Registrations, Filings and Consents. (a) Subject to the Parties’ additional obligations under this Section 8.3, each Party shall use its respective reasonable best efforts and, as applicable, cooperate with the other Parties, to take, or cause to be taken, all appropriate action, and to do, or cause to be done, all things reasonably necessary, proper or advisable under Laws to consummate and make effective the Transactions, including using its respective reasonable best efforts (i) to fulfill all conditions to the other Party’s obligation to effect the Closing in Article X, (ii) to execute, acknowledge and deliver in proper form any further documents, certificates, agreements and other writings, and take such other action as such other Party may reasonably require, in order to effectively carry out the intent of the Transaction Documents, (iii) to make or cause to be made all registrations, filings, notifications, submissions and applications with, to give all notices to and to obtain any consents, governmental transfers, approvals, orders, qualifications and waivers from any Governmental Authority necessary for the consummation of the Transactions and (iv) not take any action that could reasonably be expected to have the effect of delaying, impairing or impeding the receipt of any such consents, approvals or waivers. (b) The Parties shall duly file with the FTC and the Antitrust Division the notification and report forms (each an “HSR Filing”), that may be required under the HSR Act necessary to consummate the Transactions, as promptly as possible and in no event later than January 18, 2019, including with respect to Buyer causing to be filed by its Affiliates and interest holders any HSR Filings necessary to consummate the Transactions. If an HSR Filing is required, each Party shall cooperate with the other Party to the extent necessary to assist the other Party in the preparation of its HSR Filing, to request early termination of the waiting period required by the HSR Act with respect to the HSR Filing and, if requested, to promptly amend or furnish additional information under its HSR Filing. Each Party shall as promptly as practicable comply with any Laws that are applicable to any of the Transactions and pursuant to which any consent, approval, order or authorization of, or registration, declaration or filing with, any Governmental Authority is necessary. Subject to applicable Laws and the preservation of any applicable attorney-client privilege, the Parties shall promptly furnish to each other all such information as is necessary to prepare any such registration, declaration or filing. The Parties shall have joint decision-making authority with respect to the strategy for obtaining any necessary consents, approvals, orders or authorizations from any Governmental Authority, including under any Antitrust Laws. Neither Buyer nor Sellers, nor their respective counsel, shall independently participate in any substantive call or meeting with any Governmental Authority regarding the Transactions without giving the other Party or its counsel prior notice of such call or meeting and, to the extent permitted by such Governmental Authority, the opportunity to attend and/or participate. In furtherance of the foregoing and to the extent permitted by applicable Law: (i) each Party shall notify the other, as far in advance as practicable, of any material or substantive communication or inquiry it or any of its Affiliates or Subsidiaries intends to make with any Governmental Authority relating to the matters that are the subject of this Section 8.3; (ii) prior to submitting or making any such communication or inquiry, such Party shall provide the other Party and its counsel a reasonable opportunity to review, and shall consider in good faith the comments of the other Party in connection with, any such communication or inquiry; (iii) promptly following the submission or making such communication or inquiry, provide the other Party with a copy of any such communication or inquiry, if in written form; and (iv) consult with the other Party in connection with any inquiry, hearing, investigation or litigation by, or negotiations with, any Governmental Authority relating to the Transactions, including the scheduling of, and strategic planning for, any meetings with any Governmental Authority relating thereto. In exercising the foregoing cooperation rights, Buyer and Sellers each shall act reasonably and as promptly as reasonably practicable. Notwithstanding the foregoing, materials provided pursuant to this Section 8.3 may be reasonably redacted (A) to remove references concerning the valuation of the Transactions, (B) as necessary to comply with contractual arrangements, (C) as necessary to address reasonable privilege concerns or (D) as otherwise required by Law. The Parties shall bear their own costs and expenses incurred with respect to the preparation of their respective filings contemplated in this Section 8.3(b), provided, however, that Buyer shall pay the filing fees, if any, in connection therewith. (c) Each of Seller and Buyer agrees that it will (and will cause its Affiliates to), if necessary to enable the Parties to consummate the Transactions, use reasonable best efforts to defend against any Actions that would prevent, delay or challenge the Transaction Documents or the consummation of the Transactions, including by seeking to vacate or reverse any temporary restraining order, preliminary injunction or other legal restraint or prohibition entered or imposed (or which becomes reasonably foreseeable to be entered or imposed) by any court or other Governmental Authority that is not yet final and nonappealable, in order that the Transactions shall occur as promptly as reasonably practicable and in any event no later than the Outside Date. (d) Buyer shall, at Buyer’s sole cost, take, or cause to be taken, any and all actions and do, or cause to be done, any and all things necessary, proper or advisable to avoid, eliminate and resolve each and every impediment and obtain all Consents required to permit the satisfaction of the conditions in Section 10.4, Section 10.5, Section 11.3, and Section 11.4, as promptly as reasonably practicable and in any event no later than the Outside Date, including by offering and causing its Affiliates to offer to: (i) sell or otherwise dispose of, or hold separate and agree to sell or otherwise dispose of specific assets or categories of assets or businesses constituting the Business or any of the Acquired Assets or any other assets or businesses owned by Buyer or its Affiliates; (ii) terminate any existing relationships and contractual rights and obligations of Buyer or its Affiliates including, after the Closing, the Business or any of the Acquired Assets; (iii) amend or terminate such existing licenses or other intellectual property agreements and to enter into such new licenses or other intellectual property agreements; (iv) take any and all actions and make any and all behavioral commitments, whether or not they limit or modify Buyer’s or its Affiliates’ rights of ownership in, or ability to conduct the business of, one or more of its or their operations, divisions, businesses, product lines, customers or assets, including, after the Closing, the Business or any of the Acquired Assets; and (v) enter into agreements, including with the relevant Governmental Authority, giving effect to the foregoing clauses (i) through (iv) (such actions in clauses (i) through (v), “Antitrust Actions”); provided, that such Antitrust Actions are conditioned upon and become effective only from and after the Closing. In furtherance of the foregoing, prior to the Closing, Buyer shall keep Sellers reasonably informed of all matters, discussions and activities relating to any of the matters described in or contemplated by clauses (i) through (v) of this Section 8.3(d). (e) Notwithstanding anything herein to the contrary, neither Buyer nor Seller, without the other Party’s prior written consent, shall (i) enter into any timing, settlement or similar agreement, or otherwise agree or commit to any arrangement that would have the effect of extending, suspending, lengthening or otherwise tolling the expiration or termination of the waiting period applicable to the Transactions under the HSR Act or any Antitrust Laws, or (ii) enter into any timing or similar agreement, or otherwise agree or commit to any arrangement, that would bind or commit the Parties not to complete the Transactions (or that would otherwise prevent or prohibit the Parties from completing the Transactions).
Appears in 2 contracts
Samples: Asset Purchase Agreement (Sears Holdings Corp), Asset Purchase Agreement (Esl Partners, L.P.)
Registrations, Filings and Consents. (a) Subject Seller and Buyer shall cooperate with each other and use (and shall cause their respective Subsidiaries to the Parties’ additional obligations under this Section 8.3, each Party shall use its use) all their respective reasonable best efforts and, as applicable, cooperate with the other Parties, to take, take or cause to be taken, taken all appropriate actionactions, and to do, do or cause to be done, done all things reasonably necessary, proper or advisable under Laws on their respective parts (i) to consummate and make effective the Transactionstransactions contemplated by this Agreement as soon as reasonably practicable, including using its respective reasonable best efforts (i) to fulfill preparing and filing as promptly as practicable all conditions to the other Party’s obligation documentation to effect the Closing in Article Xall necessary applications, notices, petitions, filings and other documents; (ii) to executeobtain as promptly as reasonably practicable all consents, acknowledge registrations, approvals, permits and deliver in proper form authorizations necessary or advisable to be obtained from any further documents, certificates, agreements and other writings, and take such other action as such other Party may reasonably require, third party and/or any Governmental Entity in order to effectively carry out consummate the intent transactions contemplated by this Agreement (including all consents required to be listed on Schedule 3.2(B) of the Transaction Documents, Seller Disclosure Schedule) and (iii) to make or cause to be made all registrations, filings, notifications, submissions and applications with, to give all notices to and to obtain any consents, governmental transfers, approvals, orders, qualifications and waivers from any Governmental Authority necessary for facilitate the consummation prompt satisfaction of the Transactions conditions set forth in Article VII to the extent within its control (other than by curing inaccuracies in its representations and warranties in Article III or IV that exist and are not within the Knowledge of Buyer (ivin the case of Buyer's obligation under this clause (iii)) or the Knowledge of Seller, (in the case of Seller's obligation under this clause (iii)) as of the date hereof; it being understood that the foregoing shall not take limit any action that could reasonably be expected common law duties to have act in good faith or prejudice any rights or remedies of the effect other party arising under any other provision of delayingthis Agreement). In furtherance of the foregoing, impairing Buyer and Seller agree to file or impeding to cause their Affiliates to file, if applicable, within fifteen (15) days following the receipt of any such consentsdate hereof all documentation, approvals or waivers.
(b) The Parties shall duly file with the FTC filings and the Antitrust Division the notification and report forms (each an “HSR Filing”), that may be required other documents necessary under the HSR Act necessary to consummate the Transactions, as promptly as possible and in no event later than January 18, 2019, including with respect to Buyer causing to be filed by its Affiliates and interest holders any HSR Filings necessary to consummate the Transactions. If an HSR Filing is required, each Party shall cooperate with the other Party to the extent necessary to assist the other Party in the preparation of its HSR Filing, to request early termination of the waiting period required by the HSR Act with respect to the HSR Filing and, if requested, to promptly amend or furnish additional information under its HSR Filing. Each Party shall as promptly as practicable comply with any Laws that are applicable to any of the Transactions and pursuant to which any consent, approval, order or authorization of, or registration, declaration or filing with, any Governmental Authority is necessaryAct. Subject to applicable Laws relating to the exchange of information, Buyer and the preservation of any applicable attorney-client privilege, the Parties shall promptly furnish to each other all such information as is necessary to prepare any such registration, declaration or filing. The Parties Seller shall have joint decision-making authority with respect the right to the strategy for obtaining any necessary consentsreview in advance, approvals, orders or authorizations from any Governmental Authority, including under any Antitrust Laws. Neither Buyer nor Sellers, nor their respective counsel, shall independently participate in any substantive call or meeting with any Governmental Authority regarding the Transactions without giving the other Party or its counsel prior notice of such call or meeting and, to the extent permitted by such Governmental Authority, the opportunity to attend and/or participate. In furtherance of the foregoing and to the extent permitted by applicable Law: (i) practicable each Party shall notify will consult the otherother on, all the information relating to Diageo, Seller or the Company or Buyer, as far in advance as practicablethe case may be, of any material or substantive communication or inquiry it or and any of its Affiliates their respective Subsidiaries, that appear in any filing made with, or Subsidiaries intends to make with written materials submitted to, any third party and/or any Governmental Authority relating to the matters that are the subject of this Section 8.3; (ii) prior to submitting or making any such communication or inquiry, such Party shall provide the other Party and its counsel a reasonable opportunity to review, and shall consider in good faith the comments of the other Party in connection with, any such communication or inquiry; (iii) promptly following the submission or making such communication or inquiry, provide the other Party with a copy of any such communication or inquiry, if in written form; and (iv) consult with the other Party Entity in connection with any inquiry, hearing, investigation or litigation by, or negotiations with, any Governmental Authority relating to the Transactions, including the scheduling of, and strategic planning for, any meetings with any Governmental Authority relating theretotransactions contemplated by this Agreement. In exercising the foregoing cooperation rightsright, each of Buyer and Sellers each Seller shall act reasonably and as promptly as reasonably practicable. Notwithstanding .
(b) To the extent permissible under applicable law and consistent with the instructions of any Person with jurisdiction to review and, as appropriate, authorize or approve the transactions contemplated by this Agreement (each, a "Government Regulatory Entity"), Buyer and Seller each shall keep the other informed of the status of matters relating to completion of the transactions contemplated hereby, including promptly furnishing the other with copies of notices or other communications received by Buyer or Seller, as the case may be, the Company or any of its Subsidiaries or any of the Affiliates or representatives of the foregoing, materials provided pursuant to this Section 8.3 may be reasonably redacted (A) to remove references concerning the valuation of the Transactions, (B) as necessary to comply with contractual arrangements, (C) as necessary to address reasonable privilege concerns or (D) as otherwise required by Law. The Parties shall bear their own costs and expenses incurred from any third party and/or any Governmental Entity with respect to the preparation of their respective filings transactions contemplated in by this Section 8.3(b), provided, however, that Buyer shall pay the filing fees, if any, in connection therewithAgreement.
(c) Each Without limiting the generality of the undertakings pursuant to this Section 6.3, Seller (in the case of clauses (i) and (iii) below) and Buyer agrees that it will (and will cause its Affiliates to), if necessary in all cases below) agree to enable the Parties to consummate the Transactions, use reasonable best efforts to defend against any Actions that would prevent, delay or challenge the Transaction Documents or the consummation of the Transactions, including by seeking to vacate or reverse any temporary restraining order, preliminary injunction or other legal restraint or prohibition entered or imposed (or which becomes reasonably foreseeable to be entered or imposed) by any court or other Governmental Authority that is not yet final and nonappealable, in order that the Transactions shall occur as promptly as reasonably practicable and in any event no later than the Outside Date.
(d) Buyer shall, at Buyer’s sole cost, take, take or cause to be taken, taken the following actions: (i) provide promptly to any Government Regulatory Entity information and all actions and do, documents requested by any Government Regulatory Entity or cause to be done, any and all things necessary, proper or advisable to avoid, eliminate and resolve each and every impediment and obtain all Consents required to permit the satisfaction consummation of the conditions in Section 10.4, Section 10.5, Section 11.3, and Section 11.4, as promptly as reasonably practicable and in any event no later than the Outside Date, including transactions contemplated by offering and causing its Affiliates to offer to: this Agreement; (iii) sell or otherwise dispose of, or hold separate and agree to sell or otherwise dispose of specific assets or of, such assets, categories of assets or businesses constituting the Business or any of the Acquired Assets Company or any other assets or businesses owned by Buyer or its Affiliates; either's respective Subsidiaries (ii) terminate any existing relationships and contractual rights and obligations of Buyer or its Affiliates including, after the Closing, the Business or any of the Acquired Assets; (iii) amend or terminate such existing licenses or other intellectual property agreements and to enter into agreements with the relevant Government Regulatory Entity giving effect thereto) if such new licenses action should be required by any court order obtained by or other intellectual property agreements; (iv) take on behalf of any and all actions and make any and all behavioral commitments, whether or not they limit or modify Buyer’s or its Affiliates’ rights of ownership in, or ability to conduct the business of, one or more of its or their operations, divisions, businesses, product lines, customers or assets, including, after the Closing, the Business or any of the Acquired AssetsGovernment Regulatory Entity; and (viii) enter into agreementsin the event that, including after substantial compliance with all requests for information, any complaint by any Government Regulatory Entity seeking a preliminary or permanent injunction or other order, or, in the relevant Governmental Authoritycase of Government Regulatory Entities located outside the United States, giving effect decision or decree (in all cases other than a request for information) becomes reasonably foreseeable to the foregoing clauses (i) through (iv) (be made or filed and such actions in clauses (i) through (v)injunction or other order, “Antitrust Actions”); provided, that such Antitrust Actions are conditioned upon and become effective only from and after the Closing. In furtherance decision or decree would make consummation of the foregoingtransactions contemplated by the terms of this Agreement unlawful or would prevent or prohibit consummation of the transactions contemplated hereby, take promptly reasonable steps necessary to prevent, vacate, modify or suspend such injunction or order so as to permit such consummation on a schedule as close as possible to that contemplated by this Agreement.
(d) In the event that the Closing occurs prior to the Closing, Buyer shall keep Sellers reasonably informed of all matters, discussions and activities relating to any of time the matters described addressed in or contemplated by clauses Section 6.3 shall have been resolved (iincluding obtaining all consents and approvals) through (v) of this Section 8.3(d)the obligations hereunder shall continue until such resolution.
(e) Notwithstanding anything herein to the contrary, neither Buyer nor Seller, without the other Party’s prior written consent, shall (i) enter into any timing, settlement or similar agreement, or otherwise agree or commit to any arrangement that would have the effect of extending, suspending, lengthening or otherwise tolling the expiration or termination of the waiting period applicable to the Transactions under the HSR Act or any Antitrust Laws, or (ii) enter into any timing or similar agreement, or otherwise agree or commit to any arrangement, that would bind or commit the Parties not to complete the Transactions (or that would otherwise prevent or prohibit the Parties from completing the Transactions).
Appears in 1 contract
Registrations, Filings and Consents. (a) Subject After the date hereof each of the parties hereto shall (i) promptly file documentary materials required by Section 3.12 and Section 4.4 hereto and promptly file any additional information requested as soon as practicable after receipt of request therefor; (ii) furnish the other parties with copies of all documents (except documents or portions thereof for which confidential treatment has been requested) and correspondence (A) prepared by or on behalf of it for submission to any Governmental Entity and (B) received by or on behalf of it or its counsel from any Governmental Entity, in each case in connection with the transactions contemplated by this Agreement; and (iii) use its commercially reasonable efforts to consult with and keep the other parties informed as to the Parties’ additional obligations under this Section 8.3status of such matters. Parent, each Party the Buyer and the Sellers shall, and the Sellers shall cause the SPEs to, use its their respective commercially reasonable best efforts and, as applicable, cooperate with the other Parties, to promptly take, or cause to be taken, all appropriate action, other action and to do, or cause to be done, all other things reasonably necessary, proper or advisable appropriate under applicable Laws to consummate and make effective the Transactionstransactions contemplated by this Agreement as soon as practicable. The Sellers, including using its Parent and the Buyer will cooperate and use their respective commercially reasonable best efforts (ito obtain, as promptly as practicable all consents, approvals, waivers and authorizations required by Section 7.3(f) and under the items set forth on Schedule 7.3(g) hereto. Notwithstanding any other provision of this Agreement, nothing in this Agreement shall require or be construed to fulfill all conditions to require Parent, the other Party’s obligation to effect the Closing in Article XBuyer, (ii) to execute, acknowledge and deliver in proper form their Designees or any further documents, certificates, agreements and other writings, and take such other action as such other Party may reasonably requireSubsidiaries thereof, in order to effectively carry out obtain the intent consent of, or successful termination of any review by, any Governmental Entity regarding the transactions contemplated hereby, to (A) sell or hold separate, or agree to sell or hold separate, before or after the Closing, any of the Transaction DocumentsPurchased Assets or any assets or businesses (or any interests in any assets or businesses), of Parent, the Buyer, their Designees, the SPEs or any of their respective Affiliates (iii) or to make consent to any sale, or cause agreement to be made all registrationssell, filingsby Parent, notificationsthe Buyer, submissions and applications withany Designee, to give all notices to and to obtain any consentsSeller or any SPE, governmental transfersof any assets or businesses, approvalsor any interests in any assets or businesses), ordersor any change in or restriction on the operation by Parent, qualifications and waivers from the Buyer, any Governmental Authority necessary for the consummation Designee, or any SPE of the Transactions and Purchased Assets or any other assets or businesses, or (ivB) not take enter into any action that could reasonably agreement or be expected bound by any obligation that, in Parent's good faith judgment, may have an adverse effect on the benefits to have Parent or the effect Buyer of delaying, impairing or impeding the receipt of any such consents, approvals or waiverstransactions contemplated in this Agreement.
(b) The Parties shall duly file with the FTC Sellers, Parent and the Antitrust Division Buyer shall take all actions necessary to file as soon as practicable (and in any event within fifteen (15) Business Days after the notification date hereof) all notifications, filings and report forms (each an “HSR Filing”), that may be other documents required under the HSR Act necessary Act, and to consummate the Transactions, as promptly as possible and in no event later than January 18, 2019, including with respect to Buyer causing to be filed by its Affiliates and interest holders any HSR Filings necessary to consummate the Transactions. If an HSR Filing is required, each Party shall cooperate with the other Party to the extent necessary to assist the other Party in the preparation of its HSR Filing, to request early termination of the waiting period required by the HSR Act with respect to the HSR Filing and, if requested, to promptly amend or furnish additional information under its HSR Filing. Each Party shall respond as promptly as practicable comply with any Laws that are applicable to any inquiries or requests received from the FTC, the Antitrust Division of the Transactions Department of Justice or any other Governmental Entity, including for additional information or documentation. Subject to Section 6.8(a), Parent and pursuant the Buyer agree to which take promptly all commercially reasonable steps necessary to avoid or eliminate each and every impediment under any consentantitrust or competition law that may be asserted by any Governmental Entity so as to enable the parties to expeditiously close the transactions contemplated by this Agreement; provided, approval, that Parent and the Buyer shall not be obligated to prosecute or defend any litigation against any Governmental Entity in order or authorization to obtain approval of, or registrationavoid or eliminate an impediment to, declaration or filing with, any Governmental Authority is necessary. Subject to applicable Laws and the preservation of any applicable attorney-client privilege, the Parties shall promptly furnish to each other all such information as is necessary to prepare any such registration, declaration or filing. The Parties shall have joint decision-making authority with respect to the strategy for obtaining any necessary consents, approvals, orders or authorizations from any Governmental Authority, including under any Antitrust Laws. Neither Buyer nor Sellers, nor their respective counsel, shall independently participate in any substantive call or meeting with any Governmental Authority regarding the Transactions without giving the other Party or its counsel prior notice of such call or meeting and, to the extent permitted by such Governmental Authority, the opportunity to attend and/or participate. In furtherance of the foregoing and to the extent permitted by applicable Law: (i) each Party shall notify the other, as far in advance as practicable, of any material or substantive communication or inquiry it or any of its Affiliates or Subsidiaries intends to make with any Governmental Authority relating to the matters that are the subject of this Section 8.3; (ii) prior to submitting or making any such communication or inquiry, such Party shall provide the other Party and its counsel a reasonable opportunity to review, and shall consider in good faith the comments of the other Party in connection with, any such communication or inquiry; (iii) promptly following the submission or making such communication or inquiry, provide the other Party with a copy of any such communication or inquiry, if in written form; and (iv) consult with the other Party in connection with any inquiry, hearing, investigation or litigation by, or negotiations with, any Governmental Authority relating to the Transactions, including the scheduling of, and strategic planning for, any meetings with any Governmental Authority relating thereto. In exercising the foregoing cooperation rights, Buyer and Sellers each shall act reasonably and as promptly as reasonably practicable. Notwithstanding the foregoing, materials provided pursuant to this Section 8.3 may be reasonably redacted (A) to remove references concerning the valuation of the Transactions, (B) as necessary to comply with contractual arrangements, (C) as necessary to address reasonable privilege concerns or (D) as otherwise required by Law. The Parties shall bear their own costs and expenses incurred with respect to the preparation of their respective filings contemplated in this Section 8.3(b), provided, however, that Buyer shall pay the filing fees, if any, in connection therewith.
(c) Each of Seller and Buyer agrees that it will (and will cause its Affiliates to), if necessary to enable the Parties to consummate the Transactions, use reasonable best efforts to defend against any Actions that would prevent, delay or challenge the Transaction Documents or the consummation of the Transactions, including by seeking to vacate or reverse any temporary restraining order, preliminary injunction or other legal restraint or prohibition entered or imposed (or which becomes reasonably foreseeable to be entered or imposed) by any court or other Governmental Authority that is not yet final and nonappealable, in order that the Transactions shall occur as promptly as reasonably practicable and in any event no later than the Outside Date.
(d) Buyer shall, at Buyer’s sole cost, take, or cause to be taken, any and all actions and do, or cause to be done, any and all things necessary, proper or advisable to avoid, eliminate and resolve each and every impediment and obtain all Consents required to permit the satisfaction of the conditions in Section 10.4, Section 10.5, Section 11.3, and Section 11.4, as promptly as reasonably practicable and in any event no later than the Outside Date, including by offering and causing its Affiliates to offer to: (i) sell or otherwise dispose of, or hold separate and agree to sell or otherwise dispose of specific assets or categories of assets or businesses constituting the Business or any of the Acquired Assets or any other assets or businesses owned by Buyer or its Affiliates; (ii) terminate any existing relationships and contractual rights and obligations of Buyer or its Affiliates including, after the Closing, the Business or any of the Acquired Assets; (iii) amend or terminate such existing licenses or other intellectual property agreements and to enter into such new licenses or other intellectual property agreements; (iv) take any and all actions and make any and all behavioral commitments, whether or not they limit or modify Buyer’s or its Affiliates’ rights of ownership in, or ability to conduct the business of, one or more of its or their operations, divisions, businesses, product lines, customers or assets, including, after the Closing, the Business or any of the Acquired Assets; and (v) enter into agreements, including with the relevant Governmental Authority, giving effect to the foregoing clauses (i) through (iv) (such actions in clauses (i) through (v), “Antitrust Actions”); provided, that such Antitrust Actions are conditioned upon and become effective only from and after the Closing. In furtherance of the foregoing, prior to the Closing, Buyer shall keep Sellers reasonably informed of all matters, discussions and activities relating to any of the matters described in or transactions contemplated by clauses (i) through (v) of this Section 8.3(d)Agreement.
(e) Notwithstanding anything herein to the contrary, neither Buyer nor Seller, without the other Party’s prior written consent, shall (i) enter into any timing, settlement or similar agreement, or otherwise agree or commit to any arrangement that would have the effect of extending, suspending, lengthening or otherwise tolling the expiration or termination of the waiting period applicable to the Transactions under the HSR Act or any Antitrust Laws, or (ii) enter into any timing or similar agreement, or otherwise agree or commit to any arrangement, that would bind or commit the Parties not to complete the Transactions (or that would otherwise prevent or prohibit the Parties from completing the Transactions).
Appears in 1 contract
Samples: Asset Purchase Agreement (Exds Inc)
Registrations, Filings and Consents. (a) Subject to the Parties’ Seller’s and the Buyer’s additional obligations under this Section 8.3paragraph (b) below, each Party the Seller and the Buyer shall cooperate and use its respective commercially reasonable best efforts and, as applicable, cooperate with the other Parties, to take, or cause to be taken, all appropriate action, and to do, or cause to be done, all things reasonably necessary, proper or advisable under Laws to consummate and make effective the Transactions, including using its respective reasonable best efforts (i) to fulfill all conditions to the other Party’s obligation to effect the Closing in Article X, (ii) to execute, acknowledge and deliver in proper form any further documents, certificates, agreements and other writings, and take such other action as such other Party may reasonably require, in order to effectively carry out the intent of the Transaction Documents, (iii) to make or cause to be made all registrations, filings, notifications, submissions filings and applications withapplications, to give all notices to and to obtain any consents, governmental transfers, approvals, orders, qualifications and waivers from any Governmental Authority necessary for the consummation of the Transactions and transactions contemplated hereby; provided, however, that neither the Seller nor any of its Affiliates shall be required to make any material monetary expenditure, commence or be a plaintiff in any litigation or offer or grant any material accommodation (ivfinancial or otherwise) not take to any action that could reasonably be expected to have Person in connection therewith. Each of the effect of delaying, impairing or impeding the receipt of any such consents, approvals or waivers.
(b) The Parties shall duly file with the FTC Buyer and the Antitrust Division the notification and report forms (each an “HSR Filing”), that may be required under the HSR Act necessary to consummate the Transactions, as promptly as possible and in no event later than January 18, 2019, including with respect to Buyer causing to be filed by its Affiliates and interest holders any HSR Filings necessary to consummate the Transactions. If an HSR Filing is required, each Party shall cooperate with the other Party to the extent necessary to assist the other Party in the preparation of its HSR Filing, to request early termination of the waiting period required by the HSR Act with respect to the HSR Filing and, if requested, to promptly amend or furnish additional information under its HSR Filing. Each Party Seller shall as promptly as practicable comply with the laws and regulations of any Laws Governmental Authority that are applicable to any of the Transactions transactions contemplated by this Agreement and the Ancillary Agreements and pursuant to which any consent, approval, advice, order or authorization of, or registration, declaration or filing with, any such Governmental Authority is necessary. Subject to applicable Laws The Buyer and the preservation of any applicable attorney-client privilege, the Parties Seller shall promptly furnish to each other all such information as is necessary to prepare any such registration, declaration or filing. The Parties Buyer and the Seller shall have joint decision-making authority keep each other apprised of the status of any communications with, and any inquiries or requests for additional information from, any Governmental Authority with respect to the strategy for obtaining any necessary consents, approvals, orders or authorizations from any Governmental Authority, including under any Antitrust Lawstransactions contemplated by this Agreement and the Ancillary Agreements. Neither Buyer nor Sellers, nor their respective counsel, shall independently participate in any substantive call or meeting with any Governmental Authority regarding the Transactions without giving the other Party or its counsel prior notice of such call or meeting and, to the extent permitted by such Governmental Authority, the opportunity to attend and/or participate. In furtherance of the foregoing and to the extent permitted by applicable Law: (i) each Party shall notify the other, as far in advance as practicable, of any material or substantive communication or inquiry it or any of its Affiliates or Subsidiaries intends to make with any Governmental Authority relating to the matters that are the subject of this Section 8.3; (ii) prior to submitting or making any such communication or inquiry, such Party shall provide the other Party and its counsel a reasonable opportunity to review, and shall consider in good faith the comments of the other Party in connection with, any such communication or inquiry; (iii) promptly following the submission or making such communication or inquiry, provide the other Party with a copy of any such communication or inquiry, if in written form; and (iv) consult with the other Party in connection with any inquiry, hearing, investigation or litigation by, or negotiations with, any Governmental Authority relating to the Transactions, including the scheduling of, and strategic planning for, any meetings with any Governmental Authority relating thereto. In exercising the foregoing cooperation rights, The Buyer and Sellers each shall act reasonably and as promptly as reasonably practicable. Notwithstanding the foregoing, materials provided pursuant to this Section 8.3 may be reasonably redacted (A) to remove references concerning the valuation of the Transactions, (B) as necessary to comply with contractual arrangements, (C) as necessary to address reasonable privilege concerns or (D) as otherwise required by Law. The Parties Seller shall bear their own the costs and expenses incurred with respect to the preparation of their respective filings contemplated in this Section 8.3(b7.3(a), ; provided, however, that the Buyer shall pay the filing fees, if any, fees in connection therewith.
(cb) Each of the Buyer and the Seller and Buyer agrees that it will (and will cause its Affiliates to)will, if necessary to enable the Parties Seller and the Buyer to consummate the Transactionstransactions contemplated by this Agreement and the Ancillary Agreements, use commercially reasonable best efforts to defend against any Actions that would preventProceedings, delay judicial or challenge administrative, challenging this Agreement or any of the Transaction Documents Ancillary Agreements or the consummation of the Transactionstransactions contemplated hereby or thereby, including by seeking to vacate or reverse any temporary restraining order, preliminary injunction or other legal restraint or prohibition entered or imposed (or which becomes reasonably foreseeable to be entered or imposed) by any court or other Governmental Authority that is not yet final and nonappealable, in order that the Transactions shall occur as promptly as reasonably practicable and in any event no later than the Outside Date.
(d) Buyer shall, at Buyer’s sole cost, take, or cause to be taken, any and all actions and do, or cause to be done, any and all things necessary, proper or advisable to avoid, eliminate and resolve each and every impediment and obtain all Consents required to permit the satisfaction of the conditions in Section 10.4, Section 10.5, Section 11.3, and Section 11.4, as promptly as reasonably practicable and in any event no later than the Outside Date, including by offering and causing its Affiliates to offer to: (i) sell or otherwise dispose of, or hold separate and agree to sell or otherwise dispose of specific assets or categories of assets or businesses constituting the Business or any of the Acquired Assets or any other assets or businesses owned by Buyer or its Affiliates; (ii) terminate any existing relationships and contractual rights and obligations of Buyer or its Affiliates including, after the Closing, the Business or any of the Acquired Assets; (iii) amend or terminate such existing licenses or other intellectual property agreements and to enter into such new licenses or other intellectual property agreements; (iv) take any and all actions and make any and all behavioral commitments, whether or not they limit or modify Buyer’s or its Affiliates’ rights of ownership in, or ability to conduct the business of, one or more of its or their operations, divisions, businesses, product lines, customers or assets, including, after the Closing, the Business or any of the Acquired Assets; and (v) enter into agreements, including with the relevant Governmental Authority, giving effect to the foregoing clauses (i) through (iv) (such actions in clauses (i) through (v), “Antitrust Actions”); provided, however, that the Seller shall not be under any such Antitrust Actions are conditioned upon and become effective only from and after the Closing. In furtherance obligation to defend against any such Proceedings commenced by any Governmental Authority in respect of the foregoingantitrust, prior to the Closingcompetition, Buyer shall keep Sellers reasonably informed of all matters, discussions and activities relating to any of the matters described in or contemplated by clauses (i) through (v) of this Section 8.3(d).
(e) Notwithstanding anything herein to the contrary, neither Buyer nor Seller, without the other Party’s prior written consent, shall (i) enter into any timing, settlement merger control or similar agreementlaws, rules or otherwise agree or commit to any arrangement that would have the effect of extending, suspending, lengthening or otherwise tolling the expiration or termination of the waiting period applicable to the Transactions under the HSR Act or any Antitrust Laws, or (ii) enter into any timing or similar agreement, or otherwise agree or commit to any arrangement, that would bind or commit the Parties not to complete the Transactions (or that would otherwise prevent or prohibit the Parties from completing the Transactions)regulations.
Appears in 1 contract
Samples: Equity Interest Purchase Agreement (Fuel Systems Solutions, Inc.)
Registrations, Filings and Consents. (a) Subject to the Parties’ Seller’s and the Buyer’s additional obligations under this Section 8.3paragraph (b) and (c) below, each Party shall the Seller and the Buyer will cooperate and use its respective commercially reasonable best efforts and, as applicable, cooperate with the other Parties, to take, or cause to be taken, all appropriate action, and to do, or cause to be done, all things reasonably necessary, proper or advisable under Laws to consummate and make effective the Transactions, including using its respective reasonable best efforts (i) to fulfill all conditions to the other Party’s obligation to effect the Closing in Article X, (ii) to execute, acknowledge and deliver in proper form any further documents, certificates, agreements and other writings, and take such other action as such other Party may reasonably require, in order to effectively carry out the intent of the Transaction Documents, (iii) to make or cause to be made all registrations, filings, notifications, submissions filings and applications withapplications, to give all notices to and to obtain any consents, governmental transfers, approvals, orders, qualifications and waivers from any Governmental Authority necessary for the consummation of the Transactions transactions contemplated hereby; provided, however, that neither the Seller nor any of its Affiliates shall be required to commence or be a plaintiff in any litigation or offer or grant any material accommodation (financial or otherwise) to any Person; and (iv) provided, further, that the Buyer shall not take bear the costs of obtaining any action that could reasonably be expected consents necessary for the consummation of the transaction contemplated hereby with respect to have the effect of delaying, impairing or impeding the receipt of any such consents, approvals or waiversAsset.
(b) The Parties shall duly file with Each of the FTC Buyer and the Antitrust Division the notification and report forms (each an “HSR Filing”), that may be required under the HSR Act necessary to consummate the Transactions, as promptly as possible and in no event later than January 18, 2019, including with respect to Buyer causing to be filed by its Affiliates and interest holders any HSR Filings necessary to consummate the Transactions. If an HSR Filing is required, each Party shall cooperate with the other Party to the extent necessary to assist the other Party in the preparation of its HSR Filing, to request early termination of the waiting period required by the HSR Act with respect to the HSR Filing and, if requested, to promptly amend or furnish additional information under its HSR Filing. Each Party Seller shall as promptly as practicable comply with the laws and regulations of any Laws Governmental Authority that are applicable to any of the Transactions transactions contemplated by this Agreement and the Ancillary Agreements and pursuant to which any consent, approval, advice, order or authorization of, or registration, declaration or filing with, any such Governmental Authority is necessary. Subject to applicable Laws The Buyer and the preservation of any applicable attorney-client privilege, the Parties Seller shall promptly furnish to each other all such information as is necessary to prepare any such registration, declaration or filing. The Parties Buyer and the Seller shall have joint decision-making authority keep each other apprised of the status of any communications with, and any inquiries or requests for additional information from, any Governmental Authority with respect to the strategy for obtaining any necessary consents, approvals, orders or authorizations from any Governmental Authority, including under any Antitrust Lawstransactions contemplated by this Agreement and the Ancillary Agreements. Neither Buyer nor Sellers, nor their respective counsel, shall independently participate in any substantive call or meeting with any Governmental Authority regarding the Transactions without giving the other Party or its counsel prior notice of such call or meeting and, to the extent permitted by such Governmental Authority, the opportunity to attend and/or participate. In furtherance of the foregoing and to the extent permitted by applicable Law: (i) each Party shall notify the other, as far in advance as practicable, of any material or substantive communication or inquiry it or any of its Affiliates or Subsidiaries intends to make with any Governmental Authority relating to the matters that are the subject of this Section 8.3; (ii) prior to submitting or making any such communication or inquiry, such Party shall provide the other Party and its counsel a reasonable opportunity to review, and shall consider in good faith the comments of the other Party in connection with, any such communication or inquiry; (iii) promptly following the submission or making such communication or inquiry, provide the other Party with a copy of any such communication or inquiry, if in written form; and (iv) consult with the other Party in connection with any inquiry, hearing, investigation or litigation by, or negotiations with, any Governmental Authority relating to the Transactions, including the scheduling of, and strategic planning for, any meetings with any Governmental Authority relating thereto. In exercising the foregoing cooperation rights, The Buyer and Sellers each shall act reasonably and as promptly as reasonably practicable. Notwithstanding the foregoing, materials provided pursuant to this Section 8.3 may be reasonably redacted (A) to remove references concerning the valuation of the Transactions, (B) as necessary to comply with contractual arrangements, (C) as necessary to address reasonable privilege concerns or (D) as otherwise required by Law. The Parties Seller shall bear their own the costs and expenses incurred with respect to the preparation of their respective filings contemplated in this Section 8.3(b7.3(b), ; provided, however, that the Buyer and the Seller shall each pay one-half of the filing fees, if any, fees in connection therewith.
(c) Each of the Buyer and the Seller and Buyer agrees that it will (and will cause its Affiliates to)will, if necessary to enable the Parties Seller and the Buyer to consummate the Transactionstransactions contemplated by this Agreement and the Ancillary Agreements, use commercially reasonable best efforts to defend against any Actions that would preventsuits, delay actions or challenge proceedings, judicial or administrative, challenging this Agreement or any of the Transaction Documents Ancillary Agreements or the consummation of the Transactionstransactions contemplated hereby or thereby, including by seeking to vacate or reverse any temporary restraining order, preliminary injunction or other legal restraint or prohibition entered or imposed (or which becomes reasonably foreseeable to be entered or imposed) by any court or other Governmental Authority that is not yet final and nonappealable, in order that the Transactions shall occur as promptly as reasonably practicable and in any event no later than the Outside Date.
(d) Buyer shall, at Buyer’s sole cost, take, or cause to be taken, any and all actions and do, or cause to be done, any and all things necessary, proper or advisable to avoid, eliminate and resolve each and every impediment and obtain all Consents required to permit the satisfaction of the conditions in Section 10.4, Section 10.5, Section 11.3, and Section 11.4, as promptly as reasonably practicable and in any event no later than the Outside Date, including by offering and causing its Affiliates to offer to: (i) sell or otherwise dispose of, or hold separate and agree to sell or otherwise dispose of specific assets or categories of assets or businesses constituting the Business or any of the Acquired Assets or any other assets or businesses owned by Buyer or its Affiliates; (ii) terminate any existing relationships and contractual rights and obligations of Buyer or its Affiliates including, after the Closing, the Business or any of the Acquired Assets; (iii) amend or terminate such existing licenses or other intellectual property agreements and to enter into such new licenses or other intellectual property agreements; (iv) take any and all actions and make any and all behavioral commitments, whether or not they limit or modify Buyer’s or its Affiliates’ rights of ownership in, or ability to conduct the business of, one or more of its or their operations, divisions, businesses, product lines, customers or assets, including, after the Closing, the Business or any of the Acquired Assets; and (v) enter into agreements, including with the relevant Governmental Authority, giving effect to the foregoing clauses (i) through (iv) (such actions in clauses (i) through (v), “Antitrust Actions”); provided, that such Antitrust Actions are conditioned upon and become effective only from and after the Closing. In furtherance of the foregoing, prior to the Closing, Buyer shall keep Sellers reasonably informed of all matters, discussions and activities relating to any of the matters described in or contemplated by clauses (i) through (v) of this Section 8.3(d).
(e) Notwithstanding anything herein to the contrary, neither Buyer nor Seller, without the other Party’s prior written consent, shall (i) enter into any timing, settlement or similar agreement, or otherwise agree or commit to any arrangement that would have the effect of extending, suspending, lengthening or otherwise tolling the expiration or termination of the waiting period applicable to the Transactions under the HSR Act or any Antitrust Laws, or (ii) enter into any timing or similar agreement, or otherwise agree or commit to any arrangement, that would bind or commit the Parties not to complete the Transactions (or that would otherwise prevent or prohibit the Parties from completing the Transactions).
Appears in 1 contract
Samples: Equity Interest Purchase Agreement (Houston Wire & Cable CO)
Registrations, Filings and Consents. (a) Subject to the Parties’ Seller’s and Buyer’s additional obligations under this Section 8.3paragraphs (b) and (c) below, each Party shall Seller and Buyer will cooperate and use its respective commercially reasonable best efforts and, as applicable, cooperate with the other Parties, to take, or cause to be taken, all appropriate action, and to do, or cause to be done, all things reasonably necessary, proper or advisable under Laws to consummate and make effective the Transactions, including using its respective reasonable best efforts (i) to fulfill all conditions to the other Party’s obligation to effect the Closing in Article X, (ii) to execute, acknowledge and deliver in proper form any further documents, certificates, agreements and other writings, and take such other action as such other Party may reasonably require, in order to effectively carry out the intent of the Transaction Documents, (iii) to make or cause to be made all registrations, filings, notifications, submissions filings and applications withapplications, to give all notices to and to obtain any consents, governmental transfers, approvals, orders, qualifications and waivers from any Governmental Authority necessary for the consummation of the Transactions and transactions contemplated hereby; provided, however, that, except as otherwise expressly provided in this Agreement, neither Seller nor any of its Affiliates shall be required to make any material monetary expenditure, commence or be a plaintiff in any litigation or offer or grant any material accommodation (ivfinancial or otherwise) not take to any action that could reasonably be expected to have the effect of delaying, impairing or impeding the receipt of any such consents, approvals or waiversPerson.
(b) The Parties Seller and Buyer shall duly file with the FTC and the Antitrust Division the notification and report forms form (each an the “HSR Filing”), that may be ) required under the HSR Act necessary to consummate the Transactions, as promptly as possible and in no event later than January 18, 2019, including with respect to Buyer causing to be filed by its Affiliates and interest holders any HSR Filings necessary to consummate the Transactionstransactions contemplated hereby no later than the fifth (5th) Business Day following the date hereof. If an The HSR Filing is required, each Party shall be in substantial compliance with the requirements of the HSR Act. Each party shall cooperate with the other Party party to the extent necessary to assist the other Party party in the preparation of its HSR Filing, to request early termination of the waiting period required by the HSR Act with respect to the HSR Filing and, if requested, to promptly amend or furnish additional information under its HSR Filingthereunder. Each Party of Buyer and Seller shall as promptly as practicable comply with the laws and regulations of any Laws Governmental Authority that are applicable to any of the Transactions transactions contemplated by this Agreement and the Ancillary Agreements and pursuant to which any consent, approval, advice, order or authorization of, or registration, declaration or filing with, any such Governmental Authority is necessary. Subject to applicable Laws Buyer and the preservation of any applicable attorney-client privilege, the Parties Seller shall promptly furnish to each other all such information as is necessary to prepare any such registration, declaration or filing. The Parties Buyer and Seller shall have joint decision-making authority keep each other apprised of the status of any communications with, and any inquiries or requests for additional information from, any Governmental Authority with respect to the strategy for obtaining any necessary consents, approvals, orders or authorizations from any Governmental Authority, including under any Antitrust Lawstransactions contemplated by this Agreement and the Ancillary Agreements. Neither Buyer nor Sellers, nor their respective counsel, shall independently participate in any substantive call or meeting with any Governmental Authority regarding the Transactions without giving the other Party or its counsel prior notice of such call or meeting and, to the extent permitted by such Governmental Authority, the opportunity to attend and/or participate. In furtherance of the foregoing and to the extent permitted by applicable Law: (i) each Party shall notify the other, as far in advance as practicable, of any material or substantive communication or inquiry it or any of its Affiliates or Subsidiaries intends to make with any Governmental Authority relating to the matters that are the subject of this Section 8.3; (ii) prior to submitting or making any such communication or inquiry, such Party shall provide the other Party and its counsel a reasonable opportunity to review, and shall consider in good faith the comments of the other Party in connection with, any such communication or inquiry; (iii) promptly following the submission or making such communication or inquiry, provide the other Party with a copy of any such communication or inquiry, if in written form; and (iv) consult with the other Party in connection with any inquiry, hearing, investigation or litigation by, or negotiations with, any Governmental Authority relating to the Transactions, including the scheduling of, and strategic planning for, any meetings with any Governmental Authority relating thereto. In exercising the foregoing cooperation rights, Buyer and Sellers each shall act reasonably and as promptly as reasonably practicable. Notwithstanding the foregoing, materials provided pursuant to this Section 8.3 may be reasonably redacted (A) to remove references concerning the valuation of the Transactions, (B) as necessary to comply with contractual arrangements, (C) as necessary to address reasonable privilege concerns or (D) as otherwise required by Law. The Parties Seller shall bear their own the costs and expenses incurred with respect to the preparation of their respective filings contemplated in this Section 8.3(b5.2(b), ; provided, however, that Buyer and Seller shall pay split equally the filing fees, if any, fees in connection therewithwith the HSR Filing.
(c) Each of Buyer and Seller and Buyer agrees that it will (and will cause its Affiliates to)will, if necessary to enable the Parties Seller and Buyer to consummate the Transactionstransactions contemplated by this Agreement and the Ancillary Agreements, use commercially reasonable best efforts to defend against any Actions that would preventsuits, delay actions or challenge proceedings, judicial or administrative, challenging this Agreement or any of the Transaction Documents Ancillary Agreements or the consummation of the Transactionstransactions contemplated hereby or thereby, including by seeking to vacate or reverse any temporary restraining order, preliminary injunction or other legal restraint or prohibition entered or imposed (or which becomes reasonably foreseeable to be entered or imposed) by any court or other Governmental Authority that is not yet final and nonappealable; provided, however, that (i) Seller shall not be under any such obligation to defend against any such actions or proceedings commenced by any Governmental Authority in respect of the antitrust, competition, merger control or similar laws, rules or regulations, and (ii) Buyer agrees that it shall engage in active negotiations with, and make an offer to, and enter into an agreement with, the FTC, the Antitrust Division, applicable works council and/or any other Governmental Authority to divest, and to hold separate pending such divestiture, any and all assets and operations of the Business, all as necessary to prevent the commencement of any action or proceeding seeking, and/or prevent the entry of, or effect the dissolution of, a decree, restraining or other order and/or preliminary or permanent injunction preventing the consummation, in order whole or in part, of the transactions contemplated by this Agreement and to permit Seller and the Selling Subsidiaries and Buyer to otherwise fully consummate the transactions contemplated by this Agreement and the Ancillary Agreements and the Closing and the purchase and sale of the Shares and the Business Assets pursuant hereto; provided, further, however, that Buyer shall not be required to offer or agree to the Transactions shall occur as promptly as divestiture or holding separate of any properties, assets, operations or businesses if such divestiture or holding separate requirement would, individually or in the aggregate, reasonably practicable and be expected to result in any event no later than a Material Adverse Change either before or after the Outside DateClosing.
(d) Buyer shallWith the exception of Intellectual Property, at Buyer’s sole costwhich shall be transferred, takeconveyed, assigned, or cause licensed exclusively through the GMS Intellectual Property Asset Transfer Agreement, the Intellectual Property License Agreement and the Intellectual Property Grant-Back License Agreement, to be takenthe extent that any of the Business Assets include rights or assets that (i) are necessary for the operation of any business (other than the Business) of Seller or its Affiliates and (ii) were used by Seller or any of its Affiliates prior to the Effective Time, any Buyer agrees, to the extent commercially reasonable, to transfer, convey, assign, license, sublicense, share or enter into another arrangement with respect to such rights or assets so that Seller and all actions its Affiliates shall have substantially similar benefits (subject to the burdens) of such rights and doassets for such other business as they had prior to the Effective Time; provided, or cause to be donehowever, any and all things necessary, proper or advisable to avoid, eliminate and resolve each and every impediment and obtain all Consents required that the foregoing shall not require Buyer (A) to permit the satisfaction of the conditions in Section 10.4, Section 10.5, Section 11.3, and Section 11.4, as promptly as reasonably practicable and in any event no later than the Outside Date, including by offering and causing Seller or its Affiliates to offer to: use such rights or assets in violation of Section 5.14(a), (iB) sell to transfer, convey, assign, license, sublicense or otherwise dispose of, or hold separate and agree to sell or otherwise dispose of specific assets or categories of assets or businesses constituting the Business or any of the Acquired Assets or any other assets or businesses owned by Buyer or its Affiliates; (ii) terminate any existing relationships and contractual rights and obligations of Buyer or its Affiliates including, after the Closing, the Business or any of the Acquired Assets; (iii) amend or terminate such existing licenses or other intellectual property agreements and to enter into such new licenses other arrangement if such action precludes or other intellectual property agreements; (iv) take any and all actions and make any and all behavioral commitments, whether or not they limit or modify materially impairs Buyer’s use of such rights or its Affiliates’ rights of ownership in, or ability to conduct assets in the business of, one or more of its or their operations, divisions, businesses, product lines, customers or assets, including, after the Closing, the Business or any of the Acquired Assets; and (v) enter into agreements, including with the relevant Governmental Authority, giving effect to the foregoing clauses (i) through (iv) (such actions in clauses (i) through (v), “Antitrust Actions”); provided, that such Antitrust Actions are conditioned upon and become effective only from and after the Closing. In furtherance of the foregoing, prior to the Closing, Buyer shall keep Sellers reasonably informed of all matters, discussions and activities relating to any of the matters described in or contemplated by clauses (i) through (v) of this Section 8.3(d).
(e) Notwithstanding anything herein to the contrary, neither Buyer nor Seller, without the other Party’s prior written consent, shall (i) enter into any timing, settlement or similar agreement, or otherwise agree or commit to any arrangement that would have the effect of extending, suspending, lengthening or otherwise tolling the expiration or termination of the waiting period applicable to the Transactions under the HSR Act or any Antitrust LawsBusiness, or (iiC) enter into to make any timing monetary expenditure, commence or similar agreement, be a plaintiff in any litigation or otherwise agree offer or commit grant any accommodation (financial or otherwise) to any arrangementPerson unless and until Buyer is fully indemnified, that would bind or commit the Parties not reimbursed and held harmless, as determined by Buyer to complete the Transactions (or that would otherwise prevent or prohibit the Parties from completing the Transactions)its reasonable satisfaction.
Appears in 1 contract
Samples: Purchase Agreement (Teleflex Inc)
Registrations, Filings and Consents. (a) Subject to the Parties’ Seller’s and Buyer’s additional obligations under this Section 8.3paragraphs (b) and (c) below, each Party shall Seller and Buyer will cooperate and use its respective reasonable best efforts andto make, as applicableon a timely basis, cooperate with the other Parties, to take, or cause to be taken, all appropriate action, and to do, or cause to be done, all things reasonably necessary, proper or advisable under Laws to consummate and make effective the Transactions, including using its respective reasonable best efforts (i) to fulfill all conditions to the other Party’s obligation to effect the Closing in Article X, (ii) to execute, acknowledge and deliver in proper form any further documents, certificates, agreements and other writings, and take such other action as such other Party may reasonably require, in order to effectively carry out the intent of the Transaction Documents, (iii) to make or cause to be made all registrations, filings, notifications, submissions filings and applications with, to give all notices to and to obtain any consents, governmental transfers, approvals, orders, qualifications and waivers from any Governmental Authority necessary for the consummation of the Transactions transactions contemplated hereby; provided, however, that neither Seller nor any of its Affiliates shall be required to make any material monetary expenditure, commence or be a plaintiff in any litigation or offer or grant any material accommodation (financial or otherwise) to any Person. Buyer shall pay all fees associated with such registrations, filings, applications, notices, transfers, approvals, orders, qualifications and waivers, including all fees payable in connection with the HSR Filing (ivas defined below) not take and any action that could reasonably be expected to have antitrust or competition filings in other jurisdictions, such as under Council Regulation No. 139/2004 of the effect of delaying, impairing or impeding the receipt of any such consents, approvals or waiversEuropean Community.
(b) The Parties shall duly Within seven Business Days of the date hereof, Buyer will determine whether it is required to file with the FTC and the Antitrust Division the notification and report forms form (each an the “HSR Filing”), that may be ) required under the HSR Act necessary to consummate the Transactions, as promptly as possible and in no event later than January 18, 2019, including with respect to Buyer causing to be filed by its Affiliates the transactions contemplated hereby and interest holders any HSR Filings necessary to consummate the Transactionswill provide Seller with written notice of such determination. If an so required, Seller and Buyer shall duly file the HSR Filing is required, each Party no later than the tenth Business Day following the date hereof. The HSR Filing shall be in substantial compliance with the requirements of the HSR Act. Each party shall cooperate with the other Party party to the extent necessary to assist the other Party party in the preparation of its HSR Filing, to request early termination of the waiting period required by the HSR Act with respect to the HSR Filing and, if requested, use its commercially reasonable efforts to promptly amend or furnish certify as soon as practicable their substantial compliance with any requests for additional information or documentary material that may be made under its the HSR FilingAct. Seller and Buyer shall duly file with the EU Commission the notification required under the EC Merger Regulation with respect to the transactions contemplated hereby no later than the fifth Business Day following the date hereof. The filing to the EU Commission, (the “Form CO”) shall be in substantial compliance with the requirements of the EC Merger Regulation. Each Party party shall cooperate with the other party to the extent necessary to assist the other party in the preparation of the Form CO, and, if requested, use its commercially reasonable efforts to certify as soon as practicable their substantial compliance with any requests for additional information or documentary material that may be made under the EC Merger Regulation. Each of Buyer and Seller shall as promptly as practicable comply with the laws and regulations of any Laws other Governmental Authority that are applicable to any of the Transactions transactions contemplated by this Agreement and the Ancillary Agreements and pursuant to which any consent, approval, order or authorization of, or registration, declaration or filing with, any with such Governmental Authority is necessary, but in no event shall each of Seller and Buyer make any necessary initial filings, notifications, reports, registrations or declarations with any such Governmental Authority or take any initial action required by such Governmental Authority later than the fifth Business Day following the date hereof. Subject to applicable Laws Buyer and the preservation of any applicable attorney-client privilege, the Parties Seller shall promptly furnish to each other all such information as is necessary to prepare any such registration, declaration or filing. The Parties Buyer and Seller shall have joint decision-making authority keep each other apprised of the status of any communications with, and any inquiries or requests for additional information from, any Governmental Authority with respect to the strategy for obtaining transactions contemplated by this Agreement and the Ancillary Agreements. Seller shall be permitted to attend any necessary consentsmeetings related to the foregoing between Buyer or its Affiliates, approvalson the one hand, orders and the FTC, the Antitrust Division, the EU Commission or authorizations from any other Governmental Authority, including under any Antitrust LawsAuthority on the other. Neither Buyer nor Sellers, nor their respective counsel, shall independently participate in any substantive call or meeting provide to Seller copies of all filings made by Buyer with any Governmental Authority regarding the Transactions without giving the other Party or its counsel prior notice of such call or meeting and, to the extent permitted by such Governmental Authority, the opportunity to attend and/or participate. In furtherance of the foregoing and to the extent permitted by applicable Law: (i) each Party shall notify the other, as far in advance as practicable, of any material or substantive communication or inquiry it or any of its Affiliates or Subsidiaries intends other information supplied by Buyer to make with any a Governmental Authority relating to the matters that are the subject of this Section 8.3; (ii) prior to submitting or making any such communication or inquiry, such Party shall provide the other Party and its counsel a reasonable opportunity to review, and shall consider in good faith the comments of the other Party in connection with, any such communication or inquiry; (iii) promptly following the submission or making such communication or inquiry, provide the other Party with a copy of any such communication or inquiry, if in written form; and (iv) consult with the other Party in connection with any inquirythis Agreement and the Ancillary Agreements and the transactions contemplated hereby and thereby; provided, hearinghowever, investigation or litigation by, or negotiations with, any Governmental Authority relating to the Transactions, including the scheduling of, and strategic planning for, any meetings with any Governmental Authority relating thereto. In exercising the foregoing cooperation rights, Buyer and Sellers each shall act reasonably and as promptly as reasonably practicable. Notwithstanding the foregoing, that materials provided pursuant to this Section 8.3 may be reasonably redacted (Ai) to remove references concerning the valuation of the Transactions, Business and (Bii) as necessary to comply with applicable law or contractual arrangements, (C) as necessary to address reasonable privilege concerns or (D) as otherwise required by Law. The Parties shall bear their own costs and expenses incurred with respect to the preparation of their respective filings contemplated in this Section 8.3(b), provided, however, that Buyer shall pay the filing fees, if any, in connection therewith.
(ci) Each of Buyer and Seller and Buyer agrees that it will (and will cause its Affiliates to)will, if necessary to enable the Parties Seller and Buyer to consummate the Transactionstransactions contemplated by this Agreement and the Ancillary Agreements, use reasonable best efforts to defend against any Actions that would preventsuits, delay actions or challenge proceedings, judicial or administrative, challenging this Agreement or the Transaction Documents Ancillary Agreements or the consummation of the Transactionstransactions contemplated hereby or thereby, including by seeking to vacate or reverse any temporary restraining order, preliminary injunction or other legal restraint or prohibition entered or imposed (or which becomes reasonably foreseeable to be entered or imposed) by any court or other Governmental Authority that is not yet final and nonappealable; provided, that Seller shall not be under any such obligation to defend against any such actions or proceedings commenced by any Governmental Authority in order that respect of the Transactions shall occur as promptly as reasonably practicable antitrust, competition, merger control or similar laws, rules or regulations, and in any event no later than the Outside Date.
(dii) Buyer shallagrees that it shall make an offer to and enter into an agreement with the FTC, at Buyer’s sole costthe Antitrust Division, take, the EU Commission and/or any other Governmental Authority to undertake behavioral commitments or cause to be takendivest and hold separate pending such divestiture, any and all actions assets and do, or cause to be done, any and all things necessary, proper or advisable to avoid, eliminate and resolve each and every impediment and obtain all Consents required to permit the satisfaction operations of the conditions in Section 10.4Business (and/or approximately equivalent assets or businesses of Buyer or any Affiliate of Buyer) as are necessary to prevent the commencement of any action or proceeding seeking, Section 10.5, Section 11.3, and Section 11.4, as promptly as reasonably practicable and in any event no later than and/or prevent the Outside Date, including by offering and causing its Affiliates to offer to: (i) sell or otherwise dispose entry of, or hold separate and agree to sell effect the dissolution of, a decree, restraining or otherwise dispose of specific assets other order and/or preliminary or categories of assets permanent injunction preventing the consummation, in whole or businesses constituting the Business or any in part, of the Acquired Assets or any other assets or businesses owned transactions contemplated by this Agreement and to permit Seller and the Selling Subsidiaries and Buyer or its Affiliates; (ii) terminate any existing relationships to otherwise fully consummate the transactions contemplated by this Agreement and contractual rights the Ancillary Agreements and obligations of Buyer or its Affiliates including, after the Closing, Closing and the Business or any purchase and sale of the Acquired Assets; (iii) amend or terminate such existing licenses or other intellectual property agreements and to enter into such new licenses or other intellectual property agreements; (iv) take any and all actions and make any and all behavioral commitments, whether or not they limit or modify Buyer’s or its Affiliates’ rights of ownership in, or ability to conduct the business of, one or more of its or their operations, divisions, businesses, product lines, customers or assets, including, after the Closing, the Business or any of the Acquired Assets; and (v) enter into agreements, including with the relevant Governmental Authority, giving effect to the foregoing clauses (i) through (iv) (such actions in clauses (i) through (v), “Antitrust Actions”); provided, that such Antitrust Actions are conditioned upon and become effective only from and after the ClosingTransferred Assets pursuant hereto. In furtherance Without limitation of the foregoing, prior to the ClosingSeller, Buyer and their respective Affiliates shall keep Sellers reasonably informed of all matters, discussions and activities relating to not extend any of the matters described in or contemplated by clauses (i) through (v) of this Section 8.3(d).
(e) Notwithstanding anything herein to the contrary, neither Buyer nor Seller, without the other Party’s prior written consent, shall (i) enter into any timing, settlement or similar agreement, or otherwise agree or commit to any arrangement that would have the effect of extending, suspending, lengthening or otherwise tolling the expiration or termination of the waiting period applicable to the Transactions under the HSR Act or any Antitrust Laws, non-United States foreign antitrust merger control laws or (ii) enter into any timing or similar agreement, or otherwise agree or commit to agreement with any arrangement, that would bind or commit the Parties Governmental Authority not to complete consummate the Transactions (or that would otherwise prevent or prohibit transactions contemplated by this Agreement, except with the Parties from completing prior written consent of the Transactions)other party hereto.
Appears in 1 contract
Samples: Stock and Asset Purchase Agreement (Crown Holdings Inc)
Registrations, Filings and Consents. (a) Subject to the Parties’ Company’s and Buyer’s additional obligations under this Section 8.3paragraphs (b) and (c) below, each Party shall the Company, the Sellers and Buyer will cooperate and use its respective reasonable best efforts andto make, as applicableon a timely basis, cooperate with the other Parties, to take, or cause to be taken, all appropriate action, and to do, or cause to be done, all things reasonably necessary, proper or advisable under Laws to consummate and make effective the Transactions, including using its respective reasonable best efforts (i) to fulfill all conditions to the other Party’s obligation to effect the Closing in Article X, (ii) to execute, acknowledge and deliver in proper form any further documents, certificates, agreements and other writings, and take such other action as such other Party may reasonably require, in order to effectively carry out the intent of the Transaction Documents, (iii) to make or cause to be made all registrations, filings, notifications, submissions filings and applications withapplications, to give all notices to and to obtain any consents, governmental transfers, approvals, orders, qualifications and waivers from any Governmental Authority necessary for the consummation of the Transactions transactions contemplated hereby, including any notifications required to be made with the OIR pursuant to the Florida HMO Statutes or any other Governmental Authority. Buyer shall pay all fees associated with such registrations, filings, applications, notices, transfers, approvals, orders, qualifications and waivers, including all fees payable in connection with the HSR Filing (iv) not take any action that could reasonably be expected to have the effect of delaying, impairing or impeding the receipt of any such consents, approvals or waiversas defined below).
(b) The Parties Company and Buyer shall duly file with the FTC and the Antitrust Division the notification and report forms form (each an the “HSR Filing”), that may be ) required under the HSR Act necessary to consummate the Transactions, as promptly as possible and in no event later than January 18, 2019, including with respect to Buyer causing to be filed by its Affiliates and interest holders any HSR Filings necessary to consummate the Transactionstransactions contemplated hereby no later than the tenth Business Day following the date hereof. If an The HSR Filing is required, each Party shall be in substantial compliance with the requirements of the HSR Act. Each party shall cooperate with the other Party party to the extent necessary to assist the other Party party in the preparation of its HSR Filing, to request early termination of the waiting period required by the HSR Act with respect to the HSR Filing and, if requested, use its reasonable best efforts to promptly amend or furnish certify as soon as practicable their substantial compliance with any requests for additional information or documentary material that may be made under its the HSR FilingAct. Each Party of Buyer and the Company shall as promptly as practicable comply with the laws and regulations of any Laws other Governmental Authority that are applicable to any of the Transactions transactions contemplated by this Agreement and pursuant to which any consent, approval, order or authorization of, or registration, declaration or filing with, any with such Governmental Authority is necessary, but in no event shall each of the Company and Buyer make any necessary initial filings, notifications, reports, registrations or declarations with any such Governmental Authority or take any initial action required by such Governmental Authority later than the tenth Business Day following the date hereof. Subject to applicable Laws Buyer and the preservation of any applicable attorney-client privilege, the Parties Company shall promptly furnish to each other all such information as is necessary to prepare any such registration, declaration or filing. The Parties Buyer and the Company shall have joint decision-making authority keep each other apprised of the status of any communications with, and any inquiries or requests for additional information from, any Governmental Authority with respect to the strategy for obtaining any necessary consents, approvals, orders or authorizations from any Governmental Authority, including under any Antitrust Lawstransactions contemplated by this Agreement. Neither Buyer nor Sellers, nor their respective counsel, and the Company shall independently participate in any substantive call or meeting provide each other with copies of all filings made by such party with any Governmental Authority regarding the Transactions without giving the other Party or its counsel prior notice of such call or meeting and, to the extent permitted by such Governmental Authority, the opportunity to attend and/or participate. In furtherance of the foregoing and to the extent permitted by applicable Law: (i) each Party shall notify the other, as far in advance as practicable, of any material or substantive communication or inquiry it or any of its Affiliates or Subsidiaries intends other information supplied by Buyer to make with any a Governmental Authority relating to the matters that are the subject of this Section 8.3; (ii) prior to submitting or making any such communication or inquiry, such Party shall provide the other Party and its counsel a reasonable opportunity to review, and shall consider in good faith the comments of the other Party in connection with, any such communication or inquiry; (iii) promptly following the submission or making such communication or inquiry, provide the other Party with a copy of any such communication or inquiry, if in written form; and (iv) consult with the other Party in connection with any inquirythis Agreement and the transactions contemplated hereby and thereby; provided, hearinghowever, investigation or litigation by, or negotiations with, any Governmental Authority relating to the Transactions, including the scheduling of, and strategic planning for, any meetings with any Governmental Authority relating thereto. In exercising the foregoing cooperation rights, Buyer and Sellers each shall act reasonably and as promptly as reasonably practicable. Notwithstanding the foregoing, that materials provided pursuant to this Section 8.3 may be reasonably redacted (Ai) to remove references concerning the valuation of the Transactions, Company and its Subsidiaries and (Bii) as necessary to comply with applicable law or contractual arrangements, (C) as necessary to address reasonable privilege concerns or (D) as otherwise required by Law. The Parties shall bear their own costs and expenses incurred with respect to the preparation of their respective filings contemplated in this Section 8.3(b), provided, however, that Buyer shall pay the filing fees, if any, in connection therewith.
(ci) Each of Buyer, each Seller and Buyer the Company agrees that it will (and will cause its Affiliates to)will, if necessary to enable the Parties such parties to consummate the Transactionstransactions contemplated by this Agreement, use reasonable best efforts to defend against any Actions that would preventsuits, delay actions or challenge the Transaction Documents proceedings, judicial or administrative, challenging this Agreement or the consummation of the Transactionstransactions contemplated hereby or thereby, including by seeking to vacate or reverse any temporary restraining order, preliminary injunction or other legal restraint or prohibition entered or imposed (or which becomes reasonably foreseeable to be entered or imposed) by any court or other Governmental Authority that is not yet final and nonappealable, in order that the Transactions shall occur as promptly as reasonably practicable ; and in any event no later than the Outside Date.
(dii) Buyer shallagrees that it shall make an offer to and enter into an agreement with the FTC, at Buyer’s sole cost, take, the Antitrust Division and/or any other Governmental Authority to undertake behavioral commitments or cause to be takendivest and hold separate pending such divestiture, any and all actions assets and dooperations of the Company and its Subsidiaries (and/or approximately equivalent assets or businesses of Buyer) as are necessary to prevent the commencement of any action or proceeding seeking, and/or prevent the entry of, or cause to be doneeffect the dissolution of, any a decree, restraining or other order and/or preliminary or permanent injunction preventing the consummation, in whole or in part, of the transactions contemplated by this Agreement and all things necessary, proper or advisable to avoid, eliminate and resolve each and every impediment and obtain all Consents required to permit the satisfaction of Sellers, the conditions Company and Buyer to otherwise fully consummate the transactions contemplated by this Agreement and the Closing; provided, however, that nothing in this Section 10.47.2(c) will require Buyer to enter into an agreement with the FTC, Section 10.5, Section 11.3, and Section 11.4, as promptly as reasonably practicable and in any event no later than the Outside Date, including by offering and causing its Affiliates to offer to: (i) sell or otherwise dispose of, or hold separate and agree to sell or otherwise dispose of specific assets or categories of assets or businesses constituting the Business or any of the Acquired Assets Antitrust Division or any other assets Government Authority to undertake behavioral commitments or businesses owned by Buyer or its Affiliates; (ii) terminate any existing relationships and contractual rights and obligations of Buyer or its Affiliates including, after the Closing, the Business or any of the Acquired Assets; (iii) amend or terminate such existing licenses or other intellectual property agreements and divestitures that would be material to enter into such new licenses or other intellectual property agreements; (iv) take any and all actions and make any and all behavioral commitments, whether or not they limit or modify Buyer’s or its Affiliates’ rights of ownership in, or ability to conduct the business of, one of either Buyer and its Subsidiaries or more of the Company and its or their operations, divisions, businesses, product lines, customers or assets, including, after the Closing, the Business or any of the Acquired Assets; and (v) enter into agreements, including with the relevant Governmental Authority, giving effect to the foregoing clauses (i) through (iv) (such actions in clauses (i) through (v), “Antitrust Actions”); provided, that such Antitrust Actions are conditioned upon and become effective only from and after the ClosingSubsidiaries. In furtherance Without limitation of the foregoing, prior to the ClosingCompany, the Sellers, Buyer and their respective Affiliates shall keep Sellers reasonably informed of all matters, discussions and activities relating to not extend any of the matters described in or contemplated by clauses (i) through (v) of this Section 8.3(d).
(e) Notwithstanding anything herein to the contrary, neither Buyer nor Seller, without the other Party’s prior written consent, shall (i) enter into any timing, settlement or similar agreement, or otherwise agree or commit to any arrangement that would have the effect of extending, suspending, lengthening or otherwise tolling the expiration or termination of the waiting period applicable to the Transactions under the HSR Act or any Antitrust Laws, non-United States foreign antitrust merger control laws or (ii) enter into any timing or similar agreement, or otherwise agree or commit to agreement with any arrangement, that would bind or commit the Parties Governmental Authority not to complete consummate the Transactions transactions contemplated by this Agreement, except with the prior written consent of the other parties hereto.
(d) Notwithstanding the foregoing or that would otherwise prevent or prohibit any other provision of this Agreement, nothing in this Section 7.2 shall limit a party’s right to terminate this Agreement pursuant to Article X so long as such party has up to the Parties from completing the Transactions)date of such termination complied in all material respects with its obligations under this Section 7.2.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Coventry Health Care Inc)
Registrations, Filings and Consents. (a) Subject to the Parties’ additional obligations under this Section 8.3, each Party shall Seller and Buyer will cooperate and use its respective reasonable best efforts and, as applicable, cooperate with the other Parties, to take, or cause to be taken, all appropriate action, and to do, or cause to be done, all things reasonably necessary, proper or advisable under Laws to consummate and make effective the Transactions, including using its respective reasonable best efforts (i) to fulfill all conditions to the other Party’s obligation to effect the Closing in Article X, (ii) to execute, acknowledge and deliver in proper form any further documents, certificates, agreements and other writings, and take such other action as such other Party may reasonably require, in order to effectively carry out the intent of the Transaction Documents, (iii) to make or cause to be made all registrations, filings, notifications, submissions filings and applications withapplications, to give all notices to and to obtain any consents, governmental transfers, approvals, orders, qualifications and waivers from any Governmental Authority necessary for the consummation of the Transactions and transactions contemplated hereby; provided, however, that neither Seller nor Buyer or any of their Affiliates shall be required to make any material monetary expenditure, commence or be a plaintiff in any litigation or offer or grant any material accommodation (ivfinancial or otherwise) not take to any action that could reasonably be expected to have the effect of delaying, impairing or impeding the receipt of any such consents, approvals or waiversPerson.
(b) The Parties shall duly file with the FTC Each of Buyer and the Antitrust Division the notification and report forms (each an “HSR Filing”), that may be required under the HSR Act necessary to consummate the Transactions, as promptly as possible and in no event later than January 18, 2019, including with respect to Buyer causing to be filed by its Affiliates and interest holders any HSR Filings necessary to consummate the Transactions. If an HSR Filing is required, each Party shall cooperate with the other Party to the extent necessary to assist the other Party in the preparation of its HSR Filing, to request early termination of the waiting period required by the HSR Act with respect to the HSR Filing and, if requested, to promptly amend or furnish additional information under its HSR Filing. Each Party Seller shall as promptly as practicable comply with the laws and regulations of any Laws Governmental Authority that are applicable to any of the Transactions transactions contemplated by this Agreement and the Ancillary Agreements and pursuant to which any consent, approval, advice, order or authorization of, or registration, declaration or filing with, any such Governmental Authority is necessary. Subject to applicable Laws Buyer and the preservation of any applicable attorney-client privilege, the Parties Seller shall promptly furnish to each other all such information as is necessary to prepare any such registration, declaration or filing. The Parties Buyer and Seller shall have joint decision-making authority keep each other apprised of the status of any communications with, and any inquiries or requests for additional information from, any Governmental Authority with respect to the strategy for obtaining any necessary consents, approvals, orders or authorizations from any Governmental Authority, including under any Antitrust Lawstransactions contemplated by this Agreement and the Ancillary Agreements. Neither Seller nor Buyer nor Sellers, nor their respective counsel, shall independently agree to participate in any substantive call meeting or meeting discussion with any Governmental Authority regarding in respect of any filing, investigation or inquiry by such Governmental Authority in connection with the Transactions without giving transactions contemplated by this Agreement and the Ancillary Agreements unless it consults with the other Party or its counsel prior notice of such call or meeting party in advance and, to the extent permitted by such Governmental Authority, gives the other party the opportunity to attend and/or participateand participate in such meeting. In furtherance of the foregoing and to the extent permitted by applicable Law: (i) each Party shall notify the other, as far in advance as practicable, of any material or substantive communication or inquiry it or any of its Affiliates or Subsidiaries intends to make with any Governmental Authority relating to the matters that are the subject of this Section 8.3; (ii) prior to submitting or making any such communication or inquiry, such Party shall provide the other Party and its counsel a reasonable opportunity to review, and shall consider in good faith the comments of the other Party in connection with, any such communication or inquiry; (iii) promptly following the submission or making such communication or inquiry, provide the other Party with a copy of any such communication or inquiry, if in written form; and (iv) consult with the other Party in connection with any inquiry, hearing, investigation or litigation by, or negotiations with, any Governmental Authority relating to the Transactions, including the scheduling of, and strategic planning for, any meetings with any Governmental Authority relating thereto. In exercising the foregoing cooperation rights, Buyer and Sellers each shall act reasonably and as promptly as reasonably practicable. Notwithstanding the foregoing, materials provided pursuant to this Section 8.3 may be reasonably redacted (A) to remove references concerning the valuation of the Transactions, (B) as necessary to comply with contractual arrangements, (C) as necessary to address reasonable privilege concerns or (D) as otherwise required by Law. The Parties Seller shall bear their own the costs and expenses incurred with respect to the preparation of their respective filings contemplated in this Section 8.3(b5.2(b), ; provided, however, that Buyer and Seller shall each pay 50% of the filing fees, if any, fees in connection therewiththerewith (and Buyer shall reimburse Seller for 50% of the fees paid by Seller prior to the date hereof in connection with filings under the HSR Act).
(c) Each of Buyer and Seller and Buyer agrees that it will (and will cause its Affiliates to)will, if necessary to enable the Parties Seller and Buyer to consummate the Transactionstransactions contemplated by this Agreement and the Ancillary Agreements, use reasonable best efforts to defend against any Actions that would preventsuits, delay actions or challenge proceedings, judicial or administrative, challenging this Agreement or any of the Transaction Documents Ancillary Agreements or the consummation of the Transactionstransactions contemplated hereby or thereby, including by seeking to vacate or reverse any temporary restraining order, preliminary injunction or other legal restraint or prohibition entered or imposed (or which becomes reasonably foreseeable to be entered or imposed) by any court or other Governmental Authority that is not yet final and nonappealable, in order that the Transactions shall occur as promptly as reasonably practicable and in any event no later than the Outside Date.
(d) Buyer shall, at Buyer’s sole cost, take, or cause to be taken, any and all actions and do, or cause to be done, any and all things necessary, proper or advisable to avoid, eliminate and resolve each and every impediment and obtain all Consents required to permit the satisfaction of the conditions in Section 10.4, Section 10.5, Section 11.3, and Section 11.4, as promptly as reasonably practicable and in any event no later than the Outside Date, including by offering and causing its Affiliates to offer to: (i) sell or otherwise dispose of, or hold separate and agree to sell or otherwise dispose of specific assets or categories of assets or businesses constituting the Business or any of the Acquired Assets or any other assets or businesses owned by Buyer or its Affiliates; (ii) terminate any existing relationships and contractual rights and obligations of Buyer or its Affiliates including, after the Closing, the Business or any of the Acquired Assets; (iii) amend or terminate such existing licenses or other intellectual property agreements and to enter into such new licenses or other intellectual property agreements; (iv) take any and all actions and make any and all behavioral commitments, whether or not they limit or modify Buyer’s or its Affiliates’ rights of ownership in, or ability to conduct the business of, one or more of its or their operations, divisions, businesses, product lines, customers or assets, including, after the Closing, the Business or any of the Acquired Assets; and (v) enter into agreements, including with the relevant Governmental Authority, giving effect to the foregoing clauses (i) through (iv) (such actions in clauses (i) through (v), “Antitrust Actions”); provided, that such Antitrust Actions are conditioned upon and become effective only from and after the Closing. In furtherance of the foregoing, prior to the Closing, Buyer shall keep Sellers reasonably informed of all matters, discussions and activities relating to any of the matters described in or contemplated by clauses (i) through (v) of this Section 8.3(d).
(e) Notwithstanding anything herein to the contrary, neither Buyer nor Seller, without the other Party’s prior written consent, shall (i) enter into any timing, settlement or similar agreement, or otherwise agree or commit to any arrangement that would have the effect of extending, suspending, lengthening or otherwise tolling the expiration or termination of the waiting period applicable to the Transactions under the HSR Act or any Antitrust Laws, or (ii) enter into any timing or similar agreement, or otherwise agree or commit to any arrangement, that would bind or commit the Parties not to complete the Transactions (or that would otherwise prevent or prohibit the Parties from completing the Transactions).
Appears in 1 contract
Samples: Purchase Agreement (Teleflex Inc)
