Regulatory and Other Approvals. (a) Each party shall use commercially reasonable efforts to file, as soon as practicable after the date of this Agreement, all notices, reports and other documents required to be filed by such party with any Governmental Body with respect to the Offer, the Merger and the other Contemplated Transactions, and to submit promptly any additional information requested by any such Governmental Body. Without limiting the generality of the foregoing, the Company and Parent shall prepare and file the notification and report forms required to be filed under the HSR Act within five business days following the date of this Agreement. The Company and Parent shall prepare and file any notification or other document required to be filed under any applicable foreign antitrust or competition-related Legal Requirement of the jurisdictions set forth in Part 6.2(a) of the Disclosure Schedule (the “Foreign Competition Authorities”) in connection with the Offer, the Merger and the other Contemplated Transactions promptly after the date of this Agreement. The Company and Parent shall respond as promptly as practicable to: (i) any inquiries or requests received from the Federal Trade Commission, the Department of Justice or the Foreign Competition Authorities for additional information or documentation; and (ii) any inquiries or requests received from any state attorney general, other foreign antitrust or competition authority or other Governmental Body in connection with antitrust or related matters. At the request of Parent, the Company shall divest, sell, dispose of, hold separate or take any other action with respect to any of the businesses, product lines or assets of the Acquired Corporations, provided, however, that any such action is conditioned upon the consummation of the Offer or the Merger. (b) Subject to the confidentiality provisions of the Confidentiality Agreement, Parent and the Company each shall use commercially reasonable efforts to promptly supply the other with any information which may be required in order to effectuate any filings (including applications) pursuant to (and to otherwise comply with its obligations set forth in) Section ý6.2(a). Unless prohibited by Legal Requirements or any Governmental Body, and subject to the confidentiality provisions of the Confidentiality Agreement, each of Parent and the Company shall: (i) consult with the other prior to taking a position with respect to any such filing; (ii) permit the other to review and discuss in advance, and consider in good faith the views of the other in connection with, any analyses, appearances, presentations, memoranda, briefs, white papers, arguments, opinions and proposals before making or submitting any of the foregoing to any Governmental Body by or on behalf of any party hereto in connection with any Legal Proceeding related solely to this Agreement or the Contemplated Transactions (including any such Legal Proceeding relating to any antitrust, competition or fair trade Legal Requirement); (iii) coordinate with the other in preparing and exchanging such information; and (iv) promptly provide the other (and its counsel) with copies of all filings, notices, analyses, presentations, memoranda, briefs, white papers, opinions, proposals and other submissions (and a summary of any oral presentations) made or submitted by such party with or to any Governmental Body related solely to this Agreement or the Contemplated Transactions. Notwithstanding anything to the contrary in this Section 6.2, Parent and the Company may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section 6.2 as “Outside Counsel Only Material” or otherwise reasonably redact highly confidential content from the materials produced to the other. (c) Unless prohibited by Legal Requirements or any Governmental Body, each of Parent and the Company shall notify the other promptly upon the receipt of: (i) any communication from any official of any Governmental Body in connection with any filing made pursuant to this Agreement; (ii) knowledge of the commencement or threat of commencement of any Legal Proceeding by or before any Governmental Body with respect to the Contemplated Transactions (and shall keep the other party informed as to the status of any such Legal Proceeding or threat); and (iii) any request by any official of any Governmental Body for any amendment or supplement to any filing made pursuant to this Agreement or any information required to comply with any Legal Requirements applicable to the Contemplated Transactions. Parent shall be entitled to direct any defense of the Offer, the Merger and the other Contemplated Transactions. Unless prohibited by Legal Requirements or any Governmental Body, whenever any event occurs that is required to be set forth in an amendment or supplement to any filing made pursuant to Section 6.2(a), Parent or the Company, as the case may be, shall (promptly upon learning of the occurrence of such event) inform the other of the occurrence of such event and cooperate in filing with the applicable Governmental Body such amendment or supplement. (d) Parent and the Company shall use commercially reasonable efforts to take, or cause to be taken, all actions necessary to consummate the Offer and the Merger and make effective the other Contemplated Transactions. Without limiting the generality of the foregoing, each party to this Agreement: (i) shall make all filings (if any) and give all notices (if any) required to be made and given by such party in connection with the Offer, the Merger and the other Contemplated Transactions; (ii) shall use commercially reasonable efforts to obtain each Consent (if any) required to be obtained (pursuant to any applicable Legal Requirement or Contract, or otherwise) by such party in connection with the Offer, the Merger or any of the other Contemplated Transactions; and (iii) shall defend through litigation on the merits any claim asserted in court by the United States Department of Justice or United States Federal Trade Commission under antitrust or competition-related Legal Requirement in order to avoid entry of any decree, order or judgment (whether temporary, preliminary or permanent) that could restrain, delay, or prevent the Closing by the Outside Date. Notwithstanding anything to the contrary herein, nothing in this Agreement shall require Parent or any of its Subsidiaries to, nor shall any Acquired Corporation without the prior written consent of Parent agree or offer to: (A) effect any divestiture of, or hold separate (including by establishing a trust or otherwise), or agree to restrict its ownership or operation of, any business or assets of the Acquired Corporations, Parent or any Subsidiary of Parent, including Acquisition Sub, or to enter into any settlement or consent decree, or agree to any undertaking, with respect to any business or assets of the Acquired Corporations, Parent or any Subsidiary of Parent, including Acquisition Sub, (B) enter into, amend or agree to enter into or amend, any Contract of the Acquired Corporations, Parent or any Subsidiary of Parent, including Acquisition Sub, that imposes any material limitations on the ability of Parent or any of its Affiliates to effectively exercise full rights of the shares of Company Common Stock or (C) otherwise waive, abandon or alter any material rights or material obligations of the Acquired Corporations, Parent or any Subsidiary of Parent, including Acquisition Sub. Furthermore, notwithstanding anything to the contrary contained herein, in connection with obtaining any Consent from any third party, without the prior written consent of Parent, none of the Acquired Corporations or any of their respective Representatives, shall pay or commit to pay to such Person whose approval or consent is being solicited any cash or other consideration, make any accommodation or commitment or incur any liability or other obligation to such Person.
Appears in 2 contracts
Samples: Merger Agreement (Maxim Integrated Products Inc), Merger Agreement (Maxim Integrated Products Inc)
Regulatory and Other Approvals. (a) Each party With the reasonable cooperation of GBNK, IBG shall use commercially reasonable efforts to fileprepare all documentation, as soon as practicable after to effect all filings and to obtain all permits, consents, approvals and authorizations of (i) all third parties and (ii) all federal or state bank regulatory authorities or Governmental Authorities necessary to consummate the date of Merger, the Bank Merger and the other transactions contemplated by this Agreement, all notices, reports and other documents required to be filed by such party with any Governmental Body with respect to including the Offer, applications for the prior approval of the Merger and the other Contemplated TransactionsBank Merger by the FRB (or appropriate Federal Reserve Bank acting on delegated authority), the TDB, the FDIC and the Colorado Division of Banking (collectively, the “Regulatory Approvals”). Provided that GBNK has promptly provided information reasonably requested by IBG and its comments to draft applications, and to submit promptly any additional information requested by any otherwise complied with Section 5.02, IBG shall file all such Governmental Body. Without limiting applications on or before the generality of the foregoing, the Company and Parent shall prepare and file the notification and report forms required to be filed under the HSR Act within five business days thirtieth (30th) day following the date of this Agreement. The Company and Parent shall prepare and file any notification or other document required to be filed under any applicable foreign antitrust or competition-related Legal Requirement of the jurisdictions set forth in Part 6.2(a) of the Disclosure Schedule (the “Foreign Competition Authorities”) in connection with the Offer, the Merger and the other Contemplated Transactions promptly after the date of this Agreement. The Company and Parent shall respond as promptly as practicable to: (i) any inquiries or requests received from the Federal Trade Commission, the Department of Justice or the Foreign Competition Authorities for additional information or documentation; and (ii) any inquiries or requests received from any state attorney general, other foreign antitrust or competition authority or other Governmental Body in connection with antitrust or related matters. At the request of Parent, the Company shall divest, sell, dispose of, hold separate or take any other action with respect to any of the businesses, product lines or assets of the Acquired Corporations, provided, however, that any such action is conditioned upon the consummation of the Offer or the Merger.
(b) Subject to the confidentiality provisions of the Confidentiality Agreement, Parent and the Company each IBG shall use commercially reasonable efforts to promptly supply obtain all such regulatory approvals and any other approvals from third parties at the other with any information which may be required in order to effectuate any filings (including applications) pursuant to (earliest practicable time. IBG and to otherwise comply with its obligations set forth in) Section ý6.2(a). Unless prohibited by Legal Requirements or any Governmental Body, and subject to GBNK shall have the confidentiality provisions of the Confidentiality Agreement, each of Parent and the Company shall: (i) consult with the other prior to taking a position with respect to any such filing; (ii) permit the other right to review and discuss in advance, and consider in good faith and, to the views of extent practicable, each will consult the other on, in connection with, any analyses, appearances, presentations, memoranda, briefs, white papers, arguments, opinions and proposals before making or submitting any of the foregoing each case subject to any Governmental Body by or on behalf of any party hereto in connection with any Legal Proceeding related solely to this Agreement or the Contemplated Transactions (including any such Legal Proceeding applicable Law relating to any antitrustthe exchange of information, competition all the information relating to IBG or fair trade Legal Requirement); (iii) coordinate with the other in preparing and exchanging such information; and (iv) promptly provide the other (and its counsel) with copies of all filings, notices, analyses, presentations, memoranda, briefs, white papers, opinions, proposals and other submissions (and a summary of any oral presentations) made or submitted by such party with or to any Governmental Body related solely to this Agreement or the Contemplated Transactions. Notwithstanding anything to the contrary in this Section 6.2, Parent and the Company may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section 6.2 as “Outside Counsel Only Material” or otherwise reasonably redact highly confidential content from the materials produced to the other.
(c) Unless prohibited by Legal Requirements or any Governmental Body, each of Parent and the Company shall notify the other promptly upon the receipt of: (i) any communication from any official of any Governmental Body in connection with any filing made pursuant to this Agreement; (ii) knowledge of the commencement or threat of commencement of any Legal Proceeding by or before any Governmental Body with respect to the Contemplated Transactions (and shall keep the other party informed as to the status of any such Legal Proceeding or threat); and (iii) any request by any official of any Governmental Body for any amendment or supplement to any filing made pursuant to this Agreement or any information required to comply with any Legal Requirements applicable to the Contemplated Transactions. Parent shall be entitled to direct any defense of the Offer, the Merger and the other Contemplated Transactions. Unless prohibited by Legal Requirements or any Governmental Body, whenever any event occurs that is required to be set forth in an amendment or supplement to any filing made pursuant to Section 6.2(a), Parent or the CompanyGBNK, as the case may be, shall (promptly upon learning and any of the occurrence of such event) inform the other of the occurrence of such event and cooperate their respective Subsidiaries, which appears in any filing with the applicable Governmental Body such amendment or supplement.
(d) Parent and the Company shall use commercially reasonable efforts to takemade with, or cause written materials submitted or proposed to be takensubmitted to, all actions necessary to consummate the Offer and the Merger and make effective the other Contemplated Transactions. Without limiting the generality of the foregoing, each any third party to this Agreement: (i) shall make all filings (if any) and give all notices (if any) required to be made and given by such party or any Governmental Authority in connection with the Offertransactions contemplated by this Agreement. In exercising the foregoing right, each of the Merger parties hereto shall act reasonably and as promptly as practicable. In addition, IBG shall keep GBNK reasonably informed as to the status of such applications and filings; IBG shall promptly furnish GBNK and its counsel with copies of all such regulatory filings and all correspondence with respect thereto to the extent permitted by applicable Law; and to the extent permitted by applicable Law, each party shall promptly advise the other Contemplated Transactions; (ii) shall use commercially upon receiving any communication from any Governmental Authority whose consent or approval is required for consummation of the transactions contemplated by this Agreement that causes such party to believe that there is a reasonable efforts to obtain each Consent (if any) required to likelihood that any such approval will not be obtained (pursuant to any applicable Legal Requirement or Contract, or otherwise) by such party in connection with that the Offer, the Merger or any of the other Contemplated Transactions; and (iii) shall defend through litigation on the merits any claim asserted in court by the United States Department of Justice or United States Federal Trade Commission under antitrust or competition-related Legal Requirement in order to avoid entry receipt of any decree, order or judgment (whether temporary, preliminary or permanent) that could restrain, delay, or prevent the Closing by the Outside Datesuch approval will be materially delayed. Notwithstanding anything to the contrary herein, nothing contained in this Agreement Agreement, IBG shall require Parent or any of its Subsidiaries not be required to (and GBNK shall not be permitted to, nor shall any Acquired Corporation without the IBG’s prior written consent of Parent agree or offer to: (Aconsent) effect take any divestiture ofaction, or hold separate (including by establishing a trust or otherwise), or agree commit to restrict its ownership or operation of, take any business or assets of the Acquired Corporations, Parent or any Subsidiary of Parent, including Acquisition Sub, or to enter into any settlement or consent decreeaction, or agree to any undertakingcondition or restriction, with respect to any business or assets of the Acquired Corporationsinvolving IBG, Parent or any Subsidiary of Parent, including Acquisition Sub, (B) enter into, amend or agree to enter into or amend, any Contract of the Acquired Corporations, Parent or any Subsidiary of Parent, including Acquisition Sub, that imposes any material limitations on the ability of Parent GBNK or any of its Affiliates their respective Subsidiaries pursuant to effectively exercise full rights of the shares of Company Common Stock this Section 6.07 or (C) otherwise waive, abandon or alter any material rights or material obligations of the Acquired Corporations, Parent or any Subsidiary of Parent, including Acquisition Sub. Furthermore, notwithstanding anything to the contrary contained herein, in connection with obtaining any Consent from permits, consents, approvals and authorizations that would reasonably be expected to be materially burdensome on IBG, GBNK, the Resulting Corporation or their respective Subsidiaries or require a material modification of, or impose any third partymaterial limitation or restriction on, without the prior written consent activities, governance, legal structure, capital structure, compensation or fee arrangements of ParentIBG, none of GBNK, the Acquired Corporations Resulting Corporation or any of their respective RepresentativesSubsidiaries (any of the foregoing, a “Burdensome Condition”); provided, however, that the following shall pay not be deemed to be a Burdensome Condition: any restraint, limitation, term, requirement, provision or commit condition that applies generally to pay to such Person whose approval bank holding companies and banks as provided by statute, regulation, or consent is being solicited any cash or other considerationwritten and publicly available supervisory guidance of general applicability, make any accommodation or commitment or incur any liability or other obligation to such Personin each case, as in effect on the date hereof.
Appears in 2 contracts
Samples: Agreement and Plan of Reorganization (Independent Bank Group, Inc.), Agreement and Plan of Reorganization (Guaranty Bancorp)
Regulatory and Other Approvals. (a) Each party shall use commercially reasonable efforts to file, as soon as practicable after the date of this Agreement, all notices, reports and other documents required to be filed by such party with any Governmental Body with respect to the Offer, the Merger and the other Contemplated Transactions, and to submit promptly any additional information requested by any such Governmental Body. Without limiting the generality of the foregoing, the Company and Parent shall prepare and file the notification and report forms required to be filed under the HSR Act within five business days following the date of this Agreement. The Company and Parent shall prepare and file any notification or other document required to be filed under any applicable foreign antitrust or competition-related Legal Requirement of the jurisdictions set forth in Part 6.2(a) of the Disclosure Schedule (the “Foreign Competition Authorities”) in connection with the Offer, the Merger and the other Contemplated Transactions promptly after the date of this Agreement. The Company and Parent shall respond as promptly as practicable to: (i) any inquiries or requests received from the Federal Trade Commission, the Department of Justice or the Foreign Competition Authorities for additional information or documentation; and (ii) any inquiries or requests received from any state attorney general, other foreign antitrust or competition authority or other Governmental Body in connection with antitrust or related matters. At the request of Parent, the Company shall divest, sell, dispose of, hold separate or take any other action with respect to any of the businesses, product lines or assets of the Acquired Corporations, provided, however, that any such action is conditioned upon the consummation of the Offer or the Merger.
(b) Subject to the confidentiality provisions of the Confidentiality Agreement, Parent terms and the Company each shall use commercially reasonable efforts to promptly supply the other with any information which may be required in order to effectuate any filings (including applications) pursuant to (and to otherwise comply with its obligations set forth in) Section ý6.2(a). Unless prohibited by Legal Requirements or any Governmental Body, and subject to the confidentiality provisions of the Confidentiality Agreementconditions herein provided, each of Parent and the Company shall: (i) consult with the other prior to taking a position with respect to any such filing; (ii) permit the other to review and discuss in advance, and consider in good faith the views of the other in connection with, any analyses, appearances, presentations, memoranda, briefs, white papers, arguments, opinions and proposals before making or submitting any of the foregoing to any Governmental Body by or on behalf of any party hereto in connection with any Legal Proceeding related solely to this Agreement or the Contemplated Transactions (including any such Legal Proceeding relating to any antitrust, competition or fair trade Legal Requirement); (iii) coordinate with the other in preparing and exchanging such information; and (iv) promptly provide the other (and its counsel) with copies of all filings, notices, analyses, presentations, memoranda, briefs, white papers, opinions, proposals and other submissions (and a summary of any oral presentations) made or submitted by such party with or to any Governmental Body related solely to this Agreement or the Contemplated Transactions. Notwithstanding anything to the contrary in this Section 6.2, Parent and the Company may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section 6.2 as “Outside Counsel Only Material” or otherwise reasonably redact highly confidential content from the materials produced to the other.
(c) Unless prohibited by Legal Requirements or any Governmental Body, each of Parent and the Company shall notify the other promptly upon the receipt of: (i) any communication from any official of any Governmental Body in connection with any filing made pursuant to this Agreement; (ii) knowledge of the commencement or threat of commencement of any Legal Proceeding by or before any Governmental Body with respect to the Contemplated Transactions (and shall keep the other party informed as to the status of any such Legal Proceeding or threat); and (iii) any request by any official of any Governmental Body for any amendment or supplement to any filing made pursuant to this Agreement or any information required to comply with any Legal Requirements applicable to the Contemplated Transactions. Parent shall be entitled to direct any defense of the Offer, the Merger and the other Contemplated Transactions. Unless prohibited by Legal Requirements or any Governmental Body, whenever any event occurs that is required to be set forth in an amendment or supplement to any filing made pursuant to Section 6.2(a), Parent or the Company, as the case may be, shall (promptly upon learning of the occurrence of such event) inform the other of the occurrence of such event and cooperate in filing with the applicable Governmental Body such amendment or supplement.
(d) Parent and the Company Parties shall use commercially reasonable efforts to take, or cause to be taken, all actions necessary action, and to do, or cause to be done, all things reasonably necessary, proper or advisable under applicable Laws to consummate the Offer and the Merger and make effective the other Contemplated Transactions. Without limiting the generality of the foregoing, each party to transactions contemplated by this Agreement: (i) shall make all filings (if any) and give all notices (if any) required to be made and given by such party in connection with the Offer, the Merger and the other Contemplated Transactions; (ii) shall . The Parties will use commercially reasonable efforts to obtain consents of all Governmental Authorities necessary to the consummation of the transactions contemplated by this Agreement. All costs incurred in connection with obtaining such consents, including the HSR Act filing fee, shall be borne one-half by the Buyer and one-half by the Seller. Each Party shall make an appropriate filing of a Notification and Report Form and related materials, which forms shall specifically request early termination of the waiting period prescribed by the HSR Act, if necessary, pursuant to the HSR Act with respect to the transactions contemplated by this Agreement promptly after the date of this Agreement, and at the latest five (5) Business Days after the date of this Agreement, and shall supply as promptly as practicable to the appropriate Governmental Authorities any additional information and documentary material that may be requested pursuant to the HSR Act.
(b) As promptly as is reasonably practicable after the date of this Agreement, and at the latest within ten (10) Business Days after the date of this Agreement, the Seller and the Buyer, as applicable, shall file or cause to be filed with the FERC a single joint application (that will, to the extent required, identify each Consent (APT Project Company and Wolverine Creek as an applicant) pursuant to FPA Section 203 as is necessary to obtain required FERC approval for the consummation of the transactions contemplated by this Agreement. The Parties shall consult with each other regarding such filings and shall consider and incorporate in such filings all reasonable comments, if any) required , submitted by the other Party with respect thereto, and shall have the joint right to approve such filings. FERC counsel engaged by each the Parties shall be jointly responsible for and shall execute the filing, and, once approved by the Parties, counsel for the Seller shall undertake the actual filing. Counsel for both the Seller and the Buyer shall manage all communications with FERC with respect to the FPA Section 203 application. To the maximum extent practicable and consistent with the provisions of this subsection and with FERC staff directions, the Parties will have their respective FERC counsel included in all communications with FERC staff concerning the FPA Section 203 application, including to the extent practicable in preparations for such communications. The Parties shall cooperate with one another to respond promptly to any requests for additional information made by the FERC and use their respective commercially reasonable efforts to cause regulatory approval to be obtained (pursuant to any applicable Legal Requirement or Contract, or otherwise) by such party at the earliest possible date after the date of filing. Each Party shall bear its own costs incurred in connection with the OfferFERC filing; provided, however, that if FERC requires or requests the submission of a statistical or economic competition or market-power study or screen analysis, under 18 C.F.R. Part 33 or otherwise, the Merger cost of such study shall be borne one-half by the Buyer and one-half by the Seller.
(c) The Parties will provide prompt notification to each other when any such consent, approval, action, or filing referred to in Sections 6.1(a), or 6.1(b) is obtained, taken, made or given, as applicable, and will advise each other of any material communications with any Governmental Authority or other Person regarding any of the transactions contemplated by this Agreement. Notwithstanding the foregoing, if any Party receives a request for additional information from any Governmental Authority that is related to the transactions contemplated by this Agreement, then such Party shall endeavor in good faith to make, or cause to be made, to the extent practicable and after consultation with the other Parties, an appropriate response to such request. Prior to delivery of such response, such Party shall provide the other Parties with an opportunity to review and comment on such response, to the extent practicable. No Party shall participate in any meeting, or engage in any material substantive conversation, with any Governmental Authority without giving the other Parties and their designated counsel prior notice of the meeting or conversation and, unless prohibited by such Governmental Authority, the opportunity to attend or participate.
(d) The Parties will, in order to consummate the transactions contemplated hereby, take all commercially reasonable steps necessary or desirable, and the Seller will proceed diligently and in good faith and use all commercially reasonable efforts to obtain all third-party consents listed in Section 4.4 of the Seller Disclosure Schedule (and the Buyer will cooperate in such efforts to the extent reasonably requested by the Seller).
(e) Notwithstanding the foregoing, nothing contained herein shall require the Seller or its Affiliates to (i) defend any lawsuit should it determine, in its sole discretion, that it is not in its business interest to do so, (ii) sell, transfer, divest or otherwise dispose of any of its business assets or properties or any of the other Contemplated Transactions; and (iii) shall defend through litigation on the merits any claim asserted in court by the United States Department of Justice or United States Federal Trade Commission under antitrust or competition-related Legal Requirement in order to avoid entry of any decree, order or judgment (whether temporary, preliminary or permanent) that could restrain, delay, or prevent the Closing by the Outside Date. Notwithstanding anything to the contrary herein, nothing in this Agreement shall require Parent or any of its Subsidiaries to, nor shall any Acquired Corporation without the prior written consent of Parent agree or offer to: (A) effect any divestiture of, or hold separate (including by establishing a trust or otherwise), or agree to restrict its ownership or operation of, any business or assets of the Acquired Corporations, Parent Target in connection with this Agreement or any Subsidiary of Parent, including Acquisition Sub, or to enter into any settlement or consent decree, or agree to any undertaking, with respect to any business or assets of the Acquired Corporations, Parent or any Subsidiary of Parent, including Acquisition Sub, (B) enter into, amend or agree to enter into or amend, any Contract of the Acquired Corporations, Parent or any Subsidiary of Parent, including Acquisition Sub, that imposes any material limitations on the ability of Parent other Transaction Document or any of its Affiliates to effectively exercise full rights the transactions contemplated hereby or thereby, or (iii) give or promise any consideration, whether such consideration shall consist of the shares payment of Company Common Stock money or (C) otherwise waiveshall take any other form, abandon or alter any material rights or material obligations of the Acquired Corporations, Parent or any Subsidiary of Parent, including Acquisition Sub. Furthermore, notwithstanding anything to the contrary contained herein, in connection with obtaining any Consent from any third party, without the prior written consent of Parent, none of the Acquired Corporations or any of their respective Representatives, shall pay or commit to pay to such Person whose approval or consent is being solicited any cash or other consideration, make any accommodation or commitment or incur any liability expenses for any consent, Permit, exemption or waiver required, necessary or advisable for the consummation of the transactions contemplated hereby or by any other obligation to such PersonTransaction Document.
Appears in 2 contracts
Samples: Membership Interest Purchase Agreement (TerraForm Power, Inc.), Membership Interest Purchase Agreement (Atlantic Power Corp)
Regulatory and Other Approvals. During the Interim Period:
(a) Each party Party shall use commercially reasonable efforts attempt to file, as soon as practicable after the date of this Agreement, all notices, reports and other documents required to be filed by such party with any Governmental Body with respect to the Offer, the Merger and the other Contemplated Transactions, and to submit promptly any additional information requested by any such Governmental Body. Without limiting the generality of the foregoing, the Company and Parent shall prepare and file the notification and report forms required to be filed under the HSR Act within five business days following the date of this Agreement. The Company and Parent shall prepare and file any notification or other document required to be filed under any applicable foreign antitrust or competition-related Legal Requirement of the jurisdictions set forth in Part 6.2(a) of the Disclosure Schedule (the “Foreign Competition Authorities”) in connection with the Offer, the Merger and the other Contemplated Transactions promptly after the date of this Agreement. The Company and Parent shall respond obtain as promptly as practicable to: (i) any inquiries all material consents and approvals that either Party or requests received from its respective Affiliates are required to obtain in order to consummate the Federal Trade Commissiontransactions contemplated hereby; provided that, for purposes of clarification, and notwithstanding anything to the contrary in this Agreement, the Department of Justice or the Foreign Competition Authorities for additional information or documentation; and (ii) any inquiries or requests received from any state attorney general, other foreign antitrust or competition authority or other Governmental Body in connection with antitrust or related matters. At the request of Parent, the Company shall divest, sell, dispose of, hold separate or take any other action with respect to any obtaining of the businessesconsents and approvals will not be a condition to the Closing except to the extent set forth in Articles VI or VII, product lines or assets of the Acquired Corporations, provided, however, that any such action is conditioned upon the consummation of the Offer or the Mergeras applicable.
(b) Subject to the confidentiality provisions of the Confidentiality Agreement, Parent and the Company each Each Party shall use commercially reasonable efforts to promptly supply the other with any information which may be required in order to effectuate any filings (including applications) pursuant to (and to otherwise comply with its obligations set forth in) Section ý6.2(a). Unless prohibited by Legal Requirements or any Governmental Body, and subject to the confidentiality provisions of the Confidentiality Agreement, each of Parent and the Company shall: (i) consult with make or cause to be made the other prior filings required of the Person or any of its applicable Affiliates under any Laws applicable to taking a position it with respect to the transactions contemplated by this Agreement and to pay any such filingfees due of it in connection with the filings, as promptly as is reasonably practicable, provided that, for purposes of clarification, and notwithstanding anything to the contrary in this Agreement, the filings and payments will not be conditions to the Closing except to the extent set forth in Articles VI and VII; (ii) permit cooperate with the other Party and furnish the information that is necessary in connection with the other Party’s filings; (iii) use reasonable efforts to review and discuss in advancecause the expiration of the notice or waiting periods under any Laws applicable to it with respect to the consummation of the transactions contemplated by this Agreement as promptly as is reasonably practicable; (iv) promptly inform the other Party of any communication from or to, and consider any proposed understanding or agreement with, any Governmental Authority in good faith the views respect of the filings; (v) reasonably consult and cooperate with the other Party in connection with, with any analyses, appearances, presentations, memoranda, briefs, white papers, arguments, and opinions and proposals before making made or submitting any of the foregoing to any Governmental Body submitted by or on behalf of any party hereto Party in connection with any Legal Proceeding related solely to this Agreement all meetings, actions or the Contemplated Transactions (including any such Legal Proceeding other Proceedings with Governmental Authorities relating to any antitrust, competition or fair trade Legal Requirement)the filings; (iiivi) coordinate comply, as promptly as is reasonably practicable, with any requests received by the Party under any Laws for additional information, documents or other in preparing and exchanging such informationmaterials with respect to the filings, (vii) attempt to resolve any objections as may be asserted by any Governmental Authority with respect to the transactions contemplated by this Agreement; and (ivviii) promptly provide contest and resist any action or other Proceeding instituted (or threatened in writing to be instituted) by any Governmental Authority challenging the transactions contemplated by this Agreement as violative of any Law.
(c) If a Party (or any of its applicable Affiliates) intends to participate in any meeting with any Governmental Authority with respect to the filings and if permitted by, or acceptable to, the applicable Governmental Authority, it shall give the other Party reasonable prior notice of, and an opportunity to participate in, the meeting.
(and its counseld) In connection with copies of all any such filings, noticesBuyer shall cooperate in good faith with Governmental Authorities and with Seller and undertake promptly any and all action required to lawfully complete the transactions contemplated by this Agreement.
(e) Each Party shall provide prompt notification to the other when it becomes aware that any such consent or approval referred to in this Section 5.1 is obtained, analysestaken, presentationsmade, memorandagiven or denied, briefsas applicable.
(f) In furtherance of the foregoing covenants:
(i) Each Party shall prepare, white papersor cause its Affiliates to prepare, opinionsas soon as is practicable following the execution of this Agreement, proposals all necessary filings applicable to it and other submissions (and a summary of any oral presentations) made or submitted in connection with the transactions contemplated by such party with or to any Governmental Body related solely to this Agreement or the Contemplated Transactions. Notwithstanding that may be required under any Laws; provided that, for purposes of clarification, and notwithstanding anything to the contrary in this Section 6.2Agreement, Parent and the Company may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided filings will not be conditions to the other under this Section 6.2 as “Outside Counsel Only Material” or otherwise reasonably redact highly confidential content from the materials produced Closing except to the otherextent set forth Articles VI and VII.
(cii) Unless prohibited by Legal Requirements or any Governmental Body, each of Parent and the Company Each Party shall notify promptly furnish the other Party with copies of any notices, correspondence or other written communication received by it from the relevant Governmental Authority, shall promptly upon make any appropriate or necessary subsequent or supplemental filings required of it, and shall cooperate in the receipt of: preparation of the filings as is reasonably necessary and appropriate.
(iiii) Each Party shall not, and shall cause its respective Affiliates not to, take any communication from any official action that could reasonably be expected to adversely affect the approval of any Governmental Body in connection with any filing made pursuant to this Agreement; (ii) knowledge of the commencement or threat of commencement of any Legal Proceeding by or before any Governmental Body with respect to the Contemplated Transactions (and shall keep the other party informed as to the status of any such Legal Proceeding or threat); and (iii) any request by any official of any Governmental Body for any amendment or supplement to any filing made pursuant to this Agreement or any information required to comply with any Legal Requirements applicable to the Contemplated Transactions. Parent shall be entitled to direct any defense of the Offer, the Merger and the other Contemplated Transactions. Unless prohibited by Legal Requirements or any Governmental Body, whenever any event occurs that is required to be set forth in an amendment or supplement to any filing made pursuant to Section 6.2(a), Parent or the Company, as the case may be, shall (promptly upon learning of the occurrence of such event) inform the other of the occurrence of such event and cooperate in filing with the applicable Governmental Body such amendment or supplementAuthority.
(d) Parent and the Company shall use commercially reasonable efforts to take, or cause to be taken, all actions necessary to consummate the Offer and the Merger and make effective the other Contemplated Transactions. Without limiting the generality of the foregoing, each party to this Agreement: (i) shall make all filings (if any) and give all notices (if any) required to be made and given by such party in connection with the Offer, the Merger and the other Contemplated Transactions; (ii) shall use commercially reasonable efforts to obtain each Consent (if any) required to be obtained (pursuant to any applicable Legal Requirement or Contract, or otherwise) by such party in connection with the Offer, the Merger or any of the other Contemplated Transactions; and (iii) shall defend through litigation on the merits any claim asserted in court by the United States Department of Justice or United States Federal Trade Commission under antitrust or competition-related Legal Requirement in order to avoid entry of any decree, order or judgment (whether temporary, preliminary or permanent) that could restrain, delay, or prevent the Closing by the Outside Date. Notwithstanding anything to the contrary herein, nothing in this Agreement shall require Parent or any of its Subsidiaries to, nor shall any Acquired Corporation without the prior written consent of Parent agree or offer to: (A) effect any divestiture of, or hold separate (including by establishing a trust or otherwise), or agree to restrict its ownership or operation of, any business or assets of the Acquired Corporations, Parent or any Subsidiary of Parent, including Acquisition Sub, or to enter into any settlement or consent decree, or agree to any undertaking, with respect to any business or assets of the Acquired Corporations, Parent or any Subsidiary of Parent, including Acquisition Sub, (B) enter into, amend or agree to enter into or amend, any Contract of the Acquired Corporations, Parent or any Subsidiary of Parent, including Acquisition Sub, that imposes any material limitations on the ability of Parent or any of its Affiliates to effectively exercise full rights of the shares of Company Common Stock or (C) otherwise waive, abandon or alter any material rights or material obligations of the Acquired Corporations, Parent or any Subsidiary of Parent, including Acquisition Sub. Furthermore, notwithstanding anything to the contrary contained herein, in connection with obtaining any Consent from any third party, without the prior written consent of Parent, none of the Acquired Corporations or any of their respective Representatives, shall pay or commit to pay to such Person whose approval or consent is being solicited any cash or other consideration, make any accommodation or commitment or incur any liability or other obligation to such Person.
Appears in 2 contracts
Samples: Asset Purchase Agreement (General Cannabis Corp), Asset Purchase Agreement (General Cannabis Corp)
Regulatory and Other Approvals. (a) Each party shall use commercially reasonable efforts to file, as soon as practicable after the date of this Agreement, all notices, reports and other documents required to be filed by such party with any Governmental Body with respect to the Offer, the Merger and the other Contemplated Transactions, and to submit promptly any additional information requested by any such Governmental Body. Without limiting the generality of the foregoing, the Company and Parent shall prepare and file the notification and report forms required to be filed under the HSR Act within five business days following the date of this Agreement. The Company and Parent shall prepare and file any notification or other document required to be filed under any applicable foreign antitrust or competition-related Legal Requirement of the jurisdictions set forth in Part 6.2(a) of the Disclosure Schedule (the “Foreign Competition Authorities”) in connection with the Offer, the Merger and the other Contemplated Transactions promptly after the date of this Agreement. The Company and Parent shall respond as promptly as practicable to: (i) any inquiries or requests received from the Federal Trade Commission, the Department of Justice or the Foreign Competition Authorities for additional information or documentation; and (ii) any inquiries or requests received from any state attorney general, other foreign antitrust or competition authority or other Governmental Body in connection with antitrust or related matters. At the request of Parent, the Company shall divest, sell, dispose of, hold separate or take any other action with respect to any of the businesses, product lines or assets of the Acquired Corporations, provided, however, that any such action is conditioned upon the consummation of the Offer or the Merger.
(b) Subject to the confidentiality provisions of the Confidentiality Agreement, Parent and the Company each shall use commercially reasonable efforts to promptly supply the other with any information which may be required in order to effectuate any filings (including applications) pursuant to (and to otherwise comply with its obligations set forth in) Section ý6.2(a). Unless prohibited by Legal Requirements or any Governmental Body, and subject to the confidentiality provisions of the Confidentiality Agreement, each of Parent and the Company shall: (i) consult with the other prior to taking a position with respect to any such filing; (ii) permit the other to review and discuss in advance, and consider in good faith the views of the other in connection with, any analyses, appearances, presentations, memoranda, briefs, white papers, arguments, opinions and proposals before making or submitting any of the foregoing to any Governmental Body by or on behalf of any party hereto in connection with any Legal Proceeding related solely to this Agreement or the Contemplated Transactions (including any such Legal Proceeding relating to any antitrust, competition or fair trade Legal Requirement); (iii) coordinate with the other in preparing and exchanging such information; and (iv) promptly provide the other (and its counsel) with copies of all filings, notices, analyses, presentations, memoranda, briefs, white papers, opinions, proposals and other submissions (and a summary of any oral presentations) made or submitted by such party with or to any Governmental Body related solely to this Agreement or the Contemplated Transactions. Notwithstanding anything to the contrary in this Section 6.2, Parent and the Company may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section 6.2 as “Outside Counsel Only Material” or otherwise reasonably redact highly confidential content from the materials produced to the other.
(c) Unless prohibited by Legal Requirements or any Governmental Body, each of Parent and the Company shall notify the other promptly upon the receipt of: (i) any communication from any official of any Governmental Body in connection with any filing made pursuant to this Agreement; (ii) knowledge of the commencement or threat of commencement of any Legal Proceeding by or before any Governmental Body with respect to the Contemplated Transactions (and shall keep the other party informed as to the status of any such Legal Proceeding or threat); and (iii) any request by any official of any Governmental Body for any amendment or supplement to any filing made pursuant to this Agreement or any information required to comply with any Legal Requirements applicable to the Contemplated Transactions. Parent shall be entitled to direct any defense of the Offer, the Merger and the other Contemplated Transactions. Unless prohibited by Legal Requirements or any Governmental Body, whenever any event occurs that is required to be set forth in an amendment or supplement to any filing made pursuant to Section 6.2(a), Parent or the Company, as the case may be, shall (promptly upon learning of the occurrence of such event) inform the other of the occurrence of such event and cooperate in filing with the applicable Governmental Body such amendment or supplement.
(d) Parent and the Company Party shall use commercially reasonable efforts to take, or cause to be taken, all actions necessary actions, and to do, or cause to be done, all things necessary, proper or advisable under any applicable Laws to consummate the Offer and the Merger and make effective the other Contemplated Transactions. Without limiting the generality of the foregoing, each party to this Agreement: including (i) shall make all filings filing any notification and report forms required for the consummation of the Transactions under the HSR Act within fifteen (if any15) Business Days after the Execution Date; and give all notices (if any) required to be made and given by such party in connection with the Offer, the Merger and the other Contemplated Transactions; (ii) shall use using commercially reasonable efforts to obtain each Consent (if any) required to be obtained (pursuant to cause any applicable Legal Requirement or Contract, or otherwise) by such party in connection waiting period under the HSR Act with the Offer, the Merger or any of the other Contemplated Transactions; and (iii) shall defend through litigation on the merits any claim asserted in court by the United States Department of Justice or United States Federal Trade Commission under antitrust or competition-related Legal Requirement in order to avoid entry of any decree, order or judgment (whether temporary, preliminary or permanent) that could restrain, delay, or prevent the Closing by the Outside Date. Notwithstanding anything respect to the contrary herein, nothing in this Agreement Transactions to expire or terminate at the earliest time that is reasonably practicable and shall require Parent or request “early termination” with respect to the waiting period under the HSR Act. Buyer shall not agree to extend any of its Subsidiaries to, nor shall any Acquired Corporation waiting period under the HSR Act without the prior written consent of Parent agree or offer Contributor. Buyer shall pay any HSR Act filing fee as provided by statute. Otherwise, each Party shall each pay its own preparation costs and expenses.
(b) Each Party shall, and shall cause its respective Subsidiaries to: , (Ai) effect any divestiture promptly inform the other Party of, or hold separate (including by establishing a trust or otherwise), or agree and supply to restrict its ownership or operation ofthe other Party, any business communication (or assets other correspondence or memoranda) from or to, and any proposed understanding or agreement with, any Governmental Authority in connection with this Agreement or the Transactions; (ii) consult and cooperate in good faith with the other Party in connection with any filings, notifications, submissions, analyses, appearances, presentations, memoranda, briefs, arguments and opinions made or submitted by or on behalf of any Party in connection with all meetings, actions, discussions and Proceedings with Governmental Authorities relating to this Agreement or the Transactions, including, subject to applicable Law, permitting the other Party to review in advance, and considering in good faith the views of the Acquired Corporationsother Party with respect to, Parent or any Subsidiary of Parent, including Acquisition Sub, or to enter into any settlement or consent decree, or agree proposed written communication to any undertakingGovernmental Authority and to promptly provide the other Party with copies of any communication to any Governmental Authority; (iii) use commercially reasonable efforts to comply, as promptly as reasonably practicable, with respect to any business or assets of the Acquired Corporations, Parent or any Subsidiary of Parent, including Acquisition Sub, (B) enter into, amend or agree to enter into or amend, any Contract of the Acquired Corporations, Parent or any Subsidiary of Parent, including Acquisition Sub, that imposes any material limitations on the ability of Parent requests received by a Party or any of its Affiliates Subsidiaries under the HSR Act and any other applicable Law for additional information, documents or other materials; (iv) give the other Party reasonable advance notice of its or its Subsidiaries’ intention to effectively exercise full rights of participate in any meeting or telephone or other discussion with any Governmental Authority with respect to the shares of Company Common Stock or (C) otherwise waive, abandon or alter any material rights or material obligations of the Acquired Corporations, Parent Transactions or any Subsidiary of Parentfilings, including Acquisition Sub. Furthermore, notwithstanding anything to the contrary contained herein, investigations or inquiries made in connection with obtaining the Transactions, and an opportunity to participate in such meeting or discussion; and (v) contest and resist any Consent from Proceeding instituted (or threatened in writing to be instituted) by any third partyGovernmental Authority challenging the Transactions as being in violation of any applicable Law.
(c) Buyer shall take any and all steps and make any and all undertakings necessary to avoid or eliminate each and every impediment under the HSR Act or any other antitrust, without competition, or trade regulation Law that may be asserted by any Governmental Authority with respect to the prior written Transactions so as to enable the Closing to occur as soon as reasonably practicable, including proposing, negotiating, committing to, and effecting by consent decree, hold separate order, or otherwise, the sale, divestiture or disposition of Parent, none such assets or businesses of Buyer (or its Subsidiaries) or of the Acquired Corporations Company, or otherwise taking or committing to take actions that limit Buyer’s or its Subsidiaries’ or the Company’s freedom of action with respect to, or their ability to retain, any of their respective Representativesthe businesses, shall pay product lines or commit Assets of Buyer (or its Subsidiaries) or the Company, as may be required in order to pay avoid the entry of, or to such Person whose approval or consent is being solicited effect the dissolution of, any cash injunction, temporary restraining order, or other considerationorder in any Proceeding, make any accommodation which would otherwise have the effect of preventing or commitment or incur any liability or other obligation to such Persondelaying the Closing.
Appears in 2 contracts
Samples: Contribution Agreement, Contribution Agreement (Silver Run Acquisition Corp II)
Regulatory and Other Approvals. (a) Each party shall use commercially reasonable efforts to fileof Parent and Target will, as soon promptly as practicable after and before the date expiration of any relevant legal deadline, but in no event later than ten (10) Business Days following the execution and delivery of this Agreement, all notices, reports and other documents required to be filed by such party file with any Governmental Body with respect to (i) the Offer, the Merger and the other Contemplated Transactions, and to submit promptly any additional information requested by any such Governmental Body. Without limiting the generality of the foregoing, the Company and Parent shall prepare and file the notification and report forms required to be filed under the HSR Act within five business days following the date of this Agreement. The Company and Parent shall prepare and file any notification or other document required to be filed under any applicable foreign antitrust or competition-related Legal Requirement of the jurisdictions set forth in Part 6.2(a) of the Disclosure Schedule United States Federal Trade Commission (the “Foreign Competition AuthoritiesFTC”) in connection with the Offer, the Merger and the other Contemplated Transactions promptly after the date of this Agreement. The Company and Parent shall respond as promptly as practicable to: (i) any inquiries or requests received from the Federal Trade Commission, the Department of Justice or the Foreign Competition Authorities for additional information or documentation; and (ii) any inquiries or requests received from any state attorney general, other foreign antitrust or competition authority or other Governmental Body in connection with antitrust or related matters. At the request of Parent, the Company shall divest, sell, dispose of, hold separate or take any other action with respect to any of the businesses, product lines or assets of the Acquired Corporations, provided, however, that any such action is conditioned upon the consummation of the Offer or the Merger.
(b) Subject to the confidentiality provisions of the Confidentiality Agreement, Parent and the Company each shall use commercially reasonable efforts to promptly supply the other with any information which may be required in order to effectuate any filings (including applications) pursuant to (and to otherwise comply with its obligations set forth in) Section ý6.2(a). Unless prohibited by Legal Requirements or any Governmental Body, and subject to the confidentiality provisions of the Confidentiality Agreement, each of Parent and the Company shall: (i) consult with the other prior to taking a position with respect to any such filing; (ii) permit the other to review and discuss in advance, and consider in good faith the views of the other in connection with, any analyses, appearances, presentations, memoranda, briefs, white papers, arguments, opinions and proposals before making or submitting any of the foregoing to any Governmental Body by or on behalf of any party hereto in connection with any Legal Proceeding related solely to this Agreement or the Contemplated Transactions (including any such Legal Proceeding relating to any antitrust, competition or fair trade Legal Requirement); (iii) coordinate with the other in preparing and exchanging such information; and (iv) promptly provide the other (and its counsel) with copies of all filings, notices, analyses, presentations, memoranda, briefs, white papers, opinions, proposals and other submissions (and a summary of any oral presentations) made or submitted by such party with or to any Governmental Body related solely to this Agreement or the Contemplated Transactions. Notwithstanding anything to the contrary in this Section 6.2, Parent and the Company may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section 6.2 as “Outside Counsel Only Material” or otherwise reasonably redact highly confidential content from the materials produced to the other.
(c) Unless prohibited by Legal Requirements or any Governmental Body, each of Parent and the Company shall notify the other promptly upon the receipt of: (i) any communication from any official of any Governmental Body in connection with any filing made pursuant to this Agreement; (ii) knowledge of the commencement or threat of commencement of any Legal Proceeding by or before any Governmental Body with respect to the Contemplated Transactions (and shall keep the other party informed as to the status of any such Legal Proceeding or threat); and (iii) any request by any official of any Governmental Body for any amendment or supplement to any filing made pursuant to this Agreement or any information required to comply with any Legal Requirements applicable to the Contemplated Transactions. Parent shall be entitled to direct any defense of the Offer, the Merger and the other Contemplated Transactions. Unless prohibited by Legal Requirements or any Governmental Body, whenever any event occurs that is required to be set forth in an amendment or supplement to any filing made pursuant to Section 6.2(a), Parent or the Company, as the case may be, shall (promptly upon learning of the occurrence of such event) inform the other of the occurrence of such event and cooperate in filing with the applicable Governmental Body such amendment or supplement.
(d) Parent and the Company shall use commercially reasonable efforts to take, or cause to be taken, all actions necessary to consummate the Offer and the Merger and make effective the other Contemplated Transactions. Without limiting the generality of the foregoing, each party to this Agreement: (i) shall make all filings (if any) and give all notices (if any) required to be made and given by such party in connection with the Offer, the Merger and the other Contemplated Transactions; (ii) shall use commercially reasonable efforts to obtain each Consent (if any) required to be obtained (pursuant to any applicable Legal Requirement or Contract, or otherwise) by such party in connection with the Offer, the Merger or any of the other Contemplated Transactions; and (iii) shall defend through litigation on the merits any claim asserted in court by the United States Department of Justice (the “DOJ”) the notification and report form required for the transactions contemplated by this Agreement and any information required to be provided therewith pursuant to the HSR Act, and (ii) any other Governmental Entity, any other filings, reports, information and documentation required or United States Federal Trade Commission under deemed warranted for the transactions contemplated hereby pursuant to any other antitrust Laws or competition-related Legal Requirement any other applicable Laws. Each of Parent and Target will furnish to each other’s counsel such necessary information and reasonable assistance as the other may require in order to avoid entry connection with its preparation of any decreefiling or submission that is necessary under the HSR Act, order any other antitrust Laws and any other applicable Laws.
(b) Each of Parent and Target will use all commercially reasonable efforts to obtain promptly any clearance required under the HSR Act, any other antitrust Laws and any other applicable Laws and will keep each other apprised of the status of any material communications with, and any inquiries or judgment (whether temporaryrequests for additional information from any Governmental Entity and will comply promptly with any reasonable inquiry or request from any such Governmental Entity; provided, preliminary or permanent) however, that could restrain, delay, or prevent the Closing by the Outside Date. Notwithstanding anything to the contrary herein, nothing in this Agreement shall will require or be deemed to require Parent in order to obtain any regulatory approvals or consents, (i) to agree to, or effect, any material divestiture, or (ii) to take any other action(s), including agreeing to any requirements, conditions or any of limitations on its business, if in the aggregate all actions so taken by Parent would collectively reasonably be expected to have an impact on Parent and its Subsidiaries, taken as a whole, that is equivalent to or greater than the impact that would reasonably be expected to be experienced by them in the event that Parent were to make a material divestiture (a “Material Negative Regulatory Impact”), it being understood that in assessing whether there would be a Material Negative Regulatory Impact the expected impacts on Parent and its Subsidiaries to, nor shall from any Acquired Corporation without the prior written consent agreed to divestiture (whether material or not) will be taken into consideration for purposes of this clause (ii).
(c) Each of Parent agree or offer to: and Target agrees to instruct their respective counsel to cooperate with each other and use all commercially reasonable efforts to facilitate and expedite the identification and resolution of any issues arising under the HSR Act and any other antitrust Laws at the earliest practicable dates. Such commercially reasonable efforts and cooperation will include causing its counsel (Ai) effect to inform promptly the other of any divestiture oforal communication with, or hold separate and provide (including by establishing a trust or otherwise), or agree to restrict its ownership or operation ofas permitted) copies of written communications (excluding competitively sensitive information) with, any business Governmental Entity regarding any such filings or assets of the Acquired Corporations, Parent applications or any Subsidiary such transaction, and (ii) to confer with each other regarding appropriate contacts with and response to personnel of such Governmental Entity. None of Parent, including Acquisition Sub, or to enter into any settlement or consent decree, or agree to any undertaking, with respect to any business or assets of the Acquired Corporations, Parent or any Subsidiary of Parent, including Acquisition Sub, (B) enter into, amend or agree to enter into or amend, any Contract of the Acquired Corporations, Parent or any Subsidiary of Parent, including Acquisition Sub, that imposes any material limitations on the ability of Parent or any of its Affiliates to effectively exercise full rights of the shares of Company Common Stock or (C) otherwise waive, abandon or alter any material rights or material obligations of the Acquired Corporations, Parent or any Subsidiary of Parent, including Acquisition Sub. Furthermore, notwithstanding anything to the contrary contained herein, in connection with obtaining any Consent from any third party, without the prior written consent of Parent, none of the Acquired Corporations or Target nor any of their respective RepresentativesAffiliates will independently contact any Governmental Entity or participate in any meeting or discussion with any Governmental Entity in respect of any such filings, shall pay or commit to pay to such Person whose approval or consent is being solicited any cash applications, investigation or other considerationinquiry without giving, make any accommodation in the case of Parent and its Affiliates, Target, and in the case of Target and its Affiliates, Parent, prior notice of the meeting and, to the extent permitted by the relevant Governmental Entity, the opportunity to attend and participate (which, at the request of Parent or commitment or incur any liability or other obligation Target, as applicable, will be limited to such Personoutside antitrust counsel only).
Appears in 2 contracts
Samples: Merger Agreement (Mobile Services Group Inc), Merger Agreement (Mobile Storage Group Inc)
Regulatory and Other Approvals. (a) Each party shall use commercially reasonable efforts Subject to file, as soon as practicable after the date terms and conditions of this Agreement, each of TSG and Elcotel will proceed diligently and in good faith to, as promptly as practicable, (a) obtain all noticesconsents, reports approvals or actions of, make all filings with and give all notices to Governmental Authorities or any other documents public or private third parties required of Elcotel, TSG or any of their Subsidiaries to be filed by such party with any Governmental Body with respect to the Offer, consummate the Merger and the other Contemplated Transactionstransactions contemplated hereby, and (b) provide such other information and communications to submit such Governmental Authorities or other public or private third parties as the other party or such Governmental Authorities or other public or private third parties may reasonably request in connection therewith. In addition to and not in limitation of the foregoing, each of the parties will (x) take promptly all actions necessary to make the filings required of Elcotel and TSG or their Affiliates under the HSR Act no later than fifteen business days after the date hereof, (y) comply at the earliest practicable date with any request for additional information requested received by such party or its Affiliates from the Federal Trade Commission (the "FTC") or the Antitrust Division of the Department of Justice (the "Antitrust Division") pursuant to the HSR Act, and (z) cooperate with the other party in connection with such party's filings under the HSR Act and in connection with resolving any such Governmental Bodyinvestigation or other inquiry concerning the Merger or the other transactions contemplated by this Agreement commenced by either the FTC or the Antitrust Division or state attorneys general. Without limiting the generality of the foregoing, the Company Elcotel and Parent TSG shall prepare together, or pursuant to an allocation of responsibility to be agreed between them, coordinate and file the notification and report forms cooperate in determining whether any action by or in respect of, or filing with, any Governmental Authorities is required, or any actions, consents, approvals or waivers are required to be filed under the HSR Act within five business days following the date of this Agreement. The Company and Parent shall prepare and file obtained from parties to any notification or other document required to be filed under any applicable foreign antitrust or competition-related Legal Requirement of the jurisdictions set forth in Part 6.2(a) of the Disclosure Schedule (the “Foreign Competition Authorities”) contracts, in connection with the Offer, the Merger and the other Contemplated Transactions promptly after the date of this Agreement. The Company and Parent shall respond as promptly as practicable to: (i) any inquiries or requests received from the Federal Trade Commission, the Department of Justice or the Foreign Competition Authorities for additional information or documentation; and (ii) any inquiries or requests received from any state attorney general, other foreign antitrust or competition authority or other Governmental Body in connection with antitrust or related matters. At the request of Parent, the Company shall divest, sell, dispose of, hold separate or take any other action with respect to any of the businesses, product lines or assets of the Acquired Corporations, provided, however, that any such action is conditioned upon the consummation of the Offer or the Merger.
(b) Subject to the confidentiality provisions of the Confidentiality transactions contemplated by this Agreement, Parent and the Company each shall use commercially reasonable efforts to promptly supply the other with in seeking any such actions, consents, approvals or waivers or making any such filings, furnishing information which may be required in order connection therewith and seeking timely to effectuate any filings (including applications) pursuant to (and to otherwise comply with its obligations set forth in) Section ý6.2(a). Unless prohibited by Legal Requirements or any Governmental Body, and subject to the confidentiality provisions of the Confidentiality Agreement, each of Parent and the Company shall: (i) consult with the other prior to taking a position with respect to obtain any such filing; (ii) permit the other to review and discuss in advanceactions, and consider in good faith the views of the other in connection withconsents, any analyses, appearances, presentations, memoranda, briefs, white papers, arguments, opinions and proposals before making approvals or submitting any of the foregoing to any Governmental Body by or on behalf of any party hereto in connection with any Legal Proceeding related solely to this Agreement or the Contemplated Transactions (including any such Legal Proceeding relating to any antitrust, competition or fair trade Legal Requirement); (iii) coordinate with the other in preparing and exchanging such information; and (iv) promptly provide the other (and its counsel) with copies of all filings, notices, analyses, presentations, memoranda, briefs, white papers, opinions, proposals and other submissions (and a summary of any oral presentations) made or submitted by such party with or to any Governmental Body related solely to this Agreement or the Contemplated Transactions. Notwithstanding anything to the contrary in this Section 6.2, Parent and the Company may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section 6.2 as “Outside Counsel Only Material” or otherwise reasonably redact highly confidential content from the materials produced to the otherwaivers.
(c) Unless prohibited by Legal Requirements or any Governmental Body, each of Parent and the Company shall notify the other promptly upon the receipt of: (i) any communication from any official of any Governmental Body in connection with any filing made pursuant to this Agreement; (ii) knowledge of the commencement or threat of commencement of any Legal Proceeding by or before any Governmental Body with respect to the Contemplated Transactions (and shall keep the other party informed as to the status of any such Legal Proceeding or threat); and (iii) any request by any official of any Governmental Body for any amendment or supplement to any filing made pursuant to this Agreement or any information required to comply with any Legal Requirements applicable to the Contemplated Transactions. Parent shall be entitled to direct any defense of the Offer, the Merger and the other Contemplated Transactions. Unless prohibited by Legal Requirements or any Governmental Body, whenever any event occurs that is required to be set forth in an amendment or supplement to any filing made pursuant to Section 6.2(a), Parent or the Company, as the case may be, shall (promptly upon learning of the occurrence of such event) inform the other of the occurrence of such event and cooperate in filing with the applicable Governmental Body such amendment or supplement.
(d) Parent and the Company shall use commercially reasonable efforts to take, or cause to be taken, all actions necessary to consummate the Offer and the Merger and make effective the other Contemplated Transactions. Without limiting the generality of the foregoing, each party to this Agreement: (i) shall make all filings (if any) and give all notices (if any) required to be made and given by such party in connection with the Offer, the Merger and the other Contemplated Transactions; (ii) shall use commercially reasonable efforts to obtain each Consent (if any) required to be obtained (pursuant to any applicable Legal Requirement or Contract, or otherwise) by such party in connection with the Offer, the Merger or any of the other Contemplated Transactions; and (iii) shall defend through litigation on the merits any claim asserted in court by the United States Department of Justice or United States Federal Trade Commission under antitrust or competition-related Legal Requirement in order to avoid entry of any decree, order or judgment (whether temporary, preliminary or permanent) that could restrain, delay, or prevent the Closing by the Outside Date. Notwithstanding anything to the contrary herein, nothing in this Agreement shall require Parent or any of its Subsidiaries to, nor shall any Acquired Corporation without the prior written consent of Parent agree or offer to: (A) effect any divestiture of, or hold separate (including by establishing a trust or otherwise), or agree to restrict its ownership or operation of, any business or assets of the Acquired Corporations, Parent or any Subsidiary of Parent, including Acquisition Sub, or to enter into any settlement or consent decree, or agree to any undertaking, with respect to any business or assets of the Acquired Corporations, Parent or any Subsidiary of Parent, including Acquisition Sub, (B) enter into, amend or agree to enter into or amend, any Contract of the Acquired Corporations, Parent or any Subsidiary of Parent, including Acquisition Sub, that imposes any material limitations on the ability of Parent or any of its Affiliates to effectively exercise full rights of the shares of Company Common Stock or (C) otherwise waive, abandon or alter any material rights or material obligations of the Acquired Corporations, Parent or any Subsidiary of Parent, including Acquisition Sub. Furthermore, notwithstanding anything to the contrary contained herein, in connection with obtaining any Consent from any third party, without the prior written consent of Parent, none of the Acquired Corporations or any of their respective Representatives, shall pay or commit to pay to such Person whose approval or consent is being solicited any cash or other consideration, make any accommodation or commitment or incur any liability or other obligation to such Person.
Appears in 2 contracts
Samples: Merger Agreement (Technology Service Group Inc \De\), Merger Agreement (Elcotel Inc)
Regulatory and Other Approvals. (a) Each party With the reasonable cooperation of Legacy, Prosperity shall use commercially reasonable efforts to fileprepare all documentation, as soon as practicable after to effect all filings and to obtain all permits, consents, approvals and authorizations of: (A) all third parties; and (B) all Governmental Authorities necessary to consummate the Merger, the Bank Merger and the other transactions contemplated by this Agreement, including the applications for the prior approval of the Merger and the Bank Merger by the FDIC, the TDB and the FRB (or appropriate Federal Reserve Bank acting on delegated authority) (collectively, the “Regulatory Approvals”). If Legacy has promptly provided information reasonably requested by Prosperity and its comments to draft applications, and otherwise complied with Section 5.02, Prosperity shall file all such applications on or before the thirtieth day following the date of this Agreement, all notices, reports and other documents required subject to be filed by such party consultation with any Governmental Body with respect the FRB on timing of delivery of a waiver request to the Offer, the Merger and the other Contemplated Transactions, and to submit promptly any additional information requested by any such Governmental BodyFRB. Without limiting the generality of the foregoing, the Company and Parent shall prepare and file the notification and report forms required to be filed under the HSR Act within five business days following the date of this Agreement. The Company and Parent shall prepare and file any notification or other document required to be filed under any applicable foreign antitrust or competition-related Legal Requirement of the jurisdictions set forth in Part 6.2(a) of the Disclosure Schedule (the “Foreign Competition Authorities”) in connection with the Offer, the Merger and the other Contemplated Transactions promptly after the date of this Agreement. The Company and Parent shall respond as promptly as practicable to: (i) any inquiries or requests received from the Federal Trade Commission, the Department of Justice or the Foreign Competition Authorities for additional information or documentation; and (ii) any inquiries or requests received from any state attorney general, other foreign antitrust or competition authority or other Governmental Body in connection with antitrust or related matters. At the request of Parent, the Company shall divest, sell, dispose of, hold separate or take any other action with respect to any of the businesses, product lines or assets of the Acquired Corporations, provided, however, that any such action is conditioned upon the consummation of the Offer or the Merger.
(b) Subject to the confidentiality provisions of the Confidentiality Agreement, Parent and the Company each Prosperity shall use commercially reasonable efforts to promptly supply obtain all Regulatory Approvals and any other approvals from third parties at the other with any information which may be required in order to effectuate any filings (including applications) pursuant to (earliest practicable time. Prosperity and to otherwise comply with its obligations set forth in) Section ý6.2(a). Unless prohibited by Legal Requirements or any Governmental Body, and subject to Legacy shall have the confidentiality provisions of the Confidentiality Agreement, each of Parent and the Company shall: (i) consult with the other prior to taking a position with respect to any such filing; (ii) permit the other right to review and discuss in advance, and consider in good faith and, to the views of extent practicable, each will consult the other on, in connection with, any analyses, appearances, presentations, memoranda, briefs, white papers, arguments, opinions and proposals before making or submitting any of the foregoing each case subject to any Governmental Body by or on behalf of any party hereto in connection with any Legal Proceeding related solely to this Agreement or the Contemplated Transactions (including any such Legal Proceeding applicable Law relating to any antitrustthe exchange of information, competition all the information relating to Prosperity or fair trade Legal Requirement); (iii) coordinate with the other in preparing and exchanging such information; and (iv) promptly provide the other (and its counsel) with copies of all filings, notices, analyses, presentations, memoranda, briefs, white papers, opinions, proposals and other submissions (and a summary of any oral presentations) made or submitted by such party with or to any Governmental Body related solely to this Agreement or the Contemplated Transactions. Notwithstanding anything to the contrary in this Section 6.2, Parent and the Company may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section 6.2 as “Outside Counsel Only Material” or otherwise reasonably redact highly confidential content from the materials produced to the other.
(c) Unless prohibited by Legal Requirements or any Governmental Body, each of Parent and the Company shall notify the other promptly upon the receipt of: (i) any communication from any official of any Governmental Body in connection with any filing made pursuant to this Agreement; (ii) knowledge of the commencement or threat of commencement of any Legal Proceeding by or before any Governmental Body with respect to the Contemplated Transactions (and shall keep the other party informed as to the status of any such Legal Proceeding or threat); and (iii) any request by any official of any Governmental Body for any amendment or supplement to any filing made pursuant to this Agreement or any information required to comply with any Legal Requirements applicable to the Contemplated Transactions. Parent shall be entitled to direct any defense of the Offer, the Merger and the other Contemplated Transactions. Unless prohibited by Legal Requirements or any Governmental Body, whenever any event occurs that is required to be set forth in an amendment or supplement to any filing made pursuant to Section 6.2(a), Parent or the CompanyLegacy, as the case may be, shall (promptly upon learning and any of the occurrence of such event) inform the other of the occurrence of such event and cooperate their respective Subsidiaries, which appears in any filing with the applicable Governmental Body such amendment or supplement.
(d) Parent and the Company shall use commercially reasonable efforts to takemade with, or cause written materials submitted or proposed to be takensubmitted to, all actions necessary to consummate the Offer and the Merger and make effective the other Contemplated Transactions. Without limiting the generality of the foregoing, each any third party to this Agreement: (i) shall make all filings (if any) and give all notices (if any) required to be made and given by such party or any Governmental Authority in connection with the Offertransactions contemplated by this Agreement. In exercising the foregoing right, each of the Merger parties hereto shall act reasonably and as promptly as practicable. In addition, Prosperity shall keep Legacy reasonably informed as to the status of such applications and filings; Prosperity shall promptly furnish Legacy and its counsel with copies of all such regulatory filings and all correspondence with respect thereto to the extent permitted by applicable Law; and to the extent permitted by applicable Law, each party shall promptly advise the other Contemplated Transactions; (ii) shall use commercially upon receiving any communication from any Governmental Authority whose consent or approval is required for consummation of the transactions contemplated by this Agreement that causes such party to believe that there is a reasonable efforts to obtain each Consent (if any) required to likelihood that any such approval will not be obtained (pursuant to any applicable Legal Requirement or Contract, or otherwise) by such party in connection with that the Offer, the Merger or any of the other Contemplated Transactions; and (iii) shall defend through litigation on the merits any claim asserted in court by the United States Department of Justice or United States Federal Trade Commission under antitrust or competition-related Legal Requirement in order to avoid entry receipt of any decree, order or judgment (whether temporary, preliminary or permanent) that could restrain, delay, or prevent the Closing by the Outside Datesuch approval will be materially delayed. Notwithstanding anything to the contrary herein, nothing contained in this Agreement Agreement, Prosperity shall require Parent or any of its Subsidiaries not be required to (and Legacy shall not be permitted to, nor shall any Acquired Corporation without the Prosperity’s prior written consent of Parent agree or offer to: (Aconsent) effect take any divestiture ofaction, or hold separate (including by establishing a trust or otherwise), or agree commit to restrict its ownership or operation of, take any business or assets of the Acquired Corporations, Parent or any Subsidiary of Parent, including Acquisition Sub, or to enter into any settlement or consent decreeaction, or agree to any undertakingcondition or restriction, with respect to any business or assets of the Acquired Corporationsinvolving Prosperity, Parent or any Subsidiary of Parent, including Acquisition Sub, (B) enter into, amend or agree to enter into or amend, any Contract of the Acquired Corporations, Parent or any Subsidiary of Parent, including Acquisition Sub, that imposes any material limitations on the ability of Parent Legacy or any of its Affiliates their respective Subsidiaries pursuant to effectively exercise full rights of the shares of Company Common Stock this Section 7.02 or (C) otherwise waive, abandon or alter any material rights or material obligations of the Acquired Corporations, Parent or any Subsidiary of Parent, including Acquisition Sub. Furthermore, notwithstanding anything to the contrary contained herein, in connection with obtaining any Consent from permits, consents, approvals or authorizations that would reasonably be expected to be materially burdensome on Prosperity, Legacy, the Resulting Corporation, Prosperity Bank or Legacy Bank or require a material modification of, or impose any third partymaterial limitation or restriction on, without the prior written consent activities, governance, legal structure, capital structure, compensation or fee arrangements of ParentProsperity, none Legacy, the Resulting Corporation, Prosperity Bank or Legacy Bank (any of the Acquired Corporations foregoing, a “Burdensome Condition”); provided, however, that the following shall not be deemed to be a Burdensome Condition: any restraint, limitation, term, requirement, provision or any condition that applies generally to all bank holding companies and banks as provided by statute, regulation, or written and publicly available supervisory guidance of their respective Representativesgeneral applicability, shall pay or commit to pay to such Person whose approval or consent is being solicited any cash or other considerationin each case, make any accommodation or commitment or incur any liability or other obligation to such Personas in effect on the date hereof.
Appears in 2 contracts
Samples: Agreement and Plan of Reorganization (Prosperity Bancshares Inc), Agreement and Plan of Reorganization (LegacyTexas Financial Group, Inc.)
Regulatory and Other Approvals. (a) Each party shall Subject to the terms and conditions herein provided, the Company and Parent will (1) take all reasonable steps necessary or desirable, and proceed diligently and in good faith and use commercially all reasonable efforts to fileobtain all approvals required by any Contract to consummate the transactions contemplated hereby, (2) cooperate with each other in obtaining all approvals, authorizations, and clearances of Governmental Entities required of the Company or Parent to permit the Company and Parent to consummate the transactions contemplated hereby, and (3) provide such other information and communications to such Governmental Entities as such authorities may reasonably request.
(b) The Company and Parent will (1) take all reasonable actions necessary to file as soon as practicable, but in no event later than three Business Days after the execution of this Agreement, notifications under the HSR Act and (2) comply at the earliest practicable date with any request for additional information received from the Federal Trade Commission or Antitrust Division of the Department of Justice pursuant to the HSR Act.
(c) The Company and Parent shall use their respective best efforts to resolve such objections, if any, as may be asserted by any governmental or regulatory authority with respect to the transactions contemplated by this Agreement under the HSR Act. In connection therewith, if any administrative or judicial action or proceeding is instituted (or threatened to be instituted) challenging any transaction contemplated by this Agreement as violative of any Law designed to prohibit, restrict or regulate actions having the purpose of effect of monopolization or restraint or trade, each of Parent and the Company shall cooperate and use their respective best efforts vigorously to contest and resist any such action or proceedings and to have vacated, lifted, reversed or overturned any decree, judgment, injunction or other order, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents or restricts consummation of any such transaction. Each of Parent and the Company shall use their respective best efforts to take such action as may be required to cause the expiration of the applicable waiting periods under the HSR Act with respect to such transactions as promptly as possible after the date of this AgreementAgreement (other than requesting early termination of such waiting periods).
(d) The Company and Parent shall, all noticesexcept to the extent impermissable under, reports or inconsistent with, applicable Law, (i) promptly notify the other of, and if in writing, furnish the other documents required to be filed by such party with copies of (or, in the case of material oral communications, advise the other orally of), any communications from or with any Governmental Body Entity with respect to the Offer, the Merger and the other Contemplated Transactions, and to submit promptly any additional information requested by any such Governmental Body. Without limiting the generality of the foregoing, the Company and Parent shall prepare and file the notification and report forms required to be filed under the HSR Act within five business days following the date of this Agreement. The Company and Parent shall prepare and file any notification or other document required to be filed under any applicable foreign antitrust or competition-related Legal Requirement of the jurisdictions set forth in Part 6.2(a) of the Disclosure Schedule (the “Foreign Competition Authorities”) in connection with the Offer, the Merger and the other Contemplated Transactions promptly after the date of this Agreement. The Company and Parent shall respond as promptly as practicable to: (i) any inquiries or requests received from the Federal Trade Commission, the Department of Justice or the Foreign Competition Authorities for additional information or documentation; and (ii) any inquiries or requests received from any state attorney general, other foreign antitrust or competition authority or other Governmental Body in connection with antitrust or related matters. At the request of Parent, the Company shall divest, sell, dispose of, hold separate or take any other action with respect to any of the businesses, product lines or assets of the Acquired Corporations, provided, however, that any such action is conditioned upon the consummation of the Offer or the Merger.
(b) Subject to the confidentiality provisions of the Confidentiality other transactions contemplated by this Agreement, Parent and the Company each shall use commercially reasonable efforts to promptly supply the other with any information which may be required in order to effectuate any filings (including applications) pursuant to (and to otherwise comply with its obligations set forth in) Section ý6.2(a). Unless prohibited by Legal Requirements or any Governmental Body, and subject to the confidentiality provisions of the Confidentiality Agreement, each of Parent and the Company shall: (i) consult with the other prior to taking a position with respect to any such filing; (ii) permit the other party to review and discuss in advance, and consider in good faith the views of the other one another in connection with, any analyses, appearances, presentations, memoranda, briefs, white papers, arguments, opinions and proposals before making proposed written (or submitting any of the foregoing to material proposed oral) communication with any Governmental Body by or on behalf of any party hereto in connection with any Legal Proceeding related solely to this Agreement or the Contemplated Transactions (including any such Legal Proceeding relating to any antitrustEntity, competition or fair trade Legal Requirement); (iii) coordinate not participate in any meeting with any Governmental Entity unless it consults with the other party in preparing advance and, to the extent permitted by such Governmental Entity, gives the other party the reasonable opportunity to attend and exchanging participate at any such information; and meeting, (iv) promptly provide furnish the other (and its counsel) party with copies of all filingscorrespondence, notices, analyses, presentations, memoranda, briefs, white papers, opinions, proposals filings and other submissions communications (and a summary of memoranda setting forth the substance thereof) between it and any oral presentationsGovernmental Entity with respect to this Agreement, the Offer and the Merger, and (v) made or submitted by such furnish the other party with such necessary information and reasonable assistance as such other party may reasonably request in connection with its preparation of necessary filings or submissions of information to any Governmental Body related solely to this Agreement or the Contemplated TransactionsEntity. Notwithstanding anything to the contrary in this Section 6.2, The Company and Parent and the Company may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section 6.2 7.7(d) as “Outside Counsel Only Material” "outside counsel only." Such materials, and the information contained therein, shall be given only to the outside legal counsel of the recipient and will not be disclosed by such outside counsel to employees, officers, or otherwise reasonably redact highly confidential content directors of the recipient unless express permission is obtained in advance from the source of the materials produced to the other.
(c) Unless prohibited by Legal Requirements or any Governmental Body, each of Parent and the Company shall notify the other promptly upon the receipt of: (i) any communication from any official of any Governmental Body in connection with any filing made pursuant to this Agreement; (ii) knowledge of the commencement or threat of commencement of any Legal Proceeding by or before any Governmental Body with respect to the Contemplated Transactions (and shall keep the other party informed as to the status of any such Legal Proceeding or threat); and (iii) any request by any official of any Governmental Body for any amendment or supplement to any filing made pursuant to this Agreement or any information required to comply with any Legal Requirements applicable to the Contemplated Transactions. Parent shall be entitled to direct any defense of the Offer, the Merger and the other Contemplated Transactions. Unless prohibited by Legal Requirements or any Governmental Body, whenever any event occurs that is required to be set forth in an amendment or supplement to any filing made pursuant to Section 6.2(a), Parent or the CompanyParent, as the case may be, shall (promptly upon learning of the occurrence of ) or such event) inform the other of the occurrence of such event and cooperate in filing with the applicable Governmental Body such amendment or supplementsource's legal counsel.
(d) Parent and the Company shall use commercially reasonable efforts to take, or cause to be taken, all actions necessary to consummate the Offer and the Merger and make effective the other Contemplated Transactions. Without limiting the generality of the foregoing, each party to this Agreement: (i) shall make all filings (if any) and give all notices (if any) required to be made and given by such party in connection with the Offer, the Merger and the other Contemplated Transactions; (ii) shall use commercially reasonable efforts to obtain each Consent (if any) required to be obtained (pursuant to any applicable Legal Requirement or Contract, or otherwise) by such party in connection with the Offer, the Merger or any of the other Contemplated Transactions; and (iii) shall defend through litigation on the merits any claim asserted in court by the United States Department of Justice or United States Federal Trade Commission under antitrust or competition-related Legal Requirement in order to avoid entry of any decree, order or judgment (whether temporary, preliminary or permanent) that could restrain, delay, or prevent the Closing by the Outside Date. Notwithstanding anything to the contrary herein, nothing in this Agreement shall require Parent or any of its Subsidiaries to, nor shall any Acquired Corporation without the prior written consent of Parent agree or offer to: (A) effect any divestiture of, or hold separate (including by establishing a trust or otherwise), or agree to restrict its ownership or operation of, any business or assets of the Acquired Corporations, Parent or any Subsidiary of Parent, including Acquisition Sub, or to enter into any settlement or consent decree, or agree to any undertaking, with respect to any business or assets of the Acquired Corporations, Parent or any Subsidiary of Parent, including Acquisition Sub, (B) enter into, amend or agree to enter into or amend, any Contract of the Acquired Corporations, Parent or any Subsidiary of Parent, including Acquisition Sub, that imposes any material limitations on the ability of Parent or any of its Affiliates to effectively exercise full rights of the shares of Company Common Stock or (C) otherwise waive, abandon or alter any material rights or material obligations of the Acquired Corporations, Parent or any Subsidiary of Parent, including Acquisition Sub. Furthermore, notwithstanding anything to the contrary contained herein, in connection with obtaining any Consent from any third party, without the prior written consent of Parent, none of the Acquired Corporations or any of their respective Representatives, shall pay or commit to pay to such Person whose approval or consent is being solicited any cash or other consideration, make any accommodation or commitment or incur any liability or other obligation to such Person.
Appears in 2 contracts
Samples: Acquisition Agreement (Fargo Electronics Inc), Acquisition Agreement (Fargo Electronics Inc)
Regulatory and Other Approvals. (a) Each party Subject to the terms and conditions of this Agreement and without limiting the provisions of Sections 6.2 and 6.3, each of the Company and Parent shall use commercially reasonable efforts to fileto, as soon promptly as practicable after practicable, (a) obtain all consents, approvals or actions of, make all filings with and give all notices to Governmental or Regulatory Authorities or any other public or private third parties required of Parent, the date Company or any of this Agreement, all notices, reports and other documents required their Subsidiaries to be filed by such party with any Governmental Body with respect to the Offer, consummate the Merger and the other Contemplated Transactionstransactions contemplated hereby, and (b) provide such other information and communications to submit such Governmental or Regulatory Authorities or other public or private third parties as the other party or such Governmental or Regulatory Authorities or other public or private third parties may reasonably request in connection therewith. In addition to and not in limitation of the foregoing, each of the parties will (x) take promptly all actions necessary to make the filings required of Parent and the Company or their Affiliates under the HSR Act, (y) comply at the earliest practicable date with any request for additional information requested received by such party or its Affiliates from the Federal Trade Commission (the “FTC”) or the Antitrust Division of the Department of Justice (the “Antitrust Division”) pursuant to the HSR Act, and (z) cooperate with the other party in connection with such party’s filings under the HSR Act and in connection with resolving any investigation or other inquiry concerning the Merger or the other transactions contemplated by this Agreement commenced by any such Governmental Bodyof the FTC, the Antitrust Division or any state or state attorney general. Without limiting the generality of Notwithstanding the foregoing, the Company shall not, without Parent’s prior written consent, commit to any divestiture transaction, and Parent shall prepare and file the notification and report forms not be required to be filed under divest or hold separate or otherwise take or commit to take any action that limits its freedom of action with respect to, or its ability to retain the HSR Act within five business days following the date of this Agreement. The Company and Parent shall prepare and file Company, or any notification or other document required to be filed under any applicable foreign antitrust or competition-related Legal Requirement of the jurisdictions set forth in Part 6.2(a) material businesses or assets of the Disclosure Schedule (Company or its Subsidiaries. Each of the “Foreign Competition Authorities”) Parties will have the right to review in advance, and to the extent practicable each will consult with the other, in each case subject to applicable Laws relating to the exchange of information, with respect to all written information submitted to any third party or any Governmental or Regulatory Authorities in connection with the Offerforegoing required regulatory and other approvals. In exercising the foregoing right, each of the Merger parties will act reasonably and the other Contemplated Transactions promptly after the date of this Agreement. The Company and Parent shall respond as promptly as practicable to: (i) any inquiries or requests received from the Federal Trade Commission, the Department of Justice or the Foreign Competition Authorities for additional information or documentation; and (ii) any inquiries or requests received from any state attorney general, other foreign antitrust or competition authority or other Governmental Body in connection with antitrust or related matters. At the request of Parent, the Company shall divest, sell, dispose of, hold separate or take any other action with respect to any of the businesses, product lines or assets of the Acquired Corporations, provided, however, that any such action is conditioned upon the consummation of the Offer or the Mergerpracticable.
(b) Subject to the confidentiality provisions of the Confidentiality Agreement, Parent and the Company each shall use commercially reasonable efforts to promptly supply the other with any information which may be required in order to effectuate any filings (including applications) pursuant to (and to otherwise comply with its obligations set forth in) Section ý6.2(a). Unless prohibited by Legal Requirements or any Governmental Body, and subject to the confidentiality provisions of the Confidentiality Agreement, each of Parent and the Company shall: (i) consult with the other prior to taking a position with respect to any such filing; (ii) permit the other to review and discuss in advance, and consider in good faith the views of the other in connection with, any analyses, appearances, presentations, memoranda, briefs, white papers, arguments, opinions and proposals before making or submitting any of the foregoing to any Governmental Body by or on behalf of any party hereto in connection with any Legal Proceeding related solely to this Agreement or the Contemplated Transactions (including any such Legal Proceeding relating to any antitrust, competition or fair trade Legal Requirement); (iii) coordinate with the other in preparing and exchanging such information; and (iv) promptly provide the other (and its counsel) with copies of all filings, notices, analyses, presentations, memoranda, briefs, white papers, opinions, proposals and other submissions (and a summary of any oral presentations) made or submitted by such party with or to any Governmental Body related solely to this Agreement or the Contemplated Transactions. Notwithstanding anything to the contrary in this Section 6.2, Parent and the Company may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section 6.2 as “Outside Counsel Only Material” or otherwise reasonably redact highly confidential content from the materials produced to the other.
(c) Unless prohibited by Legal Requirements or any Governmental Body, each of Parent and the Company shall notify the other promptly upon the receipt of: (i) any communication from any official of any Governmental Body in connection with any filing made pursuant to this Agreement; (ii) knowledge of the commencement or threat of commencement of any Legal Proceeding by or before any Governmental Body with respect to the Contemplated Transactions (and shall keep the other party informed as to the status of any such Legal Proceeding or threat); and (iii) any request by any official of any Governmental Body for any amendment or supplement to any filing made pursuant to this Agreement or any information required to comply with any Legal Requirements applicable to the Contemplated Transactions. Parent shall be entitled to direct any defense of the Offer, the Merger and the other Contemplated Transactions. Unless prohibited by Legal Requirements or any Governmental Body, whenever any event occurs that is required to be set forth in an amendment or supplement to any filing made pursuant to Section 6.2(a), Parent or the Company, as the case may be, shall (promptly upon learning of the occurrence of such event) inform the other of the occurrence of such event and cooperate in filing with the applicable Governmental Body such amendment or supplement.
(d) Parent and the Company shall use commercially reasonable efforts to take, or cause to be taken, all actions necessary to consummate the Offer and the Merger and make effective the other Contemplated Transactions. Without limiting the generality of the foregoing, each party to this Agreement: (i) shall make all filings (if any) and give all notices (if any) required to be made and given by such party in connection with the Offer, the Merger and the other Contemplated Transactions; (ii) shall use commercially reasonable efforts to obtain each Consent (if any) required to be obtained (pursuant to any applicable Legal Requirement or Contract, or otherwise) by such party in connection with the Offer, the Merger or any of the other Contemplated Transactions; and (iii) shall defend through litigation on the merits any claim asserted in court by the United States Department of Justice or United States Federal Trade Commission under antitrust or competition-related Legal Requirement in order to avoid entry of any decree, order or judgment (whether temporary, preliminary or permanent) that could restrain, delay, or prevent the Closing by the Outside Date. Notwithstanding anything to the contrary herein, nothing in this Agreement shall require Parent or any of its Subsidiaries to, nor shall any Acquired Corporation without the prior written consent of Parent agree or offer to: (A) effect any divestiture of, or hold separate (including by establishing a trust or otherwise), or agree to restrict its ownership or operation of, any business or assets of the Acquired Corporations, Parent or any Subsidiary of Parent, including Acquisition Sub, or to enter into any settlement or consent decree, or agree to any undertaking, with respect to any business or assets of the Acquired Corporations, Parent or any Subsidiary of Parent, including Acquisition Sub, (B) enter into, amend or agree to enter into or amend, any Contract of the Acquired Corporations, Parent or any Subsidiary of Parent, including Acquisition Sub, that imposes any material limitations on the ability of Parent or any of its Affiliates to effectively exercise full rights of the shares of Company Common Stock or (C) otherwise waive, abandon or alter any material rights or material obligations of the Acquired Corporations, Parent or any Subsidiary of Parent, including Acquisition Sub. Furthermore, notwithstanding anything to the contrary contained herein, in connection with obtaining any Consent from any third party, without the prior written consent of Parent, none of the Acquired Corporations or any of their respective Representatives, shall pay or commit to pay to such Person whose approval or consent is being solicited any cash or other consideration, make any accommodation or commitment or incur any liability or other obligation to such Person.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Wachovia Corp New), Agreement and Plan of Merger (AmNet Mortgage, Inc.)
Regulatory and Other Approvals. (a) Each party shall use commercially reasonable efforts Subject to filethe terms and conditions of this Agreement and without limiting the provisions of Sections 6.02 and 6.03, each Principal Party will proceed diligently and in good faith to, as soon promptly as practicable after the date practicable, (a) obtain all consents, approvals or actions of, make all filings with and give all notices to Governmental or Regulatory Authorities or any other public or private third parties required of this Agreement, all notices, reports and other documents required Principal Party or any of their Subsidiaries to be filed by such party with any Governmental Body with respect to the Offer, consummate the Merger and the other Contemplated Transactionsmatters contemplated hereby, and (b) provide such other information and communications to submit such Governmental or Regulatory Authorities or other public or private third parties as the other Principal Party or such Governmental or Regulatory Authorities or other public or private third parties may reasonably request in connection therewith. In addition to and not in limitation of the foregoing, each Principal Party will (i) take promptly all actions necessary to make the filings required of either of the Principal Party or their affiliates under the HSR Act and the Competition Act (Canada), (ii) comply at the earliest practicable date with any request for additional information requested received by such party or its affiliates from (A) the Federal Trade Commission (the "FTC") or the Antitrust Division of the Department of Justice (the "Antitrust Division") pursuant to the HSR Act and (B) any Canadian Governmental or Regulatory Authority pursuant to the Competition Act (Canada), (iii) cooperate with the other Principal Party in connection with such Principal Party's filings under the HSR Act and the Competition Act (Canada) and in connection with resolving any investigation or other inquiry concerning the Merger or the other matters contemplated by this Agreement commenced by any such Governmental Body. or Regulatory Authority of competent jurisdiction, and (iv) proceed diligently and in good faith to obtain early termination of any waiting period applicable to the Merger under the HSR Act and Competition Act (Canada).
(b) Without limiting the generality of the foregoing, the Company and Parent shall prepare and file the notification and report forms required to be filed under the HSR Act within five two business days following of the date of this Agreement. The Company and Parent , Corel shall prepare and file any notification or other document required to be filed under any applicable foreign antitrust or competition-related Legal Requirement with the TSE a notice of the jurisdictions set forth in Part 6.2(a) of option granted by Corel to Inprise pursuant to the Disclosure Schedule (the “Foreign Competition Authorities”) in connection with the Offer, the Merger Corel Stock Option Agreement and the other Contemplated Transactions promptly after the date proposed issuance of this Agreement. The Company and Parent shall respond as promptly as practicable to: (i) any inquiries or requests received from the Federal Trade Commission, the Department of Justice or the Foreign Competition Authorities for additional information or documentation; and (ii) any inquiries or requests received from any state attorney general, other foreign antitrust or competition authority or other Governmental Body in connection with antitrust or related matters. At the request of Parent, the Company shall divest, sell, dispose of, hold separate or take any other action with respect to any of the businesses, product lines or assets of the Acquired Corporations, provided, however, that any such action is conditioned Corel Common Stock issuable upon the consummation exercise of the Offer or the Merger.
(b) Subject to the confidentiality provisions of the Confidentiality Agreementsuch option, Parent and the Company each Corel shall use commercially reasonable its best efforts to promptly supply cause the other with any information which may be required in order TSE to effectuate any filings (including applications) pursuant to (and to otherwise comply with its obligations set forth in) Section ý6.2(a). Unless prohibited by Legal Requirements or any Governmental Bodyaccept such notice, and subject to the confidentiality provisions of the Confidentiality Agreement, each of Parent and the Company shall: (i) consult with the other prior to taking a position with respect to any such filing; (ii) permit the other to review and discuss in advance, and consider in good faith the views of the other in connection with, any analyses, appearances, presentations, memoranda, briefs, white papers, arguments, opinions and proposals before making or submitting any of the foregoing to any Governmental Body by or on behalf of any party hereto in connection with any Legal Proceeding related solely to this Agreement or the Contemplated Transactions (including any such Legal Proceeding relating to any antitrust, competition or fair trade Legal Requirement); (iii) coordinate with the other in preparing and exchanging such information; and (iv) promptly provide the other (and its counsel) with copies of all filings, notices, analyses, presentations, memoranda, briefs, white papers, opinions, proposals and other submissions (and a summary of any oral presentations) made or submitted by such party with or to any Governmental Body related solely to this Agreement or the Contemplated Transactions. Notwithstanding anything to the contrary in this Section 6.2, Parent and the Company maywithout conditions, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section 6.2 soon as “Outside Counsel Only Material” or otherwise reasonably redact highly confidential content from the materials produced to the otherpracticable.
(c) Unless prohibited by Legal Requirements or any Governmental Body, each of Parent and the Company shall notify the other promptly upon the receipt of: (i) any communication from any official of any Governmental Body in connection with any filing made pursuant to this Agreement; (ii) knowledge of the commencement or threat of commencement of any Legal Proceeding by or before any Governmental Body with respect to the Contemplated Transactions (and shall keep the other party informed as to the status of any such Legal Proceeding or threat); and (iii) any request by any official of any Governmental Body for any amendment or supplement to any filing made pursuant to this Agreement or any information required to comply with any Legal Requirements applicable to the Contemplated Transactions. Parent shall be entitled to direct any defense of the Offer, the Merger and the other Contemplated Transactions. Unless prohibited by Legal Requirements or any Governmental Body, whenever any event occurs that is required to be set forth in an amendment or supplement to any filing made pursuant to Section 6.2(a), Parent or the Company, as the case may be, shall (promptly upon learning of the occurrence of such event) inform the other of the occurrence of such event and cooperate in filing with the applicable Governmental Body such amendment or supplement.
(d) Parent and the Company shall use commercially reasonable efforts to take, or cause to be taken, all actions necessary to consummate the Offer and the Merger and make effective the other Contemplated Transactions. Without limiting the generality of the foregoing, each party to this Agreement: (i) shall make all filings (if any) and give all notices (if any) required to be made and given by such party in connection with the Offer, the Merger and the other Contemplated Transactions; (ii) shall use commercially reasonable efforts to obtain each Consent (if any) required to be obtained (pursuant to any applicable Legal Requirement or Contract, or otherwise) by such party in connection with the Offer, the Merger or any of the other Contemplated Transactions; and (iii) shall defend through litigation on the merits any claim asserted in court by the United States Department of Justice or United States Federal Trade Commission under antitrust or competition-related Legal Requirement in order to avoid entry of any decree, order or judgment (whether temporary, preliminary or permanent) that could restrain, delay, or prevent the Closing by the Outside Date. Notwithstanding anything to the contrary herein, nothing in this Agreement shall require Parent or any of its Subsidiaries to, nor shall any Acquired Corporation without the prior written consent of Parent agree or offer to: (A) effect any divestiture of, or hold separate (including by establishing a trust or otherwise), or agree to restrict its ownership or operation of, any business or assets of the Acquired Corporations, Parent or any Subsidiary of Parent, including Acquisition Sub, or to enter into any settlement or consent decree, or agree to any undertaking, with respect to any business or assets of the Acquired Corporations, Parent or any Subsidiary of Parent, including Acquisition Sub, (B) enter into, amend or agree to enter into or amend, any Contract of the Acquired Corporations, Parent or any Subsidiary of Parent, including Acquisition Sub, that imposes any material limitations on the ability of Parent or any of its Affiliates to effectively exercise full rights of the shares of Company Common Stock or (C) otherwise waive, abandon or alter any material rights or material obligations of the Acquired Corporations, Parent or any Subsidiary of Parent, including Acquisition Sub. Furthermore, notwithstanding anything to the contrary contained herein, in connection with obtaining any Consent from any third party, without the prior written consent of Parent, none of the Acquired Corporations or any of their respective Representatives, shall pay or commit to pay to such Person whose approval or consent is being solicited any cash or other consideration, make any accommodation or commitment or incur any liability or other obligation to such Person.
Appears in 2 contracts
Samples: Merger Agreement (Inprise Corp), Merger Agreement (Inprise Corp)
Regulatory and Other Approvals. From the date of this Agreement until Closing (the “Interim Period”):
(a) The Parties will, in order to consummate the transactions contemplated hereby, (i) take all Reasonable Best Efforts necessary, and proceed diligently and in good faith and use all Reasonable Best Efforts, as promptly as practicable to obtain the Seller Approvals, Company Consents, the Acceptable Order and Buyer Approvals and to make all required filings required to be made by it with, and to give all required notices to, Governmental Authorities, and (ii) provide such other information and communications to such Governmental Authorities or other Persons as such Governmental Authorities or other Persons may reasonably request in connection therewith.
(b) The Parties will provide prompt notification to each other when any such approval referred to in Section 6.1(a) is obtained, taken, made, given or denied, as applicable, and will advise each other of any material communications with any Governmental Authority or other Person regarding any of the transactions contemplated by this Agreement.
(c) In furtherance of the foregoing covenants:
(i) Each party Party shall use commercially reasonable efforts to fileprepare, as soon as practicable after is practical following the date execution of this Agreement, all notices, reports and other documents necessary filings in connection with the transactions contemplated by this Agreement that may be required to be filed by such party Party with the FERC or under the HSR Act or any Governmental Body other federal, state or local Laws (excluding with respect to the OfferMPSC filing, which is provided for under clause (iv) below). Each Party shall submit such filings as soon as practicable, but in no event later than (i) 45 days (subject to extension of such period upon consent of the other party, which consent shall not be unreasonably withheld) after the execution hereof for filings with the FERC, and (ii) 21 days after the execution hereof for filings under the HSR Act or any FCC filings. The Parties shall promptly furnish each other with copies of any notices, correspondence or other written communication from the relevant Governmental Authority, shall promptly make any appropriate or necessary subsequent or supplemental filings and shall cooperate in the preparation of such filings as is reasonably necessary and appropriate. Each Party shall have the right to review in advance all information related to Seller, the Merger Project Company or Buyer, as applicable, and the transactions contemplated by this Agreement with respect to any filing made by the other Contemplated TransactionsParty in connection with the transactions contemplated by this Agreement.
(ii) The Parties shall not, and shall cause their respective Affiliates not to, take any action that is intended to submit promptly adversely affect the approval of any additional information requested by Governmental Authority of any such Governmental Body. Without limiting the generality of the foregoingfilings referenced in clause (i).
(iii) Buyer shall cooperate in good faith with all Governmental Authorities and shall undertake Reasonable Best Efforts to complete promptly and lawfully the transactions contemplated by this Agreement.
(iv) Buyer shall prepare, as soon as is practical following the Company and Parent shall prepare and file execution of this Agreement, all necessary filings in connection with the notification and report forms transactions contemplated by this Agreement that may be required to be filed under by such Party with the HSR Act within five business MPSC. Buyer shall submit such filings as soon as practicable, but in no event later than 45 days following (subject to extension of such period upon consent of the date other party, which consent shall not be unreasonably withheld) after the execution hereof for filings with the MPSC. Buyer shall promptly furnish each other with copies of this Agreement. The Company and Parent shall prepare and file any notification notices, correspondence or other document required written communication from the relevant Governmental Authority, shall promptly make any appropriate or necessary subsequent or supplemental filings. Seller shall have the right to be filed under review in advance all information related to Seller, the Project Company or Buyer and the transactions contemplated by this Agreement with respect to any applicable foreign antitrust or competition-related Legal Requirement of the jurisdictions set forth in Part 6.2(a) of the Disclosure Schedule (the “Foreign Competition Authorities”) filing made by Buyer in connection with the Offer, the Merger and the other Contemplated Transactions promptly after the date of transactions contemplated by this Agreement. The Company Buyer shall not, and Parent shall respond as promptly as practicable cause its Affiliates not to: (i) any inquiries or requests received from the Federal Trade Commission, the Department of Justice or the Foreign Competition Authorities for additional information or documentation; and (ii) any inquiries or requests received from any state attorney general, other foreign antitrust or competition authority or other Governmental Body in connection with antitrust or related matters. At the request of Parent, the Company shall divest, sell, dispose of, hold separate or take any other action with respect that is intended to any adversely affect the approval of the businesses, product lines or assets MPSC of the Acquired Corporations, provided, however, that any such action is conditioned upon the consummation of the Offer or the Mergerfiling referenced in clause (iv).
(bv) Subject to Seller shall file with the confidentiality provisions appropriate Governmental Authority an application for the transfer of the Confidentiality Agreement, Parent and the Company each shall use commercially reasonable efforts Wastewater Permit to promptly supply the other with any information which may be required in order to effectuate any filings (including applications) pursuant to (and to otherwise comply with its obligations set forth in) Section ý6.2(a). Unless prohibited by Legal Requirements or any Governmental Body, and subject to the confidentiality provisions of the Confidentiality Agreement, each of Parent and the Company shall: (i) consult with the other prior to taking a position with respect to any such filing; (ii) permit the other to review and discuss in advance, and consider in good faith the views of the other in connection with, any analyses, appearances, presentations, memoranda, briefs, white papers, arguments, opinions and proposals before making or submitting any of the foregoing to any Governmental Body by or on behalf of any party hereto in connection with any Legal Proceeding related solely to this Agreement or the Contemplated Transactions (including any such Legal Proceeding relating to any antitrust, competition or fair trade Legal Requirement); (iii) coordinate with the other in preparing and exchanging such information; and (iv) promptly provide the other (and its counsel) with copies of all filings, notices, analyses, presentations, memoranda, briefs, white papers, opinions, proposals and other submissions (and a summary of any oral presentations) made or submitted by such party with or to any Governmental Body related solely to this Agreement or the Contemplated Transactions. Notwithstanding anything to the contrary in this Section 6.2, Parent and the Company may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section 6.2 as “Outside Counsel Only Material” or otherwise reasonably redact highly confidential content from the materials produced to the otherBuyer.
(c) Unless prohibited by Legal Requirements or any Governmental Body, each of Parent and the Company shall notify the other promptly upon the receipt of: (i) any communication from any official of any Governmental Body in connection with any filing made pursuant to this Agreement; (ii) knowledge of the commencement or threat of commencement of any Legal Proceeding by or before any Governmental Body with respect to the Contemplated Transactions (and shall keep the other party informed as to the status of any such Legal Proceeding or threat); and (iii) any request by any official of any Governmental Body for any amendment or supplement to any filing made pursuant to this Agreement or any information required to comply with any Legal Requirements applicable to the Contemplated Transactions. Parent shall be entitled to direct any defense of the Offer, the Merger and the other Contemplated Transactions. Unless prohibited by Legal Requirements or any Governmental Body, whenever any event occurs that is required to be set forth in an amendment or supplement to any filing made pursuant to Section 6.2(a), Parent or the Company, as the case may be, shall (promptly upon learning of the occurrence of such event) inform the other of the occurrence of such event and cooperate in filing with the applicable Governmental Body such amendment or supplement.
(d) Parent and the Company shall use commercially reasonable efforts to take, or cause to be taken, all actions necessary to consummate the Offer and the Merger and make effective the other Contemplated Transactions. Without limiting the generality of the foregoing, each party to this Agreement: (i) shall make all filings (if any) and give all notices (if any) required to be made and given by such party in connection with the Offer, the Merger and the other Contemplated Transactions; (ii) shall use commercially reasonable efforts to obtain each Consent (if any) required to be obtained (pursuant to any applicable Legal Requirement or Contract, or otherwise) by such party in connection with the Offer, the Merger or any of the other Contemplated Transactions; and (iii) shall defend through litigation on the merits any claim asserted in court by the United States Department of Justice or United States Federal Trade Commission under antitrust or competition-related Legal Requirement in order to avoid entry of any decree, order or judgment (whether temporary, preliminary or permanent) that could restrain, delay, or prevent the Closing by the Outside Date. Notwithstanding anything to the contrary herein, nothing in this Agreement shall require Parent or any of its Subsidiaries to, nor shall any Acquired Corporation without the prior written consent of Parent agree or offer to: (A) effect any divestiture of, or hold separate (including by establishing a trust or otherwise), or agree to restrict its ownership or operation of, any business or assets of the Acquired Corporations, Parent or any Subsidiary of Parent, including Acquisition Sub, or to enter into any settlement or consent decree, or agree to any undertaking, with respect to any business or assets of the Acquired Corporations, Parent or any Subsidiary of Parent, including Acquisition Sub, (B) enter into, amend or agree to enter into or amend, any Contract of the Acquired Corporations, Parent or any Subsidiary of Parent, including Acquisition Sub, that imposes any material limitations on the ability of Parent or any of its Affiliates to effectively exercise full rights of the shares of Company Common Stock or (C) otherwise waive, abandon or alter any material rights or material obligations of the Acquired Corporations, Parent or any Subsidiary of Parent, including Acquisition Sub. Furthermore, notwithstanding anything to the contrary contained herein, in connection with obtaining any Consent from any third party, without the prior written consent of Parent, none of the Acquired Corporations or any of their respective Representatives, shall pay or commit to pay to such Person whose approval or consent is being solicited any cash or other consideration, make any accommodation or commitment or incur any liability or other obligation to such Person.
Appears in 2 contracts
Samples: Purchase and Sale Agreement (Consumers Energy Co), Purchase and Sale Agreement (CMS Energy Corp)
Regulatory and Other Approvals. (a) Each party shall use commercially reasonable efforts to file, as soon as practicable after From the date of this Agreement until the earlier of the Closing and any termination of this Agreement pursuant to Section 8.1 (the "Interim Period"):
(a) The Parties will (at each Party's own expense), in order to consummate the transactions contemplated hereby, take all commercially reasonable efforts necessary, proper or advisable, and proceed diligently and in good faith and use all commercially reasonable efforts, as promptly as practicable to (i) obtain the Seller Approvals, the Seller Consents (provided that Seller shall be responsible for coordinating initial contact and leading discussions with counterparties unless otherwise agreed between the Parties), and the Buyer Approvals, (ii) obtain all other necessary or appropriate filings, registrations, consents, approvals, certifications, determinations, authorizations or waivers (including the transfer or re-issuance of Permits and the assignment of the Assigned Contracts to Buyer) required in order to consummate the transactions contemplated hereby and to take or cause to be taken all actions necessary to comply with the terms upon which any of the same are granted, and (iii) give all required notices to, Governmental Authorities, and provide such other information and communications to such Governmental Authorities or other Persons as such Governmental Authorities or other Persons may reasonably request in connection therewith; provided, that neither Party shall have any obligation to pay any third Person a fee to obtain any consent, authorization or approval of such Person not already provided for by the applicable agreement or applicable Law. Additionally, Seller will reasonably cooperate with Buyer in making Buyer the "Asset Owner" (as defined in the rules of MISO) with respect to the Project as soon as permitted following the Closing.
(b) Each Party shall consult and reasonably cooperate with the other Party in the regulatory review process. The Parties will provide prompt notification to each other when any such approval referred to in Section 5.1(a) is obtained, taken, made, given or denied, as applicable, and will advise each other of any material communications with any Governmental Authority or other Person regarding any of the transactions contemplated by this Agreement.
(c) In furtherance of the foregoing covenants:
(i) Each Party shall prepare, all notices, reports and other documents necessary filings in connection with the transactions contemplated by this Agreement that may be required to be filed by such party Party with any Governmental Body with respect the FERC or under the HSR Act in order to obtain the Offerapplicable Seller Approvals or the Buyer Approvals, the Merger as applicable and shall submit such filings (i) no later than 450 days (subject to extension of such period upon consent of the other Contemplated TransactionsParty, which consent shall not be unreasonably withheld, conditioned or delayed) after the execution hereof for filings with the FERC, and to submit promptly (ii) no later than 450 days after the execution hereof for filings under the HSR Act or any additional information requested by any such Governmental BodyFTC filings. Without limiting Buyer shall as soon as practical following the generality execution of the foregoing, the Company and Parent shall this Agreement prepare and file its integrated resource plan with the notification and report forms MPSC. Each Party shall otherwise prepare as soon as practical following the execution of this Agreement all other necessary filings in connection with the transactions contemplated by this Agreement that may be required to be filed by such Party with any other Governmental Authority in order to obtain the applicable Seller Approvals or the Buyer Approvals, as applicable. The Parties shall (to the extent permitted by applicable Law) promptly furnish each other with copies of any notices, correspondence or other written communication from the relevant Governmental Authority, shall promptly make any appropriate or necessary subsequent or supplemental filings, and shall cooperate in the preparation of such filings as is reasonably necessary and appropriate. Each Party shall have the right to review, and in the case of all filings except for Buyer's integrated resource plan, approve (which approval shall not be unreasonably withheld, conditioned or delayed) in advance all information related to Seller or Buyer, as applicable, and the transactions contemplated by this Agreement with respect to any filing made by the other Party in connection with the transactions contemplated by this Agreement. Buyer shall afford Seller a reasonable opportunity before filing to review and comment upon the portions of Buyer's proposed integrated resource plan and any application for approval of such plan, and testimony, pleadings, briefs and any other documents Buyer proposes to file in connection with MPSC approval of Buyer's integrated resource plan under MCL 460.6t, in each case, that refer to the transactions contemplated by this Agreement. Notwithstanding the foregoing, neither Party shall extend any waiting period under the HSR Act within five business days following without the date of this Agreement. The Company and Parent shall prepare and file any notification or other document required to be filed under any applicable foreign antitrust or competition-related Legal Requirement prior consent of the jurisdictions set forth in Part 6.2(a) other Party. Buyer and Seller agree that all telephonic calls and meetings with the FTC or FERC regarding the transactions contemplated by this Agreement shall be conducted by Buyer and Seller jointly (subject to exceptions upon consent of the Disclosure Schedule (the “Foreign Competition Authorities”) both Parties, which consent shall not be unreasonably withheld, conditioned or delayed). All filing fees payable in connection with the Offer, the Merger and the other Contemplated Transactions promptly after the date of this Agreement. The Company and Parent shall respond as promptly as practicable to: (i) any inquiries or requests received from the Federal Trade Commission, the Department of Justice or the Foreign Competition Authorities for additional information or documentation; and (ii) any inquiries or requests received from any state attorney general, other foreign antitrust or competition authority or other Governmental Body in connection with antitrust or related matters. At the request of Parent, the Company shall divest, sell, dispose of, hold separate or take any other action with respect to any of the businesses, product lines or assets of the Acquired Corporations, provided, however, that any such action is conditioned upon the consummation of the Offer or the Merger.
(b) Subject to the confidentiality provisions of the Confidentiality Agreement, Parent and the Company each shall use commercially reasonable efforts to promptly supply the other with any information which may be required in order to effectuate any filings (including applications) pursuant to (and to otherwise comply with its obligations set forth in) Section ý6.2(a). Unless prohibited by Legal Requirements or any Governmental Body, and subject to the confidentiality provisions of the Confidentiality Agreement, each of Parent and the Company shall: (i) consult with the other prior to taking a position with respect to any such filing; (ii) permit the other to review and discuss in advance, and consider in good faith the views of the other in connection with, any analyses, appearances, presentations, memoranda, briefs, white papers, arguments, opinions and proposals before making or submitting any of the foregoing to any Governmental Body by or on behalf of any party hereto in connection with any Legal Proceeding related solely to this Agreement or the Contemplated Transactions (including any such Legal Proceeding relating to any antitrust, competition or fair trade Legal Requirement); (iii) coordinate with the other in preparing and exchanging such information; and (iv) promptly provide the other (and its counsel) with copies of all filings, notices, analyses, presentations, memoranda, briefs, white papers, opinions, proposals and other submissions (and a summary of any oral presentations) made or submitted by such party with or to any Governmental Body related solely to this Agreement or the Contemplated Transactions. Notwithstanding anything to the contrary in this Section 6.2, Parent and the Company may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section 6.2 as “Outside Counsel Only Material” or otherwise reasonably redact highly confidential content from the materials produced to the other.
(c5.1(c)(i) Unless prohibited by Legal Requirements or any Governmental Body, each of Parent and the Company shall notify the other promptly upon the receipt of: (i) any communication from any official of any Governmental Body in connection with any filing made pursuant to this Agreement; (ii) knowledge of the commencement or threat of commencement of any Legal Proceeding by or before any Governmental Body with respect to the Contemplated Transactions (and shall keep the other party informed as to the status of any such Legal Proceeding or threat); and (iii) any request by any official of any Governmental Body for any amendment or supplement to any filing made pursuant to this Agreement or any information required to comply with any Legal Requirements applicable to the Contemplated Transactions. Parent shall be entitled to direct any defense of the Offer, the Merger and the other Contemplated Transactions. Unless prohibited paid by Legal Requirements or any Governmental Body, whenever any event occurs that is required to be set forth in an amendment or supplement to any filing made pursuant to Section 6.2(a), Parent or the Company, as the case may be, shall (promptly upon learning of the occurrence of such event) inform the other of the occurrence of such event and cooperate in filing with the applicable Governmental Body such amendment or supplementBuyer.
(d) Parent and the Company shall use commercially reasonable efforts to take, or cause to be taken, all actions necessary to consummate the Offer and the Merger and make effective the other Contemplated Transactions. Without limiting the generality of the foregoing, each party to this Agreement: (i) shall make all filings (if any) and give all notices (if any) required to be made and given by such party in connection with the Offer, the Merger and the other Contemplated Transactions; (ii) shall use commercially reasonable efforts to obtain each Consent (if any) required to be obtained (pursuant to any applicable Legal Requirement or Contract, or otherwise) by such party in connection with the Offer, the Merger or any of the other Contemplated Transactions; and (iii) shall defend through litigation on the merits any claim asserted in court by the United States Department of Justice or United States Federal Trade Commission under antitrust or competition-related Legal Requirement in order to avoid entry of any decree, order or judgment (whether temporary, preliminary or permanent) that could restrain, delay, or prevent the Closing by the Outside Date. Notwithstanding anything to the contrary herein, nothing in this Agreement shall require Parent or any of its Subsidiaries to, nor shall any Acquired Corporation without the prior written consent of Parent agree or offer to: (A) effect any divestiture of, or hold separate (including by establishing a trust or otherwise), or agree to restrict its ownership or operation of, any business or assets of the Acquired Corporations, Parent or any Subsidiary of Parent, including Acquisition Sub, or to enter into any settlement or consent decree, or agree to any undertaking, with respect to any business or assets of the Acquired Corporations, Parent or any Subsidiary of Parent, including Acquisition Sub, (B) enter into, amend or agree to enter into or amend, any Contract of the Acquired Corporations, Parent or any Subsidiary of Parent, including Acquisition Sub, that imposes any material limitations on the ability of Parent or any of its Affiliates to effectively exercise full rights of the shares of Company Common Stock or (C) otherwise waive, abandon or alter any material rights or material obligations of the Acquired Corporations, Parent or any Subsidiary of Parent, including Acquisition Sub. Furthermore, notwithstanding anything to the contrary contained herein, in connection with obtaining any Consent from any third party, without the prior written consent of Parent, none of the Acquired Corporations or any of their respective Representatives, shall pay or commit to pay to such Person whose approval or consent is being solicited any cash or other consideration, make any accommodation or commitment or incur any liability or other obligation to such Person.
Appears in 1 contract
Regulatory and Other Approvals. (a) Each party of the Company, Seller and Purchaser shall use commercially its reasonable best efforts to file, as soon as practicable after (i) cooperate in all respects with each other in connection with any filing or submission with a Governmental Authority in connection with the date of transactions contemplated by this Agreement and in connection with any investigation or other inquiry by or before a Governmental Authority relating to the transactions contemplated by this Agreement, including any inquiry, investigation or Action initiated by a Governmental Authority or a private Person, and (ii) keep the other party hereto informed in all notices, reports material respects and other documents required to be filed on a reasonably timely basis of any communication received by such party from, or given by such party to, any Governmental Authority and of any communication received or given by a private Person in connection with any Governmental Body with respect to inquiry, investigation or Action, in each case regarding any of the Offer, the Merger transactions contemplated by this Agreement. In furtherance and the other Contemplated Transactions, and to submit promptly any additional information requested by any such Governmental Body. Without limiting the generality not in limitation of the foregoing, subject to applicable Laws relating to the Company and Parent shall prepare and file the notification and report forms required to be filed under the HSR Act within five business days following the date exchange of this Agreement. The Company and Parent shall prepare and file any notification or other document required to be filed under any applicable foreign antitrust or competition-related Legal Requirement information, each of the jurisdictions set forth in Part 6.2(a) of Company, Seller and Purchaser shall consult and cooperate with the Disclosure Schedule (the “Foreign Competition Authorities”) other party hereto in connection with the Offerany analysis, the Merger and the other Contemplated Transactions promptly after the date of this Agreement. The Company and Parent shall respond as promptly as practicable to: (i) any inquiries appearance, presentation, memorandum, brief, argument, opinion or requests received from the Federal Trade Commission, the Department of Justice proposal to be made or the Foreign Competition Authorities for additional information or documentation; and (ii) any inquiries or requests received from any state attorney general, other foreign antitrust or competition authority or other Governmental Body submitted in connection with antitrust any such inquiry, investigation or related mattersAction. At the request of ParentIn addition, the Company Company, Seller and Purchaser shall divest, sell, dispose of, hold separate or take any other action with respect to any of the businesses, product lines or assets of the Acquired Corporations, provided, however, that any such action is conditioned upon the consummation of the Offer or the Merger.
(b) Subject to the confidentiality provisions of the Confidentiality Agreement, Parent and the Company each shall use commercially reasonable efforts to promptly supply permit counsel for the other with any information which may be required in order to effectuate any filings (including applications) pursuant to (and to otherwise comply with its obligations set forth in) Section ý6.2(a). Unless prohibited by Legal Requirements or any Governmental Body, and subject to the confidentiality provisions of the Confidentiality Agreement, each of Parent and the Company shall: (i) consult with the other prior to taking a position with respect to any such filing; (ii) permit the other party reasonable opportunity to review and discuss in advance, and consider in good faith the views of the other party in connection with, any analyses, appearances, presentations, memoranda, briefs, white papers, arguments, opinions and proposals before making or submitting any of the foregoing proposed written communication to any Governmental Body Authority. Each of the Company, Seller and Purchaser agrees not to participate in any substantive meeting or discussion, either in person or by or on behalf of telephone, with any party hereto Governmental Authority in connection with the transactions contemplated by this Agreement unless it consults with the other party in advance and, to the extent not prohibited by such Governmental Authority, gives the other party the opportunity to attend and participate. Neither the Company, Seller nor Purchaser shall consent to any Legal Proceeding related solely voluntary extension of any statutory deadline or waiting period or to any voluntary delay of the consummation of the transactions contemplated by this Agreement or withdraw its notification and report form pursuant to the Contemplated Transactions (including HSR Act or any such Legal Proceeding relating other filing made pursuant to any antitrust, competition or fair trade Legal Requirement); (iii) coordinate with Antitrust Law unless the other in preparing party has given its prior written consent to such extension or delay, which consent shall not be unreasonably withheld or delayed. Purchaser and exchanging such information; and (iv) promptly provide the other (and its counsel) with copies of all filings, notices, analyses, presentations, memoranda, briefs, white papers, opinions, proposals and other submissions (and a summary of any oral presentations) made or submitted by such party with or to any Governmental Body related solely to this Agreement or the Contemplated Transactions. Notwithstanding anything to the contrary in this Section 6.2, Parent and the Company Seller may, as each deems advisable and necessaryproper, necessary or advisable, reasonably designate any competitively sensitive material provided to the other under this Section 6.2 6.02 as “Outside Counsel Only Materialoutside counsel only.” Such materials and the information contained therein shall be given only to the outside antitrust counsel of the recipient and will not be disclosed by such outside counsel to employees, officers or otherwise reasonably redact highly confidential content directors of the recipient unless express permission is obtained in advance from the source of the materials produced or its legal counsel. Notwithstanding anything to the othercontrary in this Section 6.02, materials provided to the other party or its outside counsel may be redacted to remove references concerning the valuation, pricing and other competitively sensitive terms from an antitrust perspective in the Contracts of Purchaser, Seller and their respective Subsidiaries.
(cb) Unless prohibited by Legal Requirements or any Governmental BodyIn furtherance and not in limitation of the foregoing, each of Parent the Company, Seller and the Company shall notify the other promptly upon the receipt of: Purchaser (i) agrees to (x) make an appropriate filing of a Notification and Report Form pursuant to the HSR Act with respect to the Sale as promptly as reasonably practicable and in any communication from event, unless otherwise agreed by Seller and Purchaser, within fifteen (15) Business Days after the date hereof, (y) effect all other necessary notifications or registrations under the Antitrust Laws as promptly as reasonably practicable after the date hereof, and (z) supply as promptly as reasonably practicable any official of any Governmental Body additional information and documentary material that may be requested pursuant to the HSR Act or in connection with any other filing made pursuant to this Agreement; (ii) knowledge of under the commencement or threat of commencement of any Legal Proceeding by or before any Governmental Body with respect to the Contemplated Transactions (Antitrust Laws and shall keep the other party informed as to the status of any such Legal Proceeding or threat); and (iii) any request by any official of any Governmental Body for any amendment or supplement to any filing made pursuant to this Agreement or any information required to comply with any Legal Requirements applicable to the Contemplated Transactions. Parent shall be entitled to direct any defense of the Offer, the Merger and the other Contemplated Transactions. Unless prohibited by Legal Requirements or any Governmental Body, whenever any event occurs that is required to be set forth in an amendment or supplement to any filing made pursuant to Section 6.2(a), Parent or the Company, as the case may be, shall (promptly upon learning of the occurrence of such event) inform the other of the occurrence of such event and cooperate in filing with the applicable Governmental Body such amendment or supplement.
(d) Parent and the Company shall use commercially their reasonable best efforts to take, or cause to be taken, all other actions consistent with this Section 6.02 necessary to consummate the Offer obtain all Consents under any Antitrust Law as soon as practicable and the Merger and make effective the other Contemplated Transactions. Without limiting the generality of the foregoing, each party to this Agreement: (i) shall make all filings (if any) and give all notices (if any) required to be made and given by such party in connection with the Offer, the Merger and the other Contemplated Transactions; (ii) shall use commercially their reasonable best efforts to obtain each Consent (x) take all action necessary to ensure that no state takeover statute or similar Law is or becomes applicable to the transactions contemplated by this Agreement and (y) if anyany state takeover statute or similar Law becomes applicable to the transactions contemplated by this Agreement (with respect to Purchaser’s obligations under this clause (b), to the extent caused by the actions of Purchaser), take all action necessary to ensure that the transactions contemplated by this Agreement may be consummated as promptly as practicable on the terms contemplated by this Agreement and otherwise minimize the effect of such Law on the transactions contemplated by this Agreement.
(c) required If any objections are asserted with respect to be obtained (pursuant to the transactions contemplated hereby under the Antitrust Laws of any applicable Legal Requirement jurisdictions or Contractif any Action is instituted or threatened by any Governmental Authority or any private party challenging any of the transactions contemplated hereby as violative of the Antitrust Laws of any applicable jurisdictions, each of the Company, Seller and Purchaser shall use its reasonable best efforts to promptly resolve such objections and Actions. In furtherance of the foregoing, Purchaser, at Purchaser’s sole cost, shall, and shall cause its Affiliates to, use reasonable best efforts to avoid or eliminate each and every impediment and obtain all Consents under any Antitrust Law that may be required by any Governmental Authority (and to avoid the entry of, or to effect the dissolution of or vacate or lift, any Governmental Order, that would otherwise have the effect of preventing or materially delaying the consummation of the Closing) so as to enable Purchaser and Seller to consummate the Closing as promptly as practicable, and in any event before the Outside Date, including committing to or effecting, by consent decree, hold separate orders, trust, or otherwise, (i) the sale or disposition of, or prohibition or limitation on the ownership or operation by such party in connection with Purchaser and the Offer, the Merger Company or any of their respective Subsidiaries of specific assets or categories of assets or businesses; (ii) the amendment or termination of existing contracts, licenses or other Contemplated Transactionsrelationships; (iii) the entering into of new contracts, licenses or other relationships; and (iiiiv) behavioral commitments limiting or modifying Purchaser’s or any of its Affiliates’ rights of ownership in, or ability to conduct the business of, one or more of its operations, divisions, businesses, product lines or assets. Notwithstanding the foregoing, none of Seller nor any of its Subsidiaries shall defend through litigation on be required to commit to or effect any such action that is not conditioned upon the merits substantially concurrent consummation of the transactions contemplated hereby, and shall not effect or commit to effect any claim asserted in court by such action without Purchaser’s prior written consent. Further, and for the United States Department avoidance of Justice or United States Federal Trade Commission under antitrust or competition-related Legal Requirement doubt, Purchaser will use reasonable best efforts in order to avoid entry ensure that (x) no requirement for any non-action by or Consent of any decreeGovernmental Authority with respect to any Antitrust Laws, order or judgment (whether temporary, preliminary or permanenty) that could restrain, delay, or prevent no Governmental Order with respect to any Antitrust Laws and (z) no other matter relating to any Antitrust Laws would preclude consummation of the Closing Sale by the Outside Date. Notwithstanding the foregoing or anything to the contrary contained herein, nothing in this Agreement shall require Parent Purchaser (or any of its Subsidiaries topermit the Company or Seller, nor shall any Acquired Corporation without the Purchaser’s prior written consent of Parent consent) to take or agree or offer to: (A) effect commit to take any divestiture of, or hold separate (including by establishing a trust or otherwise), or agree to restrict its ownership or operation of, any business or assets of the Acquired Corporations, Parent or any Subsidiary of Parent, including Acquisition Sub, or to enter into any settlement or consent decreeaction, or agree to any undertakingcondition or restriction or other mitigation, with respect to any business whether contemplated in this Section 6.02 or assets of the Acquired Corporationsotherwise, Parent involving Seller, Purchaser or any Subsidiary of Parenttheir respective Subsidiaries, including Acquisition Subthe Business Subsidiaries, (B) enter intothat would have, amend or agree would reasonably be expected to enter into have, individually or amendin the aggregate, a material adverse effect on Purchaser, any Contract of Purchaser’s principal global networks or the Acquired Corporations, Parent or any Subsidiary of Parent, including Acquisition Sub, that imposes any material limitations on the ability of Parent or any of its Affiliates to effectively exercise full rights of the shares of Company Common Stock or (C) otherwise waive, abandon or alter any material rights or material obligations of the Acquired Corporations, Parent or any Subsidiary of Parent, including Acquisition Sub. Furthermore, notwithstanding anything to the contrary contained herein, in connection with obtaining any Consent from any third party, without the prior written consent of Parent, none of the Acquired Corporations or any of their respective Representatives, shall pay or commit to pay to such Person whose approval or consent is being solicited any cash or other consideration, make any accommodation or commitment or incur any liability or other obligation to such PersonBusiness.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Acxiom Corp)
Regulatory and Other Approvals. (a) Each party shall Subject to the terms and conditions of this Agreement, each of the Target Companies, their Subsidiaries and the Company and Parent will proceed diligently and in good faith and will use all commercially reasonable efforts to filedo, or cause to be done, all things necessary, proper or advisable to, as soon promptly as practicable after practicable, (i) obtain all consents, approvals or actions of, make all filings with and give all notices to Governmental Entities or any other public or private third parties required of Parent, the date Merger Subs, the Target Companies, their Subsidiaries, or the Company to consummate the Mergers and the other transactions contemplated hereby and (ii) provide such other information and communications to such Governmental Entity or other public or private third parties as the other party or such Governmental Entity or other public or private third parties may reasonably request. In addition to and not in limitation of this Agreementthe foregoing, each of the parties will (x) take promptly all noticesactions necessary to make the filings required of Parent, reports the Target Companies, their Subsidiaries and the Company or their Affiliates under the HSR Act, NASD membership rules and other documents required to be filed applicable federal and state securities laws; (y) comply at the earliest practicable date with any request for additional information received by such party with any Governmental Body with respect or its Affiliates from the Federal Trade Commission (the “FTC”) or the Antitrust Division of the Department of Justice (the “Antitrust Division”) pursuant to the OfferHSR Act or the SEC or NASD under applicable federal and state securities laws and regulations; and (z) cooperate with the other party in connection with such party’s filings under the HSR Act and applicable federal and state securities laws and regulations and SRO rules and regulations and in connection with resolving any investigation or other inquiry concerning the Mergers or the other matters contemplated by this Agreement commenced by the FTC, the Merger and Antitrust Division, state attorneys general or the other Contemplated Transactions, and to submit promptly SEC or NASD.
(b) If the Company does not obtain any additional information requested by any such Governmental Body. Without limiting the generality of the foregoingconsents, approvals, waivers or assignments set forth on Schedule 8.1(d)(ii) or Schedule 8.1(o)(ii), the Company and Parent shall prepare cooperate in any reasonable arrangements designed to provide Parent and file its Subsidiaries with the notification and report forms required to be filed under the HSR Act within five business days following the date of this Agreement. The Company and Parent shall prepare and file any notification or other document required to be filed under any applicable foreign antitrust or competition-related Legal Requirement benefits of the jurisdictions set forth in Part 6.2(a) of subject contracts and agreements, including enforcement for the Disclosure Schedule (the “Foreign Competition Authorities”) in connection with the Offer, the Merger and the other Contemplated Transactions promptly after the date of this Agreement. The Company and Parent shall respond as promptly as practicable to: (i) any inquiries or requests received from the Federal Trade Commission, the Department of Justice or the Foreign Competition Authorities for additional information or documentation; and (ii) any inquiries or requests received from any state attorney general, other foreign antitrust or competition authority or other Governmental Body in connection with antitrust or related matters. At the request of Parent, the Company shall divest, sell, dispose of, hold separate or take any other action with respect to any of the businesses, product lines or assets of the Acquired Corporations, provided, however, that any such action is conditioned upon the consummation of the Offer or the Merger.
(b) Subject to the confidentiality provisions of the Confidentiality Agreement, Parent and the Company each shall use commercially reasonable efforts to promptly supply the other with any information which may be required in order to effectuate any filings (including applications) pursuant to (and to otherwise comply with its obligations set forth in) Section ý6.2(a). Unless prohibited by Legal Requirements or any Governmental Body, and subject to the confidentiality provisions of the Confidentiality Agreement, each benefit of Parent and the Company shall: (i) consult with the other prior to taking a position with respect to its Subsidiaries of any and all rights of any Person under such filing; (ii) permit the other to review and discuss in advance, and consider in good faith the views contracts or agreements against any third party arising out of the other in connection with, any analyses, appearances, presentations, memoranda, briefs, white papers, arguments, opinions and proposals before making or submitting any of the foregoing to any Governmental Body by or on behalf of any party hereto in connection with any Legal Proceeding related solely to this Agreement or the Contemplated Transactions (including any such Legal Proceeding relating to any antitrust, competition or fair trade Legal Requirement); (iii) coordinate with the other in preparing and exchanging such information; and (iv) promptly provide the other (and its counsel) with copies of all filings, notices, analyses, presentations, memoranda, briefs, white papers, opinions, proposals and other submissions (and a summary of any oral presentations) made or submitted by such party with or to any Governmental Body related solely to this Agreement or the Contemplated Transactions. Notwithstanding anything to the contrary in this Section 6.2, Parent and the Company may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section 6.2 as “Outside Counsel Only Material” or otherwise reasonably redact highly confidential content from the materials produced to the other.
(c) Unless prohibited by Legal Requirements or any Governmental Body, each of Parent and the Company shall notify the other promptly upon the receipt of: (i) any communication from any official of any Governmental Body in connection with any filing made pursuant to this Agreement; (ii) knowledge of the commencement or threat of commencement of any Legal Proceeding by or before any Governmental Body with respect to the Contemplated Transactions (and shall keep the other party informed as to the status cancellation of any such Legal Proceeding contract or threat); and (iii) any request by any official of any Governmental Body for any amendment or supplement to any filing made pursuant to this Agreement or any information required to comply with any Legal Requirements applicable to the Contemplated Transactions. Parent shall be entitled to direct any defense of the Offer, the Merger and the other Contemplated Transactions. Unless prohibited by Legal Requirements or any Governmental Body, whenever any event occurs that is required to be set forth in an amendment or supplement to any filing made pursuant to Section 6.2(a), Parent or the Company, as the case may be, shall (promptly upon learning of the occurrence of such event) inform the other of the occurrence of such event and cooperate in filing with the applicable Governmental Body such amendment or supplement.
(d) Parent and the Company shall use commercially reasonable efforts to take, or cause to be taken, all actions necessary to consummate the Offer and the Merger and make effective the other Contemplated Transactions. Without limiting the generality of the foregoing, each party to this Agreement: (i) shall make all filings (if any) and give all notices (if any) required to be made and given agreement by such party in connection with the Offer, the Merger and the other Contemplated Transactions; (ii) shall use commercially reasonable efforts to obtain each Consent (if any) required to be obtained (pursuant to any applicable Legal Requirement or Contract, or otherwise) by such party in connection with the Offer, the Merger or any of the other Contemplated Transactions; and (iii) shall defend through litigation on the merits any claim asserted in court by the United States Department of Justice or United States Federal Trade Commission under antitrust or competition-related Legal Requirement in order to avoid entry of any decree, order or judgment (whether temporary, preliminary or permanent) that could restrain, delay, or prevent the Closing by the Outside Date. Notwithstanding anything to the contrary herein, nothing in this Agreement shall require Parent or any of its Subsidiaries to, nor shall any Acquired Corporation without the prior written consent of Parent agree or offer to: (A) effect any divestiture of, or hold separate (including by establishing a trust or otherwise), or agree to restrict its ownership or operation of, any business or assets of the Acquired Corporations, Parent or any Subsidiary of Parent, including Acquisition Sub, or to enter into any settlement or consent decree, or agree to any undertaking, with respect to any business or assets of the Acquired Corporations, Parent or any Subsidiary of Parent, including Acquisition Sub, (B) enter into, amend or agree to enter into or amend, any Contract of the Acquired Corporations, Parent or any Subsidiary of Parent, including Acquisition Sub, that imposes any material limitations on the ability of Parent or any of its Affiliates to effectively exercise full rights of the shares of Company Common Stock or (C) otherwise waive, abandon or alter any material rights or material obligations of the Acquired Corporations, Parent or any Subsidiary of Parent, including Acquisition Sub. Furthermore, notwithstanding anything to the contrary contained herein, in connection with obtaining any Consent from any third party, without the prior written consent of Parent, none of the Acquired Corporations or any of their respective Representatives, shall pay or commit to pay to such Person whose approval or consent is being solicited any cash or other consideration, make any accommodation or commitment or incur any liability or other obligation to such Person.
Appears in 1 contract
Samples: Merger Agreement (E Trade Group Inc)
Regulatory and Other Approvals. From the date of this Agreement until Closing (the “Interim Period”):
(a) Each party As promptly as reasonably practicable, but in no event later than three Business Days after the execution of this Agreement, the Parties shall make their premerger notification filings required under the HSR Act. The Parties shall request early termination of the HSR Act’s waiting period. The Parties shall promptly furnish each other with copies of any notices, correspondence or other written communication received by them from the relevant Governmental Authority, shall consult with each other with respect to responses thereto, shall promptly make any supplemental submissions required of them and shall cooperate in the preparation of such filings as is reasonably necessary and appropriate. If Sellers or Buyer (or any of their applicable Affiliates) intend to participate in any meeting with any Governmental Authority and if permitted by, or acceptable to, the applicable Governmental Authorities, they shall give the other Parties reasonable prior notice of, and an opportunity to participate in, such meeting. Buyer and each Seller shall use its commercially reasonable efforts to filetake all actions reasonably necessary and appropriate in connection with any HSR Act or other applicable Law filing to consummate the Transactions. Each Party shall bear its own costs for the preparation of any such filing and its other costs associated with compliance with the HSR Act, and the Parties shall each bear the costs of any filing fee required under the HSR Act one-half by Buyer and one-fourth by each Seller.
(b) In the event any action is threatened by any Governmental Authority or any Person challenging the Transactions as violative of any antitrust Laws, Buyer and Sellers shall cooperate with each other (including complying with reasonable requests for information) in obtaining the expiration of the waiting period under the HSR Act, obtaining any clearance or approval under any antitrust Law, defending any antitrust Law action, preventing any action that would delay or prevent the consummation of the Transactions or reversing, lifting or removing any order of a Governmental Authority delaying or prohibiting the consummation of the of the Transactions.
(c) Each Party shall prepare, as soon as reasonably practicable after following the date of this Agreement, all notices, reports any necessary filings in connection with this Agreement and other documents the Transactions that may be required to be filed by such party Party with any Governmental Body with respect to the Offer, the Merger and the other Contemplated Transactions, and to submit promptly any additional information requested by any such Governmental Body. Without limiting the generality of the foregoing, the Company and Parent shall prepare and file the notification and report forms required to be filed under the HSR Act within five business days following the date of this AgreementFCC. The Company and Parent Parties shall prepare and file promptly furnish each other with copies of any notification notices, correspondence or other document required to be filed under any applicable foreign antitrust or competition-related Legal Requirement of the jurisdictions set forth in Part 6.2(a) of the Disclosure Schedule (the “Foreign Competition Authorities”) in connection with the Offer, the Merger and the other Contemplated Transactions promptly after the date of this Agreement. The Company and Parent shall respond as promptly as practicable to: (i) any inquiries or requests received written communication from the Federal Trade CommissionFCC, shall promptly make any appropriate or necessary subsequent or supplemental filings and shall cooperate in the Department preparation of Justice or the Foreign Competition Authorities for additional information or documentation; such filings as is reasonably necessary and (ii) any inquiries or requests received from any state attorney general, other foreign antitrust or competition authority or other Governmental Body in connection with antitrust or related matters. At the request of Parent, the Company shall divest, sell, dispose of, hold separate or take any other action with respect to any of the businesses, product lines or assets of the Acquired Corporations, provided, however, that any such action is conditioned upon the consummation of the Offer or the Mergerappropriate.
(bd) Subject to the confidentiality provisions of the Confidentiality Agreement, Parent Sellers and the Company Buyer shall (and each shall cause their respective applicable Affiliates to) use commercially reasonable efforts to obtain as promptly supply the as practicable all other with Seller Approvals, Company Consents and Buyer Approvals applicable to such Person, and all other material consents and approvals that any information which may be of Sellers, Buyer or their respective Affiliates are required to obtain in order for such Person to effectuate any filings (including applications) pursuant to (and to otherwise comply with its obligations set forth in) Section ý6.2(a). Unless prohibited by Legal Requirements or any Governmental Bodyconsummate the Transactions; provided that for purposes of clarification, and subject to the confidentiality provisions of the Confidentiality Agreement, each of Parent and the Company shall: (i) consult with the other prior to taking a position with respect to any such filing; (ii) permit the other to review and discuss in advance, and consider in good faith the views of the other in connection with, any analyses, appearances, presentations, memoranda, briefs, white papers, arguments, opinions and proposals before making or submitting any of the foregoing to any Governmental Body by or on behalf of any party hereto in connection with any Legal Proceeding related solely to this Agreement or the Contemplated Transactions (including any such Legal Proceeding relating to any antitrust, competition or fair trade Legal Requirement); (iii) coordinate with the other in preparing and exchanging such information; and (iv) promptly provide the other (and its counsel) with copies of all filings, notices, analyses, presentations, memoranda, briefs, white papers, opinions, proposals and other submissions (and a summary of any oral presentations) made or submitted by such party with or to any Governmental Body related solely to this Agreement or the Contemplated Transactions. Notwithstanding notwithstanding anything to the contrary in this Agreement, the obtaining of such consents and approvals shall not be a condition to Closing except to the extent expressly set forth in Section 6.2, Parent and the Company may7.4 or Section 8.4, as each deems advisable applicable.
(e) Each Seller and necessary, reasonably designate any competitively sensitive material provided Buyer shall provide prompt notification to the other under when it becomes aware that any such consent or approval referred to in this Section 6.2 as “Outside Counsel Only Material” 6.1 is obtained, made, given or otherwise reasonably redact highly confidential content from the materials produced to the other.
(c) Unless prohibited by Legal Requirements or any Governmental Body, each of Parent and the Company shall notify the other promptly upon the receipt of: (i) any communication from any official of any Governmental Body in connection with any filing made pursuant to this Agreement; (ii) knowledge of the commencement or threat of commencement of any Legal Proceeding by or before any Governmental Body with respect to the Contemplated Transactions (and shall keep the other party informed as to the status of any such Legal Proceeding or threat); and (iii) any request by any official of any Governmental Body for any amendment or supplement to any filing made pursuant to this Agreement or any information required to comply with any Legal Requirements applicable to the Contemplated Transactions. Parent shall be entitled to direct any defense of the Offer, the Merger and the other Contemplated Transactions. Unless prohibited by Legal Requirements or any Governmental Body, whenever any event occurs that is required to be set forth in an amendment or supplement to any filing made pursuant to Section 6.2(a), Parent or the Companydenied, as the case may be, shall (promptly upon learning of the occurrence of such event) inform the other of the occurrence of such event and cooperate in filing with the applicable Governmental Body such amendment or supplementapplicable.
(d) Parent and the Company shall use commercially reasonable efforts to take, or cause to be taken, all actions necessary to consummate the Offer and the Merger and make effective the other Contemplated Transactions. Without limiting the generality of the foregoing, each party to this Agreement: (i) shall make all filings (if any) and give all notices (if any) required to be made and given by such party in connection with the Offer, the Merger and the other Contemplated Transactions; (ii) shall use commercially reasonable efforts to obtain each Consent (if any) required to be obtained (pursuant to any applicable Legal Requirement or Contract, or otherwise) by such party in connection with the Offer, the Merger or any of the other Contemplated Transactions; and (iii) shall defend through litigation on the merits any claim asserted in court by the United States Department of Justice or United States Federal Trade Commission under antitrust or competition-related Legal Requirement in order to avoid entry of any decree, order or judgment (whether temporary, preliminary or permanent) that could restrain, delay, or prevent the Closing by the Outside Date. Notwithstanding anything to the contrary herein, nothing in this Agreement shall require Parent or any of its Subsidiaries to, nor shall any Acquired Corporation without the prior written consent of Parent agree or offer to: (A) effect any divestiture of, or hold separate (including by establishing a trust or otherwise), or agree to restrict its ownership or operation of, any business or assets of the Acquired Corporations, Parent or any Subsidiary of Parent, including Acquisition Sub, or to enter into any settlement or consent decree, or agree to any undertaking, with respect to any business or assets of the Acquired Corporations, Parent or any Subsidiary of Parent, including Acquisition Sub, (B) enter into, amend or agree to enter into or amend, any Contract of the Acquired Corporations, Parent or any Subsidiary of Parent, including Acquisition Sub, that imposes any material limitations on the ability of Parent or any of its Affiliates to effectively exercise full rights of the shares of Company Common Stock or (C) otherwise waive, abandon or alter any material rights or material obligations of the Acquired Corporations, Parent or any Subsidiary of Parent, including Acquisition Sub. Furthermore, notwithstanding anything to the contrary contained herein, in connection with obtaining any Consent from any third party, without the prior written consent of Parent, none of the Acquired Corporations or any of their respective Representatives, shall pay or commit to pay to such Person whose approval or consent is being solicited any cash or other consideration, make any accommodation or commitment or incur any liability or other obligation to such Person.
Appears in 1 contract
Regulatory and Other Approvals. (a) Each party Party shall use commercially reasonable efforts Reasonable Efforts to filetake, as soon as practicable after or cause to be taken, all actions, and to do, or cause to be done, all things necessary, proper or advisable under any applicable Laws to consummate and make effective the date of transactions contemplated by this Agreement, all notices, reports and other documents required to be filed by such party with including (i) filing any Governmental Body with respect to the Offer, the Merger and the other Contemplated Transactions, and to submit promptly any additional information requested by any such Governmental Body. Without limiting the generality of the foregoing, the Company and Parent shall prepare and file the notification and report forms required to be filed for the consummation of the transactions contemplated by this Agreement under the HSR Act within five business days following the date of this Agreement. The Company and Parent shall prepare and file any notification or other document required to be filed under any applicable foreign antitrust or competition-related Legal Requirement of the jurisdictions set forth in Part 6.2(a) of the Disclosure Schedule (the “Foreign Competition Authorities”) in connection with the Offerby November 26, the Merger and the other Contemplated Transactions promptly after the date of this Agreement. The Company and Parent shall respond as promptly as practicable to: (i) any inquiries or requests received from the Federal Trade Commission, the Department of Justice or the Foreign Competition Authorities for additional information or documentation2018; and (ii) using Reasonable Efforts to cause any inquiries or requests received from any state attorney general, other foreign antitrust or competition authority or other Governmental Body in connection with antitrust or related matters. At applicable waiting period under the request of Parent, the Company shall divest, sell, dispose of, hold separate or take any other action HSR Act with respect to the transactions contemplated by this Agreement to expire or terminate at the earliest time that is reasonably practicable and shall request “early termination” with respect to the waiting period under the HSR Act. The Parties shall not agree to extend any waiting period under the HSR Act without the prior written consent of the businessesother Parties. Buyer shall pay fifty percent (50%) and Seller and Pioneer shall collectively pay the remaining fifty percent (50%) of any HSR Act filing fee as provided by statute. Otherwise, product lines or assets of the Acquired Corporations, provided, however, that any such action is conditioned upon the consummation of the Offer or the Mergereach Party shall each pay its own preparation costs and expenses.
(b) Subject to the confidentiality provisions of the Confidentiality Agreement, Parent and the Company each shall use commercially reasonable efforts to promptly supply the other with any information which may be required in order to effectuate any filings (including applications) pursuant to (and to otherwise comply with its obligations set forth in) Section ý6.2(a). Unless prohibited by Legal Requirements or any Governmental BodyEach Party shall, and subject to the confidentiality provisions of the Confidentiality Agreementshall cause its respective subsidiaries to, each of Parent and the Company shall: (i) consult with promptly inform the other prior Parties of, and supply to taking a position the other Parties, any communication (or other correspondence or memoranda) from or to, and any proposed understanding or agreement with, any Governmental Authority in connection with respect to any such filingthis Agreement or the transactions contemplated hereby; (ii) permit the other to review consult and discuss in advance, and consider cooperate in good faith the views of with the other Parties in connection withwith any filings, any notifications, submissions, analyses, appearances, presentations, memoranda, briefs, white papers, arguments, arguments and opinions and proposals before making made or submitting any of the foregoing to any Governmental Body submitted by or on behalf of any party hereto Party in connection with any Legal Proceeding related solely all meetings, actions, discussions and Proceedings with Governmental Authorities relating to this Agreement or the Contemplated Transactions transactions contemplated hereby, including, subject to applicable Law, permitting the other Parties (including or, in the event of competitively sensitive information, the other Parties’ outside antitrust counsel) to review in advance, and considering in good faith the views of the other Party with respect to, any such Legal Proceeding relating proposed written communication to any antitrust, competition or fair trade Legal Requirement); (iii) coordinate with the other in preparing Governmental Authority and exchanging such information; and (iv) to promptly provide the other Parties (and its or, the other Parties’ outside antitrust counsel) with copies of all filings, notices, analyses, presentations, memoranda, briefs, white papers, opinions, proposals and other submissions (and a summary of any oral presentations) made or submitted by such party with or communication to any Governmental Body related solely Authority; (iii) use Reasonable Efforts to this Agreement or the Contemplated Transactions. Notwithstanding anything to the contrary in this Section 6.2, Parent and the Company maycomply, as each deems advisable promptly as reasonably practicable, with any requests received by a Party or any of its subsidiaries under the HSR Act and necessaryany other applicable Law for additional information, reasonably designate any competitively sensitive material provided to documents or other materials; (iv) give the other under this Section 6.2 as “Outside Counsel Only Material” Parties reasonable advance notice of its, its Affiliates’ or otherwise reasonably redact highly confidential content from the materials produced its subsidiaries’ intention to the other.
(c) Unless prohibited by Legal Requirements participate in any meeting or telephone or other discussion with any Governmental Body, each of Parent and the Company shall notify the other promptly upon the receipt of: (i) any communication from any official of any Governmental Body in connection with any filing made pursuant to this Agreement; (ii) knowledge of the commencement or threat of commencement of any Legal Proceeding by or before any Governmental Body Authority with respect to the Contemplated Transactions (and shall keep the other party informed as to the status of any such Legal Proceeding or threat); and (iii) any request transactions contemplated by any official of any Governmental Body for any amendment or supplement to any filing made pursuant to this Agreement or any information required to comply with any Legal Requirements applicable to the Contemplated Transactions. Parent shall be entitled to direct any defense of the Offerfilings, the Merger and the other Contemplated Transactions. Unless prohibited by Legal Requirements investigations or any Governmental Body, whenever any event occurs that is required to be set forth in an amendment or supplement to any filing inquiries made pursuant to Section 6.2(a), Parent or the Company, as the case may be, shall (promptly upon learning of the occurrence of such event) inform the other of the occurrence of such event and cooperate in filing with the applicable Governmental Body such amendment or supplement.
(d) Parent and the Company shall use commercially reasonable efforts to take, or cause to be taken, all actions necessary to consummate the Offer and the Merger and make effective the other Contemplated Transactions. Without limiting the generality of the foregoing, each party to this Agreement: (i) shall make all filings (if any) and give all notices (if any) required to be made and given by such party in connection with the Offertransactions contemplated by this Agreement, the Merger and the other Contemplated Transactions; (ii) shall use commercially reasonable efforts an opportunity for each Party or each Parties’ outside antitrust counsel to obtain each Consent (if any) required to be obtained (pursuant to any applicable Legal Requirement participate in such meeting or Contract, or otherwise) by such party in connection with the Offer, the Merger or any of the other Contemplated Transactionsdiscussion; and (iiiv) shall defend through litigation on contest and resist any Proceeding instituted (or threatened in writing to be instituted) by any Governmental Authority challenging the merits any claim asserted transactions contemplated by this Agreement as being in court by the United States Department of Justice or United States Federal Trade Commission under antitrust or competition-related Legal Requirement in order to avoid entry violation of any decree, order or judgment (whether temporary, preliminary or permanent) that could restrain, delay, or prevent the Closing by the Outside Date. Notwithstanding anything to the contrary herein, nothing in this Agreement shall require Parent or any of its Subsidiaries to, nor shall any Acquired Corporation without the prior written consent of Parent agree or offer to: (A) effect any divestiture of, or hold separate (including by establishing a trust or otherwise), or agree to restrict its ownership or operation of, any business or assets of the Acquired Corporations, Parent or any Subsidiary of Parent, including Acquisition Sub, or to enter into any settlement or consent decree, or agree to any undertaking, with respect to any business or assets of the Acquired Corporations, Parent or any Subsidiary of Parent, including Acquisition Sub, (B) enter into, amend or agree to enter into or amend, any Contract of the Acquired Corporations, Parent or any Subsidiary of Parent, including Acquisition Sub, that imposes any material limitations on the ability of Parent or any of its Affiliates to effectively exercise full rights of the shares of Company Common Stock or (C) otherwise waive, abandon or alter any material rights or material obligations of the Acquired Corporations, Parent or any Subsidiary of Parent, including Acquisition Sub. Furthermore, notwithstanding anything to the contrary contained herein, in connection with obtaining any Consent from any third party, without the prior written consent of Parent, none of the Acquired Corporations or any of their respective Representatives, shall pay or commit to pay to such Person whose approval or consent is being solicited any cash or other consideration, make any accommodation or commitment or incur any liability or other obligation to such Personapplicable Law.
Appears in 1 contract
Samples: Purchase and Sale Agreement (ProPetro Holding Corp.)
Regulatory and Other Approvals. From the date of this Agreement until Closing (the “Interim Period”):
(a) Each party shall use Party will, in order to consummate the transactions contemplated hereby, (i) take all commercially reasonable efforts steps necessary, and proceed diligently and in good faith, as promptly as practicable to fileobtain or make the Seller Approvals, Company Consents and Buyer Approvals and to make all required filings required to be made by it with, and to give all required notices to, Governmental Authorities and (ii) provide such other information and communications to such Governmental Authorities or other Persons as such Governmental Authorities or other Persons may reasonably request in connection therewith.
(b) The Parties will provide prompt notification to each other when any such approval referred to in Section 6.1(a) is obtained, taken, made, given or denied, as applicable, and will advise each other of any material communications with any Governmental Authority or other Person regarding any of the transactions contemplated by this Agreement.
(c) In furtherance of the foregoing covenants:
(i) Each Party shall prepare, as soon as practicable after is practical following the date execution of this Agreement, all notices, reports and other documents necessary filings in connection with the transactions contemplated by this Agreement that may be required to be filed by such party Party with any Governmental Body Authorities under applicable Law. Each Party shall submit such filings as soon as practicable, but in no event later than 30 calendar days with respect to the Offer, the Merger and the other Contemplated Transactions, and to submit promptly any additional information requested by any such Governmental Body. Without limiting the generality of the foregoing, the Company and Parent shall prepare and file the notification and report forms required to be filed filings under the HSR Act within five business days following and 10 Business Days with respect to filings with FERC and NYPSC (subject to extension by mutual agreement) after the date of this Agreementexecution hereof. The Company Parties shall request expedited and Parent confidential treatment of any such filings, as appropriate, shall prepare and file promptly furnish each other with copies of any notification notices, correspondence or other document required to be filed under written communication from the relevant Governmental Authority, shall promptly make any applicable foreign antitrust appropriate or competition-related Legal Requirement necessary subsequent or supplemental filings and shall cooperate in the preparation of such filings as is reasonably necessary and appropriate. Each Party shall bear its own costs of the jurisdictions preparation and prosecution of any such filing; provided, however, that in the event that FERC or the NYPSC requires or requests the submission of a statistical or economic competition or market-power study or screen analysis, under 18 C.F.R. Part 33 or otherwise, then the cost of such study shall be born exclusively by Buyer; and
(ii) Each Party shall cooperate in good faith with all Governmental Authorities, shall not take any action that would reasonably be expected to adversely affect the approval of any Governmental Authority of any of the aforementioned filings, and shall use best reasonable efforts to complete lawfully the transactions contemplated by this Agreement by the Outside Date.
(d) (i) Prior to the Closing, each Party shall not, and shall not permit any of its Affiliates to, take any action or fail to take any action that could reasonably be expected to result in any of the conditions set forth in Part 6.2(a) Article VII not being satisfied or that could otherwise be reasonably expected to prevent or delay the consummation of the Disclosure Schedule (the “Foreign Competition Authorities”) in connection with the Offer, the Merger and the other Contemplated Transactions promptly after the date of transactions contemplated by this Agreement. The Company and Parent shall respond as promptly as practicable to: (i) any inquiries or requests received from the Federal Trade Commission, the Department of Justice or the Foreign Competition Authorities for additional information or documentation; and (ii) Buyer further agrees that during the Interim Period, neither it nor any inquiries or requests received from any state attorney general, other foreign antitrust or competition authority or other Governmental Body in connection with antitrust or related matters. At the request of Parent, the Company shall divest, sell, dispose of, hold separate or take MSI Affiliate will enter into any other action with respect Contract to any acquire electric generation facilities, uncommitted generation capacity and electric transmission or distribution facilities if the proposed acquisition of such additional electric generation facilities, uncommitted generation capacity and electric transmission or distribution facilities would increase the market power attributable to Buyer and its Affiliates in a manner materially adverse to the approval of the businessestransactions contemplated by this Agreement or to otherwise prevent or materially interfere with, product lines or assets of the Acquired Corporations, provided, however, that any such action is conditioned upon materially delay the consummation of the Offer or the Mergertransactions contemplated by, this Agreement.
(be) Subject to the confidentiality provisions of the Confidentiality Agreement, Parent and the Company each shall use commercially reasonable efforts to promptly supply the other with any information which may be required in order to effectuate any filings (including applications) pursuant to (and to otherwise comply with its obligations set forth in) Section ý6.2(a). Unless prohibited by Legal Requirements or any Governmental Body, and subject to the confidentiality provisions of the Confidentiality Agreement, each of Parent and the Company shall: (i) consult with the other prior to taking a position with respect to any such filing; (ii) permit the other to review and discuss in advance, and consider in good faith the views of the other in connection with, any analyses, appearances, presentations, memoranda, briefs, white papers, arguments, opinions and proposals before making or submitting any of the foregoing to any Governmental Body by or on behalf of any party hereto in connection with any Legal Proceeding related solely to this Agreement or the Contemplated Transactions (including any such Legal Proceeding relating to any antitrust, competition or fair trade Legal Requirement); (iii) coordinate with the other in preparing and exchanging such information; and (iv) promptly provide the other (and its counsel) with copies of all filings, notices, analyses, presentations, memoranda, briefs, white papers, opinions, proposals and other submissions (and a summary of any oral presentations) made or submitted by such party with or to any Governmental Body related solely to this Agreement or the Contemplated Transactions. Notwithstanding anything to the contrary in this Section 6.2, Parent and the Company may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section 6.2 as “Outside Counsel Only Material” or otherwise reasonably redact highly confidential content from the materials produced to the other.
(c) Unless prohibited by Legal Requirements or any Governmental Body, each of Parent and the Company shall notify the other promptly upon the receipt of: (i) any communication from any official of any Governmental Body in connection with any filing made pursuant to this Agreement; (ii) knowledge of the commencement or threat of commencement of any Legal Proceeding by or before any Governmental Body with respect to the Contemplated Transactions (and shall keep the other party informed as to the status of any such Legal Proceeding or threat); and (iii) any request by any official of any Governmental Body for any amendment or supplement to any filing made pursuant to this Agreement or any information required to comply with any Legal Requirements applicable to the Contemplated Transactions. Parent shall be entitled to direct any defense of the Offer, the Merger and the other Contemplated Transactions. Unless prohibited by Legal Requirements or any Governmental Body, whenever any event occurs that is required to be set forth in an amendment or supplement to any filing made pursuant to Section 6.2(a), Parent or the Company, as the case may be, shall (promptly upon learning of the occurrence of such event) inform the other of the occurrence of such event and cooperate in filing with the applicable Governmental Body such amendment or supplement.
(d) Parent and the Company shall use commercially reasonable efforts to take, or cause to be taken, all actions necessary to consummate the Offer and the Merger and make effective the other Contemplated Transactions. Without limiting the generality of the foregoing, each party to this Agreement: (i) shall make all filings (if any) and give all notices (if any) required to be made and given by such party in connection with the Offer, the Merger and the other Contemplated Transactions; (ii) shall use commercially reasonable efforts to obtain each Consent (if any) required to be obtained (pursuant to any applicable Legal Requirement or Contract, or otherwise) by such party in connection with the Offer, the Merger or any of the other Contemplated Transactions; and (iii) shall defend through litigation on the merits any claim asserted in court by the United States Department of Justice or United States Federal Trade Commission under antitrust or competition-related Legal Requirement in order to avoid entry of any decree, order or judgment (whether temporary, preliminary or permanent) that could restrain, delay, or prevent the Closing by the Outside Date. Notwithstanding anything to the contrary herein, nothing in and for the avoidance of doubt, no provision of this Agreement shall require Parent Buyer or any of its Subsidiaries toAffiliates to (i) enter into any settlement, nor shall undertaking, consent decree, stipulation or agreement that is not immaterial or ministerial in nature with any Acquired Corporation without Governmental Authority in connection with the prior written consent consummation of Parent agree the transactions contemplated by this Agreement or offer to: (Aii) effect any divestiture of, divest or otherwise hold separate (including by establishing a trust or otherwise), or take any other similar action (or otherwise agree to restrict its ownership or operation ofdo any of the foregoing) with respect to, any business or assets of the Acquired Corporations, Parent or any Subsidiary of Parent, including Acquisition Subits, or to enter into any settlement its Affiliates, businesses, assets or consent decree, or agree to any undertaking, with respect to any business or assets of the Acquired Corporations, Parent or any Subsidiary of Parent, including Acquisition Sub, (B) enter into, amend or agree to enter into or amend, any Contract of the Acquired Corporations, Parent or any Subsidiary of Parent, including Acquisition Sub, that imposes any material limitations on the ability of Parent or any of its Affiliates to effectively exercise full rights of the shares of Company Common Stock or (C) otherwise waive, abandon or alter any material rights or material obligations of the Acquired Corporations, Parent or any Subsidiary of Parent, including Acquisition Sub. Furthermore, notwithstanding anything to the contrary contained herein, in connection with obtaining any Consent from any third party, without the prior written consent of Parent, none of the Acquired Corporations or any of their respective Representatives, shall pay or commit to pay to such Person whose approval or consent is being solicited any cash or other consideration, make any accommodation or commitment or incur any liability or other obligation to such Personproperties.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Macquarie Infrastructure Corp)
Regulatory and Other Approvals. During the Interim Period:
(a) Each party shall use The Parties will, in order to consummate the transactions contemplated hereby, (i) take all commercially reasonable efforts steps necessary, and proceed diligently and in good faith and use all commercially reasonable efforts, as promptly as practicable, to fileobtain the Seller Approvals, Parent Company Consents, the Company Consents and Buyer Approvals in form and substance reasonably satisfactory to Seller and Buyer, and to make all required filings with, and to give all required notices to, the applicable Governmental Authorities and (ii) cooperate in good faith with the applicable Governmental Authorities and provide promptly such other information and communications to such Governmental Authorities or other Persons as such Governmental Authorities or other Persons may reasonably request in connection therewith. In furtherance of the foregoing, Seller agrees to use its commercially reasonable efforts, during the period of 15 Business Days commencing on the first Business Day after the date hereof, to arrange for a meeting between Buyer and each of the counterparties to the Material Contracts. If Seller does not or is unable to arrange for such meetings, then Buyer shall be permitted to contact such counterparties directly. At any such meeting arranged with such counterparties, Representatives of Seller shall be entitled to attend and participate therein.
(b) The Parties will provide prompt notification to each other when any such approval referred to in Section 6.1(a) is obtained, taken, made, given or denied, as applicable, and will advise each other of any material communications with any Governmental Authority or other Person regarding any of the transactions contemplated by this Agreement.
(c) In furtherance of the foregoing covenants:
(i) Each Party shall prepare, as soon as practicable after is practical following the date execution of this Agreement, all noticesnecessary filings in connection with the transactions contemplated by this Agreement that may be required by FERC, reports including, but not limited to, under sections 8 and other documents required to be filed by such party with any Governmental Body with respect to the Offer, the Merger and the other Contemplated Transactions, and to submit promptly any additional information requested by any such Governmental Body. Without limiting the generality 203 of the foregoingFederal Power Act, the Company and Parent shall prepare and file the notification and report forms required to be filed or under the HSR Act within five business or any other federal, state or local Laws. Each Party shall submit such filings to the applicable Governmental Authority as soon as practicable, but in no event later than 30 days following after the date of this Agreementexecution hereof for filings with the FERC and under the HSR Act. The Company Parties shall request expedited treatment of any such filings, shall promptly make any appropriate or necessary subsequent or supplemental filings, and Parent shall prepare cooperate with each other in the preparation of such filings in such manner as is reasonably necessary and file any notification or other document required to be filed under any applicable foreign antitrust or competition-related Legal Requirement of the jurisdictions set forth in Part 6.2(a) of the Disclosure Schedule (the “Foreign Competition Authorities”) in connection with the Offer, the Merger and the other Contemplated Transactions promptly after the date of this Agreementappropriate. The Company Parties shall consult with each other and Parent shall respond as promptly as practicable to: (i) any inquiries or requests received from agree in good faith upon the Federal Trade Commission, the Department timing of Justice or the Foreign Competition Authorities for additional information or documentation; and such filings.
(ii) any inquiries or requests received from any state attorney general, other foreign antitrust or competition authority or other Governmental Body in connection with antitrust or related matters. At the request of Parent, the Company Each Party shall divest, sell, dispose of, hold separate or take any other action with respect to any of the businesses, product lines or assets of the Acquired Corporations, provided, however, that any such action is conditioned upon the consummation of the Offer or the Merger.
(b) Subject to the confidentiality provisions of the Confidentiality Agreement, Parent and the Company each shall use commercially reasonable efforts to promptly supply the other with any information which may be required in order to effectuate any filings (including applications) pursuant to (and to otherwise comply with its obligations set forth in) Section ý6.2(a). Unless prohibited by Legal Requirements or any Governmental Body, and subject to the confidentiality provisions of the Confidentiality Agreement, each of Parent and the Company shall: (i) consult with the other prior to taking a position with respect to any such filing; (ii) permit the other to review and discuss in advance, and consider in good faith the views of the other in connection with, any analyses, appearances, presentations, memoranda, briefs, white papers, arguments, opinions and proposals before making or submitting any of the foregoing to any Governmental Body by or on behalf of any party hereto in connection with any Legal Proceeding related solely to this Agreement or the Contemplated Transactions (including any such Legal Proceeding relating to any antitrust, competition or fair trade Legal Requirement); (iii) coordinate with the other in preparing and exchanging such information; and (iv) promptly provide the other (and its counsel) with copies of all filings, notices, analyses, presentations, memoranda, briefs, white papers, opinions, proposals and other submissions (and a summary of any oral presentations) made or submitted by such party with or to any Governmental Body related solely to this Agreement or the Contemplated Transactions. Notwithstanding anything to the contrary in this Section 6.2, Parent and the Company may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section 6.2 as “Outside Counsel Only Material” or otherwise reasonably redact highly confidential content from the materials produced to the other.
(c) Unless prohibited by Legal Requirements or any Governmental Body, each of Parent and the Company shall notify the other promptly upon the receipt of: (i) any communication from any official of any Governmental Body in connection with any filing made pursuant to this Agreement; (ii) knowledge of the commencement or threat of commencement of any Legal Proceeding by or before any Governmental Body with respect to the Contemplated Transactions (and shall keep the other party informed as to the status of any such Legal Proceeding or threat); and (iii) any request by any official of any Governmental Body for any amendment or supplement to any filing made pursuant to this Agreement or any information required cooperate to comply with any Legal Requirements applicable to ownership transfer requirements under the Contemplated Transactions. Parent shall be entitled to direct any defense of the OfferNew Jersey Industrial Site Recovery Act, the Merger and the other Contemplated Transactions. Unless prohibited by Legal Requirements or any Governmental Body, whenever any event occurs that is required to be set forth in an amendment or supplement to any filing made pursuant to Section 6.2(a), Parent or the Company, as the case may be, shall (promptly upon learning of the occurrence of such event) inform the other of the occurrence of such event and cooperate in filing with the applicable Governmental Body such amendment or supplement.
(d) Parent and the Company shall use commercially reasonable efforts to take, or cause to be taken, all actions necessary to consummate the Offer and the Merger and make effective the other Contemplated Transactions. Without limiting the generality of the foregoing, each party to this Agreement: (i) shall make all filings (if any) and give all notices (if any) required to be made and given by such party in connection with the Offer, the Merger and the other Contemplated Transactions; (ii) shall use commercially reasonable efforts to obtain each Consent (if any) required to be obtained (pursuant to any applicable Legal Requirement or Contract, or otherwise) by such party in connection with the Offer, the Merger or any of the other Contemplated Transactions; and (iii) shall defend through litigation on the merits any claim asserted in court by the United States Department of Justice or United States Federal Trade Commission under antitrust or competition-related Legal Requirement in order to avoid entry of any decree, order or judgment (whether temporary, preliminary or permanent) that could restrain, delay, or prevent the Closing by the Outside Date. Notwithstanding anything to the contrary herein, nothing in this Agreement shall require Parent or any of its Subsidiaries to, nor shall any Acquired Corporation without the prior written consent of Parent agree or offer to: (A) effect any divestiture of, or hold separate (including by establishing a trust or otherwise), or agree to restrict its ownership or operation of, any business or assets of the Acquired Corporations, Parent or any Subsidiary of Parent, including Acquisition Sub, or to enter into any settlement or consent decree, or agree to any undertaking, with respect to any business or assets of the Acquired Corporations, Parent or any Subsidiary of Parent, including Acquisition Sub, (B) enter into, amend or agree to enter into or amend, any Contract of the Acquired Corporations, Parent or any Subsidiary of Parent, including Acquisition Sub, that imposes any material limitations on the ability of Parent or any of its Affiliates to effectively exercise full rights of the shares of Company Common Stock or (C) otherwise waive, abandon or alter any material rights or material obligations of the Acquired Corporations, Parent or any Subsidiary of Parent, including Acquisition Sub. Furthermore, notwithstanding anything to the contrary contained herein, in connection with obtaining any Consent from any third party, without the prior written consent of Parent, none of the Acquired Corporations or any of their respective Representatives, shall pay or commit to pay to such Person whose approval or consent is being solicited any cash or other consideration, make any accommodation or commitment or incur any liability or other obligation to such Person.N.J.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Consolidated Edison Inc)
Regulatory and Other Approvals. (a) Each party During the Interim Period, but subject to Section 7.02(c), each Party shall use cooperate with the other Parties and shall use, and shall cause their respective Affiliates to use, their respective commercially reasonable efforts to file, as soon as practicable after the date of this Agreement, all notices, reports and other documents required take or cause to be filed taken all actions, and do or cause to be done all things, necessary, proper or advisable to consummate the Transactions, including (i) making or causing to be made the filings required of such Party or any of its Affiliates by such party with any Governmental Body Law with respect to the OfferTransactions, as promptly as is reasonably practicable (and, with respect to the Merger and HSR Act, in any event within ten Business Days after the Signing Date), (ii) cooperating with the other Contemplated Transactions, Parties and furnishing to submit promptly any additional the other Parties all information requested by any in such Governmental Body. Without limiting the generality of the foregoing, the Company and Parent shall prepare and file the notification and report forms required to be filed under the HSR Act within five business days following the date of this Agreement. The Company and Parent shall prepare and file any notification or other document required to be filed under any applicable foreign antitrust or competition-related Legal Requirement of the jurisdictions set forth in Part 6.2(a) of the Disclosure Schedule (the “Foreign Competition Authorities”) Party’s possession that is necessary in connection with the Offerany such other Party’s filings, the Merger and (iii) promptly informing the other Contemplated Transactions promptly after the date Parties of this Agreement. The Company any communication from or to, and Parent shall respond as promptly as practicable to: (i) any inquiries proposed understanding or requests received from the Federal Trade Commissionagreement with, the Department of Justice or the Foreign Competition Authorities for additional information or documentation; and (ii) any inquiries or requests received from any state attorney general, other foreign antitrust or competition authority or other Governmental Body in connection with antitrust or related matters. At the request of Parent, the Company shall divest, sell, dispose of, hold separate or take any other action with respect to any of the businesses, product lines or assets of the Acquired Corporations, provided, however, that any such action is conditioned upon the consummation of the Offer or the Merger.
(b) Subject to the confidentiality provisions of the Confidentiality Agreement, Parent and the Company each shall use commercially reasonable efforts to promptly supply the other with any information which may be required in order to effectuate any filings (including applications) pursuant to (and to otherwise comply with its obligations set forth in) Section ý6.2(a). Unless prohibited by Legal Requirements or any Governmental Body, and subject to the confidentiality provisions of the Confidentiality Agreement, each of Parent and the Company shall: (i) consult with the other prior to taking a position Authority with respect to any such filing; (ii) permit filings, and permitting the other Parties to review in advance any proposed substantive communication by such Party to any Governmental Authority with respect to any such filings, (iv) consulting and discuss in advance, and consider in good faith the views of cooperating with the other Parties in connection with, with any analyses, appearances, presentations, memoranda, briefs, white papers, arguments, arguments and opinions and proposals before making to be made or submitting any of the foregoing to any Governmental Body submitted by or on behalf of any party hereto Party in connection with any Legal Proceeding related solely meetings or communications with, or Actions involving, any Governmental Authority with respect to this Agreement any such filings, (v) making an appropriate response, as promptly as is reasonably practicable, to any requests received from a Governmental Authority by such Party or any of its Affiliates under the HSR Act or any other Laws for additional information, documents or other materials with respect to any such filings and (vi) resolving any formal or informal objections of any Governmental Authority with respect to any such filings or the Contemplated Transactions Transactions.
(b) The Purchaser shall take, and shall cause its Affiliates to take or cause to be taken, all actions, and do or cause to be done all things, reasonably necessary, proper or advisable to avoid the entry of, effect the dissolution of and have vacated, lifted, reversed or overturned, as applicable, any Order or Action that would prevent, prohibit, restrict or delay the consummation of the Transactions, in each case, to enable the Closing to occur after the Inside Date and prior to the Outside Date, including (i) proposing, offering, negotiating, committing to and effecting, by Order or otherwise, the sale, divestiture, license or other disposition of any and all of the capital stock, assets, properties, rights, products, leases, businesses, services or other operations or interests therein of the Business or any of the Target Companies, (ii) otherwise taking or committing to take actions that after the Closing Date would limit the Purchaser’s freedom of action with respect to the Business or any of the Target Companies’ assets (each of (i) and (ii) hereof, a “Remedy Action”); provided, however, that notwithstanding anything in this Section 7.02 or anything else to the contrary in this Agreement, (1) the Purchaser shall not be required to take any Remedy Actions (or any other action) that would be material to the Target Companies or the Purchaser (provided that, for purposes of this clause, the Purchaser shall be deemed a consolidated group of entities of the size and scale of a hypothetical company that is one hundred percent (100%) of the size of the Target Companies, taken as a whole, as of the date of this Agreement), and (2) any Remedy Action may be conditioned upon the Closing. Sellers and the Target Companies shall not propose, take, or agree to take any Remedy Action without the prior written consent of the Purchaser, and shall agree to take any such Legal Proceeding relating Remedy Action if directed to any antitrustdo so by the Purchaser, competition or fair trade Legal Requirement); so long as the effectiveness of such Remedy Action is conditioned upon the Closing.
(iiic) coordinate Each of the Purchaser and the Sellers will cooperate in all respects with the other and will use their reasonable best efforts to contest, defend and appeal any threatened or pending preliminary or permanent injunction or other Law or Action that would adversely affect the ability of any Party to consummate the Transactions.
(d) No Party nor its Representatives shall participate in preparing or agree to participate in any substantive communication or meeting with any Governmental Authority in respect of any filings contemplated by Section 7.02(a) or investigation or other inquiry in connection therewith unless it consults with the Seller Representative, in the case of the Purchaser, or the Purchaser, in the case of any Seller, in advance and, to the extent permitted by such Governmental Authority, affords such other Party the opportunity to attend and exchanging participate in such information; and (iv) promptly communication or meeting. Each Party shall provide the other (and its counsel) Parties with copies of all filingscorrespondence, noticeswhitepapers and substantive communications between such Party or any of its Representatives, analyseson the one hand, presentationsand any Governmental Authority, memorandaon the other hand, briefs, white papers, opinions, proposals and other submissions (and a summary in respect of any oral presentations) made investigation or submitted by such party other inquiry in connection therewith with or respect to any Governmental Body related solely to this Agreement or the Contemplated Transactions. Notwithstanding anything to the contrary in this Section 6.27.02, Parent (i) each Party may redact from any materials provided to another Party pursuant to this Section 7.02 any references to the valuation of the Purchased Interests or any information governed by the attorney-client privilege, the work product doctrine or any similar privilege and the Company (ii) each Party may, as each deems advisable and it determines is reasonably necessary, reasonably designate any competitively sensitive material provided to the other under another Party pursuant to this Section 6.2 7.02 as “Outside Counsel Only MaterialOnly,” or otherwise reasonably redact highly confidential content from which materials and the materials produced information contained therein shall be provided only to the other.
(c) Unless prohibited by Legal Requirements or any Governmental Body, each of Parent and the Company shall notify the other promptly upon the receipt of: (i) any communication from any official of any Governmental Body in connection with any filing made pursuant to this Agreement; (ii) knowledge of the commencement or threat of commencement of any Legal Proceeding by or before any Governmental Body with respect to the Contemplated Transactions (receiving Party’s outside legal counsel and shall keep the other party informed as to the status of any such Legal Proceeding or threat); and (iii) any request by any official of any Governmental Body for any amendment or supplement to any filing made pursuant to this Agreement or any information required to comply with any Legal Requirements applicable to the Contemplated Transactions. Parent shall not be entitled to direct any defense of the Offer, the Merger and the other Contemplated Transactions. Unless prohibited by Legal Requirements or any Governmental Body, whenever any event occurs that is required to be set forth in an amendment or supplement to any filing made pursuant to Section 6.2(a), Parent or the Company, as the case may be, shall (promptly upon learning of the occurrence of such event) inform the other of the occurrence of such event and cooperate in filing with the applicable Governmental Body such amendment or supplement.
(d) Parent and the Company shall use commercially reasonable efforts to take, or cause to be taken, all actions necessary to consummate the Offer and the Merger and make effective the other Contemplated Transactions. Without limiting the generality of the foregoing, each party to this Agreement: (i) shall make all filings (if any) and give all notices (if any) required to be made and given disclosed by such party in connection with the Offer, the Merger and the other Contemplated Transactions; (ii) shall use commercially reasonable efforts outside counsel to obtain each Consent (if any) required to be obtained (pursuant to any applicable Legal Requirement or Contract, or otherwise) by such party in connection with the Offer, the Merger or any of the other Contemplated Transactions; and (iii) shall defend through litigation on the merits any claim asserted in court by the United States Department of Justice receiving Party’s directors, officers, employees or United States Federal Trade Commission under antitrust or competition-related Legal Requirement in order to avoid entry of any decree, order or judgment (whether temporary, preliminary or permanent) that could restrain, delay, or prevent the Closing by the Outside Date. Notwithstanding anything to the contrary herein, nothing in this Agreement shall require Parent or any of its Subsidiaries to, nor shall any Acquired Corporation members without the prior written consent of Parent agree or offer to: the disclosing Party.
(Ae) effect any divestiture of, or hold separate (including by establishing a trust or otherwise), or agree to restrict its ownership or operation of, any business or assets The Purchaser shall pay all of the Acquired Corporations, Parent or any Subsidiary of Parent, including Acquisition Sub, or filing fees required to enter into any settlement or consent decree, or agree to any undertaking, with respect to any business or assets of the Acquired Corporations, Parent or any Subsidiary of Parent, including Acquisition Sub, (B) enter into, amend or agree to enter into or amend, any Contract of the Acquired Corporations, Parent or any Subsidiary of Parent, including Acquisition Sub, that imposes any material limitations on the ability of Parent or any of its Affiliates to effectively exercise full rights of the shares of Company Common Stock or (C) otherwise waive, abandon or alter any material rights or material obligations of the Acquired Corporations, Parent or any Subsidiary of Parent, including Acquisition Sub. Furthermore, notwithstanding anything to the contrary contained herein, be paid in connection with obtaining any Consent from any third party, without the prior written consent of Parent, none of the Acquired Corporations or any of their respective Representatives, shall pay or commit to pay to such Person whose approval or consent is being solicited any cash or other consideration, make any accommodation or commitment or incur any liability or other obligation to such Personfilings contemplated by this Section 7.02.
Appears in 1 contract
Regulatory and Other Approvals. During the Interim Period:
(a) Each party shall The Parties will, in order to consummate the transactions contemplated hereby, (i) proceed diligently and in good faith and use commercially reasonable efforts to fileall Commercially Reasonable Efforts, as soon promptly as practicable after practicable, to obtain the date Seller Consents (in the case of this AgreementSeller), all noticesCompany Consents (in the case of Seller), reports Shared Facilities Consents (in the case of the Seller), Buyer Approvals (in the case of Buyer) and other documents required Competition Act Clearance (in the case of the Parties) in form and substance satisfactory to be filed by such party with any Governmental Body with respect to the OfferSeller and Buyer, the Merger and the other Contemplated Transactionseach acting reasonably, and to submit promptly any additional information requested by any such Governmental Body. Without limiting the generality of the foregoingmake or cause to be made all required filings with, and to give or cause to be given all required notices to, the Company and Parent shall prepare and file the notification and report forms required to be filed under the HSR Act within five business days following the date of this Agreement. The Company and Parent shall prepare and file any notification or other document required to be filed under any applicable foreign antitrust or competition-related Legal Requirement of the jurisdictions set forth in Part 6.2(a) of the Disclosure Schedule (the “Foreign Competition Authorities”) in connection with the Offer, the Merger and the other Contemplated Transactions promptly after the date of this Agreement. The Company and Parent shall respond as promptly as practicable to: (i) any inquiries or requests received from the Federal Trade Commission, the Department of Justice or the Foreign Competition Governmental Authorities for additional information or documentation; and (ii) any inquiries or requests received from any state attorney general, cooperate in good faith with the applicable Governmental Authorities and provide promptly such other foreign antitrust or competition authority information and communications to such Governmental Authorities or other Persons as such Governmental Body Authorities or other Persons may reasonably request in connection with antitrust or related matters. At the request of Parent, the Company shall divest, sell, dispose of, hold separate or take any other action with respect to any of the businesses, product lines or assets of the Acquired Corporations, therewith; provided, however, that any such action is conditioned upon the consummation of the Offer or the Merger.
(b) Subject to the confidentiality provisions of the Confidentiality Agreement, Parent and the Company each shall use commercially reasonable efforts to promptly supply the other with any information which may be required in order to effectuate any filings (including applications) pursuant to (and to otherwise comply with its obligations set forth in) Section ý6.2(a). Unless prohibited by Legal Requirements or any Governmental Body, and subject to the confidentiality provisions of the Confidentiality Agreement, each of Parent and the Company shall: (i) consult with the other prior to taking a position with respect to any such filing; (ii) permit the other to review and discuss in advance, and consider in good faith the views of the other in connection with, any analyses, appearances, presentations, memoranda, briefs, white papers, arguments, opinions and proposals before making or submitting any of the foregoing to any Governmental Body by or on behalf of any party hereto in connection with any Legal Proceeding related solely to this Agreement or the Contemplated Transactions (including any such Legal Proceeding relating to any antitrust, competition or fair trade Legal Requirement); (iii) coordinate with the other in preparing and exchanging such information; and (iv) promptly provide the other (and its counsel) with copies of all filings, notices, analyses, presentations, memoranda, briefs, white papers, opinions, proposals and other submissions (and a summary of any oral presentations) made or submitted by such party with or to any Governmental Body related solely to this Agreement or the Contemplated Transactions. Notwithstanding notwithstanding anything to the contrary in this Agreement except as otherwise contemplated herein, neither Buyer nor Seller shall have any obligation to pay any consideration, other than customary fees imposed by Governmental Authorities, or to offer to grant, or agree to, any financial or other accommodation in order to obtain any of the Seller Consents, Company Consents, Shared Facilities Consents, Buyer Approvals and Competition Act Clearance.
(b) The Parties will provide prompt notification to each other when any such approval referred to in Section 6.26.1(a) is obtained, Parent and the Company maytaken, made, given or denied, as applicable, and will advise each deems advisable and necessary, reasonably designate other of any competitively sensitive material provided to communications with any Governmental Authority or other Person regarding any of the other under transactions contemplated by this Section 6.2 as “Outside Counsel Only Material” or otherwise reasonably redact highly confidential content from the materials produced to the otherAgreement.
(c) Unless prohibited by Legal Requirements In furtherance of the foregoing covenants (and notwithstanding the general Commercially Reasonable Efforts standard in Section 6.1(a) above):
(i) Neither Party shall, and each Party shall cause its Affiliates not to, take any action that would reasonably be expected to adversely affect or materially delay, impair or impede the approval of any Governmental BodyAuthority of any of the aforementioned filings; and
(ii) Subject to applicable confidentiality restrictions or restrictions required by Law, each of Parent Buyer and the Company shall Seller will notify the other Party promptly upon the receipt of: of (iA) any communication comments or questions from any official officials of any Governmental Body Authority or other Person in connection with any filing filings made pursuant to this Agreement; (ii) knowledge of Section 6.1 or the commencement transactions contemplated by this Agreement or threat of commencement of any Legal Proceeding by or before any Governmental Body with respect to the Contemplated Transactions (and shall keep the other party informed as to the status of any such Legal Proceeding or threat); Transaction Documents and (iiiB) any request by any official officials of any Governmental Body Authority for any amendment amendments or supplement supplements to any filing filings made pursuant to any Laws of any Governmental Authority or answers to any questions, or the production of any documents, relating to an investigation or review of the transactions contemplated by this Agreement or any information required to comply with any Legal Requirements applicable to the Contemplated Transactions. Parent shall be entitled to direct any defense of the Offer, the Merger and the other Contemplated Transactions. Unless prohibited Transaction Documents by Legal Requirements or any Governmental Body, whenever Authority. Whenever any event occurs that is required to be set forth in an amendment or supplement to any filing made pursuant to this Section 6.2(a)6.1, Parent or the Company, as the case may be, shall (each Party will promptly upon learning of the occurrence of such event) inform the other of the such occurrence of such event and cooperate cooperate, each acting reasonably, in filing promptly with the applicable Governmental Body Authority such amendment or supplement.
(d) Parent and the Company shall use commercially reasonable efforts . Subject to takerestrictions required by Law, or cause to be taken, all actions necessary to consummate the Offer and the Merger and make effective the other Contemplated Transactions. Without without limiting the generality of the foregoing, each party Party shall promptly provide to the other (or the other’s respective Representatives) upon request copies of all material correspondence between such Party and any Governmental Authority or other Person and any productions made by such Party or its Affiliates to any Governmental Authority relating to the transactions contemplated by this Agreement: (i) . The Parties may, as they reasonably deem advisable and necessary, designate any competitively sensitive materials provided to the other under this Section 6.1 as “outside counsel only.” Such materials and the information contained therein shall make be given only to outside counsel of the recipient and each of Buyer and Seller, as applicable, shall cause its respective outside counsel not to disclose such materials and information to employees, officers or directors of the recipient without the advance written consent of the party providing such materials. In addition, to the extent reasonably practicable, all filings (if any) discussions, telephone calls and give all notices (if any) required meetings with a Governmental Authority regarding the transactions contemplated by this Agreement shall include Representatives of both Parties. Subject to be made Law, the Parties will consult and given by such party cooperate with each other, and consider in good faith the views of one another, in connection with any analyses, appearances, discussions, filings, arguments, presentations, memoranda, briefs, arguments and proposals made or submitted to any Governmental Authority regarding the Offer, the Merger transactions contemplated by this Agreement by or on behalf of any Party and each Party shall provide the other Contemplated Transactions; (ii) shall use commercially reasonable efforts Party with the opportunity to obtain each Consent (if any) required to be obtained (pursuant review and comment on all documentation submitted to any applicable Legal Requirement or Contract, or otherwise) by such party Governmental Entity in connection with the Offer, the Merger or any respect of the other Contemplated Transactions; and transactions contemplated by this Agreement by or on behalf of any Party.
(iii) Each Party shall defend through litigation on the merits any claim asserted in court by the United States Department of Justice or United States Federal Trade Commission under antitrust or competition-related Legal Requirement promptly take, in order to avoid entry of any decreeconsummate the transactions contemplated by this Agreement, order or judgment (whether temporary, preliminary or permanent) that could restrain, delay, or prevent the Closing by the Outside Date. Notwithstanding anything all Commercially Reasonable Efforts necessary to the contrary herein, nothing in this Agreement shall require Parent or any of its Subsidiaries to, nor shall any Acquired Corporation without the prior written consent of Parent agree or offer to: (A) effect secure the expiration or termination of any divestiture of, or hold separate (including by establishing a trust or otherwise), or agree applicable waiting period related to restrict its ownership or operation of, any business or assets of the Acquired Corporations, Parent or any Subsidiary of Parent, including Acquisition Sub, or to enter into any settlement or consent decree, or agree to any undertaking, with respect to any business or assets of the Acquired Corporations, Parent or any Subsidiary of Parent, including Acquisition SubCompetition Act Clearance, (B) enter intoobtain Competition Act Clearance, amend or agree to enter into or amend, any Contract of the Acquired Corporations, Parent or any Subsidiary of Parent, including Acquisition Sub, that imposes any material limitations on the ability of Parent or any of its Affiliates to effectively exercise full rights of the shares of Company Common Stock or and (C) otherwise waive, abandon or alter resolve any material rights or material obligations objections asserted with respect to the transactions contemplated by this Agreement raised by any Governmental Authority in respect of the Acquired CorporationsCompetition Act Clearance and to prevent the entry of any court order and to have vacated, Parent lifted, reversed or overturned any Subsidiary of Parentdecree, including Acquisition Sub. Furthermorejudgment, notwithstanding anything to injunction or other order that would prevent, prohibit, restrict, or delay the contrary contained herein, in connection with obtaining any Consent from any third party, without the prior written consent of Parent, none consummation of the Acquired Corporations or any of their respective Representatives, shall pay or commit to pay to such Person whose approval or consent is being solicited any cash or other consideration, make any accommodation or commitment or incur any liability or other obligation to such Persontransactions contemplated by this Agreement.
Appears in 1 contract
Samples: Purchase and Sale Agreement (NextEra Energy Partners, LP)
Regulatory and Other Approvals. From the date of this Agreement until the earlier of termination of this Agreement in accordance with Article VIII and Closing (the “Interim Period”):
(a) Each party Party shall, and each Party shall cause its Affiliates to, use commercially reasonable efforts to fileobtain as promptly as reasonably practicable all Seller Approvals, as soon as practicable after Company Consents and Buyer Approvals applicable to such Person, and all other material consents and approvals that any of Seller, Buyer or their respective Affiliates are required to obtain in order for such Person to consummate the date transactions contemplated hereby; provided that for purposes of clarification, and notwithstanding anything to the contrary in this Agreement, all notices, reports the obtaining of such consents and other documents required approvals shall not be a condition to be filed by such party with any Governmental Body with respect Closing except to the Offer, the Merger and the other Contemplated Transactions, and to submit promptly any additional information requested by any such Governmental Body. Without limiting the generality of the foregoing, the Company and Parent shall prepare and file the notification and report forms required to be filed under the HSR Act within five business days following the date of this Agreement. The Company and Parent shall prepare and file any notification or other document required to be filed under any applicable foreign antitrust or competition-related Legal Requirement of the jurisdictions extent expressly set forth in Part 6.2(a) of the Disclosure Schedule (the “Foreign Competition Authorities”) in connection with the Offer, the Merger and the other Contemplated Transactions promptly after the date of this Agreement. The Company and Parent shall respond as promptly as practicable to: (i) any inquiries or requests received from the Federal Trade Commission, the Department of Justice or the Foreign Competition Authorities for additional information or documentation; and (ii) any inquiries or requests received from any state attorney general, other foreign antitrust or competition authority or other Governmental Body in connection with antitrust or related matters. At the request of Parent, the Company shall divest, sell, dispose of, hold separate or take any other action with respect to any of the businesses, product lines or assets of the Acquired Corporations, provided, however, that any such action is conditioned upon the consummation of the Offer or the MergerSection 7.1(b).
(b) Subject Each Party shall, and each Party shall cause its Affiliates to, (i) make or cause to be made the filings required of such Party or any of its applicable Affiliates under any Laws applicable to it with respect to the confidentiality provisions transactions contemplated by this Agreement and to pay any fees due of it in connection with such filings, as promptly as reasonably practicable, provided, that for purposes of clarification, and notwithstanding anything to the Confidentiality contrary in this Agreement, Parent such filings and payments shall not be conditions to Closing except to the Company each shall extent expressly set forth in Section 7.1(c), (ii) cooperate with the other Party and its applicable Affiliates and furnish the information in such Party’s possession that is necessary in connection with such other Party’s filings, (iii) use commercially reasonable efforts to cause the expiration of the notice or waiting periods under any Laws applicable to it with respect to the consummation of the transactions contemplated by this Agreement as promptly supply as reasonably practicable, (iv) promptly inform the other with Party of any information which may be required in order to effectuate communication from or to, and any filings (including applications) pursuant to (and to otherwise comply with its obligations set forth in) Section ý6.2(a). Unless prohibited by Legal Requirements proposed understanding or agreement with, any Governmental BodyEntity in respect of such filings, (v) reasonably consult and subject to the confidentiality provisions of the Confidentiality Agreement, each of Parent and the Company shall: (i) consult cooperate with the other prior to taking a position with respect to any such filing; (ii) permit the other to review and discuss in advance, and consider in good faith the views of the other Party in connection with, with any analyses, appearances, presentations, memoranda, briefs, white papers, arguments, arguments and opinions and proposals before making made or submitting any of the foregoing to any Governmental Body submitted by or on behalf of any party hereto such Party in connection with meetings, actions, Legal Proceedings and orders with Governmental Entities relating to such filings, (vi) comply, as promptly as reasonably practicable, with any Legal Proceeding related solely requests received by such Party or any of its Affiliates under any applicable Laws for additional information, documents or other materials with respect to such filings, and (vii) use commercially reasonable efforts to resolve any objections as may be asserted by any Governmental Entity with respect to the transactions contemplated by this Agreement. If any Party (or any of its Affiliates) intends to participate in any material meeting with any Governmental Entity with respect to such filings and if permitted by, or acceptable to, the applicable Governmental Entity, it shall give the other Party reasonable prior notice of, and an opportunity to participate in, such meeting.
(c) Each Party shall notify the other Party as promptly as reasonably practicable when it becomes aware that any such consent or approval referred to in this Section 6.2 is obtained, taken, made, given or denied, as applicable.
(d) In furtherance of the foregoing covenants:
(i) Each Party shall prepare, as promptly as reasonably practicable following the execution of this Agreement, all necessary filings applicable to it in connection with the transactions contemplated by this Agreement that may be required by the PJM, FERC or the Contemplated Transactions (including HSR Act or any such Legal Proceeding relating to any antitrustapplicable Laws; provided that for purposes of clarification, competition or fair trade Legal Requirement); (iii) coordinate with the other in preparing and exchanging such information; and (iv) promptly provide the other (and its counsel) with copies of all filings, notices, analyses, presentations, memoranda, briefs, white papers, opinions, proposals and other submissions (and a summary of any oral presentations) made or submitted by such party with or to any Governmental Body related solely to this Agreement or the Contemplated Transactions. Notwithstanding notwithstanding anything to the contrary in this Agreement, such filings shall not be conditions to Closing except to the extent requisite to the closing condition set forth in Section 6.2, Parent and the Company may7.1(c), as each deems advisable and necessaryapplicable. Each Party shall submit such filings applicable to it as promptly as reasonably practicable, reasonably designate any competitively sensitive material provided but in no event later than 10 Business Days after the execution hereof (or 10 calendar days after the execution hereof, in the case of the notice to the other under this Section 6.2 as “Outside Counsel Only Material” or otherwise reasonably redact highly confidential content from the materials produced to the other.
(c) Unless prohibited by Legal Requirements or any Governmental Body, each of Parent and the Company shall notify the other promptly upon the receipt of: (i) any communication from any official of any Governmental Body PJM contemplated in connection with any filing made pursuant to this Agreement; clause (ii) knowledge of below), or such other time as mutually agreed upon by the commencement Parties, for filings with the PJM, FERC or threat of commencement of any Legal Proceeding by or before any Governmental Body with respect to under the Contemplated Transactions HSR Act. The Persons making such filings shall (and shall keep the other party informed as to the status A) request expedited treatment of any such Legal Proceeding or threat); and (iii) any request by any official of any Governmental Body for any amendment or supplement to any filing made pursuant to this Agreement or any information required to comply with any Legal Requirements applicable to the Contemplated Transactions. Parent shall be entitled to direct any defense of the Offer, the Merger and the other Contemplated Transactions. Unless prohibited by Legal Requirements or any Governmental Body, whenever any event occurs that is required to be set forth in an amendment or supplement to any filing made pursuant to Section 6.2(a), Parent or the Company, as the case may be, shall (promptly upon learning of the occurrence of such event) inform the other of the occurrence of such event and cooperate in filing with the applicable Governmental Body such amendment or supplement.
(d) Parent and the Company shall use commercially reasonable efforts to take, or cause to be taken, all actions necessary to consummate the Offer and the Merger and make effective the other Contemplated Transactions. Without limiting the generality of the foregoing, each party to this Agreement: (i) shall make all filings (if any) and give all notices (if any) required to be made and given by such party in connection with the Offer, the Merger and the other Contemplated Transactions; (ii) shall use commercially reasonable efforts to obtain each Consent (if any) required to be obtained (pursuant to any applicable Legal Requirement or Contract, or otherwise) by such party in connection with the Offer, the Merger or any of the other Contemplated Transactions; and (iii) shall defend through litigation on the merits any claim asserted in court by the United States Department of Justice or United States Federal Trade Commission under antitrust or competition-related Legal Requirement in order to avoid entry of any decree, order or judgment (whether temporary, preliminary or permanent) that could restrain, delay, or prevent the Closing by the Outside Date. Notwithstanding anything to the contrary herein, nothing in this Agreement shall require Parent or any of its Subsidiaries to, nor shall any Acquired Corporation without the prior written consent of Parent agree or offer to: (A) effect any divestiture of, or hold separate (including by establishing a trust or otherwise), or agree to restrict its ownership or operation of, any business or assets of the Acquired Corporations, Parent or any Subsidiary of Parent, including Acquisition Sub, or to enter into any settlement or consent decree, or agree to any undertaking, with respect to any business or assets of the Acquired Corporations, Parent or any Subsidiary of Parent, including Acquisition Subfilings, (B) enter intoshall as promptly as reasonably practicable furnish the other Party with copies of any notices, amend correspondence or agree other written communication received by it from the relevant Governmental Entity with respect to enter into such filing and (C) make any appropriate or amendnecessary subsequent or supplemental filings required of it (and the Parties shall cooperate in the preparation of any such filings as is reasonably necessary and appropriate). Any filing fees, any Contract costs or expenses arising out of or relating to such filings shall be borne one-half by Seller and one-half by Buyer.
(ii) Promptly after the Execution Date, Seller shall (A) within 10 Business Days after the Execution Date, file with FERC the “informational filing” required under Section 2 of the Acquired CorporationsPJM Tariff and a request for a waiver of the 90-day period set forth in Schedule 2 of the PJM Tariff (collectively the “Reactive Power Filing”) and (B) within 10 calendar days after the Execution Date, Parent or any Subsidiary cause the Project Company to provide to PJM all information required by Section 2 of ParentPJM Manual 14D by the deadlines set forth therein. Buyer shall assist Seller as is reasonably necessary in the preparation of such information to be provided pursuant to clause (B) above.
(e) During the Interim Period, including Acquisition Sub, that imposes any material limitations on the ability of Parent or neither Buyer nor any of its Affiliates shall enter into any Contract to effectively exercise full rights build, develop, acquire or operate any power facility that would reasonably be expected to cause a delay in or failure to obtain any Governmental Entity’s granting of the shares of Company Common Stock a Buyer Approval or (C) otherwise waive, abandon or alter any material rights or material obligations of the Acquired Corporations, Parent or any Subsidiary of Parent, including Acquisition Sub. Furthermore, notwithstanding anything to the contrary contained herein, in connection with obtaining any Consent from any third party, without the prior written consent of Parent, none of the Acquired Corporations or any of their respective Representatives, shall pay or commit to pay to such Person whose approval or consent is being solicited any cash or other consideration, make any accommodation or commitment or incur any liability or other obligation to such Persona Seller Approval.
Appears in 1 contract
Samples: Equity Capital Contribution Agreement (Stronghold Digital Mining, Inc.)
Regulatory and Other Approvals. From the date of this Agreement until Closing (the "Interim Period"):
(a) Each party shall use The Parties will, in order to consummate the transactions contemplated hereby, take all commercially reasonable efforts necessary, and proceed diligently and in good faith and use all commercially reasonable efforts, as promptly as practicable to fileobtain the Seller Approvals, Seller Consents, the Acceptable Orders and Buyer Approvals and to make all required filings required to be made by it with, and to give all required notices to, Governmental Authorities, and provide such other information and communications to such Governmental Authorities or other Persons as such Governmental Authorities or other Persons may reasonably request in connection therewith. Additionally, Seller will cooperate with Buyer in making Buyer the "Asset Owner" (as defined in the rules of MISO) with respect to the Project as soon as permitted following the Closing.
(b) The Parties will provide prompt notification to each other when any such approval referred to in Section 5.1(a) is obtained, taken, made, given or denied, as applicable, and will advise each other of any material communications with any Governmental Authority or other Person regarding any of the transactions contemplated by this Agreement.
(c) In furtherance of the foregoing covenants:
(i) Each Party shall prepare, as soon as practicable after is reasonably practical following the date execution of this Agreement, all notices, reports and other documents necessary filings in connection with the transactions contemplated by this Agreement that may be required to be filed by such party Party with the FERC, the MPSC or any other federal, state or local Laws. Each Party shall submit such filings as soon as reasonably practicable. Notwithstanding the foregoing, the filing for authorization from the FERC for the acquisition of the Purchased Assets by Buyer from Seller pursuant to Section 203 of the FPA shall be made within 540 days of the execution of this Agreement, subject to extension of such period upon consent of the other Party, which consent shall not be unreasonably withheld. The Parties shall promptly furnish each other with copies of any notices, correspondence or other written communication from the relevant Governmental Authority, shall promptly make any appropriate or necessary subsequent or supplemental filings, and shall cooperate in the preparation of such filings as is reasonably necessary and appropriate. Each Party shall have the right to review in advance all information related to Seller or Buyer, as applicable, and the transactions contemplated by this Agreement with respect to any filing made by the other Party in connection with the transactions contemplated by this Agreement.
(ii) The Parties shall not, and shall cause their respective Affiliates not to, take any action that is intended to adversely affect the approval of any Governmental Body Authority of any of the filings referenced in clause (i).
(iii) Seller shall file with the appropriate Governmental Authority an application for the transfer of all Permits held by Seller with respect to the Offer, the Merger and the other Contemplated Transactions, and Project to submit promptly any additional information requested by any such Governmental Body. Without limiting the generality of the foregoing, the Company and Parent shall prepare and file the notification and report forms required to be filed under the HSR Act within five business days following the date of this Agreement. The Company and Parent shall prepare and file any notification or other document required to be filed under any applicable foreign antitrust or competition-related Legal Requirement of the jurisdictions set forth in Part 6.2(a) of the Disclosure Schedule (the “Foreign Competition Authorities”) in connection with the Offer, the Merger and the other Contemplated Transactions promptly after the date of this Agreement. The Company and Parent shall respond as promptly as practicable to: (i) any inquiries or requests received from the Federal Trade Commission, the Department of Justice or the Foreign Competition Authorities for additional information or documentation; and (ii) any inquiries or requests received from any state attorney general, other foreign antitrust or competition authority or other Governmental Body in connection with antitrust or related matters. At the request of Parent, the Company shall divest, sell, dispose of, hold separate or take any other action with respect to any of the businesses, product lines or assets of the Acquired Corporations, provided, however, that any such action is conditioned upon the consummation of the Offer or the Merger.
(b) Subject to the confidentiality provisions of the Confidentiality Agreement, Parent and the Company each shall use commercially reasonable efforts to promptly supply the other with any information which may be required in order to effectuate any filings (including applications) pursuant to (and to otherwise comply with its obligations set forth in) Section ý6.2(a). Unless prohibited by Legal Requirements or any Governmental Body, and subject to the confidentiality provisions of the Confidentiality Agreement, each of Parent and the Company shall: (i) consult with the other prior to taking a position with respect to any such filing; (ii) permit the other to review and discuss in advance, and consider in good faith the views of the other in connection with, any analyses, appearances, presentations, memoranda, briefs, white papers, arguments, opinions and proposals before making or submitting any of the foregoing to any Governmental Body by or on behalf of any party hereto in connection with any Legal Proceeding related solely to this Agreement or the Contemplated Transactions (including any such Legal Proceeding relating to any antitrust, competition or fair trade Legal Requirement); (iii) coordinate with the other in preparing and exchanging such information; and (iv) promptly provide the other (and its counsel) with copies of all filings, notices, analyses, presentations, memoranda, briefs, white papers, opinions, proposals and other submissions (and a summary of any oral presentations) made or submitted by such party with or to any Governmental Body related solely to this Agreement or the Contemplated Transactions. Notwithstanding anything to the contrary in this Section 6.2, Parent and the Company may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section 6.2 as “Outside Counsel Only Material” or otherwise reasonably redact highly confidential content from the materials produced to the other.
(c) Unless prohibited by Legal Requirements or any Governmental Body, each of Parent and the Company shall notify the other promptly upon the receipt of: (i) any communication from any official of any Governmental Body in connection with any filing made pursuant to this Agreement; (ii) knowledge of the commencement or threat of commencement of any Legal Proceeding by or before any Governmental Body with respect to the Contemplated Transactions (and shall keep the other party informed as to the status of any such Legal Proceeding or threat); and (iii) any request by any official of any Governmental Body for any amendment or supplement to any filing made pursuant to this Agreement or any information required to comply with any Legal Requirements applicable to the Contemplated Transactions. Parent shall be entitled to direct any defense of the Offer, the Merger and the other Contemplated Transactions. Unless prohibited by Legal Requirements or any Governmental Body, whenever any event occurs that is required to be set forth in an amendment or supplement to any filing made pursuant to Section 6.2(a), Parent or the Company, as the case may be, shall (promptly upon learning of the occurrence of such event) inform the other of the occurrence of such event and cooperate in filing with the applicable Governmental Body such amendment or supplementBuyer.
(d) Parent During the Interim Period, Seller shall timely and properly make all submittals and reports, shall pay all fees, and otherwise do all things necessary to maintain in full force and effect and comply in all material respects with, each and every Permit required for the ownership and operation of the Project as it is currently operated. In the event of any actual or threatened cancellation, revocation, termination, suspension, nonrenewal, or adverse modification of any such Permit, Seller shall promptly notify Buyer in writing and shall pursue all available legal and equitable remedies for the purpose of preserving such Permit and the Company shall use commercially reasonable efforts to take, or cause to be taken, all actions necessary to consummate the Offer and the Merger and make effective the other Contemplated Transactions. Without limiting the generality of currently prevailing terms thereof.
(e) Notwithstanding the foregoing, each party to this Agreement: (i) shall make all filings (if any) and give all notices (if any) required to be made and given by such party in connection with the Offer, the Merger and the other Contemplated Transactions; (ii) shall use commercially reasonable efforts to obtain each Consent (if any) required to be obtained (pursuant to any applicable Legal Requirement or Contract, or otherwise) by such party in connection with the Offer, the Merger or any of the other Contemplated Transactions; and (iii) shall defend through litigation on the merits any claim asserted in court by the United States Department of Justice or United States Federal Trade Commission under antitrust or competition-related Legal Requirement in order to avoid entry of any decree, order or judgment (whether temporary, preliminary or permanent) that could restrain, delay, or prevent the Closing by the Outside Date. Notwithstanding anything to the contrary herein, nothing in this Agreement Section 5.1 shall require Parent or any of its Subsidiaries to, nor shall any Acquired Corporation without the prior written consent of Parent agree or offer to: (A) effect any divestiture ofrequire, or hold separate (including by establishing a trust or otherwise)be construed to require, or agree to restrict its ownership or operation of, any business or assets of the Acquired Corporations, Parent or any Subsidiary of Parent, including Acquisition Sub, or to enter into any settlement or consent decree, or agree to any undertaking, with respect to any business or assets of the Acquired Corporations, Parent or any Subsidiary of Parent, including Acquisition Sub, (B) enter into, amend or agree to enter into or amend, any Contract of the Acquired Corporations, Parent or any Subsidiary of Parent, including Acquisition Sub, that imposes any material limitations on the ability of Parent Buyer or any of its Affiliates to effectively exercise full rights agree to (i) sell, hold, divest, discontinue or limit, before or after the Closing Date, any assets, businesses or interests of the shares of Company Common Stock or (C) otherwise waive, abandon or alter any material rights or material obligations of the Acquired Corporations, Parent or any Subsidiary of Parent, including Acquisition Sub. Furthermore, notwithstanding anything to the contrary contained herein, in connection with obtaining any Consent from any third party, without the prior written consent of Parent, none of the Acquired Corporations Buyer or any of their respective Representativesits Affiliates; (ii) any conditions relating to, shall pay or commit changes or restrictions in, the operations of any such assets, businesses or interests which, in either case, could reasonably be expected to pay result in a Material Adverse Effect with respect to such Person whose approval Buyer or consent is being solicited materially and adversely impact the economic or business benefits to Buyer of the transactions contemplated by this Agreement; or (iii) any cash material modification or other consideration, make any accommodation or commitment or incur any liability or other obligation to such Personwaiver of the terms and conditions of this Agreement.
Appears in 1 contract
Regulatory and Other Approvals. (a) Each party shall The Company will, and will cause its Subsidiaries to, (a) take all steps necessary or desirable, and proceed diligently and in good faith and use commercially reasonable efforts to fileefforts, as soon promptly as practicable, to (i) obtain all consents, approvals or actions of, to make all filings with and to give all notices to Governmental Authorities or any other Person required of the Company or any Subsidiary to consummate the transactions contemplated hereby and by the Transaction Documents, and (ii) maintain all Contracts and Permits in full force and effect upon and after the consummation of the transactions contemplated hereby and by the Transaction Documents, (b) provide such other information and communications to such Governmental Authorities or other Persons as Parent or such Governmental Authorities or other Persons may reasonably request, and (c) cooperate with Parent as promptly as practicable after in obtaining all consents, approvals or actions of, making all filings with and giving all notices to Governmental Authorities or other Persons required of Parent or Merger Sub to consummate the date transactions contemplated hereby and by the Transaction Documents. The Company will provide prompt notification to Parent when any such consent, approval, action, filing or notice referred to in clause (a) above is obtained, taken, made or given, as applicable, and will advise Parent of this Agreementany communications (and, all noticesunless precluded by Law, reports and other documents required to be filed by provide copies of any such party communications that are in writing) with any Governmental Body with respect to the Offer, the Merger and the Authority or other Contemplated Transactions, and to submit promptly Person regarding any additional information requested by any such Governmental Body. Without limiting the generality of the foregoingtransactions contemplated by this Agreement or any of the Transaction Documents.
(b) In addition to and not in limitation of the Company’s covenants contained in Section 6.8(a), the Company will (a) take promptly all actions necessary to make the filings required of the Company or any of their respective Affiliates under the HSR Act, (b) comply at the earliest practicable date with any request for additional information received by the Company or any of their respective Affiliates from the Federal Trade Commission or the Antitrust Division of the Department of Justice pursuant to the HSR Act and (c) cooperate with Parent shall prepare and file the notification and report forms required to be filed in connection with Parent’s filing under the HSR Act within five business days following the date of this Agreement. The Company and Parent shall prepare and file any notification or other document required to be filed under any applicable foreign antitrust or competition-related Legal Requirement of the jurisdictions set forth in Part 6.2(a) of the Disclosure Schedule (the “Foreign Competition Authorities”) in connection with resolving any investigation or other inquiry concerning the Offer, the Merger and the other Contemplated Transactions promptly after the date of transactions contemplated by this Agreement. The Company and Parent shall respond as promptly as practicable to: (i) any inquiries or requests received from Agreement commenced by either the Federal Trade Commission, Commission or the Antitrust Division of the Department of Justice or the Foreign Competition Authorities for additional information or documentation; and (ii) any inquiries or requests received from any state attorney attorneys general, other foreign antitrust or competition authority or other Governmental Body in connection with antitrust or related matters. At the request of Parent, the Company shall divest, sell, dispose of, hold separate or take any other action with respect to any of the businesses, product lines or assets of the Acquired Corporations, provided, however, that any such action is conditioned upon the consummation of the Offer or the Merger.
(b) Subject to the confidentiality provisions of the Confidentiality Agreement, Parent and the Company each shall use commercially reasonable efforts to promptly supply the other with any information which may be required in order to effectuate any filings (including applications) pursuant to (and to otherwise comply with its obligations set forth in) Section ý6.2(a). Unless prohibited by Legal Requirements or any Governmental Body, and subject to the confidentiality provisions of the Confidentiality Agreement, each of Parent and the Company shall: (i) consult with the other prior to taking a position with respect to any such filing; (ii) permit the other to review and discuss in advance, and consider in good faith the views of the other in connection with, any analyses, appearances, presentations, memoranda, briefs, white papers, arguments, opinions and proposals before making or submitting any of the foregoing to any Governmental Body by or on behalf of any party hereto in connection with any Legal Proceeding related solely to this Agreement or the Contemplated Transactions (including any such Legal Proceeding relating to any antitrust, competition or fair trade Legal Requirement); (iii) coordinate with the other in preparing and exchanging such information; and (iv) promptly provide the other (and its counsel) with copies of all filings, notices, analyses, presentations, memoranda, briefs, white papers, opinions, proposals and other submissions (and a summary of any oral presentations) made or submitted by such party with or to any Governmental Body related solely to this Agreement or the Contemplated Transactions. Notwithstanding anything to the contrary in this Section 6.2, Parent and the Company may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section 6.2 as “Outside Counsel Only Material” or otherwise reasonably redact highly confidential content from the materials produced to the other.
(c) Unless prohibited by Legal Requirements or any Governmental Body, each of Parent and the Company shall notify the other promptly upon the receipt of: (i) any communication from any official of any Governmental Body in connection with any filing made pursuant to this Agreement; (ii) knowledge of the commencement or threat of commencement of any Legal Proceeding by or before any Governmental Body with respect to the Contemplated Transactions (and shall keep the other party informed as to the status of any such Legal Proceeding or threat); and (iii) any request by any official of any Governmental Body for any amendment or supplement to any filing made pursuant to this Agreement or any information required to comply with any Legal Requirements applicable to the Contemplated Transactions. Parent shall be entitled to direct any defense of the Offer, the Merger and the other Contemplated Transactions. Unless prohibited by Legal Requirements or any Governmental Body, whenever any event occurs that is required to be set forth in an amendment or supplement to any filing made pursuant to Section 6.2(a), Parent or the Company, as the case may be, shall (promptly upon learning of the occurrence of such event) inform the other of the occurrence of such event and cooperate in filing with the applicable Governmental Body such amendment or supplement.
(d) Parent and the Company shall use commercially reasonable efforts to take, or cause to be taken, all actions necessary to consummate the Offer and the Merger and make effective the other Contemplated Transactions. Without limiting the generality of the foregoing, each party to this Agreement: (i) shall make all filings (if any) and give all notices (if any) required to be made and given by such party in connection with the Offer, the Merger and the other Contemplated Transactions; (ii) shall use commercially reasonable efforts to obtain each Consent (if any) required to be obtained (pursuant to any applicable Legal Requirement or Contract, or otherwise) by such party in connection with the Offer, the Merger or any of the other Contemplated Transactions; and (iii) shall defend through litigation on the merits any claim asserted in court by the United States Department of Justice or United States Federal Trade Commission under antitrust or competition-related Legal Requirement in order to avoid entry of any decree, order or judgment (whether temporary, preliminary or permanent) that could restrain, delay, or prevent the Closing by the Outside Date. Notwithstanding anything to the contrary herein, nothing in this Agreement shall require Parent or any of its Subsidiaries to, nor shall any Acquired Corporation without the prior written consent of Parent agree or offer to: (A) effect any divestiture of, or hold separate (including by establishing a trust or otherwise), or agree to restrict its ownership or operation of, any business or assets of the Acquired Corporations, Parent or any Subsidiary of Parent, including Acquisition Sub, or to enter into any settlement or consent decree, or agree to any undertaking, with respect to any business or assets of the Acquired Corporations, Parent or any Subsidiary of Parent, including Acquisition Sub, (B) enter into, amend or agree to enter into or amend, any Contract of the Acquired Corporations, Parent or any Subsidiary of Parent, including Acquisition Sub, that imposes any material limitations on the ability of Parent or any of its Affiliates to effectively exercise full rights of the shares of Company Common Stock or (C) otherwise waive, abandon or alter any material rights or material obligations of the Acquired Corporations, Parent or any Subsidiary of Parent, including Acquisition Sub. Furthermore, notwithstanding anything to the contrary contained herein, in connection with obtaining any Consent from any third party, without the prior written consent of Parent, none of the Acquired Corporations or any of their respective Representatives, shall pay or commit to pay to such Person whose approval or consent is being solicited any cash or other consideration, make any accommodation or commitment or incur any liability or other obligation to such Person.
Appears in 1 contract
Regulatory and Other Approvals. (a) Each party shall use commercially reasonable efforts to file, as soon as practicable after the date of this Agreement, all notices, reports and other documents required to be filed by such party with any Governmental Body with respect to the Offer, the Merger and the other Contemplated Transactions, and to submit promptly any additional information requested by any such Governmental Body. Without limiting the generality of the foregoing, the Company and Parent shall prepare and file the notification and report forms required to be filed under the HSR Act within five business days following the date of this Agreement. The Company and Parent shall prepare and file any notification or other document required to be filed under any applicable foreign antitrust or competition-related Legal Requirement of the jurisdictions set forth in Part 6.2(a) of the Disclosure Schedule (the “Foreign Competition Authorities”) in connection with the Offer, the Merger and the other Contemplated Transactions promptly after the date of this Agreement. The Company and Parent shall respond as promptly as practicable to: (i) any inquiries or requests received from the Federal Trade Commission, the Department of Justice or the Foreign Competition Authorities for additional information or documentation; and (ii) any inquiries or requests received from any state attorney general, other foreign antitrust or competition authority or other Governmental Body in connection with antitrust or related matters. At the request of Parent, the Company shall divest, sell, dispose of, hold separate or take any other action with respect to any of the businesses, product lines or assets of the Acquired Corporations, provided, however, that any such action is conditioned upon the consummation of the Offer or the Merger.
(b) Subject to the confidentiality provisions of the Confidentiality Agreement, Parent and the Company each shall use commercially reasonable efforts to promptly supply the other with any information which may be required in order to effectuate any filings (including applications) pursuant to (and to otherwise comply with its obligations set forth in) Section ý6.2(a6.2(a). Unless prohibited by Legal Requirements or any Governmental Body, and subject to the confidentiality provisions of the Confidentiality Agreement, each of Parent and the Company shall: (i) consult with the other prior to taking a position with respect to any such filing; (ii) permit the other to review and discuss in advance, and consider in good faith the views of the other in connection with, any analyses, appearances, presentations, memoranda, briefs, white papers, arguments, opinions and proposals before making or submitting any of the foregoing to any Governmental Body by or on behalf of any party hereto in connection with any Legal Proceeding related solely to this Agreement or the Contemplated Transactions (including any such Legal Proceeding relating to any antitrust, competition or fair trade Legal Requirement); (iii) coordinate with the other in preparing and exchanging such information; and (iv) promptly provide the other (and its counsel) with copies of all filings, notices, analyses, presentations, memoranda, briefs, white papers, opinions, proposals and other submissions (and a summary of any oral presentations) made or submitted by such party with or to any Governmental Body related solely to this Agreement or the Contemplated Transactions. Notwithstanding anything to the contrary in this Section 6.2, Parent and the Company may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section 6.2 as “Outside Counsel Only Material” or otherwise reasonably redact highly confidential content from the materials produced to the other.
(c) Unless prohibited by Legal Requirements or any Governmental Body, each of Parent and the Company shall notify the other promptly upon the receipt of: (i) any communication from any official of any Governmental Body in connection with any filing made pursuant to this Agreement; (ii) knowledge of the commencement or threat of commencement of any Legal Proceeding by or before any Governmental Body with respect to the Contemplated Transactions (and shall keep the other party informed as to the status of any such Legal Proceeding or threat); and (iii) any request by any official of any Governmental Body for any amendment or supplement to any filing made pursuant to this Agreement or any information required to comply with any Legal Requirements applicable to the Contemplated Transactions. Parent shall be entitled to direct any defense of the Offer, the Merger and the other Contemplated Transactions. Unless prohibited by Legal Requirements or any Governmental Body, whenever any event occurs that is required to be set forth in an amendment or supplement to any filing made pursuant to Section 6.2(a), Parent or the Company, as the case may be, shall (promptly upon learning of the occurrence of such event) inform the other of the occurrence of such event and cooperate in filing with the applicable Governmental Body such amendment or supplement.
(d) Parent and the Company shall use commercially reasonable efforts to take, or cause to be taken, all actions necessary to consummate the Offer and the Merger and make effective the other Contemplated Transactions. Without limiting the generality of the foregoing, each party to this Agreement: (i) shall make all filings (if any) and give all notices (if any) required to be made and given by such party in connection with the Offer, the Merger and the other Contemplated Transactions; (ii) shall use commercially reasonable efforts to obtain each Consent (if any) required to be obtained (pursuant to any applicable Legal Requirement or Contract, or otherwise) by such party in connection with the Offer, the Merger or any of the other Contemplated Transactions; and (iii) shall defend through litigation on the merits any claim asserted in court by the United States Department of Justice or United States Federal Trade Commission under antitrust or competition-related Legal Requirement in order to avoid entry of any decree, order or judgment (whether temporary, preliminary or permanent) that could restrain, delay, or prevent the Closing by the Outside Date. Notwithstanding anything to the contrary herein, nothing in this Agreement shall require Parent or any of its Subsidiaries to, nor shall any Acquired Corporation without the prior written consent of Parent agree or offer to: (A) effect any divestiture of, or hold separate (including by establishing a trust or otherwise), or agree to restrict its ownership or operation of, any business or assets of the Acquired Corporations, Parent or any Subsidiary of Parent, including Acquisition Sub, or to enter into any settlement or consent decree, or agree to any undertaking, with respect to any business or assets of the Acquired Corporations, Parent or any Subsidiary of Parent, including Acquisition Sub, (B) enter into, amend or agree to enter into or amend, any Contract of the Acquired Corporations, Parent or any Subsidiary of Parent, including Acquisition Sub, that imposes any material limitations on the ability of Parent or any of its Affiliates to effectively exercise full rights of the shares of Company Common Stock or (C) otherwise waive, abandon or alter any material rights or material obligations of the Acquired Corporations, Parent or any Subsidiary of Parent, including Acquisition Sub. Furthermore, notwithstanding anything to the contrary contained herein, in connection with obtaining any Consent from any third party, without the prior written consent of Parent, none of the Acquired Corporations or any of their respective Representatives, shall pay or commit to pay to such Person whose approval or consent is being solicited any cash or other consideration, make any accommodation or commitment or incur any liability or other obligation to such Person.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Volterra Semiconductor Corp)
Regulatory and Other Approvals. From the Signing Date until the Closing:
(a) Each party The New Member, the Existing Member and the Company shall, and shall cause their respective Affiliates to, (i) make or cause to be made the filings required of such Party or any of its Affiliates under any Laws with respect to the transactions contemplated by this Agreement and to pay any fees due of it in connection with such filings, as promptly as is reasonably practicable, and in any event within ten (10) Business Days after the Signing Date, (ii) cooperate with the other Party and furnish all information in such Party’s possession that is necessary in connection with such other Party’s filings, (iii) use commercially reasonable efforts to file, as soon as practicable after cause the date expiration of this Agreement, all notices, reports and other documents required to be filed by such party with the notice or waiting periods under any Governmental Body Laws with respect to the Offertransactions contemplated by this Agreement as promptly as is reasonably practicable, the Merger and (iv) promptly inform the other Contemplated TransactionsParty of any communication from or to, and to submit promptly any additional information requested by proposed understanding or agreement with, any Governmental Authority in respect of such Governmental Body. Without limiting filings, (v) consult and cooperate with the generality of the foregoing, the Company and Parent shall prepare and file the notification and report forms required to be filed under the HSR Act within five business days following the date of this Agreement. The Company and Parent shall prepare and file any notification or other document required to be filed under any applicable foreign antitrust or competition-related Legal Requirement of the jurisdictions set forth in Part 6.2(a) of the Disclosure Schedule (the “Foreign Competition Authorities”) Party in connection with the Offer, the Merger and the other Contemplated Transactions promptly after the date of this Agreement. The Company and Parent shall respond as promptly as practicable to: (i) any inquiries or requests received from the Federal Trade Commission, the Department of Justice or the Foreign Competition Authorities for additional information or documentation; and (ii) any inquiries or requests received from any state attorney general, other foreign antitrust or competition authority or other Governmental Body in connection with antitrust or related matters. At the request of Parent, the Company shall divest, sell, dispose of, hold separate or take any other action with respect to any of the businesses, product lines or assets of the Acquired Corporations, provided, however, that any such action is conditioned upon the consummation of the Offer or the Merger.
(b) Subject to the confidentiality provisions of the Confidentiality Agreement, Parent and the Company each shall use commercially reasonable efforts to promptly supply the other with any information which may be required in order to effectuate any filings (including applications) pursuant to (and to otherwise comply with its obligations set forth in) Section ý6.2(a). Unless prohibited by Legal Requirements or any Governmental Body, and subject to the confidentiality provisions of the Confidentiality Agreement, each of Parent and the Company shall: (i) consult with the other prior to taking a position with respect to any such filing; (ii) permit the other to review and discuss in advance, and consider in good faith the views of the other in connection with, any analyses, appearances, presentations, memoranda, briefs, white papers, arguments, arguments and opinions and proposals before making made or submitting any of the foregoing to any Governmental Body submitted by or on behalf of any party hereto Party in connection with all meetings, actions and proceedings with Governmental Authorities relating to such filings, (vi) comply, as promptly as is reasonably practicable, with any Legal Proceeding related solely requests received by such Party or any of its Affiliates under any Laws for additional information, documents or other materials, (vii) use commercially reasonable efforts to resolve any objections as may be asserted by any Governmental Authority with respect to the transactions contemplated by this Agreement, and (viii) use commercially reasonable efforts to contest and resist any action or proceeding instituted (or threatened in writing to be instituted) by any Governmental Authority challenging the transactions contemplated by this Agreement or as violative of any Law. If a Party intends to participate in any meeting with any Governmental Authority with respect to such filings, it shall give the Contemplated Transactions other Party reasonable prior notice of, and an opportunity to participate in, such meeting.
(including b) In connection with any such Legal Proceeding relating to any antitrust, competition or fair trade Legal Requirement); (iii) coordinate with the other in preparing and exchanging such information; and (iv) promptly provide the other (and its counsel) with copies of all filings, noticesthe New Member shall cooperate in good faith with Governmental Authorities and, analysessubject to Section 6.03(c), presentations, memoranda, briefs, white papers, opinions, proposals undertake promptly any and other submissions (and a summary of any oral presentations) made or submitted all commercially reasonable action required to complete lawfully the transactions contemplated by such party with or to any Governmental Body related solely to this Agreement or the Contemplated Transactions. Notwithstanding anything to the contrary in this Section 6.2, Parent and the Company may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section 6.2 as “Outside Counsel Only Material” or otherwise reasonably redact highly confidential content from the materials produced to the otherAgreement.
(c) Unless prohibited by Legal Requirements Notwithstanding anything provided in this Agreement to the contrary, none of the Existing Member, the Company, the New Member nor any of their respective Affiliates shall have any obligation to sell, divest, dispose, license, lease, operate, conduct in a specified manner, hold separate or discontinue or restrict or limit any Governmental Bodyassets, each of Parent and businesses, product lines, licenses, operations or interests to obtain the Company shall notify the other promptly upon the receipt of: (i) any communication from any official approval of any Governmental Body in connection with any filing made pursuant to this Agreement; (ii) knowledge of the commencement or threat of commencement of any Legal Proceeding by or before any Governmental Body with respect to the Contemplated Transactions (and shall keep the other party informed as to the status of any such Legal Proceeding or threat); and (iii) any request by any official of any Governmental Body for any amendment or supplement to any filing made pursuant to this Agreement or any information required to comply with any Legal Requirements applicable to the Contemplated Transactions. Parent shall be entitled to direct any defense of the Offer, the Merger and the other Contemplated Transactions. Unless prohibited by Legal Requirements or any Governmental Body, whenever any event occurs that is required to be set forth in an amendment or supplement to any filing made pursuant to Section 6.2(a), Parent or the Company, as the case may be, shall (promptly upon learning of the occurrence of such event) inform the other of the occurrence of such event and cooperate in filing with the applicable Governmental Body such amendment or supplementAuthority.
(d) Parent and The New Member shall be responsible for the Company shall use commercially reasonable efforts to take, or cause to be taken, payment of all actions necessary to consummate the Offer and the Merger and make effective the other Contemplated Transactions. Without limiting the generality of the foregoing, each party to filing fees required by this Agreement: (i) shall make all filings (if any) and give all notices (if any) required to be made and given by such party in connection with the Offer, the Merger and the other Contemplated Transactions; (ii) shall use commercially reasonable efforts to obtain each Consent (if any) required to be obtained (pursuant to any applicable Legal Requirement or Contract, or otherwise) by such party in connection with the Offer, the Merger or any of the other Contemplated Transactions; and (iii) shall defend through litigation on the merits any claim asserted in court by the United States Department of Justice or United States Federal Trade Commission under antitrust or competition-related Legal Requirement in order to avoid entry of any decree, order or judgment (whether temporary, preliminary or permanent) that could restrain, delay, or prevent the Closing by the Outside Date. Notwithstanding anything to the contrary herein, nothing in this Agreement shall require Parent or any of its Subsidiaries to, nor shall any Acquired Corporation without the prior written consent of Parent agree or offer to: (A) effect any divestiture of, or hold separate (including by establishing a trust or otherwise), or agree to restrict its ownership or operation of, any business or assets of the Acquired Corporations, Parent or any Subsidiary of Parent, including Acquisition Sub, or to enter into any settlement or consent decree, or agree to any undertaking, with respect to any business or assets of the Acquired Corporations, Parent or any Subsidiary of Parent, including Acquisition Sub, (B) enter into, amend or agree to enter into or amend, any Contract of the Acquired Corporations, Parent or any Subsidiary of Parent, including Acquisition Sub, that imposes any material limitations on the ability of Parent or any of its Affiliates to effectively exercise full rights of the shares of Company Common Stock or (C) otherwise waive, abandon or alter any material rights or material obligations of the Acquired Corporations, Parent or any Subsidiary of Parent, including Acquisition Sub. Furthermore, notwithstanding anything to the contrary contained herein, in connection with obtaining any Consent from any third party, without the prior written consent of Parent, none of the Acquired Corporations or any of their respective Representatives, shall pay or commit to pay to such Person whose approval or consent is being solicited any cash or other consideration, make any accommodation or commitment or incur any liability or other obligation to such PersonSection 6.03.
Appears in 1 contract
Samples: Contribution Agreement (Energy Transfer Partners, L.P.)
Regulatory and Other Approvals. From the date of this Agreement until Closing (the “Interim Period”):
(a) Each party shall of CEH and GSCAC agrees to (and each agrees to cause its applicable subsidiaries to) use commercially reasonable efforts to file, as soon as practicable after the date of this Agreement, all notices, reports and other documents required to be filed by such party with any Governmental Body with respect to the Offer, the Merger and the other Contemplated Transactions, and to submit promptly any additional information requested by any such Governmental Body. Without limiting the generality of the foregoing, the Company and Parent shall prepare and file the notification and report forms required to be filed under the HSR Act within five business days following the date of this Agreement. The Company and Parent shall prepare and file any notification or other document required to be filed under any applicable foreign antitrust or competition-related Legal Requirement of the jurisdictions set forth in Part 6.2(a) of the Disclosure Schedule (the “Foreign Competition Authorities”) in connection with the Offer, the Merger and the other Contemplated Transactions promptly after the date of this Agreement. The Company and Parent shall respond obtain as promptly as practicable to: (i) any inquiries or requests received from the Federal Trade Commissionall CEH Approvals, the Department of Justice or the Foreign Competition Authorities for additional information or documentation; Company Consents and (ii) any inquiries or requests received from any state attorney generalGSCAC Approvals applicable to such Person, and all other foreign antitrust or competition authority or other Governmental Body in connection with antitrust or related matters. At the request of Parent, the Company shall divest, sell, dispose of, hold separate or take any other action with respect to material consents and approvals that any of CEH, GSCAC or their respective Affiliates are required to obtain in order for such Person to consummate the businesses, product lines or assets of the Acquired Corporations, provided, however, that any such action is conditioned upon the consummation of the Offer or the MergerTransactions.
(b) Subject Each of CEH and GSCAC agrees to, and agrees to cause its applicable subsidiaries to, (i) make or cause to be made the filings required of such Person or any of its applicable Affiliates under any Laws applicable to it with respect to the confidentiality provisions Transactions and to pay any fees due of it in connection with such filings, as promptly as is reasonably practicable, (ii) cooperate with CEH and GSCAC (as applicable) and furnish the Confidentiality Agreementinformation in such Person’s possession that is necessary in connection with CEH’s or GSCAC’s (or their applicable subsidiary’s) filings, Parent and the Company each shall (iii) use commercially reasonable efforts to cause the expiration of the notice or waiting periods under any Laws applicable to it with respect to the consummation of the Transactions as promptly supply as is reasonably practicable, (iv) promptly inform the other with of any information which may be required in order to effectuate communication from or to, and any filings (including applications) pursuant to (and to otherwise comply with its obligations set forth in) Section ý6.2(a). Unless prohibited by Legal Requirements proposed understanding or agreement with, any Governmental BodyAuthority in respect of such filings, (v) reasonably consult and subject to the confidentiality provisions of the Confidentiality Agreement, each of Parent and the Company shall: (i) consult cooperate with the other prior to taking a position with respect to any such filing; (ii) permit the other to review and discuss in advance, and consider in good faith the views of the other Person in connection with, with any analyses, appearances, presentations, memoranda, briefs, white papers, arguments, arguments and opinions and proposals before making made or submitting any of the foregoing to any Governmental Body submitted by or on behalf of any party hereto Person in connection with all meetings, actions and proceedings with Governmental Authorities relating to such filings, (vi)comply, as promptly as is reasonably practicable, with any Legal Proceeding related solely requests received by such Person or any of its Affiliates under any Laws for additional information, documents or other materials with respect to such filings, (vii) use commercially reasonable efforts to resolve any objections as may be asserted by any Governmental Authority with respect to the transactions contemplated by this Agreement and (viii) use commercially reasonable efforts to contest and resist any action or proceeding instituted (or threatened in writing to be instituted) by any Governmental Authority challenging the Contemplated Transactions transactions contemplated by this Agreement as violative of any Law. If CEH or GSCAC (including or any of their applicable Affiliates) intends to participate in any meeting with any Governmental Authority with respect to such Legal Proceeding relating filings and if permitted by, or acceptable to, the applicable Governmental Authorities, it agrees to any antitrust, competition or fair trade Legal Requirement); (iii) coordinate with give the other in preparing Person reasonable prior notice of, and exchanging an opportunity to participate in, such information; and (iv) promptly provide the other (and its counsel) with copies of all filings, notices, analyses, presentations, memoranda, briefs, white papers, opinions, proposals and other submissions (and a summary of any oral presentations) made or submitted by such party with or to any Governmental Body related solely to this Agreement or the Contemplated Transactions. Notwithstanding anything to the contrary in this Section 6.2, Parent and the Company may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section 6.2 as “Outside Counsel Only Material” or otherwise reasonably redact highly confidential content from the materials produced to the othermeeting.
(c) Unless prohibited by Legal Requirements or any Governmental Body, CEH and GSCAC each of Parent and the Company shall notify agrees to provide prompt notification to the other promptly upon the receipt of: (i) any communication from any official of any Governmental Body in connection with any filing made pursuant to this Agreement; (ii) knowledge of the commencement or threat of commencement of any Legal Proceeding by or before any Governmental Body with respect to the Contemplated Transactions (and shall keep the other party informed as to the status of when it becomes aware that any such Legal Proceeding consent or threat); and (iii) any request by any official of any Governmental Body for any amendment approval referred to in this Section 6.01 is obtained, taken, made, given or supplement to any filing made pursuant to this Agreement or any information required to comply with any Legal Requirements applicable to the Contemplated Transactions. Parent shall be entitled to direct any defense of the Offer, the Merger and the other Contemplated Transactions. Unless prohibited by Legal Requirements or any Governmental Body, whenever any event occurs that is required to be set forth in an amendment or supplement to any filing made pursuant to Section 6.2(a), Parent or the Companydenied, as the case may be, shall (promptly upon learning of the occurrence of such event) inform the other of the occurrence of such event and cooperate in filing with the applicable Governmental Body such amendment or supplementapplicable.
(d) Parent Upon the terms and subject to the Company shall conditions set forth in this Agreement, each of the Parties agrees to use commercially reasonable efforts to take, or cause to be taken, all actions actions, and to do, or cause to be done, and to assist and cooperate with the other Parties in doing, all things necessary, proper or advisable to consummate and make effective, in the most expeditious manner practicable, the Transactions and to execute and deliver any additional instruments or agreements reasonably necessary to consummate the Offer Transactions and to fully carry out the Merger and make effective purposes of this Agreement and/or the other Contemplated Transactions. Without limiting the generality Transaction Documents.
(e) In furtherance of the foregoing, each party to this Agreement: foregoing covenants:
(i) shall make Each of CEH and GSCAC agrees to prepare, as soon as is practical following the execution of this Agreement, all necessary filings (if any) and give all notices (if any) required applicable to be made and given by such party it in connection with the Offertransactions contemplated by this Agreement that may be required by FERC or under the HSR Act or any other federal, state or local Laws. Each of GSCAC and CEH agrees to submit, or cause its applicable subsidiaries to submit, such filings applicable to it or its subsidiaries as soon as practicable, but in no event later than 60 days after the Merger execution hereof for filings with FERC for authorization of the transactions contemplated by this Agreement pursuant to Section 203 of the Federal Power Act, and 10 Business Days after the execution hereof for filings under the HSR Act. The Persons making such filings shall request expedited treatment of any such filings, shall promptly furnish each other Contemplated Transactions; Party with copies of any notices, correspondence or other written communication received by it or its Affiliates from the relevant Governmental Authority, shall promptly make any appropriate or necessary subsequent or supplemental filings required of it or its Affiliates and shall cooperate in the preparation of such filings as is reasonably necessary and appropriate.
(ii) GSCAC and CEH each agrees that it shall use commercially reasonable efforts not, and each agrees to obtain each Consent (if any) required cause its subsidiaries not to, take any action that could reasonably be expected to be obtained (pursuant to adversely affect the approval of any applicable Legal Requirement or Contract, or otherwise) by such party in connection with the Offer, the Merger or Governmental Authority of any of the other Contemplated Transactions; and filings referred to in this Section 6.01.
(iii) shall defend through litigation on the merits any claim asserted in court by the United States Department of Justice or United States Federal Trade Commission under antitrust or competition-related Legal Requirement in order to avoid entry of any decree, order or judgment (whether temporary, preliminary or permanent) that could restrain, delay, or prevent the Closing by the Outside Date. Notwithstanding anything to the contrary herein, nothing in this Agreement shall require Parent or any of its Subsidiaries to, nor shall any Acquired Corporation without the prior written consent of Parent agree or offer to: (A) effect any divestiture of, or hold separate (including by establishing a trust or otherwise), or agree to restrict its ownership or operation of, any business or assets of the Acquired Corporations, Parent or any Subsidiary of Parent, including Acquisition Sub, or to enter into any settlement or consent decree, or agree to any undertaking, with respect to any business or assets of the Acquired Corporations, Parent or any Subsidiary of Parent, including Acquisition Sub, (B) enter into, amend or agree to enter into or amend, any Contract of the Acquired Corporations, Parent or any Subsidiary of Parent, including Acquisition Sub, that imposes any material limitations on the ability of Parent or any of its Affiliates to effectively exercise full rights of the shares of Company Common Stock or (C) otherwise waive, abandon or alter any material rights or material obligations of the Acquired Corporations, Parent or any Subsidiary of Parent, including Acquisition Sub. Furthermore, notwithstanding anything to the contrary contained herein, in connection with obtaining any Consent from any third party, without the prior written consent of Parentcontrary, none of the Acquired Corporations Parties or any of their respective RepresentativesAffiliates will be required to (i) enter into any settlement, shall pay undertaking, consent decree, stipulation or commit agreement with any Governmental Authority in connection with the Transactions, (ii) divest or hold separate any business or Assets in connection with the consummation of the Transaction, or (iii) accept any condition that would reasonably be expected to pay to such Person whose approval materially adversely affect the Party or consent is being solicited any cash of its respective Affiliates or other consideration, make any accommodation or commitment or incur any liability or other obligation to such Personthe Business.
Appears in 1 contract
Regulatory and Other Approvals. (a) Each party shall use commercially reasonable efforts to file, as soon as practicable after the date of this Agreement, all notices, reports and other documents required to be filed by such party with any Governmental Body with respect to the Offer, the Merger and the other Contemplated Transactions, and to submit promptly any additional information requested by any such Governmental Body. Without limiting the generality of the foregoing, the Company and Parent shall prepare and file the notification and report forms required to be filed under the HSR Act within five business days following the date of this Agreement. The Company and Parent shall prepare and file any notification or other document required to be filed under any applicable foreign antitrust or competition-related Legal Requirement of the jurisdictions set forth in Part 6.2(a) of the Disclosure Schedule (the “Foreign Competition Authorities”) in connection with the Offer, the Merger and the other Contemplated Transactions promptly after the date of this Agreement. The Company and Parent shall respond as promptly as practicable to: (i) any inquiries or requests received from the Federal Trade Commission, the Department of Justice or the Foreign Competition Authorities for additional information or documentation; and (ii) any inquiries or requests received from any state attorney general, other foreign antitrust or competition authority or other Governmental Body in connection with antitrust or related matters. At the request of Parent, the Company shall divest, sell, dispose of, hold separate or take any other action with respect to any of the businesses, product lines or assets of the Acquired Corporations, provided, however, that any such action is conditioned upon the consummation of the Offer or the Merger.
(b) Subject to the confidentiality provisions of the Confidentiality Agreement, Parent and the Company each shall use commercially reasonable efforts to promptly supply the other with any information which may be required in order to effectuate any filings (including applications) pursuant to (and to otherwise comply with its obligations set forth in) Section ý6.2(a). Unless prohibited by Legal Requirements or any Governmental Body, and subject to the confidentiality provisions of the Confidentiality Agreement, each of Parent and the Company shall: (i) consult with the other prior to taking a position with respect to any such filing; (ii) permit the other to review and discuss in advance, and consider in good faith the views of the other in connection with, any analyses, appearances, presentations, memoranda, briefs, white papers, arguments, opinions and proposals before making or submitting any of the foregoing to any Governmental Body by or on behalf of any party hereto in connection with any Legal Proceeding related solely to this Agreement or the Contemplated Transactions (including any such Legal Proceeding relating to any antitrust, competition or fair trade Legal Requirement); (iii) coordinate with the other in preparing and exchanging such information; and (iv) promptly provide the other (and its counsel) with copies of all filings, notices, analyses, presentations, memoranda, briefs, white papers, opinions, proposals and other submissions (and a summary of any oral presentations) made or submitted by such party with or to any Governmental Body related solely to this Agreement or the Contemplated Transactions. Notwithstanding anything to the contrary in this Section 6.2, Parent and the Company may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section 6.2 as “Outside Counsel Only Material” or otherwise reasonably redact highly confidential content from the materials produced to the other.
(c) Unless prohibited by Legal Requirements or any Governmental Body, each of Parent and the Company shall notify the other promptly upon the receipt of: (i) any communication from any official of any Governmental Body in connection with any filing made pursuant to this Agreement; (ii) knowledge of the commencement or threat of commencement of any Legal Proceeding by or before any Governmental Body with respect to the Contemplated Transactions (and shall keep the other party informed as to the status of any such Legal Proceeding or threat); and (iii) any request by any official of any Governmental Body for any amendment or supplement to any filing made pursuant to this Agreement or any information required to comply with any Legal Requirements applicable to the Contemplated Transactions. Parent shall be entitled to direct any defense of the Offer, the Merger and the other Contemplated Transactions. Unless prohibited by Legal Requirements or any Governmental Body, whenever any event occurs that is required to be set forth in an amendment or supplement to any filing made pursuant to Section 6.2(a), Parent or the Company, as the case may be, shall (promptly upon learning of the occurrence of such event) inform the other of the occurrence of such event and cooperate in filing with the applicable Governmental Body such amendment or supplement.
(d) Parent and the Company Party shall use commercially reasonable efforts to take, or cause to be taken, all actions necessary actions, and to do, or cause to be done, all things necessary, proper or advisable under any applicable Laws to consummate the Offer and the Merger and make effective the other Contemplated Transactions. Without limiting the generality of the foregoing.
(b) Each Party shall, each party to this Agreement: and shall cause its respective Affiliates to, (i) shall make all filings promptly inform the other Parties of, and supply to the other Parties, any communication (if anyor other correspondence or memoranda) from or to, and give all notices (if any) required to be made and given by such party any proposed understanding or agreement with, any Governmental Entity in connection with this Agreement or the Offer, the Merger and the other Contemplated Transactions; (ii) shall consult and cooperate in good faith with the other Parties in connection with any filings, notifications, submissions, analyses, appearances, presentations, memoranda, briefs, arguments and opinions made or submitted by or on behalf of any Party in connection with all meetings, actions, discussions, and Proceedings with Governmental Authorities relating to this Agreement or the Transactions, including, subject to applicable Law, permitting the other Parties to review in advance, and considering in good faith the views of the other Party with respect to, any proposed written communication to any Governmental Entity and to promptly provide the other Parties with copies of any communication to any Governmental Entity; (iii) use commercially reasonable efforts to obtain each Consent comply, as promptly as reasonably practicable, with any requests received by a Party or any of its Affiliates under applicable Law for additional information, documents or other materials; and (if anyiv) required give the other Parties reasonable advance notice of its or its Subsidiaries’ intention to be obtained (pursuant participate in any meeting or telephone or other discussion with any Governmental Entity with respect to the Transactions or any applicable Legal Requirement filings, investigations or Contract, or otherwise) by such party inquiries made in connection with the OfferTransactions, the Merger and an opportunity to participate in such meeting or any of the other Contemplated Transactions; and discussion.
(iiic) shall defend through litigation on the merits any claim asserted in court by the United States Department of Justice or United States Federal Trade Commission under antitrust or competition-related Legal Requirement in order to avoid entry of any decree, order or judgment (whether temporary, preliminary or permanent) that could restrain, delay, or prevent the Closing by the Outside Date. Notwithstanding anything to the contrary herein, nothing in this Agreement Agreement, no Party shall be required to, and no Party shall, (i) take or agree to take any action with respect to, or that would require Parent or purport to require any action by, any Party (including any action that limits, or seeks to limit, the freedom of action of, or ownership or control with respect to, any of the businesses, assets, properties or services of any Party or any of its Subsidiaries toAffiliates), nor shall (ii) proffer a consent and/or agree to an order, stipulation or other agreement providing for the sale or other disposition, of the holding separate, of any Acquired Corporation without the prior written consent assets, categories of Parent agree or offer to: (A) effect any divestiture ofassets, or hold separate (including by establishing a trust or otherwise), or agree to restrict its ownership or operation of, any lines of business or assets of the Acquired Corporations, Parent or any Subsidiary of Parent, including Acquisition Sub, or to enter into any settlement or consent decree, or agree to any undertaking, with respect to any business or assets of the Acquired Corporations, Parent or any Subsidiary of Parent, including Acquisition Sub, (B) enter into, amend or agree to enter into or amend, any Contract of the Acquired Corporations, Parent or any Subsidiary of Parent, including Acquisition Sub, that imposes any material limitations on the ability of Parent Buyer or any of its Affiliates to effectively exercise full rights or in respect of its or their respective business, or (iii) institute or challenge any Proceeding initiated by a Governmental Entity in respect of the shares of Company Common Stock or (C) otherwise waive, abandon or alter any material rights or material obligations of the Acquired Corporations, Parent or any Subsidiary of Parent, including Acquisition Sub. Furthermore, notwithstanding anything to the contrary contained herein, in connection with obtaining any Consent from any third party, without the prior written consent of Parent, none of the Acquired Corporations or any of their respective Representatives, shall pay or commit to pay to such Person whose approval or consent is being solicited any cash or other consideration, make any accommodation or commitment or incur any liability or other obligation to such PersonTransactions.
Appears in 1 contract
Samples: Contribution Agreement (Kayne Anderson Acquisition Corp)
Regulatory and Other Approvals. During the Interim Period:
(a) Each party Party shall use commercially reasonable efforts to file, as soon as practicable after the date of this Agreement, all notices, reports and other documents required to be filed by such party with any Governmental Body with respect to the Offer, the Merger and the other Contemplated Transactions, and to submit promptly any additional information requested by any such Governmental Body. Without limiting the generality of the foregoing, the Company and Parent shall prepare and file the notification and report forms required to be filed under the HSR Act within five business days following the date of this Agreement. The Company and Parent shall prepare and file any notification or other document required to be filed under any applicable foreign antitrust or competition-related Legal Requirement of the jurisdictions set forth in Part 6.2(a) of the Disclosure Schedule (the “Foreign Competition Authorities”) in connection with the Offer, the Merger and the other Contemplated Transactions promptly after the date of this Agreement. The Company and Parent shall respond obtain as promptly as practicable to: (i) any inquiries all material consents and approvals that either Party or requests received from its respective Affiliates are required to obtain in order to consummate the Federal Trade Commissiontransactions contemplated hereby; provided that for purposes of clarification, and notwithstanding anything to the contrary in this Agreement, the Department of Justice or the Foreign Competition Authorities for additional information or documentation; and (ii) any inquiries or requests received from any state attorney general, other foreign antitrust or competition authority or other Governmental Body in connection with antitrust or related matters. At the request of Parent, the Company shall divest, sell, dispose of, hold separate or take any other action with respect to any obtaining of the businessesconsents and approvals will not be a condition to the Closing except to the extent set forth in Articles VIII or IX, product lines or assets of the Acquired Corporations, provided, however, that any such action is conditioned upon the consummation of the Offer or the Mergeras applicable.
(b) Subject to the confidentiality provisions of the Confidentiality Agreement, Parent and the Company each Each Party shall use commercially reasonable efforts to promptly supply the other with any information which may be required in order to effectuate any filings (including applications) pursuant to (and to otherwise comply with its obligations set forth in) Section ý6.2(a). Unless prohibited by Legal Requirements or any Governmental Body, and subject to the confidentiality provisions of the Confidentiality Agreement, each of Parent and the Company shall: (i) consult with make or cause to be made the other prior filings required of the Person or any of its applicable Affiliates under any Laws applicable to taking a position it with respect to the transactions contemplated by this Agreement and to pay any such filingfees due of it in connection with the filings, as promptly as is reasonably practicable, provided that for purposes of clarification, and notwithstanding anything to the contrary in this Agreement, the filings and payments will not be conditions to the Closing except to the extent set forth in Articles VIII and IX; (ii) permit cooperate with the other Party and furnish the information that is necessary in connection with the other Party’s filings; (iii) use reasonable efforts to review and discuss in advancecause the expiration of the notice or waiting periods under any Laws applicable to it with respect to the consummation of the transactions contemplated by this Agreement as promptly as is reasonably practicable; (iv) promptly inform the other Party of any communication from or to, and consider any proposed understanding or agreement with, any Governmental Authority in good faith the views respect of the filings; (v) reasonably consult and cooperate with the other Parties in connection with, with any analyses, appearances, presentations, memoranda, briefs, white papers, arguments, and opinions and proposals before making made or submitting any of the foregoing to any Governmental Body submitted by or on behalf of any party hereto a Party in connection with any Legal Proceeding related solely to this Agreement all meetings, actions or the Contemplated Transactions (including any such Legal Proceeding other Proceedings with Governmental Authorities relating to any antitrust, competition or fair trade Legal Requirement)the filings; (iiivi) coordinate comply, as promptly as is reasonably practicable, with any requests received by a Party under any Laws for additional information, documents or other materials with respect to the other in preparing and exchanging such informationfilings; (vii) use reasonable efforts to resolve any objections as may be asserted by any Governmental Authority with respect to the transactions contemplated by this Agreement; and (ivviii) promptly provide use reasonable efforts to contest and resist any action or other Proceeding instituted (or threatened in writing to be instituted) by any Governmental Authority challenging the transactions contemplated by this Agreement as violative of any Law. If a Party (or any of its applicable Affiliates) intends to participate in any meeting with any Governmental Authority with respect to the filings and if permitted by, or acceptable to, the applicable Governmental Authority, it shall exercise reasonable efforts to give the other Party reasonable prior notice of, and an opportunity to participate in, the meeting.
(c) Each Party shall provide prompt notification to the other Parties when it becomes aware that any such consent or approval referred to in this Section 7.1 is obtained, taken, made, given, or denied, as applicable.
(d) In furtherance of the foregoing covenants, each Party shall not, and each Party shall cause its counsel) with copies of all filingsrespective Affiliates not to, notices, analyses, presentations, memoranda, briefs, white papers, opinions, proposals and other submissions (and a summary take any action that could reasonably be expected to adversely affect the approval of any oral presentationsGovernmental Authority of any of the filings referred to in this Section 7.1.
(e) made Each of the Parties shall prepare (or submitted exercise its reasonable efforts to cause its Affiliates to prepare), as soon as is practicable, all necessary filings with Governmental Authorities applicable to it in connection with the transactions contemplated by such party with or to any Governmental Body related solely to this Agreement or the Contemplated Transactions. Notwithstanding Agreement; provided that, for purposes of clarification, and notwithstanding anything to the contrary in this Section 6.2Agreement, Parent and the Company may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided filings will not be conditions to the Closing except to the extent set forth in Articles VIII and IX. Each of the Parties shall submit the filings applicable to it as soon as practicable. Each of the Parties shall promptly furnish the other under this Section 6.2 as “Outside Counsel Only Material” Party with copies of any notices, correspondence or otherwise reasonably redact highly confidential content other written communication received by it from the materials produced to relevant Governmental Authority, shall promptly make any appropriate or necessary subsequent or supplemental filings required of it, and shall cooperate in the otherpreparation of the filings as is reasonably necessary and appropriate.
(cf) Unless prohibited by Legal Requirements or If any Governmental Body, each of Parent and the Company shall notify the other promptly upon the receipt of: (i) any communication from any official of any Governmental Body in connection with any filing made pursuant to this Agreement; (ii) knowledge of the commencement or threat of commencement of any Legal Proceeding by or before any Governmental Body with respect Licenses will expire prior to the Contemplated Transactions (Closing, Seller shall renew such Licenses timely and shall keep the other party informed as to the status of any such Legal Proceeding or threat); and (iii) any request by any official of any Governmental Body for any amendment or supplement to any filing made pursuant to this Agreement or any information required to comply with any Legal Requirements applicable to the Contemplated Transactions. Parent shall be entitled to direct any defense of the Offer, the Merger and the other Contemplated Transactions. Unless prohibited by Legal Requirements or any Governmental Body, whenever any event occurs that is required to be set forth in an amendment or supplement to any filing made pursuant to Section 6.2(a), Parent or the Company, as the case may be, shall (promptly upon learning of the occurrence of such event) inform the other of the occurrence of such event and cooperate in filing with the applicable Governmental Body such amendment or supplementat Seller’s sole expense.
(dg) Parent and the Company shall use commercially reasonable efforts to take, or cause to be taken, all actions necessary to consummate the Offer and the Merger and make effective the other Contemplated Transactions. Without limiting the generality of Notwithstanding the foregoing, each party to the Parties shall file the Change of Ownership applications with Aspen, Glenwood Springs, and the MED on or before the date that is 30 days following the date of this Agreement: (i) shall make all filings (if any) and give all notices (if any) required to be made and given by such party in connection with the Offer, the Merger and the other Contemplated Transactions; (ii) shall use commercially reasonable efforts to obtain each Consent (if any) required to be obtained (pursuant to any applicable Legal Requirement or Contract, or otherwise) by such party in connection with the Offer, the Merger or any of the other Contemplated Transactions; and (iii) shall defend through litigation on the merits any claim asserted in court by the United States Department of Justice or United States Federal Trade Commission under antitrust or competition-related Legal Requirement in order to avoid entry of any decree, order or judgment (whether temporary, preliminary or permanent) that could restrain, delay, or prevent the Closing by the Outside Date. Notwithstanding anything to the contrary herein, nothing in this Agreement shall require Parent or any of its Subsidiaries to, nor shall any Acquired Corporation without the prior written consent of Parent agree or offer to: (A) effect any divestiture of, or hold separate (including by establishing a trust or otherwise), or agree to restrict its ownership or operation of, any business or assets of the Acquired Corporations, Parent or any Subsidiary of Parent, including Acquisition Sub, or to enter into any settlement or consent decree, or agree to any undertaking, with respect to any business or assets of the Acquired Corporations, Parent or any Subsidiary of Parent, including Acquisition Sub, (B) enter into, amend or agree to enter into or amend, any Contract of the Acquired Corporations, Parent or any Subsidiary of Parent, including Acquisition Sub, that imposes any material limitations on the ability of Parent or any of its Affiliates to effectively exercise full rights of the shares of Company Common Stock or (C) otherwise waive, abandon or alter any material rights or material obligations of the Acquired Corporations, Parent or any Subsidiary of Parent, including Acquisition Sub. Furthermore, notwithstanding anything to the contrary contained herein, in connection with obtaining any Consent from any third party, without the prior written consent of Parent, none of the Acquired Corporations or any of their respective Representatives, shall pay or commit to pay to such Person whose approval or consent is being solicited any cash or other consideration, make any accommodation or commitment or incur any liability or other obligation to such Person.
Appears in 1 contract
Regulatory and Other Approvals. (a) Each party shall use commercially reasonable efforts to file, as soon as practicable after the date of this Agreement, all notices, reports and other documents required to be filed by such party with any Governmental Body with respect to the Offer, the Merger and the other Contemplated Transactions, and to submit promptly any additional information requested by any such Governmental Body. Without limiting the generality of the foregoing, the Company and Parent shall prepare and file the notification and report forms required to be filed under the HSR Act within five business days following the date of this Agreement. The Company and Parent shall prepare and file any notification or other document required to be filed under any applicable foreign antitrust or competition-related Legal Requirement of the jurisdictions set forth in Part 6.2(a) of the Disclosure Schedule (the “Foreign Competition Authorities”) in connection with the Offer, the Merger and the other Contemplated Transactions promptly after the date of this Agreement. The Company and Parent shall respond as promptly as practicable to: (i) any inquiries or requests received from the Federal Trade Commission, the Department of Justice or the Foreign Competition Authorities for additional information or documentation; and (ii) any inquiries or requests received from any state attorney general, other foreign antitrust or competition authority or other Governmental Body in connection with antitrust or related matters. At the request of Parent, the Company shall divest, sell, dispose of, hold separate or take any other action with respect to any of the businesses, product lines or assets of the Acquired Corporations, provided, however, that any such action is conditioned upon the consummation of the Offer or the Merger.
(b) Subject to the confidentiality provisions of the Confidentiality Agreement, Parent and the Company each shall use commercially reasonable efforts to promptly supply the other with any information which may be required in order to effectuate any filings (including applications) pursuant to (and to otherwise comply with its obligations set forth in) Section ý6.2(a). Unless prohibited by Legal Requirements or any Governmental Body, and subject to the confidentiality provisions of the Confidentiality Agreement, each of Parent and the Company shall: (i) consult with the other prior to taking a position with respect to any such filing; (ii) permit the other to review and discuss in advance, and consider in good faith the views of the other in connection with, any analyses, appearances, presentations, memoranda, briefs, white papers, arguments, opinions and proposals before making or submitting any of the foregoing to any Governmental Body by or on behalf of any party hereto in connection with any Legal Proceeding related solely to this Agreement or the Contemplated Transactions (including any such Legal Proceeding relating to any antitrust, competition or fair trade Legal Requirement); (iii) coordinate with the other in preparing and exchanging such information; and (iv) promptly provide the other (and its counsel) with copies of all filings, notices, analyses, presentations, memoranda, briefs, white papers, opinions, proposals and other submissions (and a summary of any oral presentations) made or submitted by such party with or to any Governmental Body related solely to this Agreement or the Contemplated Transactions. Notwithstanding anything to the contrary in this Section 6.2, Parent and the Company may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section 6.2 as “Outside Counsel Only Material” or otherwise reasonably redact highly confidential content from the materials produced to the other.
(c) Unless prohibited by Legal Requirements or any Governmental Body, each of Parent and the Company shall notify the other promptly upon the receipt of: (i) any communication from any official of any Governmental Body in connection with any filing made pursuant to this Agreement; (ii) knowledge of the commencement or threat of commencement of any Legal Proceeding by or before any Governmental Body with respect to the Contemplated Transactions (and shall keep the other party informed as to the status of any such Legal Proceeding or threat); and (iii) any request by any official of any Governmental Body for any amendment or supplement to any filing made pursuant to this Agreement or any information required to comply with any Legal Requirements applicable to the Contemplated Transactions. Parent shall be entitled to direct any defense of the Offer, the Merger and the other Contemplated Transactions. Unless prohibited by Legal Requirements or any Governmental Body, whenever any event occurs that is required to be set forth in an amendment or supplement to any filing made pursuant to Section 6.2(a), Parent or the Company, as the case may be, shall (promptly upon learning of the occurrence of such event) inform the other of the occurrence of such event and cooperate in filing with the applicable Governmental Body such amendment or supplement.
(d) Parent and the Company Party shall use commercially reasonable efforts to take, or cause to be taken, all actions necessary actions, and to do, or cause to be done, all things necessary, proper or advisable under any applicable Laws to consummate the Offer and the Merger and make effective the other Contemplated Transactions. Without limiting the generality of the foregoing, each party to this Agreement: including (i) shall make all filings filing any notification and report forms required for the consummation of the Transactions under the HSR Act within fifteen (if any15) Business Days after the Execution Date; and give all notices (if any) required to be made and given by such party in connection with the Offer, the Merger and the other Contemplated Transactions; (ii) shall use using commercially reasonable efforts to obtain each Consent (if any) required to be obtained (pursuant to cause any applicable Legal Requirement or Contract, or otherwise) by such party in connection waiting period under the HSR Act with the Offer, the Merger or any of the other Contemplated Transactions; and (iii) shall defend through litigation on the merits any claim asserted in court by the United States Department of Justice or United States Federal Trade Commission under antitrust or competition-related Legal Requirement in order to avoid entry of any decree, order or judgment (whether temporary, preliminary or permanent) that could restrain, delay, or prevent the Closing by the Outside Date. Notwithstanding anything respect to the contrary herein, nothing in this Agreement Transactions to expire or terminate at the earliest time that is reasonably practicable and shall require Parent or request “early termination” with respect to the waiting period under the HSR Act. Buyer shall not agree to extend any of its Subsidiaries to, nor shall any Acquired Corporation waiting period under the HSR Act without the prior written consent of Parent agree or offer the Contributor. Buyer shall pay any HSR Act filing fee as provided by statute. Otherwise, each Party shall each pay its own preparation costs and expenses.
(b) Each Party shall, and shall cause its respective Subsidiaries to: , (Ai) effect any divestiture promptly inform the other Parties of, or hold separate (including by establishing a trust or otherwise), or agree and supply to restrict its ownership or operation ofthe other Parties, any business communication (or assets other correspondence or memoranda) from or to, and any proposed understanding or agreement with, any Governmental Authority in connection with this Agreement or the Transactions; (ii) consult and cooperate in good faith with the other Parties in connection with any filings, notifications, submissions, analyses, appearances, presentations, memoranda, briefs, arguments and opinions made or submitted by or on behalf of any Party in connection with all meetings, actions, discussions and Proceedings with Governmental Authorities relating to this Agreement or the Transactions, including, subject to applicable Law, permitting the other Parties to review in advance, and considering in good faith the views of the Acquired Corporationsother Party with respect to, Parent or any Subsidiary of Parent, including Acquisition Sub, or to enter into any settlement or consent decree, or agree proposed written communication to any undertakingGovernmental Authority and to promptly provide the other Parties with copies of any communication to any Governmental Authority; (iii) use commercially reasonable efforts to comply, as promptly as reasonably practicable, with respect to any business or assets of the Acquired Corporations, Parent or any Subsidiary of Parent, including Acquisition Sub, (B) enter into, amend or agree to enter into or amend, any Contract of the Acquired Corporations, Parent or any Subsidiary of Parent, including Acquisition Sub, that imposes any material limitations on the ability of Parent requests received by a Party or any of its Affiliates Subsidiaries under the HSR Act and any other applicable Law for additional information, documents or other materials; (iv) give the other Parties reasonable advance notice of its or its Subsidiaries’ intention to effectively exercise full rights of participate in any meeting or telephone or other discussion with any Governmental Authority with respect to the shares of Company Common Stock or (C) otherwise waive, abandon or alter any material rights or material obligations of the Acquired Corporations, Parent Transactions or any Subsidiary of Parentfilings, including Acquisition Sub. Furthermore, notwithstanding anything to the contrary contained herein, investigations or inquiries made in connection with obtaining the Transactions, and an opportunity to participate in such meeting or discussion; and (v) contest and resist any Consent from Proceeding instituted (or threatened in writing to be instituted) by any third partyGovernmental Authority challenging the Transactions as being in violation of any applicable Law.
(c) Buyer shall take any and all steps and make any and all undertakings necessary to avoid or eliminate each and every impediment under the HSR Act or any other antitrust, without competition, or trade regulation Law that may be asserted by any Governmental Authority with respect to the prior written Transactions so as to enable the Closing to occur as soon as reasonably practicable (and in any event, no later than the Outside Date), including proposing, negotiating, committing to, and effecting by consent decree, hold separate Order, or otherwise, the sale, divestiture or disposition of Parentsuch assets or businesses of Buyer (or its Subsidiaries) or of Alta Mesa (or its Subsidiaries), none or otherwise taking or committing to take actions that limit Buyer’s or its Subsidiaries’ or Alta Mesa’s or its Subsidiaries’ freedom of action with respect to, or their ability to retain, any of the Acquired Corporations businesses, product lines or Assets of Buyer (or its Subsidiaries) or Alta Mesa (or its Subsidiaries), as may be required in order to avoid the entry of, or to effect the dissolution of, any of their respective Representativesinjunction, shall pay or commit to pay to such Person whose approval or consent is being solicited any cash temporary restraining Order, or other considerationorder in any Proceeding, make any accommodation which would otherwise have the effect of preventing or commitment or incur any liability or other obligation to such Persondelaying the Closing.
Appears in 1 contract
Samples: Contribution Agreement (Silver Run Acquisition Corp II)
Regulatory and Other Approvals. From the date of this Agreement until Closing (the “Interim Period”):
(a) Each party The Parties shall (and shall cause their respective Affiliates to) use commercially reasonable efforts to file, as soon as practicable after the date of this Agreement, all notices, reports and other documents required to be filed by such party with any Governmental Body with respect to the Offer, the Merger and the other Contemplated Transactions, and to submit promptly any additional information requested by any such Governmental Body. Without limiting the generality of the foregoing, the Company and Parent shall prepare and file the notification and report forms required to be filed under the HSR Act within five business days following the date of this Agreement. The Company and Parent shall prepare and file any notification or other document required to be filed under any applicable foreign antitrust or competition-related Legal Requirement of the jurisdictions set forth in Part 6.2(a) of the Disclosure Schedule (the “Foreign Competition Authorities”) in connection with the Offer, the Merger and the other Contemplated Transactions promptly after the date of this Agreement. The Company and Parent shall respond obtain as promptly as practicable to: (i) any inquiries or requests received from the Federal Trade Commissionall Seller Approvals, the Department of Justice or the Foreign Competition Authorities for additional information or documentation; Company Consents and (ii) any inquiries or requests received from any state attorney general, Buyer Approvals and all other foreign antitrust or competition authority or other Governmental Body in connection with antitrust or related matters. At the request of Parent, the Company shall divest, sell, dispose of, hold separate or take any other action with respect to material consents and approvals that any of Seller, Buyer or their respective Affiliates are required to obtain in order to consummate the businesses, product lines or assets transactions contemplated hereby (including the novation and/or assignment of the Acquired Corporations, provided, however, that any such action is conditioned upon the consummation of the Offer or the MergerCG&E Transactions to CMT).
(b) Subject The Parties shall, and shall cause their respective Affiliates to, (i) make or cause to be made the filings required of such party or any of its Affiliates under any Laws with respect to the confidentiality provisions transactions contemplated by this Agreement and to pay any fees due of it in connection with such filings, as promptly as is reasonably practicable, (ii) cooperate with the Confidentiality Agreementother Party and furnish the information in such Party’s possession that is necessary in connection with such other Party’s filings, Parent and the Company each shall (iii) use commercially reasonable efforts to cause the expiration of the notice or waiting periods under any Laws with respect to the transactions contemplated by this Agreement as promptly supply as is reasonably practicable, (iv) promptly inform the other with Party of any information which may be required in order to effectuate communication from or to, and any filings (including applications) pursuant to (and to otherwise comply with its obligations set forth in) Section ý6.2(a). Unless prohibited by Legal Requirements proposed understanding or agreement with, any Governmental BodyAuthority in respect of such filings, (v) reasonably consult and subject to the confidentiality provisions of the Confidentiality Agreement, each of Parent and the Company shall: (i) consult cooperate with the other prior to taking a position with respect to any such filing; (ii) permit the other to review and discuss in advance, and consider in good faith the views of the other Party in connection with, with any analyses, appearances, presentations, memoranda, briefs, white papers, arguments, arguments and opinions and proposals before making made or submitting any of the foregoing to any Governmental Body submitted by or on behalf of any party hereto Party in connection with all meetings, actions and proceedings with Governmental Authorities relating to such filings, (vi) comply, as promptly as is reasonably practicable, with any Legal Proceeding related solely requests received by such Party or any of its Affiliates under any Laws for additional information, documents or other materials, (vii) use commercially reasonable efforts to resolve any objections as may be asserted by any Governmental Authority with respect to the transactions contemplated by this Agreement and (viii) use commercially reasonable efforts to contest and resist any action or proceeding instituted (or threatened in writing to be instituted) by any Governmental Authority challenging the Contemplated Transactions (including transactions contemplated by this Agreement as violative of any Law. If a Party intends to participate in any meeting with any Governmental Authority with respect to such Legal Proceeding relating to any antitrustfilings and if permitted by, competition or fair trade Legal Requirement); (iii) coordinate with acceptable to, the applicable Governmental Authorities, it shall give the other in preparing Party reasonable prior notice of, and exchanging an opportunity to participate in, such information; and (iv) promptly provide the other (and its counsel) with copies of all filings, notices, analyses, presentations, memoranda, briefs, white papers, opinions, proposals and other submissions (and a summary of any oral presentations) made or submitted by such party with or to any Governmental Body related solely to this Agreement or the Contemplated Transactions. Notwithstanding anything to the contrary in this Section 6.2, Parent and the Company may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section 6.2 as “Outside Counsel Only Material” or otherwise reasonably redact highly confidential content from the materials produced to the othermeeting.
(c) Unless prohibited by Legal Requirements or any Governmental Body, each of Parent and the Company shall notify the other promptly upon the receipt of: (i) any communication from any official of any Governmental Body in In connection with any filing made pursuant such filings, Buyer shall cooperate in good faith with Governmental Authorities and undertake promptly any and all commercially reasonable action required to complete lawfully the transactions contemplated by this Agreement; (ii) knowledge of the commencement or threat of commencement provided that nothing in this Section 6.2 shall require Buyer to make any divestiture of any Legal Proceeding by or before any Governmental Body with respect to the Contemplated Transactions (and shall keep the other party informed as to the status of any such Legal Proceeding or threat); and (iii) any request by any official of any Governmental Body for any amendment or supplement to any filing made pursuant to this Agreement its assets or any information required to comply with any Legal Requirements applicable to the Contemplated Transactions. Parent shall be entitled to direct any defense portion of the Offer, the Merger and the other Contemplated Transactions. Unless prohibited by Legal Requirements or any Governmental Body, whenever any event occurs that is required to be set forth in an amendment or supplement to any filing made pursuant to Section 6.2(a), Parent or the Company, as the case may be, shall (promptly upon learning of the occurrence of such event) inform the other of the occurrence of such event and cooperate in filing with the applicable Governmental Body such amendment or supplementits business.
(d) Parent and the Company The Parties shall use commercially reasonable efforts provide prompt notification to takeeach other when any such consent or approval referred to in this Section 6.2 is obtained, or cause to be taken, all actions necessary to consummate the Offer and the Merger and make effective the other Contemplated Transactions. Without limiting the generality made, given or denied, as applicable.
(e) In furtherance of the foregoing, each party to this Agreement: foregoing covenants:
(i) Each Party shall make prepare, as soon as is practical following the Signing Date, all necessary filings (if any) and give all notices (if any) required to be made and given by such party in connection with the Offertransactions contemplated by this Agreement that may be required by FERC or the Federal Reserve Board, or under the HSR Act, the Merger Competition Act (Canada) or any other federal, state, provincial or local Laws. Each Party shall submit such filings as soon as practicable, but in no event later than five (5) Business Days (subject to extension by mutual agreement) after the execution hereof for filings with the FERC for authorization of the transactions contemplated by this Agreement (including the TRS Agreement, the Transition Services Agreement and the Services Agreement) pursuant to Section 203 of the FPA. The Parties shall request expedited treatment of any such filings, shall promptly furnish each other Contemplated Transactions; with copies of any notices, correspondence or other written communication from the relevant Governmental Authority, shall promptly make any appropriate or necessary subsequent or supplemental filings and shall cooperate in the preparation of such filings as is reasonably necessary and appropriate.
(ii) Buyer and Seller shall use commercially reasonable efforts not, and shall each cause its respective Affiliates not to, take any action that could reasonably be expected to obtain each Consent (if any) required to be obtained (pursuant to adversely affect the approval of any applicable Legal Requirement or Contract, or otherwise) by such party in connection with the Offer, the Merger or Governmental Authority of any of the other Contemplated Transactions; and (iii) shall defend through litigation on the merits any claim asserted in court by the United States Department of Justice or United States Federal Trade Commission under antitrust or competition-related Legal Requirement in order filings referred to avoid entry of any decree, order or judgment (whether temporary, preliminary or permanent) that could restrain, delay, or prevent the Closing by the Outside Date. Notwithstanding anything to the contrary herein, nothing in this Agreement shall require Parent or any of its Subsidiaries to, nor shall any Acquired Corporation without the prior written consent of Parent agree or offer to: (A) effect any divestiture of, or hold separate (including by establishing a trust or otherwise), or agree to restrict its ownership or operation of, any business or assets of the Acquired Corporations, Parent or any Subsidiary of Parent, including Acquisition Sub, or to enter into any settlement or consent decree, or agree to any undertaking, with respect to any business or assets of the Acquired Corporations, Parent or any Subsidiary of Parent, including Acquisition Sub, (B) enter into, amend or agree to enter into or amend, any Contract of the Acquired Corporations, Parent or any Subsidiary of Parent, including Acquisition Sub, that imposes any material limitations on the ability of Parent or any of its Affiliates to effectively exercise full rights of the shares of Company Common Stock or (C) otherwise waive, abandon or alter any material rights or material obligations of the Acquired Corporations, Parent or any Subsidiary of Parent, including Acquisition Sub. Furthermore, notwithstanding anything to the contrary contained herein, in connection with obtaining any Consent from any third party, without the prior written consent of Parent, none of the Acquired Corporations or any of their respective Representatives, shall pay or commit to pay to such Person whose approval or consent is being solicited any cash or other consideration, make any accommodation or commitment or incur any liability or other obligation to such PersonSection 6.2.
Appears in 1 contract
Regulatory and Other Approvals. (a) Each party Party shall, or shall use commercially reasonable efforts to filecause its ultimate parent entity as that term is defined in the HSR Act to, submit as soon as practicable reasonably practicable, but in no event later than five (5) Business Days after the date of this AgreementSigning Date (unless the Parties agree to a different date), all notices, reports and other documents required to be filed by such party with any Governmental Body with respect to the Offer, the Merger and the other Contemplated Transactions, and to submit promptly any additional information requested by any such Governmental Body. Without limiting the generality of the foregoing, the Company and Parent shall prepare and file the notification and report forms required to be filed filings under the HSR Act within five business days following to the date of this Agreementextent required. The Company Persons making such filings shall request early termination of any applicable HSR Act waiting period, and Parent the Parties shall prepare and file promptly furnish each other with copies of any notification substantive notices, correspondence, or other document required to be filed under written communication (and a written memorandum setting forth the substance of any applicable foreign antitrust substantive oral communication) received from the relevant Governmental Authority regarding such filings or competition-related Legal Requirement of the jurisdictions set forth in Part 6.2(a) of the Disclosure Schedule (the “Foreign Competition Authorities”) in connection with the Offer, the Merger and the other Contemplated Transactions promptly after the date of this Agreementtransactions described herein. The Company and Parent Parties, including the Persons making such filings, as applicable, shall respond make, as promptly as practicable to: (i) and advisable, subsequent or supplemental filings or submissions required or requested by the relevant Governmental Authority and shall comply, as promptly as practicable and advisable, with \\4141-5696-8778 v37 any inquiries or requests received Request for Additional Information and Documentary Materials from the Federal Trade CommissionCommission (“Second Request”). The Parties shall cooperate with one another in the preparation of all such filings and submissions contemplated by this Section 7.03(a). Upon the prior written consent of each Party (not to be unreasonably withheld, conditioned or delayed), the Department Parties shall substantially contemporaneously certify such Party’s compliance with any Second Request. A Person making a filing hereunder pursuant to the HSR Act shall not agree to withdraw or resubmit the respective filing without the prior written consent of Justice or the Foreign Competition Authorities for additional information or documentation; and (ii) any inquiries or requests received from any state attorney general, other foreign antitrust or competition authority or other Governmental Body in connection with antitrust or related matters. At the request of Parent, the Company shall divest, sell, dispose of, hold separate or take any other action with respect to any of the businesses, product lines or assets of the Acquired Corporations, provided, however, that any such action is conditioned upon the consummation of the Offer or the Mergerboth Parties.
(b) Subject In addition to the confidentiality provisions of the Confidentiality Agreement, Parent and the Company each shall use commercially using reasonable best efforts to promptly supply obtain the other HSR Approval, the Parties shall (and shall each cause their respective Affiliates and Representatives to) use reasonable best efforts to obtain in accordance with this Section 7.03 all material Consents and material approvals of third parties and Governmental Authorities that any information which may be of Seller, Buyer or their respective Affiliates are required to obtain in order to effectuate any filings (including applications) pursuant to (and to otherwise comply with its obligations set forth in) Section ý6.2(a). Unless prohibited by Legal Requirements or any Governmental Body, and subject to consummate the confidentiality provisions of the Confidentiality Agreement, each of Parent and the Company shall: (i) consult with the other prior to taking a position with respect to any such filing; (ii) permit the other to review and discuss in advance, and consider in good faith the views of the other in connection with, any analyses, appearances, presentations, memoranda, briefs, white papers, arguments, opinions and proposals before making or submitting any of the foregoing to any Governmental Body by or on behalf of any party hereto in connection with any Legal Proceeding related solely to this Agreement or the Contemplated Transactions (including any such Legal Proceeding relating to any antitrust, competition or fair trade Legal Requirement); (iii) coordinate with the other in preparing and exchanging such information; and (iv) promptly provide the other (and its counsel) with copies of all filings, notices, analyses, presentations, memoranda, briefs, white papers, opinions, proposals and other submissions (and a summary of any oral presentations) made or submitted by such party with or to any Governmental Body related solely to this Agreement or the Contemplated Transactions. Notwithstanding anything to the contrary in this Section 6.2, Parent and the Company may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section 6.2 as “Outside Counsel Only Material” or otherwise reasonably redact highly confidential content from the materials produced to the othertransactions contemplated hereby.
(c) Unless prohibited Notwithstanding anything herein to the contrary, Buyer and its Affiliates shall take reasonable best efforts to eliminate each and every impediment necessary to obtain the HSR Approval so as to enable the Parties hereto to close the transactions contemplated hereby prior to the Outside Date, including, but not limited to, by Legal Requirements or any Governmental Body, each of Parent and the Company shall notify the other promptly upon the receipt of: (i) offering, settling, accepting, and agreeing, committing to agree and consenting to, any communication from any official of any Governmental Body undertaking, term, condition, liability, obligation, commitment, sanction and other measure that would be reasonably necessary in connection with any filing made pursuant order for the Closing to this Agreement; occur prior to the Outside Date, (ii) knowledge negotiating, committing to and effecting by consent decree, hold separate orders, or otherwise, (A) the termination, relinquishment, modification, and waiver of existing relationships, ventures, contractual rights, obligations and other arrangements of or associated with the business of the commencement or threat of commencement Acquired Company Group that would be reasonably necessary in order for the Closing to occur prior to the Outside Date, and (B) the entry into any relationships, ventures, contractual rights, obligations and other arrangements as necessary in order to prevent the initiation of any Legal Proceeding litigation by or before any Governmental Body with respect Authority or effect the dissolution of any injunction, temporary restraining order or other order which litigation or injunction, temporary restraining order or other order would otherwise reasonably be expected to have the effect of preventing the Closing from occurring prior to the Contemplated Transactions (and shall keep the other party informed as to the status of any such Legal Proceeding or threat); Outside Date, and (iii) any request by any official of any Governmental Body for any amendment or supplement to any filing made pursuant to this Agreement or any information required to comply with any Legal Requirements applicable to the Contemplated Transactions. Parent shall be entitled to direct any defense of the Offer, the Merger and the other Contemplated Transactions. Unless prohibited by Legal Requirements or any Governmental Body, whenever any event occurs that is required to be set forth in an amendment or supplement to any filing made pursuant to Section 6.2(a), Parent or the Company, as the case may be, shall (promptly upon learning of the occurrence of such event) inform the other of the occurrence of such event and cooperate in filing with the applicable Governmental Body such amendment or supplement.
(d) Parent and the Company shall use commercially reasonable efforts to take, or cause to be taken, all actions necessary to consummate the Offer and the Merger and make effective the other Contemplated Transactions. Without limiting the generality of the foregoing, each party to this Agreement: (i) shall make all filings (if any) and give all notices (if any) required to be made and given by such party in connection with the Offer, the Merger and the other Contemplated Transactions; (ii) shall use commercially reasonable efforts to obtain each Consent (if any) required to be obtained (pursuant to any applicable Legal Requirement or Contract, or otherwise) by such party in connection with the Offer, the Merger or any of the other Contemplated Transactions; and (iii) shall defend defending through litigation on the merits any claim asserted in court by the United States Department of Justice or United States Federal Trade Commission under antitrust or competition-related Legal Requirement any party in order to avoid entry of of, or to have vacated or terminated, any decree, order or judgment (whether temporary, preliminary or permanent) that could restrain, delay, or would prevent the Closing by from occurring prior to the Outside Date. Notwithstanding anything to the contrary herein; provided, however, that nothing in this Agreement shall require Parent requires Buyer or any of its Subsidiaries to, nor shall any Acquired Corporation without the prior written consent of Parent agree or offer to: (A) effect any divestiture of, or hold separate (including by establishing a trust or otherwise), or agree to restrict its ownership or operation of, any business or assets of the Acquired Corporations, Parent or any Subsidiary of Parent, including Acquisition Sub, or to enter into any settlement or consent decree, or agree to any undertaking, with respect to any business or assets of the Acquired Corporations, Parent or any Subsidiary of Parent, including Acquisition Sub, (B) enter into, amend or agree to enter into or amend, any Contract of the Acquired Corporations, Parent or any Subsidiary of Parent, including Acquisition Sub, that imposes any material limitations on the ability of Parent or any of its Affiliates to effectively exercise full rights of the shares of Company Common Stock or take (C) otherwise waive, abandon or alter any material rights or material obligations of the Acquired Corporations, Parent or any Subsidiary of Parent, including Acquisition Sub. Furthermore, notwithstanding anything to the contrary contained herein, in connection with obtaining any Consent from any third partyand Seller shall not take, without the prior written consent of ParentBuyer), none any action that (x) implicates or impacts, in any material respect (including any sale, divestiture or disposition of), any of Buyer’s or its Affiliates’ assets, properties, businesses, or companies owned as of the Signing Date, (y) would reasonably be expected to result in a material impact on (1) the Dos Caminos System, taken as a whole, (2) the EFM System, taken as a whole, or (3) the NET Mexico System, taken as a whole, or (z) would result in the sale, divestiture and disposition of any of Seller’s assets, properties and businesses to be acquired by Buyer pursuant to this Agreement. Buyer further agrees that, following the Signing Date and prior to the Outside Date, Buyer shall not, and shall cause its Affiliates not to, enter into any business combination transaction, including any merger, consolidation, equity exchange, or acquisition, or acquire any assets, properties or interests in any currently operating joint venture, in any case, that would reasonably be expected to materially delay, materially adversely impact, hinder or prevent obtaining the HSR Approval. \\4141-5696-8778 v37
(d) Prior to the Closing, the Outside Date may be extended to June 10, 2024, in which event the Outside Date thereafter shall be deemed to be June 10, 2024 for all purposes under this Agreement and the other Transaction Documents, by the applicable Party upon written notice thereof to the other Party not less than two (2) Business Days prior to the Outside Date:
(i) by Buyer if the HSR Approval has not been obtained prior to the Outside Date, in which case (A) the limitation standard on required actions of Buyer and prohibited actions by Seller referenced in clause (y) of Section 7.03(c) thereafter shall be, as applicable, actions that would reasonably be expected to result in a material adverse effect on the assets, properties and businesses of the Acquired Corporations Company Group, taken as a whole, and (B) Buyer agrees that, prior to the Outside Date (as extended by Buyer), Buyer shall not, and shall cause its Affiliates not to, enter into any business combination transaction, including any merger, consolidation, equity exchange, or acquisition, or acquire any assets, properties or interests in any currently operating joint venture, or enter into any new partnership or joint venture, in any case, that would reasonably be expected to materially delay, materially adversely impact, hinder or prevent obtaining the HSR Approval; and
(ii) by Seller if, prior to the Outside Date, (A) any condition to Closing contemplated in Section 9.06 has not been obtained, achieved or otherwise waived by Seller, or (B) as otherwise permitted by any applicable Transaction Documents.
(e) Notwithstanding anything herein to the contrary, neither Seller nor its Affiliates shall under any circumstance be required in connection with this Agreement or the transactions contemplated herein to offer, accept, agree, commit to agree or consent to, any undertaking, term, condition, liability, obligation, commitment, sanction or other measure; provided, however, that the foregoing shall not apply to the Acquired Company Group so long as any required material undertaking, term, condition, liability, obligation, commitment, sanction or other measure is conditioned upon, and effective on or after, the Closing; provided, further, that Seller and its Affiliates shall only agree to any such measure with respect to the Acquired Company Group with the prior written consent of Buyer.
(f) Without limiting the obligations set forth in Section 7.03(a), Section 7.03(b) Section 7.03(c) or Section 7.03(d), each Party shall (i) promptly inform the other Party upon receipt of any material communication from any Governmental Authority regarding any of the transactions contemplated hereby, and (ii) subject to applicable legal limitations and the instructions of any Governmental Authority, keep each other apprised of the status of matters relating to the completion of the transactions contemplated hereby, including promptly furnishing the other with copies of notices or other material communications received by such Party or any of their respective Representativessuch Party’s Subsidiaries, from any Governmental Authority with respect to the transactions contemplated hereby. Each Party will permit counsel for the other Party reasonable opportunity to review in advance, and consider in good faith the views of the other Party in connection with, any proposed substantive written communication to any Governmental Authority. Each Party agrees not to (A) participate in any substantive meeting or discussion, either in person or by telephone or video conference, with any Governmental Authority in connection with the transactions contemplated hereby unless such Party consults with the other Party in advance, to the extent practicable, and, to the extent not prohibited by such Governmental Authority, gives the other \\4141-5696-8778 v37 Party or its representatives the opportunity to attend and participate, (B) extend any waiting period under the HSR Act, or enter into any timing agreement with a Governmental Authority regarding the Closing, without the prior written consent of the other Party (such consent not to be unreasonably withheld, conditioned or delayed), or (C) enter into any agreement with any Governmental Authority not to consummate the transactions contemplated hereby, in each case, without the prior written consent of the other Party. Buyer and Seller shall, in good faith, use reasonable best efforts to cooperate with each other to jointly determine the strategy and process to obtain the required approvals from any Governmental Authority.
(g) Buyer shall pay one hundred percent (100%) of the statutory filing fee associated with filings under the HSR Act. Further, if the Parties have received a Second Request, provided that this Agreement is terminated prior to the Closing pursuant to the provisions of Section 11.01 as a result of the failure to obtain HSR Approval, Buyer shall reimburse Seller for all reasonable costs and expenses incurred prior to the termination of this Agreement (provided, that, in the event Seller elects to extend the Outside Date in accordance with Section 7.03(d)(ii), Buyer shall reimburse Seller only for those reasonable costs and expenses incurred prior to March 31, 2024), up to $7,500,000 in the aggregate, related to Seller’s or commit its Affiliates’ response to pay and compliance with any such Second Request, participation in any depositions or actions to resolve any antitrust concerns raised by a Governmental Authority, and efforts to defend in any judicial or administrative forum any legal challenges to the transactions described herein brought by a Governmental Authority, such Person whose approval or consent is being solicited any cash or costs and expenses to include, but not be limited to, fees of legal counsel, economic consultants, eDiscovery and other consideration, make any accommodation or commitment or incur any liability or other obligation to such Personprofessional service providers.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Nextera Energy Partners, Lp)
Regulatory and Other Approvals. (a) Each party shall use commercially reasonable efforts Party and each Party’s respective Affiliates shall, prepare and submit, or cause to filebe prepared and submitted, to the applicable Governmental Authority, as soon as practicable after is practical following the date of this AgreementSigning Date (but no later than 10 Business Days following the Signing Date), all notices, reports and other documents required to be filed by such party with any Governmental Body with respect to the Offer, the Merger and the other Contemplated Transactions, and to submit promptly any additional information requested by any such Governmental Body. Without limiting the generality of the foregoing, the Company and Parent shall prepare and file the notification and report forms required to be filed under the HSR Act within five business days following the date of this Agreement. The Company and Parent shall prepare and file any notification or other document required to be filed under any applicable foreign antitrust or competition-related Legal Requirement of the jurisdictions set forth in Part 6.2(a) of the Disclosure Schedule (the “Foreign Competition Authorities”) necessary filings in connection with the OfferTransactions that may be required for obtaining any Governmental Approvals under Laws prior to the Closing Date, including any required applications at the Merger FCC pursuant to 47 U.S.C. § 310(d) and the other Contemplated Transactions promptly after the date of this Agreement. The Company and Parent shall respond as promptly as practicable to: (i) any inquiries or requests received from the Federal Trade Commission, the Department of Justice or the Foreign Competition Authorities for additional information or documentation; and (ii) any inquiries or requests received from any state attorney general, other foreign antitrust or competition authority or other Governmental Body in connection with antitrust or related matters. At the request of Parent, the Company shall divest, sell, dispose of, hold separate or take any other action with respect to any of the businesses, product lines or assets of the Acquired Corporations, provided, however, that any such action is conditioned upon the consummation of the Offer or the Merger47 C.F.R. § 1.948.
(b) Subject The Purchaser shall not, and shall cause its subsidiaries not to, enter into any acquisition agreement that would reasonably be expected to materially delay or materially impair the confidentiality provisions approval of the Confidentiality Agreement, Parent and the Company each shall use commercially reasonable efforts to promptly supply the other with any information which may be required in order to effectuate any filings Governmental Authority (including applicationsexpiration or termination of any applicable waiting periods under the HSR Act) pursuant to (and to otherwise comply with its obligations set forth in) Section ý6.2(a). Unless prohibited by Legal Requirements or any Governmental Body, and subject to the confidentiality provisions of the Confidentiality Agreement, each of Parent and the Company shall: (i) consult with the other prior to taking a position with respect to any such filing; (ii) permit the other to review and discuss in advance, and consider in good faith the views of the other in connection with, any analyses, appearances, presentations, memoranda, briefs, white papers, arguments, opinions and proposals before making or submitting any of the foregoing to any Governmental Body by or on behalf of any party hereto in connection with any Legal Proceeding related solely to this Agreement or the Contemplated Transactions (including any such Legal Proceeding relating to any antitrust, competition or fair trade Legal Requirement); (iii) coordinate with the other in preparing and exchanging such information; and (iv) promptly provide the other (and its counsel) with copies of all aforementioned filings, notices, analyses, presentations, memoranda, briefs, white papers, opinions, proposals and other submissions (and a summary of any oral presentations) made or submitted by such party with or to any Governmental Body related solely to this Agreement or the Contemplated Transactions. Notwithstanding anything to the contrary in this Section 6.2, Parent and the Company may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section 6.2 as “Outside Counsel Only Material” or otherwise reasonably redact highly confidential content from the materials produced to the other.
(c) Unless prohibited The Parties shall use their reasonable best efforts to take, or cause to be taken, all reasonable actions and do, or cause to be done, all other reasonable things necessary, proper or advisable under applicable Law to consummate the Transactions on or before the Outside Date, including promptly making any appropriate or necessary subsequent or supplemental filings and cooperate with one another in the preparation of such filings in such manner as is reasonably necessary and appropriate. Notwithstanding any other provision of this Agreement, in no event shall the Purchaser or its Affiliates be required to (and the Seller shall not, and shall cause its Affiliates not to, without the Purchaser’s prior written consent) offer, negotiate, commit to, agree to or effect, by Legal Requirements consent decree, hold separate orders, or otherwise, the sale, divestiture or disposition of any assets, properties or businesses, any other arrangements or any Governmental Bodyother remedy, each condition or commitment of Parent any kind.
(d) Subject to applicable confidentiality restrictions or restrictions required by Laws, the Purchaser and the Company shall Seller will notify the other promptly upon the receipt of: by such Party or its Affiliates of (i) any communication material communications, comments, questions or requests from any official officials of any Governmental Body Authority in connection with any filing filings made pursuant to this Agreement; Section 6.02 or the Transactions and (ii) knowledge of the commencement or threat of commencement of any Legal Proceeding by or before any Governmental Body with respect to the Contemplated Transactions (and shall keep the other party informed as to the status of any such Legal Proceeding or threat); and (iii) any request by any official officials of any Governmental Body Authority for any amendment amendments or supplement supplements to any filing filings made pursuant to this Agreement any Laws of any Governmental Authority or answers to any information required material questions, or the production of any documents, relating to comply with any Legal Requirements applicable to the Contemplated Transactions. Parent shall be entitled to direct any defense an investigation of the Offer, the Merger and the other Contemplated Transactions. Unless prohibited Transactions by Legal Requirements or any Governmental BodyAuthority. Whenever a Governmental Authority requests additional information or documents, whenever or any event occurs that is required to be set forth in an amendment or supplement to any filing made pursuant to this Section 6.2(a)6.02, Parent or the Company, as the case may be, each Party shall (promptly upon learning of the occurrence of such event) inform the other of the occurrence Party of such event occurrence and cooperate in filing with the applicable Governmental Body such amendment or supplement.
(d) Parent and the Company shall use commercially reasonable efforts to takecooperate in filing promptly with the applicable Governmental Authority such information, documents, amendments or cause to be taken, all actions necessary to consummate the Offer and the Merger and make effective the other Contemplated Transactionssupplements. Without limiting the generality of the foregoing, each party Party shall provide to the other Party (or its advisors), upon reasonable request and subject to appropriate confidentiality protections, copies of all material correspondence between such Party and any Governmental Authority relating to the Transactions. The Parties may, as they deem advisable and necessary, designate any competitively sensitive materials provided to the others under this Agreement: Section 6.02 as “outside counsel only.” Such materials and the information contained therein shall be given only to outside counsel of the recipient and shall not be disclosed by such outside counsel to employees, officers, or directors of the recipient without the advance written consent of the Party providing such materials. In addition, subject to appropriate confidentiality protections, all material discussions, telephone calls, and meetings with a Governmental Authority regarding the Transactions shall include Representatives of both the Purchaser and the Seller. Subject to applicable Law, the Parties shall consult and cooperate with each other in connection with any analyses, appearances, presentations, memoranda, briefs, arguments, and proposals made or submitted to any Governmental Authority regarding the Transactions by or on behalf of either Party.
(ie) The Purchaser shall make pay all filings (if any) and give all notices (if any) of the filing fees required to be made and given by such party paid in connection with the Offer, the Merger and the other Contemplated Transactions; (ii) shall use commercially reasonable efforts to obtain each Consent (if any) required to be obtained (pursuant to any applicable Legal Requirement or Contract, or otherwise) filings contemplated by such party in connection with the Offer, the Merger or any of the other Contemplated Transactions; and (iii) shall defend through litigation on the merits any claim asserted in court by the United States Department of Justice or United States Federal Trade Commission under antitrust or competition-related Legal Requirement in order to avoid entry of any decree, order or judgment (whether temporary, preliminary or permanent) that could restrain, delay, or prevent the Closing by the Outside Date. Notwithstanding anything to the contrary herein, nothing in this Agreement shall require Parent or any of its Subsidiaries to, nor shall any Acquired Corporation without the prior written consent of Parent agree or offer to: (A) effect any divestiture of, or hold separate (including by establishing a trust or otherwise), or agree to restrict its ownership or operation of, any business or assets of the Acquired Corporations, Parent or any Subsidiary of Parent, including Acquisition Sub, or to enter into any settlement or consent decree, or agree to any undertaking, with respect to any business or assets of the Acquired Corporations, Parent or any Subsidiary of Parent, including Acquisition Sub, (B) enter into, amend or agree to enter into or amend, any Contract of the Acquired Corporations, Parent or any Subsidiary of Parent, including Acquisition Sub, that imposes any material limitations on the ability of Parent or any of its Affiliates to effectively exercise full rights of the shares of Company Common Stock or (C) otherwise waive, abandon or alter any material rights or material obligations of the Acquired Corporations, Parent or any Subsidiary of Parent, including Acquisition Sub. Furthermore, notwithstanding anything to the contrary contained herein, in connection with obtaining any Consent from any third party, without the prior written consent of Parent, none of the Acquired Corporations or any of their respective Representatives, shall pay or commit to pay to such Person whose approval or consent is being solicited any cash or other consideration, make any accommodation or commitment or incur any liability or other obligation to such PersonSection 6.02.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Kinetik Holdings Inc.)
Regulatory and Other Approvals. (a) Each party shall use commercially reasonable efforts to file, as soon as practicable after the date of this Agreement, all notices, reports and other documents required to be filed by such party with any Governmental Body with respect to the Offer, the Merger and the other Contemplated Transactions, and to submit promptly any additional information requested by any such Governmental Body. Without limiting the generality of the foregoing, the Company and Parent shall prepare and file the notification and report forms required to be filed under the HSR Act within five business days following the date of this Agreement. The Company and Parent shall prepare and file any notification or other document required to be filed under any applicable foreign antitrust or competition-related Legal Requirement of the jurisdictions set forth in Part 6.2(a) of the Disclosure Schedule (the “Foreign Competition Authorities”) in connection with the Offer, the Merger and the other Contemplated Transactions promptly after the date of this Agreement. The Company and Parent shall respond as promptly as practicable to: (i) any inquiries or requests received from the Federal Trade Commission, the Department of Justice or the Foreign Competition Authorities for additional information or documentation; and (ii) any inquiries or requests received from any state attorney general, other foreign antitrust or competition authority or other Governmental Body in connection with antitrust or related matters. At the request of Parent, the Company shall divest, sell, dispose of, hold separate or take any other action with respect to any of the businesses, product lines or assets of the Acquired Corporations, provided, however, that any such action is conditioned upon the consummation of the Offer or the Merger.
(b) Subject to the confidentiality provisions of the Confidentiality Agreement, Parent and the Company each shall use commercially reasonable efforts to promptly supply the other with any information which may be required in order to effectuate any filings (including applications) pursuant to (and to otherwise comply with its obligations set forth in) Section ý6.2(a). Unless prohibited by Legal Requirements or any Governmental Body, and subject to the confidentiality provisions of the Confidentiality Agreement, each of Parent and the Company shall: (i) consult with the other prior to taking a position with respect to any such filing; (ii) permit the other to review and discuss in advance, and consider in good faith the views of the other in connection with, any analyses, appearances, presentations, memoranda, briefs, white papers, arguments, opinions and proposals before making or submitting any of the foregoing to any Governmental Body by or on behalf of any party hereto in connection with any Legal Proceeding related solely to this Agreement or the Contemplated Transactions (including any such Legal Proceeding relating to any antitrust, competition or fair trade Legal Requirement); (iii) coordinate with the other in preparing and exchanging such information; and (iv) promptly provide the other (and its counsel) with copies of all filings, notices, analyses, presentations, memoranda, briefs, white papers, opinions, proposals and other submissions (and a summary of any oral presentations) made or submitted by such party with or to any Governmental Body related solely to this Agreement or the Contemplated Transactions. Notwithstanding anything to the contrary in this Section 6.2, Parent and the Company may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section 6.2 as “Outside Counsel Only Material” or otherwise reasonably redact highly confidential content from the materials produced to the other.
(c) Unless prohibited by Legal Requirements or any Governmental Body, each of Parent and the Company shall notify the other promptly upon the receipt of: (i) any communication from any official of any Governmental Body in connection with any filing made pursuant to this Agreement; (ii) knowledge of the commencement or threat of commencement of any Legal Proceeding by or before any Governmental Body with respect to the Contemplated Transactions (and shall keep the other party informed as to the status of any such Legal Proceeding or threat); and (iii) any request by any official of any Governmental Body for any amendment or supplement to any filing made pursuant to this Agreement or any information required to comply with any Legal Requirements applicable to the Contemplated Transactions. Parent shall be entitled to direct any defense of the Offer, the Merger and the other Contemplated Transactions. Unless prohibited by Legal Requirements or any Governmental Body, whenever any event occurs that is required to be set forth in an amendment or supplement to any filing made pursuant to Section 6.2(a), Parent or the Company, as the case may be, shall (promptly upon learning of the occurrence of such event) inform the other of the occurrence of such event and cooperate in filing with the applicable Governmental Body such amendment or supplement.
(d) Parent and the Company Party shall use commercially reasonable efforts to take, or cause to be taken, all actions necessary actions, and to do, or cause to be done, all things necessary, proper or advisable under any applicable Laws to consummate the Offer and the Merger and make effective the other Contemplated Transactions. Without limiting the generality of the foregoing, each party to this Agreement: including (i) shall make all filings filing any notification and report forms required for the consummation of the Transactions under the HSR Act within fifteen (if any15) Business Days after the Execution Date; and give all notices (if any) required to be made and given by such party in connection with the Offer, the Merger and the other Contemplated Transactions; (ii) shall use using commercially reasonable efforts to obtain each Consent (if any) required to be obtained (pursuant to cause any applicable Legal Requirement or Contract, or otherwise) by such party in connection waiting period under the HSR Act with the Offer, the Merger or any of the other Contemplated Transactions; and (iii) shall defend through litigation on the merits any claim asserted in court by the United States Department of Justice or United States Federal Trade Commission under antitrust or competition-related Legal Requirement in order to avoid entry of any decree, order or judgment (whether temporary, preliminary or permanent) that could restrain, delay, or prevent the Closing by the Outside Date. Notwithstanding anything respect to the contrary herein, nothing in this Agreement Transactions to expire or terminate at the earliest time that is reasonably practicable and shall require Parent or request “early termination” with respect to the waiting period under the HSR Act. Buyer shall not agree to extend any of its Subsidiaries to, nor shall any Acquired Corporation waiting period under the HSR Act without the prior written consent of Parent agree or offer the Contributor. Buyer shall pay any HSR Act filing fee as provided by statute. Otherwise, each Party shall each pay its own preparation costs and expenses.
(b) Each Party shall, and shall cause its respective Subsidiaries to: , (Ai) effect any divestiture promptly inform the other Parties of, or hold separate (including by establishing a trust or otherwise), or agree and supply to restrict its ownership or operation ofthe other Parties, any business communication (or assets other correspondence or memoranda) from or to, and any proposed understanding or agreement with, any Governmental Authority in connection with this Agreement or the Transactions; (ii) consult and cooperate in good faith with the other Parties in connection with any filings, notifications, submissions, analyses, appearances, presentations, memoranda, briefs, arguments and opinions made or submitted by or on behalf of any Party in connection with all meetings, actions, discussions and Proceedings with Governmental Authorities relating to this Agreement or the Transactions, including, subject to applicable Law, permitting the other Parties to review in advance, and considering in good faith the views of the Acquired Corporationsother Party with respect to, Parent or any Subsidiary of Parent, including Acquisition Sub, or to enter into any settlement or consent decree, or agree proposed written communication to any undertakingGovernmental Authority and to promptly provide the other Parties with copies of any communication to any Governmental Authority; (iii) use commercially reasonable efforts to comply, as promptly as reasonably practicable, with respect to any business or assets of the Acquired Corporations, Parent or any Subsidiary of Parent, including Acquisition Sub, (B) enter into, amend or agree to enter into or amend, any Contract of the Acquired Corporations, Parent or any Subsidiary of Parent, including Acquisition Sub, that imposes any material limitations on the ability of Parent requests received by a Party or any of its Affiliates Subsidiaries under the HSR Act and any other applicable Law for additional information, documents or other materials; (iv) give the other Parties reasonable advance notice of its or its Subsidiaries’ intention to effectively exercise full rights of participate in any meeting or telephone or other discussion with any Governmental Authority with respect to the shares of Company Common Stock or (C) otherwise waive, abandon or alter any material rights or material obligations of the Acquired Corporations, Parent Transactions or any Subsidiary of Parentfilings, including Acquisition Sub. Furthermore, notwithstanding anything to the contrary contained herein, investigations or inquiries made in connection with obtaining the Transactions, and an opportunity to participate in such meeting or discussion; and (v) contest and resist any Consent from Proceeding instituted (or threatened in writing to be instituted) by any third partyGovernmental Authority challenging the Transactions as being in violation of any applicable Law.
(c) Buyer shall take any and all steps and make any and all undertakings necessary to avoid or eliminate each and every impediment under the HSR Act or any other antitrust, without competition, or trade regulation Law that may be asserted by any Governmental Authority with respect to the prior written Transactions so as to enable the Closing to occur as soon as reasonably practicable (and in any event, no later than the Outside Date), including proposing, negotiating, committing to, and effecting by consent decree, hold separate Order, or otherwise, the sale, divestiture or disposition of Parentsuch assets or businesses of Buyer (or its Subsidiaries) or of Xxxx Xxxx (or its Subsidiaries), none or otherwise taking or committing to take actions that limit Buyer’s or its Subsidiaries’ or Alta Mesa’s or its Subsidiaries’ freedom of action with respect to, or their ability to retain, any of the Acquired Corporations businesses, product lines or Assets of Buyer (or its Subsidiaries) or Alta Mesa (or its Subsidiaries), as may be required in order to avoid the entry of, or to effect the dissolution of, any of their respective Representativesinjunction, shall pay or commit to pay to such Person whose approval or consent is being solicited any cash temporary restraining Order, or other considerationorder in any Proceeding, make any accommodation which would otherwise have the effect of preventing or commitment or incur any liability or other obligation to such Persondelaying the Closing.
Appears in 1 contract
Regulatory and Other Approvals. EFFORTS. From the date hereof until Closing (the "INTERIM PERIOD"):
(a) Each party shall use The Parties will, in order to consummate the transactions contemplated hereby, (i) take all commercially reasonable efforts to filesteps necessary or desirable, and proceed diligently and in good faith and use all commercially reasonable efforts, as soon promptly as practicable after practicable, to obtain the date of this Agreement, all notices, reports and other documents required to be filed by such party with any Governmental Body with respect to the Offer, the Merger Seller Approvals and the other Contemplated TransactionsBuyer Approvals, and to submit promptly any additional make all required filings with, and to give all required notices to, Governmental Authorities in form and substance satisfactory to Sellers and Buyer, and (ii) provide such other information requested by any and communications to such Governmental BodyAuthorities or other Persons as such Governmental Authorities or other Persons may reasonably request in connection therewith. Without limiting the generality of the foregoing, the Company Parties shall provide, and Parent shall prepare cause their Affiliates to provide, true and file the notification and report forms required to be filed under the HSR Act within five business days following the date of this Agreement. The Company and Parent shall prepare and file any notification or other document required to be filed under any applicable foreign antitrust or competition-related Legal Requirement of the jurisdictions set forth accurate information in Part 6.2(a) of the Disclosure Schedule (the “Foreign Competition Authorities”) in connection with the Offer, the Merger and the other Contemplated Transactions promptly after the date of this Agreement. The Company and Parent shall respond as promptly as practicable to: (i) any inquiries or requests received from the Federal Trade Commission, the Department of Justice or the Foreign Competition Authorities for additional information or documentation; and (ii) any inquiries or requests received from any state attorney general, other foreign antitrust or competition authority or other Governmental Body in connection with antitrust or related matters. At the request of Parent, the Company shall divest, sell, dispose of, hold separate or take any other action a timely manner with respect to any of the businesses, product lines or assets of the Acquired Corporations, provided, however, that any such action is conditioned upon the consummation of the Offer or the Mergerall filings with and notices to Governmental Authorities.
(b) Subject The Parties will provide prompt notification to the confidentiality provisions each other when any such approval referred to in clause (a)(i) above is obtained, taken, made or given, as applicable, and will advise each other of the Confidentiality Agreement, Parent and the Company each shall use commercially reasonable efforts to promptly supply the other any material communications with any information which may be required in order to effectuate any filings (including applications) pursuant to (and to otherwise comply with its obligations set forth in) Section ý6.2(a). Unless prohibited by Legal Requirements Governmental Authority or any Governmental Body, and subject to the confidentiality provisions of the Confidentiality Agreement, each of Parent and the Company shall: (i) consult with the other prior to taking a position with respect to any such filing; (ii) permit the other to review and discuss in advance, and consider in good faith the views of the other in connection with, any analyses, appearances, presentations, memoranda, briefs, white papers, arguments, opinions and proposals before making or submitting Person regarding any of the transactions contemplated by this Agreement.
(c) In furtherance of the foregoing to any Governmental Body by or on behalf covenants, each Party shall prepare, as soon as is practical following the execution of any party hereto this Agreement, all necessary filings in connection with any Legal Proceeding related solely to the transactions contemplated by this Agreement or Agreement. The Parties shall cooperate in the Contemplated Transactions preparation and submission of the filings. The filings shall be submitted as soon as practicable, but in no event later than ten (including any such Legal Proceeding relating to any antitrust, competition or fair trade Legal Requirement); (iii10) coordinate with Business Days after the other in preparing and exchanging such information; and (iv) promptly provide execution hereof for filings under the other (and its counsel) with copies HSR Act. The Parties shall request expedited treatment of all the HSR Act filings, notices, analyses, presentations, memoranda, briefs, white papers, opinions, proposals shall promptly make any appropriate or necessary subsequent or supplemental filings and other submissions (shall cooperate in the preparation of such filings as is reasonably necessary and a summary of any oral presentations) made or submitted by such party with or to any Governmental Body related solely to this Agreement or the Contemplated Transactionsappropriate. Notwithstanding anything to the contrary herein, Buyer will be responsible for the filing fees under the HSR Act. Notwithstanding any other terms or provisions of this Agreement, in this Section 6.2, Parent and no event shall Buyer be deemed to have any obligation to dispose of any Assets (including any Company Assets) or to enter into any agreement with any Person in order to obtain early termination or expiration of the Company may, as each deems advisable and necessary, reasonably designate waiting period under the HSR Act or to obtain any competitively sensitive material provided to the other under this Section 6.2 as “Outside Counsel Only Material” or otherwise reasonably redact highly confidential content approvals from the materials produced to the other.
(c) Unless prohibited by Legal Requirements or any Governmental Body, each of Parent and the Company shall notify the other promptly upon the receipt of: (i) any communication from any official of any Governmental Body in connection with any filing made pursuant to this Agreement; (ii) knowledge of the commencement or threat of commencement of any Legal Proceeding by or before any Governmental Body with respect to the Contemplated Transactions (and shall keep the other party informed as to the status of any such Legal Proceeding or threat); and (iii) any request by any official of any Governmental Body for any amendment or supplement to any filing made pursuant to this Agreement or any information required to comply with any Legal Requirements applicable to the Contemplated Transactions. Parent shall be entitled to direct any defense of the Offer, the Merger and the other Contemplated Transactions. Unless prohibited by Legal Requirements or any Governmental Body, whenever any event occurs that is required to be set forth in an amendment or supplement to any filing made pursuant to Section 6.2(a), Parent or the Company, as the case may be, shall (promptly upon learning of the occurrence of such event) inform the other of the occurrence of such event and cooperate in filing with the applicable Governmental Body such amendment or supplementAuthorities.
(d) Parent Upon the terms and subject to the Company conditions of this Agreement, each of the Parties shall use all its commercially reasonable efforts to take, or cause to be taken, all actions necessary actions, and to do, or cause to be done, all things necessary, proper or advisable consistent with applicable Laws and Orders to cause the fulfillment of the conditions to Closing set forth herein and to consummate the Offer and the Merger and make effective in the other Contemplated Transactions. Without limiting most expeditious manner practicable the generality of the foregoing, each party to this Agreement: (i) shall make all filings (if any) and give all notices (if any) required to be made and given by such party in connection with the Offer, the Merger and the other Contemplated Transactions; (ii) shall use commercially reasonable efforts to obtain each Consent (if any) required to be obtained (pursuant to any applicable Legal Requirement or Contract, or otherwise) by such party in connection with the Offer, the Merger or any of the other Contemplated Transactions; and (iii) shall defend through litigation on the merits any claim asserted in court by the United States Department of Justice or United States Federal Trade Commission under antitrust or competition-related Legal Requirement in order to avoid entry of any decree, order or judgment (whether temporary, preliminary or permanent) that could restrain, delay, or prevent the Closing by the Outside Date. Notwithstanding anything to the contrary herein, nothing in this Agreement shall require Parent or any of its Subsidiaries to, nor shall any Acquired Corporation without the prior written consent of Parent agree or offer to: (A) effect any divestiture of, or hold separate (including by establishing a trust or otherwise), or agree to restrict its ownership or operation of, any business or assets of the Acquired Corporations, Parent or any Subsidiary of Parent, including Acquisition Sub, or to enter into any settlement or consent decree, or agree to any undertaking, with respect to any business or assets of the Acquired Corporations, Parent or any Subsidiary of Parent, including Acquisition Sub, (B) enter into, amend or agree to enter into or amend, any Contract of the Acquired Corporations, Parent or any Subsidiary of Parent, including Acquisition Sub, that imposes any material limitations on the ability of Parent or any of its Affiliates to effectively exercise full rights of the shares of Company Common Stock or (C) otherwise waive, abandon or alter any material rights or material obligations of the Acquired Corporations, Parent or any Subsidiary of Parent, including Acquisition Sub. Furthermore, notwithstanding anything to the contrary contained herein, in connection with obtaining any Consent from any third party, without the prior written consent of Parent, none of the Acquired Corporations or any of their respective Representatives, shall pay or commit to pay to such Person whose approval or consent is being solicited any cash or other consideration, make any accommodation or commitment or incur any liability or other obligation to such Persontransactions contemplated hereby.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Northern Border Partners Lp)
Regulatory and Other Approvals. (a) Each party shall use commercially reasonable efforts to file, as soon as practicable after the date of this Agreement, all notices, reports and other documents required to be filed by such party with any Governmental Body with respect to the Offer, the Merger and the other Contemplated Transactions, and to submit promptly any additional information requested by any such Governmental Body. Without limiting the generality of the foregoing, the Company and Parent shall prepare and file the notification and report forms required to be filed under the HSR Act within five business days following the date of this Agreement. The Company and Parent shall prepare and file any notification or other document required to be filed under any applicable foreign antitrust or competition-related Legal Requirement of the jurisdictions set forth in Part 6.2(a) of the Disclosure Schedule (the “Foreign Competition Authorities”) in connection with the Offer, the Merger and the other Contemplated Transactions promptly after the date of this Agreement. The Company and Parent shall respond as promptly as practicable to: (i) any inquiries or requests received from the Federal Trade Commission, the Department of Justice or the Foreign Competition Authorities for additional information or documentation; and (ii) any inquiries or requests received from any state attorney general, other foreign antitrust or competition authority or other Governmental Body in connection with antitrust or related matters. At the request of Parent, the Company shall divest, sell, dispose of, hold separate or take any other action with respect to any of the businesses, product lines or assets of the Acquired Corporations, provided, however, that any such action is conditioned upon the consummation of the Offer or the Merger.
(b) Subject to the confidentiality provisions of the Confidentiality Agreement, Parent and the Company each shall use commercially reasonable efforts to promptly supply the other with any information which may be required in order to effectuate any filings (including applications) pursuant to (and to otherwise comply with its obligations set forth in) Section ý6.2(a). Unless prohibited by Legal Requirements or any Governmental Body, and subject to the confidentiality provisions of the Confidentiality Agreement, each of Parent and the Company shall: (i) consult with the other prior to taking a position with respect to any such filing; (ii) permit the other to review and discuss in advance, and consider in good faith the views of the other in connection with, any analyses, appearances, presentations, memoranda, briefs, white papers, arguments, opinions and proposals before making or submitting any of the foregoing to any Governmental Body by or on behalf of any party hereto in connection with any Legal Proceeding related solely to this Agreement or the Contemplated Transactions (including any such Legal Proceeding relating to any antitrust, competition or fair trade Legal Requirement); (iii) coordinate with the other in preparing and exchanging such information; and (iv) promptly provide the other (and its counsel) with copies of all filings, notices, analyses, presentations, memoranda, briefs, white papers, opinions, proposals and other submissions (and a summary of any oral presentations) made or submitted by such party with or to any Governmental Body related solely to this Agreement or the Contemplated Transactions. Notwithstanding anything to the contrary in this Section 6.2, Parent and the Company may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section 6.2 as “Outside Counsel Only Material” or otherwise reasonably redact highly confidential content from the materials produced to the other.
(c) Unless prohibited by Legal Requirements or any Governmental Body, each of Parent and the Company shall notify the other promptly upon the receipt of: (i) any communication from any official of any Governmental Body in connection with any filing made pursuant to this Agreement; (ii) knowledge of the commencement or threat of commencement of any Legal Proceeding by or before any Governmental Body with respect to the Contemplated Transactions (and shall keep the other party informed as to the status of any such Legal Proceeding or threat); and (iii) any request by any official of any Governmental Body for any amendment or supplement to any filing made pursuant to this Agreement or any information required to comply with any Legal Requirements applicable to the Contemplated Transactions. Parent shall be entitled to direct any defense of the Offer, the Merger and the other Contemplated Transactions. Unless prohibited by Legal Requirements or any Governmental Body, whenever any event occurs that is required to be set forth in an amendment or supplement to any filing made pursuant to Section 6.2(a), Parent or the Company, as the case may be, shall (promptly upon learning of the occurrence of such event) inform the other of the occurrence of such event and cooperate in filing with the applicable Governmental Body such amendment or supplement.
(d) Parent and the Company Party shall use commercially reasonable efforts to take, or cause to be taken, all actions necessary actions, and to do, or cause to be done, all things necessary, proper or advisable under any applicable Laws to consummate the Offer and the Merger and make effective the other Contemplated Transactions. Without limiting the generality of the foregoing, each party to this Agreement: including (i) shall make all filings filing any notification and report forms required for the consummation of the Transactions under the HSR Act within fifteen (if any15) Business Days after the Execution Date; and give all notices (if any) required to be made and given by such party in connection with the Offer, the Merger and the other Contemplated Transactions; (ii) shall use using commercially reasonable efforts to obtain each Consent (if any) required to be obtained (pursuant to cause any applicable Legal Requirement or Contract, or otherwise) by such party in connection waiting period under the HSR Act with the Offer, the Merger or any of the other Contemplated Transactions; and (iii) shall defend through litigation on the merits any claim asserted in court by the United States Department of Justice or United States Federal Trade Commission under antitrust or competition-related Legal Requirement in order to avoid entry of any decree, order or judgment (whether temporary, preliminary or permanent) that could restrain, delay, or prevent the Closing by the Outside Date. Notwithstanding anything respect to the contrary herein, nothing in this Agreement Transactions to expire or terminate at the earliest time that is reasonably practicable and shall require Parent or request “early termination” with respect to the waiting period under the HSR Act. Buyer shall not agree to extend any of its Subsidiaries to, nor shall any Acquired Corporation waiting period under the HSR Act without the prior written consent of Parent agree or offer Contributor. Buyer shall pay any HSR Act filing fee as provided by statute. Otherwise, each Party shall each pay its own preparation costs and expenses.
(b) Each Party shall, and shall cause its respective Subsidiaries to: , (Ai) effect any divestiture promptly inform the other Parties of, or hold separate (including by establishing a trust or otherwise), or agree and supply to restrict its ownership or operation ofthe other Parties, any business communication (or assets other correspondence or memoranda) from or to, and any proposed understanding or agreement with, any Governmental Authority in connection with this Agreement or the Transactions; (ii) consult and cooperate in good faith with the other Parties in connection with any filings, notifications, submissions, analyses, appearances, presentations, memoranda, briefs, arguments and opinions made or submitted by or on behalf of any Party in connection with all meetings, actions, discussions and Proceedings with Governmental Authorities relating to this Agreement or the Transactions, including, subject to applicable Law, permitting the other Parties to review in advance, and considering in good faith the views of the Acquired Corporationsother Party with respect to, Parent or any Subsidiary of Parent, including Acquisition Sub, or to enter into any settlement or consent decree, or agree proposed written communication to any undertakingGovernmental Authority and to promptly provide the other Parties with copies of any communication to any Governmental Authority; (iii) use commercially reasonable efforts to comply, as promptly as reasonably practicable, with respect to any business or assets of the Acquired Corporations, Parent or any Subsidiary of Parent, including Acquisition Sub, (B) enter into, amend or agree to enter into or amend, any Contract of the Acquired Corporations, Parent or any Subsidiary of Parent, including Acquisition Sub, that imposes any material limitations on the ability of Parent requests received by a Party or any of its Affiliates Subsidiaries under the HSR Act and any other applicable Law for additional information, documents or other materials; (iv) give the other Parties reasonable advance notice of its or its Subsidiaries’ intention to effectively exercise full rights of participate in any meeting or telephone or other discussion with any Governmental Authority with respect to the shares of Company Common Stock or (C) otherwise waive, abandon or alter any material rights or material obligations of the Acquired Corporations, Parent Transactions or any Subsidiary of Parentfilings, including Acquisition Sub. Furthermore, notwithstanding anything to the contrary contained herein, investigations or inquiries made in connection with obtaining the Transactions, and an opportunity to participate in such meeting or discussion; and (v) contest and resist any Consent from Proceeding instituted (or threatened in writing to be instituted) by any third partyGovernmental Authority challenging the Transactions as being in violation of any applicable Law.
(c) Buyer shall take any and all steps and make any and all undertakings necessary to avoid or eliminate each and every impediment under the HSR Act or any other antitrust, without competition, or trade regulation Law that may be asserted by any Governmental Authority with respect to the prior written Transactions so as to enable the Closing to occur as soon as reasonably practicable (and in any event, no later than the Outside Date), including proposing, negotiating, committing to, and effecting by consent decree, hold separate order, or otherwise, the sale, divestiture or disposition of Parent, none such assets or businesses of Buyer (or its Subsidiaries) or of the Acquired Corporations Company, or otherwise taking or committing to take actions that limit Buyer’s or its Subsidiaries’ or the Company’s freedom of action with respect to, or their ability to retain, any of their respective Representativesthe businesses, shall pay product lines or commit Assets of Buyer (or its Subsidiaries) or the Company, as may be required in order to pay avoid the entry of, or to such Person whose approval or consent is being solicited effect the dissolution of, any cash injunction, temporary restraining order, or other considerationorder in any Proceeding, make any accommodation which would otherwise have the effect of preventing or commitment or incur any liability or other obligation to such Persondelaying the Closing.
Appears in 1 contract
Samples: Contribution Agreement (Silver Run Acquisition Corp II)
Regulatory and Other Approvals. (a) Each party Party shall, and shall use commercially reasonable best efforts to filecause its respective Representatives to, as soon as practicable after the date of this Agreement, all notices, reports and other documents required to be filed by such party with any Governmental Body with respect to the Offer, the Merger and the other Contemplated Transactions, and to submit promptly any additional information requested by any such Governmental Body. Without limiting the generality of the foregoing, the Company and Parent shall prepare and file the notification and report forms required to be filed under the HSR Act within five business days following the date of this Agreement. The Company and Parent shall prepare and file any notification or other document required to be filed under any applicable foreign antitrust or competition-related Legal Requirement of the jurisdictions set forth in Part 6.2(a) of the Disclosure Schedule (the “Foreign Competition Authorities”) in connection with the Offer, the Merger and the other Contemplated Transactions promptly after the date of this Agreement. The Company and Parent shall respond as promptly as practicable to: (i) any inquiries or requests received from the Federal Trade Commission, the Department of Justice or the Foreign Competition Authorities for additional information or documentation; and (ii) any inquiries or requests received from any state attorney general, other foreign antitrust or competition authority or other Governmental Body in connection with antitrust or related matters. At the request of Parent, the Company shall divest, sell, dispose of, hold separate or take any other action with respect to any of the businesses, product lines or assets of the Acquired Corporations, provided, however, that any such action is conditioned upon the consummation of the Offer or the Merger.
(b) Subject to the confidentiality provisions of the Confidentiality Agreement, Parent and the Company each shall use commercially reasonable efforts to promptly supply the other with any information which may be required in order to effectuate any filings (including applications) pursuant to (and to otherwise comply with its obligations set forth in) Section ý6.2(a). Unless prohibited by Legal Requirements or any Governmental Body, and subject to the confidentiality provisions of the Confidentiality Agreement, each of Parent and the Company shall: (i) consult with the other prior to taking a position with respect to any such filing; (ii) permit the other to review and discuss in advance, and consider in good faith the views of the other in connection with, any analyses, appearances, presentations, memoranda, briefs, white papers, arguments, opinions and proposals before making or submitting any of the foregoing to any Governmental Body by or on behalf of any party hereto in connection with any Legal Proceeding related solely to this Agreement or the Contemplated Transactions (including any such Legal Proceeding relating to any antitrust, competition or fair trade Legal Requirement); (iii) coordinate with the other in preparing and exchanging such information; and (iv) promptly provide the other (and its counsel) with copies of all filings, notices, analyses, presentations, memoranda, briefs, white papers, opinions, proposals and other submissions (and a summary of any oral presentations) made or submitted by such party with or to any Governmental Body related solely to this Agreement or the Contemplated Transactions. Notwithstanding anything to the contrary in this Section 6.2, Parent and the Company may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section 6.2 as “Outside Counsel Only Material” or otherwise reasonably redact highly confidential content from the materials produced to the other.
(c) Unless prohibited by Legal Requirements or any Governmental Body, each of Parent and the Company shall notify the other promptly upon the receipt of: (i) any communication from any official of any Governmental Body in connection with any filing made pursuant to this Agreement; (ii) knowledge of the commencement or threat of commencement of any Legal Proceeding by or before any Governmental Body with respect to the Contemplated Transactions (and shall keep the other party informed as to the status of any such Legal Proceeding or threat); and (iii) any request by any official of any Governmental Body for any amendment or supplement to any filing made pursuant to this Agreement or any information required to comply with any Legal Requirements applicable to the Contemplated Transactions. Parent shall be entitled to direct any defense of the Offer, the Merger and the other Contemplated Transactions. Unless prohibited by Legal Requirements or any Governmental Body, whenever any event occurs that is required to be set forth in an amendment or supplement to any filing made pursuant to Section 6.2(a), Parent or the Company, as the case may be, shall (promptly upon learning of the occurrence of such event) inform the other of the occurrence of such event and cooperate in filing with the applicable Governmental Body such amendment or supplement.
(d) Parent and the Company shall use commercially reasonable best efforts to take, or cause to be taken, all actions necessary actions, and to do, or cause to be done, all things necessary, proper or advisable under any applicable Laws to consummate the Offer and the Merger and make effective the other Contemplated Transactions. Without limiting Transactions as soon as practicable after the generality of the foregoingdate hereof, each party to this Agreement: including (i) shall make all filings filing any notification and report forms required for the consummation of the Transactions under the HSR Act within ten (if any10) Business Days after the Execution Date; and give all notices (if any) required to be made and given by such party in connection with the Offer, the Merger and the other Contemplated Transactions; (ii) shall use commercially using reasonable best efforts to obtain each Consent (if any) required to be obtained (pursuant to cause any applicable Legal Requirement or Contract, or otherwise) by such party in connection waiting period under the HSR Act with the Offer, the Merger or any of the other Contemplated Transactions; and (iii) shall defend through litigation on the merits any claim asserted in court by the United States Department of Justice or United States Federal Trade Commission under antitrust or competition-related Legal Requirement in order to avoid entry of any decree, order or judgment (whether temporary, preliminary or permanent) that could restrain, delay, or prevent the Closing by the Outside Date. Notwithstanding anything respect to the contrary herein, nothing in this Agreement Transactions to expire or terminate at the earliest time that is reasonably practicable and shall require Parent or request “early termination” with respect to the waiting period under the HSR Act. Buyer shall not agree to extend any of its Subsidiaries to, nor shall any Acquired Corporation waiting period under the HSR Act without the prior written consent of Parent agree the Contributors, which shall not be unreasonably withheld, conditioned or offer delayed. Royal and the Contributors, on the one hand, and Buyer, on the other hand, shall each pay half of any HSR Act filing fee as provided by statute. Otherwise, each Party shall each pay its own costs and expenses in connection with the performance of this Section 6.1.
(b) Each Party shall, and shall cause its respective Subsidiaries to: , (Ai) effect any divestiture promptly inform the other Parties of, or hold separate (including by establishing a trust or otherwise), or agree and supply to restrict its ownership or operation ofthe other Parties, any business communication (or assets other correspondence or memoranda) from or to, and any proposed understanding or agreement with, any Governmental Authority in connection with this Agreement or the Transactions; (ii) consult and cooperate in good faith with the other Parties in connection with any filings, notifications, submissions, analyses, appearances, presentations, memoranda, briefs, arguments and opinions made or submitted by or on behalf of any Party in connection with all meetings, actions, discussions and Proceedings with Governmental Authorities relating to this Agreement or the Transactions, including, subject to applicable Law, permitting the other Parties to review in advance, and considering in good faith the views of the Acquired Corporationsother Party with respect to, Parent or any Subsidiary of Parent, including Acquisition Sub, or to enter into any settlement or consent decree, or agree proposed written communication to any undertakingGovernmental Authority and to promptly provide the other Parties with copies of any communication to any Governmental Authority; (iii) use commercially reasonable efforts to comply, as promptly as reasonably practicable, with respect to any business or assets of the Acquired Corporations, Parent or any Subsidiary of Parent, including Acquisition Sub, (B) enter into, amend or agree to enter into or amend, any Contract of the Acquired Corporations, Parent or any Subsidiary of Parent, including Acquisition Sub, that imposes any material limitations on the ability of Parent requests received by a Party or any of its Affiliates Subsidiaries under the HSR Act and any other applicable Law for additional information, documents or other materials; (iv) give the other Parties reasonable advance notice of its or its Subsidiaries’ intention to effectively exercise full rights of participate in any meeting or telephone or other discussion with any Governmental Authority with respect to the shares of Company Common Stock or (C) otherwise waive, abandon or alter any material rights or material obligations of the Acquired Corporations, Parent Transactions or any Subsidiary of Parentfilings, including Acquisition Sub. Furthermore, notwithstanding anything to the contrary contained herein, investigations or inquiries made in connection with obtaining the Transactions, and an opportunity to participate in such meeting or discussion; and (v) contest and resist any Consent from Proceeding instituted (or threatened in writing to be instituted) by any third partyGovernmental Authority challenging the Transactions as being in violation of any applicable Law.
(c) Each Party shall take any and all steps and make any and all undertakings necessary to avoid or eliminate each and every impediment under the HSR Act or any other antitrust, competition, or trade regulation Law that may be asserted by any Governmental Authority with respect to the Transactions so as to enable the Closing to occur as soon as reasonably practicable (and in any event, no later than the Outside Date), including proposing, negotiating, committing to, and effecting by consent decree, hold separate order, or otherwise, the sale, divestiture or disposition of such assets or businesses of such Party or its Affiliates (including the Royal Entities), or otherwise taking or committing to take actions that limit such Party’s or its Affiliates’ (including the Royal Entities) freedom of action with respect to, or their ability to retain, any of the businesses, product lines or Assets of such Party or its Affiliates (including the Royal Entities), as may be required in order to avoid the entry of, or to effect the dissolution of, any injunction, temporary restraining order, or other order in any Proceeding, which would otherwise have the effect of preventing or materially delaying the Closing; provided that nothing in this Agreement shall obligate or require Buyer or its Subsidiaries to, and Royal and the Contributors shall not, without the prior written consent of ParentBuyer, none of the Acquired Corporations make any undertaking, take any action, or any of their respective Representatives, shall pay agree or commit to pay take any action, or agree to such Person whose approval any condition or consent is being solicited any cash limitation, in connection with the foregoing that would reasonably be expected to have a material adverse effect on the business, properties, Assets, condition (financial or other considerationotherwise) or results of operations of (i) Buyer or its Subsidiaries or (ii) the Royal Entities (in each case of (i) and (ii), make any accommodation or commitment or incur any liability or other obligation measured on a scale relative to such Personthe Royal Entities, taken as a whole).
Appears in 1 contract
Samples: Contribution Agreement (Osprey Energy Acquisition Corp)
Regulatory and Other Approvals. (a) Each party shall Seller covenants that, from the date hereof until the earlier of the Closing or termination of this Agreement in accordance with its terms (the "INTERIM PERIOD"), Seller will, in order to consummate the transactions contemplated hereby (including the transfer of the Transferred Permits to Purchaser), take such reasonable steps as are necessary or desirable, and proceed diligently and in good faith and use commercially all reasonable efforts to file, as soon as practicable after expedite and obtain the date of this Agreement, all notices, reports Seller Approvals and other documents required to be filed by such party with any Governmental Body with respect to the Offer, the Merger and the other Contemplated TransactionsSeller Consents, and to submit promptly any additional make all filings with, and to give all notices to, Governmental Authorities, and provide such other information requested by any and communications to such Governmental BodyAuthorities or other Persons, as such Governmental Authorities or other Persons may reasonably request in connection therewith. Without limiting Purchaser covenants that, during the generality Interim Period, Purchaser will, in order to consummate the transactions contemplated hereby (including the transfer of the foregoingTransferred Permits to Purchaser), the Company take such reasonable steps as are necessary or desirable, and Parent shall prepare proceed diligently and file the notification in good faith and report forms required to be filed under the HSR Act within five business days following the date of this Agreement. The Company and Parent shall prepare and file any notification or other document required to be filed under any applicable foreign antitrust or competition-related Legal Requirement of the jurisdictions set forth in Part 6.2(a) of the Disclosure Schedule (the “Foreign Competition Authorities”) in connection with the Offer, the Merger and the other Contemplated Transactions promptly after the date of this Agreement. The Company and Parent shall respond as promptly as practicable to: (i) any inquiries or requests received from the Federal Trade Commission, the Department of Justice or the Foreign Competition Authorities for additional information or documentation; and (ii) any inquiries or requests received from any state attorney general, other foreign antitrust or competition authority or other Governmental Body in connection with antitrust or related matters. At the request of Parent, the Company shall divest, sell, dispose of, hold separate or take any other action with respect to any of the businesses, product lines or assets of the Acquired Corporations, provided, however, that any such action is conditioned upon the consummation of the Offer or the Merger.
(b) Subject to the confidentiality provisions of the Confidentiality Agreement, Parent and the Company each shall use commercially all reasonable efforts to promptly supply expedite and obtain the other with any information which may be required in order to effectuate any filings (including applications) pursuant to (Purchaser Approvals, and to otherwise comply with its obligations set forth in) Section ý6.2(a). Unless prohibited by Legal Requirements or any Governmental Bodymake all filings with, and subject to the confidentiality provisions of the Confidentiality Agreementgive all notices to, each of Parent and the Company shall: (i) consult with the other prior to taking a position with respect to any such filing; (ii) permit the other to review and discuss in advanceGovernmental Authorities, and consider in good faith the views of the provide such other information and communications to such Governmental Authorities or other Persons, as such Governmental Authorities or other Persons may reasonably request in connection with, any analyses, appearances, presentations, memoranda, briefs, white papers, arguments, opinions and proposals before making or submitting any of the foregoing to any Governmental Body by or on behalf of any party hereto in connection with any Legal Proceeding related solely to this Agreement or the Contemplated Transactions (including any such Legal Proceeding relating to any antitrust, competition or fair trade Legal Requirement); (iii) coordinate with the other in preparing and exchanging such information; and (iv) promptly provide the other (and its counsel) with copies of all filings, notices, analyses, presentations, memoranda, briefs, white papers, opinions, proposals and other submissions (and a summary of any oral presentations) made or submitted by such party with or to any Governmental Body related solely to this Agreement or the Contemplated Transactions. Notwithstanding anything to the contrary in this Section 6.2, Parent and the Company may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section 6.2 as “Outside Counsel Only Material” or otherwise reasonably redact highly confidential content from the materials produced to the other.
(c) Unless prohibited by Legal Requirements or any Governmental Body, each of Parent and the Company shall notify the other promptly upon the receipt of: (i) any communication from any official of any Governmental Body in connection with any filing made pursuant to this Agreement; (ii) knowledge of the commencement or threat of commencement of any Legal Proceeding by or before any Governmental Body with respect to the Contemplated Transactions (and shall keep the other party informed as to the status of any such Legal Proceeding or threat); and (iii) any request by any official of any Governmental Body for any amendment or supplement to any filing made pursuant to this Agreement or any information required to comply with any Legal Requirements applicable to the Contemplated Transactions. Parent shall be entitled to direct any defense of the Offer, the Merger and the other Contemplated Transactions. Unless prohibited by Legal Requirements or any Governmental Body, whenever any event occurs that is required to be set forth in an amendment or supplement to any filing made pursuant to Section 6.2(a), Parent or the Company, as the case may be, shall (promptly upon learning of the occurrence of such event) inform the other of the occurrence of such event and cooperate in filing with the applicable Governmental Body such amendment or supplement.
(d) Parent and the Company shall use commercially reasonable efforts to take, or cause to be taken, all actions necessary to consummate the Offer and the Merger and make effective the other Contemplated Transactionstherewith. Without limiting the generality of the foregoing, each party Party shall provide, and cause its respective Affiliates to provide, true and accurate information in a timely manner with respect to all filings with and notices to Governmental Authorities. Nothing in this Agreement: SECTION 6.1(a) shall be construed to require (i) shall make Purchaser to take any action with respect to filings with or notices to Governmental Authorities that in Purchaser's discretion could materially adversely affect any other proceeding with such Governmental Authorities or (ii) Seller to take any action that would result in the transfer of a Permit to Purchaser prior to Closing. Each Party will cooperate fully in good faith with the other Party with respect to all filings that are required by Law or that such other Party elects to make in connection with the transactions contemplated under this Agreement. Each Party will also cooperate fully in good faith with the other in obtaining all material consents and approvals required under this Agreement.
(if anyb) Each Party will provide the other Party with a reasonable opportunity to review and give provide prior comment upon any notices, filings or other submissions that the Party plans to deliver or submit to any Governmental Authority, and will promptly provide to such other Party a copy of any such notices or filings. Notwithstanding the foregoing, the Parties recognize that as a result of the short time frames available for the preparation and filing of many documents required to be filed in the proceedings seeking the ACC Order, each Party may be able to afford the other Party only a very brief opportunity for prior review of or comment on filings in such proceedings. Each Party will provide prompt notification to the other Party when any approval referred to in SECTION 6.1(a) is obtained, taken, made or given, as applicable, and will advise the other Party of any material communications with any Governmental Authority from which such approval is required regarding any pending application or request for approval by such Governmental Authority of any of the transactions contemplated by this Agreement.
(c) Each Party shall prepare, as soon as is reasonably practicable following the execution of this Agreement, all notices (if any) necessary filings in connection with the transactions contemplated by this Agreement that may be required to be made by such Party at FERC or under the HSR Act. Each Party shall submit such filings as soon as practicable, but, in the case of filings under the HSR Act, in no event later than thirty (30) days after the date that the Parties file their application with FERC, under Section 203 of the Federal Power Act of 1935, and given Part 33 of the FERC Regulations (18 CFR Part 33), for the approval of the transactions contemplated by this Agreement. Unless the Parties agree otherwise at the time of filing, the Parties shall request expedited treatment of filings at FERC and early termination of the waiting period under the HSR Act. The Parties shall promptly make any appropriate or necessary subsequent or supplemental filings and shall cooperate in the preparation of such filings as is reasonably necessary and appropriate.
(d) To the extent that any Transferred Contract or Transferred Permit is not assignable without the consent of another party, then this Agreement shall not constitute an assignment or attempted assignment thereof if such assignment or attempted transfer thereof would constitute a breach thereof or a default thereunder. Without limiting the provisions of SECTION 6.1(a), if any such consent shall not be obtained, or if any attempted assignment of a Transferred Contract or Transferred Permit would be ineffective or would impair Purchaser's rights and obligations such that Purchaser would not in effect acquire the benefit of substantially all of such rights and obligations, Seller shall cooperate with Purchaser in any reasonable arrangement, to the extent legally permissible, designed to provide for Purchaser the benefits intended to be assigned to Purchaser under the Transferred Contract or Transferred Permit, including enforcement at the cost and for the account of Purchaser of any and all rights of Seller against the other party thereto arising out of the breach or cancellation thereof by such party or otherwise. If and to the extent that such arrangement is not made in connection with the Offera manner reasonably satisfactory to Purchaser, the Merger and the other Contemplated Transactions; (ii) Purchaser shall use commercially reasonable efforts to obtain each Consent (if any) required to be obtained (have no obligation pursuant to any applicable Legal Requirement SECTION 2.3 or Contract, or otherwise) by such party in connection with the Offer, the Merger or any of the other Contemplated Transactions; and (iii) shall defend through litigation on the merits any claim asserted in court by the United States Department of Justice or United States Federal Trade Commission under antitrust or competition-related Legal Requirement in order to avoid entry of any decree, order or judgment (whether temporary, preliminary or permanent) that could restrain, delay, or prevent the Closing by the Outside Date. Notwithstanding anything to the contrary herein, nothing in this Agreement shall require Parent or any of its Subsidiaries to, nor shall any Acquired Corporation without the prior written consent of Parent agree or offer to: (A) effect any divestiture of, or hold separate (including by establishing a trust or otherwise), or agree to restrict its ownership or operation of, any business or assets of the Acquired Corporations, Parent or any Subsidiary of Parent, including Acquisition Sub, or to enter into any settlement or consent decree, or agree to any undertaking, otherwise with respect to any business such Transferred Contract or assets Transferred Permit. The provisions of this SECTION 6.1(d) shall not affect the Acquired Corporations, Parent or any Subsidiary right of Parent, including Acquisition Sub, (B) enter into, amend or agree Purchaser not to enter into or amend, any Contract of consummate the Acquired Corporations, Parent or any Subsidiary of Parent, including Acquisition Sub, that imposes any material limitations on transactions contemplated by this Agreement if the ability of Parent or any of its Affiliates conditions to effectively exercise full rights of the shares of Company Common Stock or (C) otherwise waive, abandon or alter any material rights or material Purchaser's obligations of the Acquired Corporations, Parent or any Subsidiary of Parent, including Acquisition Sub. Furthermore, notwithstanding anything to the contrary contained herein, set forth in connection with obtaining any Consent from any third party, without the prior written consent of Parent, none of the Acquired Corporations or any of their respective Representatives, shall pay or commit to pay to such Person whose approval or consent is being solicited any cash or other consideration, make any accommodation or commitment or incur any liability or other obligation to such PersonSECTION 8.5 have not been fulfilled.
Appears in 1 contract
Samples: Asset Purchase Agreement (Pinnacle West Capital Corp)
Regulatory and Other Approvals. (a) Each party The Company, with the cooperation of Buyer as and when reasonably requested, shall use commercially reasonable efforts Commercially Reasonable Efforts necessary to file, as soon as practicable after (i) promptly following the date execution of this Agreement, all noticessubmit a pre-acquisition application to DOE for approval of each Institution to participate in the Title IV Programs following the Merger (“Pre-Closing DOE Review Applications”), reports (ii) obtain the Pre-Closing Educational Consents set forth in Section 6.6(a)(ii) of the Company Disclosure Schedule, (iii) make any other required pre-closing filings or notifications pertaining to the continuation or renewal of any Educational Approvals following Closing, and (iv) provide such other documents required information and communications to be filed by such Governmental Authorities and Educational Agencies or other persons as such Governmental Authorities and Educational Agencies may request in connection with any Education Approval or Pre- or Post-Closing Educational Consent. Each Party will promptly and regularly advise the other Parties concerning the occurrence and status of any material discussions or other communications, whether oral or written, with any Educational Agency, other Governmental Authorities or other third party with respect to any Pre- or Post-Closing Educational Consent, including any difficulties or delays experienced in obtaining any Consent and of any conditions proposed, considered, or requested for any Consent. Buyer shall not contact any Educational Agency or Governmental Body Authority of the Company prior to Closing with respect to the Offer, proposed Merger without the Merger participation and the other Contemplated Transactions, and to submit promptly any additional information requested by any such Governmental Body. Without limiting the generality of the foregoing, the Company and Parent prior consent (which shall prepare and file the notification and report forms required to not unreasonably be filed under the HSR Act within five business days following the date of this Agreement. The Company and Parent shall prepare and file any notification withheld or other document required to be filed under any applicable foreign antitrust or competition-related Legal Requirement of the jurisdictions set forth in Part 6.2(adelayed) of the Disclosure Schedule (the “Foreign Competition Authorities”) in connection with the Offer, the Merger and the other Contemplated Transactions promptly after the date of this Agreement. The Company and Parent shall respond as promptly as practicable to: (i) any inquiries or requests received from the Federal Trade Commission, the Department of Justice or the Foreign Competition Authorities for additional information or documentationCompany; and (ii) any inquiries or requests received from any state attorney general, other foreign antitrust or competition authority or other Governmental Body in connection with antitrust or related matters. At the request of Parent, the Company shall divest, sell, dispose of, hold separate or take any other action with respect to any of the businesses, product lines or assets of the Acquired Corporations, provided, however, that any such action is conditioned upon the consummation prior consent of the Offer Company shall not be required for the Buyer to contact any Educational Agency or Governmental Authority regarding (i) any matters unrelated to the MergerTransactions; or (ii) any matters which pertain solely and exclusively to the Buyer and do not disclose the Transactions. The Company shall provide Buyer, for prior review and comment, each filing proposed to be submitted to any Educational Agency regarding the proposed Merger at least three (3) business days before submitting it to the Educational Agency. The Company and Buyer shall use Commercially Reasonable Efforts to ensure that their respective appropriate officers and employees shall be available to attend, as any Educational Agency may reasonably request, any scheduled hearings or meetings in connection with obtaining any Consent.
(b) Subject to the confidentiality provisions of terms and conditions herein provided, the Confidentiality Agreement, Parent and the Company each Parties shall use take all commercially reasonable efforts to promptly supply the other with any information which may be required in order to effectuate any filings (including applications) pursuant to (and to otherwise comply with its obligations set forth in) Section ý6.2(a). Unless prohibited by Legal Requirements steps necessary or any Governmental Bodydesirable, and subject to the confidentiality provisions of the Confidentiality Agreement, each of Parent proceed diligently and the Company shall: (i) consult with the other prior to taking a position with respect to any such filing; (ii) permit the other to review and discuss in advance, and consider in good faith the views of the other in connection with, any analyses, appearances, presentations, memoranda, briefs, white papers, arguments, opinions and proposals before making or submitting any of the foregoing use all Commercially Reasonable Efforts to any Governmental Body by or on behalf of any party hereto in connection with any Legal Proceeding related solely to this Agreement or the Contemplated Transactions (including any such Legal Proceeding relating to any antitrust, competition or fair trade Legal Requirement); (iii) coordinate with the other in preparing and exchanging such information; and (iv) promptly provide the other (and its counsel) with copies of obtain all filings, notices, analyses, presentations, memoranda, briefs, white papers, opinions, proposals and other submissions (and a summary of any oral presentations) made or submitted by such party with or to any Governmental Body related solely to this Agreement or the Contemplated Transactions. Notwithstanding anything to the contrary in this Section 6.2, Parent and the Company may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section 6.2 as “Outside Counsel Only Material” or otherwise reasonably redact highly confidential content from the materials produced to the other.
(c) Unless prohibited by Legal Requirements or any Governmental Body, each of Parent and the Company shall notify the other promptly upon the receipt of: (i) any communication from any official of any Governmental Body in connection with any filing made pursuant to this Agreement; (ii) knowledge of the commencement or threat of commencement of any Legal Proceeding by or before any Governmental Body with respect to the Contemplated Transactions (and shall keep the other party informed as to the status of any such Legal Proceeding or threat); and (iii) any request approvals required by any official of any Governmental Body for any amendment or supplement to any filing made pursuant to this Agreement or any information required to comply with any Legal Requirements applicable to the Contemplated Transactions. Parent shall be entitled to direct any defense of the Offer, the Merger and the other Contemplated Transactions. Unless prohibited by Legal Requirements or any Governmental Body, whenever any event occurs that is required to be set forth in an amendment or supplement to any filing made pursuant to Section 6.2(a), Parent or the Company, as the case may be, shall (promptly upon learning of the occurrence of such event) inform the other of the occurrence of such event and cooperate in filing with the applicable Governmental Body such amendment or supplement.
(d) Parent and the Company shall use commercially reasonable efforts to take, or cause to be taken, all actions necessary contract to consummate the Offer and the Merger and make effective the other Contemplated Transactions. Without limiting the generality of the foregoing, each party to this Agreement: (i) shall make all filings (if any) and give all notices (if any) required to be made and given by such party in connection with the Offer, the Merger and the other Contemplated Transactions; (ii) shall use commercially reasonable efforts to obtain each Consent (if any) required to be obtained (pursuant to any applicable Legal Requirement or Contract, or otherwise) by such party in connection with the Offer, the Merger or any of the other Contemplated Transactions; and (iii) shall defend through litigation on the merits any claim asserted in court by the United States Department of Justice or United States Federal Trade Commission under antitrust or competition-related Legal Requirement in order to avoid entry of any decree, order or judgment (whether temporary, preliminary or permanent) that could restrain, delay, or prevent the Closing by the Outside Date. Notwithstanding anything to the contrary herein, nothing in this Agreement shall require Parent or any of its Subsidiaries to, nor shall any Acquired Corporation without the prior written consent of Parent agree or offer to: (A) effect any divestiture of, or hold separate (including by establishing a trust or otherwise), or agree to restrict its ownership or operation of, any business or assets of the Acquired Corporations, Parent or any Subsidiary of Parent, including Acquisition Sub, or to enter into any settlement or consent decree, or agree to any undertaking, with respect to any business or assets of the Acquired Corporations, Parent or any Subsidiary of Parent, including Acquisition Sub, (B) enter into, amend or agree to enter into or amend, any Contract of the Acquired Corporations, Parent or any Subsidiary of Parent, including Acquisition Sub, that imposes any material limitations on the ability of Parent or any of its Affiliates to effectively exercise full rights of the shares of Company Common Stock or (C) otherwise waive, abandon or alter any material rights or material obligations of the Acquired Corporations, Parent or any Subsidiary of Parent, including Acquisition Sub. Furthermore, notwithstanding anything to the contrary contained herein, in connection with obtaining any Consent from any third party, without the prior written consent of Parent, none of the Acquired Corporations or any of their respective Representatives, shall pay or commit to pay to such Person whose approval or consent is being solicited any cash or other consideration, make any accommodation or commitment or incur any liability or other obligation to such Person.
Appears in 1 contract
Regulatory and Other Approvals. (a) Each party shall Subject to the provisions of Section 6.6(b) and Section 6.6(c), each Party will cooperate and use (and will cause its respective Affiliates to use, as applicable) its respective commercially reasonable efforts to file, as soon as practicable after the date of this Agreement, all notices, reports and other documents required to be filed by such party with any Governmental Body with respect to the Offer, the Merger and the other Contemplated Transactions, and to submit promptly any additional information requested by any such Governmental Body. Without limiting the generality of the foregoing, the Company and Parent shall prepare and file the notification and report forms required to be filed under the HSR Act within five business days following the date of this Agreement. The Company and Parent shall prepare and file any notification or other document required to be filed under any applicable foreign antitrust or competition-related Legal Requirement of the jurisdictions set forth in Part 6.2(a) of the Disclosure Schedule (the “Foreign Competition Authorities”) in connection with the Offer, the Merger and the other Contemplated Transactions promptly after the date of this Agreement. The Company and Parent shall respond as promptly as practicable to: (i) any inquiries or requests received from the Federal Trade Commission, the Department of Justice or the Foreign Competition Authorities for additional information or documentation; and (ii) any inquiries or requests received from any state attorney general, other foreign antitrust or competition authority or other Governmental Body in connection with antitrust or related matters. At the request of Parent, the Company shall divest, sell, dispose of, hold separate or take any other action with respect to any of the businesses, product lines or assets of the Acquired Corporations, provided, however, that any such action is conditioned upon the consummation of the Offer or the Merger.
(b) Subject to the confidentiality provisions of the Confidentiality Agreement, Parent and the Company each shall use commercially reasonable efforts to promptly supply the other with any information which may be required in order to effectuate any filings (including applications) pursuant to (and to otherwise comply with its obligations set forth in) Section ý6.2(a). Unless prohibited by Legal Requirements or any Governmental Body, and subject to the confidentiality provisions of the Confidentiality Agreement, each of Parent and the Company shall: (i) consult with the other prior to taking a position with respect to any such filing; (ii) permit the other to review and discuss in advance, and consider in good faith the views of the other in connection with, any analyses, appearances, presentations, memoranda, briefs, white papers, arguments, opinions and proposals before making or submitting any of the foregoing to any Governmental Body by or on behalf of any party hereto in connection with any Legal Proceeding related solely to this Agreement or the Contemplated Transactions (including any such Legal Proceeding relating to any antitrust, competition or fair trade Legal Requirement); (iii) coordinate with the other in preparing and exchanging such information; and (iv) promptly provide the other (and its counsel) with copies of all filings, notices, analyses, presentations, memoranda, briefs, white papers, opinions, proposals and other submissions (and a summary of any oral presentations) made or submitted by such party with or to any Governmental Body related solely to this Agreement or the Contemplated Transactions. Notwithstanding anything to the contrary in this Section 6.2, Parent and the Company may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section 6.2 as “Outside Counsel Only Material” or otherwise reasonably redact highly confidential content from the materials produced to the other.
(c) Unless prohibited by Legal Requirements or any Governmental Body, each of Parent and the Company shall notify the other promptly upon the receipt of: (i) any communication from any official of any Governmental Body in connection with any filing made pursuant to this Agreement; (ii) knowledge of the commencement or threat of commencement of any Legal Proceeding by or before any Governmental Body with respect to the Contemplated Transactions (and shall keep the other party informed as to the status of any such Legal Proceeding or threat); and (iii) any request by any official of any Governmental Body for any amendment or supplement to any filing made pursuant to this Agreement or any information required to comply with any Legal Requirements applicable to the Contemplated Transactions. Parent shall be entitled to direct any defense of the Offer, the Merger and the other Contemplated Transactions. Unless prohibited by Legal Requirements or any Governmental Body, whenever any event occurs that is required to be set forth in an amendment or supplement to any filing made pursuant to Section 6.2(a), Parent or the Company, as the case may be, shall (promptly upon learning of the occurrence of such event) inform the other of the occurrence of such event and cooperate in filing with the applicable Governmental Body such amendment or supplement.
(d) Parent and the Company shall use commercially reasonable efforts to take, or cause to be taken, all actions necessary to cause the conditions to the Closing to be satisfied as soon as possible (and by the Outside Closing Date) and to consummate and make effective, as soon as possible, the transactions contemplated hereby, including cooperating with the other Parties in preparing and filing or submitting promptly all documentation to effect all necessary filings, notifications, notices, petitions, statements, registrations, submissions of information, applications, and other documents and (ii) obtain promptly (and by the Outside Closing Date) the Required Approvals and all other approvals, consents, clearances, expirations, or terminations of waiting periods, registrations, permits, releases, authorizations, and other confirmations from any Governmental Authority necessary to consummate the Offer transactions contemplated hereby.
(b) The Parties agree to file (or to cause their respective Affiliates to file) a notification and report form, or other required filings for the Merger Required Approvals regarding the transactions contemplated hereby by the time specified on Schedule 1(a), or such other date mutually agreed upon by the Parties and make effective the other Contemplated Transactions. Without limiting the generality of the foregoing, each party to this Agreement: (i) shall make all filings (if any) exercise commercially reasonable efforts to supply as promptly as practicable thereafter any additional information and give all notices (if any) required to be made and given documentary material reasonably requested by such party any Governmental Authority in connection with obtaining the Offer, Required Approvals. The Parties will also use their commercially reasonable efforts to cause the Merger expiration or termination of the waiting periods for any Required Approval as soon as possible after filing (and by the other Contemplated Transactions; Outside Closing Date).
(iic) shall The Parties will use commercially reasonable efforts to obtain (i) cooperate with each Consent other for any filing or submission with a Governmental Authority for the transactions contemplated hereby and any investigation or other inquiry by or before a Governmental Authority relating to such transactions (if anyincluding any proceeding initiated by a private party), (ii) required to be obtained (pursuant to any applicable Legal Requirement or Contract, or otherwise) by such party in connection with the Offer, the Merger or any of promptly tell the other Contemplated Transactions; and Parties of (and, unless prohibited by applicable Law, deliver if the communication is written) any communication with any Governmental Authority regarding the transactions contemplated hereby (except to the extent such communication contains confidential or proprietary information not directly related to the transactions contemplated hereby), (iii) shall defend through litigation on permit the merits other Parties to review in advance and incorporate such other Parties’ reasonable comments in any claim asserted in court communication to be given by it to any Governmental Authority to obtain any clearances required for the Required Approvals, and (iv) consult with the other Parties before any meeting or teleconference with any Governmental Authority and, to the extent not prohibited by the United States Department of Justice Governmental Authority, allow the other Parties to attend and participate in those meetings and teleconferences required to obtain the expiration or United States Federal Trade Commission under antitrust or competition-related Legal Requirement in order to avoid entry termination of any decree, order or judgment applicable waiting period for the Required Approvals (whether temporary, preliminary or permanent) except that could restrain, delay, or prevent the Closing by the Outside Date. Notwithstanding anything to the contrary herein, nothing in this Agreement shall require Parent or any of its Subsidiaries to, nor shall any Acquired Corporation without the prior written consent of Parent agree or offer to: (A) effect any divestiture of, or hold separate (including by establishing a trust or otherwise), or agree to restrict its ownership or operation of, any business or assets of the Acquired Corporations, Parent or any Subsidiary of Parent, including Acquisition Sub, or to enter into any settlement or consent decree, or agree to any undertakingeach Party may, with respect to any business materials that include negotiating objectives, negotiating strategies, valuation analyses or assets consideration expectations, withhold such materials from, or provide a redacted version of such materials to, the other Parties or, with respect to such materials or any other confidential or proprietary information of such Party, direct its counsel to provide such materials or other confidential or proprietary information pursuant to this clause (c) to outside counsel of the Acquired Corporationsother Parties on an outside counsel-only basis, Parent in which case the receiving Party shall instruct and direct its outside counsel not to provide such information to such other Parties). The Parties will take commercially reasonable efforts to share information protected from disclosure under the attorney-client privilege, work product doctrine, joint-defense privilege, or any Subsidiary of Parentother privilege under this Section 6.6 in a manner to preserve the privilege.
(d) Notwithstanding anything herein to the contrary, including Acquisition Sub, (B) enter into, amend this Section 6.6 shall not require any Party or agree to enter into or amend, any Contract of the Acquired Corporations, Parent or any Subsidiary of Parent, including Acquisition Sub, that imposes any material limitations on the ability of Parent or any of its Affiliates to effectively exercise full rights (1) pay money other than commercially reasonable and customary fees and expenses (of its advisors and of the shares of Company Common Stock or (C) otherwise waive, abandon or alter any material rights or material obligations pursuant to Section 9.8 of the Acquired CorporationsLLC Agreement), Parent commence or participate in any Subsidiary of Parent, including Acquisition Sub. Furthermore, notwithstanding anything to Action (other than the contrary contained herein, filings in connection with obtaining the Required Approvals) with respect to, or offer or grant any Consent from accommodation (financial or otherwise) to, any third party, without (2) divest any of its businesses or agree to limit control or governance, or access to the prior written consent information thereof, (3) enter into any agreement or undertaking that requires the holding of Parentdirect or indirect ownership interests in the Company through proxy holders or in a voting trust, none (4) except for execution and delivery of the Acquired Corporations A&R LLCA, restrict the exercise of its rights to appoint Managers or alter the terms of the LLC Agreement (except for ministerial changes made to reflect Buyer’s admission as a Member of the Company and any amendments requested by Buyer hereunder) or the governance arrangements with respect to the Company, (5) sell any interest in the Company, or (6) place any adverse conditions on, or adversely change or restrict, the operations of their respective Representativesthe Company (any such requirement in this Section 6.6(d)(1)-(6), shall pay or commit to pay to such Person whose approval or consent is being solicited any cash or other consideration, make any accommodation or commitment or incur any liability or other obligation to such Persona “Burdensome Condition”).
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Magellan Midstream Partners Lp)
Regulatory and Other Approvals. (a) Each party shall During the Pre-Closing Period, Buyer and the Sellers shall, in good faith and in a timely manner, use their respective commercially reasonable efforts to filetake or cause to be taken all actions, do or cause to be done all things necessary, proper or advisable, and execute and deliver such documents, as soon as practicable after the date of this Agreement, all notices, reports and other documents may be required to be filed by cause the Closing conditions contained in Articles V and VI applicable to such party to be satisfied, and refrain from taking any actions that would have the effect of delaying, impeding or preventing satisfaction of any of the Closing conditions contained in Articles V and VI applicable to such party; provided that Buyer shall not be required to incur any out-of-pocket expenses in connection with any Governmental Body with respect to the Offer, the Merger and the other Contemplated Transactions, and to submit promptly any additional information requested by any such Governmental Body. matters.
(b) Without limiting the generality of Section 8.2(a), during the foregoingPre-Closing Period, Buyer and the Company Sellers shall use their respective commercially reasonable efforts to make all reasonably necessary or advisable filings with, obtain all reasonably necessary or advisable waivers, consents and Parent shall prepare approvals from the FCC and file any other third parties (including the Contractual Consents). The parties agree to deliver a joint notification and report forms required to be filed under the HSR Act within five FCC seeking approval of the proposed change in control of the Circuits subject to this Agreement no later than one business days day following the date of full execution and delivery of this Agreement. The Company .
(c) During the Pre-Closing Period, Buyer, on the one hand, and Parent shall prepare the Sellers, on the other hand, shall: (i) provide regular written notices to the other party concerning, and file otherwise keep the other party reasonably apprised of, the status of their process of obtaining the FCC Approval, the Contractual Consents and any notification other waivers, consents or other document required approvals to be filed under any applicable foreign antitrust or competition-related Legal Requirement of the jurisdictions set forth in Part 6.2(a) of the Disclosure Schedule (the “Foreign Competition Authorities”) obtained in connection with the Offer, consummation of the Merger transactions contemplated hereby (which shall include correct and the complete copies of any correspondence or other Contemplated Transactions promptly after the date of this Agreement. The Company and Parent shall respond as promptly as practicable to: (i) any inquiries or requests communications received from the Federal Trade CommissionFCC or any other third party in connection therewith, to the Department of Justice or the Foreign Competition Authorities for additional information or documentationextent not prohibited by currently existing confidentiality agreements); and (ii) any inquiries or requests received from any state attorney general, other foreign antitrust or competition authority or other Governmental Body in connection with antitrust or related matters. At the request of Parent, the Company shall divest, sell, dispose of, hold separate or take any other action with respect to any of the businesses, product lines or assets of the Acquired Corporations, provided, however, that any such action is conditioned upon the consummation of the Offer or the Merger.
(b) Subject to the confidentiality provisions of the Confidentiality Agreement, Parent and the Company each shall use commercially reasonable efforts to promptly supply provide the other party with any information which may be required the right to review in order to effectuate any filings (including applications) pursuant to (and to otherwise comply with its obligations set forth in) Section ý6.2(a). Unless prohibited by Legal Requirements or any Governmental Bodyadvance, and subject to the confidentiality provisions of the Confidentiality Agreement, each of Parent and the Company shall: (i) consult with the other prior to taking a position with respect to any such filing; (ii) permit the other to review and discuss in advance, and consider in good faith the views of the other in connection withparty on, any analysesfiling, appearancesconsent or approval request, presentations, memoranda, briefs, white papers, arguments, opinions and proposals before making or submitting any of the foregoing to any Governmental Body by or on behalf of any party hereto in connection with any Legal Proceeding related solely to this Agreement or the Contemplated Transactions (including any such Legal Proceeding relating to any antitrust, competition or fair trade Legal Requirement); (iii) coordinate with the other in preparing and exchanging such information; and (iv) promptly provide the other (and its counsel) with copies of all filings, notices, analyses, presentations, memoranda, briefs, white papers, opinions, proposals and other submissions (and a summary of any oral presentations) made or submitted by such party communication with or to any Governmental Body related solely to this Agreement or the Contemplated Transactions. Notwithstanding anything to the contrary in this Section 6.2, Parent and the Company may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section 6.2 as “Outside Counsel Only Material” or otherwise reasonably redact highly confidential content from the materials produced to the other.
(c) Unless prohibited by Legal Requirements FCC or any Governmental Body, each of Parent and the Company shall notify the other promptly upon the receipt of: (i) any communication from any official of any Governmental Body in connection with any filing made pursuant to this Agreement; (ii) knowledge of the commencement or threat of commencement of any Legal Proceeding by or before any Governmental Body with respect to the Contemplated Transactions (and shall keep the other party informed as to the status of any such Legal Proceeding or threat); and (iii) any request by any official of any Governmental Body for any amendment or supplement to any filing made pursuant to this Agreement or any information required to comply with any Legal Requirements applicable to the Contemplated Transactions. Parent shall be entitled to direct any defense of the Offer, the Merger and the other Contemplated Transactions. Unless prohibited by Legal Requirements or any Governmental Body, whenever any event occurs that is required to be set forth in an amendment or supplement to any filing made pursuant to Section 6.2(a), Parent or the Company, as the case may be, shall (promptly upon learning of the occurrence of such event) inform the other of the occurrence of such event and cooperate in filing with the applicable Governmental Body such amendment or supplement.
(d) Parent and the Company shall use commercially reasonable efforts to take, or cause to be taken, all actions necessary to consummate the Offer and the Merger and make effective the other Contemplated Transactions. Without limiting the generality of the foregoing, each party to this Agreement: (i) shall make all filings (if any) and give all notices (if any) required to be made and given by such third party in connection with the Offer, the Merger and the other Contemplated Transactions; (ii) shall use commercially reasonable efforts to obtain each Consent (if any) required to be obtained (pursuant to any applicable Legal Requirement or Contract, or otherwise) by such party in connection with the Offer, the Merger or any their process of the other Contemplated Transactions; and (iii) shall defend through litigation on the merits any claim asserted in court by the United States Department of Justice or United States Federal Trade Commission under antitrust or competition-related Legal Requirement in order to avoid entry of any decree, order or judgment (whether temporary, preliminary or permanent) that could restrain, delay, or prevent the Closing by the Outside Date. Notwithstanding anything to the contrary herein, nothing in this Agreement shall require Parent or any of its Subsidiaries to, nor shall any Acquired Corporation without the prior written consent of Parent agree or offer to: (A) effect any divestiture of, or hold separate (including by establishing a trust or otherwise), or agree to restrict its ownership or operation of, any business or assets of the Acquired Corporations, Parent or any Subsidiary of Parent, including Acquisition Sub, or to enter into any settlement or consent decree, or agree to any undertaking, with respect to any business or assets of the Acquired Corporations, Parent or any Subsidiary of Parent, including Acquisition Sub, (B) enter into, amend or agree to enter into or amend, any Contract of the Acquired Corporations, Parent or any Subsidiary of Parent, including Acquisition Sub, that imposes any material limitations on the ability of Parent or any of its Affiliates to effectively exercise full rights of the shares of Company Common Stock or (C) otherwise waive, abandon or alter any material rights or material obligations of the Acquired Corporations, Parent or any Subsidiary of Parent, including Acquisition Sub. Furthermore, notwithstanding anything to the contrary contained herein, in connection with obtaining any Consent from any third partysuch waiver, without the prior written consent of Parent, none of the Acquired Corporations or any of their respective Representatives, shall pay or commit to pay to such Person whose approval or consent is being solicited any cash or other consideration, make any accommodation or commitment or incur any liability or other obligation to such Personapproval.
Appears in 1 contract
Samples: Asset Purchase Agreement (Capital Growth Systems Inc /Fl/)
Regulatory and Other Approvals. During the Interim Period:
(a) Each party shall use The Parties will, in order to consummate the transactions contemplated hereby, (i) take all commercially reasonable efforts steps necessary, and proceed diligently and in good faith and use all commercially reasonable efforts, as promptly as practicable, to fileobtain or make, as applicable, all necessary or appropriate waivers, consents, approvals and authorizations of, filings with and notices to all third parties and Governmental Authorities required in order to consummate the transactions contemplated by this Agreement and (ii) provide such other information and communications to such Governmental Authorities or other Persons as such Governmental Authorities or other Persons may reasonably request in connection therewith.
(b) The Parties will provide prompt notification to each other when any such waiver, consent, approval, authorization, filing or notice referred to in Section 7.13(a) is obtained, taken, made, given or denied, as applicable, and will advise each other of any material communications with any Governmental Authority or other Person regarding any of the transactions contemplated by this Agreement.
(c) In furtherance of the foregoing covenants:
(i) Each Party shall prepare, as soon as practicable after is practical following the date execution of this Agreement, all necessary filings in connection with the transactions contemplated by this Agreement that may be required by FERC, the PUCT or other Governmental Authority or under the HSR Act or any other federal, state or local Laws. Each Party shall submit such filings as soon as practicable, but in no event later than ten (10) Business Days after the execution hereof for filings with the FERC, and ten (10) Business Days after the execution hereof for filings under the HSR Act. The Parties shall request expedited treatment of any such filings, shall promptly furnish each other with copies of any notices, reports correspondence or other written communication from the relevant Governmental Authority, shall promptly make any appropriate or necessary subsequent or supplemental filings and shall cooperate in the preparation of such filings as is reasonably necessary and appropriate (provided that HSR Act filings and attachments need not be exchanged or preapproved by the other documents required to be filed by such party and provided that any exchange of information between Sellers and Buyer in connection with any Governmental Body filings shall be done in a manner that complies with respect applicable antitrust laws). Buyer and Sellers shall each pay 50% of the filing fees in connection with submissions by the Parties pursuant to the OfferHSR Act. Except as described in the immediately preceding sentence, each Party shall bear its own costs incurred in connection with the Merger and the other Contemplated Transactionsfiling.
(ii) The Parties shall not, and shall cause their respective Affiliates not to, take any action that could reasonably be expected to submit promptly adversely affect the approval of any additional information requested by Governmental Authority of any such Governmental Bodyof the aforementioned filings. Without limiting the generality foregoing, Buyer agrees that except as may be agreed in writing by Sellers or as may be expressly permitted pursuant to this Agreement, it shall not, and shall not permit any of its subsidiaries or Affiliates to, acquire, develop or construct any electric generation or transmission facility, enter into any Contract with respect to any electric generation or transmission facility, or otherwise obtain control over any electric generation or transmission facility, located within the State of Texas or the control areas operated by ERCOT or take any action with any Governmental Authority relating to the foregoing, or agree, in writing or otherwise, to do any of the foregoing, the Company and Parent shall prepare and file the notification and report forms required in each case which could reasonably be expected to be filed under the HSR Act within five business days following the date of this Agreement. The Company and Parent shall prepare and file any notification or other document required to be filed under any applicable foreign antitrust or competition-related Legal Requirement of the jurisdictions set forth in Part 6.2(a) of the Disclosure Schedule (the “Foreign Competition Authorities”) in connection with the Offer, the Merger and the other Contemplated Transactions promptly after the date of this Agreement. The Company and Parent shall respond as promptly as practicable to: (i) any inquiries or requests received from the Federal Trade Commission, the Department of Justice or the Foreign Competition Authorities for additional information or documentation; and (ii) any inquiries or requests received from any state attorney general, other foreign antitrust or competition authority or other Governmental Body in connection with antitrust or related matters. At the request of Parent, the Company shall divest, sell, dispose of, hold separate or take any other action with respect to any of the businesses, product lines or assets of the Acquired Corporations, provided, however, that any such action is conditioned upon materially delay the consummation of the Offer transactions contemplated hereby or result in the Mergerfailure to satisfy any condition to consummation of the transactions contemplated hereby.
(biii) Subject Buyer shall cooperate in good faith with the Governmental Authorities and undertake promptly any and all action required to complete lawfully the confidentiality provisions of the Confidentiality transactions contemplated by this Agreement, Parent including proffering and consenting to a governmental order providing for the Company each shall use commercially reasonable efforts to promptly supply sale or other disposition, or the holding separate, of particular Acquired Assets or of any other with any information which may be required assets or lines of business of Buyer or its Affiliates in order to effectuate remedy any filings (including applications) pursuant to (and to otherwise comply with its obligations set forth in) Section ý6.2(a). Unless prohibited by Legal Requirements or competition concerns that any Governmental Body, and subject to Authority may have. The entry by any Governmental Authority in any legal proceeding of a governmental order permitting the confidentiality provisions consummation of the Confidentiality Agreement, each of Parent and the Company shall: (i) consult with the other prior to taking a position with respect to any such filing; (ii) permit the other to review and discuss in advance, and consider in good faith the views of the other in connection with, any analyses, appearances, presentations, memoranda, briefs, white papers, arguments, opinions and proposals before making or submitting transactions contemplated hereby but requiring any of the foregoing assets or lines of business of Buyer or its Affiliates to any Governmental Body by be held separate or on behalf sold or disposed of any party hereto in connection with any Legal Proceeding related solely to this Agreement or the Contemplated Transactions thereafter (including the Acquired Assets) shall not be deemed a failure to satisfy any such Legal Proceeding relating condition to any antitrust, competition or fair trade Legal Requirement); (iii) coordinate with the other in preparing and exchanging such information; and (iv) promptly provide the other (and its counsel) with copies of all filings, notices, analyses, presentations, memoranda, briefs, white papers, opinions, proposals and other submissions (and a summary of any oral presentations) made or submitted by such party with or to any Governmental Body related solely to this Agreement or the Contemplated Transactions. Notwithstanding anything to the contrary in this Section 6.2, Parent and the Company may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section 6.2 as “Outside Counsel Only Material” or otherwise reasonably redact highly confidential content from the materials produced to the other.
(c) Unless prohibited by Legal Requirements or any Governmental Body, each of Parent and the Company shall notify the other promptly upon the receipt of: (i) any communication from any official of any Governmental Body in connection with any filing made pursuant to this Agreement; (ii) knowledge of the commencement or threat of commencement of any Legal Proceeding by or before any Governmental Body with respect to the Contemplated Transactions (and shall keep the other party informed as to the status of any such Legal Proceeding or threat); and (iii) any request by any official of any Governmental Body for any amendment or supplement to any filing made pursuant to this Agreement or any information required to comply with any Legal Requirements applicable to the Contemplated Transactions. Parent shall be entitled to direct any defense of the Offer, the Merger and the other Contemplated Transactions. Unless prohibited by Legal Requirements or any Governmental Body, whenever any event occurs that is required to be set forth in an amendment or supplement to any filing made pursuant to Section 6.2(a), Parent or the Company, as the case may be, shall (promptly upon learning of the occurrence of such event) inform the other of the occurrence of such event and cooperate in filing with the applicable Governmental Body such amendment or supplementClosing.
(d) Parent and Each Party agrees that, after the Company shall use commercially reasonable efforts Closing Date, it will cooperate in good faith with the other Parties to take, or cause to be takencomplete in a timely manner, all actions necessary to consummate the Offer post-closing filings and the Merger and make effective the other Contemplated Transactions. Without limiting the generality of the foregoing, each party to this Agreement: (i) shall make all filings (if any) and give all notices (if any) required to be made and given by such party in connection with the Offer, the Merger and the other Contemplated Transactions; (ii) shall use commercially reasonable efforts to obtain each Consent (if any) required to be obtained (pursuant to any applicable Legal Requirement or Contract, or otherwise) by such party in connection with the Offer, the Merger FERC or any of the other Contemplated Transactions; and (iii) shall defend through litigation on the merits any claim asserted in court by the United States Department of Justice or United States Federal Trade Commission under antitrust or competition-related Legal Requirement in order to avoid entry of any decree, order or judgment (whether temporary, preliminary or permanent) that could restrain, delay, or prevent the Closing by the Outside Date. Notwithstanding anything to the contrary herein, nothing in this Agreement shall require Parent or any of its Subsidiaries to, nor shall any Acquired Corporation without the prior written consent of Parent agree or offer to: (A) effect any divestiture of, or hold separate (including by establishing a trust or otherwise), or agree to restrict its ownership or operation of, any business or assets of the Acquired Corporations, Parent or any Subsidiary of Parent, including Acquisition Sub, or to enter into any settlement or consent decree, or agree to any undertaking, with respect to any business or assets of the Acquired Corporations, Parent or any Subsidiary of Parent, including Acquisition Sub, (B) enter into, amend or agree to enter into or amend, any Contract of the Acquired Corporations, Parent or any Subsidiary of Parent, including Acquisition Sub, that imposes any material limitations on the ability of Parent or any of its Affiliates to effectively exercise full rights of the shares of Company Common Stock or (C) otherwise waive, abandon or alter any material rights or material obligations of the Acquired Corporations, Parent or any Subsidiary of Parent, including Acquisition Sub. Furthermore, notwithstanding anything to the contrary contained herein, in connection with obtaining any Consent from any third party, without the prior written consent of Parent, none of the Acquired Corporations or any of their respective Representatives, shall pay or commit to pay to such Person whose approval or consent is being solicited any cash or other consideration, make any accommodation or commitment or incur any liability or other obligation to such PersonGovernmental Authorities.
Appears in 1 contract
Regulatory and Other Approvals. (a) Each party During the Pre-Closing Period, the Purchaser, each of the Companies and the Sellers shall (and the Sellers shall cause each of the Companies to), in good faith and in a timely manner, use their respective commercially reasonable efforts to filetake or cause to be taken all actions, do or cause to be done all things necessary, proper or advisable, and execute and deliver such documents, as soon as practicable after the date of this Agreement, all notices, reports and other documents may be required to be filed by cause the Closing conditions contained in Article VI applicable to such party to be satisfied, and refrain from taking any actions that would have the effect of delaying, impeding or preventing satisfaction of any of the Closing conditions contained in Article VI applicable to such party; provided that the Purchaser shall not be required to incur any out-of-pocket expenses in connection with any Governmental Body with respect to the Offer, the Merger and the other Contemplated Transactions, and to submit promptly any additional information requested by any such Governmental Body. matters.
(b) Without limiting the generality of Section 5.2(a), during the foregoingPre-Closing Period, the Company Purchaser, each of the Companies and Parent the Sellers shall prepare (and file the notification Sellers shall cause each of the Companies to) use their respective commercially reasonable efforts to make all reasonably necessary or advisable filings with, obtain all reasonably necessary or advisable waivers, consents and report forms required approvals from Governmental Authorities and any other third parties (including the FCC Approval and the Contractual Consents).
(c) During the Pre-Closing Period, the Purchaser, on the one hand, and the Sellers, on the other hand, shall: (i) provide regular written notices to the other party concerning, and otherwise keep the other party reasonably apprised of, the status of their process of obtaining the FCC Approval, the Contractual Consents and any other waivers, consents or approvals to be filed under the HSR Act within five business days following the date of this Agreement. The Company and Parent shall prepare and file any notification or other document required to be filed under any applicable foreign antitrust or competition-related Legal Requirement of the jurisdictions set forth in Part 6.2(a) of the Disclosure Schedule (the “Foreign Competition Authorities”) obtained in connection with the Offer, consummation of the Merger transactions contemplated hereby (which shall include correct and the complete copies of any correspondence or other Contemplated Transactions promptly after the date of this Agreement. The Company and Parent shall respond as promptly as practicable to: (i) any inquiries or requests communications received from the Federal Trade CommissionFCC, the Department of Justice any other Governmental Authority or the Foreign Competition Authorities for additional information or documentationany other third party in connection therewith); and (ii) any inquiries or requests received from any state attorney general, other foreign antitrust or competition authority or other Governmental Body in connection with antitrust or related matters. At the request of Parent, the Company shall divest, sell, dispose of, hold separate or take any other action with respect to any of the businesses, product lines or assets of the Acquired Corporations, provided, however, that any such action is conditioned upon the consummation of the Offer or the Merger.
(b) Subject to the confidentiality provisions of the Confidentiality Agreement, Parent and the Company each shall use commercially reasonable efforts to promptly supply provide the other party with any information which may be required the right to review in order to effectuate any filings (including applications) pursuant to (and to otherwise comply with its obligations set forth in) Section ý6.2(a). Unless prohibited by Legal Requirements or any Governmental Bodyadvance, and subject to the confidentiality provisions of the Confidentiality Agreement, each of Parent and the Company shall: (i) consult with the other prior to taking a position with respect to any such filing; (ii) permit the other to review and discuss in advance, and consider in good faith the views of the other in connection withparty on, any analysesfiling, appearancesconsent or approval request, presentations, memoranda, briefs, white papers, arguments, opinions and proposals before making or submitting any of the foregoing to any Governmental Body by or on behalf of any party hereto in connection with any Legal Proceeding related solely to this Agreement or the Contemplated Transactions (including any such Legal Proceeding relating to any antitrust, competition or fair trade Legal Requirement); (iii) coordinate with the other in preparing and exchanging such information; and (iv) promptly provide the other (and its counsel) with copies of all filings, notices, analyses, presentations, memoranda, briefs, white papers, opinions, proposals and other submissions (and a summary of any oral presentations) made or submitted by such party communication with or to the FCC, any other Governmental Body related solely to this Agreement or the Contemplated Transactions. Notwithstanding anything to the contrary in this Section 6.2, Parent and the Company may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section 6.2 as “Outside Counsel Only Material” or otherwise reasonably redact highly confidential content from the materials produced to the other.
(c) Unless prohibited by Legal Requirements Authority or any Governmental Body, each of Parent and the Company shall notify the other promptly upon the receipt of: (i) any communication from any official of any Governmental Body in connection with any filing made pursuant to this Agreement; (ii) knowledge of the commencement or threat of commencement of any Legal Proceeding by or before any Governmental Body with respect to the Contemplated Transactions (and shall keep the other party informed as to the status of any such Legal Proceeding or threat); and (iii) any request by any official of any Governmental Body for any amendment or supplement to any filing made pursuant to this Agreement or any information required to comply with any Legal Requirements applicable to the Contemplated Transactions. Parent shall be entitled to direct any defense of the Offer, the Merger and the other Contemplated Transactions. Unless prohibited by Legal Requirements or any Governmental Body, whenever any event occurs that is required to be set forth in an amendment or supplement to any filing made pursuant to Section 6.2(a), Parent or the Company, as the case may be, shall (promptly upon learning of the occurrence of such event) inform the other of the occurrence of such event and cooperate in filing with the applicable Governmental Body such amendment or supplement.
(d) Parent and the Company shall use commercially reasonable efforts to take, or cause to be taken, all actions necessary to consummate the Offer and the Merger and make effective the other Contemplated Transactions. Without limiting the generality of the foregoing, each party to this Agreement: (i) shall make all filings (if any) and give all notices (if any) required to be made and given by such third party in connection with the Offer, the Merger and the other Contemplated Transactions; (ii) shall use commercially reasonable efforts to obtain each Consent (if any) required to be obtained (pursuant to any applicable Legal Requirement or Contract, or otherwise) by such party in connection with the Offer, the Merger or any their process of the other Contemplated Transactions; and (iii) shall defend through litigation on the merits any claim asserted in court by the United States Department of Justice or United States Federal Trade Commission under antitrust or competition-related Legal Requirement in order to avoid entry of any decree, order or judgment (whether temporary, preliminary or permanent) that could restrain, delay, or prevent the Closing by the Outside Date. Notwithstanding anything to the contrary herein, nothing in this Agreement shall require Parent or any of its Subsidiaries to, nor shall any Acquired Corporation without the prior written consent of Parent agree or offer to: (A) effect any divestiture of, or hold separate (including by establishing a trust or otherwise), or agree to restrict its ownership or operation of, any business or assets of the Acquired Corporations, Parent or any Subsidiary of Parent, including Acquisition Sub, or to enter into any settlement or consent decree, or agree to any undertaking, with respect to any business or assets of the Acquired Corporations, Parent or any Subsidiary of Parent, including Acquisition Sub, (B) enter into, amend or agree to enter into or amend, any Contract of the Acquired Corporations, Parent or any Subsidiary of Parent, including Acquisition Sub, that imposes any material limitations on the ability of Parent or any of its Affiliates to effectively exercise full rights of the shares of Company Common Stock or (C) otherwise waive, abandon or alter any material rights or material obligations of the Acquired Corporations, Parent or any Subsidiary of Parent, including Acquisition Sub. Furthermore, notwithstanding anything to the contrary contained herein, in connection with obtaining any Consent from any third partysuch waiver, without the prior written consent of Parent, none of the Acquired Corporations or any of their respective Representatives, shall pay or commit to pay to such Person whose approval or consent is being solicited any cash or other consideration, make any accommodation or commitment or incur any liability or other obligation to such Personapproval.
Appears in 1 contract
Samples: Purchase Agreement (Global Telecom & Technology, Inc.)
Regulatory and Other Approvals. (a) Each party shall Subject to the terms and conditions of this Agreement and the other Transaction Documents, each of MedClean and BMTS will use commercially reasonable efforts to file, as soon as practicable after the date of this Agreement, all notices, reports and other documents required to be filed by such party with any Governmental Body with respect to the Offer, the Merger and the other Contemplated Transactions, and to submit promptly any additional information requested by any such Governmental Bodydo. Without limiting the generality of the foregoing, the Company and Parent shall prepare and file the notification and report forms required to be filed under the HSR Act within five business days following the date of this Agreement. The Company and Parent shall prepare and file any notification or other document required to be filed under any applicable foreign antitrust or competition-related Legal Requirement of the jurisdictions set forth in Part 6.2(a) of the Disclosure Schedule (the “Foreign Competition Authorities”) in connection with the Offer, the Merger and the other Contemplated Transactions promptly after the date of this Agreement. The Company and Parent shall respond as promptly as practicable to: (i) any inquiries or requests received from the Federal Trade Commission, the Department of Justice or the Foreign Competition Authorities for additional information or documentation; and (ii) any inquiries or requests received from any state attorney general, other foreign antitrust or competition authority or other Governmental Body in connection with antitrust or related matters. At the request of Parent, the Company shall divest, sell, dispose of, hold separate or take any other action with respect to any of the businesses, product lines or assets of the Acquired Corporations, provided, however, that any such action is conditioned upon the consummation of the Offer or the Merger.
(b) Subject to the confidentiality provisions of the Confidentiality Agreement, Parent and the Company each shall use commercially reasonable efforts to promptly supply the other with any information which may be required in order to effectuate any filings (including applications) pursuant to (and to otherwise comply with its obligations set forth in) Section ý6.2(a). Unless prohibited by Legal Requirements or any Governmental Body, and subject to the confidentiality provisions of the Confidentiality Agreement, each of Parent and the Company shall: (i) consult with the other prior to taking a position with respect to any such filing; (ii) permit the other to review and discuss in advance, and consider in good faith the views of the other in connection with, any analyses, appearances, presentations, memoranda, briefs, white papers, arguments, opinions and proposals before making or submitting any of the foregoing to any Governmental Body by or on behalf of any party hereto in connection with any Legal Proceeding related solely to this Agreement or the Contemplated Transactions (including any such Legal Proceeding relating to any antitrust, competition or fair trade Legal Requirement); (iii) coordinate with the other in preparing and exchanging such information; and (iv) promptly provide the other (and its counsel) with copies of all filings, notices, analyses, presentations, memoranda, briefs, white papers, opinions, proposals and other submissions (and a summary of any oral presentations) made or submitted by such party with or to any Governmental Body related solely to this Agreement or the Contemplated Transactions. Notwithstanding anything to the contrary in this Section 6.2, Parent and the Company may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section 6.2 as “Outside Counsel Only Material” or otherwise reasonably redact highly confidential content from the materials produced to the other.
(c) Unless prohibited by Legal Requirements or any Governmental Body, each of Parent and the Company shall notify the other promptly upon the receipt of: (i) any communication from any official of any Governmental Body in connection with any filing made pursuant to this Agreement; (ii) knowledge of the commencement or threat of commencement of any Legal Proceeding by or before any Governmental Body with respect to the Contemplated Transactions (and shall keep the other party informed as to the status of any such Legal Proceeding or threat); and (iii) any request by any official of any Governmental Body for any amendment or supplement to any filing made pursuant to this Agreement or any information required to comply with any Legal Requirements applicable to the Contemplated Transactions. Parent shall be entitled to direct any defense of the Offer, the Merger and the other Contemplated Transactions. Unless prohibited by Legal Requirements or any Governmental Body, whenever any event occurs that is required to be set forth in an amendment or supplement to any filing made pursuant to Section 6.2(a), Parent or the Company, as the case may be, shall (promptly upon learning of the occurrence of such event) inform the other of the occurrence of such event and cooperate in filing with the applicable Governmental Body such amendment or supplement.
(d) Parent and the Company shall use commercially reasonable efforts to take, or cause to be takendone, all things necessary, proper or advisable to, as promptly as practicable, obtain all consents, approvals or actions necessary of, make all filings with and give all notices to any court, tribunal or administrative, governmental or regulatory body, agency, commission, division, department, public body or other authority, whether federal, state, local or foreign (each a Governmental Entity) or any other public or private third parties required of MedClean or BMTS to consummate the Offer and the Merger and make effective provide such other information and communications to such Governmental Entities or other public or private third parties as the other Contemplated Transactionsparty hereto or such Governmental Entities or other public or private third parties may reasonably request. Without limiting the generality In addition to and not in limitation of the foregoing, each party of the parties will (a) take promptly all actions necessary to this Agreement: make the filings required of MedClean or BMTS or their affiliates under the Hxxx-Xxxxx-Xxxxxx Act and under comparable merger notification or competition laws of non-U.S. jurisdictions, (ib) shall make all filings (if any) and give all notices (if any) required to be made and given comply at the earliest practicable date with any request for additional information received by such party or its affiliates from the Federal Trade Commission (the FTC) or the Antitrust Division of the Department of Justice (the Antitrust Division) pursuant to the Hxxx-Xxxxx-Xxxxxx Actor the authorities of such other jurisdictions, and (c) cooperate with the other party in connection with such party’s filings under the OfferHxxx-Xxxxx-Xxxxxx Act and in connection with resolving any investigation or other inquiry concerning the Merger or the other matters contemplated by this Agreement commenced by the FTC, the Merger Antitrust Division, state attorneys general or any other Governmental Entity. In furtherance and not in limitation of the other Contemplated Transactions; (ii) covenants in this Section 3.7 MedClean and BMTS shall each use commercially all reasonable efforts to obtain each Consent (resolve such objections, if any) required to , as may be obtained (pursuant to any applicable Legal Requirement or Contract, or otherwise) by such party in connection with the Offer, the Merger or any of the other Contemplated Transactions; and (iii) shall defend through litigation on the merits any claim asserted in court by the United States Department of Justice or United States Federal Trade Commission under antitrust or competition-related Legal Requirement in order to avoid entry of any decree, order or judgment (whether temporary, preliminary or permanent) that could restrain, delay, or prevent the Closing by the Outside Date. Notwithstanding anything to the contrary herein, nothing in this Agreement shall require Parent or any of its Subsidiaries to, nor shall any Acquired Corporation without the prior written consent of Parent agree or offer to: (A) effect any divestiture of, or hold separate (including by establishing a trust or otherwise), or agree to restrict its ownership or operation of, any business or assets of the Acquired Corporations, Parent or any Subsidiary of Parent, including Acquisition Sub, or to enter into any settlement or consent decree, or agree to any undertaking, with respect to any business transactions contemplated by this Agreement by any Governmental Entity. If any administrative, judicial or assets legislative action or proceeding is threatened to be instituted by any such authority challenging any of the Acquired Corporations, Parent transactions contemplated by this Agreement. MedClean and BMTS will each cooperate to contest and resist the institution of any such action or any Subsidiary of Parent, including Acquisition Sub, (B) enter into, amend or agree to enter into or amend, any Contract of the Acquired Corporations, Parent or any Subsidiary of Parent, including Acquisition Sub, that imposes any material limitations on the ability of Parent or any of its Affiliates to effectively exercise full rights of the shares of Company Common Stock or (C) otherwise waive, abandon or alter any material rights or material obligations of the Acquired Corporations, Parent or any Subsidiary of Parent, including Acquisition Sub. Furthermore, notwithstanding anything to the contrary contained herein, in connection with obtaining any Consent from any third party, without the prior written consent of Parent, none of the Acquired Corporations or any of their respective Representatives, shall pay or commit to pay to such Person whose approval or consent is being solicited any cash or other consideration, make any accommodation or commitment or incur any liability or other obligation to such Personproceeding.
Appears in 1 contract
Regulatory and Other Approvals. During the Interim Period:
(a) Each party Party shall use commercially reasonable efforts attempt to file, as soon as practicable after the date of this Agreement, all notices, reports and other documents required to be filed by such party with any Governmental Body with respect to the Offer, the Merger and the other Contemplated Transactions, and to submit promptly any additional information requested by any such Governmental Body. Without limiting the generality of the foregoing, the Company and Parent shall prepare and file the notification and report forms required to be filed under the HSR Act within five business days following the date of this Agreement. The Company and Parent shall prepare and file any notification or other document required to be filed under any applicable foreign antitrust or competition-related Legal Requirement of the jurisdictions set forth in Part 6.2(a) of the Disclosure Schedule (the “Foreign Competition Authorities”) in connection with the Offer, the Merger and the other Contemplated Transactions promptly after the date of this Agreement. The Company and Parent shall respond obtain as promptly as practicable to: (i) any inquiries all consents and approvals that either Party or requests received from its respective Affiliates are required to obtain in order to consummate the Federal Trade Commissiontransactions contemplated hereby; provided that, for purposes of clarification, and notwithstanding anything to the contrary in this Agreement, the Department of Justice or the Foreign Competition Authorities for additional information or documentation; and (ii) any inquiries or requests received from any state attorney general, other foreign antitrust or competition authority or other Governmental Body in connection with antitrust or related matters. At the request of Parent, the Company shall divest, sell, dispose of, hold separate or take any other action with respect to any obtaining of the businessesconsents and approvals will not be a condition to the Closing except to the extent set forth in Articles VI or VII, product lines or assets of the Acquired Corporations, provided, however, that any such action is conditioned upon the consummation of the Offer or the Mergeras applicable.
(b) Subject to the confidentiality provisions of the Confidentiality Agreement, Parent and the Company each Each Party shall use commercially reasonable efforts to promptly supply the other with any information which may be required in order to effectuate any filings (including applications) pursuant to (and to otherwise comply with its obligations set forth in) Section ý6.2(a). Unless prohibited by Legal Requirements or any Governmental Body, and subject to the confidentiality provisions of the Confidentiality Agreement, each of Parent and the Company shall: (i) consult with make or cause to be made the other prior filings required of the Person or any of its applicable Affiliates under any Laws applicable to taking a position it with respect to the transactions contemplated by this Agreement and to pay any such filingfees due of it in connection with the filings, as promptly as is reasonably practicable, provided that, for purposes of clarification, and notwithstanding anything to the contrary in this Agreement, the filings and payments will not be conditions to the Closing except to the extent set forth in Articles VI and VII; (ii) permit cooperate with the other Party and furnish the information that is necessary in connection with the other Party’s filings; (iii) use reasonable efforts to review and discuss in advancecause the expiration of the notice or waiting periods under any Laws applicable to it with respect to the consummation of the transactions contemplated by this Agreement as promptly as is reasonably practicable; (iv) promptly inform the other Party of any communication from or to, and consider any proposed understanding or agreement with, any Governmental Authority in good faith the views respect of the filings; (v) reasonably consult and cooperate with the other Party in connection with, with any analyses, appearances, presentations, memoranda, briefs, white papers, arguments, and opinions and proposals before making made or submitting any of the foregoing to any Governmental Body submitted by or on behalf of any party hereto Party in connection with any Legal Proceeding related solely to this Agreement all meetings, actions or the Contemplated Transactions (including any such Legal Proceeding other Proceedings with Governmental Authorities relating to any antitrust, competition or fair trade Legal Requirement)the filings; (iiivi) coordinate comply, as promptly as is reasonably practicable, with any requests received by the Party under any Laws for additional information, documents or other in preparing and exchanging such informationmaterials with respect to the filings; and (ivvii) promptly provide attempt to resolve any objections as may be asserted by any Governmental Authority with respect to the transactions contemplated by this Agreement.
(c) If a Party (or any of its applicable Affiliates) intends to participate in any meeting with any Governmental Authority with respect to the filings and if permitted by, or acceptable to, the applicable Governmental Authority, it shall give the other Party reasonable prior notice of, and an opportunity to participate in, the meeting.
(and its counseld) In connection with copies of all any such filings, noticesthe Parties shall cooperate in good faith with Governmental Authorities and undertake promptly any and all action required to lawfully complete the transactions contemplated by this Agreement.
(e) Each Party shall provide prompt notification to the other when it becomes aware that any such consent or approval referred to in this Section 5.1 is obtained, analysestaken, presentationsmade, memorandagiven or denied, briefsas applicable.
(f) In furtherance of the foregoing covenants:
(i) Each Party shall prepare, white papersor cause its Affiliates to prepare, opinionsas soon as is practicable following the execution of this Agreement, proposals all necessary filings applicable to it and other submissions (and a summary of any oral presentations) made or submitted in connection with the transactions contemplated by such party with or to any Governmental Body related solely to this Agreement or the Contemplated Transactions. Notwithstanding that may be required under any Laws; provided that, for purposes of clarification, and notwithstanding anything to the contrary in this Section 6.2Agreement, Parent the filings will not be conditions to the Closing except to the extent set forth in Articles VI and VII. Specifically, Xxxxx agrees to submit a new application within two (2) business days of the Company mayexecution of this Agreement, and Xxxxxx agrees to file Ownership Change and Location Change applications within four (4) business days following Buyer’s submission of Application. Buyer will provide Seller the Application ID number at that time, as each deems advisable part of the requirements for their Ownership Change and necessary, reasonably designate any competitively sensitive material provided to the other under this Section 6.2 as “Outside Counsel Only Material” or otherwise reasonably redact highly confidential content from the materials produced to the otherLocation Change applications.
(cii) Unless prohibited by Legal Requirements or any Governmental Body, each of Parent and the Company Each Party shall notify promptly furnish the other Party with copies of any notices, correspondence or other written communication received by it from the relevant Governmental Authority, shall promptly upon make any appropriate or necessary subsequent or supplemental filings required of it, and shall cooperate in the receipt of: preparation of the filings as is reasonably necessary and appropriate.
(iiii) Each Party shall not, and shall cause its respective Affiliates not to, take any communication from any official action that could reasonably be expected to adversely affect the approval of any Governmental Body in connection with any filing made pursuant to this Agreement; (ii) knowledge of the commencement or threat of commencement of any Legal Proceeding by or before any Governmental Body with respect to the Contemplated Transactions (and shall keep the other party informed as to the status of any such Legal Proceeding or threat); and (iii) any request by any official of any Governmental Body for any amendment or supplement to any filing made pursuant to this Agreement or any information required to comply with any Legal Requirements applicable to the Contemplated Transactions. Parent shall be entitled to direct any defense of the Offer, the Merger and the other Contemplated Transactions. Unless prohibited by Legal Requirements or any Governmental Body, whenever any event occurs that is required to be set forth in an amendment or supplement to any filing made pursuant to Section 6.2(a), Parent or the Company, as the case may be, shall (promptly upon learning of the occurrence of such event) inform the other of the occurrence of such event and cooperate in filing with the applicable Governmental Body such amendment or supplementAuthority.
(d) Parent and the Company shall use commercially reasonable efforts to take, or cause to be taken, all actions necessary to consummate the Offer and the Merger and make effective the other Contemplated Transactions. Without limiting the generality of the foregoing, each party to this Agreement: (i) shall make all filings (if any) and give all notices (if any) required to be made and given by such party in connection with the Offer, the Merger and the other Contemplated Transactions; (ii) shall use commercially reasonable efforts to obtain each Consent (if any) required to be obtained (pursuant to any applicable Legal Requirement or Contract, or otherwise) by such party in connection with the Offer, the Merger or any of the other Contemplated Transactions; and (iii) shall defend through litigation on the merits any claim asserted in court by the United States Department of Justice or United States Federal Trade Commission under antitrust or competition-related Legal Requirement in order to avoid entry of any decree, order or judgment (whether temporary, preliminary or permanent) that could restrain, delay, or prevent the Closing by the Outside Date. Notwithstanding anything to the contrary herein, nothing in this Agreement shall require Parent or any of its Subsidiaries to, nor shall any Acquired Corporation without the prior written consent of Parent agree or offer to: (A) effect any divestiture of, or hold separate (including by establishing a trust or otherwise), or agree to restrict its ownership or operation of, any business or assets of the Acquired Corporations, Parent or any Subsidiary of Parent, including Acquisition Sub, or to enter into any settlement or consent decree, or agree to any undertaking, with respect to any business or assets of the Acquired Corporations, Parent or any Subsidiary of Parent, including Acquisition Sub, (B) enter into, amend or agree to enter into or amend, any Contract of the Acquired Corporations, Parent or any Subsidiary of Parent, including Acquisition Sub, that imposes any material limitations on the ability of Parent or any of its Affiliates to effectively exercise full rights of the shares of Company Common Stock or (C) otherwise waive, abandon or alter any material rights or material obligations of the Acquired Corporations, Parent or any Subsidiary of Parent, including Acquisition Sub. Furthermore, notwithstanding anything to the contrary contained herein, in connection with obtaining any Consent from any third party, without the prior written consent of Parent, none of the Acquired Corporations or any of their respective Representatives, shall pay or commit to pay to such Person whose approval or consent is being solicited any cash or other consideration, make any accommodation or commitment or incur any liability or other obligation to such Person.
Appears in 1 contract
Regulatory and Other Approvals. Company and Parent shall make all necessary initial HSR filings as promptly as practicable but in no event more than five (a5) Each party shall business days following the execution of this Agreement. Subject to the terms and conditions of this Agreement, each of the Company and Parent will use all commercially reasonable efforts to filedo, or cause to be done, all things necessary, proper or advisable to, as soon promptly as practicable after practicable, (i) obtain all consents, approvals or actions of, make all filings with and give all notices to governmental or regulatory authorities or any other public or private third parties required of Parent or the date of this Agreement, all notices, reports and other documents required Company to be filed by such party with any Governmental Body with respect to the Offer, consummate the Merger and the other Contemplated Transactionsmatters contemplated hereby, and (ii) provide such other information and communications to submit promptly any additional information requested by any such Governmental Bodygovernmental or regulatory authorities as the other party or such governmental or regulatory authorities may reasonably request. Without limiting the generality In addition to and not in limitation of the foregoing, the Company and Parent shall prepare and file the notification and report forms required to be filed under the HSR Act within five business days following the date of this Agreement. The Company and Parent shall prepare and file any notification or other document required to be filed under any applicable foreign antitrust or competition-related Legal Requirement each of the jurisdictions set forth in Part 6.2(aparties will (x) of take promptly all actions necessary to make the Disclosure Schedule (the “Foreign Competition Authorities”) in connection with the Offer, the Merger and the other Contemplated Transactions promptly after the date of this Agreement. The Company and Parent shall respond as promptly as practicable to: (i) any inquiries or requests received from the Federal Trade Commission, the Department of Justice or the Foreign Competition Authorities for additional information or documentation; and (ii) any inquiries or requests received from any state attorney general, other foreign antitrust or competition authority or other Governmental Body in connection with antitrust or related matters. At the request of Parent, the Company shall divest, sell, dispose of, hold separate or take any other action with respect to any of the businesses, product lines or assets of the Acquired Corporations, provided, however, that any such action is conditioned upon the consummation of the Offer or the Merger.
(b) Subject to the confidentiality provisions of the Confidentiality Agreement, Parent and the Company each shall use commercially reasonable efforts to promptly supply the other with any information which may be filings required in order to effectuate any filings (including applications) pursuant to (and to otherwise comply with its obligations set forth in) Section ý6.2(a). Unless prohibited by Legal Requirements or any Governmental Body, and subject to the confidentiality provisions of the Confidentiality Agreement, each of Parent and the Company shall: or their Affiliates under the HSR Act and under any similar or comparable foreign antitrust statute or regulation, (iy) consult request early termination with the Federal Trade Commission (the “FTC“) and comply at the earliest practicable date with any request for additional information received by such party or its Affiliates from the FTC or the Antitrust Division of the Department of Justice (the “Antitrust Division“) pursuant to the HSR Act or from similar or comparable foreign governmental authorities, and (z) cooperate with the other prior to taking a position with respect to any such filing; (ii) permit the other to review and discuss in advance, and consider in good faith the views of the other in connection with, any analyses, appearances, presentations, memoranda, briefs, white papers, arguments, opinions and proposals before making or submitting any of the foregoing to any Governmental Body by or on behalf of any party hereto in connection with any Legal Proceeding related solely to this Agreement or such party’s filings under the Contemplated Transactions (including any such Legal Proceeding relating to any antitrust, competition or fair trade Legal Requirement); (iii) coordinate with the other in preparing HSR Act and exchanging such information; comparable foreign statutes and (iv) promptly provide the other (and its counsel) with copies of all filings, notices, analyses, presentations, memoranda, briefs, white papers, opinions, proposals and other submissions (and a summary of any oral presentations) made or submitted by such party with or to any Governmental Body related solely to this Agreement or the Contemplated Transactions. Notwithstanding anything to the contrary in this Section 6.2, Parent and the Company may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section 6.2 as “Outside Counsel Only Material” or otherwise reasonably redact highly confidential content from the materials produced to the other.
(c) Unless prohibited by Legal Requirements or any Governmental Body, each of Parent and the Company shall notify the other promptly upon the receipt of: (i) any communication from any official of any Governmental Body in connection with resolving any filing made pursuant to investigation or other inquiry concerning the Merger or the other matters contemplated by this Agreement; (ii) knowledge of Agreement commenced by the commencement FTC, the Antitrust Division, or threat of commencement state attorneys general or comparable foreign authorities. Each party shall give the other party reasonably prior notice of any Legal Proceeding by communication with or before any Governmental Body proposed communication, understanding or agreement with any governmental or regulatory authority with respect to the Contemplated Transactions (and transactions contemplated by this Agreement. None of the parties shall keep independently participate in any meeting, or engage in any substantive conversation, with any such governmental or regulatory authority in respect of any filings or inquiry without giving the other party informed as to the status of any such Legal Proceeding or threat); and (iii) any request by any official of any Governmental Body for any amendment or supplement to any filing made pursuant to this Agreement or any information required to comply with any Legal Requirements applicable to the Contemplated Transactions. Parent shall be entitled to direct any defense prior notice of the Offermeeting and, unless prohibited by such governmental or regulatory authority, the Merger and the other Contemplated Transactionsopportunity to attend and/or participate. Unless prohibited by Legal Requirements or any Governmental Body, whenever any event occurs that is required to be set forth in an amendment or supplement to any filing made pursuant to Section 6.2(a), Parent or the Company, as the case may be, shall (promptly upon learning of the occurrence of such event) inform the other of the occurrence of such event and cooperate in filing with the applicable Governmental Body such amendment or supplement.
(d) Parent and the Company shall use commercially reasonable efforts to take, or cause to be taken, all actions necessary to consummate the Offer and the Merger and make effective the other Contemplated Transactions. Without limiting the generality of Notwithstanding the foregoing, each party to this Agreement: (i) shall make all filings (if any) and give all notices (if any) required to be made and given by such party in connection with the Offer, the Merger and the other Contemplated Transactions; (ii) shall use commercially reasonable efforts to obtain each Consent (if any) required to be obtained (pursuant to any applicable Legal Requirement or Contract, or otherwise) by such party in connection with the Offer, the Merger or any of the other Contemplated Transactions; and (iii) shall defend through litigation on the merits any claim asserted in court by the United States Department of Justice or United States Federal Trade Commission under antitrust or competition-related Legal Requirement in order to avoid entry of any decree, order or judgment (whether temporary, preliminary or permanent) that could restrain, delay, or prevent the Closing by the Outside Date. Notwithstanding anything to the contrary herein, nothing in this Agreement shall require neither Parent or any of its Subsidiaries to, nor shall any Acquired Corporation without the prior written consent of Parent agree or offer to: (A) effect any divestiture of, or hold separate (including by establishing a trust or otherwise), or agree to restrict its ownership or operation of, any business or assets of the Acquired Corporations, Parent or any Subsidiary of Parent, including Acquisition Sub, or to enter into any settlement or consent decree, or agree to any undertaking, with respect to any business or assets of the Acquired Corporations, Parent or any Subsidiary of Parent, including Acquisition Sub, (B) enter into, amend or agree to enter into or amend, any Contract of the Acquired Corporations, Parent or any Subsidiary of Parent, including Acquisition Sub, that imposes any material limitations on the ability of Parent or any of its Affiliates shall be required to effectively exercise full rights of the shares of Company Common Stock divest or (C) hold separate or otherwise waive, abandon or alter any material rights or material obligations of the Acquired Corporations, Parent or any Subsidiary of Parent, including Acquisition Sub. Furthermore, notwithstanding anything to the contrary contained herein, in connection with obtaining any Consent from any third party, without the prior written consent of Parent, none of the Acquired Corporations or any of their respective Representatives, shall pay take or commit to pay take any action that limits its freedom of action with respect to, or its ability to such Person whose approval retain, any of its businesses, assets or consent is being solicited any cash product lines or other consideration, make any accommodation that otherwise could materially adversely affect Parent or commitment or incur any liability or other obligation to such Personits Affiliates.
Appears in 1 contract
Samples: Merger Agreement (Cephalon Inc)
Regulatory and Other Approvals. (a) Each party shall Following entry of an Order of the U.S. Bankruptcy Court approving the Bidding Procedures, Sellers will, and will cause their respective Subsidiaries to, as promptly as practicable, (i) use commercially reasonable efforts to fileobtain all consents, approvals or actions of, make all filings with and give all notices to Governmental or Regulatory Authorities or any other Person required of Sellers for Sellers and Purchaser to consummate the transactions contemplated hereby and by the Operative Agreements, including those described in Section 2.05 of Sellers' Disclosure Schedule, provided, however, that Sellers and their Subsidiaries shall be under no obligation to provide any financial incentive to any Person for its grant of any consent or approval required to consummate the transactions contemplated hereby and by the Operative Agreements, (ii) provide such other information and communications to such Governmental or Regulatory Authorities or other Persons as such Governmental or Regulatory Authorities or other Persons may reasonably request in connection therewith and (iii) provide reasonable cooperation to Purchaser in connection with the performance of its obligations under Section 5.01. Sellers will, and will cause their respective Subsidiaries to, provide prompt notification to Purchaser when any such consent, approval, action, filing or notice referred to in clause (i) above is obtained, taken, made or given, as soon as practicable after the date applicable and will advise Purchaser of this Agreementany communications (and, all noticesunless precluded by applicable Law, reports and other documents required to be filed by provide copies of any such party communications that are in writing) with any Governmental Body or Regulatory Authority or other Person regarding any of the transactions contemplated by this Agreement or any of the Operative Agreements.
(b) In furtherance and not in limitation of the covenants of Sellers in Sections 4.01(a) and 4.02, following the issuance by the U.S. Bankruptcy Court of an Order approving the Bidding Procedures Motion, Sellers shall, and shall cause their Subsidiaries to, use commercially reasonable efforts to resolve such objections, if any, as may be asserted with respect to the Offertransactions contemplated hereby made by any Governmental or Regulatory Authority. If any action or proceeding in any court or other tribunal is instituted or threatened to be instituted by any Governmental or Regulatory Authority challenging any of the transactions contemplated hereby as violative of any Law, the Merger and the other Contemplated TransactionsSellers shall, and shall cause their Subsidiaries to, use commercially reasonable efforts to submit promptly any additional information requested take such action (but not including (except as contemplated by any such Governmental Body. Without limiting the generality of the foregoing, the Company and Parent shall prepare and file the notification and report forms required proviso to be filed under the HSR Act within five business days following the date of this Agreement. The Company and Parent shall prepare and file any notification Section 6.05) holding separate or other document required divesting or agreeing to be filed under any applicable foreign antitrust or competition-related Legal Requirement of the jurisdictions set forth in Part 6.2(a) of the Disclosure Schedule (the “Foreign Competition Authorities”) in connection with the Offer, the Merger and the other Contemplated Transactions promptly after the date of this Agreement. The Company and Parent shall respond as promptly as practicable to: (i) any inquiries or requests received from the Federal Trade Commission, the Department of Justice or the Foreign Competition Authorities for additional information or documentation; and (ii) any inquiries or requests received from any state attorney general, other foreign antitrust or competition authority or other Governmental Body in connection with antitrust or related matters. At the request of Parent, the Company shall divest, sell, dispose of, hold separate or take any other action with respect to divest any of the businesses, product lines or assets of the Acquired Corporations, provided, however, that Sellers or any of its Affiliates) as will(i) resolve any objections which any such action is conditioned upon Governmental or Regulatory Authority may have to such transactions, (ii) avoid the entry of, or effect the dissolution of, any injunction, temporary restraining Order or other Order which has, or will have, the effect of preventing or interfering with the consummation of the Offer or the Merger.
(b) Subject to the confidentiality provisions of the Confidentiality Agreement, Parent and the Company each shall use commercially reasonable efforts to promptly supply the other with any information which may be required in order to effectuate any filings (including applications) pursuant to (and to otherwise comply with its obligations set forth in) Section ý6.2(a). Unless prohibited by Legal Requirements or any Governmental Body, and subject to the confidentiality provisions of the Confidentiality Agreement, each of Parent and the Company shall: (i) consult with the other prior to taking a position with respect to any such filing; (ii) permit the other to review and discuss in advance, and consider in good faith the views of the other in connection with, any analyses, appearances, presentations, memoranda, briefs, white papers, arguments, opinions and proposals before making or submitting any of the foregoing to any Governmental Body by or on behalf of any party hereto in connection with any Legal Proceeding related solely to this Agreement or the Contemplated Transactions (including any such Legal Proceeding relating to any antitrust, competition or fair trade Legal Requirement); (iii) coordinate with the other in preparing and exchanging such information; and (iv) promptly provide the other (and its counsel) with copies of all filings, notices, analyses, presentations, memoranda, briefs, white papers, opinions, proposals and other submissions (and a summary of any oral presentations) made or submitted by such party with or to any Governmental Body related solely to this Agreement or the Contemplated Transactions. Notwithstanding anything to the contrary in this Section 6.2, Parent and the Company may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section 6.2 as “Outside Counsel Only Material” or otherwise reasonably redact highly confidential content from the materials produced to the other.
(c) Unless prohibited by Legal Requirements or any Governmental Body, each of Parent and the Company shall notify the other promptly upon the receipt of: (i) any communication from any official of any Governmental Body in connection with any filing made pursuant to this Agreement; (ii) knowledge of the commencement or threat of commencement of any Legal Proceeding by or before any Governmental Body with respect to the Contemplated Transactions (and shall keep the other party informed as to the status of any such Legal Proceeding or threat); transactions contemplated hereby and (iii) any request obtain approval of the transactions contemplated hereby by any official of any Governmental Body for any amendment or supplement to any filing made pursuant to this Agreement or any information required to comply with any Legal Requirements applicable to the Contemplated Transactions. Parent shall be entitled to direct any defense of the Offer, the Merger and the other Contemplated Transactions. Unless prohibited by Legal Requirements or any Governmental Body, whenever any event occurs that is required to be set forth in an amendment or supplement to any filing made pursuant to Section 6.2(a), Parent or the Company, as the case may be, shall (promptly upon learning of the occurrence of such event) inform the other of the occurrence of such event and cooperate in filing with the applicable Governmental Body such amendment or supplementRegulatory Authority.
(d) Parent and the Company shall use commercially reasonable efforts to take, or cause to be taken, all actions necessary to consummate the Offer and the Merger and make effective the other Contemplated Transactions. Without limiting the generality of the foregoing, each party to this Agreement: (i) shall make all filings (if any) and give all notices (if any) required to be made and given by such party in connection with the Offer, the Merger and the other Contemplated Transactions; (ii) shall use commercially reasonable efforts to obtain each Consent (if any) required to be obtained (pursuant to any applicable Legal Requirement or Contract, or otherwise) by such party in connection with the Offer, the Merger or any of the other Contemplated Transactions; and (iii) shall defend through litigation on the merits any claim asserted in court by the United States Department of Justice or United States Federal Trade Commission under antitrust or competition-related Legal Requirement in order to avoid entry of any decree, order or judgment (whether temporary, preliminary or permanent) that could restrain, delay, or prevent the Closing by the Outside Date. Notwithstanding anything to the contrary herein, nothing in this Agreement shall require Parent or any of its Subsidiaries to, nor shall any Acquired Corporation without the prior written consent of Parent agree or offer to: (A) effect any divestiture of, or hold separate (including by establishing a trust or otherwise), or agree to restrict its ownership or operation of, any business or assets of the Acquired Corporations, Parent or any Subsidiary of Parent, including Acquisition Sub, or to enter into any settlement or consent decree, or agree to any undertaking, with respect to any business or assets of the Acquired Corporations, Parent or any Subsidiary of Parent, including Acquisition Sub, (B) enter into, amend or agree to enter into or amend, any Contract of the Acquired Corporations, Parent or any Subsidiary of Parent, including Acquisition Sub, that imposes any material limitations on the ability of Parent or any of its Affiliates to effectively exercise full rights of the shares of Company Common Stock or (C) otherwise waive, abandon or alter any material rights or material obligations of the Acquired Corporations, Parent or any Subsidiary of Parent, including Acquisition Sub. Furthermore, notwithstanding anything to the contrary contained herein, in connection with obtaining any Consent from any third party, without the prior written consent of Parent, none of the Acquired Corporations or any of their respective Representatives, shall pay or commit to pay to such Person whose approval or consent is being solicited any cash or other consideration, make any accommodation or commitment or incur any liability or other obligation to such Person.
Appears in 1 contract
Regulatory and Other Approvals. (a) Each party Subject to the terms and conditions of this Agreement and without limiting the provisions of Section 5.2, each of the Buyer and the Seller Parent shall use commercially reasonable efforts to filejointly, through the Joint Executive Committee, develop a regulatory approval plan and proceed cooperatively and in good faith to, as soon promptly as practicable, (i) obtain all consents, approvals or actions of, make all filings with and give all notices to Governmental or Regulatory Authorities or any other public or private third parties required of the Buyer, the Seller, the Seller Parent, the Company or any of the Company’s Subsidiaries or the Joint Ventures to consummate the Share Purchase and the other transactions contemplated hereby (including without limitation those set forth on Section 2.4 of the Seller Parent Disclosure Letter), and (ii) provide such other information and communications to such Governmental or Regulatory Authorities or other public or private third parties as any of the Seller, the Seller Parent or the Buyer or such Governmental or Regulatory Authorities or other public or private third parties may reasonably request in connection therewith. In addition to and not in limitation of the foregoing, each of the parties will (w) take promptly all actions necessary to make the filings required of the Buyer, the Seller, the Seller Parent and the Company or their Affiliates under the HSR Act and to comply with filing and approval requirements of the FERC, the SEC, the FCC and each State Governmental or Regulatory Authority, (x) comply at the earliest practicable after the date of this Agreement, all notices, reports and other documents required to be filed with any request for additional information received by such party person or its affiliates from the Federal Trade Commission (the “FTC”) or the Antitrust Division of the Department of Justice (the “Antitrust Division”) pursuant to the HSR Act, (y) cooperate with each other in connection with filings of the Buyer, the Seller Parent, the Seller, the Company, the Company’s Subsidiaries and any Joint Ventures under the HSR Act and in connection with resolving any investigation or other inquiry concerning the Share Purchase commenced by either the FTC or the Antitrust Division or state attorneys general or by the FERC, the SEC, the FCC or any State Governmental Body or Regulatory Authority having jurisdiction with respect to the OfferShare Purchase or another transaction contemplated by this Agreement, the Merger and (z) provide to the other Contemplated Transactions, and to submit promptly any additional information requested by any such Governmental Body. Without limiting copies of all correspondence between the generality Buyer (in the case of the foregoing, the Company and Parent shall prepare and file the notification and report forms required to be filed under the HSR Act within five business days following the date of this Agreement. The Company and Parent shall prepare and file any notification or other document required to be filed under any applicable foreign antitrust or competition-related Legal Requirement of the jurisdictions set forth in Part 6.2(aBuyer so providing such information) of the Disclosure Schedule (the “Foreign Competition Authorities”) in connection with the Offer, the Merger and the other Contemplated Transactions promptly after the date of this Agreement. The Company and Parent shall respond as promptly as practicable to: (i) any inquiries or requests received from the Federal Trade Commission, the Department of Justice or the Foreign Competition Authorities for additional information or documentation; and (ii) any inquiries or requests received from any state attorney general, other foreign antitrust or competition authority or other Governmental Body in connection with antitrust or related matters. At the request of Seller Parent, the Company shall divestSeller, sellthe Company, dispose of, hold separate the Company’s Subsidiaries in the Joint Venture (in the case of the Seller Parent providing such information) and the applicable Governmental or take any other action Regulatory Authority with respect to any of the businesses, product lines or assets of the Acquired Corporations, provided, however, that any such action is conditioned upon the consummation of the Offer or the Merger.
(b) Subject filings referred to the confidentiality provisions of the Confidentiality Agreement, Parent and the Company each shall use commercially reasonable efforts to promptly supply the other with any information which may be required in order to effectuate any filings (including applications) pursuant to (and to otherwise comply with its obligations set forth in) Section ý6.2(a). Unless prohibited by Legal Requirements or any Governmental Body, and subject to the confidentiality provisions of the Confidentiality Agreement, each of Parent and the Company shall: (i) consult with the other prior to taking a position with respect to any such filing; (ii) permit the other to review and discuss in advance, and consider in good faith the views of the other in connection with, any analyses, appearances, presentations, memoranda, briefs, white papers, arguments, opinions and proposals before making or submitting any of the foregoing to any Governmental Body by or on behalf of any party hereto in connection with any Legal Proceeding related solely to this Agreement or the Contemplated Transactions (including any such Legal Proceeding relating to any antitrust, competition or fair trade Legal Requirement); (iii) coordinate with the other in preparing and exchanging such information; and (iv) promptly provide the other (and its counsel) with copies of all filings, notices, analyses, presentations, memoranda, briefs, white papers, opinions, proposals and other submissions (and a summary of any oral presentations) made or submitted by such party with or to any Governmental Body related solely to this Agreement or the Contemplated Transactions. Notwithstanding anything to the contrary in this Section 6.25.3, Parent and the Company may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section 6.2 as “Outside Counsel Only Material” or otherwise reasonably redact highly confidential content from the materials produced to the other.
(c) Unless prohibited by Legal Requirements or any Governmental Body, each of Parent and the Company shall notify the other promptly upon the receipt of: (i) any communication from any official of any Governmental Body in connection with any filing made pursuant to this Agreement; (ii) knowledge of the commencement or threat of commencement of any Legal Proceeding by or before any Governmental Body with respect to the Contemplated Transactions (and shall keep give the other party informed as to the status of any such Legal Proceeding or threat); and (iii) any request by any official of any Governmental Body for any amendment or supplement to any filing made pursuant to this Agreement or any information required to comply with any Legal Requirements applicable to the Contemplated Transactions. Parent shall be entitled to direct any defense of the Offer, the Merger and the other Contemplated Transactions. Unless prohibited by Legal Requirements or any Governmental Body, whenever any event occurs that is required to be set forth in an amendment or supplement to any filing made pursuant to Section 6.2(a), Seller Parent or the CompanyBuyer, as the case may be, shall (promptly upon learning of the occurrence of opportunity to review such event) inform filings and all responses to requests for additional information by such Governmental or Regulatory Authority prior to their being filed therewith. Anything in this Agreement to the other of contrary notwithstanding, the occurrence of such event and cooperate in filing with the applicable Governmental Body such amendment or supplement.
(d) Seller Parent and the Company Seller, jointly and severally, shall use commercially reasonable efforts not permit the Company, its Subsidiaries or the Joint Ventures to take, incur any liability or cause to be taken, all actions necessary to consummate the Offer obligation (other than ordinary and the Merger reasonably attorneys’ fees and make effective the other Contemplated Transactions. Without limiting the generality of the foregoing, each third party to this Agreement: (i) shall make all filings (if any) and give all notices (if any) required to be made and given by such party in connection with the Offer, the Merger and the other Contemplated Transactions; (ii) shall use commercially reasonable efforts to obtain each Consent (if any) required to be obtained (pursuant to any applicable Legal Requirement or Contract, or otherwise) by such party in connection with the Offer, the Merger or any of the other Contemplated Transactions; and (iii) shall defend through litigation on the merits any claim asserted in court by the United States Department of Justice or United States Federal Trade Commission under antitrust or competition-costs directly related Legal Requirement in order to avoid entry of any decree, order or judgment (whether temporary, preliminary or permanent) that could restrain, delay, or prevent the Closing by the Outside Date. Notwithstanding anything to the contrary herein, nothing in this Agreement shall require Parent obtaining of necessary Final Orders from state public utility commissions) or grant any of its Subsidiaries to, nor shall any Acquired Corporation without the prior written consent of Parent agree or offer to: (A) effect any divestiture of, or hold separate (including by establishing a trust or otherwise), or agree to restrict its ownership or operation of, any business or assets of the Acquired Corporations, Parent or any Subsidiary of Parent, including Acquisition Sub, state concessions or to enter into any settlement agreement or consent decreearrangement (including, without limitation, any amendment, waiver or agree to any undertaking, with respect to any business or assets modification of the Acquired Corporationsterms of any rate agreement, Parent Order, Contract or any Subsidiary Company Permit) that has or is reasonably likely to have a “meaningful adverse effect” on the business, properties, assets, liabilities, financial condition, revenues, net income, results of Parent, including Acquisition Sub, (B) enter into, amend operations or agree to enter into or amend, any Contract prospects of the Acquired Corporations, Parent or any Subsidiary of Parent, including Acquisition Sub, that imposes any material limitations on the ability of Parent or any of Company and its Affiliates to effectively exercise full rights Subsidiaries. For purposes of the shares immediately preceding sentence and the provisions of Section 6.1(d)(ii), “meaningful adverse effect” shall be deemed to be equivalent to a material adverse effect on an entity otherwise identical to the Company Common Stock or (C) otherwise waive, abandon or alter any material rights or material obligations and its Subsidiaries but having only 25% of the Acquired Corporationsbusiness, Parent or any Subsidiary properties, assets, liabilities, financial condition, revenues, net income, results of Parent, including Acquisition Sub. Furthermore, notwithstanding anything to the contrary contained herein, in connection with obtaining any Consent from any third party, without the prior written consent of Parent, none operations and prospects of the Acquired Corporations or any of their respective Representatives, shall pay or commit to pay to such Person whose approval or consent is being solicited any cash or other consideration, make any accommodation or commitment or incur any liability or other obligation to such PersonCompany and its Subsidiaries.
Appears in 1 contract
Samples: Stock Purchase Agreement (Midamerican Energy Holdings Co /New/)
Regulatory and Other Approvals. During the Interim Period:
(a) Each party shall use The Parties will, in order to consummate the transactions contemplated hereby, (i) take all commercially reasonable efforts steps necessary, and proceed diligently and in good faith and use all commercially reasonable efforts, as promptly as practicable, to fileobtain the Seller Approvals, Seller Consents, Newington Consents and Buyer Approvals in form and substance reasonably satisfactory to Seller and Buyer, and to make all required filings with, and to give all required notices to, the applicable Governmental Authorities and (ii) cooperate in good faith with the applicable Governmental Authorities and provide promptly such other information and communications to such Governmental Authorities or other Persons as such Governmental Authorities or other Persons may reasonably request in connection therewith. In furtherance of the foregoing, Seller agrees to use its commercially reasonable efforts, during the period of 15 Business Days commencing on the first Business Day after the date hereof, to arrange for a meeting between Buyer and each of the counterparties to the Material Contracts. If Seller does not or is unable to arrange for such meetings, then Buyer shall be permitted to contact such counterparties directly. At any meeting arranged with such counterparties, Representatives of Seller shall be entitled to attend and participate therein.
(b) The Parties will provide prompt notification to each other when any such approval referred to in Section 6.1(a) is obtained, taken, made, given or denied, as applicable, and will advise each other of any material communications with any Governmental Authority or other Person regarding any of the transactions contemplated by this Agreement.
(c) In furtherance of the foregoing covenants:
(i) Each Party shall prepare, as soon as practicable after is practical following the date execution of this Agreement, all noticesnecessary filings in connection with the transactions contemplated by this Agreement that may be required by FERC, reports including, but not limited to, under sections 8 and other documents required to be filed by such party with any Governmental Body with respect to the Offer, the Merger and the other Contemplated Transactions, and to submit promptly any additional information requested by any such Governmental Body. Without limiting the generality 203 of the foregoingFederal Power Act, the Company and Parent shall prepare and file the notification and report forms required to be filed or under the HSR Act within five business or any other federal, state or local Laws. Each Party shall submit such filings to the applicable Governmental Authority as soon as practicable, but in no event later than 30 days following after the date of this Agreementexecution hereof for filings with the FERC and under the HSR Act. The Company Parties shall request expedited treatment of any such filings, shall promptly make any appropriate or necessary subsequent or supplemental filings, and Parent shall prepare cooperate with each other in the preparation of such filings in such manner as is reasonably necessary and file appropriate. The Parties shall consult with each other and shall agree in good faith upon the timing of such filings.
(ii) Neither Party shall, and each Party shall cause their respective Affiliates not to, take any notification or other document required action that could reasonably be expected to be filed under adversely affect the approval of any applicable foreign antitrust or competition-related Legal Requirement Governmental Authority of any of the jurisdictions set forth aforementioned filings.
(iii) The Parties shall file with the Committee on Foreign Investment in Part 6.2(a) the United States (“CFIUS”), as promptly as practicable, a joint voluntary notice under Section 721 of the Disclosure Schedule Defense Production Act of 1950, as amended (the “Foreign Competition AuthoritiesExon-Xxxxxx Provision”) ), in respect of the transactions contemplated hereby. The Parties shall cooperate with each other in the preparation of this filing in such manner as is reasonably necessary and appropriate. Each Party shall promptly furnish the other Party with any necessary information and reasonable assistance that such other Party may reasonably request in connection with the Offer, the Merger and the other Contemplated Transactions promptly after the date of this Agreementfiling. The Company Parties shall promptly, appropriately and Parent shall respond as promptly as practicable to: (i) reasonably respond, after consultation between the Parties, to any inquiries or requests received from the Federal Trade Commission, the Department of Justice or the Foreign Competition Authorities for additional information or documentation; and (ii) any inquiries or requests received from any state attorney general, other foreign antitrust or competition authority or other Governmental Body in connection with antitrust this filing from CFIUS or related matters. At the request of Parent, the Company shall divest, sell, dispose of, hold separate or take any other action with respect to any of the businesses, product lines or assets of the Acquired Corporations, provided, however, that any such action is conditioned upon the consummation of the Offer or the Mergerits member agencies.
(b) Subject to the confidentiality provisions of the Confidentiality Agreement, Parent and the Company each shall use commercially reasonable efforts to promptly supply the other with any information which may be required in order to effectuate any filings (including applications) pursuant to (and to otherwise comply with its obligations set forth in) Section ý6.2(a). Unless prohibited by Legal Requirements or any Governmental Body, and subject to the confidentiality provisions of the Confidentiality Agreement, each of Parent and the Company shall: (i) consult with the other prior to taking a position with respect to any such filing; (ii) permit the other to review and discuss in advance, and consider in good faith the views of the other in connection with, any analyses, appearances, presentations, memoranda, briefs, white papers, arguments, opinions and proposals before making or submitting any of the foregoing to any Governmental Body by or on behalf of any party hereto in connection with any Legal Proceeding related solely to this Agreement or the Contemplated Transactions (including any such Legal Proceeding relating to any antitrust, competition or fair trade Legal Requirement); (iii) coordinate with the other in preparing and exchanging such information; and (iv) promptly provide the other (and its counsel) with copies of all filings, notices, analyses, presentations, memoranda, briefs, white papers, opinions, proposals and other submissions (and a summary of any oral presentations) made or submitted by such party with or to any Governmental Body related solely to this Agreement or the Contemplated Transactions. Notwithstanding anything to the contrary in this Section 6.2, Parent and the Company may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section 6.2 as “Outside Counsel Only Material” or otherwise reasonably redact highly confidential content from the materials produced to the other.
(c) Unless prohibited by Legal Requirements or any Governmental Body, each of Parent and the Company shall notify the other promptly upon the receipt of: (i) any communication from any official of any Governmental Body in connection with any filing made pursuant to this Agreement; (ii) knowledge of the commencement or threat of commencement of any Legal Proceeding by or before any Governmental Body with respect to the Contemplated Transactions (and shall keep the other party informed as to the status of any such Legal Proceeding or threat); and (iii) any request by any official of any Governmental Body for any amendment or supplement to any filing made pursuant to this Agreement or any information required to comply with any Legal Requirements applicable to the Contemplated Transactions. Parent shall be entitled to direct any defense of the Offer, the Merger and the other Contemplated Transactions. Unless prohibited by Legal Requirements or any Governmental Body, whenever any event occurs that is required to be set forth in an amendment or supplement to any filing made pursuant to Section 6.2(a), Parent or the Company, as the case may be, shall (promptly upon learning of the occurrence of such event) inform the other of the occurrence of such event and cooperate in filing with the applicable Governmental Body such amendment or supplement.
(d) Parent and the Company shall use commercially reasonable efforts to take, or cause to be taken, all actions necessary to consummate the Offer and the Merger and make effective the other Contemplated Transactions. Without limiting the generality of the foregoing, each party to this Agreement: (i) shall make all filings (if any) and give all notices (if any) required to be made and given by such party in connection with the Offer, the Merger and the other Contemplated Transactions; (ii) shall use commercially reasonable efforts to obtain each Consent (if any) required to be obtained (pursuant to any applicable Legal Requirement or Contract, or otherwise) by such party in connection with the Offer, the Merger or any of the other Contemplated Transactions; and (iii) shall defend through litigation on the merits any claim asserted in court by the United States Department of Justice or United States Federal Trade Commission under antitrust or competition-related Legal Requirement in order to avoid entry of any decree, order or judgment (whether temporary, preliminary or permanent) that could restrain, delay, or prevent the Closing by the Outside Date. Notwithstanding anything to the contrary herein, nothing in this Agreement shall require Parent or any of its Subsidiaries to, nor shall any Acquired Corporation without the prior written consent of Parent agree or offer to: (A) effect any divestiture of, or hold separate (including by establishing a trust or otherwise), or agree to restrict its ownership or operation of, any business or assets of the Acquired Corporations, Parent or any Subsidiary of Parent, including Acquisition Sub, or to enter into any settlement or consent decree, or agree to any undertaking, with respect to any business or assets of the Acquired Corporations, Parent or any Subsidiary of Parent, including Acquisition Sub, (B) enter into, amend or agree to enter into or amend, any Contract of the Acquired Corporations, Parent or any Subsidiary of Parent, including Acquisition Sub, that imposes any material limitations on the ability of Parent or any of its Affiliates to effectively exercise full rights of the shares of Company Common Stock or (C) otherwise waive, abandon or alter any material rights or material obligations of the Acquired Corporations, Parent or any Subsidiary of Parent, including Acquisition Sub. Furthermore, notwithstanding anything to the contrary contained herein, in connection with obtaining any Consent from any third party, without the prior written consent of Parent, none of the Acquired Corporations or any of their respective Representatives, shall pay or commit to pay to such Person whose approval or consent is being solicited any cash or other consideration, make any accommodation or commitment or incur any liability or other obligation to such Person.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Consolidated Edison Inc)
Regulatory and Other Approvals. During the Interim Period:
(a) Each party Party shall use commercially reasonable efforts attempt to file, obtain as soon promptly as practicable after all material consents and approvals that either Party or its respective Affiliates are required to obtain in order to consummate the date transactions contemplated hereby; provided that, for purposes of clarification, and notwithstanding anything to the contrary in this Agreement, all notices, reports the obtaining of the consents and other documents required to approvals will not be filed by such party with any Governmental Body with respect a condition to the OfferClosing except to the extent set forth in SECTION V or SECTION VI, as applicable.
(b) The Parties shall cooperate with each other in every way, and each Party, promptly upon the Merger request of the other, shall do such commercially reasonable acts and shall execute and have acknowledged and delivered to the other Contemplated TransactionsParty, as may be appropriate, any and all further documents or instruments as may be reasonably requested or in order to submit promptly any additional information requested by any such Governmental Bodyconsummate the transactions contemplated hereby. Without limiting the generality of the foregoing, the Company and Parent each Party shall prepare and file the notification and report forms required (i) make or cause to be filed under made the HSR Act within five business days following filings required of the date Person or any of this Agreement. The Company and Parent shall prepare and file any notification or other document required to be filed its applicable Affiliates under any Laws applicable foreign antitrust or competition-related Legal Requirement to it with respect to the transactions contemplated by this Agreement and to pay any fees due of the jurisdictions set forth in Part 6.2(a) of the Disclosure Schedule (the “Foreign Competition Authorities”) it in connection with the Offerfilings, the Merger and the other Contemplated Transactions promptly after the date of this Agreement. The Company and Parent shall respond as promptly as practicable to: (i) any inquiries or requests received from is reasonably practicable, provided that, for purposes of clarification, and notwithstanding anything to the Federal Trade Commissioncontrary in this Agreement, the Department of Justice filings and payments will not be conditions to the Closing except to the extent set forth in SECTION V or the Foreign Competition Authorities for additional information or documentationSECTION VI,; and (ii) use reasonable efforts to cause the expiration of the notice or waiting periods under any inquiries or requests received from any state attorney general, other foreign antitrust or competition authority or other Governmental Body in connection with antitrust or related matters. At the request of Parent, the Company shall divest, sell, dispose of, hold separate or take any other action Laws applicable to it with respect to any of the businesses, product lines or assets of the Acquired Corporations, provided, however, that any such action is conditioned upon the consummation of the Offer transactions contemplated by this Agreement as promptly as is reasonably practicable; (iii) promptly inform the other Party of any communication from or the Merger.
(b) Subject to the confidentiality provisions to, and any proposed understanding or agreement with, any Governmental Authority in respect of the Confidentiality Agreement, Parent filings; (iv) reasonably consult and the Company each shall use commercially reasonable efforts to promptly supply the other with any information which may be required in order to effectuate any filings (including applications) pursuant to (and to otherwise comply with its obligations set forth in) Section ý6.2(a). Unless prohibited by Legal Requirements or any Governmental Body, and subject to the confidentiality provisions of the Confidentiality Agreement, each of Parent and the Company shall: (i) consult cooperate with the other prior to taking a position with respect to any such filing; (ii) permit the other to review and discuss in advance, and consider in good faith the views of the other Party in connection with, with any analyses, appearances, presentations, memoranda, briefs, white papers, arguments, and opinions and proposals before making made or submitting any of the foregoing to any Governmental Body submitted by or on behalf of any party hereto Party in connection with any Legal Proceeding related solely to this Agreement all meetings, actions or the Contemplated Transactions (including any such Legal Proceeding other Proceedings with Governmental Authorities relating to any antitrust, competition or fair trade Legal Requirement)the filings; (iiiv) coordinate comply, as promptly as is reasonably practicable, with any requests received by the Party under any Laws for additional information, documents or other in preparing and exchanging such informationmaterials with respect to the filings, (vi) attempt to resolve any objections as may be asserted by any Governmental Authority with respect to the transactions contemplated by this Agreement; and (ivvii) promptly provide contest and resist any action or other Proceeding instituted (or threatened in writing to be instituted) by any Governmental Authority challenging the transactions contemplated by this Agreement as violative of any Law.
(c) If a Party (or any of its applicable Affiliates) intends to participate in any meeting with any Governmental Authority with respect to the filings and if permitted by, or acceptable to, the applicable Governmental Authority, it shall give the other Party reasonable prior notice of, but in any event not less than five business days prior to such meeting (unless by the nature of the meeting such notice is impractical) and its counselan opportunity to participate in, the meeting.
(d) In connection with copies of all any such filings, noticesAcquirer and Parent shall cooperate in good faith with Governmental Authorities and with Acquired Corporation and undertake promptly any and all action required to lawfully complete the transactions contemplated by this Agreement.
(e) Each Party shall provide prompt notification to the other when it becomes aware that any such consent or approval referred to in this Section 4.1 is obtained, analysestaken, presentationsmade, memorandagiven or denied, briefsas applicable.
(f) In furtherance of the foregoing covenants:
(i) Each Party shall prepare, white papersor cause its Affiliates to prepare, opinionsas soon as is practicable following the execution of this Agreement, proposals all necessary filings applicable to it and other submissions (and a summary of any oral presentations) made or submitted in connection with the transactions contemplated by such party with or to any Governmental Body related solely to this Agreement or the Contemplated Transactions. Notwithstanding that may be required under any Laws; provided that, for purposes of clarification, and notwithstanding anything to the contrary in this Section 6.2Agreement, Parent and the Company may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided filings will not be conditions to the other under this Section 6.2 as “Outside Counsel Only Material” or otherwise reasonably redact highly confidential content from the materials produced Closing except to the otherextent set forth SECTION V or SECTION VI.
(cii) Unless prohibited by Legal Requirements or any Governmental Body, each of Parent and the Company Each Party shall notify promptly furnish the other Party with copies of any notices, correspondence or other written communication received by it from the relevant Governmental Authority, shall promptly upon make any appropriate or necessary subsequent or supplemental filings required of it, and shall cooperate in the receipt of: preparation of the filings as is reasonably necessary and appropriate.
(iiii) Each Party shall not, and shall cause its respective Affiliates not to, take any communication from any official action that could reasonably be expected to adversely affect the approval of any Governmental Body in connection with any filing made pursuant to this Agreement; (ii) knowledge of the commencement or threat of commencement of any Legal Proceeding by or before any Governmental Body with respect to the Contemplated Transactions (and shall keep the other party informed as to the status of any such Legal Proceeding or threat); and (iii) any request by any official of any Governmental Body for any amendment or supplement to any filing made pursuant to this Agreement or any information required to comply with any Legal Requirements applicable to the Contemplated Transactions. Parent shall be entitled to direct any defense of the Offer, the Merger and the other Contemplated Transactions. Unless prohibited by Legal Requirements or any Governmental Body, whenever any event occurs that is required to be set forth in an amendment or supplement to any filing made pursuant to Section 6.2(a), Parent or the Company, as the case may be, shall (promptly upon learning of the occurrence of such event) inform the other of the occurrence of such event and cooperate in filing with the applicable Governmental Body such amendment or supplementAuthority.
(div) Member shall cooperate with Acquirer and Parent to promptly file such disclosures and applications with the Company shall use commercially reasonable efforts to takeMED, the OLCC, or cause to be takenthe Applicable Local Licensing Authority, all actions necessary to consummate the Offer and the Merger and make effective the other Contemplated Transactions. Without limiting the generality of the foregoing, each party to this Agreement: (i) shall make all filings (if any) and give all notices (if any) as required to be made and given by such party in connection with the Offer, the Merger and the other Contemplated Transactions; (ii) shall use commercially reasonable efforts to obtain each Consent (if any) required to be obtained (pursuant to any applicable Legal Requirement or Contract, or otherwise) by such party in connection with the Offer, the Merger or any of the other Contemplated Transactions; and (iii) shall defend through litigation on the merits any claim asserted in court by the United States Department of Justice Marijuana Code or United States Federal Trade Commission under antitrust reasonably requested by Acquirer or competition-related Legal Requirement in order to avoid entry of any decree, order or judgment (whether temporary, preliminary or permanent) that could restrain, delay, or prevent the Closing by the Outside Date. Notwithstanding anything to the contrary herein, nothing in this Agreement shall require Parent or any of its Subsidiaries to, nor shall any Acquired Corporation without the prior written consent of Parent agree or offer to: (A) effect any divestiture of, or hold separate (including by establishing a trust or otherwise), or agree to restrict its ownership or operation of, any business or assets of the Acquired Corporations, Parent or any Subsidiary of Parent, including Acquisition Sub, or to enter into any settlement or consent decree, or agree to any undertaking, with respect to any business or assets of the Acquired Corporations, Parent or any Subsidiary of Parent, including Acquisition Sub, (B) enter into, amend or agree to enter into or amend, any Contract of the Acquired Corporations, Parent or any Subsidiary of Parent, including Acquisition Sub, that imposes any material limitations on the ability of Parent or any of its Affiliates to effectively exercise full rights of the shares of Company Common Stock or (C) otherwise waive, abandon or alter any material rights or material obligations of the Acquired Corporations, Parent or any Subsidiary of Parent, including Acquisition Sub. Furthermore, notwithstanding anything to the contrary contained herein, in connection with obtaining any Consent from any third party, without the prior written consent of Parent, none of the Acquired Corporations or any of their respective Representatives, shall pay or commit to pay to such Person whose approval or consent is being solicited any cash or other consideration, make any accommodation or commitment or incur any liability or other obligation to such Person.
Appears in 1 contract
Regulatory and Other Approvals. (a) Each party shall use commercially reasonable efforts to fileDuring the Pre-Closing Period, as soon as practicable after the date of this Agreement, all notices, reports and other documents required to be filed by such party with any Governmental Body with respect to the Offer, the Merger and the other Contemplated Transactionseach Party shall, and to submit promptly any additional information requested by any such Governmental Body. Without limiting the generality of the foregoingshall cause its Affiliates to, the Company and Parent shall prepare and file the notification and report forms required to be filed under the HSR Act within five business days following the date of this Agreement. The Company and Parent shall prepare and file any notification or other document required to be filed under any applicable foreign antitrust or competition-related Legal Requirement of the jurisdictions set forth in Part 6.2(a) of the Disclosure Schedule (the “Foreign Competition Authorities”) in connection with the Offer, the Merger and the other Contemplated Transactions promptly after the date of this Agreement. The Company and Parent shall respond as promptly as practicable to: (i) any inquiries or requests received from the Federal Trade Commission, the Department of Justice or the Foreign Competition Authorities for additional information or documentation; and (ii) any inquiries or requests received from any state attorney general, other foreign antitrust or competition authority or other Governmental Body in connection with antitrust or related matters. At the request of Parent, the Company shall divest, sell, dispose of, hold separate or take any other action with respect to any of the businesses, product lines or assets of the Acquired Corporations, provided, however, that any such action is conditioned upon the consummation of the Offer or the Merger.
(b) Subject to the confidentiality provisions of the Confidentiality Agreement, Parent and the Company each shall use commercially reasonable efforts to promptly supply the other with any information which may be required in order to effectuate any filings (including applications) pursuant to (and to otherwise comply with its obligations set forth in) Section ý6.2(a). Unless prohibited by Legal Requirements or any Governmental Body, a timely manner and subject to the confidentiality provisions terms and conditions of the Confidentiality Agreement, each of Parent and the Company shall: (i) consult with the other prior to taking a position with respect to any such filing; (ii) permit the other to review and discuss in advance, and consider in good faith the views of the other in connection with, any analyses, appearances, presentations, memoranda, briefs, white papers, arguments, opinions and proposals before making or submitting any of the foregoing to any Governmental Body by or on behalf of any party hereto in connection with any Legal Proceeding related solely to this Agreement or the Contemplated Transactions (including any such Legal Proceeding relating to any antitrust, competition or fair trade Legal Requirement); (iii) coordinate with the other in preparing and exchanging such information; and (iv) promptly provide the other (and its counsel) with copies of all filings, notices, analyses, presentations, memoranda, briefs, white papers, opinions, proposals and other submissions (and a summary of any oral presentations) made or submitted by such party with or to any Governmental Body related solely to this Agreement or the Contemplated Transactions. Notwithstanding anything to the contrary in this Section 6.24.3, Parent and the Company may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section 6.2 as “Outside Counsel Only Material” or otherwise reasonably redact highly confidential content from the materials produced to the other.
(c) Unless prohibited by Legal Requirements or any Governmental Body, each of Parent and the Company shall notify the other promptly upon the receipt of: (i) any communication from any official of any Governmental Body in connection with any filing made pursuant to this Agreement; (ii) knowledge of the commencement or threat of commencement of any Legal Proceeding by or before any Governmental Body with respect to the Contemplated Transactions (and shall keep the other party informed as to the status of any such Legal Proceeding or threat); and (iii) any request by any official of any Governmental Body for any amendment or supplement to any filing made pursuant to this Agreement or any information required to comply with any Legal Requirements applicable to the Contemplated Transactions. Parent shall be entitled to direct any defense of the Offer, the Merger and the other Contemplated Transactions. Unless prohibited by Legal Requirements or any Governmental Body, whenever any event occurs that is required to be set forth in an amendment or supplement to any filing made pursuant to Section 6.2(a), Parent or the Company, as the case may be, shall (promptly upon learning of the occurrence of such event) inform the other of the occurrence of such event and cooperate in filing with the applicable Governmental Body such amendment or supplement.
(d) Parent and the Company shall use its commercially reasonable efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things reasonably necessary, proper or advisable, and execute and deliver documents reasonably necessary upon reasonable request, to carry out the provisions of this Agreement, consummate the Offer and the Merger Closing hereunder and make effective the other Contemplated Transactions. transactions contemplated by this Agreement, including all filings with any Governmental Authority (including the HSR Act filings discussed in Section 4.3(c)) and obtaining all necessary waivers, consents and approvals from any Governmental Authority.
(b) Without limiting the generality of Section 4.3(a), during the foregoing, each party to this Agreement: Pre-Closing Period (i) the Company shall, and shall make all filings (if any) and give all notices (if any) required to be made and given by such party in connection with the Offer, the Merger and cause the other Contemplated Transactions; (ii) shall Group Companies to use commercially reasonable efforts to (A) obtain all consents, approvals, waivers, orders, Permits and authorizations of, and make all registrations, applications, qualifications, designations, declarations, filings and notifications with or to, each Consent (if any) required to be obtained (pursuant to any applicable Legal Requirement or Contract, or otherwise) by such party Governmental Authority necessary in connection with the Offerexecution and delivery of this Agreement and the other Transaction Documents and the consummation of the transactions contemplated hereby and thereby (collectively, the Merger “Governmental Approvals”) and (B) obtain all consents, waivers, approvals and authorizations of counterparties under the Contracts to which any of the Group Companies are a party or by which any of their respective assets or properties are bound which are required under the terms and conditions of such Contracts to be obtained in connection with the execution and delivery of this Agreement and the other Transaction Documents and the consummation of the transactions contemplated hereby and thereby, other than such consents, waivers, approvals and authorizations not required by Purchaser as set forth in a written notice (collectively, the “Contract Consents”), (ii) Purchaser shall use all commercially reasonable efforts to obtain all Governmental Approvals to which Purchaser is required to be the applicant of record and (iii) Purchaser shall, upon written request from the Company, use commercially reasonable efforts to assist the Group Companies in connection with such matters in the manner so requested; provided, however, that such assistance shall not require Purchaser to (A) expend any out-of-pocket costs or expenses (other than costs of counsel and other advisors to Purchaser incurred in providing information and otherwise cooperating with the Group Companies), (B) provide any other financial accommodation by way of guarantee, security deposit, letter of credit or otherwise or (C) agree to any material or commercially unreasonable amendment, alteration, modification or waiver of or with respect to any Permit or Contract in order to obtain such Governmental Approvals or Contract Consents. Notwithstanding any other provision of this Agreement, including the foregoing provisions of this Section 4.3, no Group Company shall enter into any Contract that places additional obligations or limitations on Purchaser or any of the Group Companies following the Closing as a condition for obtaining any Contract Consent or Governmental Approval, except with the prior written consent of Purchaser, and Purchaser shall not be required to consent to any divestiture or other Contemplated Transactions; structural or conduct relief applicable to the assets, properties or business of any Group Company or the business of Purchaser and its Affiliates. Except to the extent that Governmental Approvals require Purchaser to make submissions as applicant of record, the Company shall have primary responsibility to make application for and to pursue the grant of each of the Governmental Approvals and Contract Consents.
(iiic) The Parties shall defend through litigation on file or cause to be filed with the merits any claim asserted in court by United States Federal Trade Commission (the “FTC”) and the United States Department of Justice (the “DOJ”), in each case pursuant to the HSR Act (i) the notification and report form, if any, required for the transactions contemplated hereby, which form shall be filed not later than five (5) Business Days following the date of this Agreement, (ii) any supplemental information requested in connection therewith, which information shall be filed as soon as reasonably practicable after the request therefor, and (iii) use their respective commercially reasonable efforts to obtain early termination of the waiting period under the HSR Act. Any such notification and report form and supplemental information shall be in compliance in all material respects with the requirements of the HSR Act.
(d) Subject to applicable Laws relating to the exchange of information, the Company, on the one hand, and Purchaser, on the other hand, shall furnish to the other such necessary information and reasonable assistance as any Party may reasonably request in connection with preparation of the notices and requests referred to in this Section 4.3 and any filing or United States Federal Trade Commission under antitrust or competition-related Legal Requirement in order approval process that is necessary to avoid entry obtain any Governmental Approvals. Except to the extent limited by applicable Law, the Company , on the one hand, and Purchaser, on the other hand, shall (i) keep each other apprised of the status of any decreecommunications with, order and any inquiries or judgment requests for additional information from, any Governmental Authority in connection with this process, (whether temporaryii) furnish the other with copies of all correspondence and communications between such Party and its Affiliates and their respective representatives, preliminary on the one hand, and any Governmental Authority or permanentmembers of its staff, on the other hand, with respect to this Agreement and the transactions contemplated hereby (excluding documents and communications which are subject to preexisting confidentiality agreements and to attorney client privilege), (iii) provide each other the right to review in advance, and to the extent applicable consult with each other on, all the information that could restrain, delayappears in any filing made with, or prevent written materials submitted to, any Governmental Authority in connection with this Agreement and the Closing by transactions contemplated hereby (in exercising the Outside Date. foregoing right, each of the parties shall act reasonably and as promptly as reasonably practicable) and (iv) comply as promptly as reasonably practicable and in any event in accordance with applicable Law with any such inquiry or request.
(e) Notwithstanding anything to the contrary hereinforegoing, nothing in this Agreement Section 4.3 shall require Parent obligate any Party to waive or amend any condition set forth in Article VI or any of its Subsidiaries tounderlying representation, nor shall any Acquired Corporation without the prior written consent of Parent agree warranty, covenant or offer to: (A) effect any divestiture of, or hold separate (including by establishing a trust or otherwise), or agree to restrict its ownership or operation of, any business or assets of the Acquired Corporations, Parent or any Subsidiary of Parent, including Acquisition Sub, or to enter into any settlement or consent decree, or agree to any undertaking, with respect to any business or assets of the Acquired Corporations, Parent or any Subsidiary of Parent, including Acquisition Sub, (B) enter into, amend or agree to enter into or amend, any Contract of the Acquired Corporations, Parent or any Subsidiary of Parent, including Acquisition Sub, that imposes any material limitations on the ability of Parent or any of its Affiliates to effectively exercise full rights of the shares of Company Common Stock or (C) otherwise waive, abandon or alter any material rights or material obligations of the Acquired Corporations, Parent or any Subsidiary of Parent, including Acquisition Sub. Furthermore, notwithstanding anything to the contrary contained herein, in connection with obtaining any Consent from any third party, without the prior written consent of Parent, none of the Acquired Corporations or any of their respective Representatives, shall pay or commit to pay to such Person whose approval or consent is being solicited any cash or other consideration, make any accommodation or commitment or incur any liability or other obligation to such Personagreement.
Appears in 1 contract
Regulatory and Other Approvals. From the date of this Agreement until the earlier of termination of this Agreement in accordance with Article IX and Closing (the “Interim Period”):
(a) Each party Party shall, and each shall cause its Affiliates to, use commercially reasonable efforts to fileobtain as promptly as reasonably practicable, as soon as practicable after but in no event later than the date Termination Date, all Seller Approvals, Company Consents and Buyer Approvals applicable to such Person, and all other material consents and approvals that any of the Parties or their respective Affiliates are required to obtain in order for such Person to consummate the transactions contemplated hereby; provided that for purposes of clarification, and notwithstanding anything to the contrary in this Agreement, all notices, reports the obtaining of such consents and other documents required approvals shall not be a condition to be filed by such party with any Governmental Body with respect Closing except to the Offer, the Merger and the other Contemplated Transactions, and to submit promptly any additional information requested by any such Governmental Body. Without limiting the generality of the foregoing, the Company and Parent shall prepare and file the notification and report forms required to be filed under the HSR Act within five business days following the date of this Agreement. The Company and Parent shall prepare and file any notification or other document required to be filed under any applicable foreign antitrust or competition-related Legal Requirement of the jurisdictions extent expressly set forth in Part 6.2(a) of the Disclosure Schedule (the “Foreign Competition Authorities”) in connection with the OfferSection 7.5 or 8.5, the Merger and the other Contemplated Transactions promptly after the date of this Agreement. The Company and Parent shall respond as promptly as practicable to: (i) any inquiries or requests received from the Federal Trade Commission, the Department of Justice or the Foreign Competition Authorities for additional information or documentation; and (ii) any inquiries or requests received from any state attorney general, other foreign antitrust or competition authority or other Governmental Body in connection with antitrust or related matters. At the request of Parent, the Company shall divest, sell, dispose of, hold separate or take any other action with respect to any of the businesses, product lines or assets of the Acquired Corporations, provided, however, that any such action is conditioned upon the consummation of the Offer or the Mergerapplicable.
(b) Subject Each Party shall, and each shall cause its Affiliates to, (i) make or cause to be made the filings required of such Party or any of its applicable Affiliates under any Laws applicable to it with respect to the confidentiality provisions transactions contemplated by this Agreement and to pay any fees due of it in connection with such filings, as promptly as reasonably practicable, provided that for purposes of clarification, and notwithstanding anything to the Confidentiality contrary in this Agreement, Parent such filings and payments shall not be conditions to Closing except to the Company each shall extent expressly set forth in Section 7.5 or 8.5, as applicable, (ii) cooperate with the other Party and its applicable Affiliates and furnish the information in such Party’s possession that is necessary in connection with such other Party’s filings, (iii) use commercially reasonable efforts to cause the expiration of the notice or waiting periods under any Laws applicable to it with respect to the consummation of the transactions contemplated by this Agreement as promptly supply as reasonably practicable, but in no event later than the Termination Date, (iv) promptly inform the other with Party of any information which may be required in order to effectuate communication from or to, and any filings (including applications) pursuant to (and to otherwise comply with its obligations set forth in) Section ý6.2(a). Unless prohibited by Legal Requirements proposed understanding or agreement with, any Governmental BodyAuthority in respect of such filings, (v) reasonably consult and subject to the confidentiality provisions of the Confidentiality Agreement, each of Parent and the Company shall: (i) consult cooperate with the other prior to taking a position with respect to any such filing; (ii) permit the other to review and discuss in advance, and consider in good faith the views of the other Party in connection with, with any analyses, appearances, presentations, memoranda, briefs, white papers, arguments, arguments and opinions and proposals before making made or submitting any of the foregoing to any Governmental Body submitted by or on behalf of any party hereto such Party in connection with meetings, actions and Proceedings with Governmental Authorities relating to such filings, (vi) comply, as promptly as reasonably practicable, with any Legal Proceeding related solely requests received by such Party or any of its Affiliates under any applicable Laws for additional information, documents or other materials with respect to such filings, and (vii) use commercially reasonable efforts to resolve any objections as may be asserted by any Governmental Authority with respect to the transactions contemplated by this Agreement so as to allow the transactions contemplated by this Agreement to be consummated as promptly as reasonably practicable, but in no event later than the Termination Date. If any Party (or any of its Affiliates) intends to participate in any material communication, meeting, written communication or telephonic discussion with any Governmental Authority with respect to such filings and unless prohibited by the Contemplated Transactions applicable Governmental Authorities, it shall give the other Party reasonable prior notice of, and an opportunity to participate in, such meeting. If such participation is not possible, the Party communicating with the Governmental Authority shall promptly inform the other Party of such communication and provide a complete summary of same.
(including c) Each Party shall notify the other Party as promptly as reasonably practicable when it becomes aware that any such Legal Proceeding relating consent or approval referred to in this Section 6.1 is obtained, taken, made, given or denied, as applicable.
(d) In furtherance of the foregoing covenants:
(i) Each Party shall, and shall cause its respective Affiliates to, prepare, as promptly as reasonably practicable following the execution of this Agreement, all necessary filings applicable to it or any antitrust, competition or fair trade Legal Requirement); (iii) coordinate of its Affiliates in connection with the other in preparing and exchanging such information; and (iv) promptly provide the other (and its counsel) with copies of all filings, notices, analyses, presentations, memoranda, briefs, white papers, opinions, proposals and other submissions (and a summary of any oral presentations) made or submitted transactions contemplated by such party with or to any Governmental Body related solely to this Agreement that may be required by the HSR Act, FCC or the Contemplated Transactions. Notwithstanding any applicable Laws; provided that for purposes of clarification, and notwithstanding anything to the contrary in this Agreement, such filings shall not be conditions to Closing except to the extent expressly set forth in Section 6.27.5 or 8.5, Parent as applicable. Each Party shall, and shall cause its respective Affiliates to, submit such filings applicable to it or its Affiliates as promptly as reasonably practicable, but in no event later than ten (10) Business Days after the execution of this Agreement, or such other time as mutually agreed upon by the Parties, for filings under the HSR Act and with the FCC. The Party making such filings shall (or shall cause its applicable Affiliate to) request expedited treatment of any such filings, as promptly as reasonably practicable furnish the other Party with copies of any notices, correspondence or other written communication received by it from the relevant Governmental Authority with respect to such filing and make any appropriate or necessary subsequent or supplemental filings required of it (and the Company may, Parties shall cooperate in the preparation of any such filings as each deems advisable is reasonably necessary and necessary, reasonably designate any competitively sensitive material provided appropriate). Any filing fees relating to such filings shall be for the other under this Section 6.2 as “Outside Counsel Only Material” or otherwise reasonably redact highly confidential content from the materials produced to the otheraccount of Buyer.
(cii) Unless prohibited by Legal Requirements or Buyer and Buyer Parent shall not, and shall cause its Affiliates not to, take any Governmental Body, each of Parent and action that could reasonably be expected to (x) adversely affect the Company shall notify the other promptly upon the receipt of: (i) any communication from any official approval of any Governmental Body in connection with Authority of any filing made pursuant to this Agreement; (ii) knowledge of the commencement filings or threat of commencement of applications referred to in this Section 6.1 or (y) cause the representation in Section 5.18 to be untrue in any Legal Proceeding by or before any Governmental Body with respect to the Contemplated Transactions (and shall keep the other party informed as to the status of any such Legal Proceeding or threat); and respect.
(iii) any request by any official of any Governmental Body for any amendment or supplement to any filing made pursuant to this Agreement or any information required to comply with any Legal Requirements applicable to the Contemplated Transactions. Parent shall be entitled to direct any defense of the Offer, the Merger and the other Contemplated Transactions. Unless prohibited by Legal Requirements or any Governmental Body, whenever any event occurs that is required to be set forth in an amendment or supplement to any filing made pursuant to Section 6.2(a), Parent or the Company, as the case may be, shall (promptly upon learning of the occurrence of such event) inform the other of the occurrence of such event and cooperate in filing with the applicable Governmental Body such amendment or supplement.
(d) Parent and the Company shall use commercially reasonable efforts to take, or cause to be taken, all actions necessary to consummate the Offer and the Merger and make effective the other Contemplated Transactions. Without limiting the generality of Notwithstanding the foregoing, each party to nothing in this Agreement: (i) Section 6.1 or otherwise in this Agreement shall make all filings (if any) and give all notices (if any) required to be made and given by such party in connection with the Offer, the Merger and the other Contemplated Transactions; (ii) shall use commercially reasonable efforts to obtain each Consent (if any) required to be obtained (pursuant to any applicable Legal Requirement or Contract, or otherwise) by such party in connection with the Offer, the Merger require Buyer or any of its Affiliates to, (A) propose, negotiate, agree to or effect, the sale, divestiture, license, or other Contemplated Transactions; and disposition, or the holding separate, of any Assets, product lines or businesses of the Acquired Companies or of Buyer of any of its Affiliates, (iiiB) shall defend through litigation on otherwise take any action that limits the merits freedom of action with respect to, or its ability to retain, any claim asserted in court by of the United States Department Assets, product lines or businesses of Justice Buyer or United States Federal Trade Commission under antitrust any of its Affiliates (including the Acquired Companies), or competition-related Legal Requirement in order to avoid entry of (C) litigate any administrative or judicial action or proceeding or any decree, order judgment, injunction or judgment (other Order, whether temporary, preliminary or permanent) that could restrain, delay, or prevent the Closing by the Outside Date. Notwithstanding anything to the contrary herein, nothing in this Agreement shall require Parent or any of its Subsidiaries to, nor shall any Acquired Corporation without the prior written consent of Parent agree or offer to: (A) effect any divestiture of, or hold separate (including by establishing a trust or otherwise), or agree to restrict its ownership or operation of, any business or assets of the Acquired Corporations, Parent or any Subsidiary of Parent, including Acquisition Sub, or to enter into any settlement or consent decree, or agree to any undertaking, with respect to any business or assets of the Acquired Corporations, Parent or any Subsidiary of Parent, including Acquisition Sub, (B) enter into, amend or agree to enter into or amend, any Contract of the Acquired Corporations, Parent or any Subsidiary of Parent, including Acquisition Sub, that imposes any material limitations on the ability of Parent or any of its Affiliates to effectively exercise full rights of the shares of Company Common Stock or (C) otherwise waive, abandon or alter any material rights or material obligations of the Acquired Corporations, Parent or any Subsidiary of Parent, including Acquisition Sub. Furthermore, notwithstanding anything to the contrary contained herein, in connection with obtaining any Consent from any third party, without the prior written consent of Parent, none of the Acquired Corporations or any of their respective Representatives, shall pay or commit to pay to such Person whose approval or consent is being solicited any cash or other consideration, make any accommodation or commitment or incur any liability or other obligation to such Person.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Par Pacific Holdings, Inc.)
Regulatory and Other Approvals. (a) Each party During the Interim Period, each Party shall use commercially cooperate with the other Party and shall use, and shall cause their respective Affiliates to use, their respective reasonable best efforts to file, as soon as practicable after the date of this Agreement, all notices, reports and other documents required take or cause to be filed taken all actions, and do or cause to be done all things, necessary, proper or advisable to consummate the Transactions, including (i) making or causing to be made the filings required of such Party or any of its Affiliates by such party with any Governmental Body Law with respect to the OfferTransactions, as promptly as is reasonably practicable (and, with respect to the Merger and HSR Act, in any event within 10 Business Days after the Signing Date), (ii) cooperating with the other Contemplated TransactionsParty and furnishing to the other Party all information in such Party’s possession that is necessary in connection with such other Party’s filings, and to submit promptly any additional information requested by any such Governmental Body. Without limiting (iii) causing the generality expiration or termination of the foregoing, the Company and Parent shall prepare and file the notification and report forms required to be filed notice or waiting periods under the HSR Act within five business days following and any other Laws with respect to the date of this Agreement. The Company and Parent shall prepare and file any notification or other document required to be filed under any applicable foreign antitrust or competition-related Legal Requirement of the jurisdictions set forth in Part 6.2(a) of the Disclosure Schedule (the “Foreign Competition Authorities”) in connection with the Offer, the Merger and the other Contemplated Transactions promptly after the date of this Agreement. The Company and Parent shall respond as promptly as is reasonably practicable to: after the Signing Date, (iiv) any inquiries or requests received from the Federal Trade Commission, the Department of Justice or the Foreign Competition Authorities for additional information or documentation; and (ii) any inquiries or requests received from any state attorney general, other foreign antitrust or competition authority or other Governmental Body in connection with antitrust or related matters. At the request of Parent, the Company shall divest, sell, dispose of, hold separate or take any other action with respect to any of the businesses, product lines or assets of the Acquired Corporations, provided, however, that any such action is conditioned upon the consummation of the Offer or the Merger.
(b) Subject to the confidentiality provisions of the Confidentiality Agreement, Parent and the Company each shall use commercially reasonable efforts to promptly supply informing the other with Party of any information which may be required in order to effectuate communication from or to, and any filings (including applications) pursuant to (and to otherwise comply with its obligations set forth in) Section ý6.2(a). Unless prohibited by Legal Requirements proposed understanding or agreement with, any Governmental Body, and subject to the confidentiality provisions of the Confidentiality Agreement, each of Parent and the Company shall: (i) consult with the other prior to taking a position Authority with respect to any such filing; (ii) permit filings, and permitting the other Party to review in advance any proposed communication by such Party to any Governmental Authority with respect to any such filings, (v) consulting and discuss in advance, and consider in good faith the views of cooperating with the other Party in connection with, with any analyses, appearances, presentations, memoranda, briefs, white papers, arguments, arguments and opinions and proposals before making to be made or submitting any of the foregoing to any Governmental Body submitted by or on behalf of any party hereto Party in connection with any Legal Proceeding related solely meetings or communications with, or Actions involving, any Governmental Authority with respect to this Agreement any such filings, (vi) complying, as promptly as is reasonably practicable, with any requests received from a Governmental Authority by such Party or any of its Affiliates under the HSR Act or any other Laws for additional information, documents or other materials with respect to any such filings and (vii) resolving any formal or informal objections of any Governmental Authority with respect to any such filings or the Contemplated Transactions.
(b) The Purchaser shall take, and shall cause its Affiliates to take or cause to be taken, all reasonable actions, and do or cause to be done all things, reasonable, necessary, proper and advisable to avoid the entry of, effect the dissolution of and have vacated, lifted, reversed or overturned, as applicable, any Order or Action that would prevent, prohibit, restrict or delay the consummation of the Transactions, in each case, to enable the Closing to occur as expeditiously as possible after the Signing Date and prior to the Outside Date, including contesting, defending and appealing any threatened or pending preliminary or permanent injunction or other Law, Order or Action that would adversely affect the ability of any Party to consummate the Transactions and taking any and all other reasonable actions to prevent the entry, enactment or promulgation thereof, it being acknowledged and agreed by the Purchaser that the Seller shall be under no obligation to take any of the actions contemplated by this Section 6.02(b) with respect to itself or its Affiliates (including any member of the Company Group) and that the absence of any such Legal Proceeding relating obligations shall in no way limit the Purchaser’s obligations thereunder.
(c) Notwithstanding anything herein to the contrary, neither the Purchaser nor any antitrustof its Affiliates (and including the Business of the Company Group after Closing) shall be required to (each, competition a “Divestiture Action”): (i) sell or fair trade Legal Requirement)otherwise disposing of, or holding separate and agreeing to sell or otherwise dispose of, assets, categories of assets or businesses; (ii) terminate existing relationships, contractual rights or obligations; (iii) coordinate terminate any venture or other arrangement; (iv) create any relationship, contractual rights or obligations; (v) effectuate any other change or restructuring of the Purchaser or its Affiliates, the Business the assets of the Company Group, or the members of the Company Group; or (vi) otherwise take or commit to take any action that would limit the Purchaser’s or its Affiliates’ freedom of action with respect to, or its ability to retain or hold, directly or indirectly, any businesses, assets, equity interests, product lines or properties of the Purchaser or its Affiliates’ or any equity interest in any joint venture held by the Purchaser or its Affiliates. Notwithstanding anything herein to the contrary, the Seller shall not be required to cause the Company Group to take (and the Purchaser and the Seller shall not commit the Company Group to take) any Divestiture Action in connection with any of the matters described in this Section 6.02(c), absent the mutual written agreement of the Parties.
(d) Neither Party nor its Representatives shall participate in or agree to participate in any communication or meeting with any Governmental Authority in respect of any filings contemplated by Section 6.02(a) or investigation or other inquiry in connection therewith unless it consults with the other Party in preparing advance and, to the extent permitted by such Governmental Authority, affords the other Party the opportunity to attend and exchanging participate in such information; and (iv) promptly communication or meeting. Each Party shall provide the other (and its counsel) Party with copies of all filingscorrespondence, noticeswhitepapers and communications between such Party or any of its Representatives, analyseson the one hand, presentationsand any Governmental Authority, memorandaon the other hand, briefs, white papers, opinions, proposals and other submissions (and a summary in respect of any oral presentationsfilings contemplated by Section 6.02(a) made or submitted by such party investigation or other inquiry in connection therewith with or respect to any Governmental Body related solely to this Agreement or the Contemplated Transactions. Notwithstanding anything to the contrary in this Section 6.26.02, Parent (i) each Party may redact from any materials provided to the other Party pursuant to this Section 6.02 any references to the valuation of the Purchased Interests or any information governed by the attorney-client privilege, the work product doctrine or any similar privilege and the Company (ii) each Party may, as each deems advisable and it determines is reasonably necessary, reasonably designate any competitively sensitive material provided to the other under Party pursuant to this Section 6.2 6.02 as “Outside Counsel Only MaterialOnly,” or otherwise reasonably redact highly confidential content from which materials and the materials produced information contained therein shall be provided only to the other.
(c) Unless prohibited by Legal Requirements or any Governmental Body, each of Parent and the Company shall notify the other promptly upon the receipt of: (i) any communication from any official of any Governmental Body in connection with any filing made pursuant to this Agreement; (ii) knowledge of the commencement or threat of commencement of any Legal Proceeding by or before any Governmental Body with respect to the Contemplated Transactions (receiving Party’s outside legal counsel and shall keep the other party informed as to the status of any such Legal Proceeding or threat); and (iii) any request by any official of any Governmental Body for any amendment or supplement to any filing made pursuant to this Agreement or any information required to comply with any Legal Requirements applicable to the Contemplated Transactions. Parent shall not be entitled to direct any defense of the Offer, the Merger and the other Contemplated Transactions. Unless prohibited by Legal Requirements or any Governmental Body, whenever any event occurs that is required to be set forth in an amendment or supplement to any filing made pursuant to Section 6.2(a), Parent or the Company, as the case may be, shall (promptly upon learning of the occurrence of such event) inform the other of the occurrence of such event and cooperate in filing with the applicable Governmental Body such amendment or supplement.
(d) Parent and the Company shall use commercially reasonable efforts to take, or cause to be taken, all actions necessary to consummate the Offer and the Merger and make effective the other Contemplated Transactions. Without limiting the generality of the foregoing, each party to this Agreement: (i) shall make all filings (if any) and give all notices (if any) required to be made and given disclosed by such party in connection with the Offer, the Merger and the other Contemplated Transactions; (ii) shall use commercially reasonable efforts outside counsel to obtain each Consent (if any) required to be obtained (pursuant to any applicable Legal Requirement or Contract, or otherwise) by such party in connection with the Offer, the Merger or any of the other Contemplated Transactions; and (iii) shall defend through litigation on the merits any claim asserted in court by the United States Department of Justice receiving Party’s directors, officers, employees or United States Federal Trade Commission under antitrust or competition-related Legal Requirement in order to avoid entry of any decree, order or judgment (whether temporary, preliminary or permanent) that could restrain, delay, or prevent the Closing by the Outside Date. Notwithstanding anything to the contrary herein, nothing in this Agreement shall require Parent or any of its Subsidiaries to, nor shall any Acquired Corporation members without the prior written consent of Parent agree or offer to: the disclosing Party.
(Ae) effect any divestiture of, or hold separate (including by establishing a trust or otherwise), or agree to restrict its ownership or operation of, any business or assets The Purchaser shall pay all of the Acquired Corporations, Parent or any Subsidiary of Parent, including Acquisition Sub, or filing fees required to enter into any settlement or consent decree, or agree to any undertaking, with respect to any business or assets of the Acquired Corporations, Parent or any Subsidiary of Parent, including Acquisition Sub, (B) enter into, amend or agree to enter into or amend, any Contract of the Acquired Corporations, Parent or any Subsidiary of Parent, including Acquisition Sub, that imposes any material limitations on the ability of Parent or any of its Affiliates to effectively exercise full rights of the shares of Company Common Stock or (C) otherwise waive, abandon or alter any material rights or material obligations of the Acquired Corporations, Parent or any Subsidiary of Parent, including Acquisition Sub. Furthermore, notwithstanding anything to the contrary contained herein, be paid in connection with obtaining any Consent from any third party, without the prior written consent of Parent, none of the Acquired Corporations or any of their respective Representatives, shall pay or commit to pay to such Person whose approval or consent is being solicited any cash or other consideration, make any accommodation or commitment or incur any liability or other obligation to such Personfilings contemplated by this Section 6.02.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Delek Logistics Partners, LP)
Regulatory and Other Approvals. (a) Each party shall use commercially reasonable efforts to file, as soon as practicable after From the date of this Agreement, all notices, reports and other documents required to be filed by such party with any Governmental Body with respect to the Offer, the Merger and the other Contemplated Transactions, and to submit promptly any additional information requested by any such Governmental Body. Without limiting the generality of the foregoing, the Company and Parent shall prepare and file the notification and report forms required to be filed under the HSR Act within five business days following the date of this Agreement. The Company and Parent shall prepare and file any notification or other document required to be filed under any applicable foreign antitrust or competition-related Legal Requirement of the jurisdictions set forth in Part 6.2(a) of the Disclosure Schedule Agreement until Closing (the “Foreign Competition Authorities”) in connection with the Offer, the Merger and the other Contemplated Transactions promptly after the date of this Agreement. The Company and Parent shall respond as promptly as practicable to: (i) any inquiries or requests received from the Federal Trade Commission, the Department of Justice or the Foreign Competition Authorities for additional information or documentation; and (ii) any inquiries or requests received from any state attorney general, other foreign antitrust or competition authority or other Governmental Body in connection with antitrust or related matters. At the request of Parent, the Company shall divest, sell, dispose of, hold separate or take any other action with respect to any of the businesses, product lines or assets of the Acquired Corporations, provided, however, that any such action is conditioned upon the consummation of the Offer or the Merger.Interim Period”):
(ba) Subject to the confidentiality provisions of the Confidentiality Agreement, Parent and the Company each shall use commercially reasonable efforts to promptly supply the other with any information which may be required in order to effectuate any filings (including applications) pursuant to (and to otherwise comply with its obligations set forth in) Section ý6.2(a). Unless prohibited by Legal Requirements or any Governmental Body, and subject to the confidentiality provisions of the Confidentiality Agreement, each of Parent and the Company shall: (i) consult with the other prior to taking a position with respect to any such filing; (ii) permit the other to review and discuss in advance, and consider in good faith the views of the other in connection with, any analyses, appearances, presentations, memoranda, briefs, white papers, arguments, opinions and proposals before making or submitting any of the foregoing to any Governmental Body by or on behalf of any party hereto in connection with any Legal Proceeding related solely to this Agreement or the Contemplated Transactions (including any such Legal Proceeding relating to any antitrust, competition or fair trade Legal Requirement); (iii) coordinate with the other in preparing and exchanging such information; and (iv) promptly provide the other (and its counsel) with copies of all filings, notices, analyses, presentations, memoranda, briefs, white papers, opinions, proposals and other submissions (and a summary of any oral presentations) made or submitted by such party with or to any Governmental Body related solely to this Agreement or the Contemplated Transactions. Notwithstanding anything to the contrary in this Section 6.2, Parent and the Company may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section 6.2 as “Outside Counsel Only Material” or otherwise reasonably redact highly confidential content from the materials produced to the other.
paragraph (c) Unless prohibited by Legal Requirements or any Governmental Body, each of Parent and the Company shall notify the other promptly upon the receipt of: (i) any communication from any official of any Governmental Body in connection with any filing made pursuant to this Agreement; (ii) knowledge of the commencement or threat of commencement of any Legal Proceeding by or before any Governmental Body with respect to the Contemplated Transactions (and shall keep the other party informed as to the status of any such Legal Proceeding or threat); and (iii) any request by any official of any Governmental Body for any amendment or supplement to any filing made pursuant to this Agreement or any information required to comply with any Legal Requirements applicable to the Contemplated Transactions. Parent shall be entitled to direct any defense of the Offer, the Merger and the other Contemplated Transactions. Unless prohibited by Legal Requirements or any Governmental Body, whenever any event occurs that is required to be set forth in an amendment or supplement to any filing made pursuant to Section 6.2(a), Parent or the Company, as the case may be, shall (promptly upon learning of the occurrence of such event) inform the other of the occurrence of such event and cooperate in filing with the applicable Governmental Body such amendment or supplement.
(d) Parent and the Company shall Parties will use their respective commercially reasonable efforts to take, or cause to be taken, all actions necessary and to consummate do, or cause to be done, all things necessary, proper or advisable to obtain the Offer and the Merger and make effective the other Contemplated Transactions. Without limiting the generality of the foregoingrequired filings or consents with or from any Governmental Authority, each party to this Agreement: including by (i) shall make preparing, as soon as is practical following the execution of this Agreement, all necessary filings (if any) and give all notices (if any) in connection with the transactions contemplated by this Agreement that may be required to be made and given filed by such Party pursuant to any other foreign, federal, state or local Laws, (ii) submitting such filings as soon as practicable, but in no event later than thirty (30) days after the execution hereof, (iii) assuring that all such filings are in material compliance with the requirements of applicable regulatory laws, (iv) making available to the other Party such information as the other Party may reasonably request in order to complete the filings or to respond to information requests by any relevant Governmental Authority, (v) keeping each other apprised of the status of matters relating to the completion of the transactions contemplated thereby, including but not limited to promptly furnishing the other with copies of notices or other communications, filings or correspondence between the Parties, or any of their respective Affiliates, and any Governmental Authority (or members of their respective staffs) with respect to the transactions and (vi) executing and delivering any additional instruments necessary to fully carry out the purposes of this Agreement. Except as set forth in Section 10.3, each Party shall bear its own fees, costs and all other expenses associated with any filings or consents with or from any third party in connection with or otherwise related to the Offer, the Merger and the other Contemplated Transactions; (ii) transactions contemplated hereby. Buyer shall use commercially reasonable its best efforts to obtain each Consent the necessary approvals (if anyincluding the PSC Approval) required to be obtained permit Closing to occur on or prior to the Outside Date.
(pursuant b) Prior to communicating any information to any applicable Legal Requirement Governmental Authority (or Contractmembers of their respective staffs) in oral or written form, each Party shall permit counsel for the other Party a reasonable opportunity to review and provide comments thereon, and consider in good faith the views of the other Party in connection with, any proposed communication to any Governmental Authority (or otherwisemembers of their respective staffs) to the extent permitted by such party Law. Each of Buyer, on the one hand, and Seller (on behalf of itself and the Acquired Company), on the other hand, agrees not to participate in any meeting or discussion, either in person or by telephone, with any Governmental Authority in connection with the Offerproposed transaction unless it consults with the other Party in advance and, to the Merger extent not prohibited by such Governmental Authority or by Law, gives the other Party the opportunity to attend and participate where ACCEPTED FOR PROCESSING - 2023 June 9 12:24 PM - SCPSC - 2023-189-E - Page 29 of 45
(c) In addition to Section 6.1(a), Buyer shall undertake promptly any and all actions required to complete lawfully the transactions contemplated by this Agreement as soon as possible, including by (i) responding to and complying with, as promptly as reasonably practicable, any request for information or documentary material regarding the transactions from any relevant Governmental Authority, (ii) causing the prompt expiration or termination (including requesting early termination and/or approvals thereof) of any applicable waiting period and clearance or approval by any relevant Governmental Authority, including defense against, and the resolution of, any objections or challenges, in court or otherwise, by any relevant Governmental Authority preventing or seeking to prevent the consummation of the other Contemplated Transactions; and transactions contemplated hereby, (iii) shall defend through litigation on the merits any claim asserted in court proposing, negotiating, committing to and effecting, by the United States Department of Justice or United States Federal Trade Commission under antitrust or competition-related Legal Requirement in order to avoid entry of any consent decree, order hold separate Order or judgment otherwise, the sale, divestiture or other disposition of assets, businesses, products or product lines of Buyer (whether temporary, preliminary or permanent) that could restrain, delay, or prevent the Closing by the Outside Date. Notwithstanding anything to the contrary herein, nothing in this Agreement shall require Parent or any of its Subsidiaries Affiliates) or the Acquired Company, (iv) creating or terminating relationships, ventures, contractual rights or liabilities of Buyer (or any of its Affiliates) or the Acquired Company and (v) otherwise taking or committing to take actions that after the Closing would limit the freedom of Buyer (or any of its Affiliates) or the Acquired Company with respect to, nor shall any or its ability to retain, one or more of its or its Affiliates’ or the Acquired Corporation without Company’s businesses, product lines or assets, in each case as may be required in order to obtain all required actions or nonactions, waivers, expirations or terminations of waiting periods, clearances, consents or Orders and to avoid the prior written consent of Parent agree or offer to: (A) effect any divestiture entry of, or hold separate (including by establishing a trust or otherwise), or agree to restrict its ownership or operation effect the dissolution of, any business injunction, temporary restraining Order or assets other Order in any Claims that would otherwise have the effect of preventing the Closing or delaying the Closing beyond the Outside Date (each of clauses (iii), (iv) and (v), a “Divestiture Action”). The entry by any Governmental Authority in any legal proceeding of an Order permitting the consummation of the Acquired Corporations, Parent transactions contemplated hereby but which is subject to certain conditions or any Subsidiary of Parent, including Acquisition Sub, or to enter into any settlement or consent decree, or agree to any undertaking, with respect to any business or assets of the Acquired Corporations, Parent or any Subsidiary of Parent, including Acquisition Sub, (B) enter into, amend or agree to enter into or amend, any Contract of the Acquired Corporations, Parent or any Subsidiary of Parent, including Acquisition Sub, that imposes any material limitations on the ability of Parent requires Buyer or any of its Affiliates to effectively exercise full rights take any action, including any restructuring of the shares of Company Common Stock or (C) otherwise waive, abandon or alter any material rights or material obligations assets of the Acquired Corporations, Parent Company or any Subsidiary lines of Parent, including Acquisition Sub. Furthermore, notwithstanding anything to the contrary contained herein, in connection with obtaining any Consent from any third party, without the prior written consent business of Parent, none of the Acquired Corporations Buyer or any of their respective Representativesits Affiliates or any changes to the existing business of Buyer or any of its Affiliates, shall pay not be deemed a failure to satisfy the condition specified in Section 7.01 and Section 7.02(a).
(d) Buyer further agrees that neither it nor any of its Affiliates shall, prior to Closing, enter into any other Contract to acquire or commit market or control the output of, nor acquire or market or control the output of, demand response customers, electric generating facilities or uncommitted generation capacity in any market in which the Acquired Company operates if the proposed acquisition or ability to pay market or control output of such additional demand response customers, electric generating facilities or uncommitted generation capacity in such market could reasonably be expected to increase the market power attributable to Buyer and its Affiliates in such Person whose market in a manner materially adverse to approval of the transactions contemplated by this Agreement or consent is being solicited any cash that could reasonably be expected to prevent or other considerationotherwise materially interfere with, make any accommodation or commitment or incur any liability or other obligation to such Personmaterially delay the consummation of the transactions contemplated by, this Agreement.
Appears in 1 contract
Samples: Purchase and Sale Agreement
Regulatory and Other Approvals. (a) Each party shall use commercially reasonable efforts to file, as soon as practicable after the date of this Agreement, all notices, reports and other documents required to be filed by such party with any Governmental Body with respect to the Offer, the Merger and the other Contemplated Transactions, and to submit promptly any additional information requested by any such Governmental Body. Without limiting the generality of the foregoing, the Company and Parent shall prepare and file the notification and report forms required to be filed under the HSR Act within five business days following the date of this Agreement. The Company and Parent shall prepare and file any notification or other document required to be filed under any applicable foreign antitrust or competition-related Legal Requirement of the jurisdictions set forth in Part 6.2(a) of the Disclosure Schedule (the “Foreign Competition Authorities”) in connection with the Offer, the Merger and the other Contemplated Transactions promptly after the date of this Agreement. The Company and Parent shall respond as promptly as practicable to: (i) any inquiries or requests received from the Federal Trade Commission, the Department of Justice or the Foreign Competition Authorities for additional information or documentation; and (ii) any inquiries or requests received from any state attorney general, other foreign antitrust or competition authority or other Governmental Body in connection with antitrust or related matters. At the request of Parent, the Company shall divest, sell, dispose of, hold separate or take any other action with respect to any of the businesses, product lines or assets of the Acquired Corporations, provided, however, that any such action is conditioned upon the consummation of the Offer or the Merger.
(b) Subject to the confidentiality provisions of the Confidentiality Agreement, Parent and the Company each shall use commercially reasonable efforts to promptly supply the other with any information which may be required in order to effectuate any filings (including applications) pursuant to (and to otherwise comply with its obligations set forth in) Section ý6.2(a). Unless prohibited by Legal Requirements or any Governmental Body, and subject to the confidentiality provisions of the Confidentiality Agreement, each of Parent and the Company shall: (i) consult with the other prior to taking a position with respect to any such filing; (ii) permit the other to review and discuss in advance, and consider in good faith the views of the other in connection with, any analyses, appearances, presentations, memoranda, briefs, white papers, arguments, opinions and proposals before making or submitting any of the foregoing to any Governmental Body by or on behalf of any party hereto in connection with any Legal Proceeding related solely to this Agreement or the Contemplated Transactions (including any such Legal Proceeding relating to any antitrust, competition or fair trade Legal Requirement); (iii) coordinate with the other in preparing and exchanging such information; and (iv) promptly provide the other (and its counsel) with copies of all filings, notices, analyses, presentations, memoranda, briefs, white papers, opinions, proposals and other submissions (and a summary of any oral presentations) made or submitted by such party with or to any Governmental Body related solely to this Agreement or the Contemplated Transactions. Notwithstanding anything to the contrary in this Section 6.2, Parent and the Company may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section 6.2 as “Outside Counsel Only Material” or otherwise reasonably redact highly confidential content from the materials produced to the other.
(c) Unless prohibited by Legal Requirements or any Governmental Body, each of Parent and the Company shall notify the other promptly upon the receipt of: (i) any communication from any official of any Governmental Body in connection with any filing made pursuant to this Agreement; (ii) knowledge of the commencement or threat of commencement of any Legal Proceeding by or before any Governmental Body with respect to the Contemplated Transactions (and shall keep the other party informed as to the status of any such Legal Proceeding or threat); and (iii) any request by any official of any Governmental Body for any amendment or supplement to any filing made pursuant to this Agreement or any information required to comply with any Legal Requirements applicable to the Contemplated Transactions. Parent shall be entitled to direct any defense of the Offer, the Merger and the other Contemplated Transactions. Unless prohibited by Legal Requirements or any Governmental Body, whenever any event occurs that is required to be set forth in an amendment or supplement to any filing made pursuant to Section 6.2(a), Parent or the Company, as the case may be, shall (promptly upon learning of the occurrence of such event) inform the other of the occurrence of such event and cooperate in filing with the applicable Governmental Body such amendment or supplement.
(d) Parent and the Company Party shall use commercially reasonable efforts to take, or cause to be taken, all actions necessary actions, and to do, or cause to be done, all things necessary, proper or advisable under any applicable Laws to consummate the Offer and the Merger and make effective the other Contemplated Transactions. Without limiting the generality of the foregoing, each party to this Agreement: including (i) shall make all filings (if any) filing any notification and give all notices (if any) report forms required to be made for the consummation of the Transactions under the HSR Act within 15 Business Days after the Execution Date; and given by such party in connection with the Offer, the Merger and the other Contemplated Transactions; (ii) shall use using commercially reasonable efforts to obtain each Consent (if any) required to be obtained (pursuant to cause any applicable Legal Requirement or Contract, or otherwise) by such party in connection waiting period under the HSR Act with the Offer, the Merger or any of the other Contemplated Transactions; and (iii) shall defend through litigation on the merits any claim asserted in court by the United States Department of Justice or United States Federal Trade Commission under antitrust or competition-related Legal Requirement in order to avoid entry of any decree, order or judgment (whether temporary, preliminary or permanent) that could restrain, delay, or prevent the Closing by the Outside Date. Notwithstanding anything respect to the contrary herein, nothing in this Agreement Transactions to expire or terminate at the earliest time that is reasonably practicable and shall require request “early termination” with respect to the waiting period under the HSR Act. Parent or shall not agree to extend any of its Subsidiaries to, nor shall any Acquired Corporation waiting period under the HSR Act without the prior written consent of the Company. Parent agree shall pay all HSR Act filing fees related to the Transaction. Otherwise, each Party shall each pay its own preparation costs and expenses; provided, however, that reasonable and documented fees incurred by the Company or offer the Blocker Companies under this Section 6.1 related to the Transactions shall constitute a Company Transaction Expense.
(b) Each Party shall, and shall cause its respective Subsidiaries to: , (Ai) effect any divestiture promptly inform the other Parties of, or hold separate (including by establishing a trust or otherwise), or agree and supply to restrict its ownership or operation ofthe other Parties, any business communication (or assets other correspondence or memoranda) from or to, and any proposed understanding or agreement with, any Governmental Authority in connection with this Agreement or the Transactions; (ii) consult and cooperate in good faith with the other Parties in connection with any filings, notifications, submissions, analyses, appearances, presentations, memoranda, briefs, arguments and opinions made or submitted by or on behalf of any Party in connection with all meetings, actions, discussions and Proceedings with Governmental Authorities relating to this Agreement or the Transactions, including, subject to applicable Law, permitting the other Parties to review in advance, and considering in good faith the views of the Acquired Corporationsother Party with respect to, Parent or any Subsidiary of Parent, including Acquisition Sub, or to enter into any settlement or consent decree, or agree proposed written communication to any undertakingGovernmental Authority and to promptly provide the other Parties with copies of any communication to any Governmental Authority; (iii) use commercially reasonable efforts to comply, as promptly as reasonably practicable, with respect to any business or assets of the Acquired Corporations, Parent or any Subsidiary of Parent, including Acquisition Sub, (B) enter into, amend or agree to enter into or amend, any Contract of the Acquired Corporations, Parent or any Subsidiary of Parent, including Acquisition Sub, that imposes any material limitations on the ability of Parent requests received by a Party or any of its Affiliates Subsidiaries under the HSR Act and any other applicable Law for additional information, documents or other materials; (iv) give the other Parties reasonable advance notice of its or its Subsidiaries’ intention to effectively exercise full rights of participate in any meeting or telephone or other discussion with any Governmental Authority with respect to the shares of Company Common Stock or (C) otherwise waive, abandon or alter any material rights or material obligations of the Acquired Corporations, Parent Transactions or any Subsidiary of Parentfilings, including Acquisition Sub. Furthermore, notwithstanding anything to the contrary contained herein, investigations or inquiries made in connection with obtaining the Transactions, and an opportunity to participate in such meeting or discussion; and (v) contest and resist any Consent from Proceeding instituted (or threatened in writing to be instituted) by any third party, without Governmental Authority challenging the prior written consent Transactions as being in violation of Parent, none of the Acquired Corporations or any of their respective Representatives, shall pay or commit to pay to such Person whose approval or consent is being solicited any cash or other consideration, make any accommodation or commitment or incur any liability or other obligation to such Personapplicable Law.
Appears in 1 contract
Samples: Merger Agreement (Matlin & Partners Acquisition Corp)
