Regulatory Approvals; Consents. (a) Subject to Section 7.1(b) and otherwise in accordance with the express provisions of the Agreement, the Buyer Parties and the Company Parties shall use their respective reasonable best efforts to take, or cause to be taken, all actions necessary, proper or advisable to cause the conditions set forth in Articles VIII, IX and X to be satisfied and to consummate and make effective the Merger Transactions as promptly as practicable after expiration of the Due Diligence Period. Without limiting the generality of the foregoing, from expiration of the Due Diligence Period until the Closing Date, the Buyer Parties and the Company Parties (i) shall make all filings (if any) and give all notices (if any) required to be made and given by such party hereto in connection with the Merger Transactions and shall submit promptly any additional information requested in connection with such filings and notices, (ii) shall use their respective reasonable best efforts to obtain or cause to be obtained each Consent (if any) required to be obtained (pursuant to any applicable Legal Requirements or Contract, or otherwise) by such party hereto in connection with the execution and delivery of this Agreement and the consummation of the Merger Transactions and (iii) shall use their respective reasonable best efforts to oppose or lift any restraint, injunction or other legal bar to the Merger Transactions. Each of the Company and Parent shall promptly deliver to the other a copy of each such filing made, each such notice given and each such Consent obtained during the Pre-Closing Period. (b) Without limiting the generality of Section 7.1(a), the Company and Parent shall, promptly after the expiration of the Due Diligence Period, prepare and file the notifications, if any, required under the HSR Act and any applicable foreign antitrust laws or regulations in connection with any of the Merger Transactions. The Company Parties and the Buyer Parties shall respond as promptly as practicable to any inquiries or requests received from any Governmental Body in connection with antitrust laws or related matters. The Company Parties and the Buyer Parties shall coordinate and cooperate fully with each other in exchanging such information and providing such assistance as the other may reasonably request in connection with the foregoing and in seeking the earliest possible termination of any applicable waiting periods or suspension effects imposed by any Legal Requirements. Each of the Company Parties and the Buyer Parties shall (i) give the other parties hereto prompt notice of the commencement or threat of commencement of any Legal Proceeding by or before any Governmental Body with respect to this Agreement or any of the Merger Transactions, (ii) keep the other party informed as to the status of any such Legal Proceeding or threat and (iii) promptly inform the other parties hereto of any communication concerning antitrust laws to or from any Governmental Body regarding this Agreement or any of the Merger Transactions. Except as may be prohibited by any Governmental Body or by any Legal Requirement, the Company and Parent will consult and cooperate with one another, and will consider in good faith the views of one another, in connection with any analysis, appearance, presentation, memorandum, brief, argument, opinion or proposal made or submitted in connection with any Legal Proceeding under or relating to the HSR Act or any other antitrust law. Subject to the foregoing, Parent shall be principally responsible for and in control of the process of dealing with any Governmental Body concerning the effect of applicable antitrust laws on this Agreement and any of the Merger Transactions. In addition, except as may be prohibited by any Governmental Body or by any Legal Requirement, in connection with any Legal Proceeding under or relating to the HSR Act or any other foreign, federal or state antitrust law or fair trade law or any other similar Legal Proceeding, each of the Company and Parent will permit authorized Representatives of the other to be present at each meeting or conference relating to any such Legal Proceeding and to have access to and be consulted in connection with any document, opinion or proposal made or submitted to any Governmental Body in connection with any such Legal Proceeding. (c) Notwithstanding anything to the contrary contained in this Agreement, Parent shall not have any obligation under this Agreement: (i) to dispose, transfer or hold separate, or cause any of its Subsidiaries to dispose, transfer or hold separate any assets or operations, or to commit or to cause any of the Acquired Companies to dispose of any assets, (ii) to discontinue or cause any of its Subsidiaries to discontinue offering any product or service, or to commit to cause any of the Acquired Companies to discontinue offering any product or service or (iii) to make or cause any of its Subsidiaries to make any commitment (to any Governmental Body or otherwise) regarding its future operations or the future operations of any of the Acquired Companies. (d) The Company shall use its reasonable best efforts to obtain the Consents and waivers required to satisfy Parent’s and MergerCo’s conditions to Closing set forth in this Agreement.
Appears in 4 contracts
Samples: Merger Agreement (Inland American Real Estate Trust, Inc.), Merger Agreement (Inland American Real Estate Trust, Inc.), Merger Agreement (Inland American Real Estate Trust, Inc.)
Regulatory Approvals; Consents. (a) Subject Upon the terms and subject to Section 7.1(b) and otherwise the conditions set forth in accordance with the express provisions this Agreement, each of the Agreement, the Buyer Parties and the Company Parties shall parties agrees to use their respective its reasonable best efforts to take, or cause to be taken, all actions that are necessary, proper or advisable to cause the conditions set forth in Articles VIII, IX and X to be satisfied and to consummate and make effective effective, in the most expeditious manner practicable, the Merger Transactions as promptly as practicable after expiration of the Due Diligence Period. Without limiting the generality of the foregoing, from expiration of the Due Diligence Period until the Closing Date, the Buyer Parties and the Company Parties other transactions contemplated by this Agreement, including using reasonable best efforts to accomplish the following: (i) shall make obtain all filings (if any) and give all notices (if any) required to be made and given by such party hereto consents, approvals or waivers from, or participation in connection with the Merger Transactions and shall submit promptly other discussions or negotiations with, third parties, including as required under any additional information requested in connection with such filings and noticesCompany Material Contract, (ii) shall use their respective obtain all necessary actions or nonactions, waivers, consents, approvals, orders and authorizations from Governmental Entities, make all necessary registrations, declarations and filings and make all reasonable best efforts to obtain an approval or cause waiver from, or to be obtained each Consent avoid any Action by, any Governmental Entity, including (if anyA) filing a Notice and Report Form under the HSR Act with the United States Federal Trade Commission and the Antitrust Division of the United States Department of Justice as promptly as reasonably practicable and in any event within 10 Business Days of the date of this Agreement (unless otherwise mutually agreed upon in writing), (B) filing all other filings and submissions (or substantially complete drafts thereof, as applicable) required to be obtained under any other applicable antitrust, competition, fair trade or similar applicable Laws (collectively, together with the HSR Act, “Antitrust Laws”) as promptly as reasonably practicable (and in any event within 30 Business Days of the date of this Agreement unless otherwise mutually agreed by Parent and the Company in writing), (C) filing all other filings and submissions (or substantially complete drafts thereof, as applicable) required or advisable (as determined pursuant to Section 5.5(a) of the Company Disclosure Letter), as applicable, under any applicable Legal Requirements or Contract, or otherwise) by such party hereto in connection with Foreign Investment Laws as promptly as practicable following the execution and delivery date of this Agreement and (D) filings and notices required by the consummation of the Merger Transactions FCC, and (iii) execute and deliver any additional instruments necessary to consummate the transactions contemplated hereby and fully to carry out the purposes of this Agreement (unless otherwise mutually agreed upon in writing); provided, however, that neither the Company nor any of its Subsidiaries shall use their respective reasonable best efforts commit to oppose or lift the payment of any restraintfee, injunction penalty or other legal bar consideration or make any other concession, waiver or amendment under any Contract in connection with obtaining any consent without the prior written consent of Parent. Subject to Parent’s material compliance with the other provisions of this Section 5.5, Parent has the sole right to control and direct all strategy in connection with review of the transactions contemplated by this Agreement by any Governmental Entity, or any litigation by, or negotiations with, any Governmental Entity or other Person relating to the Merger Transactionstransaction under the HSR Act or any other Antitrust Law or Foreign Investment Law and will take the lead in all meetings, discussions, and communications with any Governmental Entity relating to obtaining approval of the transactions contemplated by this Agreement provided that Parent will consult with and consider in good faith the comments of the Company in connection with any filing, communication, defense, litigation, negotiation, or strategy. Each of the Company and Parent parties hereto shall promptly deliver furnish to the other a copy of each such filing made, each such notice given and each such Consent obtained during the Pre-Closing Period.
(b) Without limiting the generality of Section 7.1(a), the Company and Parent shall, promptly after the expiration of the Due Diligence Period, prepare and file the notifications, if any, required under the HSR Act and any applicable foreign antitrust laws or regulations in connection with any of the Merger Transactions. The Company Parties and the Buyer Parties shall respond as promptly as practicable to any inquiries or requests received from any Governmental Body in connection with antitrust laws or related matters. The Company Parties and the Buyer Parties shall coordinate and cooperate fully with each other in exchanging party such necessary information and providing such reasonable assistance as the such other party may reasonably request in connection with the foregoing foregoing. Subject to applicable Law relating to the exchange of information, Parent and the Company shall each have the right to review in seeking advance, and to the earliest possible termination of any applicable waiting periods or suspension effects imposed by any Legal Requirements. Each extent practicable each shall consult with the other in connection with, all of the Company Parties information relating to Parent or the Company, as the case may be, and any of their respective Subsidiaries, that appears in any filing made with, or written materials submitted to, any third party or any Governmental Entity in connection with the Merger and the Buyer Parties other transactions contemplated hereby. In exercising the foregoing rights, each of Parent and the Company shall (i) give the other parties hereto prompt notice of the commencement act reasonably and as promptly as practicable, including responding as promptly as reasonably practicable and advisable to requests for additional information or threat of commencement of any Legal Proceeding by or before any Governmental Body with respect to this Agreement or any of the Merger Transactions, (ii) keep the other party informed as to the status of any such Legal Proceeding or threat and (iii) promptly inform the other parties hereto of any communication concerning antitrust laws to or inquiries from any Governmental Body regarding this Agreement or any Entity. Subject to applicable Law and the instructions of the Merger Transactions. Except as may be prohibited by any Governmental Body or by any Legal RequirementEntity, the Company and Parent will consult and cooperate with one another, and will consider in good faith shall keep each other reasonably apprised of the views status of one another, in connection with any analysis, appearance, presentation, memorandum, brief, argument, opinion or proposal made or submitted in connection with any Legal Proceeding under or matters relating to the HSR Act completion of the transactions contemplated hereby, including promptly furnishing the other with copies of notices or other written communications received by the Company or Parent, as the case may be, or any other antitrust law. Subject of their respective Subsidiaries, from any Governmental Entity or third party with respect to such transactions, and, to the foregoingextent practicable under the circumstances, Parent shall be principally responsible for provide the other party and its counsel with the opportunity to participate in control of the process of dealing any meeting with any Governmental Body concerning the effect Entity in respect of applicable antitrust laws on any filing, investigation or other inquiry in connection therewith.
(b) The obligations of Parent under this Agreement Section 5.5 include Parent (i) agreeing or proffering to divest or hold separate (in a trust or otherwise, and whether by a consent decree, hold separate order or otherwise), lease, license, transfer, dispose of, commit to behavioral or conduct remedies, or otherwise encumber, limit or impair or take any other action (or refrain from taking any action) with respect to, any of the Merger Transactions. In additionassets or businesses of the Company, except as may be prohibited by Parent or any Governmental Body of their respective Subsidiaries contemporaneously with or by subsequent to the Effective Time and (ii) contesting, and seeking to have vacated, lifted, reversed or overturned any Legal Requirementdecree, order, judgment, or Action seeking to prevent the Merger, in connection with each case, as a condition or in order to obtain the Required Governmental Consents; provided, however, that in the case of clause (i), neither Parent nor any Legal Proceeding under of its Affiliates shall be required to take any action (or relating refrain from taking any action) if the taking of any such action (or omission) would have or would reasonably be expected to have, individually or in the HSR Act or any other foreignaggregate, federal or state antitrust law or fair trade law or any other similar Legal Proceeding, each of a material impact on either (x)(A) the Company and its Subsidiaries (taken as a whole) or (B) Parent will permit authorized Representatives and its Subsidiaries (taken as a whole), but, for purposes of this clause (B), Parent and its Subsidiaries (taken as a whole) shall be deemed to be the same size as the Company and its Subsidiaries (taken as a whole) or (y) the reasonably expected benefits of the other to be present at each meeting or conference relating to any such Legal Proceeding and to have access to and be consulted in connection with any document, opinion or proposal made or submitted to any Governmental Body in connection with any such Legal ProceedingMerger.
(c) Notwithstanding Except as specifically required by this Agreement and notwithstanding anything to the contrary contained in this AgreementSection 5.1(b)(iv), Parent shall not, and shall cause its Subsidiaries not have any obligation under this Agreement: (i) to, directly or indirectly acquire, agree to dispose, transfer or hold separateacquire, or cause make an offer to acquire by merging or consolidating with, purchasing a substantial equity interest in or a substantial portion of the assets of, making an investment in or loan or capital contribution to or in any other manner, any corporation, partnership, association or other business organization or division thereof, the effect of its Subsidiaries which would be to disposematerially delay, transfer or hold separate any assets or operationsimpede, or to commit or to cause any prevent the ability of the Acquired Companies parties to dispose of any assets, (ii) to discontinue or cause any of its Subsidiaries to discontinue offering any product or service, or to commit to cause any of consummate the Acquired Companies to discontinue offering any product or service or (iii) to make or cause any of its Subsidiaries to make any commitment (to any Governmental Body or otherwise) regarding its future operations or Merger and the future operations of any of the Acquired Companiesother transactions contemplated hereby.
(d) The Company shall use its reasonable best efforts to obtain the Consents and waivers required to satisfy Parent’s and MergerCo’s conditions to Closing set forth in this Agreement.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Xylem Inc.), Merger Agreement (Evoqua Water Technologies Corp.)
Regulatory Approvals; Consents. (a) Subject to Section 7.1(b) and otherwise in accordance with the express provisions of the Agreement7.3(b), the Buyer Parties Parent and the Company Parties shall use their respective reasonable best efforts to take, or cause to be taken, all actions necessary, proper or advisable to cause the conditions set forth in Articles VIII, IX and X to be satisfied and to consummate and make effective the Merger Transactions as promptly as practicable after expiration of the Due Diligence Periodpracticable. Without limiting the generality of the foregoing, from expiration of the Due Diligence Period date hereof until the Closing Date, the Buyer Parties and the Company Parties (i) shall make all filings (if any) and give all notices (if any) required to be made and given by such party hereto in connection with the Merger Transactions and shall submit promptly any additional information requested in connection with such filings and notices, (ii) shall use their respective reasonable best efforts to obtain or cause to be obtained each Consent (if any) required to be obtained (pursuant to any applicable Legal Requirements or Contract, or otherwise) by such party hereto in connection with the execution and delivery of this Agreement and the consummation of the Merger Transactions and (iii) shall use their respective reasonable best efforts to oppose or lift any restraint, injunction or other legal bar to the Merger Transactions. Each of the Company and Parent shall promptly deliver to the other a copy of each such filing made, each such notice given and each such Consent obtained during the Pre-Closing Period.
(b) Without limiting the generality of Section 7.1(a7.3(a), the Company and Parent shall, promptly after the expiration date of the Due Diligence Periodthis Agreement, prepare and file the notifications, if any, required under the HSR Act and any applicable foreign antitrust laws or regulations in connection with any of the Merger Transactions. The Company Parties and the Buyer Parties shall respond as promptly as practicable to any inquiries or requests received from any Governmental Body in connection with antitrust laws or related matters. The Company Parties and the Buyer Parties shall coordinate and cooperate fully with each other in exchanging such information and providing such assistance as the other may reasonably request in connection with the foregoing and in seeking the earliest possible termination of any applicable waiting periods or suspension effects imposed by any Legal Requirements. Each of the Company Parties and the Buyer Parties Parent shall (i) give the other parties hereto prompt notice of the commencement or threat of commencement of any Legal Proceeding by or before any Governmental Body with respect to this Agreement or any of the Merger Transactions, (ii) keep the other party informed as to the status of any such Legal Proceeding or threat and (iii) promptly inform the other parties hereto of any communication concerning antitrust laws to or from any Governmental Body regarding this Agreement or any of the Merger Transactions. Except as may be prohibited by any Governmental Body or by any Legal Requirement, the Company and Parent will consult and cooperate with one another, and will consider in good faith the views of one another, in connection with any analysis, appearance, presentation, memorandum, brief, argument, opinion or proposal made or submitted in connection with any Legal Proceeding under or relating to the HSR Act or any other antitrust law. Subject to the foregoing, Parent shall be principally responsible for and in control of the process of dealing with any Governmental Body concerning the effect of applicable antitrust laws on this Agreement and any of the Merger Transactions. In addition, except as may be prohibited by any Governmental Body or by any Legal Requirement, in connection with any Legal Proceeding under or relating to the HSR Act or any other foreign, federal or state antitrust law or fair trade law or any other similar Legal Proceeding, each of the Company and Parent will permit authorized Representatives of the other to be present at each meeting or conference relating to any such Legal Proceeding and to have access to and be consulted in connection with any document, opinion or proposal made or submitted to any Governmental Body in connection with any such Legal Proceeding.
(c) Notwithstanding anything to the contrary contained in this Agreement, Parent shall not have any obligation under this Agreement: (i) to dispose, transfer or hold separate, or cause any of its Subsidiaries to dispose, transfer or hold separate any assets or operations, or to commit or to cause any of the Acquired Companies to dispose of any assets, (ii) to discontinue or cause any of its Subsidiaries to discontinue offering any product or service, or to commit to cause any of the Acquired Companies to discontinue offering any product or service or (iii) to make or cause any of its Subsidiaries to make any commitment (to any Governmental Body or otherwise) regarding its future operations or the future operations of any of the Acquired Companies.
(d) The Company shall use its reasonable best efforts to obtain the Consents and waivers required to satisfy Parent’s and MergerCo’s conditions to Closing set forth in this Agreement.
Appears in 2 contracts
Samples: Merger Agreement (Winston Hotels Inc), Merger Agreement (Inland American Real Estate Trust, Inc.)
Regulatory Approvals; Consents. (a) Subject to Section 7.1(b) Seller will, and otherwise in accordance with the express provisions of the Agreement, the Buyer Parties and will cause the Company Parties shall use their respective reasonable best efforts to taketo, or cause to be taken, all actions necessary, proper or advisable to cause the conditions set forth in Articles VIII, IX and X to be satisfied and to consummate and make effective the Merger Transactions as promptly as practicable after expiration of the Due Diligence Period. Without limiting the generality of the foregoing, from expiration of the Due Diligence Period until the Closing Date, the Buyer Parties and the Company Parties (i) shall make take all filings (if any) commercially reasonable steps necessary or desirable to obtain all consents and give all notices set forth in Schedule 7.1(a), (if anyii) required provide such other information and communications to be made such Governmental Entity or other Persons or Buyer or such Governmental Entity or other Person may reasonably request in connection therewith and given by such party hereto (iii) cooperate with Buyer in connection with the Merger Transactions and shall submit promptly any additional information requested in connection with such filings and notices, performance of its obligations under subsection (ii) shall use their respective reasonable best efforts to obtain or cause to be obtained each Consent (if any) required to be obtained (pursuant to any applicable Legal Requirements or Contract, or otherwise) by such party hereto in connection with the execution and delivery of this Agreement and the consummation of the Merger Transactions and (iii) shall use their respective reasonable best efforts to oppose or lift any restraint, injunction or other legal bar to the Merger Transactions. Each of the Company and Parent shall promptly deliver to the other a copy of each such filing made, each such notice given and each such Consent obtained during the Pre-Closing Periodb).
(b) Without limiting the generality of Section 7.1(a), the Company and Parent shall, promptly after the expiration of the Due Diligence Period, prepare and file the notifications, if any, required under the HSR Act and any applicable foreign antitrust laws or regulations in connection with any of the Merger Transactions. The Company Parties and the Buyer Parties shall respond will as promptly as practicable (i) take all commercially reasonable steps necessary or desirable to any inquiries or requests received from any Governmental Body obtain all consents and give all notices set forth in connection with antitrust laws or related matters. The Company Parties and the Buyer Parties shall coordinate and cooperate fully with each Schedule 7.1(b), (ii) provide such other in exchanging such information and providing communications to such assistance as the Governmental Entity or other Persons or Seller or such Governmental Entity or other Person may reasonably request in connection with the foregoing and in seeking the earliest possible termination of any applicable waiting periods or suspension effects imposed by any Legal Requirements. Each of the Company Parties and the Buyer Parties shall (i) give the other parties hereto prompt notice of the commencement or threat of commencement of any Legal Proceeding by or before any Governmental Body with respect to this Agreement or any of the Merger Transactions, (ii) keep the other party informed as to the status of any such Legal Proceeding or threat therewith and (iii) promptly inform the other parties hereto of any communication concerning antitrust laws to or from any Governmental Body regarding this Agreement or any of the Merger Transactions. Except as may be prohibited by any Governmental Body or by any Legal Requirement, cooperate with Seller and the Company and Parent will consult and cooperate with one another, and will consider in good faith the views of one another, in connection with any analysis, appearance, presentation, memorandum, brief, argument, opinion or proposal made or submitted in connection with any Legal Proceeding the performance of their obligations under or relating to the HSR Act or any other antitrust law. Subject to the foregoing, Parent shall be principally responsible for and in control of the process of dealing with any Governmental Body concerning the effect of applicable antitrust laws on this Agreement and any of the Merger Transactions. In addition, except as may be prohibited by any Governmental Body or by any Legal Requirement, in connection with any Legal Proceeding under or relating to the HSR Act or any other foreign, federal or state antitrust law or fair trade law or any other similar Legal Proceeding, each of the Company and Parent will permit authorized Representatives of the other to be present at each meeting or conference relating to any such Legal Proceeding and to have access to and be consulted in connection with any document, opinion or proposal made or submitted to any Governmental Body in connection with any such Legal Proceedingsubsection (a).
(c) Notwithstanding anything In addition to and not in limitation of the contrary Parties’ covenants contained in this AgreementSection 7.1, Parent shall not have any obligation under this Agreement: Seller and Buyer will (ia) take promptly all actions necessary to dispose, transfer or hold separate, or cause any of its Subsidiaries to dispose, transfer or hold separate any assets or operations, or to commit or to cause any make the filings required of the Acquired Companies to dispose of any assetsParties or their respective Affiliates under the HSR Act, (iib) to discontinue comply at the earliest practicable date with any request for additional information received by the respective Party (or cause any of its Subsidiaries to discontinue offering any product their respective Affiliates) from the Federal Trade Commission or service, or to commit to cause any the Antitrust Division of the Acquired Companies Department of Justice pursuant to discontinue offering the HSR Act and in connection with resolving any product investigation or service or (iii) to make or cause any of its Subsidiaries to make any commitment (to any Governmental Body or otherwise) regarding its future operations other inquiry concerning the transactions contemplated by this Agreement commenced by either the Federal Trade Commission or the future operations of any Antitrust Division of the Acquired CompaniesDepartment of Justice.
(d) The Company shall use its reasonable best efforts Each of the Parties will provide prompt notification to obtain the Consents other Party when any consent, approval, action, filing or notice referred to in clause (a)(i), (b)(i), or (c)(i), as the case may be, is obtained, taken, made or given, as applicable, and waivers required to satisfy Parent’s and MergerCo’s conditions to Closing set forth will advise the other Party of any communications (and, unless precluded by Law, provide copies of any such communications that are in writing) with any Governmental Entity or other Person regarding any of the transactions contemplated by this AgreementAgreement or any other Transaction Document (other than the Ancillary Agreements).
Appears in 1 contract
Samples: Stock Purchase Agreement (Salix Pharmaceuticals LTD)
Regulatory Approvals; Consents. (a) Subject Purchaser shall, and shall cause its respective Affiliates (which, with respect to the Purchaser, for purposes of this Section 7.1(b6.5 shall only include the Purchaser Bound Entities), to: (i) and otherwise in accordance with the express provisions of the Agreement, the Buyer Parties and the Company Parties shall use their respective reasonable best efforts take all actions necessary to take, file or cause to be taken, all actions necessary, proper filed the filings required of it or advisable to cause the conditions set forth in Articles VIII, IX and X to be satisfied and to consummate and make effective the Merger Transactions any of its Affiliates with any applicable Governmental Entity or required under applicable Law as promptly as practicable after expiration but in no event later than the fifth (5th) Business Day following the date hereof, including a request for early termination of the Due Diligence Periodapplicable waiting period under the HSR Act; (ii) take all actions necessary to obtain the required consents from Governmental Entities as promptly as practicable, and in any event prior to the End Date; (iii) at the earliest practicable date comply with (or properly reduce the scope of and thereafter comply with) any formal or informal request for additional information or documentary material received by it or any of its Affiliates from any Governmental Entity; and (iv) consult and cooperate with the Company, and consider in good faith the views of the Company, in connection with any analyses, appearances, presentations, memoranda, briefs, arguments, opinions and proposals made or submitted by or on behalf of any party in connection with proceedings under or relating to any applicable Laws. The Company shall reasonably cooperate with Purchaser in Purchaser’s fulfillment of the preceding obligations, as may be reasonably requested by Purchaser, (provided, that, in the event this Agreement is terminated pursuant to Section 8.1(b), Section 8.1(c), Section 8.1(d), Section 8.1(f), or Section 8.1(h), Purchaser shall promptly reimburse any out-of-pocket fees or expenses or other liabilities or obligations incurred by the Company or any Company Subsidiary in connection therewith with the consent of Purchaser). The Company shall consult and cooperate with Purchaser, and consider in good faith the views of Purchaser, in connection with any analyses, appearances, presentations, memoranda, briefs, arguments, opinions and proposals made or submitted by or on behalf of any party in connection with proceedings under or relating to any applicable Laws. Each of Purchaser and the Company shall promptly notify the other parties hereto of any written communication made to or received by either Purchaser and/or the Company, as the case may be, from any Governmental Entity regarding any of the transactions contemplated hereby, and, subject to applicable Law, if practicable, permit the other parties hereto to review in advance any proposed written communication to any such Governmental Entity and incorporate the other parties’ reasonable comments, not agree to participate in any substantive meeting or discussion with any such Antitrust Authority in respect of any filing, investigation or inquiry concerning this Agreement or the transactions contemplated hereby unless, to the extent reasonably practicable, it consults with the other parties hereto in advance and, to the extent permitted by such Governmental Entity, gives the other parties the opportunity to attend, and furnish the other parties with copies of all correspondence, filings and written communications between them and their Affiliates and their respective Representatives on one hand and any such Governmental Entity or its staff on the other hand, with respect to this Agreement and the transactions contemplated hereby.
(b) Purchaser shall be responsible for the payment of all filing fees under the HSR Act and under any such other laws or regulations applicable to the transactions contemplated hereby.
(c) Purchaser shall not, and shall cause the Purchaser Bound Entities not to, except as permitted by or provided for in this Agreement, without the prior written consent of Seller, take or cause to be taken any action that could reasonably be expected to: (i) impose any material delay in the obtaining of, or materially increase the risk of not obtaining, any consents of any Governmental Entity necessary to consummate the transactions contemplated hereby or the expiration or termination of any applicable waiting period; (ii) materially increase the risk of any Governmental Entity entering an Order prohibiting the consummation of the transactions contemplated hereby; (iii) materially increase the risk of not being able to remove any such Order on appeal or otherwise; or (iv) materially delay or materially prevent the consummation of the transactions contemplated hereby.
(d) Notwithstanding anything else herein to the contrary, Purchaser shall, and shall cause its Affiliates (which, with respect to the Purchaser, for purposes of this Section 6.5 shall only include the Purchaser Bound Entities) to, take all actions necessary to avoid or eliminate each and every impediment under any applicable Law so as to enable the consummation of the transactions contemplated hereby to occur as soon as reasonably possible (and in any event no later than the End Date), including taking all actions requested by any Governmental Entity, or necessary to resolve any objections that may be asserted by any Governmental Entity with respect to the transactions contemplated by this Agreement under any applicable Law. Without limiting the generality of the foregoing, from expiration Purchaser shall, and shall cause its Affiliates (which, with respect to the Purchaser, for purposes of this Section 6.5 shall only include the Due Diligence Period until the Closing Date, the Buyer Parties and the Company Parties Purchaser Bound Entities) to:
(i) shall make at Purchaser’s sole cost, comply with all filings (if any) restrictions and give all notices (if any) required to be made and given by such party hereto in connection with the Merger Transactions and shall submit promptly any additional information requested in connection with such filings and notices, (ii) shall use their respective reasonable best efforts to obtain or cause to be obtained each Consent (if any) required to be obtained (pursuant to any applicable Legal Requirements or Contract, or otherwise) by such party hereto in connection with the execution and delivery of this Agreement and the consummation of the Merger Transactions and (iii) shall use their respective reasonable best efforts to oppose or lift any restraint, injunction or other legal bar to the Merger Transactions. Each of the Company and Parent shall promptly deliver to the other a copy of each such filing made, each such notice given and each such Consent obtained during the Pre-Closing Period.
(b) Without limiting the generality of Section 7.1(a), the Company and Parent shall, promptly after the expiration of the Due Diligence Period, prepare and file the notificationsconditions, if any, required under the HSR Act and imposed or requested by any (A) Governmental Entity with respect to applicable foreign antitrust laws or regulations Laws in connection with granting any necessary clearance or terminating any applicable waiting period including (1) agreeing to sell, divest, hold separate, license, cause a third party to acquire, or otherwise dispose of, any Subsidiary, operations, divisions, businesses, product lines, customers or assets of Purchaser, the Company or the Company Subsidiaries contemporaneously with or after the Closing and regardless as to whether a third party purchaser has been identified or approved prior to the Closing (a “Divestiture”), (2) taking or committing to take such other actions that may limit Purchaser, the Purchaser Bound Entities, the Company or the Company Subsidiaries’ freedom of action with respect to, or its ability to retain, one or more of its operations, divisions, businesses, products lines, customers or assets and (3) entering into any Order, consent decree or other agreement to effectuate any of the Merger Transactions. The Company Parties and the Buyer Parties shall respond as promptly as practicable to any inquiries foregoing or requests received from any Governmental Body (B) third party in connection with antitrust laws a Divestiture;
(ii) terminate any Contract or related matters. The Company Parties and the Buyer Parties shall coordinate and cooperate fully with each other in exchanging such information and providing such assistance business relationship as the other may reasonably request in connection with the foregoing and in seeking the earliest possible be required to obtain any necessary clearance of any Governmental Entity or to obtain termination of any applicable waiting periods period under any applicable Laws;
(iii) without the prior written consent of the Company, not extend any waiting period or suspension effects imposed enter into any agreement or understanding with any Governmental Entity; and
(iv) oppose fully and vigorously any request for the entry of, and seek to have vacated or terminated, any Order, judgment, decree, injunction or ruling of any Governmental Entity that could restrain, prevent or delay the Closing, including by defending through litigation any Action asserted by any Legal Requirements. Each of the Company Parties and the Buyer Parties shall (i) give the other parties hereto prompt notice of the commencement or threat of commencement of Person in any Legal Proceeding by court or before any Governmental Body with respect Entity and by exhausting all avenues of appeal, including appealing properly any adverse decision or Order by any Governmental Entity, or, if requested by the Company, Purchaser shall commence or threaten to commence and pursue vigorously any action the Company believes to be helpful in obtaining any necessary clearance of any Governmental Entity or obtaining termination of any applicable waiting period under any applicable Laws, or in terminating any outstanding action, it being understood that the costs and expenses of all such actions shall be borne by Purchaser; provided, that any such action described in the foregoing clauses (i) and (ii) may, at the discretion of the Company, be conditioned upon the Closing. Notwithstanding anything in this Agreement to the contrary, nothing in this Section 6.5(d) or any other provision in this Agreement shall (A) require or obligate any of Purchaser’s Affiliates, including any investment fund or investment vehicle affiliated with, or managed or advised by, KKR or any of its Affiliates or any portfolio company (as such term is commonly understood in the Merger Transactionsprivate equity industry) or investment of KKR or of any such investment fund or investment vehicle, other than KKR Global Infrastructure Investors IV L.P. and its controlled Affiliates, to take any action or (B) require any Person other than Purchaser, the Company or any Company Subsidiary to take any of the actions described in clauses (i) or (ii). For the avoidance of doubt, only KKR Global Infrastructure Investors IV L.P. and its controlled Affiliates (collectively, the “Purchaser Bound Entities”) will be required to take any action, if any, under this Section 6.5.
(e) In furtherance of the foregoing, in the event that in connection with granting any necessary clearance or terminating any applicable waiting period any Governmental Entity imposes or requests that Purchaser effect any Divestiture or take any other action, in each case, to the extent required pursuant to clauses (i) or (ii) keep the other party informed as to the status of any such Legal Proceeding or threat and (iii) promptly inform the other parties hereto of any communication concerning antitrust laws to or from any Governmental Body regarding this Agreement or any of the Merger Transactions. Except as may be prohibited by any Governmental Body or by any Legal RequirementSection 6.5(d), the Company and Parent will consult and cooperate with one anotherPurchaser shall, and will consider shall cause its Subsidiaries to, negotiate in good faith the views of one another, with all such Governmental Entities and all third parties in connection with any analysis, appearance, presentation, memorandum, brief, argument, opinion such Divestiture or proposal made or submitted other matter referred to in connection with any Legal Proceeding under or relating to the HSR Act or any other antitrust law. Subject to the foregoing, Parent shall be principally responsible for and in control of the process of dealing with any Governmental Body concerning the effect of applicable antitrust laws on this Agreement and any of the Merger Transactions. In addition, except as may be prohibited by any Governmental Body or by any Legal Requirement, in connection with any Legal Proceeding under or relating to the HSR Act or any other foreign, federal or state antitrust law or fair trade law or any other similar Legal Proceeding, each of the Company and Parent will permit authorized Representatives of the other to be present at each meeting or conference relating to any such Legal Proceeding and to have access to and be consulted in connection with any document, opinion or proposal made or submitted to any Governmental Body in connection with any such Legal Proceeding.
(c) Notwithstanding anything to the contrary contained in this Agreement, Parent shall not have any obligation under this Agreement: clauses (i) to dispose, transfer or hold separate, or cause any of its Subsidiaries to dispose, transfer or hold separate any assets or operations, or to commit or to cause any of the Acquired Companies to dispose of any assets, (ii) to discontinue or cause any of its Subsidiaries to discontinue offering any product or service, or to commit to cause any of the Acquired Companies to discontinue offering any product or service or (iii) to make or cause any of its Subsidiaries to make any commitment (to any Governmental Body or otherwise) regarding its future operations or the future operations of any of the Acquired CompaniesSection 6.5(d).
(d) The Company shall use its reasonable best efforts to obtain the Consents and waivers required to satisfy Parent’s and MergerCo’s conditions to Closing set forth in this Agreement.
Appears in 1 contract
Samples: Stock Purchase Agreement (Macquarie Infrastructure Corp)
Regulatory Approvals; Consents. (a) Subject to Section 7.1(b5.3(c) and otherwise in accordance with the express provisions of the Agreement(d), the Buyer Parties Parent and the Company Parties shall use their respective all reasonable best efforts to take, or cause to be taken, all actions necessary, proper or advisable to cause the conditions set forth in Articles VIII, IX and X to be satisfied and necessary to consummate the Merger and make effective the Merger Transactions as promptly as practicable after expiration of the Due Diligence Periodother Contemplated Transactions. Without limiting the generality of the foregoing, from expiration of the Due Diligence Period until the Closing Datebut subject to Section 5.3(c) and (d), the Buyer Parties Parent and the Company Parties (i) shall make all filings (if any) and give all notices (if any) required to be made and given by such party hereto in connection with the Merger and the other Contemplated Transactions and shall to submit promptly any additional information requested in connection with such filings and notices, (ii) shall use their respective all reasonable best efforts to obtain or cause to be obtained each Consent (if any) required to be obtained (pursuant to any applicable Legal Requirements Requirement or Contract, or otherwise) by such party hereto in connection with the execution and delivery of this Agreement and the consummation Merger or any of the Merger Transactions other Contemplated Transactions, and (iii) shall use their respective all reasonable best efforts to oppose or lift any restraint, injunction or other legal bar to the Merger TransactionsMerger. Each of the Company and Parent shall promptly deliver to the other a copy of each such filing mademade (other than as may be prohibited under applicable Antitrust Laws), each such notice given and each such Consent obtained during the Pre-Closing Period.
(b) Without limiting the generality of Section 7.1(a5.3(a), the Company and Parent shall, promptly after the expiration date of the Due Diligence Periodthis Agreement, prepare and file the notifications, if any, notifications required under the HSR Act and any applicable foreign antitrust laws or regulations Antitrust Laws in connection with any of the Merger TransactionsMerger. The Company Parties and the Buyer Parties Parent shall respond as promptly as practicable to any inquiries or requests received from any Governmental Body in connection with antitrust laws Antitrust Laws or related matters. The Company Parties and the Buyer Parties shall coordinate and cooperate fully with each other in exchanging such information and providing such assistance as the other may reasonably request in connection with the foregoing and in seeking the earliest possible termination of any applicable waiting periods or suspension effects imposed by any Legal Requirements. Each of the Company Parties and the Buyer Parties Parent shall (i1) give the other parties hereto party prompt notice of the commencement or threat of commencement of any Legal Proceeding by or before any Governmental Body with respect to this Agreement the Merger or any of the Merger other Contemplated Transactions, (ii2) keep the other party informed as to the status of any such Legal Proceeding or threat threat, and (iii3) promptly inform the other parties hereto party of any material communication concerning antitrust laws Antitrust Laws to or from any Governmental Body regarding this Agreement or any of the Merger TransactionsMerger. Except as may be prohibited by any Governmental Body or by any Legal Requirement, the Company and Parent will consult and cooperate with one another, and will consider in good faith the views of one another, in connection with any analysis, appearance, presentation, memorandum, brief, argument, opinion or proposal made or submitted in connection with any Legal Proceeding under or relating to the HSR Act or any other antitrust lawAntitrust Law. Subject to the foregoing, Parent shall be principally responsible for and in control of the process of dealing with any Governmental Body concerning the effect of applicable antitrust laws Antitrust Laws on this Agreement and any of the Merger Contemplated Transactions. In addition, except as may be prohibited by any Governmental Body or by any Legal Requirement, in connection with any Legal Proceeding under or relating to the HSR Act or any other foreign, federal or state antitrust law Antitrust Law or fair trade law or any other similar Legal Proceeding, each of the Company and Parent will permit authorized Representatives of the other to be present at each meeting or conference relating to any such Legal Proceeding and to have access to and be consulted in connection with any document, opinion or proposal made or submitted to any Governmental Body in connection with any such Legal Proceeding.
(c) At the request of Parent and in connection with obtaining any Consent required of a Governmental Body, the Company shall agree to divest, sell, dispose of, hold separate or otherwise take or commit to take any action that limits its freedom of action with respect to its or its Subsidiaries' ability to retain, any of the businesses, product lines or assets of the Company or any of its Subsidiaries, provided that any such action is conditional upon the consummation of the Merger.
(d) Notwithstanding anything to the contrary contained in this Agreement, Parent shall not have any obligation under this Agreement: (i) to dispose, dispose or transfer or hold separate, or cause any of its Subsidiaries to dispose, dispose of or transfer or hold separate any assets or operations(other than immaterial assets), or to commit or to cause any of the Acquired Companies Corporations to dispose of any assets (other than immaterial assets, ); (ii) to discontinue or cause any of its Subsidiaries to discontinue offering any product or service, or to commit to cause any of the Acquired Companies Corporations to discontinue offering any product or service or service; (iii) to license or otherwise make available, or cause any of its Subsidiaries to license or otherwise make available, to any Person, any technology, software or other Proprietary Asset (other than immaterial technology, software or other Proprietary Assets), or to commit to cause any of the Acquired Corporations to license or otherwise make available to any Person any technology, software or other Proprietary Asset (other than immaterial technology, software or other Proprietary Assets); (iv) to hold separate or cause any of its Subsidiaries to hold separate any assets or operations (either before or after the Closing Date) (other than immaterial assets or operations), or to commit to cause any of the Acquired Corporations to hold separate any assets or operations (other than immaterial assets or operations); (v) to make or cause any of its Subsidiaries to make any commitment (to any Governmental Body or otherwise) regarding its future operations or the future operations of any of the Acquired CompaniesCorporations, or (vi) to contest any Legal Proceeding brought by a Governmental Body that challenges the Merger under applicable Antitrust Laws (for purposes hereof any request for additional documentation shall not be deemed a Legal Proceeding).
(de) The Company shall use its all reasonable best efforts to obtain the Consents consents and waivers required to satisfy Parent’s 's and MergerCo’s conditions Merger Sub's condition to Closing set forth in this AgreementSection 7.3.
Appears in 1 contract
Regulatory Approvals; Consents. (a) Subject Parent shall, and shall cause its Controlled Affiliates to: (i) take all actions necessary to Section 7.1(b) and otherwise in accordance with the express provisions of the Agreement, the Buyer Parties and the Company Parties shall use their respective reasonable best efforts to take, file or cause to be takenfiled the filings required of it or any of its Controlled Affiliates with any applicable Governmental Entity or required under applicable Law as promptly as practicable, including (A) on such date as agreed by the Parties, which shall be not later than one hundred eighty (180) days following the date hereof, making or causing to be made, an appropriate filing under the HSR Act, (B) as promptly as practicable (but not later than the fifteenth (15th) Business Day following the date hereof, which timing may be extended as mutually agreed by the Parties), making or causing to be made, appropriate filings with the HPUC which shall contain all of the terms and undertakings set forth in Exhibit B (the “Key Regulatory Terms”) and (C) except as provided in Section 8.5(b), as promptly as practicable after the date hereof making or causing to be made, appropriate filings with respect to all Other Regulatory Approvals not addressed in the foregoing clauses (A) and (B); (ii) take all actions necessarynecessary to obtain the required consents from Governmental Entities as promptly as practicable, proper and in any event prior to the End Date; (iii) at the earliest practicable date comply with (or advisable properly reduce the scope of and thereafter comply with) any formal or informal request for additional information or documentary material received by it or any of its Controlled Affiliates from any Governmental Entity; and (iv) consult and cooperate with the Company and MIC, and consider in good faith the views of the Company and MIC, in connection with any analyses, appearances, presentations, memoranda, briefs, arguments, opinions and proposals made or submitted by or on behalf of any party in connection with proceedings under or relating to any applicable Laws. MIC and, after consummation of the Reorganization, the Company shall consult and cooperate with Parent, and consider in good faith the views of Parent, in connection with any analyses, appearances, presentations, memoranda, briefs, arguments, opinions and proposals made or submitted by or on behalf of any party in connection with proceedings under or relating to any applicable Laws.
(b) As soon as practicable after the date of this Agreement, Parent and MIC (or, after consummation of the Reorganization, the Company) shall (i) prepare and submit a declaration to CFIUS pursuant to the DPA with respect to the transactions contemplated by this Agreement and (ii) in the event that (A) CFIUS requests that the Company and/or Parent submit a joint notice pursuant to the DPA with respect to the transactions contemplated by this Agreement, (B) CFIUS initiates a unilateral review of the Merger, or (C) if (1) the Parties receive written notice that CFIUS is not able to conclude action under the DPA with respect to the transactions contemplated by this Agreement on the basis of a declaration but has not requested the submission of a joint notice and (2) Parent informs MIC (or, following completion of the Reorganization, the Company) within five (5) Business Days of such written notice that it has determined that the Parties will submit a joint notice pursuant to the DPA with respect to the transactions contemplated by this Agreement, then as promptly as reasonably practicable the Parties will prepare and prefile with CFIUS a joint notice pursuant to the DPA with respect to the transactions contemplated by this Agreement and, as promptly as reasonably practicable after addressing any comments received from CFIUS concerning the draft joint notice, submit a joint notice to CFIUS pursuant to the DPA with respect to the transactions contemplated by this Agreement. Parent and MIC (or, after consummation of the Reorganization, the Company) shall provide CFIUS with any additional or supplemental information requested by CFIUS as promptly as possible and in any event within the time required by CFIUS, including pursuant to any extension permitted by CFIUS. Parent shall take all actions necessary to obtain the CFIUS Approval as promptly as practicable, and in any event prior to the End Date.
(c) Each of Parent and MIC (or, after consummation of the Reorganization, the Company) shall promptly notify one another of any written communication made to or received by Parent or MIC (or, after consummation of the Reorganization, the Company), as the case may be, from any Governmental Entity regarding any of the transactions contemplated hereby, and, subject to applicable Law, if practicable, permit the other to review in advance any proposed written communication to any such Governmental Entity and incorporate the other party’s reasonable comments, not agree to participate in any substantive meeting or discussion with any such Governmental Entity in respect of any filing, investigation, review or inquiry concerning this Agreement or the transactions contemplated hereby unless, to the extent reasonably practicable, it consults with the other parties hereto in advance and, to the extent permitted by such Governmental Entity, gives the other parties the opportunity to attend, and furnish the other parties with copies of all correspondence, filings and written communications between them and their Affiliates (or, with respect to Parent, Controlled Affiliates) and their respective Representatives on one hand and any such Governmental Entity or its staff on the other hand, with respect to this Agreement and the transactions contemplated hereby; provided, that notwithstanding the foregoing, a party may elect to share confidential business information unrelated to the transactions contemplated by this Agreement with the other parties’ legal counsel on an outside counsel-only basis.
(d) Parent shall be responsible for the payment of all filing fees under the HSR Act and/or the DPA, and any filing fees payable under any other laws or regulations applicable to the transactions contemplated hereby. Parent shall be responsible for the payment of its and any of its Controlled Affiliates’ fees and expenses, including legal fees and expenses, in complying with any request for additional information or documentary material from any Governmental Entity in connection with the regulatory approvals contemplated by Section 8.5(a). The Company shall be responsible for the payment of its and any of its Affiliates’ fees and expenses, including legal fees and expenses, in complying with any request for additional information or documentary material from any Governmental Entity in connection with the regulatory approvals contemplated by Section 8.5(a); provided, that Parent shall promptly reimburse the Company for such fees and expenses in the event that this Agreement is terminated in accordance with Article X [(Termination)].
(e) Parent shall not, and shall cause its Controlled Affiliates not to, except as permitted by or provided for in this Agreement, without the prior written consent of MIC (or, after consummation of the Reorganization, the Company), take or cause to be taken any action that could reasonably be expected to: (i) impose any delay in the obtaining of, or increase the risk of not obtaining, any consents of any Governmental Entity necessary to consummate the transactions contemplated hereby, including for the avoidance of doubt CFIUS Approval, or the expiration or termination of any applicable waiting period; (ii) increase the risk of any Governmental Entity entering an Order prohibiting the consummation of the transactions contemplated hereby; (iii) increase the risk of not being able to remove any such Order on appeal or otherwise; (iv) materially delay or prevent the consummation of the transactions contemplated hereby; or (v) cause any of the representations or warranties of Parent and Merger Sub contained herein to become inaccurate in any material respect or any of the covenants of Parent contained herein to be breached in any material respect or result in the failure to be satisfied of any of the conditions set forth in Articles VIII, IX and X Section 9.2 [(Conditions to be satisfied and to consummate and make effective the Merger Transactions as promptly as practicable after expiration Obligations of the Due Diligence PeriodCompany)].
(f) Notwithstanding anything else herein to the contrary, Parent shall, and shall cause its Controlled Affiliates to, take all actions necessary to avoid or eliminate each and every impediment under any applicable Law or Order so as to enable the consummation of the transactions contemplated hereby to occur as soon as reasonably possible (and in any event no later than the End Date), including taking all actions requested by any Governmental Entity or necessary to resolve any objections that may be asserted by any Governmental Entity with respect to the transactions contemplated by this Agreement under any applicable Law, subject, however, to the limitations set forth in Section 8.5(g). Without limiting the generality of the foregoing, from expiration of the Due Diligence Period until the Closing DateParent shall, the Buyer Parties and the Company Parties shall cause its Controlled Affiliates to:
(i) shall make at Parent’s sole cost, comply with all filings (if any) restrictions and give all notices (if any) required to be made and given by such party hereto in connection with the Merger Transactions and shall submit promptly any additional information requested in connection with such filings and notices, (ii) shall use their respective reasonable best efforts to obtain or cause to be obtained each Consent (if any) required to be obtained (pursuant to any applicable Legal Requirements or Contract, or otherwise) by such party hereto in connection with the execution and delivery of this Agreement and the consummation of the Merger Transactions and (iii) shall use their respective reasonable best efforts to oppose or lift any restraint, injunction or other legal bar to the Merger Transactions. Each of the Company and Parent shall promptly deliver to the other a copy of each such filing made, each such notice given and each such Consent obtained during the Pre-Closing Period.
(b) Without limiting the generality of Section 7.1(a), the Company and Parent shall, promptly after the expiration of the Due Diligence Period, prepare and file the notificationsconditions, if any, imposed, required under the HSR Act and or requested by any (A) Governmental Entity with respect to applicable foreign antitrust laws or regulations Laws in connection with granting any necessary clearance, including, for the avoidance of doubt, any restriction or condition that is a Key Regulatory Term with respect to the HPUC, or terminating any applicable waiting period, including (1) agreeing to sell, divest, hold separate, license, cause a third party to acquire, or otherwise dispose of, any Subsidiary, operations, divisions, businesses, product lines, customers or assets of Parent, its Controlled Affiliates, or any MIC Hawaii Company contemporaneously with or after the Closing and regardless as to whether a third party purchaser has been identified or approved prior to the Closing (a “Divestiture”), (2) taking or committing to take such other actions that may limit Parent, its Controlled Affiliates, or the MIC Hawaii Companies’ freedom of action with respect to, or its ability to retain, one or more of its operations, divisions, businesses, products lines, customers or assets and (3) entering into any Order, consent decree or other agreement to effectuate any of the Merger Transactions. The Company Parties and the Buyer Parties shall respond as promptly as practicable to any inquiries foregoing or requests received from any Governmental Body (B) third party in connection with antitrust laws a Divestiture;
(ii) terminate any Contract or related matters. The Company Parties and other business relationship as may be required to obtain any necessary clearance, including, for the Buyer Parties shall coordinate and cooperate fully with each other in exchanging such information and providing such assistance as avoidance of doubt, the other may reasonably request in connection with the foregoing and in seeking the earliest possible CFIUS Approval, of any Governmental Entity or to obtain termination of any applicable waiting periods period under any applicable Laws;
(iii) without the prior written consent of the Company, not extend any waiting period or suspension effects imposed enter into any agreement or understanding with any Governmental Entity; and
(iv) oppose fully and vigorously any request for the entry of, and seek to have vacated or terminated, any Order, judgment, decree, injunction or ruling of any Governmental Entity that could restrain, prevent or delay the Closing, including by defending through litigation any Action asserted by any Legal Requirements. Each of the Company Parties and the Buyer Parties shall (i) give the other parties hereto prompt notice of the commencement or threat of commencement of Person in any Legal Proceeding by court or before any Governmental Body with respect to this Agreement Entity and by exhausting all avenues of appeal, including appealing properly any adverse decision or Order by any Governmental Entity, or, if requested by MIC (or, following completion of the Merger TransactionsReorganization, the Company), Parent shall commence or threaten to commence and pursue vigorously any action MIC (or, following completion of the Reorganization, the Company) believes to be helpful in obtaining any necessary clearance of any Governmental Entity or obtaining termination of any applicable waiting period under any applicable Laws, or in terminating any outstanding action, it being understood that the costs and expenses of all such actions shall be borne by Parent; provided, that any such action described in the foregoing clauses (i) and (ii) keep shall be conditioned upon the other party informed as Closing.
(g) Notwithstanding the foregoing or anything in this Agreement to the status contrary: (i) nothing in this Section 8.5, nor the use of “reasonable best efforts” shall be construed to require any such Legal Proceeding Parent Related Party (other than Parent and its Controlled Affiliates), to take or threat agree to take any action, or not take any action in connection with obtaining any approval contemplated by this Section 8.5, any Required Regulatory Approval, or in connection with otherwise complying with any provisions of this Agreement, and (iiiii) promptly inform the other parties hereto of any communication concerning antitrust laws to or from any Governmental Body regarding this Agreement or any of the Merger Transactions. Except as may Parent and its Controlled Affiliates shall not be prohibited by any Governmental Body or by any Legal Requirementrequired to, and MIC, the Company and Parent will consult and cooperate with one another, and will consider in good faith the views of one anotherCompany Subsidiaries shall not, in connection with obtaining any analysisapproval contemplated by this Section 8.5, appearanceany Required Regulatory Approval, presentation, memorandum, brief, argument, opinion or proposal made or submitted in connection with otherwise complying with any Legal Proceeding under provisions of this Agreement, consent to or relating take any action of the types described above, including agreeing to the HSR Act conditions, proposing or making any Divestiture or any other antitrust law. Subject matter referred to the foregoingin Section 8.5(f) or other undertaking or proposing, Parent shall be principally responsible for and in control of the process of dealing with accepting or entering into any Governmental Body concerning the effect of applicable antitrust laws on this Agreement and any of the Merger Transactions. In additionconsent decree, except as may be prohibited by any Governmental Body hold separate order or by any Legal Requirementoperation restriction, in connection with any Legal Proceeding under or relating to the HSR Act or any other foreigneach case, federal or state antitrust law or fair trade law or any other similar Legal Proceeding, each of the Company and Parent will permit authorized Representatives of the other to be present at each meeting or conference relating to any such Legal Proceeding and to have access to and be consulted in connection with any document, opinion or proposal made or submitted to any Governmental Body in connection with any such Legal Proceedingthat would constitute a Burdensome Condition.
(c) Notwithstanding anything to the contrary contained in this Agreement, Parent shall not have any obligation under this Agreement: (i) to dispose, transfer or hold separate, or cause any of its Subsidiaries to dispose, transfer or hold separate any assets or operations, or to commit or to cause any of the Acquired Companies to dispose of any assets, (ii) to discontinue or cause any of its Subsidiaries to discontinue offering any product or service, or to commit to cause any of the Acquired Companies to discontinue offering any product or service or (iii) to make or cause any of its Subsidiaries to make any commitment (to any Governmental Body or otherwise) regarding its future operations or the future operations of any of the Acquired Companies.
(d) The Company shall use its reasonable best efforts to obtain the Consents and waivers required to satisfy Parent’s and MergerCo’s conditions to Closing set forth in this Agreement.
Appears in 1 contract
Regulatory Approvals; Consents. (a) Subject to Section 7.1(b) the terms and otherwise in accordance with conditions of this Agreement (including 6.05(d)), before the express provisions of the AgreementClosing, the Buyer Parties and the Company Parties Sellers’ Representative shall use their respective reasonable best efforts to take, or cause to be taken, all actions necessaryreasonable actions, proper and to do, or cause to be done, all reasonable things necessary or advisable under any applicable Laws to cause consummate the transactions contemplated by this Agreement as promptly as practicable, including (i) the preparation and filing of all documentation, forms, applications, filings, registrations and notifications required (whether by Law or in order to satisfy the conditions set forth in Articles VIII, IX and X 8.01(a)) to be satisfied and filed to consummate and make effective the Merger Transactions as promptly as practicable after expiration of the Due Diligence Period. Without limiting the generality of the foregoing, from expiration of the Due Diligence Period until the Closing Date, the Buyer Parties and the Company Parties (i) shall make all filings (if any) and give all notices (if any) required to be made and given by such party hereto in connection with the Merger Transactions and shall submit promptly any additional information requested in connection with such filings and noticesClosing, (ii) the satisfaction of conditions to consummating the transactions contemplated by this Agreement, (iii) obtaining (and cooperating with each other in obtaining) any consent, authorization, expiration or termination of a waiting period, permit, Order or approval of, waiver or any exemption by, any Governmental Authority (which actions shall use their respective reasonable best efforts to obtain or cause to be obtained each Consent (if anyinclude furnishing all information and documentary material required under the Antitrust Laws) required to be obtained or made (pursuant whether by Law or in order to any applicable Legal Requirements or Contract, or otherwisesatisfy the conditions set forth in 8.01(a)) by such party hereto Buyer, the Sellers’ Representative or any of their respective Affiliates in connection with the transactions contemplated by this Agreement or the taking of any action contemplated by this Agreement, (iv) obtaining (and cooperating with each other in obtaining) any consent, approval of, waiver or any exemption by, any non-governmental third party, in each case, to the extent necessary or advisable to consummate the transactions contemplated by this Agreement and (v) the execution and delivery of any reasonable additional instruments necessary to fully carry out the purposes of this Agreement and the consummation of the Merger Transactions and (iii) shall use their respective reasonable best efforts to oppose or lift any restraint, injunction or other legal bar to the Merger Transactions. Each of the Company and Parent shall promptly deliver to the other a copy of each such filing made, each such notice given and each such Consent obtained during the Pre-Closing PeriodAgreement.
(b) Without limiting The parties hereto shall each keep each other apprised of the generality status of Section 7.1(a)matters relating to the completion of the transactions contemplated by this Agreement and work cooperatively in connection with obtaining all required consents, authorizations, Orders or approvals of, or any exemptions by, any Governmental Authority undertaken pursuant to the provisions of this 6.05. The parties hereto shall consult with each other with respect to the obtaining of all permits, consents, approvals and authorizations of all third parties and Governmental Authorities necessary or advisable to consummate the transactions contemplated by this Agreement, and each party will keep the other apprised of the status of matters relating to completion of the transactions contemplated herein. The parties hereto shall cause their respective counsel to reasonably collaborate with each other to prepare any written materials that will be jointly submitted to any third person or any Governmental Authority in connection with the transactions contemplated by this Agreement and to consult with each other regarding any written submission to any Governmental Authority. Notwithstanding the foregoing (and subject to 6.08, the Mutual Confidentiality Agreement dated December 16, 2015, as amended, between Buyer and the Company (the “Confidentiality Agreement”) and the Joint Defense Agreement dated June 16, 2016 and executed by the respective counsel of Buyer and the Company on behalf of Buyer, the Company and Parent shall, promptly after the expiration of the Due Diligence Period, prepare and file the notifications, if any, required under the HSR Act and any applicable foreign antitrust laws or regulations in connection with any of the Merger Transactions. The Company Parties and the Buyer Parties shall respond as promptly as practicable to any inquiries or requests received from any Governmental Body in connection with antitrust laws or related matters. The Company Parties and the Buyer Parties shall coordinate and cooperate fully with each other in exchanging such information and providing such assistance as the other may reasonably request in connection with the foregoing and in seeking the earliest possible termination of any applicable waiting periods or suspension effects imposed by any Legal Requirements. Each of the Company Parties and the Buyer Parties shall (i) give the other parties hereto prompt notice of the commencement or threat of commencement of any Legal Proceeding by or before any Governmental Body with respect to this Agreement or any of the Merger Transactions, (ii) keep the other party informed as to the status of any such Legal Proceeding or threat and (iii) promptly inform the other parties hereto of any communication concerning antitrust laws to or from any Governmental Body regarding this Agreement or any of the Merger Transactions. Except as may be prohibited by any Governmental Body or by any Legal Requirement, the Company and Parent will consult and cooperate with one another, and will consider in good faith the views of one another, in connection with any analysis, appearance, presentation, memorandum, brief, argument, opinion or proposal made or submitted in connection with any Legal Proceeding under or relating to the HSR Act or any other antitrust law. Subject to the foregoing, Parent shall be principally responsible for and in control of the process of dealing with any Governmental Body concerning the effect of applicable antitrust laws on this Agreement and any of the Merger Transactions. In addition, except as may be prohibited by any Governmental Body or by any Legal Requirement, in connection with any Legal Proceeding under or relating to the HSR Act or any other foreign, federal or state antitrust law or fair trade law or any other similar Legal Proceeding, each Affiliates of the Company and Parent will permit authorized Representatives Company Subsidiaries), Buyer, Gulf Houghton and the Company may, as each reasonably deems advisable and necessary, designate any competitively sensitive material provided to the other under this 6.05(b) as “Outside Counsel Only Material.” Such materials and the information contained therein shall be given only to the outside counsel of the other recipient on the basis that such outside counsel agrees not to be present at each meeting disclose such information to employees, officers or conference relating to any such Legal Proceeding and to have access to and be consulted directors of the recipient unless express permission is obtained in connection with any documentadvance from the source of the materials (Buyer, opinion Gulf Houghton or proposal made the Company, as the case may be) or submitted to any Governmental Body in connection with any such Legal Proceeding.
(c) its legal counsel. Notwithstanding anything to the contrary contained in this Agreement6.05, Parent shall not have any obligation under materials provided pursuant to this Agreement: 6.05 may be redacted (i) to dispose, transfer or hold separate, or cause any of its Subsidiaries to dispose, transfer or hold separate any assets or operations, or to commit or to cause any remove references concerning the valuation of the Acquired Companies to dispose of any assetsCompany, (ii) as necessary to discontinue or cause any of its Subsidiaries to discontinue offering any product or service, or to commit to cause any of the Acquired Companies to discontinue offering any product or service or comply with contractual arrangements and (iii) as necessary to make or cause any of its Subsidiaries to make any commitment (to any Governmental Body or otherwise) regarding its future operations or the future operations of any of the Acquired Companiesaddress reasonable privilege concerns.
(dc) The Company Buyer and the Sellers’ Representative shall use its reasonable best efforts to obtain make or file with the Consents appropriate Governmental Authority all filings, forms, registrations and waivers notifications required (whether by Law or in order to satisfy Parent’s and MergerCo’s the conditions to Closing set forth in 8.01(a)) to be filed to consummate the transactions contemplated by this Agreement.Agreement under any applicable Antitrust Law, and subsequent to such filings and subject to the terms and conditions of 6.05
Appears in 1 contract
Regulatory Approvals; Consents. (a) Subject to Section 7.1(b5.3(c) and otherwise in accordance with the express provisions of the Agreement(d), the Buyer Parties Parent and the Company Parties shall use their respective all reasonable best efforts to take, or cause to be taken, all actions necessary, proper or advisable to cause the conditions set forth in Articles VIII, IX and X to be satisfied and necessary to consummate the Merger and make effective the Merger Transactions as promptly as practicable after expiration of the Due Diligence Periodother Contemplated Transactions. Without limiting the generality of the foregoing, from expiration of the Due Diligence Period until the Closing Datebut subject to Section 5.3(c) and (d), the Buyer Parties Parent and the Company Parties (i) shall make all filings (if any) and give all notices (if any) required to be made and given by such party hereto in connection with the Merger and the other Contemplated Transactions and shall to submit promptly any additional information requested in connection with such filings and notices, (ii) shall use their respective all reasonable best efforts to obtain or cause to be obtained each Consent (if any) required to be obtained (pursuant to any applicable Legal Requirements Requirement or Contract, or otherwise) by such party hereto in connection with the execution and delivery of this Agreement and the consummation Merger or any of the Merger Transactions other Contemplated Transactions, and (iii) shall use their respective all reasonable best efforts to oppose or lift any restraint, injunction or other legal bar to the Merger TransactionsMerger. Each of the Company and Parent shall promptly deliver to the other a copy of each such filing mademade (other than as may be prohibited under applicable Antitrust Laws), each such notice given and each such Consent obtained during the Pre-Closing Period.
(b) Without limiting the generality of Section 7.1(a5.3(a), the Company and Parent shall, promptly after the expiration date of the Due Diligence Periodthis Agreement, prepare and file the notifications, if any, notifications required under the HSR Act and any applicable foreign antitrust laws or regulations Antitrust Laws in connection with any of the Merger TransactionsMerger. The Company Parties and the Buyer Parties Parent shall respond as promptly as practicable to any inquiries or requests received from any Governmental Body in connection with antitrust laws Antitrust Laws or related matters. The Company Parties and the Buyer Parties shall coordinate and cooperate fully with each other in exchanging such information and providing such assistance as the other may reasonably request in connection with the foregoing and in seeking the earliest possible termination of any applicable waiting periods or suspension effects imposed by any Legal Requirements. Each of the Company Parties and the Buyer Parties Parent shall (i1) give the other parties hereto party prompt notice of the commencement or threat of commencement of any Legal Proceeding by or before any Governmental Body with respect to this Agreement the Merger or any of the Merger other Contemplated Transactions, (ii2) keep the other party informed as to the status of any such Legal Proceeding or threat threat, and (iii3) promptly inform the other parties hereto party of any material communication concerning antitrust laws Antitrust Laws to or from any Governmental Body regarding this Agreement or any of the Merger TransactionsMerger. Except as may be prohibited by any Governmental Body or by any Legal Requirement, the Company and Parent will consult and cooperate with one another, and will consider in good faith the views of one another, in connection with any analysis, appearance, presentation, memorandum, brief, argument, opinion or proposal made or submitted in connection with any Legal Proceeding under or relating to the HSR Act or any other antitrust lawAntitrust Law. Subject to the foregoing, Parent shall be principally responsible for and in control of the process of dealing with any Governmental Body concerning the effect of applicable antitrust laws Antitrust Laws on this Agreement and any of the Merger Contemplated Transactions. In addition, except as may be prohibited by any Governmental Body or by any Legal Requirement, in connection with any Legal Proceeding under or relating to the HSR Act or any other foreign, federal or state antitrust law Antitrust Law or fair trade law or any other similar Legal Proceeding, each of the Company and Parent will permit authorized Representatives of the other to be present at each meeting or conference relating to any such Legal Proceeding and to have access to and be consulted in connection with any document, opinion or proposal made or submitted to any Governmental Body in connection with any such Legal Proceeding.
(c) At the request of Parent and in connection with obtaining any Consent required of a Governmental Body, the Company shall agree to divest, sell, dispose of, hold separate or otherwise take or commit to take any action that limits its freedom of action with respect to its or its Subsidiaries’ ability to retain, any of the businesses, product lines or assets of the Company or any of its Subsidiaries, provided that any such action is conditional upon the consummation of the Merger.
(d) Notwithstanding anything to the contrary contained in this Agreement, Parent shall not have any obligation under this Agreement: (i) to dispose, dispose or transfer or hold separate, or cause any of its Subsidiaries to dispose, dispose of or transfer or hold separate any assets or operations(other than immaterial assets), or to commit or to cause any of the Acquired Companies Corporations to dispose of any assets (other than immaterial assets, ); (ii) to discontinue or cause any of its Subsidiaries to discontinue offering any product or service, or to commit to cause any of the Acquired Companies Corporations to discontinue offering any product or service or service; (iii) to license or otherwise make available, or cause any of its Subsidiaries to license or otherwise make available, to any Person, any technology, software or other Proprietary Asset (other than immaterial technology, software or other Proprietary Assets), or to commit to cause any of the Acquired Corporations to license or otherwise make available to any Person any technology, software or other Proprietary Asset (other than immaterial technology, software or other Proprietary Assets); (iv) to hold separate or cause any of its Subsidiaries to hold separate any assets or operations (either before or after the Closing Date) (other than immaterial assets or operations), or to commit to cause any of the Acquired Corporations to hold separate any assets or operations (other than immaterial assets or operations); (v) to make or cause any of its Subsidiaries to make any commitment (to any Governmental Body or otherwise) regarding its future operations or the future operations of any of the Acquired CompaniesCorporations, or (vi) to contest any Legal Proceeding brought by a Governmental Body that challenges the Merger under applicable Antitrust Laws (for purposes hereof any request for additional documentation shall not be deemed a Legal Proceeding).
(d) The Company shall use its reasonable best efforts to obtain the Consents and waivers required to satisfy Parent’s and MergerCo’s conditions to Closing set forth in this Agreement.
Appears in 1 contract
Regulatory Approvals; Consents. (a) Subject Upon the terms and subject to Section 7.1(b) and otherwise the conditions set forth in accordance with the express provisions this Agreement, each of the Agreement, the Buyer Parties and the Company Parties shall parties agrees to use their respective reasonable best efforts to take, or cause to be taken, all actions that are necessary, proper or advisable to cause the conditions set forth in Articles VIII, IX and X to be satisfied and to consummate and make effective effective, in the Merger Transactions as promptly as practicable after expiration of the Due Diligence Period. Without limiting the generality of the foregoing, from expiration of the Due Diligence Period until the Closing Datemost expeditious manner practicable, the Buyer Parties Transactions and the Company Parties other transactions contemplated by this Agreement, including using reasonable best efforts to accomplish the following: (i) shall make obtain all filings (if any) and give all notices (if any) required to be made and given by such party hereto consents, approvals or waivers from, or participation in connection with the Merger Transactions and shall submit promptly other discussions or negotiations with, third parties, including as required under any additional information requested in connection with such filings and noticesMaterial Contract, (ii) shall use their respective obtain all necessary actions or nonactions, waivers, consents, approvals, orders and authorizations from Governmental Entities, make all necessary registrations, declarations and filings and make all commercially reasonable best efforts to obtain an approval or cause to be obtained each Consent (if any) required to be obtained (pursuant to any applicable Legal Requirements or Contractwaiver from, or otherwise) by such party hereto in connection to avoid any Action by, any Governmental Entity, including filings under the HSR Act with the execution and delivery of this Agreement United States Federal Trade Commission and the consummation Antitrust Division of the Merger Transactions United States Department of Justice, and (iii) execute and deliver any additional instruments necessary to consummate the transactions contemplated hereby and fully to carry out the purposes of this Agreement; provided, however, that neither party shall use their respective reasonable best efforts commit to oppose or lift the payment of any restraintfee, injunction penalty or other legal bar consideration or make any other concession, waiver or amendment under any Contract in connection with obtaining any consent without the prior written consent of the other party. Notwithstanding anything to the Merger Transactionscontrary in this Agreement, the Contributors have the sole right to control and direct all antitrust strategy in connection with review of the transactions contemplated by this Agreement by any Governmental Entity, or any litigation by, or negotiations with, any antitrust authority or other Person relating to the transaction under the HSR Act or any other antitrust law and will take the lead in all meetings, discussions, and communications with any Governmental Entity relating to obtaining antitrust approval from the transactions contemplated by this Agreement provided that the Contributors will consult with and consider in good faith the comments of Parent in connection with any filing, communication, defense, litigation, negotiation, or strategy. Each of the Company and Parent parties hereto shall promptly deliver furnish to the other a copy of each such filing made, each such notice given and each such Consent obtained during the Pre-Closing Period.
(b) Without limiting the generality of Section 7.1(a), the Company and Parent shall, promptly after the expiration of the Due Diligence Period, prepare and file the notifications, if any, required under the HSR Act and any applicable foreign antitrust laws or regulations in connection with any of the Merger Transactions. The Company Parties and the Buyer Parties shall respond as promptly as practicable to any inquiries or requests received from any Governmental Body in connection with antitrust laws or related matters. The Company Parties and the Buyer Parties shall coordinate and cooperate fully with each other in exchanging party such necessary information and providing such reasonable assistance as the such other party may reasonably request in connection with the foregoing. Subject to applicable Law relating to the exchange of information, Parent and the Contributors shall each have the right to review in advance, and to the extent practicable each shall consult with the other in connection with, all of the information relating to Parent or the Contributors, as the case may be, and any of their respective Subsidiaries, that appears in any filing made with, or written materials submitted to, any third party and/or any Governmental Entity in connection with the Transactions and the other transactions contemplated hereby. In exercising the foregoing rights, each of Parent and in seeking the earliest possible termination Contributors shall act reasonably and as promptly as practicable. Subject to applicable Law and the instructions of any applicable waiting periods or suspension effects imposed by any Legal Requirements. Each Governmental Entity, the Contributors and Parent shall keep each other reasonably apprised of the Company Parties status of matters relating to the completion of the transactions contemplated hereby, including promptly furnishing the other with copies of notices or other written communications received by the Contributors or Parent, as the case may be, or any of their respective Subsidiaries, from any Governmental Entity and/or third party with respect to such transactions, and, to the extent practicable under the circumstances, shall provide the other party and its counsel with the Buyer Parties opportunity to participate in any meeting with any Governmental Entity in respect of any filing, investigation or other inquiry in connection therewith.
(b) Notwithstanding any other provision of this Agreement to the contrary, in no event shall either Contributor or any of their Affiliates be required to (i) give the agree or proffer to divest or hold separate (in a trust or otherwise), or take any other parties hereto prompt notice action with respect to, any of the commencement assets or threat businesses of commencement of any Legal Proceeding by or before any Governmental Body with respect to this Agreement the Contributor or any of its Affiliates or, assuming the Merger consummation of the Transactions, the Company or Further Challenger or any of their respective Affiliates, (ii) keep the other party informed as agree or proffer to the status limit in any manner whatsoever or not to exercise any rights of ownership of any such Legal Proceeding or threat and securities, (iii) promptly inform enter into any agreement that in any way limits the other parties hereto ownership or operation of any communication concerning antitrust laws to or from any Governmental Body regarding this Agreement business of the Contributors or any of their respective Affiliates, or (iv) agree to obtain prior approval or other approval from a Governmental Entity, or submit a notification or otherwise notify the Merger Transactions. Except as may be prohibited Governmental Entity, prior to consummating any future transaction (other than the transactions contemplated by any Governmental Body or by any Legal Requirement, the Company and Parent will consult and cooperate with one another, and will consider in good faith the views of one another, in connection with any analysis, appearance, presentation, memorandum, brief, argument, opinion or proposal made or submitted in connection with any Legal Proceeding under or relating to the HSR Act or any other antitrust law. Subject to the foregoing, Parent shall be principally responsible for and in control of the process of dealing with any Governmental Body concerning the effect of applicable antitrust laws on this Agreement and any of the Merger Transactions. In addition, except as may be prohibited by any Governmental Body or by any Legal Requirement, in connection with any Legal Proceeding under or relating to the HSR Act or any other foreign, federal or state antitrust law or fair trade law or any other similar Legal Proceeding, each of the Company and Parent will permit authorized Representatives of the other to be present at each meeting or conference relating to any such Legal Proceeding and to have access to and be consulted in connection with any document, opinion or proposal made or submitted to any Governmental Body in connection with any such Legal Proceeding.
(c) Notwithstanding anything to the contrary contained in this Agreement, Parent shall not have any obligation under this Agreement: (i) to dispose, transfer or hold separate, or cause any of its Subsidiaries to dispose, transfer or hold separate any assets or operations, or to commit or to cause any of the Acquired Companies to dispose of any assets, (ii) to discontinue or cause any of its Subsidiaries to discontinue offering any product or service, or to commit to cause any of the Acquired Companies to discontinue offering any product or service or (iii) to make or cause any of its Subsidiaries to make any commitment (to any Governmental Body or otherwise) regarding its future operations or the future operations of any of the Acquired Companies).
(d) The Company shall use its reasonable best efforts to obtain the Consents and waivers required to satisfy Parent’s and MergerCo’s conditions to Closing set forth in this Agreement.
Appears in 1 contract
Samples: Business Combination Agreement (Catalyst Biosciences, Inc.)
Regulatory Approvals; Consents. (a) Subject Upon the terms and subject to Section 7.1(b) and otherwise the conditions set forth in accordance with the express provisions this Agreement, each of the Agreement, the Buyer Parties and the Company Parties shall parties agrees to use their respective commercially reasonable best efforts to take, or cause to be taken, all actions that are necessary, proper or advisable to cause the conditions set forth in Articles VIII, IX and X to be satisfied and to consummate and make effective effective, in the most expeditious manner practicable, the Offer, the Merger Transactions as promptly as practicable after expiration of the Due Diligence Period. Without limiting the generality of the foregoing, from expiration of the Due Diligence Period until the Closing Date, the Buyer Parties and the Company Parties other transactions contemplated by this Agreement, including using commercially reasonable efforts to accomplish the following: (i) shall make obtain all filings (if any) and give all notices (if any) required to be made and given by such party hereto consents, approvals or waivers from, or participation in connection with the Merger Transactions and shall submit promptly other discussions or negotiations with, third parties, including as required under any additional information requested in connection with such filings and noticesMaterial Contract, (ii) shall use their respective obtain all necessary actions or nonactions, waivers, consents, approvals, orders and authorizations from Governmental Entities, make all necessary registrations, declarations and filings and make all commercially reasonable best efforts to obtain an approval or cause to be obtained each Consent (if any) required to be obtained (pursuant to any applicable Legal Requirements or Contractwaiver from, or otherwise) by such party hereto in connection with the execution and delivery of this Agreement and the consummation of the Merger Transactions to avoid any Action by, any Governmental Entity and (iii) execute and deliver any additional instruments necessary to consummate the transactions contemplated hereby and fully to carry out the purposes of this Agreement; provided, however, that neither the Company nor any of its Subsidiaries shall use their respective reasonable best efforts be required to oppose or lift make payment of any restraintfee, injunction penalty or other legal bar to the Merger Transactionsconsideration or make any other concession, waiver or amendment under any Contract in connection with obtaining any consent. Each of the Company and Parent parties hereto shall promptly deliver furnish to the other a copy of each such filing made, each such notice given and each such Consent obtained during the Pre-Closing Period.
(b) Without limiting the generality of Section 7.1(a), the Company and Parent shall, promptly after the expiration of the Due Diligence Period, prepare and file the notifications, if any, required under the HSR Act and any applicable foreign antitrust laws or regulations in connection with any of the Merger Transactions. The Company Parties and the Buyer Parties shall respond as promptly as practicable to any inquiries or requests received from any Governmental Body in connection with antitrust laws or related matters. The Company Parties and the Buyer Parties shall coordinate and cooperate fully with each other in exchanging party such necessary information and providing such reasonable assistance as the such other party may reasonably request in connection with the foregoing. Subject to applicable Law relating to the exchange of information, Parent and the Company shall each have the right to review in advance, and to the extent practicable each shall consult with the other in connection with, all of the information relating to Parent or the Company, as the case may be, and any of their respective Subsidiaries, that appears in any filing made with, or written materials submitted to, any third party and/or any Governmental Entity in connection with the Offer, the Merger and the other transactions contemplated hereby. In exercising the foregoing rights, each of Parent and in seeking the earliest possible termination Company shall act reasonably and as promptly as practicable. Subject to applicable Law and the instructions of any applicable waiting periods or suspension effects imposed by any Legal Requirements. Each of the Company Parties and the Buyer Parties shall (i) give the other parties hereto prompt notice of the commencement or threat of commencement of any Legal Proceeding by or before any Governmental Body with respect to this Agreement or any of the Merger Transactions, (ii) keep the other party informed as to the status of any such Legal Proceeding or threat and (iii) promptly inform the other parties hereto of any communication concerning antitrust laws to or from any Governmental Body regarding this Agreement or any of the Merger Transactions. Except as may be prohibited by any Governmental Body or by any Legal RequirementEntity, the Company and Parent will consult and cooperate with one another, and will consider in good faith shall keep each other reasonably apprised of the views status of one another, in connection with any analysis, appearance, presentation, memorandum, brief, argument, opinion or proposal made or submitted in connection with any Legal Proceeding under or matters relating to the HSR Act completion of the transactions contemplated hereby, including promptly furnishing the other with copies of notices or other written communications received by the Company or Parent, as the case may be, or any other antitrust law. Subject of their respective Subsidiaries, from any Governmental Entity and/or third party with respect to such transactions, and, to the foregoingextent practicable under the circumstances, Parent shall be principally responsible for provide the other party and its counsel with the opportunity to participate in control of the process of dealing any meeting with any Governmental Body concerning the effect Entity in respect of applicable antitrust laws on this Agreement and any of the Merger Transactions. In additionfiling, except as may be prohibited by any Governmental Body investigation or by any Legal Requirement, other inquiry in connection with any Legal Proceeding under or relating to the HSR Act or any other foreign, federal or state antitrust law or fair trade law or any other similar Legal Proceeding, each of the Company and Parent will permit authorized Representatives of the other to be present at each meeting or conference relating to any such Legal Proceeding and to have access to and be consulted in connection with any document, opinion or proposal made or submitted to any Governmental Body in connection with any such Legal Proceedingtherewith.
(c) Notwithstanding anything to the contrary contained in this Agreement, Parent shall not have any obligation under this Agreement: (i) to dispose, transfer or hold separate, or cause any of its Subsidiaries to dispose, transfer or hold separate any assets or operations, or to commit or to cause any of the Acquired Companies to dispose of any assets, (ii) to discontinue or cause any of its Subsidiaries to discontinue offering any product or service, or to commit to cause any of the Acquired Companies to discontinue offering any product or service or (iii) to make or cause any of its Subsidiaries to make any commitment (to any Governmental Body or otherwise) regarding its future operations or the future operations of any of the Acquired Companies.
(d) The Company shall use its reasonable best efforts to obtain the Consents and waivers required to satisfy Parent’s and MergerCo’s conditions to Closing set forth in this Agreement.
Appears in 1 contract
Regulatory Approvals; Consents. (a) Subject to Section 7.1(b) and otherwise in accordance with the express provisions of the Agreement7.3(b), the Buyer Parties Parent and the Company Parties shall use their respective reasonable best efforts to take, or cause to be taken, all actions necessary, proper or advisable to cause the conditions set forth in Articles VIII, IX and X to be satisfied and to consummate and make effective the Merger Transactions as promptly as practicable after expiration of the Due Diligence Periodpracticable. Without limiting the generality of the foregoing, from expiration of the Due Diligence Period date hereof until the Closing Date, the Buyer Parties and the Company Parties (i) shall make all filings (if any) and give all notices (if any) required to be made and given by such party hereto in connection with the Merger Transactions and shall submit promptly any additional information requested in connection with such filings and notices, (ii) shall use their respective reasonable best efforts to obtain or cause to be obtained each Consent (if any) required to be obtained (pursuant to any applicable Legal Requirements or Contract, or otherwise) by such party hereto in connection with the execution and delivery of this Agreement and the consummation of the Merger Transactions and (iii) shall use their respective reasonable best efforts to oppose or lift any restraint, injunction or other legal bar to the Merger Transactions. Each of the Company and Parent shall promptly deliver to the other a copy of each such filing made, each such notice given and each such Consent obtained during the Pre-Closing Period.
(b) Without limiting the generality of Section 7.1(a7.3(a), the Company and Parent shall, promptly after the expiration date of the Due Diligence Periodthis Agreement, prepare and file the notifications, if any, required under the HSR Act and any applicable foreign antitrust laws or regulations in connection with any of the Merger Transactions. The Company Parties and the Buyer Parties shall respond as promptly as practicable to any inquiries or requests received from any Governmental Body in connection with antitrust laws or related matters. The Company Parties and the Buyer Parties shall coordinate and cooperate fully with each other in exchanging such information and providing such assistance as the other may reasonably request in connection with the foregoing and in seeking the earliest possible termination of any applicable waiting periods or suspension effects imposed by any Legal Requirements. Each of the Company Parties and the Buyer Parties Parent shall (i) give the other parties hereto prompt notice of the commencement or threat of commencement of any Legal Proceeding by or before any Governmental Body with respect to this Agreement or any of the Merger Transactions, (ii) keep the other party informed as to the status of any such Legal Proceeding or threat and (iii) promptly inform the other parties hereto of any communication concerning antitrust laws to or from any Governmental Body regarding this Agreement or any of the Merger Transactions. Except as may be prohibited by any Governmental Body or by any Legal Requirement, the Company and Parent will consult and cooperate with one another, and will consider in good faith the views of one another, in connection with any analysis, appearance, presentation, memorandum, brief, argument, opinion or proposal made or submitted in connection with any Legal Proceeding under or relating to the HSR Act or any other antitrust law. Subject to the foregoing, Parent shall be principally responsible for and in control of the process of dealing with any Governmental Body concerning the effect of applicable antitrust laws on this Agreement, the Development Purchase Agreement and any of the Merger Transactions. In addition, except as may be prohibited by any Governmental Body or by any Legal Requirement, in connection with any Legal Proceeding under or relating to the HSR Act or any other foreign, federal or state antitrust law or fair trade law or any other similar Legal Proceeding, each of the Company and Parent will permit authorized Representatives of the other to be present at each meeting or conference relating to any such Legal Proceeding and to have access to and be consulted in connection with any document, opinion or proposal made or submitted to any Governmental Body in connection with any such Legal Proceeding.
(c) Notwithstanding anything to the contrary contained in this Agreement, Parent shall not have any obligation under this Agreement: (i) to dispose, transfer or hold separate, or cause any of its Subsidiaries to dispose, transfer or hold separate any assets or operations, or to commit or to cause any of the Acquired Companies to dispose of any assets, (ii) to discontinue or cause any of its Subsidiaries to discontinue offering any product or service, or to commit to cause any of the Acquired Companies to discontinue offering any product or service or (iii) to make or cause any of its Subsidiaries to make any commitment (to any Governmental Body or otherwise) regarding its future operations or the future operations of any of the Acquired Companies.
(d) The Company shall use its reasonable best efforts to obtain the Consents and waivers required to satisfy Parent’s and MergerCo’s conditions to Closing set forth in this Agreement.
Appears in 1 contract
Regulatory Approvals; Consents. (a) Subject to Section 7.1(b) and otherwise in accordance with the express provisions of the Agreement, the Buyer Parties Parent and the Company Parties shall use their respective all reasonable best efforts to take, or cause to be taken, all actions necessary, proper or advisable to cause the conditions set forth in Articles VIII, IX and X to be satisfied and necessary to consummate the Merger and make effective the Merger Transactions as promptly as practicable after expiration of the Due Diligence Periodother Transactions. Without limiting the generality of the foregoing, from expiration of the Due Diligence Period until the Closing Date, the Buyer Parties Parent and the Company Parties (i) shall make all filings (if any) and give all notices (if any) required to be made and given by such party hereto in connection with the Merger and the other Transactions and shall submit promptly any additional information requested in connection with such filings and notices, (ii) shall use their respective all reasonable best efforts to obtain or cause to be obtained each Consent consent (if any) required to be obtained (pursuant to any applicable Legal Requirements Law or Contract, or otherwise) by such party hereto in connection with the execution and delivery of this Agreement and the consummation Merger or any of the Merger other Transactions and (iii) shall use their respective all reasonable best efforts to oppose or lift any restraint, injunction injunction, or other legal bar to the Merger and the other Transactions. Each of the Company and Parent shall promptly deliver to the other a copy of each such filing made, each such notice given given, and each such Consent consent obtained during the period beginning on the date hereof and ending at the Effective Time (“Pre-Closing Period”).
(b) Without limiting the generality of Section 7.1(a6.02(a), the Company and Parent shall, promptly after the expiration date of the Due Diligence Periodthis Agreement, prepare and file the notifications, if any, notifications required under the HSR Act and any applicable foreign antitrust laws or regulations in connection with any of the Merger and the other Transactions. The Company Parties and the Buyer Parties Parent shall respond as promptly as practicable to any inquiries or requests received from any Governmental Body governmental body in connection with antitrust laws or related matters. The Company Parties and the Buyer Parties shall coordinate and cooperate fully with each other in exchanging such information and providing such assistance as the other may reasonably request in connection with the foregoing and in seeking the earliest possible termination of any applicable waiting periods or suspension effects imposed by any Legal Requirements. Each of the Company Parties and the Buyer Parties Parent shall (i1) give the other parties hereto party prompt notice of the commencement or threat of commencement of any Legal Proceeding legal proceeding by or before any Governmental Body Entity with respect to this Agreement the Merger or any of the Merger other Transactions, (ii2) keep the other party informed as to the status of any such Legal Proceeding legal proceeding or threat threat, and (iii3) promptly inform the other parties hereto party of any communication concerning the antitrust laws to or from any Governmental Body Entity regarding this Agreement or any of the Merger or the other Transactions. Except as may be prohibited by any Governmental Body governmental body or by any Legal RequirementLaw, the Company and Parent will consult and cooperate with one another, and will consider in good faith the views of one another, in connection with any analysis, appearance, presentation, memorandum, brief, argument, opinion or proposal made or submitted in connection with any Legal Proceeding legal proceeding under or relating to the HSR Act or any other antitrust law. Subject to the foregoing, Parent shall be principally responsible for and in control of the process of dealing with any Governmental Body concerning the effect of applicable antitrust laws on this Agreement and any of the Merger Transactions. In addition, except as may be prohibited by any Governmental Body Entity or by any Legal RequirementLaw, in connection with any Legal Proceeding legal proceeding under or relating to the HSR Act or any other foreign, federal or state antitrust law or fair trade law or any other similar Legal Proceedinglegal proceeding, each of the Company and Parent will permit authorized Representatives of the other to be present at each meeting or conference relating to any such Legal Proceeding legal proceeding and to have access to and be consulted in connection with any document, opinion or proposal made or submitted to any Governmental Body governmental body in connection with any such Legal Proceedinglegal proceeding.
(c) Notwithstanding anything to the contrary contained in this Agreement, Parent shall not have any obligation under this Agreement: (i) to dispose, transfer or hold separate, or cause any of its Subsidiaries to dispose, transfer or hold separate any assets or operations, or to commit or to cause any of the Acquired Companies to dispose of any assets, (ii) to discontinue or cause any of its Subsidiaries to discontinue offering any product or service, or to commit to cause any of the Acquired Companies to discontinue offering any product or service or (iii) to make or cause any of its Subsidiaries to make any commitment (to any Governmental Body or otherwise) regarding its future operations or the future operations of any of the Acquired Companies.
(d) The Company shall use its reasonable best efforts to obtain the Consents and waivers required to satisfy Parent’s and MergerCo’s conditions to Closing set forth in this Agreement.
Appears in 1 contract
Regulatory Approvals; Consents. (a) Subject to Section 7.1(bSections 6.3(c) and otherwise in accordance with the express provisions of the Agreement(d), the Buyer Parties Parent and the Company Parties shall use their respective all reasonable best efforts to take, or cause to be taken, all actions necessary, proper or advisable to cause the conditions set forth in Articles VIII, IX and X to be satisfied and necessary to consummate the Merger and make effective the Merger Transactions as promptly as practicable after expiration of the Due Diligence Periodother Contemplated Transactions. Without limiting the generality of the foregoing, from expiration of the Due Diligence Period until the Closing Datebut subject to Sections 6.3(c) and (d), the Buyer Parties Parent and the Company Parties (i) shall make all filings (if any) and give all notices (if any) required to be made and given by such party hereto in connection with the Merger and the other Contemplated Transactions and shall submit promptly any additional information requested in connection with such filings and notices, (ii) shall use their respective all reasonable best efforts to obtain or cause to be obtained each Consent (if any) required to be obtained (pursuant to any applicable Legal Requirements Requirement or Contract, or otherwise) by such party hereto in connection with the execution and delivery of this Agreement and the consummation Merger or any of the Merger other Contemplated Transactions and (iii) shall use their respective all reasonable best efforts to oppose or lift any restraint, injunction or other legal bar to the Merger TransactionsMerger. Each of the Company and Parent shall promptly deliver to the other a copy of each such filing made, each such notice given and each such Consent obtained during the Pre-Closing Period.
(b) Without limiting the generality of Section 7.1(a6.3(a), the Company and Parent shall, promptly after the expiration date of the Due Diligence Periodthis Agreement, prepare and file the notifications, if any, notifications required under the HSR Act and any applicable foreign antitrust laws or regulations in connection with any of the Merger TransactionsMerger. The Company Parties and the Buyer Parties Parent shall respond as promptly as practicable to any inquiries or requests received from any Governmental Body in connection with antitrust laws or related matters. The Company Parties and the Buyer Parties shall coordinate and cooperate fully with each other in exchanging such information and providing such assistance as the other may reasonably request in connection with the foregoing and in seeking the earliest possible termination of any applicable waiting periods or suspension effects imposed by any Legal Requirements. Each of the Company Parties and the Buyer Parties Parent shall (i1) give the other parties hereto party prompt notice of the commencement or threat of commencement of any Legal Proceeding by or before any Governmental Body with respect to this Agreement the Merger or any of the Merger other Contemplated Transactions, (ii2) keep the other party informed as to the status of any such Legal Proceeding or threat and (iii3) promptly inform the other parties hereto party of any communication concerning antitrust laws to or from any Governmental Body regarding this Agreement or any of the Merger TransactionsMerger. Except as may be prohibited by any Governmental Body or by any Legal Requirement, the Company and Parent will consult and cooperate with one another, and will consider in good faith the views of one another, in connection with any analysis, appearance, presentation, memorandum, brief, argument, opinion or proposal made or submitted in connection with any Legal Proceeding under or relating to the HSR Act or any other antitrust law. Subject to the foregoing, Parent shall be principally responsible for and in control of the process of dealing with any Governmental Body concerning the effect of applicable antitrust laws on this Agreement and any of the Merger Contemplated Transactions. In addition, except as may be prohibited by any Governmental Body or by any Legal Requirement, in connection with any Legal Proceeding under or relating to the HSR Act or any other foreign, federal or state antitrust law or fair trade law or any other similar Legal Proceeding, each of the Company and Parent will permit authorized Representatives of the other to be present at each meeting or conference relating to any such Legal Proceeding and to have access to and be consulted in connection with any document, opinion or proposal made or submitted to any Governmental Body in connection with any such Legal Proceeding.
(c) Notwithstanding anything to the contrary contained in this Agreement, Parent shall not have any obligation under this Agreement: (i) to dispose, transfer or hold separate, or cause any of its Subsidiaries to dispose, transfer or hold separate any assets or operations, or to commit or to cause any of the Acquired Companies Corporations to dispose of any assets, ; (ii) to discontinue or cause any of its Subsidiaries to discontinue offering any product or service, or to commit to cause any of the Acquired Companies Corporations to discontinue offering any product or service or service; (iii) to make or cause any of its Subsidiaries to make any commitment (to any Governmental Body or otherwise) regarding its future operations or the future operations of any of the Acquired CompaniesCorporations.
(d) The Company shall use its reasonable best efforts to obtain the Consents and waivers required to satisfy Parent’s 's and MergerCo’s conditions Merger Sub's condition to Closing set forth in this AgreementSection 8.4.
Appears in 1 contract
Regulatory Approvals; Consents. (a) Subject Upon the terms and subject to Section 7.1(b) and otherwise in accordance with the express provisions conditions of this Agreement, each of the Agreement, the Buyer Parties and the Company Parties parties shall use their respective its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, and cooperate with each other in order to do, all things necessary, proper or advisable under applicable Law to consummate the transactions contemplated by this Agreement at the earliest practicable date, including using reasonable best efforts to cause the conditions set forth in Articles VIIIpreparation and filing of all forms, IX registrations and X notices required to be satisfied and filed to consummate the transactions contemplated by this Agreement and make effective using reasonable best efforts to take such actions as are necessary to obtain the Merger Transactions as promptly as practicable after Competition Act Clearance, the Investment Canada Act Approval and any requisite consent or expiration of any applicable waiting period under the Due Diligence PeriodHSR Act. Without limiting the generality In furtherance and not in limitation of the foregoing, from expiration the parties shall prepare and file, as soon as is reasonably practical following the execution of the Due Diligence Period until the Closing Datethis Agreement (and in any event, the Buyer Parties and the Company Parties no later than (i) shall make with respect to the application pursuant to Section 203 of the FPA, five Business Days following the date of this Agreement and (ii) with respect to all other notifications and filings (if anyset forth in this sentence, 10 Business Days following the date of this Agreement), an appropriate filing of a Notification and Report Form pursuant to the HSR Act, notifications pursuant to subsection 114(1) of the Competition Act, the application pursuant to Section 203 of the FPA, the Required Regulatory Notice, the Required PJM Notice and give all notices (if any) required to be made and given by such party hereto any other necessary filings in connection with the Merger Transactions and shall submit promptly any additional information requested in connection with such filings and notices, (ii) shall use their respective reasonable best efforts to obtain or cause to transactions contemplated by this Agreement that may be obtained each Consent (if any) required to be obtained (pursuant to any applicable Legal Requirements or Contract, or otherwise) filed by such party hereto in furtherance of obtaining the Required Regulatory Approvals, while within 10 Business Days, Buyer shall file a submission to the Commissioner of Competition requesting an Advance Ruling Certificate under subsection 102(1) of the Competition Act and an application to the Director of Investments pursuant to subsection 17(1) of the Investment Canada Act and thereafter, within a further 10 Business Days, submit draft undertakings to the Foreign Investment Review and Economic Security Branch; provided, that Buyer’s obligation to file an application with the Director of Investments pursuant to subsection 17(1) of the Investment Canada Act and submit draft undertakings to the Foreign Investment Review and Economic Security Branch within the above-referenced period shall be expressly contingent upon its receipt from Seller within five Business Days after the date hereof of all information requested by Xxxxx, acting reasonably, for such application relating to Seller, the Company Group and the Non-Controlled Joint Ventures Group; and further provided, that if the Federal Trade Commission’s proposed amendments to the premerger notification rules and HSR filing instructions published in the Federal Register on June 29, 2023 are finalized with any modifications and in effect at any time prior to the filing under the HSR Act as contemplated above, the period for such filing shall be extended by such reasonable period of time sufficient for the Parties to comply with such amendments. Buyer shall not withdraw any such filing pursuant to the HSR Act or the Competition Act, or enter into any timing agreement with a Governmental Authority in connection with the execution and delivery of this Agreement and HSR Act or the consummation of Competition Act, without Seller’s prior consent, which shall not be unreasonably withheld, conditioned, or delayed. Buyer shall pay all filing fees for the Merger Transactions and (iii) shall use their respective reasonable best efforts to oppose or lift any restraint, injunction or other legal bar to the Merger Transactions. Each of the Company and Parent shall promptly deliver to the other a copy of each such filing made, each such notice given and each such Consent obtained during the Pre-Closing Period.
(b) Without limiting the generality of Section 7.1(a), the Company and Parent shall, promptly after the expiration of the Due Diligence Period, prepare and file the notifications, if any, filings required under the HSR Act and any applicable foreign antitrust laws or regulations the Competition Act by Seller, the Company and Buyer, and Seller shall reimburse to Buyer at Closing 50% of such filing fees paid by Xxxxx. Outside counsel for the parties shall consult with each other regarding such filings and shall consider incorporating in connection such filings all reasonable comments, if any, submitted.
(b) With respect to the FERC 203 Approval, confidential treatment will be requested to the extent deemed appropriate by the Parties after consultation with any counsel and consideration of the Merger Transactions. commercial sensitivity of the documents and information to be included in the application to FERC.
(c) The Company Parties and the Buyer Parties shall respond parties will supply as promptly as practicable to the appropriate Governmental Authority any inquiries or requests received additional information and document material that may be requested pursuant to a request from any Governmental Body in connection with antitrust laws or related matters. The Company Parties and the Buyer Parties shall coordinate and cooperate fully with each other in exchanging such information and providing such assistance as the other may reasonably Authority including a request in connection with the foregoing and in seeking the earliest possible termination of any applicable waiting periods or suspension effects imposed by any Legal Requirements. Each of the Company Parties and the Buyer Parties shall (i) give the other parties hereto prompt notice of the commencement or threat of commencement of any Legal Proceeding by or before any Governmental Body with respect to this Agreement or any of the Merger Transactions, (ii) keep the other party informed as to the status of any such Legal Proceeding or threat and (iii) promptly inform the other parties hereto of any communication concerning antitrust laws to or from any Governmental Body regarding this Agreement or any of the Merger Transactions. Except as may be prohibited by any Governmental Body or by any Legal Requirement, the Company and Parent will consult and cooperate with one another, and will consider in good faith the views of one another, in connection with any analysis, appearance, presentation, memorandum, brief, argument, opinion or proposal made or submitted in connection with any Legal Proceeding under or relating to the HSR Act or any other antitrust law. Subject to in respect of obtaining the foregoing, Parent shall be principally responsible for and in control of the process of dealing with any Governmental Body concerning the effect of applicable antitrust laws on this Agreement and any of the Merger Transactions. In addition, except as may be prohibited by any Governmental Body or by any Legal Requirement, in connection with any Legal Proceeding under or relating to the HSR Act or any other foreign, federal or state antitrust law or fair trade law or any other similar Legal Proceeding, each of the Company and Parent will permit authorized Representatives of the other to be present at each meeting or conference relating to any such Legal Proceeding and to have access to and be consulted in connection with any document, opinion or proposal made or submitted to any Governmental Body in connection with any such Legal Proceeding.
(c) Notwithstanding anything to the contrary contained in this Agreement, Parent shall not have any obligation under this Agreement: (i) to dispose, transfer or hold separate, or cause any of its Subsidiaries to dispose, transfer or hold separate any assets or operations, or to commit or to cause any of the Acquired Companies to dispose of any assets, (ii) to discontinue or cause any of its Subsidiaries to discontinue offering any product or service, or to commit to cause any of the Acquired Companies to discontinue offering any product or service or (iii) to make or cause any of its Subsidiaries to make any commitment (to any Governmental Body or otherwise) regarding its future operations or the future operations of any of the Acquired CompaniesRequired Regulatory Approvals.
(d) The Company parties shall keep each other apprised of status with respect to the matters set forth in this Section 5.5 and work cooperatively in connection with obtaining the approvals of or clearances from each applicable Governmental Authority, including, to the extent permitted by applicable Law and the relevant Governmental Authority and subject, where applicable, to execution of appropriate common interest or similar agreements:
(i) cooperating with each other in connection with any filings required or advisable to be made by any party in connection with the transactions contemplated by this Agreement and liaising with each other in relation to each step of the procedure before the relevant Governmental Authorities and as to the contents of all non-ministerial communications with such Governmental Authorities. In particular, to the extent permitted by Law or by a Governmental Authority, no party will make any notification in relation to the regulatory approvals and consents contemplated hereunder without first providing the other parties with a copy of such notification in draft form and giving such other parties a reasonable opportunity to discuss its content before it is filed with the relevant Governmental Authorities, and such first party shall consider and take account of all reasonable comments timely made by the other parties in this respect;
(ii) furnishing to the other party’s outside legal counsel all necessary information within its possession, and reasonable assistance that is required for any necessary submissions of information to any such Governmental Authority to be made by the other party pursuant to the applicable Law in connection with the transactions contemplated by this Agreement;
(iii) promptly notifying each other of, and if in writing, furnishing the other with copies of (or, in the case of oral communications, advising the other of) any communications from or with any Governmental Authority with respect to the matters set forth in this Section 5.5 and not participating in any meeting or having any communication with any Governmental Authority unless it has given the other party a reasonable opportunity to consult with it in advance and, to the extent permitted by such Governmental Authority, gives the other the opportunity to attend and participate therein;
(iv) cooperating with each other to allow for review and to discuss in advance, and consider in good faith the view of the other in connection with, any proposed communication with any Governmental Authority, including any presentations, memoranda, briefs, arguments, opinions and proposals made or submitted by or on behalf of any party in connection with any proceedings by or before any Governmental Authority based upon, or in connection with, the transactions contemplated by this Agreement;
(v) promptly furnishing the other party’s outside legal counsel with copies of all filings and communications between it and any such Governmental Authority with respect to the transactions contemplated by this agreement; provided, that such material be redacted as necessary (I) to comply with contractual arrangements, (II) to address good faith legal privilege or confidentiality concerns and (III) to comply with applicable Law; and
(vi) without prejudice to any rights of the parties hereunder, consulting and cooperating in all respects with the other in defending all lawsuits and other proceedings by or before any Governmental Authority challenging this Agreement or the consummation of the transactions contemplated by this Agreement.
(e) In addition, Buyer shall use its reasonable best efforts to take, or cause to be taken (including with respect to its Controlled Affiliates), all other actions and to do, or cause to be done, all other things necessary, proper or advisable under all applicable Laws to consummate the transactions contemplated by this Agreement as soon as reasonably practicable, including using its reasonable best efforts to obtain the Consents all approvals and waivers any consents from any Governmental Authority that are required to satisfy Parent’s and MergerCo’s conditions be obtained in order for the parties to Closing consummate the transactions contemplated by this Agreement.
(f) Notwithstanding anything to the contrary set forth in this Agreement but subject to the last sentence of this Section 5.5(f), and provided that they are conditioned upon the consummation of the transactions contemplated by this Agreement, the obligations of Buyer under this Section 5.5 as they relate to the FERC 203 Approval, Competition Act Clearance and any approval under the HSR Act shall include Buyer committing to (and causing its Controlled Affiliates, if and as applicable, to): (i) sell, divest or otherwise convey particular assets, categories, portions or parts of assets or businesses of Buyer and its Controlled Affiliates or Subsidiaries; (ii) sell, divest or otherwise convey any particular asset, category, portion or part of an asset or business of the Company Group or the Company Group’s interest in the Non-Controlled Joint Ventures Group contemporaneously with or subsequent to the Closing; (iii) permit the Company to sell, divest or otherwise convey any of the particular assets, categories, portions or parts of assets or business of the Company Group or the Company Group’s interest in the Non-Controlled Joint Ventures Group prior to the Closing; and (iv) license, hold separate or enter into similar arrangements with respect to its respective assets or the assets of the Company or the conduct of business arrangements, or terminate any and all existing relationships and contractual rights and obligations to the extent such activities are a condition to obtaining in respect of the transactions contemplated herein any and all expirations of waiting periods (to the extent applicable) under the HSR Act, Competition Act, or consents from any Governmental Authority necessary under the FPA to consummate the transactions contemplated hereby. All efforts described in this Section 5.5(f) shall be unconditional and shall not be qualified by best efforts, and no actions taken pursuant to this Section 5.5(f) shall be considered for purposes of determining whether a Material Adverse Effect has occurred.
(g) To the extent necessary to obtain the Investment Canada Act Approval, Xxxxx shall negotiate in good faith with the responsible Minister under the Investment Canada Act, [Redacted – Commercially Sensitive Information – Negotiations with Third Party]
(h) Prior to the Closing, in the event that Buyer or its Controlled Affiliates submit (or consent to any seller or transferor or Affiliate thereof submitting) an application seeking authorization of FERC under Section 203 of the FPA for the consummation of any acquisition not contemplated by this Agreement (an “Other Transaction FERC 203 Application”), [Redacted – Commercially Sensitive Information – Negotiations with Third Party].
(i) For the avoidance of doubt, in the event either party receives a letter from any Governmental Authority stating that although the waiting periods under the HSR Act or the Competition Act applicable to the transactions contemplated by this Agreement will soon expire, the Governmental Authority has not yet completed any purported investigation of the proposed transaction (a “Pre-Consummation Warning Letter”), the parties agree that the receipt by either or both of them of a Pre-Consummation Warning Letter or other verbal or written communications from the Governmental Authority to the same effect shall not be a basis for asserting that any condition to closing under Article VI hereof has not been satisfied.
(j) Except as specifically required by this Agreement, Buyer and the Company shall not, and Buyer shall cause its Affiliates not to knowingly and intentionally take any action, or knowingly and intentionally refrain from taking any action, the effect of which would reasonably be expected to materially delay or impede the ability of the parties to consummate the transactions contemplated by this Agreement.
(k) Without limiting the foregoing provisions of this Section 5.5, Seller shall use commercially reasonable efforts to take, or cause to be taken, all actions that are reasonably necessary or advisable to obtain all consents set forth on Schedule 3.3 of the Disclosure Schedules; provided, however, that neither Seller nor any member of the Company Group or the Non-Controlled Joint Ventures Group shall be required to incur liabilities for any payments by any such entity or agree to any additional performance conditions or covenants being imposed upon any such entity in connection with obtaining such consents. Buyer shall reasonably cooperate with Seller or the applicable member of the Company Group or the Non-Controlled Joint Ventures Group with respect to obtaining any such consent, including providing customary “know-your-customer” and other information regarding Buyer’s or its Controlled Affiliates’ financial condition as requested by the counterparties in respect of such consents. Seller shall (and shall cause the applicable member of the Company Group to) reasonably cooperate with Buyer with respect to Buyer’s obligations under Section 4.11 (and related Schedule 4.11 of the Disclosure Schedules).
Appears in 1 contract
Samples: Securities Purchase Agreement (Algonquin Power & Utilities Corp.)
Regulatory Approvals; Consents. (a) Subject to Section 7.1(b) and otherwise in accordance with the express provisions of the Agreement, the Buyer Parties and the Company Parties Each party shall use their respective commercially reasonable best efforts to take, or cause to be taken, all actions necessary, proper or advisable to cause the conditions set forth in Articles VIII, IX and X to be satisfied and to consummate and make effective the Merger Transactions file as promptly soon as practicable after expiration the date of the Due Diligence Period. Without limiting the generality of the foregoingthis Agreement, from expiration of the Due Diligence Period until the Closing Dateall notices, the Buyer Parties reports and the Company Parties (i) shall make all filings (if any) and give all notices (if any) other documents required to be made and given filed by such party hereto in connection with any Governmental Authority with respect to the Merger Transactions transactions contemplated hereunder, and shall to submit promptly any additional information reasonably requested in connection with by any such filings Governmental Authority, and notices, (ii) shall use their respective commercially reasonable best efforts to obtain or cause to be obtained each Consent (if any) all required to be obtained (pursuant to any applicable Legal Requirements or Contractconsents, or otherwise) by such party hereto in connection with the execution approvals, and delivery of this Agreement authorizations from Governmental Authorities, and the consummation expiration or termination of all required waiting periods, so as to consummate the Merger Transactions and (iii) shall use their respective reasonable best efforts to oppose or lift any restraint, injunction or other legal bar to the Merger Transactions. Each of the Company and Parent shall transactions contemplated by this agreement as promptly deliver to the other a copy of each such filing made, each such notice given and each such Consent obtained during the Pre-Closing Periodas possible.
(b) Without limiting Within ten (10) business days after the generality date of Section 7.1(a)this Agreement, the Company and Parent shall, promptly after the expiration of the Due Diligence Period, prepare and parties shall file the notifications, if any, notifications required under the HSR Act and any applicable foreign antitrust laws or regulations in connection with any of the Merger Transactions. The Company Parties and the Buyer Parties shall respond as promptly as practicable to any inquiries or requests received from any Governmental Body in connection with antitrust laws or related matters. The Company Parties and the Buyer Parties shall coordinate and cooperate fully with each other in exchanging such information and providing such assistance as the other may reasonably request Antitrust Laws, in connection with the foregoing and transactions contemplated hereunder in seeking the earliest possible termination of any applicable waiting periods or suspension effects imposed by any Legal Requirements. Each jurisdictions identified in Schedule 6.3(b).
(c) Subject to the confidentiality provisions of the Company Parties and the Buyer Parties Prior Confidentiality Agreement, each party shall (i) give promptly supply the other parties hereto prompt notice 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) this Section 6.3. Except where prohibited by applicable laws or any Governmental Authority, and subject to the confidentiality provisions of the commencement or threat of commencement of any Legal Proceeding by or before any Governmental Body with respect to this Agreement or any Prior Confidentiality Agreement, each of the Merger Transactions, parties shall: (ii) keep the other party informed as to the status of any such Legal Proceeding or threat and (iiii) promptly inform the other parties hereto of any communication concerning antitrust laws to or from any Governmental Body Authority, in each case regarding this Agreement the transactions contemplated hereunder or in connection with an investigation regarding the transactions contemplated hereunder; (ii) consult with the other parties prior to making any of the Merger Transactions. Except as may be prohibited by filing, taking a position with respect to any filing, or communicating with any Governmental Body Authority regarding the transactions contemplated hereunder or by any Legal Requirement, in connection with an investigation regarding the Company transactions contemplated hereunder; (iii) permit the other party to review and Parent will consult and cooperate with one anotherdiscuss in advance, and will consider in good faith the views of one another, the other parties in connection with with, any analysisanalyses, appearanceappearances, presentationpresentations, memorandummemoranda, briefbriefs, argumentwhite papers, opinion arguments, opinions and proposals before making or proposal made submitting any of the foregoing to any Governmental Authority by or submitted on behalf of any party in connection with any Legal Proceeding under or relating related to the HSR Act or any other antitrust law. Subject to the foregoing, Parent shall be principally responsible for and in control of the process of dealing with any Governmental Body concerning the effect of applicable antitrust laws on this Agreement and any of the Merger Transactions. In addition, except as may be prohibited by any Governmental Body transactions contemplated hereunder or by any Legal Requirement, in connection with an investigation regarding the transactions contemplated hereunder (including any such Legal Proceeding under or relating to the HSR Act or any other foreign, federal or state antitrust law or fair trade law or any other similar Legal Proceeding, each of the Company and Parent will permit authorized Representatives of Antitrust Law); (iv) coordinate with the other party in preparing and exchanging such information; (v) permit the other parties or its counsel to be present at each meeting or conference relating to any such Legal Proceeding and to have access to and be consulted with representatives of a Governmental Authority regarding the transaction contemplated hereunder or in connection with an investigation regarding the transactions contemplated hereunder; and (vi) promptly provide the other party (or its counsel, pursuant to an appropriate joint defense and confidentiality agreement) with copies of all filings, notices, analyses, presentations, memoranda, briefs, white papers, opinions, proposals and other submissions (and a summary of any document, opinion or proposal oral presentations) made or submitted by such party with or to any Governmental Body Authority related to this Agreement or the transactions contemplated hereunder or in connection with any such Legal Proceeding.
(c) Notwithstanding anything an investigation regarding the transactions contemplated hereunder, provided, however, that materials can be entirely withheld if they relate to the contrary contained in this Agreement, Parent shall not have any obligation under this Agreement: (i) to dispose, transfer or hold separate, or cause any of its Subsidiaries to dispose, transfer or hold separate any assets or operations, or to commit or to cause any valuation of the Acquired Companies to dispose of any assetstransaction or where sharing the information would, (ii) to discontinue or cause any of its Subsidiaries to discontinue offering any product or service, or to commit to cause any in the good faith belief of the Acquired Companies to discontinue offering any product party whose material it is, would be prohibited by law or service or (iii) to make or cause any of its Subsidiaries to make any commitment (to any Governmental Body or otherwise) regarding its future operations or the future operations of any of the Acquired Companiesviolate contractual obligations.
(d) The Company Seller promptly shall give any required notices to third parties, and use commercially reasonable efforts to obtain any required consents, under those Transferred Contracts set forth on Part 6.3(d) of the Seller Disclosure Schedule; provided, however, that Seller shall not be required to pay any money, incur any Liability or modify any contract in any manner whatsoever adverse to Seller in connection with obtaining any third party consent. Purchaser shall cooperate and use its reasonable best efforts to obtain the Consents assist Seller in giving such notices and waivers required to satisfy Parent’s and MergerCo’s conditions to Closing set forth in this Agreementobtaining such consents.
Appears in 1 contract
Samples: Asset Purchase Agreement (PTC Inc.)
Regulatory Approvals; Consents. (a) Subject Upon the terms and subject to Section 7.1(b) and otherwise the conditions set forth in accordance with the express provisions this Agreement, each of the Agreement, the Buyer Parties and the Company Parties shall parties agrees to use their respective reasonable best efforts to take, or cause to be taken, all actions that are necessary, proper proper, or advisable to cause the conditions set forth in Articles VIII, IX and X to be satisfied and to consummate and make effective effective, in the Merger Transactions as promptly as practicable after expiration of the Due Diligence Period. Without limiting the generality of the foregoing, from expiration of the Due Diligence Period until the Closing Datemost expeditious manner practicable, the Buyer Parties Offer, the Merger, and the Company Parties other transactions contemplated by this Agreement, including using reasonable best efforts to accomplish the following: (i) shall make obtain all filings (if any) consents, permits, approvals, or waivers from, or participation in other discussions or negotiations with, third parties, including as required under any Material Contract, in each case, to the extent material to the Company and give all notices (if any) its Subsidiaries or required to be made and given by such party hereto in connection with permit the Merger Transactions and shall submit promptly any additional information requested in connection with such filings and noticesparties to consummate the transactions contemplated hereby, (ii) shall use their respective obtain all necessary actions or nonactions, waivers, consents, approvals, orders, and authorizations from Governmental Entities, make all necessary notices, applications, petitions, registrations, declarations, and filings, and make all reasonable best efforts to obtain an approval or cause to be obtained each Consent (if any) required to be obtained (pursuant to any applicable Legal Requirements or Contractwaiver from, or otherwise) by such party hereto in connection to avoid any Action by, any Governmental Entity, including under the HSR Act with respect to the execution and delivery of this Agreement United States Federal Trade Commission and the consummation Antitrust Division of the Merger Transactions United States Department of Justice, and (iii) execute and deliver any additional instruments necessary to consummate the transactions contemplated hereby and fully to carry out the purposes of this Agreement; provided, however, that neither the Company nor any of its Subsidiaries shall use their respective reasonable best efforts commit to oppose or lift the payment of any restraintfee, injunction penalty, or other legal bar to consideration, or make any other concession, waiver, or amendment under any Contract in connection with obtaining any consent without the Merger Transactionsprior written consent of Parent (which shall not be unreasonably withheld, conditioned, or delayed). Each of the Company and Parent parties hereto shall promptly deliver furnish to the other a copy of each such filing made, each such notice given and each such Consent obtained during the Pre-Closing Period.
(b) Without limiting the generality of Section 7.1(a), the Company and Parent shall, promptly after the expiration of the Due Diligence Period, prepare and file the notifications, if any, required under the HSR Act and any applicable foreign antitrust laws or regulations in connection with any of the Merger Transactions. The Company Parties and the Buyer Parties shall respond as promptly as practicable to any inquiries or requests received from any Governmental Body in connection with antitrust laws or related matters. The Company Parties and the Buyer Parties shall coordinate and cooperate fully with each other in exchanging party such necessary information and providing such reasonable assistance as the such other party may reasonably request in connection with the foregoing. Subject to applicable Law relating to the exchange of information, Parent and the Company shall each have the right to review in advance, and to the extent practicable each shall consult with the other in connection with, all of the information relating to Parent or the Company, as the case may be, and any of their respective Subsidiaries, that appears in any filing made with, or written materials submitted to, any third party and/or any Governmental Entity in connection with the Offer, the Merger, and the other transactions contemplated hereby. In exercising the foregoing rights, each of Parent and in seeking the earliest possible termination Company shall act reasonably and as promptly as practicable. Subject to applicable Law and the instructions of any applicable waiting periods or suspension effects imposed by any Legal Requirements. Each of the Company Parties and the Buyer Parties shall (i) give the other parties hereto prompt notice of the commencement or threat of commencement of any Legal Proceeding by or before any Governmental Body with respect to this Agreement or any of the Merger Transactions, (ii) keep the other party informed as to the status of any such Legal Proceeding or threat and (iii) promptly inform the other parties hereto of any communication concerning antitrust laws to or from any Governmental Body regarding this Agreement or any of the Merger Transactions. Except as may be prohibited by any Governmental Body or by any Legal RequirementEntity, the Company and Parent will shall keep each other reasonably 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 written communications received by the Company or Parent, as the case may be, or any of their respective Subsidiaries, from any Governmental Entity and/or third party with respect to such transactions, and, to the extent practicable under the circumstances, shall provide the other party and its counsel with the opportunity to participate in
(b) Parent, Merger Sub, and the Company agree to make (and to cause their respective ultimate parent entities to make) any necessary filings under the HSR Act as soon as practicable and no later than ten (10) days after execution of this Agreement. Each of Parent and the Company shall furnish promptly to the FTC, the Antitrust Division, and any other requesting Governmental Entity any additional information requested by either of them pursuant to the HSR Act or any other antitrust or related Law in connection with such filings, including all documents or information requested under 16 C.F.R. § 803.20 or other rules under the HSR Act. To the extent permitted by Law, each of Parent and the Company shall consult in advance and cooperate with one another, and will consider in good faith the views of one another, in connection with any analysisanalyses, appearanceappearances, presentationpresentations, memorandummemoranda, briefbriefs, argumentarguments, opinion or proposal opinions, and proposals made or submitted by or on behalf of any party hereto in connection with any Legal Proceeding proceedings under or relating to the HSR Act or any other antitrust lawLaw. Subject to Parent and the foregoing, Parent Company shall be principally responsible for and cooperate fully with each other in control connection with the making of the process of dealing with any Governmental Body concerning the effect of applicable antitrust laws on this Agreement and any of the Merger Transactionsall such filings or responses. In addition, except as may be prohibited by any Governmental Body Entity or by any Legal Requirementapplicable Law, each party hereto will permit authorized Representatives of the other parties to attend any meeting, communication, or conference with any Governmental Entity in connection with any Legal Proceeding such proceedings under or relating to the HSR Act or any other foreignantitrust Law. Without limiting the generality of the foregoing, federal each party shall promptly provide to the other (or state antitrust law the other’s respective advisors) upon request copies of all correspondence between such party and any Governmental Entity relating to the transactions contemplated by this Agreement. The parties may, as they deem advisable and necessary, designate any nonpublic information provided to the other under this Section 6.4 as restricted to “outside counsel only” and any such information shall not be shared with employees, officers or fair trade law directors or any their equivalents of the other similar Legal Proceedingparty without approval of the party providing the nonpublic information; provided, however, that each of the Company and Parent will permit authorized Representatives of the other to be present at each meeting or conference relating may redact any valuation and related information before sharing any information provided to any such Legal Proceeding Governmental Entity with another party on an “outside counsel only” basis. Parent shall pay directly to the applicable Governmental Entity the applicable filing fee required in connection with the filings and to have access to and be consulted other materials required under the HSR Act, or in connection with any document, opinion or proposal made or submitted to any Governmental Body in connection with any such Legal Proceedingother antitrust notifications.
(c) Notwithstanding anything to the contrary contained in this Agreement, Each of Parent shall not have any obligation under this Agreement: (i) to dispose, transfer or hold separate, or cause any of its Subsidiaries to dispose, transfer or hold separate any assets or operations, or to commit or to cause any of the Acquired Companies to dispose of any assets, (ii) to discontinue or cause any of its Subsidiaries to discontinue offering any product or service, or to commit to cause any of the Acquired Companies to discontinue offering any product or service or (iii) to make or cause any of its Subsidiaries to make any commitment (to any Governmental Body or otherwise) regarding its future operations or the future operations of any of the Acquired Companies.
(d) The Company and Merger Sub shall use its reasonable best efforts to obtain take such steps which it is capable of taking to avoid or eliminate impediments under any antitrust Laws that may be asserted by the Consents and waivers required FTC, the Antitrust Division, or any other Governmental Entity with respect to satisfy Parent’s and MergerCo’s conditions the transactions contemplated hereby so as to Closing enable the transactions contemplated hereby to occur as promptly as reasonably practicable following the date of this Agreement and,
(d) Notwithstanding anything to the contrary set forth in this Agreement, nothing in this Section 6.4 shall require or obligate any of Parent’s Affiliates, including any investment fund or investment vehicle affiliated with, or managed or advised by, Affiliates of Parent, or other investment of any Affiliate of Parent or any such investment fund or investment vehicles, other than the Guarantors, Parent and Merger Sub, to take any action or require any Person other than the Guarantors’ portfolio companies (as such term is commonly understood in the private equity industry), Parent, Merger Sub and Parent’s other Subsidiaries to take any of the actions in this Section 6.4.
Appears in 1 contract
Regulatory Approvals; Consents. (a) Subject to Section 7.1(b5.3(c) and otherwise in accordance with the express provisions of the Agreement(d), the Buyer Parties Parent and the Company Parties shall use their respective all reasonable best efforts to take, or cause to be taken, all actions necessary, proper or advisable to cause the conditions set forth in Articles VIII, IX and X to be satisfied and necessary to consummate the Merger and make effective the Merger Transactions as promptly as practicable after expiration of the Due Diligence Periodother Contemplated Transactions. Without limiting the generality of the foregoing, from expiration of the Due Diligence Period until the Closing Datebut subject to Section 5.3(c) and (d), the Buyer Parties Parent and the Company Parties (i) shall make all filings (if any) and give all notices (if any) required to be made and given by such party hereto in connection with the Merger and the other Contemplated Transactions and shall to submit promptly any additional information requested in connection with such filings and notices, (ii) shall use their respective all reasonable best efforts to obtain or cause to be obtained each Consent (if any) required to be obtained (pursuant to any applicable Legal Requirements Requirement or Contract, or otherwise) by such party hereto in connection with the execution and delivery of this Agreement and the consummation Merger or any of the Merger Transactions other Contemplated Transactions, and (iii) shall use their respective all reasonable best efforts to oppose or lift any restraint, injunction or other legal bar to the Merger TransactionsMerger. Each of the Company and Parent shall promptly deliver to the other a copy of each such filing mademade (other than as may be prohibited under applicable Antitrust Laws), each such notice given and each such Consent obtained during the Pre-Closing Period.
(b) Without limiting the generality of Section 7.1(a5.3(a), the Company and Parent shall, promptly after the expiration date of the Due Diligence Periodthis Agreement, prepare and file the notifications, if any, notifications required under the HSR Act and any applicable foreign antitrust laws or regulations Antitrust Laws in connection with any of the Merger TransactionsMerger. The Company Parties and the Buyer Parties Parent shall respond as promptly as practicable to any inquiries or requests received from any Governmental Body in connection with antitrust laws Antitrust Laws or related matters. The Company Parties and the Buyer Parties shall coordinate and cooperate fully with each other in exchanging such information and providing such assistance as the other may reasonably request in connection with the foregoing and in seeking the earliest possible termination of any applicable waiting periods or suspension effects imposed by any Legal Requirements. Each of the Company Parties and the Buyer Parties Parent shall (i1) give the other parties hereto party prompt notice of the commencement or threat of commencement of any Legal Proceeding by or before any Governmental Body with respect to this Agreement the Merger or any of the Merger other Contemplated Transactions, (ii2) keep the other party informed as to the status of any such Legal Proceeding or threat threat, and (iii3) promptly inform the other parties hereto party of any material communication concerning antitrust laws Antitrust Laws to or from any Governmental Body regarding this Agreement or any of the Merger TransactionsMerger. Except as may be prohibited by any Governmental Body or by any Legal Requirement, the Company and Parent will consult and cooperate with one another, and will consider in good faith the views of one another, in connection with any analysis, appearance, presentation, memorandum, brief, argument, opinion or proposal made or submitted in connection with any Legal Proceeding under or relating to the HSR Act or any other antitrust law. Subject to the foregoing, Parent shall be principally responsible for and in control of the process of dealing with any Governmental Body concerning the effect of applicable antitrust laws on this Agreement and any of the Merger Transactions. In addition, except as may be prohibited by any Governmental Body or by any Legal Requirement, in connection with any Legal Proceeding under or relating to the HSR Act or any other foreign, federal or state antitrust law or fair trade law or any other similar Legal Proceeding, each of the Company and Parent will permit authorized Representatives of the other to be present at each meeting or conference relating to any such Legal Proceeding and to have access to and be consulted in connection with any document, opinion or proposal made or submitted to any Governmental Body in connection with any such Legal Proceeding.
(c) Notwithstanding anything to the contrary contained in this Agreement, Parent shall not have any obligation under this Agreement: (i) to dispose, transfer or hold separate, or cause any of its Subsidiaries to dispose, transfer or hold separate any assets or operations, or to commit or to cause any of the Acquired Companies to dispose of any assets, (ii) to discontinue or cause any of its Subsidiaries to discontinue offering any product or service, or to commit to cause any of the Acquired Companies to discontinue offering any product or service or (iii) to make or cause any of its Subsidiaries to make any commitment (to any Governmental Body or otherwise) regarding its future operations or the future operations of any of the Acquired Companies.
(d) The Company shall use its reasonable best efforts to obtain the Consents and waivers required to satisfy Parent’s and MergerCo’s conditions to Closing set forth in this Agreement.,
Appears in 1 contract
Regulatory Approvals; Consents. (a) Subject Upon the terms and subject to Section 7.1(b) and otherwise the conditions set forth in accordance with the express provisions this Agreement, each of the Agreement, the Buyer Parties and the Company Parties shall parties agrees to use their respective commercially reasonable best efforts to take, or cause to be taken, all actions that are necessary, proper or advisable to cause the conditions set forth in Articles VIII, IX and X to be satisfied and to consummate and make effective effective, in the most expeditious manner practicable, the Offer, the Merger Transactions as promptly as practicable after expiration of the Due Diligence Period. Without limiting the generality of the foregoing, from expiration of the Due Diligence Period until the Closing Date, the Buyer Parties and the Company Parties other transactions contemplated by this Agreement, including using commercially reasonable efforts to accomplish the following: (i) shall make obtain all filings (if any) and give all notices (if any) required to be made and given by such party hereto consents, approvals or waivers from, or participation in connection with the Merger Transactions and shall submit promptly other discussions or negotiations with, third parties, including as required under any additional information requested in connection with such filings and noticesMaterial Contract, (ii) shall use their respective obtain all necessary actions or nonactions, waivers, consents, approvals, orders and authorizations from Governmental Entities, make all necessary registrations, declarations and filings and make all commercially reasonable best efforts to obtain an approval or cause to be obtained each Consent (if any) required to be obtained (pursuant to any applicable Legal Requirements or Contractwaiver from, or otherwise) by such party hereto in connection with the execution and delivery of this Agreement and the consummation of the Merger Transactions to avoid any Action by, any Governmental Entity and (iii) execute and deliver any additional instruments necessary to consummate the transactions contemplated hereby and fully to carry out the purposes of this Agreement; provided, however, that neither the Company nor any of its Subsidiaries shall use their respective reasonable best efforts to oppose or lift be required make payment of any restraintfee, injunction penalty or other legal bar to the Merger Transactionsconsideration or make any other concession, waiver or amendment under any Contract in connection with obtaining any consent. Each of the Company and Parent parties hereto shall promptly deliver furnish to the other a copy of each such filing made, each such notice given and each such Consent obtained during the Pre-Closing Period.
(b) Without limiting the generality of Section 7.1(a), the Company and Parent shall, promptly after the expiration of the Due Diligence Period, prepare and file the notifications, if any, required under the HSR Act and any applicable foreign antitrust laws or regulations in connection with any of the Merger Transactions. The Company Parties and the Buyer Parties shall respond as promptly as practicable to any inquiries or requests received from any Governmental Body in connection with antitrust laws or related matters. The Company Parties and the Buyer Parties shall coordinate and cooperate fully with each other in exchanging party such necessary information and providing such reasonable assistance as the such other party may reasonably request in connection with the foregoing. Subject to applicable Law relating to the exchange of information, Parent and the Company shall each have the right to review in advance, and to the extent practicable each shall consult with the other in connection with, all of the information relating to Parent or the Company, as the case may be, and any of their respective Subsidiaries, that appears in any filing made with, or written materials submitted to, any third party and/or any Governmental Entity in connection with the Offer, the Merger and the other transactions contemplated hereby. In exercising the foregoing rights, each of Parent and in seeking the earliest possible termination Company shall act reasonably and as promptly as practicable. Subject to applicable Law and the instructions of any applicable waiting periods or suspension effects imposed by any Legal Requirements. Each of the Company Parties and the Buyer Parties shall (i) give the other parties hereto prompt notice of the commencement or threat of commencement of any Legal Proceeding by or before any Governmental Body with respect to this Agreement or any of the Merger Transactions, (ii) keep the other party informed as to the status of any such Legal Proceeding or threat and (iii) promptly inform the other parties hereto of any communication concerning antitrust laws to or from any Governmental Body regarding this Agreement or any of the Merger Transactions. Except as may be prohibited by any Governmental Body or by any Legal RequirementEntity, the Company and Parent will consult and cooperate with one another, and will consider in good faith shall keep each other reasonably apprised of the views status of one another, in connection with any analysis, appearance, presentation, memorandum, brief, argument, opinion or proposal made or submitted in connection with any Legal Proceeding under or matters relating to the HSR Act completion of the transactions contemplated hereby, including promptly furnishing the other with copies of notices or other written communications received by the Company or Parent, as the case may be, or any other antitrust law. Subject of their respective Subsidiaries, from any Governmental Entity and/or third party with respect to such transactions, and, to the foregoingextent practicable under the circumstances, Parent shall be principally responsible for provide the other party and its counsel with the opportunity to participate in control of the process of dealing any meeting with any Governmental Body concerning the effect Entity in respect of applicable antitrust laws on this Agreement and any of the Merger Transactions. In additionfiling, except as may be prohibited by any Governmental Body investigation or by any Legal Requirement, other inquiry in connection with any Legal Proceeding under or relating to the HSR Act or any other foreign, federal or state antitrust law or fair trade law or any other similar Legal Proceeding, each of the Company and Parent will permit authorized Representatives of the other to be present at each meeting or conference relating to any such Legal Proceeding and to have access to and be consulted in connection with any document, opinion or proposal made or submitted to any Governmental Body in connection with any such Legal Proceedingtherewith.
(c) Notwithstanding anything to the contrary contained in this Agreement, Parent shall not have any obligation under this Agreement: (i) to dispose, transfer or hold separate, or cause any of its Subsidiaries to dispose, transfer or hold separate any assets or operations, or to commit or to cause any of the Acquired Companies to dispose of any assets, (ii) to discontinue or cause any of its Subsidiaries to discontinue offering any product or service, or to commit to cause any of the Acquired Companies to discontinue offering any product or service or (iii) to make or cause any of its Subsidiaries to make any commitment (to any Governmental Body or otherwise) regarding its future operations or the future operations of any of the Acquired Companies.
(d) The Company shall use its reasonable best efforts to obtain the Consents and waivers required to satisfy Parent’s and MergerCo’s conditions to Closing set forth in this Agreement.
Appears in 1 contract
Regulatory Approvals; Consents. (a) Subject to Section 7.1(b) and otherwise in accordance with the express provisions of the Agreement6.6(c), the Buyer Parties Parent, Acquisition and the Company Parties shall use their respective commercially reasonable best efforts to take, or cause to be taken, all actions necessary, proper or advisable necessary to cause the conditions set forth contained in Articles VIII, IX and X Article VII hereof to be satisfied in a timely manner and to consummate the Merger and make effective the Merger Transactions as promptly as practicable after expiration of the Due Diligence Periodtransactions contemplated by this Agreement. Without limiting the generality of the foregoing, from expiration of the Due Diligence Period until the Closing Datebut subject to Section 6.6(c), the Buyer Parties Parent and the Company Parties (i) shall make all filings (if any) and give all notices (if any) required to be made and given by such party hereto in connection with the Merger Transactions and the transactions contemplated by this Agreement and shall submit promptly any additional information requested in connection with such filings and notices, (ii) shall use their respective commercially reasonable best efforts to obtain or cause to be obtained each Consent consent (if any) required to be obtained (pursuant to any applicable Legal Requirements Law or Contract, or otherwise) by such party hereto in connection with the execution and delivery Merger or any of the transactions contemplated by this Agreement and the consummation of the Merger Transactions and (iii) shall use their respective commercially reasonable best efforts to oppose or lift any restraint, injunction or other legal bar to the Merger TransactionsMerger. Each of the Company and Parent shall promptly deliver to the other a copy of each such filing made, each such notice given and each such Consent obtained during from and after the Pre-Closing Perioddate hereof through the Effective Time.
(b) Without limiting the generality of Section 7.1(a6.6(a), the Company and Parent shall, promptly after the expiration date of the Due Diligence Periodthis Agreement, prepare and file the notifications, if any, notifications required under the HSR Act and any applicable foreign antitrust laws or regulations Laws in connection with any of the Merger TransactionsMerger. The Company Parties and the Buyer Parties Parent shall respond as promptly as practicable to any inquiries or requests received from any Governmental Body Authority in connection with antitrust laws Laws or related matters. The Company Parties and the Buyer Parties shall coordinate and cooperate fully with each other in exchanging such information and providing such assistance as the other may reasonably request in connection with the foregoing and in seeking the earliest possible termination of any applicable waiting periods or suspension effects imposed by any Legal Requirements. Each of the Company Parties and the Buyer Parties Parent shall (i) give the other parties hereto party prompt notice of the commencement or threat of commencement of any Legal Proceeding by or before any Governmental Body Authority with respect to this Agreement or any of the Merger Transactionstransactions contemplated hereby, including the Merger, (ii) keep the other party informed as to the status of any such Legal Proceeding or threat and (iii) promptly inform the other parties hereto party of any communication concerning antitrust laws Laws to or from any Governmental Body Authority regarding this Agreement or any of the Merger TransactionsMerger. Except as may be prohibited by any Governmental Body Authority or by any Legal Requirementapplicable Law, the Company and Parent will consult and cooperate with one another, and will consider in good faith the views of one another, in connection with any analysis, appearance, presentation, memorandum, brief, argument, opinion or proposal made or submitted in connection with any Legal Proceeding under or relating to the HSR Act or any other antitrust lawLaw. Subject to the foregoing, Parent shall be principally responsible for and in control of the process of dealing with any Governmental Body concerning the effect of applicable antitrust laws on this Agreement and any of the Merger Transactions. In addition, except Except as may be prohibited by any Governmental Body Authority or by any Legal Requirementapplicable Law, in connection with any Legal Proceeding under or relating to the HSR Act or any other foreign, federal or state antitrust law Law or fair trade law Law or any other similar Legal Proceeding, each of the Company and Parent will permit authorized Representatives of the other to be present at each meeting or conference relating to any such Legal Proceeding and to have access to and be consulted in connection with any document, opinion or proposal made or submitted to any Governmental Body Authority in connection with any such Legal Proceeding.
(c) Notwithstanding anything to the contrary contained in this Agreement, Parent shall not have any obligation under this Agreement: (i) to dispose, transfer or hold separate, or cause any of its Subsidiaries to dispose, transfer or hold separate any assets or operations, or to commit or to cause any of the Acquired Companies to dispose of any assets, ; (ii) to discontinue or cause any of its Subsidiaries to discontinue offering any product or service, or to commit to cause any of the Acquired Companies to discontinue offering any product or service service; or (iii) to make or cause any of its Subsidiaries to make any commitment (to any Governmental Body Authority or otherwise) regarding its future operations or the future operations of any of the Acquired Companies.
(d) The Parent and the Company shall use its reasonable best efforts to obtain the Consents and waivers furnish all information required to satisfy Parent’s be included in any application or other filing to be made pursuant to the rules and MergerCo’s conditions regulations of any Governmental Authority in connection with the transactions contemplated by this Agreement. Parent and the Company shall have the right to Closing set forth review in advance, and to the extent reasonably practicable each will consult the other on, all the information relating to the other and each of their respective Subsidiaries, that appears in any filing made with, or written materials submitted to, any Third Party or any Governmental Authority in connection with the Merger and the other transactions contemplated by this Agreement.
Appears in 1 contract
Samples: Merger Agreement (Brookstone Inc)
Regulatory Approvals; Consents. (a) Subject to Section 7.1(b) the terms and otherwise in accordance with the express provisions conditions of the this Agreement, the Buyer Parties and the Company Parties each Party shall use their respective its reasonable best efforts, and shall use reasonable best efforts to cooperate with the other Parties, to take, or cause to be taken, all actions and to do, or cause to be done, all things reasonably necessary, proper or advisable under applicable Laws and regulations to consummate the Transactions (including the receipt of all applicable Consents of Governmental Authorities) and to comply as promptly as practicable with all requirements of Governmental Authorities applicable to the Transactions.
(b) In furtherance and not in limitation of Section 5.9(a), to the extent required under any Laws that are designed to prohibit, restrict or regulate actions having the purpose or effect of monopolization or restraint of trade (“Antitrust Laws”), each Party hereto agrees to make any required filing or application under Antitrust Laws, as applicable, with each of the Purchaser and the Company bearing fifty percent (50%) of any and all costs and expenses thereof, and each Party agrees to supply as promptly as reasonably practicable any additional information and documentary material that may be reasonably requested pursuant to Antitrust Laws and to take all other actions reasonably necessary, proper or advisable to cause the conditions set forth in Articles VIII, IX and X to be satisfied and to consummate and make effective the Merger Transactions as promptly as practicable after expiration or termination of the Due Diligence Period. Without limiting the generality applicable waiting periods under Antitrust Laws as soon as practicable, including by requesting early termination of the foregoingwaiting period provided for under the Antitrust Laws. Each Party shall, from expiration of in connection with its efforts to obtain all requisite approvals and authorizations for the Due Diligence Period until the Closing DateTransactions under any Antitrust Law, the Buyer Parties and the Company Parties use its commercially reasonable efforts to: (i) shall make cooperate in all filings (if any) and give all notices (if any) required to be made and given by such party hereto in connection respects with the Merger Transactions and shall submit promptly any additional information requested in connection with such filings and notices, (ii) shall use their respective reasonable best efforts to obtain each other Party or cause to be obtained each Consent (if any) required to be obtained (pursuant to any applicable Legal Requirements or Contract, or otherwise) by such party hereto in connection with the execution and delivery of this Agreement and the consummation of the Merger Transactions and (iii) shall use their respective reasonable best efforts to oppose or lift any restraint, injunction or other legal bar to the Merger Transactions. Each of the Company and Parent shall promptly deliver to the other a copy of each such filing made, each such notice given and each such Consent obtained during the Pre-Closing Period.
(b) Without limiting the generality of Section 7.1(a), the Company and Parent shall, promptly after the expiration of the Due Diligence Period, prepare and file the notifications, if any, required under the HSR Act and any applicable foreign antitrust laws or regulations its Affiliates in connection with any of the Merger Transactions. The Company Parties filing or submission and the Buyer Parties shall respond as promptly as practicable to any inquiries or requests received from any Governmental Body in connection with antitrust laws any investigation or related matters. The Company Parties and the Buyer Parties shall coordinate and cooperate fully with each other in exchanging such information and providing such assistance as the other may reasonably request in connection with the foregoing and in seeking the earliest possible termination of inquiry, including any applicable waiting periods or suspension effects imposed proceeding initiated by any Legal Requirements. Each of the Company Parties and the Buyer Parties shall (i) give the other parties hereto prompt notice of the commencement or threat of commencement of any Legal Proceeding by or before any Governmental Body with respect to this Agreement or any of the Merger Transactions, a private Person; (ii) keep the other party Parties reasonably informed as to the status of any communication received by such Legal Proceeding Party or threat its Representatives from, or given by such Party or its Representatives to, any Governmental Authority and of any communication received or given in connection with any proceeding by a private Person, in each case regarding any of the Transactions; (iii) promptly inform permit a Representative of the other parties hereto Parties and their respective outside counsel to review any communication given by it to, and consult with each other in advance of any communication concerning antitrust laws to meeting or from conference with, any Governmental Body regarding this Agreement or any of the Merger Transactions. Except as may be prohibited by any Governmental Body or by any Legal Requirement, the Company and Parent will consult and cooperate with one another, and will consider in good faith the views of one anotherAuthority or, in connection with any analysisproceeding by a private Person, appearance, presentation, memorandum, brief, argument, opinion or proposal made or submitted in connection with any Legal Proceeding under or relating other Person, and to the HSR Act extent permitted by such Governmental Authority or any other antitrust law. Subject to the foregoingPerson, Parent shall be principally responsible for and in control of the process of dealing with any Governmental Body concerning the effect of applicable antitrust laws on this Agreement and any of the Merger Transactions. In addition, except as may be prohibited by any Governmental Body give a Representative or by any Legal Requirement, in connection with any Legal Proceeding under or relating to the HSR Act or any other foreign, federal or state antitrust law or fair trade law or any other similar Legal Proceeding, each of the Company and Parent will permit authorized Representatives of the other Parties the opportunity to be present at each meeting attend and participate in such meetings and conferences; (iv) in the event a Party’s Representative is prohibited from participating in or conference relating attending any meetings or conferences, the other Parties shall keep such Party promptly and reasonably apprised with respect thereto; and (v) use commercially reasonable efforts to cooperate in the filing of any such Legal Proceeding and memoranda, white papers, filings, correspondence or other written communications explaining or defending the Transactions, articulating any regulatory or competitive argument, and/or responding to have access to and be consulted in connection with any document, opinion requests or proposal objections made or submitted to by any Governmental Body in connection with any such Legal ProceedingAuthority.
(c) As soon as reasonably practicable following the date of this Agreement, the Parties shall reasonably cooperate with each other and use (and shall cause their respective Affiliates to use) their respective commercially reasonable efforts to prepare and file with Governmental Authorities requests for approval of the Transactions and shall use all commercially reasonable efforts to have such Governmental Authorities approve the Transactions. Each Party shall give prompt written notice to the other Parties if such Party or any of its Representatives receives any notice from such Governmental Authorities in connection with the Transactions, and shall promptly furnish the other Parties with a copy of such Governmental Authority notice. If any Governmental Authority requires that a hearing or meeting be held in connection with its approval of the Transactions, whether prior to the Closing or after the Closing, each Party shall arrange for Representatives of such Party to be present for such hearing or meeting. If any objections are asserted with respect to the Transactions under any applicable Law or if any Action is instituted (or threatened to be instituted) by any applicable Governmental Authority or any private Person challenging any of the Transactions as violative of any applicable Law or which would otherwise prevent, materially impede or materially delay the consummation of the Transactions, the Parties shall use their commercially reasonable efforts to resolve any such objections or Actions so as to timely permit consummation of the Transactions and the Ancillary Documents, including in order to resolve such objections or Actions which, in any case if not resolved, could reasonably be expected to prevent, materially impede or materially delay the consummation of the Transactions. In the event any Action is instituted (or threatened to be instituted) by a Governmental Authority or private Person challenging the Transactions, the Parties shall, and shall cause their respective Representatives to, reasonably cooperate with each other and use their respective commercially reasonable efforts to contest and resist any such Action and to have vacated, lifted, reversed or overturned any Order, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents or restricts consummation of the Transactions.
(d) Prior to the Closing, each Party shall use its commercially reasonable efforts to obtain any Consents of Governmental Authorities or other third Persons as may be necessary for the consummation by such Party or its Affiliates of the Transactions or required as a result of the execution or performance of, or consummation of the Transactions by such Party or its Affiliates, and the other Parties shall provide reasonable cooperation in connection with such efforts.
(e) Notwithstanding anything to the contrary contained in this AgreementSection 5.9, Parent in no event shall not have a Party be required to take any obligation under this Agreement: action that such party has been advised by legal counsel would (i) violate its obligations of confidentiality under applicable Law or any Contract (it being acknowledged and agreed that the Parties shall use commercially reasonable efforts to dispose, transfer allow such action to be taken pursuant to this Section 5.9 in a manner that would not result in such violation) or hold separate, or cause any of its Subsidiaries to dispose, transfer or hold separate any assets or operations, or to commit or to cause any of the Acquired Companies to dispose of any assets, (ii) to discontinue or cause jeopardize any of its Subsidiaries to discontinue offering any attorney-client, work product or service, other similar privilege or to commit to cause any of the Acquired Companies to discontinue offering any product or service or (iii) to make or cause any of its Subsidiaries to make any commitment (to any Governmental Body or otherwise) regarding its future operations or the future operations of any of the Acquired Companiesprotection.
(d) The Company shall use its reasonable best efforts to obtain the Consents and waivers required to satisfy Parent’s and MergerCo’s conditions to Closing set forth in this Agreement.
Appears in 1 contract
