Regulatory Filings. (a) Each of Parent and Acquisition Sub (and their respective Affiliates, if applicable), on the one hand, and the Company, on the other hand, shall (x) file with the FTC and the Antitrust Division of the DOJ a Notification and Report Form relating to this Agreement and the transactions contemplated hereby as required by the HSR Act as soon as reasonably practicable from the date following execution and delivery of this Agreement but in no event later than ten (10) Business Days following the execution and delivery of this Agreement, and (y) file comparable pre-merger or post-merger notification filings, forms and submissions with any foreign Governmental Authority that is required by any other Antitrust Laws as soon as reasonably practicable from the date following execution and delivery of this Agreement but in no event later than ten (10) Business Days following the execution and delivery of this Agreement. Each of Parent and the Company shall (i) cooperate and coordinate with the other in the making of such filings, (ii) supply the other with any information that may be required in order to make such filings, (iii) supply any additional information that reasonably may be required or requested by the FTC, the DOJ or the Governmental Authorities of any other jurisdiction in which any such filing is made under any other Antitrust Laws, and (iv) use reasonable best efforts to take all action necessary to cause the expiration or termination of the applicable waiting periods under the HSR Act or other Antitrust Laws as soon as practicable, and to obtain any required consents under any other Antitrust Laws applicable to the Offer and/or the Merger as soon as practicable, and to avoid any impediment to the consummation of the Offer or the Merger under any Antitrust Laws, including using reasonable best efforts to take all such action as reasonably may be necessary to resolve such objections, if any, as the FTC, the DOJ, or any other Governmental Authority or Person may assert under any applicable Antitrust Laws with respect to the Offer and/or the Merger. (b) Each of Parent and Acquisition Sub (and their respective Affiliates, if applicable), on the one hand, and the Company, on the other hand, shall promptly inform the other of any communication from any Governmental Authority regarding any of the transactions contemplated by this Agreement in connection with any filings or investigations with, by or before any Governmental Authority relating to this Agreement or the transactions contemplated hereby, including any proceedings initiated by a private party. If any party hereto or Affiliate thereof shall receive a request for additional information or documentary material from any Governmental Authority with respect to the transactions contemplated by this Agreement pursuant to the HSR or any other Antitrust Laws with respect to which any such filings have been made, then such party shall use its reasonable best efforts to make, or cause to be made, as soon as reasonably practicable and after consultation with the other party, an appropriate response in compliance with such request. In connection with and without limiting the foregoing, to the extent reasonably practicable and unless prohibited by applicable Law or by the applicable Governmental Authority, the parties hereto agree to (i) give each other reasonable advance notice of all meetings with any Governmental Authority relating to the Offer or the Merger, (ii) give each other an opportunity to participate in each of such meetings, (iii) keep the other party reasonably apprised with respect to any oral communications with any Governmental Authority regarding the Offer or the Merger, (iv) cooperate in the filing of any analyses, presentations, memoranda, briefs, arguments, opinions or other written communications explaining or defending the Offer and the Merger, articulating any regulatory or competitive argument and/or responding to requests or objections made by any Governmental Authority, (v) provide each other with a reasonable advance opportunity to review and comment upon, and consider in good faith the views of the other with respect to, all written communications (including any analyses, presentations, memoranda, briefs, arguments and opinions) with a Governmental Authority regarding the Offer and the Merger, (vi) provide each other (or counsel of each party, as appropriate) with copies of all written communications to or from any Governmental Authority relating to the Offer or the Merger, and (vii) cooperate and provide each other with a reasonable opportunity to participate in, and consider in good faith the views of the other with respect to, all material deliberations with respect to all efforts to satisfy the conditions set forth in clauses (A) and (C)(1) of Annex A and Section 9.1(c). Any such disclosures, rights to participate or provisions of information by one party to the other may be made on a counsel-only basis to the extent required under applicable Law or as appropriate to protect confidential business information or the attorney client privilege or attorney work product. (c) Each of Parent, Acquisition Sub and the Company shall cooperate with one another in good faith to (i) promptly determine whether any filings not contemplated by Section 8.2(a) are required to be or should be made, and whether any other consents, approvals, permits or authorizations not contemplated by Section 8.2(a) are required to be or should be obtained, from any Governmental Authority under any other applicable Law in connection with the transactions contemplated hereby, and (ii) promptly make any filings, furnish information required in connection therewith and seek to obtain timely any such consents, permits, authorizations, approvals or waivers that the parties determine are required to be or should be made or obtained in connection with the transactions contemplated hereby. (d) Notwithstanding anything to the contrary in this Agreement, in connection with any filing or submission required or action to be taken by either Parent or the Company to consummate the Offer and the Merger, in no event shall Parent or any of its Subsidiaries or Affiliates be obligated to propose or agree to accept any undertaking or condition, to enter into any consent decree, to make any divestiture or accept any operational restriction, or take or commit to take any action (i) the effectiveness or consummation of which is not conditional on the consummation of the Offer and the Merger or (ii) that individually or in the aggregate (x) is or would reasonably be expected to be materially adverse (with materiality, for purposes of this provision, being measured in relation to the size of the Company and its Subsidiaries taken as a whole) to (A) the Company and its Subsidiaries, taken as a whole, or Parent and its Subsidiaries, taken as a whole, either before or after giving effect to the Offer or the Merger, or (B) Parent’s ownership or operation of any material portion of the business or assets of the Company and its Subsidiaries, taken as a whole, or (y) would reasonably be expected to deny Parent the material benefit of the bargains contemplated by the transactions contemplated by this Agreement. The Company shall agree, if requested by Parent in writing, to commit to take any of the forgoing actions with respect to the assets or business of the Company in furtherance of this Section 8.2; provided, however, that any such action may be conditioned upon the consummation of the Merger and other Transactions contemplated by this Agreement.
Appears in 5 contracts
Sources: Merger Agreement (3PAR Inc.), Merger Agreement (Hewlett Packard Co), Merger Agreement (Hewlett Packard Co)
Regulatory Filings. (a) Each of Parent and Acquisition Sub (and their respective Affiliates, if applicable), on Without limiting the one hand, and the Company, on the other hand, shall (x) file with the FTC and the Antitrust Division generality of the DOJ a Notification provisions of Section 7.2 and Report Form relating to this Agreement and the transactions contemplated hereby as extent required by the HSR Act applicable Laws, as soon promptly as reasonably practicable from the date following execution and delivery of this Agreement but in no event later than ten (10) Business Days following the execution and delivery of this Agreement, each of Parent and (y) file comparable pre-merger the Company shall make or post-merger notification submit all applications, notices, petitions and filings, forms file or submit all documentation, and submissions use their respective reasonable best efforts to obtain as promptly as practicable all clearances, permits, consents, approvals and authorizations of all Governmental Authorities, in each case which are necessary or advisable to consummate the transactions contemplated by this Agreement as promptly as practicable and to comply with the terms and conditions of all such clearances, permits, consents, approvals and authorizations of all Governmental Authorities. The Company and Parent shall have the right to review in advance, and to the extent practicable each will consult the other on, in each case subject to applicable Laws and Orders, all the documentation and information relating to either party and any foreign of its respective Subsidiaries, that appears in any application, notice, petition, filing and documentation made with, or written materials submitted to, any third party or any Governmental Authority that is required in connection with the transactions contemplated by any other Antitrust Laws as soon as reasonably practicable from the date following execution and delivery of this Agreement but in no event later than ten (10) Business Days following the execution and delivery of this Agreement. In exercising the foregoing right, each of the parties hereto shall act reasonably and as promptly as practicable. Parent and the Company shall promptly advise each other upon receiving any communication from any Governmental Authority whose clearance, consent or approval is required to consummate the transactions contemplated by this Agreement which causes such party to believe that there is a reasonable likelihood that any clearance, consent or approval required in order to consummate the transactions contemplated by this Agreement will not be obtained or that the receipt of any such clearance, consent or approval will be materially delayed or conditioned.
(b) Each of Parent and the Company shall promptly (i) cooperate and coordinate with the other in the making of such filingsand submitting the applications, notices, petitions and filings contemplated by this Section 7.3, (ii) subject to applicable Laws and Orders, supply the other with any information that may be required in order to make effectuate such applications, notices, petitions and filings, and (iii) supply any additional information that reasonably may be required or reasonably requested by the FTC, the DOJ or the Governmental Authorities of any other jurisdiction in which any such filing is made under any other Antitrust Laws, and (iv) use reasonable best efforts to take all action necessary to cause the expiration or termination of the applicable waiting periods under the HSR Act or other Antitrust Laws as soon as practicable, and to obtain any required consents under any other Antitrust Laws applicable to the Offer and/or the Merger as soon as practicable, and to avoid any impediment to the consummation of the Offer or the Merger under any Antitrust Laws, including using reasonable best efforts to take all such action as reasonably may be necessary to resolve such objections, if any, as the FTC, the DOJ, or any other Governmental Authority or Person may assert under any in connection with such applications, notices, petitions and filings. Subject to applicable Antitrust Laws with respect to the Offer and/or the Merger.
and Orders, each party hereto shall (bA) Each of Parent and Acquisition Sub (and their respective Affiliates, if applicable), on the one hand, and the Company, on the other hand, shall promptly inform the other party hereto of any communication from any Governmental Authority regarding any of the transactions contemplated by this Agreement Agreement, (B) permit the other party hereto the opportunity to review in advance all the information relating to Parent and its Subsidiaries or the Company and its Subsidiaries, as the case may be, that appears in any application, notice, petition or filing made with, or written materials submitted to, any third party and/or any Governmental Authority in connection with any filings or investigations with, by or before any Governmental Authority relating to this Agreement or the transactions contemplated hereby, including (C) not participate in any proceedings initiated substantive meeting or discussion with any Governmental Authority in respect of any filing, investigation, or inquiry concerning the transactions contemplated hereby unless and until such party has consulted with the other party, and, to the extent permitted by a private partysuch Governmental Authority, gives the other party the opportunity to attend such meeting or discussion, and (D) furnish the other party with copies of all correspondences, filings, and written communications between them and their Subsidiaries and representatives, on the one hand, and any Governmental Authority or its respective staff, on the other hand, with respect to the transactions contemplated hereby. Each party hereto shall promptly inform the other party or parties hereto, as the case may be, of any communication from any Governmental Authority regarding any of the transactions contemplated by this Agreement. If any party hereto or Affiliate thereof shall receive receives a request for additional information or documentary material from any such Governmental Authority with respect to the transactions contemplated by this Agreement pursuant to the HSR or any other Antitrust Laws with respect to which any such filings have been madeAgreement, then such party shall use its reasonable best efforts to make, or cause to be made, as soon as reasonably practicable and after consultation with the other party, an appropriate response in compliance with such request. In connection with and without limiting the foregoing, to the extent reasonably practicable and unless prohibited by applicable Law or by the applicable Governmental Authority, the parties hereto agree to (i) give each other reasonable advance notice of all meetings with any Governmental Authority relating to the Offer or the Merger, (ii) give each other an opportunity to participate in each of such meetings, (iii) keep the other party reasonably apprised with respect to any oral communications with any Governmental Authority regarding the Offer or the Merger, (iv) cooperate in the filing of any analyses, presentations, memoranda, briefs, arguments, opinions or other written communications explaining or defending the Offer and the Merger, articulating any regulatory or competitive argument and/or responding to requests or objections made by any Governmental Authority, (v) provide each other with a reasonable advance opportunity to review and comment upon, and consider in good faith the views of the other with respect to, all written communications (including any analyses, presentations, memoranda, briefs, arguments and opinions) with a Governmental Authority regarding the Offer and the Merger, (vi) provide each other (or counsel of each party, as appropriate) with copies of all written communications to or from any Governmental Authority relating to the Offer or the Merger, and (vii) cooperate and provide each other with a reasonable opportunity to participate in, and consider in good faith the views of the other with respect to, all material deliberations with respect to all efforts to satisfy the conditions set forth in clauses (A) and (C)(1) of Annex A and Section 9.1(c). Any such disclosures, rights to participate or provisions of information by one party to the other may be made on a counsel-only basis to the extent required under applicable Law or as appropriate to protect confidential business information or the attorney client privilege or attorney work product.
(c) Each of ParentNotwithstanding anything to the contrary set forth in this Agreement, Acquisition Sub and nothing in this Section 7.3 or elsewhere in this Agreement shall be deemed to require Parent or the Company shall cooperate with one another in good faith or any Subsidiary thereof to (i) promptly determine whether litigate or otherwise contest any filings not contemplated by Section 8.2(a) are required to administrative or judicial action or proceeding that may be or should be made, and whether any other consents, approvals, permits or authorizations not contemplated by Section 8.2(a) are required to be or should be obtained, from any Governmental Authority under any other applicable Law brought in connection with the transactions contemplated hereby, and by this Agreement or (ii) promptly make agree to any filings, furnish information required in connection therewith and seek to obtain timely any such consents, permits, authorizations, approvals or waivers that the parties determine are required to be or should be made or obtained in connection with the transactions contemplated hereby.
(d) Notwithstanding anything to the contrary in this Agreement, in connection with any filing or submission required or action to be taken divestiture by either Parent or the Company to consummate the Offer and the Merger, in no event shall Parent itself or any of its Subsidiaries Affiliates of shares of capital stock or Affiliates be obligated to propose of any business, assets or agree to accept any undertaking or condition, to enter into any consent decree, to make any divestiture or accept any operational restrictionproperty, or take or commit to take the imposition of any action (i) the effectiveness or consummation of which is not conditional limitation on the consummation of the Offer and the Merger or (ii) that individually or in the aggregate (x) is or would reasonably be expected to be materially adverse (with materiality, for purposes of this provision, being measured in relation to the size of the Company and its Subsidiaries taken as a whole) to (A) the Company and its Subsidiaries, taken as a whole, or Parent and its Subsidiaries, taken as a whole, either before or after giving effect to the Offer or the Merger, or (B) Parent’s ownership or operation ability of any material portion of the them to conduct their business or assets to own or exercise control of the Company such assets, properties and its Subsidiaries, taken as a whole, or (y) would reasonably be expected to deny Parent the material benefit of the bargains contemplated by the transactions contemplated by this Agreement. The Company shall agree, if requested by Parent in writing, to commit to take any of the forgoing actions with respect to the assets or business of the Company in furtherance of this Section 8.2; provided, however, that any such action may be conditioned upon the consummation of the Merger and other Transactions contemplated by this Agreementstock.
Appears in 4 contracts
Sources: Merger Agreement (Emc Corp), Merger Agreement (Data Domain, Inc.), Merger Agreement (Emc Corp)
Regulatory Filings. (a) Each of Parent Parent, Merger Sub and Acquisition Sub the Company shall coordinate and cooperate with one another and shall each use reasonable efforts to (and their respective AffiliatesA) take, if applicable)or cause to be taken, on the one handall appropriate actions, and do or cause to be done, all things necessary, proper or advisable under applicable Legal Requirements or otherwise to consummate the Company, on the other hand, shall (x) file with the FTC and the Antitrust Division of the DOJ a Notification and Report Form relating to this Agreement Merger and the transactions contemplated hereby as promptly as practicable, (B) obtain from any Governmental Entities any consents, licenses, permits, waivers, approvals, authorizations or orders required to be obtained or made to avoid any action or proceeding by any Governmental Entity (including without limitation, those in connection with the HSR Act as soon as reasonably practicable from Act) in connection with the date following authorization, execution and delivery of this Agreement but in no event later than ten (10) Business Days following the execution and delivery of this Agreement, and (y) file comparable pre-merger or post-merger notification filings, forms and submissions with any foreign Governmental Authority that is required by any other Antitrust Laws as soon as reasonably practicable from the date following execution and delivery of this Agreement but in no event later than ten (10) Business Days following the execution and delivery of this Agreement. Each of Parent and the Company shall (i) cooperate and coordinate with the other in the making of such filings, (ii) supply the other with any information that may be required in order to make such filings, (iii) supply any additional information that reasonably may be required or requested by the FTC, the DOJ or the Governmental Authorities of any other jurisdiction in which any such filing is made under any other Antitrust Laws, and (iv) use reasonable best efforts to take all action necessary to cause the expiration or termination of the applicable waiting periods under the HSR Act or other Antitrust Laws as soon as practicable, and to obtain any required consents under any other Antitrust Laws applicable to the Offer and/or the Merger as soon as practicable, and to avoid any impediment to the consummation of the Offer or the Merger under any Antitrust Laws, including using reasonable best efforts to take all such action as reasonably may be necessary to resolve such objections, if any, as the FTC, the DOJ, or any other Governmental Authority or Person may assert under any applicable Antitrust Laws with respect to the Offer and/or the Merger.
(b) Each of Parent and Acquisition Sub (and their respective Affiliates, if applicable), on the one hand, and the Company, on the other hand, shall promptly inform the other of any communication from any Governmental Authority regarding any of the transactions contemplated by this Agreement in connection with any filings or investigations with, by or before any Governmental Authority relating to this Agreement or the transactions contemplated hereby, including any proceedings initiated by a private party. If any party hereto or Affiliate thereof shall receive a request for additional information or documentary material from any Governmental Authority with respect to the transactions contemplated by this Agreement pursuant to the HSR or any other Antitrust Laws with respect to which any such filings have been made, then such party shall use its reasonable best efforts to (C) make, or cause to be made, as soon as reasonably practicable the applications and after consultation with the other party, an appropriate response in compliance with such request. In connection with and without limiting the foregoing, to the extent reasonably practicable and unless prohibited by applicable Law or by the applicable Governmental Authority, the parties hereto agree to (i) give each other reasonable advance notice of all meetings with any Governmental Authority relating to the Offer or the Merger, (ii) give each other an opportunity to participate in each of such meetings, (iii) keep the other party reasonably apprised with respect to any oral communications with any Governmental Authority regarding the Offer or the Merger, (iv) cooperate in the filing of any analyses, presentations, memoranda, briefs, arguments, opinions or other written communications explaining or defending the Offer and the Merger, articulating any regulatory or competitive argument and/or responding to requests or objections made by any Governmental Authority, (v) provide each other with a reasonable advance opportunity to review and comment upon, and consider in good faith the views of the other with respect to, all written communications (including any analyses, presentations, memoranda, briefs, arguments and opinions) with a Governmental Authority regarding the Offer and the Merger, (vi) provide each other (or counsel of each party, as appropriate) with copies of all written communications to or from any Governmental Authority relating to the Offer or the Merger, and (vii) cooperate and provide each other with a reasonable opportunity to participate in, and consider in good faith the views of the other with respect to, all material deliberations with respect to all efforts to satisfy the conditions set forth in clauses (A) and (C)(1) of Annex A and Section 9.1(c). Any such disclosures, rights to participate or provisions of information by one party to the other may be made on a counsel-only basis to the extent required under applicable Law or as appropriate to protect confidential business information or the attorney client privilege or attorney work product.
(c) Each of Parent, Acquisition Sub and the Company shall cooperate with one another in good faith to (i) promptly determine whether any filings not contemplated by Section 8.2(a) are required to be made under the HSR Act or should be made, and whether any other consents, approvals, permits or authorizations not contemplated by Section 8.2(a) are required to be or should be obtained, from any Governmental Authority under any other applicable Law Legal Requirements in connection with the transactions contemplated herebyauthorization, execution and (ii) promptly make any filings, furnish information required in connection therewith and seek to obtain timely any such consents, permits, authorizations, approvals or waivers that the parties determine are required to be or should be made or obtained in connection with the transactions contemplated hereby.
(d) Notwithstanding anything to the contrary in this Agreement, in connection with any filing or submission required or action to be taken by either Parent or the Company to consummate the Offer and the Merger, in no event shall Parent or any of its Subsidiaries or Affiliates be obligated to propose or agree to accept any undertaking or condition, to enter into any consent decree, to make any divestiture or accept any operational restriction, or take or commit to take any action (i) the effectiveness or consummation of which is not conditional on the consummation of the Offer and the Merger or (ii) that individually or in the aggregate (x) is or would reasonably be expected to be materially adverse (with materiality, for purposes delivery of this provision, being measured in relation to the size of the Company Agreement and its Subsidiaries taken as a whole) to (A) the Company and its Subsidiaries, taken as a whole, or Parent and its Subsidiaries, taken as a whole, either before or after giving effect to the Offer or the Merger, or (B) Parent’s ownership or operation of any material portion of the business or assets of the Company and its Subsidiaries, taken as a whole, or (y) would reasonably be expected to deny Parent the material benefit of the bargains contemplated by the transactions contemplated by this Agreement. The Company shall agree, if requested by Parent in writing, to commit to take any of the forgoing actions with respect to the assets or business of the Company in furtherance of this Section 8.2; provided, however, that any such action may be conditioned upon the consummation of the Merger and the transactions contemplated hereby (including without limitation, under the Exchange Act and any other Transactions applicable federal or state Legal Requirements), and to pay any fees due of it in connection with such applications or filings, as promptly as is reasonably practicable, and in any event within ten (10) Business Days after the date hereof, and (D) comply at the earliest practicable date with any request under the HSR Act and any such other Legal Requirements for additional information, documents or other materials received by Parent or the Company or any of their respective Subsidiaries from the Federal Trade Commission or the Department of Justice or any other Governmental Entity in connection with such applications or filings or the Merger and the transactions contemplated by hereby. Each of Parent and the Company will cause all documents that it is responsible for filing with any Governmental Entity under this AgreementSection 5.6(a) to comply in all material respects with all applicable Legal Requirements.
Appears in 4 contracts
Sources: Agreement and Plan of Reorganization (Visual Sciences, Inc.), Agreement and Plan of Reorganization (Omniture, Inc.), Agreement and Plan of Reorganization (Omniture, Inc.)
Regulatory Filings. (a) Each of Parent and Acquisition Sub (and their respective Affiliates, if applicable), on the one hand, and the Company, on the other hand, shall (x) file with the FTC and the Antitrust Division of the DOJ a Notification and Report Form relating to this Agreement and the transactions contemplated hereby As promptly as required by the HSR Act as soon as reasonably practicable from the date following execution and delivery of this Agreement but in no event later than ten (10) Business Days following after the execution and delivery of this Agreement, each of Parent and the Company shall cooperate with each other and use its reasonable best efforts to take, or cause to be taken, all actions, and to do, or cause to be done, all things necessary, appropriate or desirable to consummate the Transactions, including (yi) file comparable pre-merger or post-merger notification filings, forms and submissions with any foreign Governmental Authority that is required by any other Antitrust Laws as soon as reasonably practicable from the date following execution and delivery of this Agreement but in no event later than within ten (10) Business Days following after the execution and delivery date of this AgreementAgreement (unless a later date is agreed to by the parties), making or causing to be made all filings and submissions required to be made by Parent, the Company or any of their Affiliates under the HSR Act, and (ii) no later than twenty (20) Business Days after the date of this Agreement (and in any event, prior to the expiration of any deadlines under applicable Antitrust Law or any Foreign Investment Law), making or causing to be made all filings and submissions, with prenotification where appropriate, required to be made by any party or any of its Affiliates under any other applicable Antitrust Law or any Foreign Investment Law, as applicable (including the HSR Act filings, the “Regulatory Filings”). Each The parties shall cooperate in good faith with the applicable Governmental Authorities in connection with the Regulatory Filings and submissions and shall, as promptly as reasonably practicable, comply with any requests for information, including, if applicable, requests for the production of documents and the production of witnesses for interviews or depositions by any Governmental Authorities. Parent shall pay, or cause its Affiliates to pay, all filing fees required under any applicable Antitrust Law or any applicable Foreign Investment Law for the consummation of the Transactions. Other than in connection with obtaining the authorizations, consents, orders and approvals described in Section 3.06 of the Company Disclosure Schedule, Parent shall not make any filings or notifications under any applicable Antitrust Law or any Foreign Investment Law with any Governmental Authority in respect of the Transactions without the prior written consent of the Company (such consent not to be unreasonably withheld, conditioned or delayed).
(b) Subject to the last sentence of Section 6.06(a), each of Parent and the Company shall (i) diligently assist and cooperate with each other in preparing and coordinate filing all documents required or reasonably deemed advisable by Parent to be submitted by any of them or their Affiliates to any Governmental Authorities in connection with the other Transactions and in the making of such filingsobtaining any Governmental Authority waiting period expirations or terminations, (ii) supply the other with any information that consents, waivers, authorizations, clearances or approvals which may be required to be obtained by Parent, the Company or any of their Affiliates in order connection with the Transactions (which assistance and cooperation shall include timely furnishing to make such filings, (iii) supply any additional the requesting party all information that such party or its counsel reasonably may determines is required to be included in such documents or would be helpful in obtaining such required waiting period expirations or requested by terminations, consents, waivers, authorizations, clearances or approvals). Parent and the FTC, the DOJ Company shall consult in good faith regarding strategy for obtaining approvals or the Governmental Authorities of any other jurisdiction in which any such filing is made under any other Antitrust Laws, and (iv) use reasonable best efforts to take all action necessary to cause the expiration or termination of any waiting period required to be obtained by Parent, the Company or any of their Affiliates in connection with the Transactions; provided, that in the event of a dispute between Parent and the Company, the final determination regarding such strategy (including, the conduct and scheduling of any negotiations with Governmental Authorities, and decisions regarding the defense and settlement of any litigation under any applicable Antitrust Law or Foreign Investment Law) shall be made by Parent. Notwithstanding the foregoing, neither Parent nor the Company shall, without the prior written consent of the other (such consent not to be unreasonably withheld, conditioned or delayed), commit to or agree with any Governmental Authority (A) to enter into any timing agreement, stop the clock, stay, toll or extend any applicable waiting periods period, or pull and refile, under the HSR Act, or any other applicable Antitrust Law or any other Foreign Investment Law, or (B) not to consummate the Transactions for any period of time; provided that, Parent may determine in its sole discretion (without the Company’s consent) to pull and refile its filing made under the HSR Act or other Antitrust Laws as soon as practicable, and to obtain any required consents under any other Antitrust Laws applicable to in connection with the Offer and/or the Merger as soon as practicable, and to avoid any impediment to the consummation of the Offer or the Merger under any Antitrust Laws, including using reasonable best efforts to take all such action as reasonably may be necessary to resolve such objections, if any, as the FTC, the DOJ, or any other Governmental Authority or Person may assert under any applicable Antitrust Laws with respect to the Offer and/or the Mergertransactions contemplated hereby on one occasion.
(bc) Each of Parent and Acquisition Sub the parties shall (and their respective Affiliates, if applicable), on the one hand, and the Company, on the other hand, shall i) promptly inform the other parties of any communication from oral communication, and provide copies of written communications, with any Governmental Authority regarding any Regulatory Filing or any review or investigation of the transactions contemplated by this Agreement Transactions under any applicable Antitrust Law or Foreign Investment Law and (ii) have the right to review in advance any filing made with, or other material communications submitted to, any Governmental Authority in connection with any filings or investigations with, by or before any Governmental Authority relating the Transactions. Subject to this Agreement or the transactions contemplated hereby, including any proceedings initiated by a private party. If any party hereto or Affiliate thereof shall receive a request for additional information or documentary material from any Governmental Authority with respect to the transactions contemplated by this Agreement pursuant to the HSR or any other Antitrust Section 6.06 and applicable Laws with respect to which any such filings have been made, then such party shall use its reasonable best efforts to make, or cause to be made, as soon as reasonably practicable and after consultation with the other party, an appropriate response in compliance with such request. In connection with and without limiting the foregoing, to the extent reasonably practicable and unless prohibited by applicable Law or by the applicable Governmental Authority, the parties hereto agree to (i) give each other reasonable advance notice of all meetings with any Governmental Authority relating to the Offer or the Mergerexchange of information, (ii) give each other an opportunity to participate in each of such meetings, (iii) keep the other party reasonably apprised with respect to any oral communications with any Governmental Authority regarding the Offer or the Merger, (iv) cooperate in the filing of any analyses, presentations, memoranda, briefs, arguments, opinions or other written communications explaining or defending the Offer and the Merger, articulating any regulatory or competitive argument and/or responding to requests or objections made by any Governmental Authority, (v) provide each other with a reasonable advance opportunity to review and comment upon, and shall consider in good faith the views of the other parties in connection with respect toany analysis, all written appearance, presentation, memorandum, brief, argument, opinion, proposal or other communication to be made or submitted in connection with any such request, inquiry, investigation, action or legal proceeding, and each party shall give reasonable advance notice to the other parties of, and afford the other parties the opportunity to attend or participate in, material conferences, meetings and telephone or other communications between the other parties and Governmental Authorities concerning the Transactions, unless prohibited by such Governmental Authority. Materials required to be provided pursuant to this Section 6.06(c) may be redacted (including any analyses, presentations, memoranda, briefs, arguments and opinionsi) with a Governmental Authority regarding to remove references concerning the Offer and valuation of the MergerCompany, (viii) provide each as necessary to comply with contractual arrangements in existence as of the date of this Agreement, and (iii) as necessary to address attorney-client or other (or counsel of each privilege concerns. Each party, as appropriate) with copies of all written communications each reasonably deems advisable, shall be entitled to or from designate any Governmental Authority relating to the Offer or the Merger, and (vii) cooperate and provide each other with a reasonable opportunity to participate in, and consider in good faith the views of the other with respect to, all competitively sensitive material deliberations with respect to all efforts to satisfy the conditions set forth in clauses (A) and (C)(1) of Annex A and Section 9.1(c). Any such disclosures, rights to participate or provisions of information by one party provided to the other may parties under this Section 6.06 as “Antitrust/FDI Counsel Only Material”. Such materials and the information contained therein shall be made on a counsel-given only basis to the extent required under applicable Law outside antitrust and foreign direct investment counsel of the recipient and, unless explicitly excluded, in-house counsel of the recipient approved by the providing party and will not be disclosed by such outside counsel or as appropriate approved in-house counsel to protect confidential business information or other Representatives of the attorney client privilege or attorney work product.
(c) Each of Parent, Acquisition Sub and the Company shall cooperate with one another in good faith to (i) promptly determine whether any filings not contemplated by Section 8.2(a) are required to be or should be made, and whether any other consents, approvals, permits or authorizations not contemplated by Section 8.2(a) are required to be or should be obtained, from any Governmental Authority under any other applicable Law in connection with the transactions contemplated hereby, and (ii) promptly make any filings, furnish information required in connection therewith and seek to obtain timely any such consents, permits, authorizations, approvals or waivers that the parties determine are required to be or should be made or recipient unless express written permission is obtained in connection with advance from the transactions contemplated herebysource of the materials or its legal counsel.
(d) Notwithstanding anything in this Agreement to the contrary contrary, nothing in this AgreementAgreement shall require, in connection with or be construed to require, Parent, Merger Sub or any filing or submission required or action of their respective Affiliates to be taken by either Parent or (and neither the Company to consummate the Offer and the Merger, in no event shall Parent or nor any of its Subsidiaries shall, without the prior written consent of Parent, agree to, or Affiliates be obligated take any of the following actions): (i) propose, negotiate, commit to propose or effect, by consent decree, hold separate orders or otherwise, the sale, divestiture, disposition, license or other conveyance of any categories, portions or parts of assets, properties, products, rights, services, or businesses of Parent, the Company or any of their respective Affiliates, or agree to accept any undertaking other structural or condition, to enter into conduct remedy (including any consent decree, to make conduct of business arrangements or termination of any divestiture existing relationships or accept any operational restriction, contractual rights and obligations); or (ii) otherwise take or commit to take any actions that would limit Parent’s, the Company’s or any of their respective Affiliates’ freedom of action with respect to, or its or their ability to retain any assets, properties, products, rights, services or businesses, or any interest or interests therein (iany of the actions described in the preceding clauses (i)-(ii), a “Burdensome Condition”). Notwithstanding the foregoing, at the written request of Parent, the Company shall, and shall cause its Subsidiaries to, agree to take any action that would constitute a Burdensome Condition so long as such action is conditioned upon the occurrence of the Closing.
(e) Each of Parent and the effectiveness or consummation of which is not conditional Company shall use its reasonable best efforts to defend through litigation on the consummation merits any claim under any applicable Antitrust Law asserted in court or any administrative or other tribunal by any third party, including any Governmental Authority of competent jurisdiction, challenging the Offer and Transactions, in order to avoid the Merger entry of, or to have vacated or terminated, any decree, Order or judgment (ii) whether temporary, preliminary or permanent), in each case that individually or in the aggregate (x) is or would reasonably be expected to be prevent, materially adverse delay or materially impair the parties’ ability to consummate the Transactions.
(with materiality, for purposes f) Until the earlier of the termination of this provisionAgreement and the Effective Time, being measured in relation to the size none of the Company and its Subsidiaries taken as a wholeCompany, Parent, Merger Sub nor any of their controlled Affiliates shall after the date of this Agreement acquire or agree to acquire any rights, business, person or division thereof (by way of license, merger, consolidation, share exchange, investment or other business combination, asset, stock or equity purchase or otherwise) or enter into or agree to (A) the Company and its Subsidiariesenter into any joint venture, taken as a wholecollaboration or other similar arrangement, or Parent and its Subsidiaries, taken as a whole, either before or after giving effect to the Offer or the Merger, or (B) Parent’s ownership or operation of any material portion of the business or assets of the Company and its Subsidiaries, taken as a whole, or (y) in each case that would reasonably be expected to deny Parent prevent, materially delay or materially impair the material benefit parties’ ability to obtain the approval of any Governmental Authority under any applicable Antitrust Law or Foreign Investment Law or the bargains contemplated by the transactions contemplated by this Agreement. The Company shall agree, if requested by Parent in writing, to commit to take expiration or termination of any of the forgoing actions applicable waiting period with respect to the assets or business of the Company in furtherance of this Section 8.2; provided, however, that any such action may be conditioned upon the consummation of the Merger and other Transactions contemplated by this AgreementTransactions.
Appears in 4 contracts
Sources: Merger Agreement (Nordson Corp), Merger Agreement (Nordson Corp), Merger Agreement (Nordson Corp)
Regulatory Filings. (a) Each The Company shall consult with Acquiror and Acquiror’s counsel in determining whether any action by or in respect of, or filing with, any Governmental Entity or other third parties is required, or any actions, consents, approvals or waivers are required to be obtained from any Governmental Entities or other third parties, in connection with the consummation of Parent the Acquisition or any other transactions contemplated by this Agreement. If and to the extent that such filings have not been made prior to the execution of this Agreement, as promptly as practicable after the date hereof, each of the Company and Acquiror shall make all filings, notices, petitions, statements, registrations, submissions of information, applications or submissions of other documents required to be made with any Governmental Entity as a condition to consummation of, or otherwise required to be filed or submitted with any Governmental Entity in connection with, the Acquisition Sub (and their respective Affiliates, if applicable), on the one hand, and the Companyother transactions contemplated hereby, on the other hand, shall including: (xi) file Notification and Report Forms with the FTC United States Federal Trade Commission (the “FTC”) and the Antitrust Division of the DOJ a Notification and Report Form relating to this Agreement and the transactions contemplated hereby United States Department of Justice (“DOJ”) as required by the HSR Act as soon as reasonably practicable from the date following execution and delivery of this Agreement but in no event later than ten (10) Business Days following the execution and delivery of this AgreementAct, and (yii) file comparable pre-merger or post-merger notification any other filings, forms and notices, petitions, statements, registrations, submissions of information, applications or submissions of other documents required to be filed or submitted with any foreign Governmental Authority that is required Entities by or under the Antitrust Laws of the jurisdictions set forth in Schedule 6.1(f) or any other Antitrust Laws as soon as reasonably practicable from Legal Requirements relating to the date following execution and delivery of this Agreement but in no event later than ten (10) Business Days following the execution and delivery of this AgreementAcquisition or any other transactions contemplated hereby. Each of Parent and the Company and Acquiror shall (i) cooperate and coordinate with the other in the making of such filings, (ii) supply the other with any information that may be required in order to make such filings, (iii) supply any additional information that reasonably may be required or requested by the FTC, the DOJ or the Governmental Authorities of any other jurisdiction in which any such filing is made under any other Antitrust Laws, and (iv) use reasonable best efforts to take cause all action necessary documents that it is responsible for filing with any Governmental Entity under this Section 5.7(a) to cause comply in all material respects with all applicable Legal Requirements. Acquiror, the expiration Company and their respective Subsidiaries and affiliates shall use reasonable best efforts to fully respond and substantially comply with any “second request” from the FTC or termination the DOJ in relation to the Notification and Report Forms filed by any of the applicable waiting periods them under the HSR Act in connection with the Acquisition or other Antitrust Laws as soon as practicable, and to obtain any required consents under any other Antitrust Laws applicable to the Offer and/or the Merger as soon as practicable, and to avoid any impediment to the consummation of the Offer or the Merger under any Antitrust Laws, including using reasonable best efforts to take all such action as reasonably may be necessary to resolve such objections, if any, as the FTC, the DOJtransactions contemplated hereby, or any other Governmental Authority or Person may assert under any applicable Antitrust Laws with respect to the Offer and/or the Merger.
(b) Each of Parent and Acquisition Sub (and their respective Affiliates, if applicable), on the one hand, and the Company, on the other hand, shall promptly inform the other of any communication from any Governmental Authority regarding any of the transactions contemplated by this Agreement in connection with any filings or investigations with, by or before any Governmental Authority relating to this Agreement or the transactions contemplated hereby, including any proceedings initiated by a private party. If any party hereto or Affiliate thereof shall receive a similar request for additional information or documentary material from any other Governmental Authority with respect Entity in relation to the transactions contemplated by this Agreement pursuant to the HSR or any other Antitrust Laws with respect to which filings, notices, petitions, statements, registrations, submissions of information, applications or submissions of other documents filed or submitted by any such filings have been made, then such party shall use its reasonable best efforts to make, or cause to be made, as soon as reasonably practicable and after consultation with the other party, an appropriate response in compliance with such request. In connection with and without limiting the foregoing, to the extent reasonably practicable and unless prohibited by applicable Law or by the applicable Governmental Authority, the parties hereto agree to (i) give each other reasonable advance notice of all meetings them with any Governmental Authority relating to the Offer or the Merger, (ii) give each other an opportunity to participate in each of such meetings, (iii) keep the other party reasonably apprised with respect to any oral communications with any Governmental Authority regarding the Offer or the Merger, (iv) cooperate in the filing of any analyses, presentations, memoranda, briefs, arguments, opinions or other written communications explaining or defending the Offer and the Merger, articulating any regulatory or competitive argument and/or responding to requests or objections made by any Governmental Authority, (v) provide each other with a reasonable advance opportunity to review and comment upon, and consider in good faith the views of the other with respect to, all written communications (including any analyses, presentations, memoranda, briefs, arguments and opinions) with a Governmental Authority regarding the Offer and the Merger, (vi) provide each other (or counsel of each party, as appropriate) with copies of all written communications to or from any Governmental Authority relating to the Offer or the Merger, and (vii) cooperate and provide each other with a reasonable opportunity to participate in, and consider in good faith the views of the other with respect to, all material deliberations with respect to all efforts to satisfy the conditions set forth in clauses (A) and (C)(1) of Annex A and Section 9.1(c). Any such disclosures, rights to participate or provisions of information by one party to the other may be made on a counsel-only basis to the extent required under applicable Law or as appropriate to protect confidential business information or the attorney client privilege or attorney work product.
(c) Each of Parent, Acquisition Sub and the Company shall cooperate with one another in good faith to (i) promptly determine whether any filings not contemplated by Section 8.2(a) are required to be or should be made, and whether any other consents, approvals, permits or authorizations not contemplated by Section 8.2(a) are required to be or should be obtained, from any Governmental Authority under any other applicable Law Entity in connection with the Acquisition or any other transactions contemplated hereby, and hereby within sixty (ii60) promptly make any filings, furnish information required in connection therewith and seek to obtain timely any days after receipt of such consents, permits, authorizations, approvals “second request” or waivers that the parties determine are required to be or should be made or obtained in connection with the transactions contemplated herebyother similar request.
(d) Notwithstanding anything to the contrary in this Agreement, in connection with any filing or submission required or action to be taken by either Parent or the Company to consummate the Offer and the Merger, in no event shall Parent or any of its Subsidiaries or Affiliates be obligated to propose or agree to accept any undertaking or condition, to enter into any consent decree, to make any divestiture or accept any operational restriction, or take or commit to take any action (i) the effectiveness or consummation of which is not conditional on the consummation of the Offer and the Merger or (ii) that individually or in the aggregate (x) is or would reasonably be expected to be materially adverse (with materiality, for purposes of this provision, being measured in relation to the size of the Company and its Subsidiaries taken as a whole) to (A) the Company and its Subsidiaries, taken as a whole, or Parent and its Subsidiaries, taken as a whole, either before or after giving effect to the Offer or the Merger, or (B) Parent’s ownership or operation of any material portion of the business or assets of the Company and its Subsidiaries, taken as a whole, or (y) would reasonably be expected to deny Parent the material benefit of the bargains contemplated by the transactions contemplated by this Agreement. The Company shall agree, if requested by Parent in writing, to commit to take any of the forgoing actions with respect to the assets or business of the Company in furtherance of this Section 8.2; provided, however, that any such action may be conditioned upon the consummation of the Merger and other Transactions contemplated by this Agreement.
Appears in 4 contracts
Sources: Implementation Agreement, Implementation Agreement (Advantest Corp), Implementation Agreement (Verigy Holding Co. Ltd.)
Regulatory Filings. (a) Each of Parent Party shall, as promptly as reasonably practicable and Acquisition Sub pursuant to the Restructuring Agreement (and their respective Affiliates, if to the extent applicable), on the one hand(i) make, or cause to be made, all filings and the Companysubmissions required under any Law applicable to such Party or any of its Affiliates; and (ii) use reasonable best efforts to obtain, on the other handor cause to be obtained, shall (x) file with the FTC all consents, authorizations, orders and the Antitrust Division of the DOJ a Notification and Report Form relating to this Agreement and the transactions contemplated hereby as required by the HSR Act as soon as reasonably practicable approvals from the date following all Governmental Authorities that may be or become necessary for its execution and delivery of this Agreement but in no event later than ten (10) Business Days following and the execution other Transaction Documents and delivery the performance of this Agreement, and (y) file comparable pre-merger or post-merger notification filings, forms and submissions with any foreign Governmental Authority that is required by any other Antitrust Laws as soon as reasonably practicable from the date following execution and delivery of its obligations pursuant to this Agreement but in no event later than ten (10) Business Days following and the execution and delivery of this Agreementother Transaction Documents. Each of Parent and the Company Party shall (i) cooperate and coordinate fully with the other Parties and their respective Affiliates in promptly seeking to obtain all such consents, authorizations, orders and approvals. The Parties shall not wilfully take any action that will have the making effect of such filingsdelaying, (ii) supply impairing or impeding the other with any information that may be required in order to make such filings, (iii) supply any additional information that reasonably may be required or requested by the FTC, the DOJ or the Governmental Authorities receipt of any other jurisdiction in which any such filing is made under any other Antitrust Lawsrequired consents, authorizations, orders and (iv) use reasonable best efforts to take all action necessary to cause the expiration or termination of the applicable waiting periods under the HSR Act or other Antitrust Laws as soon as practicable, and to obtain any required consents under any other Antitrust Laws applicable to the Offer and/or the Merger as soon as practicable, and to avoid any impediment to the consummation of the Offer or the Merger under any Antitrust Laws, including using reasonable best efforts to take all such action as reasonably may be necessary to resolve such objections, if any, as the FTC, the DOJ, or any other Governmental Authority or Person may assert under any applicable Antitrust Laws with respect to the Offer and/or the Mergerapprovals.
(b) Each Without limiting the generality of Parent and Acquisition Sub the Parties’ undertakings pursuant to subsection (and their respective Affiliatesa) above, if applicable), on each of the one hand, and the Company, on the other hand, Parties shall promptly inform the other of use reasonable best efforts to:
(i) respond to any communication from inquiries by any Governmental Authority regarding any of the transactions contemplated by this Agreement in connection with any filings antitrust or investigations with, by or before any Governmental Authority relating to this Agreement or the transactions contemplated hereby, including any proceedings initiated by a private party. If any party hereto or Affiliate thereof shall receive a request for additional information or documentary material from any Governmental Authority other matters with respect to the transactions contemplated by this Agreement pursuant or any Transaction Document;
(ii) avoid the imposition of any order or the taking of any action that would restrain, alter or enjoin the transactions contemplated by this Agreement or any Transaction Document; and
(iii) in the event any Governmental Order adversely affecting the ability of the Parties to consummate the HSR transactions contemplated by this Agreement or any other Antitrust Laws with respect to which any such filings have Transaction Document has been made, then such party shall use its reasonable best efforts to make, or cause to be made, as soon as reasonably practicable and after consultation with the other party, an appropriate response in compliance with such request. In connection with and without limiting the foregoingissued, to the extent reasonably practicable have such Governmental Order vacated or lifted.
(c) The Parties shall consult and unless prohibited by applicable Law or by the applicable Governmental Authority, the parties hereto agree to (i) give each other reasonable advance notice of all meetings cooperate with any Governmental Authority relating to the Offer or the Merger, (ii) give each other an opportunity to participate in each of such meetings, (iii) keep the other party reasonably apprised with respect to any oral communications with any Governmental Authority regarding the Offer or the Merger, (iv) cooperate in the filing of any analyses, presentations, memoranda, briefs, arguments, opinions or other written communications explaining or defending the Offer and the Merger, articulating any regulatory or competitive argument and/or responding to requests or objections made by any Governmental Authority, (v) provide each other with a reasonable advance opportunity to review and comment uponone another, and consider in good faith the views of the other one another, in connection with respect toall analyses, all written communications (including any analysesappearances, meetings, discussions, presentations, memoranda, briefs, arguments filings, arguments, and opinions) with a Governmental Authority regarding the Offer and the Merger, (vi) provide each other (proposals made by or counsel on behalf of each party, as appropriate) with copies of all written communications to or from any Party before any Governmental Authority relating to the Offer or the Merger, and (vii) cooperate and provide each other with a reasonable opportunity to participate in, and consider in good faith the views staff or regulators of the other with respect to, all material deliberations with respect to all efforts to satisfy the conditions set forth in clauses (A) and (C)(1) of Annex A and Section 9.1(c). Any such disclosures, rights to participate or provisions of information by one party to the other may be made on a counsel-only basis to the extent required under applicable Law or as appropriate to protect confidential business information or the attorney client privilege or attorney work product.
(c) Each of Parent, Acquisition Sub and the Company shall cooperate with one another in good faith to (i) promptly determine whether any filings not contemplated by Section 8.2(a) are required to be or should be made, and whether any other consents, approvals, permits or authorizations not contemplated by Section 8.2(a) are required to be or should be obtained, from any Governmental Authority under any other applicable Law Authority, in connection with the transactions contemplated hereby, and (ii) promptly make any filings, furnish information required in connection therewith and seek to obtain timely any such consents, permits, authorizations, approvals or waivers that the parties determine are required to be or should be made or obtained in connection with the transactions contemplated herebyhereunder.
(d) Notwithstanding anything to the contrary foregoing, nothing in this AgreementSection 6.6 shall require, in connection with or be construed to require, any filing or submission required or action to be taken by either Parent or the Company to consummate the Offer and the Merger, in no event shall Parent Series A-1 Investor or any of its Subsidiaries or Affiliates be obligated to propose or agree to accept any undertaking or condition, to enter into any consent decree, to make any divestiture or accept any operational restriction, or take or commit to take any action (i) sell, hold, divest, discontinue or limit, before or after the effectiveness Closing Date, any Assets, businesses or consummation interests of which is not conditional on the consummation such Series A-1 Investor or any of the Offer and the Merger or its Affiliates; (ii) that individually any conditions relating to, or changes or restrictions in, the operations of any such Assets, businesses or interests which, in the aggregate (x) is or would either case, could reasonably be expected to be materially adverse (with materiality, for purposes adversely impact the economic or business benefits to such Series A-1 Investor of this provision, being measured in relation to the size of the Company and its Subsidiaries taken as a whole) to (A) the Company and its Subsidiaries, taken as a whole, or Parent and its Subsidiaries, taken as a whole, either before or after giving effect to the Offer or the Merger, or (B) Parent’s ownership or operation of any material portion of the business or assets of the Company and its Subsidiaries, taken as a whole, or (y) would reasonably be expected to deny Parent the material benefit of the bargains contemplated by the transactions contemplated by this Agreement. The Company shall agree, if requested by Parent in writing, to commit to take ; or (iii) any modification or waiver of the forgoing actions with respect to the assets or business terms and conditions of the Company in furtherance of this Section 8.2; provided, however, that any such action may be conditioned upon the consummation of the Merger and other Transactions contemplated by this Agreement.
Appears in 3 contracts
Sources: Series a 1 Preferred Share Purchase Agreement, Series a 1 Preferred Share Purchase Agreement (OneSmart International Education Group LTD), Series a 1 Preferred Share Purchase Agreement (OneSmart International Education Group LTD)
Regulatory Filings. (a) Each Not later than two business days after the date hereof, Purchaser will, and Seller will cause the ultimate parent entity of Parent and Acquisition Sub (and their respective AffiliatesSeller to, make such filings, if applicable)any, on the one hand, and the Company, on the other hand, shall (x) file with the FTC and the Antitrust Division of the DOJ a Notification and Report Form relating to this Agreement and the transactions contemplated hereby as may be required by the HSR Act as soon as reasonably practicable from with respect to the date following execution and delivery consummation of this Agreement but in no event later than ten (10) Business Days following the execution and delivery of this Agreement, and (y) file comparable pre-merger or post-merger notification filings, forms and submissions with any foreign Governmental Authority that is required transactions contemplated by any other Antitrust Laws as soon as reasonably practicable from the date following execution and delivery of this Agreement but in no event later than ten (10) Business Days following the execution and delivery of this Agreement. Each Thereafter, Purchaser will, and Seller will cause the ultimate parent entity of Parent Seller to, file or cause to be filed as promptly as practicable with the United States Federal Trade Commission (the "FTC") and the Company shall United States Department of Justice (ithe "DOJ") cooperate and coordinate with the other in the making of such filingssupplemental information, (ii) supply the other with any information that may be required in order to make such filingsif any, (iii) supply any additional information that reasonably which may be required or requested by the FTC, FTC or the DOJ pursuant to the HSR Act. To the extent required by Law, Seller will make, or cause any of its Affiliates to make, such filings and use its reasonable efforts to obtain the governmental approvals and the other third party consents (if any) referred to in Section 2.1.3, and Purchaser will each make such filings and use its reasonable efforts to obtain the governmental approvals and the other third party consents (if any) referred to in Section 2.2.2. All filings referred to in this Section 3.3(a) will comply in all material respects with the requirements of the respective Laws pursuant to which they are made.
(b) Without limiting the generality or effect of Section 3.3(a), each of the parties will (i) use their respective reasonable efforts to comply as expeditiously as possible with all lawful requests of Governmental Authorities Entities for additional information and documents pursuant to the HSR Act, if applicable, (ii) not (A) extend any waiting period under the HSR Act or (B) enter into any agreement with any Governmental Entity not to consummate the transactions contemplated by this Agreement, except with the prior consent of any each of the other jurisdiction in which any such filing is made under any other Antitrust Lawsparties hereto, and (iviii) cooperate with each other and use reasonable best efforts to take all action prevent the entry of, and to cause the lifting or removal of, any temporary restraining order, preliminary injunction or other judicial or administrative order which may be entered into in connection with the transactions contemplated by this Agreement, including without limitation the execution, delivery and performance by the appropriate entity of such divestiture agreements or other actions, as the case may be, as may be necessary to cause secure the expiration or termination of the applicable waiting periods under the HSR Act or the removal, dissolution, stay or dismissal of any temporary restraining order, preliminary injunction or other Antitrust Laws as soon as practicable, and to obtain any required consents under any other Antitrust Laws applicable to the Offer and/or the Merger as soon as practicable, and to avoid any impediment to judicial or administrative order which prevents the consummation of the Offer transactions contemplated hereby or the Merger under any Antitrust Laws, including using reasonable best efforts to take requires as a condition thereto that all such action as reasonably may be necessary to resolve such objections, if any, as the FTC, the DOJ, or any other Governmental Authority or Person may assert under any applicable Antitrust Laws with respect to the Offer and/or the Merger.
(b) Each of Parent and Acquisition Sub (and their respective Affiliates, if applicable), on the one hand, and the Company, on the other hand, shall promptly inform the other of any communication from any Governmental Authority regarding any part of the transactions contemplated by this Agreement in connection with any filings Business be held separate and, prior to or investigations withafter the Closing, by pursue the underlying litigation or before any Governmental Authority relating to this Agreement or the transactions contemplated hereby, including any proceedings initiated by a private party. If any party hereto or Affiliate thereof shall receive a request for additional information or documentary material from any Governmental Authority with respect to the transactions contemplated by this Agreement pursuant to the HSR or any other Antitrust Laws with respect to which any such filings have been made, then such party shall use its reasonable best efforts to make, or cause to be made, as soon as reasonably practicable administrative proceeding diligently and after consultation with the other party, an appropriate response in compliance with such request. In connection with and without limiting the foregoing, to the extent reasonably practicable and unless prohibited by applicable Law or by the applicable Governmental Authority, the parties hereto agree to (i) give each other reasonable advance notice of all meetings with any Governmental Authority relating to the Offer or the Merger, (ii) give each other an opportunity to participate in each of such meetings, (iii) keep the other party reasonably apprised with respect to any oral communications with any Governmental Authority regarding the Offer or the Merger, (iv) cooperate in the filing of any analyses, presentations, memoranda, briefs, arguments, opinions or other written communications explaining or defending the Offer and the Merger, articulating any regulatory or competitive argument and/or responding to requests or objections made by any Governmental Authority, (v) provide each other with a reasonable advance opportunity to review and comment upon, and consider in good faith the views of the other with respect to, all written communications (including any analyses, presentations, memoranda, briefs, arguments and opinions) with a Governmental Authority regarding the Offer and the Merger, (vi) provide each other (or counsel of each party, as appropriate) with copies of all written communications to or from any Governmental Authority relating to the Offer or the Merger, and (vii) cooperate and provide each other with a reasonable opportunity to participate in, and consider in good faith the views of the other with respect to, all material deliberations with respect to all efforts to satisfy the conditions set forth in clauses (A) and (C)(1) of Annex A and Section 9.1(c). Any such disclosures, rights to participate or provisions of information by one party to the other may be made on a counsel-only basis to the extent required under applicable Law or as appropriate to protect confidential business information or the attorney client privilege or attorney work productfaith.
(c) Each of Parent, Acquisition Sub and the Company shall cooperate with one another in good faith to (i) promptly determine whether any filings not contemplated by Section 8.2(a) are required to be or should be made, and whether any other consents, approvals, permits or authorizations not contemplated by Section 8.2(a) are required to be or should be obtained, from any Governmental Authority under any other applicable Law in connection with the transactions contemplated hereby, and (ii) promptly make any filings, furnish information required in connection therewith and seek to obtain timely any such consents, permits, authorizations, approvals or waivers that the parties determine are required to be or should be made or obtained in connection with the transactions contemplated hereby.
(d) Notwithstanding anything to the contrary in this Agreement, in connection with any filing or submission required or action to be taken by either Parent or the Company to consummate the Offer and the Merger, in no event shall Parent or any of its Subsidiaries or Affiliates be obligated to propose or agree to accept any undertaking or condition, to enter into any consent decree, to make any divestiture or accept any operational restriction, or take or commit to take any action (i) the effectiveness or consummation of which is not conditional on the consummation of the Offer and the Merger or (ii) that individually or in the aggregate (x) is or would reasonably be expected to be materially adverse (with materiality, for purposes of this provision, being measured in relation to the size of the Company and its Subsidiaries taken as a whole) to (A) the Company and its Subsidiaries, taken as a whole, or Parent and its Subsidiaries, taken as a whole, either before or after giving effect to the Offer or the Merger, or (B) Parent’s ownership or operation of any material portion of the business or assets of the Company and its Subsidiaries, taken as a whole, or (y) would reasonably be expected to deny Parent the material benefit of the bargains contemplated by the transactions contemplated by this Agreement. The Company shall agree, if requested by Parent in writing, to commit to take any of the forgoing actions with respect to the assets or business of the Company in furtherance of this Section 8.2; provided, however, that any such action may be conditioned upon the consummation of the Merger and other Transactions contemplated by this Agreement.
Appears in 3 contracts
Sources: Acquisition Agreement (Collins & Aikman Corp), Acquisition Agreement (Collins & Aikman Corp), Acquisition Agreement (Imperial Home Decor Group Holdings I LTD)
Regulatory Filings. (a) Each of Parent Buyer and Acquisition Sub (Sellers shall coordinate and their respective Affiliatescooperate with one another and shall each use all commercially reasonable efforts to comply with, if applicable)and shall each refrain from taking any action that would impede compliance with, on all applicable Law, and as expeditiously as possible after the one handdate hereof, each of Buyer, and Sellers shall make all filings, notices, petitions, statements, registrations, submissions of information, application or submission of other documents required by any Governmental Authority in connection with the Transaction, the Share Sale, and the Companyother transactions contemplated hereby, on the other handincluding, shall without limitation: (xi) file Notification and Report Forms with the FTC United States Federal Trade Commission (“FTC”) and the Antitrust Division of the DOJ a Notification United States Department of Justice (“DOJ”) (which shall be filed as expeditiously as possible following the date hereof) and Report Form relating responses to this Agreement requests for additional information and documentary material from the FTC and the transactions contemplated hereby DOJ as required by the HSR Act as soon as reasonably practicable from the date following execution and delivery of this Agreement but in no event later than ten Act, (10ii) Business Days following the execution and delivery of this Agreement, and (y) file filings under any other comparable pre-merger or post-merger notification filings, forms reasonably determined by Buyer and submissions with any foreign Governmental Authority that is Sellers to be required by the merger 18 notification or control regime or antitrust Laws of any applicable jurisdiction, as agreed by the parties hereto and as evidenced in Schedule 5.2, and (iii) any filings required under the Securities Act, the Securities Exchange Act of 1934, as amended, any applicable state or securities or “blue sky” Laws and the securities Laws of any non-U.S. country, or any other Antitrust Laws as soon as reasonably practicable from applicable Law relating to the date following execution Transaction, the Share Sale, and delivery of this Agreement but in no event later than ten (10) Business Days following the execution and delivery of this Agreementother transactions contemplated hereby. Each of Parent Buyer and the Company Sellers will cause all documents that it is responsible for filing with any Governmental Authority under this Section 5.2 to comply in all material respects with all applicable Law. Buyer and Sellers each shall (i) cooperate and coordinate with the other in the making of such filings, (ii) promptly supply the other with any information that may be required in order to make such filings, (iii) supply any additional information that reasonably may be required or requested by the FTC, the DOJ or the Governmental Authorities of any other jurisdiction in which any such filing is made under any other Antitrust Laws, and (iv) use reasonable best efforts to take all action necessary to cause the expiration or termination of the applicable waiting periods under the HSR Act or other Antitrust Laws as soon as practicable, and to obtain any required consents under any other Antitrust Laws applicable to the Offer and/or the Merger as soon as practicable, and to avoid any impediment to the consummation of the Offer or the Merger under any Antitrust Laws, including using reasonable best efforts to take all such action as reasonably may be necessary to resolve such objections, if any, as the FTC, the DOJ, or any other Governmental Authority or Person may assert under any applicable Antitrust Laws with respect to the Offer and/or the Merger.
(b) Each of Parent and Acquisition Sub (and their respective Affiliates, if applicable), on the one hand, and the Company, on the other hand, shall promptly inform the other of any communication from any Governmental Authority regarding any of the transactions contemplated by this Agreement in connection with effectuate any filings or investigations with, by or before any Governmental Authority relating application pursuant to this Agreement or the transactions contemplated hereby, including any proceedings initiated by a private party. If any party hereto or Affiliate thereof shall receive a request for additional information or documentary material from any Governmental Authority with respect to the transactions contemplated by this Agreement pursuant to the HSR or any other Antitrust Laws with respect to which any such filings have been made, then such party shall use its reasonable best efforts to make, or cause to be made, as soon as reasonably practicable and after consultation with the other party, an appropriate response in compliance with such request. In connection with and without limiting the foregoing, to the extent reasonably practicable and unless prohibited by applicable Law or by the applicable Governmental Authority, the parties hereto agree to (i) give each other reasonable advance notice of all meetings with any Governmental Authority relating to the Offer or the Merger, (ii) give each other an opportunity to participate in each of such meetings, (iii) keep the other party reasonably apprised with respect to any oral communications with any Governmental Authority regarding the Offer or the Merger, (iv) cooperate in the filing of any analyses, presentations, memoranda, briefs, arguments, opinions or other written communications explaining or defending the Offer and the Merger, articulating any regulatory or competitive argument and/or responding to requests or objections made by any Governmental Authority, (v) provide each other with a reasonable advance opportunity to review and comment upon, and consider in good faith the views of the other with respect to, all written communications (including any analyses, presentations, memoranda, briefs, arguments and opinions) with a Governmental Authority regarding the Offer and the Merger, (vi) provide each other (or counsel of each party, as appropriate) with copies of all written communications to or from any Governmental Authority relating to the Offer or the Merger, and (vii) cooperate and provide each other with a reasonable opportunity to participate in, and consider in good faith the views of the other with respect to, all material deliberations with respect to all efforts to satisfy the conditions set forth in clauses (A) and (C)(1) of Annex A and Section 9.1(c). Any such disclosures, rights to participate or provisions of information by one party to the other may be made on a counsel-only basis to the extent required under applicable Law or as appropriate to protect confidential business information or the attorney client privilege or attorney work product5.2.
(c) Each of Parent, Acquisition Sub and the Company shall cooperate with one another in good faith to (i) promptly determine whether any filings not contemplated by Section 8.2(a) are required to be or should be made, and whether any other consents, approvals, permits or authorizations not contemplated by Section 8.2(a) are required to be or should be obtained, from any Governmental Authority under any other applicable Law in connection with the transactions contemplated hereby, and (ii) promptly make any filings, furnish information required in connection therewith and seek to obtain timely any such consents, permits, authorizations, approvals or waivers that the parties determine are required to be or should be made or obtained in connection with the transactions contemplated hereby.
(d) Notwithstanding anything to the contrary in this Agreement, in connection with any filing or submission required or action to be taken by either Parent or the Company to consummate the Offer and the Merger, in no event shall Parent or any of its Subsidiaries or Affiliates be obligated to propose or agree to accept any undertaking or condition, to enter into any consent decree, to make any divestiture or accept any operational restriction, or take or commit to take any action (i) the effectiveness or consummation of which is not conditional on the consummation of the Offer and the Merger or (ii) that individually or in the aggregate (x) is or would reasonably be expected to be materially adverse (with materiality, for purposes of this provision, being measured in relation to the size of the Company and its Subsidiaries taken as a whole) to (A) the Company and its Subsidiaries, taken as a whole, or Parent and its Subsidiaries, taken as a whole, either before or after giving effect to the Offer or the Merger, or (B) Parent’s ownership or operation of any material portion of the business or assets of the Company and its Subsidiaries, taken as a whole, or (y) would reasonably be expected to deny Parent the material benefit of the bargains contemplated by the transactions contemplated by this Agreement. The Company shall agree, if requested by Parent in writing, to commit to take any of the forgoing actions with respect to the assets or business of the Company in furtherance of this Section 8.2; provided, however, that any such action may be conditioned upon the consummation of the Merger and other Transactions contemplated by this Agreement.
Appears in 3 contracts
Sources: Asset Purchase Agreement, Asset Purchase Agreement (RPX Corp), Asset Purchase Agreement (RPX Corp)
Regulatory Filings. (a) Each of Parent and Acquisition Sub (and their respective AffiliatesSubject to the terms hereof, if applicableincluding Section 10.1(b), on the one hand, and the Company, on the other hand, shall (x) file with the FTC and the Antitrust Division each of the DOJ a Notification Parties and Report Form relating to this Agreement and the transactions contemplated hereby as required by the HSR Act as soon as reasonably practicable from the date following execution and delivery of this Agreement but in no event later than ten (10) Business Days following the execution and delivery of this Agreement, and (y) file comparable pre-merger or post-merger notification filings, forms and submissions with any foreign Governmental Authority that is required by any other Antitrust Laws as soon as reasonably practicable from the date following execution and delivery of this Agreement but in no event later than ten (10) Business Days following the execution and delivery of this Agreement. Each of Parent and the Company shall (i) cooperate and coordinate with the other in the making of such filings, (ii) supply the other with any information that may be required in order to make such filings, (iii) supply any additional information that reasonably may be required or requested by the FTC, the DOJ or the Governmental Authorities of any other jurisdiction in which any such filing is made under any other Antitrust Laws, and (iv) use reasonable best efforts to take all action actions and to do all things reasonably necessary to cause the expiration or termination of the applicable waiting periods under the HSR Act or other Antitrust Laws as soon as practicable, and to obtain any required consents under any other Antitrust Laws applicable to the Offer and/or the Merger as soon as practicable, and to avoid any impediment to the consummation of the Offer or the Merger under any Antitrust Laws, including using reasonable best efforts to take all such action as reasonably may be necessary to resolve such objections, if any, as the FTC, the DOJ, or any other Governmental Authority or Person may assert under any applicable Antitrust Laws with respect to the Offer and/or the Merger.
(b) Each of Parent and Acquisition Sub (and their respective Affiliates, if applicable), on the one hand, and the Company, on the other hand, shall promptly inform the other of any communication from any Governmental Authority regarding any of consummate the transactions contemplated by this Agreement in connection with any filings or investigations with, by or before any Governmental Authority relating to this Agreement or the transactions contemplated herebyAgreement, including any proceedings initiated by a private party. If any party hereto or Affiliate thereof shall receive a request for additional information or documentary material from any Governmental Authority with respect to the transactions contemplated by this Agreement pursuant to the HSR or any other Antitrust Laws with respect to which any such filings have been made, then such party shall use its using reasonable best efforts to make, or cause to be made, as soon as reasonably practicable and after consultation with the other party, an appropriate response in compliance with such request. In connection with and without limiting the foregoing, to the extent reasonably practicable and unless prohibited by applicable Law or by the applicable Governmental Authority, the parties hereto agree to (i) give each obtain all waivers, Permits, Consents, approvals or other reasonable advance notice of all meetings with any authorizations from Governmental Authority relating to the Offer or the MergerEntities and other third parties, (ii) give each other an opportunity effect all registrations, filings and notices with or to participate in each of such meetings, Governmental Entities and (iii) keep the other party reasonably apprised with respect to any oral communications with any Governmental Authority regarding the Offer or the Merger, (iv) cooperate otherwise comply in the filing of any analyses, presentations, memoranda, briefs, arguments, opinions or other written communications explaining or defending the Offer and the Merger, articulating any regulatory or competitive argument and/or responding to requests or objections made by any Governmental Authority, (v) provide each other with a reasonable advance opportunity to review and comment upon, and consider in good faith the views of the other with respect to, all written communications (including any analyses, presentations, memoranda, briefs, arguments and opinions) with a Governmental Authority regarding the Offer and the Merger, (vi) provide each other (or counsel of each party, as appropriate) with copies of all written communications to or from any Governmental Authority relating to the Offer or the Merger, and (vii) cooperate and provide each other with a reasonable opportunity to participate in, and consider in good faith the views of the other with respect to, all material deliberations respects with respect to all efforts to satisfy the conditions set forth in clauses (A) Applicable Laws and (C)(1) of Annex A and Section 9.1(c). Any such disclosures, rights to participate or provisions of information by one party to the other may be made on a counsel-only basis to the extent required under applicable Law or as appropriate to protect confidential business information or the attorney client privilege or attorney work product.
(c) Each of Parent, Acquisition Sub and the Company shall cooperate with one another in good faith to (i) promptly determine whether any filings not contemplated by Section 8.2(a) are required to be or should be made, and whether any other consents, approvals, permits or authorizations not contemplated by Section 8.2(a) are required to be or should be obtained, from any Governmental Authority under any other applicable Law regulations in connection with the transactions contemplated hereby, and (ii) promptly make any filings, furnish information required in connection therewith and seek to obtain timely any such consents, permits, authorizations, approvals or waivers that the parties determine are required to be or should be made or obtained in connection with the transactions contemplated hereby.
(d) Notwithstanding anything to the contrary in this Agreement, in connection with any filing or submission required or action to be taken by either Parent or the Company to consummate the Offer and the Merger, in no event shall Parent or any of its Subsidiaries or Affiliates be obligated to propose or agree to accept any undertaking or condition, to enter into any consent decree, to make any divestiture or accept any operational restriction, or take or commit to take any action (i) the effectiveness or consummation of which is not conditional on the consummation of the Offer and the Merger or (ii) that individually or in the aggregate (x) is or would reasonably be expected to be materially adverse (with materiality, for purposes of this provision, being measured in relation to the size of the Company and its Subsidiaries taken as a whole) to (A) the Company and its Subsidiaries, taken as a whole, or Parent and its Subsidiaries, taken as a whole, either before or after giving effect to the Offer or the Merger, or (B) Parent’s ownership or operation of any material portion of the business or assets of the Company and its Subsidiaries, taken as a whole, or (y) would reasonably be expected to deny Parent the material benefit of the bargains contemplated by the transactions contemplated by this Agreement. The Company shall agree, if requested by Parent in writing, to commit to take any Each of the forgoing actions Parties and Parent shall promptly notify each of the other Parties and Parent of any fact, condition or event known to it that would reasonably be expected to prohibit, make unlawful or delay the consummation of the transactions contemplated by this Agreement.
(b) Without limiting the generality of the foregoing, each of the Parties and Parent shall (or shall cause the appropriate Affiliate thereof to) (i) promptly file any Notification and Report Forms and related material that it may be required to file with the Federal Trade Commission and the Antitrust Division of the United States Department of Justice under the HSR Act, (ii) use reasonable efforts to obtain an early termination of the applicable waiting period under the HSR Act, (iii) make any further filings or information submissions pursuant thereto that may be reasonably necessary or advisable and (iv) promptly make any filings or submissions required under the EC Regulation or any other applicable foreign antitrust or trade regulation law. Each of the Parties and Parent shall use reasonable efforts to resolve any objections that may be asserted by any Governmental Entity with respect to the assets or business of transactions contemplated hereby, and shall cooperate with each other to contest any challenges to the Company in furtherance of this Section 8.2transactions contemplated hereby by any Governmental Entity; provided, however, that in no event shall Buyer, Parent or any Affiliate thereof be required to offer or agree to sell, license or otherwise dispose of, or hold separate or otherwise divest, any assets in order to resolve any such action may be conditioned upon the consummation objections. Each of the Merger Parties and Parent shall promptly inform each other Transactions of any material communication received by such party from the Federal Trade Commission, the Antitrust Division of the Department of Justice or any other Governmental Entity regarding any of the transactions contemplated by this Agreementhereby (unless the provision of such information would (i) violate the provisions of any Applicable Law (including without limitation those relating to security clearance or export controls) or any confidentiality agreement or (ii) cause the loss of the attorney-client privilege with respect thereto).
Appears in 2 contracts
Sources: Stock Purchase Agreement (Idenix Pharmaceuticals Inc), Stock Purchase Agreement (Idenix Pharmaceuticals Inc)
Regulatory Filings. Each of the parties hereto shall coordinate and cooperate with one another and shall each use best efforts to comply with, and shall each refrain from taking any action that would impede compliance with, all Legal Requirements, and, as promptly as practicable after the date hereof, each of the parties hereto shall make all filings, notices, petitions, statements, registrations, submissions of information, application or submission of other documents required by any Governmental Entity in connection with the Transaction and the transactions contemplated hereby, as well as the Merger and the transactions contemplated in connection therewith, including, without limitation: (a) Each of Parent Notification and Acquisition Sub (and their respective Affiliates, if applicable), on the one hand, and the Company, on the other hand, shall (x) file Report Forms with the FTC United States Federal Trade Commission and the Antitrust Division of the DOJ a Notification and Report Form relating to this Agreement and the transactions contemplated hereby United States Department of Justice as required by the HSR Act (it being understood that Parent shall bear the full cost of the fees relating to such filing), with the Committee on Foreign Investment in the United States as soon as reasonably practicable from may be deemed appropriate under the date following execution and delivery Exon-F▇▇▇▇▇ Amendment to Section 721 of this Agreement but in no event later than ten the Defense Production Act of 1950, (10b) Business Days following the execution and delivery of this Agreement, and (y) file comparable pre-merger or post-merger notification filings, forms and submissions with any foreign Governmental Authority that is required by any other Antitrust Laws as soon as reasonably practicable from the date following execution and delivery of this Agreement but in no event later than ten (10) Business Days following the execution and delivery of this Agreement. Each of Parent and the Company shall (i) cooperate and coordinate with the other in the making of such filings, (ii) supply the other with any information that may be required in order to make such filings, (iii) supply any additional information that reasonably may be required filing or requested by the FTC, the DOJ or the Governmental Authorities of any other jurisdiction in which any such filing is made under any other Antitrust Laws, and (iv) use reasonable best efforts to take all action registration necessary to cause the expiration or termination of the applicable waiting periods under the HSR Act or other Antitrust Laws as soon as practicable, and to obtain any material consent, authorization or approval or otherwise required consents under any other Antitrust Laws applicable or advisable to consummate the Offer and/or the Merger as soon as practicable, and to avoid any impediment to the consummation of the Offer Transaction or the Merger under any Antitrust Laws, including using reasonable best efforts to take all such action as reasonably may be necessary to resolve such objections, if any, as the FTC, the DOJ, or any other Governmental Authority or Person may assert under any applicable Antitrust Laws with respect to the Offer and/or the Merger.
(b) Each of Parent and Acquisition Sub (and their respective Affiliates, if applicable), on the one hand, and the Company, on the other hand, shall promptly inform the other of any communication from any Governmental Authority regarding any of the transactions contemplated by this Agreement in connection with hereby, or the Merger or any filings or investigations with, by or before any Governmental Authority relating to this Agreement or of the transactions contemplated herebyin connection therewith, including (c) filings under any proceedings initiated other comparable pre-merger notification forms required by a private party. If the merger notification or control laws of any party hereto applicable jurisdiction, as agreed by the parties hereto, and (d) any filings required under the Securities Act, the Exchange Act, any applicable state or Affiliate thereof shall receive a request for additional information securities or documentary material from “blue sky” laws and the securities laws of any Governmental Authority with respect to the transactions contemplated by this Agreement pursuant to the HSR foreign country, or any other Antitrust Laws with respect Legal Requirement relating to which any such filings have been made, then such the Transaction. Each party shall use its reasonable best efforts to make, or cause to be made, as soon as reasonably practicable and after consultation with the other party, an appropriate response in compliance with such request. In connection with and without limiting the foregoing, to the extent reasonably practicable and unless prohibited by applicable Law or by the applicable Governmental Authority, the parties hereto agree to (i) give each other reasonable advance notice of all meetings documents that it is responsible for filing with any Governmental Authority relating Entity under this Section 6.12.1 to the Offer or the Merger, (ii) give each other an opportunity to participate comply in each of such meetings, (iii) keep the other party reasonably apprised with respect to any oral communications with any Governmental Authority regarding the Offer or the Merger, (iv) cooperate in the filing of any analyses, presentations, memoranda, briefs, arguments, opinions or other written communications explaining or defending the Offer and the Merger, articulating any regulatory or competitive argument and/or responding to requests or objections made by any Governmental Authority, (v) provide each other with a reasonable advance opportunity to review and comment upon, and consider in good faith the views of the other with respect to, all written communications (including any analyses, presentations, memoranda, briefs, arguments and opinions) with a Governmental Authority regarding the Offer and the Merger, (vi) provide each other (or counsel of each party, as appropriate) with copies of all written communications to or from any Governmental Authority relating to the Offer or the Merger, and (vii) cooperate and provide each other with a reasonable opportunity to participate in, and consider in good faith the views of the other with respect to, all material deliberations respects with respect to all efforts to satisfy the conditions set forth in clauses (A) and (C)(1) of Annex A and Section 9.1(c). Any such disclosures, rights to participate or provisions of information by one party to the other may be made on a counsel-only basis to the extent required under applicable Law or as appropriate to protect confidential business information or the attorney client privilege or attorney work productLegal Requirements.
(c) Each of Parent, Acquisition Sub and the Company shall cooperate with one another in good faith to (i) promptly determine whether any filings not contemplated by Section 8.2(a) are required to be or should be made, and whether any other consents, approvals, permits or authorizations not contemplated by Section 8.2(a) are required to be or should be obtained, from any Governmental Authority under any other applicable Law in connection with the transactions contemplated hereby, and (ii) promptly make any filings, furnish information required in connection therewith and seek to obtain timely any such consents, permits, authorizations, approvals or waivers that the parties determine are required to be or should be made or obtained in connection with the transactions contemplated hereby.
(d) Notwithstanding anything to the contrary in this Agreement, in connection with any filing or submission required or action to be taken by either Parent or the Company to consummate the Offer and the Merger, in no event shall Parent or any of its Subsidiaries or Affiliates be obligated to propose or agree to accept any undertaking or condition, to enter into any consent decree, to make any divestiture or accept any operational restriction, or take or commit to take any action (i) the effectiveness or consummation of which is not conditional on the consummation of the Offer and the Merger or (ii) that individually or in the aggregate (x) is or would reasonably be expected to be materially adverse (with materiality, for purposes of this provision, being measured in relation to the size of the Company and its Subsidiaries taken as a whole) to (A) the Company and its Subsidiaries, taken as a whole, or Parent and its Subsidiaries, taken as a whole, either before or after giving effect to the Offer or the Merger, or (B) Parent’s ownership or operation of any material portion of the business or assets of the Company and its Subsidiaries, taken as a whole, or (y) would reasonably be expected to deny Parent the material benefit of the bargains contemplated by the transactions contemplated by this Agreement. The Company shall agree, if requested by Parent in writing, to commit to take any of the forgoing actions with respect to the assets or business of the Company in furtherance of this Section 8.2; provided, however, that any such action may be conditioned upon the consummation of the Merger and other Transactions contemplated by this Agreement.
Appears in 2 contracts
Sources: Asset Purchase Agreement (American Management Systems Inc), Asset Purchase Agreement (Cgi Group Inc)
Regulatory Filings. (a) Each of Parent and Acquisition Sub (and their respective Affiliates, if applicable), on the one hand, and the Company, on the other hand, shall (x) file with the FTC and the Antitrust Division of the DOJ a Notification and Report Form relating to this Agreement and the transactions contemplated hereby as required by the HSR Act as soon as reasonably practicable from the date following execution and delivery of this Agreement but in no event later than Within ten (10) Business Days following after the execution date hereof, with respect to the Merger, the Contribution and delivery of the other transactions contemplated by this Agreement, and the Parties shall make, or cause to be made, the filing required (yif any) file comparable pre-merger of each of them or post-merger notification filingsany of their respective Subsidiaries or Affiliates under the HSR Act. The Parties hereto shall make, forms and submissions with any foreign Governmental Authority that is required by any or cause to be made, as promptly as practicable, all filings necessary to obtain all Regulatory Approvals other than the HSR Approval or other filings under Antitrust Laws as soon as reasonably practicable from the date following execution and delivery of this Agreement but set forth in no event later than ten (10) Business Days following the execution and delivery of this AgreementSchedule 3.03(b). Each of Parent and the Company shall The Parties hereto shall: (i) cooperate and coordinate with the other Parties in the making of such filings, any filings or submissions that are required to be made under any applicable Laws or requested to be made by any Governmental Entity in connection with the transactions contemplated by this Agreement; (ii) supply the other with respond promptly to any requests for additional information that may be required in order to make such filings, made by any Governmental Entity; (iii) supply any additional information that reasonably may be required or requested by upon the FTCterms and subject to the conditions set forth in this Agreement, the DOJ or the Governmental Authorities of any other jurisdiction in which any such filing is made under any other Antitrust Laws, and (iv) use their reasonable best efforts to take all action necessary to cause the expiration or termination of the any applicable waiting periods under the HSR Act or other Antitrust any applicable Laws as soon as reasonably practicable, and to obtain any required consents under any other Antitrust Laws applicable to the Offer and/or the Merger as soon as practicable, and to avoid any impediment to the consummation of the Offer or the Merger under any Antitrust Laws, including using reasonable best efforts to take all such action as reasonably may be necessary to resolve such objections, if any, as the FTC, the DOJ, or any other Governmental Authority or Person may assert under any applicable Antitrust Laws with respect to the Offer and/or the Merger.
(b) Each of Parent and Acquisition Sub (and their respective Affiliates, if applicable), on the one hand, and the Company, on the other hand, shall promptly inform the other of any communication from any Governmental Authority regarding any of the transactions contemplated by this Agreement in connection with any filings or investigations with, by or before any Governmental Authority relating to this Agreement or the transactions contemplated hereby, including any proceedings initiated by a private party. If any party hereto or Affiliate thereof shall receive a request for additional information or documentary material from any Governmental Authority with respect to the transactions contemplated by this Agreement pursuant to the HSR or any other Antitrust Laws with respect to which any such filings have been made, then such party shall use its reasonable best efforts to make, or cause to be made, as soon as reasonably practicable and after consultation with the other party, an appropriate response in compliance with such request. In connection with and without limiting the foregoing, to the extent reasonably practicable and unless prohibited by applicable Law or by the applicable Governmental Authority, the parties hereto agree to (i) give each other reasonable advance notice of all meetings with any Governmental Authority relating to the Offer or the Merger, (ii) give each other an opportunity to participate in each of such meetings, (iii) keep the other party reasonably apprised with respect to any oral communications with any Governmental Authority regarding the Offer or the Merger, ; (iv) cooperate in provide the filing of any analyses, presentations, memoranda, briefs, arguments, opinions or other written communications explaining or defending the Offer and the Merger, articulating any regulatory or competitive argument and/or responding to requests or objections made by any Governmental Authority, (v) provide each other Parties with a reasonable advance opportunity to review and comment uponon any filing, submission, response to an information request or other (verbal or written) communication to be submitted or made to any Governmental Entity, and such receiving Party shall consider any such received comments in good faith the views of faith; (v) advise the other with respect toParties (and, all where applicable, provide a copy) of any written or oral communications that it receives from any Governmental Entity regarding such filings (including in respect of any analyses, presentations, memoranda, briefs, arguments supplementary filings or submissions) and opinions) otherwise in connection with a Governmental Authority regarding satisfying the Offer and the Merger, Regulatory Approvals; (vi) provide each the other (or counsel of each party, as appropriate) with copies of all written communications to or from any Governmental Authority relating to the Offer or the Merger, and (vii) cooperate and provide each other Party with a reasonable opportunity to participate in any meetings with any Governmental Entity (subject to any opposition by a Governmental Entity to a particular Party’s participation in such meeting) and participate in, and consider in good faith the views of the other with respect toor review, all any material deliberations with respect communication before it is made to all efforts to satisfy the conditions set forth in clauses (A) any Governmental Entity; and (C)(1vii) of Annex A and Section 9.1(c). Any such disclosures, rights to participate or provisions of information by one party furnish to the other may be made on a counsel-only basis to Parties or their outside counsel all information reasonably required or requested in connection with any application or other filing under the extent required under applicable Law or as appropriate to protect confidential business information or the attorney client privilege or attorney work product.
(c) Each rules and regulations of Parent, Acquisition Sub and the Company shall cooperate with one another in good faith to (i) promptly determine whether any filings not contemplated by Section 8.2(a) are required to be or should be made, and whether any other consents, approvals, permits or authorizations not contemplated by Section 8.2(a) are required to be or should be obtained, from any Governmental Authority under any other applicable Law in connection with the transactions contemplated herebyby this Agreement. Notwithstanding the foregoing, (A) each Party has the right to redact or otherwise exclude a Party from receiving any confidential competitively sensitive information required to be shared under this Section 7.02, in which event disclosure of such material may be limited to the other Party’s external counsel, and (iiB) promptly make any filings, furnish information required in connection therewith and seek to obtain timely any such consents, permits, authorizations, approvals or waivers that the parties determine are no Party shall be required to be share with any other Party any documents or should be made information to the extent that such material reveals that Party’s negotiating objectives, strategies, or obtained consideration expectations. The Parties shall not agree to an extension of any waiting period or review being undertaken by a Governmental Entity without the other Party’s prior written consent.
(b) Without limiting the generality of the foregoing, in connection with the efforts referenced in Section 7.02(a) to obtain all necessary consents, approvals, waivers and authorizations of any Governmental Entity required, each Party to this Agreement shall use reasonable best efforts to lift any restraint, injunction or other legal bar to the transactions contemplated hereby.
(d) Notwithstanding anything to the contrary in by this Agreement, in connection including if necessary to obtain clearance by any Governmental Entity before the Outside Date, but subject to the remainder of this Section 7.02(b) (including the limitations set forth below), committing, agreeing or submitting (or offering to commit, agree, or submit) to any consent decree, hold separate order, sale, divestiture, lease, license, transfer, disposal, Encumbrance, other change or restructuring of, or operating restriction with any filing respect to the businesses, properties, product lines, assets, permits, operations, rights, or submission required interest therein of Parent or action to be taken by either Parent its Subsidiaries, or the Company or its Subsidiaries, and any other actions that limit the freedom of action with respect to, or the ability to consummate the Offer and the Mergerretain, in no event shall any business or assets of Parent or its Subsidiaries or the Company or its Subsidiaries (all of the foregoing, a “Divestiture Action” ); provided, that, notwithstanding the foregoing, neither Parent nor any of its Subsidiaries or Affiliates shall be obligated to propose or agree to accept any undertaking or conditionrequired to, to enter into any consent decree, to make any divestiture or accept any operational restriction, or take or commit to take any action (i) the effectiveness or consummation of which is not conditional on the consummation of the Offer and the Merger Company and its Subsidiaries shall not, without the prior written consent of Parent, (x) commit, agree, submit (or (iioffer to commit, agree or submit) that to any Divestiture Action, if doing so would, individually or in the aggregate (x) is or would aggregate, reasonably be expected to be materially adverse material to (with materiality, for purposes of this provision, being measured in relation to the size of 1) Parent and its Subsidiaries or (2) the Company and its Subsidiaries taken (in each case of (1) and (2), as measured on a whole) scale relative to (A) the Company and its Subsidiaries, taken as a whole, or Parent and its Subsidiaries, taken as a whole, either before or after giving effect to the Offer or the Merger, or (B) Parent’s ownership or operation of any material portion of the business or assets of the Company and its Subsidiaries, taken as a whole, or (y) would reasonably be expected to deny Parent the material benefit of the bargains contemplated by the transactions contemplated by this Agreement. The Company shall commit, agree, if requested by Parent in writingor submit (or offer to commit, agree, or submit) to commit to take any of the forgoing actions with respect to the assets or business of the Company in furtherance of this Section 8.2; provided, however, that any such action may be Divestiture Action not conditioned upon on the consummation of the Merger and other Transactions contemplated the Contribution. In addition, each Party shall use its commercially reasonable efforts to defend through litigation on the merits any claim asserted in court by this Agreementany Person in order to avoid entry of, or to have vacated or terminated, any Order (whether temporary, preliminary or permanent) that would prevent the Closing.
Appears in 2 contracts
Sources: Master Transaction Agreement (RTI Surgical Holdings, Inc.), Master Transaction Agreement (Rti Surgical, Inc.)
Regulatory Filings. Each of the parties hereto shall coordinate and cooperate with one another and shall each use best efforts to comply with, and shall each refrain from taking any action that would impede compliance with, all Legal Requirements, and, as promptly as practicable after the date hereof, each of the parties hereto shall make all filings, notices, petitions, statements, registrations, submissions of information, application or submission of other documents required by any Governmental Entity in connection with the Transaction and the transactions contemplated hereby, as well as the Merger and the transactions contemplated in connection therewith, including, without limitation: (a) Each of Parent Notification and Acquisition Sub (and their respective Affiliates, if applicable), on the one hand, and the Company, on the other hand, shall (x) file Report Forms with the FTC United States Federal Trade Commission and the Antitrust Division of the DOJ a Notification and Report Form relating to this Agreement and the transactions contemplated hereby United States Department of Justice as required by the HSR Act (it being understood that Parent shall bear the full cost of the fees relating to such filing), with the Committee on Foreign Investment in the United States as soon as reasonably practicable from may be deemed appropriate under the date following execution and delivery Exon-▇▇▇▇▇▇ Amendment to Section 721 of this Agreement but in no event later than ten the Defense Production Act of 1950, (10b) Business Days following the execution and delivery of this Agreement, and (y) file comparable pre-merger or post-merger notification filings, forms and submissions with any foreign Governmental Authority that is required by any other Antitrust Laws as soon as reasonably practicable from the date following execution and delivery of this Agreement but in no event later than ten (10) Business Days following the execution and delivery of this Agreement. Each of Parent and the Company shall (i) cooperate and coordinate with the other in the making of such filings, (ii) supply the other with any information that may be required in order to make such filings, (iii) supply any additional information that reasonably may be required filing or requested by the FTC, the DOJ or the Governmental Authorities of any other jurisdiction in which any such filing is made under any other Antitrust Laws, and (iv) use reasonable best efforts to take all action registration necessary to cause the expiration or termination of the applicable waiting periods under the HSR Act or other Antitrust Laws as soon as practicable, and to obtain any material consent, authorization or approval or otherwise required consents under any other Antitrust Laws applicable or advisable to consummate the Offer and/or the Merger as soon as practicable, and to avoid any impediment to the consummation of the Offer Transaction or the Merger under any Antitrust Laws, including using reasonable best efforts to take all such action as reasonably may be necessary to resolve such objections, if any, as the FTC, the DOJ, or any other Governmental Authority or Person may assert under any applicable Antitrust Laws with respect to the Offer and/or the Merger.
(b) Each of Parent and Acquisition Sub (and their respective Affiliates, if applicable), on the one hand, and the Company, on the other hand, shall promptly inform the other of any communication from any Governmental Authority regarding any of the transactions contemplated by this Agreement in connection with hereby, or the Merger or any filings or investigations with, by or before any Governmental Authority relating to this Agreement or of the transactions contemplated herebyin connection therewith, including (c) filings under any proceedings initiated other comparable pre-merger notification forms required by a private party. If the merger notification or control laws of any party hereto applicable jurisdiction, as agreed by the parties hereto, and (d) any filings required under the Securities Act, the Exchange Act, any applicable state or Affiliate thereof shall receive a request for additional information securities or documentary material from “blue sky” laws and the securities laws of any Governmental Authority with respect to the transactions contemplated by this Agreement pursuant to the HSR foreign country, or any other Antitrust Laws with respect Legal Requirement relating to which any such filings have been made, then such the Transaction. Each party shall use its reasonable best efforts to make, or cause to be made, as soon as reasonably practicable and after consultation with the other party, an appropriate response in compliance with such request. In connection with and without limiting the foregoing, to the extent reasonably practicable and unless prohibited by applicable Law or by the applicable Governmental Authority, the parties hereto agree to (i) give each other reasonable advance notice of all meetings documents that it is responsible for filing with any Governmental Authority relating Entity under this Section 6.12.1 to the Offer or the Merger, (ii) give each other an opportunity to participate comply in each of such meetings, (iii) keep the other party reasonably apprised with respect to any oral communications with any Governmental Authority regarding the Offer or the Merger, (iv) cooperate in the filing of any analyses, presentations, memoranda, briefs, arguments, opinions or other written communications explaining or defending the Offer and the Merger, articulating any regulatory or competitive argument and/or responding to requests or objections made by any Governmental Authority, (v) provide each other with a reasonable advance opportunity to review and comment upon, and consider in good faith the views of the other with respect to, all written communications (including any analyses, presentations, memoranda, briefs, arguments and opinions) with a Governmental Authority regarding the Offer and the Merger, (vi) provide each other (or counsel of each party, as appropriate) with copies of all written communications to or from any Governmental Authority relating to the Offer or the Merger, and (vii) cooperate and provide each other with a reasonable opportunity to participate in, and consider in good faith the views of the other with respect to, all material deliberations respects with respect to all efforts to satisfy the conditions set forth in clauses (A) and (C)(1) of Annex A and Section 9.1(c). Any such disclosures, rights to participate or provisions of information by one party to the other may be made on a counsel-only basis to the extent required under applicable Law or as appropriate to protect confidential business information or the attorney client privilege or attorney work productLegal Requirements.
(c) Each of Parent, Acquisition Sub and the Company shall cooperate with one another in good faith to (i) promptly determine whether any filings not contemplated by Section 8.2(a) are required to be or should be made, and whether any other consents, approvals, permits or authorizations not contemplated by Section 8.2(a) are required to be or should be obtained, from any Governmental Authority under any other applicable Law in connection with the transactions contemplated hereby, and (ii) promptly make any filings, furnish information required in connection therewith and seek to obtain timely any such consents, permits, authorizations, approvals or waivers that the parties determine are required to be or should be made or obtained in connection with the transactions contemplated hereby.
(d) Notwithstanding anything to the contrary in this Agreement, in connection with any filing or submission required or action to be taken by either Parent or the Company to consummate the Offer and the Merger, in no event shall Parent or any of its Subsidiaries or Affiliates be obligated to propose or agree to accept any undertaking or condition, to enter into any consent decree, to make any divestiture or accept any operational restriction, or take or commit to take any action (i) the effectiveness or consummation of which is not conditional on the consummation of the Offer and the Merger or (ii) that individually or in the aggregate (x) is or would reasonably be expected to be materially adverse (with materiality, for purposes of this provision, being measured in relation to the size of the Company and its Subsidiaries taken as a whole) to (A) the Company and its Subsidiaries, taken as a whole, or Parent and its Subsidiaries, taken as a whole, either before or after giving effect to the Offer or the Merger, or (B) Parent’s ownership or operation of any material portion of the business or assets of the Company and its Subsidiaries, taken as a whole, or (y) would reasonably be expected to deny Parent the material benefit of the bargains contemplated by the transactions contemplated by this Agreement. The Company shall agree, if requested by Parent in writing, to commit to take any of the forgoing actions with respect to the assets or business of the Company in furtherance of this Section 8.2; provided, however, that any such action may be conditioned upon the consummation of the Merger and other Transactions contemplated by this Agreement.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Caci International Inc /De/), Asset Purchase Agreement (Caci International Inc /De/)
Regulatory Filings. (a) Each In furtherance and not in limitation of Parent and Acquisition Sub (and their respective Affiliatesthe foregoing Section 6.3, if applicable), on the one hand, each of Buyer and the Company, on the other hand, shall (x) file with the FTC Sellers undertakes and the Antitrust Division agrees to make or cause to be made an appropriate filing of the DOJ a Notification notification and Report Form relating report form pursuant to this Agreement and the transactions contemplated hereby as required by the HSR Act (the “HSR Filing”) and any other filings pursuant to any other applicable Antitrust Law listed in Section 6.4 of the Company Disclosure Schedule with respect to the Contemplated Transactions (together with the HSR Filing, the “Antitrust Filings”) as soon promptly as reasonably practicable from the date following execution and delivery of this Agreement but in no event later than (provided that any HSR Filings will be made within ten (10) Business Days following from the execution and delivery of this Agreement, and (y) file comparable pre-merger ). Any filing fees associated with the HSR Filing or post-merger notification filings, forms and submissions with any foreign Governmental Authority that is required by any other Antitrust Laws as soon as reasonably practicable from Filings shall be paid by Buyer. Upon the date following execution and delivery Sellers’ request, the Parties shall request early termination of this Agreement but in no event later than ten (10) Business Days following any applicable waiting period under the execution and delivery of this AgreementHSR Act. Each of Parent Buyer and the Company Companies shall (i) cooperate subject to applicable Law and coordinate provided that materials may be redacted as necessary to comply with contractual arrangements and as necessary to address reasonable privilege or confidentiality concerns, furnish to outside antitrust counsel for the other Party as promptly as reasonably practicable all information required for any Antitrust Filing to be made by the other Party pursuant to any applicable Law in connection with the other in the making of such filingsContemplated Transactions, (ii) supply the other with respond as promptly as practicable to any information that may be required in order to make such filings, (iii) supply inquiries received from any additional information that reasonably may be required or requested by the FTC, the DOJ or the Governmental Authorities of any other jurisdiction in which any such filing is made under any other Antitrust Laws, and (iv) use reasonable best efforts to take all action necessary to cause the expiration or termination of the applicable waiting periods under the HSR Act or other Antitrust Laws as soon as practicable, and to obtain any required consents under any other Antitrust Laws applicable to the Offer and/or the Merger as soon as practicable, and to avoid any impediment to the consummation of the Offer or the Merger under any Antitrust Laws, including using reasonable best efforts to take all such action as reasonably may be necessary to resolve such objections, if any, as the FTC, the DOJ, or any other Governmental Authority in connection with such Antitrust Filings or Person may assert under any applicable Antitrust Laws with respect to the Offer and/or the Merger.
(b) Each of Parent and Acquisition Sub (and their respective Affiliates, if applicable), on the one handContemplated Transactions, and the Company, on the other hand, shall (iii) respond as promptly inform the other of as practicable to any communication from any Governmental Authority regarding any of the transactions contemplated by this Agreement in connection with any filings or investigations with, by or before any Governmental Authority relating to this Agreement or the transactions contemplated hereby, including any proceedings initiated by a private party. If any party hereto or Affiliate thereof shall receive a request for additional information or documentary material issued pursuant to the HSR Act or any formal or informal request pursuant to any other applicable Antitrust Law from any Governmental Authority. In furtherance and not in limitation of the foregoing, each of Buyer, Sellers and the Companies shall use its reasonable best efforts to (A) resolve, avoid, or eliminate any impediment or objection, if any, under any Antitrust Law that may be asserted by any Governmental Authority with respect to the transactions contemplated by this Agreement pursuant to the HSR or any other Antitrust Laws with respect to which any such filings have been made, then such party shall use its reasonable best efforts to makeContemplated Transactions, or cause (B) avoid the entry of, effect the dissolution of, and have vacated, lifted, reversed or overturned, any decree, Order or judgment that would prevent, prohibit, restrict or delay the consummation of the Contemplated Transactions, so to be made, as soon as reasonably practicable and after consultation with the other party, an appropriate response in compliance with such request. In connection with and without limiting the foregoing, to the extent reasonably practicable and unless prohibited by applicable Law or by the applicable Governmental Authority, enable the parties hereto agree to close the Contemplated Transactions expeditiously (but in no event after the Termination Date). Notwithstanding anything in this Agreement to the contrary, Buyer and its Affiliates shall have no obligation to, and Sellers, the Companies and the Company Subsidiaries and their respective Affiliates shall not, take any action that, individually or in the aggregate, would reasonably be expected to result in a Burdensome Condition.
(b) Each Party shall (i) give each promptly notify outside antitrust counsel for the other reasonable advance notice Party of all meetings with any material communication to that Party from any Governmental Authority in respect of any Antitrust Filing, investigation, inquiry or other proceeding relating to the Offer Contemplated Transactions and, subject to applicable Law and provided that written materials may be redacted as necessary to comply with contractual arrangements and as necessary to address reasonable privilege or the Mergerconfidentiality concerns, (ii) give each other an opportunity to participate in each of such meetings, (iii) keep discuss with and permit the other party reasonably apprised with respect to any oral communications with any Governmental Authority regarding the Offer or the Merger, (iv) cooperate in the filing of any analyses, presentations, memoranda, briefs, arguments, opinions or other written communications explaining or defending the Offer and the Merger, articulating any regulatory or competitive argument and/or responding to requests or objections made by any Governmental Authority, (v) provide each other with a reasonable advance opportunity Party’s outside antitrust counsel to review and comment uponin advance, and consider in good faith the views other Party’s reasonable comments in connection with any proposed written communication to any of the other foregoing; (ii) not participate or agree to participate in any substantive meeting, telephone call, or discussion with respect to, all written communications (including any analyses, presentations, memoranda, briefs, arguments and opinions) with a Governmental Authority regarding in respect of any Antitrust Filing, investigation or inquiry concerning this Agreement or the Offer Contemplated Transactions unless it consults with the other Party in advance and, to the extent permitted by such Governmental Authority, gives outside antitrust counsel for the other Party the opportunity to attend and participate thereat; (iii) subject to applicable Law and provided that written materials may be redacted as necessary to comply with contractual arrangements and as necessary to address reasonable privilege or confidentiality concerns, furnish outside antitrust counsel for the Merger, (vi) provide each other (or counsel of each party, as appropriate) Party promptly with copies of all written correspondence, filings, and communications to or from (and memoranda setting forth the substance thereof) between such Party and its Affiliates and its Representatives on the one hand, and any Governmental Authority relating or members of its staffs on the other hand, with respect to this Agreement and the Offer or the Merger, Contemplated Transactions; and (viiiv) cooperate and provide each other with a reasonable opportunity to participate in, and consider act in good faith the views of and reasonably cooperate with the other Party and its outside antitrust counsel in connection with respect to, all material deliberations with respect to all efforts to satisfy the conditions set forth in clauses (A) and (C)(1) of Annex A and Section 9.1(c). Any such disclosures, rights to participate or provisions of information by one party to the other may be made on a counsel-only basis to the extent required under applicable Law or as appropriate to protect confidential business information any Antitrust Filings concerning this Agreement or the attorney client privilege Contemplated Transactions and in connection with resolving any investigation or attorney work product.
(c) Each other inquiry of Parent, Acquisition Sub and the Company shall cooperate with one another in good faith to (i) promptly determine whether any filings not contemplated by Section 8.2(a) are required to be or should be made, and whether any other consents, approvals, permits or authorizations not contemplated by Section 8.2(a) are required to be or should be obtained, from any Governmental Authority under the HSR Act or any other applicable Antitrust Law in connection with the transactions contemplated hereby, and (ii) promptly make any filings, furnish information required in connection therewith and seek to obtain timely any such consents, permits, authorizations, approvals or waivers that the parties determine are required to be or should be made or obtained in connection with the transactions contemplated hereby.
(d) Notwithstanding anything to the contrary in this Agreement, in connection with any filing or submission required or action to be taken by either Parent or the Company to consummate the Offer and the Merger, in no event shall Parent or any of its Subsidiaries or Affiliates be obligated to propose or agree to accept any undertaking or condition, to enter into any consent decree, to make any divestiture or accept any operational restriction, or take or commit to take any action (i) the effectiveness or consummation of which is not conditional on the consummation of the Offer and the Merger or (ii) that individually or in the aggregate (x) is or would reasonably be expected to be materially adverse (with materiality, for purposes of this provision, being measured in relation to the size of the Company and its Subsidiaries taken as a whole) to (A) the Company and its Subsidiaries, taken as a whole, or Parent and its Subsidiaries, taken as a whole, either before or after giving effect to the Offer or the Merger, or (B) Parent’s ownership or operation of any material portion of the business or assets of the Company and its Subsidiaries, taken as a whole, or (y) would reasonably be expected to deny Parent the material benefit of the bargains contemplated by the transactions contemplated by this Agreement. The Company shall agree, if requested by Parent in writing, to commit to take any of the forgoing actions with respect to the assets or business of the Company in furtherance of this Section 8.2; provided, however, that any such action may be conditioned upon Antitrust Filing or the consummation of the Merger and other Transactions contemplated by this AgreementContemplated Transactions.
Appears in 2 contracts
Sources: Equity Purchase Agreement (Esco Technologies Inc), Equity Purchase Agreement (Sonoco Products Co)
Regulatory Filings. (a) Each of Parent and Acquisition Merger Sub (shall, and shall cause their respective AffiliatesAffiliates to, if applicable), on the one hand, and the Company, on the other hand, shall (x) file with the FTC and the Antitrust Division of the DOJ a Notification and Report Form relating to this Agreement and the transactions contemplated hereby as required by the HSR Act Act, as soon as reasonably practicable from after the date following execution and delivery of this Agreement but in no event later than ten (10) Business Days following the execution and delivery of this Agreement, Agreement and (y) file comparable any pre-merger or post-merger notification filings, forms and submissions with any foreign Governmental Authority that is required by any other applicable Antitrust Laws as soon as reasonably practicable from after the date following execution and delivery of this Agreement but and in no any event later than ten (10) Business Days following before the execution and delivery expiration of this Agreementany applicable legal deadline. Each of Parent and the Company shall (i) cooperate and coordinate with the other in the making of such filings, (ii) supply the other with any information that may be required in order to make such filings, (iii) supply any additional information that reasonably may be required or requested by the FTC, the DOJ or the Governmental Authorities of any other applicable jurisdiction in which any such notification filing is required to be made under any other Antitrust Laws, and (iv) use reasonable best efforts to take all action necessary to cause the expiration or termination of the applicable waiting periods under the HSR Act or other Antitrust Laws as soon as practicable, and to obtain any required consents under any other Antitrust Laws applicable to the Offer and/or the Merger as soon as practicable, and to avoid any impediment to the consummation of the Offer or the Merger under any Antitrust Laws, including using reasonable best efforts to take all such action as reasonably may be necessary to resolve such objections, if any, as the FTC, the DOJ, or any other Governmental Authority or Person may assert under any applicable Antitrust Laws with respect to the Offer and/or the Merger.
(b) Parent and/or its Affiliates shall execute and deliver an undertaking in customary form in favor of the OCS to comply with applicable Law (if and when required to do so).
(c) Each of Parent and Acquisition Merger Sub (shall, and shall cause their respective AffiliatesAffiliates to, if applicable), on the one hand, and the Company, on the other hand, shall promptly inform the other of any communication from any Governmental Authority regarding any of the transactions contemplated by this Agreement in connection with any filings or investigations with, by or before any Governmental Authority relating to this Agreement or the transactions contemplated hereby, including any proceedings initiated by a private party. If any party hereto or Affiliate thereof shall receive a request for additional information or documentary material from any Governmental Authority with respect to the transactions contemplated by this Agreement pursuant to the HSR or any other Antitrust Laws with respect to which any such filings that have been made, then such party shall use its reasonable best efforts to make, or cause to be made, as soon as reasonably practicable and after consultation with the other party, an appropriate response in compliance with such request. In connection with and without limiting the foregoing, to the extent reasonably practicable and unless prohibited by applicable Law or by the applicable Governmental Authority, the parties hereto agree to (i) give each other reasonable advance notice of all meetings with any Governmental Authority relating to the Offer or the Merger, (ii) give each other an opportunity to participate in each of such meetings, (iii) keep the other party reasonably apprised with respect to any oral communications with any Governmental Authority regarding the Offer or the Merger, (iv) cooperate in the filing of any analyses, presentations, memoranda, briefs, arguments, opinions or other written communications explaining or defending the Offer and the Merger, articulating any regulatory or competitive argument and/or responding to requests or objections made by any Governmental Authority, (v) provide each other with a reasonable advance opportunity to review and comment upon, and consider in good faith the views of the other with respect to, all written communications (including any analyses, presentations, memoranda, briefs, arguments and opinions) with a Governmental Authority regarding the Offer and the Merger, (vi) provide each other (or counsel of each party, as appropriate) with copies of all written communications to or from any Governmental Authority relating to the Offer or the Merger, and (vii) cooperate and provide each other with a reasonable opportunity to participate in, and consider in good faith the views of the other with respect to, all material deliberations with respect to all efforts to satisfy the conditions set forth in clauses (A) and (C)(1) of Annex A and Section 9.1(cSection 8.1(b). Any such disclosures, rights to participate or provisions of information by one party to the other may be made on a counsel-only basis to the extent required under applicable Law or as appropriate to protect confidential business information or the attorney client privilege or attorney work productinformation.
(cd) Each of Parent, Acquisition Merger Sub and the Company shall cooperate with one another in good faith to (i) promptly determine whether any filings not contemplated by Section 8.2(a) are required to be or should be made, and whether any other consents, approvals, permits or authorizations not contemplated by Section 8.2(aSection 7.2(a) are required to be or should be obtained, from any Governmental Authority under any other applicable Law in connection with the transactions contemplated hereby, and (ii) promptly make any filings, furnish information required in connection therewith and seek to obtain timely any such consents, permits, authorizations, approvals or waivers that the parties determine are required to be or should be made or obtained in connection with the transactions contemplated hereby.
(de) Notwithstanding anything in this Agreement to the contrary in this Agreementcontrary, each of Parent and the Company agrees, and shall cause each of its Affiliates, to take any and all reasonable actions necessary to obtain any consents, clearances or approvals required under or in connection with any filing applicable Law (including Antitrust Law), and to enable all waiting periods under any applicable Law (including Antitrust Law) to expire, and to avoid or submission required eliminate each and every impediment under any applicable Law (including Antitrust Law) asserted by any Governmental Authority, in each case, to cause the Merger and the other transactions contemplated hereby to occur as soon as practicable and in any event prior to the Outside Date, including but not limited to (i) promptly complying with or action to be taken modifying any requests for additional information (including any second request) by either Parent any Governmental Authority, (ii) contesting, defending and appealing any threatened or pending preliminary or permanent injunction or other order, decree or ruling or statute, rule, regulation or executive order that would adversely affect the Company ability of any party hereto to consummate the Offer transactions contemplated hereby and taking any and all other actions to prevent the entry, enactment or promulgation thereof. From and after the date hereof and until all Approvals by Governmental Authorities required in connection with the Merger and the Mergerother transactions contemplated hereby have been obtained, each of the Company and Parent shall not, and shall cause its Affiliates not to, operate their respective businesses in no event shall Parent or any of its Subsidiaries or Affiliates be obligated to propose or agree to accept any undertaking or condition, to enter into any consent decree, to make any divestiture or accept any operational restriction, such manner or take or commit to take any action (i) the effectiveness or consummation of which is not conditional on the consummation of the Offer and the Merger or (ii) action, that individually or in the aggregate (x) is or would reasonably be expected to be materially adverse increase in any material respect the risk of not obtaining any such governmental Approval.
(with materialityf) Without limiting the provisions of Section 7.2(e) above, for purposes Parent and Merger Sub agree that between the date hereof and the Effective Time (or the earlier termination of this provisionAgreement pursuant to Article IX), being measured each of Parent and Merger Sub shall not, and shall not permit any of its Affiliates to, acquire or agree to acquire by merging or consolidating with, or by purchasing a substantial portion of the assets of or equity in, or by any other manner, any business or any Person or other business organization or division thereof, or otherwise acquire or agree to acquire any assets if such business or Person competes in relation to the size any line of business of the Company and its Subsidiaries taken as if the entering into of a whole) definitive agreement relating to (A) the Company and its Subsidiaries, taken as a whole, or Parent and its Subsidiaries, taken as a whole, either before or after giving effect to the Offer or the Mergerconsummation of such acquisition, merger or (B) Parent’s ownership or operation of any material portion of the business or assets of the Company and its Subsidiaries, taken as a whole, or (y) consolidation would reasonably be expected to deny Parent (i) impose any delay in the material benefit obtaining of, or increase the risk of not obtaining, any authorizations, consents, orders, declarations or approvals of any Governmental Authority necessary to consummate the bargains transactions contemplated by this Agreement or the expiration or termination of any applicable waiting period, (ii) increase the risk of any Governmental Authority entering an order prohibiting the consummation of the transactions contemplated by this Agreement. The Company shall agree, if requested by Parent in writing, (iii) increase the risk of not being able to commit to take any of the forgoing actions with respect to the assets or business of the Company in furtherance of this Section 8.2; provided, however, that remove any such action may be conditioned upon order on appeal or otherwise or (iv) delay or prevent the consummation of the Merger and or the other Transactions contemplated by this Agreement.
(g) Nothing in this Agreement shall require Parent, the Surviving Company or any other subsidiary of Parent to sell, hold separate, license or otherwise dispose of any assets or conduct their business in a specified manner, or agree or propose to sell, hold separate, license or otherwise dispose of any assets or conduct their business in a specified manner, or permit or agree to the sale, holding separate, licensing or other disposition of, any assets of Parent, the Surviving Company or any other subsidiary of Parent or the Company, whether as a condition to obtaining any approval from, or to avoid potential litigation or administrative action by, a Governmental Authority or any other person or for any other reason.
Appears in 2 contracts
Sources: Merger Agreement (Lumenis LTD), Merger Agreement (Lumenis LTD)
Regulatory Filings. (a) Each of Parent and Acquisition Sub (and their respective AffiliatesThe Buyer, the Company and, if applicable, the Sellers shall file as soon as practicable all filings and submissions required under any Laws applicable to such parties with respect to the consummation of the transaction contemplated by this Agreement (including in particular compliance with the HSR Act and similar EU regulation). Company shall pay any antitrust or competition-related filing fees required to be paid to a Governmental Authority, including fees due under the HSR Act and similar EU competition regulations, up to a maximum of two hundred thousand dollars ($200,000) (such amounts paid by the Company, the “Filing Fees”), on after which Buyer shall pay any excess filing fees; provided, that unless the one handtransactions contemplated herein are not consummated as a result of a knowing breach by the Company of the representations and warranties set forth in Article III, a knowing breach by a Seller of the representations and warranties set forth in Article IV or a willful breach by the Company or a Seller of the covenants set forth in Article VI, Buyer shall reimburse Company for the Filing Fees. Buyer and Sellers shall share equally the cost of any other required filings and submissions. Buyer shall bear its antitrust compliance costs including all filing fees and attorney fees. The Buyer and the Sellers shall, and the Company, on the other hand, Sellers shall (x) file with the FTC and the Antitrust Division of the DOJ a Notification and Report Form relating exercise commercially reasonable efforts to this Agreement and the transactions contemplated hereby as required by the HSR Act as soon as reasonably practicable from the date following execution and delivery of this Agreement but in no event later than ten (10) Business Days following the execution and delivery of this Agreement, and (y) file comparable pre-merger or post-merger notification filings, forms and submissions with any foreign Governmental Authority that is required by any other Antitrust Laws as soon as reasonably practicable from the date following execution and delivery of this Agreement but in no event later than ten (10) Business Days following the execution and delivery of this Agreement. Each of Parent and cause the Company shall to, (i) coordinate and cooperate and coordinate with the each other in exchanging such information and assistance as may reasonably be required in connection with all of the making of such filingsforegoing filings and submissions, (ii) supply the other with respond as promptly as practicable to any inquiries or requests received from any Governmental Authority for additional information that may be required in order to make such filingsor documentation, (iii) supply not enter into any additional information that reasonably may agreement with any Governmental Authority to delay or not to consummate the transactions, except with the prior consent of the other party, which consent shall not be required unreasonably withheld, conditioned or requested by the FTCdelayed, the DOJ or the Governmental Authorities of any other jurisdiction in which any such filing is made under any other Antitrust Laws, and (iv) use reasonable best efforts make any further filings or information submissions pursuant thereto that may be reasonably necessary or advisable and (v) promptly make any filings or submissions required under any applicable foreign antitrust or trade regulation Law so as to take all action necessary to cause the expiration or obtain an early termination of the any applicable waiting periods period under the HSR Act or other Antitrust Laws as soon as practicable, and similar EU regulation. The Buyer shall use its commercially reasonable efforts to obtain any required consents avoid or eliminate impediments under any other Antitrust Laws applicable to the Offer and/or the Merger as soon as practicableantitrust, and to avoid any impediment to the consummation of the Offer competition, or the Merger under any Antitrust Laws, including using reasonable best efforts to take all such action as reasonably trade regulation Law that may be necessary to resolve such objections, if any, as the FTC, the DOJ, or any other Governmental Authority or Person may assert under any applicable Antitrust Laws with respect to the Offer and/or the Merger.
(b) Each of Parent and Acquisition Sub (and their respective Affiliates, if applicable), on the one hand, and the Company, on the other hand, shall promptly inform the other of any communication from any Governmental Authority regarding any of the transactions contemplated asserted by this Agreement in connection with any filings or investigations with, by or before any Governmental Authority relating to this Agreement or the transactions contemplated hereby, including any proceedings initiated by a private party. If any party hereto or Affiliate thereof shall receive a request for additional information or documentary material from any Governmental Authority with respect to the transactions contemplated by this Agreement pursuant in order to enable the Closing to occur as promptly as reasonably practicable. The Buyer and Sellers shall (i) promptly notify the other party of any written communication to that party or its Affiliates from any Governmental Authority related to this Agreement or the transactions contemplated by this Agreement and, subject to applicable Law, permit the other party to review in advance any proposed written communication to any of the foregoing, (ii) not agree to participate, or to permit its Affiliates to participate, in any substantive meeting or discussion with any Governmental Authority in respect of any filings, investigation or inquiry concerning the transactions contemplated hereby unless it consults with the other party in advance and, to the HSR or extent permitted by such Governmental Authority, gives the other party the opportunity to attend and participate thereat, and (iii) to the extent permitted under applicable Law, furnish the other party with copies of all correspondence, filings, and communications (and memoranda setting forth the substance thereof) between such party and its Affiliates and, in the case of the Buyer, Buyer’s Representatives, on the one hand, and any Governmental Authority, on the other Antitrust Laws hand, with respect to which this Agreement and the transactions contemplated hereby (unless the furnishing of such information would (1) violate the provisions of any such filings have been madeapplicable Laws (including those relating to security clearance or export controls) or any confidentiality agreement or (2) cause the loss of the attorney-client privilege with respect thereto); provided, then that each such party shall use its reasonable best efforts to make, or cause promptly communicate to be made, as soon as reasonably practicable and after consultation with the other party, an appropriate response in compliance with such request. In connection with and without limiting the foregoing, to the extent reasonably practicable and unless prohibited by applicable Law or by the applicable Governmental Authority, the parties hereto agree to (i) give each other reasonable advance notice of all meetings with any Governmental Authority relating to the Offer or the Merger, (ii) give each other an opportunity to participate in each of such meetings, (iii) keep the other party reasonably apprised the substance of any such communication, whether by redacting parts of such material communication or otherwise, so that such communication would not violate applicable Laws or cause the loss of the attorney-client privilege with respect to any oral communications with any Governmental Authority regarding the Offer or the Merger, (iv) cooperate in the filing of any analyses, presentations, memoranda, briefs, arguments, opinions or other written communications explaining or defending the Offer and the Merger, articulating any regulatory or competitive argument and/or responding to requests or objections made by any Governmental Authority, (v) provide each other with a reasonable advance opportunity to review and comment upon, and consider in good faith the views of the other with respect to, all written communications (including any analyses, presentations, memoranda, briefs, arguments and opinions) with a Governmental Authority regarding the Offer and the Merger, (vi) provide each other (or counsel of each party, as appropriate) with copies of all written communications to or from any Governmental Authority relating to the Offer or the Merger, and (vii) cooperate and provide each other with a reasonable opportunity to participate in, and consider in good faith the views of the other with respect to, all material deliberations with respect to all efforts to satisfy the conditions set forth in clauses (A) and (C)(1) of Annex A and Section 9.1(c). Any such disclosures, rights to participate or provisions of information by one party to the other may be made on a counsel-only basis to the extent required under applicable Law or as appropriate to protect confidential business information or the attorney client privilege or attorney work productthereto.
(c) Each of Parent, Acquisition Sub and the Company shall cooperate with one another in good faith to (i) promptly determine whether any filings not contemplated by Section 8.2(a) are required to be or should be made, and whether any other consents, approvals, permits or authorizations not contemplated by Section 8.2(a) are required to be or should be obtained, from any Governmental Authority under any other applicable Law in connection with the transactions contemplated hereby, and (ii) promptly make any filings, furnish information required in connection therewith and seek to obtain timely any such consents, permits, authorizations, approvals or waivers that the parties determine are required to be or should be made or obtained in connection with the transactions contemplated hereby.
(d) Notwithstanding anything to the contrary in this Agreement, in connection with any filing or submission required or action to be taken by either Parent or the Company to consummate the Offer and the Merger, in no event shall Parent or any of its Subsidiaries or Affiliates be obligated to propose or agree to accept any undertaking or condition, to enter into any consent decree, to make any divestiture or accept any operational restriction, or take or commit to take any action (i) the effectiveness or consummation of which is not conditional on the consummation of the Offer and the Merger or (ii) that individually or in the aggregate (x) is or would reasonably be expected to be materially adverse (with materiality, for purposes of this provision, being measured in relation to the size of the Company and its Subsidiaries taken as a whole) to (A) the Company and its Subsidiaries, taken as a whole, or Parent and its Subsidiaries, taken as a whole, either before or after giving effect to the Offer or the Merger, or (B) Parent’s ownership or operation of any material portion of the business or assets of the Company and its Subsidiaries, taken as a whole, or (y) would reasonably be expected to deny Parent the material benefit of the bargains contemplated by the transactions contemplated by this Agreement. The Company shall agree, if requested by Parent in writing, to commit to take any of the forgoing actions with respect to the assets or business of the Company in furtherance of this Section 8.2; provided, however, that any such action may be conditioned upon the consummation of the Merger and other Transactions contemplated by this Agreement.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Pendrell Corp), Stock Purchase Agreement (Pendrell Corp)
Regulatory Filings. (a) Each of Parent The Company and Acquisition Sub (and their respective Affiliates, if applicable), on the one handSeller shall, and the Companyshall cause their Affiliates to, on the other hand, shall (x) file with the FTC and the Antitrust Division of the DOJ a Notification and Report Form relating to this Agreement and the transactions contemplated hereby as required by the HSR Act as soon as reasonably practicable from the date following execution and delivery of this Agreement but in no event later than ten (10) Business Days following the execution and delivery of this Agreement, and (y) file comparable pre-merger or post-merger notification filings, forms and submissions with any foreign Governmental Authority that is required by any other Antitrust Laws as soon as reasonably practicable from the date following execution and delivery of this Agreement but in no event later than ten (10) Business Days following the execution and delivery of this Agreement. Each of Parent and the Company shall (i) cooperate promptly make or cause to be made all filings and coordinate with the other in the making of such filings, (ii) supply the other with any information that may submissions required to be required in order to make such filings, (iii) supply any additional information that reasonably may be required or requested by the FTC, the DOJ or the Governmental Authorities of any other jurisdiction in which any such filing is made under any other Antitrust Laws, and (iv) use reasonable best efforts to take all action necessary to cause the expiration or termination of the applicable waiting periods under the HSR Act or other Antitrust Laws as soon as practicable, and to obtain any required consents under any other Antitrust Laws applicable to the Offer and/or Company and the Merger as soon as practicable, and to avoid any impediment to Seller for the consummation of the Offer or the Merger under any Antitrust Laws, including using reasonable best efforts to take all such action as reasonably may be necessary to resolve such objections, if any, as the FTC, the DOJ, or any other Governmental Authority or Person may assert under any applicable Antitrust Laws with respect to the Offer and/or the Merger.
(b) Each of Parent and Acquisition Sub (and their respective Affiliates, if applicable), on the one hand, and the Company, on the other hand, shall promptly inform the other of any communication from any Governmental Authority regarding any of the transactions contemplated by this Agreement Agreement, (ii) coordinate and cooperate with the Purchaser in exchanging such information and providing such assistance as the Purchaser may reasonably request in connection with all of the foregoing, and (iii) (A) supply promptly any filings or investigations with, by or before any Governmental Authority relating to this Agreement or the transactions contemplated hereby, including any proceedings initiated by a private party. If any party hereto or Affiliate thereof shall receive a request for additional information or and documentary material from that may be requested in connection with such filings, (B) make any Governmental Authority further filings pursuant thereto that may be necessary, proper or advisable in connection therewith and (C) use commercially reasonable efforts to take all actions necessary to obtain all required clearances.
(b) As soon as practicable following the date hereof (and with respect to the transactions contemplated by this Agreement pursuant to Seller HSR Filing, within five days), the HSR or any other Antitrust Laws with respect to which any such filings have been made, then such party Company and the Seller shall use its reasonable best efforts to make, make or cause to be made, as soon as reasonably practicable made all filings and after consultation submissions under the HSR Act (the “Seller HSR Filing”) and any other material Laws or regulations applicable to the transactions contemplated herein. The Company and the Seller shall coordinate and cooperate with the other party, an appropriate response Purchaser in compliance with exchanging such request. In information and providing such assistance as the Purchaser may reasonably request in connection with and without limiting all of the foregoing, to . The Company shall be responsible for one half of all filing fees under the extent reasonably practicable HSR Act. The Company and unless prohibited by applicable Law or by Seller shall at the time of making the Seller HSR Filing request early termination of the applicable Governmental Authority, the parties hereto agree to (i) give each other reasonable advance notice of all meetings with any Governmental Authority relating to the Offer or the Merger, (ii) give each other an opportunity to participate in each of such meetings, (iii) keep the other party reasonably apprised with respect to any oral communications with any Governmental Authority regarding the Offer or the Merger, (iv) cooperate in the filing of any analyses, presentations, memoranda, briefs, arguments, opinions or other written communications explaining or defending the Offer and the Merger, articulating any regulatory or competitive argument and/or responding to requests or objections made by any Governmental Authority, (v) provide each other with a reasonable advance opportunity to review and comment upon, and consider in good faith the views of the other with respect to, all written communications (including any analyses, presentations, memoranda, briefs, arguments and opinions) with a Governmental Authority regarding the Offer and the Merger, (vi) provide each other (or counsel of each party, as appropriate) with copies of all written communications to or from any Governmental Authority relating to the Offer or the Merger, and (vii) cooperate and provide each other with a reasonable opportunity to participate in, and consider in good faith the views of the other with respect to, all material deliberations with respect to all efforts to satisfy the conditions set forth in clauses (A) and (C)(1) of Annex A and Section 9.1(c). Any such disclosures, rights to participate or provisions of information by one party to the other may be made on a counsel-only basis to the extent required under applicable Law or as appropriate to protect confidential business information or the attorney client privilege or attorney work productpremerger waiting period.
(c) Each of Parent, Acquisition Sub The Company and the Company shall cooperate Seller will each provide the Purchaser with one another in good faith to prompt notice of any communication (iwhether written or oral) promptly determine whether any filings not contemplated received by Section 8.2(a) are required to be or should be made, and whether any other consents, approvals, permits or authorizations not contemplated by Section 8.2(a) are required to be or should be obtained, it from any Governmental Authority under any other applicable Law in connection with the transactions contemplated hereby, and (ii) promptly make any filings, furnish information required in connection therewith and seek to obtain timely any such consents, permits, authorizations, approvals or waivers that the parties determine are required to be or should be made or obtained in connection with the transactions contemplated hereby.
(d) Notwithstanding anything to the contrary in this Agreement, in connection with any filing or submission required or action to be taken by either Parent or the Company to consummate the Offer and the Merger, in no event shall Parent or any of its Subsidiaries or Affiliates be obligated to propose or agree to accept any undertaking or condition, to enter into any consent decree, to make any divestiture or accept any operational restriction, or take or commit to take any action (i) the effectiveness or consummation of which is not conditional on the consummation of the Offer and the Merger or (ii) that individually or in the aggregate (x) is or would reasonably be expected to be materially adverse (with materiality, for purposes of this provision, being measured in relation to the size of the Company and its Subsidiaries taken as a whole) to (A) the Company and its Subsidiaries, taken as a whole, or Parent and its Subsidiaries, taken as a whole, either before or after giving effect to the Offer or the Merger, or (B) Parent’s ownership or operation of any material portion of the business or assets of the Company and its Subsidiaries, taken as a whole, or (y) would reasonably be expected to deny Parent the material benefit of the bargains contemplated by the transactions contemplated by this Agreement. The Company shall agree, if requested by Parent in writing, to commit to take any of the forgoing actions Entity with respect to the assets foregoing, consult with the Purchaser prior to providing any additional information to or business otherwise communicating (whether in written or oral form) with any Governmental Entity with respect to the foregoing, and incorporate the reasonable comments of the Company Purchaser in furtherance of this Section 8.2; provided, however, that connection with providing any such action may be conditioned upon additional information to or otherwise communicating (whether in written or oral form) with any Governmental Entity with respect to the consummation of the Merger and other Transactions contemplated by this Agreementforegoing.
Appears in 2 contracts
Sources: Stock Purchase Agreement, Stock Purchase Agreement (Amag Pharmaceuticals Inc.)
Regulatory Filings. (a) Each of Parent and Acquisition Merger Sub (and their respective Affiliates, if applicable), on the one hand, and the Company, on the other hand, shall cooperate with one another in good faith to (xi) file promptly determine where any filings under Antitrust Laws are required to be or should be made, and whether any other consents, approvals, permits or authorizations are required to be or should be obtained, from any Governmental Authority under an Antitrust Law or any other applicable Law in connection with the FTC and the Antitrust Division of the DOJ a Notification and Report Form relating to this Agreement and the transactions contemplated hereby as required by the HSR Act as soon as reasonably practicable from the date following execution and delivery of this Agreement but in no event later than ten (10) Business Days following the execution and delivery of this Agreement, and (y) file comparable pre-merger or post-merger notification filings, forms and submissions with any foreign Governmental Authority that is required by any other Antitrust Laws as soon as reasonably practicable from the date following execution and delivery of this Agreement but in no event later than ten (10) Business Days following the execution and delivery of this Agreement. Each of Parent and the Company shall (i) cooperate and coordinate with the other in the making of such filingshereby, (ii) supply the other with promptly make any such filings and furnish information that may be required in order to make such filingsconnection therewith, including filing any notification required under any Antitrust Law as promptly as practicable after the date of this Agreement; (iii) supply provide or cause to be provided as promptly as reasonably practicable to any additional Governmental Authority information that reasonably may be required or and documents requested by such Governmental Authority to permit consummation of the FTC, transactions under the DOJ or the Governmental Authorities of any other jurisdiction in which any such filing is made under any other applicable Antitrust Laws, Law; and (iv) use reasonable best efforts otherwise seek to take all action necessary obtain timely any consents, permits, authorizations, approvals or waivers that are required to cause be obtained in connection with the expiration or termination transactions contemplated hereby.
(b) In furtherance and not in limitation of the applicable waiting periods under the HSR Act or other Antitrust Laws as soon as practicableforegoing, if and to obtain any required consents under any other Antitrust Laws applicable to the Offer and/or the Merger as soon as practicable, and extent necessary to avoid any impediment to the consummation of the Offer or the Merger Closing under any Antitrust LawsLaw, including using reasonable best efforts to take all such action as reasonably may be necessary to resolve such objections, if any, as the FTC, the DOJ, or any other Governmental Authority or Person may assert under any applicable Antitrust Laws with respect to the Offer and/or the Merger.
(b) Each each of Parent and Acquisition Merger Sub (and their respective Affiliates, if applicable), on the one hand, and the Company, on the other hand, shall use reasonable best efforts to obtain any consent, authorization, approval, order, waiting period expiration or termination, or exemption by, any Governmental Authority, as soon as practicable, and to prevent the entry, enactment, or promulgation of any preliminary or permanent injunction or other order, decree, or ruling that would adversely affect the ability of the parties to consummate the Merger and the other transactions contemplated herein, including by offering, negotiating, committing to and effecting, by consent decree, hold separate order or otherwise, (i) the sale, divestiture, license or other disposition of any and all of the capital stock or other equity or voting interest, assets (whether tangible or intangible), rights, products or businesses of the Company and its Subsidiaries, and (ii) any other restrictions on the activities of the Company and its Subsidiaries; provided, however, notwithstanding anything in this Agreement to the contrary (including Section 7.1 and any other provision of this Section 7.2), neither Parent nor any of its Subsidiaries shall be required to take (and, for the avoidance of doubt, except as expressed requested in writing by Parent, neither the Company nor any of its Subsidiaries shall take) any actions or commit or propose any actions, including offering, negotiating, committing to, effecting, or accepting any of the actions specified above in this Section 7.2(b), if any such action (or the result of any such action), individually or collectively, would reasonably be expected to be adverse to the business, operations or financial condition of the Company, Parent or any of their respective Subsidiaries, other than any such action (or the result thereof, as applicable) that Parent reasonably determines to be immaterial (with materiality for purposes of this provision measured in relation to the Company); provided, further, that notwithstanding anything in this Agreement to the contrary (including Section 7.1 and any other provision of this Section 7.2), the Company shall not be required to (A) take any actions which would bind the Company or its Subsidiaries in respect of any matter if the Closing does not occur or (B) make any out of pocket expenditures of more than a de minimis amount or incur any other non-de minimis obligations or liabilities (in each case under clause (B), which are not promptly reimbursed by Parent) prior to the Closing, in each case, in order to comply with the provisions of this Section 7.2(b).
(c) Each of Parent and Merger Sub, on the one hand, and the Company and its Subsidiaries, on the other hand, shall promptly inform the other of any material communication from any Governmental Authority regarding any of the transactions contemplated by this Agreement in connection with any filings or investigations with, by or before any Governmental Authority relating to this Agreement or the transactions contemplated hereby, including any proceedings initiated by a private party. If any party hereto or Affiliate Subsidiary thereof shall receive a request for additional information or documentary material from any Governmental Authority with respect to the transactions contemplated by this Agreement pursuant to the HSR or any other Antitrust Laws with respect to which any such filings that have been made, then such party shall use its reasonable best efforts to make, or cause to be made, as soon as reasonably practicable and after consultation with the other party, an appropriate response in compliance with such request. In connection with and without limiting the foregoing, to the extent reasonably practicable and unless prohibited by applicable Law or by the applicable Governmental Authority, the parties hereto agree to (i) give each other reasonable advance notice of all meetings with any Governmental Authority relating to the Offer or the Merger, (ii) give each other an opportunity to participate in each of such meetings, (iii) keep the other party reasonably apprised with respect to any material oral communications with any Governmental Authority regarding the Offer or the Merger, (iv) cooperate in the filing of any analyses, presentations, memoranda, briefs, arguments, opinions or other written communications explaining or defending the Offer and the Merger, articulating any regulatory or competitive argument and/or responding to requests or objections made by any Governmental Authority, (v) provide each other with a reasonable advance opportunity to review and comment upon, and consider in good faith the views of the other with respect to, all written communications (including any analyses, presentations, memoranda, briefs, arguments and opinionsopinions and a complete copy of any filing with any Governmental Authority) with a Governmental Authority regarding the Offer and the Merger, (vi) provide each other (or counsel of each party, as appropriate) with copies of all written communications to or from any Governmental Authority relating to the Offer or the Merger, and (vii) cooperate and provide each other with a reasonable opportunity to participate in, and consider in good faith the views of the other with respect to, all material deliberations with respect to all efforts to satisfy the conditions set forth in clauses (A) and (C)(1) of Annex A and Section 9.1(c8.1(b). Any such disclosuresNotwithstanding anything in the foregoing to the contrary, rights to participate the parties may, as they deem advisable and necessary, redact or provisions of information by one party otherwise limit their disclosures to the other may be made on a counsel-only basis parties (1) to remove references concerning the extent required under applicable Law or as appropriate to protect confidential business information or the attorney client privilege or attorney work product.
(c) Each valuation of Parent, Acquisition Sub and the Company shall cooperate or other competitively sensitive information, (2) as necessary to comply with one another in good faith to (i) promptly determine whether any filings not contemplated by Section 8.2(a) are required to be contractual arrangements or should be made, and whether any other consents, approvals, permits or authorizations not contemplated by Section 8.2(a) are required to be or should be obtained, from any Governmental Authority under any other applicable Law in connection with the transactions contemplated herebyregulatory requirements, and (ii3) promptly make as necessary to address reasonable attorney-client or other privilege or confidentiality concerns. The parties may also designate any filingscompetitively sensitive materials provided to the other under this Section 7.2(c) as “outside counsel only,” in which case such materials and the information contained therein shall be given only to outside counsel of the recipient and will not be disclosed by such outside counsel to employees, furnish information required in connection therewith and seek to obtain timely any officers, or directors of the recipient without the advance written consent of the party providing such consents, permits, authorizations, approvals or waivers that the parties determine are required to be or should be made or obtained in connection with the transactions contemplated herebymaterials.
(d) Notwithstanding anything to From and after the contrary in this Agreement, date hereof and until all Approvals by Governmental Authorities required in connection with any filing or submission required or action to be taken by either Parent or the Merger and the other transactions contemplated hereby have been obtained, each of the Company to consummate the Offer and the MergerParent shall not, and shall cause its respective Subsidiaries not to, operate its respective businesses in no event shall Parent such manner or any of its Subsidiaries or Affiliates be obligated to propose or agree to accept any undertaking or condition, to enter into any consent decree, to make any divestiture or accept any operational restriction, or take or commit to take any action (i) the effectiveness including material acquisitions or consummation of which is not conditional on the consummation of the Offer and the Merger or (ii) investments), that individually or in the aggregate (x) is or would reasonably be expected to be materially adverse (with materiality, for purposes of this provision, being measured increase in relation to the size of the Company and its Subsidiaries taken as a whole) to (A) the Company and its Subsidiaries, taken as a whole, or Parent and its Subsidiaries, taken as a whole, either before or after giving effect to the Offer or the Merger, or (B) Parent’s ownership or operation of any material portion respect the risk of the business or assets of the Company and its Subsidiaries, taken as a whole, or (yi) would reasonably be expected to deny Parent the material benefit of the bargains contemplated by the transactions contemplated by this Agreement. The Company shall agree, if requested by Parent in writing, to commit to take any of the forgoing actions with respect to the assets or business of the Company in furtherance of this Section 8.2; provided, however, that not obtaining any such action may be conditioned upon governmental Approval such that the consummation of the Merger and other Transactions contemplated by this Agreementwould be delayed beyond the Outside Date or (ii) any Governmental Authority of competent jurisdiction entering an order permanently prohibiting the consummation of the Merger.
Appears in 2 contracts
Sources: Merger Agreement (Enzymotec Ltd.), Merger Agreement (Frutarom LTD)
Regulatory Filings. (a) Each of Parent and Acquisition Sub (and their respective Affiliates, if applicable), on 5.3.1. Subject to the one hand, and the Company, on the other hand, shall (x) file with the FTC and the Antitrust Division of the DOJ a Notification and Report Form relating to this Agreement and the transactions contemplated hereby as required by the HSR Act as soon as reasonably practicable from the date following execution and delivery terms of this Agreement but in no event later than ten (10) Business Days following the execution and delivery of this AgreementSection 5.3, and (y) file comparable pre-merger or post-merger notification filings, forms and submissions with any foreign Governmental Authority that is required by any other Antitrust Laws as soon as reasonably practicable from the date following execution and delivery of this Agreement but in no event later than ten (10) Business Days following the execution and delivery of this Agreement. Each of Parent and the Company Buyer shall (i) cooperate and coordinate with the other in the making of such filings, (ii) supply the other with any information that may be required in order to make such filings, (iii) supply any additional information that reasonably may be required or requested by the FTC, the DOJ or the Governmental Authorities of any other jurisdiction in which any such filing is made under any other Antitrust Laws, and (iv) use its reasonable best efforts to take obtain all action authorizations, consents, orders and approvals of all Governmental Entities and officials that may be or become necessary for its and Merger Sub’s execution and delivery of, and the performance of their obligations pursuant to, this Agreement and will cooperate fully with the Company and the Holder Representative in promptly seeking to cause obtain all such authorizations, consents, orders and approvals. Buyer and the expiration or termination Company each agree to make promptly their respective filing, but in any event within seven (7) Business Days of the applicable waiting periods under date hereof, pursuant to the HSR Act or other Antitrust Laws as soon as practicable, and to obtain any required consents under any other Antitrust Laws applicable to the Offer and/or the Merger as soon as practicable, and to avoid any impediment to the consummation of the Offer or the Merger under any Antitrust Laws, including using reasonable best efforts to take all such action as reasonably may be necessary to resolve such objections, if any, as the FTC, the DOJ, or any other Governmental Authority or Person may assert under any applicable Antitrust Laws with respect to the Offer and/or the Merger.
(b) Each of Parent and Acquisition Sub (and their respective Affiliates, if applicable), on the one hand, and the Company, on the other hand, shall promptly inform the other of any communication from any Governmental Authority regarding any of the transactions contemplated by this Agreement in connection with any filings or investigations with, by or before any Governmental Authority relating to this Agreement or the transactions contemplated hereby, including any proceedings initiated by a private party. If any party hereto or Affiliate thereof shall receive a request for additional information or documentary material from any Governmental Authority with respect to the transactions contemplated by this Agreement and to supply as promptly as practicable to the appropriate Governmental Entities any additional information and documentary material that may be requested pursuant to the HSR or Act. Buyer and the Company agree to make as promptly as practicable after the date of this Agreement their respective filings and notifications, if any, under any other Antitrust Laws applicable antitrust, competition or trade regulation Law, and to supply as promptly as practicable to the appropriate Governmental Entities any additional information and documentary material that may be requested pursuant to such Laws. All fees and other payments to any Governmental Entities incurred in connection with respect this Section 5.3 shall be paid by Buyer.
5.3.2. Without limiting the generality of Buyer’s obligations pursuant to which any such filings have been madeSection 5.3.1, then such party Buyer shall, and shall cause Merger Sub and each of its other Affiliates to, use its reasonable best efforts to maketake any and all steps necessary to avoid or eliminate each and every impediment under any antitrust, competition or cause to trade regulation Law that may be made, as soon as reasonably practicable and after consultation with the other party, an appropriate response in compliance with such request. In connection with and without limiting the foregoing, to the extent reasonably practicable and unless prohibited asserted by applicable Law or by the applicable Governmental Authority, the parties hereto agree to (i) give each other reasonable advance notice of all meetings with any Governmental Authority relating Entity or any other Person so as to enable the Offer or Parties to expeditiously consummate the Merger, (ii) give each other an opportunity transactions contemplated hereby no later than the Outside Date.
5.3.3. No actions taken pursuant to participate in each this Section 5.3 shall be considered for purposes of such meetings, (iii) determining whether a Material Adverse Effect has occurred.
5.3.4. Each Party shall keep the other party reasonably Parties apprised of the content and status of any communications with, and communications from, any Governmental Entity with respect to any oral communications with any Governmental Authority regarding the Offer or the Merger, (iv) cooperate in the filing of any analyses, presentations, memoranda, briefs, arguments, opinions or other written communications explaining or defending the Offer and the Merger, articulating any regulatory or competitive argument and/or responding to requests or objections made by any Governmental Authority, (v) provide each other with a reasonable advance opportunity to review and comment upon, and consider in good faith the views of the other with respect to, all written communications (including any analyses, presentations, memoranda, briefs, arguments and opinions) with a Governmental Authority regarding the Offer and the Merger, (vi) provide each other (or counsel of each party, as appropriate) with copies of all written communications to or from any Governmental Authority relating to the Offer or the Merger, and (vii) cooperate and provide each other with a reasonable opportunity to participate in, and consider in good faith the views of the other with respect to, all material deliberations with respect to all efforts to satisfy the conditions set forth in clauses (A) and (C)(1) of Annex A and Section 9.1(c). Any such disclosures, rights to participate or provisions of information by one party to the other may be made on a counsel-only basis to the extent required under applicable Law or as appropriate to protect confidential business information or the attorney client privilege or attorney work product.
(c) Each of Parent, Acquisition Sub and the Company shall cooperate with one another in good faith to (i) promptly determine whether any filings not contemplated by Section 8.2(a) are required to be or should be made, and whether any other consents, approvals, permits or authorizations not contemplated by Section 8.2(a) are required to be or should be obtained, from any Governmental Authority under any other applicable Law in connection with the transactions contemplated hereby, including promptly notifying the other Parties of any communication it or any of its Affiliates receives from any Governmental Entity relating to any review or investigation of the transactions contemplated hereby under the HSR Act or any other antitrust, competition or trade regulation Law and shall permit the other Parties to review in advance (iiand to consider any comments made by the other Parties in relation to) promptly make any proposed communication by such Party to any Governmental Entity relating to such matters. No Party shall agree to participate in any substantive meeting, telephone call or discussion with any Governmental Entity in respect of any filings, furnish investigation or other inquiry unless it consults with the other Parties in advance and, to the extent permitted by such Governmental Entity, gives the other Parties the opportunity to attend and participate at such meeting, telephone call or discussion. Subject to the Confidentiality Agreement, the Parties shall coordinate and cooperate fully with each other in exchanging such information required in connection therewith and seek to obtain timely any providing such consents, permits, authorizations, approvals or waivers that assistance as the parties determine are required to be or should be made or obtained other Parties may reasonably request in connection with the transactions contemplated hereby.
(d) Notwithstanding anything foregoing and in seeking early termination of any applicable waiting periods including under the HSR Act. Subject to the contrary in this Confidentiality Agreement, in connection the Parties shall provide each other with any filing copies of all correspondence, filings or submission required or action to be taken by either Parent or the Company to consummate the Offer and the Merger, in no event shall Parent communications between them or any of its Subsidiaries or Affiliates be obligated to propose or agree to accept any undertaking or conditiontheir representatives, to enter into any consent decree, to make any divestiture or accept any operational restriction, or take or commit to take any action (i) the effectiveness or consummation of which is not conditional on the consummation one hand, and any Governmental Entity or members of its staff, on the Offer other hand, with respect to this Agreement and the Merger or (ii) that individually or in the aggregate (x) is or would reasonably be expected to be materially adverse (with materiality, for purposes of this provision, being measured in relation to the size of the Company and its Subsidiaries taken as a whole) to (A) the Company and its Subsidiaries, taken as a whole, or Parent and its Subsidiaries, taken as a whole, either before or after giving effect to the Offer or the Merger, or (B) Parent’s ownership or operation of any material portion of the business or assets of the Company and its Subsidiaries, taken as a whole, or (y) would reasonably be expected to deny Parent the material benefit of the bargains contemplated by the transactions contemplated by this Agreement. The Company shall agree, if requested by Parent in writing, to commit to take any of the forgoing actions with respect to the assets or business of the Company in furtherance of this Section 8.2; provided, however, that any such action materials may be conditioned upon redacted (a) as necessary to comply with contractual arrangements, and (b) as necessary to address reasonable attorney-client or other privilege or confidentiality concerns.
5.3.5. Until receipt of all authorizations, approvals or consents under the HSR Act required for the consummation of the Merger Merger, Buyer shall not enter into any agreement or transaction (including any merger or acquisition) that would reasonably be expected to make it materially more difficult, or to materially increase the time required, to (a) obtain the expiration or termination of the waiting period under the HSR Act, or any other antitrust, competition or trade regulation Law, applicable to the transactions contemplated hereby, (b) avoid the entry of, the commencement of litigation seeking the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other order that would materially delay or prevent the consummation of the transactions contemplated hereby or (c) obtain all authorizations, consents, orders and other Transactions contemplated by this Agreementapprovals of Governmental Entities referenced in Sections 6.1.4 or 6.2.5.
Appears in 2 contracts
Sources: Merger Agreement, Merger Agreement (Select Medical Corp)
Regulatory Filings. (a) Each of Parent Saturn and Acquisition Sub (and their respective Affiliates, if applicable), on Nova shall promptly after the one hand, and the Company, on the other hand, shall (x) file with the FTC and the Antitrust Division of the DOJ a Notification and Report Form relating to this Agreement and the transactions contemplated hereby as required by the HSR Act as soon as reasonably practicable from the date following execution and delivery of this Agreement but in no event later than ten (10) Business Days following the execution and delivery of this Agreementapply for or otherwise seek, and (y) file comparable pre-merger or post-merger notification filings, forms and submissions with any foreign Governmental Authority that is required by any other Antitrust Laws as soon as reasonably practicable from the date following execution and delivery of this Agreement but in no event later than ten (10) Business Days following the execution and delivery of this Agreement. Each of Parent and the Company shall (i) cooperate and coordinate with the other in the making of such filings, (ii) supply the other with any information that may be required in order to make such filings, (iii) supply any additional information that reasonably may be required or requested by the FTC, the DOJ or the Governmental Authorities of any other jurisdiction in which any such filing is made under any other Antitrust Laws, and (iv) use all commercially reasonable best efforts to take obtain, all action necessary consents and approvals required to cause be obtained by it for the expiration or termination consummation of the applicable waiting periods under Merger. Without limiting the HSR Act generality or other Antitrust Laws effect of the foregoing, each of Saturn and Nova shall, as soon as practicable, make any initial filings required under the HSR Act and to obtain any required consents under as promptly as practicable make any other Antitrust Laws applicable to the Offer and/or the Merger as soon as practicable, and to avoid any impediment to the consummation of the Offer or the Merger under any Antitrust Laws, including using reasonable best efforts to take all such action as reasonably may be necessary to resolve such objections, if any, as the FTC, the DOJ, or additional filings required by any other Governmental Authority or Person may assert under any applicable Antitrust Laws (as defined herein). The parties shall consult and cooperate with respect to the Offer and/or the Merger.
(b) Each of Parent and Acquisition Sub (and their respective Affiliates, if applicable), on the one handanother, and consider in good faith the Companyviews of one another, on the other hand, shall promptly inform the other of any communication from any Governmental Authority regarding any of the transactions contemplated by this Agreement in connection with any filings analyses, appearances, presentations, memoranda, briefs, arguments, opinions and proposals made or investigations with, submitted by or before any Governmental Authority relating to this Agreement or the transactions contemplated hereby, including any proceedings initiated by a private party. If on behalf of any party hereto in connection with proceedings under or Affiliate thereof shall receive a request for additional information or documentary material from any Governmental Authority with respect to the transactions contemplated by this Agreement pursuant relating to the HSR Act or any foreign or other Antitrust Laws with respect to which any such filings have been madeLaw; provided, then such party shall use its reasonable best efforts to make, or cause to be made, as soon as reasonably practicable and after consultation with the other party, an appropriate response in compliance with such request. In connection with and without limiting the foregoing, to the extent reasonably practicable and unless prohibited by applicable Law or by the applicable Governmental Authority, the parties hereto agree to (i) give each other reasonable advance notice of all meetings with any Governmental Authority relating to the Offer or the Merger, (ii) give each other an opportunity to participate in each of such meetings, (iii) keep the other party reasonably apprised that with respect to any oral communications with any Governmental Authority regarding the Offer or the Mergersuch analyses, (iv) cooperate in the filing of any analysesappearances, presentations, memoranda, briefs, arguments, opinions or other written communications explaining or defending proposals, each of Saturn and Nova need not supply the Offer and the Merger, articulating any regulatory or competitive argument and/or responding to requests or objections made by any Governmental Authority, (v) provide each other with a reasonable advance opportunity to review and comment upon, and consider in good faith the views of the other with respect to, all written communications (including any analyses, presentations, memoranda, briefs, arguments and opinions) with a Governmental Authority regarding the Offer and the Merger, (vi) provide each other (or counsel of each party, as appropriateits counsel) with copies (or in case of all written communications oral presentations, a summary) to the extent that any law, treaty, rule or regulation of any Governmental Entity applicable to such party requires such party or its subsidiaries to restrict or prohibit access to any such properties or information.
(b) Each party will notify the other promptly upon the receipt of: (i) any comments from any officials of any Governmental Authority relating to the Offer or the MergerEntity in connection with any filings made pursuant hereto, and (viiii) cooperate and provide each other with a reasonable opportunity any request by any officials of any Governmental Entity for amendments or supplements to participate in, and consider in good faith the views of the other with respect any filings made pursuant to, or information provided to comply in all material deliberations with respect respects with, any applicable Legal Requirements. Whenever any event occurs that is required to all efforts to satisfy the conditions be set forth in clauses (A) and (C)(1) of Annex A and an amendment or supplement to any filing made pursuant to Section 9.1(c5.9(a). Any such disclosures, rights to participate or provisions of information by one each party to will promptly inform the other may be made on a counsel-only basis to of such occurrence and cooperate in filing with the extent required under applicable Law Governmental Entity such amendment or as appropriate to protect confidential business information or the attorney client privilege or attorney work productsupplement.
(c) Each of ParentSaturn and Nova shall use all commercially reasonable efforts to resolve such objections, Acquisition Sub and the Company shall cooperate with one another in good faith to (i) promptly determine whether any filings not contemplated if any, as may be asserted by Section 8.2(a) are required to be or should be made, and whether any other consents, approvals, permits or authorizations not contemplated by Section 8.2(a) are required to be or should be obtained, from any Governmental Authority under any other applicable Law in connection Entity with respect to the transactions contemplated herebyby this Agreement under the HSR Act, the S▇▇▇▇▇▇ Act, as amended, the C▇▇▇▇▇▇ Act, as amended, the Federal Trade Commission Act, as amended, Council Regulation 139/2004 of the European Commission, and any other federal, state or foreign statutes, rules, regulations, orders or decrees that are designed to prohibit, restrict or regulate actions having the purpose or effect of monopolization or restraint of trade (ii) collectively, “Antitrust Laws”). Each of Saturn and Nova shall use all commercially reasonable efforts to take such action as may be required to cause the expiration of the notice periods under the HSR Act or other Antitrust Laws with respect to such transactions as promptly make as practicable after the execution of this Agreement. If any filingsproceeding is instituted or threatened by any Governmental Entity with appropriate jurisdiction under Antitrust Laws seeking to restrain or impose conditions upon or alter the Merger, furnish Saturn and Nova shall use all commercially reasonable efforts to resolve such proceeding through negotiation or settlement. In addition, Saturn and Nova shall respond diligently to all inquiries for additional information required in connection therewith and seek by law or governmental regulation, including any “second request” for information pursuant to obtain timely any such consents, permits, authorizations, approvals or waivers that the parties determine are required to be or should be made or obtained in connection with the transactions contemplated herebyAntitrust Laws.
(d) Notwithstanding anything in this Agreement to the contrary in contrary, if any administrative or judicial action or proceeding is instituted (or threatened to be instituted) challenging any transaction contemplated by this Agreement as violative of any Antitrust Law, it is expressly understood and agreed that Saturn shall not have any obligation to litigate or contest any administrative or judicial action or proceeding or any decree, judgment, injunction or other order, whether temporary, preliminary or permanent.
(e) Notwithstanding the foregoing or any other provision of this Agreement, nothing in connection with any filing or submission required or action to be taken by either Parent or the Company to consummate the Offer and the Merger, in no event shall Parent or any of its Subsidiaries or Affiliates be obligated to propose or agree to accept any undertaking or condition, to enter into any consent decree, to make any divestiture or accept any operational restriction, or take or commit to take any action (i) the effectiveness or consummation of which is not conditional on the consummation of the Offer and the Merger or (ii) that individually or in the aggregate (x) is or would reasonably be expected to be materially adverse (with materiality, for purposes of this provision, being measured in relation to the size of the Company and its Subsidiaries taken as a whole) to (A) the Company and its Subsidiaries, taken as a whole, or Parent and its Subsidiaries, taken as a whole, either before or after giving effect to the Offer or the Merger, or (B) Parent’s ownership or operation of any material portion of the business or assets of the Company and its Subsidiaries, taken as a whole, or (y) would reasonably be expected to deny Parent the material benefit of the bargains contemplated by the transactions contemplated by this Agreement. The Company shall agree, if requested by Parent in writing, to commit to take any of the forgoing actions with respect to the assets or business of the Company in furtherance of this Section 8.2; provided, however, that any 5.9 shall limit a party’s right to terminate the Agreement pursuant to Section 7.1(a) so long as such action may be conditioned upon the consummation of the Merger and other Transactions contemplated by party has until such date complied with its obligations under this AgreementSection 5.9.
Appears in 2 contracts
Sources: Merger Agreement (Scansoft Inc), Merger Agreement (Scansoft Inc)
Regulatory Filings. (a) Each of Parent Except for those matters set forth in Sections 5.09(b) and Acquisition Sub 5.10, each Party shall, within fifteen (15) days after the Effective Date, make or cause to be made all filings and submissions under any Laws applicable to the Parties and their respective Affiliates, if applicable), on Affiliates for the one hand, and the Company, on the other hand, shall (x) file with the FTC and the Antitrust Division consummation of the DOJ a Notification and Report Form relating to this Agreement and the transactions contemplated hereby as required by herein. Subject to applicable Laws relating to the HSR Act exchange of information, each Party shall have the right to review in advance, and to the extent practicable shall consult with the other Party on, all the information that appears in any such filings.
(b) Without limiting the foregoing, each of Buyer and Seller shall, as soon as reasonably practicable from after the date following execution Effective Date, complete and delivery of this Agreement but make all filings and submissions required under applicable Antitrust Laws in no event later than ten (10) Business Days following connection with the execution and delivery of transactions contemplated by this Agreement, and in any event shall submit any required notification and report forms required to be filed under the HSR Act within fifteen (y15) file comparable Business Days after the Effective Date. Buyer shall pay the filing fees due and payable in connection with any such pre-merger or post-merger notification filings. The Parties shall reasonably cooperate and consult with each other or through counsel and each Party shall provide any necessary information and assistance as any other Party may reasonably request in connection thereto. In connection with such filings, forms each of the Parties shall promptly inform the other Party of any material communication from the Federal Trade Commission, the Department of Justice or any other Governmental Authority, in each case regarding any filing or submission described in this Section 5.09(b), provided, however, that neither Party shall be required to provide a copy of any pre-merger filing required under any applicable Antitrust Law.
(c) Except as specifically required by this Agreement, each Party agrees not to take any action, or refrain from taking any action, the effect of which would be to delay or impede the ability of the Parties to consummate the transactions contemplated by this Agreement. Without limiting the generality of the foregoing, Buyer shall not, and submissions with shall not permit any foreign Governmental Authority that is required of its Affiliates to, acquire or agree to acquire (by merging or consolidating with, or by purchasing a substantial portion of the assets of or equity in, or by any other Antitrust Laws as soon as manner), any Person or portion thereof, or otherwise acquire or agree to acquire any assets, if the entering into a definitive agreement relating to, or the consummation of, such acquisition, merger or consolidation could reasonably practicable from the date following execution and delivery of this Agreement but in no event later than ten (10) Business Days following the execution and delivery of this Agreement. Each of Parent and the Company shall be expected to (i) cooperate and coordinate with the other impose any delay in the making obtaining of, or increase the risk of such filingsnot obtaining, (ii) supply the other with any information that may be required in order to make such filings, (iii) supply any additional information that reasonably may be required Permits or requested by the FTC, the DOJ or the Governmental Authorities of any other jurisdiction in which any such filing is made under any other Antitrust Laws, and (iv) use reasonable best efforts to take all action Orders necessary to cause consummate the transactions contemplated hereby or the expiration or termination of the any applicable waiting periods under period, (ii) increase the HSR Act or other Antitrust Laws as soon as practicable, and to obtain risk of any required consents under any other Antitrust Laws applicable to the Offer and/or the Merger as soon as practicable, and to avoid any impediment to Governmental Authority entering an Order prohibiting the consummation of the Offer or the Merger under any Antitrust Laws, including using reasonable best efforts to take all such action as reasonably may be necessary to resolve such objections, if any, as the FTC, the DOJ, or any other Governmental Authority or Person may assert under any applicable Antitrust Laws with respect to the Offer and/or the Merger.
(b) Each of Parent and Acquisition Sub (and their respective Affiliates, if applicable), on the one hand, and the Company, on the other hand, shall promptly inform the other of any communication from any Governmental Authority regarding any of the transactions contemplated by this Agreement in connection with any filings or investigations with, by or before any Governmental Authority relating to this Agreement or the transactions contemplated hereby, including (iii) increase the risk of not being able to remove any proceedings initiated by a private party. such Order on appeal or otherwise, or (iv) delay or prevent the consummation of the transactions contemplated hereby.
(d) If any party hereto Party receives any formal or Affiliate thereof shall receive a informal request for additional information supplemental information, documentary material, or documentary material production of witnesses for interviews or depositions, from any Governmental Authority with respect to the transactions contemplated by this Agreement pursuant to the HSR or any other Antitrust Laws with respect to which any such filings have been madehereby, then such party Party shall use its reasonable best efforts to make, or cause to be made, as soon as reasonably practicable and after consultation with the other partypractical, an appropriate a response in compliance with such request. In connection with and without limiting the foregoing, Each Party agrees to provide to the extent reasonably practicable and unless prohibited by applicable Law or by the applicable Governmental Authority, the parties hereto agree to (i) give each other reasonable advance notice of all meetings with any Governmental Authority relating to the Offer or the Merger, (ii) give each other Party an opportunity to participate review in each of such meetings, (iii) keep the other party reasonably apprised with respect to any oral communications with any Governmental Authority regarding the Offer or the Merger, (iv) cooperate in the filing of any analyses, presentations, memoranda, briefs, arguments, opinions or other written communications explaining or defending the Offer and the Merger, articulating any regulatory or competitive argument and/or responding to requests or objections made by any Governmental Authority, (v) provide each other with a reasonable advance opportunity to review and comment uponadvance, and each Party shall consider in good faith the views of the other with respect toparty in connection with, all any proposed written communications (including by such Party to any analyses, presentations, memoranda, briefs, arguments and opinions) with a Governmental Authority regarding the Offer and the Merger, (vi) provide each other (third party or counsel of each party, as appropriate) with copies of all written communications to or from any Governmental Authority relating to the Offer or the Merger, and (vii) cooperate and provide each other with a reasonable opportunity to participate in, and consider in good faith the views of the other with respect to, all material deliberations with respect to all efforts to satisfy the conditions set forth in clauses (A) and (C)(1) of Annex A and Section 9.1(c). Any such disclosures, rights to participate or provisions of information by one party to the other may be made on a counsel-only basis to the extent required under applicable Law or as appropriate to protect confidential business information or the attorney client privilege or attorney work product.
(c) Each of Parent, Acquisition Sub and the Company shall cooperate with one another in good faith to (i) promptly determine whether any filings not contemplated by Section 8.2(a) are required to be or should be made, and whether any other consents, approvals, permits or authorizations not contemplated by Section 8.2(a) are required to be or should be obtained, from any Governmental Authority under any other applicable Law in connection with the transactions contemplated hereby, and (ii) promptly make any filings, furnish information required in connection therewith and seek to obtain timely any such consents, permits, authorizations, approvals or waivers that the parties determine are required to be or should be made or obtained in connection with the transactions contemplated hereby.
(d) Notwithstanding anything to the contrary in this Agreement, in connection with any filing or submission required or action to be taken by either Parent or the Company to consummate the Offer and the Merger, in no event shall Parent or any of its Subsidiaries or Affiliates be obligated to propose or agree to accept any undertaking or condition, to enter into any consent decree, to make any divestiture or accept any operational restriction, or take or commit to take any action (i) the effectiveness or consummation of which is not conditional on the consummation of the Offer and the Merger or (ii) that individually or in the aggregate (x) is or would reasonably be expected to be materially adverse (with materiality, for purposes of this provision, being measured in relation to the size of the Company and its Subsidiaries taken as a whole) to (A) the Company and its Subsidiaries, taken as a whole, or Parent and its Subsidiaries, taken as a whole, either before or after giving effect to the Offer or the Merger, or (B) Parent’s ownership or operation of any material portion of the business or assets of the Company and its Subsidiaries, taken as a whole, or (y) would reasonably be expected to deny Parent the material benefit of the bargains contemplated by concerning the transactions contemplated by this Agreement.
(e) Buyer shall keep Seller apprised of the status of all filings and submissions referred to in Section 5.09(a), including promptly furnishing Seller with copies of notices or other communications received by Buyer in connection therewith. The Company To the extent practicable, Buyer shall agreenot permit any of its officers, if requested employees or other representatives or agents to participate in any meetings or discussions, either in person or by Parent telephone, with any Governmental Authority in writingrespect of such filings and submissions unless it consults with Seller in advance and, to commit the extent permitted by the Governmental Authority, gives Seller the opportunity to attend and participate thereat.
(f) Without limiting the foregoing, each of the Parties shall cooperate in good faith with all Governmental Authorities and use its commercially reasonable efforts to take any and all actions required to complete lawfully the transactions contemplated by this Agreement as soon as practicable and any and all actions reasonably necessary or advisable to avoid, prevent, eliminate or remove the actual or threatened commencement of any proceeding in any forum by or on behalf of any Governmental Authority or the forgoing actions with respect to the assets issuance of any Order that would delay, enjoin, prevent, restrain or business of the Company in furtherance of this Section 8.2; provided, however, that any such action may be conditioned upon otherwise prohibit the consummation of the Merger and other Transactions transactions contemplated by this Agreementhereby.
Appears in 2 contracts
Sources: Asset Purchase Agreement, Asset Purchase Agreement (Peabody Energy Corp)
Regulatory Filings. (a) Each of Parent and Acquisition Sub (and their respective Affiliates, if applicable), on the one hand, and the Company, on the other hand, shall (x) file with the FTC and the Antitrust Division of the DOJ a Notification and Report Form relating to this Agreement and the transactions contemplated hereby As promptly as required by the HSR Act as soon as reasonably practicable from the date following execution and delivery of this Agreement but in no event later than ten (10) Business Days following after the execution and delivery of this Agreement, and (y) file comparable pre-merger or post-merger notification filings, forms and submissions with any foreign Governmental Authority that is required by any other Antitrust Laws as soon as reasonably practicable from the date following execution and delivery of this Agreement but in no event later than ten (10) Business Days following the execution and delivery of this Agreement. Each each of Parent and the Company shall (i) cooperate with each other and coordinate with the other in the making of such filings, (ii) supply the other with any information that may be required in order to make such filings, (iii) supply any additional information that reasonably may be required or requested by the FTC, the DOJ or the Governmental Authorities of any other jurisdiction in which any such filing is made under any other Antitrust Laws, and (iv) use their respective reasonable best efforts to take take, or cause to be taken, all action necessary actions, and to do, or cause to be done, all things necessary, appropriate or desirable to consummate the expiration Transactions, including (i) within twenty (20) Business Days after the date of this Agreement (unless a different date is agreed to by the parties), making or termination causing to be made all filings and submissions required to be made by Parent, the Company or any of the applicable waiting periods their Affiliates under the HSR Act or other Antitrust Laws as soon as practicableAct, and (ii) except as set forth on Section 6.06(a) of the Parent Disclosure Schedule, no later than fifty (50) calendar days following the date of this Agreement (and in any event prior to obtain the expiration of any applicable legal deadline), initiate the required consents regulatory processes with a view to making or causing to be made all filings and submissions, with prenotification where appropriate, required to be made (including with respect to all Requisite Regulatory Approvals, or otherwise reasonably deemed advisable by Parent to be made, by any party or any of its Affiliates under any other applicable Antitrust Law or any Foreign Investment Law, including in furtherance of or for the purpose of referral of jurisdiction under such Law, as applicable, or other Laws applicable to the Offer and/or the Merger as soon as practicable, and to avoid any impediment to for the consummation of the Offer Transactions) (the “Regulatory Filings”). The parties shall cooperate in good faith with the applicable Governmental Authorities in connection with the Regulatory Filings and submissions and shall, as promptly as practicable, comply with any requests for information, including, if applicable, requests for the production of documents and the production of witnesses for interviews or the Merger depositions by any Governmental Authorities. Parent will pay, or cause its Affiliates to pay, all filing fees required under any Antitrust Laws, including using reasonable best efforts to take all such action as reasonably may be necessary to resolve such objections, if any, as the FTC, the DOJ, Law or any other Governmental Authority or Person may assert under Foreign Investment Law for any applicable Antitrust Laws with respect to of the Offer and/or the MergerTransactions.
(b) Each of Parent and Acquisition Sub the Company shall use their reasonable best efforts to assist and cooperate with each other in preparing and filing all documents required or reasonably deemed advisable by Parent to be submitted by any of them or their Affiliates to any Governmental Authorities in connection with the Transactions and in obtaining any Governmental Authority waiting period expirations or terminations, consents, waivers, authorizations, clearances or approvals in connection with the Transactions (which assistance and their respective Affiliatescooperation shall include timely furnishing to the requesting party all information that such party or its counsel reasonably determines is required to be included in such documents or would be helpful in obtaining such required waiting period expirations or terminations, consents, waivers, authorizations, clearances or approvals). Subject to the other provisions of this Section 6.06, Parent shall have the sole right to (i) determine, direct and implement the strategy of the parties for obtaining approvals or expiration or, if applicable, terminations of waiting periods, under the HSR Act, or any other Antitrust Law, Foreign Investment Law, or other Laws applicable to any party or its Affiliates and, in each case, required for the consummation of the Transactions (including the right to direct and unilaterally determine any decision to pull and refile any filing under the HSR Act; provided that any decision to pull and refile any such filing more than once shall require the prior written consent of the Company), on and (ii) control the one hand, defense and the Company, on the other hand, shall promptly inform the other settlement of any communication from any Governmental Authority regarding any of Action relating to the transactions contemplated by this Agreement in connection with any filings or investigations with, Transactions that is brought by or before any Governmental Authority relating to this Agreement or in connection with the transactions contemplated herebyRegulatory Filings; provided that Parent shall consult in good faith with the Company, including and consider in good faith any proceedings initiated by a private party. If any party hereto or Affiliate thereof shall receive a request for additional information or documentary material from any Governmental Authority suggestions of the Company, with respect to the transactions contemplated by this Agreement pursuant foregoing matters.
(c) Each of the parties shall promptly inform the other parties of any oral communication with, and provide copies of written communications with, any Governmental Authority regarding any Regulatory Filing or any such transaction and shall have the right to review in advance, and to the HSR or extent practicable, each will consult the other on any other Antitrust Laws with respect to which any such filings have been made, then such party shall use its reasonable best efforts to makefiling made with, or cause to be madeother material communications submitted to, as soon as reasonably practicable and after consultation any Governmental Authority in connection with the other partyTransactions. Subject to this Section 6.06 and applicable Laws relating to the exchange of information, an appropriate response in compliance with such request. In connection with and without limiting the foregoingeach party shall, to the extent reasonably practicable and unless prohibited by applicable Law or by practicable, give the applicable Governmental Authority, the other parties hereto agree to (i) give each other reasonable advance notice of all meetings with any Governmental Authority relating to the Offer or the Merger, (ii) give each other an opportunity to participate in each of such meetings, (iii) keep the other party reasonably apprised with respect to any oral material communications with any Governmental Authority regarding the Offer or the Merger, (iv) cooperate in the filing of any analyses, presentations, memoranda, briefs, arguments, opinions or other written communications explaining or defending the Offer and the Merger, articulating any regulatory or competitive argument and/or responding to requests or objections made by any Governmental Authority, (v) provide each other with a reasonable advance opportunity to review and comment upon, and consider in good faith the views of the other parties in connection with respect toany analysis, all written appearance, presentation, memorandum, brief, argument, opinion, proposal or other communication to be made or submitted in connection with any such request, inquiry, investigation, action or legal proceeding, and each party shall make reasonable efforts to afford the other parties the opportunity to attend or participate in material conferences, meetings and telephone or other communications between the other parties and Governmental Authorities concerning the Transactions, unless prohibited by such Governmental Authority. Materials required to be provided pursuant to this Section 6.06(c) may be redacted (including any analyses, presentations, memoranda, briefs, arguments and opinionsi) with a Governmental Authority regarding to remove references concerning the Offer and valuation of the MergerCompany, (viii) provide each as necessary to comply with contractual arrangements in existence as of the date of this Agreement, (iii) as necessary to address attorney-client or other privilege concerns and (or counsel of each iv) to remove material that is unrelated to the Transactions. Each party, as appropriateeach reasonably deems advisable, shall be entitled to designate any competitively sensitive material provided to the other parties under this Section 6.06 as “Antitrust/FDI Counsel Only Material”. Such materials and the information contained therein shall be given only to the outside antitrust and foreign direct investment counsel of the recipient and, unless explicitly excluded, in-house counsel of the recipient approved by the providing party and will not be disclosed by such outside counsel or approved in-house counsel to other Representatives of the recipient unless express written permission is obtained in advance from the source of the materials or its legal counsel.
(d) If any objections are asserted with copies of all written communications respect to the Transactions under the HSR Act, any other applicable Antitrust Law, Foreign Investment Law or from in connection with any Requisite Regulatory Approval, or if any Action is instituted or threatened by any Governmental Authority relating to the Offer or the Merger, and (vii) cooperate and provide each other with a reasonable opportunity to participate in, and consider in good faith the views third party challenging any of the other with respect toTransactions, all material deliberations with respect to all efforts to satisfy the conditions set forth in clauses (A) and (C)(1) of Annex A and Section 9.1(c). Any such disclosures, rights to participate or provisions of information by one party to the other may be made on a counsel-only basis to the extent required under applicable Law or as appropriate to protect confidential business information or the attorney client privilege or attorney work product.
(c) Each of Parent, Acquisition Sub Parent and the Company shall cooperate use their reasonable best efforts to take, or cause to be taken (including by causing their Affiliates to take), all actions necessary to resolve such objections as promptly as practicable. Without limiting the generality of the foregoing, and notwithstanding anything in this Agreement to the contrary, in connection with one another in good faith to any such objection or Action, Parent shall, and shall cause its Subsidiaries and Affiliates to, (i) promptly determine whether hold separate, sell, license, divest or otherwise dispose of businesses or properties or assets of Parent or any filings not contemplated by of its Affiliates, (ii) terminate, amend or assign any investments, joint ventures or other similar arrangements of Parent or any of its Affiliates, and (iii) grant any right to, or enter into any contractual or other commercial relationship with, any third party with respect to any assets of Parent or any of its Affiliates; provided that any such actions shall be conditioned upon consummation of the Transactions. Notwithstanding the foregoing, nothing in this Agreement shall require, or be construed to require, Parent or any Affiliate of Parent to (and the Company shall not, without the prior written consent of Parent, agree to) take any of the foregoing actions, except as set forth on Section 8.2(a6.06(d) are required of the Parent Disclosure Schedule. Parent and the Company (including their Affiliates) shall oppose, fully and vigorously, (A) any administrative or judicial Action that is initiated or threatened to be initiated challenging this Agreement or should be madethe consummation of the Transactions (including seeking to have any stay or temporary restraining order entered by any court or other Governmental Authority vacated or reversed) and (B) any request for, the entry of, and whether seek to have vacated or terminated, any other consentsorder that could restrain, approvals, permits prevent or authorizations not contemplated by Section 8.2(a) are required to be or should be obtained, from any Governmental Authority under any other applicable Law in connection with delay the consummation of the transactions contemplated hereby, including in the case of either (A) or (B), by defending through litigation any Action brought by any Person in any court or before any Governmental Authority until a final, non-appealable judgment has been entered, and (ii) promptly make any filingsvigorously pursuing all available avenues of administrative and judicial appeal. At the request of Parent, furnish information required in connection therewith and seek to obtain timely any such consents, permits, authorizations, approvals or waivers that the parties determine are required to be or should be made or obtained in connection with the transactions contemplated hereby.
(d) Notwithstanding anything to the contrary in this Agreement, in connection with any filing or submission required or action to be taken by either Parent or the Company to consummate the Offer and the Merger, in no event shall Parent or any of its Subsidiaries or Affiliates be obligated to propose or agree to accept any undertaking divest, hold separate or condition, to enter into any consent decree, to make any divestiture or accept any operational restriction, or otherwise take or commit to take any action (i) the effectiveness that limits its freedom of action with respect to, or consummation of which is not conditional on the consummation its ability to retain, any of the Offer and the Merger or (ii) that individually or in the aggregate (x) is or would reasonably be expected to be materially adverse (with materialitybusinesses, for purposes of this provision, being measured in relation to the size of the Company and its Subsidiaries taken as a whole) to (A) the Company and its Subsidiaries, taken as a whole, or Parent and its Subsidiaries, taken as a whole, either before or after giving effect to the Offer or the Merger, or (B) Parent’s ownership or operation of any material portion of the business services or assets of the Company and or any of its Subsidiaries, taken as a whole, or (y) would reasonably be expected to deny Parent the material benefit of the bargains contemplated by the transactions contemplated by this Agreement. The Company shall agree, if requested by Parent in writing, to commit to take any of the forgoing actions with respect to the assets or business of the Company in furtherance of this Section 8.2; provided, however, provided that any such action may shall be conditioned upon the consummation of the Merger and the other Transactions transactions contemplated by hereby.
(e) Notwithstanding anything in this Agreement, Parent shall proffer to the applicable Governmental Authority or Governmental Authorities divestitures and other remedies contemplated by, and subject to, Section 6.06(d) of this Agreement and Section 6.06(d) of the Parent Disclosure Schedule, no later than ten (10) months from the later of the date of Parent’s and the Company’s initial filings under the HSR Act, unless otherwise mutually agreed to by the parties.
(f) During the Pre-Closing Period, none of Parent or any of its controlled Affiliates shall acquire or agree to acquire any rights, business, person or division thereof (by way of merger, consolidation, share exchange or other business combination, asset, stock or equity purchase or otherwise) or enter into or agree to enter into any joint venture, collaboration or other similar arrangement, in each case (i) involving thrombectomy or embolization products in the neurovascular or peripheral vascular spaces or access products in the neurovascular space and (ii) if the entry by Parent or any of its controlled Affiliates into an agreement relating to, or the consummation by Parent or any of its controlled Affiliates of, any such transaction or arrangement would reasonably be expected to (1) impose a material delay in the expiration or termination of any applicable waiting period or impose a material delay in the obtaining of, or materially increase the risk of not obtaining, any authorization, consent, clearance, approval, non-disapproval, declaration or order of a Governmental Authority necessary to consummate the Transactions, including receipt of any approvals and expiration of waiting periods pursuant to the HSR Act or other applicable Antitrust Laws (including those set forth in Section 7.01(c) of the Parent Disclosure Schedule), (2) materially increase the risk of a Governmental Authority enacting, issuing, promulgating, enforcing or entering, or materially increase the risk of not being able to remove or successfully challenge, any permanent, preliminary or temporary injunction or other Order or Law that would delay, restrain, prevent, enjoin or otherwise prohibit or make illegal the consummation of the Transactions or (3) otherwise materially delay or impede the consummation of the Transactions.
(g) During the Pre-Closing Period, none of the Company Group shall acquire or agree to acquire any rights, business, person or division thereof (by way of merger, consolidation, share exchange or other business combination, asset, stock or equity purchase or otherwise) or enter into or agree to enter into any joint venture, collaboration or other similar arrangement, in each case, if the entry by the Company or any other member of the Company Group into an agreement relating to, or the consummation by Company or any other member of the Company Group of, any such transaction or arrangement would reasonably be expected to (1) impose a material delay in the expiration or termination of any applicable waiting period or impose a material delay in the obtaining of, or materially increase the risk of not obtaining, any authorization, consent, clearance, approval, non-disapproval, declaration or order of a Governmental Authority necessary to consummate the Transactions, including receipt of any approvals and expiration of waiting periods pursuant to the HSR Act or other applicable Antitrust Laws (including those set forth in Section 7.01(c) of the Parent Disclosure Schedule), (2) materially increase the risk of a Governmental Authority enacting, issuing, promulgating, enforcing or entering, or materially increase the risk of not being able to remove or successfully challenge, any permanent, preliminary or temporary injunction or other Order or Law that would delay, restrain, prevent, enjoin or otherwise prohibit or make illegal the consummation of the Transactions or (3) otherwise materially delay or impede the consummation of the Transactions.
Appears in 2 contracts
Sources: Merger Agreement (Penumbra Inc), Merger Agreement (Boston Scientific Corp)
Regulatory Filings. (a) Each of Parent and Acquisition Merger Sub (shall, and shall cause their respective AffiliatesAffiliates to, if applicable), on the one hand, and the Company, on the other hand, shall (x) file with the FTC and the Antitrust Division applicable Governmental Authority in each of the DOJ a Notification and Report Form relating to this Agreement and jurisdictions listed on Section 8.1(b) of the transactions contemplated hereby Company Disclosure Letter, the notifications as required by the HSR Act their respective Antitrust Laws, in each case as soon as reasonably practicable from after the date following execution and delivery of this Agreement but in no event later than ten (10) Business Days following the execution and delivery of this Agreement, and (y) file comparable pre-merger pre‑merger or post-merger post‑merger notification filings, forms and submissions with any foreign other Governmental Authority that is required by any other Antitrust Laws as soon as reasonably practicable from after the date following execution and delivery of this Agreement but and in no any event later than ten (10) Business Days following before the execution and delivery expiration of this Agreementany applicable legal deadline. Each of Parent and the Company shall (i) cooperate and coordinate with the other in the making of such filings, (ii) supply the other with any information that may be required in order to make such filings, (iii) supply any additional information that reasonably may be required or requested by the FTC, the DOJ DOJ, the Israeli Anti-Trust Authority (“IAA”) or the Governmental Authorities of any other applicable jurisdiction in which any such filing is made under any other Antitrust Laws, and (iv) use reasonable best efforts to take all action necessary to cause the expiration or termination of the applicable waiting periods under the HSR Act or other Antitrust Laws as soon as practicable, and to obtain any required consents under any other Antitrust Laws applicable to the Offer and/or the Merger as soon as practicable, and to avoid any impediment to the consummation of the Offer or the Merger under any Antitrust Laws, including using reasonable best efforts to take all such action as reasonably may be necessary to resolve such objections, if any, as the FTC, the DOJ, the IAA or any other Governmental Authority or Person may assert under any applicable Antitrust Laws with respect to the Offer and/or the Merger.
(b) Parent and/or its Affiliates shall execute and deliver an undertaking in customary form in favor of the IIA to comply with applicable Law (if and when required to do so).
(c) Each of Parent and Acquisition Merger Sub (shall, and shall cause their respective AffiliatesAffiliates to, if applicable), on the one hand, and the Company, on the other hand, shall promptly inform the other of any communication from any Governmental Authority regarding any of the transactions contemplated by this Agreement in connection with any filings or investigations with, by or before any Governmental Authority relating to this Agreement or the transactions contemplated hereby, including any proceedings initiated by a private party. If any party hereto or Affiliate thereof shall receive a request for additional information or documentary material from any Governmental Authority with respect to the transactions contemplated by this Agreement pursuant to the HSR or any other Antitrust Laws with respect to which any such filings that have been made, then such party shall use its reasonable best efforts to make, or cause to be made, as soon as reasonably practicable and after consultation with the other party, an appropriate response in compliance with such request. In connection with and without limiting the foregoing, to the extent reasonably practicable and unless prohibited by applicable Law or by the applicable Governmental Authority, the parties hereto agree to (i) give each other reasonable advance notice of all meetings with any Governmental Authority relating to the Offer or the Merger, (ii) give each other an opportunity to participate in each of such meetings, (iii) keep the other party reasonably apprised with respect to any oral communications with any Governmental Authority regarding the Offer or the Merger, (iv) cooperate in the filing of any analyses, presentations, memoranda, briefs, arguments, opinions or other written communications explaining or defending the Offer and the Merger, articulating any regulatory or competitive argument and/or responding to requests or objections made by any Governmental Authority, (v) provide each other with a reasonable advance opportunity to review and comment upon, and consider in good faith the views of the other with respect to, all written communications (including any analyses, presentations, memoranda, briefs, arguments and opinions) with a Governmental Authority regarding the Offer and the Merger, (vi) provide each other (or counsel of each party, as appropriate) with copies of all written communications to or from any Governmental Authority relating to the Offer or the Merger, and (vii) cooperate and provide each other with a reasonable opportunity to participate in, and consider in good faith the views of the other with respect to, all material deliberations with respect to all efforts to satisfy the conditions set forth in clauses (A) and (C)(1) of Annex A and Section 9.1(c8.1(b). Any such disclosures, rights to participate or provisions of information by one party to the other may be made on a counsel-only counsel‑only basis to the extent required under applicable Law or as appropriate to protect confidential business information or the attorney client privilege or attorney work productinformation.
(cd) Each of Parent, Acquisition Merger Sub and the Company shall cooperate with one another in good faith to (i) promptly determine whether any filings not contemplated by Section 8.2(a7.2(a) are required to be or should be made, and whether any other consents, approvals, permits or authorizations not contemplated by Section 8.2(a7.2(a) are required to be or should be obtained, from any Governmental Authority under any other applicable Law in connection with the transactions contemplated hereby, and (ii) promptly make any filings, furnish information required in connection therewith and seek to obtain timely any such consents, permits, authorizations, approvals or waivers that the parties determine are required to be or should be made or obtained in connection with the transactions contemplated hereby.
(de) Notwithstanding anything in this Agreement to the contrary in this Agreementcontrary, each of Parent and the Company agrees, and shall cause each of its Affiliates, to take any and all reasonable actions necessary to obtain any consents, clearances or approvals required under or in connection with any filing applicable Law (including Antitrust Law), and to enable all waiting periods under any applicable Law (including Antitrust Law) to expire, and to avoid or submission required eliminate each and every impediment under any applicable Law (including Antitrust Law) asserted by any Governmental Authority, in each case, to cause the Merger and the other transactions contemplated hereby to occur as soon as practicable and in any event prior to the Outside Date, including but not limited to (i) promptly complying with or action to be taken modifying any requests for additional information (including any second request) by either Parent any Governmental Authority, (ii) contesting, defending and appealing any threatened or pending preliminary or permanent injunction or other order, decree or ruling or statute, rule, regulation or executive order that would adversely affect the Company ability of any party hereto to consummate the Offer transactions contemplated hereby and taking any and all other actions to prevent the entry, enactment or promulgation thereof. From and after the date hereof and until all Approvals by Governmental Authorities required in connection with the Merger and the Mergerother transactions contemplated hereby have been obtained, each of the Company and Parent shall not, and shall cause its Affiliates not to, operate their respective businesses in no event shall Parent or any of its Subsidiaries or Affiliates be obligated to propose or agree to accept any undertaking or condition, to enter into any consent decree, to make any divestiture or accept any operational restriction, such manner or take or commit to take any action (i) the effectiveness or consummation of which is not conditional on the consummation of the Offer and the Merger or (ii) action, that individually or in the aggregate (x) is or would reasonably be expected to be materially adverse increase in any material respect the risk of not obtaining any such governmental Approval.
(with materialityf) Without limiting the provisions of Section 7.2(e) above, for purposes Parent and Merger Sub agree that between the date hereof and the Effective Time (or the earlier termination of this provisionAgreement pursuant to Article IX), being measured each of Parent and Merger Sub shall not, and shall not permit any of its Affiliates to, acquire or agree to acquire by merging or consolidating with, or by purchasing a substantial portion of the assets of or equity in, or by any other manner, any business or any Person or other business organization or division thereof, or otherwise acquire or agree to acquire any assets if such business or Person competes in relation to the size any line of business of the Company and its Subsidiaries taken as if the entering into of a whole) definitive agreement relating to (A) the Company and its Subsidiaries, taken as a whole, or Parent and its Subsidiaries, taken as a whole, either before or after giving effect to the Offer or the Mergerconsummation of such acquisition, merger or (B) Parent’s ownership or operation of any material portion of the business or assets of the Company and its Subsidiaries, taken as a whole, or (y) consolidation would reasonably be expected to deny Parent (i) impose any delay in the material benefit obtaining of, or increase the risk of not obtaining, any authorizations, consents, orders, declarations or approvals of any Governmental Authority necessary to consummate the bargains transactions contemplated by this Agreement or the expiration or termination of any applicable waiting period, (ii) increase the risk of any Governmental Authority entering an order prohibiting the consummation of the transactions contemplated by this Agreement. The Company shall agree, if requested by Parent in writing, (iii) increase the risk of not being able to commit to take any of the forgoing actions with respect to the assets or business of the Company in furtherance of this Section 8.2; provided, however, that remove any such action may be conditioned upon order on appeal or otherwise or (iv) delay or prevent the consummation of the Merger and or the other Transactions contemplated by this Agreement.
(g) Nothing in this Agreement shall require Parent, the Surviving Company or any other subsidiary of Parent to sell, hold separate, license or otherwise dispose of any assets or conduct their business in a specified manner, or agree or propose to sell, hold separate, license or otherwise dispose of any assets or conduct their business in a specified manner, or permit or agree to the sale, holding separate, licensing or other disposition of, any assets of Parent, the Surviving Company or any other subsidiary of Parent or the Company, whether as a condition to obtaining any approval from, or to avoid potential litigation or administrative action by, a Governmental Authority or any other person or for any other reason.
Appears in 2 contracts
Sources: Merger Agreement, Merger Agreement (Mazor Robotics Ltd.)
Regulatory Filings. (a) Each of Parent Parent, Merger Sub and Acquisition Sub (the Company shall coordinate and their respective Affiliates, if applicable), on the cooperate with one handanother and shall each use all reasonable efforts to comply with, and shall each refrain from taking any action that would impede compliance with, or delay satisfaction of, all Legal Requirements, and as promptly as practicable after the Companydate hereof, on each of Parent, Merger Sub and the Company shall make all filings, notices, petitions, statements, registrations, submissions of information, application or submission of other hand, shall (x) file documents required by any Governmental Authority in connection with the FTC Merger and the transactions contemplated hereby, including, without limitation: (i) Notification and Report Forms with the United States Federal Trade Commission (“FTC”) and the Antitrust Division of the DOJ a Notification and Report Form relating to this Agreement and the transactions contemplated hereby United States Department of Justice (“DOJ”) as required by the HSR Act as soon as reasonably practicable and responses to requests for additional information and documentary material from the date following execution FTC and delivery of this Agreement but in no event later than ten the DOJ, which shall be made within three (103) Business Days following after the execution and delivery date of this Agreement, and (yii) file filings under any other comparable pre-merger or post-merger notification filings, forms and submissions with any foreign Governmental Authority that is required reasonably determined by any other Antitrust Laws as soon as reasonably practicable from the date following execution and delivery of this Agreement but in no event later than ten (10) Business Days following the execution and delivery of this Agreement. Each of Parent and the Company to be required by the merger notification or control laws of any applicable jurisdiction, as agreed by the parties hereto and (iii) any filings required under the Securities Act, the Exchange Act, any applicable state or securities or “blue sky” laws and the securities laws of any foreign country, or any other Legal Requirement relating to the Merger. Each of Parent, Merger Sub and the Company will cause all documents that it is responsible for filing with any Governmental Authority under this Section 5.4(a) to comply in all material respects with all applicable Legal Requirements. Parent, Merger Sub and the Company each shall (i) cooperate and coordinate with the other in the making of such filings, (ii) promptly supply the other with any information that may be required in order to make such filingseffectuate any filings or application pursuant to this Section 5.4(a). The Company and Parent shall, (iii) supply any additional information that reasonably may be required or requested by the FTC, the DOJ or the Governmental Authorities of any other jurisdiction in which any such filing is made under any other Antitrust Laws, and (iv) use reasonable best efforts to take all action necessary to cause the expiration or termination of the applicable waiting periods under the HSR Act or other Antitrust Laws as soon as practicable, and to obtain any required consents under any other Antitrust Laws applicable to the Offer and/or extent permitted by applicable Legal Requirements, promptly provide the Merger as soon as practicable, and to avoid any impediment to the consummation other with copies of the Offer or the Merger under any Antitrust Laws, including using reasonable best efforts to take all filings made by such action as reasonably may be necessary to resolve such objections, if any, as the FTC, the DOJ, party or any other Governmental Authority or Person may assert under any applicable Antitrust Laws of its Subsidiaries with respect to the Offer and/or the Merger.
(b) Each of Parent and Acquisition Sub (and their respective Affiliates, if applicable), on the one hand, and the Company, on the other hand, shall promptly inform the other of any communication from any Governmental Authority regarding any of the transactions contemplated by this Agreement Entity in connection with any filings or investigations withthis Agreement, by or before any Governmental Authority relating to this Agreement or the Merger and the transactions contemplated hereby, including any proceedings initiated by a private party. If any party hereto or Affiliate thereof shall receive a request for additional information or documentary material from any Governmental Authority with respect to other than the transactions contemplated by this Agreement pursuant to the HSR or any other Antitrust Laws with respect to which any portions of such filings have been made, then such party shall use its reasonable best efforts that include confidential information not directly related to make, or cause to be made, as soon as reasonably practicable and after consultation with the other party, an appropriate response in compliance with such request. In connection with and without limiting the foregoing, to the extent reasonably practicable and unless prohibited by applicable Law or by the applicable Governmental Authority, the parties hereto agree to (i) give each other reasonable advance notice of all meetings with any Governmental Authority relating to the Offer or the Merger, (ii) give each other an opportunity to participate in each of such meetings, (iii) keep the other party reasonably apprised with respect to any oral communications with any Governmental Authority regarding the Offer or the Merger, (iv) cooperate in the filing of any analyses, presentations, memoranda, briefs, arguments, opinions or other written communications explaining or defending the Offer and the Merger, articulating any regulatory or competitive argument and/or responding to requests or objections made by any Governmental Authority, (v) provide each other with a reasonable advance opportunity to review and comment upon, and consider in good faith the views of the other with respect to, all written communications (including any analyses, presentations, memoranda, briefs, arguments and opinions) with a Governmental Authority regarding the Offer and the Merger, (vi) provide each other (or counsel of each party, as appropriate) with copies of all written communications to or from any Governmental Authority relating to the Offer or the Merger, and (vii) cooperate and provide each other with a reasonable opportunity to participate in, and consider in good faith the views of the other with respect to, all material deliberations with respect to all efforts to satisfy the conditions set forth in clauses (A) and (C)(1) of Annex A and Section 9.1(c). Any such disclosures, rights to participate or provisions of information by one party to the other may be made on a counsel-only basis to the extent required under applicable Law or as appropriate to protect confidential business information or the attorney client privilege or attorney work product.
(c) Each of Parent, Acquisition Sub and the Company shall cooperate with one another in good faith to (i) promptly determine whether any filings not contemplated by Section 8.2(a) are required to be or should be made, and whether any other consents, approvals, permits or authorizations not contemplated by Section 8.2(a) are required to be or should be obtained, from any Governmental Authority under any other applicable Law in connection with the transactions contemplated hereby, and (ii) promptly make any filings, furnish information required in connection therewith and seek to obtain timely any such consents, permits, authorizations, approvals or waivers that the parties determine are required to be or should be made or obtained in connection with the transactions contemplated hereby.
(d) Notwithstanding anything to the contrary in this Agreement, in connection with any filing or submission required or action to be taken by either Parent or the Company to consummate the Offer and the Merger, in no event shall Parent or any of its Subsidiaries or Affiliates be obligated to propose or agree to accept any undertaking or condition, to enter into any consent decree, to make any divestiture or accept any operational restriction, or take or commit to take any action (i) the effectiveness or consummation of which is not conditional on the consummation of the Offer and the Merger or (ii) that individually or in the aggregate (x) is or would reasonably be expected to be materially adverse (with materiality, for purposes of this provision, being measured in relation to the size of the Company and its Subsidiaries taken as a whole) to (A) the Company and its Subsidiaries, taken as a whole, or Parent and its Subsidiaries, taken as a whole, either before or after giving effect to the Offer or the Merger, or (B) Parent’s ownership or operation of any material portion of the business or assets of the Company and its Subsidiaries, taken as a whole, or (y) would reasonably be expected to deny Parent the material benefit of the bargains contemplated by the transactions contemplated by this Agreement. The Company shall agree, if requested by Parent in writing, to commit to take any of the forgoing actions with respect to the assets or business of the Company in furtherance of this Section 8.2; provided, however, that any such action may be conditioned upon the consummation of the Merger and other Transactions contemplated by this Agreement.
Appears in 2 contracts
Sources: Merger Agreement (McKesson Corp), Merger Agreement (US Oncology Holdings, Inc.)
Regulatory Filings. (a) Each of Parent and Acquisition Sub (and their respective Affiliates, if applicable), on the one hand, and the Company, on the other hand, shall (x) file with the FTC and the Antitrust Division of the DOJ a Notification and Report Form relating to this Agreement and the transactions contemplated hereby as required by the HSR Act as soon as reasonably practicable from the date following execution and delivery of this Agreement but in no event later than ten (10) Business Days following the execution and delivery of this Agreement, and (y) file comparable pre-merger or post-merger notification filings, forms and submissions with any foreign Governmental Authority that is required by any other Antitrust Laws as soon as reasonably practicable from the date following execution and delivery of this Agreement but in no event later than ten (10) Business Days following the execution and delivery of this Agreement. Each of Parent and the Company The Buyer shall (i) cooperate and coordinate with within five Business Days of the other in the making date of this Agreement (or such filings, (ii) supply the other with any information that later date as may be required mutually agreed in order to make such filings, (iii) supply any additional information that reasonably may be required or requested writing by the FTC, Seller and the DOJ Buyer) make or cause to be made all filings and submissions under the Governmental Authorities of HSR Act and any other jurisdiction in which any such filing is made under any other Antitrust LawsLaws applicable to the Buyer with respect to the consummation of the transactions contemplated hereby, and (iv) use reasonable best efforts to take all action necessary to cause the expiration or termination of the any applicable waiting periods under the HSR Act or other Antitrust Laws as soon as practicableAct, and to obtain any required consents under any other Antitrust Laws applicable to the Offer and/or the Merger as soon as practicable, and to avoid any impediment to the consummation including requesting early termination of the Offer HSR waiting period, (ii) make any further filings pursuant thereto that may be necessary, proper or the Merger under any Antitrust Laws, including using advisable in connection therewith; (iii) use reasonable best efforts to take comply as promptly as practicable with any additional requests for information, including requests for production of information or documents and production of witnesses for interviews or depositions by any Governmental Entity in connection with such filings that may be requested pursuant to any Law or by such Governmental Entity; and (iv) reasonably cooperate with the Company and its Subsidiaries and the Seller in exchanging such information and assistance as the Company or its Subsidiaries or the Seller may reasonably request in connection with the foregoing.
(b) The Buyer and its Affiliates agree to take, or cause to be taken, all actions and do, or cause to be done, all other things necessary, proper or advisable to consummate and make effective the transactions contemplated hereby, including taking all such further action as reasonably may be necessary to promptly resolve such objections, if any, as the FTC, the DOJ, or any other Governmental Authority or Person Entity may assert under any applicable Antitrust Laws with respect to the Offer and/or the Merger.
(b) Each of Parent and Acquisition Sub (and their respective Affiliates, if applicable), on the one hand, and the Company, on the other hand, shall promptly inform the other of any communication from any Governmental Authority regarding any of the transactions contemplated by this Agreement in connection with any filings or investigations with, by or before any Governmental Authority relating to this Agreement or the transactions contemplated hereby, including any proceedings initiated by a private party. If any party hereto or Affiliate thereof shall receive a request for additional information or documentary material from any Governmental Authority Law with respect to the transactions contemplated hereby, and to avoid or eliminate each and every impediment under applicable Law that may be asserted by this Agreement pursuant to the HSR or any other Antitrust Laws Governmental Entity with respect to which any such filings have been made, then such party shall use its reasonable best efforts the transactions contemplated hereby so as to make, or cause enable the Closing to be made, occur as soon as reasonably practicable possible (and after consultation with in any event no later than the other party, an appropriate response in compliance with such request. In connection with and without limiting the foregoing, to the extent reasonably practicable and unless prohibited by applicable Law or by the applicable Governmental Authority, the parties hereto agree to (i) give each other reasonable advance notice of all meetings with any Governmental Authority relating to the Offer or the Merger, (ii) give each other an opportunity to participate in each of such meetings, (iii) keep the other party reasonably apprised with respect to any oral communications with any Governmental Authority regarding the Offer or the Merger, (iv) cooperate in the filing of any analyses, presentations, memoranda, briefs, arguments, opinions or other written communications explaining or defending the Offer and the Merger, articulating any regulatory or competitive argument and/or responding to requests or objections made by any Governmental Authority, (v) provide each other with a reasonable advance opportunity to review and comment upon, and consider in good faith the views of the other with respect to, all written communications (including any analyses, presentations, memoranda, briefs, arguments and opinions) with a Governmental Authority regarding the Offer and the Merger, (vi) provide each other (or counsel of each party, as appropriate) with copies of all written communications to or from any Governmental Authority relating to the Offer or the Merger, and (vii) cooperate and provide each other with a reasonable opportunity to participate in, and consider in good faith the views of the other with respect to, all material deliberations with respect to all efforts to satisfy the conditions set forth in clauses (A) and (C)(1) of Annex A and Section 9.1(cEnd Date). Any such disclosures, rights to participate or provisions of information by one party to the other may be made on a counsel-only basis to the extent required under applicable Law or as appropriate to protect confidential business information or the attorney client privilege or attorney work product.
(c) Each of Parent, Acquisition Sub and the Company shall cooperate with one another in good faith to (i) promptly determine whether any filings not contemplated by Section 8.2(a) are required to be or should be made, and whether any other consents, approvals, permits or authorizations not contemplated by Section 8.2(a) are required to be or should be obtained, from any Governmental Authority under any other applicable Law in connection with the transactions contemplated hereby, and (ii) promptly make any filings, furnish information required in connection therewith and seek to obtain timely any such consents, permits, authorizations, approvals or waivers that the parties determine are required to be or should be made or obtained in connection with the transactions contemplated hereby.
(d) Notwithstanding anything to the contrary in this Agreement, in connection with any filing or submission required or action to be taken by either Parent or the Company to consummate the Offer and the Merger, in no event shall Parent or any of its Subsidiaries or Affiliates be obligated to propose or agree to accept any undertaking or condition, to enter into any consent decree, to make any divestiture or accept any operational restriction, or take or commit to take any action (i) the effectiveness or consummation of which is not conditional on the consummation of the Offer and the Merger or (ii) that individually or in the aggregate (x) is or would reasonably be expected to be materially adverse (with materiality, for purposes of this provision, being measured in relation to the size of the Company and its Subsidiaries taken as a whole) to (A) the Company and its Subsidiaries, taken as a whole, or Parent and its Subsidiaries, taken as a whole, either before or after giving effect to the Offer or the Merger, or (B) Parent’s ownership or operation of any material portion of the business or assets of the Company and its Subsidiaries, taken as a whole, or (y) would reasonably be expected to deny Parent the material benefit of the bargains contemplated by the transactions contemplated by this Agreement. The Company shall agree, if requested by Parent in writing, to commit to take any of the forgoing actions with respect to the assets or business of the Company in furtherance of this Section 8.2; provided, however, that notwithstanding anything to the contrary contained herein, nothing in this Agreement will require Buyer or its Affiliates to take any such action may be conditioned upon the consummation of the Merger and other Transactions contemplated by this Agreementaction, enter into any agreement, or make any offer to hold separate, divest or to accept any operational restriction.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Griffon Corp), Stock Purchase Agreement (Ames True Temper, Inc.)
Regulatory Filings. (a) Each of Parent Subject to the terms and Acquisition Sub conditions set forth in the Merger Agreement, the Stockholder shall (and their shall cause its respective Affiliatescontrolled Affiliates to) (i) as promptly as reasonably practicable, if applicable)but in no event later than 30 Business Days after the date hereof unless otherwise agreed in writing by the parties to the Merger Agreement, on the one hand, and the Company, on the other hand, shall (x) file with the FTC and the Antitrust Division make an appropriate filing of the DOJ a Notification and Report Form relating to this Agreement and the transactions contemplated hereby as required by the HSR Act as soon as reasonably practicable from the date following execution and delivery of this Agreement but in no event later than ten (10) Business Days following the execution and delivery of this Agreement, and (y) file comparable pre-merger or post-merger notification filings, forms and submissions with any foreign Governmental Authority that is required by any other Antitrust Laws as soon as reasonably practicable from the date following execution and delivery of this Agreement but in no event later than ten (10) Business Days following the execution and delivery of this Agreement. Each of Parent and the Company shall (i) cooperate and coordinate with the other in the making of such filings, (ii) supply the other with any information that may be required in order to make such filings, (iii) supply any additional information that reasonably may be required or requested by the FTC, the DOJ or the Governmental Authorities of any other jurisdiction in which any such filing is made under any other Antitrust Laws, and (iv) use reasonable best efforts to take all action necessary to cause the expiration or termination of the applicable waiting periods under the HSR Act or other Antitrust Laws as soon as practicable, and to obtain any required consents under any other Antitrust Laws applicable to the Offer and/or the Merger as soon as practicable, and to avoid any impediment to the consummation of the Offer or the Merger under any Antitrust Laws, including using reasonable best efforts to take all such action as reasonably may be necessary to resolve such objections, if any, as the FTC, the DOJ, or any other Governmental Authority or Person may assert under any applicable Antitrust Laws with respect to the Offer and/or the Merger.
(b) Each of Parent Transactions and Acquisition Sub (and their respective Affiliates, if applicable), on the one hand, and the Company, on the other hand, shall promptly inform the other of any communication from any Governmental Authority regarding any request early termination of the transactions contemplated by this Agreement in connection with any filings or investigations with, by or before any Governmental Authority relating to this Agreement or the transactions contemplated hereby, including any proceedings initiated by a private party. If any party hereto or Affiliate thereof shall receive a request for additional information or documentary material from any Governmental Authority with respect to the transactions contemplated by this Agreement pursuant to waiting period under the HSR or any other Antitrust Laws with respect to which any such filings have been made, then such party shall Act; and (ii) use its reasonable best efforts to maketake, or cause to be madetaken, all actions, to file, or cause to be filed, all documents and to do, or cause to be done, and to assist and cooperate with the other Parties in doing, all things necessary, proper or advisable to satisfy the conditions to the Closing and consummate and make effective the Transactions as soon as reasonably practicable practicable, and after consultation with the other party, an appropriate response in compliance with such request. In connection with and without limiting the foregoing, any event prior to the extent reasonably practicable and unless prohibited by applicable Law or by Termination Date, including (a) the applicable Governmental Authority, the parties hereto agree to (i) give each other reasonable advance notice obtaining of all meetings with any Governmental Authority relating to the Offer necessary actions or the Mergernonactions, (ii) give each other an opportunity to participate in each of such meetingswaivers, (iii) keep the other party reasonably apprised with respect to any oral communications with any Governmental Authority regarding the Offer or the Mergerconsents, (iv) cooperate in the filing of any analysesclearances, presentationsdecisions, memoranda, briefs, arguments, opinions or other written communications explaining or defending the Offer and the Merger, articulating any regulatory or competitive argument and/or responding to requests or objections made by any Governmental Authority, (v) provide each other with a reasonable advance opportunity to review and comment upon, and consider in good faith the views of the other with respect to, all written communications (including any analyses, presentations, memoranda, briefs, arguments and opinions) with a Governmental Authority regarding the Offer and the Merger, (vi) provide each other (or counsel of each party, as appropriate) with copies of all written communications to or from any Governmental Authority relating to the Offer or the Merger, and (vii) cooperate and provide each other with a reasonable opportunity to participate in, and consider in good faith the views of the other with respect to, all material deliberations with respect to all efforts to satisfy the conditions set forth in clauses (A) and (C)(1) of Annex A and Section 9.1(c). Any such disclosures, rights to participate or provisions of information by one party to the other may be made on a counsel-only basis to the extent required under applicable Law or as appropriate to protect confidential business information or the attorney client privilege or attorney work product.
(c) Each of Parent, Acquisition Sub and the Company shall cooperate with one another in good faith to (i) promptly determine whether any filings not contemplated by Section 8.2(a) are required to be or should be made, and whether any other consentsdeclarations, approvals, permits and expirations or authorizations not contemplated terminations of waiting periods from Governmental Bodies and the making of all necessary registrations and filings and the taking of all steps as may be necessary to obtain any such consent, decision, declaration, approval, clearance or waiver, or expiration or termination of a waiting period by Section 8.2(a) are required or from, or to be avoid an action or should be obtainedproceeding by, from any Governmental Authority under any Body, (b) the obtaining of all other applicable Law in connection with the transactions contemplated hereby, and (ii) promptly make any filings, furnish information required in connection therewith and seek to obtain timely any such necessary consents, permits, authorizations, approvals or waivers that from third parties, and (c) the parties determine are required execution and delivery of any additional instruments necessary or reasonably advisable to be or should be made or obtained in connection with consummate the transactions contemplated hereby.
(d) Notwithstanding anything to the contrary Transactions. Nothing in this Agreement, in connection with any filing or submission required or action to be taken by either Parent or including this Section 9, obligates the Company to consummate the Offer and the MergerStockholder, in no event shall Parent or any of its Subsidiaries or Affiliates be obligated to propose or agree to accept any undertaking or conditionAffiliates, to (a) sell, divest, license, or otherwise dispose of any assets, operations, businesses, or ownership interests (other than the Covered Shares), (b) enter into any consent decreecommitment or agreement affecting the operations or businesses of itself, to make any divestiture or accept any operational restriction, or take or commit to take any action (i) the effectiveness or consummation of which is not conditional on the consummation of the Offer and the Merger or (ii) that individually or in the aggregate (x) is or would reasonably be expected to be materially adverse (with materiality, for purposes of this provision, being measured in relation to the size of the Company and its Subsidiaries taken as a whole) to or Affiliates (A) the Company and its Subsidiaries, taken as a whole, or Parent and its Subsidiaries, taken as a whole, either before or after giving effect to the Offer or the Merger, or (B) Parent’s ownership or operation of any material portion of the business or assets of the Company and its Subsidiaries, taken as a whole, or (y) would reasonably be expected to deny Parent the material benefit of the bargains contemplated by the transactions contemplated by this Agreement. The Company shall agree, if requested by Parent in writing, to commit to take any of the forgoing actions other than with respect to the assets or business disposition of the Company Covered Shares in furtherance of this Section 8.2; providedthe Merger), however, that or (c) offer or agree to do any such action may be conditioned upon the consummation of the Merger and foregoing. Parent shall pay all filing fees associated with any filings under the HSR Act or any other Transactions filings contemplated by this AgreementSection 9 relating to the transactions contemplated hereby.
Appears in 2 contracts
Sources: Support Agreement (Fortress Biotech, Inc.), Support Agreement (Checkpoint Therapeutics, Inc.)
Regulatory Filings. (a) Each of Parent Parent, Merger Sub and Acquisition Sub (the Company shall coordinate and their respective Affiliates, if applicable), on the cooperate with one handanother and shall each use all reasonable efforts to comply with, and shall each refrain from taking any action that would impede compliance with, all Legal Requirements, and as promptly as practicable after the Companydate hereof, on each of Parent, Merger Sub and the Company shall make all filings, notices, petitions, statements, registrations, submissions of information, application or submission of other handdocuments required by any Governmental Entity in connection with the Merger and the transactions contemplated hereby, shall including, without limitation: (xi) file Notification and Report Forms with the FTC and the Antitrust Division of the DOJ a Notification and Report Form relating to this Agreement and the transactions contemplated hereby as required by the HSR Act Act, (ii) filings under any other comparable pre-merger notification forms reasonably determined by Parent to be required by the Antitrust Laws of any applicable jurisdiction, as soon as reasonably practicable from agreed by the date following execution parties hereto, and delivery (iii) any filings required under the Securities Act, the Exchange Act, any applicable state or securities or “blue sky” laws and the securities laws of this Agreement but in no event later than ten (10) Business Days following any foreign country, or any other Legal Requirement relating to the execution and delivery Merger. For purposes of this Agreement, “Antitrust Law” means the ▇▇▇▇▇▇▇ Act, as amended, the ▇▇▇▇▇▇▇ Act, as amended, Council Regulation (EC) 139/2004, the HSR Act, the Federal Trade Commission Act, as amended, and all other national, provincial, and state (yU.S. and non-U.S.) file comparable pre-statutes, rules, regulations, orders, decrees, administrative and judicial doctrines and other laws that are designed or intended to prohibit, restrict or regulate actions having the purpose or effect of monopolization or restraint of trade or impeding or lessening of competition through merger or post-merger notification filingsacquisition, forms and submissions with in any foreign Governmental Authority case that is required are applicable to the transactions contemplated by any other Antitrust Laws as soon as reasonably practicable from the date following execution and delivery of this Agreement but in no event later than ten (10) Business Days following the execution and delivery of this Agreement. Each of Parent and the Company shall (i) cooperate and coordinate with the other in the making of such filings, (ii) supply the other with any information will cause all documents that may be required in order to make such filings, (iii) supply any additional information that reasonably may be required or requested by the FTC, the DOJ or the Governmental Authorities of any other jurisdiction in which any such it is responsible for filing is made under any other Antitrust Laws, and (iv) use reasonable best efforts to take all action necessary to cause the expiration or termination of the applicable waiting periods under the HSR Act or other Antitrust Laws as soon as practicable, and to obtain any required consents under any other Antitrust Laws applicable to the Offer and/or the Merger as soon as practicable, and to avoid any impediment to the consummation of the Offer or the Merger under any Antitrust Laws, including using reasonable best efforts to take all such action as reasonably may be necessary to resolve such objections, if any, as the FTC, the DOJ, or any other Governmental Authority or Person may assert under any applicable Antitrust Laws with respect to the Offer and/or the Merger.
(b) Each of Parent and Acquisition Sub (and their respective Affiliates, if applicable), on the one hand, and the Company, on the other hand, shall promptly inform the other of any communication from any Governmental Authority regarding any of the transactions contemplated by this Agreement in connection with any filings or investigations with, by or before any Governmental Authority relating to this Agreement or the transactions contemplated hereby, including any proceedings initiated by a private party. If any party hereto or Affiliate thereof shall receive a request for additional information or documentary material from any Governmental Authority with respect to the transactions contemplated by this Agreement pursuant to the HSR or any other Antitrust Laws with respect to which any such filings have been made, then such party shall use its reasonable best efforts to make, or cause to be made, as soon as reasonably practicable and after consultation with the other party, an appropriate response in compliance with such request. In connection with and without limiting the foregoing, to the extent reasonably practicable and unless prohibited by applicable Law or by the applicable Governmental Authority, the parties hereto agree to (i) give each other reasonable advance notice of all meetings with any Governmental Authority relating Entity under this Section 6.6(a) to the Offer or the Merger, (ii) give each other an opportunity to participate comply in each of such meetings, (iii) keep the other party reasonably apprised with respect to any oral communications with any Governmental Authority regarding the Offer or the Merger, (iv) cooperate in the filing of any analyses, presentations, memoranda, briefs, arguments, opinions or other written communications explaining or defending the Offer and the Merger, articulating any regulatory or competitive argument and/or responding to requests or objections made by any Governmental Authority, (v) provide each other with a reasonable advance opportunity to review and comment upon, and consider in good faith the views of the other with respect to, all written communications (including any analyses, presentations, memoranda, briefs, arguments and opinions) with a Governmental Authority regarding the Offer and the Merger, (vi) provide each other (or counsel of each party, as appropriate) with copies of all written communications to or from any Governmental Authority relating to the Offer or the Merger, and (vii) cooperate and provide each other with a reasonable opportunity to participate in, and consider in good faith the views of the other with respect to, all material deliberations respects with respect to all efforts to satisfy the conditions set forth in clauses (A) and (C)(1) of Annex A and Section 9.1(c). Any such disclosures, rights to participate or provisions of information by one party to the other may be made on a counsel-only basis to the extent required under applicable Law or as appropriate to protect confidential business information or the attorney client privilege or attorney work productLegal Requirements.
(c) Each of Parent, Acquisition Sub and the Company shall cooperate with one another in good faith to (i) promptly determine whether any filings not contemplated by Section 8.2(a) are required to be or should be made, and whether any other consents, approvals, permits or authorizations not contemplated by Section 8.2(a) are required to be or should be obtained, from any Governmental Authority under any other applicable Law in connection with the transactions contemplated hereby, and (ii) promptly make any filings, furnish information required in connection therewith and seek to obtain timely any such consents, permits, authorizations, approvals or waivers that the parties determine are required to be or should be made or obtained in connection with the transactions contemplated hereby.
(d) Notwithstanding anything to the contrary in this Agreement, in connection with any filing or submission required or action to be taken by either Parent or the Company to consummate the Offer and the Merger, in no event shall Parent or any of its Subsidiaries or Affiliates be obligated to propose or agree to accept any undertaking or condition, to enter into any consent decree, to make any divestiture or accept any operational restriction, or take or commit to take any action (i) the effectiveness or consummation of which is not conditional on the consummation of the Offer and the Merger or (ii) that individually or in the aggregate (x) is or would reasonably be expected to be materially adverse (with materiality, for purposes of this provision, being measured in relation to the size of the Company and its Subsidiaries taken as a whole) to (A) the Company and its Subsidiaries, taken as a whole, or Parent and its Subsidiaries, taken as a whole, either before or after giving effect to the Offer or the Merger, or (B) Parent’s ownership or operation of any material portion of the business or assets of the Company and its Subsidiaries, taken as a whole, or (y) would reasonably be expected to deny Parent the material benefit of the bargains contemplated by the transactions contemplated by this Agreement. The Company shall agree, if requested by Parent in writing, to commit to take any of the forgoing actions with respect to the assets or business of the Company in furtherance of this Section 8.2; provided, however, that any such action may be conditioned upon the consummation of the Merger and other Transactions contemplated by this Agreement.
Appears in 2 contracts
Sources: Merger Agreement (Quantum Corp /De/), Merger Agreement (Advanced Digital Information Corp)
Regulatory Filings. (a) Each of Parent and Acquisition Merger Sub (and their respective Affiliates, if applicable), on the one hand, and the CompanyCompany (and its Affiliates, if applicable), on the other hand, shall shall, to the extent required, promptly (x) file with the FTC and, in any case, unless otherwise agreed by Parent and the Antitrust Division of the DOJ a Notification and Report Form relating to this Agreement and the transactions contemplated hereby as required by the HSR Act as soon as Company acting reasonably practicable from the date following execution and delivery of this Agreement but in no event later than (1) within ten (10) Business Days following of the execution and delivery date of this AgreementAgreement in the case of filings under the HSR Act, (2) within fifteen (15) Business Days in the case of the filing of the draft CFIUS Notice and the DCSA Notice, and (y3) as soon as reasonably practicable after the date of this Agreement in the case of all other filings or submissions or, in any case, within such shorter time periods as may be required pursuant to applicable Law) file comparable pre-merger or post-merger such applications, notification filings, forms and submissions submissions, including any draft notifications in jurisdictions requiring pre-notification, with any foreign Governmental Authority that is as are (x) required by applicable Antitrust Laws or Foreign Investment Laws in connection with the Transaction, (y) required to obtain DCSA Approval pursuant to the NISPOM Rule or required by any other Antitrust Laws as soon as reasonably practicable from the date following execution and delivery of this Agreement but in no event later than ten applicable U.S. or non-U.S. national industrial security regulations, or (10z) Business Days following the execution and delivery of this Agreementrequired to obtain any other Regulatory Approval. Each of Parent Parent, Merger Sub and the Company shall (i) cooperate and coordinate (and shall cause their respective Affiliates to cooperate and coordinate) with the other in the making of such filings, filings or submissions; (ii) supply the other (or cause the other to be supplied) with any information that may be required in order to make such filings, filings or submissions; (iii) supply (or cause to be supplied) any additional information that reasonably may be required or requested by the FTC, the DOJ or the applicable Governmental Authorities of any other jurisdiction in which any connection with making such filing is made under any other Antitrust Laws, filings or submissions and obtaining the Regulatory Approvals; and (iv) use (and cause their respective Affiliates to use) reasonable best efforts to take all action necessary to cause the expiration actions required, proper or termination of the applicable waiting periods under the HSR Act or other Antitrust Laws as soon as practicable, and advisable to obtain the Regulatory Approvals, in each case promptly and in any required consents under any other Antitrust Laws applicable event prior to the Offer and/or the Merger as soon as practicable, Termination Date and to avoid any impediment to the consummation of the Offer action, Legal Proceeding, Order or the Merger other determination by any Governmental Authority under any Antitrust Laws, including using reasonable best efforts Foreign Investment Laws, the NISPOM Rule or any other applicable U.S. or non-U.S. national industrial security regulations or any other Regulatory Approval; provided that nothing in this Section 6.2 shall require the Company, Merger Sub or Parent to accept any condition, limitation or remedy required to obtain any Regulatory Approvals that is not conditioned on the consummation of the Merger and solely (A) with respect to any condition or remedy required to obtain Regulatory Approvals under Antitrust Laws, that would require Parent, the Company or any of their respective Affiliates to sell, divest, or otherwise dispose of, license, hold separate, or take or commit to take all such any action as reasonably may be necessary that limits in any respect its freedom of action with respect to, or its ability to resolve such objectionsretain, if anyany business, as products, rights, services, licenses, assets or properties of Parent or the FTC, the DOJCompany, or any other Governmental Authority of their Affiliates; or Person may assert under any applicable Antitrust Laws (B) with respect to any condition or remedy required to obtain Regulatory Approvals under Foreign Investment Laws, that would require the Offer and/or establishment or implementation or the Merger.
agreement to establish or implement a proxy or voting trust agreement or the equivalent that would materially restrict or interfere with Parent’s rights to control the governance body of the Surviving Corporation following the consummation of the Merger (bany such condition or remedy described in the foregoing clauses (A) Each and (B), a “Burdensome Condition”). The Company shall not, and shall cause its Affiliates not to, accept any Burdensome Condition without the prior written consent of Parent, which may be withheld at Parent’s sole discretion. Without limiting the foregoing, each of Parent and Acquisition Merger Sub (and their respective Affiliates, if applicable), on the one hand, and the CompanyCompany (and its Affiliates, if applicable), on the other hand, shall promptly inform the other of any communication from any Governmental Authority regarding any of the transactions contemplated by this Agreement Merger in connection with such filings. Without limitation to Section 6.2(b), if any filings or investigations with, by or before any Governmental Authority relating to this Agreement or the transactions contemplated hereby, including any proceedings initiated by a private party. If any party hereto Party or Affiliate thereof shall receive receives any comments or a request for additional information or documentary material from any Governmental Authority with respect to the transactions contemplated by this Agreement pursuant to the HSR or any other Antitrust Laws with respect to which any such filings have been madeMerger, then such party Party shall use its reasonable best efforts to make, make (or cause to be made), as soon promptly as reasonably practicable and after consultation with the other partyParties, an appropriate response in compliance with to such request. In connection with and without limiting the foregoingUpon an FDI Turndown or a CFIUS Turndown, Parent or Merger Sub may, as many times as it reasonably determines to be necessary prior to the extent reasonably practicable and unless prohibited by applicable Law or by termination of this Agreement to obtain the applicable Regulatory Approval, request to withdraw the relevant filing from the relevant Governmental Authority (and any associated conditions imposed in connection therewith) and, if such withdrawal is effected, refile an application with the relevant Governmental Authority, the parties hereto agree to (i) give each other reasonable advance notice of all meetings with any Governmental Authority relating to the Offer or the Merger, (ii) give each other an opportunity to participate in each of such meetings, (iii) keep the other party reasonably apprised with respect to any oral communications with any Governmental Authority regarding the Offer or the Merger, (iv) cooperate in the filing of any analyses, presentations, memoranda, briefs, arguments, opinions or other written communications explaining or defending the Offer and the Merger, articulating any regulatory or competitive argument and/or responding to requests or objections made by any Governmental Authority, (v) provide each other with a reasonable advance opportunity to review and comment upon, and consider in good faith the views of the other with respect to, all written communications (including any analyses, presentations, memoranda, briefs, arguments and opinions) with a Governmental Authority regarding the Offer and the Merger, (vi) provide each other (or counsel of each party, as appropriate) with copies of all written communications to or from any Governmental Authority relating to the Offer or the Merger, and (vii) cooperate and provide each other with a reasonable opportunity to participate in, and consider in good faith the views of the other with respect to, all material deliberations with respect to all efforts to satisfy the conditions set forth in clauses (A) and (C)(1) of Annex A and Section 9.1(c). Any such disclosures, rights to participate or provisions of information by one party to the other may be made on a counsel-only basis to the extent required under applicable Law or as appropriate to protect confidential business information or the attorney client privilege or attorney work product.
(c) Each of Parent, Acquisition Sub and the Company shall cooperate with one another in good faith to (i) promptly determine whether any filings not contemplated by Section 8.2(a) are required to be or should be made, such request and whether any other consents, approvals, permits or authorizations not contemplated by Section 8.2(a) are required to be or should be obtained, from any Governmental Authority under any other applicable Law in connection with the transactions contemplated hereby, and (ii) promptly make any filings, furnish information required in connection therewith and seek to obtain timely any such consents, permits, authorizations, approvals or waivers that the parties determine are required to be or should be made or obtained in connection with the transactions contemplated hereby.
(d) refiling. Notwithstanding anything to the contrary in this Agreement, in connection with no event will Parent effect any filing withdrawal of any application, notification filing, form or submission required filed or action to be taken by either Parent submitted, or the Company to consummate the Offer and the Merger, in no event shall Parent or any of its Subsidiaries or Affiliates be obligated to propose or agree to accept any undertaking or condition, to enter into any consent decree, agreement or understanding with any Governmental Authority to make any divestiture delay or accept any operational restriction, or take or commit to take any action (i) the effectiveness or consummation of which is not conditional on effect the consummation of the Offer and the Merger Transaction, in each case with respect to any Regulatory Approvals, if such withdrawal, agreement or (ii) that individually or in the aggregate (x) is or understanding would reasonably be expected to be materially adverse (with materiality, for purposes of this provision, being measured in relation to the size of the Company and its Subsidiaries taken as a whole) to (A) the Company and its Subsidiaries, taken as a whole, or Parent and its Subsidiaries, taken as a whole, either before or after giving effect to the Offer or the Merger, or (B) Parent’s ownership or operation of any material portion of the business or assets of the Company and its Subsidiaries, taken as a whole, or (y) would reasonably be expected to deny Parent the material benefit of the bargains contemplated by the transactions contemplated by this Agreement. The Company shall agree, if requested by Parent in writing, to commit to take any of the forgoing actions with respect to the assets or business of the Company in furtherance of this Section 8.2; provided, however, that any such action may be conditioned upon prevent the consummation of the Merger and other Transactions contemplated by this Agreementprior to the Termination Date.
Appears in 2 contracts
Sources: Merger Agreement (Infinera Corp), Merger Agreement (Nokia Corp)
Regulatory Filings. (a) Each The parties will cooperate to determine if a filing under the HSR Act is required in connection with the transactions contemplated by this Agreement and, if required, will file or cause to be filed as promptly as practicable with the United States Federal Trade Commission and the United States Department of Justice all filings and any supplemental information that may be requested pursuant to the HSR Act; provided that, at the election of Parent and Acquisition Sub subject to the consent of Seller (and their respective Affiliates, if applicablewhich consent will not be unreasonably withheld or delayed), on Parent, Purchaser and Seller may defer the one hand, and the Company, on the other hand, shall (x) file with the FTC and the Antitrust Division filing of the DOJ a Notification and Report Form relating to this Agreement and the transactions contemplated hereby as required by any pre-merger notification report under the HSR Act as soon as reasonably practicable from the date following execution and delivery of this Agreement but in no event later than ten (10) Business Days following until promptly after the execution and delivery of this Agreement, and (y) file comparable pre-merger or post-merger notification filings, forms and submissions with any foreign Governmental Authority that is required by any other Antitrust Laws as soon as reasonably practicable from the date following execution and delivery of this Agreement but in no event later than ten (10) Business Days following the execution and delivery of this Agreement. Each of Parent and the Company shall (i) cooperate and coordinate with of a definitive agreement in respect of the other in the making of such filings, (ii) supply the other with any information that may be required in order to make such filings, (iii) supply any additional information that reasonably may be required or requested Transaction contemplated by the FTC, the DOJ or the Governmental Authorities of any other jurisdiction Public Letter (as defined in which any such filing is made under any other Antitrust Laws, and (iv) use reasonable best efforts to take all action necessary to cause the expiration or termination of the applicable waiting periods under the HSR Act or other Antitrust Laws as soon as practicable, and to obtain any required consents under any other Antitrust Laws Section 3.11). If applicable to the Offer and/or the Merger as soon as practicable, and to avoid any impediment to the consummation of the Offer or the Merger under any Antitrust Laws, including using reasonable best efforts to take all such action as reasonably may be necessary to resolve such objections, if any, as the FTC, the DOJ, or any other Governmental Authority or Person may assert under any applicable Antitrust Laws with respect to the Offer and/or the Merger.
(b) Each of Parent and Acquisition Sub (and their respective Affiliates, if applicable), on the one hand, and the Company, on the other hand, shall promptly inform the other of any communication from any Governmental Authority regarding any of the transactions contemplated by this Agreement Agreement, Purchaser and Parent will each make such filings and use their respective reasonable best efforts to obtain all Permits required by Law. Each of Seller and the Majority Member will, and will cause the Company to, make such filings and use its reasonable best efforts to obtain the governmental approvals referred to in connection Section 2.1.5. Purchaser and Parent will each make such filings and use their respective reasonable best efforts to obtain the governmental approvals referred to in Section 2.3.3. All filings referred to in this Section 3.2(a) will comply in all material respects with the requirements of the respective Laws pursuant to which they are made.
(b) Without limiting the generality or effect of Section 3.2(a), each of the parties will (i) use their respective reasonable best efforts to comply as expeditiously as possible with all lawful requests of Governmental Authorities for additional information and documents pursuant to the HSR Act, if applicable, (ii) not (A) extend any filings waiting period under the HSR Act, if applicable, or investigations with, by or before (B) enter into any agreement with any Governmental Authority relating not to this Agreement or the transactions contemplated hereby, including any proceedings initiated by a private party. If any party hereto or Affiliate thereof shall receive a request for additional information or documentary material from any Governmental Authority with respect to consummate the transactions contemplated by this Agreement pursuant to the HSR or any Transaction Document, except with the prior consent of Seller, in the case of Parent and Purchaser, or Parent, in the case of Seller or the Majority Member, and (iii) cooperate with each other Antitrust Laws with respect to which any such filings have been made, then such party shall and use its their respective reasonable best efforts to make, cause the lifting or cause to be made, as soon as reasonably practicable and after consultation with the other party, an appropriate response in compliance with such request. In connection with and without limiting the foregoing, to the extent reasonably practicable and unless prohibited by applicable Law or by the applicable Governmental Authority, the parties hereto agree to (i) give each other reasonable advance notice of all meetings with any Governmental Authority relating to the Offer or the Merger, (ii) give each other an opportunity to participate in each of such meetings, (iii) keep the other party reasonably apprised with respect to any oral communications with any Governmental Authority regarding the Offer or the Merger, (iv) cooperate in the filing removal of any analysestemporary restraining order, presentations, memoranda, briefs, arguments, opinions preliminary injunction or other written communications explaining judicial or defending the Offer and the Merger, articulating any regulatory or competitive argument and/or responding to requests or objections made by any Governmental Authority, (v) provide each other with a reasonable advance opportunity to review and comment upon, and consider in good faith the views of the other with respect to, all written communications (including any analyses, presentations, memoranda, briefs, arguments and opinions) with a Governmental Authority regarding the Offer and the Merger, (vi) provide each other (or counsel of each party, as appropriate) with copies of all written communications to or from any Governmental Authority relating to the Offer or the Merger, and (vii) cooperate and provide each other with a reasonable opportunity to participate in, and consider in good faith the views of the other with respect to, all material deliberations with respect to all efforts to satisfy the conditions set forth in clauses (A) and (C)(1) of Annex A and Section 9.1(c). Any such disclosures, rights to participate or provisions of information by one party to the other administrative order which may be made on a counsel-only basis to the extent required under applicable Law or as appropriate to protect confidential business information or the attorney client privilege or attorney work product.
(c) Each of Parent, Acquisition Sub and the Company shall cooperate with one another in good faith to (i) promptly determine whether any filings not contemplated by Section 8.2(a) are required to be or should be made, and whether any other consents, approvals, permits or authorizations not contemplated by Section 8.2(a) are required to be or should be obtained, from any Governmental Authority under any other applicable Law entered into in connection with the transactions contemplated hereby, and (ii) promptly make any filings, furnish information required in connection therewith and seek to obtain timely any such consents, permits, authorizations, approvals or waivers that the parties determine are required to be or should be made or obtained in connection with the transactions contemplated hereby.
(d) Notwithstanding anything to the contrary in this Agreement, in connection with any filing or submission required or action to be taken by either Parent or the Company to consummate the Offer and the Merger, in no event shall Parent or any of its Subsidiaries or Affiliates be obligated to propose or agree to accept any undertaking or condition, to enter into any consent decree, to make any divestiture or accept any operational restriction, or take or commit to take any action (i) the effectiveness or consummation of which is not conditional on the consummation of the Offer and the Merger or (ii) that individually or in the aggregate (x) is or would reasonably be expected to be materially adverse (with materiality, for purposes of this provision, being measured in relation to the size of the Company and its Subsidiaries taken as a whole) to (A) the Company and its Subsidiaries, taken as a whole, or Parent and its Subsidiaries, taken as a whole, either before or after giving effect to the Offer or the Merger, or (B) Parent’s ownership or operation of any material portion of the business or assets of the Company and its Subsidiaries, taken as a whole, or (y) would reasonably be expected to deny Parent the material benefit of the bargains contemplated by the transactions contemplated by this Agreement. The Company shall agreeNotwithstanding the foregoing or any other provision of this Agreement, if requested by in no event will Parent in writing, to commit to take or Purchaser or any of the forgoing actions with respect their Affiliates be required to the divest, hold separate or otherwise limit, or enter into any agreement to divest, hold separate or otherwise limit, any of their respective assets or businesses or any portion of the business of the Company in furtherance of this Section 8.2; provided, however, that any such action may be conditioned upon the consummation of the Merger and other Transactions contemplated by this AgreementCompany.
Appears in 2 contracts
Sources: Share Purchase Agreement (Organic Inc), Share Purchase Agreement (Seneca Investments LLC)
Regulatory Filings. EXCO and ESAS shall, and shall cause their respective Affiliates to (a) Each make or cause to be made the filings required of Parent and Acquisition Sub (and their respective Affiliates, if applicable), on such Party or any of its Affiliates under any Laws with respect to the one hand, and the Company, on the other hand, shall (x) file with the FTC and the Antitrust Division of the DOJ a Notification and Report Form relating to transactions contemplated by this Agreement and the transactions contemplated hereby to pay any fees due by such Party in connection with such filings, as required by the HSR Act promptly as soon as is reasonably practicable from the date following execution practicable, and delivery of this Agreement but in no any event later than within ten (10) Business Days following after the Execution Date (other than (1) the Proxy Statement, which EXCO shall use its commercially reasonable efforts to file as promptly as practicable after execution and delivery of this Agreement, and (y) file comparable pre-merger or post-merger notification filings, forms and submissions with any foreign Governmental Authority that is required by any other Antitrust Laws as soon as reasonably practicable from the date following execution and delivery of this Agreement but and in no any event later not more than ten thirty (1030) Business Days following days after the execution Execution Date in accordance with Section 5.9 or (2) under the HSR Act, which the Parties shall use commercially reasonable efforts to file as and delivery of this Agreement. Each of Parent and when required under the Company shall HSR Act), (ib) cooperate and coordinate with the other Parties and furnish all information in the making of such Party’s possession that is necessary in connection with such other Party’s filings, (ii) supply the other with any information that may be required in order to make such filings, (iii) supply any additional information that reasonably may be required or requested by the FTC, the DOJ or the Governmental Authorities of any other jurisdiction in which any such filing is made under any other Antitrust Laws, and (ivc) use commercially reasonable best efforts to take all action necessary to cause the expiration or termination of the applicable notice or waiting periods under the HSR Act or other Antitrust Laws as soon as practicableand, and to obtain any required consents under if applicable, any other Antitrust Laws applicable to the Offer and/or the Merger as soon as practicable, and to avoid any impediment to the consummation of the Offer or the Merger under any Antitrust Laws, including using reasonable best efforts to take all such action as reasonably may be necessary to resolve such objections, if any, as the FTC, the DOJ, or any other Governmental Authority or Person may assert under any applicable Antitrust Laws with respect to the Offer and/or the Merger.
(b) Each of Parent and Acquisition Sub (and their respective Affiliates, if applicable), on the one hand, and the Company, on the other hand, shall promptly inform the other of any communication from any Governmental Authority regarding any of the transactions contemplated by this Agreement as promptly as is reasonably practicable, (d) promptly inform the other Party of (and, at the other Party’s reasonable request, supply to such other Party) any communication (or other correspondence or memoranda) from or to, and any proposed understanding or agreement with, any Governmental Authority in respect of such filings, (e) consult and cooperate with the other Party in connection with any filings analyses, appearances, presentations, memoranda, briefs, arguments and opinions made or investigations with, submitted by or before on behalf of any Party in connection with all meetings, actions, discussions and proceedings with Governmental Authorities relating to such filings, including, subject to applicable Law, permitting the other Party to review in advance any proposed written communication between it and any Governmental Authority, (f) comply, as promptly as is reasonably practicable, with any requests of any Governmental Authority relating to this Agreement received by such Party or any of its Affiliates under the transactions contemplated hereby, including HSR Act and any proceedings initiated by a private party. If any party hereto or Affiliate thereof shall receive a request other Laws for additional information information, documents or documentary material from other materials, (g) use commercially reasonable efforts to resolve any objections as may be asserted by any Governmental Authority with respect to the transactions contemplated by this Agreement, and (h) use commercially reasonable efforts to contest and resist any action or proceeding instituted (or threatened in writing to be instituted) by any Governmental Authority challenging the transactions contemplated by this Agreement pursuant to the HSR as in violation of any Law. If a Party or any other Antitrust Laws with respect of its Affiliates intends to which participate in any such filings have been made, then such party shall use its reasonable best efforts to make, meeting or cause to be made, as soon as reasonably practicable and after consultation with the other party, an appropriate response in compliance with such request. In connection with and without limiting the foregoing, to the extent reasonably practicable and unless prohibited by applicable Law or by the applicable Governmental Authority, the parties hereto agree to (i) give each other reasonable advance notice of all meetings discussion with any Governmental Authority relating to the Offer or the Merger, (ii) give each other an opportunity to participate in each of such meetings, (iii) keep the other party reasonably apprised with respect to any oral communications with any Governmental Authority regarding the Offer such filings or the Mergertransactions contemplated by this Agreement (other than any meetings or discussions with the SEC), (iv) cooperate in it will give the filing of any analyses, presentations, memoranda, briefs, arguments, opinions or other written communications explaining or defending the Offer and the Merger, articulating any regulatory or competitive argument and/or responding to requests or objections made by any Governmental Authority, (v) provide each other with a Party reasonable advance opportunity to review and comment uponprior notice of, and consider in good faith the views of the other with respect to, all written communications (including any analyses, presentations, memoranda, briefs, arguments and opinions) with a Governmental Authority regarding the Offer and the Merger, (vi) provide each other (or counsel of each party, as appropriate) with copies of all written communications to or from any Governmental Authority relating to the Offer or the Merger, and (vii) cooperate and provide each other with a reasonable an opportunity to participate in, and consider in good faith the views of the other with respect to, all material deliberations with respect to all efforts to satisfy the conditions set forth in clauses (A) and (C)(1) of Annex A and Section 9.1(c)such meeting or discussion. Any such disclosures, rights to participate or provisions of information by one party to the other may be made on a counsel-only basis to the extent required under applicable Law or as appropriate to protect confidential business information or the attorney client privilege or attorney work product.
(c) Each of Parent, Acquisition Sub and the Company shall cooperate with one another in good faith to (i) promptly determine whether any filings not contemplated by Section 8.2(a) are required to be or should be made, and whether any other consents, approvals, permits or authorizations not contemplated by Section 8.2(a) are required to be or should be obtained, from any Governmental Authority under any other applicable Law in connection with the transactions contemplated hereby, and (ii) promptly make any filings, furnish information required in connection therewith and seek to obtain timely any such consents, permits, authorizations, approvals or waivers that the parties determine are required to be or should be made or obtained in connection with the transactions contemplated hereby.
(d) Notwithstanding anything to the contrary in this Agreement, in connection with any filing or submission required or action to be taken by either Parent or the Company to consummate the Offer and the Mergerset forth herein, in no event shall Parent any Party be required to make any payment, other than filing fees, to such Governmental Authority or concede anything of value, other than such payments or concessions that are de minimis in nature and do not exceed $100,000 in value, in the aggregate, to obtain any such consent, approval or waiver; provided, however, that if any Party is required to make a payment or concession in excess of the forgoing, the other Party may, to the extent possible, elect to make a substitute payment or concession on the first Party’s behalf. No Party shall voluntarily extend any waiting period under the HSR Act or any of its Subsidiaries competition/investment Law or Affiliates be obligated to propose or agree to accept any undertaking or condition, to enter into any consent decree, agreement with any Governmental Authority to make any divestiture delay or accept any operational restriction, or take or commit not to take any action (i) the effectiveness or consummation of which is not conditional on the consummation of the Offer and the Merger or (ii) that individually or in the aggregate (x) is or would reasonably be expected to be materially adverse (with materiality, for purposes of this provision, being measured in relation to the size of the Company and its Subsidiaries taken as a whole) to (A) the Company and its Subsidiaries, taken as a whole, or Parent and its Subsidiaries, taken as a whole, either before or after giving effect to the Offer or the Merger, or (B) Parent’s ownership or operation of any material portion of the business or assets of the Company and its Subsidiaries, taken as a whole, or (y) would reasonably be expected to deny Parent the material benefit of the bargains contemplated by consummate the transactions contemplated by this Agreement. The Company shall agree, if requested by Parent in writing, to commit to take any except with the prior written consent of the forgoing actions with respect other Parties (such consent not to the assets be unreasonably withheld, conditioned or business of the Company in furtherance of this Section 8.2; provided, however, that any such action may be conditioned upon the consummation of the Merger and other Transactions contemplated by this Agreementdelayed).
Appears in 2 contracts
Sources: Services and Investment Agreement (Exco Resources Inc), Services and Investment Agreement (Exco Resources Inc)
Regulatory Filings. (a) Each of Parent and Acquisition Sub (and their respective Affiliates, if applicable), on the one hand, and the Company, on the other hand, shall (x) file with the FTC and the Antitrust Division of the DOJ a Notification and Report Form relating to this Agreement and the transactions contemplated hereby as required by the HSR Act as soon as reasonably practicable from the date following execution and delivery of this Agreement but in no event later than ten (10) Business Days following the execution and delivery of this Agreement, and (y) file comparable pre-merger or post-merger notification filings, forms and submissions with any foreign Governmental Authority that is required by any other Antitrust Laws as soon as reasonably practicable from the date following execution and delivery of this Agreement but in no event later than ten (10) Business Days following the execution and delivery of this Agreement. Each of Parent The Company and the Company shall Subsidiaries have filed and will continue to file in a timely manner (i) cooperate and coordinate after giving effect to the Form 12b-25 filed with the other Commission for the quarter ended June 30, 1997) all required filings with the Commission and any insurance commissioners ("STATE COMMISSIONERS"), (and will furnish the Purchaser with copies of all such filings made subsequent to the date hereof until the Closing Date), and all such filings were or will be, complete and accurate in all material respects as of the making dates of such the filings, (ii) supply the other with and no such filing made or will make any information that may be required untrue statement of a material fact or omitted or omit to state a material fact necessary in order to make such filingsthe statements made, (iii) supply any additional information that reasonably may be required in the light of the circumstances under which they were made, not misleading. Such filings and submissions were in substantial compliance with applicable law when filed or requested by the FTC, the DOJ or the Governmental Authorities of any other jurisdiction in which any such filing is made under any other Antitrust Lawssubmitted, and (iv) use reasonable best efforts to take all action necessary to cause the expiration no material deficiencies have been asserted by any regulatory commission, agency or termination of the applicable waiting periods under the HSR Act or other Antitrust Laws as soon as practicable, and to obtain any required consents under any other Antitrust Laws applicable to the Offer and/or the Merger as soon as practicable, and to avoid any impediment to the consummation of the Offer or the Merger under any Antitrust Laws, including using reasonable best efforts to take all such action as reasonably may be necessary to resolve such objections, if any, as the FTC, the DOJ, or any other Governmental Authority or Person may assert under any applicable Antitrust Laws authority with respect to such filings or submissions. Except as set forth on Schedule 4.18(a) and except for normal examinations conducted by the Offer and/or IRS and the MergerState Commissioners in the regular course of the business of the Company or the Company Subsidiaries, no federal, state or local governmental agency, commission or other entity has initiated any proceeding or, to the best of the knowledge and belief of the Company, investigation into the business or operations of the Company or the Company Subsidiaries within the past three years.
(b) Each of Parent The Company has since January 1, 1992 filed all forms, proxy statements, schedules, reports and Acquisition Sub (and their respective Affiliates, if applicable), on other documents required to be filed by it with the one hand, and the Company, on the other hand, shall promptly inform the other of any communication from any Governmental Authority regarding any of the transactions contemplated by this Agreement in connection with any filings or investigations with, by or before any Governmental Authority relating to this Agreement or the transactions contemplated hereby, including any proceedings initiated by a private party. If any party hereto or Affiliate thereof shall receive a request for additional information or documentary material from any Governmental Authority with respect to the transactions contemplated by this Agreement Commission pursuant to the HSR or any other Antitrust Laws with respect Exchange Act pursuant to which any such filings have been made, then such party shall use its reasonable best efforts to make, or cause to be made, as soon as reasonably practicable rules and after consultation with the other party, an appropriate response in compliance with such request. In connection with and without limiting the foregoing, to the extent reasonably practicable and unless prohibited by applicable Law or by the applicable Governmental Authority, the parties hereto agree to (i) give each other reasonable advance notice of all meetings with any Governmental Authority relating to the Offer or the Merger, (ii) give each other an opportunity to participate in each of such meetings, (iii) keep the other party reasonably apprised with respect to any oral communications with any Governmental Authority regarding the Offer or the Merger, (iv) cooperate in the filing of any analyses, presentations, memoranda, briefs, arguments, opinions or other written communications explaining or defending the Offer and the Merger, articulating any regulatory or competitive argument and/or responding to requests or objections made by any Governmental Authority, (v) provide each other with a reasonable advance opportunity to review and comment upon, and consider in good faith the views of the other with respect to, all written communications (including any analyses, presentations, memoranda, briefs, arguments and opinions) with a Governmental Authority regarding the Offer and the Merger, (vi) provide each other (or counsel of each party, as appropriate) with copies of all written communications to or from any Governmental Authority relating to the Offer or the Merger, and (vii) cooperate and provide each other with a reasonable opportunity to participate in, and consider in good faith the views of the other with respect to, all material deliberations with respect to all efforts to satisfy the conditions set forth in clauses (A) and (C)(1) of Annex A and Section 9.1(c). Any such disclosures, rights to participate or provisions of information by one party to the other may be made on a counsel-only basis to the extent required under applicable Law or as appropriate to protect confidential business information or the attorney client privilege or attorney work productregulations.
(c) Each The Company has heretofore delivered to the Purchaser complete copies of Parentall periodic reports, Acquisition Sub statements and other documents (including exhibits thereto) that the Company shall cooperate has filed with one another in good faith to the Commission under the Exchange Act since January 1, 1994, (i) promptly determine whether any filings not contemplated by Section 8.2(a) are collectively, the "COMPANY SEC REPORTS"). All Company SEC Reports required to be or should be made, and whether any other consents, approvals, permits or authorizations not contemplated by Section 8.2(a) are required to be or should be obtained, from any Governmental Authority under any other applicable Law in connection filed with the transactions contemplated hereby, and (ii) promptly make any filings, furnish information required in connection therewith and seek to obtain timely any such consents, permits, authorizations, approvals or waivers that the parties determine are required to be or should be made or obtained in connection with the transactions contemplated hereby.
(d) Notwithstanding anything to the contrary in this Agreement, in connection with any filing or submission required or action to be taken Commission by either Parent or the Company to consummate the Offer and the Mergerduring such period were, in no event shall Parent or any of its Subsidiaries or Affiliates be obligated to propose or agree to accept any undertaking or condition, to enter into any consent decree, to make any divestiture or accept any operational restriction, or take or commit to take any action (i) the effectiveness or consummation of which is not conditional on the consummation of the Offer and the Merger or (ii) that individually or in the aggregate (x) is or would reasonably be expected to be materially adverse (with materiality, for purposes of this provision, being measured in relation to the size of the Company and its Subsidiaries taken as a whole) to (A) the Company and its Subsidiaries, taken as a whole, or Parent and its Subsidiaries, taken as a whole, either before or after giving effect to Rule 12b-25 of the Offer Exchange Act, filed in a timely manner and complied in all material respects with the applicable requirements of the Exchange Act and the rules and regulations promulgated thereunder. At the time filed with the Commission (or if amended or superseded by a filing prior to the Mergerdate of this Agreement, then on the date of such filing), no Company SEC Report contained any untrue statement of a material fact or (B) Parent’s ownership or operation of omitted to state any material portion fact required to be stated therein or necessary in order to make the statements therein, in light of the business or assets of the Company and its Subsidiariescircumstances under which they were made, taken as a whole, or (y) would reasonably be expected to deny Parent the material benefit of the bargains contemplated by the transactions contemplated by this Agreement. The Company shall agree, if requested by Parent in writing, to commit to take any of the forgoing actions with respect to the assets or business of the Company in furtherance of this Section 8.2; provided, however, that any such action may be conditioned upon the consummation of the Merger and other Transactions contemplated by this Agreementnot misleading.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Central Reserve Life Corp), Stock Purchase Agreement (Central Reserve Life Corp)
Regulatory Filings. The Transferee shall (a) Each make any filings required by the Transferee or any of Parent its Affiliates under the HSR Act and Acquisition Sub (and their respective Affiliates, if applicable), on the one hand, and the Company, on the other hand, shall (x) file with the FTC and the Antitrust Division of the DOJ a Notification and Report Form relating antitrust Laws applicable to this Agreement and the transactions contemplated hereby as required by promptly as practicable following the HSR Act as soon as Execution Date, (b) comply at the earliest reasonably practicable from the date following execution and delivery of this Agreement but in no event later than ten (10) Business Days following the execution and delivery of this Agreement, and (y) file comparable pre-merger or post-merger notification filings, forms and submissions with any foreign Governmental Authority that is required by any other Antitrust Laws as soon as reasonably practicable from the date following execution and delivery of this Agreement but in no event later than ten (10) Business Days following the execution and delivery of this Agreement. Each of Parent and the Company shall (i) cooperate and coordinate with the other in the making of such filings, (ii) supply the other with any information that may be required in order to make such filings, (iii) supply any additional information that reasonably may be required or requested by the FTC, the DOJ or the Governmental Authorities of any other jurisdiction in which any such filing is made under any other Antitrust Laws, and (iv) use reasonable best efforts to take all action necessary to cause the expiration or termination of the applicable waiting periods request under the HSR Act or other Antitrust antitrust Laws as soon as practicablefor additional information, and to obtain any required consents under any documents, or other Antitrust Laws applicable to materials received by the Offer and/or the Merger as soon as practicable, and to avoid any impediment to the consummation of the Offer or the Merger under any Antitrust Laws, including using reasonable best efforts to take all such action as reasonably may be necessary to resolve such objections, if any, as Transferee from the FTC, the DOJ, or any other Governmental Authority in respect of such filings or Person may assert such transactions, and (c) cooperate with the Company in connection with any such filing (including, to the extent permitted by applicable Law, providing copies of all such documents to the non-filing parties prior to filing and considering all reasonable additions, deletions or changes suggested in connection therewith) and in connection with resolving any investigation or other inquiry of any of the FTC or other Governmental Authority under any applicable Antitrust antitrust Laws with respect to any such filing or any such transaction. The Transferee shall use commercially reasonable efforts to furnish to the Offer and/or the Merger.
(b) Each of Parent and Acquisition Sub (and their respective Affiliates, if applicable), on the one hand, Company and the Company, on the Transferor all information required for any application or other hand, shall promptly inform the other of any communication from any Governmental Authority regarding any of the transactions contemplated by this Agreement in connection with any filings or investigations with, by or before any Governmental Authority relating filing to this Agreement or the transactions contemplated hereby, including any proceedings initiated by a private party. If any party hereto or Affiliate thereof shall receive a request for additional information or documentary material from any Governmental Authority with respect to the transactions contemplated by this Agreement be made pursuant to the HSR or any other Antitrust Laws with respect to which any such filings have been made, then such party shall use its reasonable best efforts to make, or cause to be made, as soon as reasonably practicable and after consultation with the other party, an appropriate response in compliance with such request. In connection with and without limiting the foregoing, to the extent reasonably practicable and unless prohibited by applicable Law or by the applicable Governmental Authority, the parties hereto agree to (i) give each other reasonable advance notice of all meetings with any Governmental Authority relating to the Offer or the Merger, (ii) give each other an opportunity to participate in each of such meetings, (iii) keep the other party reasonably apprised with respect to any oral communications with any Governmental Authority regarding the Offer or the Merger, (iv) cooperate in the filing of any analyses, presentations, memoranda, briefs, arguments, opinions or other written communications explaining or defending the Offer and the Merger, articulating any regulatory or competitive argument and/or responding to requests or objections made by any Governmental Authority, (v) provide each other with a reasonable advance opportunity to review and comment upon, and consider in good faith the views of the other with respect to, all written communications (including any analyses, presentations, memoranda, briefs, arguments and opinions) with a Governmental Authority regarding the Offer and the Merger, (vi) provide each other (or counsel of each party, as appropriate) with copies of all written communications to or from any Governmental Authority relating to the Offer or the Merger, and (vii) cooperate and provide each other with a reasonable opportunity to participate in, and consider in good faith the views of the other with respect to, all material deliberations with respect to all efforts to satisfy the conditions set forth in clauses (A) and (C)(1) of Annex A and Section 9.1(c). Any such disclosures, rights to participate or provisions of information by one party to the other may be made on a counsel-only basis to the extent required under applicable Law or as appropriate to protect confidential business information or the attorney client privilege or attorney work product.
(c) Each of Parent, Acquisition Sub and the Company shall cooperate with one another in good faith to (i) promptly determine whether any filings not contemplated by Section 8.2(a) are required to be or should be made, and whether any other consents, approvals, permits or authorizations not contemplated by Section 8.2(a) are required to be or should be obtained, from any Governmental Authority under any other applicable Law in connection with the transactions contemplated herebyby this Agreement. The Transferee shall promptly inform the Company of any oral communication with, and (ii) promptly make provide copies of written communications with, any filings, furnish information required in connection therewith and seek to obtain timely Governmental Authority regarding any such consentsfilings or any such transaction. Notwithstanding anything to the contrary contained herein, permits, authorizations, approvals or waivers that the parties determine are Transferee shall not be required to be accept any divestitures of its business or should be made Assets, or obtained in connection the business or Assets of its Subsidiaries, its Affiliates or the Company or accept an argument to hold any such assets or businesses separately. Transferor will pay all filing fees associated with any filings required under the HSR Act applicable to the transactions contemplated hereby.
(d) Notwithstanding anything to the contrary in this Agreement, in connection with any filing or submission required or action to be taken by either Parent or the Company to consummate the Offer and the Merger, in no event shall Parent or any of its Subsidiaries or Affiliates be obligated to propose or agree to accept any undertaking or condition, to enter into any consent decree, to make any divestiture or accept any operational restriction, or take or commit to take any action (i) the effectiveness or consummation of which is not conditional on the consummation of the Offer and the Merger or (ii) that individually or in the aggregate (x) is or would reasonably be expected to be materially adverse (with materiality, for purposes of this provision, being measured in relation to the size of the Company and its Subsidiaries taken as a whole) to (A) the Company and its Subsidiaries, taken as a whole, or Parent and its Subsidiaries, taken as a whole, either before or after giving effect to the Offer or the Merger, or (B) Parent’s ownership or operation of any material portion of the business or assets of the Company and its Subsidiaries, taken as a whole, or (y) would reasonably be expected to deny Parent the material benefit of the bargains contemplated by the transactions contemplated by this Agreement. The Company shall agree, if requested by Parent in writing, to commit to take any of the forgoing actions with respect to the assets or business of the Company in furtherance of this Section 8.2; provided, however, that any such action may be conditioned upon the consummation of the Merger and other Transactions contemplated by this Agreement.
Appears in 2 contracts
Sources: Stock Acquisition Agreement (Scilex Holding Co), Stock Acquisition Agreement (Phoenix Asia Holdings LTD)
Regulatory Filings. (ai) Each If the Seller and the Purchaser determine that a filing with the United States Federal Trade Commission and the United States Department of Parent and Acquisition Sub Justice is required to be made in connection with the Closing, then the Purchaser (and their respective Affiliatesand, if applicable), on the one handSeller) shall, and the Company, on the other hand, shall (x) file with the FTC and the Antitrust Division of the DOJ a Notification and Report Form relating to this Agreement and the transactions contemplated hereby as required by the HSR Act as soon promptly as reasonably practicable from the date following execution and delivery of this Agreement but in no event later than ten (10) Business Days following the execution and delivery of this Agreement, file or cause to be filed with the United States Federal Trade Commission and (y) file comparable pre-merger the United States Department of Justice, the notification and report forms required for the transactions contemplated by this Agreement, which forms shall specifically request early termination of the waiting period prescribed by the HSR Act, and any supplemental information requested in connection therewith pursuant to the HSR Act. The Seller and the Purchaser shall furnish or post-merger notification filings, forms cause to be furnished to each other’s counsel such necessary information and submissions reasonable assistance as the other may request in connection with its preparation of any foreign Governmental Authority filing or submission that is required by any other Antitrust Laws as soon as reasonably practicable from necessary under the date following execution and delivery of this Agreement but in no event later than ten HSR Act.
(10ii) Business Days following the execution and delivery of this Agreement. Each of Parent The Seller and the Company shall Purchaser shall: (i) cooperate and coordinate with the other in the making of such filings, (ii) supply the other with any information that may be required in order to make such filings, (iii) supply any additional information that reasonably may be required or requested by the FTC, the DOJ or the Governmental Authorities of any other jurisdiction in which any such filing is made under any other Antitrust Laws, and (iv) use their commercially reasonable best efforts to take all action necessary to cause the expiration or termination of the applicable waiting periods promptly obtain any clearance required under the HSR Act in connection with the Closing; (ii) keep each other apprised of the status of any communications with, and any inquiries or requests for additional information from any governmental agency or body; and (iii) comply promptly with any such inquiry or request and supply to any governmental agency or body without undue delay any additional information requested. Neither the Seller nor any Purchaser (nor any of their respective affiliates or representatives) shall participate in any meeting or material discussion with any governmental agency or body in respect of any such filings, applications, investigations, or other Antitrust Laws as soon as practicableinquiries without giving the other party prior notice of the meeting or discussion and, and to obtain any required consents under any other Antitrust Laws applicable to the Offer and/or extent permitted by the Merger as soon as practicablerelevant governmental agency or body, the opportunity to attend and to avoid any impediment to participate in such meeting or discussion (which, at the consummation request of the Offer Seller or the Merger under any Antitrust LawsPurchaser, shall be limited to outside antitrust counsel only).
(iii) Nothing in this Agreement, including using reasonable best efforts this Section 5(c), shall require the Purchaser or any of its affiliates to: (i) proffer to, agree to, or sell, divest, lease, license, transfer, dispose of or otherwise encumber or hold separate, before or after the date of this Agreement, any assets or the Purchased Shares (or to take all such action as reasonably may be necessary consent thereto); (ii) proffer to, agree to resolve such objections, if any, as the FTC, the DOJor implement any changes in (including through a licensing arrangement), or any restrictions on or other Governmental Authority impairment of, the Purchaser’s or Person may assert under any applicable Antitrust Laws such affiliates’ ability to use, own, operate or take any other actions with respect to any assets of the Purchaser or any such affiliates, the Purchased Shares, or the Purchaser’s or any such affiliates’ ability to vote, transfer, receive dividends or otherwise exercise full ownership or other rights with respect to the Offer and/or Purchased Shares; or (iii) take any action to overturn, defend against or oppose any action by any governmental authority or regulatory body to prohibit the Merger.
(b) Each of Parent and Acquisition Sub (and their respective Affiliatestransactions contemplated by this Agreement or prevent, if applicable), on the one hand, and the Company, on the other hand, shall promptly inform the other of any communication from any Governmental Authority regarding any materially delay or materially impair consummation of the transactions contemplated by this Agreement in connection with any filings or investigations with, by or before any Governmental Authority relating to this Agreement or the transactions contemplated hereby, including any proceedings initiated by a private party. If any party hereto or Affiliate thereof shall receive a request for additional information or documentary material from any Governmental Authority with respect to the transactions contemplated by this Agreement pursuant to the HSR or any other Antitrust Laws with respect to which any such filings have been made, then such party shall use its reasonable best efforts to make, or cause to be made, as soon as reasonably practicable and after consultation with the other party, an appropriate response in compliance with such request. In connection with and without limiting the foregoing, to the extent reasonably practicable and unless prohibited by applicable Law or by the applicable Governmental Authority, the parties hereto agree to (i) give each other reasonable advance notice of all meetings with any Governmental Authority relating to the Offer or the Merger, (ii) give each other an opportunity to participate in each of such meetings, (iii) keep the other party reasonably apprised with respect to any oral communications with any Governmental Authority regarding the Offer or the Merger, (iv) cooperate in the filing of any analyses, presentations, memoranda, briefs, arguments, opinions or other written communications explaining or defending the Offer and the Merger, articulating any regulatory or competitive argument and/or responding to requests or objections made by any Governmental Authority, (v) provide each other with a reasonable advance opportunity to review and comment upon, and consider in good faith the views of the other with respect to, all written communications (including any analyses, presentations, memoranda, briefs, arguments and opinions) with a Governmental Authority regarding the Offer and the Merger, (vi) provide each other (or counsel of each party, as appropriate) with copies of all written communications to or from any Governmental Authority relating to the Offer or the Merger, and (vii) cooperate and provide each other with a reasonable opportunity to participate in, and consider in good faith the views of the other with respect to, all material deliberations with respect to all efforts to satisfy the conditions set forth in clauses (A) and (C)(1) of Annex A and Section 9.1(c). Any such disclosures, rights to participate or provisions of information by one party to the other may be made on a counsel-only basis to the extent required under applicable Law or as appropriate to protect confidential business information or the attorney client privilege or attorney work product.
(c) Each of Parent, Acquisition Sub and the Company shall cooperate with one another in good faith to (i) promptly determine whether any filings not contemplated by Section 8.2(a) are required to be or should be made, and whether any other consents, approvals, permits or authorizations not contemplated by Section 8.2(a) are required to be or should be obtained, from any Governmental Authority under any other applicable Law in connection with the transactions contemplated hereby, and (ii) promptly make any filings, furnish information required in connection therewith and seek to obtain timely any such consents, permits, authorizations, approvals or waivers that the parties determine are required to be or should be made or obtained in connection with the transactions contemplated hereby.
(d) Notwithstanding anything to the contrary in this Agreement, in connection with any filing or submission required or action to be taken by either Parent or the Company to consummate the Offer and the Merger, in no event shall Parent or any of its Subsidiaries or Affiliates be obligated to propose or agree to accept any undertaking or condition, to enter into any consent decree, to make any divestiture or accept any operational restriction, or take or commit to take any action (i) the effectiveness or consummation of which is not conditional on the consummation of the Offer and the Merger or (ii) that individually or in the aggregate (x) is or would reasonably be expected to be materially adverse (with materiality, for purposes of this provision, being measured in relation to the size of the Company and its Subsidiaries taken as a whole) to (A) the Company and its Subsidiaries, taken as a whole, or Parent and its Subsidiaries, taken as a whole, either before or after giving effect to the Offer or the Merger, or (B) Parent’s ownership or operation of any material portion of the business or assets of the Company and its Subsidiaries, taken as a whole, or (y) would reasonably be expected to deny Parent the material benefit of the bargains contemplated by the transactions contemplated by this Agreement. The Company shall agree, if requested by Parent in writing, to commit to take any of the forgoing actions with respect to the assets or business of the Company in furtherance of this Section 8.2; provided, however, that any such action may be conditioned upon the consummation of the Merger and other Transactions contemplated by this Agreement.
Appears in 2 contracts
Sources: Stock Purchase Agreement (B. Riley Financial, Inc.), Stock Purchase Agreement (Vintage Capital Management LLC)
Regulatory Filings. (a) The Members acknowledge and agree that, from time to time, the Company or a Member may need information from any or all of such Members for compliance with applicable laws, stock exchange rules, regulatory inquiries, regulatory reporting requirements or other requests or demands by Governmental Entities. Each of Parent and Acquisition Sub (and their respective Affiliates, if applicable), on Member shall use commercially reasonable efforts to provide to the one hand, and the Company, on the Company or such other hand, shall (x) file with the FTC and the Antitrust Division of the DOJ a Notification and Report Form relating to this Agreement and the transactions contemplated hereby as required Member all information reasonably requested by the HSR Act Company for purposes of compliance with applicable law, stock exchange rule, regulatory inquiries, regulatory reporting requirements or other requests or demands by Governmental Entities as soon promptly as reasonably practicable from after the date following execution and delivery of this Agreement but in no event later than ten (10) Business Days following the execution and delivery of this Agreementsuch Member receives such request, and in any event, within an amount of time required to meet any deadline set by a request by the applicable Governmental Entity or regulatory reporting requirement (y) file comparable pre-merger it being understood that Sponsor shall not be required to provide specific identifying information of its noteholders or post-merger notification filingsdirect or indirect limited partners or other similar persons except as expressly required to comply with applicable law, forms and submissions with any foreign stock exchange rule or regulatory reporting requirements in which case Sponsor shall be permitted to provide such information directly to the applicable Governmental Authority that is required by any other Antitrust Laws as soon as reasonably practicable from Entity in lieu of providing such information to the date following execution and delivery of this Agreement but in no event later than ten (10) Business Days following the execution and delivery of this AgreementCompany or its Subsidiaries). Each of Parent and Member shall reasonably cooperate in any efforts or actions taken by the Company shall (i) cooperate and coordinate with to obtain, maintain or avoid termination or forfeiture of any governmental license, approval, consent, permit or similar authorization. For the other in the making avoidance of such filingsdoubt, (ii) supply the other with any information that may provided or furnished pursuant to this Section 13.3 shall be required in order to make such filings, (iii) supply any additional information that reasonably may be required or requested by the FTC, the DOJ or the Governmental Authorities of any other jurisdiction in which any such filing is made under any other Antitrust Laws, and (iv) use reasonable best efforts to take deemed “Confidential Information” for all action necessary to cause the expiration or termination of the applicable waiting periods under the HSR Act or other Antitrust Laws as soon as practicable, and to obtain any required consents under any other Antitrust Laws applicable to the Offer and/or the Merger as soon as practicable, and to avoid any impediment to the consummation of the Offer or the Merger under any Antitrust Laws, including using reasonable best efforts to take all such action as reasonably may be necessary to resolve such objections, if any, as the FTC, the DOJ, or any other Governmental Authority or Person may assert under any applicable Antitrust Laws with respect to the Offer and/or the Mergerpurposes.
(b) Each If, at any time, the Company or any Member reasonably determines that the consent of Parent a Governmental Entity is necessary or advisable or a filing is required or advisable pursuant to the HSR Act or any other applicable antitrust, competition or trade regulation laws, or other applicable law (including with respect to CFIUS, “foreign direct investment” laws or any requirements arising from the Natural Gas Act and Acquisition Sub (the orders and their respective Affiliates, if applicableregulations issued thereunder), on the one handin each case, and the Company, on the other hand, shall promptly inform the other of any communication from any Governmental Authority regarding any of the transactions contemplated by this Agreement in connection with any filings Transfer, or investigations with, by any other transaction or before any Governmental Authority relating to this Agreement or the transactions contemplated hereby, including any proceedings initiated by a private party. If any party hereto or Affiliate thereof shall receive a request for additional information or documentary material from any Governmental Authority event with respect to the transactions contemplated by this Agreement pursuant or otherwise related to the HSR or any other Antitrust Laws with respect to which any such filings have been madeCompany (each, then such party a “Filing Transaction”), then:
(i) the Company and each of the Members (as applicable) shall use its reasonable best efforts to (A) as promptly as reasonably practicable make, or cause to be made, all filings and submissions required under applicable laws with respect to the applicable Filing Transaction and (B) use commercially reasonable efforts to obtain, or cause to be obtained, clearance, approval or consent in respect of such filings and submissions (or the termination or expiration of the applicable waiting period, as soon applicable) (any such clearance, approval, consent, termination or expiration, “Regulatory Approval”) as promptly as reasonably practicable and after consultation with thereafter, which such efforts shall, for the avoidance of doubt, exclude proposing, negotiating, effecting or agreeing to the sale, divestiture, license or other partydisposal of any assets or businesses of a Member or any of their respective Affiliates, an appropriate response in compliance with such request. In connection with and without limiting taking any other action that limits the foregoingright of a Member or any of their respective Affiliates to own or operate any part of its business or proposing, negotiating, effecting or agreeing to any other remedy, commitment, undertaking or condition of any kind; and
(ii) the applicable Filing Transaction shall be contingent upon the receipt of Regulatory Approval and, to the extent reasonably practicable and unless prohibited by applicable Law or by Regulatory Approval is not received prior to completion of the applicable Governmental AuthorityFiling Transaction, the parties hereto agree to (i) give each other reasonable advance notice of all meetings with any Governmental Authority relating to the Offer or the Merger, (ii) give each other an opportunity to participate in each of such meetings, (iii) keep the other party reasonably apprised with respect to any oral communications with any Governmental Authority regarding the Offer or the Merger, (iv) cooperate in the filing of any analyses, presentations, memoranda, briefs, arguments, opinions or other written communications explaining or defending the Offer and the Merger, articulating any regulatory or competitive argument and/or responding to requests or objections made by any Governmental Authority, (v) provide each other with a reasonable advance opportunity to review and comment upon, and consider in good faith the views of the other with respect to, all written communications (including any analyses, presentations, memoranda, briefs, arguments and opinions) with a Governmental Authority regarding the Offer and the Merger, (vi) provide each other (or counsel of each party, as appropriate) with copies of all written communications to or from any Governmental Authority relating to the Offer or the Merger, and (vii) cooperate and provide each other with a reasonable opportunity to participate in, and consider in good faith the views of the other with respect to, all material deliberations with respect to all efforts to satisfy the conditions set forth in clauses (A) and (C)(1) of Annex A and Section 9.1(c). Any such disclosures, rights to participate or provisions of information by one party to the other may Filing Transaction shall be made on a counsel-only basis to the extent required under applicable Law or as appropriate to protect confidential business information or the attorney client privilege or attorney work productdelayed until Regulatory Approval is received.
(c) Each of Parent, Acquisition Sub and the Company shall cooperate with one another in good faith to (i) promptly determine whether any filings not contemplated by Section 8.2(a) are required to be or should be made, and whether any other consents, approvals, permits or authorizations not contemplated by Section 8.2(a) are required to be or should be obtained, from any Governmental Authority under any other applicable Law in connection with the transactions contemplated hereby, and (ii) promptly make any filings, furnish information required in connection therewith and seek to obtain timely any such consents, permits, authorizations, approvals or waivers that the parties determine are required to be or should be made or obtained in connection with the transactions contemplated hereby.
(d) Notwithstanding anything to the contrary in this Agreement, in connection with any filing or submission required or action to be taken by either Parent or the Company to consummate the Offer and the Merger, in no event shall Parent or any of its Subsidiaries or Affiliates be obligated to propose or agree to accept any undertaking or condition, to enter into any consent decree, to make any divestiture or accept any operational restriction, or take or commit to take any action (i) the effectiveness or consummation of which is not conditional on the consummation of the Offer and the Merger or (ii) that individually or in the aggregate (x) is or would reasonably be expected to be materially adverse (with materiality, for purposes of this provision, being measured in relation to the size of the Company and its Subsidiaries taken as a whole) to (A) the Company and its Subsidiaries, taken as a whole, or Parent and its Subsidiaries, taken as a whole, either before or after giving effect to the Offer or the Merger, or (B) Parent’s ownership or operation of any material portion of the business or assets of the Company and its Subsidiaries, taken as a whole, or (y) would reasonably be expected to deny Parent the material benefit of the bargains contemplated by the transactions contemplated by this Agreement. The Company shall agree, if requested by Parent in writing, to commit to take any of the forgoing actions with respect to the assets or business of the Company in furtherance of this Section 8.2; provided, however, that any such action may be conditioned upon the consummation of the Merger and other Transactions contemplated by this Agreement.
Appears in 2 contracts
Sources: Limited Liability Company Agreement (EQT Corp), Contribution Agreement (EQT Corp)
Regulatory Filings. (a) Each Subject to the terms and conditions herein provided, each of Parent Grey Wolf, Basic and Acquisition Sub Holdings shall take, or cause to be taken, all action and shall do, or cause to be done, all things necessary, appropriate or desirable under any Applicable Law (including the HSR Act) or under applicable Contracts so as to enable the Closing to occur as soon as reasonably practicable, including using its commercially reasonable best efforts to obtain all necessary waivers, consents and approvals, remove all impediments to the Closing, and to identify and make all Basic Regulatory Filings and Grey Wolf Regulatory Filings (the “Regulatory Filings”). Basic, Grey Wolf and Holdings each will cause all documents it is responsible for filing with any Governmental Authority under this Section 5.9 to comply with all Applicable Laws. For the avoidance of doubt, the Parties agree that their respective Affiliates, if applicable), on obligations and rights with respect to filings with the one hand, SEC and the Company, on the other hand, shall (x) file application of securities laws in connection with the FTC and the Antitrust Division of the DOJ a Notification and Report Form relating to this Agreement and the transactions contemplated hereby as required shall be governed only by the HSR Act as soon as reasonably practicable from the date following execution Section 5.7 and delivery of not this Agreement but in no event later than ten (10) Business Days following the execution and delivery of this Agreement, and (y) file comparable pre-merger or post-merger notification filings, forms and submissions with any foreign Governmental Authority that is required by any other Antitrust Laws as soon as reasonably practicable from the date following execution and delivery of this Agreement but in no event later than ten (10) Business Days following the execution and delivery of this Agreement. Each of Parent and the Company shall (i) cooperate and coordinate with the other in the making of such filings, (ii) supply the other with any information that may be required in order to make such filings, (iii) supply any additional information that reasonably may be required or requested by the FTC, the DOJ or the Governmental Authorities of any other jurisdiction in which any such filing is made under any other Antitrust Laws, and (iv) use reasonable best efforts to take all action necessary to cause the expiration or termination of the applicable waiting periods under the HSR Act or other Antitrust Laws as soon as practicable, and to obtain any required consents under any other Antitrust Laws applicable to the Offer and/or the Merger as soon as practicable, and to avoid any impediment to the consummation of the Offer or the Merger under any Antitrust Laws, including using reasonable best efforts to take all such action as reasonably may be necessary to resolve such objections, if any, as the FTC, the DOJ, or any other Governmental Authority or Person may assert under any applicable Antitrust Laws with respect to the Offer and/or the MergerSection 5.9(a).
(b) Each of Parent Basic and Acquisition Sub (and their respective Affiliates, if applicable), on the one hand, and the Company, on Grey Wolf shall furnish the other hand, shall promptly inform the Party with such information and reasonable assistance as such other of any communication from any Governmental Authority regarding any of the transactions contemplated by this Agreement Party and its respective affiliates may reasonably request in connection with their preparation of any filings or investigations with, by or before Regulatory Filings with any Governmental Authority relating Authorities; provided, however, that if the provisions of the HSR Act would prevent a Party from disclosing such information to this Agreement the other Party, then such information may be disclosed to such Party’s counsel.
(c) Each of Basic and Grey Wolf shall take, or cause to be taken, all action or shall do, or cause to be done, all things necessary, appropriate or desirable to cause the transactions contemplated hereby, including any proceedings initiated by a private party. If any party hereto or Affiliate thereof shall receive a request for additional information or documentary material from any Governmental Authority with respect covenants and conditions applicable to the transactions contemplated hereby to be performed or satisfied as soon as practicable, including responding promptly to requests for additional information made by this Agreement pursuant the DOJ or the FTC, and to cause the waiting periods under the HSR Act to terminate or any other Antitrust Laws with respect to which any such filings have been made, then such party expire at the earliest possible date after the date of filing.
(d) Each of Basic and Grey Wolf shall use its reasonable best efforts to makeavoid the entry of, or cause to be madehave vacated or terminated, any decree, Order, ruling or injunction that would restrain, prevent or delay the Closing. Furthermore, if any Governmental Authority shall have issued any Order, decree, ruling or injunction, or taken any other action, that would have the effect of restraining, enjoining or otherwise prohibiting, delaying or preventing the consummation of the transactions contemplated hereby, each of Basic and Grey Wolf shall use its reasonable best efforts to have such Order, decree, ruling or injunction or other action declared ineffective as soon as reasonably practicable practicable.
(e) Basic and after consultation Grey Wolf shall promptly notify each other of any communication concerning this Agreement or the Mergers from any Governmental Authority and, subject to Applicable Law, permit the other Party to review in advance any proposed communication to any Governmental Authority concerning this Agreement or the Mergers. In addition, Basic and Grey Wolf shall not agree to participate in any substantive meeting or discussion with any Governmental Authority in respect of any filings, investigation or another inquiry concerning this Agreement or the Mergers, or enter into any agreements with any Governmental Authority, including, without limitation, extending any antitrust waiting periods, unless it consults with the other partyParty in advance and, an appropriate response to the extent permitted by such Governmental Authority, gives the other Party the opportunity to attend and participate thereat. Basic and Grey Wolf shall furnish counsel to the other Party with copies of all correspondence, filings and communications (and memoranda setting forth the substance thereof) between them and their affiliates and their respective representatives on the one hand, and any Governmental Authorities or members of their respective staffs on the other hand, relating to this Agreement and the Mergers.
(f) Notwithstanding the foregoing, nothing contained in compliance this Agreement shall be construed to require Basic, Grey Wolf or Holdings or their respective Subsidiaries or Affiliates to dispose of any of its assets or to limit its freedom of action with such request. In connection respect to any of their businesses, or to consent to any disposition of their assets or limits on their freedom of action with and without limiting respect to any of their businesses, whether prior to or after the Effective Time, or to commit or agree to any of the foregoing, to the extent reasonably practicable and unless prohibited by applicable Law or by the applicable Governmental Authority, the parties hereto agree to (i) give each other reasonable advance notice of all meetings with obtain any Governmental Authority relating to the Offer or the Merger, (ii) give each other an opportunity to participate in each of such meetings, (iii) keep the other party reasonably apprised with respect to any oral communications with any Governmental Authority regarding the Offer or the Merger, (iv) cooperate in the filing of any analyses, presentations, memoranda, briefs, arguments, opinions or other written communications explaining or defending the Offer and the Merger, articulating any regulatory or competitive argument and/or responding to requests or objections made by any Governmental Authority, (v) provide each other with a reasonable advance opportunity to review and comment upon, and consider in good faith the views of the other with respect to, all written communications (including any analyses, presentations, memoranda, briefs, arguments and opinions) with a Governmental Authority regarding the Offer and the Merger, (vi) provide each other (or counsel of each party, as appropriate) with copies of all written communications to or from any Governmental Authority relating to the Offer or the Merger, and (vii) cooperate and provide each other with a reasonable opportunity to participate in, and consider in good faith the views of the other with respect to, all material deliberations with respect to all efforts to satisfy the conditions set forth in clauses (A) and (C)(1) of Annex A and Section 9.1(c). Any such disclosures, rights to participate or provisions of information by one party to the other may be made on a counsel-only basis to the extent required under applicable Law or as appropriate to protect confidential business information or the attorney client privilege or attorney work product.
(c) Each of Parent, Acquisition Sub and the Company shall cooperate with one another in good faith to (i) promptly determine whether any filings not contemplated by Section 8.2(a) are required to be or should be made, and whether any other consents, approvals, permits or authorizations not contemplated by Section 8.2(aor to remove any impediments to the Mergers relating to the HSR Act, or other antitrust, competition, pre-merger notification, trade regulation or similar Applicable Laws (collectively, “Antitrust Laws”) are required or to be avoid the entry of, or should be obtainedto effect the dissolution of, from any Governmental Authority under injunction, temporary restraining order or other order in any suit or proceeding relating to Antitrust Laws or non-U.S. Antitrust Laws, other applicable Law in connection with the transactions contemplated herebythan such dispositions, and (ii) promptly make any filings, furnish information required in connection therewith and seek to obtain timely any such limitations or consents, permits, authorizations, approvals commitments or waivers agreements that the parties determine are required to be or should be made or obtained in connection with the transactions contemplated hereby.
(d) Notwithstanding anything to the contrary in this Agreement, in connection with any filing or submission required or action to be taken by either Parent or the Company to consummate the Offer and the Merger, in no event shall Parent or any of its Subsidiaries or Affiliates be obligated to propose or agree to accept any undertaking or condition, to enter into any consent decree, to make any divestiture or accept any operational restriction, or take or commit to take any action (i) the effectiveness or consummation of which is not conditional on the consummation of the Offer and the Merger or (ii) that individually or in the aggregate (x) is or would reasonably be expected to be materially adverse (with materiality, for purposes of this provision, being measured in relation to the size of the Company and its Subsidiaries taken as a whole) to (A) the Company and its Subsidiaries, taken as a whole, or Parent and its Subsidiaries, taken as a whole, either before or after giving effect to the Offer or the Merger, or (B) Parent’s ownership or operation of any material portion of the business or assets of the Company and its Subsidiaries, taken as a whole, or (y) would reasonably be expected to deny Parent the material benefit of the bargains contemplated by the transactions contemplated by this Agreement. The Company shall agree, if requested by Parent in writing, to commit to take any of the forgoing actions with respect to the assets or business of the Company in furtherance of this Section 8.2; provided, however, that any each such action case may be conditioned upon the consummation of the Merger Mergers and the transactions contemplated hereby and that in each such case, individually or in the aggregate, do not have or cause and would not be reasonably be expected to have or cause a Material Adverse Effect on Holdings after the Mergers; provided, however, that neither Basic on the one hand or Grey Wolf and Holdings on the other Transactions contemplated hand shall take or agree to any action required or permitted by this AgreementSection 5.9(f) without the prior written consent of the other Party (which consent shall not be unreasonably withheld or delayed).
Appears in 2 contracts
Sources: Merger Agreement (Grey Wolf Inc), Merger Agreement (Basic Energy Services Inc)
Regulatory Filings. (a) Each of Parent Buyer and Acquisition Sub (Seller shall use commercially reasonable efforts to make or cause to be made all filings and their respective Affiliates, if applicable), on submissions required under any Laws applicable to Buyer or Seller for the one hand, consummation of the transactions contemplated herein. Each of Buyer and the Company, on Seller shall coordinate and cooperate with the other handParty in exchanging such information and assistance as such other Party may reasonably request in connection with all of the foregoing.
(b) In furtherance and not in limitation of the terms of Section 5.03(a) above, each of Buyer and Seller shall (xi) file with the FTC prepare and the Antitrust Division of the DOJ file, or cause to be prepared and filed, a Notification and Report Form relating pursuant to this Agreement and the transactions contemplated hereby as required by the HSR Act as soon as reasonably practicable from the date following execution and delivery of this Agreement but in no event later than ten (10) Business Days following the execution and delivery of this Agreement, and (y) file comparable pre-merger or post-merger notification filings, forms and submissions with any foreign Governmental Authority that is required by any other Antitrust Laws as soon as reasonably practicable from the date following execution and delivery of this Agreement but in no event later than ten (10) Business Days following the execution and delivery of this Agreement. Each of Parent and the Company shall (i) cooperate and coordinate with the other in the making of such filings, (ii) supply the other with any information that may be required in order to make such filings, (iii) supply any additional information that reasonably may be required or requested by the FTC, the DOJ or the Governmental Authorities of any other jurisdiction in which any such filing is made under any other Antitrust Laws, and (iv) use reasonable best efforts to take all action necessary to cause the expiration or termination of the applicable waiting periods under the HSR Act or other Antitrust Laws as soon as practicable, and to obtain any required consents under any other Antitrust Laws applicable to the Offer and/or the Merger as soon as practicable, and to avoid any impediment to the consummation of the Offer or the Merger under any Antitrust Laws, including using reasonable best efforts to take all such action as reasonably may be necessary to resolve such objections, if any, as the FTC, the DOJ, or any other Governmental Authority or Person may assert under any applicable Antitrust Laws with respect to the Offer and/or the Merger.
(b) Each of Parent and Acquisition Sub (and their respective Affiliates, if applicable), on the one hand, and the Company, on the other hand, shall promptly inform the other of any communication from any Governmental Authority regarding any of the transactions contemplated by this Agreement in connection with any filings or investigations with, by or before any Governmental Authority relating to this Agreement or the transactions contemplated hereby, including any proceedings initiated by a private party. If any party hereto or Affiliate thereof shall receive a request for additional information or documentary material from any Governmental Authority with respect to the transactions contemplated by this Agreement as promptly as practicable after the date of this Agreement, (ii) use commercially reasonable efforts to make or cause to be made all other filings and submissions under the HSR Act and any other antitrust Laws applicable to Buyer or Seller as may be required of Buyer or Seller for the consummation of the transactions contemplated herein, and (iii) use commercially reasonable efforts to secure the termination of any waiting periods under the HSR Act and such other antitrust Laws. Buyer, on the one hand, and Seller, on the other hand, shall each be responsible for one half of all filing fees under the HSR Act and such other antitrust Laws as are applicable to the consummation of the transactions contemplated hereby. Buyer and Seller shall coordinate and cooperate with the other Party in exchanging such information and assistance as such other Party may reasonably request in connection with all of the foregoing.
(c) In furtherance and not in limitation of the terms of Sections 5.03(a) and 5.03(b) above, to the extent required by applicable Law, Buyer and Seller shall (i) supply promptly any information and documentary material that may be requested by any Governmental Entity (including the Antitrust Division of the United States Department of Justice (the “Antitrust Division”) and the United States Federal Trade Commission (the “FTC”)) pursuant to the HSR Act or any other Antitrust Laws with respect to which any such filings have been made, then such party shall use its reasonable best efforts to make, or cause to be made, as soon as reasonably practicable and after consultation with the other party, an appropriate response in compliance with such request. In connection with and without limiting the foregoing, to the extent reasonably practicable and unless prohibited by applicable Law or by the applicable Governmental Authority, the parties hereto agree to (i) give each other reasonable advance notice of all meetings with any Governmental Authority relating to the Offer or the Merger, antitrust Laws; (ii) give each cooperate in connection with any filing under applicable antitrust Laws and in connection with resolving any investigation or other an opportunity to participate in each inquiry concerning the transactions contemplated by this Agreement commenced by any Governmental Entity, including the FTC, the Antitrust Division, any foreign antitrust or competition authority or the office of such meetings, any state attorney general; (iii) keep the other party Party reasonably apprised with respect to any oral communications with any Governmental Authority regarding the Offer or the Merger, (iv) cooperate in the filing of any analyses, presentations, memoranda, briefs, arguments, opinions or other written communications explaining or defending the Offer and the Merger, articulating any regulatory or competitive argument and/or responding to requests or objections made by any Governmental Authority, (v) provide each other with a reasonable advance opportunity to review and comment upon, and consider in good faith the views informed of the other with respect to, all written communications (including any analyses, presentations, memoranda, briefs, arguments and opinions) with a Governmental Authority regarding the Offer and the Merger, (vi) provide each other (or counsel status of each party, as appropriate) with copies of all written communications matters related to or from any Governmental Authority relating to the Offer or the Merger, and (vii) cooperate and provide each other with a reasonable opportunity to participate in, and consider in good faith the views of the other with respect to, all material deliberations with respect to all efforts to satisfy the conditions set forth in clauses (A) and (C)(1) of Annex A and Section 9.1(c). Any such disclosures, rights to participate or provisions of information by one party to the other may be made on a counsel-only basis to the extent required under applicable Law or as appropriate to protect confidential business information or the attorney client privilege or attorney work product.
(c) Each of Parent, Acquisition Sub and the Company shall cooperate with one another in good faith to (i) promptly determine whether any filings not contemplated by Section 8.2(a) are required to be or should be made, and whether any other consents, approvals, permits or authorizations not contemplated by Section 8.2(a) are required to be or should be obtained, from any Governmental Authority under any other applicable Law in connection with the transactions contemplated hereby, and (ii) promptly make any filings, furnish information required in connection therewith and seek to obtain timely any such consents, permits, authorizations, approvals or waivers that the parties determine are required to be or should be made or obtained in connection with the transactions contemplated hereby.
(d) Notwithstanding anything to the contrary in this Agreement, in connection with any filing or submission required or action to be taken by either Parent or the Company to consummate the Offer and the Merger, in no event shall Parent or any of its Subsidiaries or Affiliates be obligated to propose or agree to accept any undertaking or condition, to enter into any consent decree, to make any divestiture or accept any operational restriction, or take or commit to take any action (i) the effectiveness or consummation of which is not conditional on the consummation of the Offer and the Merger or (ii) that individually or in the aggregate (x) is or would reasonably be expected to be materially adverse (with materiality, for purposes of this provision, being measured in relation to the size of the Company and its Subsidiaries taken as a whole) to (A) the Company and its Subsidiaries, taken as a whole, or Parent and its Subsidiaries, taken as a whole, either before or after giving effect to the Offer or the Merger, or (B) Parent’s ownership or operation of any material portion of the business or assets of the Company and its Subsidiaries, taken as a whole, or (y) would reasonably be expected to deny Parent the material benefit of the bargains contemplated by the transactions contemplated by this Agreement. The Company shall agree, if requested including furnishing the other with any written notices or other communications received by Parent such Party from, or given by such Party to, the FTC, the Antitrust Division, any foreign antitrust or competition authority or the office of any state attorney general and of any communication received or given in writingconnection with any proceeding by a private party, to commit to take in each case regarding any of the forgoing actions transactions contemplated hereby; and (iv) cooperate in good faith with respect any Governmental Entity (including the Antitrust Division and the FTC) pursuant to the assets HSR Act or business of the Company in furtherance of this Section 8.2; provided, however, that any such action may be conditioned upon the consummation of the Merger and other Transactions contemplated by this Agreementapplicable antitrust Laws.
Appears in 2 contracts
Sources: Securities Purchase Agreement (Harland Clarke Holdings Corp), Securities Purchase Agreement (M & F Worldwide Corp)
Regulatory Filings. 7.8.1 Subject to the terms and conditions of this Agreement, from the date of this Agreement to the Closing, or the earlier termination of this Agreement pursuant to Section 11.1, each of the Parties shall use its reasonable best efforts to take, or cause to be taken, all actions, to file, or cause to be filed, all documents, to give or cause to be given all notices under applicable Laws, to obtain or cause to be obtained all authorizations, consents, waivers, approvals, permits or orders under applicable Laws or from other Persons, and to do or cause to be done all other things necessary, proper or advisable, in order to consummate and make effective as promptly as possible the transactions contemplated by this Agreement. In addition, subject to the terms and conditions herein, no Party (a) Each nor any of Parent and Acquisition Sub (and their respective Affiliates) shall take any action after the date hereof without the consent of the other Parties that could reasonably be expected to delay the obtaining of, if applicable)or result in not obtaining, on any authorization, consent, waiver, approval, permit or order from any Governmental Authority or other Person required to be obtained prior to the one handClosing.
7.8.2 Without limiting the generality of the foregoing, each of the Parties shall cause to be filed with the Federal Trade Commission and the CompanyDepartment of Justice, on the other hand, shall (x) file with the FTC and the Antitrust Division of the DOJ a Notification and Report Form relating to this Agreement and the transactions contemplated hereby as required by the HSR Act as soon as reasonably practicable from the date following execution and delivery of this Agreement but in no event later than ten five (105) Business Days following the execution date hereof, all applicable notification and delivery of this Agreement, and (y) file comparable pre-merger or post-merger notification filings, report forms and submissions with any foreign Governmental Authority that is accompanying materials required by any other Antitrust Laws as soon as reasonably practicable from the date following execution and delivery of this Agreement but in no event later than ten (10) Business Days following the execution and delivery of this Agreement. Each of Parent and the Company shall (i) cooperate and coordinate with the other in the making of such filings, (ii) supply the other with any information that may be required in order to make such filings, (iii) supply any additional information that reasonably may be required or requested by the FTC, the DOJ or the Governmental Authorities of any other jurisdiction in which any such filing is made under any other Antitrust Laws, and (iv) use reasonable best efforts to take all action necessary to cause the expiration or termination of the applicable waiting periods each Party under the HSR Act or other Antitrust Laws as soon as practicable, and to obtain any required consents under any other Antitrust Laws applicable to the Offer and/or the Merger as soon as practicable, and to avoid any impediment to the consummation of the Offer or the Merger under any Antitrust Laws, including using reasonable best efforts to take all such action as reasonably may be necessary to resolve such objections, if any, as the FTC, the DOJ, or any other Governmental Authority or Person may assert under any applicable Antitrust Laws (“HSR Filings”) with respect to the Offer and/or transactions contemplated hereby and shall request early termination of the Mergerwaiting period. Subject to applicable Law and reasonable confidentiality considerations, the Parties shall cooperate with each other in the preparation and submission of their respective HSR Filings. Purchaser, or one of its Affiliates, shall pay all administrative filing fees associated with the HSR Filings.
7.8.3 The Parties shall respond as promptly as practicable to any inquiries or requests received from a Governmental Authority for additional information or documentary material relating to the HSR Filings. Each Party shall, subject to the applicable Laws relating to the sharing of information, (ba) Each of Parent and Acquisition Sub (and their respective Affiliates, if applicable), on the one hand, and the Company, on the other hand, shall promptly inform the other party of any communication to or from any Governmental Authority regarding any of the transactions contemplated by this Agreement in connection with any filings or investigations with, by or before any Governmental Authority relating to this Agreement HSR Filings or the transactions contemplated hereby, including (b) give the other party prompt notice of the commencement of any proceedings initiated investigation or legal proceeding by a private party. If any party hereto or Affiliate thereof shall receive a request for additional information or documentary material from before any Governmental Authority with respect to the transactions contemplated by this Agreement pursuant to the HSR Filings or any other Antitrust Laws with respect to which any such filings have been made, then such party shall use its reasonable best efforts to make, or cause to be made, as soon as reasonably practicable and after consultation with the other party, an appropriate response in compliance with such request. In connection with and without limiting the foregoing, to the extent reasonably practicable and unless prohibited by applicable Law or by the applicable Governmental Authority, the parties hereto agree to (i) give each other reasonable advance notice of all meetings with any Governmental Authority relating to the Offer or the Merger, (ii) give each other an opportunity to participate in each of such meetings, (iii) keep the other party reasonably apprised with respect to any oral communications with any Governmental Authority regarding the Offer or the Merger, (iv) cooperate in the filing of any analyses, presentations, memoranda, briefs, arguments, opinions or other written communications explaining or defending the Offer and the Merger, articulating any regulatory or competitive argument and/or responding to requests or objections made by any Governmental Authority, (v) provide each other with a reasonable advance opportunity to review and comment upon, and consider in good faith the views of the other with respect to, all written communications (including any analyses, presentations, memoranda, briefs, arguments and opinions) with a Governmental Authority regarding the Offer and the Merger, (vi) provide each other (or counsel of each party, as appropriate) with copies of all written communications to or from any Governmental Authority relating to the Offer or the Merger, and (vii) cooperate and provide each other with a reasonable opportunity to participate in, and consider in good faith the views of the other with respect to, all material deliberations with respect to all efforts to satisfy the conditions set forth in clauses (A) and (C)(1) of Annex A and Section 9.1(c). Any such disclosures, rights to participate or provisions of information by one party to the other may be made on a counsel-only basis to the extent required under applicable Law or as appropriate to protect confidential business information or the attorney client privilege or attorney work product.
(c) Each of Parent, Acquisition Sub and the Company shall cooperate with one another in good faith to (i) promptly determine whether any filings not contemplated by Section 8.2(a) are required to be or should be made, and whether any other consents, approvals, permits or authorizations not contemplated by Section 8.2(a) are required to be or should be obtained, from any Governmental Authority under any other applicable Law in connection with the transactions contemplated hereby, and (c) keep the other party informed as to the status of any such investigation or legal proceeding. Each Party shall provide to the other Parties in advance, with a reasonable opportunity for review and comment, drafts of communications to be submitted to a Governmental Authority in connection with the HSR Filings or relating to the transactions contemplated hereby (other than notification and report forms and Item 4(c) and 4(d) documents), and shall consider in good faith each other’s comments on those drafts; provided, that each Party may, as they deem advisable and necessary, (i) reasonably designate any competitively sensitive material that is provided to the other as “outside counsel only” with any such competitively sensitive material given only to the outside legal counsel of the recipient and not disclosed by such outside counsel to employees, officers or directors of the recipient unless express permission is obtained in advance from the providing party, or (ii) promptly make redact any information that is not customarily exchanged between parties in connection with HSR Filings. Each Party shall give the other Parties advance notice of any meeting or conference with a Governmental Authority relating to the HSR Filings or the transactions contemplated hereby and, except as may be prohibited by a Governmental Authority, shall permit authorized representatives of the other Party to be present at those meetings or conferences.
7.8.4 Without limiting the generality of the foregoing, the Company agrees to file a FedRAMP Significant Change Form (using the Significant Change Form Template available at ▇▇▇.▇▇▇▇▇▇▇.▇▇▇) , and any necessary supporting information and documentation, with the Company’s assigned FedRAMP Joint Authorization Board (JAB) members, the Company’s assigned FedRAMP Information System Security Officer (ISSO), and the Defense Information Systems Agency Authorizing Official within five (5) Business Days following the date of execution of this Agreement. The Company will consult with the Purchaser regarding the content of the filings, furnish information required in connection therewith including providing a copy thereof, before filing the forms. The Company will advise the Purchaser of any questions or comments from the JAB and seek the Defense Information Systems Agency, and consult with the Purchaser with respect to any responses thereto. With respect to each federal agency where the Company has a Government Contract to provide cloud services, the Company will also notify (a) when the Company is a subcontractor, the applicable prime contractor or (b) when the Company is a prime contractor, the appropriate agency contracting officer and any agency FedRAMP authority to operate official, and advise the Purchaser of any questions or comments from any prime contractor or agency.
7.8.5 Each Party shall use reasonable best efforts to take, or cause to be taken, all actions necessary to effectuate as promptly as practicable the Closing and the other transactions contemplated by this Agreement. Without limiting the generality of the foregoing, each Party shall use its reasonable best efforts (a) to obtain timely any such all consents, permits, authorizations, approvals approvals, waivers, or waivers that the parties determine are clearances required to be or should be made or obtained from a Governmental Authority in connection with the transactions contemplated hereby.
by this Agreement; and (db) Notwithstanding anything to prevent, avoid or lift, by litigation or otherwise, any restraint, prohibition, injunction, delay, limitation, or other legal bar to the contrary in this Agreement, in connection with any filing or submission required or action to be taken by either Parent or the Company to consummate the Offer Closing and the Merger, in no event shall Parent or any of its Subsidiaries or Affiliates be obligated to propose or agree to accept any undertaking or condition, to enter into any consent decree, to make any divestiture or accept any operational restriction, or take or commit to take any action (i) the effectiveness or consummation of which is not conditional on the consummation of the Offer and the Merger or (ii) that individually or in the aggregate (x) is or would reasonably be expected to be materially adverse (with materiality, for purposes of this provision, being measured in relation to the size of the Company and its Subsidiaries taken as a whole) to (A) the Company and its Subsidiaries, taken as a whole, or Parent and its Subsidiaries, taken as a whole, either before or after giving effect to the Offer or the Merger, or (B) Parent’s ownership or operation of any material portion of the business or assets of the Company and its Subsidiaries, taken as a whole, or (y) would reasonably be expected to deny Parent the material benefit of the bargains contemplated by the other transactions contemplated by this Agreement. The Company shall agree, if requested by Parent in writing, to commit to take any of the forgoing actions with respect to the assets or business of the Company in furtherance of this Section 8.2; provided, however, that Purchaser shall not have to agree to any such action may be conditioned upon the consummation of the Merger and other Transactions contemplated by this Agreementstructural or conduct remedy or to litigate.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Rackspace Technology, Inc.), Agreement and Plan of Merger (Rackspace Technology, Inc.)
Regulatory Filings. (a) Each of Parent and Acquisition Sub (and their respective Affiliates, if applicable), on the one hand, and the Company, on the other hand, shall (x) file with the FTC and the Antitrust Division of the DOJ a Notification and Report Form relating to this Agreement and the transactions contemplated hereby As promptly as required by the HSR Act as soon as reasonably practicable from the date following execution and delivery of this Agreement but in no event later than ten (10) Business Days following the after execution and delivery of this Agreement, and (y) file comparable pre-merger or post-merger notification filings, forms and submissions with any foreign Governmental Authority that is required by any other Antitrust Laws as soon as reasonably practicable from the date following execution and delivery of this Agreement but in no event later than ten (10) Business Days following the execution and delivery of this Agreement. Each each of Parent and the Company shall (i) cooperate with each other and coordinate with the other in the making of such filings, (ii) supply the other with any information that may be required in order to make such filings, (iii) supply any additional information that reasonably may be required or requested by the FTC, the DOJ or the Governmental Authorities of any other jurisdiction in which any such filing is made under any other Antitrust Laws, and (iv) use reasonable best efforts to take all action necessary to cause the expiration or termination of the applicable waiting periods under the HSR Act or other Antitrust Laws as soon as practicable, and to obtain any required consents under any other Antitrust Laws applicable to the Offer and/or the Merger as soon as practicable, and to avoid any impediment to the consummation of the Offer or the Merger under any Antitrust Laws, including using reasonable best efforts to take all such action as reasonably may be necessary to resolve such objections, if any, as the FTC, the DOJ, or any other Governmental Authority or Person may assert under any applicable Antitrust Laws with respect to the Offer and/or the Merger.
(b) Each of Parent and Acquisition Sub (and their respective Affiliates, if applicable), on the one hand, and the Company, on the other hand, shall promptly inform the other of any communication from any Governmental Authority regarding any of the transactions contemplated by this Agreement in connection with any filings or investigations with, by or before any Governmental Authority relating to this Agreement or the transactions contemplated hereby, including any proceedings initiated by a private party. If any party hereto or Affiliate thereof shall receive a request for additional information or documentary material from any Governmental Authority with respect to the transactions contemplated by this Agreement pursuant to the HSR or any other Antitrust Laws with respect to which any such filings have been made, then such party shall use its reasonable best efforts to maketake, or cause to be madetaken, all actions, and to do, or cause to be done, all things necessary, appropriate or desirable to consummate the Transactions, including within fifteen (15) Business Days after the date of this Agreement, unless otherwise agreed to by counsel in writing, making or causing to be made all filings and submissions required to be made by Parent, the Company or any of their Affiliates under the HSR Act, and no later than thirty (30) Business Days after the date of this Agreement, unless otherwise agreed to by counsel in writing, or in case a jurisdictional notice is issued by a Governmental Authority, submitted no later than twenty (20) Business Days after the date of such notice, unless otherwise agreed to by counsel in writing, such agreement not to be unreasonably withheld, with prenotification where required, making or causing to be made all filings and submissions, required to be made by any party or any of its Affiliates under any other applicable Antitrust Law or any Foreign Investment Law, as soon as reasonably practicable and after consultation applicable, or other Laws for the consummation of the Transactions. The parties shall cooperate in good faith with the other party, an appropriate response applicable Governmental Authorities in compliance connection with such request. In connection with filings and without submissions and shall promptly respond to any requests for information, including, if applicable, requests for the production of documents and the production of witnesses for interviews or depositions, by any Governmental Authorities.
(b) Without limiting the foregoing, each of Parent and the Company shall diligently assist and cooperate with each other in preparing and filing all documents required to be submitted by any of them or their Affiliates to any Governmental Authorities in connection with the Transactions and in obtaining any Governmental Authority or consents, waivers, authorizations, clearances or approvals which may be required to be obtained by Parent, the Company or any of their Affiliates in connection with the Transactions (which assistance and cooperation shall include timely furnishing to the requesting party all information that such party or its counsel reasonably determines is required to be included in such documents or would be helpful in obtaining such required consent, waiver, authorization, clearance or approval). Parent and the Company shall consult in good faith regarding strategy for obtaining approvals or expiration or termination of any waiting period; provided, in the event of a dispute between Parent and the Company, the final determination regarding such strategy shall be made by Parent.
(c) Without limiting the foregoing, each of the parties shall have the right to review in advance, and to the extent reasonably practicable practicable, each will consult the other prior to making any filing with, or a material communication to, any Governmental Authority in connection with the Transactions. Subject to this Section 6.06 and unless prohibited by applicable Law or by Laws relating to the applicable Governmental Authorityexchange of information, each party shall, to the extent practicable, give the other parties hereto agree to (i) give each other reasonable advance notice of all meetings with any Governmental Authority relating to of, and the Offer or the Merger, (ii) give each other an opportunity to participate in each of such meetingscomment on, (iii) keep the other party reasonably apprised with respect to any oral all material communications with any Governmental Authority regarding the Offer or the Merger, (iv) cooperate in the filing of any analyses, presentations, memoranda, briefs, arguments, opinions or other written communications explaining or defending the Offer and the Merger, articulating any regulatory or competitive argument and/or responding to requests or objections made by any Governmental Authority, (v) provide each other with a reasonable advance opportunity to review and comment upon, and consider in good faith the views of the other parties in connection with respect toany analysis, all written appearance, presentation, memorandum, brief, argument, opinion, proposal or other communication to be made or submitted in connection with any such request, inquiry, investigation, action or legal proceeding, and each party shall make reasonable efforts to afford the other Parties the opportunity to attend or participate in material conferences, meetings and telephone or other communications (including any analysesbetween the other parties and regulators concerning the Transactions, presentations, memoranda, briefs, arguments and opinions) with a unless prohibited by such Governmental Authority regarding the Offer and the Merger, (vi) Authority. The parties shall provide each other (or counsel of each party, as appropriate) with copies of all written correspondence, filings or communications to between them or from any of their representatives, on the one hand, and any Governmental Authority relating to the Offer or the Mergermembers of its staff, and (vii) cooperate and provide each other with a reasonable opportunity to participate in, and consider in good faith the views of on the other with respect tohand, all material deliberations with respect to all efforts this Agreement in connection with any request, inquiry, investigation, action or legal proceeding by a Governmental Authority. Materials required to satisfy be provided pursuant to this Section 6.06(c) may be redacted (i) to remove references concerning the conditions set forth valuation of the Company or the identity of alternative acquirers, (ii) as necessary to comply with contractual arrangements in clauses (A) existence as of the date of this Agreement and (C)(1iii) as necessary to preserve attorney-client or other privilege concerns and (iv) to remove material that is unrelated to both the Transactions and the substance of Annex A and Section 9.1(c)any investigation by a Governmental Authority. Any such disclosuresEach party, rights as each reasonably deems advisable, shall be entitled to participate or provisions of information by one party designate any competitively sensitive material provided to the other may Parties under this Section 6.06 as “Antitrust/FDI Counsel Only Material.” Such materials and the information contained therein shall be made on a counsel-given only basis to the extent required under applicable Law or as appropriate outside antitrust and foreign direct investment counsel of the recipient and will not be disclosed by such outside counsel to protect confidential business information or other Representatives of the attorney client privilege or attorney work product.
(c) Each of Parent, Acquisition Sub and the Company shall cooperate with one another in good faith to (i) promptly determine whether any filings not contemplated by Section 8.2(a) are required to be or should be made, and whether any other consents, approvals, permits or authorizations not contemplated by Section 8.2(a) are required to be or should be obtained, from any Governmental Authority under any other applicable Law in connection with the transactions contemplated hereby, and (ii) promptly make any filings, furnish information required in connection therewith and seek to obtain timely any such consents, permits, authorizations, approvals or waivers that the parties determine are required to be or should be made or recipient unless express written permission is obtained in connection with advance from the transactions contemplated herebysource of the materials or its legal counsel.
(d) Notwithstanding anything in this Agreement to the contrary contrary, nothing in this AgreementAgreement shall require, in connection with any filing or submission required or action be construed to be taken by either require, Parent or any Affiliate of Parent to (and the Company shall not, without the prior written consent of Parent, agree to) (i) any sale, license, divestiture or other disposition or holding separate of any capital stock, businesses, assets, properties or other interests of Parent, the Company or any of their respective Affiliates, (ii) the imposition of any limitation, restriction or condition on the ability of Parent, the Company or any of their respective Affiliates to conduct their respective businesses, assets, properties or other interests or (iii) the imposition of any limitation, restriction or condition on Parent, the Company, or any of their respective Affiliates under any Antitrust Laws; and, for the avoidance of doubt, solely to the extent Parent agrees to take, or consents to the Company to consummate the Offer and the Mergertake, in no event shall Parent or any of its Subsidiaries or Affiliates the foregoing actions, the Company shall not be obligated required to propose or agree to accept any undertaking or condition, to enter into any consent decree, to make any divestiture or accept any operational restriction, or take or commit to take any action such action, or agree to any such condition or restriction, unless such action, commitment, agreement, condition or restriction is conditioned upon the Closing.
(ie) The parties agree to use reasonable best efforts to defend through litigation on the merits any claim under Antitrust Law asserted in court or any administrative or other tribunal by any third party, including any Governmental Authorities, in order to avoid entry of, or to have vacated or terminated, any decree, order or judgment (whether temporary, preliminary or permanent) that would prevent the Closing Date from occurring prior to the Termination Date.
(f) During the Pre-Closing Period, Parent shall not and shall cause its controlled Affiliates not to acquire or enter, or publicly announce the intent to acquire or enter, into any agreement to acquire by merging or consolidating with or by purchasing a substantial portion of the assets of or equity, or by any manner, or announce any acquisition of any company, business or assets, if (A) related to gastrointestinal bleeding or bariatric procedures and (B) the effectiveness entering into of an agreement relating to or consummation of which is not conditional on the consummation of the Offer and the Merger such acquisition, merger, consolidation or (ii) that individually purchase or in the aggregate (x) is other transaction or action would reasonably be expected to be materially adverse (with materialityi) impose a material delay in the expiration or termination of any applicable waiting period or impose a material delay in the obtaining of, for purposes or increase the risk of this provisionnot obtaining, being measured in relation any authorization, consent, clearance, approval, declarations or order of a Governmental Authority necessary to consummate the Transactions, including receipt of any approvals and expiration of waiting periods pursuant to the size HSR Act or other applicable Antitrust Laws, (ii) materially increase the risk of a Governmental Authority entering, or increase the risk of not being able to remove or successfully challenge, any permanent, preliminary or temporary injunction or other order, decree, decision, determination or judgment that would delay, restrain, prevent, enjoin or otherwise prohibit consummation of the Company and its Subsidiaries taken as a whole) to (A) the Company and its Subsidiaries, taken as a whole, or Parent and its Subsidiaries, taken as a whole, either before or after giving effect to the Offer or the Merger, Transactions or (Biii) Parent’s ownership otherwise materially delay or operation of any material portion impede the consummation of the business or assets of the Company and its Subsidiaries, taken as a whole, or (y) would reasonably be expected to deny Parent the material benefit of the bargains contemplated by the transactions contemplated by this Agreement. The Company shall agree, if requested by Parent in writing, to commit to take any of the forgoing actions with respect to the assets or business of the Company in furtherance of this Section 8.2Transactions; provided, however, that the restrictions set forth in this Section 6.06 shall not prevent Parent from acquiring or entering into any such action may be conditioned upon the consummation agreement to acquire by merging or consolidating with or by purchasing a substantial portion of the Merger assets of or equity, or by any manner (1) a company, business or assets (as applicable) that is solely engaged in the business of manufacturing, producing, marketing and/or selling gastrointestinal bleeding or bariatric procedures if (y) such company, business or assets, as applicable, has total revenues with respect to such business of $20 million or less for the trailing twelve months prior to entering into the agreement for such acquisition, and other Transactions contemplated by this Agreement(z) such transaction is not reportable under the HSR Act or (2) a company, business, or assets that is engaged, but not solely engaged, in the business of manufacturing, producing, marketing and/or selling gastrointestinal bleeding or bariatric procedures if (y) such company, business or assets, as applicable, has total consolidated revenues of $20 million or less with respect to the business of manufacturing, producing, marketing and/or selling gastrointestinal bleeding or bariatric procedures and (z) such revenue does not represent more than five percent (5%) of the total consolidated revenues of the company, business or assets to be acquired, as applicable.
Appears in 2 contracts
Sources: Merger Agreement (Apollo Endosurgery, Inc.), Merger Agreement (Apollo Endosurgery, Inc.)
Regulatory Filings. (a) Each of Parent Parent, Merger Sub 1 and Acquisition Sub the Company shall coordinate and cooperate with one another and shall each use reasonable efforts to (and their respective AffiliatesA) take, if applicable)or cause to be taken, on the one handall appropriate actions, and the Companydo or cause to be done, on the other handall things necessary, shall (x) file with the FTC and the Antitrust Division of the DOJ a Notification and Report Form relating proper or advisable under applicable Legal Requirements or otherwise to this Agreement consummate Merger 1 and the transactions contemplated hereby as promptly as practicable, (B) obtain from any Governmental Entities any consents, licenses, permits, waivers, approvals, authorizations or orders required to be obtained or made to avoid any action or proceeding by any Governmental Entity (including those in connection with the HSR Act as soon as reasonably practicable from Act) in connection with the date following authorization, execution and delivery of this Agreement but in no event later than ten (10) Business Days following the execution and delivery of this Agreement, and (y) file comparable pre-merger or post-merger notification filings, forms and submissions with any foreign Governmental Authority that is required by any other Antitrust Laws as soon as reasonably practicable from the date following execution and delivery of this Agreement but in no event later than ten (10) Business Days following the execution and delivery of this Agreement. Each of Parent and the Company shall (i) cooperate and coordinate with the other in the making of such filings, (ii) supply the other with any information that may be required in order to make such filings, (iii) supply any additional information that reasonably may be required or requested by the FTC, the DOJ or the Governmental Authorities of any other jurisdiction in which any such filing is made under any other Antitrust Laws, and (iv) use reasonable best efforts to take all action necessary to cause the expiration or termination of the applicable waiting periods under the HSR Act or other Antitrust Laws as soon as practicable, and to obtain any required consents under any other Antitrust Laws applicable to the Offer and/or the Merger as soon as practicable, and to avoid any impediment to the consummation of the Offer or the Merger under any Antitrust Laws, including using reasonable best efforts to take all such action as reasonably may be necessary to resolve such objections, if any, as the FTC, the DOJ, or any other Governmental Authority or Person may assert under any applicable Antitrust Laws with respect to the Offer and/or the Merger.
(b) Each of Parent 1 and Acquisition Sub (and their respective Affiliates, if applicable), on the one hand, and the Company, on the other hand, shall promptly inform the other of any communication from any Governmental Authority regarding any of the transactions contemplated by this Agreement in connection with any filings or investigations with, by or before any Governmental Authority relating to this Agreement or the transactions contemplated hereby, including any proceedings initiated by a private party. If any party hereto or Affiliate thereof shall receive a request for additional information or documentary material from any Governmental Authority with respect to the transactions contemplated by this Agreement pursuant to the HSR or any other Antitrust Laws with respect to which any such filings have been made, then such party shall use its reasonable best efforts to (C) make, or cause to be made, as soon as reasonably practicable the applications and after consultation with the other party, an appropriate response in compliance with such request. In connection with and without limiting the foregoing, to the extent reasonably practicable and unless prohibited by applicable Law or by the applicable Governmental Authority, the parties hereto agree to (i) give each other reasonable advance notice of all meetings with any Governmental Authority relating to the Offer or the Merger, (ii) give each other an opportunity to participate in each of such meetings, (iii) keep the other party reasonably apprised with respect to any oral communications with any Governmental Authority regarding the Offer or the Merger, (iv) cooperate in the filing of any analyses, presentations, memoranda, briefs, arguments, opinions or other written communications explaining or defending the Offer and the Merger, articulating any regulatory or competitive argument and/or responding to requests or objections made by any Governmental Authority, (v) provide each other with a reasonable advance opportunity to review and comment upon, and consider in good faith the views of the other with respect to, all written communications (including any analyses, presentations, memoranda, briefs, arguments and opinions) with a Governmental Authority regarding the Offer and the Merger, (vi) provide each other (or counsel of each party, as appropriate) with copies of all written communications to or from any Governmental Authority relating to the Offer or the Merger, and (vii) cooperate and provide each other with a reasonable opportunity to participate in, and consider in good faith the views of the other with respect to, all material deliberations with respect to all efforts to satisfy the conditions set forth in clauses (A) and (C)(1) of Annex A and Section 9.1(c). Any such disclosures, rights to participate or provisions of information by one party to the other may be made on a counsel-only basis to the extent required under applicable Law or as appropriate to protect confidential business information or the attorney client privilege or attorney work product.
(c) Each of Parent, Acquisition Sub and the Company shall cooperate with one another in good faith to (i) promptly determine whether any filings not contemplated by Section 8.2(a) are required to be made under the HSR Act or should be made, and whether any other consents, approvals, permits or authorizations not contemplated by Section 8.2(a) are required to be or should be obtained, from any Governmental Authority under any other applicable Law Legal Requirements in connection with the authorization, execution and delivery of this Agreement and the consummation of Merger 1 and the transactions contemplated herebyhereby (including under the Exchange Act and any other applicable federal or state Legal Requirements), and to pay any fees due of it in connection with such applications or filings, as promptly as is reasonably practicable, and in any event within ten (10) Business Days after the date hereof, and (iiD) promptly make comply at the earliest practicable date with any filings, furnish information required in connection therewith request under the HSR Act and seek to obtain timely any such consentsother Legal Requirements for additional information, permits, authorizations, approvals documents or waivers that other materials received by Parent or the parties determine are required to be Company or should be made any of their respective Subsidiaries from the Federal Trade Commission or obtained the Department of Justice or any other Governmental Entity in connection with such applications or filings or Merger 1 and the transactions contemplated hereby.
(d) Notwithstanding anything to . Each of Parent and the contrary in this Agreement, in connection Company will cause all documents that it is responsible for filing with any filing or submission required or action to be taken by either Parent or the Company to consummate the Offer and the Merger, in no event shall Parent or any of its Subsidiaries or Affiliates be obligated to propose or agree to accept any undertaking or condition, to enter into any consent decree, to make any divestiture or accept any operational restriction, or take or commit to take any action (i) the effectiveness or consummation of which is not conditional on the consummation of the Offer and the Merger or (ii) that individually or in the aggregate (x) is or would reasonably be expected to be materially adverse (with materiality, for purposes of Governmental Entity under this provision, being measured in relation to the size of the Company and its Subsidiaries taken as a wholeSection 5.6(a) to (A) the Company and its Subsidiaries, taken as a whole, or Parent and its Subsidiaries, taken as a whole, either before or after giving effect to the Offer or the Merger, or (B) Parent’s ownership or operation of any comply in all material portion of the business or assets of the Company and its Subsidiaries, taken as a whole, or (y) would reasonably be expected to deny Parent the material benefit of the bargains contemplated by the transactions contemplated by this Agreement. The Company shall agree, if requested by Parent in writing, to commit to take any of the forgoing actions respects with respect to the assets or business of the Company in furtherance of this Section 8.2; provided, however, that any such action may be conditioned upon the consummation of the Merger and other Transactions contemplated by this Agreementall applicable Legal Requirements.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Ligand Pharmaceuticals Inc), Merger Agreement (Pharmacopeia Inc)
Regulatory Filings. (a) Each of Parent Within 20 calendar days after the date hereof, RECO, OPCO and Acquisition Sub (and their respective Affiliatesthe Company will make such filings, if applicable)any, on the one hand, and the Company, on the other hand, shall (x) file with the FTC and the Antitrust Division of the DOJ a Notification and Report Form relating to this Agreement and the transactions contemplated hereby as may be required by the HSR Act as soon as reasonably practicable from with respect to the date following execution and delivery consummation of this Agreement but in no event later than ten (10) Business Days following the execution and delivery of this Agreement, and (y) file comparable pre-merger or post-merger notification filings, forms and submissions with any foreign Governmental Authority that is required transactions contemplated by any other Antitrust Laws as soon as reasonably practicable from the date following execution and delivery of this Agreement but in no event later than ten (10) Business Days following the execution and delivery of this Agreement. Each of Parent Thereafter, RECO, OPCO and the Company shall (i) cooperate and coordinate will file or cause to be filed as promptly as practicable with the other in United States Federal Trade Commission (the making "FTC") and the United States Department of such filingsJustice (the "DOJ") supplemental information, (ii) supply the other with any information that may be required in order to make such filingsif any, (iii) supply any additional information that reasonably which may be required or requested by the FTC, FTC or the DOJ pursuant to the HSR Act. All filings referred to in this Section 5.03(a) will comply in all material respects with the requirements of the respective Laws pursuant to which they are made.
(b) Without limiting the generality or effect of Section 5.03(a), each of the parties will (i) use their respective reasonable efforts to comply as expeditiously as possible with all lawful requests of Governmental Authorities Entities for additional information and documents pursuant to the HSR Act, if applicable, (ii) not (A) extend any waiting period under the HSR Act or (B) enter into any agreement with any Governmental Entity not to consummate the transactions contemplated by this Agreement, except with the prior consent of any each of the other jurisdiction in which any such filing is made under any other Antitrust Lawsparties hereto, and (iviii) cooperate with each other and use reasonable best efforts to take all action prevent the entry of, and to cause the lifting or removal of any temporary restraining order, preliminary injunction or other judicial or administrative order which may be entered into in connection with the transactions contemplated by this Agreement, including without limitation the execution, delivery and performance by the appropriate entity of such divestiture agreements or other actions, as the case may be, as may be necessary to cause secure the expiration or termination of the applicable waiting periods under the HSR Act or the removal, dissolution, stay or dismissal of any temporary restraining order, preliminary injunction or other Antitrust Laws as soon as practicable, and to obtain any required consents under any other Antitrust Laws applicable to the Offer and/or the Merger as soon as practicable, and to avoid any impediment to judicial or administrative order which prevents the consummation of the Offer transactions contemplated hereby or the Merger under any Antitrust Laws, including using reasonable best efforts to take requires as a condition thereto that all such action as reasonably may be necessary to resolve such objections, if any, as the FTC, the DOJ, or any other Governmental Authority or Person may assert under any applicable Antitrust Laws with respect to the Offer and/or the Merger.
(b) Each of Parent and Acquisition Sub (and their respective Affiliates, if applicable), on the one hand, and the Company, on the other hand, shall promptly inform the other of any communication from any Governmental Authority regarding any part of the transactions contemplated by this Agreement in connection with any filings Business be held separate and, prior to or investigations withafter the Closing, by pursue the underlying litigation or before any Governmental Authority relating to this Agreement or the transactions contemplated hereby, including any proceedings initiated by a private party. If any party hereto or Affiliate thereof shall receive a request for additional information or documentary material from any Governmental Authority with respect to the transactions contemplated by this Agreement pursuant to the HSR or any other Antitrust Laws with respect to which any such filings have been made, then such party shall use its reasonable best efforts to make, or cause to be made, as soon as reasonably practicable administrative proceeding diligently and after consultation with the other party, an appropriate response in compliance with such request. In connection with and without limiting the foregoing, to the extent reasonably practicable and unless prohibited by applicable Law or by the applicable Governmental Authority, the parties hereto agree to (i) give each other reasonable advance notice of all meetings with any Governmental Authority relating to the Offer or the Merger, (ii) give each other an opportunity to participate in each of such meetings, (iii) keep the other party reasonably apprised with respect to any oral communications with any Governmental Authority regarding the Offer or the Merger, (iv) cooperate in the filing of any analyses, presentations, memoranda, briefs, arguments, opinions or other written communications explaining or defending the Offer and the Merger, articulating any regulatory or competitive argument and/or responding to requests or objections made by any Governmental Authority, (v) provide each other with a reasonable advance opportunity to review and comment upon, and consider in good faith the views of the other with respect to, all written communications (including any analyses, presentations, memoranda, briefs, arguments and opinions) with a Governmental Authority regarding the Offer and the Merger, (vi) provide each other (or counsel of each party, as appropriate) with copies of all written communications to or from any Governmental Authority relating to the Offer or the Merger, and (vii) cooperate and provide each other with a reasonable opportunity to participate in, and consider in good faith the views of the other with respect to, all material deliberations with respect to all efforts to satisfy the conditions set forth in clauses (A) and (C)(1) of Annex A and Section 9.1(c). Any such disclosures, rights to participate or provisions of information by one party to the other may be made on a counsel-only basis to the extent required under applicable Law or as appropriate to protect confidential business information or the attorney client privilege or attorney work productfaith.
(c) Each of Parent, Acquisition Sub and the Company shall cooperate with one another in good faith to (i) promptly determine whether any filings not contemplated by Section 8.2(a) are required to be or should be made, and whether any other consents, approvals, permits or authorizations not contemplated by Section 8.2(a) are required to be or should be obtained, from any Governmental Authority under any other applicable Law in connection with the transactions contemplated hereby, and (ii) promptly make any filings, furnish information required in connection therewith and seek to obtain timely any such consents, permits, authorizations, approvals or waivers that the parties determine are required to be or should be made or obtained in connection with the transactions contemplated hereby.
(d) Notwithstanding anything to the contrary in this Agreement, in connection with any filing or submission required or action to be taken by either Parent or the Company to consummate the Offer and the Merger, in no event shall Parent or any of its Subsidiaries or Affiliates be obligated to propose or agree to accept any undertaking or condition, to enter into any consent decree, to make any divestiture or accept any operational restriction, or take or commit to take any action (i) the effectiveness or consummation of which is not conditional on the consummation of the Offer and the Merger or (ii) that individually or in the aggregate (x) is or would reasonably be expected to be materially adverse (with materiality, for purposes of this provision, being measured in relation to the size of the Company and its Subsidiaries taken as a whole) to (A) the Company and its Subsidiaries, taken as a whole, or Parent and its Subsidiaries, taken as a whole, either before or after giving effect to the Offer or the Merger, or (B) Parent’s ownership or operation of any material portion of the business or assets of the Company and its Subsidiaries, taken as a whole, or (y) would reasonably be expected to deny Parent the material benefit of the bargains contemplated by the transactions contemplated by this Agreement. The Company shall agree, if requested by Parent in writing, to commit to take any of the forgoing actions with respect to the assets or business of the Company in furtherance of this Section 8.2; provided, however, that any such action may be conditioned upon the consummation of the Merger and other Transactions contemplated by this Agreement.
Appears in 2 contracts
Sources: Merger Agreement (Meditrust Corp), Merger Agreement (La Quinta Inns Inc)
Regulatory Filings. (a) Each of Parent and Acquisition Sub (and their respective Affiliates, if applicable), on the one handThe Purchaser shall, and shall cause its Affiliates to, (a) promptly make or cause to be made all filings and submissions required to be made under any Laws applicable to the Company, on Purchaser for the other hand, shall (x) file with the FTC and the Antitrust Division consummation of the DOJ a Notification and Report Form relating to this Agreement and the transactions contemplated hereby as required by the HSR Act as soon as reasonably practicable from the date following execution and delivery of this Agreement but in no event later than ten (10) Business Days following the execution and delivery of this Agreement, (b) coordinate and cooperate with the Company and the Seller in exchanging such information and providing such assistance as the Company and the Seller may reasonably request in connection with all of the foregoing, and (yc) file comparable pre-merger or post-merger notification filings, forms and submissions with any foreign Governmental Authority that is required by any other Antitrust Laws as soon as reasonably practicable from the date following execution and delivery of this Agreement but in no event later than ten (10) Business Days following the execution and delivery of this Agreement. Each of Parent and the Company shall (i) cooperate supply promptly any additional information and coordinate documentary material that may be requested in connection with the other in the making of such filings, (ii) supply the other with make any information further filings pursuant thereto that may be required necessary, proper or advisable in order to make such filings, connection therewith and (iii) supply any additional information that reasonably may be required or requested by the FTC, the DOJ or the Governmental Authorities of any other jurisdiction in which any such filing is made under any other Antitrust Laws, and (iv) use commercially reasonable best efforts to take all action actions necessary to cause the expiration or termination of the applicable waiting periods under the HSR Act or other Antitrust Laws as soon as practicable, and to obtain any all required consents under any other Antitrust Laws applicable to the Offer and/or the Merger as soon as practicable, and to avoid any impediment to the consummation of the Offer or the Merger under any Antitrust Laws, including using reasonable best efforts to take all such action as reasonably may be necessary to resolve such objections, if any, as the FTC, the DOJ, or any other Governmental Authority or Person may assert under any applicable Antitrust Laws with respect to the Offer and/or the Mergerclearances.
(b) Each of Parent and Acquisition Sub As soon as practicable following the date hereof (and their respective Affiliates, if applicable), on the one hand, and the Company, on the other hand, shall promptly inform the other of any communication from any Governmental Authority regarding any of the transactions contemplated by this Agreement in connection with any filings or investigations with, by or before any Governmental Authority relating to this Agreement or the transactions contemplated hereby, including any proceedings initiated by a private party. If any party hereto or Affiliate thereof shall receive a request for additional information or documentary material from any Governmental Authority with respect to the transactions contemplated by this Agreement pursuant to Purchaser HSR Filing, within five days), the HSR or any other Antitrust Laws with respect to which any such filings have been made, then such party Purchaser shall use its reasonable best efforts to make, make or cause to be made, as soon as reasonably practicable made all filings and after consultation submissions under the HSR Act (the “Purchaser HSR Filing”) and any other material Laws or regulations applicable to the transactions contemplated herein. The Purchaser shall coordinate and cooperate with the other party, an appropriate response Company and the Seller in compliance with exchanging such request. In information and providing such assistance as the Company and the Seller may reasonably request in connection with and without limiting all of the foregoing, to . The Purchaser shall be responsible for one half of all filing fees under the extent reasonably practicable and unless prohibited by applicable Law or by HSR Act. The Purchaser shall at the time of making the Purchaser HSR Filing request early termination of the applicable Governmental Authority, the parties hereto agree to (i) give each other reasonable advance notice of all meetings with any Governmental Authority relating to the Offer or the Merger, (ii) give each other an opportunity to participate in each of such meetings, (iii) keep the other party reasonably apprised with respect to any oral communications with any Governmental Authority regarding the Offer or the Merger, (iv) cooperate in the filing of any analyses, presentations, memoranda, briefs, arguments, opinions or other written communications explaining or defending the Offer and the Merger, articulating any regulatory or competitive argument and/or responding to requests or objections made by any Governmental Authority, (v) provide each other with a reasonable advance opportunity to review and comment upon, and consider in good faith the views of the other with respect to, all written communications (including any analyses, presentations, memoranda, briefs, arguments and opinions) with a Governmental Authority regarding the Offer and the Merger, (vi) provide each other (or counsel of each party, as appropriate) with copies of all written communications to or from any Governmental Authority relating to the Offer or the Merger, and (vii) cooperate and provide each other with a reasonable opportunity to participate in, and consider in good faith the views of the other with respect to, all material deliberations with respect to all efforts to satisfy the conditions set forth in clauses (A) and (C)(1) of Annex A and Section 9.1(c). Any such disclosures, rights to participate or provisions of information by one party to the other may be made on a counsel-only basis to the extent required under applicable Law or as appropriate to protect confidential business information or the attorney client privilege or attorney work productpremerger waiting period.
(c) Each of Parent, Acquisition Sub The Purchaser will provide the Company and the Company shall cooperate Seller with one another in good faith to prompt notice of any communication (iwhether written or oral) promptly determine whether any filings not contemplated received by Section 8.2(a) are required to be or should be made, and whether any other consents, approvals, permits or authorizations not contemplated by Section 8.2(a) are required to be or should be obtained, it from any Governmental Authority under Entity with respect to the foregoing, consult with the Company and the Seller prior to providing any other applicable Law additional information to or otherwise communicating (whether in written or oral form) with any Governmental Entity with respect to the foregoing, and incorporate the reasonable comments of the Company and the Seller in connection with providing any additional information to or otherwise communicating (whether in written or oral form) with any Governmental Entity with respect to the transactions contemplated hereby, and (ii) promptly make any filings, furnish information required in connection therewith and seek to obtain timely any such consents, permits, authorizations, approvals or waivers that the parties determine are required to be or should be made or obtained in connection with the transactions contemplated herebyforegoing.
(d) Notwithstanding anything to the contrary contained in this Agreement, in connection with neither the Purchaser nor any filing of its Subsidiaries or submission Affiliates, shall be required to agree to (i) any license, divestiture, sale or action to be taken by either Parent other disposition or holding separate (through establishment of a trust or otherwise) of any shares of its capital stock or of any of its businesses, assets, business lines or properties, or those of any of its Subsidiaries or Affiliates or the Company to consummate or its Subsidiaries, (ii) the Offer and imposition of any limitation or restriction on the Merger, in no event shall Parent ability of Purchaser or any of its Subsidiaries or Affiliates be obligated to propose conduct, operate or agree manage any of their respective businesses, assets, business lines or properties or own any capital stock or assets or to accept acquire, hold or exercise full rights of ownership of their respective businesses, assets, business lines or properties and, in the case of Purchaser, the business, assets, business lines or properties of the Company and its Subsidiaries, or (iii) the imposition of any impediment, condition or undertaking on Purchaser or conditionany of its Subsidiaries or Affiliates of any kind under any Law, to enter into any consent statute, rule, regulation, executive order, decree, order or other legal restraint governing competition, monopolies or restrictive trade practices (collectively, a “Divestiture Action”), unless such Divestiture Action would not have a material adverse impact on the Purchaser, any of its Subsidiaries or Affiliates, the Company or its Subsidiaries. With regard to make any divestiture Governmental Entity, neither the Seller nor the Company shall, without Purchaser’s written consent in Purchaser’s sole discretion, discuss or accept commit to any operational restrictionDivestiture Action, or discuss or commit to alter the Company’s or its Subsidiaries’ business, assets, business lines, properties or commercial practices in any way, or otherwise discuss or take or commit to take any action (i) the effectiveness or consummation that limits Purchaser’s freedom of which is not conditional on the consummation of the Offer and the Merger or (ii) that individually or in the aggregate (x) is or would reasonably be expected to be materially adverse (action with materiality, for purposes of this provision, being measured in relation to the size of the Company and its Subsidiaries taken as a whole) to (A) the Company and its Subsidiaries, taken as a wholerespect to, or Parent and its Subsidiaries, taken as a whole, either before or after giving effect Purchaser’s ability to the Offer or the Merger, or (B) Parent’s ownership or operation of any material portion of the business or assets of the Company and its Subsidiaries, taken as a whole, or (y) would reasonably be expected to deny Parent the material benefit of the bargains contemplated by the transactions contemplated by this Agreement. The Company shall agree, if requested by Parent in writing, to commit to take retain any of the forgoing actions Company’s or its Subsidiaries’ businesses, assets, business lines or properties or otherwise receive the full benefits of this Agreement, in Purchaser’s sole discretion. Nothing herein shall require Purchaser or any of its Subsidiaries or Affiliates to litigate with respect to any Person, or otherwise contest or defend against any administrative, regulatory or judicial action or proceeding or the assets imposition of any undertaking or business condition or decree, judgment, injunction or other order, whether temporary, preliminary or permanent, unless contesting or defending against such litigation, action, proceeding, undertaking, condition, decree, judgment, injunction or other order would not result in a material adverse impact on the Purchaser, any of its Subsidiaries or Affiliates, the Company in furtherance of this Section 8.2; provided, however, that any such action may be conditioned upon the consummation of the Merger and other Transactions contemplated by this Agreementor its Subsidiaries.
Appears in 2 contracts
Sources: Stock Purchase Agreement, Stock Purchase Agreement (Amag Pharmaceuticals Inc.)
Regulatory Filings. (a) Each of Parent and Acquisition Sub (and their respective Affiliates, if applicable), on the one hand, and the Company, on the other hand, shall (x) file with the FTC and the Antitrust Division of the DOJ a Notification and Report Form relating to this Agreement and the transactions contemplated hereby as required by the HSR Act as soon as reasonably practicable from the date following execution and delivery of this Agreement but in no event later than ten (10) Business Days following the execution and delivery of this Agreement, and (y) file comparable pre-merger or post-merger notification filings, forms and submissions with any foreign Governmental Authority that is required by any other Antitrust Laws as soon as reasonably practicable from the date following execution and delivery of this Agreement but in no event later than ten (10) Business Days following the execution and delivery of this Agreement. Each of Parent and the Company shall (i) cooperate Without limiting the generality of the parties’ undertakings pursuant to Section 6.2(a) and coordinate with Section 6.2(b), each party hereto shall (and the other in the making of such filings, (ii) supply the other with any information that may be required in order to make such filings, (iii) supply any additional information that reasonably may be required or requested by the FTC, the DOJ or the Governmental Authorities of any other jurisdiction in which any such filing is made under any other Antitrust Laws, and (iv) use reasonable best efforts to take all action necessary to Sellers shall cause the expiration or termination of the applicable waiting periods under the HSR Act or other Antitrust Laws as soon as practicable, and to obtain any required consents under any other Antitrust Laws applicable to the Offer and/or the Merger as soon as practicable, and to avoid any impediment to the consummation of the Offer or the Merger under any Antitrust Laws, including using reasonable best efforts to take all such action as reasonably may be necessary to resolve such objections, if any, as the FTC, the DOJ, or any other Governmental Authority or Person may assert under any applicable Antitrust Laws with respect to the Offer and/or the Merger.
Company to): (bi) Each of Parent and Acquisition Sub (and their respective Affiliates, if applicable), on the one hand, and the Company, on the other hand, shall promptly inform the other of any communication from any Governmental Authority regarding any of the transactions contemplated by this Agreement in connection with any filings or investigations with, by or before any Governmental Authority relating to this Agreement or the transactions contemplated hereby, including any proceedings initiated by a private party. If any party hereto or Affiliate thereof shall receive a request for additional information or documentary material from any Governmental Authority with respect to the transactions contemplated by this Agreement pursuant to the HSR or any other Antitrust Laws with respect to which any such filings have been made, then such party shall use its reasonable best efforts to make, or cause to be made, the registrations, filings and submissions required of it or any of its Affiliates under the HSR Act in connection with this Agreement and the Transactions as soon promptly as reasonably practicable (but in any event no later than five (5) Business Days) following the date of this Agreement; (ii) make, or cause to be made, the registrations, filings and submissions (if any) required of it or any of its Affiliates under any other applicable Antitrust Laws in connection with this Agreement and the Transactions as promptly as practicable (but in any event no later than five (5) Business Days) following the date of this Agreement; (iii) comply at the earliest practicable date and after consultation with the Sellers’ Representative or Purchaser, as applicable, with any request for additional information or documentary material received by the other party, an appropriate response or any of its Affiliates from any applicable Governmental Entity in compliance with such request. In connection with and without limiting any registrations, filings or submissions required under the foregoing, to the extent reasonably practicable and unless prohibited by HSR Act or any other applicable Law or by the applicable Governmental Authority, the parties hereto agree to (i) give each other reasonable advance notice of all meetings with any Governmental Authority relating to the Offer or the Merger, (ii) give each other an opportunity to participate in each of such meetings, (iii) keep the other party reasonably apprised with respect to any oral communications with any Governmental Authority regarding the Offer or the Merger, Antitrust Laws; (iv) cooperate with the other parties (including furnishing all necessary information and reasonable assistance as any other party may reasonably request) in connection with any registrations, filings or submissions required under the filing HSR Act or any other applicable Antitrust Laws and in connection with resolving any investigation or other inquiry concerning the Transactions initiated by any Governmental Entity; and (v) use commercially reasonable efforts to secure the early termination of any waiting periods under the HSR Act and the receipt of any clearances, approvals, or confirmations from Governmental Entities in other countries in which any registrations, filings or submissions pursuant to any applicable Antitrust Laws have been made to the extent required in connection with the consummation of the Transactions at the earliest possible date. Each party hereto shall promptly inform the other parties of any communication (whether oral or written) made to, or received by, such party from any Governmental Entity regarding any of the Transactions, and promptly provide a copy of any such written communication, or a written summary of any such oral communication, to the other parties.
(ii) All analyses, appearances, meetings, discussions, presentations, memoranda, briefs, filings, arguments, opinions or other written communications explaining or defending the Offer and the Merger, articulating any regulatory or competitive argument and/or responding to requests or objections proposals made by or on behalf of any party before any Governmental AuthorityEntity or the staff or regulators of any Governmental Entity, in connection with the Transactions (vbut, for the avoidance of doubt, not including any interactions that any party may have with Governmental Entities in the ordinary course of business and not relating to the Transactions) provide each shall be disclosed to the other parties hereunder in advance of any filing, submission or attendance, it being the intent that the parties will consult and cooperate with a reasonable advance opportunity to review and comment uponone another, and consider in good faith the views of the other one another, in connection with respect toany such analyses, all written communications (including any analysesappearances, meetings, discussions, presentations, memoranda, briefs, arguments and opinions) with a Governmental Authority regarding the Offer and the Mergerfilings, (vi) provide each other (or counsel of each party, as appropriate) with copies of all written communications to or from any Governmental Authority relating to the Offer or the Mergerarguments, and (vii) cooperate and provide each other with a reasonable opportunity to proposals. None of the parties shall initiate, participate in, and consider in good faith the views of the other with respect to, all material deliberations with respect to all efforts to satisfy the conditions set forth in clauses (A) and (C)(1) of Annex A and Section 9.1(c). Any such disclosures, rights or agree to participate in any substantive meeting, discussion, appearance or provisions contact with any Governmental Entity or the staff or regulators of information by one party any Governmental Entity unless it shall have given advance notice to the other may parties of such substantive meeting, discussion, appearance or contact, with such notice being sufficient to provide the other parties with the opportunity to attend and participate in such meeting, discussion, appearance or contact. Nothing in this Section 6.2(c) shall require any party to provide access to, or disclose any information to, any other party or any of its Affiliates if such access or disclosure, in the good faith reasonable belief of such first party: (x) would waive any attorney-client or an attorney work-product privilege; (y) would be made on a counsel-only basis to in violation of applicable Laws (including the extent required under applicable Law HSR Act or as appropriate to protect confidential business information any other Antitrust Laws) or the attorney client privilege provisions of any Contract to which such first party is a party; or attorney work product(z) would contain any confidential information.
(c) Each of Parent, Acquisition Sub and the Company shall cooperate with one another in good faith to (i) promptly determine whether any filings not contemplated by Section 8.2(a) are required to be or should be made, and whether any other consents, approvals, permits or authorizations not contemplated by Section 8.2(a) are required to be or should be obtained, from any Governmental Authority under any other applicable Law in connection with the transactions contemplated hereby, and (ii) promptly make any filings, furnish information required in connection therewith and seek to obtain timely any such consents, permits, authorizations, approvals or waivers that the parties determine are required to be or should be made or obtained in connection with the transactions contemplated hereby.
(diii) Notwithstanding anything to the contrary set forth in this AgreementSection 6.2, nothing in connection with any filing this Agreement shall require, or submission required or action be construed to be taken by either Parent or the Company to consummate the Offer and the Mergerrequire, in no event shall Parent Purchaser or any of its Subsidiaries or Affiliates be obligated to propose or agree to accept to: (w) sell, hold separate, dispose of, divest, discontinue or limit, before or after the Closing Date, any undertaking assets, products, businesses or conditioninterests of Purchaser, to enter into the Company or any consent decree, to make of their respective Affiliates; (x) any divestiture or accept any operational restrictionconditions relating to, or take changes or commit restrictions in, the operations of any such assets, products, businesses or interests which, in either case, could reasonably be expected to result in a Purchaser Material Adverse Effect or materially and adversely impact the economic or business benefits to Purchaser of the Transactions; (y) any material modification or waiver of the terms and conditions of this Agreement; or (z) take any other action that limits the freedom of action with respect to, or the ability to retain, any assets, products, businesses or interests of Purchaser, the Company or any of their respective Affiliates in order to avoid the entry of or to effect the dissolution of any Order (i) whether temporary, preliminary or permanent), which would otherwise have the effectiveness effect of preventing or consummation of which is not conditional on delaying the consummation of the Offer and the Merger or (ii) that individually or in the aggregate (x) is or would reasonably be expected to be materially adverse (with materiality, for purposes of this provision, being measured in relation to the size of the Company and its Subsidiaries taken as a whole) to (A) the Company and its Subsidiaries, taken as a whole, or Parent and its Subsidiaries, taken as a whole, either before or after giving effect to the Offer or the Merger, or (B) Parent’s ownership or operation of any material portion of the business or assets of the Company and its Subsidiaries, taken as a whole, or (y) would reasonably be expected to deny Parent the material benefit of the bargains contemplated by the transactions contemplated by this Agreement. The Company shall agree, if requested by Parent in writing, to commit to take any of the forgoing actions with respect to the assets or business of the Company in furtherance of this Section 8.2; provided, however, that any such action may be conditioned upon the consummation of the Merger and other Transactions contemplated by this AgreementTransactions.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (TILT Holdings Inc.), Agreement and Plan of Merger (TILT Holdings Inc.)
Regulatory Filings. (a) Each of Parent and Acquisition Sub (and their respective Affiliates, if applicable), on the one hand, and the Company, on the other hand, shall (x) file with the FTC and the Antitrust Division of the DOJ a Notification and Report Form relating to this Agreement and the transactions contemplated hereby as required by the HSR Act as soon as reasonably practicable from the date following execution and delivery of this Agreement but in no event later than Within ten (10) Business Days following the execution and delivery of this AgreementDays, and (y) file comparable pre-merger or post-merger notification filings, forms and submissions with any foreign Governmental Authority that is required by any other Antitrust Laws as soon promptly as reasonably practicable from practicable, after the date following execution and delivery of this Agreement but in no event later than ten (10) Business Days following the execution and delivery of this Agreement. Each of Parent and the Company shall (i) cooperate and coordinate with the other in the making of such filings, (ii) supply the other with any information that may be required in order to make such filings, (iii) supply any additional information that reasonably may be required or requested by the FTChereof, the DOJ Parties shall make, or cause to be made, the Governmental Authorities filings required (if any) of each of them or any other jurisdiction in which any such filing is made under any other Antitrust Laws, and (iv) use reasonable best efforts to take all action necessary to cause the expiration of their respective Subsidiaries or termination of the applicable waiting periods Affiliates under the HSR Act or other Antitrust Laws as soon as practicable, and to obtain any required consents under any other Antitrust Laws applicable to the Offer and/or the Merger as soon as practicable, and to avoid any impediment to the consummation of the Offer or the Merger under any Antitrust Laws, including using reasonable best efforts to take all such action as reasonably may be necessary to resolve such objections, if any, as the FTC, the DOJ, or any other Governmental Authority or Person may assert under any applicable Antitrust Laws with respect to the Offer and/or the Merger.
(b) Each of Parent and Acquisition Sub (and their respective Affiliates, if applicable), on the one hand, and the Company, on the other hand, Transactions. The Parties shall promptly inform the other of any communication from any Governmental Authority regarding any of the transactions contemplated by this Agreement in connection with any filings or investigations with, by or before any Governmental Authority relating to this Agreement or the transactions contemplated hereby, including any proceedings initiated by a private party. If any party hereto or Affiliate thereof shall receive a request for additional information or documentary material from any Governmental Authority with respect to the transactions contemplated by this Agreement pursuant to the HSR or any other Antitrust Laws with respect to which any such filings have been made, then such party shall use its reasonable best efforts to make, or cause to be made, as soon promptly as reasonably practicable and after consultation with practicable, all filings necessary to obtain all Regulatory Approvals other than the HSR Approval. The Parties shall use their commercially reasonable efforts to: (a) respond to any requests for additional information made by any Governmental Authority; (b) provide the other partyparty with a reasonable opportunity to review and comment on any filing, submission, response to an appropriate response information request or other (verbal or written) communication to be submitted or made to any Governmental Authority and such receiving party shall consider any such received comments in compliance with good faith; (c) keep each other apprised of the status of matters relating to any Regulatory Approval contemplated by this Agreement or any Ancillary Agreement; (d) advise the other Party (and, where applicable, provide a copy) of any written or verbal communications that it receives from any Governmental Authority in respect of such request. In filings (including in respect of any supplementary filings or submissions) and otherwise in connection with and without limiting satisfying the foregoing, Regulatory Approvals; (e) provide the other party with a reasonable opportunity to the extent reasonably practicable and unless prohibited by applicable Law or by the applicable Governmental Authority, the parties hereto agree to (i) give each other reasonable advance notice of all participate in any meetings with any Governmental Authority relating to the Offer or the Merger, (ii) give each other an opportunity to participate in each of such meetings, (iii) keep the other party reasonably apprised with respect subject to any oral communications opposition by a Governmental Authority to a particular party’s participation in such meeting) and participate in, or review, any material communication before it is made to any Governmental Authority; and (f) consult and cooperate with one another in connection with any Governmental Authority regarding the Offer or the Mergeranalyses, (iv) cooperate in the filing of any analysesappearances, presentations, memoranda, briefs, arguments, opinions and proposals made or other written communications explaining submitted by or defending on behalf of either Party in connection with judicial proceedings under or relating to Regulatory Approval. Notwithstanding the Offer and foregoing, each Party has the Merger, articulating any regulatory right to redact or competitive argument and/or responding to requests or objections made by any Governmental Authority, (v) provide each other with a reasonable advance opportunity to review and comment upon, and consider in good faith the views of otherwise exclude the other with respect to, all written communications Party from receiving any confidential competitively sensitive information required to be shared under this Section 5.06; provided that such other Party’s external counsel shall be entitled to receive such confidential competitively sensitive information on an external counsel only basis. The Parties shall: (including i) not agree to an extension of any analyses, presentations, memoranda, briefs, arguments and opinions) with waiting period or review being undertaken by a Governmental Authority regarding the Offer and the Merger, (vi) provide each other (or counsel of each party, as appropriate) with copies of all written communications to or from any Governmental Authority relating to the Offer or the Merger, and (vii) cooperate and provide each other with a reasonable opportunity to participate in, and consider in good faith the views of without the other with respect to, all material deliberations with respect to all efforts to satisfy the conditions set forth in clauses (A) and (C)(1) of Annex A and Section 9.1(c). Any such disclosures, rights to participate or provisions of information by one party to the other may be made on a counsel-only basis to the extent required under applicable Law or as appropriate to protect confidential business information or the attorney client privilege or attorney work product.
(c) Each of Parent, Acquisition Sub and the Company shall cooperate with one another in good faith to (i) promptly determine whether any filings not contemplated by Section 8.2(a) are required to be or should be made, and whether any other consents, approvals, permits or authorizations not contemplated by Section 8.2(a) are required to be or should be obtained, from any Governmental Authority under any other applicable Law in connection with the transactions contemplated hereby, Party’s prior written consent; and (ii) promptly make use commercially reasonable efforts to cause any filings, furnish information required in connection therewith and seek applicable waiting periods to obtain timely any such consents, permits, authorizations, approvals terminate or waivers that expire at the parties determine are required to be or should be made or obtained in connection with the transactions contemplated herebyearliest possible date.
(d) Notwithstanding anything to the contrary in this Agreement, in connection with any filing or submission required or action to be taken by either Parent or the Company to consummate the Offer and the Merger, in no event shall Parent or any of its Subsidiaries or Affiliates be obligated to propose or agree to accept any undertaking or condition, to enter into any consent decree, to make any divestiture or accept any operational restriction, or take or commit to take any action (i) the effectiveness or consummation of which is not conditional on the consummation of the Offer and the Merger or (ii) that individually or in the aggregate (x) is or would reasonably be expected to be materially adverse (with materiality, for purposes of this provision, being measured in relation to the size of the Company and its Subsidiaries taken as a whole) to (A) the Company and its Subsidiaries, taken as a whole, or Parent and its Subsidiaries, taken as a whole, either before or after giving effect to the Offer or the Merger, or (B) Parent’s ownership or operation of any material portion of the business or assets of the Company and its Subsidiaries, taken as a whole, or (y) would reasonably be expected to deny Parent the material benefit of the bargains contemplated by the transactions contemplated by this Agreement. The Company shall agree, if requested by Parent in writing, to commit to take any of the forgoing actions with respect to the assets or business of the Company in furtherance of this Section 8.2; provided, however, that any such action may be conditioned upon the consummation of the Merger and other Transactions contemplated by this Agreement.
Appears in 2 contracts
Sources: Business Combination Agreement (Alternus Clean Energy, Inc.), Business Combination Agreement (Clean Earth Acquisitions Corp.)
Regulatory Filings. (a) Each of The Parent and Acquisition Sub (and their respective Affiliatesshall, if applicable), on the one hand, and the Company, on the other hand, shall (x) file with the FTC and the Antitrust Division of the DOJ a Notification and Report Form relating to this Agreement and the transactions contemplated hereby as required by the HSR Act as soon as reasonably practicable from the date following execution and delivery of this Agreement but in no event later than ten (10) Business Days following the execution and delivery of this Agreement, and (y) file comparable pre-merger or post-merger notification filings, forms and submissions with any foreign Governmental Authority that is required by any other Antitrust Laws as soon as reasonably practicable from the date following execution and delivery of this Agreement but in no event later than ten (10) Business Days following the execution and delivery of this Agreement. Each of Parent and the Company shall promptly (i) cooperate (and coordinate with in any event within five (5) Business Days) after the other in the making of such filingsdate hereof, (ii) supply the other with any information that may make or cause to be required in order to make such filings, (iii) supply any additional information that reasonably may be required or requested by the FTC, the DOJ or the Governmental Authorities of any other jurisdiction in which any such filing is made under any other Antitrust Laws, all filings and (iv) use reasonable best efforts to take all action necessary to cause the expiration or termination of the applicable waiting periods submissions under the HSR Act or other Antitrust Laws as soon as practicable, and to obtain any required consents under any other Antitrust Laws applicable to the Offer and/or the Merger as soon as practicable, and to avoid any impediment to the consummation of the Offer or the Merger under any Antitrust Laws, including using reasonable best efforts to take all such action as reasonably may be necessary to resolve such objections, if any, as the FTC, the DOJ, or any other Governmental Authority or Person may assert under any applicable Antitrust Laws with respect to the Offer and/or jurisdictions set forth on Schedule 6.04(a) in connection with the Merger.
consummation of the transactions contemplated herein (bwhich filings and submissions shall seek early termination if made pursuant to the HSR Act and the equivalent, if available, with respect to any such other applicable Antitrust Laws) Each and (ii) provide or cause to be provided the notices or filings set forth on Schedule 6.04(b). In connection with the consummation of the transactions contemplated herein, the Parent shall promptly comply with any additional requests for information, including requests for production of documents and Acquisition Sub production of witnesses for interviews or depositions by any Governmental Entities. Notwithstanding anything herein to the contrary, the Parent shall cooperate in good faith with any Governmental Entities and undertake promptly any and all action required to complete the transactions contemplated by this Agreement expeditiously and lawfully, including, but not limited to, (i) selling or otherwise disposing of, or holding separate and agreeing to sell or otherwise dispose of, assets, categories of assets or businesses of the Company or Parent or their respective AffiliatesSubsidiaries; (ii) terminating existing relationships, if applicable)contractual rights or obligations of the Company or Parent or their respective Subsidiaries; (iii) terminating any venture or other arrangement; (iv) creating any relationship, on contractual rights or obligations of the one handCompany or Parent or their respective Subsidiaries; or (v) effectuating any other change or restructuring of the Company or Parent or their respective Subsidiaries (and, in each case, to enter into agreements or stipulate to the entry of an Order or decree or file appropriate applications with any Governmental Entity in connection with any of the foregoing and in the case of Actions by or with respect to any Group Company or its businesses or assets, by consenting to such Action by the Company and provided, that any such Action may, at the discretion of the Company, on be conditioned upon consummation of the Merger). Without limiting the generality of the foregoing, if a suit or other hand, shall promptly inform the other of any communication from Action is threatened or instituted by any Governmental Authority regarding Entity or any other entity challenging the validity or legality or seeking to restrain the consummation of the transactions contemplated by this Agreement Agreement, the Parent and the Merger Sub shall use their best efforts to avoid, resist, resolve or, if necessary, defend such suit or action and shall afford the Company a reasonable opportunity to participate therein. The Parent shall diligently assist and cooperate with the Company in preparing and filing any and all written communications that are to be submitted to any Governmental Entities in connection with the transactions contemplated hereby and in obtaining any filings governmental or investigations withthird party consents, waivers, authorizations or approvals which may be required to be obtained by or before any Governmental Authority relating to this Agreement or Group Company in connection with the transactions contemplated hereby, including any proceedings initiated by a private party. If any party hereto or Affiliate thereof which assistance and cooperation shall receive a request for additional information or documentary material from any Governmental Authority with respect to the transactions contemplated by this Agreement pursuant to the HSR or any other Antitrust Laws with respect to which any such filings have been made, then such party shall use its reasonable best efforts to make, or cause to be made, as soon as reasonably practicable and after consultation with the other party, an appropriate response in compliance with such request. In connection with and without limiting the foregoing, to the extent reasonably practicable and unless prohibited by applicable Law or by the applicable Governmental Authority, the parties hereto agree to include: (i) give each other reasonable advance notice of all meetings with any Governmental Authority relating timely furnishing to the Offer Company all information concerning the Parent and/or its Affiliates that counsel to the Company reasonably determines is required to be included in such documents or the Mergerwould be helpful in obtaining such required consent, waiver, authorization or approval; (ii) give each other an opportunity to participate in each of such meetings, (iii) keep promptly providing the other party reasonably apprised with respect to any oral communications with any Governmental Authority regarding the Offer or the Merger, (iv) cooperate in the filing of any analyses, presentations, memoranda, briefs, arguments, opinions or other written communications explaining or defending the Offer and the Merger, articulating any regulatory or competitive argument and/or responding to requests or objections made by any Governmental Authority, (v) provide each other with a reasonable advance opportunity to review and comment upon, and consider in good faith the views of the other with respect to, all written communications (including any analyses, presentations, memoranda, briefs, arguments and opinions) with a Governmental Authority regarding the Offer and the Merger, (vi) provide each other (or counsel of each party, as appropriate) Company with copies of all written communications to or from any Governmental Authority Entity relating to the Offer or the Merger, and (vii) cooperate and provide each other with a reasonable opportunity to participate in, and consider in good faith the views of the other with respect to, all material deliberations with respect to all efforts to satisfy the conditions set forth in clauses (A) and (C)(1) of Annex A and Section 9.1(c). Any any Antitrust Law; provided that such disclosures, rights to participate or provisions of information by one party to the other copies may be made on a counsel-only basis redacted as necessary to the extent required under applicable Law or as appropriate to protect confidential business information or the attorney client address legal privilege or attorney work product.
confidentiality concerns or to comply with applicable Law; and provided further, that portions of such copies that are competitively sensitive may be designated as “outside antitrust counsel only”; (ciii) Each of Parent, Acquisition Sub and keeping the Company shall cooperate with one another in good faith to (i) promptly determine whether reasonably informed of any filings not contemplated by Section 8.2(a) are required to be communication received or should be made, and whether any other consents, approvals, permits or authorizations not contemplated by Section 8.2(a) are required to be or should be obtained, from any Governmental Authority under any other applicable Law in connection with the transactions contemplated hereby, and (ii) promptly make any filings, furnish information required in connection therewith and seek to obtain timely any such consents, permits, authorizations, approvals or waivers that the parties determine are required to be or should be made or obtained in connection with the transactions contemplated hereby.
(d) Notwithstanding anything to the contrary in this Agreement, given in connection with any filing or submission required or action to be taken proceeding by either Parent or Merger Sub, in each case regarding the Merger; and (iv) permitting the Company to consummate review and incorporate the Offer and Company’s reasonable comments in any communication given by it to any Governmental Entity or in connection with any proceeding related to the HSR Act, in each case regarding the Merger. Neither the Parent nor the Merger Sub shall initiate or participate in any meeting or discussion with any Governmental Entity with respect to any filings, in no event shall Parent or any of its Subsidiaries or Affiliates be obligated to propose or agree to accept any undertaking or conditionapplications, to enter into any consent decree, to make any divestiture or accept any operational restrictioninvestigation, or take or commit to take any action (i) the effectiveness or consummation of which is not conditional on the consummation of the Offer and other inquiry regarding the Merger or (ii) that individually filings under the HSR Act without giving the Company reasonable prior notice of the meeting or in the aggregate (x) is or would reasonably be expected to be materially adverse (with materialitydiscussion and, for purposes of this provision, being measured in relation to the size of extent permitted by the Company relevant Governmental Entity, the opportunity to attend and its Subsidiaries taken as a whole) to (A) participate in such meeting or discussion. The Parent shall be responsible for all filing fees under the Company HSR Act and its Subsidiaries, taken as a whole, or Parent and its Subsidiaries, taken as a whole, either before or after giving effect under any other Antitrust Laws applicable to the Offer or the Merger, or (B) Parent’s ownership or operation of any material portion of the business or assets of the Company and its Subsidiaries, taken as a whole, or (y) would reasonably be expected to deny Parent the material benefit of the bargains contemplated by the transactions contemplated by this Agreement. The Company shall agree, if requested by Parent in writing, to commit to take any of the forgoing actions with respect to the assets or business of the Company in furtherance of this Section 8.2; provided, however, that any such action may be conditioned upon the consummation of the Merger and other Transactions contemplated by this Agreement.
Appears in 1 contract
Sources: Merger Agreement (Par Pharmaceutical Companies, Inc.)
Regulatory Filings. (a) Each of Parent and Acquisition Sub (shall, and shall cause their respective Affiliates, if applicable), on the one handAffiliates to, and the CompanyCompany shall, on the other hand, shall (x) file with the FTC and the Antitrust Division of the DOJ a Notification and Report Form relating to this Agreement and the transactions contemplated hereby as required by the HSR Act as soon as reasonably practicable from after the date following execution and delivery of this Agreement but in no event later than ten (10) Business Days following the execution and delivery of this Agreement, and (y) file comparable pre-merger or post-merger notification filings, forms and submissions with any foreign Governmental Authority that is required by any other Antitrust Laws as soon as reasonably practicable from after the date following execution and delivery of this Agreement but in no event later than ten (10) Business Days following the execution and delivery of this Agreement. Each of Parent and the Company shall use reasonable best efforts to (i) cooperate and coordinate with the other in the making of such filings, (ii) supply the other with any information that reasonably may be required in order to make such filings, (iii) supply any additional information that reasonably may be required or requested by the FTC, the DOJ or the Governmental Authorities of any other applicable jurisdiction in which any such filing is made under any other Antitrust Laws, and (iv) use reasonable best efforts subject to Section 8.2(d), take all action necessary to cause the expiration or termination of the applicable waiting periods under the HSR Act or other Antitrust Laws as soon as practicable, and to obtain any required consents under any other Antitrust Laws applicable to the Offer and/or or the Merger as soon as practicable, and to avoid any impediment to the consummation of the Offer or the Merger under any Antitrust Laws, including using reasonable best efforts to take all such action as reasonably may be necessary to resolve such objections, if any, as the FTC, the DOJ, or any other Governmental Authority or Person may assert under any applicable Antitrust Laws with respect to the Offer and/or or the Merger. Parent shall pay all filing fees (and the Company shall not be required to pay any filing fees) under the HSR Act and any fees or other payments to any Governmental Authority in connection with any filings under the HSR Act or such other filings as may be required under the applicable Antitrust Laws.
(b) Each of Parent and Acquisition Sub (shall, and shall cause their respective Affiliates, if applicable), on the one handAffiliates to, and the CompanyCompany shall, on the other hand, shall promptly inform the other Parties of any communication from any Governmental Authority regarding any of the transactions contemplated by this Agreement in connection with any filings or investigations with, by or before any Governmental Authority relating to this Agreement or the transactions contemplated hereby, including any proceedings initiated by a private party. If any party Party hereto or Affiliate thereof shall receive a request for additional information or documentary material from any Governmental Authority with respect to the transactions contemplated by this Agreement pursuant to the HSR Act or any other Antitrust Laws with respect to which any such filings have been made, then such party Party shall use its reasonable best efforts to make, or cause to be made, as soon as reasonably practicable and after consultation with the other partyParty, an appropriate response in compliance with such request. In connection with and without limiting the foregoing, to the extent reasonably practicable and unless prohibited by applicable Law or by the applicable Governmental Authority, the parties hereto Parties agree to (i) give each other reasonable advance notice of all meetings with any Governmental Authority relating to the Offer or the Merger, (ii) give each other an opportunity to participate in each of such meetings, (iii) keep the other party Parties reasonably apprised with respect to any oral substantive communications with any Governmental Authority regarding the Offer or the Merger, (iv) cooperate in the filing of any analyses, presentations, memoranda, briefs, arguments, opinions or other written communications explaining or defending the Offer and or the Merger, articulating any regulatory or competitive argument and/or responding to requests or objections made by any Governmental Authority, (v) provide each other Party with a reasonable advance opportunity to review and comment upon, and consider in good faith the views of the other with respect to, all written communications (including any analyses, presentations, memoranda, briefs, arguments and opinions) with a Governmental Authority regarding the Offer and or the Merger, (vi) provide each other (or counsel of each partyParty, as appropriate) with copies of all written communications to or from any Governmental Authority relating to the Offer or the Merger, and (vii) cooperate and provide each other with a reasonable opportunity to participate in, and consider in good faith the views of the other with respect to, all material deliberations with respect to all efforts to satisfy the conditions set forth in clauses (A) and (C)(1) of Annex A and Section 9.1(c9.1(a). Any such disclosures, rights to participate or provisions of information by one party Party to the other others may be made on a counsel-only basis to the extent required under applicable Law or as appropriate to protect confidential business information or the attorney client privilege or attorney work productConfidential Information.
(c) Each of Parent, Acquisition Sub and the Company shall cooperate with one another in good faith to (i) promptly determine whether any filings not contemplated by Section 8.2(a) are required to be or should be made, and whether any other consents, approvals, permits or authorizations not contemplated by Section 8.2(a) are required to be or should be obtained, from any Governmental Authority under any other applicable Law in connection with the transactions contemplated hereby, and (ii) promptly make any filings, furnish information required in connection therewith and seek to obtain timely any such consents, permits, authorizations, approvals or waivers that the parties Parties determine are required to be or should be made or obtained in connection with the transactions contemplated hereby.
(d) Notwithstanding anything Parent agrees (and the Company agrees except with respect to the contrary in clause (ii) of this Agreementsentence), and shall cause each of its Subsidiaries, to take any and all actions necessary to obtain any consents, clearances or approvals required under or in connection with any filing domestic or submission required foreign Antitrust Law, and to enable all waiting periods under any Antitrust Law to expire, and to avoid or action eliminate each and every impediment under any Antitrust Law asserted by any Governmental Authority, in each case, to be taken by either Parent or cause the Company to consummate the Offer Merger and the Mergerother transactions contemplated hereby to occur prior to the Outside Date, in no event shall Parent including but not limited to (i) promptly complying with or modifying any of its Subsidiaries or Affiliates be obligated requests for additional information (including any second request) by any Governmental Authority, (ii) if necessary to propose or agree obtain clearance by any Governmental Authority before the Outside Date, offering, negotiating, committing to accept any undertaking or conditionand effecting, to enter into any by consent decree, to make hold separate order or otherwise, the sale, divestiture, license or other disposition of any divestiture or accept any operational restriction, or take or commit to take any action (i) the effectiveness or consummation of which is not conditional on the consummation and all of the Offer and the Merger capital stock, assets, rights, products or (ii) that individually or in the aggregate (x) is or would reasonably be expected to be materially adverse (with materiality, for purposes of this provision, being measured in relation to the size of the Company and its Subsidiaries taken as a whole) to (A) the Company and its Subsidiaries, taken as a whole, or Parent and its Subsidiaries, taken as a whole, either before or after giving effect to the Offer or the Merger, or (B) Parent’s ownership or operation of any material portion of the business or assets businesses of the Company and its Subsidiaries, taken as a wholeand any other structural or conduct restrictions on the activities of the Company and its Subsidiaries and (iii) contesting, defending and appealing any threatened or (y) pending preliminary or permanent injunction or other order, decree or ruling or statute, rule, regulation or executive order that would adversely affect the ability of any Party hereto to consummate the transactions contemplated hereby and taking any and all other actions to prevent the entry, enactment or promulgation thereof; provided, however, that, notwithstanding anything in this Agreement to the contrary, Parent and Acquisition Sub shall not be required, and the Company shall not be permitted without the prior written consent of Parent, to undertake any efforts or to take or offer or agree to take any action if the taking of such efforts or action would reasonably be expected to deny Parent result in a Substantial Detriment.
(e) During the material benefit period from the date hereof and continuing until the earlier to occur of the bargains termination of this Agreement pursuant to Section 10.1 and the Effective Time, except with the consent of the Company (which shall not be unreasonably withheld, delayed or conditioned), Parent and its Affiliates shall not do anything, including entering into any transaction, that would reasonably be expected to prevent or delay any filings or approvals required under the HSR Act or other applicable Antitrust Laws.
(f) The Company shall give prompt notice to Parent, and Parent shall give prompt notice to the Company, (and will subsequently keep the other informed on a current basis of any developments related to such notice) of (i) any notice or other communication received by such party from any Governmental Authority in connection with the Offer, the Merger or the other transactions contemplated by hereby or from any Person alleging that the consent of such Person is or may be required in connection with the Offer, the Merger or the other transactions contemplated hereby, (ii) its becoming aware of the occurrence or existence of any fact, event or circumstance that is reasonably likely to result in any of the conditions set forth in Article IX or Annex A not being able to be satisfied prior to the Outside Date and (iii) any Legal Proceedings commenced or, to such party’s knowledge, threatened against, relating to or involving or otherwise affecting such party or any of its Subsidiaries which relate to the transactions contemplated by this Agreement. The Company shall agree, if requested by Parent in writing, to commit to take any of the forgoing actions with respect to the assets or business of the Company in furtherance of this Section 8.2; provided, however, that any such action may be conditioned upon the consummation of the Merger and other Transactions contemplated by this Agreementhereby.
Appears in 1 contract
Sources: Merger Agreement (Chelsea Therapeutics International, Ltd.)
Regulatory Filings. (a) Each of Parent and Acquisition Sub (and their respective Affiliates, if applicableSubject to Section 15.4(d), on the one handMembers and FI Member Owners acknowledge and agree that, from time to time, a Company Party may need information from any or all of such Members or FI Member Owners for compliance with applicable laws, stock exchange rules, regulatory inquiries, regulatory reporting requirements or other requests or demands by Governmental Authorities. Each Member and FI Member Owner shall use commercially reasonable efforts to provide to the Company, on the other hand, shall (x) file with the FTC and the Antitrust Division of the DOJ a Notification and Report Form relating to this Agreement and the transactions contemplated hereby as required Company all information reasonably requested by the HSR Act Company for purposes of any Company Party complying with applicable law, stock exchange rule, regulatory inquiries, regulatory reporting requirements or other requests or demands by Governmental Authorities as soon promptly as reasonably practicable from after the date following execution and delivery of this Agreement but in no event later than ten (10) Business Days following the execution and delivery of this Agreementsuch Member or FI Member Owner receives such request, and (y) file comparable pre-merger or post-merger notification filingsin any event, forms and submissions with within an amount of time required to meet any foreign Governmental Authority that is required deadline set by any other Antitrust Laws as soon as reasonably practicable from the date following execution and delivery of this Agreement but in no event later than ten (10) Business Days following the execution and delivery of this Agreement. Each of Parent and the Company shall (i) cooperate and coordinate with the other in the making of such filings, (ii) supply the other with any information that may be required in order to make such filings, (iii) supply any additional information that reasonably may be required or requested a request by the FTC, the DOJ or the Governmental Authorities of any other jurisdiction in which any such filing is made under any other Antitrust Laws, and (iv) use reasonable best efforts to take all action necessary to cause the expiration or termination of the applicable waiting periods under the HSR Act or other Antitrust Laws as soon as practicable, and to obtain any required consents under any other Antitrust Laws applicable to the Offer and/or the Merger as soon as practicable, and to avoid any impediment to the consummation of the Offer or the Merger under any Antitrust Laws, including using reasonable best efforts to take all such action as reasonably may be necessary to resolve such objections, if any, as the FTC, the DOJ, or any other Governmental Authority or Person may assert under regulatory reporting requirement. For the avoidance of doubt, any applicable Antitrust Laws with respect information provided or furnished pursuant to the Offer and/or the Mergerthis Section 15.4 shall be deemed “Confidential Information”, and disclosure shall be subject to Section 15.1.
(b) Each of Parent Subject to Section 15.4(c) and Acquisition Sub (and their respective Affiliates, if applicableSection 15.4(d), on if, at any time, a Company Party or any Member or FI Member Owner reasonably determines that the one handConsent of a Governmental Authority is necessary or advisable or a filing is required or advisable pursuant to any United States or foreign antitrust, competition or trade regulation laws (including the HSR Act), or other applicable law (including with respect to CFIUS, “foreign direct investment” laws or any requirements arising from the Natural Gas Act and the Companyorders and regulations issued thereunder), on the other handin each case, shall promptly inform the other of any communication from any Governmental Authority regarding any of the transactions contemplated by this Agreement in connection with any filings direct or investigations withindirect Transfer of Units, by or before any Governmental Authority relating to this Agreement other transaction or the transactions contemplated hereby, including any proceedings initiated by a private party. If any party hereto or Affiliate thereof shall receive a request for additional information or documentary material from any Governmental Authority event with respect to or otherwise related to a Company Party, including the transactions contemplated by this Agreement pursuant to issuance of additional Membership Interests (in each case, a “Filing Transaction”), then:
(i) the HSR or any other Antitrust Laws with respect to which any such filings have been made, then such party Company and each of the Members and FI Member Owners (as applicable) shall use its reasonable best efforts to (A) as promptly as reasonably practicable make, or cause to be made, as soon as reasonably practicable all filings and after consultation with the submissions required under any applicable United States or foreign antitrust, competition or trade regulation laws or other partyapplicable laws, an appropriate response in compliance with such request. In connection with and without limiting the foregoing, to the extent reasonably practicable and unless prohibited by applicable Law or by the applicable Governmental Authority, the parties hereto agree to (i) give each other reasonable advance notice of all meetings with any Governmental Authority relating to the Offer or the Merger, (ii) give each other an opportunity to participate in each of such meetings, (iii) keep the other party reasonably apprised with respect to the applicable Filing Transaction, including by providing any oral communications with information necessary or reasonably requested for such regulatory filings and submissions; provided that, if the Member or FI Member Owner (as applicable) making such filing or submission requests such information from any Governmental Authority regarding other Member or FI Member Owner, such filing Member or FI Member Owner (as applicable) shall provide the Offer applicable other Member or FI Member Owner the Merger, (iv) cooperate in the filing of any analyses, presentations, memoranda, briefs, arguments, opinions or other written communications explaining or defending the Offer and the Merger, articulating any regulatory or competitive argument and/or responding to requests or objections made by any Governmental Authority, (v) provide each other with a reasonable advance opportunity to review and comment uponon any such information to be submitted to the applicable authority prior to submission of the information, and consider in good faith the views of the other with respect to, all written communications (including any analyses, presentations, memoranda, briefs, arguments and opinions) with a Governmental Authority regarding the Offer and the Merger, (vi) provide each other (or counsel of each party, as appropriate) with copies of all written communications to or from any Governmental Authority relating provided that if such information is not otherwise known to the Offer Member of FI Member Owner (as applicable) requesting the information, the providing Member or FI Member Owner will be provided the Mergeropportunity to submit such information on a confidential basis to the applicable authority, and (viiB) cooperate use commercially reasonable efforts to obtain, or cause to be obtained, clearance, approval or consent in respect of such filings and provide each other with a reasonable opportunity to participate in, and consider in good faith submissions (or the views termination or expiration of the other with respect toapplicable waiting period, all material deliberations with respect to all as applicable) (any such clearance, 124 approval, consent, termination or expiration, “Regulatory Approval”) as promptly as reasonably practicable thereafter, which such efforts to satisfy shall, for the conditions set forth in clauses (A) and (C)(1) avoidance of Annex A and Section 9.1(c). Any such disclosuresdoubt, rights to participate exclude proposing, negotiating, effecting or provisions of information by one party agreeing to the sale, divestiture, license or other may disposal of any assets or businesses of a Member, FI Member Owner or any of their respective Affiliates, taking any other action that limits the right of a Member, FI Member Owner or any of their respective Affiliates to own or operate any part of its business or proposing, negotiating, effecting or agreeing to any other remedy, commitment, undertaking or condition of any kind; and
(ii) the applicable Filing Transaction shall be made on a counsel-only basis contingent upon the receipt of Regulatory Approval and, to the extent required under Regulatory Approval is not received prior to completion of the applicable Law or as appropriate to protect confidential business information or the attorney client privilege or attorney work productFiling Transaction, such Filing Transaction shall be delayed until Regulatory Approval is received.
(c) Each Notwithstanding anything to the contrary in this Agreement, all regulatory filings of Parentthe Company shall be approved by the Board in accordance with Section 7.2 and, Acquisition Sub for the avoidance of doubt, shall not be deemed a Related Party Transaction. If any Company Party is required at any time to make any regulatory filing or supplemental response that identifies by name, or otherwise relates specifically to, any individual Member, FI Member Owner or any of their respective Affiliates, related parties, or co-investors, the Company shall, unless not practicable, submit (or shall cause the relevant other Company Party to submit) an advance draft of such regulatory filing to such Member or FI Member Owner, as applicable. Such Member or FI Member Owner, as applicable, shall have the right, within five Business Days (or, if shorter, the period prescribed by law or a requesting Governmental Authority minus one Business Day), to provide comments to such regulatory filing or response and the Company shall cooperate with one another in good faith or the relevant other Company Party shall, prior to submitting such filing or response, incorporate such Member’s or FI Member Owner’s comments to the extent that (i) promptly determine whether any filings not contemplated by Section 8.2(athe Company determines (acting reasonably) that such comments are required necessary to be correct a material misrepresentation of fact with respect to such Member or should be made, and whether any other consents, approvals, permits FI Member Owner or authorizations not contemplated by Section 8.2(a) are required to be or should be obtained, from any Governmental Authority under any other applicable Law in connection with the transactions contemplated hereby, and (ii) promptly such comments relate solely to the description of the relationship among such Member, FI Member Owner and their respective Affiliates, related parties, or co-investors, and the Company does not determine (acting upon the advice of counsel) that such comments make any filings, furnish information required in connection therewith and seek to obtain timely any such consents, permits, authorizations, approvals or waivers that the parties determine are required to be or should be made or obtained in connection with the transactions contemplated herebydescription misleading.
(d) Notwithstanding anything to the contrary in this Agreement, (i) none of the Members, FI Member Owners or any of their respective direct or indirect equityholders or such Person’s Affiliates, shall be required to provide to any other Person (including a Company Party or another Member or FI Member Owner), other than a Governmental Authority, any documents or non-public information relating to it or its respective Affiliates to the extent the provision of such documents or non-public information would breach any applicable legal or binding confidentiality contractual obligation of such Person or its Affiliates (if a waiver of such restriction cannot be reasonably be obtained); provided, that (subject to clause (ii) below) with respect to any requirement, request or condition from a Governmental Authority to disclose any non-public information with respect to such Person or its Affiliates in connection with any filing a Filing Transaction or submission required or action otherwise pursuant to be taken Section 15.4(a), such Person shall provide such information unless prohibited by either Parent or the Company to consummate the Offer Government Rule and the Merger(ii) none of Devonshire, in no event shall Parent MIC or any of its Subsidiaries their respective Affiliates shall be required to disclose financial information or Affiliates be obligated provide to propose any Governmental Authority or agree any other Person any information that exceeds the scope of information that Devonshire, MIC or such Affiliate has previously provided to accept such Governmental Authority or other Person in connection with obtaining regulatory approval for a transaction similar in nature to any undertaking or condition, to enter into any consent decree, to make any divestiture or accept any operational restriction, or take or commit to take any action (i) the effectiveness or consummation of which is not conditional on the consummation of the Offer and the Merger or (ii) that individually or in the aggregate (x) is or would reasonably be expected to be materially adverse (with materiality, for purposes of this provision, being measured in relation to the size of the Company and its Subsidiaries taken as a whole) to (A) the Company and its Subsidiaries, taken as a whole, or Parent and its Subsidiaries, taken as a whole, either before or after giving effect to the Offer or the Merger, or (B) Parent’s ownership or operation of any material portion of the business or assets of the Company and its Subsidiaries, taken as a whole, or (y) would reasonably be expected to deny Parent the material benefit of the bargains contemplated by the transactions relevant transaction contemplated by this Agreement. The Company shall agree, if requested by Parent in writingany, to commit to take or any of the forgoing actions with respect to the assets or business of the Company in furtherance of this Section 8.2; provided, however, that any such action may be conditioned upon the consummation of the Merger and other Transactions contemplated by this Agreement.non-public information. 125
Appears in 1 contract
Sources: Limited Liability Company Agreement (NextDecade Corp)
Regulatory Filings. (a) Each of Parent and Acquisition Sub (and their respective Affiliates, if applicableSubject to Section 15.4(d), on the one handMembers and FI Member Owners acknowledge and agree that, from time to time, a Company Party may need information from any or all of such Members or FI Member Owners for compliance with applicable laws, stock exchange rules, regulatory inquiries, regulatory reporting requirements or other requests or demands by Governmental Authorities. Each Member and FI Member Owner shall use commercially reasonable efforts to provide to the Company, on the other hand, shall (x) file with the FTC and the Antitrust Division of the DOJ a Notification and Report Form relating to this Agreement and the transactions contemplated hereby as required Company all information reasonably requested by the HSR Act Company for purposes of any Company Party complying with applicable law, stock exchange rule, regulatory inquiries, regulatory reporting requirements or other requests or demands by Governmental Authorities as soon promptly as reasonably practicable after the date such Member or FI Member Owner receives such request, and in any event, within an amount of time required to meet any deadline set by a request by the applicable Governmental Authority or regulatory reporting requirement. For the avoidance of doubt, any information provided or furnished pursuant to this Section 15.4 shall be deemed “Confidential Information”, and disclosure shall be subject to Section 15.1. 91
(b) Subject to Section 15.4(c) and Section 15.4(d), if, at any time, a Company Party or any Member or FI Member Owner reasonably determines that the Consent of a Governmental Authority is necessary or advisable or a filing is required or advisable pursuant to any United States or foreign antitrust, competition or trade regulation laws (including the HSR Act), or other applicable law (including with respect to CFIUS, “foreign direct investment” laws or any requirements arising from the date following execution Natural Gas Act and delivery of this Agreement but the orders and regulations issued thereunder), in no event later than ten (10) Business Days following the execution and delivery of this Agreementeach case, and (y) file comparable pre-merger or post-merger notification filings, forms and submissions in connection with any foreign Governmental Authority that is required by any other Antitrust Laws as soon as reasonably practicable from the date following execution and delivery direct or indirect Transfer of this Agreement but in no event later than ten (10) Business Days following the execution and delivery of this Agreement. Each of Parent and the Company shall (i) cooperate and coordinate with the other in the making of such filings, (ii) supply the other with any information that may be required in order to make such filings, (iii) supply any additional information that reasonably may be required or requested by the FTC, the DOJ or the Governmental Authorities of any other jurisdiction in which any such filing is made under any other Antitrust Laws, and (iv) use reasonable best efforts to take all action necessary to cause the expiration or termination of the applicable waiting periods under the HSR Act or other Antitrust Laws as soon as practicable, and to obtain any required consents under any other Antitrust Laws applicable to the Offer and/or the Merger as soon as practicable, and to avoid any impediment to the consummation of the Offer or the Merger under any Antitrust Laws, including using reasonable best efforts to take all such action as reasonably may be necessary to resolve such objections, if any, as the FTC, the DOJUnits, or any other Governmental Authority transaction or Person may assert under any applicable Antitrust Laws event with respect to or otherwise related to a Company Party, including the Offer and/or the Merger.issuance of additional Membership Interests (in each case, a “Filing Transaction”), then:
(bi) Each of Parent the Company and Acquisition Sub (and their respective Affiliates, if applicable), on the one hand, and the Company, on the other hand, shall promptly inform the other of any communication from any Governmental Authority regarding any each of the transactions contemplated by this Agreement in connection with any filings or investigations with, by or before any Governmental Authority relating to this Agreement or the transactions contemplated hereby, including any proceedings initiated by a private party. If any party hereto or Affiliate thereof Members and FI Member Owners (as applicable) shall receive a request for additional information or documentary material from any Governmental Authority with respect to the transactions contemplated by this Agreement pursuant to the HSR or any other Antitrust Laws with respect to which any such filings have been made, then such party shall use its reasonable best efforts to (A) as promptly as reasonably practicable make, or cause to be made, as soon as reasonably practicable all filings and after consultation with the submissions required under any applicable United States or foreign antitrust, competition or trade regulation laws or other partyapplicable laws, an appropriate response in compliance with such request. In connection with and without limiting the foregoing, to the extent reasonably practicable and unless prohibited by applicable Law or by the applicable Governmental Authority, the parties hereto agree to (i) give each other reasonable advance notice of all meetings with any Governmental Authority relating to the Offer or the Merger, (ii) give each other an opportunity to participate in each of such meetings, (iii) keep the other party reasonably apprised with respect to the applicable Filing Transaction, including by providing any oral communications with information necessary or reasonably requested for such regulatory filings and submissions; provided that, if the Member or FI Member Owner (as applicable) making such filing or submission requests such information from any Governmental Authority regarding other Member or FI Member Owner, such filing Member or FI Member Owner (as applicable) shall provide the Offer applicable other Member or FI Member Owner the Merger, (iv) cooperate in the filing of any analyses, presentations, memoranda, briefs, arguments, opinions or other written communications explaining or defending the Offer and the Merger, articulating any regulatory or competitive argument and/or responding to requests or objections made by any Governmental Authority, (v) provide each other with a reasonable advance opportunity to review and comment uponon any such information to be submitted to the applicable authority prior to submission of the information, and consider in good faith the views of the other with respect to, all written communications (including any analyses, presentations, memoranda, briefs, arguments and opinions) with a Governmental Authority regarding the Offer and the Merger, (vi) provide each other (or counsel of each party, as appropriate) with copies of all written communications to or from any Governmental Authority relating provided that if such information is not otherwise known to the Offer Member of FI Member Owner (as applicable) requesting the information, the providing Member or FI Member Owner will be provided the Mergeropportunity to submit such information on a confidential basis to the applicable authority, and (viiB) cooperate use commercially reasonable efforts to obtain, or cause to be obtained, clearance, approval or consent in respect of such filings and provide each other with a reasonable opportunity to participate in, and consider in good faith submissions (or the views termination or expiration of the other with respect toapplicable waiting period, all material deliberations with respect to all as applicable) (any such clearance, approval, consent, termination or expiration, “Regulatory Approval”) as promptly as reasonably practicable thereafter, which such efforts to satisfy shall, for the conditions set forth in clauses (A) and (C)(1) avoidance of Annex A and Section 9.1(c). Any such disclosuresdoubt, rights to participate exclude proposing, negotiating, effecting or provisions of information by one party agreeing to the sale, divestiture, license or other may disposal of any assets or businesses of a Member, FI Member Owner or any of their respective Affiliates, taking any other action that limits the right of a Member, FI Member Owner or any of their respective Affiliates to own or operate any part of its business or proposing, negotiating, effecting or agreeing to any other remedy, commitment, undertaking or condition of any kind; and
(ii) the applicable Filing Transaction shall be made on a counsel-only basis contingent upon the receipt of Regulatory Approval and, to the extent required under Regulatory Approval is not received prior to completion of the applicable Law or as appropriate to protect confidential business information or the attorney client privilege or attorney work productFiling Transaction, such Filing Transaction shall be delayed until Regulatory Approval is received.
(c) Each Notwithstanding anything to the contrary in this Agreement, all regulatory filings of Parentthe Company shall be approved by the Board in accordance with Section 7.2 and, Acquisition Sub for the avoidance of doubt, shall not be deemed a Related Party Transaction. If any Company Party is required at any time to make any regulatory filing or supplemental response that identifies by name, or otherwise relates specifically to, any individual Member, FI Member Owner or any of their respective Affiliates, related parties, or co-investors, the Company shall, unless not practicable, submit (or shall cause the relevant other Company Party to submit) an advance draft of such regulatory filing to such Member or FI Member Owner, as applicable. Such Member or FI Member Owner, as applicable, shall have the right, within five Business Days (or, if shorter, the period prescribed by law or a requesting Governmental Authority minus one Business Day), to provide comments to such regulatory filing or response and the Company shall cooperate with one another in good faith or the relevant other Company Party shall, prior to submitting such filing or response, incorporate such Member’s or FI Member Owner’s comments to the extent that (i) promptly determine whether any filings not contemplated by Section 8.2(athe Company determines (acting reasonably) that such comments are required necessary to be correct a material misrepresentation of fact with respect to such Member or should be made, and whether any other consents, approvals, permits FI Member Owner or authorizations not contemplated by Section 8.2(a) are required to be or should be obtained, from any Governmental Authority under any other applicable Law in connection with the transactions contemplated hereby, and (ii) promptly such comments relate solely to the description of the relationship among such Member, FI Member Owner and their respective Affiliates, related parties, or co-investors, and the Company does not determine (acting upon the advice of counsel) that such comments make any filings, furnish information required in connection therewith and seek to obtain timely any such consents, permits, authorizations, approvals or waivers that the parties determine are required to be or should be made or obtained in connection with the transactions contemplated herebydescription misleading.
(d) Notwithstanding anything to the contrary in this Agreement, (i) none of the Members, FI Member Owners or any of their respective direct or indirect equityholders or such Person’s Affiliates, shall be required to provide to any other Person (including a Company Party or another Member or FI Member Owner), other than a Governmental Authority, any documents or non-public information relating to it or its respective Affiliates to the extent the provision of such documents or non-public information would breach any applicable legal or binding confidentiality contractual obligation of such Person or its Affiliates (if a waiver of such restriction cannot be reasonably be obtained); provided, that (subject to clause (ii) below) with respect to any requirement, request or condition from a Governmental Authority to disclose any non-public information with respect to such Person or its Affiliates in connection with any filing a Filing Transaction or submission required or action otherwise pursuant to be taken Section 15.4(a), such Person shall provide such information unless prohibited by either Parent or the Company to consummate the Offer Government Rule and the Merger(ii) none of Devonshire, in no event shall Parent MIC or any of its Subsidiaries their respective Affiliates shall be required to disclose financial information or Affiliates be obligated provide to propose any Governmental Authority or agree any other Person any information that exceeds the scope of information that Devonshire, MIC or such Affiliate has previously provided to accept such Governmental Authority or other Person in connection with obtaining 92 regulatory approval for a transaction similar in nature to any undertaking or condition, to enter into any consent decree, to make any divestiture or accept any operational restriction, or take or commit to take any action (i) the effectiveness or consummation of which is not conditional on the consummation of the Offer and the Merger or (ii) that individually or in the aggregate (x) is or would reasonably be expected to be materially adverse (with materiality, for purposes of this provision, being measured in relation to the size of the Company and its Subsidiaries taken as a whole) to (A) the Company and its Subsidiaries, taken as a whole, or Parent and its Subsidiaries, taken as a whole, either before or after giving effect to the Offer or the Merger, or (B) Parent’s ownership or operation of any material portion of the business or assets of the Company and its Subsidiaries, taken as a whole, or (y) would reasonably be expected to deny Parent the material benefit of the bargains contemplated by the transactions relevant transaction contemplated by this Agreement. The Company shall agree, if requested by Parent in writingany, to commit to take or any of the forgoing actions with respect to the assets or business of the Company in furtherance of this Section 8.2; provided, however, that any such action may be conditioned upon the consummation of the Merger and other Transactions contemplated by this Agreementnon-public information.
Appears in 1 contract
Sources: Limited Liability Company Agreement (NextDecade Corp)
Regulatory Filings. (a) Each of Parent and Acquisition Sub (and their respective Affiliates, if applicable), on the one hand, Sellers and the CompanyPurchasers agree, on as soon as practicable after the date of this Agreement, to make all appropriate filings under any applicable merger control laws in the European Union (including under the EU Merger Regulation) and any other hand, shall applicable antitrust laws in any other jurisdictions (xfor the avoidance of doubt not including Canada or Mexico) and to file with the FTC and the Antitrust Division of the DOJ a Notification and Report Form relating pursuant to this Agreement and the United States ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of 1976, as amended (the "HSR Act") with respect to the transactions contemplated hereby as required by the hereby. The HSR Act as soon as reasonably practicable from and the date following execution applicable merger control and delivery of this Agreement but antitrust laws in no event later than ten (10) Business Days following the execution European Union and delivery of this Agreement, and (y) file comparable pre-merger or post-merger notification filings, forms and submissions with any foreign Governmental Authority that is required by any other jurisdiction as referred to in the preceding sentence are referred to herein as the "Antitrust Laws as soon as reasonably practicable from the date following execution and delivery of this Agreement but in no event later than ten (10) Business Days following the execution and delivery of this AgreementLaws". Each of Parent the Sellers and the Company shall (i) cooperate each relevant Purchaser agrees to supply to any relevant competent authorities as promptly as practicable any additional information and coordinate with the other in the making of such filings, (ii) supply the other with any information documentary material that may be required in order requested pursuant to make such filings, (iii) supply any additional information that reasonably may be required or requested by the FTC, the DOJ or the Governmental Authorities of any other jurisdiction in which any such filing is made under any other Antitrust Laws, Laws and (ivsubject to Exhibit 4.3) use reasonable best efforts to take all action other actions necessary to obtain all requisite approvals and authorizations and to cause the expiration or termination of the applicable waiting periods (or similar requirements) under the HSR Act or other Antitrust Laws such laws as soon as practicable, and to obtain any required consents under any other Antitrust Laws applicable to the Offer and/or the Merger as soon as practicable, and to avoid any impediment to the consummation of the Offer or the Merger under any Antitrust Laws, including using reasonable best efforts to take all such action as reasonably may be necessary to resolve such objections, if any, as the FTC, the DOJ, or any other Governmental Authority or Person may assert under any applicable Antitrust Laws with respect to the Offer and/or the Merger.
(b) Each of Parent Subject to Exhibit 4.3 in order to obtain all requisite approvals and Acquisition Sub (authorisations for the transactions contemplated by this Agreement under the merger control laws in the European Union, the HSR Act and their respective Affiliatesany other Antitrust Law, if applicable), on the one hand, relevant Purchaser and the CompanySellers shall (i) co-operate in all respects with each other in connection with any filing or submission and in connection with any investigation or other inquiry, on including any proceeding initiated by a private party, (ii) keep the other hand, shall promptly inform Sellers or relevant Purchaser (as the other case may be) informed in all material respects of any material communication from received by such party from, or given by such party to, any Governmental Authority relevant competent authorities and of any material communication received or given in connection with any proceeding by a private party, in each case regarding any of the transactions contemplated hereby and (iii) permit the Sellers or relevant Purchaser (as the case may be) a reasonable opportunity to be consulted in advance of any meeting or conference with any such competent authority or in connection with any proceeding by a private party.
(c) If any objections are asserted with respect to the transactions contemplated hereby under any Antitrust Law or if any suit is instituted by any competent authority (including the European Commission) or any private party challenging any of the transactions contemplated hereby as violative of any Antitrust Law, then, subject to Exhibit 4.3, the relevant Purchaser and the Sellers shall be obligated to (i) take all necessary steps to resolve such objections or challenge as such competent authority or private party may have to such transactions under such Antitrust Law so as to permit consummation of the transactions contemplated by this Agreement in connection and (ii) pursue a resolution with any filings competent authority and, if acceptable to any competent authority, enter into a settlement, consent, decree or investigations with, by or before any Governmental Authority relating other agreement with such competent authority necessary to this Agreement or permit the transactions contemplated herebyby this Agreement.
(d) If a competent authority decides to deny its approval, as required under any applicable Antitrust Law, of the transactions contemplated hereby or any administrative or judicial action or proceeding, including any proceedings initiated proceeding by a private party. If , is instituted (or threatened to be instituted) challenging any party hereto transaction contemplated by this Agreement as violative of any Antitrust Law, (subject to Exhibit 4.3) the relevant Purchaser and the Sellers shall co-operate in all respects with each other and shall contest any such decision, action or Affiliate thereof shall receive a request for additional information proceeding and take all necessary steps to have vacated, lifted, reversed or documentary material from overturned any Governmental Authority with respect to decree, judgement, injunction or other order, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents or restricts consummation of the transactions contemplated by this Agreement under any applicable Antitrust Law, including, without limitation, defending in litigation on the merits any claim asserted in any court through a final and non-appealable judgement.
(e) If the failure to satisfy the requirements of any Antitrust Law in any jurisdiction, other than in any jurisdiction within the European Union (including pursuant to the HSR EU Merger Regulation) or the United States of America, prevents the Closing in respect of the shares in any other Group Company, then (in the case of Arrow subject to the closing condition in Section 4.2 (a) (i) (A)) the relevant Purchaser and the Sellers shall be obliged to comply with their respective obligations on Closing (save to the extent that such obligations relate to the acquisition of such shares), and the Purchasers' obligations to pay the full purchase price for the portions of the Group acquired by each of them at Closing shall not be affected thereby, provided that Closing on such basis does not violate any Antitrust Laws. The relevant Parties shall endeavour to agree, upon request of any of them, on any appropriate action or suitable amendment to this Agreement in order to ensure, as far as practicable, that the Closing does not so violate any Antitrust Laws. Following Closing, the relevant Purchaser and the Sellers shall endeavour to obtain any necessary approval in respect of Antitrust Laws with respect to which any such filings have been made, then such party shall use its reasonable best efforts to make, or cause enable the relevant shares to be made, transferred to the relevant Purchaser without payment of any further consideration and as soon as reasonably practicable such approval is available the Sellers shall complete such transfer. Pending completion of such transfer the relevant Purchaser and the Sellers shall enter into such arrangements (subject to compliance with Antitrust Laws) as give commercial effect to the intent of the Parties to close the sales of each Group Company to be purchased by a Purchaser simultaneously. If the approval is not obtained within six months after Closing with the relevant Purchaser, the Sellers shall procure the sale of the relevant business or shares (after consultation with the relevant Purchaser) and shall pay to the relevant Purchaser any proceeds of sale, net of any taxes and reasonable expenses.
(f) If (a) either Arrow or Avnet are unable to complete the acquisition of the relevant Group Companies to be purchased by them as a result of the conditions in Section 4.2 (a) (i) not having been satisfied by February 28, 2001 but (b) the acquisition by the other partyPurchasers (including Memec Purchaser) of the Group Companies to be purchased by them shall close on or prior to such date and (c) either Arrow or Avnet (as the case may be) terminate this Agreement in respect of either Arrow or Avnet (as the case may be) in accordance with Article 10 as a result of such failure of the conditions in Article 4.2 (a) or the Sellers terminate this Agreement after May 15, 2001 in respect of either Arrow or Avnet (as the case may be) in accordance with Article 10 as a result of such failure, (i) each Purchaser that is unable to complete the acquisition shall pay to the Sellers an appropriate response amount of $ 25 million in compliance with aggregate as a fee for such request. In connection with termination and without limiting each Purchaser that is able to complete the foregoingacquisition of the relevant Group Companies shall, on Closing of such acquisition or, if Closing has already occurred, within five business days of being notified in writing, pay an additional amount of $ 25 million by way of increase in the Final Share Purchase Price, which shall be allocated, in the case of Memec Purchaser, to the extent reasonably practicable shares in Memec LLC, in the case of Avnet, to the shares in EBV-Elektronik GmbH, and unless prohibited by applicable Law or by in the applicable Governmental Authoritycase of Arrow, to the shares in EBV Electronic Holdings Inc. Notwithstanding any other provisions of this Agreement, the parties hereto agree to payments by each Purchaser under this paragraph (if) give each other reasonable advance notice shall be in full and final discharge of all meetings with any Governmental Authority relating to the Offer or the Merger, (ii) give each other an opportunity to participate liabilities of it in each respect of its obligations under this Article 4.3 and all obligations of such meetings, Purchaser under or in respect of Article 4.3 shall cease upon termination of this Agreement in respect of such Purchaser in accordance with Article 10. This paragraph (iiif) keep shall not apply if both Arrow and Avnet are unable to complete the other party reasonably apprised with respect to any oral communications with any Governmental Authority regarding the Offer or the Merger, (iv) cooperate in the filing of any analyses, presentations, memoranda, briefs, arguments, opinions or other written communications explaining or defending the Offer and the Merger, articulating any regulatory or competitive argument and/or responding to requests or objections made by any Governmental Authority, (v) provide each other with acquisitions contemplated hereby as a reasonable advance opportunity to review and comment upon, and consider in good faith the views result of the other with respect to, all written communications (including any analyses, presentations, memoranda, briefs, arguments and opinions) with a Governmental Authority regarding the Offer and the Merger, (vi) provide each other (or counsel of each party, as appropriate) with copies of all written communications to or from any Governmental Authority relating to the Offer or the Merger, and (vii) cooperate and provide each other with a reasonable opportunity to participate in, and consider in good faith the views of the other with respect to, all material deliberations with respect to all efforts failure to satisfy the conditions set forth in clauses Section 4.2 (Aa) and (C)(1) of Annex A and Section 9.1(c). Any such disclosures, rights to participate or provisions of information by one party to the other may be made on a counsel-only basis to the extent required under applicable Law or as appropriate to protect confidential business information or the attorney client privilege or attorney work product.
(c) Each of Parent, Acquisition Sub and the Company shall cooperate with one another in good faith to (i) promptly determine whether any filings not contemplated by on or before the date specified in Section 8.2(a) are required to be or should be made10.1 (e), and whether any other consents, approvals, permits or authorizations not contemplated by Section 8.2(a) are required to be or should be obtained, from any Governmental Authority under any other applicable Law in connection with the transactions contemplated hereby, and (ii) promptly make any filings, furnish information required in connection therewith and seek to obtain timely any such consents, permits, authorizations, approvals or waivers that the parties determine are required to be or should be made or obtained in connection with the transactions contemplated hereby.
(d) Notwithstanding anything to the contrary but in this Agreement, case Purchasers or Sellers may terminate this Agreement in connection its entirety in accordance with any filing or submission required or action to be taken by either Parent or the Company to consummate the Offer and the Merger, in no event shall Parent or any of its Subsidiaries or Affiliates be obligated to propose or agree to accept any undertaking or condition, to enter into any consent decree, to make any divestiture or accept any operational restriction, or take or commit to take any action (i) the effectiveness or consummation of which is not conditional on the consummation of the Offer and the Merger or (ii) that individually or in the aggregate (x) is or would reasonably be expected to be materially adverse (with materiality, for purposes of this provision, being measured in relation to the size of the Company and its Subsidiaries taken as a whole) to (A) the Company and its Subsidiaries, taken as a whole, or Parent and its Subsidiaries, taken as a whole, either before or after giving effect to the Offer or the Merger, or (B) Parent’s ownership or operation of any material portion of the business or assets of the Company and its Subsidiaries, taken as a whole, or (y) would reasonably be expected to deny Parent the material benefit of the bargains contemplated by the transactions contemplated by this Agreement. The Company shall agree, if requested by Parent in writing, to commit to take any of the forgoing actions with respect to the assets or business of the Company in furtherance of this Section 8.2; provided, however, that any such action may be conditioned upon the consummation of the Merger and other Transactions contemplated by this AgreementSection.
Appears in 1 contract
Regulatory Filings. (a) Each of Parent Subject to Section 9.03, Buyer and Acquisition Merger Sub (will, and will cause their respective AffiliatesAffiliates and Advisors to, if applicable)(i) make or cause to be made all filings with and submissions to any Governmental Body required under any applicable Laws for the consummation of the Transactions, on the one hand, (ii) coordinate and the Company, on the other hand, shall (x) file cooperate with the FTC Company in exchanging such information and providing such assistance as the Antitrust Division of Company may reasonably request in connection with the DOJ a Notification and Report Form relating to this Agreement and the transactions contemplated hereby as required by the HSR Act as soon as reasonably practicable from the date following execution and delivery of this Agreement but in no event later than ten (10) Business Days following the execution and delivery of this Agreementforegoing, and (yiii) file comparable pre-merger or post-merger notification filings, forms (A) supply promptly any additional information and submissions documentary material that may be reasonably requested in connection with any foreign Governmental Authority that is required by any other Antitrust Laws as soon as reasonably practicable from the date following execution and delivery of this Agreement but in no event later than ten (10) Business Days following the execution and delivery of this Agreement. Each of Parent and the Company shall (i) cooperate and coordinate with the other in the making of such filings, (iiB) supply the other make any further filings with any information Governmental Body pursuant thereto that may be required necessary, proper or advisable in order to make such filings, (iii) supply any additional information that reasonably may be required or requested by the FTC, the DOJ or the Governmental Authorities of any other jurisdiction in which any such filing is made under any other Antitrust Laws, connection therewith and (ivC) use reasonable best efforts to take all action actions necessary to cause the expiration or termination of the applicable waiting periods obtain all required clearances. The Parties agree that this Section 6.02 (and not Section 6.04) sets forth Buyer’s and Merger Sub’s sole obligations with respect to regulatory filings, other than filings under the HSR Act Act, which is governed solely by Section 9.03. Notwithstanding anything to the contrary herein, Buyer and Merger Sub will not make or cause to be made any filing or submission (related to the Transactions) to any Governmental Body prior to the Closing without the prior written consent of the Company, other Antitrust Laws as soon as practicablethan, subject to Section 9.03, any filing or submission required by the HSR Act. Subject to Section 9.03, Buyer, Merger Sub, and to obtain their respective Affiliates and Advisors will not communicate with any required consents under any other Antitrust Laws applicable to Governmental Body regarding the Offer and/or the Merger as soon as practicableTransactions, and to avoid any impediment to the consummation of the Offer or the Merger under any Antitrust Laws, including using reasonable best efforts to take all such action as reasonably may be necessary to resolve such objections, if any, as the FTC, the DOJthis Agreement, or any other Governmental Authority or Person may assert under any applicable Antitrust Laws with respect to matter contemplated hereby without the Offer and/or prior written consent of the MergerCompany.
(b) Each Prior to the Effective Time, without the prior written consent of Parent and Acquisition Sub (and their respective Affiliates, if applicable), on the one hand, and the Company, on the other hand, shall promptly inform the other of any communication from any Governmental Authority regarding any of the transactions contemplated by this Agreement in connection with any filings or investigations with, by or before any Governmental Authority relating to this Agreement or the transactions contemplated hereby, including any proceedings initiated by a private party. If any party hereto or Affiliate thereof shall receive a request for additional information or documentary material from any Governmental Authority with respect to the transactions contemplated by this Agreement pursuant to the HSR or any other Antitrust Laws with respect to which any such filings have been made, then such party shall use its reasonable best efforts to make, or cause to be made, as soon as reasonably practicable and after consultation with the other party, an appropriate response in compliance with such request. In connection with and without limiting the foregoing, to the extent reasonably practicable and unless prohibited by applicable Law or by the applicable Governmental Authority, the parties hereto agree to (i) give each other reasonable advance notice of all meetings with any Governmental Authority relating to the Offer or the Merger, (ii) give each other an opportunity to participate in each of such meetings, (iii) keep the other party reasonably apprised with respect to any oral communications with any Governmental Authority regarding the Offer or the Merger, (iv) cooperate in the filing of any analyses, presentations, memoranda, briefs, arguments, opinions or other written communications explaining or defending the Offer and the Merger, articulating any regulatory or competitive argument and/or responding to requests or objections made by any Governmental Authority, (v) provide each other with a reasonable advance opportunity to review and comment upon, and consider in good faith the views of the other with respect to, all written communications (including any analyses, presentations, memoranda, briefs, arguments and opinions) with a Governmental Authority regarding the Offer and the Merger, (vi) provide each other (or counsel of each party, as appropriate) with copies of all written communications to or from any Governmental Authority relating to the Offer or the Merger, and (vii) cooperate and provide each other with a reasonable opportunity to participate in, and consider in good faith the views of the other with respect to, all material deliberations with respect to all efforts to satisfy the conditions set forth in clauses (A) and (C)(1) of Annex A and Section 9.1(c). Any such disclosures, rights to participate or provisions of information by one party to the other may be made on a counsel-only basis to the extent required under applicable Law or as appropriate to protect confidential business information or the attorney client privilege or attorney work product.
(c) Each of Parent, Acquisition Sub and the Company shall cooperate with one another in good faith to (i) promptly determine whether any filings Buyer will not contemplated by Section 8.2(a) are required to be or should be made, and whether any other consents, approvals, permits or authorizations not contemplated by Section 8.2(a) are required to be or should be obtained, from any Governmental Authority under any other applicable Law in connection with the transactions contemplated hereby, and (ii) promptly make any filings, furnish information required in connection therewith and seek to obtain timely any such consents, permits, authorizations, approvals or waivers that the parties determine are required to be or should be made or obtained in connection with the transactions contemplated hereby.
(d) Notwithstanding anything to the contrary in this Agreement, in connection with any filing or submission required or action to be taken by either Parent or the Company to consummate the Offer and the Merger, in no event shall Parent or any of its Subsidiaries or Affiliates be obligated to propose permit or agree to accept permit any undertaking Person to obtain any equity interests (or condition, rights to enter into obtain any consent decree, to make equity interests) in Buyer or any divestiture or accept any operational restriction, or take or commit to take any action (i) the effectiveness or consummation Person of which Merger Sub is not conditional on the consummation of the Offer and the Merger a direct or (ii) indirect Subsidiary, in each case, that individually would require any additional regulatory approvals or in the aggregate (x) is notices or would that could reasonably be expected to be materially adverse (with materiality, for purposes of this provision, being measured in relation to the size of the Company and its Subsidiaries taken as a whole) to (A) the Company and its Subsidiaries, taken as a whole, prevent or Parent and its Subsidiaries, taken as a whole, either before or after giving effect to the Offer or the Merger, or (B) Parent’s ownership or operation of any material portion of the business or assets of the Company and its Subsidiaries, taken as a whole, or (y) would reasonably be expected to deny Parent the material benefit of the bargains contemplated by the transactions contemplated by this Agreement. The Company shall agree, if requested by Parent in writing, to commit to take any of the forgoing actions with respect to the assets or business of the Company in furtherance of this Section 8.2; provided, however, that any such action may be conditioned upon the delay consummation of the Merger and other Transactions contemplated by this AgreementTransactions.
Appears in 1 contract
Regulatory Filings. (a) Filing Under the HSR Act, Other Applicable Antitrust Laws and other filing. Each of Parent and Acquisition Sub (and their respective Affiliates, if applicable)Merger Sub, on the one hand, and the Company, on the other hand, shall and shall cause their respective Affiliates to use their reasonable best efforts to take, or cause to be taken, all actions, and to do, or cause to be done, all things necessary, proper or advisable under applicable Law to consummate and make effective the Transactions as promptly as practicable and in any event prior to the Termination Date, including without limitation (xi) file preparing and filing all forms, registrations and notifications to or with any Governmental Authority required to be filed to consummate the Transactions, (ii) using reasonable best efforts to satisfy the conditions to consummate the Transactions, and (iii) using reasonable best efforts to obtain (and to cooperate 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 (including furnishing all information and documentary material required under the HSR Act or any other Antitrust Law applicable to the Merger or required by a Governmental Authority in connection with any notices, reports, filings or applications in connection with a change of control of the Company, including the FCC Filings the Kentucky PSC Notification and the Relinquishment Applications, provided that Parent shall cause (in addition to causing its Affiliates) its and its Affiliates’ respective partners, equity holders, investment professionals or executives to promptly provide any such information, including financial information) required to be obtained by Parent, the Company or their respective Affiliates in connection with the Transactions or the taking of any action contemplated by this Agreement. In connection with the foregoing, the Parties will, to the extent required in the reasonable judgment of counsel to Parent and the Company: (i) file, or cause to be filed, with the FTC and the Antitrust Division of the DOJ a Premerger Notification and Report Form relating to this Agreement and the transactions contemplated hereby Transactions as required by the HSR Act as soon as reasonably practicable from the date following execution and delivery of this Agreement but in no event later than ten (10) within 10 Business Days following the execution date hereof; (ii) make the FCC Filings and delivery the Kentucky PSC Notification and the Relinquishment Applications within fifteen (15) days of this Agreement, the Agreement Date; and (yiii) file promptly file, or cause to be filed, comparable pre-merger or post-merger notification filings, forms and submissions with any foreign other Governmental Authority that is required by any pursuant to other applicable Antitrust Laws as soon as reasonably practicable from in connection with the date following execution and delivery Merger, with Parent having primary responsibility for the making of this Agreement but in no event later than ten (10) Business Days following the execution and delivery of this Agreementsuch filings. Each of Parent and the Company shall, and shall cause their respective Affiliates to, use their reasonable best efforts to: (iA) cooperate and coordinate with the other in the making of such filings, ; (iiB) supply the other (or cause the other to be supplied) with any information that may be required in order to make such filings, (iii) supply any additional information that reasonably may be required or requested by the FTC, the DOJ or the Governmental Authorities of any other jurisdiction in which any such filing is made under any other Antitrust Laws, and (iv) use reasonable best efforts to take all action necessary to cause the expiration or termination of the applicable waiting periods under the HSR Act or other Antitrust Laws as soon as practicable, and to obtain any required consents under any other Antitrust Laws applicable to the Offer and/or the Merger as soon as practicable, and to avoid any impediment to the consummation of the Offer or the Merger under any Antitrust Laws, including using reasonable best efforts to take all such action as reasonably may be necessary to resolve such objections, if any, as the FTC, the DOJ, or any other Governmental Authority or Person may assert under any applicable Antitrust Laws with respect to the Offer and/or the Merger.
(b) Each of Parent and Acquisition Sub (and their respective Affiliates, if applicable), on the one hand, and the Company, on the other hand, shall promptly inform the other of any communication from any Governmental Authority regarding any of the transactions contemplated by this Agreement in connection with any filings or investigations with, by or before any Governmental Authority relating to this Agreement or the transactions contemplated hereby, including any proceedings initiated by a private party. If any party hereto or Affiliate thereof shall receive a request for additional information or documentary material from any Governmental Authority with respect to the transactions contemplated by this Agreement pursuant to the HSR or any other Antitrust Laws with respect to which any such filings have been made, then such party shall use its reasonable best efforts to make, or cause to be made, as soon as reasonably practicable and after consultation with the other party, an appropriate response in compliance with such request. In connection with and without limiting the foregoing, to the extent reasonably practicable and unless prohibited by applicable Law or by the applicable Governmental Authority, the parties hereto agree to (i) give each other reasonable advance notice of all meetings with any Governmental Authority relating to the Offer or the Merger, (ii) give each other an opportunity to participate in each of such meetings, (iii) keep the other party reasonably apprised with respect to any oral communications with any Governmental Authority regarding the Offer or the Merger, (iv) cooperate in the filing of any analyses, presentations, memoranda, briefs, arguments, opinions or other written communications explaining or defending the Offer and the Merger, articulating any regulatory or competitive argument and/or responding to requests or objections made by any Governmental Authority, (v) provide each other with a reasonable advance opportunity to review and comment upon, and consider in good faith the views of the other with respect to, all written communications (including any analyses, presentations, memoranda, briefs, arguments and opinions) with a Governmental Authority regarding the Offer and the Merger, (vi) provide each other (or counsel of each party, as appropriate) with copies of all written communications to or from any Governmental Authority relating to the Offer or the Merger, and (vii) cooperate and provide each other with a reasonable opportunity to participate in, and consider in good faith the views of the other with respect to, all material deliberations with respect to all efforts to satisfy the conditions set forth in clauses (A) and (C)(1) of Annex A and Section 9.1(c). Any such disclosures, rights to participate or provisions of information by one party to the other may be made on a counsel-only basis to the extent required under applicable Law or as appropriate to protect confidential business information or the attorney client privilege or attorney work product.
(c) Each of Parent, Acquisition Sub and the Company shall cooperate with one another in good faith to (i) promptly determine whether any filings not contemplated by Section 8.2(a) are required to be or should be made, and whether any other consents, approvals, permits or authorizations not contemplated by Section 8.2(a) are required to be or should be obtained, from any Governmental Authority under any other applicable Law in connection with the transactions contemplated hereby, and (ii) promptly make any filings, furnish information required in connection therewith and seek to obtain timely any such consents, permits, authorizations, approvals or waivers that the parties determine are required to be or should be made or obtained in connection with the transactions contemplated hereby.
(d) Notwithstanding anything to the contrary in this Agreement, in connection with any filing or submission required or action to be taken by either Parent or the Company to consummate the Offer and the Merger, in no event shall Parent or any of its Subsidiaries or Affiliates be obligated to propose or agree to accept any undertaking or condition, to enter into any consent decree, to make any divestiture or accept any operational restriction, or take or commit to take any action (i) the effectiveness or consummation of which is not conditional on the consummation of the Offer and the Merger or (ii) that individually or in the aggregate (x) is or would reasonably be expected to be materially adverse (with materiality, for purposes of this provision, being measured in relation to the size of the Company and its Subsidiaries taken as a whole) to (A) the Company and its Subsidiaries, taken as a whole, or Parent and its Subsidiaries, taken as a whole, either before or after giving effect to the Offer or the Merger, or (B) Parent’s ownership or operation of any material portion of the business or assets of the Company and its Subsidiaries, taken as a whole, or (y) would reasonably be expected to deny Parent the material benefit of the bargains contemplated by the transactions contemplated by this Agreement. The Company shall agree, if requested by Parent in writing, to commit to take any of the forgoing actions with respect to the assets or business of the Company in furtherance of this Section 8.2; provided, however, that any such action may be conditioned upon the consummation of the Merger and other Transactions contemplated by this Agreement.;
Appears in 1 contract
Sources: Merger Agreement
Regulatory Filings. (a) Each of Parent and Acquisition Sub (and their respective Affiliates, if applicable), on the one hand, The Company and the Company, on the other hand, Purchaser shall use reasonable best efforts to (xi) file with the FTC United States Federal Trade Commission (the “FTC”) and the Antitrust Division United States Department of Justice (the DOJ a Notification “DOJ”), the notification and Report Form relating to this Agreement and the transactions contemplated hereby as report form required by the HSR Act as soon as reasonably practicable from for the date following execution and delivery of this Agreement but in no event later than ten transactions contemplated hereby within seven (107) Business Days following the execution and delivery of this Agreement, and (y) file comparable pre-merger or post-merger notification filings, forms and submissions with any foreign Governmental Authority that is required by any other Antitrust Laws as soon as reasonably practicable from the date following execution hereof or such later date as may be agreed by the parties and delivery of this Agreement but in no event later than ten (10) Business Days following to provide any additional or supplemental information and documentary material requested by the execution FTC and delivery of this Agreement. Each of Parent and DOJ pursuant to the Company shall (i) cooperate and coordinate with the other in the making of such filingsHSR Act, (ii) supply the with respect to any other with Governmental Authority, promptly make any other filings or reports, and submit any information that may be and documentation required in order for the transactions contemplated hereby, pursuant to make such filingsany other Antitrust Law, (iii) supply any additional information that reasonably may be required or requested by the FTCsubject to Section 6.3(c) and Section 6.3(d), the DOJ or the Governmental Authorities of any other jurisdiction in which any such filing is made under any other Antitrust Laws, and (iv) use reasonable best efforts to take all action necessary to cause the expiration or termination of the applicable waiting periods under the HSR Act or other Antitrust Laws Law, as applicable, as soon as practicablepracticable after the date hereof, and (iv) subject to obtain any required consents under any other Antitrust Laws applicable to the Offer and/or the Merger as soon as practicableSection 6.3(c) and Section 6.3(d), and to avoid any impediment to the consummation of the Offer or the Merger transactions contemplated hereby under any applicable Laws (including the HSR Act and other Antitrust LawsLaw) which would cause the conditions set forth in Section 8.1(a) and Section 8.1(b) not to be satisfied as of the Closing, including using reasonable best efforts to take all such action as reasonably may be reasonably necessary to resolve such objections, objections (if any, ) as the FTC, the DOJ, or any other Governmental Authority or Person may assert under any applicable Laws (including the HSR Act and other Antitrust Laws with respect to the Offer and/or the Merger.
(bLaw) Each of Parent and Acquisition Sub (and their respective Affiliates, if applicable), on the one hand, and the Company, on the other hand, shall promptly inform the other of any communication from any Governmental Authority regarding any of the transactions contemplated by this Agreement in connection with any filings or investigations with, by or before any Governmental Authority relating to this Agreement or the transactions contemplated hereby, including any proceedings initiated by a private party. If any party hereto or Affiliate thereof shall receive a request for additional information or documentary material from any Governmental Authority with respect to the transactions contemplated by this Agreement pursuant hereby which would cause the conditions set forth in Section 8.1(a) and Section 8.1(b) not to be satisfied as of the Closing. If the conditions set forth in Section 8.1(a) and Section 8.1(b) with regards to Antitrust Laws are not satisfied as of the Outside Date, then the Parties shall discuss, in good faith, a mutual agreement to extend the Outside Date if necessary to obtain approval of the transaction under Antitrust Laws. Each of the Company and the Purchaser shall furnish to each other’s counsel such necessary information and reasonable assistance as the other may request in connection with its preparation of any filing or submission that is necessary under the HSR or Act and any other Antitrust Laws with respect to which any such filings have been made, then such party Law. The Purchaser shall use its reasonable best efforts to make, or cause to be made, as soon as reasonably practicable and after consultation responsible for the filing fees payable in connection with the other party, an appropriate response filings described in compliance with such request. In connection with the first sentence of this Section 6.3.
(b) The Company and without limiting the foregoing, to the extent reasonably practicable and unless prohibited by applicable Law or by the applicable Governmental Authority, the parties hereto agree to Purchaser shall: (i) give promptly notify each other reasonable advance notice of all meetings with any Governmental Authority relating to the Offer or the Merger, (ii) give each other an opportunity to participate in each of such meetings, (iii) keep the other party reasonably apprised with respect to any oral communications with any Governmental Authority regarding the Offer or the Merger, (iv) cooperate in the filing of any analyses, presentations, memoranda, briefs, arguments, opinions or other written communications explaining or defending the Offer and the Merger, articulating any regulatory or competitive argument and/or responding to requests or objections made by communication received from any Governmental Authority, and (vii) provide each subject to applicable Law and excluding portions of documents relating to valuation of the Agreement, furnish the other party copies of all correspondence, submissions, and communications (and memoranda setting forth substance thereof) between them and their respective Affiliates on one hand, and any Governmental Authority on the other hand, with a respect to this Agreement, including advanced drafts thereof and the reasonable advance opportunity to review comment on them. Except as may be prohibited by any Governmental Authority and comment uponapplicable Law, each party will consult and cooperate with the other, and will consider in good faith faith, the views of the other with respect to, all written communications (including any analyses, presentations, memoranda, briefs, arguments and opinions) with a Governmental Authority regarding the Offer and the Merger, (vi) provide each other (or counsel of each party, as appropriate) in connection with copies any analysis, appearance, presentation, memorandum, brief, argument, opinion or proposal made or submitted in connection with any suit, claim, action, investigation or proceeding under or relating to the HSR Act or any other Antitrust Law. To the extent permitted by any such Governmental Authority, each party will permit authorized representatives of all written communications the other party to be present at each meeting or from teleconference relating to any investigation or legal proceeding and to have access to and be consulted in connection with any document, opinion or proposal made or submitted to any Governmental Authority relating to the Offer or the Merger, and (vii) cooperate and provide each other with a reasonable opportunity to participate in, and consider in good faith the views of the other with respect to, all material deliberations with respect to all efforts to satisfy the conditions set forth in clauses (A) and (C)(1) of Annex A and Section 9.1(c). Any such disclosures, rights to participate or provisions of information by one party to the other may be made on a counsel-only basis to the extent required under applicable Law or as appropriate to protect confidential business information or the attorney client privilege or attorney work product.
(c) Each of Parent, Acquisition Sub and the Company shall cooperate with one another in good faith to (i) promptly determine whether any filings not contemplated by Section 8.2(a) are required to be or should be made, and whether any other consents, approvals, permits or authorizations not contemplated by Section 8.2(a) are required to be or should be obtained, from any Governmental Authority under any other applicable Law in connection with any such investigation or legal proceeding. The Purchaser shall have the sole right to devise and implement the strategy for obtaining any necessary clearance or approval, for responding to any request, inquiry, or investigation, for deciding whether to refile any pre-merger notification, for defending any lawsuit challenging the transactions contemplated hereby, and (ii) promptly make for leading in all meetings and communications with any filingsGovernmental Authority that has authority to enforce the HSR Act or any other Antitrust Law; provided however, furnish information required that the Purchaser shall consult with the Company and consider in connection therewith good faith views expressed by the Company and seek to obtain timely its advisors concerning the foregoing and will not reject any such consents, permits, authorizations, approvals or waivers that views without the parties determine are required Purchaser making its counsel available promptly to be or should be made or obtained in connection with the transactions contemplated herebyexplain its rationale for such rejection.
(dc) Notwithstanding anything to the contrary contained in this Agreement, in connection with nothing shall require the Purchaser to take any filing action that will require, or submission required or action be deemed to be taken by either Parent require, the Purchaser or the Company to consummate the Offer and the Merger, in no event shall Parent or any of its Subsidiaries or Affiliates be obligated to propose or agree to accept any undertaking or condition, to enter into any consent decree, to make any divestiture or accept any operational restriction, or take or commit to take any action (i) the effectiveness or consummation of which is not conditional on the consummation of the Offer and the Merger or (iidescribed in this Section 6.3(c) that individually or in the aggregate (x) is or would could reasonably be expected to be materially adverse have or result in a Material Adverse Impact, including but not limited to any Material Adverse Impact that would result from (with materialityi) disposing or transferring any asset, for purposes of this provision, being measured in relation to the size including those of the Company and its Subsidiaries taken as a wholePurchaser or the Company; (ii) licensing or otherwise making available to any Person, any technology or other Intellectual Property Rights of the Purchaser or the Company; (Aiii) the Company and its Subsidiaries, taken as a whole, holding separate any assets or Parent and its Subsidiaries, taken as a whole, operations (either before or after giving effect to the Offer Closing Date) of the Purchaser or the Merger, Company; or (Biv) Parent’s ownership changing or operation modifying any course of conduct or otherwise making any material portion commitment (to any Governmental Authority or otherwise) regarding future operations of the Purchaser or the Company’s business or assets of the Company and its Subsidiaries, taken as a whole, or (y) would reasonably be expected to deny Parent the material benefit of the bargains contemplated by the transactions contemplated by this Agreement. The Company shall agree, if requested by Parent in writing, to commit to take obtain any of the forgoing actions with respect to the assets or business of the Company in furtherance of this Section 8.2; provided, however, that approval from any such action may be conditioned upon the consummation of the Merger and other Transactions contemplated by this Agreement.Governmental
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Ritchie Bros Auctioneers Inc)
Regulatory Filings. (a) Each of Parent The Business is being conducted in compliance in all material respects with all Applicable Laws, including, without limitation, all insurance laws, ordinances, rules, regulations, decrees and Acquisition Sub (and their respective Affiliates, if applicable), on the one hand, and the Company, on the other hand, shall (x) file with the FTC and the Antitrust Division of the DOJ a Notification and Report Form relating to this Agreement and the transactions contemplated hereby as required by the HSR Act as soon as reasonably practicable from the date following execution and delivery of this Agreement but in no event later than ten (10) Business Days following the execution and delivery of this Agreement, and (y) file comparable pre-merger or post-merger notification filings, forms and submissions with any foreign Governmental Authority that is required by any other Antitrust Laws as soon as reasonably practicable from the date following execution and delivery of this Agreement but in no event later than ten (10) Business Days following the execution and delivery of this Agreement. Each of Parent and the Company shall (i) cooperate and coordinate with the other in the making of such filings, (ii) supply the other with any information that may be required in order to make such filings, (iii) supply any additional information that reasonably may be required or requested by the FTC, the DOJ or the Governmental Authorities orders of any other jurisdiction in which any such filing is made under any other Antitrust Laws, and (iv) use reasonable best efforts to take all action necessary to cause the expiration or termination of the applicable waiting periods under the HSR Act or other Antitrust Laws as soon as practicable, and to obtain any required consents under any other Antitrust Laws applicable to the Offer and/or the Merger as soon as practicable, and to avoid any impediment to the consummation of the Offer or the Merger under any Antitrust Laws, including using reasonable best efforts to take all such action as reasonably may be necessary to resolve such objections, if any, as the FTC, the DOJ, or any other Governmental Authority or Person may assert under any applicable Antitrust Laws with respect to the Offer and/or the MergerEntity.
(b) Each Seller Party has all permits and insurance and other licenses, franchises, approvals, authorizations, exemptions, classifications, certificates, registrations and similar documents necessary to its conduct of Parent the Business (each of which, a "Permit") as it is currently conducted in each jurisdiction (as listed in Schedule 3.14(b)) in which the Seller Parties require such Permits. The Business has been and Acquisition Sub (is being conducted in compliance, in all material respects, with all such Permits. All such Permits are in full force and their respective Affiliates, if applicable), on the one handeffect, and the Company, on the other hand, shall promptly inform the other of any communication from any Governmental Authority regarding any of the transactions contemplated by this Agreement in connection with any filings there is no proceeding or investigations with, by or before any Governmental Authority relating to this Agreement or the transactions contemplated hereby, including any proceedings initiated by a private party. If any party hereto or Affiliate thereof shall receive a request for additional information or documentary material from any Governmental Authority with respect to the transactions contemplated by this Agreement pursuant to the HSR or any other Antitrust Laws with respect to which any such filings have been made, then such party shall use its reasonable best efforts to make, or cause to be made, as soon as reasonably practicable and after consultation with the other party, an appropriate response in compliance with such request. In connection with and without limiting the foregoinginvestigation pending or, to the extent knowledge of Seller Parties, threatened which would reasonably practicable and unless prohibited by applicable Law be expected to lead to the revocation, amendment, failure to renew, limitation, modification, suspension or by restriction of any such Permit. No Seller Party is operating under any agreement or understanding with the applicable Governmental Authorityregulatory authority of any state which in any way restricts its authority to conduct the Business or requires any Seller Party to take, the parties hereto agree to (i) give each other reasonable advance notice of all meetings with or refrain from taking, any Governmental Authority action relating to the Offer or the Merger, (ii) give each other an opportunity to participate in each of such meetings, (iii) keep the other party reasonably apprised with respect to any oral communications with any Governmental Authority regarding the Offer or the Merger, (iv) cooperate in the filing of any analyses, presentations, memoranda, briefs, arguments, opinions or other written communications explaining or defending the Offer and the Merger, articulating any regulatory or competitive argument and/or responding to requests or objections made by any Governmental Authority, (v) provide each other with a reasonable advance opportunity to review and comment upon, and consider in good faith the views conduct of the other with respect to, all written communications (including any analyses, presentations, memoranda, briefs, arguments and opinions) with a Governmental Authority regarding the Offer and the Merger, (vi) provide each other (or counsel of each party, as appropriate) with copies of all written communications to or from any Governmental Authority relating to the Offer or the Merger, and (vii) cooperate and provide each other with a reasonable opportunity to participate in, and consider in good faith the views of the other with respect to, all material deliberations with respect to all efforts to satisfy the conditions set forth in clauses (A) and (C)(1) of Annex A and Section 9.1(c). Any such disclosures, rights to participate or provisions of information Business otherwise permitted by one party to the other may be made on a counsel-only basis to the extent required under applicable Law or as appropriate to protect confidential business information or the attorney client privilege or attorney work productApplicable Law.
(c) Each of Parent, Acquisition Sub and the Company shall cooperate with one another in good faith to Seller Parties have made available for inspection by Purchaser complete (i) promptly determine whether any copies of all material registrations, filings not contemplated and submissions relating to the Business made since January 1, 1995 by Section 8.2(a) are required to be or should be made, and whether any other consents, approvals, permits or authorizations not contemplated by Section 8.2(a) are required to be or should be obtained, from the Seller Parties with any Governmental Authority under Entity and any other applicable Law in connection with the transactions contemplated hereby, and (ii) promptly make any filingsreports of examinations issued since January 1, furnish information required in connection therewith and seek to obtain timely 1995 by any such consents, permits, authorizations, approvals or waivers Governmental Entity that relate to the parties determine are required to be or should be made or obtained in connection with the transactions contemplated herebySeller Parties.
(d) Notwithstanding anything All Subject Contracts issued or sold by the Seller Parties since January 1, 1990 are on forms approved by the insurance regulatory authority of the jurisdiction where issued or sold or have been filed with and not objected to by such authority within the contrary period provided for objection, and have been filed or registered as required with all other applicable governmental authorities. Except as set forth on Schedule 3.14(d), all Subject Contracts issued or sold by the Seller Parties since January 1, 1990 complied as to form when issued or sold, with the provisions of Applicable Law. All the premium rates required to be filed with or approved by insurance regulatory authorities since January 1, 1990 have been so filed or approved or not objected to within the period provided for objection, and all premiums charged conform in this Agreementall material respects thereto. No Seller Parties or their Affiliates has, since January 1, 1995, advertised or used other literature in connection with any filing or submission required or action to be taken by either Parent or the Company to consummate the Offer and the Merger, Business that does not comply in no event shall Parent or any of its Subsidiaries or Affiliates be obligated to propose or agree to accept any undertaking or condition, to enter into any consent decree, to make any divestiture or accept any operational restriction, or take or commit to take any action (i) the effectiveness or consummation of which is not conditional on the consummation of the Offer and the Merger or (ii) that individually or in the aggregate (x) is or would reasonably be expected to be materially adverse (all material respects with materiality, for purposes of this provision, being measured in relation to the size of the Company and its Subsidiaries taken as a whole) to (A) the Company and its Subsidiaries, taken as a whole, or Parent and its Subsidiaries, taken as a whole, either before or after giving effect to the Offer or the Merger, or (B) Parent’s ownership or operation of any material portion of the business or assets of the Company and its Subsidiaries, taken as a whole, or (y) would reasonably be expected to deny Parent the material benefit of the bargains contemplated by the transactions contemplated by this Agreement. The Company shall agree, if requested by Parent in writing, to commit to take any of the forgoing actions with respect to the assets or business of the Company in furtherance of this Section 8.2; provided, however, that any such action may be conditioned upon the consummation of the Merger and other Transactions contemplated by this AgreementApplicable Laws.
Appears in 1 contract
Sources: Asset Transfer Agreement (Reliance Group Holdings Inc)
Regulatory Filings. (a) Each of Parent and Acquisition Sub (and their respective Affiliates, if applicable), on the one hand, and the Company, on the other hand, shall (x) file with the FTC and the Antitrust Division of the DOJ a Notification and Report Form relating to this Agreement and the transactions contemplated hereby as required by the HSR Act as soon As promptly as reasonably practicable from following the date following execution and delivery of this Agreement Agreement, but in no event later than ten (10) Business Days following the execution and delivery date of this Agreement, and (y) file comparable pre-merger or post-merger notification filingsParent, forms and submissions with any foreign Governmental Authority that is required by any other Antitrust Laws as soon as reasonably practicable from the date following execution and delivery of this Agreement but in no event later than ten (10) Business Days following the execution and delivery of this Agreement. Each of Parent Seller and the Company shall (i) cooperate make any filings required under applicable Law for the Governmental Entity approvals listed on Schedule 6.7, including any Notification and coordinate with the other in the making of such filings, (ii) supply the other with any information Report Forms and related material that they may be required in order to make such filings, (iii) supply any additional information that reasonably may be required or requested by file with the FTC, Federal Trade Commission and the DOJ or Antitrust Division of the Governmental Authorities United States Department of any other jurisdiction in which any such filing is made Justice under any other Antitrust Lawsthe HSR Act, and (iv) will make or cause to be made any further filings and use commercially reasonable best efforts to take all action such further actions pursuant thereto as may be necessary, proper, or advisable in connection therewith. Any filing fees required in connection with such filings shall be borne and paid by Parent. Each of Parent, Seller and the Company shall cooperate fully with each other and shall furnish to the other such necessary information and reasonable assistance as the other may reasonably request in connection with its preparation of any such filings. Unless otherwise 73 agreed, Parent, Seller and the Company shall each use its commercially reasonable efforts to cause ensure the expiration or termination prompt granting of any Governmental Entity approvals. Parent, Seller and the Company shall each use its commercially reasonable efforts to respond to and comply with any request for information from any Governmental Entity in connection with any required approvals. Parent, Seller and the Company shall keep each other apprised of the applicable waiting periods status of any communications with, and any inquiries or requests for additional information from any Governmental Entity. Parent, Seller and the Company shall use reasonable efforts to share information protected from disclosure under the HSR Act or other Antitrust Laws as soon as practicableattorney- client privilege, and to obtain any required consents under any other Antitrust Laws applicable to the Offer and/or the Merger as soon as practicablework product doctrine, and to avoid any impediment to the consummation of the Offer or the Merger under any Antitrust Laws, including using reasonable best efforts to take all such action as reasonably may be necessary to resolve such objections, if any, as the FTC, the DOJ, joint defense privilege or any other Governmental Authority or Person may assert under privilege pursuant to this Section 6.7 so as to preserve any applicable Antitrust Laws with respect to the Offer and/or the Mergerprivilege.
(b) Each of Parent and Acquisition Sub (and their respective AffiliatesParent, if applicable), on the one hand, Seller and the Company, on the other hand, shall promptly inform the other of any communication from any Governmental Authority regarding any of Company have mutually determined that the transactions contemplated by this Agreement in connection with any filings or investigations withare not subject to the CFIUS mandatory declaration requirements pursuant to 31 C.F.R § 800.401. Parent, by or before any Governmental Authority relating Seller and the Company have further mutually determined that neither a voluntary notice nor declaration to this Agreement or the transactions contemplated hereby, including any proceedings initiated by a private party. If any party hereto or Affiliate thereof shall receive a request for additional information or documentary material from any Governmental Authority CFIUS with respect to the transactions contemplated by this Agreement pursuant to is advisable. In the HSR event any of Parent, Seller or any other Antitrust Laws with respect to which any such filings have been madethe Company receives a communication regarding the transactions contemplated by this Agreement from CFIUS, then such party shall use its reasonable best efforts to makeeach of Parent, Seller and the Company will make or cause to be mademade any filings with or responses to CFIUS as Parent, in its sole discretion, may deem advisable, and use commercially reasonable efforts to take such further actions pursuant thereto as soon as reasonably practicable may be necessary, proper, or advisable in connection therewith. Each of Parent, Seller and after consultation the Company shall cooperate fully with each other and shall furnish to the other party, an appropriate response such necessary information and reasonable assistance as the other may reasonably request in compliance with such request. In connection with and without limiting its preparation of any such filings or responses. If Parent, in its sole discretion, reasonably determines in good faith that the foregoingfiling of a declaration or notice with CFIUS is required or advisable, to the extent reasonably practicable and unless prohibited by applicable Law or by the applicable Governmental Authority, the parties hereto agree to (i) give each other reasonable advance notice of all meetings with any Governmental Authority relating to the Offer or the Merger, (ii) give each other an opportunity to participate in then each of such meetingsParent, (iii) keep Seller and the other party Company will reasonably apprised with respect to any oral communications with any Governmental Authority regarding the Offer or the Merger, (iv) cooperate in the filing of any analysesa declaration or notice and in promptly replying to CFIUS requests in order to receive CFIUS Approval. Unless otherwise agreed, presentationseach of Parent, memoranda, briefs, arguments, opinions or other written communications explaining or defending the Offer Seller and the MergerCompany shall use its commercially reasonable efforts to ensure the prompt granting of any CFIUS Approval, articulating as applicable. Parent, Seller and the Company shall each use its commercially reasonable efforts to respond to and comply with any regulatory or competitive argument and/or responding to requests or objections made by any Governmental Authorityrequest for information from CFIUS. Parent, (v) provide Seller and the Company shall keep each other with a reasonable advance opportunity to review and comment uponapprised of the status of any communications with, and consider in good faith the views any inquiries or requests for additional information from CFIUS. Parent shall be entitled to reject any mitigation conditions, terms, or measures proposed by CFIUS or any of the other with respect to, all written communications (including any analyses, presentations, memoranda, briefs, arguments and opinions) with a Governmental Authority regarding the Offer and the Merger, (vi) provide each other (or counsel of each party, as appropriate) with copies of all written communications to or from any Governmental Authority relating to the Offer or the Merger, and (vii) cooperate and provide each other with a reasonable opportunity to participate in, and consider in good faith the views of the other with respect to, all material deliberations with respect to all efforts to satisfy the conditions set forth in clauses (A) and (C)(1) of Annex A and Section 9.1(c). Any such disclosures, rights to participate or provisions of information by one party to the other may be made on a counsel-only basis to the extent required under applicable Law or as appropriate to protect confidential business information or the attorney client privilege or attorney work productits member agencies.
(c) Each Notwithstanding anything in this Section 6.7 or this Agreement to the contrary, none of Parent, Acquisition Sub and Seller, the Company or their respective Affiliates shall cooperate with one another in good faith be required or permitted, without the prior written consent of Parent, to consent to any requirement, condition, limitation, understanding, agreement or order of a Governmental Entity (i) promptly determine whether to sell, divest, license, assign, transfer, hold separate or otherwise dispose of any filings not contemplated by Section 8.2(a) are required to be portion of the assets or should be madebusiness of any member of the Company, and whether any other consentsthe Surviving Company, approvals, permits or authorizations not contemplated by Section 8.2(a) are required to be or should be obtained, from any Governmental Authority under any other applicable Law in connection with the transactions contemplated hereby, and (ii) promptly make any filings, furnish information required in connection therewith and seek to obtain timely any such consents, permits, authorizations, approvals or waivers that the parties determine are required to be or should be made or obtained in connection with the transactions contemplated hereby.
(d) Notwithstanding anything to the contrary in this Agreement, in connection with any filing or submission required or action to be taken by either Parent or the Company to consummate the Offer and the MergerMerger Sub, in no event shall Parent or any of its Subsidiaries or Affiliates be obligated to propose or agree to accept any undertaking or conditiontheir respective Subsidiaries, to enter into any consent decree, to make any divestiture or accept any operational restriction, or take or commit to take any action (i) the effectiveness or consummation of which is not conditional on the consummation of the Offer and the Merger or (ii) that individually limits the freedom of action with respect to, or in the aggregate (x) is or would reasonably be expected ability to be materially adverse (with materialityretain, for purposes of this provision, being measured in relation to the size any of the Company and its Subsidiaries taken as a whole) to (A) the Company and its Subsidiariesbusinesses, taken as a wholeservices, or Parent and its Subsidiaries, taken as a whole, either before or after giving effect to the Offer or the Merger, or (B) Parent’s ownership or operation of any material portion of the business or assets of any member of the Company and its Company, the Surviving Company, Parent or Merger Sub or any of their respective Subsidiaries, taken as a whole, or (y) would reasonably in order to be expected permitted by such Governmental Entity to deny Parent the material benefit of the bargains contemplated by consummate the transactions contemplated by this Agreement. The Company shall agree, if requested by Parent in writing, to commit to take any of the forgoing actions with respect to the assets or business of the Company in furtherance of this Section 8.2; provided, however, that any such action may be conditioned upon the consummation of the Merger and other Transactions contemplated by this Agreement.
Appears in 1 contract
Sources: Merger Agreement (Pangaea Logistics Solutions Ltd.)
Regulatory Filings. (a) Each of Parent and Acquisition Sub (and their respective Affiliates, if applicable), on the one hand, and the Company, on the other hand, shall (x) file with the FTC and the Antitrust Division of the DOJ a Notification and Report Form relating to this Agreement and the transactions contemplated hereby as required by the HSR Act as soon as reasonably practicable from the date following execution and delivery of this Agreement but in no event later than Within ten (10) Business Days following days after the execution date hereof, the Parties shall make, or cause to be made, the filing required (if any) of each of them or any of their respective Subsidiaries or Affiliates, including the Group Companies, under the HSR Act with respect to the Acquisition. In connection therewith, if requested by Buyer, the Parties shall request early termination of any waiting period under the HSR Act. The Parties hereto shall make, or cause to be made, as promptly as practicable, all filings necessary to obtain all Regulatory Approvals (other than the HSR Approval or other filings under Antitrust Laws) as set forth in Schedule 7.01. Buyer and delivery of this AgreementSeller shall, and (y) file comparable pre-merger or post-merger notification filings, forms and submissions with any foreign Governmental Authority that is required by any other Antitrust Laws as soon as reasonably practicable from the date following execution and delivery of this Agreement but in no event later than ten (10) Business Days following the execution and delivery of this Agreement. Each of Parent and Seller shall cause the Company shall to: (i) cooperate and coordinate with the other Parties in the making of such filings, any filings or submissions that are required to be made under any applicable Laws or requested to be made by any Governmental Entity in connection with the Transactions; (ii) supply the other with respond to any requests for additional information that may be required in order to make such filings, made by any Governmental Entity; (iii) supply any additional information that reasonably may be required or requested by upon the FTCterms and subject to the conditions set forth in this Agreement, the DOJ or the Governmental Authorities of any other jurisdiction in which any such filing is made under any other Antitrust Laws, and (iv) use their reasonable best efforts to take all action necessary to cause the expiration or termination of the any applicable waiting periods under the HSR Act or other Antitrust any applicable Laws as soon as reasonably practicable, and to obtain any required consents under any other Antitrust Laws applicable to the Offer and/or the Merger as soon as practicable, and to avoid any impediment to the consummation of the Offer or the Merger under any Antitrust Laws, including using reasonable best efforts to take all such action as reasonably may be necessary to resolve such objections, if any, as the FTC, the DOJ, or any other Governmental Authority or Person may assert under any applicable Antitrust Laws with respect to the Offer and/or the Merger.
(b) Each of Parent and Acquisition Sub (and their respective Affiliates, if applicable), on the one hand, and the Company, on the other hand, shall promptly inform the other of any communication from any Governmental Authority regarding any of the transactions contemplated by this Agreement in connection with any filings or investigations with, by or before any Governmental Authority relating to this Agreement or the transactions contemplated hereby, including any proceedings initiated by a private party. If any party hereto or Affiliate thereof shall receive a request for additional information or documentary material from any Governmental Authority with respect to the transactions contemplated by this Agreement pursuant to the HSR or any other Antitrust Laws with respect to which any such filings have been made, then such party shall use its reasonable best efforts to make, or cause to be made, as soon as reasonably practicable and after consultation with the other party, an appropriate response in compliance with such request. In connection with and without limiting the foregoing, to the extent reasonably practicable and unless prohibited by applicable Law or by the applicable Governmental Authority, the parties hereto agree to (i) give each other reasonable advance notice of all meetings with any Governmental Authority relating to the Offer or the Merger, (ii) give each other an opportunity to participate in each of such meetings, (iii) keep the other party reasonably apprised with respect to any oral communications with any Governmental Authority regarding the Offer or the Merger, ; (iv) cooperate in provide the filing of any analyses, presentations, memoranda, briefs, arguments, opinions or other written communications explaining or defending the Offer and the Merger, articulating any regulatory or competitive argument and/or responding to requests or objections made by any Governmental Authority, (v) provide each other Parties with a reasonable advance opportunity to review and comment uponon any filing, submission, response to an information request or other (verbal or written) communication to be submitted or made to any Governmental Entity, except for the premerger notification and report forms (and any attachments thereto) prepared and submitted pursuant to the HSR Act, written communications regarding the same, or documents or information submitted in response to any formal or informal request from the FTC or DOJ for additional information or documents pursuant to the HSR Act, to the extent that any such material reveals any Party’s negotiating objectives, strategies, or consideration expectations, in which event such material may be withheld or its disclosure limited to the other Party’s external counsel, and such receiving Party shall consider any such received comments in good faith the views of faith; (v) advise the other Parties (and, where applicable, provide a copy) of any written or verbal communications that it receives from any Governmental Entity in respect of such filings (including in respect of any supplementary filings or submissions) and otherwise in connection with respect tosatisfying the Regulatory Approvals, all except for the premerger notification and report forms (and any attachments thereto) prepared and submitted pursuant to the HSR Act, written communications (including any analyses, presentations, memoranda, briefs, arguments and opinions) with a Governmental Authority regarding the Offer same, or documents or information submitted in response to any formal or informal request from the FTC or DOJ for additional information or documents pursuant to the HSR Act, to the extent that any such material reveals any Party’s negotiating objectives, strategies, or consideration expectations, in which event such material may be withheld or its disclosure limited to the other Party’s external counsel; and the Merger, (vi) provide each the other (or counsel of each party, as appropriate) with copies of all written communications to or from any Governmental Authority relating to the Offer or the Merger, and (vii) cooperate and provide each other Party with a reasonable opportunity to participate in any meetings with any Governmental Entity (subject to any opposition by a Governmental Entity to a particular Party’s participation in such meeting) and participate in, and consider or review, any material communication before it is made to any Governmental Entity. Notwithstanding the foregoing, each Party has the right to redact or otherwise exclude a Party from receiving any confidential competitively sensitive information required to be shared under this Section 7.01(a), in good faith the views which event disclosure of the other with respect to, all such material deliberations with respect to all efforts to satisfy the conditions set forth in clauses (A) and (C)(1) of Annex A and Section 9.1(c). Any such disclosures, rights to participate or provisions of information by one party may be limited to the other may be made on Party’s external counsel. The Parties shall not agree to an extension of any waiting period or review being undertaken by a counsel-only basis to Governmental Entity without the extent required under applicable Law or as appropriate to protect confidential business information or the attorney client privilege or attorney work productother Party’s prior written consent.
(c) Each of Parent, Acquisition Sub and the Company shall cooperate with one another in good faith to (i) promptly determine whether any filings not contemplated by Section 8.2(a) are required to be or should be made, and whether any other consents, approvals, permits or authorizations not contemplated by Section 8.2(a) are required to be or should be obtained, from any Governmental Authority under any other applicable Law in connection with the transactions contemplated hereby, and (ii) promptly make any filings, furnish information required in connection therewith and seek to obtain timely any such consents, permits, authorizations, approvals or waivers that the parties determine are required to be or should be made or obtained in connection with the transactions contemplated hereby.
(db) Notwithstanding anything to the contrary in this Agreement, in connection with any filing or submission required or action to be taken by either Parent or the Company to consummate the Offer and the Merger, in no event shall Parent will Buyer or any of its respective Subsidiaries, be required to (and in no event will the Company, and the Company will cause its Subsidiaries not to, without the prior written consent of Buyer) (x) commit, agree or Affiliates be obligated submit (or offer to propose commit, agree, or agree submit) to accept any undertaking or condition, to enter into any consent decree, to make any divestiture hold separate order, sale, divestiture, lease, license, transfer, disposal, Encumbrance, other change or accept any operational restrictionrestructuring of, or take operating restriction with respect to the businesses, properties, product lines, assets, permits, operations, rights, or commit interest therein of the Group Companies or Buyer or any of its Subsidiaries, or (y) commit, agree, or submit (or offer to take commit, agree, or submit) to any action (i) or agree to any remedies, terms or conditions in connection with its obligations under this Agreement; provided, that if Buyer requests, Seller shall, and shall cause the effectiveness or consummation of which is not conditional Group Companies to, take such actions so long as they are conditioned on the consummation of the Offer and the Merger or (ii) that individually or in the aggregate (x) is or would reasonably be expected to be materially adverse (with materiality, for purposes of this provision, being measured in relation to the size of the Company and its Subsidiaries taken as a whole) to (A) the Company and its Subsidiaries, taken as a whole, or Parent and its Subsidiaries, taken as a whole, either before or after giving effect to the Offer or the Merger, or (B) Parent’s ownership or operation of any material portion of the business or assets of the Company and its Subsidiaries, taken as a whole, or (y) would reasonably be expected to deny Parent the material benefit of the bargains contemplated by the transactions contemplated by this Agreement. The Company shall agree, if requested by Parent in writing, to commit to take any of the forgoing actions with respect to the assets or business of the Company in furtherance of this Section 8.2; provided, however, that any such action may be conditioned upon the consummation of the Merger and other Transactions contemplated by this AgreementTransactions.
Appears in 1 contract
Sources: Stock Purchase Agreement (Surgalign Holdings, Inc.)
Regulatory Filings. (a) Each The Seller and the Company shall, as promptly as practicable (and, in the case of Parent and Acquisition Sub (and their respective Affiliatesany filing pursuant to the HSR Act, if applicableno later than November 22, 2023), on make or cause to be made all filings and submissions under any Laws applicable to the one hand, Seller the Company and its Subsidiaries for the Company, on the other hand, shall (x) file with the FTC and the Antitrust Division consummation of the DOJ a Notification and Report Form relating to this Agreement and the transactions contemplated hereby as required herein (which filing under the HSR Act shall specifically request early termination of the waiting period prescribed by the HSR Act as soon as reasonably practicable from the date following execution and delivery of this Agreement but in no event later than ten (10) Business Days following the execution and delivery of this AgreementAct, and (y) file comparable pre-merger or post-merger notification filings, forms and submissions with any foreign Governmental Authority that is required by any other Antitrust Laws as soon as reasonably practicable from the date following execution and delivery of this Agreement but in no event later than ten (10) Business Days following the execution and delivery of this Agreementif available). Each of Parent The Seller and the Company shall (i) cooperate and coordinate with the other in the making of such filings, (ii) supply the other with any information that may be required in order agree to make such filings, (iii) supply any additional information that reasonably may be required or requested by the FTC, the DOJ or the Governmental Authorities of any other jurisdiction in which any such filing is made under any other Antitrust Laws, and (iv) use their reasonable best efforts to take take, or cause to be taken, all action actions necessary to cause expeditiously consummate the expiration or termination of the applicable waiting periods under the HSR Act or other Antitrust Laws as soon as practicable, and to obtain any required consents under any other Antitrust Laws applicable to the Offer and/or the Merger as soon as practicable, and to avoid any impediment to the consummation of the Offer or the Merger under any Antitrust Lawstransactions contemplated by this Agreement, including using reasonable best efforts to take make all such action as reasonably may be necessary government filings required of it, provide any information required for and cooperate with the Purchaser to resolve such objectionsmake all regulatory filings contemplated in Section 7.4, if anyrespond to government requests for information, as and otherwise obtain all necessary governmental, judicial or regulatory actions or non-actions, orders, waivers, consents, clearances, extensions and approvals. Notwithstanding the FTCforegoing, the DOJ, Seller shall not extend any waiting period under the HSR Act or enter into any other Governmental Authority or Person may assert under any applicable Antitrust Laws agreement with respect to the Offer and/or the Merger.
(b) Each of Parent and Acquisition Sub (and their respective Affiliates, if applicable), on the one hand, and the Company, on the other hand, shall promptly inform the other of any communication from any Governmental Authority regarding any of the transactions contemplated by this Agreement in connection with any filings or investigations with, by or before any Governmental Authority relating to this Agreement or the transactions contemplated hereby, including any proceedings initiated by a private party. If any party hereto or Affiliate thereof shall receive a request for additional information or documentary material from any Governmental Authority with respect to the transactions contemplated by this Agreement pursuant Agreement, except with the prior written consent of the Purchaser (such consent not to be unreasonably withheld, conditioned or delayed).
(b) In furtherance of Section 6.3(a), the HSR Seller and the Company shall (i) respond as promptly as practicable to any inquiries or requests received from any other Antitrust Laws with respect to which any such filings have been made, then such party shall Governmental Authority for additional information or documentation and (ii) use its reasonable best efforts to makecause any applicable waiting periods or other requirements under the HSR Act and all other applicable antitrust and competition Laws to terminate or expire at the earliest possible date (including, or cause if applicable, with respect to be madefilings under the HSR Act, as soon as reasonably practicable seeking “early termination” of the waiting period under the HSR Act, if available). The Seller and after consultation with the other party, an appropriate response in compliance with such request. In connection with and without limiting Company shall (A) promptly notify the foregoing, Purchaser of any written communication to the extent reasonably practicable and unless prohibited by applicable Law or by the applicable Governmental AuthoritySeller, the parties hereto agree to (i) give each other reasonable advance notice Company or any of all meetings with their Affiliates from any Governmental Authority relating and, subject to applicable Law and reasonable confidentiality considerations, permit the Offer or the Merger, (ii) give each other an opportunity Purchaser to participate review in each of such meetings, (iii) keep the other party reasonably apprised with respect advance any proposed written communication to any oral communications with any Governmental Authority regarding of the Offer or the Merger, foregoing (iv) cooperate in the filing of any analyses, presentations, memoranda, briefs, arguments, opinions or other written communications explaining or defending the Offer and the Merger, articulating any regulatory or competitive argument and/or responding to requests or objections made by any Governmental Authority, (v) provide each other with a reasonable advance opportunity to review and comment upon, and consider in good faith the views of the other Purchaser in connection therewith), (B) not agree to participate, or to permit its Affiliates to participate, in any substantive meeting or discussion with respect to, all written communications (including any analyses, presentations, memoranda, briefs, arguments and opinions) with a Governmental Authority regarding in respect of any filing, investigation or inquiry concerning this Agreement unless the Offer Seller or the Company consults with the Purchaser in advance and, to the extent permitted by such Governmental Authority, gives the Purchaser the opportunity to attend and participate thereat and (C) furnish the Merger, (vi) provide each other (or counsel of each party, as appropriate) Purchaser with copies of all written correspondence, filings and communications to or from (and memoranda setting forth the substance thereof) between the Seller, the Company and their Affiliates and each of their respective representatives, on the one hand, and any Governmental Authority relating to the Offer or the Mergerand/or members of its staff, and (vii) cooperate and provide each other with a reasonable opportunity to participate in, and consider in good faith the views of on the other with respect tohand, all material deliberations with respect to all efforts to satisfy the conditions set forth in clauses (A) and (C)(1) of Annex A and Section 9.1(c). Any such disclosures, rights to participate or provisions of information by one party to the other may be made on a counsel-only basis to the extent required under applicable Law or as appropriate to protect confidential business information or the attorney client privilege or attorney work product.
(c) Each of Parent, Acquisition Sub and the Company shall cooperate with one another in good faith to (i) promptly determine whether any filings not contemplated by Section 8.2(a) are required to be or should be made, and whether any other consents, approvals, permits or authorizations not contemplated by Section 8.2(a) are required to be or should be obtained, from any Governmental Authority under any other applicable Law in connection with the transactions contemplated hereby, and (ii) promptly make any filings, furnish information required in connection therewith and seek to obtain timely any such consents, permits, authorizations, approvals or waivers that the parties determine are required to be or should be made or obtained in connection with the transactions contemplated hereby.
(d) Notwithstanding anything to the contrary in this Agreement, in connection with any filing or submission required or action to be taken by either Parent or the Company to consummate the Offer and the Merger, in no event shall Parent or any of its Subsidiaries or Affiliates be obligated to propose or agree to accept any undertaking or condition, to enter into any consent decree, to make any divestiture or accept any operational restriction, or take or commit to take any action (i) the effectiveness or consummation of which is not conditional on the consummation of the Offer and the Merger or (ii) that individually or in the aggregate (x) is or would reasonably be expected to be materially adverse (with materiality, for purposes of this provision, being measured in relation to the size of the Company and its Subsidiaries taken as a whole) to (A) the Company and its Subsidiaries, taken as a whole, or Parent and its Subsidiaries, taken as a whole, either before or after giving effect to the Offer or the Merger, or (B) Parent’s ownership or operation of any material portion of the business or assets of the Company and its Subsidiaries, taken as a whole, or (y) would reasonably be expected to deny Parent the material benefit of the bargains contemplated by the transactions contemplated by this Agreement. The Company Seller and the Company, on the one hand, and the Purchaser, on the other hand, shall agree, if requested fully coordinate their efforts and cooperate with regard to any inquiries or requests by Parent in writinga Governmental Authority. In fulfilling their obligations hereunder, to commit to take any of the forgoing actions with respect extent reasonably required by privilege or confidentiality considerations, the parties may limit communications hereunder to the assets or business of the Company in furtherance of this Section 8.2; provided, however, that any such action may be conditioned upon the consummation of the Merger and other Transactions contemplated by this Agreementparties’ outside counsel only.
Appears in 1 contract
Regulatory Filings. (a) Each of Parent and Acquisition Merger Sub (and their respective Affiliates, if applicable), on the one hand, and the CompanyCompany (and its respective Affiliates, if applicable), on the other hand, shall (x) file with the FTC and the Antitrust Division of the DOJ a Notification and Report Form relating to this Agreement and the transactions contemplated hereby Transactions as required by the HSR Act as soon as reasonably practicable from after the date following execution and delivery of this Agreement but in no event later than ten (10) Business Days following the execution and delivery of this Agreement, and (y)
(i) file comparable pre-pre- merger or notification filings, forms and submissions with any foreign Governmental Authority that are required by any other Antitrust Laws as soon as practicable after the date of this Agreement but in no event later than thirty (30) days following the execution and delivery of this Agreement and (ii) file post-merger notification filings, forms and submissions with any foreign Governmental Authority that is are required by any other Antitrust Laws as soon as reasonably practicable from after the date following execution and delivery of this Agreement but in no event later than ten (10) Business Days following the execution and delivery of this AgreementClosing Date. Each of Parent and the Company shall (i) cooperate and coordinate with the other in the making of such filings, (ii) subject to customary confidentiality arrangements as between the parties hereto, supply the other with any information that reasonably may be required in order to make such filings, (iii) supply any additional information that reasonably may be required or requested by the FTC, the DOJ or the Governmental Authorities of any other jurisdiction in applicable jurisdictionin which any such filing is made under any other Antitrust Laws, and (iv) use reasonable best efforts to take all action necessary to cause the expiration or termination of the applicable waiting periods under the HSR Act or other Antitrust Laws as soon as practicable, and to obtain any required consents under any other Antitrust Laws applicable to the Offer and/or the Merger as soon as practicable, and to avoid any impediment to the consummation of the Offer or the Merger under any Antitrust Laws, including using reasonable best efforts to take all includingtaking such action as reasonably may be necessary to resolve such objections, if any, as the FTC, the DOJ, or any other Governmental Authority or Person may assert under any applicable Antitrust Laws with respect to the Offer and/or Merger, provided that notwithstanding the Mergerforegoing, no party hereto shall be required to litigate with a Governmental Authority or effect or commit to, by consent decree,hold separate orders, or otherwise, (i) the sale, divestiture, license or other disposition or holding separate (throughthe establishment of a trust or otherwise) of any assets or categories of assets of Parent, Merger Sub, the Guarantors, the Company or their respective Subsidiaries or Affiliates, or (ii) the imposition of any limitation or regulation on the ability of Parent, Merger Sub, the Guarantors, the Company or their respective Subsidiaries or Affiliates to freely conduct their business or own such assets (an "Antitrust Required Action").
(b) Promptly following execution of this Agreement, Parent and Company shall each file or cause to be filed all applications and notices with the FCC and the applicable State PUCs of any Governmental Authority that are necessary or appropriate for approval of the transfer of control or the assignment of the Permits or the Financing relating to the respective businessesof the Company and each of its Subsidiaries as currently conducted or the obtaining of new Permits necessary to operate the respective businesses of the Company and each of its Subsidiaries as currently conducted, including after giving effect to the Transactions and the Financing (the "Required Approvals"). The Required Approvals shall include all of the consents and approvals set forth on Section 2.6(c) of the Disclosure Schedule. As soon as practicable after the date of this Agreement but in no event later than ten (10) Business Days -53- **MSPSC Electronic Copy ** 2016-UA-186 Filed on 09/23/2016 ** following the execution and delivery of this Agreement, Parent shall file or cause to be filed with the FCC and the applicable State PUCs the appropriate filings related to the Required Approvals. The Company shall promptly use reasonable best efforts to furnish information to Parent and assist Parent as it may reäsonably request in connection with the preparation of the filings with respect to the Required Approvals. The Company and Parent agree that they wiÍlconsult and cooperate with each other with respect to the obtaining of all Required Approvals as well as all other Consents of the FCC and all applicable State PUCs, necessary to consummate the transactions. Each of the Company, Parent and Merger Sub shall cooperate with the other party and use reasonable best efforts to prosecute or cause to be prosecuted all such applications to a favorable conclusion, and shall work with the other party to file or cause to be filed all Required Approvals as well as all other required notices of consummation with the FCC and the applicable State PUCs. No party shall take or cause to be taken any Action before the FCC or any State PUC which is intended to delay Action on such applications or consummation of the Transactions.
(c) Each of Parent and Acquisition Merger Sub (and their respective Affiliates, if applicable), on the one hand, and the CompanyCompany (and its respective Affiliates, if applicable), on the other hand, shall promptly inform the other of any communication from any Governmental Authority regarding any of the transactions contemplated transactionscontemplated by this Agreement in connection with any filings or investigations with, by or before any Governmental Authority relating to this Agreement or the transactions contemplated herebyTransactions, including any proceedings initiated by a private party. If Parent or Merger Sub (or any party hereto of their respective Affiliates, if applicable), on the one hand, or Affiliate thereof the Company (or any of its respective Affiliates, if applicable), on the other hand, shall receive a request for additional information or documentary material from any Governmental Authority with respect to the transactions contemplated transactionscontemplated by this Agreement pursuant to the HSR Act or any other Antitrust Laws or any Laws and regulations related to FCC and State PUCs compliance with respect to which any such filings have been made, then such party shall use its reasonable best efforts to make, or cause to be made, as soon as reasonably practicable and after consultation with the such other party, an appropriate response in compliance with such request. In connection with and without limiting the foregoing, to the extent reasonably practicable and unless prohibited by applicable Law or by the applicable Governmental Authority, each of Parent and Merger Sub (and their respective Affiliates, if applicable), on the parties hereto agree to one hand, and the Company (and its respective Affiliates, if applicable), on the other hand, shall (i) give each other reasonable advance notice of all meetings with any Governmental Authority relating to the Offer or Transactions (including the Merger), (ii) give each other an opportunity to participate in each of such meetings, (iii) keep the such other party reasonably apprised with respect to any oral communications with any Governmental Authority regarding the Offer or Transadtions (including the Merger), (iv) reasonably cooperate in the filing of any analyses, presentations, memoranda, briefs, arguments, opinions or other written communications explaining or defending the Offer and Transactions (including the Merger), articulating any regulatory or competitive argument and/or responding to requests or objections made by any Governmental Authority, (v) subject to customary confidentiality arrangements, provide each other with a reasonable advance opportunity to review and comment upon, and consider in good faith the views of the other with respect to, all written communications (including any analyses, presentations, memoranda, briefs, arguments and opinions) with a Governmental Authority **MSPSC Electronic Copy ** 2016-UA-186 Filed on 09/23/2016 ** regarding the Offer and Transactions (including the Merger), (vi) subject to customary confidentiality arrangements, provide each other (or counsel of each party, as appropriate) with copies of all written communications to or from any Governmental Authority relating to the Offer or Transactions (including the Merger), and (vii) reasonably cooperate and provide each other with a reasonable opportunity to participate in, and consider in good faith the views of the other with respect to, all material deliberations with respect to all efforts efforts, if any, to satisfy the conditions set forth in clauses paragraphs (Aa), (b), (c), (e) and (C)(1f) of Annex A and Section 9.1(c5.1 (Conditions to the Obligations ofEach Party to Effect the Merger). Any such disclosures, rights to participate or provisions of information by one party to the other may be made on a counsel-only basis to the extent required under applicable Law or as appropriate to protect confidential business information or the attorney client privilege or attorney work productinformation.
(cd) Each of Parent, Acquisition Merger Sub and the Company shall reasonably cooperate with one another in good faith to (i) promptly determine whether any filings not expressly contemplated by this Section 8.2(a) 4.8 are required to be or should be made, and whether any other consents, approvals, permits or authorizations not expressly contemplated by this Section 8.2(a) 4.8 are required to be or should be obtained, from any Governmental Authority under any other applicable Law in connection with the transactions contemplated herebyTransactions, and (ii) promptly make any filings, ; furnish information required in connection therewith and seek to obtain timely any such consents, permits, authorizations, approvals or waivers that the parties determine are required to be or should be made or obtained in connection with the transactions contemplated herebyTransactions.
(de) Notwithstanding anything Subject to Section 4.8(a) (Antitrust Filings), Section 4.8(b) (Required Approvals) and Section 4.8(c) (Regulatory Filings-Notice), each of Parent and the Company will, upon reasonable request, furnish to the contrary in this Agreementother all information concerning itself, its Subsidiaries, directors, officers and stockholders and such other matters as may be reasonably necessary or advisable in connection with the Information Statement or any filing other statement, filing, notice or submission required application made by or action to be taken by either Parent or on behalf of Parent, the Company to consummate the Offer and the Merger, in no event shall Parent or any of its their respective Subsidiaries or Affiliates be obligated to propose or agree to accept any undertaking or condition, to enter into any consent decree, to make any divestiture or accept any operational restriction, or take or commit to take any action (i) Governmental Authority in connection with the effectiveness or consummation of which is not conditional on the consummation of the Offer and the Merger or (ii) that individually or in the aggregate (x) is or would reasonably be expected to be materially adverse (with materiality, for purposes of this provision, being measured in relation to the size of the Company and its Subsidiaries taken as a whole) to (A) the Company and its Subsidiaries, taken as a whole, or Parent and its Subsidiaries, taken as a whole, either before or after giving effect to the Offer or the Merger, or (B) Parent’s ownership or operation of any material portion of the business or assets of the Company and its Subsidiaries, taken as a whole, or (y) would reasonably be expected to deny Parent the material benefit of the bargains contemplated by the transactions contemplated by this Agreement. The Company shall agree, if requested by Parent in writing, to commit to take any of the forgoing actions with respect to the assets or business of the Company in furtherance of this Section 8.2; provided, however, that any such action may be conditioned upon the consummation of the Merger and other Transactions contemplated by this AgreementTransactions.
Appears in 1 contract
Sources: Purchase Agreement
Regulatory Filings. (a) Each of Parent and Acquisition Sub (shall, and shall cause their respective Affiliates, if applicable), on the one handAffiliates to, and the CompanyCompany shall, on the other hand, shall (x) file with the FTC and the Antitrust Division of the DOJ a Notification and Report Form relating to this Agreement and the transactions contemplated hereby as required by the HSR Act as soon as reasonably practicable from after the date following execution and delivery of this Agreement but in no event later than ten (10) Business Days following the execution and delivery of this Agreement, and (y) file comparable pre-merger or post-merger notification filings, forms and submissions with any foreign Governmental Authority that is required by any other Antitrust Laws as soon as reasonably practicable from after the date following execution and delivery of this Agreement but in no event later than ten (10) Business Days following the execution and delivery of this Agreement. Each of Parent and the Company shall use reasonable best efforts to (i) cooperate and coordinate with the other in the making of such filings, (ii) supply the other with any information that reasonably may be required in order to make such filings, (iii) supply any additional information that reasonably may be required or requested by the FTC, the DOJ or the Governmental Authorities of any other applicable jurisdiction in which any such filing is made under any other Antitrust Laws, and (iv) use reasonable best efforts subject to Section 8.2(d), take all action necessary to cause the expiration or termination of the applicable waiting periods under the HSR Act or other Antitrust Laws as soon as practicable, and to obtain any required consents under any other Antitrust Laws applicable to the Offer and/or or the Merger as soon as practicable, and to avoid any impediment to the consummation of the Offer or the Merger under any Antitrust Laws, including using reasonable best efforts to take all such action as reasonably may be necessary to resolve such objections, if any, as the FTC, the DOJ, or any other Governmental Authority or Person may assert under any applicable Antitrust Laws with respect to the Offer and/or or the Merger.
(b) Each of . Parent and Acquisition Sub the Company shall each pay one half (1/2) of all filing fees under the HSR Act and their respective Affiliates, if applicable), on the one hand, and the Company, on the any fees or other hand, shall promptly inform the other of any communication from payments to any Governmental Authority regarding any of the transactions contemplated by this Agreement in connection with any filings or investigations with, by or before any Governmental Authority relating to this Agreement or the transactions contemplated hereby, including any proceedings initiated by a private party. If any party hereto or Affiliate thereof shall receive a request for additional information or documentary material from any Governmental Authority with respect to the transactions contemplated by this Agreement pursuant to under the HSR Act or any such other Antitrust Laws with respect to which any such filings have been made, then such party shall use its reasonable best efforts to make, or cause to as may be made, as soon as reasonably practicable and after consultation with the other party, an appropriate response in compliance with such request. In connection with and without limiting the foregoing, to the extent reasonably practicable and unless prohibited by applicable Law or by required under the applicable Governmental Authority, the parties hereto agree to (i) give each other reasonable advance notice of all meetings with any Governmental Authority relating to the Offer or the Merger, (ii) give each other an opportunity to participate in each of such meetings, (iii) keep the other party reasonably apprised with respect to any oral communications with any Governmental Authority regarding the Offer or the Merger, (iv) cooperate in the filing of any analyses, presentations, memoranda, briefs, arguments, opinions or other written communications explaining or defending the Offer and the Merger, articulating any regulatory or competitive argument and/or responding to requests or objections made by any Governmental Authority, (v) provide each other with a reasonable advance opportunity to review and comment upon, and consider in good faith the views of the other with respect to, all written communications (including any analyses, presentations, memoranda, briefs, arguments and opinions) with a Governmental Authority regarding the Offer and the Merger, (vi) provide each other (or counsel of each party, as appropriate) with copies of all written communications to or from any Governmental Authority relating to the Offer or the Merger, and (vii) cooperate and provide each other with a reasonable opportunity to participate in, and consider in good faith the views of the other with respect to, all material deliberations with respect to all efforts to satisfy the conditions set forth in clauses (A) and (C)(1) of Annex A and Section 9.1(c). Any such disclosures, rights to participate or provisions of information by one party to the other may be made on a counsel-only basis to the extent required under applicable Law or as appropriate to protect confidential business information or the attorney client privilege or attorney work productAntitrust Laws.
(c) Each of Parent, Acquisition Sub and the Company shall cooperate with one another in good faith to (i) promptly determine whether any filings not contemplated by Section 8.2(a) are required to be or should be made, and whether any other consents, approvals, permits or authorizations not contemplated by Section 8.2(a) are required to be or should be obtained, from any Governmental Authority under any other applicable Law in connection with the transactions contemplated hereby, and (ii) promptly make any filings, furnish information required in connection therewith and seek to obtain timely any such consents, permits, authorizations, approvals or waivers that the parties determine are required to be or should be made or obtained in connection with the transactions contemplated hereby.
(d) Notwithstanding anything to the contrary in this Agreement, in connection with any filing or submission required or action to be taken by either Parent or the Company to consummate the Offer and the Merger, in no event shall Parent or any of its Subsidiaries or Affiliates be obligated to propose or agree to accept any undertaking or condition, to enter into any consent decree, to make any divestiture or accept any operational restriction, or take or commit to take any action (i) the effectiveness or consummation of which is not conditional on the consummation of the Offer and the Merger or (ii) that individually or in the aggregate (x) is or would reasonably be expected to be materially adverse (with materiality, for purposes of this provision, being measured in relation to the size of the Company and its Subsidiaries taken as a whole) to (A) the Company and its Subsidiaries, taken as a whole, or Parent and its Subsidiaries, taken as a whole, either before or after giving effect to the Offer or the Merger, or (B) Parent’s ownership or operation of any material portion of the business or assets of the Company and its Subsidiaries, taken as a whole, or (y) would reasonably be expected to deny Parent the material benefit of the bargains contemplated by the transactions contemplated by this Agreement. The Company shall agree, if requested by Parent in writing, to commit to take any of the forgoing actions with respect to the assets or business of the Company in furtherance of this Section 8.2; provided, however, that any such action may be conditioned upon the consummation of the Merger and other Transactions contemplated by this Agreement.
Appears in 1 contract
Sources: Merger Agreement (Bioclinica Inc)
Regulatory Filings. (a) Each As promptly as practicable after the execution of this Agreement, each of Parent and Acquisition Sub the Company will prepare and file (i) with the United States Federal Trade Commission and their respective Affiliatesthe Antitrust Division of the United States Department of Justice Notification and Report Forms relating to the transactions contemplated herein as required by the HSR Act, if applicableas well as any comparable pre-merger notification forms required by the merger notification or control laws and regulations of any other applicable jurisdiction (the “Antitrust Filings”) and (ii) any other filings required to be filed by it under the Exchange Act, the Securities Act or any other federal, state or foreign laws relating to the Merger and the transactions contemplated by this Agreement (the “Other Filings”). Parent and the Company each shall promptly supply the other with any information which may be required in order to effectuate any filings pursuant to this Section 6.4. Parent shall be responsible for payment of the HSR Act filing fee.
(b) To the extent permitted by law, each of Parent and the Company will notify the other promptly upon the receipt of any comments from any government official in connection with any filing made pursuant hereto and of any request by any government official for amendments or supplements to any Antitrust Filings or Other Filings or for additional information and will supply the other with copies of all correspondence between such party or any of its representatives, on the one hand, and the Companyany government officials, on the other hand, shall (x) file with respect to the FTC and the Merger or any Antitrust Division of the DOJ a Notification and Report Form relating to this Agreement and the transactions contemplated hereby as required by the HSR Act as soon as reasonably practicable from the date following execution and delivery of this Agreement but in no event later than ten (10) Business Days following the execution and delivery of this Agreement, and (y) file comparable pre-merger Filing or post-merger notification filings, forms and submissions with any foreign Governmental Authority that is required by any other Antitrust Laws as soon as reasonably practicable from the date following execution and delivery of this Agreement but in no event later than ten (10) Business Days following the execution and delivery of this AgreementOther Filing. Each of Parent and the Company shall (i) cooperate will cause all documents that it is responsible for filing with regulatory authorities under this Section 6.4 to comply in all material respects with all applicable requirements of law and coordinate with the other rules and regulations promulgated thereunder. Whenever any event occurs which is required to be set forth in the making of such filingsan amendment or supplement to any Antitrust Filing or Other Filing, (ii) supply the other with any information that may be required in order to make such filings, (iii) supply any additional information that reasonably may be required or requested by the FTC, the DOJ Parent or the Governmental Authorities of any other jurisdiction in which any such filing is made under any other Antitrust Laws, and (iv) use reasonable best efforts to take all action necessary to cause the expiration or termination of the applicable waiting periods under the HSR Act or other Antitrust Laws as soon as practicable, and to obtain any required consents under any other Antitrust Laws applicable to the Offer and/or the Merger as soon as practicable, and to avoid any impediment to the consummation of the Offer or the Merger under any Antitrust Laws, including using reasonable best efforts to take all such action as reasonably may be necessary to resolve such objections, if anyCompany, as the FTCcase may be, the DOJwill, or any other Governmental Authority or Person may assert under any applicable Antitrust Laws with respect to the Offer and/or the Merger.
(b) Each of Parent and Acquisition Sub (and their respective Affiliatesextent permitted by law, if applicable), on the one hand, and the Company, on the other hand, shall promptly inform the other of any communication from any Governmental Authority regarding any of the transactions contemplated by this Agreement such occurrence and cooperate in connection filing such amendment or supplement with any filings or investigations with, by or before any Governmental Authority relating to this Agreement or the transactions contemplated hereby, including any proceedings initiated by a private party. If any party hereto or Affiliate thereof shall receive a request for additional information or documentary material from any Governmental Authority with respect to the transactions contemplated by this Agreement pursuant to the HSR or any other Antitrust Laws with respect to which any such filings have been made, then such party shall use its reasonable best efforts to make, or cause to be made, as soon as reasonably practicable and after consultation with the other party, an appropriate response in compliance with such request. In connection with and without limiting the foregoing, to the extent reasonably practicable and unless prohibited by applicable Law or by the applicable Governmental Authority, the parties hereto agree to (i) give each other reasonable advance notice of all meetings with any Governmental Authority relating to the Offer or the Merger, (ii) give each other an opportunity to participate in each of such meetings, (iii) keep the other party reasonably apprised with respect to any oral communications with any Governmental Authority regarding the Offer or the Merger, (iv) cooperate in the filing of any analyses, presentations, memoranda, briefs, arguments, opinions or other written communications explaining or defending the Offer and the Merger, articulating any regulatory or competitive argument and/or responding to requests or objections made by any Governmental Authority, (v) provide each other with a reasonable advance opportunity to review and comment upon, and consider in good faith the views of the other with respect to, all written communications (including any analyses, presentations, memoranda, briefs, arguments and opinions) with a Governmental Authority regarding the Offer and the Merger, (vi) provide each other (or counsel of each party, as appropriate) with copies of all written communications to or from any Governmental Authority relating to the Offer or the Merger, and (vii) cooperate and provide each other with a reasonable opportunity to participate in, and consider in good faith the views of the other with respect to, all material deliberations with respect to all efforts to satisfy the conditions set forth in clauses (A) and (C)(1) of Annex A and Section 9.1(c). Any such disclosures, rights to participate or provisions of information by one party to the other may be made on a counsel-only basis to the extent required under applicable Law or as appropriate to protect confidential business information or the attorney client privilege or attorney work productgovernment official.
(c) Each of Parent, Acquisition Sub and the Company shall cooperate with one another in good faith to (i) promptly determine whether any filings not contemplated by Section 8.2(a) are required to be or should be made, and whether any other consents, approvals, permits or authorizations not contemplated by Section 8.2(a) are required to be or should be obtained, from any Governmental Authority under any other applicable Law in connection with the transactions contemplated hereby, and (ii) promptly make any filings, furnish information required in connection therewith and seek to obtain timely any such consents, permits, authorizations, approvals or waivers that the parties determine are required to be or should be made or obtained in connection with the transactions contemplated hereby.
(d) Notwithstanding anything to the contrary in this Agreement, in connection with any filing or submission required or action to be taken by either Parent or the Company to consummate the Offer and the Merger, in no event shall Parent or any of its Subsidiaries or Affiliates be obligated to propose or agree to accept any undertaking or condition, to enter into any consent decree, to make any divestiture or accept any operational restriction, or take or commit to take any action (i) the effectiveness or consummation of which is not conditional on the consummation of the Offer and the Merger or (ii) that individually or in the aggregate (x) is or would reasonably be expected to be materially adverse (with materiality, for purposes of this provision, being measured in relation to the size of the Company and its Subsidiaries taken as a whole) to (A) the Company and its Subsidiaries, taken as a whole, or Parent and its Subsidiaries, taken as a whole, either before or after giving effect to the Offer or the Merger, or (B) Parent’s ownership or operation of any material portion of the business or assets of the Company and its Subsidiaries, taken as a whole, or (y) would reasonably be expected to deny Parent the material benefit of the bargains contemplated by the transactions contemplated by this Agreement. The Company shall agree, if requested by Parent in writing, to commit to take any of the forgoing actions with respect to the assets or business of the Company in furtherance of this Section 8.2; provided, however, that any such action may be conditioned upon the consummation of the Merger and other Transactions contemplated by this Agreement.
Appears in 1 contract
Regulatory Filings. (a) Each of Parent and Acquisition Sub (and their respective Affiliates, if applicable), on the one hand, and the Company, on the other hand, shall (x) file with the FTC and the Antitrust Division of the DOJ a Notification and Report Form relating to this Agreement and the transactions contemplated hereby as required by the HSR Act as soon as reasonably practicable from the date following execution and delivery of this Agreement but in no event later than ten (10) Business Days following the execution and delivery of this Agreement, and (y) file comparable pre-merger or post-merger notification filings, forms and submissions with any foreign Governmental Authority that is required by any other Antitrust Laws as soon as reasonably practicable from the date following execution and delivery of this Agreement but in no event later than ten (10) Business Days following the execution and delivery of this Agreement. Each of Parent and the Company The Parties shall (i) cooperate promptly (and coordinate with in any event within seven (7) Business Days) after the other in the making of such filingsdate hereof, (ii) supply the other with any information that may make or cause to be required in order to make such filings, (iii) supply any additional information that reasonably may be required or requested by the FTC, the DOJ or the Governmental Authorities of any other jurisdiction in which any such filing is made under any other Antitrust Laws, all filings and (iv) use reasonable best efforts to take all action necessary to cause the expiration or termination of the applicable waiting periods submissions under the HSR Act or other Antitrust Laws as soon as practicable, and to obtain any required consents under any other Antitrust Laws applicable to the Offer and/or the Merger as soon as practicable, and to avoid any impediment to in connection with the consummation of the Offer transactions contemplated herein and (ii) promptly (and in any event within twenty (20) Business Days) after the date hereof, in cooperation in good faith with each other, make or cause to be made all filings and submissions with the Merger under relevant insurance regulators in connection with the consummation of the transactions contemplated herein in accordance with and as set forth in Schedule 5.03(b) of the Company Disclosure Schedules. In connection with the consummation of the transactions contemplated herein, the Parties shall promptly comply with any Antitrust Lawsadditional reasonable requests for information, including using reasonable best efforts requests for production of documents and production of witnesses for interviews or depositions by any Governmental Entities. Notwithstanding anything herein to take the contrary, the Parties shall cooperate in good faith with each other and with any Governmental Entities and undertake promptly any and all action reasonably required to complete the transactions contemplated by this Agreement expeditiously and lawfully, including but not limited to (i) selling or otherwise disposing of, or holding separate and agreeing to sell or otherwise dispose of, assets, categories of assets or businesses of the Company or Parent or their respective Subsidiaries; (ii) terminating existing relationships, contractual rights or obligations of the Company or Parent or their respective Subsidiaries; (iii) terminating any venture or other arrangement; (iv) creating any relationship, contractual rights or obligations of the Company or Parent or their respective Subsidiaries; or (v) effectuating any other change or restructuring of the Company or Parent or their respective Subsidiaries (and, in each case, to enter into agreements or stipulate to the entry of an Order or decree or file appropriate applications with any Governmental Entity in connection with any of the foregoing and in the case of Actions by or with respect to any Group Company or its businesses or assets, by consenting to such action as reasonably may Action by the Company and provided, that any such Action or any of the foregoing may, at the discretion of the Company, be necessary to resolve such objectionsconditioned upon consummation of the Merger). Without limiting the generality of the foregoing, if any, as the FTC, the DOJ, a suit or other Action is threatened or instituted by any Governmental Entity or any other Governmental Authority entity challenging the validity or Person may assert under any applicable Antitrust Laws with respect legality or seeking to restrain the Offer and/or the Merger.
(b) Each of Parent and Acquisition Sub (and their respective Affiliates, if applicable), on the one hand, and the Company, on the other hand, shall promptly inform the other of any communication from any Governmental Authority regarding any consummation of the transactions contemplated by this Agreement Agreement, the Parent and the Merger Sub shall use their commercially reasonable efforts to avoid, resist, resolve or, if necessary, defend such suit or action and shall afford the Company a reasonable opportunity to participate therein. The Parties shall diligently assist and cooperate with each other in preparing and filing any and all written communications that are to be submitted to any Governmental Entities in connection with the transactions contemplated hereby and in obtaining any filings governmental or investigations withthird party consents, waivers, authorizations or approvals which may be required to be obtained by any Party or before any Governmental Authority relating to this Agreement or Group Company in connection with the transactions contemplated hereby, including any proceedings initiated by a private party. If any party hereto or Affiliate thereof which assistance and cooperation shall receive a request for additional information or documentary material from any Governmental Authority with respect to the transactions contemplated by this Agreement pursuant to the HSR or any other Antitrust Laws with respect to which any such filings have been made, then such party shall use its reasonable best efforts to make, or cause to be made, as soon as reasonably practicable and after consultation with the other party, an appropriate response in compliance with such request. In connection with and without limiting the foregoing, to the extent reasonably practicable and unless prohibited by applicable Law or by the applicable Governmental Authority, the parties hereto agree to include: (i) give each other reasonable advance notice of all meetings with any Governmental Authority relating timely furnishing by a Party to the Offer other Parties all information that counsel to the furnishing Party reasonably determines is required to be included in such documents or the Mergerwould be helpful in obtaining such required consent, waiver, authorization or approval, (ii) give each other an opportunity to participate in each of such meetings, (iii) keep promptly providing the other party reasonably apprised with respect to any oral communications with any Governmental Authority regarding the Offer or the Merger, (iv) cooperate in the filing of any analyses, presentations, memoranda, briefs, arguments, opinions or other written communications explaining or defending the Offer and the Merger, articulating any regulatory or competitive argument and/or responding to requests or objections made by any Governmental Authority, (v) provide each other with a reasonable advance opportunity to review and comment upon, and consider in good faith the views of the other with respect to, all written communications (including any analyses, presentations, memoranda, briefs, arguments and opinions) with a Governmental Authority regarding the Offer and the Merger, (vi) provide each other (or counsel of each party, as appropriate) Parties with copies of all written communications to or from any Governmental Authority relating Entity, provided that such copies may be redacted as necessary to address legal privilege or confidentiality concerns or to comply with applicable Law and, provided further, that portions of such copies that are competitively sensitive may be designated as “outside counsel only,” (iii) keeping the Offer other Parties reasonably informed of any communication received or given in connection with any proceeding by a Party, in each case regarding the Merger, and (viiiv) cooperate and provide each other with a reasonable opportunity to participate in, and consider in good faith the views of permitting the other Parties to review and incorporate a Party’s reasonable comments in any communication given by it to any Governmental Entity or in connection with respect toany proceeding related to the HSR Act, all material deliberations insurance regulatory Laws or other applicable Laws, in each case regarding the Merger. Neither the Parent nor the Merger Sub, on one hand, nor the Company, on the other hand, shall initiate, or participate in any meeting or discussion with any Governmental Entity with respect to all efforts to satisfy any filings, applications, investigation, or other inquiry regarding the conditions set forth in clauses (A) and (C)(1) of Annex A and Section 9.1(c). Any such disclosuresMerger or filings under the HSR Act, rights to participate insurance regulatory Laws or provisions of information by one party to other applicable Laws without giving the other may be made on a counsel-only basis Party reasonable prior notice of the meeting or discussion and, to the extent required permitted by the relevant Governmental Entity, the opportunity to attend and participate in such meeting or discussion. Parent shall be solely responsible for all filing fees charged by Governmental Entities under applicable Law or as appropriate to protect confidential business information or the attorney client privilege or attorney work product.
(c) Each of Parent, Acquisition Sub HSR Act and under any other Antitrust Laws. The Parent and the Company shall cooperate with one another in good faith to each be responsible for fifty percent (i50%) promptly determine whether any filings not contemplated of all filing fees charged by Section 8.2(a) are required to be or should be made, and whether any other consents, approvals, permits or authorizations not contemplated by Section 8.2(a) are required to be or should be obtained, from any Governmental Authority Entities under any Laws, including insurance regulatory Laws (other applicable Law in connection with than the transactions contemplated hereby, and (ii) promptly make any filings, furnish information required in connection therewith and seek to obtain timely any such consents, permits, authorizations, approvals or waivers that the parties determine are required to be or should be made or obtained in connection with the transactions contemplated hereby.
(d) Notwithstanding anything to the contrary in this Agreement, in connection with any filing or submission required or action to be taken by either Parent or the Company to consummate the Offer and the Merger, in no event shall Parent or any of its Subsidiaries or Affiliates be obligated to propose or agree to accept any undertaking or condition, to enter into any consent decree, to make any divestiture or accept any operational restriction, or take or commit to take any action (i) the effectiveness or consummation of which is not conditional on the consummation of the Offer and the Merger or (ii) that individually or in the aggregate (x) is or would reasonably be expected to be materially adverse (with materiality, for purposes of this provision, being measured in relation to the size of the Company and its Subsidiaries taken as a whole) to (A) the Company and its Subsidiaries, taken as a whole, or Parent and its Subsidiaries, taken as a whole, either before or after giving effect to the Offer or the Merger, or (B) Parent’s ownership or operation of any material portion of the business or assets of the Company and its Subsidiaries, taken as a whole, or (y) would reasonably be expected to deny Parent the material benefit of the bargains contemplated by the transactions contemplated by this Agreement. The Company shall agree, if requested by Parent in writing, to commit to take any of the forgoing actions with respect to the assets or business of the Company in furtherance of this Section 8.2; provided, however, that any such action may be conditioned upon the consummation of the Merger HSR Act and other Transactions contemplated by this AgreementAntitrust Laws).
Appears in 1 contract
Sources: Merger Agreement (Brown & Brown Inc)
Regulatory Filings. (a) Each of Parent and Acquisition Merger Sub (shall, and shall cause their respective AffiliatesAffiliates to, if applicable), on the one hand, and the Company, on the other hand, shall (x) file with the FTC and the Antitrust Division applicable Governmental Authority in each of the DOJ a Notification and Report Form relating to this Agreement and jurisdictions listed on Section 7.2(a) of the transactions contemplated hereby Company Disclosure Letter, the notifications as required by the HSR Act their respective Antitrust Laws, in each case as soon as reasonably practicable from after the date following execution and delivery of this Agreement but in no event later than ten (10) Business Days following the execution and delivery of this Agreement, and (y) file comparable pre-merger or post-merger notification filings, forms and submissions with any foreign other Governmental Authority that is required by any other Antitrust Laws as listed on Section 7.2(a) of the Company Disclosure Letter as soon as reasonably practicable from after the date following execution and delivery of this Agreement but and in no any event later than ten (10) Business Days following before the execution and delivery expiration of this Agreementany applicable legal deadline. Each of Parent and the Company shall (i) cooperate and coordinate with the other in the making of such filings, (ii) supply the other with any information that may be required in order to make such filings, (iii) supply any additional information that reasonably may be required or requested by the FTC, the DOJ or the any Governmental Authorities of any other jurisdiction Authority in which any such filing is made under any other Antitrust Laws, and (iv) use reasonable best efforts to take all action necessary to cause the expiration or termination of the applicable waiting periods under the HSR Act or other Antitrust Laws applicable to the Merger as soon as practicablepracticable (and in any event, prior to the Outside Date), including by seeking early termination thereof, to the extent applicable, to not take any action with the effect of extending any review or waiting period under applicable Antitrust Laws, (unless as expressly requested by the applicable Governmental Authority) and to obtain any required consents under any other Antitrust Laws applicable to the Offer and/or the Merger as soon as practicablepracticable (and in any event prior to the Outside Date), and to avoid any impediment to the consummation of the Offer or the Merger under any Antitrust Laws, including using reasonable best efforts to take all such action as reasonably may be necessary to resolve such objections, if any, as the FTC, the DOJ, or any other Governmental Authority or Person may assert under any applicable Antitrust Laws with respect to the Offer and/or the Merger.
(b) Each of Parent and Acquisition Merger Sub (shall, and shall cause their respective AffiliatesAffiliates to, if applicable), on the one hand, and the Company, on the other hand, shall promptly inform the other of any communication from any Governmental Authority regarding any of the transactions contemplated by this Agreement in connection with any filings or investigations with, by or before any Governmental Authority relating to this Agreement or the transactions contemplated hereby, including any proceedings initiated by a private party. If any party hereto or Affiliate thereof shall receive a request for additional information or documentary material from any Governmental Authority with respect to the transactions contemplated by this Agreement pursuant to the HSR or any other Antitrust Laws with respect to which any such filings that have been made, then such party shall use its reasonable best efforts to make, or cause to be made, as soon as reasonably practicable and after consultation with the other party, an appropriate response in compliance with such request. In connection with and without limiting the foregoing, to the extent reasonably practicable and unless prohibited by applicable Law or by the applicable Governmental Authority, the parties hereto agree to (i) give each other reasonable advance notice of all meetings with any Governmental Authority relating to the Offer or the Merger, (ii) give each other an opportunity to participate in each of such meetings, (iii) keep the other party reasonably apprised with respect to any oral communications with any Governmental Authority regarding the Offer or the Merger, (iv) cooperate in the filing of any analyses, presentations, memoranda, briefs, arguments, opinions or other written communications explaining or defending the Offer and the Merger, articulating any regulatory or competitive argument and/or responding to requests or objections made by any Governmental Authority, (v) provide each other with a reasonable advance opportunity to review and comment upon, and consider in good faith the views of the other with respect to, all written communications (including any analyses, presentations, memoranda, briefs, arguments and opinions) with a Governmental Authority regarding the Offer and the Merger, (vi) provide each other (or counsel of each party, as appropriate) with copies of all written communications to or from any Governmental Authority relating to the Offer or the Merger, and (vii) cooperate and provide each other with a reasonable opportunity to participate in, and consider in good faith the views of the other with respect to, all material deliberations with respect to all efforts to satisfy the conditions set forth in clauses (A) and (C)(1) of Annex A and Section 9.1(c8.1(b). Any such disclosures, rights to participate or provisions of information by one party to the other may be made on a counsel-only basis to the extent required under applicable Law or as appropriate to protect confidential business information or the attorney client privilege or attorney work productinformation.
(c) Each of Parent, Acquisition Merger Sub and the Company shall cooperate with one another in good faith to (i) promptly determine whether any filings not contemplated by Section 8.2(a7.2(a) are required to be or should be made, and whether any other consents, approvals, permits or authorizations not contemplated by Section 8.2(a7.2(a) are required to be or should be obtained, from any Governmental Authority under any other applicable Law in connection with the transactions contemplated hereby, and (ii) promptly make any filings, furnish information required in connection therewith and seek to obtain timely any such consents, permits, authorizations, approvals or waivers that the parties determine are required to be or should be made or obtained in connection with the transactions contemplated hereby.
(d) Notwithstanding anything in this Agreement to the contrary in this Agreementcontrary, each of Parent and the Company agrees, and shall cause each of its Affiliates and/or Subsidiaries, to take any and all reasonable actions necessary to obtain any consents, clearances or approvals required under or in connection with any filing applicable Law (including Antitrust Law), and to enable all waiting periods under any applicable Law (including Antitrust Law) to expire, and to avoid or submission required eliminate each and every impediment under any applicable Law (including Antitrust Law) asserted by any Governmental Authority, in each case, to cause the Merger and the other transactions contemplated hereby to occur as soon as practicable and in any event prior to the Outside Date, including but not limited to (i) promptly complying with or action to be taken modifying any requests for additional information (including any second request) by either Parent any Governmental Authority, (ii) contesting, defending and appealing any threatened or pending preliminary or permanent injunction or other order, decree or ruling or statute, rule, regulation or executive order that would adversely affect the Company ability of any party hereto to consummate the Offer transactions contemplated hereby and taking any and all other actions to prevent the entry, enactment or promulgation thereof. From and after the date hereof and until all Approvals by Governmental Authorities required in connection with the Merger and the Mergerother transactions contemplated hereby have been obtained, in no event each of the Company and Parent shall Parent or any of not, and shall cause its Subsidiaries or Affiliates be obligated to propose or agree to accept any undertaking or conditionnot to, to consummate, enter into any consent decreeagreement providing for, to make or announce, any investment, acquisition, divestiture or accept any operational restriction, or take or commit to take any action (i) the effectiveness or consummation of which is not conditional on the consummation of the Offer and the Merger or (ii) other business combination that individually or in the aggregate (x) is or would reasonably be expected to be materially adverse increase in any material respect the risk of not obtaining any such governmental Approval.
(with materialitye) Nothing in this Agreement shall require Parent, for purposes the Surviving Company or any other subsidiary of this provisionParent to sell, being measured hold separate, license or otherwise dispose of any assets or conduct their business in relation a specified manner, or agree or propose to sell, hold separate, license or otherwise dispose of any assets or conduct their business in a specified manner, or permit or agree to the size sale, holding separate, licensing or other disposition of, any assets of Parent, the Surviving Company or any other subsidiary of Parent or the Company, whether as a condition to obtaining any approval from, or to avoid potential litigation or administrative action by, a Governmental Authority or any other person or for any other reason.
(f) Notwithstanding the provisions of Section 7.2(e) above, in the event that any of the approvals under any Antitrust Law in any Immaterial Jurisdiction is not received by the Company and Parent prior to the earlier of (i) the lapse of three (3) months from the date of this Agreement, and (ii) the date that all of the conditions to Closing set forth in Section 8.1, Section 8.2 and Section 8.3 (other than the conditions set out therein that are to be satisfied on the Closing Date) shall have been satisfied or waived by the party entitled to waive the same:
(i) Parent shall notify the Company of the failure to obtain the applicable approval required under applicable Antitrust Laws; and
(ii) Parent and the Company shall immediately enter into good faith discussions to agree on alternative solutions in order to consummate the Merger without the lawful requirement for such regulatory approval, including by way of divestment of the Company’s business in any such Immaterial Jurisdiction(s), and the parties hereto shall take commercially reasonable efforts (without requiring Parent to dispose any part of its Subsidiaries taken business as a wholeexisting prior to Closing) to (A) the Company and its Subsidiaries, taken as a whole, or Parent and its Subsidiaries, taken as a whole, either before or after giving effect to the Offer or the Merger, or (B) Parent’s ownership or operation of implement any material portion of the business or assets of the Company and its Subsidiaries, taken as a whole, or (y) would reasonably be expected to deny Parent the material benefit of the bargains contemplated by the transactions contemplated by this Agreement. The Company shall agree, if requested by Parent in writing, to commit to take any of the forgoing actions with respect to the assets or business of the Company in furtherance of this Section 8.2; provided, however, that any such action may be conditioned upon the consummation of the Merger and other Transactions contemplated by this Agreementsolution so reached.
Appears in 1 contract
Regulatory Filings. (a) Each of Parent From and Acquisition Sub (and their respective Affiliates, if applicable), on the one hand, and the Company, on the other hand, shall (x) file with the FTC and the Antitrust Division of the DOJ a Notification and Report Form relating to this Agreement and the transactions contemplated hereby as required by the HSR Act as soon as reasonably practicable from after the date following execution and delivery of this Agreement but in no event later than ten (10) Business Days following the execution and delivery of this Agreement, and (y) file comparable pre-merger or post-merger notification filingseach party shall, forms and submissions with any foreign Governmental Authority that is required by any other Antitrust Laws as soon promptly as reasonably practicable from the date following execution and delivery of this Agreement but in no event later than ten (10) Business Days following the execution and delivery of this Agreement. Each of Parent and the Company shall possible, (i) cooperate and coordinate with the other in the making of such filings, (ii) supply the other with any information that may be required in order to make such filings, (iii) supply any additional information that reasonably may be required or requested by the FTC, the DOJ or the Governmental Authorities of any other jurisdiction in which any such filing is made under any other Antitrust Laws, and (iv) use reasonable best efforts to take all action necessary to cause the expiration or termination of the applicable waiting periods under the HSR Act or other Antitrust Laws as soon as practicable, and to obtain any required consents under any other Antitrust Laws applicable to the Offer and/or the Merger as soon as practicable, and to avoid any impediment to the consummation of the Offer or the Merger under any Antitrust Laws, including using reasonable best efforts to take all such action as reasonably may be necessary to resolve such objections, if any, as the FTC, the DOJ, or any other Governmental Authority or Person may assert under any applicable Antitrust Laws with respect to the Offer and/or the Merger.
(b) Each of Parent and Acquisition Sub (and their respective Affiliates, if applicable), on the one hand, and the Company, on the other hand, shall promptly inform the other of any communication from any Governmental Authority regarding any of the transactions contemplated by this Agreement in connection with any filings or investigations with, by or before any Governmental Authority relating to this Agreement or the transactions contemplated hereby, including any proceedings initiated by a private party. If any party hereto or Affiliate thereof shall receive a request for additional information or documentary material from any Governmental Authority with respect to the transactions contemplated by this Agreement pursuant to the HSR or any other Antitrust Laws with respect to which any such filings have been made, then such party shall use its reasonable best efforts to make, or cause to be made, as soon as reasonably practicable all filings and after consultation with the other party, an appropriate response in compliance with such request. In connection with and without limiting the foregoing, to the extent reasonably practicable and unless prohibited by applicable Law or by the applicable Governmental Authority, the parties hereto agree to (i) give each other reasonable advance notice of all meetings with any Governmental Authority relating to the Offer or the Merger, (ii) give each other an opportunity to participate in each of such meetings, (iii) keep the other party reasonably apprised with respect to any oral communications with any Governmental Authority regarding the Offer or the Merger, (iv) cooperate in the filing of any analyses, presentations, memoranda, briefs, arguments, opinions or other written communications explaining or defending the Offer and the Merger, articulating any regulatory or competitive argument and/or responding to requests or objections made by any Governmental Authority, (v) provide each other with a reasonable advance opportunity to review and comment upon, and consider in good faith the views of the other with respect to, all written communications (including any analyses, presentations, memoranda, briefs, arguments and opinions) with a Governmental Authority regarding the Offer and the Merger, (vi) provide each other (or counsel of each party, as appropriate) with copies of all written communications to or from any Governmental Authority relating to the Offer or the Merger, and (vii) cooperate and provide each other with a reasonable opportunity to participate in, and consider in good faith the views of the other with respect to, all material deliberations with respect to all efforts to satisfy the conditions set forth in clauses (A) and (C)(1) of Annex A and Section 9.1(c). Any such disclosures, rights to participate or provisions of information by one party to the other may be made on a counsel-only basis to the extent submissions required under any Law applicable Law to such party or as appropriate to protect confidential business information or the attorney client privilege or attorney work product.
(c) Each any of Parent, Acquisition Sub and the Company shall cooperate with one another in good faith to (i) promptly determine whether any filings not contemplated by Section 8.2(a) are required to be or should be made, and whether any other consents, approvals, permits or authorizations not contemplated by Section 8.2(a) are required to be or should be obtained, from any Governmental Authority under any other applicable Law in connection with the transactions contemplated hereby, its Affiliates; and (ii) promptly make any filingsuse commercially reasonable efforts to obtain, furnish information required in connection therewith and seek or cause to obtain timely any such consentsbe obtained, permitsall Consents, authorizations, orders and approvals or waivers from all Governmental Bodies that the parties determine are required to may be or should be made or obtained in connection with the transactions contemplated hereby.
(d) Notwithstanding anything to the contrary in become necessary for its execution and delivery of this Agreement, in connection with any filing or submission required or action the performance of its obligations pursuant to be taken by either Parent or the Company to consummate the Offer this Agreement and the Merger, in no event shall Parent or any transfer of its Subsidiaries or Affiliates be obligated all Acquired Assets to propose or agree to accept any undertaking or condition, to enter into any consent decree, to make any divestiture or accept any operational restriction, or take or commit to take any action (i) the effectiveness or consummation of which is not conditional on the consummation of the Offer and the Merger or (ii) that individually or in the aggregate (x) is or would reasonably be expected to be materially adverse (with materiality, for purposes of this provision, being measured in relation to the size of the Company and its Subsidiaries taken as a whole) to (A) the Company and its Subsidiaries, taken as a whole, or Parent and its Subsidiaries, taken as a whole, either before or after giving effect to the Offer or the Merger, or (B) Parent’s ownership or operation of any material portion of the business or assets of the Company and its Subsidiaries, taken as a whole, or (y) would reasonably be expected to deny Parent the material benefit of the bargains contemplated by the transactions contemplated by this Agreement. The Company shall agree, if requested by Parent in writing, to commit to take any of the forgoing actions with respect to the assets or business of the Company in furtherance of this Section 8.2Purchaser; provided, however, that Purchaser shall be required to pay any fees or other payments to any such Governmental Bodies in order to obtain any such Consent, authorization, order or approval, including any filing fees associated with any filing, notification or notice required to be made hereunder with any Governmental Body, including all fees in connection with transfers and changes to Marketing Authorizations. Each party shall cooperate fully with the other parties and their Affiliates in promptly seeking to obtain all such Consents, authorizations, orders and approvals. The parties shall not willfully take any action may be conditioned upon that will have the consummation effect of delaying, impairing or impeding the receipt of any required Consents, authorizations, orders and approvals.
(b) As soon as practicable but no more than sixty (60) days after Closing, the Sellers will transfer to Purchaser the Marketing Authorization(s) for the Cellvera Products. If the transfer of the Merger Marketing Authorization(s) for the Cellvera Products is not possible within such sixty (60) day period, then the Sellers and Purchaser will use commercially reasonable efforts to complete the transfer as promptly as possible thereafter. For the purpose of such transfer, the Sellers shall transfer or assign the Marketing Authorization(s) for the Cellvera Products to Purchaser and/or cause for the Marketing Authorization(s) for the Cellvera Products to issue in the name of Purchaser and until such transfer or assignment has been effected the Purchaser shall have the right to continue to use, market and sell the Cellvera Products under the Sellers’ existing “Cellvera” artwork, packaging (including patient inserts/leaflets) labelling and any other Transactions contemplated trade dress relating to the Cellvera Products. The Sellers shall execute and deliver all documents reasonably necessary to effect that transfer, assignment or issuance, and take all actions reasonably necessary to effect that transfer, assignment or issuance. The Sellers hereby appoint Purchaser as the Sellers’ attorney-in-fact, with full power of substitution, to execute, deliver and file in the Sellers’ name any documents and take any actions reasonably necessary or desirable to transfer or assign any Marketing Authorization(s) for the Cellvera Product to Purchaser or cause any Marketing Authorization(s) for the Cellvera Product to issue in the name of Purchaser. It is expressly agreed that any communication with Governmental Authorities (including but not limited to the EMA) after Closing by this AgreementSellers or any other entity acting in the name or on behalf of the Sellers requires the prior written approval of Purchaser. After the transfer, Purchaser will be the Marketing Authorization holder and will maintain such Marketing Authorizations. Should there be a variation in any approval by any Governmental Body that would necessitate a variation in Marketing Authorization(s), the Sellers must inform ▇▇▇▇▇▇▇▇▇ as soon as practicable, but not more than fifteen (15) days after such variation has become effective.
Appears in 1 contract
Regulatory Filings. The Company and the Purchasers shall, as promptly as reasonably practicable, (ai) Each of Parent and Acquisition Sub make or cause their Affiliates to make all required filings with the |US-DOCS\142687345.5|| U.S. Federal Trade Commission (and their respective Affiliates, if applicable“FTC”), on the one hand, Department of Justice (“DOJ”) and the Company, on the any other hand, shall (x) file with the FTC and the Antitrust Division of the DOJ a Notification and Report Form relating to this Agreement and the transactions contemplated hereby as governmental entity required by under the HSR Act as soon as reasonably practicable from with respect to the date following execution and delivery of this Agreement but in no event later than ten (10) Business Days following the execution and delivery of this Agreement, and (y) file comparable pre-merger or post-merger notification filings, forms and submissions with any foreign Governmental Authority that is required by any other Antitrust Laws as soon as reasonably practicable from the date following execution and delivery of this Agreement but in no event later than ten (10) Business Days following the execution and delivery of this Agreement. Each of Parent and the Company shall (i) cooperate and coordinate with the other in the making of such filingsTransactions, (ii) supply the other with any information that may be required in order make or cause their Affiliates to make such filings, any filing or notice required under any other antitrust or competition law or other law or regulation agreed by the parties to be applicable to the Transactions (iii) supply provide any additional supplemental information that reasonably may be required requested in connection with the HSR Act or requested by the FTCsuch other antitrust, the DOJ competition or the Governmental Authorities of any other jurisdiction in which any laws or regulations as promptly as practicable after such filing request is made under any other Antitrust Laws, made; and (iv) use their reasonable best efforts to take obtain, or cause to be obtained, all action consents, authorizations, orders and approvals from all Governmental Entities that may be or become necessary in connection with the Transactions; provided that nothing in this Section 6.6 shall require, or be construed to cause require, the expiration Purchasers or termination any of their Affiliates to agree to (x) sell, hold, divest, discontinue or limit, before or after the Closing Date, any assets, businesses or interests of the applicable waiting periods Purchasers or any of their Affiliates; (y) any material conditions relating to, or changes or restrictions in, the operations of any such assets, businesses or interests; or (z) any material modification or waiver of the terms and conditions of this Agreement. The Company and each Purchaser shall, and shall cause its Affiliates to, furnish to the other such information and assistance as the other may reasonably request in connection with its preparation of any filing or submission which is necessary under the HSR Act or such other Antitrust Laws as soon as practicableapplicable law or which is otherwise requested by the FTC or DOJ or other governmental entity and shall keep each other apprised of the status of any communications with, and to obtain any required consents under any other Antitrust Laws applicable to the Offer and/or the Merger as soon as practicable, and to avoid any impediment to the consummation of the Offer inquiries or the Merger under any Antitrust Laws, including using reasonable best efforts to take all such action as reasonably may be necessary to resolve such objections, if any, as the FTC, the DOJ, or any other Governmental Authority or Person may assert under any applicable Antitrust Laws with respect to the Offer and/or the Merger.
(b) Each of Parent and Acquisition Sub (and their respective Affiliates, if applicable), on the one hand, and the Company, on the other hand, shall promptly inform the other of any communication from any Governmental Authority regarding any of the transactions contemplated by this Agreement in connection with any filings or investigations with, by or before any Governmental Authority relating to this Agreement or the transactions contemplated hereby, including any proceedings initiated by a private party. If any party hereto or Affiliate thereof shall receive a request requests for additional information or documentary material from any Governmental Authority with respect to the transactions contemplated by this Agreement pursuant to the HSR or any other Antitrust Laws with respect to which any such filings have been made, then such party shall use its reasonable best efforts to make, or cause to be made, as soon as reasonably practicable and after consultation with the other party, an appropriate response in compliance with such request. In connection with and without limiting the foregoing, to the extent reasonably practicable and unless prohibited by applicable Law or by the applicable Governmental Authorityfrom, the parties hereto agree to (i) give each other reasonable advance notice of all meetings with any Governmental Authority relating to the Offer or the Merger, (ii) give each other an opportunity to participate in each of such meetings, (iii) keep the other party reasonably apprised with respect to any oral communications with any Governmental Authority regarding the Offer or the Merger, (iv) cooperate in the filing of any analyses, presentations, memoranda, briefs, arguments, opinions FTC and DOJ or other written communications explaining or defending the Offer and the Merger, articulating any regulatory or competitive argument and/or responding to requests or objections made by any Governmental Authority, (v) provide each other with a reasonable advance opportunity to review and comment upon, and consider in good faith the views of the other with respect to, all written communications (including any analyses, presentations, memoranda, briefs, arguments and opinions) with a Governmental Authority regarding the Offer and the Merger, (vi) provide each other (or counsel of each party, as appropriate) with copies of all written communications to or from any Governmental Authority relating to the Offer or the Merger, and (vii) cooperate and provide each other with a reasonable opportunity to participate in, and consider in good faith the views of the other with respect to, all material deliberations with respect to all efforts to satisfy the conditions set forth in clauses (A) and (C)(1) of Annex A and Section 9.1(c). Any such disclosures, rights to participate or provisions of information by one party to the other may be made on a counsel-only basis to the extent required under applicable Law or as appropriate to protect confidential business information or the attorney client privilege or attorney work product.
(c) Each of Parent, Acquisition Sub and the Company shall cooperate with one another in good faith to (i) promptly determine whether any filings not contemplated by Section 8.2(a) are required to be or should be made, and whether any other consents, approvals, permits or authorizations not contemplated by Section 8.2(a) are required to be or should be obtained, from any Governmental Authority under any other applicable Law in connection with the transactions contemplated hereby, and (ii) promptly make any filings, furnish information required in connection therewith and seek to obtain timely any such consents, permits, authorizations, approvals or waivers that the parties determine are required to be or should be made or obtained in connection with the transactions contemplated hereby.
(d) Notwithstanding anything to the contrary in this Agreement, in connection with any filing or submission required or action to be taken by either Parent or the Company to consummate the Offer and the Merger, in no event shall Parent or any of its Subsidiaries or Affiliates be obligated to propose or agree to accept any undertaking or condition, to enter into any consent decree, to make any divestiture or accept any operational restriction, or take or commit to take any action (i) the effectiveness or consummation of which is not conditional on the consummation of the Offer and the Merger or (ii) that individually or in the aggregate (x) is or would reasonably be expected to be materially adverse (with materiality, for purposes of this provision, being measured in relation to the size of the Company and its Subsidiaries taken as a whole) to (A) the Company and its Subsidiaries, taken as a whole, or Parent and its Subsidiaries, taken as a whole, either before or after giving effect to the Offer or the Merger, or (B) Parent’s ownership or operation of any material portion of the business or assets of the Company and its Subsidiaries, taken as a whole, or (y) would reasonably be expected to deny Parent the material benefit of the bargains contemplated by the transactions contemplated by this Agreementgovernmental entity. The Company shall agree, if requested by Parent in writing, to commit to take any bear all filing fees of the forgoing actions with respect Parties incurred pursuant to the assets or business of the Company in furtherance of this Section 8.2; provided, however, that any such action may be conditioned upon the consummation of the Merger and other Transactions contemplated by this Agreement6.6.
Appears in 1 contract
Sources: Warrant Purchase Agreement (Kennedy-Wilson Holdings, Inc.)
Regulatory Filings. (a) Each of Parent and Acquisition Sub (and their respective AffiliatesIn connection with the Transactions, if applicable)each Party shall, on the one handas promptly as reasonably practicable, use commercially reasonable efforts to obtain, or cause to be obtained, all consents, authorizations, orders, and the Company, on the other hand, shall (x) file with the FTC and the Antitrust Division of the DOJ a Notification and Report Form relating to this Agreement and the transactions contemplated hereby as required by the HSR Act as soon as reasonably practicable approvals from the date following all Governmental Authorities that may be or become necessary for its execution and delivery of this Agreement but and the performance of its obligations pursuant to this Agreement and the Ancillary Agreements (the “Regulatory Filings”). Each Party shall use commercially reasonable efforts to cooperate fully with the other party and its Affiliates and Representatives in no event later than ten (10) Business Days following the execution and delivery of this Agreementpromptly seeking to obtain all consents, authorizations, orders, and (y) file comparable pre-merger approvals and effect any filing, withdrawal, or post-merger notification filingsamendment. With respect to the Regulatory Filings, forms each Party agrees to use its commercially reasonable efforts and submissions cooperate with any foreign Governmental Authority that is required by any the other Antitrust Laws as soon as reasonably practicable from the date following execution and delivery of this Agreement but in no event later than ten (10) Business Days following the execution and delivery of this Agreement. Each of Parent and the Company shall Parties (i) cooperate and coordinate in timely making inquiries with Governmental Authorities regarding the other in the making of such filingsRegulatory Filings, (ii) supply the other with in determining if any information that may be Regulatory Filings are required in order to make such filingsby Governmental Authorities, (iii) supply any additional information in timely making all Regulatory Filings (except with respect to such jurisdictions where the Parties agree that reasonably may a Regulatory Filing is not required) and directing their respective security holders to make, or cause to be required or requested by the FTCmade, the DOJ or the Governmental Authorities of any other jurisdiction in which any such filing is made under any other Antitrust Lawsall Regulatory Filings as necessary, and (iv) use reasonable best efforts to take all action necessary to cause the expiration or termination of the applicable waiting periods under the HSR Act or other Antitrust Laws as soon as practicable, and to obtain any required consents under any other Antitrust Laws applicable to the Offer and/or the Merger as soon as practicable, and to avoid any impediment to the consummation of the Offer or the Merger under any Antitrust Laws, including using reasonable best efforts to take all such action as reasonably may be necessary to resolve such objections, if any, as the FTC, the DOJ, or any other Governmental Authority or Person may assert under any applicable Antitrust Laws with respect to the Offer and/or the Merger.
(b) Each of Parent and Acquisition Sub (and their respective Affiliates, if applicable), on the one hand, and the Company, on promptly informing the other hand, shall promptly inform the other Parties of any material communication from with any Governmental Authority regarding any the Transactions. Without limiting the generality of the transactions contemplated by this Agreement in connection with foregoing, each Party shall, and, to the extent required, shall cause its Affiliates and Representatives to, (x) make any and all appropriate filings or investigations with, by or before any Governmental Authority relating pursuant to this Agreement or the transactions contemplated hereby, including any proceedings initiated by a private party. If any party hereto or Affiliate thereof shall receive a request for additional information or documentary material from any Governmental Authority HSR Act with respect to the transactions contemplated by this Agreement promptly and as soon as reasonably practical following the date of this Agreement, (y) respond as promptly as reasonably practicable to any requests by any Governmental Authority for additional information and documentary material that may be requested pursuant to the HSR or any other Antitrust Laws with respect to which any such filings have been madeAct, then such party shall use its reasonable best efforts to make, or cause to be made, as soon as reasonably practicable and after consultation with the other party, an appropriate response in compliance with such request. In connection with and without limiting the foregoing, to the extent reasonably practicable and unless prohibited by applicable Law or by (z) request early termination of the applicable Governmental Authoritywaiting period under the HSR Act, if available, and not extend any waiting period or comparable period under the parties hereto agree to (i) give each other reasonable advance notice of all meetings HSR Act or enter into any agreement with any Governmental Authority relating not to consummate the Transactions, except with the prior written consent of the other Parties. Notwithstanding anything herein to the Offer or the Mergercontrary, (ii) give each other an opportunity to participate in each of such meetingsPACI and the Company shall bear 50% of the HSR Act filing fees.
(b) During the Interim Period, (iii) keep PACI and Merger Sub, on the one hand, and each Group Company on the other party reasonably apprised with respect to any oral communications with any Governmental Authority regarding hand, shall give counsel for the Offer or the Merger, Company (iv) cooperate in the filing case of PACI and Merger Sub) or PACI (in the case of any analyses, presentations, memoranda, briefs, arguments, opinions or other written communications explaining or defending the Offer and the Merger, articulating any regulatory or competitive argument and/or responding to requests or objections made by any Governmental Authority, (vGroup Company) provide each other with a reasonable advance opportunity to review and comment uponin advance, and consider in good faith the views of the other with respect toin connection with, all any proposed written communications (including any analyses, presentations, memoranda, briefs, arguments and opinions) with a Governmental Authority regarding the Offer and the Merger, (vi) provide each other (or counsel of each party, as appropriate) with copies of all written communications material communication to or from any Governmental Authority relating to any Regulatory Filing. Each of the Offer Parties agrees not to participate in any substantive meeting or discussion, either in person or by telephone with any Governmental Authority in connection with any Regulatory Filing unless it consults with, in the Mergercase of PACI or Merger Sub, the Company, or, in the case of any Group Company, PACI, in advance and (vii) cooperate and provide each gives such other with a reasonable Party the opportunity to attend and participate inin such meeting or discussion, and consider in good faith the views of the other with respect to, all material deliberations with respect to all efforts to satisfy the conditions set forth in clauses (A) and (C)(1) of Annex A and Section 9.1(c). Any such disclosures, rights to participate or provisions of information by one party to the other may be made on a counsel-only basis to the extent required under applicable Law or as appropriate to protect confidential business information or the attorney client privilege or attorney work productnot prohibited by such Governmental Authority.
(c) Each of ParentNotwithstanding anything in this Agreement to the contrary, Acquisition Sub and the Company nothing in this Section 8.1 shall cooperate with one another in good faith require any Party to (i) promptly determine whether propose, negotiate, commit to, or effect, by consent decree, hold separate order, or otherwise, the sale, transfer, license, divestiture, or other disposition of, or any filings not contemplated by Section 8.2(a) are required to be prohibition or should be madelimitation on the ownership, and whether operation, effective control, or exercise of full rights of ownership of, any other consentsof the businesses, approvalsproduct lines, permits or authorizations not contemplated by Section 8.2(a) are required to be assets of such Party or should be obtained, from any Governmental Authority under any other applicable Law in connection with the transactions contemplated herebyof such Party’s Subsidiaries, and (ii) promptly make defend any filings, furnish information required in connection therewith and Legal Proceeding instituted (or threatened to be instituted) by any Person under any antitrust Law or seek to obtain timely have any such consentsstay, permitsrestraining order, authorizationsinjunction or similar order entered by any Governmental Authority vacated, approvals or waivers that the parties determine are required to be or should be made or obtained in connection with the transactions contemplated hereby.
(d) Notwithstanding anything to the contrary in this Agreementlifted, in connection with any filing or submission required or action to be taken by either Parent or the Company to consummate the Offer and the Merger, in no event shall Parent or any of its Subsidiaries or Affiliates be obligated to propose or agree to accept any undertaking or condition, to enter into any consent decree, to make any divestiture or accept any operational restrictionreversed, or take or commit to take any action (i) the effectiveness or consummation of which is not conditional on the consummation of the Offer and the Merger or (ii) that individually or in the aggregate (x) is or would reasonably be expected to be materially adverse (with materiality, for purposes of this provision, being measured in relation to the size of the Company and its Subsidiaries taken as a whole) to (A) the Company and its Subsidiaries, taken as a whole, or Parent and its Subsidiaries, taken as a whole, either before or after giving effect to the Offer or the Merger, or (B) Parent’s ownership or operation of any material portion of the business or assets of the Company and its Subsidiaries, taken as a whole, or (y) would reasonably be expected to deny Parent the material benefit of the bargains contemplated by the transactions contemplated by this Agreement. The Company shall agree, if requested by Parent in writing, to commit to take any of the forgoing actions with respect to the assets or business of the Company in furtherance of this Section 8.2; provided, however, that any such action may be conditioned upon the consummation of the Merger and other Transactions contemplated by this Agreementoverturned.
Appears in 1 contract
Sources: Business Combination Agreement (PROOF Acquisition Corp I)
Regulatory Filings. (a) Each of Parent Newco and Acquisition Merger Sub (and their respective Affiliates, if applicable), on the one hand, and the Company, on the other hand, shall (xi) file with the FTC and the Antitrust Division of the DOJ a Notification and Report Form relating to this Agreement and the transactions contemplated hereby as required by the HSR Act as soon as reasonably practicable from the date following execution and delivery of this Agreement but in no event later than ten within twenty (1020) Business Days following the execution and delivery of this Agreement, and (yii) file comparable pre-merger or post-merger notification filings, forms and submissions with any foreign Governmental Authority that is required by any other Antitrust Laws as soon as reasonably practicable from the date following execution and delivery of this Agreement but in no event later than ten (10) Business Days following the execution and delivery of this Agreement. Each of Parent Newco and the Company shall (i) cooperate and coordinate with the other in the making of such filings, (ii) supply the other with any information that may be reasonably required in order to make such filings, (iii) supply any additional information that reasonably may be required or requested by the FTC, the DOJ or the Governmental Authorities of any other applicable jurisdiction in which any such filing is made under any other Antitrust Laws, and (iv) use their reasonable best efforts to take all action necessary to cause the expiration or termination of the applicable waiting periods under the HSR Act or other Antitrust Laws as soon as practicable, and to obtain any required consents under any other Antitrust Laws applicable to the Offer and/or the Merger as soon as practicable, and to avoid any impediment to the consummation of the Offer or the Merger under any Antitrust Laws, including using reasonable best efforts to take all such action as reasonably may be necessary to resolve such objections, if any, as the FTC, the DOJ, or any other Governmental Authority or Person may assert under any applicable Antitrust Laws with respect to the Offer and/or the Merger.
(b) . Each of Parent Newco and Acquisition Merger Sub (and their respective Affiliates, if applicable), on the one hand, and the Company, on the other hand, shall promptly inform the other of any communication from any Governmental Authority regarding any of the transactions contemplated by this Agreement in connection with any filings or investigations with, by or before any Governmental Authority relating to this Agreement or the transactions contemplated hereby, including any proceedings initiated by a private partysuch filings. If any party hereto or Affiliate thereof shall receive a request for additional information or documentary material from any Governmental Authority with respect to the transactions contemplated by this Agreement pursuant to the HSR or any other Antitrust Laws with respect to which any such filings have been made, then such party shall use its reasonable best efforts to make, or cause to be made, as soon as reasonably practicable and after consultation with the other party, an appropriate response in compliance with such request. In connection with and without limiting Notwithstanding the foregoing, neither Newco nor any of its Affiliates shall be required to the extent reasonably practicable and unless prohibited by applicable Law divest or by the applicable Governmental Authorityhold separate, the parties hereto agree or otherwise take or commit to (i) give each other reasonable advance notice take any action that limits its freedom of all meetings with any Governmental Authority relating to the Offer or the Merger, (ii) give each other an opportunity to participate in each of such meetings, (iii) keep the other party reasonably apprised action with respect to any oral communications with any Governmental Authority regarding the Offer or the Merger, (iv) cooperate in the filing of any analyses, presentations, memoranda, briefs, arguments, opinions or other written communications explaining or defending the Offer and the Merger, articulating any regulatory or competitive argument and/or responding to requests or objections made by any Governmental Authority, (v) provide each other with a reasonable advance opportunity to review and comment upon, and consider in good faith the views of the other with respect to, all written communications (including any analyses, presentations, memoranda, briefs, arguments and opinions) with a Governmental Authority regarding the Offer and the Merger, (vi) provide each other (or counsel its ability to retain), any of each partyits businesses, as appropriate) with copies of all written communications assets or product lines or that otherwise would reasonably be expected to or materially adversely affect the benefits that Newco and its Affiliates expect to derive from any Governmental Authority relating to the Offer or the Merger, and (vii) cooperate and provide each other with a reasonable opportunity to participate in, and consider in good faith the views of the other with respect to, all material deliberations with respect to all efforts to satisfy the conditions set forth in clauses (A) and (C)(1) of Annex A and Section 9.1(c). Any such disclosures, rights to participate or provisions of information transactions contemplated by one party to the other may be made on a counsel-only basis to the extent required under applicable Law or as appropriate to protect confidential business information or the attorney client privilege or attorney work productthis Agreement.
(cb) Each of ParentNewco, Acquisition Merger Sub and the Company shall cooperate with one another in good faith to (i) promptly determine whether any filings not contemplated by Section 8.2(a6.2(a) are required to be or should be made, and whether any other consents, approvals, permits or authorizations not contemplated by Section 8.2(a6.2(a) are required to be or should be obtained, from any Governmental Authority under any other applicable Law in connection with the transactions contemplated hereby, and (ii) promptly make any filings, furnish information required in connection therewith and seek use their best efforts to obtain timely any such consents, permits, authorizations, approvals or waivers that the parties determine are required to be or should be made or obtained in connection with the transactions contemplated hereby.
(d) Notwithstanding anything to the contrary in this Agreement, in connection with any filing or submission required or action to be taken by either Parent or the Company to consummate the Offer and the Merger, in no event shall Parent or any of its Subsidiaries or Affiliates be obligated to propose or agree to accept any undertaking or condition, to enter into any consent decree, to make any divestiture or accept any operational restriction, or take or commit to take any action (i) the effectiveness or consummation of which is not conditional on the consummation of the Offer and the Merger or (ii) that individually or in the aggregate (x) is or would reasonably be expected to be materially adverse (with materiality, for purposes of this provision, being measured in relation to the size of the Company and its Subsidiaries taken as a whole) to (A) the Company and its Subsidiaries, taken as a whole, or Parent and its Subsidiaries, taken as a whole, either before or after giving effect to the Offer or the Merger, or (B) Parent’s ownership or operation of any material portion of the business or assets of the Company and its Subsidiaries, taken as a whole, or (y) would reasonably be expected to deny Parent the material benefit of the bargains contemplated by the transactions contemplated by this Agreement. The Company shall agree, if requested by Parent in writing, to commit to take any of the forgoing actions with respect to the assets or business of the Company in furtherance of this Section 8.2; provided, however, that any such action may be conditioned upon the consummation of the Merger and other Transactions contemplated by this Agreement.
Appears in 1 contract
Sources: Merger Agreement (Acxiom Corp)
Regulatory Filings. (a) Each of Parent Parent, Merger Sub and Acquisition Sub (the Company and their respective Affiliates, if applicable), on the each Company Subsidiary will coordinate and cooperate with one handanother and will each use all reasonable efforts to comply with, and will each refrain from taking any action that would impede compliance with, all Legal Requirements and to seek all Approvals of any Governmental or Regulatory Authority that are necessary to consummate the Company, on Merger and the other handtransactions contemplated hereby. In furtherance thereof, as promptly as practicable after the execution and delivery of this Agreement by each of the parties hereto, each of Parent, Merger Sub, the Company and each Signatory Stockholder (as applicable) shall (x) file make all filings, notices, petitions, statements, registrations, submissions of information, application or submission of other documents required by any Governmental or Regulatory Authority in connection with the FTC Mergers and the other transactions contemplated hereby, including (i) Notification and Report Forms with the United States Federal Trade Commission (the “FTC”) and the Antitrust Division of the DOJ a Notification and Report Form relating to this Agreement and the transactions contemplated hereby United States Department of Justice (“DOJ”) as required by the HSR Act Act, (ii) any other filing necessary to obtain any Company Necessary Consent, (iii) filings under any other comparable pre merger notification forms required by the merger notification or control laws of any applicable jurisdiction, as soon as reasonably practicable from agreed by the date following execution and delivery of this Agreement but in no event later than ten (10) Business Days following the execution and delivery of this Agreement, parties hereto and (yiv) file comparable pre-merger any filings required under the Securities Act, the Exchange Act, any applicable state or post-merger notification filingssecurities or “blue sky” laws, forms French Law, regulations of the AMF or Euronext and submissions with the securities laws of any foreign Governmental Authority that is required by country, or any other Antitrust Laws as soon as reasonably practicable from Legal Requirement relating to the date following execution and delivery of this Agreement but in no event later than ten (10) Business Days following the execution and delivery of this AgreementMerger. Each of Parent and the Company shall will cause all documents that it is responsible for filing with any Governmental or Regulatory Authority under this Section 5.16(a) to comply in all material respects with all applicable Legal Requirements.
(ib) cooperate Parent, Merger Sub and coordinate with the other in the making of such filings, (ii) Company each will promptly supply the other with any information that which may be required in order to make such filingseffectuate any filings or application pursuant to Section 5.12(a). Except where prohibited by applicable Legal Requirements, (iii) supply any additional information that reasonably may be required or requested by and subject to the FTCConfidentiality Agreement, the DOJ or the Governmental Authorities of any other jurisdiction in which any such filing is made under any other Antitrust Laws, and (iv) use reasonable best efforts to take all action necessary to cause the expiration or termination of the applicable waiting periods under the HSR Act or other Antitrust Laws as soon as practicable, and to obtain any required consents under any other Antitrust Laws applicable to the Offer and/or the Merger as soon as practicable, and to avoid any impediment to the consummation of the Offer or the Merger under any Antitrust Laws, including using reasonable best efforts to take all such action as reasonably may be necessary to resolve such objections, if any, as the FTC, the DOJ, or any other Governmental Authority or Person may assert under any applicable Antitrust Laws Company shall consult with respect to the Offer and/or the Merger.
(b) Each of Parent and Acquisition Sub (and their respective Affiliates, if applicable), on the one hand, and Parent shall consult with the Company, on the other hand, shall promptly inform the other of any communication from any Governmental Authority regarding any of the transactions contemplated by this Agreement in connection with any filings or investigations with, by or before any Governmental Authority relating prior to this Agreement or the transactions contemplated hereby, including any proceedings initiated by taking a private party. If any party hereto or Affiliate thereof shall receive a request for additional information or documentary material from any Governmental Authority with respect to the transactions contemplated by this Agreement pursuant to the HSR or any other Antitrust Laws with respect to which any such filings have been made, then such party shall use its reasonable best efforts to make, or cause to be made, as soon as reasonably practicable and after consultation with the other party, an appropriate response in compliance with such request. In connection with and without limiting the foregoing, to the extent reasonably practicable and unless prohibited by applicable Law or by the applicable Governmental Authority, the parties hereto agree to (i) give each other reasonable advance notice of all meetings with any Governmental Authority relating to the Offer or the Merger, (ii) give each other an opportunity to participate in each of such meetings, (iii) keep the other party reasonably apprised position with respect to any oral communications with any Governmental Authority regarding such filing and each shall permit the Offer or the Merger, (iv) cooperate in the filing of any analyses, presentations, memoranda, briefs, arguments, opinions or other written communications explaining or defending the Offer and the Merger, articulating any regulatory or competitive argument and/or responding to requests or objections made by any Governmental Authority, (v) provide each other with a reasonable advance opportunity to review and comment upondiscuss in advance, and consider in good faith the views of the other in connection with respect to, all written communications (including any analyses, appearances, presentations, memoranda, briefs, arguments white papers, arguments, opinions and opinions) proposals before making or submitting any of the foregoing to any Governmental or Regulatory Authority by or on behalf of any party hereto in connection with a Governmental Authority regarding any investigations or proceedings related solely to this Agreement, the Offer Merger or the other transactions contemplated hereby (including under any antitrust or fair trade Legal Requirement), coordinate with the other in preparing and exchanging such information and promptly provide the Merger, (vi) provide each other (or counsel of each party, as appropriateand its counsel) with copies of all written communications to filings, presentations or from submissions (and a summary of any oral presentations) made by such party with any Governmental or Regulatory Authority relating related solely to this Agreement, the Offer Merger or the Mergerother transactions contemplated hereby; provided, and (vii) cooperate and provide each other with a reasonable opportunity to participate inhowever, and consider in good faith the views of the other with respect to, all material deliberations that with respect to all efforts to satisfy any such filing, presentation or submission, neither the conditions set forth in clauses (A) and (C)(1) of Annex A and Section 9.1(c). Any such disclosures, rights to participate or provisions of information by one party to Company nor Parent need supply the other may be made on (or its counsel) with copies (or in case of oral presentations, a counsel-only basis summary) to the extent required under that any Law of any Governmental or Regulatory Authority applicable Law to such party may reasonably require such party or as appropriate its Subsidiaries to protect confidential business information restrict or the attorney client privilege prohibit access to any such properties or attorney work productinformation.
(c) Each of Parent, Acquisition Sub Parent and the Company shall cooperate with one another in good faith to promptly notify the other upon its receipt of (i) promptly determine whether any filings not contemplated by Section 8.2(a) are required to be or should be made, and whether any other consents, approvals, permits or authorizations not contemplated by Section 8.2(a) are required to be or should be obtained, comments from any officials of any Governmental or Regulatory Authority under any other applicable Law in connection with the transactions contemplated hereby, any filings made pursuant hereto and (ii) promptly make any filingsrequest by any officials of any Governmental or Regulatory Authority for amendments or supplements to any filings made pursuant to, furnish or information required provided to comply in connection therewith and seek to obtain timely all material respects with, any such consents, permits, authorizations, approvals or waivers Legal Requirements. Whenever any event occurs that the parties determine are is required to be set forth in an amendment or should be supplement to any filing made pursuant to Section 5.7(a), Parent or obtained the Company, as the case may be, shall promptly inform the other of such occurrence and cooperate in connection filing with the transactions contemplated herebyapplicable Governmental or Regulatory Authority such amendment or supplement.
(d) Notwithstanding anything to the contrary in this Agreement, nothing contained in connection with any filing or submission required or action this Agreement will be deemed to be taken by either Parent or the Company to consummate the Offer and the Mergerrequire Parent, in no event shall Parent or any of its Subsidiaries Subsidiaries, the Company or any of its Subsidiaries, or any of their respective Affiliates be obligated or Associates, to propose (i) except to the extent provided under Section 5.6(a), litigate or agree to accept litigate against any undertaking Governmental or condition, to enter into any consent decree, to make any divestiture or accept any operational restriction, or take or commit to take any action (i) the effectiveness or consummation of which is not conditional on the consummation of the Offer and the Merger Regulatory Authority or (ii) that individually take or in agree to take any Action of Divestiture which would be reasonably likely to materially adversely impact the aggregate benefits expected to be derived by Parent and its Subsidiaries from the Merger and the other transactions contemplated hereby. For purposes of this Agreement, an “Action of Divestiture” will mean (x) is making proposals, executing or would reasonably be expected carrying out agreements or submitting to be materially adverse Legal Requirements providing for the license, sale or other disposition or holding separate (with materialitythrough the establishment of a trust or otherwise) of any assets or categories of assets that are material to Parent, for purposes any subsidiary of this provisionthe Parent, being measured in relation to the size Company or any subsidiary of the Company and its Subsidiaries taken as a whole) or the holding separate of Company capital stock or imposing or seeking to (A) impose any limitation on the ability of Parent, any subsidiary of the Parent, the Company and its Subsidiaries, taken as a whole, or Parent and its Subsidiaries, taken as a whole, either before or after giving effect to the Offer or the Merger, or (B) Parent’s ownership or operation of any material portion subsidiary of the business Company, to conduct their respective businesses or own such assets or to acquire, hold or exercise full rights of ownership of the Company and its Subsidiaries, taken as a whole, Company’s business or (y) would reasonably be expected otherwise taking any step to deny Parent the material benefit of the bargains contemplated by the transactions contemplated by this Agreement. The Company shall agree, if requested by Parent in writing, to commit to take avoid or eliminate any of the forgoing actions with respect to the assets or business of the Company in furtherance of this Section 8.2; provided, however, that any such action impediment which may be conditioned upon the consummation of the Merger and other Transactions contemplated by this Agreementasserted under any Legal Requirement governing competition, monopolies or restrictive trade practices.
Appears in 1 contract
Regulatory Filings. Seller and Purchaser shall cooperate with one another in (ai) Each of Parent and Acquisition Sub (and their respective Affiliatesdetermining whether any action, if applicable)consent, on approval or waiver by or in respect of, or filing with, any Governmental Authority is required in connection with this Agreement or the one hand, and the Company, on the other hand, shall (x) file with the FTC and the Antitrust Division consummation of the DOJ transactions contemplated herein and (ii) taking such actions or making any such filings, furnishing information required in connection therewith and seeking timely to obtain any such actions, consents, approvals or waivers. In furtherance and not in limitation of the foregoing, Purchaser and Seller agree to make (or cause to be made) any required filing of a Notification and Report Form relating pursuant to this Agreement the ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Antitrust Improvements Act of 1976, as amended (the “HSR Act”) and appropriate filings under any other Laws (including the ▇▇▇▇▇▇▇ Act, as amended, the ▇▇▇▇▇▇▇ Act, as amended and the Federal Trade Commission Act, as amended) that are designed or intended to prohibit, restrict or regulate actions having the purpose or effect of monopolization or restraint of trade or lessening of competition (“Antitrust Laws”) with respect to the transactions contemplated hereby as required by the HSR Act promptly as soon as reasonably practicable from the date following execution practicable, and delivery of this Agreement but in no any event later than within ten (10) Business Days following after the execution date hereof and delivery of this Agreement, to supply as promptly as practicable any additional information and (y) file comparable pre-merger or post-merger notification filings, forms documentary material that may be requested pursuant to the HSR Act and submissions with any foreign Governmental Authority that is required by any other Antitrust Laws as soon as reasonably practicable from the date following execution and delivery of this Agreement but in no event later than ten (10) Business Days following the execution and delivery of this Agreement. Each of Parent and the Company shall (i) cooperate and coordinate with the other in the making of such filings, (ii) supply the other with any information that may be required in order to make such filings, (iii) supply any additional information that reasonably may be required or requested by the FTC, the DOJ or the Governmental Authorities of any other jurisdiction in which any such filing is made under any other Antitrust Laws, and (iv) use its commercially reasonable best efforts to take all action other actions necessary to cause the expiration or termination of the applicable waiting periods period under the HSR Act or other Antitrust Laws as soon as practicable; provided, however, that neither Seller, the Companies nor their respective Affiliates shall be under any obligation to divest or hold separate any assets, enter or consent to any settlement or decree or expend any sums to comply with this Section 2.3 (other than attorneys’ fees and expenses and filing fees in connection with such filing). Any filing fees incurred in connection with the performance of this Section 2.3 shall be borne by Purchaser. Purchaser and Seller shall use their respective commercially reasonable efforts to cooperate in all respects with each other in connection with any filing or submission and to obtain any required consents under any other Antitrust Laws applicable to the Offer and/or the Merger as soon as practicable, and to avoid any impediment to the consummation of the Offer or the Merger under any Antitrust Laws, including using reasonable best efforts to take all such action as reasonably may be necessary to resolve such objections, if any, as the FTC, the DOJ, or any other Governmental Authority or Person may assert under any applicable Antitrust Laws with respect to the Offer and/or the Merger.
(bi) Each of Parent and Acquisition Sub (and their respective Affiliates, if applicable), on the one hand, and the Company, on the other hand, shall promptly inform the other Party of any communication from or to, and any proposed understanding or agreement with, any Governmental Authority regarding any (as defined below) in respect of such filings; and (ii) consult and cooperate with the transactions contemplated by this Agreement other Party in connection with any filings or investigations with, by or before any Governmental Authority relating to this Agreement or the transactions contemplated hereby, including any proceedings initiated by a private party. If any party hereto or Affiliate thereof shall receive a request for additional information or documentary material from any Governmental Authority with respect to the transactions contemplated by this Agreement pursuant to the HSR or any other Antitrust Laws with respect to which any such filings have been made, then such party shall use its reasonable best efforts to make, or cause to be made, as soon as reasonably practicable and after consultation with the other party, an appropriate response in compliance with such request. In connection with and without limiting the foregoing, to the extent reasonably practicable and unless prohibited by applicable Law or by the applicable Governmental Authority, the parties hereto agree to (i) give each other reasonable advance notice of all meetings with any Governmental Authority relating to the Offer or the Merger, (ii) give each other an opportunity to participate in each of such meetings, (iii) keep the other party reasonably apprised with respect to any oral communications with any Governmental Authority regarding the Offer or the Merger, (iv) cooperate in the filing of any analyses, presentations, memoranda, briefs, arguments, opinions or other written communications explaining or defending the Offer and the Merger, articulating any regulatory or competitive argument and/or responding to requests or objections made by any Governmental Authority, (v) provide each other with a reasonable advance opportunity to review and comment upon, and consider in good faith the views of the other with respect to, all written communications (including any analysesappearances, presentations, memoranda, briefs, arguments and opinions) with a Governmental Authority regarding the Offer and the Merger, (vi) provide each other (opinions made or counsel submitted by or on behalf of each party, as appropriate) with copies of all written communications to or from any Governmental Authority relating to the Offer or the Merger, and (vii) cooperate and provide each other with a reasonable opportunity to participate in, and consider in good faith the views of the other with respect to, all material deliberations with respect to all efforts to satisfy the conditions set forth in clauses (A) and (C)(1) of Annex A and Section 9.1(c). Any such disclosures, rights to participate or provisions of information by one party to the other may be made on a counsel-only basis to the extent required under applicable Law or as appropriate to protect confidential business information or the attorney client privilege or attorney work product.
(c) Each of Parent, Acquisition Sub and the Company shall cooperate with one another in good faith to (i) promptly determine whether any filings not contemplated by Section 8.2(a) are required to be or should be made, and whether any other consents, approvals, permits or authorizations not contemplated by Section 8.2(a) are required to be or should be obtained, from any Governmental Authority under any other applicable Law Party in connection with the transactions contemplated herebyall meetings, actions and (ii) promptly make any proceedings with Governmental Authorities relating to such filings, furnish information required in connection therewith and seek to obtain timely any such consents, permits, authorizations, approvals or waivers that the parties determine are required to be or should be made or obtained in connection with the transactions contemplated hereby.
(d) . Notwithstanding anything to the contrary in this Agreementcontained herein, in connection with Purchaser shall not be required to take any filing or submission required or action to be taken by either Parent or the Company to consummate the Offer and the Mergeraction, in no event shall Parent or any of its Subsidiaries or Affiliates be obligated to propose or agree to accept any undertaking or condition, to enter including entering into any consent decree, to make any divestiture hold separate orders or accept any operational restrictionother arrangements, or take or commit to take any action that (i) requires the effectiveness divestiture of any assets of Purchaser, either Company or consummation any of which is not conditional on the consummation of the Offer and the Merger or their respective Affiliates; (ii) that individually causes Purchaser or in the aggregate (x) is any of its Affiliates to litigate, pursue or would reasonably be expected to be materially adverse (with materiality, for purposes defend any action or proceeding challenging any of this provision, being measured in relation to the size of the Company and its Subsidiaries taken as a whole) to (A) the Company and its Subsidiaries, taken as a whole, or Parent and its Subsidiaries, taken as a whole, either before or after giving effect to the Offer or the Merger, or (B) Parent’s ownership or operation of any material portion of the business or assets of the Company and its Subsidiaries, taken as a whole, or (y) would reasonably be expected to deny Parent the material benefit of the bargains contemplated by the transactions contemplated by this Agreement. The Company shall agree, if requested by Parent in writing, to commit to take hereby as violative of the HSR Act or other Law; (iii) subjects Purchaser or any of the forgoing actions its Affiliates to liability or (iv) limits Purchaser’s freedom of action with respect to, or its ability to retain, the ownership of the Interests, the businesses of either Company or any portion thereof or any of Purchaser’s or its Affiliates’ assets or business of the Company in furtherance of this Section 8.2; providedbusinesses. “Governmental Authority” shall mean any federal, howeverstate, that provincial, municipal, local or foreign government, governmental or quasi-governmental authority, regulatory or administrative agency, governmental commission, department, board, bureau, agency, instrumentality, court, tribunal or similar body exercising, or entitled to exercise, any such action may be conditioned upon the consummation of the Merger and other Transactions contemplated by this Agreementadministrative, executive, judicial, legislative, police, regulatory or taxing authority or power.
Appears in 1 contract
Regulatory Filings. (a) Each of Parent and Acquisition Sub (and their respective Affiliates, if applicable), on the one hand, and the Company, on the other hand, Buyer shall (x) file with the FTC and the Antitrust Division of the DOJ a Notification and Report Form relating make or cause to this Agreement and the transactions contemplated hereby as required by the HSR Act as soon as reasonably practicable from the date following execution and delivery of this Agreement but in no event later than ten (10) Business Days following the execution and delivery of this Agreement, and (y) file comparable pre-merger or post-merger notification filings, forms be made all filings and submissions with any foreign Governmental Authority that is required by any other Antitrust Laws as soon as reasonably practicable from the date following execution and delivery of this Agreement but in no event later than ten (10) Business Days following the execution and delivery of this Agreement. Each of Parent and the Company shall (i) cooperate and coordinate with the other in the making of such filings, (ii) supply the other with any information that may be required in order to make such filings, (iii) supply any additional information that reasonably may be required or requested by the FTC, the DOJ or the Governmental Authorities of any other jurisdiction in which any such filing is made under any other Antitrust Laws, and (iv) use reasonable best efforts to take all action necessary to cause the expiration or termination of the applicable waiting periods under the HSR Act or other Antitrust Laws as soon as practicable, and to obtain any required consents under any other Antitrust Laws laws or regulations applicable to the Offer and/or the Merger as soon as practicable, Buyer and to avoid any impediment to its Subsidiaries for the consummation of the Offer or transactions contemplated herein, such filings and submissions to be made promptly (and in the Merger under any Antitrust Lawscase of the initial HSR Act filing, including using reasonable best efforts to take all such action as promptly as reasonably may be necessary practicable, but in any event not later than 10 business days from the date hereof). Subject to resolve such objections, if any, as applicable laws relating to the FTCexchange of information, the DOJCompany shall have the right to review in advance, or any other Governmental Authority or Person may assert under any applicable Antitrust Laws with respect and to the Offer and/or extent practicable will consult with Buyer on, all the Mergerinformation that appears in any such filings. In exercising the foregoing right, the Company shall act reasonably and as promptly as practicable.
(b) Each Buyer shall keep the Company apprised of Parent the status of all filings and Acquisition Sub (and their respective Affiliates, if applicablesubmissions referred to in Section 7.04(a), on including promptly furnishing the one hand, and the Company, on the Company with copies of notices or other hand, communications received by Buyer in connection therewith. Buyer shall promptly inform the other of any communication from any Governmental Authority regarding not permit any of the transactions contemplated by this Agreement its officers, employees or other representatives or agents to participate in connection any meeting with any filings or investigations with, by or before any Governmental Authority relating to this Agreement or the transactions contemplated hereby, including any proceedings initiated by a private party. If any party hereto or Affiliate thereof shall receive a request for additional information or documentary material from any Governmental Authority with governmental authority in respect to the transactions contemplated by this Agreement pursuant to the HSR or any other Antitrust Laws with respect to which any of such filings have been made, then such party shall use its reasonable best efforts to make, or cause to be made, as soon as reasonably practicable and after consultation submissions unless it consults with the other party, an appropriate response Company in compliance with such request. In connection with and without limiting the foregoingadvance and, to the extent reasonably practicable and unless prohibited permitted by applicable Law or by such governmental authority, gives the applicable Governmental Authority, Company the parties hereto agree to (i) give each other reasonable advance notice of all meetings with any Governmental Authority relating to the Offer or the Merger, (ii) give each other an opportunity to attend and participate in each of such meetings, (iii) keep the other party reasonably apprised with respect to any oral communications with any Governmental Authority regarding the Offer or the Merger, (iv) cooperate in the filing of any analyses, presentations, memoranda, briefs, arguments, opinions or other written communications explaining or defending the Offer and the Merger, articulating any regulatory or competitive argument and/or responding to requests or objections made by any Governmental Authority, (v) provide each other with a reasonable advance opportunity to review and comment upon, and consider in good faith the views of the other with respect to, all written communications (including any analyses, presentations, memoranda, briefs, arguments and opinions) with a Governmental Authority regarding the Offer and the Merger, (vi) provide each other (or counsel of each party, as appropriate) with copies of all written communications to or from any Governmental Authority relating to the Offer or the Merger, and (vii) cooperate and provide each other with a reasonable opportunity to participate in, and consider in good faith the views of the other with respect to, all material deliberations with respect to all efforts to satisfy the conditions set forth in clauses (A) and (C)(1) of Annex A and Section 9.1(c). Any such disclosures, rights to participate or provisions of information by one party to the other may be made on a counsel-only basis to the extent required under applicable Law or as appropriate to protect confidential business information or the attorney client privilege or attorney work productthereat.
(c) Each of Parent, Acquisition Sub and the Company shall cooperate with one another in good faith to If any administrative or judicial action or proceeding is instituted (i) promptly determine whether any filings not contemplated by Section 8.2(a) are required or threatened to be or should be made, and whether any other consents, approvals, permits or authorizations not contemplated by Section 8.2(a) are required to be or should be obtained, from any Governmental Authority under any other applicable Law in connection with the transactions contemplated hereby, and (ii) promptly make any filings, furnish information required in connection therewith and seek to obtain timely any such consents, permits, authorizations, approvals or waivers that the parties determine are required to be or should be made or obtained in connection with the transactions contemplated hereby.
(d) Notwithstanding anything to the contrary in this Agreement, in connection with any filing or submission required or action to be taken by either Parent or the Company to consummate the Offer and the Merger, in no event shall Parent or any of its Subsidiaries or Affiliates be obligated to propose or agree to accept any undertaking or condition, to enter into any consent decree, to make any divestiture or accept any operational restriction, or take or commit to take any action (i) the effectiveness or consummation of which is not conditional on the consummation of the Offer and the Merger or (ii) that individually or in the aggregate (x) is or would reasonably be expected to be materially adverse (with materiality, for purposes of this provision, being measured in relation to the size of the Company and its Subsidiaries taken as a wholeinstituted) to (A) the Company and its Subsidiaries, taken as a whole, or Parent and its Subsidiaries, taken as a whole, either before or after giving effect to the Offer or the Merger, or (B) Parent’s ownership or operation of any material portion of the business or assets of the Company and its Subsidiaries, taken as a whole, or (y) would reasonably be expected to deny Parent the material benefit of the bargains contemplated by prohibit the transactions contemplated by this Agreement. The Company , Buyer shall agree, if requested by Parent in writing, use its reasonable efforts to commit to take any avoid the institution of the forgoing actions with respect to the assets or business of the Company in furtherance of this Section 8.2; provided, however, that any such action may be conditioned upon the or proceeding and to contest and resist any such action or proceeding and to have vacated, lifted, reversed or overturned any temporary, preliminary or permanent decree, judgment, injunction or other order that is in effect and that prohibits, prevents, delays or restricts consummation of the Merger transactions contemplated hereby (it being understood that the foregoing obligation of Buyer will cease in the event a permanent decree, judgment, injunction or other order is issued or is in effect that is non-appealable and other Transactions prohibits, prevents, delays or restricts consummation of the transactions contemplated by this Agreementhereby).
Appears in 1 contract
Sources: Unit Purchase Agreement (Alliance Laundry Systems LLC)
Regulatory Filings. Without limiting the generality of Section 5.1,
(a) Each of In the event Parent determines in good faith (after reasonably consulting with and Acquisition Sub providing reasonable information requested by Buyer) that it is necessary, required or advisable to make a filing or filings under any Antitrust Laws, it shall notify Buyer in writing (a “Filing Notice”) and their respective Affiliates, if applicable), on the one handeach party shall, and shall cause its Affiliates to, use its reasonable best efforts to (i) file as soon as reasonably practicable or advisable after Buyer receives the Company, on the other hand, shall Filing Notice (x) file with the FTC and the Antitrust Division of the DOJ a Notification and Report Form relating to this Agreement and the transactions contemplated hereby as extent required by the HSR Act as soon as reasonably practicable from with respect to the date following execution and delivery of this Agreement but in no event later than ten (10) Business Days following the execution and delivery of this Agreement, Transactions and (y) file comparable pre-merger any other filing or post-merger notification filings, forms and submissions with any foreign Governmental Authority that is required by pursuant to any other Antitrust Laws as soon as reasonably practicable from Law applicable to the date following execution and delivery of this Agreement but in no event later than ten (10) Business Days following the execution and delivery of this Agreement. Each of Parent and the Company shall (i) cooperate and coordinate with the other in the making of such filingsTransactions, (ii) supply the other with as promptly as practicable any additional information and documentary material that may be requested or required in order pursuant to make such filingsany Antitrust Law, including the HSR Act, and (iii) supply any additional information that reasonably may be required or requested by the FTC, the DOJ or the Governmental Authorities of any other jurisdiction in which any such filing is made under any other Antitrust Laws, and (iv) use reasonable best efforts to take all action necessary to cause the expiration or termination of the applicable waiting periods under the HSR Act or any other Antitrust Laws Law as soon as practicable, and to obtain any . Buyer shall pay all filing fees required consents under any other Antitrust Laws applicable to the Offer and/or the Merger as soon as practicable, and to avoid any impediment to the consummation of the Offer or the Merger under any Antitrust Laws, including using reasonable best efforts to take all such action as reasonably may be necessary to resolve such objections, if any, as the FTC, the DOJ, or any other Governmental Authority or Person may assert under any applicable Antitrust Laws with respect to the Offer and/or the Merger.
(b) Each of Parent and Acquisition Sub (and their respective Affiliates, if applicable), on the one hand, and the Company, on the other hand, shall promptly inform the other of any communication from any Governmental Authority regarding any of the transactions contemplated by this Agreement in connection with any filings or investigations with, by or before any Governmental Authority relating to this Agreement or the transactions contemplated hereby, including any proceedings initiated by a private party. If any party hereto or Affiliate thereof shall receive a request for additional information or documentary material from any Governmental Authority with respect to the transactions contemplated by this Agreement pursuant to the HSR Act or any other Antitrust Laws with respect to which any such filings have been made, then such party shall Law. Each of the Buyer and ▇▇▇▇▇▇ agrees that it will use its reasonable best efforts to make, or cause to be made, as soon as reasonably practicable demonstrate that Buyer is an acceptable purchaser of the Purchased Assets and after consultation with Purchased Entities and that Buyer will compete effectively using the other party, an appropriate response in compliance with such request. Purchased Assets and Purchased Entities.
(b) In connection with the efforts referenced in Section 5.1 and without limiting this Section 5.17 to obtain all requisite Governmental Approvals for the foregoingTransactions and the Amedisys Transaction under the HSR Act, to the extent reasonably practicable and unless prohibited by applicable any other Antitrust Law or by the applicable Governmental Authorityany Healthcare Law, each of the parties hereto agree to (i) give each other shall use reasonable advance notice of all meetings with any Governmental Authority relating to the Offer or the Merger, (ii) give each other an opportunity to participate in each of such meetings, (iii) keep the other party reasonably apprised with respect to any oral communications with any Governmental Authority regarding the Offer or the Merger, (iv) cooperate in the filing of any analyses, presentations, memoranda, briefs, arguments, opinions or other written communications explaining or defending the Offer and the Merger, articulating any regulatory or competitive argument and/or responding to requests or objections made by any Governmental Authority, (v) provide each other with a reasonable advance opportunity to review and comment upon, and consider in good faith the views of the other with respect to, all written communications (including any analyses, presentations, memoranda, briefs, arguments and opinions) with a Governmental Authority regarding the Offer and the Merger, (vi) provide each other (or counsel of each party, as appropriate) with copies of all written communications to or from any Governmental Authority relating to the Offer or the Merger, and (vii) cooperate and provide each other with a reasonable opportunity to participate in, and consider in good faith the views of the other with respect to, all material deliberations with respect to all best efforts to satisfy the conditions set forth in clauses (A) and (C)(1) of Annex A and Section 9.1(c). Any such disclosures, rights to participate or provisions of information by one party to the other may be made on a counsel-only basis to the extent required under applicable Law or as appropriate to protect confidential business information or the attorney client privilege or attorney work product.
(c) Each of Parent, Acquisition Sub and the Company shall cooperate with one another in good faith to (i) promptly determine whether notify the other party of any filings not contemplated by Section 8.2(a) are required to be substantive communication it or should be made, and whether any other consents, approvals, permits or authorizations not contemplated by Section 8.2(a) are required to be or should be obtained, of its Affiliates receives from any Governmental Authority under any other applicable Law Entity in connection with any of the transactions contemplated herebyTransactions and, and in the case of written substantive communications, provide copies thereof to the other party, (ii) promptly make any filings, furnish information required in connection therewith and seek to obtain timely any such consents, permits, authorizations, approvals or waivers that the parties determine are required to be or should be made or obtained in connection cooperate with the transactions contemplated hereby.
(d) Notwithstanding anything to the contrary in this Agreement, each other in connection with any filing or submission required and in connection with any investigation or action other inquiry brought by any Governmental Entity in connection with the Transactions, (iii) provide each other with advance copies and a reasonable opportunity to comment on all material proposed notices, submissions, filings, applications, undertakings, and information and correspondence proposed to be taken supplied to or filed with any Governmental Entity, except the parties’ HSR Act filings, or in connection with any proceeding by either a private party, in each case related in any way to any of the Transactions, and (iv) to the extent permitted by applicable Law, provide a reasonable opportunity to attend and participate in any substantive meetings, discussions, telephone conversations, or videoconference with a Governmental Entity related to such Governmental Entity’s review or approval of the Transactions. Subject to applicable Law, each Party shall, upon request by the other party, furnish Parent or Buyer, as applicable, with all information concerning itself, its Affiliates, officers, directors or equityholders, as applicable, and such other matters or assistance as may be reasonably necessary or advisable in connection with any statement, filing, notice, application or other submission made (or to be made) by or on behalf of Buyer, Parent or any of their respective Affiliates to any Governmental Entity related in any way to any of the Transactions or the Amedisys Transaction with respect to any Antitrust Law or any Healthcare Law. Parent and Sellers will promptly provide Buyer with each draft of any proposed DOJ Order (and any other draft documents related thereto) received from or provided to DOJ, and shall confer with Buyer regarding any potential changes thereto that relate to Buyer or Buyer’s obligations. Parent and Sellers shall keep Buyer reasonably apprised regarding the status and proposed timing for execution of a DOJ Order a reasonable amount of time prior to the date of execution of the proposed DOJ Order. Notwithstanding the foregoing, materials required to be provided pursuant to this section may be redacted (A) to remove references concerning the valuation of the Company Entities or the Purchased Assets, (B) as necessary to consummate comply with Contracts, (C) as necessary to comply with applicable Law, and (D) as necessary to address reasonable privilege or confidentiality concerns; provided that each party may further designate competitively sensitive material provided pursuant to this Section 5.17(b) as “outside counsel only”. The foregoing obligations in this Section 5.17(b) shall be subject to the Offer Confidentiality Agreement and the Mergerany attorney-client, in no event work product or other privilege and shall not apply to Parent or any of its Subsidiaries Affiliates’ communications, correspondence, filings or Affiliates be obligated submissions to propose or agree any Governmental Entity related to accept any undertaking or conditionthe Amedisys Transaction, other matters unrelated not materially connected to enter into any consent decree, to make any divestiture or accept any operational restrictionthe Transactions, or take communications with the mediator or commit to take any action communications directed by the mediator in United States, et al, v. UnitedHealth Group, et al, (D.Md. Civil Case No. JKB-24-3267).
(c) Without limiting the generality of Section 5.17(b):
(i) the effectiveness or consummation of which is not conditional on the consummation of the Offer and the Merger or (ii) that individually or in the aggregate (x) is or would reasonably be expected to be materially adverse (with materiality, for purposes of this provision, being measured in relation to the size of the Company and its Subsidiaries taken as a whole) to (A) the Company and its Subsidiaries, taken as a whole, or Parent and its Subsidiaries, taken as a whole, either before or after giving effect to the Offer or the Merger, or (B) Parent’s ownership or operation of If any material portion of the business or assets of the Company and its Subsidiaries, taken as a whole, or (y) would reasonably be expected to deny Parent the material benefit of the bargains contemplated by the transactions contemplated by this Agreement. The Company shall agree, if requested by Parent in writing, to commit to take any of the forgoing actions objections are asserted with respect to the assets Transactions or business the Amedisys Transaction under any Antitrust Law or any Healthcare Law or if any suit or action is instituted or threatened by any Governmental Entity or any private party challenging any of the Company in furtherance proposed Transactions or the Amedisys Transaction as violative of this any Antitrust Law or any Healthcare Law, or if a filing pursuant to Section 8.2; provided5.17(a) is reasonably likely to be rejected or conditioned by a Governmental Entity, howeverthen Parent, that Sellers, and Buyer shall each use reasonable best efforts to resolve such objections or challenges as such Governmental Entity or private party may have to such transactions, including by contesting, resisting, opposing and defending any such legal suit or action may be conditioned upon and vacating, lifting, reversing or overturning any Order, whether temporary, preliminary or permanent, seeking to enjoin, restrain, prevent or prohibit the Transactions or the Amedisys Transaction so as to permit consummation of the Merger Transactions and the Amedisys Transaction as soon as practicable and in any event on or prior to the Final Date. Buyer shall use reasonable best efforts to diligently pursue all actions necessary to eliminate each and every impediment (including to satisfy any conditions set forth in or established by any Governmental Approval) and obtain all consents, clearances or approvals required from any Governmental Entity with jurisdiction over the enforcement of any applicable Law, including any Antitrust Law, regarding the legality of Buyer’s acquisition of the Purchased Assets and Purchased Equity, in each case, as promptly as reasonably practicable and in any event prior to the Final Date.
(ii) Without limiting, and in furtherance of, the obligations set forth in Section 5.17(c)(i), Buyer shall (A) propose, negotiate, offer to commit and effect (and if such offer is accepted, commit to and effect), by order, consent decree, or otherwise, typical behavioral or conduct conditions acquirers agreed to in recent divestiture transactions under the HSR Act or other Transactions contemplated by this Agreement.applicable Antitrust Laws including conditions comparable to those agreed to in In the Matter of The ▇▇▇▇▇ Corporation et. al. (F.
Appears in 1 contract
Regulatory Filings. On the terms and subject to the conditions set forth in this Agreement and applicable Legal Requirements, each of Parent, Merger Sub and the Company shall cooperate with the other and shall use (and shall cause their respective Subsidiaries to use) commercially reasonable efforts to as promptly as practicable (a) Each take or cause to be taken all actions, and do or cause to be done all things, that are necessary, proper or advisable under this Agreement and applicable Legal Requirements (including under the HSR Act and such other requirements of the comparable laws of other jurisdictions) to consummate and make effective the Merger and the other transactions contemplated by this Agreement as soon as expeditiously possible following the date hereof, including, by preparing and filing as promptly as practicable (or any specific time as the parties mutually agree) all documentation to effect all filings, notices, petitions, statements, registrations, submissions of information, applications and other documents that are necessary in connection with the Merger and other transactions contemplated by this Agreement, (b) obtain all approvals, consents, registrations, permits, authorizations and other confirmations that are necessary, proper or advisable under this Agreement and applicable Legal Requirements (including under the HSR Act and such other requirements of the comparable laws of other jurisdictions) to consummate the Merger and the other transactions contemplated by this Agreement, (c) defend any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the Merger and the transactions contemplated by this Agreement, and (d) execute and deliver any additional instruments necessary, proper or advisable to consummate the Merger and other transactions contemplated by this Agreement. On the terms and subject to the conditions set forth in this Agreement and under applicable Legal Requirements, each of Parent, Merger Sub and the Company shall, to the extent permitted by Legal Requirements, (i) promptly notify the other party of any communication to that party from any Governmental Entity in respect of any substantive filing, investigation or inquiry concerning this Agreement, the Merger or any other transactions contemplated hereby, (ii) if practicable, permit the other party, or its outside counsel, the opportunity to review in advance all the information relating to Parent and Acquisition Sub its Subsidiaries or the Company and its Subsidiaries, as the case may be, that appears in any filing made with, or written materials submitted to, any third party and/or any Governmental Entity in connection with the Merger and the other transactions contemplated by this Agreement and incorporate the other party’s reasonable comments thereon, (iii) if practicable, not participate in any substantive meeting or discussion with any Governmental Entity in respect of any filing, investigation, or inquiry concerning this Agreement, the Merger or any other transaction contemplated hereby unless such party consults with the other party hereto in advance, and, to the extent permitted by such Governmental Entity, gives the other party hereto the opportunity to attend, and (iv) furnish the other party hereto, or its outside counsel, with copies of all non-privileged correspondences, filings, and written communications between them and their respective AffiliatesSubsidiaries, if applicable)and representatives, on the one hand, and the Companyany Governmental Entity or its respective staff, on the other hand, shall (x) file with respect to this Agreement, the FTC Merger and the Antitrust Division other transactions contemplated hereby. Notwithstanding the foregoing or anything to the contrary set forth in this Agreement, the provisions of this Section 5.12 shall not be construed to require either party hereto to consent to any action if such action would be reasonably likely to have a material adverse effect on Parent and its Subsidiaries (including the Surviving Corporation and its Subsidiaries), on their businesses, assets operations, or prospects, taken as a whole, if the Merger were consummated. Without limitation of the DOJ a Notification and Report Form relating to foregoing, (A) nothing in this Agreement shall require Parent, the Company or any of their respective Subsidiaries to divest, hold separate, or enter into any license or similar agreement with respect to, or agree to restrict the ownership or operation of, any business or assets of Parent, the Company or any of their respective Subsidiaries, and the transactions contemplated hereby as required by the HSR Act as soon as reasonably practicable from the date following execution and delivery of this Agreement but (B) in no event later than ten (10) Business Days following shall Parent, the execution and delivery Company or any of this Agreementtheir respective Subsidiaries be obligated to litigate or participate in the litigation of any proceeding, and (y) file comparable pre-merger whether judicial or post-merger notification filingsadministrative, forms and submissions with any foreign Governmental Authority that is required brought by any other Antitrust Laws as soon as reasonably practicable from the date following execution and delivery of this Agreement but in no event later than ten Governmental Entity or appeal any order or decree thereof: (10A) Business Days following the execution and delivery of this Agreement. Each of Parent and the Company shall (i) cooperate and coordinate with the other in the making of such filings, (ii) supply the other with any information that may be required in order challenging or seeking to make such filingsillegal, (iii) supply any additional information that reasonably may be required delay materially or requested by the FTC, the DOJ otherwise directly or the Governmental Authorities of any other jurisdiction in which any such filing is made under any other Antitrust Laws, and (iv) use reasonable best efforts to take all action necessary to cause the expiration indirectly restrain or termination of the applicable waiting periods under the HSR Act or other Antitrust Laws as soon as practicable, and to obtain any required consents under any other Antitrust Laws applicable to the Offer and/or the Merger as soon as practicable, and to avoid any impediment to prohibit the consummation of the Offer Merger or the Merger under any Antitrust Laws, including using reasonable best efforts to take all such action as reasonably may be necessary to resolve such objections, if any, as the FTC, the DOJ, or any other Governmental Authority or Person may assert under any applicable Antitrust Laws with respect to the Offer and/or the Merger.
(b) Each of Parent and Acquisition Sub (and their respective Affiliates, if applicable), on the one hand, and the Company, on the other hand, shall promptly inform the other of any communication from any Governmental Authority regarding any of the transactions contemplated by this Agreement or seeking to obtain from Parent, the Company or any of their respective Subsidiaries any damages in connection with therewith, (B) seeking to prohibit or limit in any filings respect, or investigations withplace any conditions on, the ownership or operation by or before any Governmental Authority relating to this Agreement or the transactions contemplated herebyCompany, including any proceedings initiated by a private party. If any party hereto or Affiliate thereof shall receive a request for additional information or documentary material from any Governmental Authority with respect to the transactions contemplated by this Agreement pursuant to the HSR Parent or any other Antitrust Laws with respect to which any such filings have been made, then such party shall use its reasonable best efforts to make, or cause to be made, as soon as reasonably practicable and after consultation with the other party, an appropriate response in compliance with such request. In connection with and without limiting the foregoing, to the extent reasonably practicable and unless prohibited by applicable Law or by the applicable Governmental Authority, the parties hereto agree to (i) give each other reasonable advance notice of their respective Affiliates of all meetings with or any Governmental Authority relating to the Offer or the Merger, (ii) give each other an opportunity to participate in each of such meetings, (iii) keep the other party reasonably apprised with respect to any oral communications with any Governmental Authority regarding the Offer or the Merger, (iv) cooperate in the filing of any analyses, presentations, memoranda, briefs, arguments, opinions or other written communications explaining or defending the Offer and the Merger, articulating any regulatory or competitive argument and/or responding to requests or objections made by any Governmental Authority, (v) provide each other with a reasonable advance opportunity to review and comment upon, and consider in good faith the views portion of the other with respect tobusiness, all written communications (including assets or any analyses, presentations, memoranda, briefs, arguments and opinions) with a Governmental Authority regarding the Offer and the Merger, (vi) provide each other (or counsel of each party, as appropriate) with copies of all written communications to or from any Governmental Authority relating to the Offer or the Merger, and (vii) cooperate and provide each other with a reasonable opportunity to participate in, and consider in good faith the views product of the other with respect to, all material deliberations with respect to all efforts to satisfy the conditions set forth in clauses (A) and (C)(1) Company or any of Annex A and Section 9.1(c). Any such disclosures, rights to participate its Subsidiaries or provisions of information by one party to the other may be made on a counsel-only basis to the extent required under applicable Law or as appropriate to protect confidential business information or the attorney client privilege or attorney work product.
(c) Each of Parent, Acquisition Sub and the Company shall cooperate with one another in good faith to (i) promptly determine whether any filings not contemplated by Section 8.2(a) are required to be or should be made, and whether any other consents, approvals, permits or authorizations not contemplated by Section 8.2(a) are required to be or should be obtained, from any Governmental Authority under any other applicable Law in connection with the transactions contemplated hereby, and (ii) promptly make any filings, furnish information required in connection therewith and seek to obtain timely any such consents, permits, authorizations, approvals or waivers that the parties determine are required to be or should be made or obtained in connection with the transactions contemplated hereby.
(d) Notwithstanding anything to the contrary in this Agreement, in connection with any filing or submission required or action to be taken by either Parent or the Company to consummate the Offer and the Merger, in no event shall Parent or any of its Subsidiaries or Affiliates be obligated to propose require any such Person to dispose of, license (whether pursuant to an exclusive or agree to accept any undertaking nonexclusive license) or condition, to enter into a consent decree or hold separate all or any consent decree, to make any divestiture or accept any operational restriction, or take or commit to take any action (i) the effectiveness or consummation of which is not conditional on the consummation portion of the Offer and business, assets or any product of the Company or any of its Subsidiaries or Parent or any of its Subsidiaries, in each case as a result of or in connection with the Merger or (ii) that individually or in the aggregate (x) is or would reasonably be expected to be materially adverse (with materiality, for purposes of this provision, being measured in relation to the size any of the Company and its Subsidiaries taken as a whole) to (A) the Company and its Subsidiaries, taken as a whole, or Parent and its Subsidiaries, taken as a whole, either before or after giving effect to the Offer or the Mergerother transactions contemplated by this Agreement, or (BC) seeking to require divestiture by Parent’s ownership , the Company or operation any of their respective Affiliates of any material portion of the business or assets of the Company and or its Subsidiaries or Parent or its Subsidiaries, taken as a whole, or (y) would reasonably be expected to deny Parent the material benefit of the bargains contemplated by the transactions contemplated by this Agreement. The Company shall agree, if requested by Parent in writing, to commit to take any of the forgoing actions with respect to the assets or business of the Company in furtherance of this Section 8.2; provided, however, that any such action may be conditioned upon the consummation of the Merger and other Transactions contemplated by this Agreement.
Appears in 1 contract
Sources: Merger Agreement (Pharsight Corp)
Regulatory Filings. (a) Each of Parent and Acquisition Sub Party shall, promptly (and their respective Affiliatesand, if applicable), on the one hand, and the Company, on the other hand, shall (x) file with the FTC and the Antitrust Division of the DOJ a Notification and Report Form relating respect to this Agreement and the transactions contemplated hereby as required by filings under the HSR Act as soon as reasonably practicable from Act, within five (5) Business Days) after the date following execution and delivery of this Agreement but in no event later than ten (10) Business Days following hereof, make or cause to be made the execution and delivery of this Agreement, and (y) file comparable pre-merger or post-merger notification filings, forms required filings and submissions with any foreign Governmental Authority that is required by any other Antitrust Laws as soon as reasonably practicable from the date following execution and delivery of this Agreement but in no event later than ten (10) Business Days following the execution and delivery of this Agreement. Each of Parent and the Company shall (i) cooperate and coordinate with the other in the making of such filings, (ii) supply the other with any information that may be required in order to make such filings, (iii) supply any additional information that reasonably may be required or requested by the FTC, the DOJ or the Governmental Authorities of any other jurisdiction in which any such filing is made under any other Antitrust Laws, and (iv) use reasonable best efforts to take all action necessary to cause the expiration or termination of the applicable waiting periods under the HSR Act or and any other applicable Antitrust Laws as soon as practicable, and to obtain any required consents under any other Antitrust Laws applicable to the Offer and/or the Merger as soon as practicable, and to avoid any impediment to in connection with the consummation of the Offer or transactions contemplated herein (which filings and submissions shall seek early termination if made pursuant to the Merger under HSR Act and the equivalent, if available, with respect to any such other applicable Antitrust Laws). In connection with any filing, consent, waiver, authorization or approval under this Section 5.6, the Parties shall promptly respond to any requests from a Governmental Body for additional information, including using requests for production of documents and production of witnesses for interviews or depositions by any Governmental Bodies. Each Party shall employ commercially reasonable best efforts to take all such action as reasonably may be necessary to resolve such objectionscomplete the transactions contemplated by this Agreement expeditiously and lawfully. Without limiting the generality of the foregoing, if any, as the FTC, the DOJ, an Action is threatened or instituted by any Governmental Body or any other Governmental Authority entity challenging the validity or Person may assert under any applicable Antitrust Laws with respect legality or seeking to restrain the Offer and/or the Merger.
(b) Each of Parent and Acquisition Sub (and their respective Affiliates, if applicable), on the one hand, and the Company, on the other hand, shall promptly inform the other of any communication from any Governmental Authority regarding any consummation of the transactions contemplated by this Agreement in connection with any filings or investigations withAgreement, by or before any Governmental Authority relating to this Agreement or the transactions contemplated hereby, including any proceedings initiated by a private party. If any party hereto or Affiliate thereof shall receive a request for additional information or documentary material from any Governmental Authority with respect to the transactions contemplated by this Agreement pursuant to the HSR or any other Antitrust Laws with respect to which any such filings have been made, then such party Parties shall use its their commercially reasonable best efforts to makeavoid, resist, resolve or cause to be made, as soon as reasonably practicable and after consultation with the other party, an appropriate response in compliance with defend such request. In connection with and without limiting the foregoing, to the extent reasonably practicable and unless prohibited by applicable Law or by the applicable Governmental Authority, the parties hereto agree to (i) give each other reasonable advance notice of all meetings with any Governmental Authority relating to the Offer or the Merger, (ii) give each other an opportunity to participate in each of such meetings, (iii) keep the other party reasonably apprised with respect to any oral communications with any Governmental Authority regarding the Offer or the Merger, (iv) cooperate in the filing of any analyses, presentations, memoranda, briefs, arguments, opinions or other written communications explaining or defending the Offer and the Merger, articulating any regulatory or competitive argument and/or responding to requests or objections made by any Governmental Authority, (v) provide each other with a reasonable advance opportunity to review and comment upon, and consider in good faith the views of the other with respect to, all written communications (including any analyses, presentations, memoranda, briefs, arguments and opinions) with a Governmental Authority regarding the Offer and the Merger, (vi) provide each other (or counsel of each party, as appropriate) with copies of all written communications to or from any Governmental Authority relating to the Offer or the Merger, and (vii) cooperate and provide each other with a reasonable opportunity to participate in, and consider in good faith the views of the other with respect to, all material deliberations with respect to all efforts to satisfy the conditions set forth in clauses (A) and (C)(1) of Annex A and Section 9.1(c). Any such disclosures, rights to participate or provisions of information by one party to the other may be made on a counsel-only basis to the extent required under applicable Law or as appropriate to protect confidential business information or the attorney client privilege or attorney work productAction.
(cb) Each of Parent, Acquisition Sub and the Company The Parties shall use commercially reasonable efforts to cooperate with one another in good faith to effect the consummation of the transactions contemplated hereby as soon as practicable. In furtherance of the foregoing, each party shall provide the other Parties (i) promptly determine whether copies of all communications from a Governmental Body relating to any filings not contemplated by filing, consent, waiver, authorization or approval under this Section 8.2(a5.6; and (ii) are required in advance, with a reasonable opportunity for review and comment, copies of all proposed written communications to be or should be made, and whether any other consents, approvals, permits or authorizations not contemplated by Section 8.2(a) are required to be or should be obtained, from any Governmental Authority Body relating to any filing, consent, waiver, authorization or approval under this Section 5.6; provided, that such copies may be redacted as necessary to address legal privilege or confidentiality concerns or to comply with applicable Law; and provided, further, that portions of such copies that are competitively sensitive may be designated as "outside antitrust counsel only." None of Acquiror, the Blocker Merger Subs or the Company Merger Sub, on one hand, nor the Company or the Blockers, on the other hand, shall initiate or participate in any meeting or discussion with any Governmental Body with respect to any filings, applications, investigation, or other inquiry regarding the Mergers or filings under the HSR Act or other applicable Antitrust Law without giving the other Parties reasonable prior notice of the meeting or discussion and, unless prohibited by the relevant Governmental Body, the opportunity to attend and participate in such meeting or discussion. Acquiror shall be responsible for all filing fees under the HSR Act and under any other applicable Law Laws.
(c) Acquiror shall not, and shall cause its Affiliates not to, acquire or agree to acquire by merging or consolidating with, or by purchasing a substantial portion of the assets of or equity in, or by any other manner, any Person or portion thereof, or otherwise acquire or agree to acquire any assets, if entering into a definitive agreement relating to, or the consummation of, such acquisition, merger or consolidation would reasonably be expected to (i) impose any material delay in connection with obtaining, or materially increase the risk of not obtaining, any authorizations, consents, orders, declarations or approvals of any Governmental Body necessary to consummate the transactions contemplated herebyhereby or the expiration or termination of any applicable waiting period, and (ii) promptly make materially increase the risk of any filings, furnish information required in connection therewith and seek to obtain timely any such consents, permits, authorizations, approvals Governmental Body entering an order prohibiting the consummation of the transactions contemplated hereby or waivers that (iii) materially delay the parties determine are required to be or should be made or obtained in connection with consummation of the transactions contemplated hereby.
(d) Notwithstanding anything Subject to applicable Law, Acquiror shall diligently assist and cooperate with the contrary Company and the Blockers in this Agreementobtaining any consents, waivers, authorizations or approvals which may be required to be obtained by any Group Company or the Blockers from any third party (other than a Governmental Body) in connection with any filing or submission required or action to be taken by either Parent or the Company to consummate the Offer and the Merger, in no event shall Parent or any of its Subsidiaries or Affiliates be obligated to propose or agree to accept any undertaking or condition, to enter into any consent decree, to make any divestiture or accept any operational restriction, or take or commit to take any action (i) the effectiveness or consummation of which is not conditional on the consummation of the Offer and the Merger or (ii) that individually or in the aggregate (x) is or would reasonably be expected to be materially adverse (with materiality, for purposes of this provision, being measured in relation to the size of the Company and its Subsidiaries taken as a whole) to (A) the Company and its Subsidiaries, taken as a whole, or Parent and its Subsidiaries, taken as a whole, either before or after giving effect to the Offer or the Merger, or (B) Parent’s ownership or operation of any material portion of the business or assets of the Company and its Subsidiaries, taken as a whole, or (y) would reasonably be expected to deny Parent the material benefit of the bargains contemplated by the transactions contemplated by this Agreement. The Company shall agree, if requested by Parent in writing, to commit to take any of the forgoing actions with respect to the assets or business of the Company in furtherance of this Section 8.2; provided, however, that any such action may be conditioned upon the consummation of the Merger and other Transactions contemplated by this Agreementhereby.
Appears in 1 contract
Sources: Merger Agreement (Q2 Holdings, Inc.)
Regulatory Filings. (a) Each of Parent Subject to the terms and Acquisition Sub (and their respective Affiliates, if applicable), on the one hand, and the Company, on the other hand, shall (x) file with the FTC and the Antitrust Division of the DOJ a Notification and Report Form relating to this Agreement and the transactions contemplated hereby as required by the HSR Act as soon as reasonably practicable from the date following execution and delivery of this Agreement but in no event later than ten (10) Business Days following the execution and delivery conditions of this Agreement, from the date hereof until the Closing, Buyer and Seller Parent shall each use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary or desirable under Law to consummate the transactions contemplated by this Agreement, including (i) preparing and filing as promptly as practicable with any Governmental Authority all documentation to effect all necessary filings, notices, petitions, statements, registrations, submissions of information, applications and other documents and (yii) file comparable pre-merger obtaining and maintaining all approvals, consents, registrations, permits, authorizations, expirations or post-merger notification filingsterminations of waiting periods, forms and submissions with other confirmations required to be obtained from any foreign Governmental Authority that is required are necessary to consummate the transactions contemplated by any other Antitrust Laws as soon as reasonably practicable from the date following execution and delivery of this Agreement but in no event later than ten (10) Business Days following the execution and delivery of this Agreement. Each of Parent and the Company shall clauses (i) cooperate and coordinate (ii) collectively, the “Regulatory Approvals”). Notwithstanding the foregoing, neither Seller Parent nor any of its Affiliates shall be required to provide any financial accommodation in order to obtain any such Regulatory Approvals.
(b) In furtherance and not in limitation of the foregoing, each of Buyer and Seller Parent shall, and shall cause their respective Affiliates to, as applicable, (i) make or cause to be made all filings required of each of them or any of their respective Affiliates under the HSR Act and the antitrust, competition or foreign investment laws of the jurisdictions listed in Schedule 5.03; provided that, with respect to the other foreign investment laws of the jurisdictions listed in item (b)(i) of Schedule 5.03 (the making “Other Filings”), (A) Seller Parent shall use reasonable best efforts to provide Buyer, within 10 Business Days after the date hereof, information reasonably requested by Buyer to determine whether any Other Filings are required; and (B) Buyer shall use reasonable best efforts to determine, within 10 Business Days after the provision of such filingsinformation by Seller Parent and considering in good faith the views of Seller Parent, which Other Filings are necessary or advisable in order to consummate the Transactions contemplated hereby as promptly as practicable, and provided, further, that filings pursuant to this Section 5.03 shall in any event be made within 30 calendar days in draft or final form as may be customary after the date hereof (or, for Other Filings, within 30 calendar days in draft or final form as may be customary after the date that Buyer informs Seller Parent in writing that an Other Filing is necessary or advisable), (ii) supply the other with any information that may be required in order to make such filings, (iii) supply any additional information that reasonably may be required or requested by the FTC, the DOJ or the Governmental Authorities of any other jurisdiction in which any such filing is made under any other Antitrust Laws, and (iv) use reasonable best efforts to take all action necessary to cause the expiration comply as promptly as reasonably practicable with any Regulatory Information or termination of the applicable waiting periods Document Requests under the HSR Act or any other Antitrust Laws as soon as practicableantitrust, competition or foreign investment law received by either of them or any of their respective Affiliates from any Governmental Authority in respect of such filings or such transactions and to obtain (iii) cooperate with each other in connection with any required consents such filing and in connection with resolving any investigation or other inquiry of any Governmental Authority under any other Antitrust Laws applicable Law with respect to the Offer and/or the Merger as soon as practicableany such filing or any such transaction. Buyer shall pay all filing fees required by any antitrust, competition or foreign investment law. Each of Buyer and to avoid any impediment to the consummation of the Offer or the Merger under any Antitrust Laws, including using Seller Parent shall use its reasonable best efforts to take furnish to the other all such action as reasonably may information or documents for any application or other filing required to be necessary to resolve such objectionsmade in connection with the transactions contemplated by this Agreement. Notwithstanding the foregoing, if anyany Party may, as the FTCit deems advisable and necessary, the DOJ, or reasonably designate any other Governmental Authority or Person may assert under any applicable Antitrust Laws with respect competitively sensitive material provided to the Offer and/or other Parties under this Section 5.03 as “outside counsel only.” Such materials and the Merger.
(b) Each information contained therein shall be given only to the outside counsel of Parent and Acquisition Sub (and their respective Affiliates, if applicable), on the one handrecipient Party, and the Companyrecipient Party shall cause such outside counsel not to disclose such materials or information to any employees, on officers, directors or other Representatives of the other handrecipient Party, unless express written permission is obtained in advance from the source of the materials. Each of Buyer and Seller Parent shall promptly inform the other of any substantive oral communication from with, and provide copies of written communications with, any Governmental Authority regarding any such filing or any such transaction. Neither Buyer nor Seller Parent shall independently participate in any substantive meeting with any Governmental Authority in respect of any such filing or any investigation or other inquiry with respect to the transactions contemplated by this Agreement without giving the other prior notice of the meeting and, to the extent permitted by such Governmental Authority, the opportunity to attend and participate. Subject to applicable Law, ▇▇▇▇▇ and Seller Parent will consult and cooperate with one another in connection with any filings analyses, appearances, presentations, memoranda, briefs, arguments, opinions and proposals made or investigations with, submitted by or before on behalf of any Governmental Authority Party relating to this Agreement proceedings under the HSR Act or any other antitrust, competition or foreign investment law with respect to the transactions contemplated hereby.
(c) In furtherance and not in limitation of the actions and obligations described in Section 5.03(b), including any proceedings initiated Buyer shall promptly resolve objections, if any, as may be asserted by a private party. If any party hereto or Affiliate thereof shall receive a request for additional information or documentary material from any Governmental Authority with respect to the transactions contemplated by this Agreement pursuant to under the HSR Act or any other Antitrust Laws applicable antitrust, competition or foreign investment law. In connection therewith, if any Action is instituted (or threatened to be instituted) challenging any transaction contemplated by this Agreement as in violation of the HSR Act or any other applicable antitrust, competition or foreign investment law, Buyer shall promptly contest and resist any such Action, and seek to have promptly vacated, lifted, reversed or overturned any decree, judgment, injunction or other order, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents, limits or restricts the consummation of the transactions contemplated by this Agreement, including by pursuing all available avenues of administrative and judicial appeal. Buyer shall take such action as may be required to cause the expiration or termination of any applicable waiting, notice or review periods under the HSR Act or any other applicable antitrust, competition or foreign investment law, and to obtain any required approvals under such law, with respect to which any such filings have been madethe transactions contemplated by this Agreement as promptly as possible after the execution of this Agreement. Buyer shall not, then such party shall use its reasonable best efforts to make, or cause without the prior written consent of Seller Parent (not to be madeunreasonably withheld, as soon as reasonably practicable and after consultation conditioned or delayed), (i) “pull-and-refile” pursuant to 16 C.F.R. 803.12 any filing made under the HSR Act with respect to the transactions contemplated by this Agreement or (ii) otherwise commit to or agree with any Governmental Authority to stay, toll or extend any applicable waiting period under the HSR Act or any other partyapplicable antitrust, an appropriate response in compliance with such request. In connection with and without limiting the foregoingcompetition or foreign investment law.
(d) ▇▇▇▇▇ further agrees that it shall, to the extent reasonably practicable and unless prohibited by applicable Law necessary to obtain the expiration or by the applicable Governmental Authoritytermination of waiting periods, the parties hereto agree to (i) give each other reasonable advance notice of all meetings with any Governmental Authority relating to the Offer waiver, permit, approval, clearance or the Merger, (ii) give each other an opportunity to participate in each of such meetings, (iii) keep the other party reasonably apprised with respect to any oral communications with any Governmental Authority regarding the Offer or the Merger, (iv) cooperate in the filing of any analyses, presentations, memoranda, briefs, arguments, opinions or other written communications explaining or defending the Offer and the Merger, articulating any regulatory or competitive argument and/or responding to requests or objections made by any Governmental Authority, (v) provide each other with a reasonable advance opportunity to review and comment upon, and consider in good faith the views of the other with respect to, all written communications (including any analyses, presentations, memoranda, briefs, arguments and opinions) with a Governmental Authority regarding the Offer and the Merger, (vi) provide each other (or counsel of each party, as appropriate) with copies of all written communications to or consent from any Governmental Authority relating to the Offer or the Merger, and (vii) cooperate and provide each other with a reasonable opportunity to participate in, and consider in good faith the views of the other with respect to, all material deliberations with respect to all efforts required to satisfy the conditions set forth in clauses (ASection 8.01(a), Section 8.01(b) and (C)(1) or Section 8.01(c), as applicable, or to avoid the entry of Annex A and Section 9.1(c). Any such disclosuresor have lifted, rights to participate vacated, reversed or provisions of information by one party to terminated any Closing Legal Impediment, promptly take the other may be made on a counsel-only basis to the extent required under applicable Law or as appropriate to protect confidential business information or the attorney client privilege or attorney work product.
(c) Each of Parent, Acquisition Sub and the Company shall cooperate with one another in good faith to following actions: (i) promptly determine whether propose, negotiate, commit and effect, by consent decree, hold separate order or otherwise, the sale, divestiture, transfer, license or other disposition (including by licensing any filings not PSI Business IP) of any assets or businesses of the PSI Subsidiaries (other than as contemplated by Section 8.2(athe PSI Sale Restructuring) are required to be or should be made, and whether any other consents, approvals, permits assets or authorizations not contemplated by Section 8.2(a) are required to be or should be obtained, from any Governmental Authority under any other applicable Law in connection with the transactions contemplated hereby, and (ii) promptly make any filings, furnish information required in connection therewith and seek to obtain timely any such consents, permits, authorizations, approvals or waivers that the parties determine are required to be or should be made or obtained in connection with the transactions contemplated hereby.
(d) Notwithstanding anything to the contrary in this Agreement, in connection with any filing or submission required or action to be taken by either Parent or the Company to consummate the Offer and the Merger, in no event shall Parent businesses of Buyer or any of its Subsidiaries (or Affiliates be obligated to propose equity interests held by Buyer or agree to accept any undertaking of its Subsidiaries in entities with assets or conditionbusinesses); (ii) propose, to enter into any negotiate, commit and effect, by consent decree, hold separate order or otherwise, behavioral limitations on the assets or businesses of the PSI Subsidiaries (other than as contemplated by the PSI Sale Restructuring) or any assets or businesses of Buyer or any of its Subsidiaries (or equity interests held by Buyer or any of its Subsidiaries in entities with assets or businesses); (iii) propose, negotiate, commit and effect, by consent decree, hold separate order or otherwise, the termination, modification, transfer or other action with respect to make any divestiture or accept existing relationships and contractual rights and obligations of any operational restrictionof the PSI Subsidiaries (other than as contemplated by the PSI Sale Restructuring), or Buyer or any of its Affiliates; (iv) otherwise take or commit to take any action that it is capable of taking that limits or affects its freedom of action; and (iv) in the effectiveness event that any permanent or consummation of which preliminary injunction or other order is not conditional on the entered or becomes reasonably foreseeable to be entered in any proceeding that would make consummation of the Offer and the Merger or (ii) that individually or in the aggregate (x) is or would reasonably be expected to be materially adverse (with materiality, for purposes of this provision, being measured in relation to the size of the Company and its Subsidiaries taken as a whole) to (A) the Company and its Subsidiaries, taken as a whole, or Parent and its Subsidiaries, taken as a whole, either before or after giving effect to the Offer or the Merger, or (B) Parent’s ownership or operation of any material portion of the business or assets of the Company and its Subsidiaries, taken as a whole, or (y) would reasonably be expected to deny Parent the material benefit of the bargains transactions contemplated by this Agreement unlawful or that would prevent or delay consummation of the transactions contemplated by this Agreement. The Company shall agree, if requested by Parent in writingany and all steps (including the appeal thereof, to commit to take any the posting of a bond or the taking of the forgoing actions with respect to the assets or business of the Company in furtherance steps contemplated by clauses (i) through (iv) of this Section 8.2; provided5.03(d)) necessary to vacate, howevermodify or suspend such injunction or order. Notwithstanding anything to the contrary herein, that ▇▇▇▇▇’s obligations under this Section 5.03(d) shall be absolute and not qualified by “reasonable best efforts.” The entry by any such action may be conditioned upon Governmental Authority in any Action of a Governmental Order permitting the consummation of the Merger and other Transactions transactions contemplated hereby but requiring any of the steps contemplated by clauses (i) through (iv) of this AgreementSection 5.03(d) shall not, individually or in the aggregate, be deemed a failure to satisfy any condition specified in Article VIII.
Appears in 1 contract
Sources: Purchase Agreement (Crane Co)
Regulatory Filings. (a) Each of Parent The Purchaser and Acquisition Sub Seller shall (and their respective Affiliates, if applicableSeller shall cause the Company and its Subsidiaries to), on within two Business Days after the one handdate hereof, make or cause to be made all filings and submissions required of the Purchaser and the CompanySeller, on as the other handcase may be, shall (x) file with under any applicable Laws for the FTC and the Antitrust Division consummation of the DOJ a Notification and Report Form relating to this Agreement and the transactions contemplated hereby as required herein, including the HSR Act (which filing under the HSR Act shall specifically request early termination of the waiting period prescribed by the HSR Act as soon as reasonably practicable from the date following execution Act, unless otherwise mutually agreed by ▇▇▇▇▇▇▇▇▇ and delivery of this Agreement but in no event later than ten (10) Business Days following the execution and delivery of this Agreement, and (y) file comparable pre-merger or post-merger notification filings, forms and submissions with any foreign Governmental Authority that is required by any other Antitrust Laws as soon as reasonably practicable from the date following execution and delivery of this Agreement but in no event later than ten (10) Business Days following the execution and delivery of this AgreementSeller). Each of Parent Purchaser, Seller and the Company shall (i) cooperate and coordinate with the other in the making of such filings, (ii) supply the other with any information that may be required in order agree to make such filings, (iii) supply any additional information that reasonably may be required or requested by the FTC, the DOJ or the Governmental Authorities of any other jurisdiction in which any such filing is made under any other Antitrust Laws, and (iv) use their reasonable best efforts to take take, or cause to be taken, all action actions necessary to cause expeditiously consummate the expiration or termination transactions contemplated by this Agreement, including to make all necessary government filings required of the applicable waiting periods under the HSR Act or it, provide any information required for and cooperate with each other Antitrust Laws as soon as practicableto make all regulatory filings contemplated in this Section 8.1, respond to government requests for information, and to otherwise obtain any required consents under any other Antitrust Laws applicable to all necessary governmental, judicial or regulatory actions or non-actions, orders, waivers, consents, clearances, extensions and approvals. Notwithstanding anything the Offer and/or the Merger as soon as practicablecontrary set forth herein, and to avoid any impediment to the consummation of the Offer or the Merger under any Antitrust Laws, including using reasonable best efforts to take all such action as reasonably may be necessary to resolve such objections, if any, as the FTCnothing in this Agreement shall require (i) Purchaser, the DOJ, Company or Seller to contest or defend any other action or suit threatened or instituted by any Governmental Authority or Person may assert under any applicable Antitrust Laws with respect other entity challenging the validity or legality, or seeking to restrain the Offer and/or the Merger.
(b) Each of Parent and Acquisition Sub (and their respective Affiliates, if applicable), on the one hand, and the Company, on the other hand, shall promptly inform the other of any communication from any Governmental Authority regarding any consummation of the transactions contemplated by this Agreement in connection or (ii) Purchaser to make proposals, execute or carry out agreements or submit to any order, judgment, writ, decree, stipulation, award, settlement, consent, or similar, providing for (A) the sale, license or other disposition or holding separate (through the establishment of a trust or otherwise) of any assets or categories of assets of Purchaser or the Company or any of their respective Affiliates, (B) the imposition of any limitation or restriction on the ability of Purchaser or any of its Affiliates to freely conduct their business or, following the Closing, the business of the Company or own such assets or (C) the holding separate of the Interests or any limitation or regulation on the ability of Purchaser or any of its Affiliates to exercise full rights of ownership of the Interests. The Purchaser shall be responsible for all filing fees under the HSR Act.
(b) In furtherance of Section 8.1(a), but subject to the limitations and obligations contained therein, the Purchaser and Seller shall (i) comply as promptly as practicable with any filings inquiries or investigations with, by or before requests received from any Governmental Authority relating to this Agreement or the transactions contemplated hereby, including any proceedings initiated by a private party. If any party hereto or Affiliate thereof shall receive a request for additional information or documentary material documentation and (ii) use reasonable best efforts to cause any applicable waiting periods or other requirements under the HSR Act and all other applicable antitrust and competition Laws to terminate or expire at the earliest possible date and, in any event, before the Outside Date. Each of Purchaser, Seller and the Company shall (A) promptly notify the other parties of any written communication from any Governmental Authority with respect and, subject to the transactions contemplated by this Agreement pursuant to the HSR or any other Antitrust Laws with respect to which any such filings have been madeapplicable Law, then permit such party shall use its reasonable best efforts to make, or cause to be made, as soon as reasonably practicable and after consultation with the other party, an appropriate response review in compliance with such request. In connection with and without limiting the foregoing, to the extent reasonably practicable and unless prohibited by applicable Law or by the applicable Governmental Authority, the parties hereto agree to (i) give each other reasonable advance notice of all meetings with any Governmental Authority relating to the Offer or the Merger, (ii) give each other an opportunity to participate in each of such meetings, (iii) keep the other party reasonably apprised with respect proposed written communication to any oral communications with any Governmental Authority regarding of the Offer or the Merger, foregoing (iv) cooperate in the filing of any analyses, presentations, memoranda, briefs, arguments, opinions or other written communications explaining or defending the Offer and the Merger, articulating any regulatory or competitive argument and/or responding to requests or objections made by any Governmental Authority, (v) provide each other with a reasonable advance opportunity to review and comment upon, and consider in good faith the views of such party in connection therewith), (B) not agree to participate, or to permit its Affiliates to participate, in any substantive meeting or discussion with any Governmental Authority in respect of any filing, investigation or inquiry concerning this Agreement unless such party consults with the other with respect toparty in advance and, all written communications unless prohibited by such Governmental Authority, gives the other party the opportunity to attend and participate thereat and (including any analyses, presentations, memoranda, briefs, arguments and opinionsC) with a Governmental Authority regarding furnish the Offer and the Merger, (vi) provide each other (or counsel of each party, as appropriate) party with copies of all written correspondence, filings and communications to or from (and memoranda setting forth the substance thereof) between such party and its Affiliates and each of their respective representatives, on the one hand, and any Governmental Authority relating to the Offer or the Mergerand/or members of its staff, and (vii) cooperate and provide each other with a reasonable opportunity to participate in, and consider in good faith the views of on the other with respect tohand, all material deliberations with respect to all efforts to satisfy the conditions set forth in clauses (A) and (C)(1) of Annex A and Section 9.1(c). Any such disclosures, rights to participate or provisions of information by one party to the other may be made on a counsel-only basis to the extent required under applicable Law or as appropriate to protect confidential business information or the attorney client privilege or attorney work product.
(c) Each of Parent, Acquisition Sub and the Company shall cooperate with one another in good faith to (i) promptly determine whether any filings not contemplated by Section 8.2(a) are required to be or should be made, and whether any other consents, approvals, permits or authorizations not contemplated by Section 8.2(a) are required to be or should be obtained, from any Governmental Authority under any other applicable Law in connection with the transactions contemplated hereby, and (ii) promptly make any filings, furnish information required in connection therewith and seek to obtain timely any such consents, permits, authorizations, approvals or waivers that the parties determine are required to be or should be made or obtained in connection with the transactions contemplated hereby.
(d) Notwithstanding anything to the contrary in this Agreement, in connection with any filing or submission required or action to be taken by either Parent or the Company to consummate the Offer and the Merger, in no event shall Parent or any of its Subsidiaries or Affiliates be obligated to propose or agree to accept any undertaking or condition, to enter into any consent decree, to make any divestiture or accept any operational restriction, or take or commit to take any action (i) the effectiveness or consummation of which is not conditional on the consummation of the Offer and the Merger or (ii) that individually or in the aggregate (x) is or would reasonably be expected to be materially adverse (with materiality, for purposes of this provision, being measured in relation to the size of the Company and its Subsidiaries taken as a whole) to (A) the Company and its Subsidiaries, taken as a whole, or Parent and its Subsidiaries, taken as a whole, either before or after giving effect to the Offer or the Merger, or (B) Parent’s ownership or operation of any material portion of the business or assets of the Company and its Subsidiaries, taken as a whole, or (y) would reasonably be expected to deny Parent the material benefit of the bargains contemplated by the transactions contemplated by this Agreement. The Company shall agree, if requested by Parent in writing, to commit to take any of the forgoing actions with respect to the assets or business of the Company in furtherance of this Section 8.2; provided, however, that any such action may be conditioned upon the consummation of the Merger and other Transactions contemplated by this Agreement.
Appears in 1 contract
Regulatory Filings. (a) Each of Parent The Buyer and Acquisition Sub (and their respective Affiliatesthe Company shall, if applicablerequired by applicable Law, within ten (10) days following the date hereof, file or supply, or cause to be filed or supplied in connection with the transactions contemplated herein, all notifications and information required to be filed or supplied pursuant to the HSR Act (it being agreed that the parties shall request early termination of the waiting period under the HSR Act). The Buyer, on the one hand, and the CompanySeller, on the other hand, shall (x) file with equally split all filing fees and other charges for the FTC and the Antitrust Division of the DOJ a Notification and Report Form relating to this Agreement and the transactions contemplated hereby as required by the HSR Act as soon as reasonably practicable from the date following execution and delivery of this Agreement but in no event later than ten (10) Business Days following the execution and delivery of this Agreement, and (y) file comparable pre-merger or post-merger notification filings, forms and submissions with any foreign Governmental Authority that is required by any other Antitrust Laws as soon as reasonably practicable from the date following execution and delivery of this Agreement but in no event later than ten (10) Business Days following the execution and delivery of this Agreement. Each of Parent and the Company shall (i) cooperate and coordinate with the other in the making of such filings, (ii) supply the other with any information that may be required in order to make such filings, (iii) supply any additional information that reasonably may be required or requested by the FTC, the DOJ or the Governmental Authorities of any other jurisdiction in which any such filing is made under any other Antitrust Laws, and (iv) use reasonable best efforts to take all action necessary to cause the expiration or termination of the applicable waiting periods under the HSR Act or other Antitrust Laws as soon as practicable, and to obtain any required consents under any other Antitrust Laws applicable to the Offer and/or the Merger as soon as practicable, and to avoid any impediment to the consummation of the Offer or the Merger under any Antitrust Laws, including using reasonable best efforts to take all such action as reasonably may be necessary to resolve such objections, if any, as the FTC, the DOJ, or any other Governmental Authority or Person may assert under any applicable Antitrust Laws with respect to the Offer and/or the MergerAct.
(b) Each of Parent and Acquisition Sub (and their respective Affiliates, if applicable), on the one hand, Buyer and the Company, on as promptly as practicable, shall make, or cause to be made, all other filings and submissions under Laws, rules and regulations applicable to it, or to its Subsidiaries and Affiliates, as may be required for it to consummate the transactions contemplated herein and use its commercially reasonable efforts to obtain, or cause to be obtained, all other handauthorizations, approvals, consents and waivers from all Governmental Authorities and other Persons necessary to be obtained by it, or its Subsidiaries or Affiliates, in order for it to consummate such transactions.
(c) The Buyer, the Company and the Seller shall coordinate and cooperate with one another in exchanging and providing such information to each other and in making the filings and requests referred to in Sections 7.2(a) and 7.2(b). The parties hereto shall supply such reasonable assistance as may be reasonably requested by any other party hereto in connection with the foregoing.
(d) Notwithstanding anything to the contrary herein, if any Order is made by any Governmental Authority or any suit is threatened or instituted challenging any of the transactions contemplated by this Agreement as violative of any Antitrust Law, the Buyer, the Company and the Seller shall take such action as may be required (i) by the applicable Governmental Authority (including, without limitation, the Antitrust Division of the United States Department of Justice or the Federal Trade Commission) in order to resolve such objections as such Governmental Authority may have to such transactions under such Antitrust Law or (ii) by any domestic or foreign court or similar tribunal, in any suit brought by any Person or Governmental Authority challenging the transactions contemplated by this Agreement as violative of any Antitrust Law, in order to avoid the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other order that has the effect of preventing the consummation of the transactions contemplated by this Agreement.
(e) Each of the Buyer, the Company and the Seller shall promptly inform the other parties of any material communication from the Federal Trade Commission, the Department of Justice or any other Governmental Authority regarding any of the transactions contemplated by this Agreement in connection with any filings or investigations with, by or before any Governmental Authority relating to this Agreement Agreement. If the Buyer or the transactions contemplated hereby, including Company or any proceedings initiated by a private party. If any party hereto or Affiliate thereof shall receive of their respective Affiliates receives a request for additional information or documentary material from any such Governmental Authority with respect to the transactions contemplated by this Agreement pursuant to the HSR or any other Antitrust Laws with respect to which any such filings have been madeAgreement, then such party shall use its reasonable best efforts will endeavor in good faith to make, or cause to be made, as soon as reasonably practicable and after consultation with the other partyparty or parties, an appropriate response in compliance with such request. In connection with and without limiting Each of the foregoing, to the extent reasonably practicable and unless prohibited by applicable Law or by the applicable Governmental AuthorityBuyer, the Company and the Seller will advise the other parties hereto agree promptly in respect of any understandings, undertakings or agreements (oral or written) which the Buyer, the Company or the Seller proposes to (i) give each make or enter into with the Federal Trade Commission, the Department of Justice or any other reasonable advance notice of all meetings with any Governmental Authority relating to the Offer or the Merger, (ii) give each other an opportunity to participate in each of such meetings, (iii) keep the other party reasonably apprised with respect to any oral communications with any Governmental Authority regarding the Offer or the Merger, (iv) cooperate in the filing of any analyses, presentations, memoranda, briefs, arguments, opinions or other written communications explaining or defending the Offer and the Merger, articulating any regulatory or competitive argument and/or responding to requests or objections made by any Governmental Authority, (v) provide each other with a reasonable advance opportunity to review and comment upon, and consider in good faith the views of the other with respect to, all written communications (including any analyses, presentations, memoranda, briefs, arguments and opinions) with a Governmental Authority regarding the Offer and the Merger, (vi) provide each other (or counsel of each party, as appropriate) with copies of all written communications to or from any Governmental Authority relating to the Offer or the Merger, and (vii) cooperate and provide each other with a reasonable opportunity to participate in, and consider in good faith the views of the other with respect to, all material deliberations with respect to all efforts to satisfy the conditions set forth in clauses (A) and (C)(1) of Annex A and Section 9.1(c). Any such disclosures, rights to participate or provisions of information by one party to the other may be made on a counsel-only basis to the extent required under applicable Law or as appropriate to protect confidential business information or the attorney client privilege or attorney work product.
(c) Each of Parent, Acquisition Sub and the Company shall cooperate with one another in good faith to (i) promptly determine whether any filings not contemplated by Section 8.2(a) are required to be or should be made, and whether any other consents, approvals, permits or authorizations not contemplated by Section 8.2(a) are required to be or should be obtained, from any Governmental Authority under any other applicable Law in connection with the transactions contemplated hereby, and (ii) promptly make any filings, furnish information required in connection therewith and seek to obtain timely any such consents, permits, authorizations, approvals or waivers that the parties determine are required to be or should be made or obtained in connection with the transactions contemplated hereby.
(d) Notwithstanding anything to the contrary in this Agreement, in connection with any filing or submission required or action to be taken by either Parent or the Company to consummate the Offer and the Merger, in no event shall Parent or any of its Subsidiaries or Affiliates be obligated to propose or agree to accept any undertaking or condition, to enter into any consent decree, to make any divestiture or accept any operational restriction, or take or commit to take any action (i) the effectiveness or consummation of which is not conditional on the consummation of the Offer and the Merger or (ii) that individually or in the aggregate (x) is or would reasonably be expected to be materially adverse (with materiality, for purposes of this provision, being measured in relation to the size of the Company and its Subsidiaries taken as a whole) to (A) the Company and its Subsidiaries, taken as a whole, or Parent and its Subsidiaries, taken as a whole, either before or after giving effect to the Offer or the Merger, or (B) Parent’s ownership or operation of any material portion of the business or assets of the Company and its Subsidiaries, taken as a whole, or (y) would reasonably be expected to deny Parent the material benefit of the bargains contemplated by the transactions contemplated by this Agreement. The Company No party shall agreeparticipate in any meeting with any Governmental Authority in respect of any such filings, if requested by Parent in writinginvestigation, or other inquiry without giving the other party prior notice of the meeting and, to commit the extent permitted by such Governmental Authority, the opportunity to take any of the forgoing actions with respect to the assets or business of the Company in furtherance of this Section 8.2attend and participate; provided, howeverhowever that nothing herein shall preclude any party from participating in discussions with a Governmental Authority without participation by the other party where the discussions are initiated by the Governmental Authority, or where the subject matter in the reasonable judgment of that any such action may party cannot be conditioned upon effectively discussed in the consummation presence of the Merger and other Transactions contemplated by this Agreementparty.
Appears in 1 contract
Regulatory Filings. (a) Each of Parent Seller and Acquisition Sub (and their respective AffiliatesBuyer shall as promptly as practicable, if applicable), on the one hand, and the Company, on the other hand, shall (x) file with the FTC and the Antitrust Division of the DOJ a Notification and Report Form relating to this Agreement and the transactions contemplated hereby as required by the HSR Act as soon as reasonably practicable from the date following execution and delivery of this Agreement but in no event later than ten (10) Business Days following the execution and delivery of this Agreement, (i) file or cause to be filed with the FTC and the DOJ the notification and report form, if any, required for the transactions contemplated hereby and any supplemental information requested in connection therewith pursuant to the HSR Act and (yii) file comparable pre-merger or post-merger notification filings, forms and submissions with any foreign Governmental Authority that is required by any make such other Antitrust Laws filings as are necessary in other jurisdictions as soon as reasonably practicable from in order to comply with all Applicable Laws relating to competition and shall promptly provide any supplemental information requested by applicable Governmental Bodies relating thereto. Any such notification and report form and supplemental information shall be in substantial compliance with the date following execution requirements of the HSR Act and delivery of this Agreement but in no event later than ten (10) Business Days following the execution and delivery of this Agreementsuch other Applicable Law. Each of Parent Seller and the Company Buyer shall (i) cooperate and coordinate with furnish to the other in the making of such filings, (ii) supply necessary information and reasonable assistance as the other may request in connection with its preparation of any information filing or submission that may be required in order to make is necessary under the HSR Act and such filingsother Applicable Law. Seller and Buyer shall keep each other apprised of the status of any communications with, (iii) supply and any inquiries or requests for additional information that reasonably may be required or requested by from, the FTC, the DOJ or the Governmental Authorities of and any other jurisdiction in which applicable Governmental Body and shall comply promptly with any such filing is inquiry or request and shall promptly provide any supplemental information requested in connection with the filings made under any other Antitrust Laws, and (iv) use reasonable best efforts hereunder pursuant to take all action necessary to cause the expiration or termination of the applicable waiting periods under the HSR Act and such other Applicable Law. Any such supplemental information shall be in substantial compliance with the requirements of the HSR Act and such other Applicable Law. Further, and without limiting the generality of the rest of this Section 5.05, each of the parties shall cooperate in all respects with each other in connection with any filing or submission and in connection with any investigation or other Antitrust Laws as soon as practicable, inquiry and to obtain any required consents under any other Antitrust Laws applicable shall promptly (i) furnish to the Offer and/or the Merger as soon as practicable, other such necessary information and to avoid any impediment to the consummation of the Offer or the Merger under any Antitrust Laws, including using reasonable best efforts to take all such action as reasonably may be necessary to resolve such objections, if any, assistance as the FTC, other parties may request in connection with the DOJ, or any other Governmental Authority or Person may assert under any applicable Antitrust Laws with respect to the Offer and/or the Merger.
foregoing; (bii) Each of Parent and Acquisition Sub (and their respective Affiliates, if applicable), on the one hand, and the Company, on the other hand, shall promptly inform the other of any material communication from any Governmental Authority Body regarding any of the transactions contemplated by this Agreement Agreement; and (iii) provide counsel for the other party with copies of all filings made by such party, and all correspondence between such party (and its advisors) with any Governmental Body and any other information supplied by such party and such party’s Subsidiaries to a Governmental Body or received from such a Governmental Body in connection with any filings or investigations with, by or before any Governmental Authority relating to this Agreement or the transactions contemplated hereby, including any proceedings initiated by a private party. If any party hereto or Affiliate thereof shall receive a request for additional information or documentary material from any Governmental Authority with respect to the transactions contemplated by this Agreement pursuant Agreement; provided, however, that materials may be redacted (x) to remove references concerning the HSR valuation of the Companies and (y) as necessary to comply with contractual arrangements or any other Antitrust Laws with respect Applicable Law. Each party hereto shall, subject to which any such filings have been madeApplicable Laws, then such party shall use its reasonable best efforts to make, or cause to be made, as soon as reasonably practicable and after consultation with permit counsel for the other party, an appropriate response in compliance with such request. In connection with and without limiting the foregoing, to the extent reasonably practicable and unless prohibited by applicable Law or by the applicable Governmental Authority, the parties hereto agree to (i) give each other reasonable advance notice of all meetings with any Governmental Authority relating to the Offer or the Merger, (ii) give each other an opportunity to participate in each of such meetings, (iii) keep the other party reasonably apprised with respect to any oral communications with any Governmental Authority regarding the Offer or the Merger, (iv) cooperate in the filing of any analyses, presentations, memoranda, briefs, arguments, opinions or other written communications explaining or defending the Offer and the Merger, articulating any regulatory or competitive argument and/or responding to requests or objections made by any Governmental Authority, (v) provide each other with a reasonable advance opportunity to review and comment uponin advance, and consider in good faith the views of the other with respect toparties in connection with, all any proposed written communications (including any analyses, presentations, memoranda, briefs, arguments and opinions) with a Governmental Authority regarding the Offer and the Merger, (vi) provide each other (or counsel of each party, as appropriate) with copies of all written communications communication to or from any Governmental Authority relating to the Offer or the Merger, and (vii) cooperate and provide each other with a reasonable opportunity to participate in, and consider in good faith the views of the other with respect to, all material deliberations with respect to all efforts to satisfy the conditions set forth in clauses (A) and (C)(1) of Annex A and Section 9.1(c). Any such disclosures, rights to participate or provisions of information by one party to the other may be made on a counsel-only basis to the extent required under applicable Law or as appropriate to protect confidential business information or the attorney client privilege or attorney work product.
(c) Each of Parent, Acquisition Sub and the Company shall cooperate with one another in good faith to (i) promptly determine whether any filings not contemplated by Section 8.2(a) are required to be or should be made, and whether any other consents, approvals, permits or authorizations not contemplated by Section 8.2(a) are required to be or should be obtained, from any Governmental Authority under any other applicable Law Body in connection with the transactions contemplated hereby, and (ii) promptly make any filings, furnish information required in connection therewith and seek to obtain timely any such consents, permits, authorizations, approvals or waivers that the parties determine are required to be or should be made or obtained in connection with the transactions contemplated hereby.
(d) Notwithstanding anything to the contrary in this Agreement, in connection with any filing or submission required or action to be taken by either Parent or the Company to consummate the Offer and the Merger, in no event shall Parent or any of its Subsidiaries or Affiliates be obligated to propose or agree to accept any undertaking or condition, to enter into any consent decree, to make any divestiture or accept any operational restriction, or take or commit to take any action (i) the effectiveness or consummation of which is not conditional on the consummation of the Offer and the Merger or (ii) that individually or in the aggregate (x) is or would reasonably be expected to be materially adverse (with materiality, for purposes of this provision, being measured in relation to the size of the Company and its Subsidiaries taken as a whole) to (A) the Company and its Subsidiaries, taken as a whole, or Parent and its Subsidiaries, taken as a whole, either before or after giving effect to the Offer or the Merger, or (B) Parent’s ownership or operation of any material portion of the business or assets of the Company and its Subsidiaries, taken as a whole, or (y) would reasonably be expected to deny Parent the material benefit of the bargains contemplated by the transactions contemplated by this Agreement. The Company shall agreeSeller agrees not to participate, if requested or to permit their Subsidiaries to participate, in any substantive meeting or discussion, either in person or by Parent telephone, with any Governmental Body in writingconnection with the transactions contemplated by this Agreement unless it consults with Buyer in advance and, to commit the extent not prohibited by such Governmental Body, gives Buyer the opportunity to attend and participate.
(b) Buyer and its Affiliates shall take whatever action is reasonably necessary to obtain any of clearance under the forgoing actions with respect to the assets or business of the Company in furtherance of this Section 8.2; provided, however, that any HSR Act and such action may be conditioned upon other Applicable Law for the consummation of the Merger transactions contemplated by this Agreement prior to the Termination Date and to prevent the FTC, DOJ or other Transactions Governmental Body, as the case may be, from filing an Antitrust Law action with a court or Governmental Body, which if the Governmental Body were to prevail, would restrain, enjoin or otherwise prevent or materially delay the consummation of the transactions contemplated by this Agreement. In the event any action is threatened by any Governmental Body or any Person challenging the transactions contemplated by this Agreement as violative of the Antitrust Laws, Buyer and/or its Subsidiaries and Affiliates shall take such actions, but not including any divestiture, as may be necessary to avoid, resist or resolve such action prior to the Termination Date. In addition, Buyer and/or its Affiliates shall take such action as may be required by any federal or state court of the United States or any Antitrust Law, in any action brought by a Governmental Body or any other Person challenging the transactions contemplated by this Agreement as violative of the Antitrust Laws in order to avoid the entry of any preliminary or permanent injunction or other preliminary or permanent order that would restrain, enjoin or otherwise prevent or materially delay the consummation of the transactions contemplated by this Agreement, and in the event that any permanent or preliminary injunction or other order is entered or becomes reasonably foreseeable to be entered in any proceeding that would make consummation of the transactions contemplated hereby in accordance with the terms of this Agreement unlawful or that would restrain, enjoin or otherwise prevent the consummation of the transactions contemplated by this Agreement, Buyer and/or its Affiliates shall take promptly any steps necessary to vacate, modify or suspend such injunction or order so as to permit such consummation prior to the Termination Date. In the event that any Governmental Body with the authority to clear or approve the transactions contemplated by this Agreement issues or is likely to issue an order not clearing or approving such transactions, Buyer and its Affiliates shall take such action, as may be reasonably necessary to avoid, resist, dissolve, reverse or resolve such action prior to the Termination Date. Buyer and Seller shall cooperate with each other (including complying with reasonable requests for information) in obtaining the expiration of the waiting period under the HSR Act, obtaining any clearance or approval under any Antitrust Law, defending any Antitrust Law action, preventing any action that would prevent the consummation of the transactions contemplated by this Agreement or reversing, lifting or removing any order of a Governmental Body delaying or prohibiting the consummation of the transactions contemplated by this Agreement. Buyer shall be entitled to direct any proceedings or negotiations with any Governmental Body. Under no circumstances shall Buyer be required to make any divestiture in order to obtain any clearance under the HSR Act or such other Applicable Law for the consummation of the transactions contemplated by this Agreement.
Appears in 1 contract
Regulatory Filings. (a) Each of Parent and Acquisition Sub (and their respective Affiliates, if applicable), on the one hand, and the Company, on the other hand, shall (x) file with the FTC and the Antitrust Division of the DOJ a Notification and Report Form relating to this Agreement and the transactions contemplated hereby as required by the HSR Act as soon as reasonably practicable from the date following execution and delivery Following termination of this Agreement but in no event later than ten (10) Business Days following the execution and delivery of this Agreement, and (y) file comparable pre-merger or post-merger notification filings, forms and submissions with any foreign Governmental Authority that is required by any other Antitrust Laws as soon as reasonably practicable from the date following execution and delivery of this Agreement but in no event later than ten (10) Business Days following the execution and delivery of this Agreement. Each of Parent and the Company shall (i) cooperate and coordinate with the other in the making of such filings, (ii) supply the other with any information that may be required in order to make such filings, (iii) supply any additional information that reasonably may be required or requested by the FTC, the DOJ or the Governmental Authorities of any other jurisdiction in which any such filing is made under any other Antitrust Laws, and (iv) use reasonable best efforts to take all action necessary to cause the expiration or termination of the applicable waiting periods under the HSR Act or other Antitrust Laws as soon as practicable, and to obtain any required consents under any other Antitrust Laws applicable to the Offer and/or the Merger as soon as practicable, and to avoid any impediment to the consummation of the Offer or the Merger under any Antitrust Laws, including using reasonable best efforts to take all such action as reasonably may be necessary to resolve such objections, if any, as the FTC, the DOJ, or any other Governmental Authority or Person may assert under any applicable Antitrust Laws with respect to the Offer and/or the Merger.
(b) Each of Parent and Acquisition Sub (and their respective Affiliates, if applicable), on the one hand, and the Company, on the other hand, shall promptly inform the other of any communication from any Governmental Authority regarding any of the transactions contemplated by this Agreement in connection with any filings or investigations with, by or before any Governmental Authority relating to this Agreement or the transactions contemplated hereby, including any proceedings initiated by a private party. If any party hereto or Affiliate thereof shall receive a request for additional information or documentary material from any Governmental Authority with respect to the transactions contemplated by this Agreement Amicus pursuant to the HSR Section 13.2 or any other Antitrust Laws with respect by GSK pursuant to Section 13.3, at Amicus’ written election, which any such filings have been madeshall be exercised by written notice to GSK, then such party shall use its reasonable best efforts to make, GSK will assign and transfer (or cause to be made, as soon as reasonably practicable assigned and after consultation with the other party, an appropriate response in compliance with such request. In connection with and without limiting the foregoing, transferred) to Amicus or its designee (or to the extent reasonably practicable and unless prohibited by applicable Law not so assignable, GSK shall take all reasonable action to make available to Amicus or by its designee) the applicable Governmental Authority, the parties hereto agree to (i) give each other reasonable advance notice benefits of all meetings with any Governmental Authority relating regulatory submissions and filings and marketing approvals (including all INDs, ▇▇▇▇ and Marketing Approvals) related to the Offer Compound or the MergerTerminated Product(s) in the Affected Area, including such regulatory submissions and registrations made or owned by GSK’s Affiliates and Sublicensees; provided that GSK may retain a copy of all such regulatory submissions and filing and marketing approvals and shall retain a right of reference to all such regulatory submissions, filings, and marketing approvals, for use in connection with the non-Terminated Product(s) and in the non-terminated countries of the GSK Territory. In each case, unless otherwise required by any applicable Law, GSK shall use all reasonable efforts to make such foregoing assignment (ii) give each other an opportunity to participate in each or availability), within ****** after the effective date of any such meetingstermination (or, (iii) keep the other party reasonably apprised with respect to any oral communications with any Governmental Authority regarding such regulatory filings pertaining to an Ongoing Trial that GSK is continuing to conduct pursuant to Section 14.3.4 above, within ****** after the Offer or the Mergercompletion of such Ongoing Trial), (iv) cooperate in the filing of any analyses, presentations, memoranda, briefs, arguments, opinions or other written communications explaining or defending the Offer and the Merger, articulating any regulatory or competitive argument and/or responding to requests or objections made by any Governmental Authority, (v) provide each other with a reasonable advance opportunity to review and comment upon, and consider in good faith the views of the other with respect to, all written communications (including any analyses, presentations, memoranda, briefs, arguments and opinions) with a Governmental Authority regarding the Offer and the Merger, (vi) provide each other (or counsel of each party, as appropriate) with copies of all written communications to or from any Governmental Authority relating to the Offer or the Merger, and (vii) cooperate and provide each other with a reasonable opportunity to participate in, and consider in good faith the views of the other with respect to, all material deliberations with respect to all efforts to satisfy the conditions set forth in clauses (A) and (C)(1) of Annex A and Section 9.1(c). Any such disclosures, rights to participate or provisions of information by one party to the other may be made on a counsel-only basis to the extent required under applicable Law or as appropriate to protect confidential business information or the attorney client privilege or attorney work product.
(c) Each of Parent, Acquisition Sub and the Company shall cooperate with one another in good faith to (i) promptly determine whether any filings not contemplated by Section 8.2(a) are required to be or should be made, and whether any other consents, approvals, permits or authorizations not contemplated by Section 8.2(a) are required to be or should be obtained, from any Governmental Authority under any other applicable Law in connection with the transactions contemplated hereby, and (ii) promptly make any filings, furnish information required in connection therewith and seek to obtain timely any such consents, permits, authorizations, approvals or waivers that the parties determine are required to be or should be made or obtained in connection with the transactions contemplated hereby.
(d) Notwithstanding anything to the contrary in this Agreement, in connection with any filing or submission required or action to be taken by either Parent or the Company to consummate the Offer and the Merger, in no event shall Parent or any of its Subsidiaries or Affiliates be obligated to propose or agree to accept any undertaking or condition, to enter into any consent decree, to make any divestiture or accept any operational restriction, or take or commit to take any action (i) the effectiveness or consummation of which is not conditional on the consummation of the Offer and the Merger or (ii) that individually or in the aggregate (x) is or would reasonably be expected to be materially adverse (with materiality, for purposes of this provision, being measured in relation to the size of the Company and its Subsidiaries taken as a whole) to (A) the Company and its Subsidiaries, taken as a whole, or Parent and its Subsidiaries, taken as a whole, either before or after giving effect to the Offer or the Merger, or (B) Parent’s ownership or operation of any material portion of the business or assets of the Company and its Subsidiaries, taken as a whole, or (y) would reasonably be expected to deny Parent the material benefit of the bargains contemplated by the transactions contemplated by this Agreement. The Company shall agree, if requested by Parent in writing, to commit to take any of the forgoing actions with respect to the assets or business of the Company in furtherance of this Section 8.2; provided, however, that in the event that GSK is unable to make such assignment or to make such regulatory filings available to Amicus within ****** after the effective date of any such action may termination (or the completion of such Ongoing Trial, as applicable) due to factors beyond GSK’s reasonable control, ****** - Material has been omitted and filed separately with the Commission. then GSK shall so notify Amicus and (including the reason for any such delay) prior to the expiration of such ****** period and the Parties shall mutually agree (such agreement not to be conditioned upon the consummation of the Merger and other Transactions contemplated unreasonably withheld by this Agreementeither Party) an appropriate extension to such ****** period.
Appears in 1 contract
Sources: License and Collaboration Agreement (Amicus Therapeutics Inc)
Regulatory Filings. (a) Each of Parent and Acquisition Sub (and their respective Affiliates, if applicable), on the one hand, Sellers and the CompanyPurchasers agree, on as soon as practicable after the date of this Agreement, to make all appropriate filings under any applicable merger control laws in the European Union (including under the EU Merger Regulation) and any other hand, shall applicable antitrust laws in any other jurisdictions (xfor the avoidance of doubt not including Canada or Mexico) and to file with the FTC and the Antitrust Division of the DOJ a Notification and Report Form relating pursuant to this Agreement and the United States Hart-▇▇▇▇▇-▇▇▇▇▇▇ ▇▇▇itrust Improvements Act of 1976, as amended (the "HSR ACT") with respect to the transactions contemplated hereby as required by the hereby. The HSR Act as soon as reasonably practicable from and the date following execution applicable merger control and delivery of this Agreement but antitrust laws in no event later than ten (10) Business Days following the execution European Union and delivery of this Agreement, and (y) file comparable pre-merger or post-merger notification filings, forms and submissions with any foreign Governmental Authority that is required by any other Antitrust Laws jurisdiction as soon referred to in the preceding sentence are referred to herein as reasonably practicable from the date following execution and delivery of this Agreement but in no event later than ten (10) Business Days following the execution and delivery of this Agreement"ANTITRUST LAWS". Each of Parent the Sellers and the Company shall (i) cooperate each relevant Purchaser agrees to supply to any relevant competent authorities as promptly as practicable any additional information and coordinate with the other in the making of such filings, (ii) supply the other with any information documentary material that may be required in order requested pursuant to make such filings, (iii) supply any additional information that reasonably may be required or requested by the FTC, the DOJ or the Governmental Authorities of any other jurisdiction in which any such filing is made under any other Antitrust Laws, Laws and (ivsubject to Exhibit 4.3) use reasonable best efforts to take all action other actions necessary to obtain all requisite approvals and authorizations and to cause the expiration or termination of the applicable waiting periods (or similar requirements) under the HSR Act or other Antitrust Laws such laws as soon as practicable, and to obtain any required consents under any other Antitrust Laws applicable to the Offer and/or the Merger as soon as practicable, and to avoid any impediment to the consummation of the Offer or the Merger under any Antitrust Laws, including using reasonable best efforts to take all such action as reasonably may be necessary to resolve such objections, if any, as the FTC, the DOJ, or any other Governmental Authority or Person may assert under any applicable Antitrust Laws with respect to the Offer and/or the Merger.
(b) Each of Parent Subject to Exhibit 4.3 in order to obtain all requisite approvals and Acquisition Sub (authorisations for the transactions contemplated by this Agreement under the merger control laws in the European Union, the HSR Act and their respective Affiliatesany other Antitrust Law, if applicable), on the one hand, relevant Purchaser and the CompanySellers shall (i) co-operate in all respects with each other in connection with any filing or submission and in connection with any investigation or other inquiry, on including any proceeding initiated by a private party, (ii) keep the other hand, shall promptly inform Sellers or relevant Purchaser (as the other case may be) informed in all material respects of any material communication from received by such party from, or given by such party to, any Governmental Authority relevant competent authorities and of any material communication received or given in connection with any proceeding by a private party, in each case regarding any of the transactions contemplated hereby and (iii) permit the Sellers or relevant Purchaser (as the case may be) a reasonable opportunity to be consulted in advance of any meeting or conference with any such competent authority or in connection with any proceeding by a private party. 33 33
(c) If any objections are asserted with respect to the transactions contemplated hereby under any Antitrust Law or if any suit is instituted by any competent authority (including the European Commission) or any private party challenging any of the transactions contemplated hereby as violative of any Antitrust Law, then, subject to Exhibit 4.3, the relevant Purchaser and the Sellers shall be obligated to (i) take all necessary steps to resolve such objections or challenge as such competent authority or private party may have to such transactions under such Antitrust Law so as to permit consummation of the transactions contemplated by this Agreement in connection and (ii) pursue a resolution with any filings competent authority and, if acceptable to any competent authority, enter into a settlement, consent, decree or investigations with, by or before any Governmental Authority relating other agreement with such competent authority necessary to this Agreement or permit the transactions contemplated herebyby this Agreement.
(d) If a competent authority decides to deny its approval, as required under any applicable Antitrust Law, of the transactions contemplated hereby or any administrative or judicial action or proceeding, including any proceedings initiated proceeding by a private party. If , is instituted (or threatened to be instituted) challenging any party hereto transaction contemplated by this Agreement as violative of any Antitrust Law, (subject to Exhibit 4.3) the relevant Purchaser and the Sellers shall co-operate in all respects with each other and shall contest any such decision, action or Affiliate thereof shall receive a request for additional information proceeding and take all necessary steps to have vacated, lifted, reversed or documentary material from overturned any Governmental Authority with respect to decree, judgement, injunction or other order, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents or restricts consummation of the transactions contemplated by this Agreement under any applicable Antitrust Law, including, without limitation, defending in litigation on the merits any claim asserted in any court through a final and non-appealable judgement.
(e) If the failure to satisfy the requirements of any Antitrust Law in any jurisdiction, other than in any jurisdiction within the European Union (including pursuant to the HSR EU Merger Regulation) or the United States of America, prevents the Closing in respect of the shares in any other Group Company, then (in the case of Arrow subject to the closing condition in Section 4.2(a)(i)(A)) the relevant Purchaser and the Sellers shall be obliged to comply with their respective obligations on Closing (save to the extent that such obligations relate to the acquisition of such shares), and the Purchasers' obligations to pay the full purchase price for the 34 34 portions of the Group acquired by each of them at Closing shall not be affected thereby, provided that Closing on such basis does not violate any Antitrust Laws. The relevant Parties shall endeavour to agree, upon request of any of them, on any appropriate action or suitable amendment to this Agreement in order to ensure, as far as practicable, that the Closing does not so violate any Antitrust Laws. Following Closing, the relevant Purchaser and the Sellers shall endeavour to obtain any necessary approval in respect of Antitrust Laws with respect to which any such filings have been made, then such party shall use its reasonable best efforts to make, or cause enable the relevant shares to be made, transferred to the relevant Purchaser without payment of any further consideration and as soon as reasonably practicable such approval is available the Sellers shall complete such transfer. Pending completion of such transfer the relevant Purchaser and the Sellers shall enter into such arrangements (subject to compliance with Antitrust Laws) as give commercial effect to the intent of the Parties to close the sales of each Group Company to be purchased by a Purchaser simultaneously. If the approval is not obtained within six months after Closing with the relevant Purchaser, the Sellers shall procure the sale of the relevant business or shares (after consultation with the relevant Purchaser) and shall pay to the relevant Purchaser any proceeds of sale, net of any taxes and reasonable expenses.
(f) If (a) either Arrow or Avnet are unable to complete the acquisition of the relevant Group Companies to be purchased by them as a result of the conditions in Section 4.2(a)(i) not having been satisfied by February 28, 2001 but (b) the acquisition by the other partyPurchasers (including Memec Purchaser) of the Group Companies to be purchased by them shall close on or prior to such date and (c) either Arrow or Avnet (as the case may be) terminate this Agreement in respect of either Arrow or Avnet (as the case may be) in accordance with Article 10 as a result of such failure of the conditions in Article 4.2(a) or the Sellers terminate this Agreement after May 15, 2001 in respect of either Arrow or Avnet (as the case may be) in accordance with Article 10 as a result of such failure, (i) each Purchaser that is unable to complete the acquisition shall pay to the Sellers an appropriate response amount of $ 25 million in compliance with aggregate as a fee for such request. In connection with termination and without limiting each Purchaser that is able to complete the foregoingacquisition of the relevant Group Companies shall, on Closing of such acquisition or, if Closing has already occurred, within five business days of being notified in writing, pay an additional amount of $ 25 million by way of increase in the Final Share Purchase Price, which shall be allocated, in the case of Memec Purchaser, to the extent reasonably practicable shares in Memec 35 35 LLC, in the case of Avnet, to the shares in EBV-Elektronik GmbH, and unless prohibited by applicable Law or by in the applicable Governmental Authoritycase of Arrow, to the shares in EBV Electronic Holdings Inc. Notwithstanding any other provisions of this Agreement, the parties hereto agree to payments by each Purchaser under this paragraph (if) give each other reasonable advance notice shall be in full and final discharge of all meetings with any Governmental Authority relating to the Offer or the Merger, (ii) give each other an opportunity to participate liabilities of it in each respect of its obligations under this Article 4.3 and all obligations of such meetings, Purchaser under or in respect of Article 4.3 shall cease upon termination of this Agreement in respect of such Purchaser in accordance with Article 10. This paragraph (iiif) keep shall not apply if both Arrow and Avnet are unable to complete the other party reasonably apprised with respect to any oral communications with any Governmental Authority regarding the Offer or the Merger, (iv) cooperate in the filing of any analyses, presentations, memoranda, briefs, arguments, opinions or other written communications explaining or defending the Offer and the Merger, articulating any regulatory or competitive argument and/or responding to requests or objections made by any Governmental Authority, (v) provide each other with acquisitions contemplated hereby as a reasonable advance opportunity to review and comment upon, and consider in good faith the views result of the other with respect to, all written communications (including any analyses, presentations, memoranda, briefs, arguments and opinions) with a Governmental Authority regarding the Offer and the Merger, (vi) provide each other (or counsel of each party, as appropriate) with copies of all written communications to or from any Governmental Authority relating to the Offer or the Merger, and (vii) cooperate and provide each other with a reasonable opportunity to participate in, and consider in good faith the views of the other with respect to, all material deliberations with respect to all efforts failure to satisfy the conditions set forth in clauses (ASection 4.2(a)(i) and (C)(1) of Annex A and on or before the date specified in Section 9.1(c10.1(e). Any such disclosures, rights to participate or provisions of information by one party to the other may be made on a counsel-only basis to the extent required under applicable Law or as appropriate to protect confidential business information or the attorney client privilege or attorney work product.
(c) Each of Parent, Acquisition Sub and the Company shall cooperate with one another in good faith to (i) promptly determine whether any filings not contemplated by Section 8.2(a) are required to be or should be made, and whether any other consents, approvals, permits or authorizations not contemplated by Section 8.2(a) are required to be or should be obtained, from any Governmental Authority under any other applicable Law in connection with the transactions contemplated hereby, and (ii) promptly make any filings, furnish information required in connection therewith and seek to obtain timely any such consents, permits, authorizations, approvals or waivers that the parties determine are required to be or should be made or obtained in connection with the transactions contemplated hereby.
(d) Notwithstanding anything to the contrary but in this Agreement, case Purchasers or Sellers may terminate this Agreement in connection its entirety in accordance with any filing or submission required or action to be taken by either Parent or the Company to consummate the Offer and the Merger, in no event shall Parent or any of its Subsidiaries or Affiliates be obligated to propose or agree to accept any undertaking or condition, to enter into any consent decree, to make any divestiture or accept any operational restriction, or take or commit to take any action (i) the effectiveness or consummation of which is not conditional on the consummation of the Offer and the Merger or (ii) that individually or in the aggregate (x) is or would reasonably be expected to be materially adverse (with materiality, for purposes of this provision, being measured in relation to the size of the Company and its Subsidiaries taken as a whole) to (A) the Company and its Subsidiaries, taken as a whole, or Parent and its Subsidiaries, taken as a whole, either before or after giving effect to the Offer or the Merger, or (B) Parent’s ownership or operation of any material portion of the business or assets of the Company and its Subsidiaries, taken as a whole, or (y) would reasonably be expected to deny Parent the material benefit of the bargains contemplated by the transactions contemplated by this Agreement. The Company shall agree, if requested by Parent in writing, to commit to take any of the forgoing actions with respect to the assets or business of the Company in furtherance of this Section 8.2; provided, however, that any such action may be conditioned upon the consummation of the Merger and other Transactions contemplated by this AgreementSection.
Appears in 1 contract
Sources: Share Purchase Agreement (Avnet Inc)
Regulatory Filings. (a) Each of Parent and Acquisition Sub (and their respective Affiliates, if applicable), on the one hand, and the Company, on the other hand, shall (x) file with the FTC and the Antitrust Division of the DOJ a Notification and Report Form relating to this Agreement and the transactions contemplated hereby As promptly as required by the HSR Act as soon as reasonably practicable from the date following execution and delivery of this Agreement but in no event later than ten (10) Business Days following after the execution and delivery of this Agreement, and (y) file comparable pre-merger or post-merger notification filings, forms and submissions with any foreign Governmental Authority that is required by any other Antitrust Laws as soon as reasonably practicable from the date following execution and delivery of this Agreement but in no event later than ten (10) Business Days following the execution and delivery of this Agreement. Each each of Parent and the Company shall (i) cooperate with each other and coordinate with the other in the making of such filings, (ii) supply the other with any information that may be required in order to make such filings, (iii) supply any additional information that reasonably may be required or requested by the FTC, the DOJ or the Governmental Authorities of any other jurisdiction in which any such filing is made under any other Antitrust Laws, and (iv) use its reasonable best efforts to take take, or cause to be taken, all action necessary actions, and to do, or cause to be done, all things necessary, appropriate or desirable to consummate the expiration Transactions, including (i) within fifteen (15) Business Days after the date of this Agreement (unless a later date is mutually agreed between the parties), making or termination causing to be made all filings and submissions required to be made by Parent, the Company or any of the applicable waiting periods their Affiliates under the HSR Act or other Antitrust Laws as soon as practicableAct, and (ii) no later than forty-five (45) days after the date of this Agreement (and in any event prior to obtain the expiration of any applicable legal deadline), making or causing to be made all filings and submissions, with prenotification where appropriate, required consents to be made by any party or any of its Affiliates under any other applicable Antitrust Law or any Foreign Investment Law, as applicable, or other Laws applicable to the Offer and/or the Merger as soon as practicable, and to avoid any impediment to for the consummation of the Offer Transactions (the “Regulatory Filings”). The parties shall cooperate in good faith with the applicable Governmental Authorities in connection with the Regulatory Filings and submissions and shall, as promptly as practicable, comply with any requests for information, including, if applicable, requests for the production of documents and the production of witnesses for interviews or the Merger depositions by any Governmental Authorities. Parent will pay, or cause its Affiliates to pay, all filing fees required under any Antitrust Laws, including using reasonable best efforts to take all such action as reasonably may be necessary to resolve such objections, if any, as the FTC, the DOJ, Law or any other Governmental Authority or Person may assert under Foreign Investment Law for any applicable Antitrust Laws with respect to of the Offer and/or the MergerTransactions.
(b) Each of Parent and Acquisition Sub (and their respective Affiliates, if applicable), on the one hand, and the Company, on the other hand, shall promptly inform the other of any communication from any Governmental Authority regarding any of the transactions contemplated by this Agreement in connection with any filings or investigations with, by or before any Governmental Authority relating to this Agreement or the transactions contemplated hereby, including any proceedings initiated by a private party. If any party hereto or Affiliate thereof shall receive a request for additional information or documentary material from any Governmental Authority with respect to the transactions contemplated by this Agreement pursuant to the HSR or any other Antitrust Laws with respect to which any such filings have been made, then such party Company shall use its reasonable best efforts to make, assist and cooperate with each other in preparing and filing all documents required or cause reasonably deemed advisable by Parent to be made, as soon as reasonably practicable and after consultation submitted by any of them or their Affiliates to any Governmental Authority in connection with the other partyTransactions and in obtaining any Governmental Authority waiting period expirations or terminations, an appropriate response consents, waivers, authorizations, clearances or approvals which may be required to be obtained by Parent, the Company or any of their Affiliates in compliance with such request. In connection with the Transactions (which assistance and without limiting cooperation shall include timely furnishing to the foregoingrequesting party all information that may be reasonably required to be included in such documents or that would be reasonably required to obtain such waiting period expirations or terminations, consents, waivers, authorizations, clearances or approvals).
(c) Each of the parties shall promptly inform the other parties of any substantive communication from any Governmental Authority (including furnishing copies of written substantive communication) regarding any Regulatory Filing, and each of the parties shall have the right to review in advance, and to the extent reasonably practicable and unless prohibited by applicable Law or by the applicable Governmental Authoritypracticable, the parties hereto agree to (i) give each other reasonable advance notice of all meetings with any Governmental Authority relating to the Offer or the Merger, (ii) give each other an opportunity to participate in each of such meetings, (iii) keep will consult the other party reasonably apprised with respect prior to any oral communications with any Governmental Authority regarding the Offer or the Merger, (iv) cooperate in the filing of any analyses, presentations, memoranda, briefs, arguments, opinions or other written communications explaining or defending the Offer and the Merger, articulating any regulatory or competitive argument and/or responding to requests or objections made by any Governmental Authority, (v) provide each other with a reasonable advance opportunity to review and comment uponmaking, and consider in good faith the views of the other party with respect to, all written any filing made with, or other material communications (including any analysessubmitted with, presentations, memoranda, briefs, arguments and opinions) with a Governmental Authority regarding the Offer and the Merger, (vi) provide each other (or counsel of each party, as appropriate) with copies of all written communications to or from any Governmental Authority in connection with the Transactions. Subject to this Section 6.06 and applicable Laws relating to the Offer or the Mergerexchange of information, and (vii) cooperate and provide each other with a reasonable opportunity to participate in, and party shall consider in good faith the views of the other parties in connection with respect toany analysis, all material deliberations appearance, presentation, memorandum, brief, argument, opinion, proposal or other communication to be made or submitted in connection with respect any such request, inquiry, investigation, action or legal proceeding, and, to all efforts to satisfy the conditions set forth in clauses (A) and (C)(1) of Annex A and Section 9.1(c). Any such disclosuresextent practicable, rights to participate or provisions of information by one each party shall give reasonable advance notice to the other parties of, and give each other an opportunity to attend or participate in, material conferences, meetings and telephone or other communications between the other parties and Governmental Authorities concerning the Transactions, unless 47 prohibited by such Governmental Authority. Materials required to be provided pursuant to this Section 6.06(c) may be made on a counsel-only basis to the extent required under applicable Law or as appropriate to protect confidential business information or the attorney client privilege or attorney work product.
(c) Each of Parent, Acquisition Sub and the Company shall cooperate with one another in good faith to redacted (i) promptly determine whether any filings not contemplated by Section 8.2(a) are required to be or should be maderemove references concerning the valuation of the Company, and whether any other consents, approvals, permits or authorizations not contemplated by Section 8.2(a) are required to be or should be obtained, from any Governmental Authority under any other applicable Law in connection with the transactions contemplated hereby, and (ii) promptly make as necessary to comply with contractual arrangements in existence as of the date of this Agreement, (iii) as necessary to address attorney-client or other privilege concerns and (iv) to remove material that is unrelated to the Transactions. Each party, as each reasonably deems advisable, shall be entitled to designate any filingscompetitively sensitive material provided to the other parties under this Section 6.06 as “Antitrust/FDI Counsel Only Material,” and such materials and the information contained therein shall be given only to the outside antitrust and foreign direct investment counsel of the recipient and, furnish information required in connection therewith unless explicitly excluded, in-house counsel of the recipient approved by the providing party and seek will not be disclosed by such outside counsel or approved in-house counsel to obtain timely any such consents, permits, authorizations, approvals or waivers that other Representatives of the parties determine are required to be or should be made or recipient unless express written permission is obtained in connection with advance from the transactions contemplated herebysource of the materials or its legal counsel.
(d) Notwithstanding anything Each of Parent and the Company shall use its reasonable best efforts to defend through litigation on the contrary merits any claim under any applicable Antitrust Law asserted in court or any administrative or other tribunal by any third party, including any Governmental Authority of competent jurisdiction, challenging the Merger or any other transaction contemplated by this Agreement, or any other agreement contemplated hereby, in connection with order to avoid the entry of, or to have vacated or terminated, any filing decree, Order or submission required judgment (whether temporary, preliminary or action permanent) that would prevent the Closing Date from occurring prior to the Termination Date. Notwithstanding anything in this Agreement to the contrary, nothing in this Agreement shall require, or be taken by either construed to require, Parent or any Affiliate of Parent to (and the Company to consummate shall not, without the Offer and the Mergerprior written consent of Parent, in no event shall agree to) (i) sell, divest or otherwise convey particular assets, categories, portions or parts of assets or businesses of Parent or any of its Subsidiaries Affiliates; (ii) sell, divest or Affiliates be obligated otherwise convey any particular asset, category, portion or part of an asset or business of the Company Group contemporaneously with or subsequent to propose the Effective Time; (iii) permit the Company Group to sell, divest or agree otherwise convey any of the particular assets, categories, portions or parts of assets or businesses of the Company Group prior to accept any undertaking the Effective Time; or condition(iv) license, to hold separate or enter into similar arrangements with respect to their respective assets or the assets of the Company Group or conduct of business arrangements or terminate any consent decree, existing relationships or contractual rights and obligations as a condition to make obtaining any divestiture expirations of waiting periods under the HSR Act or accept consents from any operational restrictionGovernmental Authority necessary to consummate the Merger and the other Transactions. To the extent that ▇▇▇▇▇▇ agrees to take, or consents to the Company taking, any of the foregoing actions, the Company shall not be required to take or commit to take any such action, or agree to any such arrangement, unless such action or arrangement is conditioned upon the Closing.
(e) Subject to the foregoing clause (a) and through clause (d) in this Section 6.06, Parent shall have the right to (i) direct, devise and implement the effectiveness strategy for obtaining approvals or consummation expiration or, if applicable, terminations of which is not conditional on waiting periods, under the HSR Act, any other Antitrust Law, Foreign Investment Law or other Laws applicable to any party or its Affiliates and, in each case, required for the consummation of the Offer Transactions, and the Merger or (ii) control the defense and settlement of any Action relating to the Transactions that individually is brought by or before any Governmental Authority in connection with the aggregate Regulatory Filings; provided that, to the extent reasonably practicable, Parent shall consult in advance with the Company regarding, and consider in good faith any suggestions of the Company with respect to, the foregoing matters.
(xf) is During the Pre-Closing Period, none of Parent or any of its controlled Affiliates shall (i) acquire, (ii) publicly announce the intent to acquire, (iii) enter into any agreement to acquire, including by merging or consolidating with or, purchasing assets of or equity in, or (iv) announce any acquisition of, any person, business or asset, (A) involving products indicated to treat urinary or fecal incontinence and (B) if, in any such case, Parent or any of its controlled Affiliates announcing, entering into an agreement relating to, or consummating, any such acquisition would reasonably be expected to be materially adverse (with materiality1) impose a material delay in the expiration or termination of any applicable waiting period or impose a material delay in the obtaining of, for purposes or increase the risk of this provisionnot obtaining, being measured in relation any authorization, consent, clearance, approval, non-disapproval, declaration or order of a Governmental Authority necessary to consummate the Transactions, including receipt of any approvals and expiration of waiting periods pursuant to the size HSR Act or other applicable Antitrust Laws (including those set forth in in Section 7.01(d) of the Company and its Subsidiaries taken as Disclosure Schedule), (2) materially increase the risk of a whole) to (A) the Company and its SubsidiariesGovernmental Authority enacting, taken as a wholeissuing, promulgating, enforcing or entering, or Parent and its Subsidiariesmaterially increase the risk of not being able to remove or successfully challenge, taken as a wholeany permanent, either before preliminary or after giving effect to the Offer temporary injunction or the Mergerother Order or Law that would delay, restrain, prevent, enjoin or (B) Parent’s ownership otherwise prohibit or operation of any material portion of the business or assets of the Company and its Subsidiaries, taken as a whole, or (y) would reasonably be expected to deny Parent the material benefit of the bargains contemplated by the transactions contemplated by this Agreement. The Company shall agree, if requested by Parent in writing, to commit to take any of the forgoing actions with respect to the assets or business of the Company in furtherance of this Section 8.2; provided, however, that any such action may be conditioned upon make illegal the consummation of the Merger and other Transactions contemplated by this Agreementor (3) otherwise materially delay or impede the consummation of the Transactions.
Appears in 1 contract
Regulatory Filings. (a) Each of Parent and Acquisition Merger Sub (shall, and shall cause their respective AffiliatesAffiliates to, if applicable), on the one hand, and the Company, on the other hand, shall (x) file with the FTC and the Antitrust Division applicable Governmental Authority in each of the DOJ a Notification and Report Form relating to this Agreement and jurisdictions listed on Section 7.2(a) of the transactions contemplated hereby Company Disclosure Letter, the notifications as required by the HSR Act their respective Antitrust Laws, in each case as soon as reasonably practicable from after the date following execution and delivery of this Agreement but in no event later than ten (10) Business Days following the execution and delivery of this Agreement, and (y) file comparable pre-merger or post-merger notification filings, forms and submissions with any foreign other Governmental Authority that is required by any other Antitrust Laws as listed on Section 7.2(a) of the Company Disclosure Letter as soon as reasonably practicable from after the date following execution and delivery of this Agreement but and in no any event later than ten (10) Business Days following before the execution and delivery expiration of this Agreementany applicable legal deadline. Each of Parent and the Company shall (i) cooperate and coordinate with the other in the making of such filings, (ii) supply the other with any information that may be required in order to make such filings, (iii) supply any additional information that reasonably may be required or requested by the FTC, the DOJ or the any Governmental Authorities of any other jurisdiction Authority in which any such filing is made under any other Antitrust Laws, and (iv) use reasonable best efforts to take all action necessary to cause the expiration or termination of the applicable waiting periods under the HSR Act or other Antitrust Laws applicable to the Merger as soon as practicablepracticable (and in any event, prior to the Outside Date), including by seeking early termination thereof, to the extent applicable, to not take any action with the effect of extending any review or waiting period under applicable Antitrust Laws, (unless as expressly requested by the applicable Governmental Authority) and to obtain any required consents under any other Antitrust Laws applicable to the Offer and/or the Merger as soon as practicablepracticable (and in any event prior to the Outside Date), and to avoid any impediment to the consummation of the Offer or the Merger under any Antitrust Laws, including using reasonable best efforts to take all such action as reasonably may be necessary to resolve such objections, if any, as the FTC, the DOJ, or any other Governmental Authority or Person may assert under any applicable Antitrust Laws with respect to the Offer and/or the Merger.
(b) Each of Parent and Acquisition Merger Sub (shall, and shall cause their respective AffiliatesAffiliates to, if applicable), on the one hand, and the Company, on the other hand, shall promptly inform the other of any communication from any Governmental Authority regarding any of the transactions contemplated by this Agreement in connection with any filings or investigations with, by or before any Governmental Authority relating to this Agreement or the transactions contemplated hereby, including any proceedings initiated by a private party. If any party hereto or Affiliate thereof shall receive a request for additional information or documentary material from any Governmental Authority with respect to the transactions contemplated by this Agreement pursuant to the HSR or any other Antitrust Laws with respect to which any such filings that have been made, then such party shall use its reasonable best efforts to make, or cause to be made, as soon as reasonably practicable and after consultation with the other party, an appropriate response in compliance with such request. In connection with and without limiting the foregoing, to the extent reasonably practicable and unless prohibited by applicable Law or by the applicable Governmental Authority, the parties hereto agree to (i) give each other reasonable advance notice of all meetings with any Governmental Authority relating to the Offer or the Merger, (ii) give each other an opportunity to participate in each of such meetings, (iii) keep the other party reasonably apprised with respect to any oral communications with any Governmental Authority regarding the Offer or the Merger, (iv) cooperate in the filing of any analyses, presentations, memoranda, briefs, arguments, opinions or other written communications explaining or defending the Offer and the Merger, articulating any regulatory or competitive argument and/or responding to requests or objections made by any Governmental Authority, (v) provide each other with a reasonable advance opportunity to review and comment upon, and consider in good faith the views of the other with respect to, all written communications (including any analyses, presentations, memoranda, briefs, arguments and opinions) with a Governmental Authority regarding the Offer and the Merger, (vi) provide each other (or counsel of each party, as appropriate) with copies of all written communications to or from any Governmental Authority relating to the Offer or the Merger, and (vii) cooperate and provide each other with a reasonable opportunity to participate in, and consider in good faith the views of the other with respect to, all material deliberations with respect to all efforts to satisfy the conditions set forth in clauses (A) and (C)(1) of Annex A and Section 9.1(cSection 8.1(b). Any such disclosures, rights to participate or provisions of information by one party to the other may be made on a counsel-only basis to the extent required under applicable Law or as appropriate to protect confidential business information or the attorney client privilege or attorney work productinformation.
(c) Each of Parent, Acquisition Merger Sub and the Company shall cooperate with one another in good faith to (i) promptly determine whether any filings not contemplated by Section 8.2(aSection 7.2(a) are required to be or should be made, and whether any other consents, approvals, permits or authorizations not contemplated by Section 8.2(aSection 7.2(a) are required to be or should be obtained, from any Governmental Authority under any other applicable Law in connection with the transactions contemplated hereby, and (ii) promptly make any filings, furnish information required in connection therewith and seek to obtain timely any such consents, permits, authorizations, approvals or waivers that the parties determine are required to be or should be made or obtained in connection with the transactions contemplated hereby.
(d) Notwithstanding anything in this Agreement to the contrary in this Agreementcontrary, each of Parent and the Company agrees, and shall cause each of its Affiliates and/or Subsidiaries, to take any and all reasonable actions necessary to obtain any consents, clearances or approvals required under or in connection with any filing applicable Law (including Antitrust Law), and to enable all waiting periods under any applicable Law (including Antitrust Law) to expire, and to avoid or submission required eliminate each and every impediment under any applicable Law (including Antitrust Law) asserted by any Governmental Authority, in each case, to cause the Merger and the other transactions contemplated hereby to occur as soon as practicable and in any event prior to the Outside Date, including but not limited to (i) promptly complying with or action to be taken modifying any requests for additional information (including any second request) by either Parent any Governmental Authority, (ii) contesting, defending and appealing any threatened or pending preliminary or permanent injunction or other order, decree or ruling or statute, rule, regulation or executive order that would adversely affect the Company ability of any party hereto to consummate the Offer transactions contemplated hereby and taking any and all other actions to prevent the entry, enactment or promulgation thereof. From and after the date hereof and until all Approvals by Governmental Authorities required in connection with the Merger and the Mergerother transactions contemplated hereby have been obtained, in no event each of the Company and Parent shall Parent or any of not, and shall cause its Subsidiaries or Affiliates be obligated to propose or agree to accept any undertaking or conditionnot to, to consummate, enter into any consent decreeagreement providing for, to make or announce, any investment, acquisition, divestiture or accept any operational restriction, or take or commit to take any action (i) the effectiveness or consummation of which is not conditional on the consummation of the Offer and the Merger or (ii) other business combination that individually or in the aggregate (x) is or would reasonably be expected to be materially adverse increase in any material respect the risk of not obtaining any such governmental Approval.
(with materialitye) Nothing in this Agreement shall require Parent, for purposes the Surviving Company or any other subsidiary of this provisionParent to sell, being measured hold separate, license or otherwise dispose of any assets or conduct their business in relation a specified manner, or agree or propose to sell, hold separate, license or otherwise dispose of any assets or conduct their business in a specified manner, or permit or agree to the size sale, holding separate, licensing or other disposition of, any assets of Parent, the Surviving Company or any other subsidiary of Parent or the Company, whether as a condition to obtaining any approval from, or to avoid potential litigation or administrative action by, a Governmental Authority or any other person or for any other reason.
(f) Notwithstanding the provisions of Section 7.2(e) above, in the event that any of the approvals under any Antitrust Law in any Immaterial Jurisdiction is not received by the Company and Parent prior to the earlier of (i) the lapse of three (3) months from the date of this Agreement, and (ii) the date that all of the conditions to Closing set forth in Section 8.1, Section 8.2 and Section 8.3 (other than the conditions set out therein that are to be satisfied on the Closing Date) shall have been satisfied or waived by the party entitled to waive the same:
(i) Parent shall notify the Company of the failure to obtain the applicable approval required under applicable Antitrust Laws; and
(ii) Parent and the Company shall immediately enter into good faith discussions to agree on alternative solutions in order to consummate the Merger without the lawful requirement for such regulatory approval, including by way of divestment of the Company’s business in any such Immaterial Jurisdiction(s), and the parties hereto shall take commercially reasonable efforts (without requiring Parent to dispose any part of its Subsidiaries taken business as a wholeexisting prior to Closing) to (A) the Company and its Subsidiaries, taken as a whole, or Parent and its Subsidiaries, taken as a whole, either before or after giving effect to the Offer or the Merger, or (B) Parent’s ownership or operation of implement any material portion of the business or assets of the Company and its Subsidiaries, taken as a whole, or (y) would reasonably be expected to deny Parent the material benefit of the bargains contemplated by the transactions contemplated by this Agreement. The Company shall agree, if requested by Parent in writing, to commit to take any of the forgoing actions with respect to the assets or business of the Company in furtherance of this Section 8.2; provided, however, that any such action may be conditioned upon the consummation of the Merger and other Transactions contemplated by this Agreementsolution so reached.
Appears in 1 contract
Regulatory Filings. (a) Each of Buyer and Parent and Acquisition Sub shall, within two (and their respective Affiliates, if applicable), on the one hand, and the Company, on the other hand, shall (x) file with the FTC and the Antitrust Division of the DOJ a Notification and Report Form relating to this Agreement and the transactions contemplated hereby as required by the HSR Act as soon as reasonably practicable from the date following execution and delivery of this Agreement but in no event later than ten (102) Business Days following after the execution and delivery of this Agreementdate hereof, and (y) file comparable pre-merger make or post-merger notification filings, forms cause to be made all filings and submissions with any foreign Governmental Authority that is required by any other Antitrust Laws as soon as reasonably practicable from the date following execution and delivery of this Agreement but in no event later than ten (10) Business Days following the execution and delivery of this Agreement. Each of Parent and the Company shall (i) cooperate and coordinate with the other in the making of such filings, (ii) supply the other with any information that may be required in order to make such filings, (iii) supply any additional information that reasonably may be required or requested by the FTC, the DOJ or the Governmental Authorities of any other jurisdiction in which any such filing is made under any other Antitrust Laws, and (iv) use reasonable best efforts to take all action necessary to cause the expiration or termination of the applicable waiting periods under the HSR Act or other Antitrust Laws as soon as practicable, and to obtain any required consents under any other Antitrust Laws applicable to the Offer and/or the Merger as soon as practicableBuyer, Parent and to avoid any impediment to their Affiliates for the consummation of the Offer or transactions contemplated herein. Subject to applicable Laws relating to the Merger under any Antitrust Laws, including using reasonable best efforts to take all such action as reasonably may be necessary to resolve such objections, if any, as the FTCexchange of information, the DOJCompany shall have the right to review in advance, or any other Governmental Authority or Person may assert under any applicable Antitrust Laws with respect and to the Offer and/or extent practicable shall have the Merger.
(b) Each of right to consult with Buyer and Parent and Acquisition Sub (and their respective Affiliateson, if applicable), on all the one hand, and the Company, on the other hand, shall promptly inform the other of any communication from any Governmental Authority regarding any of the transactions contemplated by this Agreement information that appears in connection with any filings or investigations with, by or before any Governmental Authority relating to this Agreement or the transactions contemplated hereby, including any proceedings initiated by a private party. If any party hereto or Affiliate thereof shall receive a request for additional information or documentary material from any Governmental Authority with respect to the transactions contemplated by this Agreement pursuant to the HSR or any other Antitrust Laws with respect to which any such filings have been made, then such party (and Buyer and Parent shall use its reasonable best efforts to make, or cause to be made, as soon as reasonably practicable and after consultation with the other party, an appropriate response in compliance with such request. In connection with and without limiting the foregoing, to the extent reasonably practicable and unless prohibited by applicable Law or by the applicable Governmental Authority, the parties hereto agree to (i) give each other reasonable advance notice of all meetings with any Governmental Authority relating to the Offer or the Merger, (ii) give each other an opportunity to participate in each of such meetings, (iii) keep the other party reasonably apprised with respect to any oral communications with any Governmental Authority regarding the Offer or the Merger, (iv) cooperate in the filing of any analyses, presentations, memoranda, briefs, arguments, opinions or other written communications explaining or defending the Offer and the Merger, articulating any regulatory or competitive argument and/or responding to requests or objections made by any Governmental Authority, (v) provide each other with a reasonable advance opportunity to review and comment upon, and consider in good faith the views of the other with respect to, all written communications (including any analyses, presentations, memoranda, briefs, arguments and opinions) with a Governmental Authority regarding the Offer and the Merger, (vi) provide each other (or counsel of each party, as appropriate) with copies of all written communications to or from any Governmental Authority relating to the Offer or the Merger, and (vii) cooperate and provide each other with a reasonable opportunity to participate in, and consider Company in good faith the views of the other with respect to, all material deliberations with respect to all efforts to satisfy the conditions set forth in clauses (A) and (C)(1) of Annex A and Section 9.1(cconnection therewith). Any such disclosuresIn exercising the foregoing right, rights the Company shall act reasonably and as promptly as practicable.
(b) Buyer shall be responsible for all filing fees under the HSR Act. Buyer shall request the filings under the HSR Act to participate or provisions be considered for grant of information by one party to the other may be made on a counsel-only basis to the extent required under applicable Law or as appropriate to protect confidential business information or the attorney client privilege or attorney work product“early termination.”
(c) Each of Parent, Acquisition Sub and the Company shall cooperate with one another in good faith to If any administrative or judicial action or proceeding is instituted (i) promptly determine whether any filings not contemplated by Section 8.2(a) are required or threatened to be or should be made, and whether any other consents, approvals, permits or authorizations not contemplated by Section 8.2(a) are required to be or should be obtained, from any Governmental Authority under any other applicable Law in connection with the transactions contemplated hereby, and (ii) promptly make any filings, furnish information required in connection therewith and seek to obtain timely any such consents, permits, authorizations, approvals or waivers that the parties determine are required to be or should be made or obtained in connection with the transactions contemplated hereby.
(d) Notwithstanding anything to the contrary in this Agreement, in connection with any filing or submission required or action to be taken by either Parent or the Company to consummate the Offer and the Merger, in no event shall Parent or any of its Subsidiaries or Affiliates be obligated to propose or agree to accept any undertaking or condition, to enter into any consent decree, to make any divestiture or accept any operational restriction, or take or commit to take any action (i) the effectiveness or consummation of which is not conditional on the consummation of the Offer and the Merger or (ii) that individually or in the aggregate (x) is or would reasonably be expected to be materially adverse (with materiality, for purposes of this provision, being measured in relation to the size of the Company and its Subsidiaries taken as a wholeinstituted) to (A) the Company and its Subsidiaries, taken as a whole, or Parent and its Subsidiaries, taken as a whole, either before or after giving effect to the Offer or the Merger, or (B) Parent’s ownership or operation of any material portion of the business or assets of the Company and its Subsidiaries, taken as a whole, or (y) would reasonably be expected to deny Parent the material benefit of the bargains contemplated by prohibit the transactions contemplated by this Agreement, Buyer and Parent shall use all commercially reasonable efforts to avoid the institution of any such action or proceeding and to contest and resist any such action or proceeding and to have vacated, lifted, reversed or overturned any temporary, preliminary or permanent decree, judgment, injunction or other order that is in effect and that prohibits, prevents, delays or restricts consummation of the transactions contemplated hereby. The Company Notwithstanding anything in this Agreement to the contrary, neither Parent, Buyer nor any of their Affiliates shall agreebe required to bring any proceeding against any Person or accept, if requested by Parent as a condition to obtaining any required approval or resolving any objection of any Governmental Body, any requirement to divest or hold separate or in writing, to commit to take trust (or the imposition of any other material condition or restriction with respect to) any of the forgoing actions with respect to the respective businesses or assets or business of Parent, Buyer, any Affiliate of Parent, Buyer the Company in furtherance or any of this Section 8.2; provided, however, that any such action may be conditioned upon the consummation of the Merger and other Transactions contemplated by this Agreementtheir respective Subsidiaries.
Appears in 1 contract
Regulatory Filings. (a) Each In furtherance and not in limitation of Parent the terms of Section 7.01(a) and Acquisition Sub (Section 7.01(b), each of Buyer, the Sellers and the Company will, and will cause their respective Affiliates, if applicable), on to the one hand, extent required in the reasonable judgment of counsel to Buyer and the Company, on the other hand, shall (x) to use their respective reasonable best efforts to file with the FTC United States Federal Trade Commission (“FTC”) and the Antitrust Division of the DOJ United States Department of Justice (“DOJ”) a Notification and Report Form relating to this Agreement and the transactions contemplated hereby Merger as required by the HSR Act as soon promptly as reasonably practicable from following the date following execution and delivery of this Agreement Agreement, but in no event later than ten twenty-five (1025) Business Days following the execution and delivery of this Agreement, and (y) file comparable pre-merger or post-merger notification filings, forms and submissions with any foreign Governmental Authority that is required by any other Antitrust Laws as soon as reasonably practicable from after the date following execution and delivery of this Agreement but in no event later than ten (10) Business Days following the execution and delivery of this Agreementhereof. Each of Parent Buyer, the Sellers and the Company shall will (iA) cooperate and coordinate (and cause its respective Affiliates to cooperate and coordinate, if applicable) with the other others in the making of such filings, (iiB) use its respective reasonable best efforts to supply the other others (or cause the others to be supplied) with any information that may be required in order to make such filings, (iiiC) use its respective reasonable best efforts to supply (or cause the others to be supplied) any additional information that reasonably may be required or requested by the FTC, the DOJ or the Governmental Authorities of any other applicable jurisdiction in which any such filing filing, form, or submission is made under any other Antitrust Lawsmade, and (ivD) use its respective reasonable best efforts to take all action necessary to (1) cause the expiration or termination of the applicable waiting periods under pursuant to the HSR Act or other Antitrust Laws as soon as practicable, and to obtain any required consents under any other Antitrust Laws applicable to the Offer and/or Merger and (2) obtain any required consents pursuant to any Antitrust Laws applicable to the Merger Merger, in each case as soon as practicable, and (E) where reasonably practicable, prior to avoid independently participating in any impediment material meeting or engaging in any substantive conversation with any Governmental Authority where such meeting or conversation is substantially related to the consummation any such filings or investigations relating thereto, provide notice to Sellers’ Representative (on behalf of the Offer Sellers) or the Merger under any Antitrust Laws, including using reasonable best efforts to take all such action as reasonably may be necessary to resolve such objections, if anyBuyer, as the FTCapplicable, of such meeting or conversation and, unless prohibited by such Governmental Authority, the DOJopportunity for Sellers’ Representative (on behalf of the Sellers) or Buyer, as applicable, to attend or any other Governmental Authority or Person may assert under any applicable Antitrust Laws with respect to the Offer and/or the Merger.
(b) Each of Parent and Acquisition Sub participate. Buyer (and their respective its Affiliates, if applicable), on the one hand, and the CompanySellers’ Representative (on behalf of the Sellers) and the Company (and its Affiliates), on the other hand, shall will promptly inform the other of any communication from any Governmental Authority regarding any of the transactions contemplated by this Agreement Merger in connection with any filings or investigations with, by or before any Governmental Authority relating to this Agreement or the transactions contemplated hereby, including any proceedings initiated by a private partysuch filings. If any party hereto or Affiliate thereof shall receive receives a request for additional information or documentary material from any Governmental Authority with respect to the transactions contemplated by this Agreement Merger pursuant to the HSR Act or any other Antitrust Laws with respect applicable to which any such filings have been madethe Merger, then such party shall will use its reasonable best efforts to make, make (or cause to be made), as soon as reasonably practicable and after consultation with the other partyparties, an appropriate response in compliance with response to such request. In connection with and without limiting Notwithstanding the foregoing, in connection with the performance of each party’s respective obligations, Buyer, the Sellers and the Company may, as each determines is reasonably necessary, designate competitively sensitive material provided to the extent reasonably practicable other pursuant to this Section 7.02(a) as “Outside Counsel Only.” Such materials and the information contained therein shall be given only to the outside legal counsel of the recipient and will not be disclosed by such outside counsel to directors, officers or employees of the recipient unless prohibited by applicable Law or by express permission is obtained in advance from the applicable Governmental Authoritysource of the materials (Buyer, the parties hereto agree to Sellers or the Company, as the case may be) or its legal counsel.
(i) give each Following the meaningful consultation with and good faith consideration of the views of the Company and the Sellers’ Representative as contemplated by Section 7.02(a), Buyer shall have the exclusive right to make all strategic and tactical decisions as to the manner in which to obtain from any Governmental Authority under the HSR Act or any other reasonable advance notice applicable Antitrust Laws, and to determine any actions or non-actions, consents, approvals, authorizations, clearances or orders required to be obtained |US-DOCS\159043691.20|| by ▇▇▇▇▇, the Sellers or the Company or any of all meetings their respective Affiliates in connection with the consummation of the Transactions, (ii) Buyer and its Representatives shall have no obligation to share with the Sellers, the Sellers’ Representative, the Company or any of their respective Representatives (other than outside antitrust counsel) any nonpublic information, data or materials about any of the businesses or operations of Buyer and its Affiliates and (iii) the Sellers, the Sellers’ Representative and the Company will not, nor will they permit any of their respective Representatives to make any communications with, or proposals relating to, or enter into, any understanding, undertaking or agreement with, any Governmental Authority relating to the Offer or the Merger, (ii) give each other an opportunity to participate in each of such meetings, (iii) keep the other party reasonably apprised with respect to any oral communications with any Governmental Authority regarding the Offer or the Merger, (iv) cooperate in the filing of any analyses, presentations, memoranda, briefs, arguments, opinions or other written communications explaining or defending the Offer and the Merger, articulating any regulatory or competitive argument and/or responding to requests or objections made by any Governmental Authority, (v) provide each other with a reasonable advance opportunity to Transactions without Buyer’s prior review and comment upon, and consider in good faith the views of the other with respect to, all written communications (including any analyses, presentations, memoranda, briefs, arguments and opinions) with a Governmental Authority regarding the Offer and the Merger, (vi) provide each other (or counsel of each party, as appropriate) with copies of all written communications to or from any Governmental Authority relating to the Offer or the Merger, and (vii) cooperate and provide each other with a reasonable opportunity to participate in, and consider in good faith the views of the other with respect to, all material deliberations with respect to all efforts to satisfy the conditions set forth in clauses (A) and (C)(1) of Annex A and Section 9.1(c)approval. Any such disclosuresprovisions of information, rights to participate or provisions of information by one party to consultations between the other parties may be made on a counsel-only or outside counsel-only basis to the extent required under applicable Applicable Law or as appropriate to protect confidential business information maintain attorney-client or the attorney client privilege or attorney work productother privilege.
(c) Each of Parent, Acquisition Sub and the Company shall cooperate with one another in good faith to (i) promptly determine whether any filings not contemplated by Section 8.2(a) are required to be or should be made, and whether any other consents, approvals, permits or authorizations not contemplated by Section 8.2(a) are required to be or should be obtained, from any Governmental Authority under any other applicable Law in connection with the transactions contemplated hereby, and (ii) promptly make any filings, furnish information required in connection therewith and seek to obtain timely any such consents, permits, authorizations, approvals or waivers that the parties determine are required to be or should be made or obtained in connection with the transactions contemplated hereby.
(d) Notwithstanding anything to the contrary in this Agreement, in connection with none of Parent, Buyer or any filing of their respective Subsidiaries shall be required to, offer, agree, commit, undertake, or submission required or otherwise take any action to be taken by either (i) sell, license, assign, transfer, divest, hold separate or otherwise dispose of any assets, business or portion of business of the Company, Parent, Buyer, or any Subsidiary of any of the foregoing, or (ii) conduct, restrict, operate, invest or otherwise change the assets, the business or portion of the business of the Company, Parent, Buyer, or any Subsidiary of Parent or the Company to consummate the Offer and the MergerBuyer in any manner (together a “Restrictive Action”), in no event shall Parent each case unless such Restrictive Action would not (A) materially reduce the benefits or advantages Buyer and/or its Affiliates expect to receive from the Transactions or (B) impact Buyer or any of its Subsidiaries Affiliates (including, after the Closing, the Surviving Company) in a manner or Affiliates be obligated amount that is material relative to propose the value of the Company. In addition, the Company may not offer, agree, commit, undertake, or become subject to any Restrictive Action without the prior written consent of Buyer. In addition, the Company may not offer, agree, commit, undertake, or become subject to any Restrictive Action without the prior written consent of Buyer; provided, that if requested by Buyer, the Company will become subject to, consent to or offer or agree to accept any undertaking or condition, to enter into any consent decree, to make any divestiture or accept any operational restrictionto, or take or commit to otherwise take any action (i) the effectiveness or consummation of which is not conditional on the consummation of the Offer and the Merger or (ii) that individually or in the aggregate (x) is or would reasonably be expected to be materially adverse (with materiality, for purposes of this provision, being measured in relation to the size of the Company and its Subsidiaries taken as a whole) to (A) the Company and its Subsidiaries, taken as a whole, or Parent and its Subsidiaries, taken as a whole, either before or after giving effect to the Offer or the Merger, or (B) Parent’s ownership or operation of any material portion of the business or assets of the Company and its Subsidiaries, taken as a whole, or (y) would reasonably be expected to deny Parent the material benefit of the bargains contemplated by the transactions contemplated by this Agreement. The Company shall agree, if requested by Parent in writing, to commit to take any of the forgoing actions with respect to the assets or business of to, any Restrictive Action so long as such Restrictive Action is only binding on the Company in furtherance of this Section 8.2; provided, however, that any such action may be conditioned upon the consummation of event the Merger and other Transactions contemplated by this AgreementClosing occurs.
Appears in 1 contract
Regulatory Filings. (a) Each of Parent and Acquisition Sub (and their respective Affiliates, if applicable), on the one hand, and the Company, on the other hand, shall (x) file with the FTC and the Antitrust Division of the DOJ a Notification and Report Form relating to this Agreement and the transactions contemplated hereby as required by the HSR Act as soon as reasonably practicable from the date following execution and delivery of this Agreement but in no event later than ten (10) Business Days following the execution and delivery of this Agreement, and (y) file comparable pre-merger or post-merger notification filings, forms and submissions with any foreign Governmental Authority that is required by any other Antitrust Laws as soon as reasonably practicable from the date following execution and delivery of this Agreement but in no event later than ten (10) Business Days following the execution and delivery of this Agreement. Each of Parent and the Company shall (i) cooperate Without limiting the generality of the parties’ undertakings pursuant to Section 6.2(a) and coordinate with Section 6.2(b), each party hereto shall (and the other in the making of such filings, (ii) supply the other with any information that may be required in order to make such filings, (iii) supply any additional information that reasonably may be required or requested by the FTC, the DOJ or the Governmental Authorities of any other jurisdiction in which any such filing is made under any other Antitrust Laws, and (iv) use reasonable best efforts to take all action necessary to Sellers shall cause the expiration or termination of the applicable waiting periods under the HSR Act or other Antitrust Laws as soon as practicable, and to obtain any required consents under any other Antitrust Laws applicable to the Offer and/or the Merger as soon as practicable, and to avoid any impediment to the consummation of the Offer or the Merger under any Antitrust Laws, including using reasonable best efforts to take all such action as reasonably may be necessary to resolve such objections, if any, as the FTC, the DOJ, or any other Governmental Authority or Person may assert under any applicable Antitrust Laws with respect to the Offer and/or the Merger.
Company to): (bi) Each of Parent and Acquisition Sub (and their respective Affiliates, if applicable), on the one hand, and the Company, on the other hand, shall promptly inform the other of any communication from any Governmental Authority regarding any of the transactions contemplated by this Agreement in connection with any filings or investigations with, by or before any Governmental Authority relating to this Agreement or the transactions contemplated hereby, including any proceedings initiated by a private party. If any party hereto or Affiliate thereof shall receive a request for additional information or documentary material from any Governmental Authority with respect to the transactions contemplated by this Agreement pursuant to the HSR or any other Antitrust Laws with respect to which any such filings have been made, then such party shall use its reasonable best efforts to make, or cause to be made, the registrations, filings and submissions required of it or any of its Affiliates under the HSR Act in connection with this Agreement and the Transactions as soon promptly as reasonably practicable (but in any event no later than five (5) Business Days) following the date of this Agreement; (ii) make, or cause to be made, the registrations, filings and submissions (if any) required of it or any of its Affiliates under any other applicable Antitrust Laws in connection with this Agreement and the Transactions as promptly as practicable (but in any event no later than five (5) Business Days) following the date of this Agreement; (iii) comply at the earliest practicable date and after consultation with the Sellers’ Representative or Purchaser, as applicable, with any request for additional information or documentary material received by the other party, an appropriate response or any of its Affiliates from any applicable Governmental Entity in compliance with such request. In connection with and without limiting any registrations, filings or submissions required under the foregoing, to the extent reasonably practicable and unless prohibited by HSR Act or any other applicable Law or by the applicable Governmental Authority, the parties hereto agree to (i) give each other reasonable advance notice of all meetings with any Governmental Authority relating to the Offer or the Merger, (ii) give each other an opportunity to participate in each of such meetings, (iii) keep the other party reasonably apprised with respect to any oral communications with any Governmental Authority regarding the Offer or the Merger, Antitrust Laws; (iv) cooperate with the other parties (including furnishing all necessary information and reasonable assistance as any other party may reasonably request) in connection with any registrations, filings or submissions required under the filing HSR Act or any other applicable Antitrust Laws and in connection with resolving any investigation or other inquiry concerning the Transactions initiated by any Governmental Entity; and (v) use commercially reasonable efforts to secure the early termination of any waiting periods under the HSR Act and the receipt of any clearances, approvals, or confirmations from Governmental Entities in other countries in which any registrations, filings or submissions pursuant to any applicable Antitrust Laws have been made to the extent required in connection with the consummation of the Transactions at the earliest possible date. Each party hereto shall promptly inform the other parties of any communication (whether oral or written) made to, or received by, such party from any Governmental Entity regarding any of the Transactions, and promptly provide a copy of any such written communication, or a written summary of any such oral communication, to the other parties.
(ii) All analyses, appearances, meetings, discussions, presentations, memoranda, briefs, filings, arguments, opinions or other written communications explaining or defending the Offer and the Merger, articulating any regulatory or competitive argument and/or responding to requests or objections proposals made by or on behalf of any party before any Governmental AuthorityEntity or the staff or regulators of any Governmental Entity, in connection with the Transactions (vbut, for the avoidance of doubt, not including any interactions that any party may have with Governmental Entities in the ordinary course of business and not relating to the Transactions) provide each shall be disclosed to the other parties hereunder in advance of any filing, submission or attendance, it being the intent that the parties will consult and cooperate with a reasonable advance opportunity to review and comment uponone another, and consider in good faith the views of the other one another, in connection with respect toany such analyses, all written communications (including any analysesappearances, meetings, discussions, presentations, memoranda, briefs, arguments and opinions) with a Governmental Authority regarding the Offer and the Mergerfilings, (vi) provide each other (or counsel of each party, as appropriate) with copies of all written communications to or from any Governmental Authority relating to the Offer or the Mergerarguments, and (vii) cooperate and provide each other with a reasonable opportunity to proposals. None of the parties shall initiate, participate in, and consider in good faith the views of the other with respect to, all material deliberations with respect to all efforts to satisfy the conditions set forth in clauses (A) and (C)(1) of Annex A and Section 9.1(c). Any such disclosures, rights or agree to participate in any substantive meeting, discussion, appearance or provisions contact with any Governmental Entity or the staff or regulators of information by one party any Governmental Entity unless it shall have given advance notice to the other may be made on a counsel-only basis parties of such substantive meeting, discussion, appearance or contact, with such notice being sufficient to provide the extent required under applicable Law other parties with the opportunity to attend and participate in such meeting, discussion, appearance or as appropriate contact. Nothing in this Section 6.2(c) shall require any party to protect confidential business provide access to, or disclose any information or the attorney client privilege or attorney work product.
(c) Each of Parentto, Acquisition Sub and the Company shall cooperate with one another in good faith to (i) promptly determine whether any filings not contemplated by Section 8.2(a) are required to be or should be made, and whether any other consents, approvals, permits or authorizations not contemplated by Section 8.2(a) are required to be or should be obtained, from any Governmental Authority under any other applicable Law in connection with the transactions contemplated hereby, and (ii) promptly make any filings, furnish information required in connection therewith and seek to obtain timely any such consents, permits, authorizations, approvals or waivers that the parties determine are required to be or should be made or obtained in connection with the transactions contemplated hereby.
(d) Notwithstanding anything to the contrary in this Agreement, in connection with any filing or submission required or action to be taken by either Parent or the Company to consummate the Offer and the Merger, in no event shall Parent party or any of its Subsidiaries Affiliates if such access or Affiliates be obligated to propose or agree to accept any undertaking or conditiondisclosure, to enter into any consent decree, to make any divestiture or accept any operational restriction, or take or commit to take any action (i) the effectiveness or consummation of which is not conditional on the consummation of the Offer and the Merger or (ii) that individually or in the aggregate (x) is or would reasonably be expected to be materially adverse (with materiality, for purposes good faith reasonable belief of this provision, being measured in relation to the size of the Company and its Subsidiaries taken as a whole) to (A) the Company and its Subsidiaries, taken as a whole, or Parent and its Subsidiaries, taken as a whole, either before or after giving effect to the Offer or the Merger, or (B) Parent’s ownership or operation of any material portion of the business or assets of the Company and its Subsidiaries, taken as a whole, or (y) would reasonably be expected to deny Parent the material benefit of the bargains contemplated by the transactions contemplated by this Agreement. The Company shall agree, if requested by Parent in writing, to commit to take any of the forgoing actions with respect to the assets or business of the Company in furtherance of this Section 8.2; provided, however, that any such action may be conditioned upon the consummation of the Merger and other Transactions contemplated by this Agreement.first party:
Appears in 1 contract
Sources: Merger Agreement
Regulatory Filings. (a) Each of Parent and Acquisition Sub As soon as practicable following the date hereof (and with respect to the filings required under the HSR Act, within five (5) Business Days after the date hereof), the Parties shall make or cause to be made all filings and submissions required under any Laws or regulations applicable to the transactions contemplated herein (which filings and submissions shall request early termination of the waiting periods thereunder) and, in each case, to the extent required under the applicable Laws or regulations. The Parties shall use their respective Affiliatesreasonable best efforts to provide or cause to be provided promptly all assistance and cooperation to allow the other Parties to prepare and submit any filings or submissions under the HSR Act or other applicable foreign, if applicablefederal, state or supranational antitrust, competition, fair trade or similar Laws, including providing to the other Parties any information that such other Parties may from time to time reasonably require for the purpose of any filing, notification, application or request for further information made in respect of any such filing. Subject to applicable Laws relating to the exchange of information, the Company and Purchaser will have the right to review in advance, and to the extent practicable will consult with the other on, all the information that appears in any such filings. In exercising the foregoing right, each Party will act reasonably and as promptly as practicable. Purchaser will pay all fees associated with all filings and submissions referred to in this Section 6.6(a); provided, however, that after the filing of the initial notification submitted pursuant to the HSR Act or other applicable foreign, federal, state or supranational antitrust, competition, fair trade or similar Laws, each Party shall be responsible for paying all out-of-pocket fees and expenses incurred by such Party or its Affiliates in connection with or relating to the review of the transactions contemplated hereby pursuant to the HSR Act or other applicable foreign, federal, state or supranational antitrust, competition, fair trade or similar Laws or such Party’s efforts to consummate the transactions contemplated hereby pursuant to this Section 6.6.
(b) Without limiting the generality of the foregoing, each of Purchaser and Merger Sub, on the one hand, and the Company, on the other hand, shall (x) file with the FTC and the Antitrust Division of the DOJ a Notification and Report Form relating to this Agreement and the transactions contemplated hereby as required by the HSR Act as soon as reasonably practicable from the date following execution and delivery of this Agreement but in no event later than ten (10) Business Days following the execution and delivery of this Agreementshall, and (y) file comparable pre-merger shall cause their respective Affiliates to, respond expeditiously to any additional requests for information, including requests for production of documents and production of witnesses for interviews, depositions or post-merger notification filings, forms and submissions with any foreign Governmental Authority that is required investigational hearings by any other Antitrust Laws as soon as reasonably practicable from the date following execution and delivery of this Agreement but in no event later than ten (10) Business Days following the execution and delivery of this AgreementGovernmental Authority. Each of Parent Purchaser, Merger Sub and the Company shall and shall cause their respective Affiliates to (i) cooperate and coordinate with the other in the making of such filings, (ii) supply the other with any information that may be required in order to make such filings, (iii) supply any additional information that reasonably may be required or requested by the FTC, the DOJ or the Governmental Authorities of any other jurisdiction in which any such filing is made under any other Antitrust Laws, and (iv) use their respective reasonable best efforts to take (A) comply as expeditiously as possible with all action necessary to cause the expiration requests of any Governmental Authority for additional information and documents, including without limitation, information or termination of the applicable waiting periods documents requested under the HSR Act or other Antitrust Laws as soon as practicableapplicable antitrust regulation and (B) obtain antitrust clearance, consent and to obtain any required consents under any other Antitrust Laws applicable to the Offer and/or the Merger as soon as practicable, and to avoid any impediment to the consummation approval of the Offer or the Merger under any Antitrust Laws, including using reasonable best efforts to take all such action as reasonably may be necessary to resolve such objections, if any, as the FTC, the DOJ, or any other Governmental Authority or Person may assert under any applicable Antitrust Laws with respect to the Offer and/or the Merger.
(b) Each of Parent and Acquisition Sub (and their respective Affiliates, if applicable), on the one hand, and the Company, on the other hand, shall promptly inform the other of any communication from any Governmental Authority regarding under the HSR Act or other applicable antitrust regulation and to expeditiously close the transactions contemplated hereby and prior to the Outside Date and (ii) not (A) extend any of waiting period under the HSR Act or any applicable antitrust regulation or (B) enter into any agreement with any Governmental Authority not to consummate the transactions contemplated by this Agreement Agreement, except, in connection each case, with the prior written consent of the other Parties. Notwithstanding anything herein to the contrary, none of Purchaser, Merger Sub or any filings of their Affiliates, shall be required to take or investigations agree to undertake any action, including entering into any consent decree, hold separate order or other arrangement, that would (x) require the divestiture of any assets of Purchaser, the Company or any of their respective Affiliates, (y) limit Purchaser’s or Merger Sub’s freedom of action with respect to, or its ability to consolidate and control, the Company or any of its assets or businesses or any of Purchaser’s or its Affiliates’ other assets or businesses or (z) limit Purchaser’s or Merger Sub’s ability to acquire or hold, or exercise full rights of ownership with respect to, the Company Units, the ▇▇ ▇▇▇▇▇▇▇ Units, and the Acquired Units.
(c) Except as specifically required by this Agreement, each of Purchaser and Merger Sub and their respective Affiliates will not take any action, or refrain from taking any action, the effect of which would be to delay or impede the ability of the parties hereto to consummate the transactions contemplated hereby. Without limiting the generality of the foregoing, each of Purchaser and Merger Sub will not, and will not permit any of its Affiliates to, acquire or agree to acquire (by merging or consolidating with, or by purchasing a substantial portion of the assets of or before equity in, or by any other manner), any Person or portion thereof, or otherwise acquire or agree to acquire any assets, if the entering into a definitive agreement relating to, or the consummation of, such acquisition, merger or consolidation could reasonably be expected to (i) impose any delay in the obtaining of, or increase the risk of not obtaining, any permits, orders or other approvals of any Governmental Authority relating necessary to this Agreement consummate the transactions contemplated hereby or the expiration or termination of any applicable waiting period, (ii) increase the risk of any Governmental Authority entering an order prohibiting the consummation of the transactions contemplated hereby, including any proceedings initiated by a private party. If any party hereto or Affiliate thereof shall receive a request for additional information or documentary material from any Governmental Authority with respect to the transactions contemplated by this Agreement pursuant to the HSR or any other Antitrust Laws with respect to which any such filings have been made, then such party shall use its reasonable best efforts to make, or cause to be made, as soon as reasonably practicable and after consultation with the other party, an appropriate response in compliance with such request. In connection with and without limiting the foregoing, to the extent reasonably practicable and unless prohibited by applicable Law or by the applicable Governmental Authority, the parties hereto agree to (i) give each other reasonable advance notice of all meetings with any Governmental Authority relating to the Offer or the Merger, (ii) give each other an opportunity to participate in each of such meetings, (iii) keep increase the other party reasonably apprised with respect risk of not being able to remove any oral communications with any Governmental Authority regarding the Offer such order on appeal or the Mergerotherwise, or (iv) cooperate in delay or prevent the filing consummation of any analyses, presentations, memoranda, briefs, arguments, opinions or other written communications explaining or defending the Offer and the Merger, articulating any regulatory or competitive argument and/or responding to requests or objections made by any Governmental Authority, (v) provide each other with a reasonable advance opportunity to review and comment upon, and consider in good faith the views of the other with respect to, all written communications (including any analyses, presentations, memoranda, briefs, arguments and opinions) with a Governmental Authority regarding the Offer and the Merger, (vi) provide each other (or counsel of each party, as appropriate) with copies of all written communications to or from any Governmental Authority relating to the Offer or the Merger, and (vii) cooperate and provide each other with a reasonable opportunity to participate in, and consider in good faith the views of the other with respect to, all material deliberations with respect to all efforts to satisfy the conditions set forth in clauses (A) and (C)(1) of Annex A and Section 9.1(c). Any such disclosures, rights to participate or provisions of information by one party to the other may be made on a counsel-only basis to the extent required under applicable Law or as appropriate to protect confidential business information or the attorney client privilege or attorney work product.
(c) Each of Parent, Acquisition Sub and the Company shall cooperate with one another in good faith to (i) promptly determine whether any filings not contemplated by Section 8.2(a) are required to be or should be made, and whether any other consents, approvals, permits or authorizations not contemplated by Section 8.2(a) are required to be or should be obtained, from any Governmental Authority under any other applicable Law in connection with the transactions contemplated hereby, and (ii) promptly make any filings, furnish information required in connection therewith and seek to obtain timely any such consents, permits, authorizations, approvals or waivers that the parties determine are required to be or should be made or obtained in connection with the transactions contemplated hereby.
(d) Notwithstanding anything Purchaser and Merger Sub will keep the Company apprised of the status of all filings and submissions referred to in Section 6.6(a) above, including promptly furnishing the contrary in this Agreement, Company with copies of notices or other communications received or submitted by Purchaser or Merger Sub in connection therewith. Each of Purchaser and Merger Sub (i) shall consult with any filing or submission required or action to be taken by either Parent or and permit the Company to consummate review and discuss in advance, and consider in good faith the Offer and the Merger, in no event shall Parent or any of its Subsidiaries or Affiliates be obligated to propose or agree to accept any undertaking or condition, to enter into any consent decree, to make any divestiture or accept any operational restriction, or take or commit to take any action (i) the effectiveness or consummation of which is not conditional on the consummation of the Offer and the Merger or (ii) that individually or in the aggregate (x) is or would reasonably be expected to be materially adverse (with materiality, for purposes of this provision, being measured in relation to the size of the Company and its Subsidiaries taken as a whole) to (A) the Company and its Subsidiaries, taken as a whole, or Parent and its Subsidiaries, taken as a whole, either before or after giving effect to the Offer or the Merger, or (B) Parent’s ownership or operation of any material portion of the business or assets of the Company and its Subsidiaries, taken as a whole, or (y) would reasonably be expected to deny Parent the material benefit of the bargains contemplated by the transactions contemplated by this Agreement. The Company shall agree, if requested by Parent in writing, to commit to take any of the forgoing actions with respect to the assets or business view of the Company in furtherance of this Section 8.2; providedconnection with, howeverany proposed written or oral communication with any Governmental Authority, that any such action may be conditioned upon (ii) shall consult with the consummation Company, and consider in good faith the view of the Merger Company, prior to any meeting with any Governmental Authority in respect of such filings and submissions and (iii) will not permit any of its officers, employees or other Transactions contemplated representatives or agents to participate in any meeting with any Governmental Authority in respect of such filings and submissions unless it consults with the Company in advance and, to the extent permitted by this Agreementsuch Governmental Authority, gives the Company the opportunity to attend and participate thereat.
Appears in 1 contract
Regulatory Filings. (a) Each of Parent and Acquisition Sub Elevation (and their respective its Affiliates, if applicable), on the one hand, and the Company, on the other hand, shall (xi) file with the FTC and the Antitrust Division of the DOJ a Notification and Report Form relating to this Agreement and the transactions contemplated hereby as required by the HSR Act as soon as reasonably practicable from the date following execution and delivery of this Agreement but in no event later than ten (10) Business Days following the execution and delivery of this Agreement, and (yii) file comparable pre-merger or post-merger notification filings, forms and submissions with any foreign Governmental Authority that is required by any other Antitrust Laws as soon as reasonably practicable from the date following execution and delivery of this Agreement but in no event later than ten (10) Business Days following the execution and delivery of this Agreement. Each of Parent Elevation and the Company shall (i) cooperate and coordinate with the other in the making of such filings, (ii) supply the other with any information that may be required in order to make such filings, (iii) supply any additional information that reasonably may be required or requested by the FTC, the DOJ or the Governmental Authorities of any other applicable jurisdiction in which any such filing is made under any other Antitrust Laws, and (iv) use their reasonable best efforts to take all action necessary to cause the expiration or termination of the applicable waiting periods under the HSR Act or other Antitrust Laws as soon as practicable, and to obtain any required consents under any other Antitrust Laws applicable to the Offer and/or the Merger as soon as practicable, and to avoid any impediment to the consummation of the Offer or the Merger under any Antitrust Laws, including using reasonable best efforts to take all such action as reasonably may be necessary to resolve such objections, if any, as the FTC, the DOJ, or any other Governmental Authority or Person may assert under any applicable Antitrust Laws with respect to the Offer and/or the Merger.
(b) Each of Parent and Acquisition Sub . Elevation (and their respective its Affiliates, if applicable), on the one hand, and the Company, on the other hand, shall promptly inform the other of any communication from any Governmental Authority regarding any of the transactions contemplated by this Agreement in connection with any filings or investigations with, by or before any Governmental Authority relating to this Agreement or the transactions contemplated hereby, including any proceedings initiated by a private partysuch filings. If any party hereto or Affiliate thereof shall receive a request for additional information or documentary material from any Governmental Authority with respect to the transactions contemplated by this Agreement pursuant to the HSR or any other Antitrust Laws with respect to which any such filings have been made, then such party shall use its reasonable best efforts to make, or cause to be made, as soon as reasonably practicable and after consultation with the other party, an appropriate response in compliance with such request. In connection with and without limiting the foregoing, to the extent reasonably practicable and unless prohibited by applicable Law or by the applicable Governmental Authority, the parties hereto agree to (i) give each other reasonable advance notice of all meetings with any Governmental Authority relating to the Offer or the Merger, (ii) give each other an opportunity to participate in each of such meetings, (iii) keep the other party reasonably apprised with respect to any oral communications with any Governmental Authority regarding the Offer or the Merger, (iv) cooperate in the filing of any analyses, presentations, memoranda, briefs, arguments, opinions or other written communications explaining or defending the Offer and the Merger, articulating any regulatory or competitive argument and/or responding to requests or objections made by any Governmental Authority, (v) provide each other with a reasonable advance opportunity to review and comment upon, and consider in good faith the views of the other with respect to, all written communications (including any analyses, presentations, memoranda, briefs, arguments and opinions) with a Governmental Authority regarding the Offer and the Merger, (vi) provide each other (or counsel of each party, as appropriate) with copies of all written communications to or from any Governmental Authority relating to the Offer or the Merger, and (vii) cooperate and provide each other with a reasonable opportunity to participate in, and consider in good faith the views of the other with respect to, all material deliberations with respect to all efforts to satisfy the conditions set forth in clauses (A) and (C)(1) of Annex A and Section 9.1(c). Any such disclosures, rights to participate or provisions of information by one party to the other may be made on a counsel-only basis to the extent required under applicable Law or as appropriate to protect confidential business information or the attorney client privilege or attorney work product.
(cb) Each of Parent, Acquisition Sub Elevation and the Company shall cooperate with one another in good faith to (i) promptly determine whether any filings not contemplated by Section 8.2(a7.2(a) are required to be or should be made, and whether any other consents, approvals, permits or authorizations not contemplated by Section 8.2(a7.2(a) are required to be or should be obtained, from any Governmental Authority under any other applicable Law in connection with the transactions contemplated hereby, and (ii) promptly make any filings, furnish information required in connection therewith and seek to obtain timely any such consents, permits, authorizations, approvals or waivers that the parties determine are required to be or should be made or obtained in connection with the transactions contemplated hereby.
(d) Notwithstanding anything to the contrary in this Agreement, in connection with any filing or submission required or action to be taken by either Parent or the Company to consummate the Offer and the Merger, in no event shall Parent or any of its Subsidiaries or Affiliates be obligated to propose or agree to accept any undertaking or condition, to enter into any consent decree, to make any divestiture or accept any operational restriction, or take or commit to take any action (i) the effectiveness or consummation of which is not conditional on the consummation of the Offer and the Merger or (ii) that individually or in the aggregate (x) is or would reasonably be expected to be materially adverse (with materiality, for purposes of this provision, being measured in relation to the size of the Company and its Subsidiaries taken as a whole) to (A) the Company and its Subsidiaries, taken as a whole, or Parent and its Subsidiaries, taken as a whole, either before or after giving effect to the Offer or the Merger, or (B) Parent’s ownership or operation of any material portion of the business or assets of the Company and its Subsidiaries, taken as a whole, or (y) would reasonably be expected to deny Parent the material benefit of the bargains contemplated by the transactions contemplated by this Agreement. The Company shall agree, if requested by Parent in writing, to commit to take any of the forgoing actions with respect to the assets or business of the Company in furtherance of this Section 8.2; provided, however, that any such action may be conditioned upon the consummation of the Merger and other Transactions contemplated by this Agreement.
Appears in 1 contract
Sources: Preferred Stock Purchase Agreement and Agreement and Plan of Merger (Palm Inc)
Regulatory Filings. (ai) Buyer shall, within five (5) Business Days after the date hereof, make or cause to be made all filings and submissions under the HSR Act, for the consummation of the transactions contemplated hereby. Buyer shall pay all fees associated with all filings and submissions referred to in this Section 7.02(d).
(ii) Each of Parent the Parties shall comply with any additional requests for information, including requests for production of documents and Acquisition Sub production of witnesses for interviews or depositions by any Governmental Body. Without limiting any other provision hereof, in furtherance of the foregoing, ▇▇▇▇▇ agrees (on behalf of itself and their respective each of its controlled Affiliates) to use its reasonable best efforts to take or cause to be taken any and all actions reasonably necessary, if applicable)proper or advisable to avoid, on eliminate and resolve any and all impediments under the one hand, and HSR Act or trade regulation law that may be asserted by any Governmental Body (including the Company, on the other hand, shall (x) file with the FTC and Federal Trade Commission or the Antitrust Division of the DOJ a Notification and Report Form relating to this Agreement and the transactions contemplated hereby as required by the HSR Act as soon as reasonably practicable from the date following execution and delivery U.S. Department of this Agreement but in no event later than ten (10Justice or state attorney general) Business Days following the execution and delivery of this Agreement, and (y) file comparable pre-merger or post-merger notification filings, forms and submissions with any foreign Governmental Authority that is required by any other Antitrust Laws as soon as reasonably practicable from the date following execution and delivery of this Agreement but in no event later than ten (10) Business Days following the execution and delivery of this Agreement. Each of Parent and the Company shall (i) cooperate and coordinate with the other in the making of such filings, (ii) supply the other with any information that may be required in order to make such filings, (iii) supply any additional information that reasonably may be required or requested by the FTC, the DOJ or the Governmental Authorities of any other jurisdiction in which any such filing is made under any other Antitrust Laws, and (iv) use reasonable best efforts to take all action necessary to cause the expiration or termination of the applicable waiting periods under the HSR Act or other Antitrust Laws as soon as practicable, and to obtain any required consents under any other Antitrust Laws applicable to the Offer and/or the Merger as soon as practicable, and to avoid any impediment to the consummation of the Offer or the Merger under any Antitrust Laws, including using reasonable best efforts to take all such action as reasonably may be necessary to resolve such objections, if any, as the FTC, the DOJ, or any other Governmental Authority or Person may assert under any applicable Antitrust Laws with respect to the Offer and/or the Merger.
(b) Each of Parent and Acquisition Sub (and their respective Affiliates, if applicable), on the one hand, and the Company, on the other hand, shall promptly inform the other of any communication from any Governmental Authority regarding any of the transactions contemplated by this Agreement in connection with any filings or investigations with, by or before any Governmental Authority relating to this Agreement or the transactions contemplated hereby, including any proceedings initiated by a private party. If any party hereto or Affiliate thereof shall receive a request for additional information or documentary material from any Governmental Authority with respect to the transactions contemplated by this Agreement pursuant so as to enable the consummation of the transactions contemplated by this Agreement to occur as expeditiously as possible (and in any event no later than the End Date) and to obtain all consents, approvals and waivers under the HSR or any Act and other Antitrust Laws with respect to which any such filings have been made, then such party shall use its reasonable best efforts to make, or cause to trade regulation laws that may be made, as soon as reasonably practicable and after consultation with the other party, an appropriate response in compliance with such request. In connection with and without limiting the foregoing, to the extent reasonably practicable and unless prohibited by applicable Law or by the applicable Governmental Authority, the parties hereto agree to (i) give each other reasonable advance notice of all meetings with any Governmental Authority relating to the Offer or the Merger, (ii) give each other an opportunity to participate in each of such meetings, (iii) keep the other party reasonably apprised with respect to any oral communications with any Governmental Authority regarding the Offer or the Merger, (iv) cooperate in the filing of any analyses, presentations, memoranda, briefs, arguments, opinions or other written communications explaining or defending the Offer and the Merger, articulating any regulatory or competitive argument and/or responding to requests or objections made required by any Governmental AuthorityBody, (v) provide each other with a reasonable advance opportunity to review and comment upon, and consider in good faith the views of the other with respect to, all written communications (including any analysessuch actions necessary, presentationsproper or advisable to avoid the entry of, memorandaor to have vacated or terminated, briefsany decree, arguments and opinions) with a Governmental Authority regarding decision, order or judgment that would restrain, prevent or delay the Offer and the Merger, (vi) provide each other (or counsel consummation of each party, as appropriate) with copies of all written communications to or from any Governmental Authority relating to the Offer or the Merger, and (vii) cooperate and provide each other with a reasonable opportunity to participate in, and consider in good faith the views of the other with respect to, all material deliberations with respect to all efforts to satisfy the conditions set forth in clauses (A) and (C)(1) of Annex A and Section 9.1(c). Any such disclosures, rights to participate or provisions of information by one party to the other may be made on a counsel-only basis to the extent required under applicable Law or as appropriate to protect confidential business information or the attorney client privilege or attorney work product.
(c) Each of Parent, Acquisition Sub and the Company shall cooperate with one another in good faith to (i) promptly determine whether any filings not contemplated by Section 8.2(a) are required to be or should be made, and whether any other consents, approvals, permits or authorizations not contemplated by Section 8.2(a) are required to be or should be obtained, from any Governmental Authority under any other applicable Law in connection with the transactions contemplated hereby, and (ii) promptly make any filingson or before the End Date. In furtherance of the foregoing, furnish information required in connection therewith and seek to obtain timely any such consents, permits, authorizations, approvals or waivers that the parties determine are Buyer shall be required to be consent to any divestiture, transfer, license, sale, disposition, hold separate or should be made otherwise take or obtained in connection commit to any other action that would limit Buyer’s freedom of action with the transactions contemplated hereby.
(d) Notwithstanding anything respect to, or its ability to retain one or more of its respective operations, divisions, businesses, product lines, customers, assets or rights or interests or their freedom of action with respect to the contrary in assets, properties, or businesses to be acquired pursuant to this Agreement, in connection with order to obtain clearance from any filing or submission Governmental Body.
(iii) Except as specifically required or action to be taken by either Parent or this Agreement, during the Company to consummate the Offer and the MergerInterim Period, in no event Buyer shall Parent or not take any of its Subsidiaries or Affiliates be obligated to propose or agree to accept any undertaking or condition, to enter into any consent decree, to make any divestiture or accept any operational restrictionaction, or take or commit to take refrain from taking any action (i) the effectiveness or consummation of which is not conditional on the consummation of the Offer and the Merger or (ii) action, that individually or in the aggregate (x) is or would reasonably be expected to be materially adverse delay or impede the obtaining of clearance or the expiration of the required waiting periods under the HSR Act or any other trade regulation Laws.
(iv) Each of the Parties shall keep the other Parties reasonably apprised of the status of all filings and submissions referred to in this Section 7.02(d), including promptly furnishing the other Parties with materiality, for purposes copies of this provision, being measured notices or other communications received by such Party in relation connection therewith to the size extent not prohibited by applicable law; provided that any Party may designate any competitively sensitive materials provided under this Section 7.02(d) as for the review of the Company and its Subsidiaries taken as a whole) to (A) the Company and its Subsidiariesother Parties’ legal counsel only, taken as a whole, or Parent and its Subsidiaries, taken as a whole, either before or after giving effect in which case such materials shall only be given to the Offer other Parties’ legal counsel and shall not be disclosed to any Affiliates, employees, officers or directors of the Mergerother Parties without the disclosing party’s prior written consent. Each of the Parties shall provide the other Parties with copies of draft filings or submissions to any Governmental Body referred to in this Section 7.02(d), with the exception of HSR filings, and allow time for the other Parties to provide comment prior to submission. Each of the Parties shall not permit any of its officers, employees or (B) Parent’s ownership other representatives or operation agents to participate in any meeting with any Governmental Body in respect of any material portion filing, investigation or inquiry concerning the transaction without consulting with the other Parties in advance and, to the extent permitted by such Governmental Body, giving the other Parties the opportunity to attend and participate thereat. Neither Party shall agree to extend any waiting period under the HSR Act or any other trade regulation law without the prior written consent of the business other Parties.
(v) Notwithstanding the foregoing or assets of the Company and its Subsidiaries, taken as a whole, or (y) would reasonably be expected to deny Parent the material benefit of the bargains contemplated by the transactions contemplated by anything in this Agreement. The Company shall agree, if requested by Parent in writing, to commit to take any of the forgoing actions with respect Agreement to the assets or business of contrary, the Company in furtherance provisions of this Section 8.2; provided7.02(d) (and the parties obligations relating thereto) shall not apply to any Receivership Required Consent, however, that any such action may which shall be conditioned upon the consummation of the Merger and other Transactions contemplated governed exclusively by this AgreementSection 6.08.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (GPB Holdings II, LP)
Regulatory Filings. (a) Each of Parent and Acquisition Sub (and their respective Affiliates, if applicable), on the one hand, and the Company, on the other hand, shall (x) file with the FTC and the Antitrust Division of the DOJ a Notification and Report Form relating to this Agreement and the transactions contemplated hereby as required by the HSR Act as soon as reasonably practicable from the date following execution and delivery of this Agreement but in no event later than ten (10) Business Days following the execution and delivery of this Agreement, and (y) file comparable pre-merger or post-merger notification filings, forms and submissions with any foreign Governmental Authority that is required by any other Antitrust Laws as soon as reasonably practicable from the date following execution and delivery of this Agreement but in no event later than ten (10) Business Days following the execution and delivery of this Agreement. Each of Parent and the Company shall (ia) cooperate make or cause to be made all filings and coordinate with the other in the making of such filings, (ii) supply the other with any information that may be submissions required in order to make such filings, (iii) supply any additional information that reasonably may be required or requested by the FTC, the DOJ or the Governmental Authorities of any other jurisdiction in which any such filing is made under any other Antitrust Laws, and (iv) use reasonable best efforts to take all action necessary to cause the expiration or termination of the applicable waiting periods under the HSR Act or other Antitrust Laws as soon as practicablewithin ten (10) Business Days after the date hereof, and to obtain any required consents under any other Antitrust Laws applicable to the Offer and/or the Merger as soon as practicable, and to avoid any impediment to the consummation of the Offer or the Merger under any Antitrust Laws, including using reasonable best efforts to take all such action as reasonably may be necessary to resolve such objections, if any, as the FTC, the DOJ, or any other Governmental Authority or Person may assert under any applicable Antitrust Laws with respect to the Offer and/or jurisdictions set forth on Schedule 11.02(a) as promptly as practicable in connection with the Merger.
(b) Each of Parent and Acquisition Sub (and their respective Affiliates, if applicable), on the one hand, and the Company, on the other hand, shall promptly inform the other of any communication from any Governmental Authority regarding any consummation of the transactions contemplated by this Agreement in connection with any herein (which filings or investigations with, by or before any Governmental Authority relating to this Agreement or the transactions contemplated hereby, including any proceedings initiated by a private party. If any party hereto or Affiliate thereof and submissions shall receive a request for additional information or documentary material from any Governmental Authority with respect to the transactions contemplated by this Agreement seek early termination if made pursuant to the HSR or any other Antitrust Laws Act and the equivalent, if available, with respect to which any such other applicable Antitrust Laws) and (b) provide or cause to be provided the notices or filings have been madeset forth on Schedule 11.02(b) as promptly as practicable. In connection with the transactions contemplated herein, then such party Parent and the Company shall promptly as practicable comply with any additional requests for information, including requests for production of documents and production of witnesses for interviews or depositions by any Governmental Entities. Notwithstanding anything herein to the contrary, Parent and the Company shall cooperate in good faith with any Governmental Entities and Parent shall use its reasonable best efforts to make, undertake promptly any and all action required to complete the transactions contemplated by this Agreement expeditiously and lawfully; provided that nothing herein shall require Parent or cause to be made, as soon as reasonably practicable and after consultation with the other party, an appropriate response in compliance with such request. In connection with and without limiting the foregoing, to the extent reasonably practicable and unless prohibited by applicable Law or by the applicable Governmental Authority, the parties hereto agree any of its Subsidiaries to (i) give sell or otherwise dispose of, or hold separate or agree to sell or otherwise dispose of, assets, categories of assets or businesses of the Company or Parent or their respective Subsidiaries; (ii) terminate existing relationships, contractual rights or obligations of the Company or Parent or their respective Subsidiaries; (iii) terminate any venture or other arrangement; (iv) create any relationship, contractual rights or obligations of the Company or Parent or their respective Subsidiaries; or (v) effectuate any other change or restructuring of the Company or Parent or their respective Subsidiaries (and, in each other reasonable advance notice case, to enter into agreements or stipulate to the entry of all meetings an Order or decree or file appropriate applications with any Governmental Authority relating to Entity in connection with any of the Offer foregoing and in the case of Actions by or the Merger, (ii) give each other an opportunity to participate in each of such meetings, (iii) keep the other party reasonably apprised with respect to any oral communications with any Governmental Authority regarding Group Company or its businesses or assets, by consenting to such Action by the Offer Company), in each case, if such actions described in clauses (i) through (v) would, individually or the Merger, (iv) cooperate in the filing aggregate, be reasonably expected to materially reduce, impair or eliminate the benefits or advantages that Parent will derive from the transactions contemplated hereby. Without limiting the generality of any analysesthe foregoing, presentations, memoranda, briefs, arguments, opinions if a suit or other written communications explaining Action is threatened or defending the Offer and the Merger, articulating any regulatory or competitive argument and/or responding to requests or objections made instituted by any Governmental AuthorityEntity or any other entity challenging the validity or legality or seeking to restrain the consummation of the transactions contemplated by this Agreement, Parent and Merger Sub shall use their reasonable best efforts to avoid, resist, resolve or, if necessary, defend such suit or action and shall afford the Company a reasonable opportunity to participate therein; provided that Parent shall not be required to take any of the actions described in clauses (i) through (v) provide each of the preceding sentence to avoid, resist, resolve or defend such suit or Action, if such actions would, individually or in the aggregate, be reasonably expected to materially reduce, impair or eliminate the benefits or advantages that Parent will derive from the transactions contemplated hereby. Without limiting the generality of the foregoing, if a suit or other with Action is threatened or instituted by any Governmental Entity or any other entity challenging the validity or legality or seeking to restrain the consummation of the transactions contemplated by this Agreement, Parent and Merger Sub shall use their reasonable best efforts to avoid, resist, resolve or, if necessary, defend such suit or action and shall afford the Company a reasonable advance opportunity to review participate therein. Parent and comment upon, the Company each shall diligently assist and consider cooperate with the Other Party in good faith the views of the other with respect to, preparing and filing any and all written communications that are to be submitted to any Governmental Entities in connection with the transactions contemplated hereby and in obtaining any governmental or third party consents, waivers, authorizations or approvals which may be required to be obtained by any Group Company in connection with the transactions contemplated hereby, which assistance and cooperation shall include: (including any analysesi) timely furnishing to the Other Party all information concerning the Other Party that counsel to the Other Party reasonably determines is required to be included in such documents or would be helpful in obtaining such required consent, presentationswaiver, memoranda, briefs, arguments and opinionsauthorization or approval; (ii) with a Governmental Authority regarding promptly providing the Offer and the Merger, (vi) provide each other (or counsel of each party, as appropriate) Other Party with copies of all written communications to or from any Governmental Authority Entity relating to the Offer or the Merger, and (vii) cooperate and provide each other with a reasonable opportunity to participate in, and consider in good faith the views of the other with respect to, all material deliberations with respect to all efforts to satisfy the conditions set forth in clauses (A) and (C)(1) of Annex A and Section 9.1(c). Any any Antitrust Law; provided that such disclosures, rights to participate or provisions of information by one party to the other copies may be made on a counsel-only basis redacted as necessary to the extent required under applicable Law or as appropriate to protect confidential business information or the attorney client address legal privilege or attorney work product.
confidentiality concerns or to comply with contractual arrangement or applicable Law; and provided, further, that portions of such copies that are competitively sensitive may be designated as “outside antitrust counsel only”; (ciii) Each keeping the Other Party reasonably informed of Parent, Acquisition Sub and the Company shall cooperate with one another in good faith to (i) promptly determine whether any filings not contemplated by Section 8.2(a) are required to be communication received or should be made, and whether any other consents, approvals, permits or authorizations not contemplated by Section 8.2(a) are required to be or should be obtained, from any Governmental Authority under any other applicable Law in connection with the transactions contemplated hereby, and (ii) promptly make any filings, furnish information required in connection therewith and seek to obtain timely any such consents, permits, authorizations, approvals or waivers that the parties determine are required to be or should be made or obtained in connection with the transactions contemplated hereby.
(d) Notwithstanding anything to the contrary in this Agreement, given in connection with any filing or submission required or action to be taken proceeding by either Parent or the Company to consummate the Offer and Other Party, in each case regarding the Merger; and (iv) permitting the Other Party to review and incorporate the Other Party’s reasonable comments in any communication given by it to any Governmental Entity or in connection with any proceeding related to the HSR Act, in no event each case regarding the Merger. Neither Parent nor Merger Sub, on one hand, nor the Company, on the other hand, shall Parent or any of its Subsidiaries or Affiliates be obligated to propose initiate, or agree to accept participate in any undertaking meeting, telephone call or conditiondiscussion with any Governmental Entity with respect to any filings, to enter into any consent decreeapplications, to make any divestiture or accept any operational restrictioninvestigation, or take or commit to take any action (i) the effectiveness or consummation of which is not conditional on the consummation of the Offer and other inquiry regarding the Merger or (ii) that individually filings under the HSR Act without giving the other Party reasonable prior notice of the meeting or in the aggregate (x) is or would reasonably be expected to be materially adverse (with materialitydiscussion and, for purposes of this provision, being measured in relation to the size of extent permitted by such Governmental Entity, the Company opportunity to attend and its Subsidiaries taken as a whole) to (A) the Company and its Subsidiariesparticipate in such meeting, taken as a whole, telephone call or Parent and its Subsidiaries, taken as a whole, either before or after giving effect to the Offer or the Merger, or (B) Parent’s ownership or operation of any material portion of the business or assets of the Company and its Subsidiaries, taken as a whole, or (y) would reasonably be expected to deny Parent the material benefit of the bargains contemplated by the transactions contemplated by this Agreement. The Company shall agree, if requested by Parent in writing, to commit to take any of the forgoing actions with respect to the assets or business of the Company in furtherance of this Section 8.2; provided, however, that any such action may be conditioned upon the consummation of the Merger and other Transactions contemplated by this Agreementdiscussion.
Appears in 1 contract
Regulatory Filings. (a) Each of Parent Saturn and Acquisition Sub (and their respective Affiliates, if applicable), on Nova shall promptly after the one hand, and the Company, on the other hand, shall (x) file with the FTC and the Antitrust Division of the DOJ a Notification and Report Form relating to this Agreement and the transactions contemplated hereby as required by the HSR Act as soon as reasonably practicable from the date following execution and delivery of this Agreement but in no event later than ten (10) Business Days following the execution and delivery of this Agreementapply for or otherwise seek, and (y) file comparable pre-merger or post-merger notification filings, forms and submissions with any foreign Governmental Authority that is required by any other Antitrust Laws as soon as reasonably practicable from the date following execution and delivery of this Agreement but in no event later than ten (10) Business Days following the execution and delivery of this Agreement. Each of Parent and the Company shall (i) cooperate and coordinate with the other in the making of such filings, (ii) supply the other with any information that may be required in order to make such filings, (iii) supply any additional information that reasonably may be required or requested by the FTC, the DOJ or the Governmental Authorities of any other jurisdiction in which any such filing is made under any other Antitrust Laws, and (iv) use all commercially reasonable best efforts to take obtain, all action necessary consents and approvals required to cause be obtained by it for the expiration or termination consummation of the applicable waiting periods under Merger. Without limiting the HSR Act generality or other Antitrust Laws effect of the foregoing, each of Saturn and Nova shall, as soon as practicable, make any initial filings required under the HSR Act and to obtain any required consents under as promptly as practicable make any other Antitrust Laws applicable to the Offer and/or the Merger as soon as practicable, and to avoid any impediment to the consummation of the Offer or the Merger under any Antitrust Laws, including using reasonable best efforts to take all such action as reasonably may be necessary to resolve such objections, if any, as the FTC, the DOJ, or additional filings required by any other Governmental Authority or Person may assert under any applicable Antitrust Laws (as defined herein). The parties shall consult and cooperate with respect to the Offer and/or the Merger.
(b) Each of Parent and Acquisition Sub (and their respective Affiliates, if applicable), on the one handanother, and consider in good faith the Companyviews of one another, on the other hand, shall promptly inform the other of any communication from any Governmental Authority regarding any of the transactions contemplated by this Agreement in connection with any filings analyses, appearances, presentations, memoranda, briefs, arguments, opinions and proposals made or investigations with, submitted by or before any Governmental Authority relating to this Agreement or the transactions contemplated hereby, including any proceedings initiated by a private party. If on behalf of any party hereto in connection with proceedings under or Affiliate thereof shall receive a request for additional information or documentary material from any Governmental Authority with respect to the transactions contemplated by this Agreement pursuant relating to the HSR Act or any foreign or other Antitrust Laws with respect to which any such filings have been madeLaw; provided, then such party shall use its reasonable best efforts to make, or cause to be made, as soon as reasonably practicable and after consultation with the other party, an appropriate response in compliance with such request. In connection with and without limiting the foregoing, to the extent reasonably practicable and unless prohibited by applicable Law or by the applicable Governmental Authority, the parties hereto agree to (i) give each other reasonable advance notice of all meetings with any Governmental Authority relating to the Offer or the Merger, (ii) give each other an opportunity to participate in each of such meetings, (iii) keep the other party reasonably apprised that with respect to any oral communications with any Governmental Authority regarding the Offer or the Mergersuch analyses, (iv) cooperate in the filing of any analysesappearances, presentations, memoranda, briefs, arguments, opinions or other written communications explaining or defending proposals, each of Saturn and Nova need not supply the Offer and the Merger, articulating any regulatory or competitive argument and/or responding to requests or objections made by any Governmental Authority, (v) provide each other with a reasonable advance opportunity to review and comment upon, and consider in good faith the views of the other with respect to, all written communications (including any analyses, presentations, memoranda, briefs, arguments and opinions) with a Governmental Authority regarding the Offer and the Merger, (vi) provide each other (or counsel of each party, as appropriateits counsel) with copies (or in case of all written communications oral presentations, a summary) to the extent that any law, treaty, rule or regulation of any Governmental Entity applicable to such party requires such party or its subsidiaries to restrict or prohibit access to any such properties or information.
(b) Each party will notify the other promptly upon the receipt of: (i) any comments from any officials of any Governmental Authority relating to the Offer or the MergerEntity in connection with any filings made pursuant hereto, and (viiii) cooperate and provide each other with a reasonable opportunity any request by any officials of any Governmental Entity for amendments or supplements to participate in, and consider in good faith the views of the other with respect any filings made pursuant to, or information provided to comply in all material deliberations with respect respects with, any applicable Legal Requirements. Whenever any event occurs that is required to all efforts to satisfy the conditions be set forth in clauses (A) and (C)(1) of Annex A and an amendment or supplement to any filing made pursuant to Section 9.1(c5.9(a). Any such disclosures, rights to participate or provisions of information by one each party to will promptly inform the other may be made on a counsel-only basis to of such occurrence and cooperate in filing with the extent required under applicable Law Governmental Entity such amendment or as appropriate to protect confidential business information or the attorney client privilege or attorney work productsupplement.
(c) Each of ParentSaturn and Nova shall use all commercially reasonable efforts to resolve such objections, Acquisition Sub and the Company shall cooperate with one another in good faith to (i) promptly determine whether any filings not contemplated if any, as may be asserted by Section 8.2(a) are required to be or should be made, and whether any other consents, approvals, permits or authorizations not contemplated by Section 8.2(a) are required to be or should be obtained, from any Governmental Authority under any other applicable Law in connection Entity with respect to the transactions contemplated herebyby this Agreement under the HSR Act, the ▇▇▇▇▇▇▇ Act, as amended, the ▇▇▇▇▇▇▇ Act, as amended, the Federal Trade Commission Act, as amended, Council Regulation 139/2004 of the European Commission, and any other federal, state or foreign statutes, rules, regulations, orders or decrees that are designed to prohibit, restrict or regulate actions having the purpose or effect of monopolization or restraint of trade (ii) collectively, “Antitrust Laws”). Each of Saturn and Nova shall use all commercially reasonable efforts to take such action as may be required to cause the expiration of the notice periods under the HSR Act or other Antitrust Laws with respect to such transactions as promptly make as practicable after the execution of this Agreement. If any filingsproceeding is instituted or threatened by any Governmental Entity with appropriate jurisdiction under Antitrust Laws seeking to restrain or impose conditions upon or alter the Merger, furnish Saturn and Nova shall use all commercially reasonable efforts to resolve such proceeding through negotiation or settlement. In addition, Saturn and Nova shall respond diligently to all inquiries for additional information required in connection therewith and seek by law or governmental regulation, including any “second request” for information pursuant to obtain timely any such consents, permits, authorizations, approvals or waivers that the parties determine are required to be or should be made or obtained in connection with the transactions contemplated herebyAntitrust Laws.
(d) Notwithstanding anything in this Agreement to the contrary in contrary, if any administrative or judicial action or proceeding is instituted (or threatened to be instituted) challenging any transaction contemplated by this Agreement as violative of any Antitrust Law, it is expressly understood and agreed that Saturn shall not have any obligation to litigate or contest any administrative or judicial action or proceeding or any decree, judgment, injunction or other order, whether temporary, preliminary or permanent.
(e) Notwithstanding the foregoing or any other provision of this Agreement, nothing in connection with any filing or submission required or action to be taken by either Parent or the Company to consummate the Offer and the Merger, in no event shall Parent or any of its Subsidiaries or Affiliates be obligated to propose or agree to accept any undertaking or condition, to enter into any consent decree, to make any divestiture or accept any operational restriction, or take or commit to take any action (i) the effectiveness or consummation of which is not conditional on the consummation of the Offer and the Merger or (ii) that individually or in the aggregate (x) is or would reasonably be expected to be materially adverse (with materiality, for purposes of this provision, being measured in relation to the size of the Company and its Subsidiaries taken as a whole) to (A) the Company and its Subsidiaries, taken as a whole, or Parent and its Subsidiaries, taken as a whole, either before or after giving effect to the Offer or the Merger, or (B) Parent’s ownership or operation of any material portion of the business or assets of the Company and its Subsidiaries, taken as a whole, or (y) would reasonably be expected to deny Parent the material benefit of the bargains contemplated by the transactions contemplated by this Agreement. The Company shall agree, if requested by Parent in writing, to commit to take any of the forgoing actions with respect to the assets or business of the Company in furtherance of this Section 8.2; provided, however, that any 5.9 shall limit a party’s right to terminate the Agreement pursuant to Section 7.1(a) so long as such action may be conditioned upon the consummation of the Merger and other Transactions contemplated by party has until such date complied with its obligations under this AgreementSection 5.9.
Appears in 1 contract
Regulatory Filings. (a) Each of Parent The Purchaser shall, and Acquisition Sub (and their respective Affiliates, if applicable), on the one handshall cause its Affiliates to, and the CompanyCompany shall, on and shall cause its Subsidiaries to, (a) make or cause to be made all filings and submissions under any applicable Laws for the other hand, shall (x) file with the FTC and the Antitrust Division consummation of the DOJ a Notification and Report Form relating to this Agreement and the transactions contemplated hereby as required by the HSR Act as soon as reasonably practicable from the date following execution and delivery of this Agreement but in no event later than ten (10) Business Days following the execution and delivery of this Agreement, (b) coordinate with one another in exchanging such information and providing such assistance to one another as may reasonably be requested in connection with the foregoing, and (yc) file comparable pre-merger or post-merger notification filings, forms and submissions with any foreign Governmental Authority that is required by any other Antitrust Laws as soon as reasonably practicable from the date following execution and delivery of this Agreement but in no event later than ten (10) Business Days following the execution and delivery of this Agreement. Each of Parent and the Company shall (i) cooperate supply promptly any additional information and coordinate documentary material that may be requested in connection with the other in the making of such filings, (ii) supply the other with make any information further filings pursuant thereto that may be required necessary, proper or advisable in order to make such filings, connection therewith and (iii) supply any additional information that reasonably may be required or requested by the FTC, the DOJ or the Governmental Authorities of any other jurisdiction in which any such filing is made under any other Antitrust Laws, and (iv) use reasonable best efforts to take all action actions necessary to cause the expiration or termination of the applicable waiting periods under the HSR Act or other Antitrust Laws as soon as practicable, and to obtain any all required consents under any other Antitrust Laws applicable to the Offer and/or the Merger as soon as practicable, and to avoid any impediment to the consummation of the Offer or the Merger under any Antitrust Laws, including using reasonable best efforts to take all such action as reasonably may be necessary to resolve such objections, if any, as the FTC, the DOJ, or any other Governmental Authority or Person may assert under any applicable Antitrust Laws with respect to the Offer and/or the Mergerclearances.
(b) Each Without limiting the generality of Parent the foregoing, the Purchaser shall after the date hereof, make or cause to be made all filings and Acquisition Sub submissions required of the Purchaser under (i) the HSR Act within ten (10) Business Days or (ii) any other applicable antitrust or noncompetition Laws or regulations ("Antitrust Laws") as promptly as practicable for the consummation of the transactions contemplated herein. The Purchaser shall be responsible for all filing fees and their respective Affiliatesrelated expenses under the HSR Act, other Antitrust Laws and all other Laws or regulations. The Purchaser shall cause the filings under the HSR Act to be considered for grant of "early termination" and shall use commercially reasonable efforts to obtain necessary clearance under Antitrust Laws.
(c) Without limiting the generality of the foregoing, the Purchaser (i) shall after the date hereof make or cause to be made all necessary filings related to the FCA Condition within twenty (20) Business Days, provided that if applicable), on the one handPurchaser is using commercially reasonable efforts to make or cause to be made all necessary filings, and such filings are not made of such date, such time period shall automatically be extended for an additional five (5) Business Days and (ii) shall use commercially reasonable efforts to obtain the Company, on fulfillment of the other hand, FCA Condition.
(d) The Purchaser shall promptly inform comply with any formal or informal additional requests for information, including requests for production of documents and production of witnesses for interviews or depositions by any Governmental Entities. The Purchaser and the other Company will each provide prompt notice of any communication (whether written or oral) received by it from any Governmental Authority regarding Entity with respect to the foregoing, consult with each other prior to providing any additional information to or otherwise communicating (whether in written or oral form) with any Governmental Entity with respect to the foregoing, and incorporate the reasonable comments of each other in connection with providing any additional information to or otherwise communicating (whether in written or oral form) with any Governmental Entity with respect to the foregoing.
(e) Without limiting the generality of the foregoing, if a suit or other action is threatened or instituted by any Governmental Entity or any other entity challenging the validity or legality or seeking to restrain the consummation of the transactions contemplated by this Agreement in connection with Agreement, the Purchaser shall use its commercially reasonable efforts to avoid, resist, resolve or, if necessary, defend such suit or action. The Purchaser shall promptly and diligently pursue, at its sole cost and expense, any filings or investigations withall of the following actions to the extent necessary and commercially reasonable to eliminate any concerns on the part of, by or before to satisfy any conditions imposed by, any Governmental Authority relating to this Agreement or Entity regarding the consummation of the transactions contemplated hereby, including any proceedings initiated by a private party. If any party hereto hereby (and whether or Affiliate thereof shall receive a request for additional information or documentary material from any Governmental Authority not with respect to the transactions contemplated by this Agreement pursuant to the HSR or any other Antitrust Laws with respect to which any such filings have been made, then such party shall use its reasonable best efforts to make, or cause to be made, as soon as reasonably practicable and after consultation with the other party, an appropriate response in compliance with such request. In connection with and without limiting the foregoing, to the extent reasonably practicable and unless prohibited by applicable Law or by the applicable Governmental Authority, the parties hereto agree to ): (i) give each other reasonable advance notice of all meetings with any Governmental Authority relating to the Offer or the Merger, (ii) give each other an opportunity to participate in each of such meetings, (iii) keep the other party reasonably apprised with respect to any oral communications with any Governmental Authority regarding the Offer or the Merger, (iv) cooperate in the filing of any analyses, presentations, memoranda, briefs, arguments, opinions or other written communications explaining or defending the Offer and the Merger, articulating any regulatory or competitive argument and/or responding to requests or objections made by any Governmental Authority, (v) provide each other with a reasonable advance opportunity to review and comment upon, and consider resisting in good faith the views of the other with respect to, all written communications (including by the institution or defense of legal proceedings) any analysesrequest for, presentationsor the entry of, memorandaand seeking to have vacated or terminated, briefs, arguments and opinions) with a Governmental Authority regarding the Offer and the Merger, (vi) provide each other (or counsel any order of each party, as appropriate) with copies of all written communications to or from any Governmental Authority relating to Entity that could restrain, prevent, or delay the Offer or the Merger, and (vii) cooperate and provide each other with a reasonable opportunity to participate in, and consider in good faith the views consummation of the other with respect to, all material deliberations with respect to all efforts to satisfy the conditions set forth in clauses (A) and (C)(1) of Annex A and Section 9.1(c). Any such disclosures, rights to participate or provisions of information by one party to the other may be made on a counsel-only basis to the extent required under applicable Law or as appropriate to protect confidential business information or the attorney client privilege or attorney work product.
(c) Each of Parent, Acquisition Sub and the Company shall cooperate with one another in good faith to (i) promptly determine whether any filings not contemplated by Section 8.2(a) are required to be or should be made, and whether any other consents, approvals, permits or authorizations not contemplated by Section 8.2(a) are required to be or should be obtained, from any Governmental Authority under any other applicable Law in connection with the transactions contemplated hereby, and (ii) promptly make take all commercially reasonable actions necessary and proper to avoid or eliminate each and every impediment under any filings, furnish information required in connection therewith and seek to obtain timely Law that may be asserted by any such consents, permits, authorizations, approvals or waivers that the parties determine are required to be or should be made or obtained in connection with the transactions contemplated hereby.
(d) Notwithstanding anything to the contrary in this Agreement, in connection with any filing or submission required or action to be taken by either Parent or the Company to consummate the Offer and the Merger, in no event shall Parent Governmental Entity or any of its Subsidiaries or Affiliates be obligated other Person to propose or agree to accept any undertaking or condition, to enter into any consent decree, to make any divestiture or accept any operational restriction, or take or commit to take any action (i) the effectiveness or consummation of which is not conditional on the consummation of the Offer and the Merger or (ii) that individually or in the aggregate (x) is or would reasonably be expected to be materially adverse (with materiality, for purposes of this provision, being measured in relation to the size of the Company and its Subsidiaries taken as a whole) to (A) the Company and its Subsidiaries, taken as a whole, or Parent and its Subsidiaries, taken as a whole, either before or after giving effect to the Offer or the Merger, or (B) Parent’s ownership or operation of any material portion of the business or assets of the Company and its Subsidiaries, taken as a whole, or (y) would reasonably be expected to deny Parent the material benefit of the bargains contemplated by the transactions contemplated by this Agreement. The Company shall agree, if requested by Parent in writing, to commit to take any of the forgoing actions with respect to the assets or business of the Company in furtherance of this Section 8.2; provided, however, that any such action may be conditioned upon the consummation of the Merger and other Transactions contemplated by this Agreement.
Appears in 1 contract
Sources: Securities Purchase Agreement (NorthStar Asset Management Group Inc.)
Regulatory Filings. (a) Each of Parent the Purchaser and Acquisition Sub the Company will use its reasonable best efforts to: (i) prepare, as soon as practicable (and their respective Affiliates, if applicablein no event later than five (5) Business Days after the date hereof), on all filings and other presentations in connection with seeking any regulatory approval, exemption or other authorization from any Authority necessary to consummate the one handtransactions contemplated hereby; (ii) prosecute such filings and other presentations with diligence; and (iii) oppose any objections to, appeals from or petitions to reconsider or reopen any such approval by Persons not party to this Agreement. Each of the Purchaser and the Company will use its reasonable best efforts to facilitate obtaining any final order or orders approving such transactions consistent with this Agreement and/or to remove any impediment to the consummation of the transactions contemplated by this Agreement. Each of the Purchaser and the Company will use its reasonable best efforts to furnish or cause to be furnished all information in connection with the approvals of or filings with any Authority. Subject to Section 6.04(b), the Purchaser and the Company will each use its reasonable best efforts to obtain any consent, authorization, order or approval of, or any exemption by, and to remove any impediment imposed by any Authority to allow the Company, on consummation of the transactions contemplated by this Agreement. Each of the Purchaser and the Company will advise the other handparty promptly of any material communication received by such party or any of its Affiliates from the Federal Trade Commission (the “FTC”), shall the Department of Justice (xthe “DOJ”), any state attorney general or any other Authority regarding any of the transactions contemplated hereby, and of any understandings, undertakings or agreements (oral or written) file such party proposes to make or enter into with the FTC FTC, the DOJ, any state attorney general or any other Authority in connection with the transactions contemplated by this Agreement. Each of the Purchaser and the Antitrust Division Company will consult with the other in advance of any material meetings with the FTC, the DOJ, any state attorney general or any other Authority in connection with the transactions contemplated by this Agreement.
(b) In furtherance and not in limitation of Section 6.04(a), each of the DOJ Purchaser and the Company shall make an appropriate filing of a Notification and Report Form relating pursuant to this Agreement and the HSR Act with respect to the transactions contemplated hereby (which shall include therein a request for early termination) as promptly as practicable, and in any event within five (5) Business Days, and thereafter make any other required by submissions with respect to the transactions contemplated hereby under the HSR Act as soon as reasonably practicable from the date following execution and delivery of this Agreement but in no event later than ten (10) Business Days following the execution and delivery of this AgreementAct, and (y) file comparable pre-merger or post-merger notification filings, forms and submissions with any foreign Governmental Authority that is required by any other Antitrust Laws as soon as reasonably practicable from the date following execution and delivery of this Agreement but in no event later than ten (10) Business Days following the execution and delivery of this Agreement. Each of Parent and the Company shall (i) cooperate and coordinate with the other in the making of such filings, (ii) supply the other with any information that may be required in order to make such filings, (iii) supply any additional information that reasonably may be required or requested by the FTC, the DOJ or the Governmental Authorities of any other jurisdiction in which any such filing is made under any other Antitrust Laws, and (iv) use reasonable best efforts to take all action necessary other actions reasonably necessary, proper or advisable to cause the expiration or termination of the applicable waiting periods under the HSR Act or other Antitrust Laws as soon as practicable. Additionally, in furtherance and to obtain any required consents under any other Antitrust Laws applicable not in limitation of Section 6.04(a), each of the Purchaser and the Company shall make an appropriate filing pursuant to the Offer and/or the Merger as soon as practicable, and to avoid any impediment to the consummation of the Offer or the Merger under any Antitrust Laws, including using reasonable best efforts to take all such action as reasonably may be necessary to resolve such objections, if any, as the FTC, the DOJ, or any other Governmental Authority or Person may assert under any applicable Antitrust Laws with respect to the Offer and/or the Merger.
(b) Each of Parent and Acquisition Sub (and their respective Affiliates, if applicable), on the one hand, and the Company, on the other hand, shall promptly inform the other of any communication from any Governmental Authority regarding any of the transactions contemplated by this Agreement in connection with any filings or investigations with, by or before any Governmental Authority relating to this Agreement or the transactions contemplated hereby, including any proceedings initiated by a private party. If any party hereto or Affiliate thereof shall receive a request for additional information or documentary material from any Governmental Authority GWB with respect to the transactions contemplated by this Agreement pursuant to the HSR or hereby as promptly as practicable, and in any event within five (5) Business Days, and thereafter make any other Antitrust Laws required submissions with respect to which the transactions contemplated hereby under any such filings have been madelaw or regulation, then and shall take all other actions reasonably necessary, proper or advisable to cause the expiration or termination of the applicable waiting periods such party law or regulation as soon as practicable. Notwithstanding anything herein to the contrary, the Purchaser shall not be required to propose, negotiate, commit to and effect, by consent decree, hold separate orders, or otherwise, the sale, divesture or disposition of its assets, properties or businesses or of the assets, properties or businesses. However, the Parties shall use its their reasonable best efforts to makedefend through litigation on the merits any claim asserted in court by any party in order to avoid entry of, or cause to be madehave vacated or terminated, as soon as reasonably practicable and after consultation with the other partyany decree, an appropriate response in compliance with such request. In connection with and without limiting the foregoingorder or judgment (whether temporary, to the extent reasonably practicable and unless prohibited by applicable Law preliminary or by the applicable Governmental Authority, permanent) that would prevent the parties hereto agree to (i) give each other reasonable advance notice of all meetings with any Governmental Authority relating to the Offer or the Merger, (ii) give each other an opportunity to participate in each of such meetings, (iii) keep the other party reasonably apprised with respect to any oral communications with any Governmental Authority regarding the Offer or the Merger, (iv) cooperate in the filing of any analyses, presentations, memoranda, briefs, arguments, opinions or other written communications explaining or defending the Offer and the Merger, articulating any regulatory or competitive argument and/or responding to requests or objections made by any Governmental Authority, (v) provide each other with a reasonable advance opportunity to review and comment upon, and consider in good faith the views of the other with respect to, all written communications (including any analyses, presentations, memoranda, briefs, arguments and opinions) with a Governmental Authority regarding the Offer and the Merger, (vi) provide each other (or counsel of each party, as appropriate) with copies of all written communications to or from any Governmental Authority relating to the Offer or the Merger, and (vii) cooperate and provide each other with a reasonable opportunity to participate in, and consider in good faith the views of the other with respect to, all material deliberations with respect to all efforts to satisfy the conditions set forth in clauses (A) and (C)(1) of Annex A and Section 9.1(c). Any such disclosures, rights to participate or provisions of information by one party to the other may be made on a counsel-only basis to the extent required under applicable Law or as appropriate to protect confidential business information or the attorney client privilege or attorney work product.
(c) Each of Parent, Acquisition Sub and the Company shall cooperate with one another in good faith to (i) promptly determine whether any filings not contemplated by Section 8.2(a) are required to be or should be made, and whether any other consents, approvals, permits or authorizations not contemplated by Section 8.2(a) are required to be or should be obtained, from any Governmental Authority under any other applicable Law in connection with the transactions contemplated hereby, and (ii) promptly make any filings, furnish information required in connection therewith and seek to obtain timely any such consents, permits, authorizations, approvals or waivers that the parties determine are required to be or should be made or obtained in connection with the transactions contemplated hereby.
(d) Notwithstanding anything to the contrary in this Agreement, in connection with any filing or submission required or action to be taken by either Parent or the Company to consummate the Offer and the Merger, in no event shall Parent or any of its Subsidiaries or Affiliates be obligated to propose or agree to accept any undertaking or condition, to enter into any consent decree, to make any divestiture or accept any operational restriction, or take or commit to take any action (i) the effectiveness or consummation of which is not conditional on the consummation of the Offer and the Merger or (ii) that individually or in the aggregate (x) is or would reasonably be expected to be materially adverse (with materiality, for purposes of this provision, being measured in relation to the size of the Company and its Subsidiaries taken as a whole) to (A) the Company and its Subsidiaries, taken as a whole, or Parent and its Subsidiaries, taken as a whole, either before or after giving effect to the Offer or the Merger, or (B) Parent’s ownership or operation of any material portion of the business or assets of the Company and its Subsidiaries, taken as a whole, or (y) would reasonably be expected to deny Parent the material benefit of the bargains contemplated by expeditiously closing the transactions contemplated by this Agreement. The Company shall agree, if requested by Parent in writing, to commit to take any of the forgoing actions with respect to the assets or business of the Company in furtherance of this Section 8.2; provided, however, that any such action may be conditioned upon the consummation of the Merger and other Transactions contemplated by this Agreement.
Appears in 1 contract
Regulatory Filings. (a) Each Without limiting the generality of Parent the foregoing provisions of Section 7.1, as soon as may be reasonably practicable following the execution and Acquisition Sub (delivery of this Agreement, each of Buyer and their respective Affiliates, if applicable), on the one hand, and the Company, on the other hand, Seller shall (x) file with the FTC and the Antitrust Division of the DOJ a Notification and Report Form relating to this Agreement and the other Transaction Agreement and the transactions contemplated hereby (including the Transactions) and thereby as required by the HSR Act Act, as soon well as reasonably practicable from the date following execution and delivery of this Agreement but in no event later than ten (10) Business Days following the execution and delivery of this Agreement, and (y) file comparable pre-merger or post-merger notification filings, forms and submissions with any foreign Governmental Authority that is are required by any other the Antitrust Laws of any applicable foreign jurisdiction or be deemed desirable by Buyer, in each case as soon as reasonably practicable from the date following execution and delivery of this Agreement but in no event later than ten (10) Business Days following the execution and delivery of this AgreementBuyer may deem necessary and/or appropriate. Each of Parent Buyer and the Company Seller shall promptly (i) cooperate and coordinate with the other in the making of such filings, (ii) supply the other with any information that may be required in order to make effectuate such filings, (iii) supply any additional information that reasonably may be required or requested by the FTC, the DOJ or the Governmental Authorities competition or merger control authorities of any other jurisdiction in which any such filing is made under any other Antitrust Lawsand that Buyer reasonably deems necessary and/or appropriate, and (iv) use reasonable best efforts to take share equally all action necessary to cause the expiration or termination of the applicable waiting periods under the HSR Act or other Antitrust Laws as soon as practicable, fees and to obtain any required consents under any other Antitrust Laws applicable to the Offer and/or the Merger as soon as practicable, and to avoid any impediment to the consummation of the Offer or the Merger under any Antitrust Laws, including using reasonable best efforts to take all such action as reasonably may be necessary to resolve such objections, if any, as the FTC, the DOJ, or any other Governmental Authority or Person may assert under any applicable Antitrust Laws with respect to the Offer and/or the Merger.
(b) Each of Parent and Acquisition Sub (and their respective Affiliates, if applicable), on the one hand, and the Company, on the other hand, shall promptly inform the other of any communication from any Governmental Authority regarding any of the transactions contemplated by this Agreement filing expenses incurred in connection with any filings or investigations with, by or before any Governmental Authority relating to made in connection with this Agreement or the transactions contemplated hereby, including any proceedings initiated by a private partySection 7.2(a). If any party hereto or Affiliate thereof shall receive receives a request for additional information or documentary material from any such Governmental Authority with respect to the transactions contemplated by this Agreement pursuant to (including the HSR Transactions) or any of the other Antitrust Laws with respect to which any such filings have been madeTransaction Agreements, then such party shall use its commercially reasonable best efforts to make, or cause to be made, as soon as reasonably practicable and after consultation with the other party, an appropriate response in compliance with such request. In Buyer shall be entitled, after consultation with Seller and consideration in good faith of the views of Seller, to make all strategic and tactical decisions as to the manner in which to obtain from any Governmental Authority any actions or non-actions, consents, approvals, authorizations, clearances or orders required to be obtained by Buyer or Seller or any of their respective subsidiaries in connection with the consummation of the Transactions, including but not limited to, the timing and without limiting content of substantive submissions made to any Governmental Authority, the foregoingtiming and content of responses to any query from a Governmental Authority whether written or verbal, to the extent reasonably practicable and unless prohibited permitted by applicable Law or by the applicable Governmental Authoritylaw, the parties hereto agree to (i) give each other reasonable advance notice timing of all meetings compliance with any Governmental Authority relating to the Offer or the Merger, (ii) give each other an opportunity to participate in each of such meetings, (iii) keep the other party reasonably apprised with respect to any oral communications with any Governmental Authority regarding the Offer or the Merger, (iv) cooperate in the filing of any analyses, presentations, memoranda, briefs, arguments, opinions or other written communications explaining or defending the Offer and the Merger, articulating any regulatory or competitive argument and/or responding to requests or objections made request by any Governmental Authority, (v) provide and any and all material decisions related to any litigation with any Governmental Authority. To that end, each other with a reasonable advance opportunity to review of Buyer and comment upon, and consider in good faith the views of Seller shall promptly inform the other with respect to, all written communications (including of any analyses, presentations, memoranda, briefs, arguments and opinions) with a Governmental Authority regarding the Offer and the Merger, (vi) provide each other (or counsel of each party, as appropriate) with copies of all written communications to or communication from any Governmental Authority relating to regarding any of the Offer transactions contemplated by this Agreement (including the Transactions) or the Merger, and (vii) cooperate and provide each other with a reasonable opportunity to participate in, and consider in good faith the views any of the other Transaction Agreements.
(b) Without limiting the generality of the foregoing provisions of Section 7.1, promptly after execution of this Agreement and prior to the Closing, Seller and Selling Subsidiary will use commercially reasonable efforts, at Seller’s expense, to transfer to or obtain for Buyer and its Subsidiaries all Permits necessary to allow Buyer and its Subsidiaries to own and operate the Business and the Transferred Assets immediately following the Closing in the same manner in which Seller and its Subsidiaries owns and operates the Business and the Transferred Assets on the date hereof, and Buyer will cooperate with Seller and Selling Subsidiary in assisting with such transfers or applications. To prepare for such transfer or receipt of Permits, Seller or Selling Subsidiary shall have initiated the transfer or application process prior to the Closing, as applicable, in respect toof each such Permit subject to Buyer’s having cooperated with such efforts. For purposes of clarity, all material deliberations if the transfer or application process for a Permit requires a local presence (either in terms of a local legal entity or agency relationship with respect a third party) in connection with such transfer or requires product retesting or development as a result of standards having changed since the original Permit issuance as a result of such transfer, Buyer shall be responsible for first establishing such local presence or retesting or development of such products and Seller and Selling Subsidiary shall cooperate with Buyer in transferring or obtaining Permits in such countries. For a period of one (1) year after the Closing, subject to all Buyer’s cooperation with such efforts, Seller and Selling Subsidiary shall, at Seller’s expense, use commercially reasonable efforts to satisfy complete the conditions set forth in clauses (A) transfer or application process for all such Permits that were not transferred to or obtained for Buyer and (C)(1) of Annex A and Section 9.1(c). Any such disclosures, rights to participate or provisions of information by one party its Subsidiaries prior to the other may be made on a counsel-only basis to the extent required under applicable Law or Closing as appropriate to protect confidential business information or the attorney client privilege or attorney work productquickly as commercially practicable.
(c) Each of ParentNotwithstanding anything in this Agreement to the contrary, Acquisition Sub it is expressly understood and the Company shall cooperate with one another in good faith to agreed that: (i) promptly determine none of Buyer, Seller or Selling Subsidiary shall have any obligation to litigate or contest any administrative or judicial action or proceeding or any decree, judgment, injunction or other order, whether any filings not contemplated by Section 8.2(a) are required to be temporary, preliminary or should be made, and whether any other consents, approvals, permits or authorizations not contemplated by Section 8.2(a) are required to be or should be obtained, from any Governmental Authority under any other applicable Law in connection with the transactions contemplated hereby, permanent; and (ii) promptly none of Buyer, Seller or Selling Subsidiary shall be under any obligation to make proposals, execute or carry out agreements, enter into consent decrees or submit to orders providing for (A) the sale, divestiture, license or other disposition or holding separate (through the establishment of a trust or otherwise) of any filings, furnish information required in connection therewith and seek to obtain timely any such consents, permits, authorizations, approvals assets or waivers that the parties determine are required to be or should be made or obtained in connection with the transactions contemplated hereby.
(d) Notwithstanding anything to the contrary in this Agreement, in connection with any filing or submission required or action to be taken by either Parent or the Company to consummate the Offer and the Merger, in no event shall Parent categories of assets of Buyer or any of its Subsidiaries Affiliates or Seller or any of its Subsidiaries, (B) the imposition of any limitation or regulation on the ability of Buyer or any of its Affiliates to freely conduct their business or own such assets, or (C) the holding separate of the Business or any of the Transferred Assets or any limitation or regulation on the ability of Buyer or any of its Affiliates to exercise full rights of ownership of the Business and the Transferred Assets. For the avoidance of doubt, Buyer shall not be obligated required to, and neither Seller nor Selling Subsidiary may without the prior written consent of Buyer, in order to propose comply with any requirements under the HSR Act or the Antitrust Laws of any applicable foreign jurisdiction, consent to, or offer or agree to accept to, any undertaking or requirement, condition, limitation, understanding, agreement or order to enter into (X) sell, license, assign, transfer, divest, hold separate or otherwise dispose of any consent decreeassets, to make business or portion of Buyer or any divestiture of its Affiliates or accept Seller or any operational of its Subsidiaries, (Y) conduct, restrict, operate, invest or otherwise change the Business or the Transferred Assets or the business of Buyer or any of its Affiliates or Seller or any of its Subsidiaries, or (Z) impose any restriction, requirement or take or commit to take any action (i) the effectiveness or consummation of which is not conditional limitation on the consummation Business or operation of the Offer and the Merger Business or (ii) that individually or in the aggregate (x) is or would reasonably be expected to be materially adverse (with materiality, for purposes of this provision, being measured in relation to the size of the Company Buyer or any of its Affiliates or Seller or any of its Subsidiaries; provided, that if requested by Buyer, Seller and its Subsidiaries taken will consent to, or offer or agree to, any such requirement, condition, limitation, understanding, agreement or order so long as a whole) to (A) the Company such requirement, condition, limitation, understanding, agreement or order is only binding on Seller and its Subsidiaries, taken as a whole, or Parent and its Subsidiaries, taken as a whole, either before or after giving effect to Subsidiaries in the Offer or event the Merger, or (B) Parent’s ownership or operation of any material portion of the business or assets of the Company and its Subsidiaries, taken as a whole, or (y) would reasonably be expected to deny Parent the material benefit of the bargains contemplated by the transactions contemplated by this Agreement. The Company shall agree, if requested by Parent in writing, to commit to take any of the forgoing actions with respect to the assets or business of the Company in furtherance of this Section 8.2; provided, however, that any such action may be conditioned upon the consummation of the Merger and other Transactions contemplated by this AgreementClosing occurs.
Appears in 1 contract
Sources: Asset Purchase Agreement (Integrated Device Technology Inc)
Regulatory Filings. The Company and the Purchasers shall, as promptly as reasonably practicable after a good faith request from the Purchasers (a) Each which, for the avoidance of Parent and Acquisition Sub (and their respective Affiliatesdoubt, if applicableshall include an explanation by any Purchaser of its determination that a filing subject to this Section 6.5 is required), on the one hand, and the Company, on the other hand, shall (xi) file make or cause their Affiliates to make any required filings with the FTC U.S. Federal Trade Commission (“FTC”), Department of Justice (“DOJ”) and the Antitrust Division of the DOJ a Notification and Report Form relating to this Agreement and the transactions contemplated hereby as any other governmental entity required by under the HSR Act as soon as reasonably practicable from with respect to the date following execution potential issuance of the Underlying Securities in a conversion and delivery of this Agreement but in no event later than ten (10) Business Days following the execution and delivery of this Agreement, and (y) file comparable pre-merger or post-merger notification filings, forms and submissions with any foreign Governmental Authority that is required by any other Antitrust Laws as soon as reasonably practicable from the date following execution and delivery of this Agreement but in no event later than ten (10) Business Days following the execution and delivery of this Agreement. Each of Parent and the Company shall (i) cooperate and coordinate with the other in the making sale of such filingsUnderlying Securities following a conversion (each, a “HSR Event”), (ii) supply the other with any information that may be required in order make or cause their Affiliates to make such filingsany filing or notice required under any other antitrust or competition law or other law or regulation agreed by the parties to be applicable to a HSR Event, (iii) supply provide any additional supplemental information that reasonably may requested in connection with the HSR Act or such other antitrust, competition or other laws or regulations as promptly as practicable after such request is made; provided the Purchasers shall not be required or requested by the FTC, the DOJ or the Governmental Authorities obligated to make any disclosures in violation of any other jurisdiction in which any such filing is made under any other Antitrust Laws, their obligations to their investors; and (iv) use their reasonable best efforts to obtain, or cause to be obtained, all consents, authorizations, orders and approvals from all governmental entities that may be or become necessary in connection with a HSR Event; provided that nothing in this Section 6.5 shall require, or be construed to require, the Purchasers or any of their Affiliates to agree to (x) sell, hold, divest, discontinue or limit, before or after the Closing Date, any assets, businesses or interests of the Purchasers or any of their Affiliates; (y) any material conditions relating to, or changes or restrictions in, the operations of any such assets, businesses or interests; or (z) any material modification or waiver of the terms and conditions of this Agreement; provided, further, that the Company and the Purchasers shall take all action necessary the foregoing actions to cause the expiration or termination of the applicable waiting periods clearance under the HSR Act or such other Antitrust Laws applicable law to be re-obtained or extended, as soon as practicableapplicable, without restriction until all of the Securities have been converted into the Underlying Securities. The Company and each Purchaser shall, and to obtain any required consents under any other Antitrust Laws applicable shall cause its Affiliates to, furnish to the Offer and/or the Merger as soon as practicable, other such information and to avoid any impediment to the consummation of the Offer or the Merger under any Antitrust Laws, including using reasonable best efforts to take all such action as reasonably may be necessary to resolve such objections, if any, assistance as the FTC, the DOJ, or any other Governmental Authority or Person may assert under any applicable Antitrust Laws with respect to the Offer and/or the Merger.
(b) Each of Parent and Acquisition Sub (and their respective Affiliates, if applicable), on the one hand, and the Company, on the other hand, shall promptly inform the other of any communication from any Governmental Authority regarding any of the transactions contemplated by this Agreement reasonably request in connection with any filings or investigations with, by or before any Governmental Authority relating to this Agreement or the transactions contemplated hereby, including any proceedings initiated by a private party. If any party hereto or Affiliate thereof shall receive a request for additional information or documentary material from any Governmental Authority with respect to the transactions contemplated by this Agreement pursuant to the HSR or any other Antitrust Laws with respect to which any such filings have been made, then such party shall use its reasonable best efforts to make, or cause to be made, as soon as reasonably practicable and after consultation with the other party, an appropriate response in compliance with such request. In connection with and without limiting the foregoing, to the extent reasonably practicable and unless prohibited by applicable Law or by the applicable Governmental Authority, the parties hereto agree to (i) give each other reasonable advance notice preparation of all meetings with any Governmental Authority relating to the Offer or the Merger, (ii) give each other an opportunity to participate in each of such meetings, (iii) keep the other party reasonably apprised with respect to any oral communications with any Governmental Authority regarding the Offer or the Merger, (iv) cooperate in the filing of any analyses, presentations, memoranda, briefs, arguments, opinions or other written communications explaining or defending the Offer and the Merger, articulating any regulatory or competitive argument and/or responding to requests or objections made by any Governmental Authority, (v) provide each other with a reasonable advance opportunity to review and comment upon, and consider in good faith the views of the other with respect to, all written communications (including any analyses, presentations, memoranda, briefs, arguments and opinions) with a Governmental Authority regarding the Offer and the Merger, (vi) provide each other (or counsel of each party, as appropriate) with copies of all written communications to or from any Governmental Authority relating to the Offer or the Merger, and (vii) cooperate and provide each other with a reasonable opportunity to participate in, and consider in good faith the views of the other with respect to, all material deliberations with respect to all efforts to satisfy the conditions set forth in clauses (A) and (C)(1) of Annex A and Section 9.1(c). Any such disclosures, rights to participate or provisions of information by one party to the other may be made on a counsel-only basis to the extent required under applicable Law or as appropriate to protect confidential business information or the attorney client privilege or attorney work product.
(c) Each of Parent, Acquisition Sub and the Company shall cooperate with one another in good faith to (i) promptly determine whether any filings not contemplated by Section 8.2(a) are required to be or should be made, and whether any other consents, approvals, permits or authorizations not contemplated by Section 8.2(a) are required to be or should be obtained, from any Governmental Authority under any other applicable Law in connection with the transactions contemplated hereby, and (ii) promptly make any filings, furnish information required in connection therewith and seek to obtain timely any such consents, permits, authorizations, approvals or waivers that the parties determine are required to be or should be made or obtained in connection with the transactions contemplated hereby.
(d) Notwithstanding anything to the contrary in this Agreement, in connection with any filing or submission required or action to be taken by either Parent or the Company to consummate the Offer and the Merger, in no event shall Parent or any of its Subsidiaries or Affiliates be obligated to propose or agree to accept any undertaking or condition, to enter into any consent decree, to make any divestiture or accept any operational restriction, or take or commit to take any action (i) the effectiveness or consummation of which is not conditional on necessary under the consummation HSR Act or such other applicable law or which is otherwise requested by the FTC or DOJ or other governmental entity and shall keep each other apprised of the Offer and the Merger or (ii) that individually or in the aggregate (x) is or would reasonably be expected to be materially adverse (with materiality, for purposes of this provision, being measured in relation to the size of the Company and its Subsidiaries taken as a whole) to (A) the Company and its Subsidiaries, taken as a whole, or Parent and its Subsidiaries, taken as a whole, either before or after giving effect to the Offer or the Merger, or (B) Parent’s ownership or operation status of any material portion communications with, and inquiries or requests for additional information from, the FTC and DOJ or other governmental entity. Each Purchaser shall pay for all filing fees of filings for the business or assets of the Company and its Subsidiaries, taken as a whole, or (y) would reasonably be expected to deny Parent the material benefit of the bargains contemplated by the transactions contemplated by this Agreement. The Company shall agree, if requested by Parent in writing, such Purchaser incurred pursuant to commit to take any of the forgoing actions with respect to the assets or business of the Company in furtherance of this Section 8.2; provided, however, that any such action may be conditioned upon the consummation of the Merger and other Transactions contemplated by this Agreement6.5.
Appears in 1 contract
Sources: Purchase Agreement (Wayfair Inc.)
Regulatory Filings. (a) Each of Parent and Acquisition Sub Party shall (and their respective shall cause its Affiliates, if applicable, to)
(i) use their respective reasonable best efforts to obtain consents of all Governmental Authorities necessary to consummate the Transactions, including to resolve any objections as may be asserted by any Governmental Authority or other Person with respect to the Transactions, in order to permit the Closing to occur by the Termination Date, and (ii) make as promptly as practicable all required filings pursuant to any Antitrust Laws with respect to the Transactions. All filing fees due in connection with any filings required under Antitrust Laws shall be borne by Buyer.
(b) Each Party shall (and shall cause its Affiliates, if applicable, to)
(i) supply as promptly as practicable to the appropriate Governmental Authorities any additional information and documentary material that may be requested pursuant to such Antitrust Laws and (ii) subject to the limitations in Section 6.14(c) with respect to the imposition of a Burdensome Condition, use reasonable best efforts to cause the waiting periods, review periods or other requirements under the HSR Act, any other Antitrust Laws to terminate or expire as promptly as practicable. Without limiting the generality of anything contained in this Section 6.14, each of Buyer, on the one hand, and the CompanyAlani Parties, on the other hand, shall (xA) file cooperate in all respects and consult with each other in connection with any and all regulatory filings as contemplated by Section 6.14(a) and any requests or inquiries as contemplated in this Section 6.14(c), including, subject to applicable Law, allowing the FTC other Party a reasonable opportunity to review any and the Antitrust Division all of the DOJ a Notification foregoing prior to submission and Report Form relating to this Agreement and the transactions contemplated hereby as required by the HSR Act as soon as reasonably practicable from the date following execution and delivery of this Agreement but in no event later than ten (10) Business Days following the execution and delivery of this Agreement, and (y) file comparable pre-merger or post-merger notification filings, forms and submissions with any foreign Governmental Authority that is required by any other Antitrust Laws as soon as reasonably practicable from the date following execution and delivery of this Agreement but in no event later than ten (10) Business Days following the execution and delivery of this Agreement. Each of Parent and the Company shall (i) cooperate and coordinate with incorporating the other in the making of such filingsParty’s reasonable comments thereto, (iiB) supply promptly notify the other with any information that may be required in order to make such filings, (iii) supply any additional information that reasonably may be required or requested by the FTC, the DOJ or the Governmental Authorities Party of any other jurisdiction in which any written communication made to or received by such filing is made under any other Antitrust Laws, and (iv) use reasonable best efforts to take all action necessary to cause the expiration or termination of the applicable waiting periods under the HSR Act or other Antitrust Laws as soon as practicable, and to obtain any required consents under any other Antitrust Laws applicable to the Offer and/or the Merger as soon as practicable, and to avoid any impediment to the consummation of the Offer or the Merger under any Antitrust Laws, including using reasonable best efforts to take all such action as reasonably may be necessary to resolve such objections, if any, as the FTC, the DOJ, or any other Governmental Authority or Person may assert under any applicable Antitrust Laws with respect to the Offer and/or the Merger.
(b) Each of Parent and Acquisition Sub (and their respective Affiliates, if applicable), on the one hand, and the Company, on the other hand, shall promptly inform the other of any communication Party from any Governmental Authority regarding any of the transactions contemplated by this Agreement in connection with any filings or investigations with, by or before any Governmental Authority relating to this Agreement or the transactions contemplated hereby, including any proceedings initiated by a private party. If any party hereto or Affiliate thereof shall receive a request for additional information or documentary material from any Governmental Authority with respect to the transactions contemplated by this Agreement pursuant to the HSR or any other Antitrust Laws with respect to which any such filings have been made, then such party shall use its reasonable best efforts to make, or cause to be made, as soon as reasonably practicable Transactions and after consultation with the other party, an appropriate response in compliance with such request. In connection with and without limiting the foregoing, to the extent reasonably practicable and unless prohibited by applicable Law or by the applicable Governmental Authority, the parties hereto agree to (i) give each other reasonable advance notice of all meetings with any Governmental Authority relating to the Offer or the Merger, (ii) give each other an opportunity to participate in each of such meetings, (iii) keep the other party Party reasonably apprised with respect informed as to the status of any such communication, (C) subject to applicable Law, if practicable, permit the other Party to review in advance any proposed substantive written communication to any oral communications with any such Governmental Authority regarding the Offer or the Merger, (iv) cooperate in the filing of any analyses, presentations, memoranda, briefs, arguments, opinions or other written communications explaining or defending the Offer and the Merger, articulating any regulatory or competitive argument and/or responding to requests or objections made by any Governmental Authority, (v) provide each other with a reasonable advance opportunity to review and comment upon, and consider in good faith the views other Party’s reasonable comments, (D) not agree to participate in any substantive meeting or discussion with any such Governmental Authority in respect of any filing, investigation or inquiry concerning this Agreement or the Transactions unless, to the extent reasonably practicable, it consults with the other with respect toParty in advance and, all written communications (including any analysesto the extent permitted by such Governmental Authority, presentations, memoranda, briefs, arguments and opinions) with a Governmental Authority regarding gives the Offer and other Party the Mergeropportunity to attend, (viE) provide each furnish the other (or counsel of each party, as appropriate) Party with copies of all correspondence, filings and written communications between such Party and its Affiliates and their respective representatives, on the one hand, and any such Governmental Authority or its respective staff, on the other hand, with respect to this Agreement or the Transactions (except that no Party will be required to share with the other Party, other than on an outside counsel only basis, any competitively sensitive information) and (F) promptly provide the other Party with any information or documentation reasonably required by the other Party in order to prepare any filings required by the HSR Act, any other Antitrust Law or in order to respond to any inquiry from any Governmental Authority relating to the Offer or the Merger, and (vii) cooperate and provide each other with a reasonable opportunity to participate in, and consider in good faith the views of the other with respect to, all material deliberations with respect to all efforts to satisfy the conditions set forth in clauses (A) and (C)(1) of Annex A and Section 9.1(c). Any such disclosures, rights to participate or provisions of information by one party to the other may be made on a counsel-only basis to the extent required under applicable Law or as appropriate to protect confidential business information or the attorney client privilege or attorney work product.
(c) Each of Parent, Acquisition Sub and the Company shall cooperate with one another in good faith to (i) promptly determine whether any filings not contemplated by Section 8.2(a) are required to be or should be made, and whether any other consents, approvals, permits or authorizations not contemplated by Section 8.2(a) are required to be or should be obtained, from any Governmental Authority under any other applicable Law in connection with the transactions contemplated hereby, and (ii) promptly make any filings, furnish information required in connection therewith and seek to obtain timely any such consents, permits, authorizations, approvals or waivers that the parties determine are required to be or should be made or obtained in connection with the transactions contemplated hereby.
(d) Notwithstanding anything to the contrary in this Agreement, in connection with any filing or submission required or action to be taken by either Parent or the Company to consummate the Offer and the Merger, in no event shall Parent or any of its Subsidiaries or Affiliates be obligated to propose or agree to accept any undertaking or condition, to enter into any consent decree, to make any divestiture or accept any operational restriction, or take or commit to take any action (i) the effectiveness or consummation of which is not conditional on the consummation of the Offer and the Merger or (ii) that individually or in the aggregate (x) is or would reasonably be expected to be materially adverse (with materiality, for purposes of this provision, being measured in relation to the size of the Company and its Subsidiaries taken as a whole) to HSR Act, any other Antitrust Law (A) the Company and its Subsidiaries, taken as a whole, or Parent and its Subsidiaries, taken as a whole, either before or after giving effect to the Offer or the Merger, or (B) Parent’s ownership or operation of any material portion of the business or assets of the Company and its Subsidiaries, taken as a whole, or (y) would reasonably be expected to deny Parent the material benefit of the bargains contemplated by the transactions contemplated by this Agreement. The Company shall agree, if requested by Parent in writing, to commit to take any of the forgoing actions with respect to the assets or business of the Company in furtherance of this Section 8.2; provided, however, except that any such action may be conditioned upon the consummation of the Merger and other Transactions contemplated by this Agreement.no Party
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Celsius Holdings, Inc.)
Regulatory Filings. Purchaser, Sellers, the Target Companies and the Seller Representative shall (a) Each of Parent make any filings required under the HSR Act and Acquisition Sub (and their respective Affiliates, if applicable), on the one hand, and the Company, on the other hand, shall (x) file with the FTC and the Antitrust Division of the DOJ a Notification and Report Form relating antitrust Laws applicable to this Agreement and the transactions contemplated hereby as required by the HSR Act as soon as reasonably practicable from either prior to the date following execution and delivery of this Agreement but in no event later than ten or within five (105) Business Days following the execution and delivery of this Agreementdate hereof, and (yb) file comparable pre-merger or post-merger notification filings, forms and submissions reasonably comply with any foreign Governmental Authority that is required by any other Antitrust Laws as soon as reasonably practicable from the date following execution and delivery of this Agreement but in no event later than ten (10) Business Days following the execution and delivery of this Agreement. Each of Parent and the Company shall (i) cooperate and coordinate with the other in the making of such filings, (ii) supply the other with any information that may be required in order to make such filings, (iii) supply any additional information that reasonably may be required or requested by the FTC, the DOJ or the Governmental Authorities of any other jurisdiction in which any such filing is made under any other Antitrust Laws, and (iv) use reasonable best efforts to take all action necessary to cause the expiration or termination of the applicable waiting periods request under the HSR Act or other Antitrust antitrust Laws as soon as practicablefor additional information, and to obtain any required consents under any documents, or other Antitrust Laws applicable to the Offer and/or the Merger as soon as practicable, and to avoid any impediment to the consummation of the Offer or the Merger under any Antitrust Laws, including using reasonable best efforts to take all such action as reasonably may be necessary to resolve such objections, if any, as the FTC, the DOJmaterials received by either party therefor, or any other Governmental Authority in respect of such filings or Person may assert under any applicable Antitrust Laws with respect to the Offer and/or the Merger.
(b) Each of Parent and Acquisition Sub (and their respective Affiliates, if applicable), on the one handsuch transactions, and the Company, on the (c) reasonably cooperate with each other hand, shall promptly inform the other of any communication from any Governmental Authority regarding any of the transactions contemplated by this Agreement in connection with any filings or investigations with, by or before any Governmental Authority relating to this Agreement or the transactions contemplated hereby, including any proceedings initiated by a private party. If any party hereto or Affiliate thereof shall receive a request for additional information or documentary material from any Governmental Authority with respect to the transactions contemplated by this Agreement pursuant to the HSR or any other Antitrust Laws with respect to which any such filings have been made, then such party shall use its reasonable best efforts to make, or cause to be made, as soon as reasonably practicable and after consultation with the other party, an appropriate response in compliance with such request. In connection with and without limiting the foregoingfiling (including, to the extent reasonably practicable and unless prohibited permitted by applicable Law or by the applicable Governmental AuthorityLaw, the parties hereto agree to (i) give each other reasonable advance notice of all meetings with any Governmental Authority relating to the Offer or the Merger, (ii) give each other an opportunity to participate in each of such meetings, (iii) keep the other party reasonably apprised with respect to any oral communications with any Governmental Authority regarding the Offer or the Merger, (iv) cooperate in the filing of any analyses, presentations, memoranda, briefs, arguments, opinions or other written communications explaining or defending the Offer and the Merger, articulating any regulatory or competitive argument and/or responding to requests or objections made by any Governmental Authority, (v) provide each other with a reasonable advance opportunity to review and comment upon, and consider in good faith the views of the other with respect to, all written communications (including any analyses, presentations, memoranda, briefs, arguments and opinions) with a Governmental Authority regarding the Offer and the Merger, (vi) provide each other (or counsel of each party, as appropriate) with providing copies of all written communications to or from any Governmental Authority relating such documents to the Offer non-filing parties prior to filing and considering all reasonable additions, deletions or the Merger, and (vii) cooperate and provide each other with a reasonable opportunity to participate in, and consider changes suggested in good faith the views of the other with respect to, all material deliberations with respect to all efforts to satisfy the conditions set forth in clauses (Aconnection therewith) and (C)(1) in connection with resolving any investigation or other inquiry of Annex A and Section 9.1(c). Any such disclosures, rights to participate or provisions of information by one party to the other may be made on a counsel-only basis to the extent required under applicable Law or as appropriate to protect confidential business information or the attorney client privilege or attorney work product.
(c) Each of Parent, Acquisition Sub and the Company shall cooperate with one another in good faith to (i) promptly determine whether any filings not contemplated by Section 8.2(a) are required to be or should be made, and whether any other consents, approvals, permits or authorizations not contemplated by Section 8.2(a) are required to be or should be obtained, from any Governmental Authority under any antitrust Laws with respect to any such filing or any such transaction. Purchaser, Sellers, the Target Companies and the Seller Representative shall use reasonable efforts (i) to furnish to the other party all information required for any application or other filing to be made pursuant to any applicable Law in connection with the transactions contemplated hereby, by this Agreement and (ii) to promptly make obtain any filings, furnish information clearance required in connection therewith under the HSR Act and seek to obtain timely any such consents, permits, authorizations, approvals other antitrust or waivers that the parties determine are required to be or should be made or obtained in connection with the transactions contemplated hereby.
(d) Notwithstanding anything to the contrary in this Agreement, in connection with any filing or submission required or action to be taken by either Parent or the Company to consummate the Offer and the Merger, in no event shall Parent or any of its Subsidiaries or Affiliates be obligated to propose or agree to accept any undertaking or condition, to enter into any consent decree, to make any divestiture or accept any operational restriction, or take or commit to take any action (i) the effectiveness or consummation of which is not conditional on foreign competition Laws for the consummation of the Offer and the Merger or (ii) that individually or in the aggregate (x) is or would reasonably be expected to be materially adverse (with materiality, for purposes of this provision, being measured in relation to the size of the Company and its Subsidiaries taken as a whole) to (A) the Company and its Subsidiaries, taken as a whole, or Parent and its Subsidiaries, taken as a whole, either before or after giving effect to the Offer or the Merger, or (B) Parent’s ownership or operation of any material portion of the business or assets of the Company and its Subsidiaries, taken as a whole, or (y) would reasonably be expected to deny Parent the material benefit of the bargains contemplated by the transactions contemplated by this Agreement. The Agreement and shall provide prompt notice of any communications (whether oral or written) with, and any inquiries or requests for additional information from, any Governmental Authority, and each party shall have the right to participate in any meeting between Purchaser, a Seller, a Target Company shall agreeor the Seller Representative, if requested by Parent on the one hand, and any Governmental Authority, on the other hand, concerning such filings or the subject matter thereof, in writing, to commit to take any of the forgoing actions with respect each case to the assets or business of the Company in furtherance of this Section 8.2extent legally permissible; provided, howeverthat, that notwithstanding anything in this Agreement to the contrary, no party or any such action may of its Affiliates shall be conditioned upon required to bring any Proceeding against any Person or accept, as a condition to obtaining any required approval or resolving any objection of any Governmental Authority, any requirement to divest or hold separate or in trust (or the consummation imposition of the Merger any other material condition or restriction with respect to) any of their (and other Transactions contemplated by this Agreementtheir Affiliates’) respective businesses or assets.
Appears in 1 contract
Sources: Stock Purchase Agreement (Olin Corp)
Regulatory Filings. (a) Each of Parent and Acquisition Sub the Parties shall use its commercially reasonable efforts to (and their respective Affiliatesi) as promptly as practicable, if applicableobtain from any Governmental Authority any consent, approval, authorization, declaration, waiver, license, franchise, permit, certificate or Order required to be obtained or made by such Party or any Retail Group Member (including those items set forth on Schedule 5.02(a) or 5.02(b)), on the one handor to avoid any Litigation by any Governmental Authority, and the Company, on the other hand, shall (x) file in each case in connection with the FTC and the Antitrust Division of the DOJ a Notification and Report Form relating to this Agreement and the transactions contemplated hereby as required by the HSR Act as soon as reasonably practicable from the date following authorization, execution and delivery of this Agreement but in no event later than ten (10) Business Days following the execution and delivery of this Agreement, all other Transaction Documents and (y) file comparable pre-merger or post-merger notification filings, forms and submissions with any foreign Governmental Authority that is required by any other Antitrust Laws as soon as reasonably practicable from the date following execution and delivery of this Agreement but in no event later than ten (10) Business Days following the execution and delivery of this Agreement. Each of Parent and the Company shall (i) cooperate and coordinate with the other in the making of such filings, (ii) supply the other with any information that may be required in order to make such filings, (iii) supply any additional information that reasonably may be required or requested by the FTC, the DOJ or the Governmental Authorities of any other jurisdiction in which any such filing is made under any other Antitrust Laws, and (iv) use reasonable best efforts to take all action necessary to cause the expiration or termination of the applicable waiting periods under the HSR Act or other Antitrust Laws as soon as practicable, and to obtain any required consents under any other Antitrust Laws applicable to the Offer and/or the Merger as soon as practicable, and to avoid any impediment to the consummation of the Offer or the Merger under any Antitrust Lawstransactions contemplated herein and therein and (ii) as promptly as practicable, including using reasonable best efforts to take make (if not already made) all such action as reasonably may be necessary to resolve such objectionsfilings, if any, as the FTC, the DOJ, or and thereafter make any other Governmental Authority or Person may assert required submissions, with respect to this Agreement required under any applicable Antitrust Laws Law, including the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Act and any other antitrust Laws; provided, however, that the Buyer Parties and the Sellers shall cooperate with respect each other in connection with the making of all such filings, including providing copies of all such non-proprietary documents to the Offer and/or the Merger.
(b) Each of Parent non-filing Party and Acquisition Sub (and their respective Affiliatesits advisors prior to filing and, if applicable)requested, on the one handto accept all reasonable additions, and the Company, on deletions or changes suggested in connection therewith. Each Party shall promptly furnish to the other hand, shall promptly inform all information required for any application or other filing to be made by the other of pursuant to any communication from any Governmental Authority regarding any of applicable Law in connection with the transactions contemplated by this Agreement in connection with Agreement. Each Party agrees to make, and to cause its Affiliates to make (if not already made), any necessary filings or investigations with, by or before under the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Act and any Governmental Authority relating to this Agreement or the transactions contemplated hereby, including any proceedings initiated by a private party. If any party hereto or Affiliate thereof shall receive a request for additional information or documentary material from any Governmental Authority other antitrust Laws with respect to the transactions contemplated by this Agreement pursuant to the HSR no later than five (5) Business Days after execution of this Agreement. The Buyer Parties will not, and will not permit their Affiliates to, consent or any other Antitrust Laws with respect to which any such filings have been made, then such party shall use its reasonable best efforts to make, or cause to be made, as soon as reasonably practicable and after consultation with the other party, an appropriate response in compliance with such request. In connection with and without limiting the foregoing, to the extent reasonably practicable and unless prohibited by applicable Law or by the applicable Governmental Authority, the parties hereto agree to (i) give each other reasonable advance notice of all meetings with any Governmental Authority relating to the Offer or the Merger, (ii) give each other an opportunity to participate in each of such meetings, (iii) keep the other party reasonably apprised with respect to any oral communications with any Governmental Authority regarding the Offer or the Merger, (iv) cooperate in the filing of any analyses, presentations, memoranda, briefs, arguments, opinions or other written communications explaining or defending the Offer and the Merger, articulating any regulatory or competitive argument and/or responding to requests or objections made by any Governmental Authority, (v) provide each other with a reasonable advance opportunity to review and comment upon, and consider in good faith the views voluntary delay of the other with respect to, all written communications (including any analyses, presentations, memoranda, briefs, arguments and opinions) with a Governmental Authority regarding the Offer and the Merger, (vi) provide each other (or counsel consummation of each party, as appropriate) with copies of all written communications to or from any Governmental Authority relating to the Offer or the Merger, and (vii) cooperate and provide each other with a reasonable opportunity to participate in, and consider in good faith the views of the other with respect to, all material deliberations with respect to all efforts to satisfy the conditions set forth in clauses (A) and (C)(1) of Annex A and Section 9.1(c). Any such disclosures, rights to participate or provisions of information by one party to the other may be made on a counsel-only basis to the extent required under applicable Law or as appropriate to protect confidential business information or the attorney client privilege or attorney work product.
(c) Each of Parent, Acquisition Sub and the Company shall cooperate with one another in good faith to (i) promptly determine whether any filings not contemplated by Section 8.2(a) are required to be or should be made, and whether any other consents, approvals, permits or authorizations not contemplated by Section 8.2(a) are required to be or should be obtained, from any Governmental Authority under any other applicable Law in connection with the transactions contemplated herebyby this Agreement without the prior written consent of the Sellers, and (ii) promptly make any filings, furnish information required in connection therewith and seek to obtain timely any such consents, permits, authorizations, approvals or waivers that the parties determine are required to which consent shall not be or should be made or obtained in connection with the transactions contemplated hereby.
(d) unreasonably withheld. Notwithstanding anything to the contrary in this Agreement, Buyer Parties and their Affiliates shall not have any obligation to dispose of any assets (currently owned or to be acquired in this transaction) or to otherwise make any changes to its business operations in connection with the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Act and any other antitrust Laws.
(b) The Buyer Parties, obligated jointly and severally, shall be responsible for the payment of all filing or submission required or action to be taken by either Parent or fees under the Company to consummate the Offer ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Act and the Merger, in no event shall Parent or any of its Subsidiaries or Affiliates be obligated to propose or agree to accept any undertaking or condition, to enter into any consent decree, to make any divestiture or accept any operational restriction, or take or commit to take any action (i) the effectiveness or consummation of which is not conditional on the consummation of the Offer and the Merger or (ii) that individually or in the aggregate (x) is or would reasonably be expected to be materially adverse (with materiality, for purposes of this provision, being measured in relation to the size of the Company and its Subsidiaries taken as a whole) to (A) the Company and its Subsidiaries, taken as a whole, or Parent and its Subsidiaries, taken as a whole, either before or after giving effect to the Offer or the Merger, or (B) Parent’s ownership or operation of any material portion of the business or assets of the Company and its Subsidiaries, taken as a whole, or (y) would reasonably be expected to deny Parent the material benefit of the bargains contemplated by the transactions contemplated by this Agreement. The Company shall agree, if requested by Parent in writing, to commit to take any of the forgoing actions with respect to the assets or business of the Company in furtherance of this Section 8.2; provided, however, that any such action may be conditioned upon the consummation of the Merger and other Transactions contemplated by this Agreementantitrust Laws.
Appears in 1 contract
Sources: Stock and Asset Purchase Agreement (Affirmative Insurance Holdings Inc)
Regulatory Filings. (a) Each of Parent and Acquisition Parent, Merger Sub (and their respective Affiliates, if applicable), on the one hand, and the CompanyCompany shall coordinate and cooperate with one another and shall each use all reasonable efforts to , on as promptly as practicable after the date hereof, make all filings, notices, petitions, statements, registrations, submissions of information, application or submission of other hand, shall (x) file documents required by any Governmental Entity in connection with the FTC Merger and the transactions contemplated hereby, including, without limitation: (i) in no event later than five (5) Business Days after the date hereof, a Notification and Report Forms with the United States Federal Trade Commission (“FTC”) and the Antitrust Division of the DOJ a Notification and Report Form relating to this Agreement and the transactions contemplated hereby United States Department of Justice (“DOJ”) as required by the HSR Act as soon as reasonably practicable from the date following execution and delivery of this Agreement but in no event later than ten Act, (10ii) Business Days following the execution and delivery of this Agreement, and (y) file filings under any other comparable pre-merger or post-merger notification filings, forms and submissions with any foreign Governmental Authority that is required reasonably determined by any other Antitrust Laws as soon as reasonably practicable from the date following execution and delivery of this Agreement but in no event later than ten (10) Business Days following the execution and delivery of this Agreement. Each of Parent and the Company to be required by the merger notification or control laws of any applicable jurisdiction, as agreed by the parties hereto, and (iii) any filings required under the Securities Act, the Exchange Act, the Commodity Exchange Act and the rules, regulations and interpretive guidance thereunder, any applicable state or securities or “blue sky” laws and the securities laws of any non-U.S. country, or any other Legal Requirement relating to the Merger. None of Parent, Merger Sub or the Company will unreasonably take any action that will have the effect of delaying, impairing or impeding the receipt of any required approvals and shall (ipromptly respond to any requests for additional information and documentary material from the FTC and the DOJ or other Governmental Entity under applicable Legal Requirements. Each of Parent, Merger Sub and the Company will cause all documents that it is responsible for filing with any Governmental Entity under this Section 5.4(a) cooperate to comply in all material respects with all applicable Legal Requirements. Parent, Merger Sub and coordinate with the other in the making of such filings, (ii) Company each shall promptly supply the other with any information that may be required in order to make such filingseffectuate any filings or application pursuant to this Section 5.4(a). Parent shall pay all filing and related fees in connection with any filings that must be made by any of the parties under this Section 5.4(a). Subject to Section 5.5 below, (iii) supply any additional information that reasonably may be required or requested by Parent and the FTC, the DOJ or the Governmental Authorities Company hereby covenant and agree to use their commercially reasonable efforts to secure termination of any other jurisdiction in which any such filing is made under any other Antitrust Laws, and (iv) use reasonable best efforts to take all action necessary to cause the expiration or termination of the applicable waiting periods under the HSR Act or any other Antitrust Laws as soon as practicable, applicable Law and to obtain any required consents under any other Antitrust Laws applicable to the Offer and/or the Merger as soon as practicable, and to avoid any impediment to the consummation approval of the Offer or the Merger under any Antitrust Laws, including using reasonable best efforts to take all such action as reasonably may be necessary to resolve such objections, if any, as the FTC, the DOJ, DOJ or any other Governmental Authority or Person may assert under any applicable Antitrust Laws with respect to Entity, as applicable, for the Offer and/or the Merger.
(b) Each of Parent and Acquisition Sub (and their respective Affiliates, if applicable), on the one hand, Merger and the Company, on the other hand, shall promptly inform the other of any communication from any Governmental Authority regarding any of the transactions contemplated by this Agreement in connection with any filings or investigations with, by or before any Governmental Authority relating to this Agreement or the transactions contemplated hereby, including any proceedings initiated by a private party. If any party hereto or Affiliate thereof shall receive a request for additional information or documentary material from any Governmental Authority with respect to the transactions contemplated by this Agreement pursuant to the HSR or any other Antitrust Laws with respect to which any such filings have been made, then such party shall use its reasonable best efforts to make, or cause to be made, as soon as reasonably practicable and after consultation with the other party, an appropriate response in compliance with such request. In connection with and without limiting the foregoing, to the extent reasonably practicable and unless prohibited by applicable Law or by the applicable Governmental Authority, the parties hereto agree to (i) give each other reasonable advance notice of all meetings with any Governmental Authority relating to the Offer or the Merger, (ii) give each other an opportunity to participate in each of such meetings, (iii) keep the other party reasonably apprised with respect to any oral communications with any Governmental Authority regarding the Offer or the Merger, (iv) cooperate in the filing of any analyses, presentations, memoranda, briefs, arguments, opinions or other written communications explaining or defending the Offer and the Merger, articulating any regulatory or competitive argument and/or responding to requests or objections made by any Governmental Authority, (v) provide each other with a reasonable advance opportunity to review and comment upon, and consider in good faith the views of the other with respect to, all written communications (including any analyses, presentations, memoranda, briefs, arguments and opinions) with a Governmental Authority regarding the Offer and the Merger, (vi) provide each other (or counsel of each party, as appropriate) with copies of all written communications to or from any Governmental Authority relating to the Offer or the Merger, and (vii) cooperate and provide each other with a reasonable opportunity to participate in, and consider in good faith the views of the other with respect to, all material deliberations with respect to all efforts to satisfy the conditions set forth in clauses (A) and (C)(1) of Annex A and Section 9.1(c). Any such disclosures, rights to participate or provisions of information by one party to the other may be made on a counsel-only basis to the extent required under applicable Law or as appropriate to protect confidential business information or the attorney client privilege or attorney work product.
(c) Each of Parent, Acquisition Sub and the Company shall cooperate with one another in good faith to (i) promptly determine whether any filings not contemplated by Section 8.2(a) are required to be or should be made, and whether any other consents, approvals, permits or authorizations not contemplated by Section 8.2(a) are required to be or should be obtained, from any Governmental Authority under any other applicable Law in connection with the transactions contemplated hereby, and (ii) promptly make any filings, furnish information required in connection therewith and seek to obtain timely any such consents, permits, authorizations, approvals or waivers that the parties determine are required to be or should be made or obtained in connection with the transactions contemplated hereby.
(d) Notwithstanding anything to the contrary in this Agreement, in connection with any filing or submission required or action to be taken by either Parent or the Company to consummate the Offer and the Merger, in no event shall Parent or any of its Subsidiaries or Affiliates be obligated to propose or agree to accept any undertaking or condition, to enter into any consent decree, to make any divestiture or accept any operational restriction, or take or commit to take any action (i) the effectiveness or consummation of which is not conditional on the consummation of the Offer and the Merger or (ii) that individually or in the aggregate (x) is or would reasonably be expected to be materially adverse (with materiality, for purposes of this provision, being measured in relation to the size of the Company and its Subsidiaries taken as a whole) to (A) the Company and its Subsidiaries, taken as a whole, or Parent and its Subsidiaries, taken as a whole, either before or after giving effect to the Offer or the Merger, or (B) Parent’s ownership or operation of any material portion of the business or assets of the Company and its Subsidiaries, taken as a whole, or (y) would reasonably be expected to deny Parent the material benefit of the bargains contemplated by the transactions contemplated by this Agreement. The Company shall agree, if requested by Parent in writing, to commit to take any of the forgoing actions with respect to the assets or business of the Company in furtherance of this Section 8.2; provided, however, that any such action may be conditioned upon the consummation of the Merger and other Transactions contemplated by this Agreement.;
Appears in 1 contract
Regulatory Filings. (a) Each To the extent required by applicable Law in connection with a Subsequent Closing, the Parties shall make, or cause to be made, the filing required (if any) of Parent and Acquisition Sub (and each of them or any of their respective Subsidiaries or Affiliates, if applicable)including the Group Companies, on the one hand, and the Company, on the other hand, shall (x) file with the FTC and the Antitrust Division of the DOJ a Notification and Report Form relating to this Agreement and the transactions contemplated hereby as required by under the HSR Act with respect to the Acquisition. In connection therewith, if requested by Buyer, the Parties shall request early termination of any waiting period under the HSR Act. The Parties hereto shall make, or cause to be made, as soon promptly as reasonably practicable from practicable, all filings necessary to obtain all Regulatory Approvals (other than the date following execution HSR Approval or other filings under Antitrust Laws) as set forth in Schedule 7.01. As applicable, Buyer and delivery of this Agreement but in no event later than ten (10) Business Days following the execution and delivery of this AgreementSeller shall, and (y) file comparable pre-merger or post-merger notification filings, forms and submissions with any foreign Governmental Authority that is required by any other Antitrust Laws as soon as reasonably practicable from the date following execution and delivery of this Agreement but in no event later than ten (10) Business Days following the execution and delivery of this Agreement. Each of Parent and Seller shall cause the Company shall to: (i) cooperate and coordinate with the other Parties in the making of such filings, any filings or submissions that are required to be made under any applicable Laws or requested to be made by any Governmental Entity in connection with the Transactions; (ii) supply the other with respond to any requests for additional information that may be required in order to make such filings, made by any Governmental Entity; (iii) supply any additional information that reasonably may be required or requested by upon the FTCterms and subject to the conditions set forth in this Agreement, the DOJ or the Governmental Authorities of any other jurisdiction in which any such filing is made under any other Antitrust Laws, and (iv) use their reasonable best efforts to take all action necessary to cause the expiration or termination of the any applicable waiting periods under the HSR Act or other Antitrust any applicable Laws as soon as reasonably practicable, and to obtain any required consents under any other Antitrust Laws applicable to the Offer and/or the Merger as soon as practicable, and to avoid any impediment to the consummation of the Offer or the Merger under any Antitrust Laws, including using reasonable best efforts to take all such action as reasonably may be necessary to resolve such objections, if any, as the FTC, the DOJ, or any other Governmental Authority or Person may assert under any applicable Antitrust Laws with respect to the Offer and/or the Merger.
(b) Each of Parent and Acquisition Sub (and their respective Affiliates, if applicable), on the one hand, and the Company, on the other hand, shall promptly inform the other of any communication from any Governmental Authority regarding any of the transactions contemplated by this Agreement in connection with any filings or investigations with, by or before any Governmental Authority relating to this Agreement or the transactions contemplated hereby, including any proceedings initiated by a private party. If any party hereto or Affiliate thereof shall receive a request for additional information or documentary material from any Governmental Authority with respect to the transactions contemplated by this Agreement pursuant to the HSR or any other Antitrust Laws with respect to which any such filings have been made, then such party shall use its reasonable best efforts to make, or cause to be made, as soon as reasonably practicable and after consultation with the other party, an appropriate response in compliance with such request. In connection with and without limiting the foregoing, to the extent reasonably practicable and unless prohibited by applicable Law or by the applicable Governmental Authority, the parties hereto agree to (i) give each other reasonable advance notice of all meetings with any Governmental Authority relating to the Offer or the Merger, (ii) give each other an opportunity to participate in each of such meetings, (iii) keep the other party reasonably apprised with respect to any oral communications with any Governmental Authority regarding the Offer or the Merger, ; (iv) cooperate in provide the filing of any analyses, presentations, memoranda, briefs, arguments, opinions or other written communications explaining or defending the Offer and the Merger, articulating any regulatory or competitive argument and/or responding to requests or objections made by any Governmental Authority, (v) provide each other Parties with a reasonable advance opportunity to review and comment uponon any filing, submission, response to an information request or other (verbal or written) communication to be submitted or made to any Governmental Entity, except for the premerger notification and report forms (and any attachments thereto) prepared and submitted pursuant to the HSR Act (if applicable), written communications regarding the same, or documents or information submitted in response to any formal or informal request from the FTC or DOJ for additional information or documents pursuant to the HSR Act (if applicable), to the extent that any such material reveals any Party’s negotiating objectives, strategies, or consideration expectations, in which event such material may be withheld or its disclosure limited to the other Party’s external counsel, and such receiving Party shall consider any such received comments in good faith the views of faith; (v) advise the other Parties (and, where applicable, provide a copy) of any written or verbal communications that it receives from any Governmental Entity in respect of such filings (including in respect of any supplementary filings or submissions) and otherwise in connection with respect tosatisfying the Regulatory Approvals, all except for the premerger notification and report forms (and any attachments thereto) prepared and submitted pursuant to the HSR Act (if applicable), written communications (including any analyses, presentations, memoranda, briefs, arguments and opinions) with a Governmental Authority regarding the Offer same, or documents or information submitted in response to any formal or informal request from the FTC or DOJ for additional information or documents pursuant to the HSR Act (if applicable), to the extent that any such material reveals any Party’s negotiating objectives, strategies, or consideration expectations, in which event such material may be withheld or its disclosure limited to the other Party’s external counsel; and the Merger, (vi) provide each the other (or counsel of each party, as appropriate) with copies of all written communications to or from any Governmental Authority relating to the Offer or the Merger, and (vii) cooperate and provide each other Party with a reasonable opportunity to participate in any meetings with any Governmental Entity (subject to any opposition by a Governmental Entity to a particular Party’s participation in such meeting) and participate in, and consider or review, any material communication before it is made to any Governmental Entity. Notwithstanding the foregoing, each Party has the right to redact or otherwise exclude a Party from receiving any confidential competitively sensitive information required to be shared under this Section 7.01(a), in good faith the views which event disclosure of the other with respect to, all such material deliberations with respect to all efforts to satisfy the conditions set forth in clauses (A) and (C)(1) of Annex A and Section 9.1(c). Any such disclosures, rights to participate or provisions of information by one party may be limited to the other may be made on Party’s external counsel. The Parties shall not agree to an extension of any waiting period or review being undertaken by a counsel-only basis to Governmental Entity without the extent required under applicable Law or as appropriate to protect confidential business information or the attorney client privilege or attorney work productother Party’s prior written consent.
(c) Each of Parent, Acquisition Sub and the Company shall cooperate with one another in good faith to (i) promptly determine whether any filings not contemplated by Section 8.2(a) are required to be or should be made, and whether any other consents, approvals, permits or authorizations not contemplated by Section 8.2(a) are required to be or should be obtained, from any Governmental Authority under any other applicable Law in connection with the transactions contemplated hereby, and (ii) promptly make any filings, furnish information required in connection therewith and seek to obtain timely any such consents, permits, authorizations, approvals or waivers that the parties determine are required to be or should be made or obtained in connection with the transactions contemplated hereby.
(db) Notwithstanding anything to the contrary in this Agreement, in connection with any filing or submission required or action to be taken by either Parent or the Company to consummate the Offer and the Merger, in no event shall Parent will Buyer or any of its respective Subsidiaries, be required to (and in no event will the Company, and the Company will cause its Subsidiaries not to, without the prior written consent of Buyer) (x) commit, agree or Affiliates be obligated submit (or offer to propose commit, agree, or agree submit) to accept any undertaking or condition, to enter into any consent decree, to make any divestiture hold separate order, sale, divestiture, lease, license, transfer, disposal, Encumbrance, other change or accept any operational restrictionrestructuring of, or take operating restriction with respect to the businesses, properties, product lines, assets, permits, operations, rights, or commit interest therein of the Group Companies or Buyer or any of its Subsidiaries, or (y) commit, agree, or submit (or offer to take commit, agree, or submit) to any action (i) or agree to any remedies, terms or conditions in connection with its obligations under this Agreement; provided, that if Buyer requests, Seller shall, and shall cause the effectiveness or consummation of which is not conditional Group Companies to, take such actions so long as they are conditioned on the consummation of the Offer and the Merger or (ii) that individually or in the aggregate (x) is or would reasonably be expected to be materially adverse (with materiality, for purposes of this provision, being measured in relation to the size of the Company and its Subsidiaries taken as a whole) to (A) the Company and its Subsidiaries, taken as a whole, or Parent and its Subsidiaries, taken as a whole, either before or after giving effect to the Offer or the Merger, or (B) Parent’s ownership or operation of any material portion of the business or assets of the Company and its Subsidiaries, taken as a whole, or (y) would reasonably be expected to deny Parent the material benefit of the bargains contemplated by the transactions contemplated by this Agreement. The Company shall agree, if requested by Parent in writing, to commit to take any of the forgoing actions with respect to the assets or business of the Company in furtherance of this Section 8.2; provided, however, that any such action may be conditioned upon the consummation of the Merger and other Transactions contemplated by this AgreementTransactions.
Appears in 1 contract
Sources: Stock Purchase Agreement (Surgalign Holdings, Inc.)
Regulatory Filings. Biomet, Merger Sub and Parent shall (a) Each make any filings required by any of Biomet, Merger Sub, Parent and Acquisition Sub (and or their respective Affiliates, if applicable), on Affiliates under the one hand, HSR Act and the Company, on the other hand, shall (x) file with the FTC and the Antitrust Division of the DOJ a Notification and Report Form relating antitrust or foreign competition Laws applicable to this Agreement and the transactions contemplated hereby as required by the HSR Act as soon as reasonably practicable from either prior to the date following execution and delivery of this Agreement but in no event later than ten or within three (103) Business Days following the execution and delivery of this Agreementdate hereof, and (yb) file comparable pre-merger or post-merger notification filings, forms and submissions comply at the earliest practicable date with any foreign Governmental Authority that is required by any other Antitrust Laws as soon as reasonably practicable from the date following execution and delivery of this Agreement but in no event later than ten (10) Business Days following the execution and delivery of this Agreement. Each of Parent and the Company shall (i) cooperate and coordinate with the other in the making of such filings, (ii) supply the other with any information that may be required in order to make such filings, (iii) supply any additional information that reasonably may be required or requested by the FTC, the DOJ or the Governmental Authorities of any other jurisdiction in which any such filing is made under any other Antitrust Laws, and (iv) use reasonable best efforts to take all action necessary to cause the expiration or termination of the applicable waiting periods request under the HSR Act or other Antitrust antitrust Laws as soon as practicablefor additional information, and to obtain any required consents under any documents, or other Antitrust Laws applicable to the Offer and/or the materials received by Biomet, Merger as soon as practicable, and to avoid any impediment to the consummation of the Offer Sub or the Merger under any Antitrust Laws, including using reasonable best efforts to take all such action as reasonably may be necessary to resolve such objections, if any, as Parent from the FTC, the DOJ, or any other Governmental Authority in respect of such filings or Person such transactions, and (c) cooperate with the Company in connection with any such filing (including, to the extent permitted by applicable Law, providing copies of all such documents to the non-filing Parties or their outside counsel prior to filing; provided, however, that if any such documents relate to another potential transaction the filing Parties may assert elect to redact those portions) and in connection with resolving any investigation or other inquiry of any of the FTC or other Governmental Authority under any applicable Antitrust antitrust Laws with respect to the Offer and/or the Merger.
(b) any such filing or any such transaction. Each of Biomet, Merger Sub and Parent and Acquisition Sub (and shall use their respective Affiliates, if applicable), on the one hand, and the Company, on the other hand, shall promptly inform the other of any communication from any Governmental Authority regarding any of the transactions contemplated by this Agreement in connection with any filings or investigations with, by or before any Governmental Authority relating to this Agreement or the transactions contemplated hereby, including any proceedings initiated by a private party. If any party hereto or Affiliate thereof shall receive a request for additional information or documentary material from any Governmental Authority with respect to the transactions contemplated by this Agreement pursuant to the HSR or any other Antitrust Laws with respect to which any such filings have been made, then such party shall use its reasonable best efforts to make, or cause to be made, as soon as reasonably practicable and after consultation with the other party, an appropriate response in compliance with such request. In connection with and without limiting the foregoing, to the extent reasonably practicable and unless prohibited by applicable Law or by the applicable Governmental Authority, the parties hereto agree to Reasonable Efforts (i) give each other reasonable advance notice of all meetings with any Governmental Authority relating to furnish to the Offer Company all information required for any application or the Merger, (ii) give each other an opportunity filing to participate in each of such meetings, (iii) keep the other party reasonably apprised with respect be made pursuant to any oral communications with any Governmental Authority regarding the Offer or the Merger, (iv) cooperate in the filing of any analyses, presentations, memoranda, briefs, arguments, opinions or other written communications explaining or defending the Offer and the Merger, articulating any regulatory or competitive argument and/or responding to requests or objections made by any Governmental Authority, (v) provide each other with a reasonable advance opportunity to review and comment upon, and consider in good faith the views of the other with respect to, all written communications (including any analyses, presentations, memoranda, briefs, arguments and opinions) with a Governmental Authority regarding the Offer and the Merger, (vi) provide each other (or counsel of each party, as appropriate) with copies of all written communications to or from any Governmental Authority relating to the Offer or the Merger, and (vii) cooperate and provide each other with a reasonable opportunity to participate in, and consider in good faith the views of the other with respect to, all material deliberations with respect to all efforts to satisfy the conditions set forth in clauses (A) and (C)(1) of Annex A and Section 9.1(c). Any such disclosures, rights to participate or provisions of information by one party to the other may be made on a counsel-only basis to the extent required under applicable Law or as appropriate to protect confidential business information or the attorney client privilege or attorney work product.
(c) Each of Parent, Acquisition Sub and the Company shall cooperate with one another in good faith to (i) promptly determine whether any filings not contemplated by Section 8.2(a) are required to be or should be made, and whether any other consents, approvals, permits or authorizations not contemplated by Section 8.2(a) are required to be or should be obtained, from any Governmental Authority under any other applicable Law in connection with the transactions contemplated hereby, by this Agreement and (ii) to promptly make obtain any filings, furnish information clearance required in connection therewith under the HSR Act and seek to obtain timely any such consents, permits, authorizations, approvals other antitrust or waivers that the parties determine are required to be or should be made or obtained in connection with the transactions contemplated hereby.
(d) Notwithstanding anything to the contrary in this Agreement, in connection with any filing or submission required or action to be taken by either Parent or the Company to consummate the Offer and the Merger, in no event shall Parent or any of its Subsidiaries or Affiliates be obligated to propose or agree to accept any undertaking or condition, to enter into any consent decree, to make any divestiture or accept any operational restriction, or take or commit to take any action (i) the effectiveness or consummation of which is not conditional on foreign competition Laws for the consummation of the Offer and the Merger or (ii) that individually or in the aggregate (x) is or would reasonably be expected to be materially adverse (with materiality, for purposes of this provision, being measured in relation to the size of the Company and its Subsidiaries taken as a whole) to (A) the Company and its Subsidiaries, taken as a whole, or Parent and its Subsidiaries, taken as a whole, either before or after giving effect to the Offer or the Merger, or (B) Parent’s ownership or operation of any material portion of the business or assets of the Company and its Subsidiaries, taken as a whole, or (y) would reasonably be expected to deny Parent the material benefit of the bargains contemplated by the transactions contemplated by this Agreement. The Agreement and shall promptly inform Company of any oral communication with, and provide copies of written communications with, any Governmental Authority regarding any such filings; provided, that notwithstanding anything in this Agreement to the contrary, neither Biomet nor Parent nor Merger Sub nor any of their Affiliates shall agreebe required to bring any proceeding against any Person or accept, if requested by Parent as a condition to obtaining any required approval or resolving any objection of any Governmental Authority, any requirement to divest or hold separate or in writing, to commit to take trust (or the imposition of any other material condition or restriction with respect to) any of the forgoing actions with respect to respective businesses or assets of Biomet, Parent, Merger Sub or any of their Affiliates (including, following the assets or business of Closing, the Company in furtherance of this Section 8.2; provided, however, that any such action may be conditioned upon the consummation of the Merger Surviving Corporation and other Transactions contemplated by this Agreementits Subsidiaries).
Appears in 1 contract
Sources: Merger Agreement (Biomet Inc)
Regulatory Filings. (a) Each of Parent Parent, Merger Sub and Acquisition Sub (the Company and their respective Affiliates, if applicable), on the each Company Subsidiary will coordinate and cooperate with one handanother and will each use all reasonable efforts to comply with, and will each refrain from taking any action that would impede compliance with, all Legal Requirements and to seek all Approvals of any Governmental or Regulatory Authority that are necessary to consummate the Company, on Merger and the other handtransactions contemplated hereby. In furtherance thereof, as promptly as practicable after the execution and delivery of this Agreement by each of the parties hereto, each of Parent, Merger Sub and the Company (as applicable) shall (x) file make all filings, notices, petitions, statements, registrations, submissions of information, application or submission of other documents required by any Governmental or Regulatory Authority in connection with the FTC Merger and the other transactions contemplated hereby, including (i) Notification and Report Forms with the United States Federal Trade Commission (the “FTC”) and the Antitrust Division of the DOJ a Notification and Report Form relating to this Agreement and the transactions contemplated hereby United States Department of Justice (“DOJ”) as required by the HSR Act Act, (ii) any other filing necessary to obtain any Company Necessary Consent, (iii) filings under any other comparable pre merger notification forms required by the merger notification or control laws of any applicable jurisdiction, as soon as reasonably practicable from agreed by the date following execution and delivery of this Agreement but in no event later than ten (10) Business Days following the execution and delivery of this Agreement, parties hereto and (yiv) file comparable pre-merger any filings required under the Securities Act, the Exchange Act, any applicable state or post-merger notification filingssecurities or “blue sky” laws, forms French Law, regulations of the AMF or Euronext and submissions with the securities laws of any foreign Governmental Authority that is required by country, or any other Antitrust Laws as soon as reasonably practicable from Legal Requirement relating to the date following execution and delivery of this Agreement but in no event later than ten (10) Business Days following the execution and delivery of this AgreementMerger. Each of Parent and the Company shall will cause all documents that it is responsible for filing with any Governmental or Regulatory Authority under this Section 5.7(a) to comply in all material respects with all applicable Legal Requirements.
(ib) cooperate Parent, Merger Sub and coordinate with the other in the making of such filings, (ii) Company each will promptly supply the other with any information that which may be required in order to make such filingseffectuate any filings or application pursuant to Section 5.7(a). Except where prohibited by applicable Legal Requirements, (iii) supply any additional information that reasonably may be required or requested by and subject to the FTCConfidentiality Agreement, the DOJ or the Governmental Authorities of any other jurisdiction in which any such filing is made under any other Antitrust Laws, and (iv) use reasonable best efforts to take all action necessary to cause the expiration or termination of the applicable waiting periods under the HSR Act or other Antitrust Laws as soon as practicable, and to obtain any required consents under any other Antitrust Laws applicable to the Offer and/or the Merger as soon as practicable, and to avoid any impediment to the consummation of the Offer or the Merger under any Antitrust Laws, including using reasonable best efforts to take all such action as reasonably may be necessary to resolve such objections, if any, as the FTC, the DOJ, or any other Governmental Authority or Person may assert under any applicable Antitrust Laws Company shall consult with respect to the Offer and/or the Merger.
(b) Each of Parent and Acquisition Sub (and their respective Affiliates, if applicable), on the one hand, and Parent shall consult with the Company, on the other hand, shall promptly inform the other of any communication from any Governmental Authority regarding any of the transactions contemplated by this Agreement in connection with any filings or investigations with, by or before any Governmental Authority relating prior to this Agreement or the transactions contemplated hereby, including any proceedings initiated by taking a private party. If any party hereto or Affiliate thereof shall receive a request for additional information or documentary material from any Governmental Authority with respect to the transactions contemplated by this Agreement pursuant to the HSR or any other Antitrust Laws with respect to which any such filings have been made, then such party shall use its reasonable best efforts to make, or cause to be made, as soon as reasonably practicable and after consultation with the other party, an appropriate response in compliance with such request. In connection with and without limiting the foregoing, to the extent reasonably practicable and unless prohibited by applicable Law or by the applicable Governmental Authority, the parties hereto agree to (i) give each other reasonable advance notice of all meetings with any Governmental Authority relating to the Offer or the Merger, (ii) give each other an opportunity to participate in each of such meetings, (iii) keep the other party reasonably apprised position with respect to any oral communications with any Governmental Authority regarding such filing and each shall permit the Offer or the Merger, (iv) cooperate in the filing of any analyses, presentations, memoranda, briefs, arguments, opinions or other written communications explaining or defending the Offer and the Merger, articulating any regulatory or competitive argument and/or responding to requests or objections made by any Governmental Authority, (v) provide each other with a reasonable advance opportunity to review and comment upondiscuss in advance, and consider in good faith the views of the other in connection with respect to, all written communications (including any analyses, appearances, presentations, memoranda, briefs, arguments white papers, arguments, opinions and opinions) proposals before making or submitting any of the foregoing to any Governmental or Regulatory Authority by or on behalf of any party hereto in connection with a Governmental Authority regarding any investigations or proceedings related solely to this Agreement, the Offer Merger or the other transactions contemplated hereby (including under any antitrust or fair trade Legal Requirement), coordinate with the other in preparing and exchanging such information and promptly provide the Merger, (vi) provide each other (or counsel of each party, as appropriateand its counsel) with copies of all written communications to filings, presentations or from submissions (and a summary of any oral presentations) made by such party with any Governmental or Regulatory Authority relating related solely to this Agreement, the Offer Merger or the Mergerother transactions contemplated hereby; provided, and (vii) cooperate and provide each other with a reasonable opportunity to participate inhowever, and consider in good faith the views of the other with respect to, all material deliberations that with respect to all efforts to satisfy any such filing, presentation or submission, neither the conditions set forth in clauses (A) and (C)(1) of Annex A and Section 9.1(c). Any such disclosures, rights to participate or provisions of information by one party to Company nor Parent need supply the other may be made on (or its counsel) with copies (or in case of oral presentations, a counsel-only basis summary) to the extent required under that any Law of any Governmental or Regulatory Authority applicable Law to such party may reasonably require such party or as appropriate its Subsidiaries to protect confidential business information restrict or the attorney client privilege prohibit access to any such properties or attorney work productinformation.
(c) Each of Parent, Acquisition Sub Parent and the Company shall cooperate with one another in good faith to promptly notify the other upon its receipt of (i) promptly determine whether any filings not contemplated by Section 8.2(a) are required to be or should be made, and whether any other consents, approvals, permits or authorizations not contemplated by Section 8.2(a) are required to be or should be obtained, comments from any officials of any Governmental or Regulatory Authority under any other applicable Law in connection with the transactions contemplated hereby, any filings made pursuant to this Agreement and (ii) promptly make any filingsrequest by any officials of any Governmental or Regulatory Authority for amendments or supplements to any filings made pursuant to, furnish or information required provided to comply in connection therewith and seek to obtain timely all material respects with, any such consents, permits, authorizations, approvals or waivers Legal Requirements. Whenever any event occurs that the parties determine are is required to be set forth in an amendment or should be supplement to any filing made pursuant to Section 5.7(a), Parent or obtained the Company, as the case may be, shall promptly inform the other of such occurrence and cooperate in connection filing with the transactions contemplated herebyapplicable Governmental or Regulatory Authority such amendment or supplement.
(d) Notwithstanding anything to the contrary in this Agreement, nothing contained in connection with any filing or submission required or action this Agreement will be deemed to be taken by either Parent or the Company to consummate the Offer and the Mergerrequire Parent, in no event shall Parent or any of its Subsidiaries Subsidiaries, the Company or any Company Subsidiary, or any of their respective Affiliates be obligated or Associates, to propose (i) except to the extent provided under Section 5.7(a), litigate or agree to accept litigate against any undertaking Governmental or condition, to enter into any consent decree, to make any divestiture or accept any operational restriction, or take or commit to take any action (i) the effectiveness or consummation of which is not conditional on the consummation of the Offer and the Merger Regulatory Authority or (ii) that individually take or in agree to take any Action of Divestiture which would be reasonably likely to materially adversely impact the aggregate benefits expected to be derived by Parent and its Subsidiaries from the Merger and the other transactions contemplated hereby. For purposes of this Agreement, an “Action of Divestiture” will mean (x) is making proposals, executing or would reasonably be expected carrying out agreements or submitting to be materially adverse Legal Requirements providing for the license, sale or other disposition or holding separate (with materialitythrough the establishment of a trust or otherwise) of any assets or categories of assets that are material to Parent, for purposes of this provision, being measured in relation to the size any Subsidiary of the Company and its Subsidiaries taken as a whole) to (A) Parent, the Company and its Subsidiaries, taken as a whole, or Parent and its Subsidiaries, taken as a whole, either before or after giving effect to the Offer any Company Subsidiary or the Mergerholding separate of Company capital stock or imposing or seeking to impose any limitation on the ability of Parent, or (B) Parent’s ownership or operation of any material portion Subsidiary of the business Parent, the Company or any Company Subsidiary, to conduct their respective businesses or own such assets or to acquire, hold or exercise full rights of ownership of the Company and its Subsidiaries, taken as a whole, Company’s business or (y) would reasonably be expected otherwise taking any step to deny Parent the material benefit of the bargains contemplated by the transactions contemplated by this Agreement. The Company shall agree, if requested by Parent in writing, to commit to take avoid or eliminate any of the forgoing actions with respect to the assets or business of the Company in furtherance of this Section 8.2; provided, however, that any such action impediment which may be conditioned upon the consummation of the Merger and other Transactions contemplated by this Agreementasserted under any Legal Requirement governing competition, monopolies or restrictive trade practices.
Appears in 1 contract
Regulatory Filings. (a) Without limiting the generality of Section 7.01 or the other provisions of this Section 7.03, as promptly as practicable after the date hereof, the Buyer Parties and the Company shall make all necessary filings and responses, and thereafter make any other required submissions, with respect to this Agreement or the transactions contemplated hereby, required under any applicable Law, including the Securities Act (but excluding the HSR Act, which is addressed in Section 7.03(b)). From and after the date hereof until the Closing or the earlier termination of this Agreement pursuant to Section 14.01, each of the Buyer Parties and the Company shall use their reasonable best efforts to obtain, as promptly as practicable, from any Governmental Authority any consent, approval, authorization, declaration, waiver, license, franchise, permit, certificate, effectiveness order, or other order required to be obtained or made by such Party, and to avoid any action or Proceeding by any Governmental Authority, in each case, in connection with the authorization, execution and delivery of this Agreement and the consummation of the transactions contemplated herein. Neither the Company nor any Buyer Party will, and the Company and each Buyer Party will not permit its respective Subsidiaries to, consent or agree to any voluntary delay of the consummation of the transactions contemplated by this Agreement without the prior written consent of Buyer (in the case of any such consent or agreement by the Company or any of its Subsidiaries) or the Company (in the case of any such consent or agreement by a Buyer Party or any Subsidiary of a Buyer Party), such consent not to be unreasonably withheld, conditioned, or delayed.
(b) The Buyer Parties and the Company shall make a filing under the HSR Act with respect to this Agreement and the transactions contemplated hereby as promptly as practicable, and in any event within fifteen (15) Business Days, after execution of this Agreement, which filings shall include a request for early termination of the applicable waiting period under the HSR Act. Each of Parent the Buyer Parties and Acquisition Sub (the Company shall, and their shall cause its respective AffiliatesAffiliates to, if applicable)respond as soon as reasonably practicable to any request from any Governmental Authority under the HSR Act or any other antitrust Laws to provide information, documents, or other materials. The Buyer Parties, on the one hand, and the Company, on the other hand, shall each pay fifty percent (x50%) file of the filing fee under the HSR Act.
(c) The Buyer Parties and the Company shall, and shall cause their respective Affiliates to, use their reasonable best efforts to resolve as soon as practicable any objections asserted by any Governmental Authority under the HSR Act or any other antitrust Law with respect to this Agreement or the transactions contemplated hereby.
(d) From and after the date hereof until the Closing or the earlier termination of this Agreement pursuant to Section 14.01, the Buyer Parties and the Company shall, and shall cause their Subsidiaries and representatives to, coordinate and cooperate with each other in connection with their respective efforts to obtain all consents, approvals, authorizations, declarations, waivers, licenses, franchises, permits, certificates, effectiveness orders, or other orders from any Governmental Authority necessary in connection with the FTC authorization, execution and delivery of this Agreement and the Antitrust Division consummation of the DOJ transactions contemplated herein, which shall include (i) cooperating in all respects with each other in connection with any investigation or other inquiry, (ii) keeping each other promptly informed of any non-ministerial communication received from any Governmental Authority, including the SEC, Federal Trade Commission or U.S. Department of Justice, regarding any of the transactions contemplated hereby, (iii) providing each other with a Notification reasonable opportunity to review any proposed communication with any Governmental Authority, (iv) consulting with each other prior to any meeting or conference with any Governmental Authority, (v) to the extent permitted by such Governmental Authority, permitting each other to attend and Report Form relating participate in any meeting or conference with any Governmental Authority, (vi) promptly furnishing each other with copies of all correspondence, filings and written communications with any Governmental Authority with respect to this Agreement and the transactions contemplated hereby (provided, however, that any correspondence, communications, or submissions provided to the other Party pursuant to this Section 7.03(d) may be redacted or designated “outside counsel only” (A) to remove references concerning the valuation of the Company, (B) as required by necessary to comply with contractual arrangements, (C) to prevent the HSR Act disclosure of competitively sensitive information and (D) as soon necessary to address reasonable attorney-client or other privilege or confidentiality concerns) and (vii) providing such other information and assistance as the other party may reasonably practicable from request in connection with the date following execution and delivery of foregoing.
(e) Notwithstanding anything in this Agreement but to the contrary, nothing in no event later than ten (10) Business Days following the execution and delivery of this Agreement, and (y) file comparable pre-merger or post-merger notification filings, forms and submissions with any foreign Governmental Authority that is required by any other Antitrust Laws as soon as reasonably practicable from the date following execution and delivery of this Agreement but in no event later than ten (10) Business Days following shall require the execution and delivery of this Agreement. Each of Parent and Buyer Parties or the Company shall (i) cooperate and coordinate with the other in the making of such filings, (ii) supply the other with any information that may be required in order to make such filings, (iii) supply any additional information that reasonably may be required or requested by the FTC, the DOJ or the Governmental Authorities of any other jurisdiction in which any such filing is made under any other Antitrust Laws, and (iv) use reasonable best efforts agree to take all action necessary to cause any of the following actions in connection with obtaining the expiration or termination of the any applicable waiting periods period and all requisite clearances and approvals under the HSR Act or other Antitrust Laws as soon as practicable, and to obtain any required consents under any other Antitrust Laws antitrust Law applicable to the Offer and/or the Merger as soon as practicabletransactions contemplated by this Agreement: (i) sell, and divest, license, dispose of, or hold separate, any assets or businesses; (ii) terminate, amend, or otherwise modify any Contract or other business relationship; (iii) propose, negotiate, offer, or enter into any consent decree; (iv) agree to avoid be required to obtain “prior approval” or other affirmative approval from a Governmental Authority to carry out any impediment future transaction, or to the consummation make any notification or provide prior notice to any Governmental Authority regarding any proposed future transaction; or (v) otherwise take or commit to take any action that could limit its freedom with respect to, or its ability to retain, one or more of the Offer its, its Affiliates’, or the Merger under any Antitrust LawsCompany’s businesses, including using reasonable best efforts to take all such action as reasonably may be necessary to resolve such objections, if any, as the FTC, the DOJ, product lines or any other Governmental Authority or Person may assert under any applicable Antitrust Laws with respect to the Offer and/or the Mergerassets.
(bf) Each From and after the date hereof until the Closing or the earlier termination of Parent and Acquisition Sub (and their respective Affiliatesthis Agreement pursuant to Section 14.01, if applicable)the Buyer Parties, on the one hand, and the Company, on the other hand, shall promptly inform not, and each of them shall cause their respective Affiliates not to, acquire or agree to acquire (by merging or consolidating with, or by purchasing a substantial portion of the assets of or equity in, or in any other manner), any Person or line of business or portion thereof, or otherwise acquire or agree to acquire any communication from assets, if the entry into a definitive agreement relating to, or the consummation of, such acquisition would reasonably be expected to (i) impose any material delay in obtaining, or materially increase the risk of not obtaining, any authorizations, consents, orders, declarations or approvals of any Governmental Authority regarding necessary to consummate the transactions contemplated by this Agreement or the expiration or termination of any applicable waiting period and all requisite clearances and approvals under the HSR Act or any other antitrust Law, (ii) materially increase the risk of any Governmental Authority entering an order prohibiting or materially delaying the consummation of the transactions contemplated by this Agreement in connection with any filings or investigations with, by or before any Governmental Authority relating to this Agreement or the transactions contemplated hereby, including any proceedings initiated by a private party. If any party hereto or Affiliate thereof shall receive a request for additional information or documentary material from any Governmental Authority with respect to the transactions contemplated by this Agreement pursuant to the HSR or any other Antitrust Laws with respect to which any such filings have been made, then such party shall use its reasonable best efforts to make, or cause to be made, as soon as reasonably practicable and after consultation with the other party, an appropriate response in compliance with such request. In connection with and without limiting the foregoing, to the extent reasonably practicable and unless prohibited by applicable Law or by the applicable Governmental Authority, the parties hereto agree to (i) give each other reasonable advance notice of all meetings with any Governmental Authority relating to the Offer or the Merger, (ii) give each other an opportunity to participate in each of such meetings, (iii) keep the other party reasonably apprised with respect to any oral communications with any Governmental Authority regarding the Offer or the Merger, (iv) cooperate in the filing of any analyses, presentations, memoranda, briefs, arguments, opinions or other written communications explaining or defending the Offer and the Merger, articulating any regulatory or competitive argument and/or responding to requests or objections made by any Governmental Authority, (v) provide each other with a reasonable advance opportunity to review and comment upon, and consider in good faith the views of the other with respect to, all written communications (including any analyses, presentations, memoranda, briefs, arguments and opinions) with a Governmental Authority regarding the Offer and the Merger, (vi) provide each other (or counsel of each party, as appropriate) with copies of all written communications to or from any Governmental Authority relating to the Offer or the Merger, and (vii) cooperate and provide each other with a reasonable opportunity to participate in, and consider in good faith the views of the other with respect to, all material deliberations with respect to all efforts to satisfy the conditions set forth in clauses (A) and (C)(1) of Annex A and Section 9.1(c). Any such disclosures, rights to participate or provisions of information by one party to the other may be made on a counsel-only basis to the extent required under applicable Law or as appropriate to protect confidential business information or the attorney client privilege or attorney work product.
(c) Each of Parent, Acquisition Sub and the Company shall cooperate with one another in good faith to (i) promptly determine whether any filings not contemplated by Section 8.2(a) are required to be or should be made, and whether any other consents, approvals, permits or authorizations not contemplated by Section 8.2(a) are required to be or should be obtained, from any Governmental Authority under any other applicable Law in connection with the transactions contemplated hereby, and (ii) promptly make any filings, furnish information required in connection therewith and seek to obtain timely any such consents, permits, authorizations, approvals or waivers that the parties determine are required to be or should be made or obtained in connection with the transactions contemplated hereby.
(d) Notwithstanding anything to the contrary in this Agreement, in connection with any filing or submission required or action to be taken by either Parent or the Company to consummate the Offer and the Merger, in no event shall Parent or any of its Subsidiaries or Affiliates be obligated to propose or agree to accept any undertaking or condition, to enter into any consent decree, to make any divestiture or accept any operational restriction, or take or commit to take any action (i) the effectiveness or consummation of which is not conditional on otherwise materially delay the consummation of the Offer and the Merger or (ii) that individually or in the aggregate (x) is or would reasonably be expected to be materially adverse (with materiality, for purposes of this provision, being measured in relation to the size of the Company and its Subsidiaries taken as a whole) to (A) the Company and its Subsidiaries, taken as a whole, or Parent and its Subsidiaries, taken as a whole, either before or after giving effect to the Offer or the Merger, or (B) Parent’s ownership or operation of any material portion of the business or assets of the Company and its Subsidiaries, taken as a whole, or (y) would reasonably be expected to deny Parent the material benefit of the bargains contemplated by the transactions contemplated by this Agreement. The Company shall agree, if requested by Parent in writing, to commit to take any of the forgoing actions with respect to the assets or business of the Company in furtherance of this Section 8.2; provided, however, that any such action may be conditioned upon the consummation of the Merger and other Transactions contemplated by this Agreement.
Appears in 1 contract
Regulatory Filings. With respect to any filing or other non-routine written communication to be made by Company to any Regulatory Authority that (a) Each of Parent and Acquisition Sub (and their respective Affiliates, if applicable), on the one hand, and the Company, on the other hand, shall relates to (x) file with the FTC Gilead Arm or (y) Combination Therapy (other than, under this clause (a)(y), any such filing or other communication relating to the Company Compound (and not the Antitrust Division Gilead Compound), the Control Arm, or any other arm(s) of the DOJ a Notification Study other than the Gilead Arm) or (b) would have an adverse impact on the Gilead Compound, Company shall, in each case ((a) or (b)), (i) reasonably (and Report Form relating to this Agreement and in any event not less than (A) in the transactions contemplated hereby as required by the HSR Act as soon as reasonably practicable from the date following execution and delivery case of this Agreement but in no event later than ten (10) Business Days following the execution and delivery of this Agreementany IND, CTA or similar original submission filing, [***] days, and (yB) file comparable pre-merger in the case of other filings or post-merger notification filingscommunications (including any IND or Protocol amendment filing), forms and submissions [***] Business Days (or, if less, the longest possible time period consistent with any foreign Governmental Authority that is required deadline specified by any other Antitrust Laws as soon as reasonably practicable from the applicable Regulatory Authority)) prior to the date following execution and delivery of this Agreement but in no event later than ten (10) Business Days following the execution and delivery of this Agreement. Each of Parent and the Company shall (i) cooperate and coordinate with the other in the making plans to make such filing or communication, provide to Gilead a draft of such filingsfiling or communication for review and comment, (ii) supply the other discuss such draft with ▇▇▇▇▇▇ as reasonably requested by ▇▇▇▇▇▇ and consider in good faith any information that may be required in order to make such filingscomments thereon provided by ▇▇▇▇▇▇, (iii) supply any additional information that reasonably may be required to the extent such filing or requested by the FTCcommunication relates to, or otherwise would have an adverse impact on, the DOJ Gilead Compound (whether alone or as part of the Governmental Authorities of any other jurisdiction in which any Combination Therapy), not proceed with such filing or communication unless and until such filing or communication is made under any other Antitrust Lawsapproved by Gilead in writing, such approval not to be unreasonably withheld, conditioned or delayed, and (iv) use reasonable best efforts provide to take all action necessary to cause the expiration Gilead an as-filed copy of such filing or termination of the applicable waiting periods under the HSR Act or other Antitrust Laws as soon as practicable, and to obtain any required consents under any other Antitrust Laws applicable communication promptly after it is made. Each Party shall provide to the Offer and/or the Merger as soon as practicable, and to avoid other Party a copy of any impediment written communication received by such Party from any Regulatory Authority relating to the consummation of (1) the Offer Gilead Arm or (2) Combination Therapy (other than, under this clause (2), any such communication relating to the Merger under any Antitrust Laws, including using reasonable best efforts to take all such action as reasonably may be necessary to resolve such objections, if any, as Company Compound (and not the FTCGilead Compound), the DOJControl Arm, or any other Governmental Authority or Person may assert under any applicable Antitrust Laws with respect to arm(s) of the Offer and/or Study other than the Merger.
(bGilead Arm) Each of Parent and Acquisition Sub promptly (and their respective Affiliatesin any event within [***] Business Days or, if applicable)such communication relates to any regulatory inspection or alleged improper conduct, on the one hand, and the Company, on the other hand, shall promptly inform the other of any communication from any Governmental Authority regarding any of the transactions contemplated by this Agreement in connection with any filings or investigations with, by or before any Governmental Authority relating to this Agreement or the transactions contemplated hereby, including any proceedings initiated by a private party. If any party hereto or Affiliate thereof shall receive a request for additional information or documentary material from any Governmental Authority with respect to the transactions contemplated by this Agreement pursuant to the HSR or any other Antitrust Laws with respect to which any such filings have been made, then such party shall use its reasonable best efforts to make, or cause to be made, as soon as reasonably practicable and [***] Business Day) after consultation with the other party, an appropriate response in compliance with such requestreceipt thereof. In connection with and without limiting the foregoing, to the extent reasonably practicable and unless prohibited by applicable Law or by the applicable Governmental Authority, the parties hereto agree to (i) give each other reasonable advance notice of all meetings with any Governmental Authority relating to the Offer or the Merger, (ii) give each other an opportunity to participate in each of such meetings, (iii) keep the other party reasonably apprised with respect to any oral communications with any Governmental Authority regarding the Offer or the Merger, (iv) cooperate in the filing of any analyses, presentations, memoranda, briefs, arguments, opinions or other written communications explaining or defending the Offer and the Merger, articulating any regulatory or competitive argument and/or responding to requests or objections made by any Governmental Authority, (v) provide each other with a reasonable advance opportunity to review and comment upon, and consider in good faith the views of the other with respect to, all written communications (including any analyses, presentations, memoranda, briefs, arguments and opinions) with a Governmental Authority regarding the Offer and the Merger, (vi) provide each other (or counsel of each party, as appropriate) with copies of all written communications to or from any Governmental Authority relating to the Offer or the Merger, and (vii) cooperate and provide each other with a reasonable opportunity to participate in, and consider in good faith the views of the other with respect to, all material deliberations with respect to all efforts to satisfy the conditions set forth in clauses (A) and (C)(1) of Annex A and Section 9.1(c). Any such disclosures, rights to participate or provisions of information by one party to the other may be made on a counsel-only basis to the extent required under applicable Law or as appropriate to protect confidential business information or the attorney client privilege or attorney work product.
(c) Each of Parent, Acquisition Sub and the Company shall cooperate with one another in good faith to (i) promptly determine whether any filings not contemplated by Section 8.2(a) are required to be or should be made, and whether any other consents, approvals, permits or authorizations not contemplated by Section 8.2(a) are required to be or should be obtained, from any Governmental Authority under any other applicable Law in connection with the transactions contemplated hereby, and (ii) promptly make any filings, furnish information required in connection therewith and seek to obtain timely any such consents, permits, authorizations, approvals or waivers that the parties determine are required to be or should be made or obtained in connection with the transactions contemplated hereby.
(d) Notwithstanding anything to the contrary in this Agreement, in connection with any filing or submission required or action other written communication to be taken by either Parent or any Regulatory [***] Certain information in this document has been excluded pursuant to Regulation S-K, Item 601(b)(10). Such excluded information is not material and would likely cause competitive harm to the registrant if publicly disclosed. Authority, Company to consummate the Offer and the Merger, in no event shall Parent or any of its Subsidiaries or Affiliates be obligated to propose or agree to accept any undertaking or condition, to enter into any consent decree, to not make any divestiture statement or accept any operational restriction, or take or commit to take any action (i) conclusion regarding the effectiveness or consummation of which is not conditional on the consummation Gilead Compound other than as part of the Offer and the Merger or (ii) that individually or in the aggregate (x) is or would reasonably be expected to be materially adverse (with materiality, for purposes of this provision, being measured in relation to the size of the Company and its Subsidiaries taken as a whole) to (A) the Company and its Subsidiaries, taken as a whole, or Parent and its Subsidiaries, taken as a whole, either before or after giving effect to the Offer or the Merger, or (B) Parent’s ownership or operation of any material portion of the business or assets of the Company and its Subsidiaries, taken as a whole, or (y) would reasonably be expected to deny Parent the material benefit of the bargains contemplated by the transactions contemplated by this Agreement. The Company shall agree, if requested by Parent in writing, to commit to take any of the forgoing actions with respect to the assets or business of the Company in furtherance of this Section 8.2; provided, however, that any such action may be conditioned upon the consummation of the Merger and other Transactions contemplated by this AgreementCombination Therapy.
Appears in 1 contract
Sources: Clinical Study Collaboration and Supply Agreement (IDEAYA Biosciences, Inc.)
Regulatory Filings. (a) Each of Parent and Acquisition Sub (and their respective Affiliates, if applicable), on the one handThe Purchaser shall, and shall cause its Affiliates to, (a) promptly make or cause to be made all filings and submissions under any Laws applicable to the Company, on Purchaser for the other hand, shall (x) file with the FTC and the Antitrust Division consummation of the DOJ a Notification and Report Form relating to this Agreement and the transactions contemplated hereby as required by this Agreement (and (i) in the case of filing under the HSR Act as soon as reasonably practicable from Act, within twelve Business Days after the date following execution hereof and delivery (ii) in the case of this Agreement but any filing pursuant to a non-U.S. Law, within 20 Business Days), (b) use reasonable best efforts to coordinate and cooperate with the Company in no event later than ten (10) Business Days following exchanging such information and providing such assistance as the execution and delivery Company may reasonably request in connection with all of this Agreementthe foregoing, and (yc) file comparable pre-merger or post-merger notification filings, forms and submissions with any foreign Governmental Authority that is required by any other Antitrust Laws as soon as reasonably practicable from the date following execution and delivery of this Agreement but in no event later than ten (10) Business Days following the execution and delivery of this Agreement. Each of Parent and the Company shall use reasonable best efforts to (i) cooperate supply promptly any additional information and coordinate documentary material that may be requested in connection with the other in the making of such filings, (ii) supply the other with make any information further filings pursuant thereto that may be required necessary, proper or advisable in order to make such filings, connection therewith and (iii) supply any additional information that reasonably may be required or requested by the FTC, the DOJ or the Governmental Authorities of any other jurisdiction in which any such filing is made under any other Antitrust Laws, and (iv) use reasonable best efforts to take all action actions necessary to cause obtain all required clearances.
(b) Without limiting the expiration or termination generality of the applicable waiting periods foregoing, the Purchaser shall, (i) within twelve Business Days after the date hereof, make or cause to be made all filings and submissions required of the Purchaser under the HSR Act or other Antitrust Laws as soon as practicable, and to obtain any required consents under any other applicable antitrust or noncompetition Laws or regulations (“Antitrust Laws”) and as expeditiously as possible after the date hereof make or cause to be made all filings and submissions required under other Laws applicable to the Offer and/or the Merger as soon as practicable, and to avoid any impediment to Purchaser for the consummation of the Offer or transactions contemplated herein and (ii) provide all information reasonably requested by the Merger under any Antitrust Laws, including using reasonable best efforts to take all such action as reasonably may be necessary to resolve such objections, if any, as the FTC, the DOJ, or any other Governmental Authority or Person may assert under any applicable Antitrust Laws with respect to the Offer Company and/or the Merger.
(b) Each of Parent and Acquisition Sub (and their respective Affiliates, if applicable), on Company Broker‑Dealers to cause the one hand, and the Company, on the other hand, shall promptly inform the other of any communication from any Governmental Authority regarding any filing of the transactions contemplated by this Agreement in connection applications with any filings or investigations with, by or before any Governmental Authority relating to this Agreement or the transactions contemplated hereby, including any proceedings initiated by a private party. If any party hereto or Affiliate thereof shall receive a request for additional information or documentary material from any Governmental Authority FINRA with respect to the transactions contemplated by this Agreement pursuant and the change of controlling owners of the Company Broker‑Dealers (as specified in NASD Rule 1017), including using its commercially reasonably efforts to assist the Company and/or the Company Broker‑Dealers in obtaining as promptly as practicable all clearances, permits, consents, approvals and authorizations of FINRA and the fifty states and exchanges and clearinghouses of which the Company Broker-Dealers are members (to the extent required to effect the transactions and to continue to carry out their businesses, as currently conducted, after the Closing Date) and in complying with the terms and/or satisfying the conditions of all such clearances, permits, approvals and authorizations of FINRA and the applicable state regulatory authorities and the exchanges and clearinghouses of such Company Broker-Dealers are members as promptly as practicable. All filing fees and related expenses under the HSR Act shall be split 50/50 between the Purchaser, on the one hand, and the Seller, on the other hand. All filing fees and related expenses under other Antitrust Laws and all other Laws or regulations shall be (i), to the extent incurred in connection with filings required to be made solely by the Seller, the responsibility of the Seller, and (ii) to the extent incurred in connection with filings required to be made by both the Purchaser and the Seller, split 50/50 between the Purchaser, on the one hand, and the Seller, on the other hand. The Purchaser shall cause the filings under the HSR Act to be considered for grant of “early termination.”
(c) The Purchaser shall promptly comply with any formal or informal additional requests for information, including requests for production of documents and production of witnesses for interviews or depositions by any Governmental Entities. The Purchaser and the Company will each provide prompt notice of any communication (whether written or oral) received by it from any Governmental Entity with respect to the foregoing, consult with each other prior to providing any additional information to or otherwise communicating (whether in written or oral form) with any Governmental Entity with respect to the foregoing, and incorporate the reasonable comments of each other in connection with providing any additional information to or otherwise communicating (whether in written or oral form) with any Governmental Entity with respect to the foregoing. The Company agrees that any notice or application filings and all information provided to any Governmental Entity regarding this transaction must be approved by, and be reasonably acceptable to, the Purchaser.
(d) Without limiting the generality of the foregoing, if a suit or other action is threatened or instituted by any Governmental Entity or any other Antitrust Laws with respect entity challenging the validity or legality or seeking to which any such filings have been maderestrain the consummation of the transactions contemplated by this Agreement, then such party the Purchaser shall use its reasonable best efforts to makeavoid, resist, resolve or, if necessary, defend such suit or action. The Purchaser shall promptly and diligently pursue, at its sole cost and expense, any or all of the following actions to the extent necessary to eliminate any concerns on the part of, or cause to be madesatisfy any conditions imposed by, as soon as reasonably practicable any Governmental Entity regarding the consummation of the transactions contemplated hereby (and whether or not with respect to the foregoing): (i) resisting fully, vigorously and in good faith (including by the institution or defense of legal proceedings) any request for, or the entry of, and seeking to have vacated or terminated, any order of any Governmental Entity that could restrain, prevent, or delay the consummation of the transactions contemplated hereby and (ii) proposing and entering into good faith negotiations, providing information, making proposals, and entering into and performing contracts or submitting to orders regarding (A) the sale, divestiture, licensing, holding separate, or other disposition (and whether through the establishment of a trust or otherwise) of any assets, operations, businesses, divisions, or customers (including, after consultation with the Closing, any of such items of the Company or any of its Subsidiaries) of the Purchaser or any of its Affiliates, and/or (B) the termination or modification of any contract or other partybusiness relationship, an appropriate response in compliance with such request. In connection with and without limiting including the taking of any action that limits the freedom of action, of the Purchaser or any of its Affiliates (including, after the Closing, the Company or any of its Subsidiaries).
(e) Notwithstanding the foregoing, to nothing in this Section 9.04 shall require the extent reasonably practicable and unless prohibited by applicable Law Purchaser or by any of its Affiliates (including, after the applicable Governmental AuthorityClosing, the parties hereto Company or any of its Subsidiaries) to take or agree to take any action, which the Purchaser has determined in its sole discretion would be reasonably likely to (i) give each other reasonable advance notice materially and adversely affect the Purchaser, the Company or any of all meetings with any Governmental Authority relating to the Offer their respective Affiliates or the Merger, (ii) give each other an opportunity to participate in each of such meetings, (iii) keep delay beyond the other party reasonably apprised with respect to any oral communications with any Governmental Authority regarding the Offer or the Merger, (iv) cooperate in the filing of any analyses, presentations, memoranda, briefs, arguments, opinions or other written communications explaining or defending the Offer and the Merger, articulating any regulatory or competitive argument and/or responding to requests or objections made by any Governmental Authority, (v) provide each other with a reasonable advance opportunity to review and comment upon, and consider in good faith the views of the other with respect to, all written communications (including any analyses, presentations, memoranda, briefs, arguments and opinions) with a Governmental Authority regarding the Offer and the Merger, (vi) provide each other (or counsel of each party, as appropriate) with copies of all written communications to or from any Governmental Authority relating to the Offer or the Merger, and (vii) cooperate and provide each other with a reasonable opportunity to participate in, and consider in good faith the views of the other with respect to, all material deliberations with respect to all efforts to satisfy the conditions time periods otherwise set forth in clauses (A) and (C)(1) of Annex A and Section 9.1(c). Any such disclosures, rights to participate or provisions of information by one party to the other may be made on a counsel-only basis to the extent required under applicable Law or as appropriate to protect confidential business information or the attorney client privilege or attorney work product.
(c) Each of Parent, Acquisition Sub and the Company shall cooperate with one another in good faith to (i) promptly determine whether any filings not contemplated by Section 8.2(a) are required to be or should be made, and whether any other consents, approvals, permits or authorizations not contemplated by Section 8.2(a) are required to be or should be obtained, from any Governmental Authority under any other applicable Law in connection with the transactions contemplated hereby, and (ii) promptly make any filings, furnish information required in connection therewith and seek to obtain timely any such consents, permits, authorizations, approvals or waivers that the parties determine are required to be or should be made or obtained in connection with the transactions contemplated hereby.
(d) Notwithstanding anything to the contrary in this Agreement, restrain, prevent, enjoin or otherwise prohibit consummation of the transactions contemplated by this Agreement (any such action in connection with any filing or submission required or action to be taken by either Parent or the Company to consummate the Offer and the Merger, in no event shall Parent or any of its Subsidiaries or Affiliates be obligated to propose or agree to accept any undertaking or condition, to enter into any consent decree, to make any divestiture or accept any operational restriction, or take or commit to take any action foregoing clause (i) or (ii), a “Burdensome Condition”). Nothing in this Section 9.04(e) shall obligate the effectiveness Purchaser to agree to any divestitures or consummation of which other remedy or take any other action contemplated by the preceding sentence that is not conditional conditioned on the consummation of the Offer and the Merger or (ii) that individually or in the aggregate (x) is or would reasonably be expected to be materially adverse (with materiality, for purposes of this provision, being measured in relation to the size of the Company and its Subsidiaries taken as a whole) to (A) the Company and its Subsidiaries, taken as a whole, or Parent and its Subsidiaries, taken as a whole, either before or after giving effect to the Offer or the Merger, or (B) Parent’s ownership or operation of any material portion of the business or assets of the Company and its Subsidiaries, taken as a whole, or (y) would reasonably be expected to deny Parent the material benefit of the bargains contemplated by the transactions contemplated by this Agreement. The Company shall agree, if requested by Parent in writing, to commit to take any of the forgoing actions with respect to the assets or business of the Company in furtherance of this Section 8.2; provided, however, that any such action may be conditioned upon the consummation of the Merger and other Transactions contemplated by this AgreementClosing.
Appears in 1 contract
Regulatory Filings. ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Filing.
(a) Each of Parent MLP and Acquisition Sub (and their respective Affiliates, if applicable), on the one handHOLDINGS will take all commercially reasonable actions necessary or desirable, and proceed diligently and in good faith and use all Commercially Reasonable Efforts, as promptly as practicable to obtain all consents, approvals or actions of, to make all filings with, and to give all notices to, Governmental Authorities required to accomplish the Companytransactions contemplated by this Agreement; provided, however, that the cost to obtain Post-Closing Consents shall be borne by MLP.
(b) The Parties shall make any filings required under the HSR Act on or prior to five (5) days after the other hand, shall (x) file with the FTC and the Antitrust Division date of the DOJ a Notification and Report Form relating to this Agreement and provide such information to the transactions contemplated hereby FTC as is required by in connection with the HSR Act as soon as reasonably practicable from after a request therefore.
(c) Notwithstanding any provision herein to the date following execution and delivery contrary, each of this Agreement but in no event later than ten (10) Business Days following the execution and delivery of this Agreement, and (y) file comparable pre-merger or post-merger notification filings, forms and submissions with any foreign Governmental Authority that is required by any other Antitrust Laws as soon as reasonably practicable from the date following execution and delivery of this Agreement but in no event later than ten (10) Business Days following the execution and delivery of this Agreement. Each of Parent and the Company shall Parties will (i) cooperate use reasonable efforts to comply as expeditiously as possible with all lawful requests of Governmental Authorities for additional information and coordinate with documents pursuant to the other in the making of such filingsHSR Act, (ii) supply the other with not (A) extend any information that may be required in order to make such filings, (iii) supply any additional information that reasonably may be required or requested by the FTC, the DOJ or the Governmental Authorities of any other jurisdiction in which any such filing is made under any other Antitrust Laws, and (iv) use reasonable best efforts to take all action necessary to cause the expiration or termination of the applicable waiting periods period under the HSR Act or other Antitrust Laws as soon as practicable, and to obtain (B) enter into any required consents under any other Antitrust Laws applicable to the Offer and/or the Merger as soon as practicable, and to avoid any impediment to the consummation of the Offer or the Merger under any Antitrust Laws, including using reasonable best efforts to take all such action as reasonably may be necessary to resolve such objections, if any, as the FTC, the DOJ, or any other Governmental Authority or Person may assert under any applicable Antitrust Laws with respect to the Offer and/or the Merger.
(b) Each of Parent and Acquisition Sub (and their respective Affiliates, if applicable), on the one hand, and the Company, on the other hand, shall promptly inform the other of any communication from any Governmental Authority regarding any of the transactions contemplated by this Agreement in connection with any filings or investigations with, by or before any Governmental Authority relating to this Agreement or the transactions contemplated hereby, including any proceedings initiated by a private party. If any party hereto or Affiliate thereof shall receive a request for additional information or documentary material from any Governmental Authority with respect to the transactions contemplated by this Agreement pursuant to the HSR or any other Antitrust Laws with respect to which any such filings have been made, then such party shall use its reasonable best efforts to make, or cause to be made, as soon as reasonably practicable and after consultation with the other party, an appropriate response in compliance with such request. In connection with and without limiting the foregoing, to the extent reasonably practicable and unless prohibited by applicable Law or by the applicable Governmental Authority, the parties hereto agree to (i) give each other reasonable advance notice of all meetings voluntary agreement with any Governmental Authority relating to the Offer or the Merger, (ii) give each other an opportunity to participate in each of such meetings, (iii) keep the other party reasonably apprised with respect to any oral communications with any Governmental Authority regarding the Offer or the Merger, (iv) cooperate in the filing of any analyses, presentations, memoranda, briefs, arguments, opinions or other written communications explaining or defending the Offer and the Merger, articulating any regulatory or competitive argument and/or responding to requests or objections made by any Governmental Authority, (v) provide each other with a reasonable advance opportunity to review and comment upon, and consider in good faith the views of the other with respect to, all written communications (including any analyses, presentations, memoranda, briefs, arguments and opinions) with a Governmental Authority regarding the Offer and the Merger, (vi) provide each other (or counsel of each party, as appropriate) with copies of all written communications to or from any Governmental Authority relating to the Offer or the Merger, and (vii) cooperate and provide each other with a reasonable opportunity to participate in, and consider in good faith the views of the other with respect to, all material deliberations with respect to all efforts to satisfy the conditions set forth in clauses (A) and (C)(1) of Annex A and Section 9.1(c). Any such disclosures, rights to participate or provisions of information by one party to the other may be made on a counsel-only basis to the extent required under applicable Law or as appropriate to protect confidential business information or the attorney client privilege or attorney work product.
(c) Each of Parent, Acquisition Sub and the Company shall cooperate with one another in good faith to (i) promptly determine whether any filings not contemplated by Section 8.2(a) are required to be or should be made, and whether any other consents, approvals, permits or authorizations not contemplated by Section 8.2(a) are required to be or should be obtained, from any Governmental Authority under any other applicable Law in connection with the transactions contemplated hereby, and (ii) promptly make any filings, furnish information required in connection therewith and seek to obtain timely any such consents, permits, authorizations, approvals or waivers that the parties determine are required to be or should be made or obtained in connection with the transactions contemplated hereby.
(d) Notwithstanding anything to the contrary in this Agreement, in connection with any filing or submission required or action to be taken by either Parent or the Company to consummate the Offer and the Merger, in no event shall Parent or any of its Subsidiaries or Affiliates be obligated to propose or agree to accept any undertaking or condition, to enter into any consent decree, to make any divestiture or accept any operational restriction, or take or commit to take any action (i) the effectiveness or consummation of which is not conditional on the consummation of the Offer and the Merger or (ii) that individually or in the aggregate (x) is or would reasonably be expected to be materially adverse (with materiality, for purposes of this provision, being measured in relation to the size of the Company and its Subsidiaries taken as a whole) to (A) the Company and its Subsidiaries, taken as a whole, or Parent and its Subsidiaries, taken as a whole, either before or after giving effect to the Offer or the Merger, or (B) Parent’s ownership or operation of any material portion of the business or assets of the Company and its Subsidiaries, taken as a whole, or (y) would reasonably be expected to deny Parent the material benefit of the bargains contemplated by the transactions contemplated by this Agreement. The Company shall agree, if requested by Parent in writing, to commit to take any except with the prior consent of the forgoing actions other Party, and (iii) cooperate with respect each other and use reasonable efforts to obtain the assets or business requisite approval of the Company in furtherance of this Section 8.2FTC and DOJ; provided, however, that the Parties are not obligated to accept any such action may be conditioned upon the consummation conditional approval or divest any of the Merger and other Transactions contemplated by this AgreementAssets or any of their properties.
(d) MLP will be responsible for paying the filing fees required with respect to any filing under the HSR Act.
Appears in 1 contract
Sources: Contribution Agreement