any applicable Competition/Investment Law in connection with such filings.
(v) Buyers and Guarantor, on the one hand, and Sellers, on the other hand, shall (A) promptly notify the other party of any communication to that party from any Governmental Entity in respect of any filing, investigation or inquiry concerning this Agreement or the transactions contemplated by this Agreement, (B) if practicable, permit the other party the opportunity to review in advance all the information (to exclude voluminous document production in response to a request from a Governmental Entity pursuant to the HSR Act or other Competition/Investment Laws, although select documents of interest will be exchanged) relating to Sellers and their respective Subsidiaries, on the one hand, or Buyers and their respective Affiliates, on the other hand, as the case may be, that appears in any filing made with, or written materials submitted to, any Governmental Authority that are necessary Entity in connection with this Agreement and the transactions contemplated hereby, it being understood that nothing in by this Agreement shall requireand incorporate the other party’s reasonable comments; (C) not participate in any substantive meeting or discussion with any Governmental Entity in respect of any filing, investigation, or inquiry concerning this Agreement and the transactions contemplated by this Agreement unless it consults with the other party in advance, and to the extent permitted by such Governmental Entity, gives the other party the opportunity to attend; and (D) furnish the other party with copies of all correspondences, filings, and written communications (to exclude voluminous document production in response to a request from a Governmental Entity pursuant to the HSR Act or other Competition/Investment Laws, although select documents of interest will be construed exchanged) between them and their Subsidiaries and Representatives, on the one hand, and any Governmental Entity or its respective staff, on the other hand, with respect to requirethis Agreement and the transactions contemplated by this Agreement; provided, however, that any materials may be redacted before being provided to the Buyerother party (1) to remove references concerning the valuation of Buyers, the Sellers or any of their respective Affiliates, (2) to exclude financing arrangements, (3) as necessary to comply with contractual arrangements, and (4) as necessary to address reasonable privilege or confidentiality issues. Sellers, on the Company Entities one hand, and Buyers and Guarantor, on the other hand, may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to make the other under this Section 5(b)(v) as “outside counsel only” or otherwise in conformance with the joint defense agreement entered into by the Parties and Guarantor. Such designated materials and the information contained therein shall be given only to the outside legal counsel and any payment retained consultants or experts of the recipient and will not be disclosed by such outside counsel to employees, officers or directors of the recipient, unless express written permission is obtained in connection with fulfilling advance from the source of the materials (Sellers, on the one hand, or Buyers and Guarantor, on the other hand, as the case may be). Each of the Parties and Guarantor shall promptly notify the other parties if such conditions precedent, other than legal party becomes aware that any third party has any objection or intends to object to this Agreement on antitrust or anti-competitive grounds.
(vi) Each of the Parties and accounting fees and disbursements and regulatory filing fees and costs. The Sellers Guarantor shall use their its reasonable best efforts to give all notices toresolve objections, and obtain all consents fromif any, all third parties that are listed in Section 2.6(a)(v) of the Schedules. Each party shall cooperate fully with the other party and its Affiliates in promptly seeking to obtain all such authorizations, consents and approvals. The parties hereto shall not willfully take any action that will have the effect of delaying, impairing or impeding the receipt of any required consents, authorizations, orders and approvals.
(b) Without limiting the generality of the parties’ undertakings pursuant to Section 5.2(a), each of the parties hereto shall use commercially reasonable efforts to: (i) respond to any inquiries as may be asserted by any Governmental Authority Entity with respect to the transactions contemplated by this Agreement or under any Ancillary Agreement; (ii) avoid the imposition of any applicable Competition/Investment Law in order or the taking of any action that would restrain, alter or enjoin to enable the transactions contemplated by this Agreement or any Ancillary Agreement; and (iii) in to be consummated as soon as practicable following the event any order of a Governmental Authority adversely affecting the ability entry of the parties Sale Order (and in any case prior to consummate the transactions End Date). If any Litigation is instituted or objection made (or threatened in writing to be instituted or made) challenging that any transaction contemplated by this Agreement is in violation of any applicable Competition/Investment Law, then each of the Parties and Guarantor shall reasonably cooperate and use its reasonable best efforts to contest and resist such Litigation or resolve any Ancillary Agreement is issuedsuch objections, and to have such order vacated vacated, lifted, reversed or lifted.
(c) All analysesoverturned any Decree, appearanceswhether temporary, meetingspreliminary or permanent, discussionsthat is in effect and that prohibits, presentations, memoranda, briefs, filings, arguments, and proposals made by prevents or on behalf of either party before any Governmental Authority or the staff or regulators of any Governmental Authority, in connection with the transactions contemplated hereunder (but, for the avoidance of doubt, not including any interactions between the Company Entities or the Buyer with Governmental Authorities in the ordinary course of business, any notices or filings made in connection with the Name Change, any disclosure which is not permitted by Law or any disclosure containing confidential information) shall be disclosed to the other party hereunder in advance of any filing, submission or attendance, it being the intent that the parties will consult and cooperate with one another, and consider in good faith the views of one another, in connection with any such analyses, appearances, meetings, discussions, presentations, memoranda, briefs, filings, arguments, and proposals. Each party shall give notice to the other party with respect to any meeting, discussion, appearance or contact with any Governmental Authority or the staff or regulators of any Governmental Authority, with such notice being sufficient to provide the other party with the opportunity to attend and participate in such meeting, discussion, appearance or contact.
(d) Notwithstanding the foregoing, nothing in this Section 5.2 shall require, or be construed to require, the Buyer or any of its Affiliates to agree to (i) sell, hold, divest, discontinue or limit, before or after the Closing Date, any assets, businesses or interests of the Buyer, the Company Entities or any of their respective Affiliates; (ii) any conditions relating to, or changes or restrictions in, the operations of any such assets, businesses or interests which, in either case, could reasonably be expected to adversely impact the economic or business benefits to the Buyer restricts consummation of the transactions contemplated by this Agreement; , including by pursuing all reasonably available avenues of administrative and judicial appeal and all reasonably available legislative action, unless, by mutual agreement, the Parties and Guarantor decide that litigation is not in their respective best interests. For purposes of this Section 5(b)(vi) and Section 5(b)(iv), reasonable best efforts shall require that Guarantor, Buyers or their respective Affiliates shall, to the extent required to resolve objections as may be asserted by any Governmental Entity with respect to the transactions contemplated by this Agreement under any applicable Competition/Investment Law, divest their interest in Louisiana Pigment Company, L.P. (iii“LPC”) any material modification to its partner or waiver another Person at a discount to fair value and shall further agree that, with respect to LPC, Buyers, Guarantor or their respective Affiliates will enter into reasonable long-term supply agreements or tolling agreements for its portion of the titanium dioxide produced by LPC to or with an independent third party; establish protections to ensure that Buyers, Guarantor or their respective Affiliates obtain no competitively sensitive information of the other owner of LPC; and/or extend on current terms or cancel existing customer contracts for Buyers’, Guarantor’s or their respective Affiliates’ portion of titanium dioxide produced by LPC. In furtherance of the preceding sentence, (A) Buyers shall engage, within fourteen days of the date hereto, a nationally recognized investment bank with experience in asset sales to market the sale of Buyers’, Guarantor’s or their respective Affiliates’ interest in LPC, and conditions (B) Buyers and Guarantor shall use reasonable best efforts, prior to the entry of the Sale Order, to enter into a letter of intent with its partner in LPC or a bona fide third party purchaser (each, a “Potential Purchaser”), to sell the LPC interests to such Potential Purchaser, conditioned upon the consummation of the transactions contemplated by this Agreement, entry into definitive documentation with such Potential Purchaser and other customary conditions, unless based on (1) the Parties’ and Guarantor’s discussions with Governmental Entities, (2) the arguments of the Parties and Guarantor in favor of expiration of the waiting period under the HSR Act, and (3) facts then available to the Parties, it is reasonably likely that the waiting period under the HSR Act will expire on or prior to the End Date; provided that nothing in this Agreement shall be construed to require Guarantor, Buyers or their respective Affiliates to agree to or to make any other divestiture or any agreement to hold separate with respect to any other asset of Guarantor, Buyers or Sellers in order to cause the expiration or termination of the applicable waiting periods under the HSR Act or to obtain the relevant approvals under any other Competition/Investment Laws or to resolve or settle any objection or Litigation of any Governmental Entity or to have lifted, vacated, reversed or overturned any Decree.
Appears in 2 contracts
Samples: Asset and Equity Purchase Agreement (Tronox Inc), Asset and Equity Purchase Agreement (Huntsman International LLC)
Notices and Consents. (a) Each of the Buyer Parent and the Sellers will, and the Sellers will cause the Company Entities to, give any notices to, make any filings with, and Seller shall use their reasonable its best efforts to obtain any authorizationsobtain, consents at its expense, all such waivers, permits, consents, approvals or other authorizations from third parties and approvals ofGovernmental Entities, any and to effect all such registrations, filings and notices with or to third parties and Governmental Authority that are necessary Entities, as reasonably requested by the Buyer in connection with the transactions contemplated hereby, it being understood that nothing in by this Agreement shall require(including without limitation those listed in Sections 2.4, or be construed to require2.12(d), the Buyer2.14, the Sellers or any 2.15 and 2.25 of the Company Entities to make any payment in connection with fulfilling such conditions precedent, other than legal and accounting fees and disbursements and regulatory filing fees and costs. The Sellers shall use their reasonable best efforts to give all notices to, and obtain all consents from, all third parties that are listed in Section 2.6(a)(v) of the Schedules. Each party shall cooperate fully with the other party and its Affiliates in promptly seeking to obtain all such authorizations, consents and approvals. The parties hereto shall not willfully take any action that will have the effect of delaying, impairing or impeding the receipt of any required consents, authorizations, orders and approvalsDisclosure Schedule).
(b) Without limiting the generality If any of the parties’ undertakings pursuant Assigned Contracts or other assets or rights constituting Acquired Assets may not be assigned and transferred by the Seller to Section 5.2(a)the Buyer (as a result of either the provisions thereof or applicable law) without the consent or approval of a third party, then (i) such Assigned Contracts and/or other assets or rights shall not be assigned and transferred by the Seller to the Buyer at the Closing, (ii) the Seller shall hold such Acquired Assets in trust for, and for the benefit of the Buyer, (ii) the Buyer shall act as the Seller's agent for purposes of satisfying the Seller's obligations under such Assigned Contracts, (iii) the Buyer shall receive the economic benefits of such Assigned Contracts, (iv) the Buyer shall assume the Seller's liabilities or obligations with respect thereto at the Closing, (v) each of the parties hereto Parent and the Seller shall, as reasonably requested by the Buyer, use its best efforts to obtain the necessary consent or approval as soon as practicable after the Closing, and (vi) as reasonably requested by the Seller or the Buyer, upon the obtaining of such consent or approval, the Buyer and the Seller, as the case may be, shall use commercially reasonable efforts to: execute such further instruments of conveyance (iin the form executed at the Closing) respond as may be necessary to any inquiries by any Governmental Authority with respect assign and transfer such Assigned Contracts and/or other assets or rights (and the associated liabilities and obligations of the Seller) to the transactions contemplated by this Agreement or any Ancillary Agreement; (ii) avoid the imposition of any order or the taking of any action that would restrain, alter or enjoin the transactions contemplated by this Agreement or any Ancillary Agreement; and (iii) in the event any order of a Governmental Authority adversely affecting the ability of the parties to consummate the transactions contemplated by this Agreement or any Ancillary Agreement is issued, to have such order vacated or liftedBuyer.
(c) All analysesTo the extent the Buyer acts as agent of the Seller within the limited scope set forth in Section 4.2(b): (i) the Buyer agrees that it shall have no authority to assume or to create any debt, appearancesobligation, meetings, discussions, presentations, memoranda, briefs, filings, arguments, and proposals made by or liability in the name or on behalf of either party before the Seller, nor shall the Buyer make any Governmental Authority or the staff or regulators representations of any Governmental Authority, in connection with the transactions contemplated hereunder (but, for the avoidance of doubt, not including any interactions between the Company Entities kind or the Buyer with Governmental Authorities in the ordinary course of business, any notices or filings made in connection with the Name Change, any disclosure which is not permitted by Law or any disclosure containing confidential information) shall be disclosed to the other party hereunder in advance of any filing, submission or attendance, it being the intent that the parties will consult and cooperate with one another, and consider in good faith the views of one another, in connection with any such analyses, appearances, meetings, discussions, presentations, memoranda, briefs, filings, arguments, and proposals. Each party shall give notice to the other party nature with respect to any meetingthe Seller. In this connection, discussionthe Buyer shall comply with all applicable laws, appearance statutes, regulations and treaties relating to the obligations of the Seller under the Assumed Contracts and the performance of its duties thereunder; and (ii) the Parties agree that the relationship of the Seller and the Buyer is that of principal and independent contractor and that the Buyer shall be deemed at all times during the term of this Agreement to be an independent contractor. Nothing herein shall be deemed to create the relationship of partnership, association or contact with any Governmental Authority or the staff or regulators joint venture of any Governmental Authoritynature whatsoever. Except as expressly provided herein, with such notice being sufficient this Agreement shall not confer to provide the other party with Buyer any right or authority to obligate the opportunity Seller in any way or to attend and participate in such meeting, discussion, appearance cause the Seller to accept or contact.
(d) Notwithstanding the foregoing, nothing deliver any order. Nothing contained in this Section 5.2 4.2(c) shall require, or be construed to require, in any way prevent the Buyer or any of its Affiliates to agree to (i) sell, hold, divest, discontinue or limit, before or after from using the Closing Date, any assets, businesses or interests of the Buyer, the Company Entities or any of their respective Affiliates; (ii) any conditions relating to, or changes or restrictions in, the operations of any such assets, businesses or interests which, in either case, could reasonably be expected to adversely impact the economic or business benefits to the Buyer of the transactions contemplated by this Agreement; or (iii) any material modification or waiver of the terms and conditions of this Agreementname "Itronix".
Appears in 2 contracts
Samples: Asset Purchase Agreement (Telxon Corp), Asset Purchase Agreement (Dynatech Corp)
Notices and Consents. (a) Each of To the Buyer and extent required by the Sellers willBankruptcy Code or the Bankruptcy Court, and the Sellers will cause the Company Entities to, Seller shall give any notices to, make any filings withto third parties, and Seller shall use their its commercially reasonable best efforts to obtain any authorizationsthird party Consents or sublicenses; provided, consents and approvals ofhowever, that neither Seller nor Buyer shall be required to incur any Governmental Authority that are necessary Liabilities or provide any financial accommodation, in connection with the transactions contemplated hereby, it being understood that nothing in this Agreement shall require, or be construed to require, the Buyer, the Sellers or any of the Company Entities to make any payment in connection with fulfilling such conditions precedent, other than legal and accounting fees and disbursements and regulatory filing fees and costs. The Sellers shall use their reasonable best efforts to give all notices to, and obtain all consents from, all third parties that are listed in Section 2.6(a)(v) of the Schedules. Each party shall cooperate fully with the other party and its Affiliates in promptly seeking order to obtain all any such authorizations, consents and approvals. The parties hereto shall not willfully take any action that will have third party Consent with respect to the effect of delaying, impairing transfer or impeding the receipt assignment of any required consents, authorizations, orders and approvalsPurchased Asset.
(b) Without limiting the generality of the parties’ undertakings pursuant to Section 5.2(a), each of the parties hereto Seller and Buyer shall use commercially reasonable efforts to: cooperate with one another (i) respond in promptly determining whether any filings are required to be or should be made or consents, approvals, permits or authorizations are required to be or should be obtained under any inquiries by any Governmental Authority applicable Law in connection with respect to the transactions contemplated by this Agreement or any Ancillary Agreement; and the Contemplated Transactions and (ii) avoid in promptly making any such filings, furnishing information required in connection therewith and seeking to obtain timely any such consents, permits, authorizations, approvals or waivers; provided, however, that Seller’s obligations hereunder shall only continue until the imposition of any order Chapter 11 Cases are closed or the taking of any action that would restrain, alter or enjoin the transactions contemplated by this Agreement or any Ancillary Agreement; and (iii) in the event any order of a Governmental Authority adversely affecting the ability of the parties to consummate the transactions contemplated by this Agreement or any Ancillary Agreement is issued, to have such order vacated or lifteddismissed.
(c) All analysesTo the extent permitted by applicable Law and the terms of the Purchased Assets, appearancesin the event any third party Consent has not been obtained by the Closing, meetingsat Buyer’s request, discussionsthe Party contemplated to be transferring such Purchased Asset under this Agreement (the “Transferring Party”) shall, presentationsat Buyer’s cost and expense, memorandahold in trust for Buyer, briefsas applicable, filingsthe relevant Purchased Asset until the earlier of such time as (i) the third party Consent is obtained, arguments(ii) the Chapter 11 Cases are closed or dismissed or (iii) Buyer elects not to assume such Purchased Asset. During such time period, Buyer shall comply with all applicable covenants and obligations under the Purchased Assets, including the payment of any costs or expenses in connection therewith. Buyer shall be entitled to receive all of the benefits of the Transferring Party under the Purchased Asset. Buyer shall satisfy all Liabilities with respect to such Purchased Assets until the earlier of such time as (i) the third party Consent is obtained, (ii) the Chapter 11 Cases are closed or dismissed or (iii) Buyer elects not to assume such Purchased Asset, and proposals made shall indemnify and hold Seller harmless with respect to any such reasonable out-of-pocket expenses arising in the Ordinary Course of Business pursuant to a budget to be reasonably agreed to by the Parties in good faith arising or on behalf otherwise relating to such period; provided that, Seller covenants and agrees that in the event of either party before clause (iii), it will wind down such Purchased Asset as soon as commercially reasonable and shall take all commercially reasonable measures to avoid or mitigate any losses, expenses and Liabilities.
(d) Subject to the terms and conditions set forth in this Agreement and applicable Law or as otherwise required in the Chapter 11 Cases, Buyer and Seller shall (A) promptly notify the other Party of any communication to that Party from any Governmental Authority Entity in respect of any filing, investigation or inquiry concerning this Agreement or the staff Contemplated Transactions, and (B) if practicable, permit the other Party the opportunity to review in advance all the information relating to Seller and any Subsidiaries or regulators of Buyer and its Affiliates, as the case may be, that appears in any filing made with, or written materials submitted to, any third party and/or any Governmental Authority, Entity in connection with the transactions contemplated hereunder (but, for Agreement and the avoidance of doubt, not including any interactions between the Company Entities or the Buyer with Governmental Authorities in the ordinary course of business, any notices or filings made in connection with the Name Change, any disclosure which is not permitted by Law or any disclosure containing confidential information) shall be disclosed to the other party hereunder in advance of any filing, submission or attendance, it being the intent that the parties will consult and cooperate with one another, Contemplated Transactions and consider in good faith the views of one anotherother Party’s reasonable comments. Seller and Buyer may, in connection with as each deems advisable and necessary, reasonably designate any such analyses, appearances, meetings, discussions, presentations, memoranda, briefs, filings, arguments, and proposals. Each party shall give notice commercially or competitively sensitive material provided to the other party with respect to any meeting, discussion, appearance or contact with any Governmental Authority or the staff or regulators of any Governmental Authority, with such notice being sufficient to provide the other party with the opportunity to attend and participate in such meeting, discussion, appearance or contact.
(d) Notwithstanding the foregoing, nothing in under this Section 5.2 5.1(d) as “outside counsel only.” Such materials and the information contained therein shall require, be given only to the outside legal counsel and any retained consultants or be construed to require, the Buyer or any of its Affiliates to agree to (i) sell, hold, divest, discontinue or limit, before or after the Closing Date, any assets, businesses or interests experts of the recipient and shall not be disclosed by such outside counsel to employees, officers or directors of the recipient, unless express written permission is obtained in advance from the source of the materials (Seller or Buyer, as the Company Entities or any of their respective Affiliates; (ii) any conditions relating to, or changes or restrictions in, the operations of any such assets, businesses or interests which, in either case, could reasonably be expected to adversely impact the economic or business benefits to the Buyer of the transactions contemplated by this Agreement; or (iii) any material modification or waiver of the terms and conditions of this Agreementcase may be).
Appears in 1 contract
Samples: Asset Purchase Agreement
Notices and Consents. (a) Each of the Buyer and the Sellers willparty shall, and the Sellers will shall cause the Company Entities each of its Subsidiaries to, give any notices to, make any filings with, and use their its reasonable best efforts to obtain any authorizationsobtain, consents and reasonably cooperate with the other parties hereto in obtaining, at the earliest practicable date prior to the Closing all consents, waivers and approvals offrom, any Governmental Authority that are necessary in connection with the transactions contemplated hereby, it being understood that nothing in this Agreement shall require, or be construed to require, the Buyer, the Sellers or any of the Company Entities to make any payment in connection with fulfilling such conditions precedent, other than legal and accounting fees and disbursements and regulatory filing fees and costs. The Sellers shall use their reasonable best efforts to give provide all notices to, and obtain all consents from, all third parties Persons that are listed in Section 2.6(a)(v) of the Schedules. Each party shall cooperate fully with the other party and its Affiliates in promptly seeking to obtain all such authorizationsnot a Governmental Authority, consents and approvals. The parties hereto shall not willfully take any action that will have the effect of delaying, impairing or impeding the receipt of any required which consents, authorizationswaivers, orders approvals and approvals.
(b) Without limiting the generality of the parties’ undertakings pursuant to Section 5.2(a), each of the parties hereto shall use commercially reasonable efforts to: (i) respond to any inquiries by any Governmental Authority with respect to the transactions contemplated by this Agreement or any Ancillary Agreement; (ii) avoid the imposition of any order or the taking of any action that would restrain, alter or enjoin the transactions contemplated by this Agreement or any Ancillary Agreement; and (iii) in the event any order of a Governmental Authority adversely affecting the ability of the parties notices are required to consummate the transactions contemplated by this Agreement Agreement, including the consents, waivers, approvals and notices referred to in Sections 2.4, 3.3 and 4.3 (except for such matters covered by Section 5.7).
(b) All such consents, waivers, approvals and notices shall be in writing and in form and substance reasonably satisfactory to Purchaser, and executed counterparts of such consents, waivers and approvals shall be delivered to Purchaser promptly after receipt thereof, and copies of such notices shall be delivered to Purchaser promptly after the making thereof. Notwithstanding anything to the contrary in this Agreement, none of Seller Parent, the Company, Purchaser or any Ancillary Agreement is issuedof their respective Affiliates shall be required to pay any material amounts or incur any Liability or Loss in connection with obtaining any consent, waiver or approval; provided that with respect to have obtaining landlords’ consents to the assignment of leases for Outlier Leased Real Property, Seller Parent shall offer to guarantee the assignee’s obligations under the lease if reasonably necessary to obtain such order vacated or liftedconsent.
(c) All analysesWith respect to the letters of credit set forth on Schedule 5.2(c) of the Seller Disclosure Schedule (the “Seller L/Cs”), appearancesprior to the Closing, meetings, discussions, presentations, memoranda, briefs, filings, argumentsPurchaser shall use reasonable best efforts to cause itself or one of its Affiliates to either be substituted for Seller Parent and its Affiliates or have the Seller L/Cs replaced, and proposals made by for Seller Parent and its Affiliates, to be fully released and relieved of all of their obligations pursuant to, effective as of the Closing, any reimbursement obligations with respect to the Seller L/Cs (“Seller L/C Obligations”). In the event that Seller Parent and its Affiliates are not fully released and relieved of all of the Seller L/C Obligations on the Closing Date, Purchaser or one of its Affiliates shall, at Purchaser’s expense, cause one or more financial institutions reasonably acceptable to Seller Parent to issue on behalf the Closing Date to Seller Parent, as beneficiary, a letter of either credit (the “Backstop L/C”) in an amount equal to the aggregate amount of outstanding Seller L/C Obligations on the Closing Date. After the Closing, Seller Parent may draw on the Backstop L/C in an amount equal to any amounts drawn under the Seller L/Cs. Seller Parent and Purchaser agree to reduce the amount of the Backstop L/C from time to time after the Closing Date to the extent that Seller Parent and its Affiliates are fully released and relieved of the Seller L/C Obligations, so that the Backstop L/C shall at all times be equal in amount to the amount of outstanding Seller L/C Obligations.
(d) With respect to the guarantee (the “Seller Guarantee”) and the Contract (the “Specified Contract”) in each case set forth on Schedule 5.2(d) of the Seller Disclosure Schedule, prior to the Closing, (i) Seller Parent and its Affiliates shall use commercially reasonable efforts, in cooperation with Purchaser, to obtain any third party before any Governmental Authority or consent from a party to the staff or regulators of any Governmental Authority, Specified Contract required in connection with the consummation of the transactions contemplated hereunder hereby (butthe “Specified Contract Consent”) and (ii) in the event the Specified Contract Consent is obtained, Purchaser shall use commercially reasonable efforts to cause itself or one of its Affiliates to either be substituted for Seller Parent and its Affiliates or have the Seller Guarantee replaced and for Seller Parent and its Affiliates to be fully released and relieved of all of their obligations pursuant to the Seller Guarantee, effective as of the Closing (for the avoidance of doubt, not including any interactions between in the event the Company Entities or its Subsidiaries do not obtain the Buyer benefit of the Specified Contract from and after the Closing Date in accordance with Governmental Authorities the terms thereof, Purchaser shall have no obligation under this clause (ii)); provided that, in the ordinary course of business, any notices or filings made in connection with event that notwithstanding such efforts the Name Change, any disclosure which Specified Contract Consent is not permitted by Law or any disclosure containing confidential information) shall reasonably expected to be disclosed obtained prior to the other party hereunder in advance of any filing, submission or attendance, it being the intent that the parties will consult and cooperate with one another, and consider in good faith the views of one another, in connection with any such analyses, appearances, meetings, discussions, presentations, memoranda, briefs, filings, arguments, and proposals. Each party shall give notice to the other party with respect to any meeting, discussion, appearance or contact with any Governmental Authority or the staff or regulators of any Governmental Authority, with such notice being sufficient to provide the other party with the opportunity to attend and participate in such meeting, discussion, appearance or contact.
(d) Notwithstanding the foregoing, nothing in this Section 5.2 shall require, or be construed to require, the Buyer or any of its Affiliates to agree to (i) sell, hold, divest, discontinue or limit, before or after the Closing Date, any assets, businesses or interests the parties will reasonably cooperate to implement an arrangement whereby from and after the Closing Seller Parent retains the Specified Contract and obtains from the Company and its Subsidiaries at Seller Parent’s sole cost and expense the use of the Buyerassets and/or services of personnel necessary to perform the obligations under the Specified Contract consistent with past practice, and if the consent of a third party is needed to provide such assets or services, the parties shall use their respective commercially reasonable efforts to obtain; provided, further, that in the event the Specified Contract Consent is not obtained, any Liabilities incurred by Purchaser or its Affiliates (including, from and after the Closing, the Company Entities and its Subsidiaries) arising from or any of their respective Affiliates; (ii) any conditions relating to, or changes or restrictions in, the operations of any such assets, businesses or interests which, in either case, could reasonably be expected to adversely impact the economic or business benefits related to the Buyer Specified Contract, including, as a result of the transactions contemplated by this Agreement; or (iii) any material modification or waiver failure of Seller Parent and its Affiliates to obtain the terms and conditions of this AgreementSpecified Contract Consent, shall be considered Excluded Liabilities.
Appears in 1 contract
Notices and Consents. (ai) Seller shall, and shall cause its respective Affiliates to, use commercially reasonable efforts to expeditiously obtain all Seller Consents and any other consents to the Transactions required under any other agreement to which Seller is a party (including without limitation, the Assumed Contracts), in each case in form and substance reasonably acceptable to Ethanex. Each of the Buyer and the Sellers will, and the Sellers Parties will cause the Company Entities to, give any notices to, or make any filings with, and use their reasonable best efforts Governmental Authorities or, in the case of Assumed Contracts, give any notices to obtain any authorizations, consents and approvals of, any Governmental Authority that are necessary in connection with the transactions contemplated hereby, it being understood that nothing in this Agreement shall require, or be construed to require, the Buyer, the Sellers or any of the Company Entities to make any payment in connection with fulfilling such conditions precedent, other than legal and accounting fees and disbursements and regulatory filing fees and costs. The Sellers shall use their reasonable best efforts to give all notices to, and obtain all consents from, all third parties that are listed in Section 2.6(a)(v) required as a result of the SchedulesTransactions contemplated hereby. Each party shall cooperate fully with Ethanex, on the one hand, and the Seller, on the other hand, shall prepare and deliver (or cause to be prepared and delivered) to one another all information required to be provided in any notice, filing, application, or similar request or submission in sufficient time to enable the party charged hereunder with filing such notice, filing form, application or similar submission to make such filing within the time period set forth herein or by any other applicable deadline. Except as set forth in this Section 7(d), nothing herein shall require the expenditure or payment of any funds (other than in respect of normal and its Affiliates usual attorneys’ fees, filing fees or other normal costs of doing business) or the giving of any other consideration in promptly seeking connection with obtaining any of the Seller Consents; provided, that the Seller shall, except as otherwise set forth herein, be liable for and timely perform and satisfy all obligations or liabilities under each Governmental Authorization or Material Contract of the Seller during the period prior to obtain all the applicable Closing Dates. Ethanex and the Seller shall reasonably cooperate in connection with obtaining such authorizations, consents and approvals. The parties hereto shall not willfully take promptly furnish to any action that will have the effect of delayingPerson from whom a Seller Consent is requested such accurate and complete information regarding, impairing or impeding the receipt of as applicable, Ethanex, Seller and their respective Affiliates as such Person may reasonably require in connection with obtaining any required consents, authorizations, orders and approvalsSeller Consent.
(bii) Without limiting the generality of the parties’ undertakings pursuant to Section 5.2(a), each of Except as the parties hereto may otherwise agree in writing, Seller shall use commercially reasonable efforts to: not agree, without Ethanex’s prior written consent, (i1) respond to any inquiries by adverse change to the material terms of any Governmental Authority with respect Authorization, Assumed Contract or other obligation to the transactions contemplated by this Agreement which a Seller Consent or any Ancillary Agreement; other consent relates or (ii2) avoid to the imposition of any order or the taking of any action that would restrain, alter or enjoin the transactions contemplated by this Agreement or any Ancillary Agreement; and (iii) in the event any order of a Governmental Authority adversely affecting the ability of the parties to consummate the transactions contemplated by this Agreement or any Ancillary Agreement is issued, to have such order vacated or lifted.
(c) All analyses, appearances, meetings, discussions, presentations, memoranda, briefs, filings, arguments, and proposals made by or on behalf of either party before any Governmental Authority or the staff or regulators of any Governmental Authority, in connection with the transactions contemplated hereunder (but, for the avoidance of doubt, not including any interactions between the Company Entities or the Buyer with Governmental Authorities in the ordinary course of business, any notices or filings made in connection with the Name Change, any disclosure which is not permitted by Law or any disclosure containing confidential information) shall be disclosed adverse condition to the other party hereunder in advance of any filing, submission or attendance, it being the intent that the parties will consult and cooperate with one another, and consider in good faith the views of one another, in connection with any such analyses, appearances, meetings, discussions, presentations, memoranda, briefs, filings, arguments, and proposals. Each party shall give notice to the other party with respect to any meeting, discussion, appearance or contact with any Governmental Authority or the staff or regulators of any Governmental Authority, with such notice being sufficient to provide the other party with the opportunity to attend and participate in such meeting, discussion, appearance or contact.
(d) Notwithstanding the foregoing, nothing in this Section 5.2 shall require, or be construed to require, the Buyer or any of its Affiliates to agree to (i) sell, hold, divest, discontinue or limit, before or after the Closing Date, any assets, businesses or interests of the Buyer, the Company Entities or any of their respective Affiliates; (ii) any conditions relating to, or changes or restrictions in, the operations assignment of any such assetsGovernmental Authorization, businesses Assumed Contract or interests whichother obligation to which such Seller Consent or other consent relates to Ethanex as a condition to obtaining any Governmental Authorization, Seller Consent or other consent, and, in either each case, could reasonably Ethanex shall not be expected required to adversely impact the economic accept any such change or business benefits to the Buyer of the transactions contemplated by this Agreement; or (iii) any material modification or waiver of the terms and conditions of this Agreementcondition.
Appears in 1 contract
Notices and Consents. (a) Sellers will cause each of the Subject Companies to (i) give any notices to third parties, and will cause each of the Subject Companies to use its commercially reasonable efforts to obtain any third party consents, waivers, approvals, authorizations, orders, amendments to agreements and estoppel agreements set forth in Section 8.1(e) of the Disclosure Schedule and (ii) make any filings with, and use its commercially reasonable best efforts to obtain any authorizations, consents, and approvals of Governmental Authorities in connection with the matters referred to in Section 5.3, and Buyer will reasonable cooperate with the Subject Companies in connection therewith. Each of the Buyer and the Sellers will, and the Sellers Parties will cause the Company Entities to, give any notices to, make any filings with, and use their its commercially reasonable best efforts to obtain any authorizations, consents consents, and approvals of, any of Governmental Authority that are necessary Authorities in connection with the transactions contemplated hereby, it being understood that nothing matters referred to in this Agreement shall require, or be construed to require, the Buyer, the Sellers or any of the Company Entities to make any payment in connection with fulfilling such conditions precedent, other than legal Sections 3.3 and accounting fees and disbursements and regulatory filing fees and costs. The Sellers shall use their reasonable best efforts to give all notices to, and obtain all consents from, all third parties that are listed in Section 2.6(a)(v) of the Schedules. Each party shall cooperate fully with the other party and its Affiliates in promptly seeking to obtain all such authorizations, consents and approvals. The parties hereto shall not willfully take any action that will have the effect of delaying, impairing or impeding the receipt of any required consents, authorizations, orders and approvals4.3.
(b) Without limiting the generality of the parties’ undertakings pursuant to Section 5.2(a)foregoing, each of the parties hereto shall Parties will (A) file (or use its commercially reasonable efforts to: (ito cause its appropriate Affiliates to file) respond any notification, report forms and related material that it may be required to any inquiries by any Governmental Authority file with respect the Federal Trade Commission and the Antitrust Division of the United States Department of Justice under the HSR Act, and will use its commercially reasonable efforts to obtain an early termination of the transactions contemplated by this Agreement or any Ancillary Agreement; (ii) avoid the imposition of any order or the taking of any action that would restrain, alter or enjoin the transactions contemplated by this Agreement or any Ancillary Agreement; applicable waiting period and (iiiB) make any further filings pursuant thereto that may be necessary, proper, or advisable in the event any order connection therewith. Each of a Governmental Authority adversely affecting the ability Buyer and Sellers Representative will supply each other with copies of the parties to consummate the transactions contemplated by this Agreement or any Ancillary Agreement is issuedall correspondence, to have such order vacated or lifted.
(c) All analyses, appearances, meetings, discussions, presentations, memoranda, briefscommunications, filings, argumentsnotifications, forms, and proposals made by or on behalf related materials filed under the HSR Act (“HSR Materials”) and each Party may suggest reasonable changes to another Party’s HSR Materials prior to filing. Sellers and Buyer agree to consult and to attempt to resolve in good faith any issue arising as a result of either party before any Governmental Authority or the staff or regulators review of any Governmental Authority, such HSR Materials as promptly as possible. Sellers and Buyer agree to furnish such necessary information and reasonable assistance as such other Party may request in connection with the transactions contemplated hereunder (but, for the avoidance its preparation of doubt, not including any interactions between the Company Entities or the Buyer with Governmental Authorities in the ordinary course of business, any notices or filings made in connection with the Name Change, any disclosure which is not permitted by Law or any disclosure containing confidential information) shall be disclosed to the other party hereunder in advance of any filing, submission or attendance, it being the intent that the parties will consult and cooperate with one another, and consider in good faith the views of one another, in connection with any such analyses, appearances, meetings, discussions, presentations, memoranda, briefs, filings, arguments, and proposals. Each party shall give notice to the other party with respect to any meeting, discussion, appearance or contact with any Governmental Authority or the staff or regulators of any Governmental Authority, with such notice being sufficient to provide the other party with the opportunity to attend and participate in such meeting, discussion, appearance or contactHSR Materials.
(d) Notwithstanding the foregoing, nothing in this Section 5.2 shall require, or be construed to require, the Buyer or any of its Affiliates to agree to (i) sell, hold, divest, discontinue or limit, before or after the Closing Date, any assets, businesses or interests of the Buyer, the Company Entities or any of their respective Affiliates; (ii) any conditions relating to, or changes or restrictions in, the operations of any such assets, businesses or interests which, in either case, could reasonably be expected to adversely impact the economic or business benefits to the Buyer of the transactions contemplated by this Agreement; or (iii) any material modification or waiver of the terms and conditions of this Agreement.
Appears in 1 contract
Notices and Consents. (a) Each of the Buyer and the Sellers Parties will, and the Sellers Seller will cause the Company Entities to, give any notices to, or make any filings required in connection with, and use their reasonable best efforts its Commercially Reasonable Efforts to obtain any authorizations, consents and approvals of, any Governmental Authority that are necessary in connection with the transactions contemplated hereby, it being understood that nothing in this Agreement shall require, or be construed to requireobtain, the Buyer, the Sellers or any of the Company Entities to make any payment in connection with fulfilling such conditions precedent, other than legal Required Governmental Approvals and accounting fees and disbursements and regulatory filing fees and costsNecessary Consents. The Sellers shall use their reasonable best efforts to give all notices to, and obtain all consents from, all third parties that are listed in Section 2.6(a)(v) of the Schedules. Each party shall cooperate fully with the other party and its Affiliates in promptly seeking to obtain all such authorizations, consents and approvals. The parties hereto shall not willfully take any action that will have the effect of delaying, impairing or impeding the receipt of any required consents, authorizations, orders and approvals.
(b) Without limiting the generality of the parties’ undertakings pursuant to Section 5.2(a)foregoing:
(i) as promptly as practicable (but in no event more than 20 days) after the date of this Agreement, each of the parties hereto shall Parties will file (and will cause any of their necessary Affiliates to file) any Notification and Report Forms and related material that it or he may be required to file with the Federal Trade Commission (the "FTC") and the Antitrust Division of the United States Department of Justice (the "Antitrust Division") under the Xxxx-Xxxxx-Xxxxxx Act, will use commercially reasonable efforts to: and cause such Affiliates to use its and their Commercially Reasonable Efforts to obtain expiration or early termination of the applicable waiting period, and will and will cause such Affiliates to make any further filings pursuant thereto that may be necessary in connection therewith;
(iii) respond as promptly as practicable (but in no event more than 20 days) after the date of this Agreement, the Seller will cause the Company to any inquiries by any Governmental Authority file a complete Form 394 and a Request for Transfer of Control with respect to each of the transactions Franchises with the Telecommunications Regulatory Board and the Buyer will provide all information and documentation regarding its organization, operations, management, ownership and business as are required to be included therein; and
(iii) as promptly as practicable (but in no event more than 20 days) after the date of this Agreement, the Parties shall file applications with the FCC for consent to the change of control of the Licenses issued by the FCC (other than the earth station and business radio Licenses issued by the FCC, as to which such applications shall be filed at the appropriate time), as contemplated by this Agreement or any Ancillary Agreement; (ii) avoid . Each of the imposition of any order or Parties will cooperate with the taking of any action that would restrainother in obtaining all Required Governmental Approvals and Necessary Consents, alter or enjoin and the transactions contemplated by Seller will cause the Company to cooperate with the Parties in obtaining all Required Governmental Approvals and Necessary Consents. Notwithstanding anything to the contrary contained in this Agreement or any Ancillary Agreement; and (iii) , in the event any order case of a Governmental Authority adversely affecting Franchise or License, the ability of the parties Buyer shall only be obligated to consummate the transactions contemplated by this Agreement or any Ancillary Agreement is issued, to have such order vacated or lifted.
(c) All analyses, appearances, meetings, discussions, presentations, memoranda, briefs, filings, argumentsaccept, and proposals made by agrees that the Company may accept, changes to such Franchise or on behalf of either party before any Governmental Authority or the staff or regulators of any Governmental Authority, License in connection with obtaining the transactions contemplated hereunder (but, for Required Governmental Approvals or any conditions in connection with obtaining the avoidance Required Governmental Approvals that do not increase the obligations of doubt, not including any interactions between the Company Entities or the Buyer with Governmental Authorities in any material respect, or reduce the ordinary course rights of businessthe Company or the Buyer in any material respect, any notices under the related Franchise or filings made License to which they relate (the "Limited Changes"). Notwithstanding anything to the contrary contained in this Agreement, the Buyer shall be obligated to accept, and agrees that the Company may accept, changes to Contracts in connection with obtaining the Name Necessary Consents provided that such changes have no adverse economic impact on the Contract, the Company or the operation of the business and any such changes shall be considered "Limited Changes" for purposes of this Agreement. Notwithstanding anything contained herein to the contrary, if there is a change or condition imposed that is solely monetary in nature and that does not constitute a Limited Change, any disclosure Seller may, but shall not be obligated to, make a payment to the Company at Closing, as reasonably agreed by Buyer, that compensates the Company for such change or condition, in which is not permitted by Law case, such change or any disclosure containing confidential information) condition shall be disclosed considered a Limited Change for purposes hereof. Notwithstanding anything to the other party hereunder in advance of any filing, submission or attendance, it being the intent that the parties will consult and cooperate with one another, and consider in good faith the views of one another, in connection with any such analyses, appearances, meetings, discussions, presentations, memoranda, briefs, filings, arguments, and proposals. Each party shall give notice to the other party with respect to any meeting, discussion, appearance or contact with any Governmental Authority or the staff or regulators of any Governmental Authority, with such notice being sufficient to provide the other party with the opportunity to attend and participate in such meeting, discussion, appearance or contact.
(d) Notwithstanding the foregoing, nothing contrary contained in this Section 5.2 shall requireAgreement, or be construed to require, the Buyer or any of its Affiliates to agree to (i) sell, hold, divest, discontinue or limit, before or after the Closing Date, any assets, businesses or interests of neither the Buyer, the Company Entities or Seller, nor any of their respective Affiliates; Affiliates shall be required (i) to hold separate (including by trust or otherwise) or divest of any of their respective businesses or assets, (ii) to agree to any conditions relating to, limitation on the operation or changes or restrictions in, the operations conduct of any such assets, their respective businesses or interests which, in either case, could reasonably be expected to adversely impact the economic or business benefits to the Buyer of the transactions contemplated by this Agreement; or (iii) to waive any material modification or waiver of the terms and conditions set forth in Section 7 of this Agreement. Notwithstanding anything to the contrary contained herein, neither the Buyer nor Seller shall have any liability for a failure to obtain any Required Governmental Approval or Necessary Consent that satisfies the foregoing requirements as long as the Buyer or the Seller, as the case may be, complies with its obligations set forth in this Section 5(b).
Appears in 1 contract
Samples: Stock Purchase Agreement (Centennial Communications Corp /De)
Notices and Consents. (a) Each of the Buyer and the Sellers will, and the Sellers Parent will cause the Company Entities to give any notices to third parties, and will cause the Company to use its commercially reasonable efforts to obtain any third party consents that the Buyer reasonably may request in connection with the transactions contemplated by this Agreement. Each of the Parties will (and Parent will cause the Company to, ) give any notices to, make any filings with, and use their its commercially reasonable best efforts to obtain any required authorizations, consents consents, and approvals of, any Governmental Authority that are necessary of governments and governmental agencies in connection with the transactions contemplated hereby, it being understood that nothing in by this Agreement shall require, or be construed to require, the Buyer, the Sellers or any of the Company Entities to make any payment in connection with fulfilling such conditions precedent, other than legal and accounting fees and disbursements and regulatory filing fees and costsAgreement. The Sellers shall use their reasonable best efforts to give all notices to, and obtain all consents from, all third parties that are listed in Section 2.6(a)(v) of the Schedules. Each party shall cooperate fully with the other party and its Affiliates in promptly seeking to obtain all such authorizations, consents and approvals. The parties hereto shall not willfully take any action that will have the effect of delaying, impairing or impeding the receipt of any required consents, authorizations, orders and approvals.
(b) Without limiting the generality of the parties’ undertakings pursuant to Section 5.2(a)foregoing, each of the parties hereto shall use commercially reasonable efforts to: Parties will (i) respond to any inquiries by any Governmental Authority with respect take all action necessary, on or prior to the transactions contemplated by this Agreement or any Ancillary Agreement; date five business days after the date hereof to make the filings required of the Buyer and the Company (ii) avoid the imposition of any order or the taking "ultimate parent entity" of any action that would restrain, alter or enjoin such party) under the transactions contemplated by this Agreement or any Ancillary Agreement; and (iii) in the event any order of a Governmental Authority adversely affecting the ability of the parties Hart-Scott-Rodino Act to consummate the transactions contemplated by this Agreement xxxx Xxxxxxxxx, (ii) use their commercially reasonable efforts to obtain early termination of the waiting period thereunder and (iii) promptly comply at the earliest practical date with any request for additional information received by the Buyer, Parent or the Company from the United States Federal Trade Commission (the "FTC") or the Antitrust Division of the United States Department of Justice (the "DOJ") pursuant to the Hart-Scott-Rodino Act. In addition, each of the Buyer, Parent and thx Xxxxxxx xxxxx (and the "ultimate parent entity" of such party, if applicable, shall) make reasonable efforts to satisfy any antitrust concern raised by the FTC, DOJ or any Ancillary Agreement is issuedstate attorney general (collectively, the "ANTITRUST AUTHORITIES") and cooperate with the other party in resolving those issues, including but not limited to, providing supplemental information to have the Antitrust Authorities with respect to antitrust issues raised by the Antitrust Authorities and making any voluntary presentation to the Antitrust Authorities in order to resolve any antitrust issue raised by such order vacated or lifted.
authorities. Without limiting the foregoing, each of the Buyer, Parent and the Company will cooperate with the other party in connection with any filings required under the Hart-Scott-Rodino Act and overcoming any objections, including (cx) All analysesfxxxxxxxxx xx xxx other party, appearancesupon request, meetings, discussions, presentations, memoranda, briefs, filings, arguments, and proposals made by or on behalf of either party before any Governmental Authority or the staff or regulators of any Governmental Authority, such information as shall reasonably be required in connection with the preparation of the party's filings under the Hart-Scott-Rodino Act, (y) with respect to the transactions contemplated hereunder contemplxxxx xx xxxx Xxxxement, coordinating responses and establishing reasonable schedules and deadlines in connection with resolving any investigation, other inquiry, or legal proceedings commenced by the Antitrust Authorities and (but, for z) providing the avoidance of doubt, not including other parties with any interactions between communication received by any governmental entity with respect to the Company Entities or the foregoing. The Buyer with Governmental Authorities in the ordinary course of business, any notices or filings made shall pay all filing fees payable in connection with the Name Change, any disclosure which is not permitted by Law or any disclosure containing confidential information) shall be disclosed to pre-merger notification filing under the other party hereunder in advance of any filing, submission or attendance, it being the intent that the parties will consult and cooperate with one another, and consider in good faith the views of one another, in connection with any such analyses, appearances, meetings, discussions, presentations, memoranda, briefs, filings, arguments, and proposals. Each party shall give notice to the other party with respect to any meeting, discussion, appearance or contact with any Governmental Authority or the staff or regulators of any Governmental Authority, with such notice being sufficient to provide the other party with the opportunity to attend and participate in such meeting, discussion, appearance or contactHart-Scott-Rodino Act.
(d) Notwithstanding the foregoing, nothing in this Section 5.2 shall require, or be construed to require, the Buyer or any of its Affiliates to agree to (i) sell, hold, divest, discontinue or limit, before or after the Closing Date, any assets, businesses or interests of the Buyer, the Company Entities or any of their respective Affiliates; (ii) any conditions relating to, or changes or restrictions in, the operations of any such assets, businesses or interests which, in either case, could reasonably be expected to adversely impact the economic or business benefits to the Buyer of the transactions contemplated by this Agreement; or (iii) any material modification or waiver of the terms and conditions of this Agreement.
Appears in 1 contract
Samples: Asset Purchase Agreement (Metromedia International Group Inc)
Notices and Consents. (a) Each of The Seller will give any notices to third parties and will use its best efforts to obtain any third party consents that the Buyer and reasonably may request in connection with the Sellers will, and the Sellers matters referred to in Article III above. Each party will cause the Company Entities to, give any notices to, make any filings with, and use their reasonable its best efforts to obtain any authorizations, consents consents, transfers, assignments, waivers and approvals of, of any Governmental Authority that are necessary in connection with the transactions contemplated hereby, it being understood that nothing in this Agreement shall require, or be construed to require, the Buyer, the Sellers or any of the Company Entities to make any payment in connection with fulfilling such conditions precedent, other than legal and accounting fees and disbursements and regulatory filing fees and costs. The Sellers shall use their reasonable best efforts to give all notices to, and obtain all consents from, all third parties that are listed in Section 2.6(a)(v) of the Schedules. Each party shall cooperate fully with the other party and its Affiliates in promptly seeking to obtain all such authorizations, consents and approvals. The parties hereto shall not willfully take any action that will have the effect of delaying, impairing or impeding the receipt of any required consents, authorizations, orders and approvals.
(b) Without limiting the generality of the parties’ undertakings pursuant to Section 5.2(a), each of the parties hereto shall use commercially reasonable efforts to: (i) respond to any inquiries by any Governmental Authority with respect to the transactions contemplated by this Agreement or any Ancillary Agreement; (ii) avoid the imposition of any order or the taking of any action that would restrain, alter or enjoin the transactions contemplated by this Agreement or any Ancillary Agreement; and (iii) in the event any order of a Governmental Authority adversely affecting the ability of the parties to consummate the transactions contemplated by this Agreement (the "REQUIRED APPROVALS"). Without limiting the generality of the foregoing, each party will file any notification and report forms and related material that it may be required to file with, and apply for any available advance rulings from the United States Federal Trade Commission and the Antitrust Division of the United States Department of Justice under the Xxxx-Xxxxx-Xxxxxx Act and will use its best efforts to obtain a waiver from any applicable waiting period and will make any further filings pursuant thereto that may be necessary, proper, or advisable in connection with any Ancillary Agreement is issuedof the foregoing. Each of the Seller and the Buyer shall be responsible for the payment of one-half (1/2) of the filing fees for such notifications and related materials, and any accounting therefor shall be paid on the Closing Date to have such order vacated or liftedthe extent known, and thereafter on demand.
(ci) All analysesNothing in this Agreement shall be construed as an attempt by the Seller to assign to Buyer any Contract, appearancesagreement, meetingsPermit or License, discussionsfranchise, presentationsClaim or asset included in the Acquired Assets (A) which is by its terms or by law nonassignable without the consent of any other party or parties, memorandaunless such consent or approval shall have been given, briefsor (B) as to which all the remedies for the enforcement thereof available to the Seller would not by law pass to the Buyer as an incident of the assignments provided for by this Agreement (an "ACQUIRED ASSET REQUIRING CONSENT").
(ii) Prior to the Closing Date, filingsthe Seller shall use its best efforts to obtain consents or approvals to the assignment of the Contracts, argumentsOpen Orders, Permits and Licenses, and proposals made Real and Personal Property Leases described on SCHEDULE 5.2(b) (collectively "MATERIAL CONTRACTS REQUIRING CONSENT"); PROVIDED, that the Seller shall not be required to pay more than $10,000 in cash or other consideration or grant any forbearances or accommodation (financial or otherwise) having such value, in the aggregate, to any other parties to such Material Contracts Requiring Consent to effect such consents or approvals.
(iii) To the extent that any such consent or approval in respect of, or a novation of, an Acquired Asset Requiring Consent shall not have been obtained on or before UNITED STATES the Closing Date, the parties hereto shall use reasonable efforts and shall cooperate in any reasonable arrangement to assure the Buyer the benefits of such Acquired Asset Requiring Consent to the extent permitted by or on behalf of either party before any Governmental Authority or law. To the staff or regulators extent lawful, practicable and reasonable in the circumstances, including the obtaining of any Governmental Authoritysuch necessary consent or approval after the Closing Date (provided that the Seller and its Affiliates shall not be required to pay more than $10,000 in cash or other consideration or any grant or accommodation (financial or otherwise) forbearances having such value, in the aggregate, to any other parties to such Material Contracts Requiring Consent to effect such consents or approvals), the Seller at the request and under the direction of the Buyer shall take all reasonable actions to assure that the rights of the Seller under the Acquired Asset Requiring Consents shall be preserved for the benefit of the Buyer to the extent not involving any undue hardships upon the Seller or unreasonable time constraints in the request or compliance with such instructions. The Buyer shall reimburse the Seller and its Affiliates for their reasonable out-of-pocket expenses in excess of $10,000 related to any actions taken by the Seller at the request of the Buyer after the Closing Date.
(iv) Except with respect to the Material Contracts Requiring Consent, the Buyer acknowledges that certain consents to the assignments may be required from parties to all other Acquired Assets Requiring Consent and that such consents may not be obtained. The Buyer agrees that the Seller shall not have any liability to the Buyer arising solely out of or solely relating to the failure to obtain any consents that may have been or may be required in connection with the assignments, or because of the default under or acceleration or termination of, any other Acquired Asset Requiring Consent solely as a result thereof. The Buyer further agrees that no representation, warranty or covenant of the Seller contained herein shall be breached or deemed breached as a result of the failure to obtain any such consent, or as a result of any default, acceleration or termination resulting solely from such failure. The Buyer further agrees that no condition to the Buyer's obligations to close the transactions contemplated hereunder by this Agreement shall be deemed not satisfied as a result of the failure to obtain any such consent, except consents with respect to Material Contracts Requiring Consent.
(but, for v) The Buyer and the avoidance of doubt, not including Seller shall jointly cooperate in attempting to obtain any interactions between the Company Entities or the Buyer with Governmental Authorities in the ordinary course of business, any notices or filings made consents required in connection with the Name Change, any disclosure which is not permitted by Law or any disclosure containing confidential information) shall be disclosed to the other party hereunder in advance of any filing, submission or attendance, it being the intent that the parties will consult and cooperate with one another, and consider in good faith the views of one another, in connection with any such analyses, appearances, meetings, discussions, presentations, memoranda, briefs, filings, arguments, and proposals. Each party shall give notice to the other party with respect to any meeting, discussion, appearance or contact with any Governmental Authority or the staff or regulators of any Governmental Authority, with such notice being sufficient to provide the other party with the opportunity to attend and participate in such meeting, discussion, appearance or contact.
(d) Notwithstanding the foregoing, nothing in this Section 5.2 shall require, or be construed to require, the Buyer or any of its Affiliates to agree to (i) sell, hold, divest, discontinue or limit, before or after the Closing Date, any assets, businesses or interests of the Buyer, the Company Entities or any of their respective Affiliates; (ii) any conditions relating to, or changes or restrictions in, the operations of any such assets, businesses or interests which, in either case, could reasonably be expected to adversely impact the economic or business benefits to the Buyer of the transactions contemplated by this Agreement; PROVIDED, HOWEVER, that the Seller shall not be required to incur out-of-pocket expenses in excess of $10,000, commence any litigation or offer or grant any forbearance or accommodation (iiifinancial or otherwise) to any material modification or waiver of the terms and conditions of this Agreementthird party.
Appears in 1 contract
Notices and Consents. (a) Each of Prior to the Buyer and Closing Date, the Sellers will, and the Sellers Seller will cause the Company Entities to, give any notices to, make any filings with, and use their its commercially reasonable best efforts to give all notices required to be given and to obtain those consents, approvals or authorizations of any authorizations, consents and approvals of, any Governmental Authority third parties that are necessary required in connection with the transactions contemplated hereby, it being understood that nothing in by this Agreement under the Material Contracts that are set forth on Schedule 4.7; provided, however, that the novation of U.S. Prime Contracts shall requirebe governed by and conducted exclusively in accordance with Section 7.3. Notwithstanding the foregoing or Section 6.1, (a) the Seller shall not be required to pay or otherwise provide any consideration to, or be construed to requireincur any liability to, any other Person from whom any such consents, approvals or authorizations are requested, and (b) the Buyer acknowledges and agrees that, except for the Required Consents, the Buyer, the Sellers or any of the Company Entities to make any payment in connection with fulfilling such conditions precedent, other than legal and accounting fees and disbursements and regulatory filing fees and costs. The Sellers shall use their reasonable best efforts to give all notices to, and obtain all consents from, all third parties that are listed in Section 2.6(a)(v) of the Schedules. Each party shall cooperate fully with the other party and its Affiliates in promptly seeking to obtain all such authorizations, consents and approvals. The parties hereto shall not willfully take any action that will have the effect of delaying, impairing or impeding the receipt successful procurement of any required consentsconsent, authorizations, orders and approvalsapproval or authorization of any third party is not a condition to the Buyer’s obligation to effect the Closing.
(b) Without limiting The Seller and the generality Buyer shall as soon as practicable, but in no event later than three (3) Business Days following the date hereof (or by such other time mutually acceptable to the Buyer and the Seller), submit to CFIUS a complete draft of a joint voluntary notice pursuant to Exon-Xxxxxx with respect to this Agreement and the transactions contemplated hereby, and submit to CFIUS a final joint voluntary notice pursuant to Exon-Xxxxxx within five (5) Business Days after submission of the parties’ undertakings pursuant to Section 5.2(a), each of draft notification (or such earlier time if CFIUS notifies the parties hereto that it does not have any comments on the draft notification) (such notifications and other filings submitted to CFIUS, including as subsequently updated or modified, collectively, the “CFIUS Filing”). The Seller and the Buyer shall provide CFIUS with any additional or supplemental information requested by CFIUS or its member agencies during the Exon-Xxxxxx review process within three (3) Business Days of receipt of such request, or if the Seller and the Buyer mutually agree to seek an extension in relation thereto, such longer period as CFIUS may allow.
(c) Prior to the Closing, the Seller and the Buyer shall use commercially reasonable efforts to obtain all requisite clearances and approvals from CFIUS and any such other Governmental Entity as promptly as practicable. Prior to the Closing, the Seller and the Buyer shall inform each other promptly of any communication made by or on behalf of such Party (including permitting the other Party to review such communication in advance, but excluding any communication involving the personal identifier information, as defined in the CFIUS regulations of Buyer and its Affiliates), or received with respect to: (i) respond , the CFIUS Filing and shall furnish to the other such information and assistance as the other may reasonably request in connection with its preparation of any inquiries by any Governmental Authority such filing, submission or other act that is necessary or advisable with respect to the CFIUS Filing. Prior to the Closing, the Seller and the Buyer shall keep each other timely appraised of the status of any communications with CFIUS, and any inquiries or requests for additional information with respect to the CFIUS Filing, and shall comply promptly with any such inquiry or request. Prior to the Closing, neither Party shall agree to participate in any meeting or discussion with CFIUS or any other applicable Governmental Entity in connection with the CFIUS Filing concerning the transactions contemplated by this Agreement unless it consults with the other Party in advance and, to the extent permitted by CFIUS or any Ancillary Agreement; (ii) avoid the imposition of any order or the taking of any action that would restrainsuch other Governmental Entity, alter or enjoin the transactions contemplated by this Agreement or any Ancillary Agreement; and (iii) in the event any order of a Governmental Authority adversely affecting the ability of the parties to consummate the transactions contemplated by this Agreement or any Ancillary Agreement is issued, to have such order vacated or lifted.
(c) All analyses, appearances, meetings, discussions, presentations, memoranda, briefs, filings, arguments, and proposals made by or on behalf of either party before any Governmental Authority or the staff or regulators of any Governmental Authority, in connection with the transactions contemplated hereunder (but, for the avoidance of doubt, not including any interactions between the Company Entities or the Buyer with Governmental Authorities in the ordinary course of business, any notices or filings made in connection with the Name Change, any disclosure which is not permitted by Law or any disclosure containing confidential information) shall be disclosed to gives the other party hereunder in advance of any filing, submission or attendance, it being the intent that the parties will consult and cooperate with one another, and consider in good faith the views of one another, in connection with any such analyses, appearances, meetings, discussions, presentations, memoranda, briefs, filings, arguments, and proposals. Each party shall give notice to the other party with respect to any meeting, discussion, appearance or contact with any Governmental Authority or the staff or regulators of any Governmental Authority, with such notice being sufficient to provide the other party with Party the opportunity to attend and participate in at such meeting, meeting or discussion, appearance or contact.
(d) Notwithstanding The Buyer shall use commercially reasonable efforts to avoid or eliminate all impediments under Exon-Xxxxxx that may be asserted by CFIUS or any other Governmental Entity, so as to enable the foregoingParties to expeditiously close the transactions contemplated by this Agreement.
(e) Each Party shall bear its own fees, nothing costs and expenses (including attorneys’ fees) incurred in this Section 5.2 shall require, or be construed connection with the filing of any notifications and related materials that are required in connection with the CFIUS Filing.
(f) Prior to requirethe Closing, the Buyer and the Seller shall cooperate with one another in determining whether any other action, consent or any of its Affiliates to agree to (i) sellapproval by or in respect of, hold, divest, discontinue or limit, before or after the Closing Datefiling with, any assetsGovernmental Entity, businesses is required or interests of reasonably appropriate in connection with the Buyer, the Company Entities or any of their respective Affiliates; (ii) any conditions relating to, or changes or restrictions in, the operations of any such assets, businesses or interests which, in either case, could reasonably be expected to adversely impact the economic or business benefits to the Buyer consummation of the transactions contemplated by this Agreement; or (iii) any material modification or waiver of . Subject to the terms and conditions of this Agreement and the Confidentiality Agreement, in taking such actions, seeking such consents or approvals, or making any such filings, the Buyer and the Seller shall furnish information required in connection therewith and timely seek to obtain any such actions, consents or approvals and to make any such filings. Notwithstanding the foregoing or Section 6.1, the Seller shall not be required to pay any consideration (except filing and application fees) to any such Governmental Entity from which any such action, consent or approval is requested.
Appears in 1 contract
Samples: Asset Purchase Agreement (Lawson Products Inc/New/De/)
Notices and Consents. (a) Prior to the Closing Date and subject to SECTION 6.2(D) below, GM shall use commercially reasonable efforts to give, or to cause the other Sellers to give, all notices directed to be given by the Buyer and to obtain, or to cause the other Sellers to obtain, those consents, approvals or authorizations of third parties, in each case, under the Material Contracts that are set forth on Schedule 6.2(a).
(b) Prior to the Closing Date, GM and the Buyer shall, and GM shall cause the other Sellers to, use commercially reasonable efforts to obtain all material consents, approvals or authorizations of all Governmental Entities that are, or will become, necessary for the consummation of the transactions contemplated by this Agreement, including any material consents, approvals or authorizations required by any of the Permits, and the Parties shall cooperate with each other in seeking any such consents, approvals or authorizations and making any filings or notifications with any Governmental Entity required in connection with the transactions contemplated hereby or otherwise as reasonably requested by any of the Parties, but in each case, excluding any consents, approvals and authorizations under any Antitrust Laws other than the HSR Act and any Required Antitrust Filings.
(c) Each of the Buyer and GM, or the Sellers willrelevant Affiliate of either such Party, shall (i) within ten (10) Business Days following the execution and the Sellers will cause the Company Entities todelivery of this Agreement, give any notices to, make any filings with, file all notifications and use their reasonable best efforts to obtain any authorizations, consents and approvals of, any Governmental Authority related materials that are necessary in connection with required under (A) the transactions contemplated herebyHSR Act and (B) those non-U.S. antitrust or competition Laws (the "Antitrust Laws") set forth on Schedule 6.2(b) (the "Required Antitrust Filings"), it being understood that nothing in this Agreement shall require, or be construed to require, the Buyer, the Sellers or any commencement of the Company Entities to make any payment in connection European Union Merger Review Process and the filing of a preliminary Form CO with fulfilling such conditions precedent, other than legal and accounting fees and disbursements and regulatory filing fees and costs. The Sellers the European Union Commission shall use their reasonable best efforts to give all notices to, and obtain all consents from, all third parties that are listed in Section 2.6(a)(v) constitute the making of the Schedules. Each party shall cooperate fully with antitrust filing required in the other party and its Affiliates in promptly seeking to obtain all such authorizationsEuropean Union for the purpose of meeting the ten (10) Business Day filing requirement, consents and approvals. The parties hereto shall not willfully take any action that will have the effect of delaying, impairing or impeding the receipt of any required consents, authorizations, orders and approvals.
(bii) Without limiting the generality of the parties’ undertakings pursuant to Section 5.2(a), each of the parties hereto shall use commercially reasonable efforts to: to obtain early termination of the applicable waiting period or expedited review, as applicable, of such notifications and related materials and (iiii) respond take further actions and make all further filings pursuant thereto. In connection with the foregoing, each Party shall (x) promptly notify the other Party of any written communication to that Party or its Affiliates from any Governmental Entity and, subject to applicable Law, provide the other Party with a copy of any written communication to any inquiries by of the foregoing and (y) not participate in any substantive meeting or discussion with any Governmental Authority with Entity in respect to of any filing, investigation or inquiry concerning the transactions contemplated by this Agreement or any the Ancillary Agreement; (ii) avoid Documents unless it consults with the imposition of any order or the taking of any action that would restrain, alter or enjoin the transactions contemplated by this Agreement or any Ancillary Agreement; and (iii) other Party in the event any order of a Governmental Authority adversely affecting the ability of the parties to consummate the transactions contemplated by this Agreement or any Ancillary Agreement is issuedadvance and, to have such order vacated or lifted.
(c) All analyses, appearances, meetings, discussions, presentations, memoranda, briefs, filings, arguments, and proposals made by or on behalf of either party before any Governmental Authority or the staff or regulators of any Governmental Authority, in connection with the transactions contemplated hereunder (but, for the avoidance of doubt, not including any interactions between the Company Entities or the Buyer with Governmental Authorities in the ordinary course of business, any notices or filings made in connection with the Name Change, any disclosure which is not extent permitted by Law or any disclosure containing confidential information) shall be disclosed to such Governmental Entity, gives the other party hereunder in advance of any filing, submission or attendance, it being the intent that the parties will consult and cooperate with one another, and consider in good faith the views of one another, in connection with any such analyses, appearances, meetings, discussions, presentations, memoranda, briefs, filings, arguments, and proposals. Each party shall give notice to the other party with respect to any meeting, discussion, appearance or contact with any Governmental Authority or the staff or regulators of any Governmental Authority, with such notice being sufficient to provide the other party with Party the opportunity to attend and participate in such meeting, meeting or discussion, appearance or contact.
(d) Notwithstanding In connection with and without limiting the generality of the foregoing, nothing for purposes of this SECTION 6.2, commercially reasonable efforts of the Parties shall be deemed to include (i) offering to enter into, and entering into, any settlement, undertaking, consent decree, stipulation or agreement or agreeing to any order regarding antitrust matters in this Section 5.2 shall requireconnection with any objections of any Governmental Entity to the transactions contemplated hereby and (ii) offering to divest to others and/or hold separate, and divesting or otherwise holding separate (including by establishing a trust or otherwise), or taking any other action (or otherwise agreeing to do any of the foregoing) with respect to, any portion of its and/or the business, assets or properties of its Subsidiaries, other than any such action pursuant to clause(s) (i) and/or (ii) that would require any divestiture, holding separate or sale (by whatever means) of (or any agreement to do any of the foregoing) any material assets of GM and the Buyer.
(e) The Buyer shall be construed responsible for the payment of 100 percent of the amount of any fees required in connection with the filing of any notifications and related materials that are required under the HSR Act or in connection with the Required Antitrust Filings.
(f) Notwithstanding anything to requirethe contrary contained herein, (i) neither the Sellers nor any Transferred Subsidiary shall be required to make any expenditure or incur any liability in connection with such efforts and (ii) the Buyer acknowledges and agrees that, except with respect to the HSR Act and the Required Antitrust Filings as provided in SECTION 8.1(A) and except as provided in SECTION 8.2(E) and SECTION 8.2(F), the successful procurement of any consent, approval or authorization of any third party is not a condition to the Buyer's obligation to effect the Closing. Notwithstanding anything to the contrary contained herein, and except as otherwise provided under any Ancillary Document, the Buyer further agrees that, so long as the Sellers have complied with their obligations under this SECTION 6.2, no representation, warranty, covenant or any of its Affiliates to agree to (i) sell, hold, divest, discontinue or limit, before or after the Closing Date, any assets, businesses or interests agreement of the BuyerSellers contained herein shall be breached or deemed breached, the Company Entities or any and no condition of their respective Affiliates; (ii) any conditions relating to, or changes or restrictions in, the operations of any such assets, businesses or interests which, in either case, could reasonably be expected to adversely impact the economic or business benefits to the Buyer (other than SECTION 8.1(A), SECTION 8.1(B), SECTION 8.2(E) and SECTION 8.2(F)) shall be deemed not to be satisfied, solely as a result of the transactions contemplated by this Agreement; failure to obtain any consent, approval or (iii) any material modification or waiver of the terms and conditions of this Agreementauthorization.
Appears in 1 contract
Notices and Consents. (a) Each Notwithstanding any other provision of the Buyer and the Sellers willthis Agreement, and the Sellers will cause the Company Entities to, give any notices to, make any filings with, and use their reasonable best efforts to obtain any authorizations, consents and approvals of, any Governmental Authority that are necessary in connection with the transactions contemplated hereby, it being understood that nothing in this Agreement shall requirenot constitute an agreement to, directly or indirectly, sell, assign, transfer, convey, or deliver any interest in any asset or liability or any claim or right or any benefit arising thereunder or resulting therefrom if such sale, assignment, transfer, conveyance or delivery, without the consent of any Person (including Governmental Authorities) other than the Seller and its Affiliates, (i) would constitute a breach or other contravention of the rights of such Person, (ii) would be construed to requireineffective under, or contravene, applicable Law, or (iii) would in any way adversely affect the contractual rights of any Group Company or, upon transfer, the BuyerBuyer (collectively, “Approvals” and such assets and liabilities, “Non-Assignable Assets and Liabilities”). Any such sale, conveyance, assignment, assumption, transfer or delivery or agreement to do the Sellers or any of same shall be made subject to the Company Entities to make any payment in connection with fulfilling such conditions precedent, other than legal and accounting fees and disbursements and regulatory filing fees and costs. The Sellers shall use their reasonable best efforts to give all notices to, and obtain all consents from, all third parties that are listed in Section 2.6(a)(v) of the Schedules. Each party shall cooperate fully with the other party and its Affiliates in promptly seeking to obtain all such authorizations, consents and approvals. The parties hereto shall not willfully take any action that will have the effect of delaying, impairing or impeding the receipt of any required consents, authorizations, orders and approvalsapplicable Approval being obtained.
(b) The Parties shall use reasonable best efforts from and after the entry into this Agreement and for a period of twelve (12) months following the Closing to obtain, or cause to be obtained, any Approval (other than antitrust Approvals, which will be governed by Section 6.03) (the “Non-Antitrust Approvals”). If any such Non-Antitrust Approval is not obtained prior to the Closing, but the conditions to the Closing set forth in Article II have nonetheless been satisfied or waived, then the Closing shall nonetheless take place in accordance with the terms of this Agreement, and thereafter, for a period of twelve (12) months following the Closing Date, each of the Seller and the Buyer will reasonably cooperate with each other and will use reasonable best efforts (i) to obtain all necessary Non-Antitrust Approvals (provided, that neither the Seller nor any of its Affiliates shall be required to expend any money, commence any litigation or offer or grant any accommodation (financial or otherwise) to any such Person) and (ii) to cooperate, upon written request of the Buyer, in endeavoring to obtain for the Buyer, at no cost to the Buyer, an arrangement to provide for the Buyer substantially comparable benefits thereof until the earlier of (A) receipt of the applicable Non-Antitrust Approval and the valid assignment of the applicable Non-Assignable Asset and Liability to the Buyer and (B) the expiration or termination of the applicable Non-Assignable Asset and Liability in accordance with its terms and (iii) to treat the Buyer as the owner of such asset for Tax purposes as of the Closing Date; provided, that the Buyer shall indemnify the Stockholder in respect of all liabilities of the Seller and any of its Affiliates in respect of each such arrangement and underlying Non-Assignable Asset and Liability. Upon obtaining the requisite Non-Antitrust Approvals thereto, such Non-Assignable Asset and Liability shall be deemed sold, assigned, transferred, conveyed, and delivered to, and purchased, acquired and accepted by, the Buyer hereunder. For the avoidance of doubt, the obligations of the Parties or their respective Affiliates pursuant to Section 6.03 shall not be affected by this Section 6.02.
(c) Without limiting the generality of Section 6.01 or Section 6.02, promptly following the parties’ undertakings pursuant to entry into this Agreement, the Seller will deliver the notices set forth in Section 5.2(a), each 6.02 of the parties hereto shall use commercially reasonable efforts to: (i) respond to any inquiries by any Governmental Authority with respect Disclosure Schedule to the transactions contemplated by this Agreement or any Ancillary Agreement; (ii) avoid the imposition of any order or the taking of any action that would restrain, alter or enjoin the transactions contemplated by this Agreement or any Ancillary Agreement; and (iii) in the event any order of a Governmental Authority adversely affecting the ability third parties set forth on Section 6.02 of the parties Disclosure Schedule and will use reasonable best efforts (which shall not include the payment for a consent or similar fee) to consummate obtain the transactions contemplated by this Agreement or any Ancillary Agreement is issued, to have such order vacated or lifted.
(c) All analyses, appearances, meetings, discussions, presentations, memoranda, briefs, filings, arguments, third party consents and proposals made by or licenses set forth on behalf of either party before any Governmental Authority or the staff or regulators of any Governmental Authority, in connection with the transactions contemplated hereunder (but, for the avoidance of doubt, not including any interactions between the Company Entities or the Buyer with Governmental Authorities in the ordinary course of business, any notices or filings made in connection with the Name Change, any disclosure which is not permitted by Law or any disclosure containing confidential information) shall be disclosed to the other party hereunder in advance of any filing, submission or attendance, it being the intent that the parties will consult and cooperate with one another, and consider in good faith the views of one another, in connection with any such analyses, appearances, meetings, discussions, presentations, memoranda, briefs, filings, arguments, and proposals. Each party shall give notice to the other party with respect to any meeting, discussion, appearance or contact with any Governmental Authority or the staff or regulators of any Governmental Authority, with such notice being sufficient to provide the other party with the opportunity to attend and participate in such meeting, discussion, appearance or contact.
(d) Notwithstanding the foregoing, nothing in this Section 5.2 shall require, or be construed to require, the Buyer or any of its Affiliates to agree to (i) sell, hold, divest, discontinue or limit, before or after the Closing Date, any assets, businesses or interests 6.02 of the Buyer, the Company Entities or any of their respective Affiliates; (ii) any conditions relating to, or changes or restrictions in, the operations of any such assets, businesses or interests which, in either case, could reasonably be expected to adversely impact the economic or business benefits to the Buyer of the transactions contemplated by this Agreement; or (iii) any material modification or waiver of the terms and conditions of this AgreementDisclosure Schedule.
Appears in 1 contract
Notices and Consents. (a) Each of Prior to the Buyer and the Sellers willClosing, and the Sellers will cause the Company Entities to, give any notices to, make any filings with, and (i) Seller shall use their its commercially reasonable best efforts to give all notices required to be given and to obtain all consents, approvals or authorizations of any authorizations, consents and approvals of, third parties (including any Governmental Authority Authority) that are necessary required in connection with the transactions contemplated hereby, it being understood that nothing in by this Agreement and (ii) Buyer shall requireuse its commercially reasonable efforts to cooperate and provide Seller assistance in obtaining such consents, approvals or authorizations and hereby acknowledges that that Buyer will be construed required to requireplay a critical role in obtaining such consents; provided, however, that, except as set forth in the Buyerimmediately following sentence, the Sellers “commercially reasonable efforts” shall not be deemed to require Seller or Buyer or any of the Company Entities their respective Affiliates to make incur any payment material fees or material out-of-pocket expenses, or grant any Material Concession (as defined below), in connection therewith. Notwithstanding the foregoing, except for Seller’s internal costs and outside legal expenses, Buyer shall be responsible for any costs, fees and expenses associated with fulfilling the assignment of the Purchased Business Intellectual Property to Buyer. Without limitation of the foregoing, prior to the Closing, Seller will use commercially reasonable efforts to assist Buyer, at Buyer’s request, in Buyer obtaining license agreements from third parties for their Other Business Licensed Intellectual Property on terms which are substantially similar to those on which Seller has licensed such conditions precedentIntellectual Property from such third parties, provided, that, in no event shall Seller or any its Affiliates be required to incur any material fees or material out-of-pocket expenses, or grant any Material Concession (as defined below), in connection therewith. With respect to those contracts listed on Schedule 5.5(a) (which Buyer acknowledges are used by Seller in its other businesses other than legal the ITO Business and accounting fees and disbursements and regulatory filing fees and costs. The Sellers shall, notwithstanding any other provision of this Agreement, remain contracts of Seller after the Closing) (the “Shared Contracts”), prior to the Closing, Seller shall use their reasonable best undertake the same efforts to give all notices as listed in clause (i) of this Section to, and obtain all consents fromrather than assigning such Shared Contracts to Buyer, all third parties that are listed in Section 2.6(a)(v) of the Schedules. Each party shall cooperate fully with cause the other party to each such Shared Contract to create new contracts containing substantially similar terms as those relevant to the ITO Business in the name of Buyer. Buyer shall undertake the same efforts as listed in clause (ii) of this Section to cooperate with Seller with respect to the foregoing, and in no event shall Buyer or any of its Affiliates Affiliates, on the one hand, or Seller or any its Affiliates, on the other hand, be required to incur any material fees or material out-of-pocket expenses, or grant any Material Concession (as defined below), in promptly seeking to obtain all such authorizations, consents and approvals. The parties hereto shall not willfully take any action that will have the effect of delaying, impairing or impeding the receipt of any required consents, authorizations, orders and approvalsconnection therewith.
(b) Without limiting Notwithstanding anything contained in this Agreement to the generality contrary, Buyer shall not be required to undertake any action or desist from taking any action (or cause any of the parties’ undertakings its Affiliates to undertake any such actions or to desist from taking any such actions) pursuant to Section 5.2(a), each of the parties hereto shall use commercially reasonable efforts to: this Article V or Article VI if such action or inaction (ia) respond to any inquiries by any Governmental Authority with respect to the transactions contemplated by this Agreement or any Ancillary Agreement; (ii) avoid the imposition of any order or the taking of any action that would restrain, alter or enjoin the transactions contemplated by this Agreement or any Ancillary Agreement; and (iii) in the event any order of a Governmental Authority adversely affecting the ability of the parties to consummate the transactions contemplated by this Agreement or any Ancillary Agreement is issued, to have such order vacated or lifted.
(c) All analyses, appearances, meetings, discussions, presentations, memoranda, briefs, filings, arguments, and proposals made by or on behalf of either party before any Governmental Authority or the staff or regulators of any Governmental Authority, in connection with the transactions contemplated hereunder (but, for the avoidance of doubt, not including any interactions between the Company Entities or the Buyer with Governmental Authorities in the ordinary course of business, any notices or filings made in connection with the Name Change, any disclosure which is not permitted by Law or any disclosure containing confidential information) shall be disclosed to the other party hereunder in advance of any filing, submission or attendance, it being the intent that the parties will consult and cooperate with one another, and consider in good faith the views of one another, in connection with any such analyses, appearances, meetings, discussions, presentations, memoranda, briefs, filings, arguments, and proposals. Each party shall give notice to the other party with respect to any meeting, discussion, appearance or contact with any Governmental Authority or the staff or regulators of any Governmental Authority, with such notice being sufficient to provide the other party with the opportunity to attend and participate in such meeting, discussion, appearance or contact.
(d) Notwithstanding the foregoing, nothing in this Section 5.2 shall require, or be construed to require, the require Buyer or any of its Affiliates to agree to (i) sellenter into any agreement, hold, divest, discontinue consent decree or limit, before or after the Closing Date, any assets, businesses or interests of the Buyer, the Company Entities other commitment requiring Buyer or any of their respective Affiliates; (ii) its Affiliates to divest or hold separate or license all or any conditions relating toportion of the assets or business of, or changes to limit or restrictions inmodify the conduct of all or any portion of the business of, Buyer or any of its Affiliates (including, after the Closing, the operations Purchased Assets), (b) would have, or would be reasonably expected to have, a material adverse effect on the business of Buyer or any of its Subsidiaries (including, after the Closing, the Purchased Assets, taken as a whole (the actions referred to in clause (a) or (b) above, a “Material Concession”), or (c) would require Buyer or any of its Affiliates to litigate, pursue or defend any Action challenging any portion of the Transaction as violative of any such assetsantitrust laws.
(c) Prior to the Closing, businesses Buyer and Seller shall cooperate with one another in determining whether any action by or interests whichin respect of, or filing with, any Governmental Authority, is required or reasonably appropriate, in either case, could reasonably be expected to adversely impact connection with the economic or business benefits to the Buyer consummation of the transactions contemplated by this Agreement; or (iii) any material modification or waiver of . Subject to the terms and conditions of this Agreement and the Confidentiality Agreement, in taking such actions or making any such filings, prior to the Closing, Buyer and Seller shall use commercially reasonable efforts to furnish information required of any Governmental Authority in connection therewith (subject to confidential treatment in the case of any information provided by Buyer to the extent reasonably requested by Buyer); provided, however, that, in no case whatsoever shall Buyer or any of its Affiliates be required to incur any material fees or material out-of-pocket expenses, or grant any Material Concession (as defined below), in connection therewith.
Appears in 1 contract
Samples: Asset Purchase Agreement (Ciber Inc)
Notices and Consents. (a) Each of Except as described in Section 5.2(b), the Buyer and the Sellers will, and the Sellers Target will cause the Company Entities to, give any notices to, make any filings with, to third parties and will use their its commercially reasonable best efforts to obtain any authorizations, third party consents at its sole cost and approvals of, any Governmental Authority expense that are necessary or that the Parent may reasonably request in connection with the transactions contemplated hereby, it being understood that nothing in by this Agreement shall require, or be construed to require, the Buyer, the Sellers or any of the Company Entities to make any payment in connection with fulfilling such conditions precedent, other than legal and accounting fees and disbursements and regulatory filing fees and costs. The Sellers shall use their reasonable best efforts to give all notices to, and obtain all consents from, all third parties that are listed in Section 2.6(a)(v) of the Schedules. Each party shall cooperate fully with the other party and its Affiliates in promptly seeking to obtain all such authorizations, consents and approvals. The parties hereto shall not willfully take any action that will have the effect of delaying, impairing or impeding the receipt of any required consents, authorizations, orders and approvalsAgreement.
(b) Without limiting the generality Each of the parties’ undertakings pursuant to Section 5.2(a)Parent and the Target, each of the parties hereto shall use commercially reasonable efforts to: (i) respond to any inquiries by any Governmental Authority with respect to the transactions contemplated by this Agreement or any Ancillary Agreement; (ii) avoid the imposition of any order or the taking of any action that would restrain, alter or enjoin the transactions contemplated by this Agreement or any Ancillary Agreement; and (iii) in the event any order of a Governmental Authority adversely affecting the ability of the parties to consummate the transactions contemplated by this Agreement or any Ancillary Agreement is issued, to have such order vacated or lifted.
(c) All analyses, appearances, meetings, discussions, presentations, memoranda, briefs, filings, arguments, and proposals made by or on behalf of either party before any Governmental Authority or the staff or regulators of any Governmental Authority, in connection with the transactions contemplated hereunder (butassistance and cooperation of other, will prepare any filings required by the HSR Act, it being understood and agreed, for the avoidance of doubt, that (i) the Parent will be responsible for any filing fee required to be paid under the HSR Act in connection with this Agreement, and (ii) no Party will be required to share with another Party such information as is customarily not including provided by parties in connection with filing the relevant filing made under the HSR Act or other antitrust or anticompetiton Laws. In addition to and without limiting the foregoing, the Parent and the Target will (A) take promptly all actions necessary to make any interactions between filings required of the Company Entities Parent or Target under the HSR Act or other antitrust or anticompetiton Laws, (B) comply at the earliest practicable date with any request for additional information received by the Parent or the Buyer Target from the Federal Trade Commission or the Antitrust Division of the Department of Justice, and (C) the Parties will reasonably cooperate with Governmental Authorities in the ordinary course of business, any notices or filings made each other in connection with the Name Changemaking of any such filings.
(c) Notwithstanding the requirements of Section 5.2(b), any disclosure which is not permitted by Law in no event will the Parent or any disclosure containing confidential informationof its subsidiaries or its or their Affiliates be required to (i) shall be disclosed to the other party hereunder in advance dispose of any filing, submission or attendance, it being the intent that the parties will consult and cooperate material assets (including material contractual rights) in order to comply with one anotherthis Section 5.2, and consider in good faith the views of one another, in connection with (ii) agree to any such analyses, appearances, meetings, discussions, presentations, memoranda, briefs, filings, arguments, and proposals. Each party shall give notice to the other party condition with respect to its ownership and operation of the business of the Target or any meeting, discussion, appearance other business and material assets which the Parent or contact with any Governmental Authority of its subsidiaries may have the right to acquire to the extent such condition would materially and adversely effect the operation of such business or the staff or regulators of any Governmental Authority, with such notice being sufficient to provide the other party with the opportunity to attend and participate in such meeting, discussion, appearance or contactasset.
(d) Notwithstanding The Target will give the foregoing, nothing Parent written notice of any distributions of Company Cash to be declared and made in the period between this Section 5.2 shall require, or be construed to require, the Buyer or any of its Affiliates to agree to (i) sell, hold, divest, discontinue or limit, before or after Agreement and the Closing Date, Date before such distribution is made. The Target will complete any assets, businesses or interests of the Buyer, the Company Entities or any of their respective Affiliates; (ii) any conditions relating to, or changes or restrictions in, the operations of any such assets, businesses or interests which, in either case, could reasonably be expected to adversely impact the economic or business benefits declared distributions prior to the Buyer Closing Date and the determination of the transactions contemplated by this Agreement; or (iii) any material modification or waiver of the terms and conditions of this AgreementCompany Cash.
Appears in 1 contract
Notices and Consents. Seller will (and shall cause the Company and the Subsidiaries to) (a) Each of the Buyer give all required notices to third parties and the Sellers will, Governmental Entities and the Sellers will cause the Company Entities to, give any notices to, make any filings with, and use their its reasonable best commercial efforts to obtain any authorizations, all third party and governmental consents and approvals of, any Governmental Authority that are necessary it is required to obtain in connection with the consummation of the transactions contemplated hereby, it being understood that nothing in this Agreement shall require, or be construed to require, the Buyer, the Sellers or any of the Company Entities to make any payment in connection with fulfilling such conditions precedent, other than legal and accounting fees and disbursements and regulatory filing fees and costs. The Sellers shall use their reasonable best efforts to give all notices to, and obtain all consents from, all third parties that are listed in Section 2.6(a)(v) of the Schedules. Each party shall cooperate fully with the other party and its Affiliates in promptly seeking to obtain all such authorizations, consents and approvals. The parties hereto shall not willfully take any action that will have the effect of delaying, impairing or impeding the receipt of any required consents, authorizations, orders and approvals.
(b) Without limiting the generality of the parties’ undertakings pursuant use its respective reasonable commercial efforts to Section 5.2(a), each of the parties hereto shall use commercially reasonable efforts to: (i) respond to prevent any inquiries preliminary or permanent injunction or other order by any Governmental Authority with respect to the transactions contemplated by this Agreement or any Ancillary Agreement; (ii) avoid the imposition of any order or the taking of any action that would restrain, alter or enjoin the transactions contemplated by this Agreement or any Ancillary Agreement; and (iii) in the event any order of a Governmental Authority adversely affecting Entity that seeks to modify, delay or prohibit the ability of the parties to consummate the transactions contemplated by this Agreement or any Ancillary Agreement is issued, to have such order vacated or lifted.
(c) All analyses, appearances, meetings, discussions, presentations, memoranda, briefs, filings, arguments, and proposals made by or on behalf of either party before any Governmental Authority or the staff or regulators of any Governmental Authority, in connection with the transactions contemplated hereunder (but, for the avoidance of doubt, not including any interactions between the Company Entities or the Buyer with Governmental Authorities in the ordinary course of business, any notices or filings made in connection with the Name Change, any disclosure which is not permitted by Law or any disclosure containing confidential information) shall be disclosed to the other party hereunder in advance of any filing, submission or attendance, it being the intent that the parties will consult and cooperate with one another, and consider in good faith the views of one another, in connection with any such analyses, appearances, meetings, discussions, presentations, memoranda, briefs, filings, arguments, and proposals. Each party shall give notice to the other party with respect to any meeting, discussion, appearance or contact with any Governmental Authority or the staff or regulators of any Governmental Authority, with such notice being sufficient to provide the other party with the opportunity to attend and participate in such meeting, discussion, appearance or contact.
(d) Notwithstanding the foregoing, nothing in this Section 5.2 shall require, or be construed to require, the Buyer or any of its Affiliates to agree to (i) sell, hold, divest, discontinue or limit, before or after the Closing Date, any assets, businesses or interests of the Buyer, the Company Entities or any of their respective Affiliates; (ii) any conditions relating to, or changes or restrictions in, the operations of any such assets, businesses or interests which, in either case, could reasonably be expected to adversely impact the economic or business benefits to the Buyer consummation of the transactions contemplated by this Agreement; , including under the Xxxx-Xxxxx-Xxxxxx Act, and, if issued, to appeal any such injunction or order through the appellate court or body for the relevant jurisdiction. Within ten (iii10) any material modification or waiver of business days following the terms and conditions execution of this Agreement, each of the Parties will file any required Notification and Report Form and related material with the Federal Trade Commission and the Antitrust Division of the United States Department of Justice under the Xxxx-Xxxxx-Xxxxxx Act, will use its respective reasonable commercial efforts to obtain early termination of any applicable waiting period under the Xxxx-Xxxxx-Xxxxxx Act, and will take all further actions and make all further filings pursuant to the Xxxx-Xxxxx-Xxxxxx Act that may be necessary, proper or advisable. Nothing contained in this Agreement will be deemed to require Seller or the Company to enter into any agreement, consent decree or other commitment requiring Seller, the Company, Purchaser, or any of their respective Affiliates to (x) divest or hold separately any assets of Seller, the Company or their Affiliates, (y) litigate, pursue or defend any action or proceeding challenging any of the transactions contemplated hereby as violative of the Xxxx-Xxxxx-Xxxxxx Act, or (z) take any other action that would, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect on the business, condition (financial or otherwise), assets, liabilities, operations, results of operations or prospects of the Company or the Subsidiaries. In connection with the foregoing, each Party will (i) promptly notify the other Party of any written communication to that Party or its Affiliates from any Governmental Entity regarding the transactions contemplated hereby, and, subject to applicable Law, provide the other Party with a copy of any written communication to any of the foregoing, and (ii) not participate in any substantive meeting or discussion with any Governmental Entity in respect of any filings, investigation or inquiry concerning the transactions contemplated by this Agreement unless it consults with the other Party in advance, and to the extent permitted by such Governmental Entity, give the other Party the opportunity to attend and participate thereat. Seller and Purchaser shall each be responsible for payment of one-half of the fees for filing any required Notification and Report Form and related material under the Xxxx-Xxxxx-Xxxxxx Act.
Appears in 1 contract
Notices and Consents. (a) Each of the Buyer and the Sellers willshall give all required notices to third parties, and the Sellers will cause the Company Entities to, give any notices to, make any filings with, and shall use their its commercially reasonable best efforts to obtain any authorizations, consents and approvals of, any Governmental Authority material third-party Consents that are necessary in connection with the transactions contemplated hereby, it being understood that nothing in this Agreement shall require, or may be construed to require, the Buyer, the Sellers or any of the Company Entities to make any payment in connection with fulfilling such conditions precedent, other than legal and accounting fees and disbursements and regulatory filing fees and costs. The Sellers shall use their reasonable best efforts to give all notices to, and obtain all consents from, all third parties that are listed in Section 2.6(a)(v) of the Schedules. Each party shall cooperate fully with the other party and its Affiliates in promptly seeking to obtain all such authorizations, consents and approvals. The parties hereto shall not willfully take any action that will have the effect of delaying, impairing or impeding the receipt of any required consents, authorizations, orders and approvals.
(b) Without limiting the generality of the parties’ undertakings pursuant to Section 5.2(a), each of the parties hereto shall use commercially reasonable efforts to: (i) respond to any inquiries by any Governmental Authority with respect to the transactions contemplated by this Agreement or any Ancillary Agreement; (ii) avoid the imposition of any order or the taking of any action that would restrain, alter or enjoin the transactions contemplated by this Agreement or any Ancillary Agreement; and (iii) in the event any order of a Governmental Authority adversely affecting the ability of the parties to consummate the transactions contemplated by this Agreement or any Ancillary Agreement is issued, to have such order vacated or lifted.
(c) All analyses, appearances, meetings, discussions, presentations, memoranda, briefs, filings, arguments, and proposals made by or on behalf of either party before any Governmental Authority or the staff or regulators of any Governmental Authorityrequired, in connection with the transactions contemplated hereunder (butby this Agreement. Each Seller shall give all required notices to third parties, for the avoidance and shall use its commercially reasonable efforts to obtain all required Consents, including all required Consents of doubtGovernmental Entities and bondholders or lenders of Primestar or any of its Affiliates, not including and any interactions between the Company Entities other material third-party Consents that may be required or the that Buyer with Governmental Authorities in the ordinary course of businessreasonably may request, any notices or filings made in connection with the Name Changetransactions contemplated by this Agreement. Within five Business Days following the date of this Agreement (but in no event prior to approval of this Agreement by the Board of Directors of GM), Buyer and each Seller shall file any disclosure which is not permitted by Law or any disclosure containing confidential informationNotification and Report Forms and related materials that it may be required to file with the FTC and the Antitrust Division of the United States Department of Justice (the "Antitrust Division") shall be disclosed to under the other party hereunder in advance of any filing, submission or attendance, it being the intent that the parties will consult and cooperate with one anotherHSR Act, and consider in good faith shall make any further filings pursuant thereto that may be necessary, proper or advisable. As promptly as is practicable after the views date of one anotherthis Agreement, Buyer and each Seller shall take any additional action in connection with any such analysesother Consents of, appearances, meetings, discussions, presentations, memoranda, briefs, filings, arguments, and proposals. Each party shall give notice to the other party with respect to any meeting, discussion, appearance or contact with any Governmental Authority Entities and third parties that it may be required to give, make or obtain and shall refrain from taking any action the staff purpose or regulators effect of any Governmental Authority, with such notice being sufficient to provide the other party with the opportunity to attend and participate in such meeting, discussion, appearance or contact.
(d) Notwithstanding the foregoing, nothing in this Section 5.2 shall require, or be construed to require, the Buyer or any of its Affiliates to agree to (i) sell, hold, divest, discontinue or limit, before or after the Closing Date, any assets, businesses or interests of the Buyer, the Company Entities or any of their respective Affiliates; (ii) any conditions relating to, or changes or restrictions in, the operations of any such assets, businesses or interests which, in either case, which could reasonably be expected to adversely impact make it less likely that such Consents will be given, made or obtained on the economic terms provided for in this Agreement. Without limiting the generality of the foregoing, Buyer and each Seller shall: (i) cooperate in all respects with each other in connection with any filing, submission, adversarial proceeding or business benefits to the Buyer timing thereof; (ii) in connection with any investigation or other inquiry, including any proceeding initiated by a private party, keep the other parties hereto informed on a timely basis of any material communication received by such party from, or given by such party to, the FTC, the Antitrust Division, the FCC or any other Governmental Entity and of any material communication received or given in connection with any Action by a private party, in each case regarding any of the transactions contemplated by this Agreement, and permit any other party hereto to preview any material communication given by or to it; or and (iii) consult with each other, in advance of any material modification meeting or waiver conference with such Governmental Entities or in connection with any Action by a private party. Buyer and each Seller will use their commercially reasonable efforts to obtain such approvals as promptly as possible and, in this regard, provide all information reasonably requested, assist and cooperate with one another to make the necessary filings and take such steps as may be necessary to secure the non-objection of the terms relevant antitrust and conditions of this Agreementregulatory authorities.
Appears in 1 contract
Notices and Consents. (a) The Company and its Subsidiaries will give any notices to third parties, and will use reasonable efforts to obtain any third party consents, that the Parent may reasonably request in connection with matters referred to in Section 4.3 hereof. Each of the Buyer and the Sellers will, and the Sellers Parties will cause the Company Entities to, give any notices to, make any filings with, and use their its reasonable best efforts to obtain any authorizations, consents consents, and approvals ofof governments and governmental agencies in connection with any matters pertaining to such Party and referred to in Sections 3.1(b), any Governmental Authority that are necessary 3.2(b), and 4.3 hereof. Without limiting the generality of the foregoing:
(a) prior to the date hereof, the Parent and the Company filed Notification and Report Forms and related materials with the Federal Trade Commission and the Antitrust Division of the United States Department of Justice under the Xxxx-Xxxxx-Xxxxxx Act in connection with the transactions contemplated herebyby this Agreement, it being understood and, subsequent to the date hereof, the Parent and the Company will make any further filings pursuant thereto that nothing in this Agreement shall requiremay be necessary, proper, or be construed to require, the Buyer, the Sellers or any of the Company Entities to make any payment advisable in connection with fulfilling such conditions precedent, other than legal and accounting fees and disbursements and regulatory filing fees and costs. The Sellers shall use their reasonable best efforts to give all notices to, and obtain all consents from, all third parties that are listed in Section 2.6(a)(v) of the Schedules. Each party shall cooperate fully with the other party and its Affiliates in promptly seeking to obtain all such authorizations, consents and approvals. The parties hereto shall not willfully take any action that will have the effect of delaying, impairing or impeding the receipt of any required consents, authorizations, orders and approvals.therewith; and
(b) Without limiting as soon as possible (but in no event later than ten (10) business days after the generality date of this Agreement) the parties’ undertakings pursuant to Section 5.2(a), each of Parent and the parties hereto Company shall use commercially reasonable efforts to: file applications with the FCC (ithe "FCC Applications") respond to any inquiries by any Governmental Authority with respect requesting the FCC's written consent to the transactions contemplated by this Agreement Agreement. The Parent and the Company shall diligently take all steps that are necessary, proper or any Ancillary Agreement; (ii) avoid desirable to expedite the imposition prosecution of the FCC Applications to a favorable conclusion. No Party by commission or omission shall put in jeopardy its qualifications as an FCC licensee, or impair the routine processing of the FCC Applications. The Company and the Parent shall promptly provide each other with a copy of any pleading, order or other document served on it relating to the taking of FCC Applications, shall furnish all information required by the FCC, and shall be represented at all meetings or hearings scheduled to consider the FCC Applications. The Company will use its reasonable efforts and otherwise cooperate with the Parent, and the Stockholders shall likewise use their reasonable efforts and otherwise cooperate with the Parent in responding to any action that would restraininformation requested by the FCC related to the FCC Applications and in defending against any petition, alter complaint or enjoin objection which may be filed against the transactions contemplated by this Agreement or any Ancillary Agreement; and (iii) in FCC Applications. In the event any order of a Governmental Authority adversely affecting FCC Application as tendered is rejected or found deficient for any reason, the ability of the parties to consummate the transactions contemplated by this Agreement or any Ancillary Agreement is issued, to have such order vacated or lifted.
(c) All analyses, appearances, meetings, discussions, presentations, memoranda, briefs, filings, arguments, and proposals made by or on behalf of either party before any Governmental Authority or the staff or regulators of any Governmental Authority, in connection with the transactions contemplated hereunder (but, Party liable for the avoidance of doubtrejection or deficiency shall take all reasonable steps to cure the basis for rejection or finding for deficiency and, not including any interactions between if necessary, the Parent and the Company Entities shall jointly resubmit such FCC Application. The FCC's pubic notice or the Buyer with Governmental Authorities in the ordinary course of business, any notices or filings made in connection with the Name Change, any disclosure which is not permitted by Law or any disclosure containing confidential information) shall be disclosed other written consent to the other party hereunder in advance of any filing, submission or attendance, it being FCC Applications is referred to herein as the intent that the parties will consult and cooperate with one another, and consider in good faith the views of one another, in connection with any such analyses, appearances, meetings, discussions, presentations, memoranda, briefs, filings, arguments, and proposals. Each party shall give notice to the other party with respect to any meeting, discussion, appearance or contact with any Governmental Authority or the staff or regulators of any Governmental Authority, with such notice being sufficient to provide the other party with the opportunity to attend and participate in such meeting, discussion, appearance or contact"FCC Consent.
(d) Notwithstanding the foregoing, nothing in this Section 5.2 shall require, or be construed to require, the Buyer or any of its Affiliates to agree to (i) sell, hold, divest, discontinue or limit, before or after the Closing Date, any assets, businesses or interests of the Buyer, the Company Entities or any of their respective Affiliates; (ii) any conditions relating to, or changes or restrictions in, the operations of any such assets, businesses or interests which, in either case, could reasonably be expected to adversely impact the economic or business benefits to the Buyer of the transactions contemplated by this Agreement; or (iii) any material modification or waiver of the terms and conditions of this Agreement."
Appears in 1 contract
Samples: Merger Agreement (Radio One Inc)
Notices and Consents. (a) Each of the Buyer and the Sellers willshall give all required notices to third parties, and the Sellers will cause the Company Entities to, give any notices to, make any filings with, and shall use their its commercially reasonable best efforts to obtain any authorizationsmaterial third-party Consents that may be required, consents in connection with the transactions contemplated by this Agreement. Seller shall give all required notices to third parties, and approvals ofshall use its commercially reasonable efforts to obtain all required Consents, including all Consents required by counterparties to the Ground Satellite Contracts and the In-Orbit Satellite Contracts, all required Consents of Governmental Entities and bondholders or lenders of Seller or any of its Affiliates, and any other material third-party Consents that may be required or that Buyer reasonably may request, in connection with the transactions contemplated by this Agreement. Within five Business Days following the date of this Agreement (but in no event prior to approval of the Board of Directors of GM) Buyer and Seller hereto shall file any Notification and Report Forms and related materials that it may be required to file with the Federal Trade Commission ("FTC") and the Antitrust Division of the United States Department of Justice (the "Antitrust Division") under the HSR Act, and shall make any further filings pursuant thereto that may be necessary, proper or advisable. Within five calendar days following the date of this Agreement, Buyer and Seller shall make all notifications and file all applications and related materials that it may be required to file with the FCC or any other Governmental Authority that are necessary Entity having authority with respect to Licenses for the use of orbital slots or the provision of communications services or other communications Licenses in connection with the transactions contemplated hereby, it being understood that nothing in this Agreement shall requireand, or be construed to require, the Buyer, the Sellers or any of the Company Entities to make any payment in connection with fulfilling such conditions precedent, other than legal and accounting fees and disbursements and regulatory filing fees and costs. The Sellers shall use their reasonable best efforts to give all notices to, and obtain all consents from, all third parties that are listed in Section 2.6(a)(v) of the Schedules. Each party shall cooperate fully with the other party and its Affiliates in promptly seeking to obtain all such authorizations, consents and approvals. The parties hereto shall not willfully take any action that will have the effect of delaying, impairing or impeding the receipt of any required consents, authorizations, orders and approvals.
(b) Without limiting the generality of the parties’ undertakings pursuant subject to Section 5.2(a)8.4 below, each of the parties hereto shall use commercially reasonable efforts to: (i) respond to any inquiries by any Governmental Authority with respect to obtain at the transactions contemplated by this Agreement or any Ancillary Agreement; (ii) avoid the imposition of any order or the taking of any action that would restrainearliest practicable date all necessary Consents, alter or enjoin the transactions contemplated by this Agreement or any Ancillary Agreement; and (iii) in the event any order of including a Governmental Authority adversely affecting the ability Final Order, for assignment of the parties to consummate FCC License. At the transactions contemplated by this Agreement or any Ancillary Agreement is issued, to have such order vacated or lifted.
(c) All analyses, appearances, meetings, discussions, presentations, memoranda, briefs, filings, arguments, and proposals made by or on behalf of either party before any Governmental Authority or the staff or regulators of any Governmental Authority, in connection with the transactions contemplated hereunder (but, for the avoidance of doubt, not including any interactions between the Company Entities or the Buyer with Governmental Authorities in the ordinary course of business, any notices or filings made in connection with the Name Change, any disclosure which is not permitted by Law or any disclosure containing confidential information) shall be disclosed to the other party hereunder in advance of any filing, submission or attendance, it being the intent time that the parties will consult file an application with the FCC to obtain the FCC Consent and cooperate with one anotherFinal Order, Primestar and consider in good faith TSAT shall submit a letter request to the views FCC to withdraw any pending request to transfer control of one anotherthe FCC License, in connection with which request may be made contingent upon giving of the FCC Consent. As promptly as is practicable after the date of this Agreement, each of Buyer and Seller shall take any such analyses, appearances, meetings, discussions, presentations, memoranda, briefs, additional action (including the implementation of an Acceptable Alternative Arrangement (to the extent subject to action by the FCC) and submit any additional filings, argumentssubmissions or applications required by the FCC, the FTC and proposals. Each party shall give notice the Antitrust Division, that may be necessary, proper or advisable to effect to the other party with respect to any meeting, discussion, appearance or contact with any Governmental Authority or fullest extent feasible the staff or regulators of any Governmental Authority, with such notice being sufficient to provide the other party with the opportunity to attend and participate in such meeting, discussion, appearance or contact.
(d) Notwithstanding the foregoing, nothing in this Section 5.2 shall require, or be construed to require, the Buyer or any of its Affiliates to agree to (i) sell, hold, divest, discontinue or limit, before or after the Closing Date, any assets, businesses or interests of the Buyer, the Company Entities or any of their respective Affiliates; (ii) any conditions relating to, or changes or restrictions in, the operations of any such assets, businesses or interests which, in either case, could reasonably be expected to adversely impact the economic or business benefits to the Buyer consummation of the transactions contemplated by this Agreement) in connection with any other Consents of, to or with any Governmental Entities and third parties that it may be required to give, make or obtain and shall refrain from taking any action the purpose or effect of which could reasonably be expected to make it less likely that such Consents will be given, made or obtained on the terms provided for in this Agreement. Without limiting the generality of the foregoing, each of Buyer and Seller shall: (i) cooperate in all respects with each other in connection with any filing, submission, adversarial proceeding or the timing thereof; (ii) in connection with any investigation or other inquiry, including any proceeding initiated by a private party, keep the other parties hereto informed on a timely basis of any material communication received by such party from, or given by such party to, the FTC, the Antitrust Division, the FCC or any other Governmental Entity and of any material communication received or given in connection with any Action by a private party, in each case regarding any of the transactions contemplated by this Agreement, and permit any other party hereto to preview any material communication given by or to it; and (iii) consult with each other, in advance of any material modification meeting or waiver conference with such Governmental Entities or, in connection with any Action by a private party. Each of Buyer and Seller will use its commercially reasonable efforts to obtain such approvals as promptly as possible and, in this regard, provide all information reasonably requested, assist and cooperate with one another to make the necessary filings and take such steps as may be necessary to secure the non-objection of the terms relevant antitrust and conditions regulatory authorities, including a Final Order for assignment of this Agreementthe FCC License.
Appears in 1 contract
Notices and Consents. (a) Each Acquired Entity will give any notices to third parties, and will use its Best Efforts to obtain any third party Consents listed on Section 4.3 of the Buyer Acquired Entity Disclosure Schedule as soon as possible after the date of this Agreement and shall remain in force through the Sellers will, and the Sellers Closing Date. Acquired Entity will cause the Company Entities to, give any notices to, make any filings with, and use their reasonable best efforts its Best Efforts to obtain any authorizationsConsents of Governmental Authorities, consents and approvals ofif any, required pursuant to any Governmental Authority that are necessary applicable Law in connection with the transactions contemplated hereby, it being understood that nothing in this Agreement shall require, or be construed to require, the Buyer, the Sellers or any of the Company Entities to make any payment Transaction including in connection with fulfilling such conditions precedent, other than legal the matters referred to in Sections 4.3 as soon as possible after the date of this Agreement and accounting fees and disbursements and regulatory filing fees and costs. The Sellers shall use their reasonable best efforts to give all notices to, and obtain all consents from, all third parties that are listed remain in Section 2.6(a)(v) of three through the Schedules. Each party shall cooperate fully with the other party and its Affiliates in promptly seeking to obtain all such authorizations, consents and approvals. The parties hereto shall not willfully take any action that will have the effect of delaying, impairing or impeding the receipt of any required consents, authorizations, orders and approvalsClosing Date.
(b) Without limiting the generality Buyer will give any notices to third parties, and will use its Best Efforts to obtain any third party consents listed on Section 3.3 of the parties’ undertakings Buyer Disclosure Schedule. Buyer will give any notices to, make any filings with, and use its Best Efforts to obtain any Consents of Governmental Bodies, if any, required pursuant to any applicable Law in connection with the Transaction including in connection with the matters referred to in Section 5.2(a), each 3.3 as soon as possible after the date of the parties hereto shall use commercially reasonable efforts to: (i) respond to any inquiries by any Governmental Authority with respect to the transactions contemplated by this Agreement or any Ancillary Agreement; (ii) avoid and shall remain in force through the imposition of any order or Closing Date. Buyer shall have the taking of any action that would restrain, alter or enjoin right to extend the transactions contemplated by this Agreement or any Ancillary Agreement; and (iii) Closing Date in the event any order of a Governmental Authority adversely affecting event, in Buyer's determination, the failure to obtain the Consent shall negatively impact its ability of to conduct its business following the parties to consummate the transactions contemplated by this Agreement or any Ancillary Agreement is issued, to have such order vacated or liftedClosing Date.
(c) All analyses, appearances, meetings, discussions, presentations, memoranda, briefs, filings, arguments, Each Party will cooperate and proposals made use its Best Efforts to agree jointly on a method to overcome any objections by or on behalf of either party before any Governmental Authority or the staff or regulators of any Governmental Authority, in connection with the transactions contemplated hereunder (but, for the avoidance of doubt, not including any interactions between the Company Entities or the Buyer with Governmental Authorities in the ordinary course of business, any notices or filings made in connection with the Name Change, any disclosure which is not permitted by Law or any disclosure containing confidential information) shall be disclosed Body to the other party hereunder in advance of any filing, submission or attendance, it being the intent that the parties will consult and cooperate with one another, and consider in good faith the views of one another, in connection with any such analyses, appearances, meetings, discussions, presentations, memoranda, briefs, filings, arguments, and proposals. Each party shall give notice to the other party with respect to any meeting, discussion, appearance or contact with any Governmental Authority or the staff or regulators of any Governmental Authority, with such notice being sufficient to provide the other party with the opportunity to attend and participate in such meeting, discussion, appearance or contactTransactions.
(d) Notwithstanding the foregoing, nothing Nothing in this Section 5.2 shall requirewill require that (i) Buyer or its Affiliates divest, sell, or be construed to require, the Buyer or hold separately any of its Affiliates assets or properties, (ii) Buyer, its Affiliates, or the Acquired Entity (the determination with respect to agree to (iwhich Buyer will make) selltake any actions that could affect the normal and regular operations of Buyer, holdits Affiliates, divest, discontinue or limit, before or the Acquired Entity after the Closing Date, any assets, businesses or interests of the Buyer, the Company Entities or any of their respective Affiliates; (ii) any conditions relating to, or changes or restrictions in, the operations of any such assets, businesses or interests which, in either case, could reasonably be expected to adversely impact the economic or business benefits to the Buyer of the transactions contemplated by this Agreement; or (iii) the Acquired Entity take any material modification or waiver action that could affect its normal and regular operations prior to Closing. Subject to compliance with applicable Law, from the date hereof until the earlier to occur of the terms Closing or the Termination Date, the Acquired Entity will confer on a regular basis with one or more representatives of Buyer who are in a need to know position with Buyer to report on operational matters and conditions the general status of this Agreementthe Acquired Entity's ongoing business, operations and finances, provided each such representative acknowledges to Acquired Entity's satisfaction their confidentiality obligation to the Acquired Entity.
Appears in 1 contract
Samples: Merger Agreement (Advanced Na, LLC)
Notices and Consents. (a) Each of The Seller will give any notices to third parties and will use its best efforts to obtain any third party consents that the Buyer and reasonably may request in connection with the Sellers will, and the Sellers matters referred to in Article III above. Each party will cause the Company Entities to, give any notices to, make any filings with, and use their reasonable its best efforts to obtain any authorizations, consents consents, transfers, assignments, waivers and approvals of, of any Governmental Authority that are necessary in connection with the transactions contemplated hereby, it being understood that nothing in this Agreement shall require, or be construed to require, the Buyer, the Sellers or any of the Company Entities to make any payment in connection with fulfilling such conditions precedent, other than legal and accounting fees and disbursements and regulatory filing fees and costs. The Sellers shall use their reasonable best efforts to give all notices to, and obtain all consents from, all third parties that are listed in Section 2.6(a)(v) of the Schedules. Each party shall cooperate fully with the other party and its Affiliates in promptly seeking to obtain all such authorizations, consents and approvals. The parties hereto shall not willfully take any action that will have the effect of delaying, impairing or impeding the receipt of any required consents, authorizations, orders and approvals.
(b) Without limiting the generality of the parties’ undertakings pursuant to Section 5.2(a), each of the parties hereto shall use commercially reasonable efforts to: (i) respond to any inquiries by any Governmental Authority with respect to the transactions contemplated by this Agreement or any Ancillary Agreement; (ii) avoid the imposition of any order or the taking of any action that would restrain, alter or enjoin the transactions contemplated by this Agreement or any Ancillary Agreement; and (iii) in the event any order of a Governmental Authority adversely affecting the ability of the parties to consummate the transactions contemplated by this Agreement (the "REQUIRED APPROVALS"). Without limiting the generality of the foregoing, each party will file any notification and report forms and related material that it may be required to file with, and apply for any available advance rulings from (i) the Director under the Canadian Competition Act and (ii) the Minister responsible for administering the Investment Canada Act, and will in each case use its best efforts to obtain a waiver from any applicable waiting period and will make any further filings pursuant thereto that may be necessary, proper, or advisable in connection with any Ancillary Agreement is issuedof the foregoing. Each of the Seller and the Buyer shall be responsible for the payment of one-half (1/2) of the filing fees for such notifications and related materials, and any accounting therefor shall be paid on the Closing Date to have such order vacated or liftedthe extent known, and thereafter on demand.
(ci) All analysesNothing in this Agreement shall be construed as an attempt by the Seller to assign to Buyer any Contract, appearancesagreement, meetingsPermit or License, discussionsfranchise, presentationsClaim or asset included in the Acquired Assets (A) which is by its terms or by law nonassignable without the consent of any other party or parties, memorandaunless such consent or approval shall have been given, briefsor (B) as to which all the remedies for the enforcement thereof available to the Seller would not by law pass to the Buyer as an incident of the assignments provided for by this Agreement (an "ACQUIRED ASSET REQUIRING CONSENT").
(ii) Prior to the Closing Date, filingsthe Seller shall use its best efforts to obtain consents or approvals to the assignment of the Contracts, argumentsOpen Orders, Permits and Licenses, and proposals made Real and Personal Property Leases described on SCHEDULE 5.2(b) (collectively "MATERIAL CONTRACTS REQUIRING CONSENT"); PROVIDED, that the Seller shall not be required to pay more than Cdn.$15,000 in cash or other consideration or grant forbearances having such value, in the aggregate, to any other parties to such Material Contracts Requiring Consent to effect such consents or approvals.
(iii) To the extent that any such consent or approval in respect of, or a novation of, an Acquired Asset Requiring Consent shall not have been obtained on or before the Closing Date, the parties hereto shall use reasonable efforts and shall cooperate in any reasonable arrangement to assure the Buyer the benefits of such Acquired Asset Requiring Consent to the extent permitted by or on behalf of either party before any Governmental Authority or law. To the staff or regulators extent lawful, practicable and reasonable in the circumstances, including the obtaining of any Governmental Authoritysuch necessary consent or approval after the Closing Date (provided that the Seller and its Affiliates shall not be required to pay more than Cdn.$15,000 in cash or other consideration or grant forbearances having such value, in the aggregate, to any other parties to such Material Contracts Requiring Consent to effect such consents or approvals), the Seller at the request and under the direction of the Buyer shall take all reasonable actions to assure that the rights of the Seller under the Acquired Asset Requiring Consents shall be preserved for the benefit of the Buyer to the extent not involving any undue hardships upon the Seller or unreasonable time constraints in the request or compliance with such instructions. The Buyer shall reimburse the Seller and its Affiliates for their reasonable out-of-pocket expenses in excess of Cdn.$15,000 related to any actions taken by the Seller at the request of the Buyer after the Closing Date.
(iv) Except with respect to the Material Contracts Requiring Consent, the Buyer acknowledges that certain consents to the assignments may be required from parties to all other Acquired Assets Requiring Consent and that such consents may not be obtained. The Buyer agrees that the Seller shall not have any liability to the Buyer arising solely out of or solely relating to the failure to obtain any consents that may have been or may be required in connection with the assignments, or because of the default under or acceleration or termination of, any other Acquired Asset Requiring Consent solely as a result thereof. The Buyer further agrees that no representation, warranty or covenant of the Seller contained herein shall be breached or deemed breached as a result of the failure to obtain any such consent, or as a result of any default, acceleration or termination resulting solely from such failure. The Buyer further agrees that no condition to the Buyer's obligations to close the transactions contemplated hereunder by this Agreement shall be deemed not satisfied as a result of the failure to obtain any such consent, except consents with respect to Material Contracts Requiring Consent.
(but, for v) The Buyer and the avoidance of doubt, not including Seller shall jointly cooperate in attempting to obtain any interactions between the Company Entities or the Buyer with Governmental Authorities in the ordinary course of business, any notices or filings made consents required in connection with the Name Change, any disclosure which is not permitted by Law or any disclosure containing confidential information) shall be disclosed to the other party hereunder in advance of any filing, submission or attendance, it being the intent that the parties will consult and cooperate with one another, and consider in good faith the views of one another, in connection with any such analyses, appearances, meetings, discussions, presentations, memoranda, briefs, filings, arguments, and proposals. Each party shall give notice to the other party with respect to any meeting, discussion, appearance or contact with any Governmental Authority or the staff or regulators of any Governmental Authority, with such notice being sufficient to provide the other party with the opportunity to attend and participate in such meeting, discussion, appearance or contact.
(d) Notwithstanding the foregoing, nothing in this Section 5.2 shall require, or be construed to require, the Buyer or any of its Affiliates to agree to (i) sell, hold, divest, discontinue or limit, before or after the Closing Date, any assets, businesses or interests of the Buyer, the Company Entities or any of their respective Affiliates; (ii) any conditions relating to, or changes or restrictions in, the operations of any such assets, businesses or interests which, in either case, could reasonably be expected to adversely impact the economic or business benefits to the Buyer of the transactions contemplated by this Agreement; PROVIDED, HOWEVER, that the Seller shall not be required to incur out-of-pocket expenses in excess of Cdn.$15,000, commence any litigation or offer or grant any forbearance or accommodation (iiifinancial or otherwise) to any material modification or waiver of the terms and conditions of this Agreementthird party.
Appears in 1 contract
Notices and Consents. (a) The Seller will give any notices to third parties and shall use reasonable best efforts (which shall not include the payment of any consent fees (other than de minimis costs)) to obtain any third party consents listed on Schedule 5.2.
(b) Notwithstanding the foregoing, the Buyer acknowledges that certain consents to the Transactions listed on Schedule 5.2 may not be obtained. The Buyer agrees that the Seller and its Subsidiaries shall not have any liability whatsoever to the Buyer Indemnified Parties (and the Buyer Indemnified Parties shall not be entitled to assert any claims) arising out of or relating to the failure to obtain any such consents or because of the default, acceleration or obligation or termination of or loss of right as a result thereof; provided, that nothing in this Section 5.2(b) shall impair the Buyer’s rights under (i) Section 5.2(a) of this Agreement or (ii) under this Agreement as a result of a breach of the representation and warranty in the last sentence of Section 3.16. The Buyer further agrees that no representation, warranty or covenant of the Seller contained herein shall be breached or deemed breached and no condition of the Buyer shall be deemed not to be satisfied as a result of the failure to obtain any such consent or as a result of any such default, acceleration of obligation or termination or loss of right or any action commenced or threatened by or on behalf of any Person arising out of or relating to the failure to obtain any such consent or any such default, acceleration or termination or loss of right; provided, that nothing in this Section 5.2(b)) shall impair the Buyer’s rights under (i) Section 5.2(a) of this Agreement or (ii) under this Agreement as a result of a breach of the representation and warranty in the last sentence of Section 3.16.
(c) Each of the Buyer and the Sellers willSeller will use its reasonable best efforts to: (i) prepare, as soon as practicable (and in no event later than five (5) Business Days after the date hereof), all filings and other presentations in connection with seeking any Regulatory Approvals; (ii) prosecute any applicable filings and other presentations with diligence relating to any Regulatory Approvals; and (iii) oppose any objections to, appeals from or petitions to reconsider or reopen any such approval by Persons not party to this Agreement. Each of the Buyer and the Sellers Seller will cause the Company Entities to, give any notices to, make any filings with, and use their its reasonable best efforts to obtain facilitate obtaining any authorizations, consents final order or orders approving the Transactions consistent with this Agreement and/or to remove any impediment to the consummation of the Transactions. Each of the Buyer and approvals of, any Governmental Authority that are necessary the Seller will use its reasonable best efforts to furnish or cause to be furnished all information in connection with the transactions contemplated herebyRegulatory Approvals. In furtherance and not in limitation of the foregoing, it being understood that nothing each of the Buyer and the Seller shall make an appropriate filing of a Notification and Report Form pursuant to the HSR Act (which shall include therein a request for early termination) as promptly as practicable, and in this Agreement any event within five (5) Business Days, and thereafter make any other required submissions with respect to the Transactions under the HSR Act and other Regulatory Approvals, and shall requiretake all other actions reasonably necessary, proper or be construed advisable to require, obtain all such Regulatory Approvals as soon as practicable. Each of the Buyer, Buyer and the Sellers Seller will advise the other Party promptly of any material communication between such Party or any of its Affiliates and the Company Entities Federal Trade Commission (the “FTC”), the Department of Justice (the “DOJ”), any state attorney general or any other Governmental Entity regarding the Transactions, and of any understandings, undertakings or agreements (oral or written) such Party proposes to make or enter into with the FTC, the DOJ, any payment state attorney general or any other Governmental Entity in connection with fulfilling such conditions precedentthe Transactions. Each of the Buyer and the Seller will consult with the other in advance of any material meetings or communication (whether in person or otherwise) with the FTC, the DOJ, any state attorney general or any other than legal and accounting fees and disbursements and regulatory filing fees and costs. Governmental Entity in connection with Regulatory Approvals.
(d) The Sellers Parties shall use their reasonable best efforts to give all notices todefend through litigation on the merits any claim asserted in court by any party in order to avoid entry of, and obtain all consents fromor to have vacated or terminated, all third parties any decree, order or judgment (whether temporary, preliminary or permanent) that are listed in Section 2.6(a)(v) of would prevent the Schedules. Each party shall cooperate fully with Parties from expeditiously closing the other party and its Affiliates in promptly seeking to obtain all such authorizations, consents and approvals. The parties hereto shall not willfully take any action that will have the effect of delaying, impairing or impeding the receipt of any required consents, authorizations, orders and approvalsTransactions.
(be) Without limiting Subject to Applicable Laws relating to the generality exchange of information, the parties’ undertakings pursuant Parties shall have the right to Section 5.2(a)review in advance, and to the extent practicable each of will consult the parties hereto other regarding, all the information relating to the Party, as the case may be, that appears in any filing made with, or written materials submitted to, any third party and/or any Governmental Entity in connection with the Transactions.
(f) The Buyer shall use commercially reasonable best efforts to: (i) respond to any inquiries take all actions requested by any Governmental Authority Entity, or necessary to resolve any objections that may be asserted by any Governmental Entity, with respect to the transactions contemplated by this Agreement Transactions, including, without limitation, (i) agreeing to sell, divest, hold separate, license, cause a third party to acquire, or otherwise dispose of, any Ancillary Agreement; Subsidiary, operations, divisions, businesses, product lines, customers or assets of the Electrical Business or the Acquired Companies contemporaneously with or after the Closing, (ii) avoid enter into any order, consent decree or other agreement necessary to effectuate the imposition of any order foregoing, or the taking of any action that would restrain, alter or enjoin the transactions contemplated by this Agreement or any Ancillary Agreement; and (iii) in the event terminate any order of a contract, lease, license, other legally binding agreement or other business relationship as may be required by any Governmental Authority adversely affecting the ability of the parties to consummate the transactions contemplated by this Agreement or any Ancillary Agreement is issued, to have such order vacated or lifted.
(c) All analyses, appearances, meetings, discussions, presentations, memoranda, briefs, filings, argumentsEntity. The Buyer shall not, and proposals made by or on behalf of either party before any Governmental Authority or the staff or regulators of any Governmental Authority, in connection with the transactions contemplated hereunder (but, for the avoidance of doubt, shall not including any interactions between the Company Entities or the Buyer with Governmental Authorities in the ordinary course of business, any notices or filings made in connection with the Name Change, any disclosure which is not permitted by Law or any disclosure containing confidential information) shall be disclosed to the other party hereunder in advance of any filing, submission or attendance, it being the intent that the parties will consult and cooperate with one another, and consider in good faith the views of one another, in connection with any such analyses, appearances, meetings, discussions, presentations, memoranda, briefs, filings, arguments, and proposals. Each party shall give notice to the other party with respect to any meeting, discussion, appearance or contact with any Governmental Authority or the staff or regulators of any Governmental Authority, with such notice being sufficient to provide the other party with the opportunity to attend and participate in such meeting, discussion, appearance or contact.
(d) Notwithstanding the foregoing, nothing in this Section 5.2 shall require, or be construed to require, the Buyer or permit any of its Affiliates to, acquire or agree to acquire by merging or consolidating with, or by purchasing a substantial portion of the assets of or equity in, or by any other manner, any Person or portion thereof, or otherwise acquire or agree to acquire any assets, if the entering into of a definitive agreement relating to or the consummation of such acquisition, merger or consolidation would reasonably be expected to (i) sellimpose any delay in the obtaining of, hold, divest, discontinue or limit, before or after significantly increase the Closing Daterisk of not obtaining, any assetsauthorizations, businesses consents, orders, declarations or interests approvals of any Governmental Entity necessary to consummate the BuyerTransactions or the expiration or termination of any applicable waiting period, the Company Entities or any of their respective Affiliates; (ii) any conditions relating to, or changes or restrictions in, significantly increase the operations risk of any such assets, businesses or interests which, in either case, could reasonably be expected to adversely impact Governmental Entity entering an order prohibiting the economic or business benefits to the Buyer consummation of the transactions contemplated by this Agreement; Transactions or (iii) any material modification or waiver delay the consummation of the terms and conditions of this AgreementTransactions.
Appears in 1 contract
Samples: Purchase Agreement (Actuant Corp)
Notices and Consents. (ai) Each of the Buyer and the Sellers will, and the Sellers will cause the Company Entities toCompany, give any notices to, make any filings withIAA, and IAJ to give notices to third parties and to use their commercially reasonable best efforts to obtain any authorizations, third party consents and approvals of, any Governmental Authority that are necessary in connection with the transactions contemplated hereby, it being understood that nothing in this Agreement shall require, or be construed to require, the Buyer, the Sellers or any required under each of the Company Entities to make any payment in connection with fulfilling such conditions precedent, other than legal agreements and accounting fees and disbursements and regulatory filing fees and costs. The Sellers shall use their reasonable best efforts to give all notices to, and obtain all consents from, all third parties that are listed in contracts set forth on Section 2.6(a)(v4(b) of the Schedules. Each party shall cooperate fully with Disclosure Schedule (which consents may include so-called “negative” or “implied” consents if permissible under the other party Investment Advisers Act of 1940, as amended, and its Affiliates the Investment Company Act of 1940, as amended, and the rules, regulations and staff interpretation letters relating thereto) (such agreements and contracts set forth in promptly seeking Section 4(b) of the Disclosure Schedule collectively referred to obtain all herein as the “Consent Contracts” and individually referred to herein as a “Consent Contract”); provided, however, that the Company and Purchaser will each pay 50% of the fees, costs and expenses of third parties and the Company’s out-of-pocket expenses incurred in obtaining the required consents under such authorizationsConsent Contracts (such Purchaser’s portion referred to herein as the “Purchaser Consent Costs”); further, consents and approvals. The parties hereto provided, however, the Purchaser Consent Costs shall not willfully take any action that will have include the effect fees, costs or expenses of delaying, impairing or impeding the receipt of any required consents, authorizations, orders Company’s outside legal counsel and approvalsother advisors.
(bii) Sellers and Purchaser agree to (A) promptly file, or cause to be promptly filed, with all appropriate Governmental Authorities any and all other notices, registrations, declarations, applications and other documents as required by Law to consummate the Acquisition and (B) thereafter diligently pursue all consents, approvals and authorizations from such Governmental Authorities as required by Law to consummate the Acquisition.
(iii) Without limiting the generality of the parties’ undertakings foregoing, Sellers and Purchaser agree to cause each of their respective required appropriate person to
(A) promptly file, or cause to be filed, with the DOJ and the FTC the premerger notification form required pursuant to Section 5.2(a), each the Xxxx-Xxxxx-Xxxxxx Act and requesting early termination of the parties hereto shall use commercially reasonable efforts to: waiting period required thereunder; (iB) timely respond to any inquiries by and all information and document requests of the FTC and DOJ or any other Governmental Authority regarding the Acquisition; (C) promptly discuss with the other any and all comments received from any Governmental Authority with respect to regarding the transactions contemplated by this Agreement or any Ancillary AgreementAcquisition; (iiD) avoid cooperate with each other in connection with such filings, responses and requests, which cooperation shall include furnishing the imposition of any order other with such information or the taking of any action that would restrain, alter or enjoin the transactions contemplated by this Agreement or any Ancillary Agreementdocuments as may be reasonably required in connection with such filings and responses; and (iiiE) in promptly notify each other of any other communications with the event FTC, DOJ or any order of a other Governmental Authority adversely affecting which relate to the ability of Acquisition, and to the parties extent appropriate, to consummate permit the transactions contemplated by this Agreement other to participate in any conferences with the FTC, DOJ or any Ancillary Agreement is issued, to have such order vacated or lifted.
(c) All analyses, appearances, meetings, discussions, presentations, memoranda, briefs, filings, arguments, and proposals made by or on behalf of either party before any Governmental Authority or the staff or regulators of any other Governmental Authority. Except as otherwise provided herein, Sellers and Purchaser shall bear their own fees, costs and expenses incurred in connection with the transactions contemplated hereunder (but, for the avoidance of doubt, not including any interactions between the Company Entities or the Buyer with Governmental Authorities in the ordinary course of business, any notices or filings made in connection with the Name Change, any disclosure which is not permitted by Law or any disclosure containing confidential information) shall be disclosed to the other party hereunder in advance of any filing, submission or attendance, it being the intent that the parties will consult and cooperate with one another, and consider in good faith the views of one another, in connection with any such analyses, appearances, meetings, discussions, presentations, memoranda, briefs, filings, arguments, and proposals. Each party shall give notice to the other party with respect to any meeting, discussion, appearance or contact with any Governmental Authority or the staff or regulators of any Governmental Authority, with such notice being sufficient to provide the other party with the opportunity to attend and participate in such meeting, discussion, appearance or contact.
(d) Notwithstanding the foregoing, nothing activities described in this Section 5.2 shall require4(b); provided, or be construed to requirehowever, the Buyer or any of its Affiliates to agree to (i) sell, hold, divest, discontinue or limit, before or after the Closing Date, any assets, businesses or interests that Company and Purchaser will each pay 50% of the Buyer, filing fee required by the Company Entities or any of their respective Affiliates; (ii) any conditions relating to, or changes or restrictions in, the operations of any such assets, businesses or interests which, in either case, could reasonably be expected to adversely impact the economic or business benefits to the Buyer of the transactions contemplated by this Agreement; or (iii) any material modification or waiver of the terms and conditions of this AgreementXxxx-Xxxxx-Xxxxxx Act.
Appears in 1 contract
Notices and Consents. The Seller will give any notices to third parties, and will use its reasonable best efforts to obtain the third party consents necessary to effect the assignment of all Gas Contracts, Rights-of-Way and other Assets to Buyer. If Seller is unable to obtain any necessary third party consents to the assignment of any Gas Contracts or Rights-of-Way, then Seller shall hold such Gas Contract or Right-of-Way for the benefit of Buyer after the Closing for its term and Seller shall provide Buyer with the economic benefits thereof until such Gas Contract or Right-of-Way is terminated. Insofar as the Seller holds any Gas Contracts or Rights-of -Way for the benefit of the Buyer after Closing and takes actions with respect thereto on behalf of the Buyer pursuant to this Section, the Seller shall be deemed to have been the agent of the Buyer hereunder. The Buyer ratifies all actions taken by the Seller or refrained to be taken by the Seller pursuant to the terms of this Section in such capacity during such period, with the intention that all such actions shall be deemed to be those of the Buyer. Insofar as the Seller exercises rights or takes any actions as the agent of the Buyer pursuant to this Section, the Seller may require the Buyer to secure the costs to be incurred by the Seller on behalf of the Buyer in such manner as may be reasonably appropriate in the circumstances. The Buyer shall indemnify the Seller and its directors, officers, servants, agents or employees against all liabilities, losses, costs (a) including legal costs on a solicitor-client basis), claims or damages which the Seller or its directors, officers, servants, agents or employees may suffer or incur as a result of holding any of the Gas Contracts or Rights-of-Way as the agent of the Buyer pursuant to this Section insofar as such liabilities, losses, costs, claims or damages are not a direct result of the gross negligence or wilful misconduct of the Seller or its directors, officers, servants, agents or employees. An action or omission of the Seller or its directors, officers, servants, agents or employees shall not be regarded as gross negligence or wilful misconduct, however, to the extent it was done or omitted to be done in accordance with the instructions of or with the concurrence of the Buyer. Each of the Buyer and the Sellers will, and the Sellers Parties will cause the Company Entities to, give any notices to, make any filings with, and use their its reasonable best efforts to obtain any authorizations, consents and approvals of, any Governmental Authority that are necessary in connection with the transactions contemplated hereby, it being understood that nothing in this Agreement shall require, or be construed to require, the Buyer, the Sellers or any of the Company Entities to make any payment in connection with fulfilling such conditions precedent, other than legal and accounting fees and disbursements and regulatory filing fees and costs. The Sellers shall use their reasonable best efforts to give all notices to, and obtain all consents from, all third parties that are listed in Section 2.6(a)(v) of the Schedules. Each party shall cooperate fully with the other party and its Affiliates in promptly seeking to obtain all such authorizations, consents and approvals. The parties hereto shall not willfully take any action that will have the effect of delaying, impairing or impeding the receipt of any required consents, authorizations, orders and approvals.
(b) Without limiting the generality of the parties’ undertakings pursuant to Section 5.2(a), each of the parties hereto shall use commercially reasonable efforts to: (i) respond to any inquiries by any Governmental Authority with respect to the transactions contemplated by this Agreement or any Ancillary Agreement; (ii) avoid the imposition of any order or the taking of any action that would restrain, alter or enjoin the transactions contemplated by this Agreement or any Ancillary Agreement; and (iii) in the event any order of a Governmental Authority adversely affecting the ability of the parties to consummate the transactions contemplated by this Agreement or any Ancillary Agreement is issued, to have such order vacated or lifted.
(c) All analyses, appearances, meetings, discussions, presentations, memoranda, briefs, filings, arguments, and proposals made by or on behalf of either party before any Governmental Authority or the staff or regulators of any Governmental Authority, in connection with the transactions contemplated hereunder (but, for the avoidance of doubt, not including any interactions between the Company Entities or the Buyer with Governmental Authorities in the ordinary course of business, any notices or filings made in connection with the Name Change, any disclosure which is not permitted by Law or any disclosure containing confidential information) shall be disclosed are required prior to the other party hereunder in advance of any filing, submission or attendance, it being the intent that the parties will consult and cooperate with one another, and consider in good faith the views of one another, in connection with any such analyses, appearances, meetings, discussions, presentations, memoranda, briefs, filings, arguments, and proposals. Each party shall give notice to the other party with respect to any meeting, discussion, appearance or contact with any Governmental Authority or the staff or regulators of any Governmental Authority, with such notice being sufficient to provide the other party with the opportunity to attend and participate in such meeting, discussion, appearance or contactClosing.
(d) Notwithstanding the foregoing, nothing in this Section 5.2 shall require, or be construed to require, the Buyer or any of its Affiliates to agree to (i) sell, hold, divest, discontinue or limit, before or after the Closing Date, any assets, businesses or interests of the Buyer, the Company Entities or any of their respective Affiliates; (ii) any conditions relating to, or changes or restrictions in, the operations of any such assets, businesses or interests which, in either case, could reasonably be expected to adversely impact the economic or business benefits to the Buyer of the transactions contemplated by this Agreement; or (iii) any material modification or waiver of the terms and conditions of this Agreement.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Midcoast Energy Resources Inc)
Notices and Consents. (a) Each The Insurance Company will obtain a written Consent or certified resolutions by the Board of Directors of the Buyer Insurance Company approving of the Merger and the Sellers will, and the Sellers will cause the Company Entities to, give any notices to, make any filings with, and use their reasonable best efforts to obtain any authorizations, consents and approvals of, any Governmental Authority that are necessary in connection with the transactions contemplated hereby, it being understood that nothing in this Agreement shall require, or be construed to require, the Buyer, the Sellers or any of the Company Entities to make any payment in connection with fulfilling such conditions precedent, other than legal and accounting fees and disbursements and regulatory filing fees and costs. The Sellers shall use their reasonable best efforts to give all notices to, and obtain all consents from, all third parties that are listed in Section 2.6(a)(v) of the Schedules. Each party shall cooperate fully with the other party and its Affiliates in promptly seeking to obtain all such authorizations, consents and approvals. The parties hereto shall not willfully take any action that will have the effect of delaying, impairing or impeding the receipt of any required consents, authorizations, orders and approvalsTransactions as set forth herein.
(b) Without limiting The APSG Parent will obtain a Consent by the generality Board of Directors of the parties’ undertakings pursuant to Section 5.2(a), each APSG Parent approving of the parties hereto shall use commercially reasonable efforts to: (i) respond to any inquiries by any Governmental Authority with respect to Merger and the transactions contemplated by this Agreement or any Ancillary Agreement; (ii) avoid the imposition of any order or the taking of any action that would restrain, alter or enjoin the transactions contemplated by this Agreement or any Ancillary Agreement; and (iii) in the event any order of a Governmental Authority adversely affecting the ability of the parties to consummate the transactions contemplated by this Agreement or any Ancillary Agreement is issued, to have such order vacated or liftedTransactions as set forth herein.
(c) All analyses, appearances, meetings, discussions, presentations, memoranda, briefs, filings, arguments, and proposals made by or on behalf of either party before any Governmental Authority or the staff or regulators The Insurance Company will (subject to SEC approval of any Governmental Authority, proxy or joint proxy information that may be used in connection with such a meeting or submission to a vote) call and hold a meeting of its Subscribers as soon as practicable after the transactions contemplated hereunder (butdate hereof, for at which meeting the avoidance Board of doubtDirectors of the Insurance Company will submit and recommend the Agreement and the Transactions described herein to its Subscribers, not including any interactions between and, if the Company Entities or requisite approval is obtained, will undertake promptly to consummate the Buyer with Governmental Authorities in Merger and the ordinary course of business, any notices or filings made in connection with the Name Change, any disclosure which is not permitted by Law or any disclosure containing confidential information) shall be disclosed to the other party hereunder in advance of any filing, submission or attendance, it being the intent that the parties will consult and cooperate with one another, and consider in good faith the views of one another, in connection with any such analyses, appearances, meetings, discussions, presentations, memoranda, briefs, filings, arguments, and proposals. Each party shall give notice to the other party with respect to any meeting, discussion, appearance or contact with any Governmental Authority or the staff or regulators of any Governmental Authority, with such notice being sufficient to provide the other party with the opportunity to attend and participate in such meeting, discussion, appearance or contactTransactions as set forth herein.
(d) Notwithstanding The APSG Parent will (subject to SEC approval of any proxy or joint proxy information that may be used in connection with such a meeting or submission to a vote) call and hold a meeting of its shareholders as soon as practicable after the date hereof, at which meeting the Board of Directors of such APSG Party will, subject to its fiduciary obligations to shareholders, submit and recommend the Agreement and the Transactions described herein to its shareholders, and, if the requisite approval is obtained, will undertake promptly to consummate the Merger and the Transactions as set forth herein.
(e) The Insurance Company will make the necessary notifications to or filings with TDI, AID, the SEC and any other relevant state or federal regulatory agencies, including but not limited to obtaining a No-Action Letter from the SEC stating that the Insurance Company Common Stock and Insurance Company Preferred Stock, issued pursuant to the Conversion, are exempt from registration with the SEC (the "SEC No-Action Letter") and will use its Best Efforts to provide the APSG Parties with all the information needed to make the necessary notifications and filings with the SEC.
(f) Each APSG Party will make notifications to or filings with TDI, AID, the SEC, and any other relevant state or federal regulatory agencies, which are required to be made by any APSG Party in order to consummate the Merger and the Transactions as set forth herein.
(g) The Insurance Company will give any notices to third parties, and will use its Best Efforts to obtain any third party Consents listed on Schedule 4.3, or that APSG Parent reasonably may otherwise request in connection with the matters referred to in Section 4.3.
(h) Each APSG Party will give any notices to third parties, and will use its Best Efforts to obtain any third party Consents listed on Schedule 3.3, or that the Insurance Company reasonably may otherwise request in connection with the matters referred to in Section 3.3.
(i) Each Party will cooperate and use its Best Efforts to agree jointly on a method to overcome any objections by any Governmental Body to the Transactions. Without limiting the foregoing, nothing each Party (i) will file any notification and report forms and related material that such Party may be required to file under the HSR Act, (ii) if requested by APSG Parent, will use their Best Efforts to obtain an early termination of the applicable waiting period, and (iii) will make any further filings pursuant thereto that may be necessary, proper, or advisable in connection therewith. APSG Parent and the Insurance Company will bear the cost of the HSR Act filing fee equally. No Party shall be obligated to file a suit or to appeal from any adverse ruling by the Commissioner of TDI or the Commissioner of AID, and neither the APSG Parent nor the Insurance Company shall be obligated to make any material changes in any lawful, good faith management policy in order to gain such approval.
(j) Nothing in this Section 5.2 shall requirewill require that (i) APSG Parent or its Affiliates divest, sell, or be construed to require, the Buyer or hold separately any of its Affiliates to agree to (i) sellassets or properties, hold, divest, discontinue or limit, before or after the Closing Date, any assets, businesses or interests of the Buyer, the Company Entities or any of their respective Affiliates; (ii) any conditions relating toAPSG Parent, its Affiliates, or changes or restrictions in, the Insurance Company (the determination with respect to which APSG Parent will make) take any actions that could affect the normal and regular operations of any such assetsAPSG Parent, businesses its Affiliates, or interests which, in either case, could reasonably be expected to adversely impact the economic or business benefits to Insurance Company after the Buyer of the transactions contemplated by this Agreement; or (iii) any material modification or waiver of the terms and conditions of this AgreementClosing.
Appears in 1 contract
Samples: Merger Agreement (American Physicians Service Group Inc)
Notices and Consents. (a) Each of As promptly as practicable following the Buyer Execution Date, the Parties will (and the Sellers willSeller shall, and the Sellers will subject to applicable Law, use its best efforts to cause the Company Alon Entities and their Subsidiaries to, ) give any notices to, make any filings with, and use their reasonable best efforts all Commercially Reasonable Efforts to obtain any authorizations, consents Consents of third parties and approvals of, any Governmental Authority that are Authorities necessary or advisable in connection with the transactions contemplated herebyconsummation of the Contemplated Transactions, it being understood that nothing in this Agreement shall require, or be construed including Consents of the third parties set forth on Schedule 4.2. Subject to requireany applicable Law, the Buyer, the Sellers or any of the Company Entities to make any payment Parties shall cooperate with each other in exchanging information and assistance in connection with fulfilling such conditions precedent, other than legal and accounting fees and disbursements and regulatory filing fees and costs. The Sellers shall use their reasonable best efforts to give all notices to, and obtain all consents from, all obtaining any Consents of third parties and Governmental Authorities, provided, that are listed Buyer shall not be required to Dispose of any material assets or be required to refrain from doing any material business in Section 2.6(a)(v) particular jurisdictions if required by any Governmental Authority as a condition to the granting of any authorization necessary for the consummation of the Schedules. Each party shall cooperate fully with the other party and its Affiliates in promptly seeking Contemplated Transactions or as may be required to obtain all such authorizationsavoid, consents and approvals. The parties hereto shall not willfully take lift, vacate, or reverse any legislative, administrative, or judicial action that will have the effect of delaying, impairing or impeding the receipt of would otherwise cause any required consents, authorizations, orders and approvalsclosing condition not to be satisfied.
(b) Without limiting Buyer and Seller shall each give prompt notice to the generality other of the parties’ undertakings pursuant to Section 5.2(a), each receipt of the parties hereto shall use commercially reasonable efforts to: any written notice or other written communication from (i) respond to any inquiries by Person alleging that the consent of such Person is or may be required in connection with the Contemplated Transactions, (ii) any Governmental Authority in connection with respect to the transactions contemplated by this Agreement or any Ancillary Agreement; (ii) avoid the imposition of any order or the taking of any action that would restrainContemplated Transactions, alter or enjoin the transactions contemplated by this Agreement or any Ancillary Agreement; and (iii) in the event any order of a Governmental Authority adversely or other Person regarding the initiation or threat of initiation of any Claims or Proceedings against, relating to, or involving or otherwise affecting Buyer or Seller that relate to the consummation of the Contemplated Transactions, and (iv) any Person regarding the occurrence or nonoccurrence of any event the occurrence or nonoccurrence of which would be reasonably likely to (A) cause any condition to the obligations of the other Party to consummate the Contemplated Transactions not to be satisfied, (B) cause a Breach of the representations, warranties or covenants of such Party under this Agreement, or (C) delay or impede the ability of the parties Buyer or Seller, respectively, to consummate the transactions contemplated by this Agreement Contemplated Transactions or any Ancillary Agreement is issued, to have such order vacated or liftedfulfill their respective obligations set forth herein.
(c) All analysesBuyer and Seller each agree to cooperate and to use all Commercially Reasonable Efforts to vigorously contest and to resist any action, appearancesincluding legislative, meetings, discussions, presentations, memoranda, briefs, filings, argumentsadministrative or judicial action, and proposals made by to have vacated, lifted, reversed or on behalf overturned any Order (whether temporary, preliminary or permanent) of either party before any court or other Governmental Authority that is in effect and that restricts, prevents or prohibits the staff or regulators of any Governmental Authority, in connection with the transactions contemplated hereunder (but, for the avoidance of doubt, not including any interactions between the Company Entities or the Buyer with Governmental Authorities in the ordinary course of business, any notices or filings made in connection with the Name Change, any disclosure which is not permitted by Law or any disclosure containing confidential information) shall be disclosed to the other party hereunder in advance of any filing, submission or attendance, it being the intent that the parties will consult and cooperate with one another, and consider in good faith the views of one another, in connection with any such analyses, appearances, meetings, discussions, presentations, memoranda, briefs, filings, arguments, and proposals. Each party shall give notice to the other party with respect to any meeting, discussion, appearance or contact with any Governmental Authority or the staff or regulators of any Governmental Authority, with such notice being sufficient to provide the other party with the opportunity to attend and participate in such meeting, discussion, appearance or contact.
(d) Notwithstanding the foregoing, nothing in this Section 5.2 shall require, or be construed to require, the Buyer or any of its Affiliates to agree to (i) sell, hold, divest, discontinue or limit, before or after the Closing Date, any assets, businesses or interests consummation of the BuyerContemplated Transactions, including the Company Entities or any vigorous pursuit of their respective Affiliates; (ii) any conditions relating to, or changes or restrictions in, the operations all available avenues of any such assets, businesses or interests which, in either case, could reasonably be expected to adversely impact the economic or business benefits to the Buyer of the transactions contemplated by this Agreement; or (iii) any material modification or waiver of the terms administrative and conditions of this Agreementjudicial appeal and all available legislative action.
Appears in 1 contract
Notices and Consents. (a) Each of the Buyer and the Sellers willshall give all required -------------------- notices to third parties, and the Sellers will cause the Company Entities to, give any notices to, make any filings with, and shall use their its commercially reasonable best efforts to obtain any authorizations, consents and approvals of, any Governmental Authority material third-party Consents that are necessary in connection with the transactions contemplated hereby, it being understood that nothing in this Agreement shall require, or may be construed to require, the Buyer, the Sellers or any of the Company Entities to make any payment in connection with fulfilling such conditions precedent, other than legal and accounting fees and disbursements and regulatory filing fees and costs. The Sellers shall use their reasonable best efforts to give all notices to, and obtain all consents from, all third parties that are listed in Section 2.6(a)(v) of the Schedules. Each party shall cooperate fully with the other party and its Affiliates in promptly seeking to obtain all such authorizations, consents and approvals. The parties hereto shall not willfully take any action that will have the effect of delaying, impairing or impeding the receipt of any required consents, authorizations, orders and approvals.
(b) Without limiting the generality of the parties’ undertakings pursuant to Section 5.2(a), each of the parties hereto shall use commercially reasonable efforts to: (i) respond to any inquiries by any Governmental Authority with respect to the transactions contemplated by this Agreement or any Ancillary Agreement; (ii) avoid the imposition of any order or the taking of any action that would restrain, alter or enjoin the transactions contemplated by this Agreement or any Ancillary Agreement; and (iii) in the event any order of a Governmental Authority adversely affecting the ability of the parties to consummate the transactions contemplated by this Agreement or any Ancillary Agreement is issued, to have such order vacated or lifted.
(c) All analyses, appearances, meetings, discussions, presentations, memoranda, briefs, filings, arguments, and proposals made by or on behalf of either party before any Governmental Authority or the staff or regulators of any Governmental Authorityrequired, in connection with the transactions contemplated hereunder (butby this Agreement. Each Seller shall give all required notices to third parties, for the avoidance and shall use its commercially reasonable efforts to obtain all required Consents, including all required Consents of doubtGovernmental Entities and bondholders or lenders of Primestar or any of its Affiliates, not including and any interactions between the Company Entities other material third-party Consents that may be required or the that Buyer with Governmental Authorities in the ordinary course of businessreasonably may request, any notices or filings made in connection with the Name Changetransactions contemplated by this Agreement. Within five Business Days following the date of this Agreement (but in no event prior to approval of this Agreement by the Board of Directors of GM), Buyer and each Seller shall file any disclosure which is not permitted by Law or any disclosure containing confidential informationNotification and Report Forms and related materials that it may be required to file with the FTC and the Antitrust Division of the United States Department of Justice (the "Antitrust Division") shall be disclosed to under the other party hereunder in advance of any filing, submission or attendance, it being the intent that the parties will consult and cooperate with one anotherHSR Act, and consider in good faith shall make any further filings pursuant thereto that may be necessary, proper or advisable. As promptly as is practicable after the views date of one anotherthis Agreement, Buyer and each Seller shall take any additional action in connection with any such analysesother Consents of, appearances, meetings, discussions, presentations, memoranda, briefs, filings, arguments, and proposals. Each party shall give notice to the other party with respect to any meeting, discussion, appearance or contact with any Governmental Authority Entities and third parties that it may be required to give, make or obtain and shall refrain from taking any action the staff purpose or regulators effect of any Governmental Authority, with such notice being sufficient to provide the other party with the opportunity to attend and participate in such meeting, discussion, appearance or contact.
(d) Notwithstanding the foregoing, nothing in this Section 5.2 shall require, or be construed to require, the Buyer or any of its Affiliates to agree to (i) sell, hold, divest, discontinue or limit, before or after the Closing Date, any assets, businesses or interests of the Buyer, the Company Entities or any of their respective Affiliates; (ii) any conditions relating to, or changes or restrictions in, the operations of any such assets, businesses or interests which, in either case, which could reasonably be expected to adversely impact make it less likely that such Consents will be given, made or obtained on the economic terms provided for in this Agreement. Without limiting the generality of the foregoing, Buyer and each Seller shall: (i) cooperate in all respects with each other in connection with any filing, submission, adversarial proceeding or business benefits to the Buyer timing thereof; (ii) in connection with any investigation or other inquiry, including any proceeding initiated by a private party, keep the other parties hereto informed on a timely basis of any material communication received by such party from, or given by such party to, the FTC, the Antitrust Division, the FCC or any other Governmental Entity and of any material communication received or given in connection with any Action by a private party, in each case regarding any of the transactions contemplated by this Agreement, and permit any other party hereto to preview any material communication given by or to it; or and (iii) consult with each other, in advance of any material modification meeting or waiver conference with such Governmental Entities or in connection with any Action by a private party. Buyer and each Seller will use their commercially reasonable efforts to obtain such approvals as promptly as possible and, in this regard, provide all information reasonably requested, assist and cooperate with one another to make the necessary filings and take such steps as may be necessary to secure the non-objection of the terms relevant antitrust and conditions of this Agreementregulatory authorities.
Appears in 1 contract
Samples: Asset Purchase Agreement (Tci Satellite Entertainment Inc)
Notices and Consents. (a) The Seller shall, or shall cause SkateNation and its Subsidiaries to, give any notices to third parties, and shall cause SkateNation and its Subsidiaries to use its good faith efforts to obtain any third party consent, approval or authorization, required to consummate the transactions contemplated by this Agreement; provided, however, that no SkateNation Contract or other agreement or contract to which SkateNation or any of its Subsidiaries is a party shall be amended to increase the amount payable thereunder or to otherwise be more burdensome to SkateNation, any of its Subsidiaries or the Buyer after the Closing in order to obtain any such consent, approval or authorization without the Buyer's prior written consent (it being understood that an amendment for which the Buyer's prior written consent was obtained and that is made in conformity with such consent shall not constitute a breach by the Seller of any of the representations, warranties or covenants made by them herein). Notwithstanding the foregoing, the Buyer and Family Golf acknowledge and agree that Seller shall have no obligation to obtain the consent of any lender under the Loan Agreements. The Seller shall, and shall cause SkateNation and its Subsidiaries to, cooperate with the efforts of the Buyer and Family Golf, at the Buyer's and Family Golf's sole cost and expense, to obtain the consent of such lenders to the consummation of the transactions contemplated hereby. Buyer's obligations hereunder are not contingent upon (i) the consent of any or all lenders under the Loan Agreements or (ii) the receipt of estoppel certificates from any of the lessors under the Ground Leases or Space Leases. If any such consent or estoppel certificate is not obtained, the Buyer and Family Golf acknowledge and agree that the Buyer will, subject to the satisfaction of the other terms and conditions of this Agreement, pay, or cause to be paid, at Closing any and all amounts due under such Loan Agreements, including interest, penalties and other fees (including but not limited to any consent or assumption fees, but excluding any breakage costs), and will close the transactions as contemplated by this Agreement.
(b) Each of the Buyer Parties will (and the Sellers will, and the Sellers Seller will cause the Company Entities SkateNation and its Subsidiaries to, ) give any notices to, make any filings with, and use commercially reasonable efforts to obtain any authorizations, consents, declarations and approvals of Governmental Authorities in connection with the matters referred to in Section 3.01(b), Section 3.02(b), and Section 4.04 above. Without limiting the generality of the foregoing, each of the Parties will use its reasonable best efforts to promptly comply with any applicable requirements under the Xxxx-Xxxxx-Xxxxxx Act and the rules and regulations promulgated thereunder, as in effect from time to time (the "HSR Rules"), relating to filing and furnishing of information to the FTC and the Antitrust Division of the DOJ, the Parties' actions to include, without limitation: (i) using their reasonable best efforts to comply with any additional requests for documents or information made by the FTC, the DOJ or by a court with respect to the HSR Reports and related materials previously filed by the Parties hereto or by any other person which is part of the same "Person" (as defined in the Xxxx-Xxxxx-Xxxxxx Act and HSR Rules), and assisting the other Parties to so comply; (ii) taking all other action required by the Xxxx-Xxxxx-Xxxxxx Act or HSR Rules, (iii) using their reasonable best efforts to obtain any authorizations, consents and approvals of, any Governmental Authority that are necessary in connection with the transactions contemplated hereby, it being understood that nothing in this Agreement shall require, or be construed to require, the Buyer, the Sellers or any an early termination of the Company Entities to make any payment in connection with fulfilling such conditions precedent, other than legal applicable waiting period; and accounting fees and disbursements and regulatory filing fees and costs. The Sellers shall use their (iv) using its reasonable best efforts to give all notices to, and obtain all consents from, all third parties that are listed in Section 2.6(a)(v) of the Schedules. Each party shall cooperate fully with the other party and its Affiliates in promptly seeking to obtain cause all such authorizations, consents other Persons to cooperate and approvals. The parties hereto shall not willfully take any action that will have the effect of delaying, impairing or impeding the receipt of any required consents, authorizations, orders and approvals.
(b) Without limiting the generality of the parties’ undertakings pursuant to Section 5.2(a), each of the parties hereto shall use commercially reasonable efforts to: (i) respond to any inquiries by any Governmental Authority with respect to the transactions contemplated by this Agreement or any Ancillary Agreement; (ii) avoid the imposition of any order or the taking of any action that would restrain, alter or enjoin the transactions contemplated by this Agreement or any Ancillary Agreement; and (iii) in the event any order of a Governmental Authority adversely affecting the ability of the parties to consummate the transactions contemplated by this Agreement or any Ancillary Agreement is issued, to have such order vacated or lifted.
(c) All analyses, appearances, meetings, discussions, presentations, memoranda, briefs, filings, arguments, and proposals made by or on behalf of either party before any Governmental Authority or the staff or regulators of any Governmental Authority, in connection with the transactions contemplated hereunder (but, for the avoidance of doubt, not including any interactions between the Company Entities or the Buyer with Governmental Authorities in the ordinary course of business, any notices or filings made in connection with the Name Change, any disclosure which is not permitted by Law or any disclosure containing confidential information) shall be disclosed to the other party hereunder in advance of any filing, submission or attendance, it being the intent that the parties will consult and cooperate with one another, and consider in good faith the views of one another, in connection with any such analyses, appearances, meetings, discussions, presentations, memoranda, briefs, filings, arguments, and proposals. Each party shall give notice to the other party with respect to any meeting, discussion, appearance or contact with any Governmental Authority or the staff or regulators of any Governmental Authority, with such notice being sufficient to provide the other party with the opportunity to attend and participate assist in such meeting, discussion, appearance or contactcompliance.
(d) Notwithstanding the foregoing, nothing in this Section 5.2 shall require, or be construed to require, the Buyer or any of its Affiliates to agree to (i) sell, hold, divest, discontinue or limit, before or after the Closing Date, any assets, businesses or interests of the Buyer, the Company Entities or any of their respective Affiliates; (ii) any conditions relating to, or changes or restrictions in, the operations of any such assets, businesses or interests which, in either case, could reasonably be expected to adversely impact the economic or business benefits to the Buyer of the transactions contemplated by this Agreement; or (iii) any material modification or waiver of the terms and conditions of this Agreement.
Appears in 1 contract
Notices and Consents. (a) Each From the date hereof through the Closing, subject to the terms and conditions herein provided, including Section 7.2, each of the Buyer and the Sellers willSeller, Seller Parent, and the Sellers will cause the Company Entities to, give any notices to, make any filings with, and Buyer agrees to use their its reasonable best efforts to obtain any authorizations, consents and approvals of, any Governmental Authority that are necessary in connection with the transactions contemplated hereby, it being understood that nothing in this Agreement shall requiretake, or cause to be construed to require, the Buyer, the Sellers or any of the Company Entities to make any payment in connection with fulfilling such conditions precedent, other than legal and accounting fees and disbursements and regulatory filing fees and costs. The Sellers shall use their reasonable best efforts to give all notices to, and obtain all consents fromtaken, all third parties that are listed in Section 2.6(a)(v) of the Schedules. Each party shall cooperate fully with the other party actions and its Affiliates in to do, or cause to be done, all things necessary, proper or advisable to consummate and make effective as promptly seeking to obtain all such authorizations, consents and approvals. The parties hereto shall not willfully take any action that will have the effect of delaying, impairing or impeding the receipt of any required consents, authorizations, orders and approvals.
(b) Without limiting the generality of the parties’ undertakings pursuant to Section 5.2(a), each of the parties hereto shall use commercially reasonable efforts to: (i) respond to any inquiries by any Governmental Authority with respect to as practicable the transactions contemplated by this Agreement or and to cooperate in good faith with the other in connection with the foregoing, including using its reasonable best efforts (i) to obtain all consents, approvals and authorizations that are required to be obtained under any Ancillary Agreement; Applicable Law, (ii) avoid the imposition of to lift or rescind any injunction or restraining order or the taking of any action that would restrain, alter or enjoin the transactions contemplated by this Agreement or any Ancillary Agreement; and (iii) in the event any other order of a Governmental Authority adversely affecting the ability of the parties hereto to consummate the transactions contemplated hereby, (iii) to effect all necessary registrations and filings, including, but not limited to, filings under the Hart-Scott-Rodino Act and submissions of information requested by Govxxxxxxxxx Xxxxxxxs, and (iv) to fulfill all conditions to this Agreement or any Ancillary Agreement is issued, to have such order vacated or liftedAgreement.
(cb) All analyses, appearances, meetings, discussions, presentations, memoranda, briefs, filings, argumentsIn addition to the foregoing, and proposals made by or on behalf not in limitation thereof, each of either party before the Seller, Seller Parent and Buyer covenants and agrees to file the notices required to be filed with any Governmental Authority or the staff or regulators of any Governmental Authority, Person in connection with the transactions contemplated hereunder hereby within five (but5) Business Days of the date hereof, for including but not limited to, filing premerger notification under the avoidance Hart-Scott-Rodino Act (which shall be filed within two (2) Business Dxxx xx xxx xxxx xereof and each party shall request early termination of doubtthe waiting period) and all other notices, not including registrations, applications or other filings that may be required with any interactions between the Company Entities or other Governmental Entities. The Seller, Seller Parent, and the Buyer with Governmental Authorities in the ordinary course of businessfurther covenant and agree, any notices or filings made in connection with the Name Change, any disclosure which is not permitted by Law or any disclosure containing confidential information) shall be disclosed to the other party hereunder in advance of any filing, submission or attendance, it being the intent that the parties will consult and cooperate with one another, and consider in good faith the views of one another, in connection with any such analyses, appearances, meetings, discussions, presentations, memoranda, briefs, filings, arguments, and proposals. Each party shall give notice to the other party with respect to any meetinga threatened or pending preliminary or permanent injunction or other order, discussiondecree or ruling or statute, appearance rule, regulation or contact executive order that would adversely affect the ability of the parties hereto to consummate the transactions contemplated hereby, to use their respective reasonable best efforts to prevent the entry, enactment or promulgation thereof, as the case may be. Further, each of Buyer and Seller will be given notice of and a reasonable opportunity to participate in contacts with any Governmental Authority Entity regarding antitrust or merger control matters. To the staff or regulators of any Governmental Authorityextent permitted by Applicable Law, with such notice being sufficient to Buyer and Seller shall provide the other party with the opportunity to attend make copies of all material correspondence, filings or communications (or memoranda setting forth the substance thereof) between such party or its representatives, on the one hand, and participate any Governmental Entity, on the other hand, with respect to this Agreement or the transactions contemplated by this Agreement, except for documents filed pursuant to Item 4(c) of the Hart-Scott-Rodino Notification and Report Form or communications regaxxxxx xxx xxxx xx documents or information submitted in response to any request for additional information or documents pursuant to the Hart-Scott-Rodino Act which reveal Seller's or Buyer's negotiating obxxxxxxxx xx xxxxxegies or purchase price expectations. Buyer and Seller acknowledge that all such meeting, discussion, appearance or contactinformation provided pursuant to the foregoing sentence shall be subject to the terms of the Confidentiality Agreement.
(dc) Notwithstanding Buyer and Seller shall notify and keep the foregoing, nothing in this Section 5.2 shall require, or be construed to require, the Buyer or any of its Affiliates to agree other advised as to (i) sellany material communication from the Federal Trade Commission, hold, divest, discontinue the United States Department of Justice or limit, before or after the Closing Date, any assets, businesses or interests other Governmental Entity regarding any of the Buyer, the Company Entities or any of their respective Affiliates; transactions contemplated hereby and (ii) any conditions relating toAction pending and known to such party or, to its knowledge, threatened, which challenges the transactions contemplated hereby. Except as provided herein, Buyer, Seller and Seller Parent shall not take any action inconsistent with their obligations under this Agreement which would materially hinder or changes or restrictions in, delay the operations of any such assets, businesses or interests which, in either case, could reasonably be expected to adversely impact the economic or business benefits to the Buyer consummation of the transactions contemplated by this Agreement; .
(d) All documents required to be filed by any of Buyer or (iii) Seller or any of their respective Affiliates with any Governmental Entity in connection with this Agreement or the transactions contemplated by this Agreement will comply in all material modification or waiver respects with the provisions of the terms and conditions of this AgreementApplicable Law.
Appears in 1 contract
Samples: Stock Purchase Agreement (Affiliated Computer Services Inc)
Notices and Consents. (a) Each of Prior to the Closing, Seller and Buyer and the Sellers will, and the Sellers will cause the Company Entities to, give any notices to, make any filings with, and use their commercially reasonable best efforts to give all notices required to be given and to obtain all material consents, approvals or authorizations of any authorizations, consents and approvals of, third parties (including any Governmental Authority Authority) that are necessary required in connection with the transactions contemplated herebyby this Agreement; provided, it being understood that nothing however, that, in this Agreement no case whatsoever shall require, or be construed to require, the Buyer, the Sellers or any of the Company Entities to make any payment in connection with fulfilling such conditions precedent, other than legal and accounting fees and disbursements and regulatory filing fees and costs. The Sellers shall use their reasonable best efforts to give all notices to, and obtain all consents from, all third parties that are listed in Section 2.6(a)(v) of the Schedules. Each party shall cooperate fully with the other party and its Affiliates in promptly seeking to obtain all such authorizations, consents and approvals. The parties hereto shall not willfully take any action that will have the effect of delaying, impairing or impeding the receipt of any required consents, authorizations, orders and approvals.
(b) Without limiting the generality of the parties’ undertakings pursuant to Section 5.2(a), each of the parties hereto shall use “commercially reasonable efforts to: (i) respond efforts” be deemed to any inquiries by any Governmental Authority with respect to the transactions contemplated by this Agreement or any Ancillary Agreement; (ii) avoid the imposition of any order or the taking of any action that would restrain, alter or enjoin the transactions contemplated by this Agreement or any Ancillary Agreement; and (iii) in the event any order of a Governmental Authority adversely affecting the ability of the parties to consummate the transactions contemplated by this Agreement or any Ancillary Agreement is issued, to have such order vacated or lifted.
(c) All analyses, appearances, meetings, discussions, presentations, memoranda, briefs, filings, arguments, and proposals made by or on behalf of either party before any Governmental Authority or the staff or regulators of any Governmental Authority, in connection with the transactions contemplated hereunder (but, for the avoidance of doubt, not including any interactions between the Company Entities or the Buyer with Governmental Authorities in the ordinary course of business, any notices or filings made in connection with the Name Change, any disclosure which is not permitted by Law or any disclosure containing confidential information) shall be disclosed to the other party hereunder in advance of any filing, submission or attendance, it being the intent that the parties will consult and cooperate with one another, and consider in good faith the views of one another, in connection with any such analyses, appearances, meetings, discussions, presentations, memoranda, briefs, filings, arguments, and proposals. Each party shall give notice to the other party with respect to any meeting, discussion, appearance or contact with any Governmental Authority or the staff or regulators of any Governmental Authority, with such notice being sufficient to provide the other party with the opportunity to attend and participate in such meeting, discussion, appearance or contact.
(d) Notwithstanding the foregoing, nothing in this Section 5.2 shall require, or be construed to require, the require Buyer or any of its Affiliates to agree incur any material fees or material out-of-pocket expenses, or grant any Material Concession (as defined below), in connection therewith. For the avoidance of doubt, this Section 5.5(a) shall not be deemed to (i) sellapply with respect to those consents, hold, divest, discontinue or limit, before or after the Closing Date, any assets, businesses or interests approvals and authorizations contemplated by Section 6.3. Without limitation of the foregoing, prior to the Closing, Seller will use commercially reasonable efforts to assist Buyer, at Buyer’s request, in Buyer obtaining license agreements from third parties for their Other Federal Business Licensed Intellectual Property on terms which are substantially similar to those on which Seller has licensed such Intellectual Property from such third parties, provided, that, in no event shall Seller or any its Affiliates be required to incur any material fees or material out-of-pocket expenses, or grant any Material Concession (as defined below), in connection therewith.
(b) Notwithstanding anything contained in this Agreement to the Company Entities contrary, Buyer shall not be required to undertake any action or desist from taking any action (or cause any of its Affiliates to undertake any such actions or to desist from taking any such actions) pursuant to this Article V or Article VI if such action or inaction (a) would require Buyer or any of their respective Affiliates; (ii) its Affiliates to enter into any conditions relating toagreement, consent decree or other commitment requiring Buyer or any of its Affiliates to divest or hold separate or license all or any portion of the assets or business of, or changes to limit or restrictions inmodify the conduct of all or any portion of the business of, Buyer or any of its Affiliates (including, after the Closing, the operations Purchased Assets or any assets or properties of CIBER Federal International), (b) would have, or would be reasonably expected to have, a material adverse effect on the business of Buyer or any of its Subsidiaries (including, after the Closing, the Purchased Assets or any assets or properties of CIBER Federal International), taken as a whole (the actions referred to in clause (a) or (b) above, a “Material Concession”), or (c) would require Buyer or any of its Affiliates to litigate, pursue or defend any Action challenging any portion of the Transaction as violative of any such assetsantitrust laws.
(c) Prior to the Closing, businesses Buyer and Seller shall cooperate with one another in determining whether any action by or interests whichin respect of, or filing with, any Governmental Authority, is required or reasonably appropriate, or any action, consent, approval or waiver from any party to any Material Contract is required or reasonably appropriate, in either case, could reasonably be expected to adversely impact connection with the economic or business benefits to the Buyer consummation of the transactions contemplated by this Agreement; or (iii) any material modification or waiver of . Subject to the terms and conditions of this AgreementAgreement and the applicable Confidentiality Agreements, in taking such actions or making any such filings, prior to the Closing, Buyer and Seller shall use commercially reasonable efforts to furnish information required of any Governmental Authority in connection therewith (subject to confidential treatment in the case of any information provided by Buyer to the extent reasonably requested by Buyer) and timely seek to obtain any such actions, consents, approvals or waivers; provided, however, that, in no case whatsoever shall Buyer or any of its Affiliates be required to incur any material fees or material out-of-pocket expenses, or grant any Material Concession (as defined below), in connection therewith.
Appears in 1 contract
Samples: Asset Purchase Agreement (Ciber Inc)
Notices and Consents. (a) Each The Insurance Company will obtain a written Consent or certified resolutions by the Board of Directors of the Buyer Insurance Company approving of the Merger and the Sellers will, and the Sellers will cause the Company Entities to, give any notices to, make any filings with, and use their reasonable best efforts to obtain any authorizations, consents and approvals of, any Governmental Authority that are necessary in connection with the transactions contemplated hereby, it being understood that nothing in this Agreement shall require, or be construed to require, the Buyer, the Sellers or any of the Company Entities to make any payment in connection with fulfilling such conditions precedent, other than legal and accounting fees and disbursements and regulatory filing fees and costs. The Sellers shall use their reasonable best efforts to give all notices to, and obtain all consents from, all third parties that are listed in Section 2.6(a)(v) of the Schedules. Each party shall cooperate fully with the other party and its Affiliates in promptly seeking to obtain all such authorizations, consents and approvals. The parties hereto shall not willfully take any action that will have the effect of delaying, impairing or impeding the receipt of any required consents, authorizations, orders and approvalsTransactions as set forth herein.
(b) Without limiting The APSG Parent will obtain a Consent by the generality Board of Directors of the parties’ undertakings pursuant to Section 5.2(a), each APSG Parent approving of the parties hereto shall use commercially reasonable efforts to: (i) respond to any inquiries by any Governmental Authority with respect to Merger and the transactions contemplated by this Agreement or any Ancillary Agreement; (ii) avoid the imposition of any order or the taking of any action that would restrain, alter or enjoin the transactions contemplated by this Agreement or any Ancillary Agreement; and (iii) in the event any order of a Governmental Authority adversely affecting the ability of the parties to consummate the transactions contemplated by this Agreement or any Ancillary Agreement is issued, to have such order vacated or liftedTransactions as set forth herein.
(c) All analyses, appearances, meetings, discussions, presentations, memoranda, briefs, filings, arguments, and proposals made by or on behalf of either party before any Governmental Authority or the staff or regulators The Insurance Company will (subject to SEC approval of any Governmental Authority, proxy or joint proxy information that may be used in connection with such a meeting or submission to a vote) call and hold a meeting of its Subscribers as soon as practicable after the transactions contemplated hereunder (butdate hereof, for at which meeting the avoidance Board of doubtDirectors of the Insurance Company will submit and recommend the Agreement and the Transactions described herein to its Subscribers, not including any interactions between and, if the Company Entities or requisite approval is obtained, will undertake promptly to consummate the Buyer with Governmental Authorities in Merger and the ordinary course of business, any notices or filings made in connection with the Name Change, any disclosure which is not permitted by Law or any disclosure containing confidential information) shall be disclosed to the other party hereunder in advance of any filing, submission or attendance, it being the intent that the parties will consult and cooperate with one another, and consider in good faith the views of one another, in connection with any such analyses, appearances, meetings, discussions, presentations, memoranda, briefs, filings, arguments, and proposals. Each party shall give notice to the other party with respect to any meeting, discussion, appearance or contact with any Governmental Authority or the staff or regulators of any Governmental Authority, with such notice being sufficient to provide the other party with the opportunity to attend and participate in such meeting, discussion, appearance or contactTransactions as set forth herein.
(d) Notwithstanding The APSG Parent will (subject to SEC approval of any proxy or joint proxy information that may be used in connection with such a meeting or submission to a vote) call and hold a meeting of its shareholders as soon as practicable after the date hereof, at which meeting the Board of Directors of such APSG Party will, subject to its fiduciary obligations to shareholders, submit and recommend the Agreement and the Transactions described herein to its shareholders, and, if the requisite approval is obtained, will undertake promptly to consummate the Merger and the Transactions as set forth herein.
(e) The Insurance Company will make the necessary notifications to or filings with TDI, AID, the SEC and any other relevant state or federal regulatory agencies, including but not limited to obtaining a No-Action Letter from the SEC stating that the Insurance Company Common Stock and Insurance Company Preferred Stock, issued pursuant to the Conversion, are exempt from registration with the SEC (the “ SEC No-Action Letter ”) and will use its Best Efforts to provide the APSG Parties with all the information needed to make the necessary notifications and filings with the SEC.
(f) Each APSG Party will make notifications to or filings with TDI, AID, the SEC, and any other relevant state or federal regulatory agencies, which are required to be made by any APSG Party in order to consummate the Merger and the Transactions as set forth herein.
(g) The Insurance Company will give any notices to third parties, and will use its Best Efforts to obtain any third party Consents listed on Schedule 4.3 , or that APSG Parent reasonably may otherwise request in connection with the matters referred to in Section 4.3 .
(h) Each APSG Party will give any notices to third parties, and will use its Best Efforts to obtain any third party Consents listed on Schedule 3.3 , or that the Insurance Company reasonably may otherwise request in connection with the matters referred to in Section 3.3 .
(i) Each Party will cooperate and use its Best Efforts to agree jointly on a method to overcome any objections by any Governmental Body to the Transactions. Without limiting the foregoing, nothing each Party (i) will file any notification and report forms and related material that such Party may be required to file under the HSR Act, (ii) if requested by APSG Parent, will use their Best Efforts to obtain an early termination of the applicable waiting period, and (iii) will make any further filings pursuant thereto that may be necessary, proper, or advisable in connection therewith. APSG Parent and the Insurance Company will bear the cost of the HSR Act filing fee equally. No Party shall be obligated to file a suit or to appeal from any adverse ruling by the Commissioner of TDI or the Commissioner of AID, and neither the APSG Parent nor the Insurance Company shall be obligated to make any material changes in any lawful, good faith management policy in order to gain such approval.
(j) Nothing in this Section 5.2 shall requirewill require that (i) APSG Parent or its Affiliates divest, sell, or be construed to require, the Buyer or hold separately any of its Affiliates to agree to (i) sellassets or properties, hold, divest, discontinue or limit, before or after the Closing Date, any assets, businesses or interests of the Buyer, the Company Entities or any of their respective Affiliates; (ii) any conditions relating toAPSG Parent, its Affiliates, or changes or restrictions in, the Insurance Company (the determination with respect to which APSG Parent will make) take any actions that could affect the normal and regular operations of any such assetsAPSG Parent, businesses its Affiliates, or interests which, in either case, could reasonably be expected to adversely impact the economic or business benefits to Insurance Company after the Buyer of the transactions contemplated by this Agreement; or (iii) any material modification or waiver of the terms and conditions of this AgreementClosing.
Appears in 1 contract
Samples: Merger Agreement (American Physicians Insurance CO)
Notices and Consents. (a) Each of the Buyer parties prior to the Closing Date will give all notices to third parties and the Sellers will, governmental entities and the Sellers will cause the Company Entities to, give any notices to, make any filings with, and use their its reasonable best efforts to obtain any authorizations, all governmental and material third party consents and approvals of, any Governmental Authority that are necessary required in connection with the transactions contemplated hereby, it being understood that nothing in by this Agreement shall require, or be construed to require, the Buyer, the Sellers or any of the Company Entities to make any payment in connection with fulfilling such conditions precedent, other than legal and accounting fees and disbursements and regulatory filing fees and costs. The Sellers shall use their reasonable best efforts to give all notices to, and obtain all consents from, all third parties that are listed in Section 2.6(a)(v) of the Schedules. Each party shall cooperate fully with the other party and its Affiliates in promptly seeking to obtain all such authorizations, consents and approvals. The parties hereto shall not willfully take any action that will have the effect of delaying, impairing or impeding the receipt of any required consents, authorizations, orders and approvalsAgreement.
(b) Without limiting the generality In furtherance and not in limitation of the parties’ undertakings pursuant to Section 5.2(a)foregoing, each of the parties hereto shall use commercially reasonable efforts to: agrees to (i) respond file a Notification and Report Form with the Federal Trade Commission (the “FTC”) and the Antitrust Division of the United States Department of Justice (the “DOJ”) under the HSR Act as promptly as practicable, and in any event within 10 Business Days following the execution and delivery of this Agreement, (ii) file as promptly as practicable any filings required under the Non-US Competition Laws, (iii) if so requested in writing by Sxxx or MMI, file as promptly as practicable with CFIUS a notice with respect to the transactions contemplated by the Agreement pursuant to the Exon-Fxxxxx Provisions, and (iv) use its reasonable best efforts to take or cause to be taken all actions necessary, proper or advisable to cause the expiration or early termination of the applicable waiting periods with respect to the approval of the Merger under the HSR Act, any inquiries applicable Non-US Competition Laws and the Exon-Fxxxxx Provisions, and to make all further filings pursuant thereto that may be necessary, proper or advisable.
(c) Each party will, in connection with the efforts referenced in Section 6.2(b) to obtain all requisite approvals and authorizations for the transactions contemplated by this Agreement, use its reasonable best efforts to (i) cooperate in all respects with each other in connection with any Governmental Authority filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by a private party, (ii) keep the other party reasonably informed of the status of matters related to the transactions contemplated by this Agreement, including furnishing the other with any written notices or other communications received by such party from, or given by such party to, the FTC, the DOJ, CFIUS (if applicable) or any other U.S. or foreign governmental entity and of any communication received or given in connection with any proceeding by a private party, in each case regarding any of the transactions contemplated by the Agreement and (iii) permit the other party to review any communication given by it to, and consult with each other in advance of any meeting or conference with, the FTC, the DOJ, CFIUS (if applicable) or any other U.S. or foreign governmental entity or, in connection with any proceeding by a private party, with any other person, and to the extent permitted by the FTC, the DOJ, CFIUS (if applicable) or such other applicable governmental entity or other person, give the other party the opportunity to attend and participate in such meetings and conferences in accordance with applicable law.
(d) In furtherance and not in limitation of the covenants of the parties contained in Sections 6.2(b) and 6.2(c), each party will use its reasonable best efforts to resolve objections, if any, as may be asserted with respect to the transactions contemplated by this Agreement under the HSR Act, the Exon-Fxxxxx Provisions (if applicable) or any Ancillary Agreement; (ii) avoid the imposition of applicable Non-US Competition Law, including using reasonable best efforts to defend any order lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the taking consummation of any action that would restrain, alter or enjoin the transactions contemplated hereby, including seeking to have any stay or temporary restraining order entered by this Agreement any court or other governmental entity vacated or reversed. In the event that any administrative or judicial action or proceeding is instituted (or threatened to be instituted) by a governmental entity or private party challenging the Merger or any Ancillary Agreement; and (iii) in the event any order of a Governmental Authority adversely affecting the ability of the parties to consummate the transactions other transaction contemplated by this Agreement Agreement, or any Ancillary Agreement is issuedother agreement contemplated hereby, each party will cooperate with the other and use its respective reasonable best efforts to contest and resist any such action or proceeding and to have such order vacated vacated, lifted, reversed or lifted.
(c) All analysesoverturned any decree, appearancesjudgment, meetingsinjunction or other order, discussionswhether temporary, presentationspreliminary or permanent, memorandathat is in effect and that prohibits, briefs, filings, arguments, and proposals made by prevents or on behalf of either party before any Governmental Authority or the staff or regulators of any Governmental Authority, in connection with the transactions contemplated hereunder (but, for the avoidance of doubt, not including any interactions between the Company Entities or the Buyer with Governmental Authorities in the ordinary course of business, any notices or filings made in connection with the Name Change, any disclosure which is not permitted by Law or any disclosure containing confidential information) shall be disclosed to the other party hereunder in advance of any filing, submission or attendance, it being the intent that the parties will consult and cooperate with one another, and consider in good faith the views of one another, in connection with any such analyses, appearances, meetings, discussions, presentations, memoranda, briefs, filings, arguments, and proposals. Each party shall give notice to the other party with respect to any meeting, discussion, appearance or contact with any Governmental Authority or the staff or regulators of any Governmental Authority, with such notice being sufficient to provide the other party with the opportunity to attend and participate in such meeting, discussion, appearance or contact.
(d) Notwithstanding the foregoing, nothing in this Section 5.2 shall require, or be construed to require, the Buyer or any of its Affiliates to agree to (i) sell, hold, divest, discontinue or limit, before or after the Closing Date, any assets, businesses or interests of the Buyer, the Company Entities or any of their respective Affiliates; (ii) any conditions relating to, or changes or restrictions in, the operations of any such assets, businesses or interests which, in either case, could reasonably be expected to adversely impact the economic or business benefits to the Buyer restricts consummation of the transactions contemplated by this Agreement; .
(e) Notwithstanding anything to the contrary in this Agreement, in connection with any filing or (iii) submission required or action to be taken by either Sxxx or MMI to consummate the Merger, Sxxx or MMI will not be required to enter into any material modification agreement, consent decree, mitigation agreement or waiver other commitment requiring Sxxx or MMI or any of their respective Subsidiaries to divest or hold separate assets that would reduce by 5% or more the aggregate tonnage of ferrous scrap processed, on an annualized basis, by the parties and their Subsidiaries, taken as a whole, as compared with the operations of the terms parties and conditions their Subsidiaries for the 12 months ended June 30, 2007, or to take any other action (including in relation to the MMI assets or business after the Closing Date) that would have a material adverse effect on the business, financial condition, operations or results of operation of Sxxx or MMI and their respective Subsidiaries, in each case, taken as a whole, or on the ability of MMI or Sxxx to consummate the Merger or perform their respective obligations under this Agreement.
Appears in 1 contract
Notices and Consents. (a) Each of the Buyer and the Sellers will, and the Sellers will cause the Company Entities to, give any notices to, make any filings with, and use their reasonable best efforts to obtain any authorizations, consents and approvals of, any Governmental Authority that are necessary in connection with the transactions contemplated hereby, it being understood that nothing in this Agreement shall require, or be construed to require, the Buyer, the Sellers or any of the Company Entities to make any payment in connection with fulfilling such conditions precedent, other than legal and accounting fees and disbursements and regulatory filing fees and costs. The Sellers Seller Parties shall use their commercially reasonable best efforts to give all notices to, and obtain all consents from, all to third parties that are listed in Section 2.6(a)(v) of the Schedules. Each party shall cooperate fully with the other party and its Affiliates in promptly seeking to obtain all third party approvals, consents, novations and waivers required to be obtained or made by any of the Seller Parties prior to consummation of the transactions contemplated herein. The Buyers hereby agree to provide all reasonably requested assistance and to cooperate with any reasonable request made by the Seller Parties' in the Seller Parties' efforts to obtain such authorizations, consents and approvalsthird party consents. The parties hereto shall not willfully take any action that will have filed a Notification and Report Form and related material with the effect of delaying, impairing or impeding Federal Trade Commission and the receipt of any required consents, authorizations, orders and approvals.
(b) Without limiting the generality Antitrust Division of the parties’ undertakings pursuant to Section 5.2(a)United States Department of Justice under the Hart-Scott-Rodino Act, each of the parties hereto shall and will use commercially reasonable efforts to: (i) respond to any inquiries by any Governmental Authority with respect to the transactions contemplated by this Agreement or any Ancillary Agreement; (ii) avoid the imposition of any order or the taking of any action that would restrain, alter or enjoin the transactions contemplated by this Agreement or any Ancillary Agreement; and (iii) in the event any order of a Governmental Authority adversely affecting the ability of the parties tx xxxxxx xxxxxxxxe to consummate the transactions contemplated by this Agreement and the Ancillary Agreements and will make all further filings with the Federal Trade Commission or the Antitrust Division of the United States Department of Justice pursuant thereto that may be necessary, proper or advisable. The Seller Parties shall, prior to the Closing Date, diligently pursue and complete any Ancillary Agreement duties imposed upon the Companies or Sellers under any applicable state or provincial environmental transfer act.
(b) The Seller Parties and the Buyers agree that, in the event any consent, approval or authorization necessary or desirable to preserve for the US Company and the Canadian Buyer any right or benefit under any Contract or arrangement to which any Seller Parties or either Company is issueda party is not obtained prior to the Closing, the Seller Parties will, subsequent to have the Closing, cooperate with the Buyer Parties in attempting to obtain such order vacated consent, approval or liftedauthorization as promptly thereafter as practicable. If such consent, approval or authorization cannot be obtained, the Seller Parties shall use commercially reasonable efforts to provide the US Company and the Canadian Buyer with the rights and benefits of the affected Contract or arrangement for the term of such Contract or arrangement, and, if the Seller Parties provide such rights and benefits, the US Company and the Canadian Buyer shall assume the obligations and burdens thereunder.
(c) All analysesThe Buyers shall use their commercially reasonable efforts to give all notices to third parties and to obtain all third party approvals, appearancesconsents, meetings, discussions, presentations, memoranda, briefs, filings, arguments, novations and proposals waivers required to be obtained or made by or on behalf of either party before any Governmental Authority or the staff or regulators of any Governmental Authority, in connection with the transactions contemplated hereunder (but, for the avoidance of doubt, not including any interactions between the Company Entities or the Buyer with Governmental Authorities in the ordinary course of business, any notices or filings made in connection with the Name Change, any disclosure which is not permitted by Law or any disclosure containing confidential information) shall be disclosed to the other party hereunder in advance of any filing, submission or attendance, it being the intent that the parties will consult and cooperate with one another, and consider in good faith the views of one another, in connection with any such analyses, appearances, meetings, discussions, presentations, memoranda, briefs, filings, arguments, and proposals. Each party shall give notice to the other party with respect to any meeting, discussion, appearance or contact with any Governmental Authority or the staff or regulators of any Governmental Authority, with such notice being sufficient to provide the other party with the opportunity to attend and participate in such meeting, discussion, appearance or contact.
(d) Notwithstanding the foregoing, nothing in this Section 5.2 shall require, or be construed to require, the Buyer or any of its Affiliates the Buyers prior to agree to (i) sell, hold, divest, discontinue or limit, before or after the Closing Date, any assets, businesses or interests of the Buyer, the Company Entities or any of their respective Affiliates; (ii) any conditions relating to, or changes or restrictions in, the operations of any such assets, businesses or interests which, in either case, could reasonably be expected to adversely impact the economic or business benefits to the Buyer consummation of the transactions contemplated by this Agreement; or (iii) any material modification or waiver of herein, including, without limitation, with respect to the terms and conditions of this AgreementBarnes Credit Facilities.
Appears in 1 contract
Samples: Membership Interest and Asset Purchase Agreement (Barnes Group Inc)
Notices and Consents. (a) Each of the Buyer and the Sellers willGreinke Party will give any notices to third parties, and will use its Best Efforts to obtain any third party Consents listed on Schedule 4.3, or that UFEN reasonably may otherwise request in connection with the Sellers matters referred to in Sections 3.2 and 4.3. Each Greinke Party will cause the Company Entities to, give any notices to, make any filings with, and use their reasonable best efforts its Best Efforts to obtain any authorizationsConsents of Governmental Bodies, consents and approvals ofif any, required or reasonably deemed advisable by UFEN pursuant to any Governmental Authority that are necessary applicable Law in connection with the transactions contemplated hereby, it being understood that nothing in this Agreement shall require, or be construed to require, the Buyer, the Sellers or any of the Company Entities to make any payment Transactions including in connection with fulfilling such conditions precedent, other than legal the matters referred to in Sections 3.2 and accounting fees and disbursements and regulatory filing fees and costs. The Sellers shall use their reasonable best efforts to give all notices to, and obtain all consents from, all third parties that are listed in Section 2.6(a)(v) of the Schedules. Each party shall cooperate fully with the other party and its Affiliates in promptly seeking to obtain all such authorizations, consents and approvals. The parties hereto shall not willfully take any action that will have the effect of delaying, impairing or impeding the receipt of any required consents, authorizations, orders and approvals4.3.
(b) Without limiting UFEN will give any notices to third parties, and will use its Best Efforts to obtain any third party Consents listed on Schedule 5.3, that CFS reasonably may otherwise request in connection with the generality matters referred to in Section 5.3. UFEN will give any notices to, make any filings with, and use its Best Efforts to obtain any Consents of the parties’ undertakings Governmental Bodies, if any, required or reasonably deemed advisable by CFS pursuant to any applicable Law in connection with the Transactions including in connection with the matters referred to in Section 5.2(a), each of the parties hereto shall use commercially reasonable efforts to: (i) respond to any inquiries by any Governmental Authority with respect to the transactions contemplated by this Agreement or any Ancillary Agreement; (ii) avoid the imposition of any order or the taking of any action that would restrain, alter or enjoin the transactions contemplated by this Agreement or any Ancillary Agreement; and (iii) in the event any order of a Governmental Authority adversely affecting the ability of the parties to consummate the transactions contemplated by this Agreement or any Ancillary Agreement is issued, to have such order vacated or lifted5.3.
(c) All analysesEach Party will cooperate and use its Best Efforts to agree jointly on a method to overcome any objections by any Governmental Body to the Transactions. Without limiting the foregoing, appearanceseach Party (i) if requested by UFEN, meetings, discussions, presentations, memoranda, briefs, filings, argumentswill use its Best Efforts to obtain an early termination of the applicable waiting period, and proposals made by (ii) and will make any further filings pursuant thereto that may be necessary, proper, or on behalf of either party before any Governmental Authority or the staff or regulators of any Governmental Authority, advisable in connection with the transactions contemplated hereunder (but, for the avoidance of doubt, not including any interactions between the Company Entities or the Buyer with Governmental Authorities in the ordinary course of business, any notices or filings made in connection with the Name Change, any disclosure which is not permitted by Law or any disclosure containing confidential information) shall be disclosed to the other party hereunder in advance of any filing, submission or attendance, it being the intent that the parties will consult and cooperate with one another, and consider in good faith the views of one another, in connection with any such analyses, appearances, meetings, discussions, presentations, memoranda, briefs, filings, arguments, and proposals. Each party shall give notice to the other party with respect to any meeting, discussion, appearance or contact with any Governmental Authority or the staff or regulators of any Governmental Authority, with such notice being sufficient to provide the other party with the opportunity to attend and participate in such meeting, discussion, appearance or contacttherewith.
(d) Notwithstanding the foregoing, nothing Nothing in this Section 5.2 shall require6.2 will require that (i) UFEN or its Affiliates divest, sell, or be construed to require, the Buyer or hold separately any of its Affiliates to agree to (i) sellassets or properties, hold, divest, discontinue or limit, before or after the Closing Date, any assets, businesses or interests of the Buyer, the Company Entities or any of their respective Affiliates; (ii) any conditions relating toUFEN, its Affiliates, or changes or restrictions in, CFS (the determination with respect to which UFEN will make) take any actions that could affect the normal and regular operations of any such assetsUFEN, businesses its Affiliates, or interests which, in either case, could reasonably be expected to adversely impact CFS after the economic or business benefits to the Buyer of the transactions contemplated by this Agreement; or (iii) any material modification or waiver of the terms and conditions of this AgreementClosing.
Appears in 1 contract
Samples: Mutual Stock Purchase Agreement (United Fuel & Energy Corp)
Notices and Consents. (a) Each of the Buyer and the Sellers The Company will, and the Sellers Shareholders will cause the Company Entities to: (i) give any notices to third parties, and use its commercially reasonable efforts to obtain any third party consents, waivers, approvals, authorizations, orders, amendments to agreements and estoppel agreements set forth in Section 8.1(e) of the Disclosure Schedule and (ii) make any filings with, and use its commercially reasonable best efforts to obtain any authorizations, consents, and approvals of Governmental Authorities in connection with the matters referred to in Section 5.3, and Parent will reasonably cooperate with the Company in connection therewith. Each of the Parties will give any notices to, make any filings with, and use their its commercially reasonable best efforts to obtain any authorizations, consents consents, and approvals of, any of Governmental Authority that are necessary Authorities in connection with the transactions contemplated hereby, it being understood that nothing matters referred to in this Agreement shall require, or be construed to require, the Buyer, the Sellers or any of the Company Entities to make any payment in connection with fulfilling such conditions precedent, other than legal Sections 3.1 and accounting fees and disbursements and regulatory filing fees and costs. The Sellers shall use their reasonable best efforts to give all notices to, and obtain all consents from, all third parties that are listed in Section 2.6(a)(v) of the Schedules. Each party shall cooperate fully with the other party and its Affiliates in promptly seeking to obtain all such authorizations, consents and approvals. The parties hereto shall not willfully take any action that will have the effect of delaying, impairing or impeding the receipt of any required consents, authorizations, orders and approvals4.2.
(b) Without limiting the generality of the parties’ undertakings pursuant to Section 5.2(a)foregoing, each of the parties hereto shall Parties will (A) file (or use its commercially reasonable efforts to: (ito cause its appropriate Affiliates to file) respond any notification, report forms and related material that it may be required to any inquiries by any Governmental Authority file with respect the Federal Trade Commission and the Antitrust Division of the United States Department of Justice under the HSR Act, and will use its commercially reasonable efforts to obtain an early termination of the transactions contemplated by this Agreement or any Ancillary Agreement; (ii) avoid the imposition of any order or the taking of any action that would restrain, alter or enjoin the transactions contemplated by this Agreement or any Ancillary Agreement; applicable waiting period and (iiiB) make any further filings pursuant thereto that may be necessary, proper, or advisable in the event any order connection therewith. Each of a Governmental Authority adversely affecting the ability Parent and Sellers Representative will supply each other with copies of the parties to consummate the transactions contemplated by this Agreement or any Ancillary Agreement is issuedall correspondence, to have such order vacated or lifted.
(c) All analyses, appearances, meetings, discussions, presentations, memoranda, briefscommunications, filings, argumentsnotifications, forms, and proposals made by or on behalf related materials filed under the HSR Act (“HSR Materials”) and each Party may suggest reasonable changes to another Party’s HSR Materials prior to filing. The Company, Shareholders, Alpha, Parent and Merger Sub agree to consult and to attempt to resolve in good faith any issue arising as a result of either party before any Governmental Authority or the staff or regulators review of any Governmental Authoritysuch HSR Materials as promptly as possible. The Company, Shareholders, Alpha, Parent and Merger Sub agree to furnish such necessary information and reasonable assistance as such other Party may request in connection with the transactions contemplated hereunder (but, for the avoidance its preparation of doubt, not including any interactions between the Company Entities or the Buyer with Governmental Authorities in the ordinary course of business, any notices or filings made in connection with the Name Change, any disclosure which is not permitted by Law or any disclosure containing confidential information) shall be disclosed to the other party hereunder in advance of any filing, submission or attendance, it being the intent that the parties will consult and cooperate with one another, and consider in good faith the views of one another, in connection with any such analyses, appearances, meetings, discussions, presentations, memoranda, briefs, filings, arguments, and proposals. Each party shall give notice to the other party with respect to any meeting, discussion, appearance or contact with any Governmental Authority or the staff or regulators of any Governmental Authority, with such notice being sufficient to provide the other party with the opportunity to attend and participate in such meeting, discussion, appearance or contactHSR Materials.
(d) Notwithstanding the foregoing, nothing in this Section 5.2 shall require, or be construed to require, the Buyer or any of its Affiliates to agree to (i) sell, hold, divest, discontinue or limit, before or after the Closing Date, any assets, businesses or interests of the Buyer, the Company Entities or any of their respective Affiliates; (ii) any conditions relating to, or changes or restrictions in, the operations of any such assets, businesses or interests which, in either case, could reasonably be expected to adversely impact the economic or business benefits to the Buyer of the transactions contemplated by this Agreement; or (iii) any material modification or waiver of the terms and conditions of this Agreement.
Appears in 1 contract
Notices and Consents. (ai) With regard to the following notices and consents:
A. SELLER will give or cause to be given any notices to all third Persons which are not a Governmental Authority, and SELLER will use its Reasonable Efforts (which, with respect to landowner consents, shall not exceed the cost to repurchase the same type of real property interest at the market rate generally prevailing in the area, and, further, the Parties agree that the reasonable market rate for easements and rights-of way shall be deemed to be not more than $50.00/rod) to obtain any third Person consents, approvals or authorizations, that must be given or obtained in order for the Parties to consummate the transaction contemplated by this Agreement (collectively, except for the Customary Post-Closing Consents, the "Required Consents") provided, however, and, for the avoidance of any doubt, the use of the phrase "Person" in this sentence shall exclude Antitrust Authorities. If SELLER is required to pay an amount in excess of $50.00/rod to obtain any landowner Required Consent prior to Closing, then the amount in excess of $50.00/rod shall be shared equally with each of BUYER and SELLER bearing 50% of such costs and the amount of BUYER's 50% of such costs shall be paid to SELLER pursuant to Section 7(a)(i)(C). Notwithstanding anything to the contrary in this Section 5(b)(i)(A), BUYER shall not be responsible for any costs incurred by SELLER, if any, to obtain a landowner Required Consent to the extent such costs are incurred to resolve preexisting dispute(s) between SELLER and the landowner (other than the consent itself); and
B. Each of the Buyer and the Sellers will, and the Sellers Parties will cause the Company Entities to, give any notices to, make any filings with, Governmental Authorities, and use their reasonable best efforts Reasonable Efforts to obtain any authorizations, consents consents, and approvals of, any of those Governmental Authority that are necessary Authorities in connection with the transactions contemplated hereby, it being understood that nothing matters referred to in Sections 3(c) and 4(c) above in order for such Party to perform its obligations under this Agreement shall require, or be construed to require, the Buyer, the Sellers or any of the Company Entities to make any payment in connection with fulfilling such conditions precedent, other than legal and accounting fees and disbursements and regulatory filing fees and costs. The Sellers shall use their reasonable best efforts to give all notices to, and obtain all consents from, all third parties that are listed in Section 2.6(a)(v) of the Schedules. Each party shall cooperate fully with the other party and its Affiliates in promptly seeking to obtain all such authorizations, consents and approvals. The parties hereto shall not willfully take any action that will have the effect of delaying, impairing or impeding the receipt of any required consents, authorizations, orders and approvalsAgreement.
(bii) Without limiting the generality of the parties’ undertakings pursuant to Section 5.2(a)foregoing, each of the parties hereto shall use commercially reasonable efforts toParties acknowledges and agrees that this Agreement and the consummation of the transactions contemplated by this Agreement are subject to and conditioned upon the following: (iA) respond to any inquiries by any Governmental Authority with respect applicable waiting period under the Xxxx-Xxxxx-Xxxxxx Act relating to the transactions contemplated by this Agreement shall have expired or any Ancillary Agreementbeen terminated; and (iiB) avoid the imposition no provision of any applicable law or regulation, and no judgment, injunction, order or the taking of any action that would restrain, alter decree shall prohibit or enjoin the consummation of the transactions contemplated by this Agreement or any Ancillary Agreement; and .
(iii) in The Parties further acknowledge and agree that each will use its Reasonable Efforts to, as promptly as is possible: (A) prepare and make all filings required of it with, and give all notices to, will file (to the event extent not heretofore filed) any order of a Governmental Authority adversely affecting Notification and Report Forms and related material that it may be required to file with the ability Federal Trade Commission, the Antitrust Division of the parties United States Department of Justice or any other federal or state antitrust reviewing agency (whether acting together or independently, "Antitrust Authorities") or any other Person as is required of such Party in order to consummate the transactions contemplated by this Agreement or any Ancillary Agreement is issued, to have such order vacated or lifted.
(c) All analyses, appearances, meetings, discussions, presentations, memoranda, briefs, filings, argumentshereby under the Xxxx-Xxxxx-Xxxxxx Act, and proposals made by will use its Reasonable Efforts to obtain an early termination of the applicable waiting period, and will make any further filings pursuant thereto that may be necessary, proper, or on behalf of either party before any Governmental Authority or the staff or regulators of any Governmental Authority, advisable in connection therewith; (B) provide such other information and communications to such Antitrust Authorities as such Antitrust Authorities may reasonably request in connection therewith; and (C) provide reasonable cooperation to each other in connection with the transactions contemplated hereunder (butperformance of their obligations under this Section. The BUYER and the SELLER will provide prompt notification to each other when any such consent, for the avoidance of doubtapproval, not including any interactions between the Company Entities action, filing or the Buyer with Governmental Authorities notice referred to in the ordinary course of businessSection 5(b)(ii)(A), any notices above, is obtained, taken, made or filings made in connection with the Name Changegiven, any disclosure which is not permitted by Law or any disclosure containing confidential information) shall be disclosed to the as applicable, and will advise each other party hereunder in advance of any filingcommunications (and, submission or attendanceunless precluded by law, it being the intent that the parties will consult and cooperate with one another, and consider in good faith the views of one another, in connection with any such analyses, appearances, meetings, discussions, presentations, memoranda, briefs, filings, arguments, and proposals. Each party shall give notice to the other party with respect to any meeting, discussion, appearance or contact with any Governmental Authority or the staff or regulators of any Governmental Authority, with such notice being sufficient to provide the other party with the opportunity to attend and participate in such meeting, discussion, appearance or contact.
(d) Notwithstanding the foregoing, nothing in this Section 5.2 shall require, or be construed to require, the Buyer or any of its Affiliates to agree to (i) sell, hold, divest, discontinue or limit, before or after the Closing Date, any assets, businesses or interests of the Buyer, the Company Entities or any of their respective Affiliates; (ii) any conditions relating to, or changes or restrictions in, the operations copies of any such assets, businesses or interests which, communications that are in either case, could reasonably be expected to adversely impact the economic or business benefits to the Buyer writing) with any Antitrust Authority regarding any of the transactions contemplated by this Agreement; provided, however, that competitively sensitive information may be withheld. SELLER agrees to reimburse BUYER for those filing fees required by Antitrust Authorities for BUYER's application under the Xxxx-Xxxxx-Xxxxxx Act.
(iv) BUYER will undertake commercially reasonable efforts to obtain all consents, approvals or (iii) any material modification or waiver actions of the terms Antitrust Authorities and conditions shall cooperate with SELLER and propose to the relevant Antitrust Authorities appropriate and reasonable remedies to alleviate potential concerns generated by the Agreement and the consummation of the transactions contemplated by this Agreement and shall commit itself to such remedies vis-a-vis the relevant Antitrust Authorities, with the aim of enabling the completion of the consummation of the transactions contemplated by this Agreement as soon as practicable; provided, however, that BUYER will not be required to take any action that would materially impact this transaction. Such remedies shall not, in any way, reduce BUYER's obligations to pay the full Purchase Price as required by this Agreement. Before proposing such remedies to the relevant Antitrust Authorities, the BUYER shall reveal to SELLER the remedies to be proposed. The Parties also agree that they will use all Reasonable Efforts in the defense of any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement and the consummation of the transactions contemplated by this Agreement, including seeking to have any stay, temporary restraining order, or other injunction entered by any court or other governmental entity vacated or reversed.
(v) BUYER shall be solely responsible for all filing fees associated with Easements, including railroad assignments, and for the cost of obtaining the Customary Post-Closing Consents.
Appears in 1 contract
Samples: Asset Purchase and Sale Agreement (Duke Energy Field Services LLC)
Notices and Consents. (aThe Seller will give all notices to third parties and will use its commercially reasonable efforts to obtain all third party consents that the Buyers reasonably may request. The absence of any such consent shall not be a breach hereof unless the contract is designated as "material" on Section 4(d) of the Disclosure Schedule. Buyer acknowledges that it has been fully apprised of the CID and that it has had full opportunity to conduct due diligence with respect thereto. Buyer accepts all risks, costs, liabilities and consequences that may arise from compliance with the CID or filings under the Hart-Xxxxx-Xxxxxx Xxx, or both, following the Closing Date. Each of the Buyer Parties shall cooperate in preparing and filing any necessary notification and report forms and related material that it may be required to file with the Federal Trade Commission and the Sellers willAntitrust Division of the United States Department of Justice under the Hart-Xxxxx-Xxxxxx Xxx, and each of the Parties shall split equally the filing fees associated with such filings. Each of the Parties will use its best efforts to obtain an early termination of the applicable waiting period, and will make any further filings pursuant thereto that may be necessary, proper or advisable. In the event the FCC, the Federal Trade Commission, or the Antitrust Division of the Department of Justice challenges the transaction contemplated by this Agreement, Buyers will agree to divest promptly such station assets as may be required in order for regulatory authorities to approve the transaction without requiring a second request or further administrative or judicial action. Buyer shall assume all risks and responsibility for such divestitures, and the Sellers Purchase Price shall not be adjusted because of any such required divestiture(s). Notwithstanding the foregoing, Seller and its counsel shall use best efforts to cooperate with Buyers to dissuade regulatory authorities form pursuing any investigation of the transaction proposed herein, with each Party to bear its own expenses in such effort. Each of the Parties will cause the Company Entities touse its reasonable best efforts to take any additional action that may be necessary, give proper, or advisable in connection with any other notices to, make any filings with, and use their reasonable best efforts to obtain any authorizations, consents consents, and approvals ofof governments, any Governmental Authority that are necessary in connection with the transactions contemplated hereby, it being understood that nothing in this Agreement shall require, or be construed to require, the Buyer, the Sellers or any of the Company Entities to make any payment in connection with fulfilling such conditions precedent, other than legal and accounting fees and disbursements and regulatory filing fees and costs. The Sellers shall use their reasonable best efforts to give all notices togovernmental agencies, and obtain all consents from, all third parties that are listed in Section 2.6(a)(v) of the Schedules. Each party shall cooperate fully with the other party and its Affiliates in promptly seeking it may be required to obtain all such authorizationsgive, consents and approvals. The parties hereto shall not willfully take any action that will have the effect of delaying, impairing or impeding the receipt of any required consents, authorizations, orders and approvals.
(b) Without limiting the generality of the parties’ undertakings pursuant to Section 5.2(a), each of the parties hereto shall use commercially reasonable efforts to: (i) respond to any inquiries by any Governmental Authority with respect to the transactions contemplated by this Agreement or any Ancillary Agreement; (ii) avoid the imposition of any order or the taking of any action that would restrain, alter or enjoin the transactions contemplated by this Agreement or any Ancillary Agreement; and (iii) in the event any order of a Governmental Authority adversely affecting the ability of the parties to consummate the transactions contemplated by this Agreement or any Ancillary Agreement is issued, to have such order vacated or lifted.
(c) All analyses, appearances, meetings, discussions, presentations, memoranda, briefs, filings, arguments, and proposals made by or on behalf of either party before any Governmental Authority or the staff or regulators of any Governmental Authority, in connection with the transactions contemplated hereunder (but, for the avoidance of doubt, not including any interactions between the Company Entities or the Buyer with Governmental Authorities in the ordinary course of business, any notices or filings made in connection with the Name Change, any disclosure which is not permitted by Law or any disclosure containing confidential information) shall be disclosed to the other party hereunder in advance of any filing, submission or attendance, it being the intent that the parties will consult and cooperate with one another, and consider in good faith the views of one another, in connection with any such analyses, appearances, meetings, discussions, presentations, memoranda, briefs, filings, arguments, and proposals. Each party shall give notice to the other party with respect to any meeting, discussion, appearance or contact with any Governmental Authority or the staff or regulators of any Governmental Authority, with such notice being sufficient to provide the other party with the opportunity to attend and participate in such meeting, discussion, appearance or contact.
(d) Notwithstanding the foregoing, nothing in this Section 5.2 shall requiremake, or be construed to require, the Buyer or any of its Affiliates to agree to (i) sell, hold, divest, discontinue or limit, before or after the Closing Date, any assets, businesses or interests of the Buyer, the Company Entities or any of their respective Affiliates; (ii) any conditions relating to, or changes or restrictions in, the operations of any such assets, businesses or interests which, in either case, could reasonably be expected to adversely impact the economic or business benefits to the Buyer of the transactions contemplated by this Agreement; or (iii) any material modification or waiver of the terms and conditions of this Agreementobtain.
Appears in 1 contract
Notices and Consents. (a) Each of the Buyer and the Sellers willThe Company shall, and the Sellers will cause the Company Entities to, give any notices to third parties and will cause the Company to use its commercially reasonable efforts to obtain the third-party consents set forth in or contemplated by SECTIONS 3(A) AND 4(C) (unless otherwise indicated on SECTION 4(C) OF THE DISCLOSURE SCHEDULE). Buyer will give any notices to the third-parties and will use commercially reasonable efforts to obtain the third-party consents set forth on ANNEX II or contemplated by SECTION 3(B). Each of the Parties will give any notices to, make any filings with, with and use their respective commercially reasonable best efforts to obtain any authorizations, consents and approvals of, any of Governmental Authority that are necessary Entities in connection with the transactions contemplated herebymatters referred to in SECTIONS 3(A)(II), it being understood that nothing in this Agreement shall require, or be construed to require, the Buyer, the Sellers or any of the Company Entities to make any payment in connection with fulfilling such conditions precedent, other than legal 3(B)(III) and accounting fees and disbursements and regulatory filing fees and costs4(C)(I) above. The Sellers shall use their reasonable best efforts to give all notices to, and obtain all consents from, all third parties that are listed in Section 2.6(a)(v) of the Schedules. Each party shall cooperate fully with the other party and its Affiliates in promptly seeking to obtain all such authorizations, consents and approvals. The parties hereto shall not willfully take any action that will have the effect of delaying, impairing or impeding the receipt of any required consents, authorizations, orders and approvals.
(b) Without limiting the generality of the parties’ undertakings pursuant to Section 5.2(a)foregoing, within ten (10) Business Days after the date hereof, each of the parties hereto shall Parties will file any Notification and Report Forms and related material that he, she or it may be required to file with the Federal Trade Commission and the Antitrust Division of the United States Department of Justice under the Hart-Scott-Rodino Act, or any similar reports required to be filed wixx xxx xxxxxxx xxrisdiction, will use his, her or its commercially reasonable efforts to: to obtain a waiver from the applicable waiting period and will make any further filings pursuant thereto that may be necessary, proper or advisable in connection therewith. Notwithstanding anything to the contrary contained in this Agreement, neither Buyer nor any of its Affiliates shall be required to hold separate (including by trust or otherwise) or divest any of their respective businesses or assets or agree to any limitation on the operation or conduct of their respective businesses with respect to obtaining such authorization, consents, approvals and waivers referred to in this SECTION 5(B). Sellers shall submit to the New Jersey Department of Environmental Protection ("NJDEP"): (a) within five (5) Business Days 35 of execution of this Agreement, an Initial Notice under ISRA (the "GIN"); and (b) no later than ten (10) Business Days after the execution of this Agreement, a request for Expedited Review with supporting documentation, which shall include, but not be limited to (i) respond to any inquiries by any Governmental Authority with respect to the transactions contemplated by this Agreement or any Ancillary Agreement; previously submitted December 23, 2002 Preliminary Assessment, (ii) avoid the imposition of any order or the taking of any action that would restraina Negative Declaration Affidavit, alter or enjoin the transactions contemplated by this Agreement or any Ancillary Agreement; and (iii) in the event any order of a Governmental Authority adversely affecting the ability of the parties NJDEP Entire Site Unrestricted Use No Further Action Letter and Covenant Not to consummate the transactions contemplated by this Agreement or any Ancillary Agreement is issuedSue dated January 6, to have such order vacated or lifted2003.
(c) All analyses, appearances, meetings, discussions, presentations, memoranda, briefs, filings, arguments, and proposals made by or on behalf of either party before any Governmental Authority or the staff or regulators of any Governmental Authority, in connection with the transactions contemplated hereunder (but, for the avoidance of doubt, not including any interactions between the Company Entities or the Buyer with Governmental Authorities in the ordinary course of business, any notices or filings made in connection with the Name Change, any disclosure which is not permitted by Law or any disclosure containing confidential information) shall be disclosed to the other party hereunder in advance of any filing, submission or attendance, it being the intent that the parties will consult and cooperate with one another, and consider in good faith the views of one another, in connection with any such analyses, appearances, meetings, discussions, presentations, memoranda, briefs, filings, arguments, and proposals. Each party shall give notice to the other party with respect to any meeting, discussion, appearance or contact with any Governmental Authority or the staff or regulators of any Governmental Authority, with such notice being sufficient to provide the other party with the opportunity to attend and participate in such meeting, discussion, appearance or contact.
(d) Notwithstanding the foregoing, nothing in this Section 5.2 shall require, or be construed to require, the Buyer or any of its Affiliates to agree to (i) sell, hold, divest, discontinue or limit, before or after the Closing Date, any assets, businesses or interests of the Buyer, the Company Entities or any of their respective Affiliates; (ii) any conditions relating to, or changes or restrictions in, the operations of any such assets, businesses or interests which, in either case, could reasonably be expected to adversely impact the economic or business benefits to the Buyer of the transactions contemplated by this Agreement; or (iii) any material modification or waiver of the terms and conditions of this Agreement.
Appears in 1 contract
Samples: Stock Purchase Agreement (Von Hoffmann Holdings Inc)
Notices and Consents. (a) Each of During the Buyer Interim Period, each Seller will give all notices to Governmental Authorities and the Sellers will, and the Sellers will cause the Company Entities to, give any notices to, make any filings with, other Persons and use their reasonable best efforts to obtain any authorizationsobtain, consents and approvals ofin writing, any Governmental Authority that are necessary without penalty or condition which is adverse to Buyer, all consents, Permits, certificates, covenants, waivers, authorizations or novations required in connection with the transactions contemplated hereby, it being understood that nothing in by this Agreement shall requireand the Related Agreements as expeditiously as possible. Buyer will reasonably cooperate with the Seller Parties with any reasonable request from any Seller Party in furtherance of Seller’s notices and applications required under this Section 5.1(b). During the Interim Period, Representative will provide Buyer a complete copy of all letters, applications or other documents prior to their submission to or promptly after receipt from any Governmental Authority or other Person with respect to each consent, Permit, certificate, covenant, waiver, authorization or novation, and will afford Buyer the opportunity to comment on any letter, application and other document to be construed submitted reasonably in advance of the anticipated time of submission. During the Interim Period, Representative will inform Xxxxx of the content of any oral submission reasonably in advance of an anticipated oral communication with any Governmental Authority and afford Buyer the opportunity to requirecomment on any such oral submission. During the Interim Period, Representative will promptly and regularly advise Buyer concerning the Buyerstatus of each consent, Permit, certificate, covenant, waiver, authorization or novation, including any difficulties or delays experienced in obtaining and any conditions required for such items. During the Sellers Interim Period, no Seller will permit any of its officers or any of the Company Entities other representatives or agents to make participate in any payment in connection meeting with fulfilling such conditions precedent, other than legal and accounting fees and disbursements and regulatory filing fees and costs. The Sellers shall use their reasonable best efforts to give all notices to, and obtain all consents from, all third parties that are listed in Section 2.6(a)(v) of the Schedules. Each party shall cooperate fully with the other party and its Affiliates in promptly seeking to obtain all such authorizations, consents and approvals. The parties hereto shall not willfully take any action that will have the effect of delaying, impairing or impeding the receipt of any required consents, authorizations, orders and approvals.
(b) Without limiting the generality of the parties’ undertakings pursuant to Section 5.2(a), each of the parties hereto shall use commercially reasonable efforts to: (i) respond to any inquiries by any Governmental Authority with respect to any filings, investigation or other inquiry relating to the transactions contemplated by this Agreement hereby unless Representative informs Buyer in advance and, allows Buyer to provide its input and assistance to such Seller or Representative, as applicable, in connection with such filings or investigation and such Seller and Representative will take Buyer’s input into account in all communications with such Governmental Authority. During the Interim Period, no Seller nor Buyer will: (i) enter into any Ancillary Agreement; (ii) avoid the imposition of agreement with any order or the taking of any action that would restrain, alter or enjoin the transactions contemplated by this Agreement or any Ancillary Agreement; and (iii) in the event any order of a Governmental Authority adversely affecting the ability of the parties not to consummate the transactions contemplated by this Agreement or any Ancillary Agreement is issuedthe Related Agreements without the prior written consent of, Representative, with respect to have such order vacated or lifted.
(c) All analyses, appearances, meetings, discussions, presentations, memoranda, briefs, filings, argumentsthe Buyer, and proposals made by or on behalf of either party before any Governmental Authority or the staff or regulators of any Governmental Authority, in connection with the transactions contemplated hereunder (but, for the avoidance of doubt, not including any interactions between the Company Entities or the Buyer with Governmental Authorities in the ordinary course of business, any notices or filings made in connection with the Name Change, any disclosure which is not permitted by Law or any disclosure containing confidential information) shall be disclosed to the other party hereunder in advance of any filing, submission or attendance, it being the intent that the parties will consult and cooperate with one another, and consider in good faith the views of one another, in connection with any such analyses, appearances, meetings, discussions, presentations, memoranda, briefs, filings, arguments, and proposals. Each party shall give notice to the other party with respect to any meeting, discussion, appearance Seller; or contact with any Governmental Authority or the staff or regulators of any Governmental Authority, with such notice being sufficient to provide the other party with the opportunity to attend and participate in such meeting, discussion, appearance or contact.
(d) Notwithstanding the foregoing, nothing in this Section 5.2 shall require, or be construed to require, the Buyer or any of its Affiliates to agree to (i) sell, hold, divest, discontinue or limit, before or after the Closing Date, any assets, businesses or interests of the Buyer, the Company Entities or any of their respective Affiliates; (ii) take any conditions relating to, other action that would be reasonably likely to prevent or changes or restrictions in, materially delay the operations receipt of any such assetsconsent, businesses approval, waiver, authorization, notice or interests which, in either case, could reasonably be expected to adversely impact the economic or business benefits to the Buyer of the transactions contemplated by this Agreement; or (iii) any material modification or waiver of the terms and conditions of this Agreementnovation.
Appears in 1 contract
Samples: Asset Purchase Agreement (Medicine Man Technologies, Inc.)
Notices and Consents. (a) Each of the Buyer and the Sellers willThe Company shall, and the Sellers will cause the Company Entities to, give any notices to third parties and will cause the Company to use its commercially reasonable efforts to obtain the third-party consents set forth in or contemplated by Sections 3(a) and 4(c) (unless otherwise indicated on Section 4(c) of the Disclosure Schedule). Buyer will give any notices to the third-parties and will use commercially reasonable efforts to obtain the third-party consents set forth on Annex II or contemplated by Section 3(b). Each of the Parties will give any notices to, make any filings with, with and use their respective commercially reasonable best efforts to obtain any authorizations, consents and approvals of, any of Governmental Authority that are necessary Entities in connection with the transactions contemplated herebymatters referred to in Sections 3(a)(ii), it being understood that nothing in this Agreement shall require, or be construed to require, the Buyer, the Sellers or any of the Company Entities to make any payment in connection with fulfilling such conditions precedent, other than legal 3(b)(iii) and accounting fees and disbursements and regulatory filing fees and costs4(c)(i) above. The Sellers shall use their reasonable best efforts to give all notices to, and obtain all consents from, all third parties that are listed in Section 2.6(a)(v) of the Schedules. Each party shall cooperate fully with the other party and its Affiliates in promptly seeking to obtain all such authorizations, consents and approvals. The parties hereto shall not willfully take any action that will have the effect of delaying, impairing or impeding the receipt of any required consents, authorizations, orders and approvals.
(b) Without limiting the generality of the parties’ undertakings pursuant to Section 5.2(a)foregoing, within ten (10) Business Days after the date hereof, each of the parties hereto shall Parties will file any Notification and Report Forms and related material that he, she or it may be required to file with the Federal Trade Commission and the Antitrust Division of the United States Department of Justice under the Hart-Scott-Rodino Act, or any similar reports required to be filed wixx xxx xxxxxxx xxrisdiction, will use his, her or its commercially reasonable efforts to: to obtain a waiver from the applicable waiting period and will make any further filings pursuant thereto that may be necessary, proper or advisable in connection therewith. Notwithstanding anything to the contrary contained in this Agreement, neither Buyer nor any of its Affiliates shall be required to hold separate (including by trust or otherwise) or divest any of their respective businesses or assets or agree to any limitation on the operation or conduct of their respective businesses with respect to obtaining such authorization, consents, approvals and waivers referred to in this Section 5(b). Sellers shall submit to the New Jersey Department of Environmental Protection ("NJDEP"): (a) within five (5) Business Days of execution of this Agreement, an Initial Notice under ISRA (the "GIN"); and (b) no later than ten (10) Business Days after the execution of this Agreement, a request for Expedited Review with supporting documentation, which shall include, but not be limited to (i) respond to any inquiries by any Governmental Authority with respect to the transactions contemplated by this Agreement or any Ancillary Agreement; previously submitted December 23, 2002 Preliminary Assessment, (ii) avoid the imposition of any order or the taking of any action that would restraina Negative Declaration Affidavit, alter or enjoin the transactions contemplated by this Agreement or any Ancillary Agreement; and (iii) in the event any order of a Governmental Authority adversely affecting the ability of the parties NJDEP Entire Site Unrestricted Use No Further Action Letter and Covenant Not to consummate the transactions contemplated by this Agreement or any Ancillary Agreement is issuedSue dated January 6, to have such order vacated or lifted2003.
(c) All analyses, appearances, meetings, discussions, presentations, memoranda, briefs, filings, arguments, and proposals made by or on behalf of either party before any Governmental Authority or the staff or regulators of any Governmental Authority, in connection with the transactions contemplated hereunder (but, for the avoidance of doubt, not including any interactions between the Company Entities or the Buyer with Governmental Authorities in the ordinary course of business, any notices or filings made in connection with the Name Change, any disclosure which is not permitted by Law or any disclosure containing confidential information) shall be disclosed to the other party hereunder in advance of any filing, submission or attendance, it being the intent that the parties will consult and cooperate with one another, and consider in good faith the views of one another, in connection with any such analyses, appearances, meetings, discussions, presentations, memoranda, briefs, filings, arguments, and proposals. Each party shall give notice to the other party with respect to any meeting, discussion, appearance or contact with any Governmental Authority or the staff or regulators of any Governmental Authority, with such notice being sufficient to provide the other party with the opportunity to attend and participate in such meeting, discussion, appearance or contact.
(d) Notwithstanding the foregoing, nothing in this Section 5.2 shall require, or be construed to require, the Buyer or any of its Affiliates to agree to (i) sell, hold, divest, discontinue or limit, before or after the Closing Date, any assets, businesses or interests of the Buyer, the Company Entities or any of their respective Affiliates; (ii) any conditions relating to, or changes or restrictions in, the operations of any such assets, businesses or interests which, in either case, could reasonably be expected to adversely impact the economic or business benefits to the Buyer of the transactions contemplated by this Agreement; or (iii) any material modification or waiver of the terms and conditions of this Agreement.
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Notices and Consents. (a) Each of the Buyer and the Sellers will, and the Sellers will cause the Company Entities toto (i) give any notices to third parties, and will cause the Company to use its commercially reasonable efforts to obtain any third party consents, waivers, approvals, authorizations, orders, amendments to agreements and estoppel agreements set forth in Section 8.1(e) of the Disclosure Schedule and (ii) make any filings with, and use its commercially reasonable best efforts to obtain any authorizations, consents, and approvals of Governmental Authorities in connection with the matters referred to in Section 5.3, and Buyer will reasonable cooperate with the Company in connection therewith. Each of the Parties will give any notices to, make any filings with, and use their its commercially reasonable best efforts to obtain any required authorizations, consents consents, and approvals of, any of Governmental Authority that are necessary Authorities in connection with the transactions contemplated hereby, it being understood that nothing matters referred to in this Agreement shall require, or be construed to require, the Buyer, the Sellers or any of the Company Entities to make any payment in connection with fulfilling such conditions precedent, other than legal Sections 3.3 and accounting fees and disbursements and regulatory filing fees and costs. The Sellers shall use their reasonable best efforts to give all notices to, and obtain all consents from, all third parties that are listed in Section 2.6(a)(v) of the Schedules. Each party shall cooperate fully with the other party and its Affiliates in promptly seeking to obtain all such authorizations, consents and approvals. The parties hereto shall not willfully take any action that will have the effect of delaying, impairing or impeding the receipt of any required consents, authorizations, orders and approvals4.3.
(b) Without limiting the generality of the parties’ undertakings pursuant to Section 5.2(a)foregoing, each of the parties hereto shall Parties will (A) file (or use its commercially reasonable efforts to: (ito cause its appropriate Affiliates to file) respond any notification, report forms and related material that it may be required to any inquiries by any Governmental Authority file with respect the Federal Trade Commission and the Antitrust Division of the United States Department of Justice under the HSR Act, and will use its commercially reasonable efforts to obtain an early termination of the transactions contemplated by this Agreement or any Ancillary Agreement; (ii) avoid the imposition of any order or the taking of any action that would restrain, alter or enjoin the transactions contemplated by this Agreement or any Ancillary Agreement; applicable waiting period and (iiiB) make any further filings pursuant thereto that may be necessary, proper, or advisable in the event any order connection therewith. Each of a Governmental Authority adversely affecting the ability Buyer and Sellers Representative will supply each other with copies of the parties to consummate the transactions contemplated by this Agreement or any Ancillary Agreement is issuedall correspondence, to have such order vacated or lifted.
(c) All analyses, appearances, meetings, discussions, presentations, memoranda, briefscommunications, filings, argumentsnotifications, forms, and proposals made by or on behalf related materials filed under the HSR Act (“HSR Materials”) and each Party may suggest reasonable changes to another Party’s HSR Materials prior to filing. Sellers and Buyer agree to consult and to attempt to resolve in good faith any issue arising as a result of either party before any Governmental Authority or the staff or regulators review of any Governmental Authority, such HSR Materials as promptly as possible. Sellers and Buyer agree to furnish such necessary information and reasonable assistance as such other Party may request in connection with the transactions contemplated hereunder (but, for the avoidance its preparation of doubt, not including any interactions between the Company Entities or the Buyer with Governmental Authorities in the ordinary course of business, any notices or filings made in connection with the Name Change, any disclosure which is not permitted by Law or any disclosure containing confidential information) shall be disclosed to the other party hereunder in advance of any filing, submission or attendance, it being the intent that the parties will consult and cooperate with one another, and consider in good faith the views of one another, in connection with any such analyses, appearances, meetings, discussions, presentations, memoranda, briefs, filings, arguments, and proposals. Each party shall give notice to the other party with respect to any meeting, discussion, appearance or contact with any Governmental Authority or the staff or regulators of any Governmental Authority, with such notice being sufficient to provide the other party with the opportunity to attend and participate in such meeting, discussion, appearance or contactHSR Materials.
(d) Notwithstanding the foregoing, nothing in this Section 5.2 shall require, or be construed to require, the Buyer or any of its Affiliates to agree to (i) sell, hold, divest, discontinue or limit, before or after the Closing Date, any assets, businesses or interests of the Buyer, the Company Entities or any of their respective Affiliates; (ii) any conditions relating to, or changes or restrictions in, the operations of any such assets, businesses or interests which, in either case, could reasonably be expected to adversely impact the economic or business benefits to the Buyer of the transactions contemplated by this Agreement; or (iii) any material modification or waiver of the terms and conditions of this Agreement.
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Notices and Consents. (a) Each of the Buyer The Seller and the Sellers willStockholders will give any --------------------- notices to third parties, and the Sellers Seller and the Stockholders will cause the Company Entities to, give any notices to, make any filings with, and use their reasonable best efforts to obtain any authorizationsthird party consents, consents and approvals of, any Governmental Authority that are necessary the Buyer reasonably may request in connection with the transactions contemplated hereby, it being understood that nothing matters referred to in this Agreement shall require, or be construed to require(S)3(c) above. Without limitation of the foregoing, the Seller and the Stockholders will promptly with the Buyer's assistance, at the Sellers or any of the Company Entities to make any payment in connection with fulfilling such conditions precedent, other than legal and accounting fees and disbursements and regulatory filing fees and costs. The Sellers shall use their reasonable best efforts to give all notices toBuyer's expense, and obtain in a form approved by the Buyer or supplied by the Buyer's contract attorney, advise all consents from, all third parties that are listed in Section 2.6(a)(vgovernment agencies whose consent will be required for (i) the performance on and after the Closing by the Buyer (as sub-contractor to the Seller) of the Schedules. Each Seller's obligations under all Government Contracts to which the Seller is a party shall cooperate fully with the other party and its Affiliates in promptly seeking to obtain all such authorizations, consents and approvals. The parties hereto shall not willfully take any action that will have the effect of delaying, impairing or impeding the receipt of any required consents, authorizations, orders and approvals.
(b) Without limiting the generality as of the parties’ undertakings pursuant to Section 5.2(a), each of Closing and the parties hereto shall use commercially reasonable efforts to: (i) respond to any inquiries by any Governmental Authority with respect payment to the transactions contemplated by this Agreement or any Ancillary Agreement; Buyer of all payments owed to the Seller under such Government Contracts on and after the Closing, (ii) avoid the imposition novation as soon as practicable following the Closing of any order or all such Government Contracts so as to provide that the taking Buyer (in place of any action that would restrainthe Seller) will be a party to such Government Contracts, alter or enjoin the transactions contemplated by this Agreement or any Ancillary Agreement; and (iii) in the event any order of a Governmental Authority adversely affecting the ability of the parties to consummate the transactions contemplated by this Agreement or any Ancillary Agreement is issued, to have such order vacated or lifted.
(c) All analyses, appearances, meetings, discussions, presentations, memoranda, briefs, filings, arguments, and proposals made by or on behalf of either party before any Governmental Authority or the staff or regulators of any Governmental Authority, in connection with the transactions contemplated hereunder (but, for the avoidance of doubt, not including any interactions between the Company Entities or the Buyer with Governmental Authorities in the ordinary course of business, any notices or filings made in connection with the Name Change, any disclosure which is not permitted by Law or any disclosure containing confidential information) shall be disclosed to the other party hereunder in advance of any filing, submission or attendance, it being the intent that the parties will consult and cooperate with one another, and consider in good faith the views of one another, in connection with any such analyses, appearances, meetings, discussions, presentations, memoranda, briefs, filings, arguments, and proposals. Each party shall give notice to the other party with respect to any meeting, discussion, appearance or contact with any Governmental Authority or the staff or regulators of any Governmental Authority, with such notice being sufficient to provide the other party with the opportunity to attend and participate in such meeting, discussion, appearance or contact.
(d) Notwithstanding the foregoing, nothing in this Section 5.2 shall require, or be construed to require, the Buyer or any of its Affiliates to agree to (i) sell, hold, divest, discontinue or limit, before or after the Closing Date, any assets, businesses or interests of the Buyer, the Company Entities or any of their respective Affiliates; (ii) any conditions relating to, or changes or restrictions in, the operations of any such assets, businesses or interests which, in either case, could reasonably be expected to adversely impact the economic or business benefits award to the Buyer of contracts under all Bids and Proposals submitted by the transactions contemplated Seller prior to Closing (except to the extent that the Buyer shall elect prior to the Closing to exclude the Seller's rights and obligations under any such Bids and Proposals from the Acquired Assets and Assumed Liabilities). To the extent that the Buyer shall notify the Seller in writing prior to the Closing that the Buyer has elected to exclude the Seller's rights and obligations under any Bids and Proposals from the Acquired Assets and the Assumed Liabilities, the Seller shall take prior to the Closing such actions as shall be necessary and appropriate to ensure that neither the Buyer nor the Seller will incur any Liabilities or other obligations on and after the Closing as a result thereof. Such actions by this Agreement; the Seller may include, without limitation, withdrawing any such Bids and Proposals or arranging (iii) any material modification or waiver with, to the extent required, the consent of the terms Person(s) to which the Seller submitted such Bids and conditions of this AgreementProposals) for another Person to assume the Seller's obligations under such Bids and Proposals if such Bids and Proposals are accepted by the Person(s) to which the Seller submitted such Bids and Proposals.
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Notices and Consents. (a) Each of the Buyer and the Sellers will, and the Sellers will cause the Company Entities to, Seller must give any notices to, make any filings with, to third parties and must use their reasonable best commercial efforts to obtain any authorizations, such consents and approvals of, any Governmental Authority that are necessary as the other Party may reasonably request in connection with the transactions contemplated hereby, it being understood that nothing in this Agreement shall require, or be construed to require, the Buyer, the Sellers or any consummation of the Company Entities to make any payment in connection with fulfilling such conditions precedent, other than legal and accounting fees and disbursements and regulatory filing fees and costs. The Sellers shall use their reasonable best efforts to give all notices to, and obtain all consents from, all third parties that are listed in Section 2.6(a)(v) of the Schedules. Each party shall cooperate fully with the other party and its Affiliates in promptly seeking to obtain all such authorizations, consents and approvals. The parties hereto shall not willfully take any action that will have the effect of delaying, impairing or impeding the receipt of any required consents, authorizations, orders and approvals.
(b) Without limiting the generality of the parties’ undertakings pursuant to Section 5.2(a), each of the parties hereto shall use commercially reasonable efforts to: (i) respond to any inquiries by any Governmental Authority with respect to the transactions contemplated by this Agreement and the Related Agreements, including the Required Consents. At the request of Seller, Buyer must provide Seller with such assistance and information as is reasonably requested by Seller to obtain the Required Consents. Any costs incurred in obtaining the such Required Consents must be borne by Seller. Seller must provide written notice to Seller’s employees and the director of the Department of Labor and Industrial Relations of the State of Hawaii 60 days before the Closing Date, as required under the Hawaii Dislocated Workers Act. Seller agrees that it will be responsible for all liability, back pay, or penalties for any violations of Hawaii’s Dislocated Workers Act arising out of termination of Seller’s employees by Seller on, or prior to, the Closing Date. Notwithstanding anything in this Agreement to the contrary, this Agreement shall not constitute an agreement to assign any Purchased Asset or any Ancillary claim or right or any benefit arising under or resulting from such Purchased Asset if an attempted assignment thereof, without the consent of a third party, would constitute a breach, default, violation or other contravention of the rights of such third party, would be ineffective with respect to any party to an agreement concerning such Purchased Asset, claim or right, or would in any way adversely affect the rights of Seller or, upon transfer, Buyer under such Purchased Asset, claim or right. If any transfer or assignment by Seller to Buyer, or any assumption by Buyer of, any interest in, or liability, obligation or commitment under, any Purchased Asset, claim or right requires the consent of a third party, then such transfer or assignment or assumption shall be made subject to such consent being obtained. If any such consent is not obtained before the Closing, and the Closing shall nonetheless take place on the terms set forth herein, thereafter, Seller shall use its best efforts to secure such consent as promptly as practicable after the Closing. Seller shall cooperate with Buyer in any lawful and commercially reasonable arrangement reasonably proposed by Buyer under which (i) Buyer shall obtain (without infringing upon the legal rights of such third party or violating any applicable Law) the economic claims, rights and benefits under the Purchased Asset, claim or right with respect to which the consent has not been obtained in accordance with this Agreement; , and (ii) avoid Buyer shall assume any related economic burden with respect to the imposition of any order Purchased Asset, claim or right with respect to which the taking of any action that would restrain, alter or enjoin the transactions contemplated by consent has not been obtained in accordance with this Agreement or any Ancillary Agreement; and (iii) in the event any order of a Governmental Authority adversely affecting the ability of the parties to consummate the transactions contemplated by this Agreement or any Ancillary Agreement is issued, to have such order vacated or lifted.
(c) All analyses, appearances, meetings, discussions, presentations, memoranda, briefs, filings, arguments, and proposals made by or on behalf of either party before any Governmental Authority or the staff or regulators of any Governmental Authority, in connection with the transactions contemplated hereunder (but, for . For the avoidance of doubt, not including any interactions between subject only to Section 7.1(b), the Company Entities or the Buyer with Governmental Authorities in the ordinary course terms of business, any notices or filings made in connection with the Name Change, any disclosure which is not permitted by Law or any disclosure containing confidential information) shall be disclosed to the other party hereunder in advance of any filing, submission or attendance, it being the intent that the parties will consult and cooperate with one another, and consider in good faith the views of one another, in connection with any such analyses, appearances, meetings, discussions, presentations, memoranda, briefs, filings, arguments, and proposals. Each party shall give notice to the other party with respect to any meeting, discussion, appearance or contact with any Governmental Authority or the staff or regulators of any Governmental Authority, with such notice being sufficient to provide the other party with the opportunity to attend and participate in such meeting, discussion, appearance or contact.
(d) Notwithstanding the foregoing, nothing in this Section 5.2 shall requiredo not constitute conditions precedent to Closing, or be construed but rather represent the means for facilitating the assignment to require, the Buyer or any of its Affiliates to agree to (i) sell, hold, divest, discontinue or limit, before or after the Closing Date, any assets, businesses or interests certain of the Buyer, Purchased Assets and the Company Entities or any of their respective Affiliates; (ii) any conditions relating to, or changes or restrictions in, the operations assumption by Buyer of any such assetsobligations relating thereto, businesses or interests whichthat Buyer has agreed to assume, in either case, could reasonably be expected to adversely impact the economic or business benefits to the Buyer of the transactions contemplated by this Agreement; or (iii) any material modification or waiver of under the terms and conditions of this Agreement.
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Notices and Consents. (a) Each of the Buyer and the Sellers willParty shall use its Reasonable Best Efforts to obtain, at its expense, all waivers, permits, consents, approvals or other authorizations from Governmental Entities, and the Sellers will cause the Company Entities toto effect all registrations, give any filings and notices towith or to Governmental Entities, make any filings with, and use their reasonable best efforts to obtain any authorizations, consents and approvals of, any Governmental Authority that are necessary in connection with the transactions contemplated hereby, it being understood that nothing in this Agreement shall require, or as may be construed to require, the Buyer, the Sellers or any of the Company Entities to make any payment in connection with fulfilling such conditions precedent, other than legal and accounting fees and disbursements and regulatory filing fees and costs. The Sellers shall use their reasonable best efforts to give all notices to, and obtain all consents from, all third parties that are listed in Section 2.6(a)(v) of the Schedules. Each party shall cooperate fully with the other party and its Affiliates in promptly seeking to obtain all such authorizations, consents and approvals. The parties hereto shall not willfully take any action that will have the effect of delaying, impairing or impeding the receipt of any required consents, authorizations, orders and approvals.
(b) Without limiting the generality of the parties’ undertakings pursuant to Section 5.2(a), each of the parties hereto shall use commercially reasonable efforts to: (i) respond to any inquiries by any Governmental Authority with respect to the transactions contemplated by this Agreement or any Ancillary Agreement; (ii) avoid the imposition of any such Party in order or the taking of any action that would restrain, alter or enjoin the transactions contemplated by this Agreement or any Ancillary Agreement; and (iii) in the event any order of a Governmental Authority adversely affecting the ability of the parties to consummate the transactions contemplated by this Agreement or any Ancillary Agreement is issued, and to have such order vacated or lifted.
(c) All analyses, appearances, meetings, discussions, presentations, memoranda, briefs, filings, arguments, otherwise comply with all applicable laws and proposals made by or on behalf of either party before any Governmental Authority or the staff or regulators of any Governmental Authority, regulations in connection with the transactions contemplated hereunder (but, for the avoidance of doubt, not including any interactions between the Company Entities or the Buyer with Governmental Authorities in the ordinary course of business, any notices or filings made in connection with the Name Change, any disclosure which is not permitted by Law or any disclosure containing confidential information) shall be disclosed to the other party hereunder in advance of any filing, submission or attendance, it being the intent that the parties will consult and cooperate with one another, and consider in good faith the views of one another, in connection with any such analyses, appearances, meetings, discussions, presentations, memoranda, briefs, filings, arguments, and proposals. Each party shall give notice to the other party with respect to any meeting, discussion, appearance or contact with any Governmental Authority or the staff or regulators of any Governmental Authority, with such notice being sufficient to provide the other party with the opportunity to attend and participate in such meeting, discussion, appearance or contact.
(d) Notwithstanding the foregoing, nothing in this Section 5.2 shall require, or be construed to require, the Buyer or any of its Affiliates to agree to (i) sell, hold, divest, discontinue or limit, before or after the Closing Date, any assets, businesses or interests of the Buyer, the Company Entities or any of their respective Affiliates; (ii) any conditions relating to, or changes or restrictions in, the operations of any such assets, businesses or interests which, in either case, could reasonably be expected to adversely impact the economic or business benefits to the Buyer consummation of the transactions contemplated by this Agreement; or .
(iiib) any material modification or waiver The Seller shall use its Reasonable Best Efforts to cause the landlord under the lease covering each Acquired Store to execute and deliver to the Buyer at the Closing (i) an Assignment and Assumption of Lease Agreement satisfactory to the Buyer evidencing the consent of the terms landlord to the assignment by the Seller to the Buyer of such lease and conditions containing (x) customary estoppel provisions indicating that there are no defaults or current liabilities on the part of this Agreementthe Seller and (y) an acknowledgement by the landlord providing that any radius restrictions contained in the lease shall not apply to any store operated by Buyer under the Yankee Candle trade name (an “Assignment of Lease”) and (ii) a consent of the landlord to the assignment by the Seller to the Buyer of such lease in the form attached hereto as Exhibit E (the “Landlord Consent”), it being agreed that a Landlord Consent shall not be required if the Seller is able to obtain an executed Assignment of Lease prior to the Closing. In the event the Buyer is unable to cause a landlord under the lease covering an Acquired Store to execute and deliver an Assignment of Lease at the Closing, the Seller shall continue to use its Reasonable Best Efforts to obtain such Assignment of Lease from each such landlord as promptly as practicable following the Closing.
(c) The Seller shall use its Reasonable Best Efforts to obtain, at its expense, any other waivers, consents or approvals from third parties, and to give any notices to third parties, as are required by law or by contract (including without limitation any required consents to assignment of the Assigned Contracts other than the leases for the Acquired Stores) in order to permit the Seller to sell, transfer, convey, assign and deliver to the Buyer the Acquired Assets at the Closing.
(d) The Buyer shall have the right to participate with the Seller in any discussions or negotiations with landlords or other third parties with respect to the obtaining of any Assignment of Leases, waivers, consents or approvals.
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Notices and Consents. (a) Each of Promptly after the Buyer date hereof and prior to the Sellers willClosing, the Seller will give to third parties those notices, and the Sellers will cause the Company Entities to, give any notices to, make any filings with, and use their commercially reasonable best efforts to obtain any authorizationsprior to the Closing those consents, consents and approvals of, or authorizations of third parties (other than any Governmental Authority Entity which shall be governed, as applicable, by Section 6.2(b) through Section 6.2(e)), in each case, that are necessary required in connection with the transactions contemplated herebyby this Agreement; provided, it being understood however, that nothing the novation of Purchased Government Contracts shall be governed by and conducted exclusively in this Agreement accordance with Section 7.3. Notwithstanding the foregoing and Section 6.1, the Seller shall requirenot be required to pay or otherwise provide any consideration to, or be construed incur any liability to, any Person from whom any such consents, approvals or authorizations are requested (whether prior to require, or after the Buyer, the Sellers Closing) or any of the Company Entities to make any payment in connection with fulfilling such conditions precedent, other than legal and accounting fees and disbursements and regulatory filing fees and costs. The Sellers shall use their reasonable best efforts to give all notices to, and obtain all consents from, all third parties that are listed in Section 2.6(a)(v) of the Schedules. Each party shall cooperate fully with the other party and its Affiliates in promptly seeking to obtain all such authorizations, consents and approvals. The parties hereto shall not willfully take any action that will have the effect of delaying, impairing or impeding the receipt of any required consents, authorizations, orders and approvalsPerson.
(b) Without limiting The Seller and the generality Buyer shall as promptly as practicable, but in no event later than ten (10) Business Days after the date hereof, cause to be filed with the United States Federal Trade Commission (the “FTC”) and the United States Department of Justice (the parties’ undertakings “DOJ”) the notification and report form pursuant to Section 5.2(a)the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976 and the rules and regulations promulgated thereunder (the “HSR Act”) required for the transactions contemplated hereby. Prior to the Closing, each of the parties hereto Seller and the Buyer shall use commercially reasonable efforts to: to obtain early termination of the waiting period under the HSR Act, and the Seller and the Buyer shall, as promptly as practicable, comply with any request for additional information and documents pursuant to the HSR Act. Prior to the Closing, the Seller and the Buyer shall inform each other promptly of any communication made by or on behalf of such Party to (i) respond including permitting the other Party to review such communication in advance), or received from, the FTC or the DOJ and shall furnish to the other such information and assistance as the other may reasonably request in connection with its preparation of any filing, submission or other act that is necessary or advisable under the HSR Act. Prior to the Closing, the Seller and the Buyer shall keep each other timely apprised of the status of any communications with, and any inquiries or requests for additional information from, the FTC or the DOJ, and shall comply promptly with any such inquiry or request. Prior to the Closing, neither Party shall agree to participate in any meeting or discussion with any Governmental Entity in respect of any such filing, investigation or inquiry concerning the transactions contemplated by this Agreement unless it consults with the other Party in advance and, to the extent permitted by such Governmental Entity, gives the other Party the opportunity to attend and participate thereat.
(c) Except as specifically set forth below, the Buyer shall, and shall cause its Affiliates to, take any and all actions necessary to avoid, resolve or eliminate each and every impediment under any Antitrust Law or trade regulation Law that may be asserted by any Governmental Authority Entity or any other Person with respect to the transactions contemplated by this Agreement or and to obtain all consents, approvals, and waivers under any Ancillary Agreement; (ii) avoid the imposition of Antitrust Law that may be required by any order or the taking of any action that would restrain, alter or enjoin the transactions contemplated by this Agreement or any Ancillary Agreement; and (iii) in the event any order of a Governmental Authority adversely affecting the ability of Entity so as to enable the parties to consummate the transactions contemplated by under this Agreement or any Ancillary Agreement is issued, to have such order vacated or lifted.
(c) All analyses, appearances, meetings, discussions, presentations, memoranda, briefs, filings, argumentsas promptly as practicable, and proposals made in any event no later than the End Date, including (i) proposing, negotiating, committing to and effecting as promptly as practicable, by or on behalf of either party before any Governmental Authority or the staff or regulators of any Governmental Authorityconsent decree, in connection with the transactions contemplated hereunder (but, for the avoidance of doubt, not including any interactions between the Company Entities or the Buyer with Governmental Authorities in the ordinary course of business, any notices or filings made in connection with the Name Change, any disclosure which is not permitted by Law or any disclosure containing confidential information) shall be disclosed to the other party hereunder in advance of any filing, submission or attendance, it being the intent that the parties will consult and cooperate with one another, and consider in good faith the views of one another, in connection with any such analyses, appearances, meetings, discussions, presentations, memoranda, briefs, filings, arguments, and proposals. Each party shall give notice to the other party with respect to any meeting, discussion, appearance or contact with any Governmental Authority or the staff or regulators of any Governmental Authority, with such notice being sufficient to provide the other party with the opportunity to attend and participate in such meeting, discussion, appearance or contact.
(d) Notwithstanding the foregoing, nothing in this Section 5.2 shall requirehold separate orders, or be construed to requireotherwise, the sale, divesture, transfer, license, disposition or hold separate (through the establishment of a trust or otherwise) of such assets, properties or businesses of the Buyer or any of its Affiliates (ii) terminating, modifying, or assigning existing relationships, Contracts, or obligations of the Buyer or any of its Affiliates, (iii) changing or modifying any course of conduct regarding future operations of the Buyer or any of its Affiliates, (iv) entering into such other arrangements as are necessary or advisable in order to agree avoid the entry of, and the commencement of litigation seeking the entry of, or to effect the dissolution of, any Order in any Action, which would otherwise have the effect of materially delaying or preventing the consummation of the transactions contemplated under this Agreement, or (v) otherwise taking or committing to take any other action that would limit the Buyer’s or any of its Affiliates’ freedom of action with respect to, or their ability to retain, one or more of their respective operations, divisions, businesses, product lines, customers, assets, rights or interests; provided, that the Buyer is not obligated to take any action contemplated in subsections (i) sell, hold, divest, discontinue or limit, before or after through (v) unless such action is expressly conditioned upon the Closing Date, any assets, businesses or interests of the Buyer, the Company Entities or any of their respective Affiliates; (ii) any conditions relating to, or changes or restrictions in, the operations of any such assets, businesses or interests which, in either case, could reasonably be expected to adversely impact the economic or business benefits to the Buyer of the transactions contemplated by this Agreement; . In addition, if any Action is instituted or threatened challenging the transactions contemplated by this Agreement as violating any Antitrust Law or if any Order (iiiwhether temporary, preliminary or permanent) is entered, enforced or attempted to be entered or enforced by any material modification Governmental Entity that would make the transactions contemplated by this Agreement illegal or waiver otherwise delay or prohibit the consummation of the transactions contemplated by this Agreement, the Buyer and its Affiliates shall take any and all actions to contest and defend any such Action to avoid entry of, or to have vacated, lifted, reversed, repealed, rescinded or terminated, any Order (whether temporary, preliminary or permanent) that prohibits, prevents or restricts consummation of the transactions contemplated by this Agreement. In addition, Buyer shall not, and shall cause its Affiliates not to, take any action after the date hereof that could reasonably be expected to delay the obtaining of, or result in not obtaining, any permission, approval or consent from any Governmental Entity or other Person required to consummate the transactions contemplated herein. Nothing in this Section 6.2(c) shall be deemed to require the Buyer to take any action that would not be commercially reasonable.
(d) The Buyer and the Seller shall each be responsible for the payment of fifty percent (50%) of any fees required in connection with the filing of any notifications and related materials that are required under the HSR Act or any other Antitrust Law.
(e) Prior to the Closing, the Buyer and the Seller shall cooperate with one another in determining whether any action, consent or approval by or in respect of, or filing with, any Governmental Entity (excluding the actions and filings described in Section 6.2(b)), is required or reasonably appropriate in connection with the consummation of the transactions contemplated by this Agreement. Subject to the terms and conditions of this Agreement and the Confidentiality Agreement, in taking such actions, seeking such consents or approvals or making any such filings, the Buyer and the Seller shall furnish information reasonably required in connection therewith and use commercially reasonable efforts to obtain any such actions, consents or approvals and to make any such filings. Notwithstanding the foregoing and Section 6.1, the Seller shall not be required to pay any consideration (except filing and application fees) to any such Governmental Entity from which any such action, consent or approval is requested.
(f) Notwithstanding anything to the contrary contained herein, the Buyer acknowledges and agrees that, except to the extent provided in Section 9.1(b), the successful procurement of any consent, approval or authorization of any third party is not a condition to the Buyer’s obligation to effect the Closing.
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Notices and Consents. (a) Each of the Buyer and the Sellers will, and the Sellers will cause the Company Entities to, give any notices to, make any filings with, and use their reasonable best efforts to obtain any authorizations, consents and approvals of, any Governmental Authority that are necessary in connection with the transactions contemplated hereby, it being understood that nothing Notwithstanding anything in this Agreement shall requireto the contrary, this Agreement will not constitute an agreement to sell, assign, transfer, or be construed to requireconvey any Transferred DQ Valuation Business Contract or other DQ Valuation Business Asset or Luxco IP Asset, the Buyer, the Sellers or any claim, right, or benefit arising under, or resulting from, such Transferred DQ Valuation Business Contract or other DQ Valuation Business Asset or Luxco IP Asset, to Buyers, if a sale, assignment, transfer, or conveyance thereof to Buyers would constitute a material breach or contravention of the Company Entities rights of a third party thereunder (such assets being collectively referred to make any payment in connection with fulfilling such conditions precedent, other than legal and accounting fees and disbursements and regulatory filing fees and costs. The Sellers shall use their reasonable best efforts to give all notices tothis Agreement as “Restricted Assets”, and obtain all consents from, all third parties that are listed such contracts being collectively referred to in Section 2.6(a)(v) of the Schedules. Each party shall cooperate fully with the other party and its Affiliates in promptly seeking to obtain all such authorizations, consents and approvals. The parties hereto shall not willfully take any action that will have the effect of delaying, impairing or impeding the receipt of any required consents, authorizations, orders and approvalsthis Agreement as “Restricted Contracts”).
(b) Without limiting Notwithstanding anything in this Agreement to the generality of contrary, unless and until the parties’ undertakings pursuant applicable consents with respect to Section 5.2(a)any Restricted Asset or Restricted Contract are obtained, each of such Restricted Asset or Restricted Contract will not constitute a DQ Valuation Business Asset or IP Asset, and any Liability with respect to such Restricted Asset or Restricted Contract will not constitute a Transferred Liability, for any purpose under this Agreement. Prior to the Closing, the parties hereto shall will use commercially reasonable efforts to: to obtain, all requisite consents (the “Required Consents”) to (i) respond to any inquiries by any Governmental Authority with respect to the sale, transfer, and assignment on the Closing Date of the Restricted Assets and Restricted Contracts, and (ii) the transactions contemplated by this Agreement under any contracts to which the Transferred Companies are party or under which the Transferred Companies or their assets may be bound that require consent in connection with such transactions; provided, that neither Sellers, nor Buyers, nor any Ancillary Agreement; of their respective Affiliates will be required to grant any additional consideration to any third party, provide additional material security (ii) avoid including a guaranty, other than a guaranty from Buyers or their Affiliates replacing an existing guaranty by any of Sellers or their Affiliates), or incur any additional costs in order to obtain any Required Consent (except, in each case, for reasonable out-of-pocket expenses to the imposition of any order or extent incurred in performing the taking of any action that would restrain, alter or enjoin the transactions contemplated by actions and procedures set forth in this Agreement or any Ancillary Agreement; and (iii) in the event any order of a Governmental Authority adversely affecting the ability of the parties to consummate the transactions contemplated by this Agreement or any Ancillary Agreement is issued, to have such order vacated or liftedSection 5.5(b)).
(c) All analyses, appearances, meetings, discussions, presentations, memoranda, briefs, filings, arguments, and proposals made by or on behalf of either party before any Governmental Authority or In the staff or regulators of any Governmental Authority, in connection with the transactions contemplated hereunder (but, for the avoidance of doubt, not including any interactions between the Company Entities or the Buyer with Governmental Authorities in the ordinary course of business, any notices or filings made in connection with the Name Change, any disclosure which is not permitted by Law or any disclosure containing confidential information) shall be disclosed event that Sellers determine to the other party hereunder in advance of any filing, submission or attendance, it being the intent that the parties will consult and cooperate with one another, and consider in good faith the views of one another, in connection with any such analyses, appearances, meetings, discussions, presentations, memoranda, briefs, filings, arguments, and proposals. Each party shall give notice to the other party seek novation with respect to any meetingTransferred DQ Valuation Business Contract to be assigned hereunder, discussionBuyers will reasonably cooperate with Sellers (including, appearance or contact where necessary, entering into appropriate instruments of assumption) to cause such novation to be obtained and to have Sellers released from all liability to third parties with any Governmental Authority or respect to such Transferred DQ Valuation Business Contract. Additionally, Sellers and Buyers will use their respective commercially reasonable efforts to obtain, prior to the staff or regulators Closing, novation of any Governmental Authority, with such notice being sufficient to provide each of the other party with guarantees by Stock Seller of (i) the opportunity to attend Transferred Companies' obligations under the Contractual Obligations set forth on Schedule 5.5(c) and participate in such meeting, discussion, appearance or contact(ii) the obligations under the Transferred DQ Valuation Business Contracts set forth on Schedule 5.5(c).
(d) Notwithstanding If any Required Consent with respect to a Restricted Asset or Restricted Contract is not obtained prior to the foregoingClosing, nothing in this Section 5.2 shall require, or be construed to require, the Buyer or any for a period of its Affiliates to agree to three (i3) sell, hold, divest, discontinue or limit, before or months after the Closing Date, any assetsthe parties hereto will use commercially reasonable efforts to cooperate with each other to obtain promptly the Required Consents; provided, businesses or interests of the Buyerthat neither Sellers, the Company Entities or nor Buyers, nor any of their respective Affiliates will be required to grant any additional consideration to any third party, provide additional material security (including a guaranty, other than a guaranty from Buyers or their Affiliates replacing an existing guaranty by any of Sellers or their Affiliates; ), or incur any additional costs in order to obtain any Required Consent (except, in each case, for reasonable out-of-pocket expenses to the extent incurred in performing the actions and procedures set forth in this Section 5.5(d)). Pending the earlier of obtaining such Required Consents and the expiration of such three (3)-month period, the parties hereto will use commercially reasonable efforts to cooperate with each other with respect to the underlying rights and obligations in any reasonable and lawful arrangements designed to permit Buyers to perform the obligations of Sellers thereunder, as a subcontractor, supplier, customer, or otherwise, and as will permit Buyers to obtain the benefit thereof (the “Subcontracted Work”). Buyers agree to diligently perform and discharge the obligations of Sellers in connection with the Subcontracted Work, directly or indirectly, as applicable, through Sellers, and Sellers agree to enforce, at Buyers' request and for Buyers' account, any and all rights arising under any such Restricted Contract or Restricted Asset. To the extent that Required Consents with respect to a particular Restricted Asset or Restricted Contract are obtained after the Closing, Sellers and Buyers hereby agree that such obligations will no longer be considered to be Subcontracted Work at such time, the Restricted Asset or Restricted Contract will be deemed a DQ Valuation Business Asset or IP Asset, as applicable, hereunder and will automatically be assigned to Buyers upon the receipt of the applicable consent without any further action by the parties hereto. If any Required Consent with respect to a particular Restricted Asset or Restricted Covenant is not obtained after such three (3)-month period, the parties hereto will use commercially reasonable efforts to cooperate with each other to amend the Transition Services Agreement to provide such Restricted Asset or Restricted Contract at the expiration of the three (3)-month period.
(e) Notwithstanding anything in this Agreement to the contrary, so long as Buyers are obtaining the benefit of any Restricted Asset or Restricted Contract in accordance with Section 5.5(d), the failure to obtain any consent, release, or transfer with respect to such Restricted Asset or Restricted Contract, the failure of such Restricted Asset or Restricted Contract to constitute a Transferred Asset, or any circumstances resulting therefrom, will not (i) constitute a Material Adverse Effect or a breach by any of Sellers of any representation, warranty, covenant, or agreement under this Agreement or by any of Sellers and their applicable Subsidiaries of the Ancillary Documents or (ii) any conditions relating to, or changes or restrictions in, the operations constitute a failure of any such assets, businesses condition under this Agreement or interests which, in either case, could reasonably be expected to adversely impact the economic or business benefits to the Buyer of the transactions contemplated by this Agreement; or (iii) any material modification or waiver of the terms and conditions of this AgreementAncillary Documents.
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Notices and Consents. (a) Each Seller will give any notices to third parties, and will use its Best Efforts to obtain any third party Consents listed on Schedule 5.2 of the Buyer and the Sellers willSeller Disclosure Schedule; provided, and the Sellers however, that nothing in this Section 5.2(a) shall apply to any Center Leases, consents for which are addressed in Section 5.2(d) below. Seller will cause the Company Entities to, give any notices to, make any filings with, and use their reasonable best efforts its Best Efforts to obtain any authorizationsConsents of Governmental Bodies, consents and approvals ofif any, required pursuant to any Governmental Authority that are necessary applicable Law in connection with the transactions contemplated hereby, it being understood that nothing in this Agreement shall require, or be construed to require, the Buyer, the Sellers or any of the Company Entities to make any payment Transactions including in connection with fulfilling the matters referred to in Sections 3.1(c) and 4.3. Buyer shall reasonably cooperate with Seller in obtaining such conditions precedent, other than legal and accounting fees and disbursements and regulatory filing fees and costs. The Sellers shall use their reasonable best efforts to give all notices to, and obtain all consents from, all third parties that are listed in Section 2.6(a)(v) of the Schedules. Each third-party shall cooperate fully with the other party and its Affiliates in promptly seeking to obtain all such authorizations, consents and approvals. The parties hereto shall not willfully take any action that will have the effect of delaying, impairing or impeding the receipt of any required consents, authorizations, orders and approvalsConsents.
(b) Each Party will cooperate and use its Best Efforts to agree jointly on a method to overcome any objections by any Governmental Body to the Transactions. Without limiting the generality of the parties’ undertakings pursuant to Section 5.2(a)foregoing, each of the parties hereto shall use commercially reasonable efforts to: Party (i) respond will file any notification and report forms and related material that such Party may be required to any inquiries by any Governmental Authority with respect to file under the transactions contemplated by this Agreement or any Ancillary Agreement; HSR Act, (ii) avoid if requested by Buyer or Seller, will use its Best Efforts to obtain an early termination of the imposition of any order or the taking of any action that would restrainapplicable waiting period, alter or enjoin the transactions contemplated by this Agreement or any Ancillary Agreement; and (iii) and will make any further filings pursuant thereto that may be necessary, proper, or advisable in connection therewith. Buyer, on the event any order of a Governmental Authority adversely affecting one hand, and Parent, on the ability other, will bear the cost of the parties to consummate the transactions contemplated by this Agreement or any Ancillary Agreement is issued, to have such order vacated or liftedHSR Act filing fee equally.
(c) All analysesNothing in this Section 5.2 will require that (i) Buyer or its Affiliates divest, appearancessell, meetingsor hold separately any of its assets or properties, discussionsor (ii) Buyer or its Affiliates, presentations, memoranda, briefs, filings, arguments, and proposals made by or on behalf of either party before any Governmental Authority or (the staff or regulators of any Governmental Authority, in connection with the transactions contemplated hereunder (but, for the avoidance of doubt, not including any interactions between the Company Entities or the Buyer with Governmental Authorities in the ordinary course of business, any notices or filings made in connection with the Name Change, any disclosure which is not permitted by Law or any disclosure containing confidential information) shall be disclosed to the other party hereunder in advance of any filing, submission or attendance, it being the intent that the parties will consult and cooperate with one another, and consider in good faith the views of one another, in connection with any such analyses, appearances, meetings, discussions, presentations, memoranda, briefs, filings, arguments, and proposals. Each party shall give notice to the other party determination with respect to which Buyer will make) take any meeting, discussion, appearance actions that could affect the normal and regular operations of Buyer or contact with any Governmental Authority or its Affiliates after the staff or regulators of any Governmental Authority, with such notice being sufficient to provide the other party with the opportunity to attend and participate in such meeting, discussion, appearance or contactClosing.
(d) Notwithstanding Seller shall use Best Efforts to deliver to and obtain prior to Closing from each landlord (a “Landlord”) under each Center Lease a Center Lease Consent in the foregoingform of Exhibit J hereto; provided, nothing however, that Seller shall not be required to use such Best Efforts, nor shall Seller be required to formally request any Landlord’s consent, with respect to any Center Lease which gives the Landlord the right to amend, modify or terminate such lease in the event of a proposed assignment or request for approval of an assignment or which contains any similar provision. In the case of any Center Lease giving the Landlord such rights, Seller shall use its Best Efforts to cause the Landlord to waive such rights as to the assignment contemplated hereunder and, upon such waiver, shall use its Best Efforts to obtain a Center Lease Consent in the form of Exhibit J hereto. Seller shall pay all reasonable fees, costs, charges and other expenses associated with or incurred in connection with the execution and delivery to Buyer of each Center Lease Consent; provided, however, that such amounts shall be limited solely to actual out of pocket costs of the Landlord under a given Center Lease, to the extent required under such Center Lease, and Seller’s costs and Seller’s own attorneys fees and costs in connection therewith. Seller shall not be required to pay any other amounts, including, without limitation, any fees or consideration required by any Landlords as a condition to the granting of consent to the assignment of a Center Lease, any amounts described in a given Center Lease as a “profit,” “transfer premium,” “recapture payments,” “key money” or “bonus,” or any other sums described in a Center Lease as consideration payable to or received by Seller in connection with an assignment or sublease. To the extent Seller deems necessary, Seller may enter into amendments to one or more Center Leases, provided that such amendments may not materially alter the economic terms thereof, alter the existing lease term (including any option to extend such term) or otherwise materially adversely affect the rights of the tenant thereunder. Other than the covenant to use its Best Efforts as required by the first sentence of this Section 5.2 5.2(d), in no event shall require, the obtaining or be construed to require, delivery (or the Buyer receipt thereof in or with any particular form or content) of all or any of its Affiliates to agree to (i) sell, hold, divest, discontinue or limit, before or after the Closing Date, Center Lease Consents from any assets, businesses or interests of the BuyerLandlords constitute a covenant, the Company Entities obligation or agreement of Seller under this Agreement, and any failure to obtain or deliver any of their respective Affiliates; (ii) any conditions relating to, the Center Lease Consents shall not constitute a default or changes or restrictions in, the operations of any such assets, businesses or interests which, in either case, could reasonably be expected to adversely impact the economic or business benefits to the Buyer of the transactions contemplated by this Agreement; or (iii) any material modification or waiver of the terms and conditions breach of this Agreement.
Appears in 1 contract
Samples: Asset Purchase Agreement (Insight Health Services Holdings Corp)
