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
Samples: 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 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
Samples: Merger Agreement (Nordson Corp), Merger Agreement (Nordson Corp), Merger Agreement (Atrion 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
Samples: Implementation Agreement, Implementation Agreement (Advantest Corp), Implementation Agreement (Verigy Ltd.)
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
Samples: 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
Samples: Agreement and Plan of Reorganization (Visual Sciences, Inc.), Agreement and Plan of Reorganization (Visual Sciences, Inc.), Agreement and Plan of Reorganization (Omniture, Inc.)
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
Samples: Asset Purchase Agreement, Asset Purchase Agreement (RPX Corp), Asset Purchase Agreement (RPX Corp)
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
Samples: Acquisition Agreement (Collins & Aikman Corp), Acquisition Agreement (Imperial Home Decor Group Holdings I LTD), Acquisition Agreement (Collins & Aikman Corp)
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
Samples: 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 Buyer shall, within six (6) Business Days after the date hereof, make or cause to be made all filings and submissions under the HSR Act, any other applicable foreign competition or antitrust Laws and other Laws applicable to Buyer and its Affiliates for the consummation 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 herein. Subject to applicable Laws relating to the HSR Act as soon as reasonably practicable from exchange of information, H&H Group shall have the date following execution and delivery of this Agreement but right to review in no event later than ten (10) Business Days following the execution and delivery of this Agreementadvance, and to the extent practicable shall have the right to consult with Buyer on, all the information that appears in any such filings (yand Buyer shall consider in good faith the views of H&H Group in connection therewith). In exercising the foregoing right, H&H Group shall act reasonably and as promptly as practicable. Buyer shall coordinate and cooperate with H&H Group in exchanging such information and providing such assistance as H&H Group may reasonably request in connection with the foregoing.
(b) file comparable pre-merger or post-merger notification filings, forms and submissions with In the event of any foreign Governmental Authority that is required requests for information made by any other Antitrust Laws as soon as reasonably practicable from the date following execution Governmental Body, including requests for production of documents and delivery production 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 witnesses for interviews or depositions, 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 reasonable best efforts to take limit the scope of such requests and otherwise respond to and seek to resolve any such requests. Without limiting the foregoing, Buyer shall certify substantial compliance with any and all action necessary such additional requests (such certification, the "Buyer Certification") within one hundred fifteen (115) calendar days following the date of this Agreement (such date, the "Buyer Certification Date"), unless both Buyer and H&H Group agree in writing and subject to cause Section 8.01(d). In addition, Buyer shall cooperate in good faith with the expiration Governmental Bodies in carrying out its obligations under this Section 7.02; provided, however, that in no event shall Buyer be obligated to sell, transfer or termination otherwise divest any of its or any of its Subsidiaries' assets, properties or businesses (including assets, properties or businesses which were assets, properties or businesses of H&H Group, Seller, the applicable waiting periods Company, Newco or any Sold Subsidiary prior to the Closing) or enter into any agreements providing for any such sale, transfer or other divestiture or restricting or limiting in any way or to any extent Newco, the Company or the Sold Subsidiaries from engaging in any business anywhere in the world. Buyer shall be responsible for all filing fees under the HSR Act or other Antitrust Laws as soon as practicableAct, and to obtain any required consents under any other Antitrust applicable foreign competition or antitrust Laws and under any such other 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 MergerBuyer.
(bc) Each Buyer shall keep H&H Group apprised of Parent the status of all filings and Acquisition Sub submissions referred to in Section 7.02(a) above, including promptly furnishing H&H Group with copies of notices or other communications received by Buyer in connection therewith and, subject to applicable Law, permitting H&H Group to review in advance any proposed oral or written communication by Buyer or its Affiliates in connection therewith (and their respective considering in good faith the views of H&H Group in connection therewith). Buyer shall not permit any of its Affiliates, if applicableofficers, employees or other representatives or agents to participate in any meeting or telephonic conference with any Governmental Body in respect of such filings and submissions unless it consults with H&H Group in advance and, to the extent permitted by such Governmental Body, gives H&H Group the opportunity to attend and participate thereat.
(d) Subject to the proviso in the second sentence of Section 7.02(b), on in the one handevent that any Governmental Order is entered or issued, and the Companyor becomes reasonably foreseeable to be entered or issued, on the other handin any Action, shall promptly inform the other investigation or inquiry of any communication from any Governmental Authority regarding any kind that would make consummation of the transactions contemplated by this Agreement in connection accordance with any filings the terms hereof unlawful, or investigations withthat would delay, by restrain, prevent, enjoin or before any Governmental Authority relating to this Agreement or the transactions contemplated herebyotherwise prohibit consummation of such transactions, 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 Buyer shall use its reasonable best efforts to makeresist, vacate, modify, reverse, suspend, prevent, eliminate or cause remove such actual, anticipated or Threatened Governmental Order so as to be made, permit such consummation on a schedule as soon close 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, notwithstanding the foregoing, nothing in this Section 7.02(d) shall be construed to require Buyer to contest any lawsuit, court action or other court proceeding instituted by any Governmental Body, or institute any lawsuit, court action or other court proceeding against any Governmental Body, in either case to the extent Buyer has determined in good faith that the costs, expenses and other obligations associated with any such lawsuit, court action or court proceeding, when considered in the context of the likelihood of such lawsuit, court action or court proceeding being successfully concluded on or prior to the Outside Date (including as the same may be conditioned upon the consummation of the Merger and other Transactions contemplated by this Agreementextended pursuant to Section 8.01(d)), imposes an unreasonable burden on Buyer.
Appears in 3 contracts
Samples: Stock Purchase Agreement (Steel Partners Holdings L.P.), Stock Purchase Agreement (Rogers Corp), Stock Purchase Agreement (Handy & Harman Ltd.)
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
Samples: Merger Agreement (La Quinta Inns Inc), Merger Agreement (Meditrust Corp)
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-Fxxxxx 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
Samples: Asset Purchase Agreement (Cgi Group Inc), Asset Purchase Agreement (American Management Systems 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
Samples: 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 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
Samples: Master Transaction Agreement (RTI Surgical Holdings, Inc.), Master Transaction Agreement (Rti Surgical, Inc.)
Regulatory Filings. (a) Each From the date of Parent this Agreement until the Closing, each of Buyer and Acquisition Sub (the Seller Parties shall, and shall cause their respective AffiliatesAffiliates to, if applicable)(i) make or cause to be made the filings required of such Party or any of its Affiliates under any Laws with respect to the transactions contemplated by this Agreement and to pay any fees due of it in connection with such filings, on the one handas promptly as is reasonably practicable, and in any event within ten Business Days after the Companydate of this Agreement, on the other hand, except that Seller shall (x) file with the FTC and the Antitrust Division pay one-half of the DOJ filing fee due in connection with any one filing pursuant to the HSR Act as a Notification and Report Form relating to result of this Agreement and the transactions contemplated hereby as required by ARMC Purchase Agreement and Buyer shall pay any remaining filing fees due in connection with all filings pursuant to 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 filingsAct, (ii) supply cooperate with the other Party and furnish all information in such Party’s possession that is necessary in connection with any information that may be required in order to make such other Party’s 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 Reasonable Efforts to cause the expiration or termination of the applicable notice or 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 as promptly as is reasonably practicable, (iv) promptly inform the other Party of any communication from or to, and any proposed understanding or agreement with, any Governmental Authority in respect of such filings, (v) 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 and proceedings with Governmental Authority Authorities relating to this Agreement such filings, (vi) comply, as promptly as is reasonably practicable, with any requests 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, (vii) use Reasonable Efforts to resolve any objections as may be asserted by any Governmental Authority with respect to the transactions contemplated by this Agreement pursuant Agreement, and (viii) use Reasonable Efforts to the HSR contest and resist any action 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, proceeding instituted (or cause threatened in writing to be made, instituted) by any Governmental Authority challenging the transactions contemplated by this Agreement as soon as reasonably practicable and after consultation with the other party, an appropriate response violative of any Law. If a Party intends to participate 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 any meeting 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 such filings, it shall give 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 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). 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 productmeeting.
(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
Samples: Purchase and Sale Agreement (Antero Resources LLC), Purchase and Sale Agreement (Antero Resources Finance Corp)
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
Samples: Equity Purchase Agreement (Esco Technologies Inc), Equity Purchase Agreement (Sonoco Products Co)
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
Samples: Stock Purchase Agreement (Idenix Pharmaceuticals Inc), Stock Purchase Agreement (Idenix 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
Samples: Agreement and Plan of Merger (TILT Holdings Inc.), Agreement and Plan of Merger (TILT Holdings Inc.)
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
Samples: Merger Agreement (Grey Wolf Inc), Merger Agreement (Basic Energy Services Inc)
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
Samples: 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 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
Samples: Business Combination Agreement (Alternus Clean Energy, Inc.), Business Combination Agreement (Clean Earth Acquisitions 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 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
Samples: Merger Agreement (Lumenis LTD), Merger Agreement (Lumenis 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
Samples: Merger Agreement (US Oncology Holdings, Inc.), Merger Agreement (McKesson Corp)
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
Samples: Merger Agreement (Pharmacopeia Inc), Agreement and Plan of Merger (Ligand Pharmaceuticals 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
Samples: Securities Purchase Agreement (M & F Worldwide Corp), Securities Purchase Agreement (Harland Clarke Holdings Corp)
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
Samples: Stock Purchase Agreement (B. Riley Financial, Inc.), Stock Purchase Agreement (Vintage Capital Management LLC)
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-Xxxxxx 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
Samples: Asset Purchase Agreement (Caci International Inc /De/), Asset Purchase Agreement (Caci International Inc /De/)
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
Samples: Stock Purchase Agreement, Stock Purchase Agreement (Amag Pharmaceuticals Inc.)
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 Sxxxxxx Act, as amended, the Cxxxxxx 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
Samples: Merger Agreement (Scansoft Inc), Merger Agreement (Scansoft 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 Xxxxxxx Act, as amended, the Xxxxxxx 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
Samples: Merger Agreement (Advanced Digital Information Corp), Merger Agreement (Quantum Corp /De/)
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
Samples: Stock Purchase Agreement (Griffon Corp), Stock Purchase Agreement (Ames True Temper, 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
Samples: Stock Purchase Agreement (Central Reserve Life Corp), Stock Purchase Agreement (Central Reserve Life 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 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
Samples: Merger Agreement (Apollo Endosurgery, Inc.), Merger Agreement (Apollo Endosurgery, 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
Samples: 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
Samples: Merger Agreement (Enzymotec Ltd.), Merger Agreement (Frutarom LTD)
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
Samples: Merger Agreement (Nokia Corp), Merger Agreement (Infinera 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
Samples: Share Purchase Agreement (Organic Inc), Share Purchase Agreement (Seneca Investments LLC)
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
Samples: Merger Agreement, Merger Agreement (Select Medical 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
Samples: Merger Agreement, Merger Agreement (Mazor Robotics Ltd.)
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 xxx.xxxxxxx.xxx) , 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
Samples: Agreement and Plan of Merger (Rackspace Technology, Inc.), Agreement and Plan of Merger (Rackspace Technology, Inc.)
Regulatory Filings. (a) Each From the date of Parent this Agreement until the Closing, each of Buyer and Acquisition Sub (Seller shall, and shall cause their respective AffiliatesAffiliates to, if applicable)(i) make or cause to be made the filings required of such Party or any of its Affiliates under any Laws with respect to the transactions contemplated by this Agreement and to pay any fees due of it in connection with such filings, on the one handas promptly as is reasonably practicable, and in any event within ten Business Days after the Companydate of this Agreement, on the other hand, except that Seller shall (x) file with the FTC and the Antitrust Division pay one-half of the DOJ filing fee due in connection with any one filing pursuant to the HSR Act as a Notification and Report Form relating to result of this Agreement and the transactions contemplated hereby as required by Centrahoma Purchase Agreement and Buyer shall pay any remaining filing fees due in connection with all filings pursuant to 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 filingsAct, (ii) supply cooperate with the other Party and furnish all information in such Party’s possession that is necessary in connection with any information that may be required in order to make such other Party’s 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 Reasonable Efforts to cause the expiration or termination of the applicable notice or 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 as promptly as is reasonably practicable, (iv) promptly inform the other Party of any communication from or to, and any proposed understanding or agreement with, any Governmental Authority in respect of such filings, (v) 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 and proceedings with Governmental Authority Authorities relating to this Agreement such filings, (vi) comply, as promptly as is reasonably practicable, with any requests 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, (vii) use Reasonable Efforts to resolve any objections as may be asserted by any Governmental Authority with respect to the transactions contemplated by this Agreement pursuant Agreement, and (viii) use Reasonable Efforts to the HSR contest and resist any action 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, proceeding instituted (or cause threatened in writing to be made, instituted) by any Governmental Authority challenging the transactions contemplated by this Agreement as soon as reasonably practicable and after consultation with the other party, an appropriate response violative of any Law. If a Party intends to participate 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 any meeting 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 such filings, it shall give 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 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). 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 productmeeting.
(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
Samples: Stock Purchase Agreement (Antero Resources LLC), Stock Purchase Agreement (Antero Resources Finance Corp)
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
Samples: Stock Purchase Agreement (Pendrell Corp), Stock Purchase Agreement (Pendrell Corp)
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 commercially 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 documents required by any Governmental Entity in connection with the Merger and the other handtransactions contemplated hereby, shall including, without limitation: (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 Act, (10ii) Business Days following the execution and delivery of this Agreementany other filing necessary to obtain any Necessary Consent, and (yiii) file filings under any other comparable pre-merger or post-notification forms required by the merger notification filingsor control laws of any applicable jurisdiction where such filings are required by applicable law or regulation, forms as agreed by the parties hereto, and submissions (iv) 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 shall comply as promptly as practicable with any foreign request for additional information, documents or other materials received by such party hereto or any of its Subsidiaries or affiliates from any 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 AgreementEntity. Each of Parent and the Company shall (i) cooperate and coordinate with the other in the making of such filings, (ii) supply the other will cause all documents that it is responsible for filing with any information that may Governmental Entity under this Section 5.6(a) to comply in all material respects with all applicable Legal Requirements. Parent shall be required in order to make such filings, (iii) supply any additional information that reasonably may be required or requested by responsible for the FTC, the DOJ or the Governmental Authorities payment of any other jurisdiction in which any such all 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 fees 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, defined below) 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, each party shall promptly inform the other of any communication from any Governmental Authority regarding any of the transactions contemplated by this Agreement bear its own expenses incurred in connection with obtaining the approval of any filings or investigations with, by or before any Governmental Antitrust Authority relating to this Agreement or the transactions contemplated hereby(as defined below), including legal fees, expert witness and consultant costs, document vendor fees and other expenses, in substantially complying with any proceedings initiated by a private party. If any party hereto formal or Affiliate thereof shall receive a informal 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 madeAuthority, 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 any litigation 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 administrative proceeding arising under 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
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 The Parties acknowledge 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 may require Permit transfers or other Antitrust Laws as soon as practicable, regulatory transfers or filings and to obtain any required consents under any other Antitrust Laws applicable to may require the Offer submission of updated ownership and control information and/or the Merger as soon as practicable, and to avoid any impediment to the consummation issuance 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 new license(s) in connection 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 and to remove the Seller or any filings of its owners, 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 representatives from any Governmental Authority with respect regulatory connection to the transactions contemplated by this Agreement pursuant Company (collectively, “Transfers”). At the Closing, Purchaser shall deliver to the HSR or any other Antitrust Laws with respect to which any such filings have been madeSeller draft copies of all filings, then such party shall use its reasonable best efforts to make, or cause to be made, as soon as each in a form that it reasonably practicable and after consultation with believes satisfies 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 requirements of the applicable Governmental Authority, that are necessary to effect each of the parties hereto agree Transfer(s) (the “Transfer Applications”). The Seller will, and will cause the Company to, cooperate with Purchaser in providing required information, completing and executing all of the Transfer Applications and any other filings necessary to effect Purchaser’s ability to operate under the Company’s Permits during the Transfer Period described below.
(ib) give each other reasonable advance notice of Within 10 Business Days following the Closing Date, the Purchaser shall deliver Transfer Applications to the applicable Government Authority, provided that the Seller shall have provided all meetings with any Governmental Authority necessary information relating to the Offer or Company, the Merger, (ii) give each other an opportunity to participate in each of such meetings, (iii) keep Seller and their respective Affiliates and that 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 uponSeller shall have duly executed, and consider in good faith the views of the other with respect toshall have caused its Affiliates to duly execute, all written communications (including any analysesif necessary, 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 productTransfer Applications.
(c) Each of Parent, Acquisition Sub and Any Permits held by the Company shall cooperate with one another in good faith and that are subject to (i) promptly determine whether any filings not contemplated by Section 8.2(a) are required a Transfer may continue to be or should utilized by Purchaser after Closing but shall be madetransferred and/or replaced, and whether any other consentsas applicable, 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 within 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 Transfer Period. For purposes of this Agreement, in connection with any filing or submission required or action the “Transfer Period” shall mean the one hundred fifty (150) day period following the Closing Date, except that the period shall be extended for only so long as the Purchaser is using commercially reasonable efforts to be taken cause the Transfers. The Purchaser shall reimburse the Seller on a monthly basis for all costs and expenses incurred by either Parent the Seller 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 Seller with respect to the assets maintenance of such Permits following the Closing Date to the extent such costs and expenses accrue on or business of after 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 Date.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Globe Specialty Metals Inc)
Regulatory Filings. (a) Each of Parent the Parties covenants and Acquisition Sub (and their respective Affiliatesagrees that, if applicable)except as contemplated in this Arrangement Agreement, on during 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 period from the date following execution and delivery of this Arrangement Agreement until the earlier of the Effective Time and the time that this Arrangement Agreement is terminated in accordance with its terms:
(1) The Parties shall as promptly as practicable, but in any event by no event later than ten (10) Business Days following the execution and delivery of this AgreementJanuary 28, 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 2011 (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 file a request for additional information or documentary material from any Governmental Authority with respect to an advance ruling certificate under the transactions contemplated by this Agreement pursuant to Competition Act and/or file premerger notification filings under 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 herebyCompetition Act, and (ii) make the required filing under the Canada Transportation Act.
(2) The Parent shall as promptly make as practicable, but in any filingsevent by no later than January 28, furnish 2011, file an application for review under the ICA.
(3) Each Party shall, as promptly as is practicable, supply to a Governmental Entity any information required in connection therewith and seek to obtain timely any such consents, permits, authorizations, approvals or waivers requested from that the parties determine are required to be or should be made or obtained Party by a Governmental Entity in connection with obtaining the transactions contemplated herebyRegulatory Approvals.
(d4) Notwithstanding anything The filings referred to in subsections (1) and (2) hereof shall be in substantial compliance with the requirements of the Competition Act, the Canada Transportation Act and the ICA, as applicable.
(5) Each of the Parties shall keep the other reasonably informed as to the contrary status of the proceedings related to obtaining such Regulatory Approvals, including providing each other with copies of all related applications and notifications (except those in this Agreementrelation to the ICA), excluding any part thereof constituting confidential information which information shall be furnished on an external counsel only basis.
(6) Each of the Parties shall, promptly upon request, furnish to the other such information and assistance as the other may reasonably request in connection with its preparation of any filing or submission required which is necessary to receive any Regulatory Approval, and, where such information constitutes confidential information, the Parties shall furnish such information on an external counsel basis only.
(7) Each of the Parties shall keep the other apprised in a prompt manner of the status and substance of any communications with, and inquiries or action to be taken by either Parent requests for additional information from, any Governmental Entity and shall comply promptly with any such inquiry or request.
(8) Each of the Parties shall not make any submissions or filings, participate in any meetings or any material conversations with the Commissioner or her representatives in respect of the Competition Act Approval or the Company to consummate Minister of Transport and his representatives in respect of the Offer and Canada Transportation Act Approval, unless it consults with the Merger, other Party in no event shall Parent or any of its Subsidiaries or Affiliates be obligated to propose or agree to accept any undertaking or conditionadvance and, to enter into the extent permitted by such Governmental Entity, gives the other Party the opportunity to review drafts of any consent decreesubmissions or filings, and attend and participate in any communications or meetings.
(9) Notwithstanding any other provision of this Arrangement Agreement, Parent shall be responsible for any filing fee, along with any applicable taxes, 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 a Governmental Entity required in the aggregate (x) is or would reasonably be expected to be materially adverse (association with materiality, for purposes of this provision, being measured in relation to the size of the Company and its Subsidiaries taken as obtaining 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 AgreementRegulatory Approval.
Appears in 1 contract
Samples: Arrangement Agreement (Cliffs Natural Resources 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 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 Purchasers complete (i) promptly determine whether any copies of all material registrations, filings not contemplated and submissions relating to the Business made since July 1, 1999 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 July 1, furnish information required in connection therewith and seek to obtain timely 1999 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 Insurance Contracts issued or sold by the Reliance Subsidiaries since July 1, 1999 and being novated, written and/or reinsured by Xxxxxx hereunder 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 or are subject to exemption from such filing or registration as required with all other applicable Governmental Entities, except as would not have a Material Adverse Effect. Except as set forth on Schedule 3.12(d), all Insurance Contracts issued or sold by the Reliance Subsidiaries since July 1, 1999 complied in this Agreementall material respects 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 July 1, 1999 have been so filed or approved or not objected to within the period provided for objection, or are subject to exemption from such filing, and all premiums charged conform in all material respects thereto, except as would not have a Material Adverse Effect. No Seller Parties or their Affiliates has, since July 1, 1999, 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
Samples: Transfer and Purchase Agreement (Reliance Group Holdings Inc)
Regulatory Filings. (a) Each Buyer and Seller shall each 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 or desirable to consummate the transactions contemplated by this Agreement by the Outside Date (as defined below), 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 Parent information, applications and Acquisition Sub other documents and (ii) obtaining and maintaining all approvals, consents, clearances, registrations, waivers, permits, authorizations and other confirmations required to be obtained from any Governmental Authority to consummate the transactions contemplated by this Agreement (collectively, the “Regulatory Approvals”). Without limiting the foregoing or any of the other provisions of this Section 5.03, the parties agree that Buyer shall have the sole right, subject to Buyer’s obligations set out in this Section 5.03, to devise the strategy for filings, notifications, submissions and communications with or to any Government Authority and the timing thereof to enable the transactions contemplated by this Agreement to be consummated as promptly as practicable, and in any event, no later than the Outside Date.
(b) In furtherance and not in limitation of the foregoing, each of Buyer and Seller shall, and shall cause their respective AffiliatesAffiliates to, if applicable), on (i) make or cause to be made all filings required of each of them or any of their respective Affiliates under the one hand, and the Company, on the other hand, shall (x) file HSR Act 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 the HSR Act promptly as soon as reasonably practicable from the date following execution and delivery of this Agreement but in no event later than ten within five (105) 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 (i) cooperate and coordinate with the other in the making of such filingshereof, (ii) supply request early termination of the other with any information that may be required in order to make such filingswaiting period under the HSR Act, (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 comply at the expiration earliest practicable date with any voluntary or termination of the applicable waiting periods compulsory request under the HSR Act or other Antitrust Laws as soon as practicable, and to obtain any required consents under any other Antitrust Laws applicable antitrust or competition Law for additional information, documents or other materials received by each of them or any of their respective Affiliates from any Governmental Authority in respect of such filings or such transactions and (iv) cooperate with each other in connection with any HSR Act filing and in connection with resolving any investigation or other inquiry of any Governmental Authority under the HSR Act or any other antitrust or competition Law with respect 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 transactions contemplated by this Agreement. Each Party shall use its reasonable best efforts to take furnish to the other Party all information required for any application or other filing to be made pursuant to the HSR Act in connection with the transactions contemplated by this Agreement. Notwithstanding the foregoing, any Party may, as it deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other Parties under this Section 5.03 as “outside counsel only.” Such materials and the information contained therein shall be given only to the outside counsel of the recipient Party, and the recipient Party shall cause such action as reasonably may be necessary outside counsel not to disclose such materials or information to any employees, officers, directors or other Representatives of the recipient Party, unless express written permission is obtained in advance from the source of the materials. Each Party shall promptly inform the other Party hereto of any oral communication to or from, and provide copies of written communications to or from, any Governmental Authority regarding any HSR Act filing, any investigation or inquiry under the HSR Act or any other antitrust or competition Law, or the transactions contemplated by this Agreement. No Party shall independently participate in any meeting with any Governmental 47
(c) In furtherance and not in limitation of the actions and obligations described in Section 5.03(b), Buyer shall promptly 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 be 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. In connection therewith, if any Action is instituted (or threatened to be instituted) challenging any transaction contemplated by this Agreement pursuant as in violation of any 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 all actions as may be required to cause the expiration or termination of the waiting, notice or review periods under the HSR or any other Antitrust Laws Act with respect to which the transactions contemplated by this Agreement as promptly as possible after the execution of this Agreement, and no later than the Outside Date. Buyer shall not, without the prior written consent of Seller (not to be unreasonably withheld, conditioned or delayed), (i) “pull-and-refile,” pursuant to 16 C.F.R. 803.12, any such filings have been madefiling made under the HSR Act or (ii) offer, then such party shall use its reasonable best efforts negotiate or enter into any commitment or agreement, including any timing agreement, with any Governmental Authority to makedelay the consummation of, or cause not to be madeclose before a certain date, 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 foregoingtransactions contemplated by this Agreement.
(d) Buyer further agrees that it shall, to the extent reasonably practicable and unless prohibited by applicable Law or by the applicable Governmental Authority, the parties hereto agree necessary 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 obtain 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 Regulatory Approval 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 7.01(a) and (C)(1) or Section 7.01(b), as applicable, by the Outside Date, or to avoid the commencement of Annex A and Section 9.1(c). Any such disclosures, rights to participate or provisions of information any Action 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 Governmental Authority seeking or the attorney client privilege entry of any Governmental Order that would result in, or attorney work product.
(c) Each of Parentto have lifted, Acquisition Sub and vacated, reversed or terminated, any Closing Legal Impediment, promptly take the Company shall cooperate with one another in good faith to following actions: (i) promptly determine whether propose, negotiate, offer to commit and effect (and if such offer is accepted, commit to and effect), by consent decree, hold separate order or otherwise, the sale, divestiture, transfer, license or other disposition (including by licensing any filings not contemplated Intellectual Property Rights) of any assets or businesses of the Group Companies or any assets or businesses of Buyer or any of its Affiliates or Subsidiaries (or equity interests held by Section 8.2(a) are required to be Buyer or should be made, and whether any other consents, approvals, permits of its Affiliates or authorizations not contemplated by Section 8.2(a) are required to be Subsidiaries in entities with assets or should be obtained, from any Governmental Authority under any other applicable Law in connection with the transactions contemplated hereby, and businesses); (ii) promptly make any filingspropose, furnish information required in connection therewith negotiate, offer to commit and seek effect (and if such offer is accepted, commit to obtain timely any such consentsand effect), permitsby consent decree, authorizationshold separate order or otherwise, approvals or waivers behavioral, conduct, ownership and operational limitations on, including actions and agreements that would limit the parties determine are required to be or should be made or obtained in connection freedom of action with the transactions contemplated hereby.
(d) Notwithstanding anything to the contrary in this Agreementrespect to, in connection with any filing or submission required or action to be taken by either Parent or the Company ability to consummate own or operate, the Offer and assets or businesses of the Merger, in no event shall Parent Group Companies or any assets or businesses of Buyer or any of its Affiliates or Subsidiaries (or equity interests held by Buyer 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 (entities 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 8.2businesses); provided, however, that any such action may be conditioned upon the consummation of the Merger and other Transactions contemplated by this Agreement.(iii) 48
Appears in 1 contract
Samples: Securities Purchase Agreement (Centerpoint Energy 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 AGREEMENT AND PLAN OF MERGER 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 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 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 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 (other than normal filing fees that are imposed by Law on the Company).
(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 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 Party 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 if possible, an appropriate response in compliance with such request. In connection with with, and without limiting the generality of, the foregoing, to the extent reasonably practicable and unless prohibited by applicable Law or by the applicable Governmental Authority, the parties 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 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 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 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(b). Any such disclosures, rights to participate or provisions of information by one party 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.information. AGREEMENT AND PLAN OF MERGER
(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 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, permitsPermits, 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 materialitybusinesses of Parent, for purposes of this provision, being measured in relation to the size of the Company its Subsidiaries and its Subsidiaries taken as a whole) to (A) and their Affiliates and the Company and its Subsidiaries, taken as a wholeand any other restrictions on the activities of Parent, or Parent its Subsidiaries 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 and their Affiliates and the Company and its Subsidiaries, taken as a wholeand (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 reasonably be expected adversely affect the ability of any Party hereto to deny Parent the material benefit of the bargains contemplated by consummate the transactions contemplated by this Agreement. The Company shall agreehereby and taking any and all other actions to prevent the entry, if requested by Parent in writing, to commit to take any of the forgoing actions with respect to the assets enactment 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 Agreementpromulgation thereof.
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 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 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 Xxxxxx 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
Samples: Merger Agreement (Axonics, Inc.)
Regulatory Filings. From the date of this Agreement until the earlier of the Closing or termination of this Agreement:
(a) Each Upon the terms and conditions herein provided, as promptly as reasonably practicable following the date of Parent this Agreement, the Sellers and Acquisition Sub Buyer shall (i) make all appropriate filings and submissions under the HSR Act, (ii) use commercially reasonable efforts to obtain as promptly as practicable the termination of any waiting period under the HSR Act, (iii) cooperate and consult with each other in (A) determining which filings are required to be made prior to the Closing with, and which material consents, approvals, permits, notices or authorizations are required to be obtained prior to the Closing from, Governmental Authorities in connection with the execution and delivery of this Agreement and the Ancillary Agreements and the consummation of the transactions contemplated hereby and thereby and (B) timely making all such filings and timely seeking all such consents, approvals, permits, notices or authorizations, and (iv) use commercially reasonable efforts to take, or cause to be taken, all other actions and do, or cause to be done, all other things necessary or appropriate to consummate the transactions contemplated by this Agreement and the Ancillary Agreements as soon as practicable; it being agreed and understood that neither the Sellers, Buyer nor any of their respective AffiliatesAffiliates shall be obligated to take any action or omit to take any action as a pre-condition to, or otherwise in order to obtain, any Governmental Authority’s consent to the transactions contemplated by this Agreement and/or the Ancillary Agreements if applicablein such affected party’s reasonable good faith judgment, any such action (or omission to take action, as the case may be) would reasonably be expected to materially impair or interfere with the ability of such party or its Affiliates to conduct their respective businesses substantially in the manner in which such businesses are currently being conducted (including, in the case of Buyer, the conduct of the Business following the Closing as it is currently being conducted by Sellers).
(b) Each Party shall promptly notify the other Party of any communication it or any of its Affiliates or its or their respective Representatives receives from any Governmental Authority relating to the matters that are the subject of this Agreement and the Ancillary Agreements and, to the extent reasonably practical and permitted by applicable Law, permit the other Party to review in advance any proposed communication by such Party to any Governmental Authority. Neither Party to this Agreement shall agree to participate in any meeting with any Governmental Authority in respect of any filings, investigation or other inquiry unless it consults with the other Party in advance and, to the extent permitted by such Governmental Authority, gives the other Party the opportunity to attend and participate at such meeting. Subject to the Confidentiality Agreement and Section 5.3, the Parties will coordinate and cooperate fully with each other in exchanging such information and providing such assistance as the other Party may reasonably request in connection with the foregoing and in seeking early termination of any applicable waiting periods including under the HSR Act. Subject to the Confidentiality Agreement and Section 5.3, the Parties to this Agreement will provide each other with copies of all correspondence, filings or communications between them or any of their representatives, on the one hand, and the Companyany Governmental Authority or members of its staff, 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 Ancillary Agreements 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 thereby (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 materialityexcluding, for purposes the avoidance of this provisiondoubt, 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 Agreementcompetitively sensitive information).
Appears in 1 contract
Regulatory Filings. (a) Each As soon as practicable after the date 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 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 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 any comparable pre-merger or post-merger notification filings, forms and submissions (or if required by the applicable Governmental Authorities, a draft of such filings), with any the applicable foreign Governmental Authority that is to the extent required by any other Antitrust Laws and as soon as reasonably practicable from such requirement is determined by both Parent and the date following execution Company in good faith and delivery of this Agreement but in no event later than ten (10) Business Days following the execution and delivery of this Agreementconsultation with each other. Each of Parent and the Company shall use commercially reasonable 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 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 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 commercially 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 (other than normal filing fees that are imposed by Law on the Company).
(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 commercially 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 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(b). 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 ParentNotwithstanding anything in this Agreement to the contrary, Acquisition Sub Parent and the Company agree to, and shall cooperate cause each of their respective Subsidiaries to, take any and all actions necessary to obtain any consents, clearances or approvals required under or in connection with one another any domestic or foreign Antitrust Law, and to enable all waiting periods under any Antitrust Law to expire, and to avoid or eliminate each and every impediment under any Antitrust Law asserted by any Governmental Authority, in good faith each case, to cause the Merger and the other transactions contemplated hereby to occur prior to the Outside Date, including but not limited to (i) promptly determine whether complying with any filings not contemplated requests for additional information 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 herebyAuthority, and (ii) promptly make contesting, defending and appealing any filingsthreatened or pending preliminary or permanent injunction or other order, furnish information required in connection therewith and seek decree, ruling, statute, rule, regulation or executive order that would adversely affect the ability of any Party hereto 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 consummate the transactions contemplated hereby.
(d) Notwithstanding anything hereby and taking any and all other actions to prevent the contrary entry, enactment, or promulgation thereof; provided that nothing in this AgreementAgreement shall be construed to require that Parent offer, in connection with any filing negotiate, commit to or submission required or action to be taken effect, 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 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 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 materialitybusinesses of Parent, for purposes of this provision, being measured in relation to the size of the Company its Subsidiaries and its Subsidiaries taken as a whole) to (A) and their Affiliates and 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 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) Each of Parent 4.5.1 Parent, Merger Sub and Acquisition Sub (and their respective Affiliates, if applicable), on the JJI shall cooperate with 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 another (i) cooperate and coordinate with the other in the making of such filingspromptly determining whether any filings are required to be or should be made or consents, (ii) supply the other with any information that may approvals, permits or authorizations are required to be required in order to make such filings, (iii) supply any additional information that reasonably may or should be required or requested by the FTC, the DOJ or the Governmental Authorities of any other jurisdiction in which any such filing is made obtained under any other Antitrust LawsLaws or whether any consents, and (iv) use reasonable best efforts approvals or waivers are required to take all action necessary be or should be obtained from other parties to cause the expiration or termination of the applicable waiting periods under the HSR Act loan agreements or other Antitrust Laws as soon as practicable, and contracts or instruments material to obtain JJI’s or 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 of its Subsidiaries’ business in connection with the consummation of the Offer transactions contemplated by this Agreement and (ii) in promptly making any such filings, furnishing information required in connection therewith and seeking to obtain timely any such consents, permits, authorizations, approvals or waivers.
4.5.2 Notwithstanding Section 4.5.1, the parties shall promptly make any required submissions under the Merger under Filing Laws and any Antitrust Lawsother Laws which Parent reasonably determines should be made, including using reasonable best efforts in each case, with respect to this Agreement, the Merger and the Transactions contemplated hereby. Parent and JJI shall take or undertake all such further reasonable action as reasonably may be necessary to resolve such objections, if any, as the FTCU.S. Federal Trade Commission, the DOJAntitrust Division of the Department of Justice, the German Federal Cartel Office (Bundeskartellamt), state antitrust enforcement authorities or competition authorities of any other Governmental Authority nation or Person jurisdiction (each, a “Government Antitrust Entity”) may assert under any applicable Antitrust relevant antitrust or competition Laws or Merger Filing Laws with respect to the Offer and/or the MergerTransactions contemplated hereby.
4.5.3 Notwithstanding this Section 4.5 or any other provision of this Agreement, neither Parent nor Merger Sub shall be required, whether before or after the Effective Time, to hold separate (bincluding by trust or otherwise) Each or divest any 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 its business or assets or any of the transactions contemplated by this Agreement businesses or assets of JJI, or enter into any consent decree or other agreement that would restrict Parent or JJI in connection with the conduct of its respective businesses as heretofore conducted, or oppose any filings motion or investigations withaction for a temporary, by preliminary or before permanent injunction against the Transaction or any Governmental Authority of the parties. Each of JJI and Parent shall keep the other informed of any material communication and provide to the other copies of all correspondence, between it (or its advisors) and any Government Antitrust Entity relating to this Agreement or any of the transactions contemplated herebymatters described in this Section 4.5, including and each of JJI and Parent shall permit the other to review 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 communication to be madegiven by it to, as soon as reasonably practicable and after consultation shall consult with the each other partyin advance of any telephonic calls, an appropriate response in compliance with such request. In connection with and without limiting the foregoingmeetings or conferences with, any Government Antitrust Entity and, to the extent reasonably practicable and unless prohibited by applicable Law or by the applicable Governmental Authoritypermitted, 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 attend and comment uponparticipate in such telephonic calls, and consider in good faith the views of the other with respect tomeetings or conferences with, all written communications (including any analysesGovernment Antitrust Entity and, 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 permitted, give the other party the opportunity to attend and participate in such telephonic calls, meetings and conferences. Notwithstanding any of the foregoing, no failure to obtain termination of the waiting period under applicable Law or as appropriate to protect confidential business information or the attorney client privilege or attorney work product.
(c) Each of ParentHSR Act, Acquisition Sub and the Company if applicable, shall cooperate with one another in good faith to (i) promptly determine whether any filings not contemplated by Section 8.2(a) are required be deemed to be or should be made, and whether a Breach hereunder by any other consents, approvals, permits or authorizations not contemplated by Section 8.2(a) are required party 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 Subject to the foregoing, Parent shall agree, if requested by Parent be principally responsible for and in writing, to commit to take any control of the forgoing actions process of dealing with respect any Government Antitrust Entity relating to the assets or business of the Company in furtherance of its obligations under 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 Agreement4.5.3.
Appears in 1 contract
Samples: Merger Agreement (Genlyte Group 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 of the DOJ United States Department of Justice 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, and (y) file comparable pre-merger or post-merger notification filings, forms and submissions with any foreign the Governmental Authority that is required by any other Antitrust Laws Authorities set forth on Section 7.2 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 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 Antitrust Division of the United States Department of Justice or the Governmental Authorities of any other applicable jurisdiction in which any such filing is made under any other Antitrust Laws, and (iv) subject to the terms of this Section 7.2, 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 Approvals 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, Antitrust Division of the United States Department of Justice 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
Samples: Merger Agreement (Attunity LTD)
Regulatory Filings. (a) Each The Parties acknowledge that Governmental Authorities may require Permit transfers or other regulatory transfers or filings and may require the submission of Parent updated ownership and Acquisition Sub (and their respective Affiliates, if applicable), on control information and/or the one hand, and the Company, on the other hand, shall (xissuance of new license(s) file or mine number(s) in connection with the FTC and the Antitrust Division of the DOJ a Notification and Report Form relating to transactions contemplated by this Agreement and to remove the transactions contemplated hereby as Principal Member or any of its owners, employees or representatives from any regulatory connection to the Company (collectively, “Transfers”). At the Closing, Purchaser shall deliver to the Principal Member draft copies of all filings, each in a form that it reasonably believes satisfies the requirements of the applicable Governmental Authority, that are necessary to effect each of the Transfer(s) (the “Transfer Applications”). The Principal Member will, and will cause the Company to, cooperate with Purchaser in providing required by information, completing and executing all of the HSR Act as soon as reasonably practicable from Transfer Applications and any other filings necessary to effect Purchaser’s ability to operate under the date following execution and delivery of this Agreement but in no event later than Company’s Permits during the Transfer Period described below.
(b) Within 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 FTCClosing Date, 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 Purchaser shall deliver Transfer Applications to take all action necessary to cause the expiration or termination of the applicable waiting periods under Government Authority, provided that the HSR Act or other Antitrust Laws as soon as practicable, and to obtain any required consents under any other Antitrust Laws applicable Principal Member shall have provided all necessary information relating 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 FTCCompany, 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 (Principal Member and their respective AffiliatesAffiliates and that the Principal Member shall have duly executed, and shall have caused its Affiliates to duly execute, if applicable)necessary, 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 productTransfer Applications.
(c) Each of Parent, Acquisition Sub and Any Permits held by the Company shall cooperate with one another in good faith and that are subject to (i) promptly determine whether any filings not contemplated by Section 8.2(a) are required a Transfer may continue to be or should utilized by Purchaser after Closing but shall be madetransferred and/or replaced, and whether any other consentsas applicable, 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 within 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 Transfer Period. For purposes of this Agreement, in connection with any filing or submission required or action the “Transfer Period” shall mean the one hundred fifty (150) day period following the Closing Date, except that the period shall be extended for only so long as the Purchaser is using commercially reasonable efforts to be taken cause the Transfers. The Purchaser shall reimburse the Principal Member on a monthly basis for all costs and expenses incurred by either Parent the Principal Member 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 Principal Member with respect to the assets maintenance of such Permits following the Closing Date to the extent such costs and expenses accrue on or business of after 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 Date.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Globe Specialty Metals Inc)
Regulatory Filings. (a) Each of Parent and Acquisition Sub a. Prior to the Closing, Shareholder shall (and their respective Affiliatesshall cause its Gaming Licensees and directors, if applicable)officers and employees to) and shall cause its Affiliates to, 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 its reasonable best efforts to take (i) file all action necessary notices, reports, submissions and other documents required 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 be filed by 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 Contemplated Transactions, and respond as promptly as reasonably practicable to any additional information requests by any such Governmental Authority, and (ii) obtain as promptly as reasonably practicable, all Governmental Approvals that may be or become necessary for its execution and delivery of, performance of its obligations pursuant to, and consummation of the transactions contemplated by this Agreement by, the Transaction Documents. Shareholder shall not (and shall cause its Affiliates and Gaming Licensees not to) take any action that would reasonably be expected to have the effect of materially delaying, materially impairing or materially impeding the receipt of any required Antitrust Approvals, any required FDI Approvals, any required Gaming Approvals or any required Financial Services Approvals or the consummation of the Equity Sale or the Merger.
b. Without limiting the generality of the obligations set forth in Section 8.8.a, Shareholder shall, and shall cause its Affiliates and Gaming Licensees, directors and officers to, (i) within fifteen (15) Business Days after the date hereof, make and not withdraw (without the prior written consent of the other Parties) a filing of a Notification and Report Form pursuant to the HSR or any other Antitrust Laws Act in connection with respect the Equity Sale or, if required by applicable law, the Merger; provided that there are no changes in the applicable regulations under the HSR Act between the date hereof and the date of filing pursuant to the HSR Act, in which any such filings have been made, then such party instance Shareholder shall use its reasonable best efforts to makefile such Notification and Report Form as promptly as commercially practicable thereafter; (ii) as promptly as practicable after the date hereof, or cause to be madebut in any event within twenty-five (25) Business Days after the date hereof, as soon as reasonably practicable make and after consultation with not withdraw (without the prior written consent of the other partyParties), an appropriate response in compliance or, if required, make initial contact 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 AuthorityAuthority and then file appropriate filings (whether in draft or final form), as required under applicable Antitrust Laws or applicable FDI Laws listed on Schedule C-1 of 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 meetingsMerger Agreement, (iii) keep within forty-five (45) days after the date hereof, make and not withdraw (without the prior written consent of the other party reasonably apprised Parties) appropriate filings with respect to any oral communications with any Governmental Authority regarding the Offer or Gaming Authorities and for the Merger, Contemplated Transactions set forth in the table set forth on Schedule C-2 of the Merger Agreement and (iv) cooperate as promptly as practicable after the date hereof, make and not withdraw (without the prior written consent of the other Parties), or if required make initial contact with the applicable Governmental Authority and then file appropriate filings, applications, registrations and notices as required under applicable Financial Services Laws that require a Governmental Approval in connection with the filing of any analyses, presentations, memoranda, briefs, arguments, opinions or other written communications explaining or defending the Offer Equity Sale and the Merger, articulating any regulatory or competitive argument and/or responding . Shareholder shall use reasonable best efforts to requests or objections made by any Governmental Authority, (v) provide each other cooperate 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 Parties to satisfy the conditions set forth in clauses Section 7.5, Section 8.5 and Section 9.5 of the Merger Agreement respectively with respect to the Antitrust Approvals, the FDI Approvals, the Gaming Approvals and the Financial Services Approvals as applicable to Shareholder and its Affiliates. Shareholder shall, and shall cause its Affiliates and Gaming Licensees (with respect to any Gaming Law Filings) and each of its Subsidiaries and each of its and their respective directors and officers to, (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 cooperate with 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, Parties in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by a Person other than a Governmental Authority, (B) promptly supply the other Parties with any information which may be required to effectuate the Antitrust Filings, the FDI Filings, the Gaming Law Filings and the Financial Services Regulatory Filings and (C) respond as promptly as reasonably practicable to any additional information requests by any Governmental Authority in connection with Antitrust Filings, FDI Filings, Gaming Law Filings or Financial Services Regulatory Filings which the Parties may reasonably deem appropriate. During the Pre-Closing Period, Shareholder shall notify the other Parties promptly upon the receipt of (and, if in writing, share a copy of) any communication received by Shareholder from, or given by Shareholder to, any Governmental Authorities and of any communication received or given in connection with any proceeding by a Person other than a Governmental Authority, in each case in connection with any of the Contemplated Transactions, and permit the other Parties to review and discuss in advance any proposed written communication to any Governmental Authorities related to any Antitrust Filings or any FDI Filings. During the Pre-Closing Period, whenever any event occurs that is required to be set forth in an amendment or supplement to any Antitrust Filings, any FDI Filings, any Gaming Law Filings or any Financial Services Regulatory Filings, Shareholder shall promptly inform the other Parties of such occurrence and cooperate in filing with the applicable Governmental Authority (and share a copy of) such amendment or supplement, and, with respect to any amendment or supplement to any Antitrust Filings or any FDI Filings, permit the other Parties to review and discuss prior to submission of such amendment or supplement. During the Pre-Closing Period, Shareholder shall give the other Parties prompt notice of the commencement or known threat of commencement of any Action by or before any Governmental Authority with respect to any of the Contemplated Transactions and shall keep the other Parties reasonably informed as to the status of any such Action or threat. During the Pre-Closing Period, Shareholder shall not participate in any meeting, teleconference or videoconference with any Governmental Authority having competent jurisdiction over applicable Antitrust Laws, FDI Laws, Gaming Laws or Financial Services Laws with respect to any such Actions or any of the Antitrust Filings, the FDI Filings, the Gaming Law Filings or the Financial Services Regulatory Filings relating to any of the Contemplated Transactions that is expected to be substantive unless it consults with the other Parties in advance and, unless prohibited by such Governmental Authority, gives the other Parties the opportunity to attend and participate thereat. Notwithstanding the foregoing, Shareholder may, as it deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other Parties under this Section 8.8.b as “Counsel Only Material.” 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 legal counsel to Representatives of the recipient unless express permission is obtained in advance from Shareholder or its outside legal counsel. Shareholder shall cause its counsel regarding applicable Antitrust Laws, FDI Laws, Gaming Laws and Financial Services Laws to comply with this Section 8.8.b.
c. In furtherance and not in limitation of the covenants of Shareholder contained in Sections 8.8.a and 8.8.b during the Pre-Closing Period, Shareholder shall, and shall cause its Gaming Licensees and Affiliates and each of its and their respective directors and officers to, use reasonable best efforts to cooperate with the other Parties in their efforts to (i) avoid the entry of, or to have vacated, lifted, reversed or overturned any decree, judgment, injunction or other order, whether temporary, preliminary or permanent, that would restrain, prevent or delay the Closing, including cooperating with the other Parties in their efforts to defend (with sufficient time for resolution in advance of the Outside Date) against litigation over any claim asserted in any court with respect to any of the Contemplated Transactions by any Governmental Authority having competent jurisdiction or any natural person or Entity, , (ii) avoid or eliminate each and every impediment to the consummation of the other Contemplated Transaction and (iii) obtain all Governmental Approvals that may be required or action advisable by any Governmental Authority, in each case with competent jurisdiction, so as to be taken by either Parent or enable the Company Parties to consummate the Offer and Contemplated Transactions as promptly as reasonably practicable.
d. Notwithstanding anything to the Mergercontrary contained in this Agreement, in no event Shareholder shall Parent (i) not be required to take any Remedial Action that any Governmental Authority may seek to impose on Shareholder or any of its Subsidiaries Affiliates (other than members of the Remainco Group, the members of the Spinco Group or the members of the Merger Partner Group that does not amount to a Remainco Burdensome Action) and (ii) agree to, and not object to, any Remedial Actions that may be imposed on Buyer, Mxxxxx Partner and Remainco that are mutually agreed by Bxxxx, Mxxxxx Partner and Remainco.
e. Notwithstanding anything to the contrary contained in this Agreement, Shareholder shall not agree to or take any Remedial Action without the prior written consent of each of Buyer. Notwithstanding the foregoing, nothing in this Agreement shall require any Party to agree to any modifications, amendments or changes to any Transaction Document.
f. Subject to the terms and conditions of this Agreement and other than in connection with any Excluded Matter, Shareholder shall not, and shall cause its Affiliates be obligated to propose not to, take any action, including, Transfer Covered Shares, acquire or agree to accept acquire any undertaking business or condition, to enter into any consent decree, to make any divestiture or accept any operational restrictionEntity, or take otherwise acquire or commit agree to take acquire 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 assets, if doing so would reasonably be expected to be prevent, 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, impede 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 materially delay consummation of the Merger and other Transactions contemplated by this AgreementContemplated Transactions.
Appears in 1 contract
Samples: Support Agreement (International Game Technology PLC)
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
Samples: Business Combination Agreement (PROOF Acquisition Corp I)
Regulatory Filings. (a) Each of Parent and Acquisition Sub (and their respective AffiliatesBuyer, if applicable), on the one handSeller, and the Company, on the other hand, Lender (as applicable) shall (xi) file with the FTC Federal Trade Commission and the Antitrust Division of the DOJ Department of Justice 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 five (105) Business Days following after the execution and delivery of this Agreement, date hereof and (yii) file submit all comparable pre-merger or post-merger notification filings, forms and submissions with any foreign Governmental Authority that is may be required by under any other Antitrust Foreign Competition Laws as soon as reasonably practicable from applicable in the date following execution and delivery of this Agreement but jurisdictions listed in no event later than ten the Required Foreign Filings Schedule within fifteen (1015) Business Days following after the execution and delivery of this Agreementdate hereof. Each of Parent Buyer and the Company Seller shall pay fifty percent (i50%) cooperate and coordinate with the other in the making of such filings, (ii) supply the other with any information that may be all filing fees 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 Foreign Competition Laws applicable to the Offer and/or the Merger as soon as practicable, and to avoid any impediment to Parties for the consummation of the Offer or transactions contemplated herein (the Merger under any “Antitrust LawsFiling Fees”), 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 and to the Offer and/or extent unpaid prior to the MergerClosing, Seller’s portion of the Antitrust Filing Fees shall be deemed Company Transaction Expenses.
(b) Each In furtherance of Parent and Acquisition Sub (and their respective Affiliates, if applicableSection 6.06(a), on the one handBuyer, Seller, and the Company, on the other hand, Lender shall (i) respond as promptly inform the other of as practicable to any communication inquiries or requests received 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 documentation, and (ii) use their best efforts to cause the waiting periods or other requirements under the HSR Act and all applicable Foreign Competition Laws to terminate or expire at the earliest possible date including with respect to filings under the HSR Act, seeking “early termination” of the waiting period under the HSR Act, and, with respect to applicable Foreign Competition Laws so as to avoid a second phase review). Buyer, Seller, and Lender shall allow the other Party to review and comment on any and all regulatory filings as contemplated by Section 6.06(a) or any requests or inquiries as contemplated in this Section 6.06(b) and consult with the other Parties or their outside counsel prior to the submission of any and all of the foregoing (except that each Party shall be permitted to remove any commercially sensitive information before sharing with the other Party, or the sharing Party’s legal counsel may share complete versions on a counsel-to-counsel basis with the other Party’s legal counsel). Buyer, Seller, and Lender shall promptly notify one another of any written communication to such Party or its Affiliates 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 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 the other party, an appropriate response Party to 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 other Party in connection therewith). Buyer, Seller, and Lender agree not 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 this Agreement unless it consults with the other with respect toParty in advance and, all written communications (including any analysesto the extent appropriate or permitted by such Governmental Authority, presentationsgives such other Party the opportunity to attend and participate, memorandaor to designate a representative to attend and participate, briefsthereat. Each of Buyer, arguments Seller, and opinions) with a Governmental Authority regarding Lender shall 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 (and memoranda setting forth the substance thereof) between it and its Affiliates and their respective representatives on the one hand, and any Governmental Authority or members of its staff on the other hand, with respect to this Agreement (except that such Party shall be permitted to remove any commercially sensitive information before sharing with the other Party, or such Party legal counsel may share complete versions on a counsel-to-counsel basis with such other Party’s legal counsel). Buyer, Seller, and Lender shall promptly provide one another with any information or documentation reasonably required by the other Party in order to prepare any filings required by the HSR Act or any Foreign Competition Laws or in order to respond to any inquiry from any Governmental Authority relating in relation to the Offer HSR Act or the Merger, and any Foreign Competition Laws (vii) cooperate and provide each other except that such Party shall be permitted to remove any commercially sensitive information before sharing with a reasonable opportunity to participate in, and consider in good faith the views of the other with respect toParty, 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 or such disclosures, rights to participate or provisions of information by one party to the other Party’s legal counsel may be made share complete versions on a counsel-only to-counsel basis to with such other Party’s legal counsel). Each of Buyer, Seller, and Lender shall promptly inform the extent required under applicable Law or as appropriate to protect confidential business information or other of any material developments and keep the attorney client privilege or attorney work productother Party reasonably informed of the progress, in each case of such filings and submissions.
(c) Each of ParentBuyer, Acquisition Sub Seller, and Lender shall use reasonable best efforts to take or cause to be taken all actions and do or cause to be done all things that are necessary, proper or advisable to obtain all consents and approvals required by such filings and submissions described in Section 6.06(a) and consents and clearances described in Section 8.01(i) and Section 8.02(e). Notwithstanding the Company foregoing, none of Buyer, Seller or Lender shall cooperate with one another in good faith be required to commit to or effect, by consent decree, hold separate orders, trust, or otherwise, (i) promptly determine whether the sale or disposition of, or prohibition or limitation on the ownership or operation by such Party or any filings not contemplated by Section 8.2(aof its Subsidiaries of specific assets or categories of assets or businesses; (ii) the amendment or termination of existing contracts, licenses or other relationships; (iii) the entering into of new contracts, licenses or other relationships; and (iv) behavioral commitments limiting or modifying such Party’s or any of its Affiliates’ rights of ownership in, or ability to conduct the business of, one or more of its operations, divisions, businesses, product lines or assets, in each case other than to the extent any such actions, in the aggregate, both (x) are required not materially adverse to be Buyer and its Subsidiaries (including, after the Closing, the Company and its Subsidiaries) or should be madeSeller, Lender and whether their respective Subsidiaries and (y) would not involve the assets, product lines, operations, or businesses of Buyer and its Subsidiaries (including, after the Closing, the Company and its Subsidiaries) or of Seller, Lender and their Subsidiaries that generated revenues, individually or in the aggregate, of more than $20,000,000 in calendar year 2017 (the actions set forth in the foregoing clauses (i)-(iv), “Behavioral Remedies”). In addition, neither Seller or Lender shall commit to or effect, or permit the Company or any other consentsof its Subsidiaries to commit to or effect, approvals, permits or authorizations any such action that is 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 conditioned upon the substantially concurrent consummation of the transactions contemplated hereby, and (ii) promptly make any filings, furnish information required in connection therewith and seek shall not effect or commit to obtain timely affect 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 herebyaction without Buyer’s prior written consent.
(d) Notwithstanding anything to Without limiting the contrary in this Agreementgenerality of the foregoing, in connection with any filing or submission required or action to be taken by either Parent or the Company to consummate the Offer Buyer shall not, and the Mergershall cause its Affiliates not to, in no event shall Parent or any of its Subsidiaries or Affiliates be obligated to propose acquire or agree to accept any undertaking acquire, by merging with or condition, to enter into any consent decree, to make any divestiture or accept any operational restrictionconsolidating with, or take by purchasing a portion of the assets of or commit equity in, or by any other manner, any business or any corporation, partnership, association or other business organization or division thereof, or otherwise acquire or agree to take acquire any action (i) assets or equity interests, if the effectiveness entering into of a definitive agreement relating to, or consummation of which is not conditional on the consummation of the Offer and the Merger such acquisition, merger or (ii) that individually or in the aggregate (x) is or consolidation would reasonably be expected to be materially adverse to: (with materiality, for purposes of this provision, being measured i) impose any material delay 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 wholeobtaining of, or Parent and its Subsidiariesmaterially increase the risk of not obtaining, taken as a whole, either before or after giving effect any consents of any Governmental Authority necessary to consummate the Offer transactions contemplated by this Agreement or the Merger, expiration or (B) Parent’s ownership or operation termination of any material portion applicable waiting period; (ii) materially increase the risk of any Governmental Authority seeking or entering an Order prohibiting the business or assets consummation 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, ; or (iii) materially 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 the consummation of the Merger and other Transactions contemplated by this AgreementOrder on appeal or otherwise.
Appears in 1 contract
Regulatory Filings. (a) Each As promptly as reasonably practicable after the date of Parent and Acquisition Sub (and their respective Affiliatesthis Agreement, if applicable), on each of the one hand, Company and the Company, on the other hand, Investor shall (x) file with the FTC and the Antitrust Division of the DOJ a Notification and Report Form relating to this Agreement and any other required materials with the Federal Trade Commission (the “FTC”) and the United States Department of Justice (the “DOJ”) under the Hxxx Sxxxx Xxxxxx Antitrust Improvements Act of 1976 (the “HSR Act”) to permit the Acquisition and the other 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 such filing shall be at the minimum notification threshold necessary to permit the same.
(10b) Business Days following the execution and delivery The Investor shall not acquire any shares 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 Common Stock in the making violation 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 productLaw.
(c) Each of Parent, Acquisition Sub The Company and the Company Investor 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 each 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 preparing and/or making any filing under the HSR Act for the Acquisition and the other 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 by this Agreement, in connection and each of them shall comply at the earliest practicable date with any filing request under the HSR Act for additional information, documents or submission required or action to be taken by either Parent other materials from the FTC or the Company to consummate DOJ in respect of the Offer Acquisition 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. Each of the Company and the Investor shall use commercially reasonable efforts to obtain the expiration or early termination of the applicable waiting period under the HSR Act. The Company and the Investor shall agree, if requested by Parent in writing, to commit to take any of the forgoing actions cooperate with respect to the assets filings, notices and approvals described in Sections 7.1(c) and 7.2(c) and shall use commercially reasonable efforts to make or business obtain in a timely manner such filings, notices and approvals. In addition, the Company and the Investor agree to keep each other reasonably informed of the Company in furtherance status of this Section 8.2; providedsuch filings, howevernotices and approvals, that including promptly notifying each other of (x) the submission of any such action may be conditioned upon filing or notice, (y) the consummation receipt of any material communication from a Governmental Authority relating to any such filing, notice or approval and (z) the Merger and other Transactions contemplated by this Agreementreceipt of any such approval.
Appears in 1 contract
Samples: Investment and Strategic Cooperation Agreement (Janus Capital Group 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
Samples: Purchase Agreement
Regulatory Filings. (a) Each of Parent The Company will, within five (5) Business Days after the date hereof, make or cause to be made all filings and Acquisition Sub submissions under any antitrust, competition and similar legislation or regulations, including the HSR Act (and their respective Affiliates, if applicableto the extent required filings or submissions have not been made prior to the date hereof), on applicable to the one handCompany and its Subsidiaries for the consummation of the transactions contemplated herein. Subject to applicable Laws relating to the exchange of information, Parent will have the right to review in advance, and to the Company, on the other hand, shall (x) file extent practicable will consult with the FTC Company on, all the information that appears in any such filings. In exercising the foregoing right, Parent will act reasonably and as promptly as practicable. All fees and other payments to Governmental Bodies incurred in connection with (i) this Section 6.03(a) and (ii) Section 7.04(a) (together with the Antitrust Division aggregate amount of all fees and other payments made in connection with the DOJ filing of a Notification and Report Form relating pursuant to this Agreement the HSR Act, the "Filing Fees") shall be borne 50% by Parent and the transactions contemplated hereby as required 50% 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 AgreementCompany. Each of Parent and the 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 will cause the expiration or termination of the applicable waiting periods filings 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 be considered for grant 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"early termination."
(b) Each of Parent and Acquisition Sub (and their respective Affiliates, if applicableSubject to the proviso to Section 7.04(d), on which shall be incorporated herein, mutatis mutandis, the one handCompany will, and the Companywill cause its Affiliates to, 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 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 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 promptly take any and all steps necessary to obtain all authorizations, clearances, consents, orders, waivers and other reasonable advance notice of all meetings approvals in connection with the filings under Section 6.03(a), and will comply with any additional requests for information, including requests for production of documents and production of witnesses for interviews or depositions by any Governmental Authority relating to Bodies, in connection with the Offer or the Merger, filings under Section 6.03(a) and (ii) give each other an opportunity obtain any third-party consents or waivers required pursuant to the terms of any Contracts set forth on Schedule 6.03(b); provided, that, such commercially reasonable efforts shall not include any requirement of the Company or any of its Affiliates to expend money, to induce a third party to grant a consent, to commence, defend or participate in each of such meetings, any litigation or offer or grant any accommodation (iiifinancial or otherwise) keep the other party reasonably apprised with respect to any oral communications with any Governmental Authority regarding the Offer third Person 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 productcontract counterparty.
(c) Each The Company will keep Parent reasonably apprised of Parentthe status of all filings and submissions referred to in Section 6.03(a), Acquisition Sub and including furnishing Parent with copies of notices or other communications received by 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 therewith. The Company to consummate the Offer and the Merger, in no event shall Parent or will not permit any of its Subsidiaries or Affiliates be obligated representatives to propose or agree to accept participate in any undertaking or conditionmeeting with any Governmental Body in respect of such filings and submissions unless it consults with Parent in advance and, to enter into any consent decreethe extent permitted by such Governmental Body, 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 gives 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, opportunity 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 attend and other Transactions contemplated by this Agreementparticipate thereat.
Appears in 1 contract
Regulatory Filings. Each Meritas Party shall (a) Each make any filings required 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 such Meritas Party or any of the DOJ a Notification and Report Form relating to this Agreement and the transactions contemplated hereby as required by such Meritas Party’s Affiliates under the HSR Act and other Antitrust Laws applicable to the Transaction as soon promptly as reasonably practicable from following the date following execution and delivery of this Agreement but Date and, with respect to any such filings required under the HSR Act, in no event later than ten five (105) Business Days following after the execution and delivery of this AgreementAgreement Date, and (yb) file comparable pre-merger or post-merger notification filings, forms and submissions comply at the earliest reasonable 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 Laws as soon as practicablefor additional information, and to obtain documents, or other materials received by such Meritas Party or 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 Meritas Party’s Affiliates 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 Buyer and Merger Sub 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 Laws with respect to the Offer and/or the Merger.
(b) any such filing or such transaction. Each of Parent and Acquisition Sub (and their respective Affiliates, if applicable), on the one hand, and the Company, on the other hand, Meritas Party shall promptly inform the other Buyer and Merger Sub of any oral communication from with, and provide copies of written communications with, any Governmental Authority regarding any of the transactions contemplated by this Agreement in connection with any such 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 transaction. Each Meritas 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 Reasonable Efforts to (i) give each other reasonable advance notice of all meetings with any Governmental Authority relating furnish to the Offer Buyer and Merger Sub 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, Transaction and (ii) promptly make obtain any filingsclearance required under the HSR Act and any other Antitrust Laws for the Closing and shall keep the Buyer and Merger Sub apprised of the status of any communications with, furnish and any inquiries or requests for additional information required in connection therewith from, any Governmental Authority and seek to obtain timely shall comply promptly with any such consents, permits, authorizations, approvals inquiry or waivers that the parties determine are required to be or should be made or obtained in connection with the transactions contemplated herebyrequest.
(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
Samples: Transaction Agreement (Nord Anglia Education, 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 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 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 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 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 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. The Company and Parent shall split on a 50/50 basis all 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 (other than normal filing fees that are imposed by Law on the Company).
(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 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 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 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 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 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(b). Any such disclosures, rights to participate or provisions of information by one party 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 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(a8.3a) are required to be or should be made, and whether any other consents, approvals, permits or authorizations not contemplated by Section 8.2(a8.3(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
Samples: Agreement and Plan of Merger (McCormick & Schmicks Seafood Restaurants Inc.)
Regulatory Filings. (a) Each of Parent shall use best efforts to take or cause to be taken all actions and Acquisition Sub (do or cause to be done all things that are necessary, proper or advisable to obtain all consents 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 approvals required by the HSR Act as soon as reasonably practicable from the date following execution and delivery Act. The “best efforts” of Parent for purposes of this Agreement but in no event later than ten (10) Business Days following Section 5.06 shall include Parent’s agreement to hold separate and divest or license such portion of the execution and delivery business, or such businesses, products and/or assets, of this AgreementParent or its Affiliates, and (y) file comparable pre-merger or post-merger notification filings, forms and submissions with any foreign Governmental Authority that is required by give any other Antitrust Laws commitment, 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 obtain the agreement of any Governmental Authority not to seek an injunction against or otherwise oppose the transactions contemplated hereby, on such objectionsterms as may be required by such Governmental Authority; provided, if anythat Parent shall not be required to take any such actions which, individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect (as measured prior to the FTC, the DOJ, Effective Time). If suit or other action is threatened or instituted by any other Governmental Authority or other Person may assert challenging the validity or legality of, or seeking to restrain the consummation of, the transactions contemplated by this Agreement, Parent shall use best efforts to avoid, resist, resolve or, if necessary, defend such suit or action. Parent shall pay all filing fees and other charges for the filings and submissions by the Parties and their respective Affiliates required under any applicable Antitrust Laws with respect to the Offer and/or the MergerHSR Act.
(b) Each In furtherance of Parent and Acquisition Sub (and their respective Affiliates, if applicableSection 5.06(a), on the one hand, and the Company, on the other hand, Parent shall (i) respond as promptly inform the other of as practicable to any communication inquiries or requests received 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 documentation, and (ii) use best efforts to cause the waiting periods or other requirements under the HSR Act to terminate or expire at the earliest possible date (including with respect to filings under the HSR Act, seeking “early termination” of the waiting period under the HSR Act). Parent shall (A) allow the Representative to review and comment on any and all regulatory filings as contemplated by Section 5.06(a) or any requests or inquiries as contemplated in this Section 5.06(b) and consult the Representative prior to the submission of any and all of the foregoing (except that Parent shall be permitted to remove any commercially sensitive information before sharing with the Representative, or Parent’s legal counsel may share complete versions on a counsel-to-counsel basis with the Representative’s legal counsel); (B) promptly notify the Representative of any written communication to Parent or its Affiliates from any Governmental Authority with respect and, subject to applicable Law, permit the transactions contemplated by this Agreement pursuant Representative to the HSR or review in advance 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 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 Representative in connection therewith); (C) 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 filings, investigation or inquiry concerning this Agreement unless it consults with the Offer Representative in advance and, to the extent appropriate or permitted by such Governmental Authority, gives the Representative the opportunity to attend and participate, or to designate a representative to attend and participate, thereat; (D) furnish the Merger, (vi) provide each other (or counsel of each party, as appropriate) Representative with copies of all written correspondence, filings and communications (and memoranda setting forth the substance thereof) between it and its Affiliates and their respective representatives on the one hand, and any Governmental Authority or members of its staff on the other hand, with respect to this Agreement (except that Parent shall be permitted to remove any commercially sensitive information before sharing with the Representative, or Parent’s legal counsel may share complete versions on a counsel-to-counsel basis with the Representative’s legal counsel); (E) promptly provide the Representative with any information or documentation reasonably required by the Representative in order to prepare any filings required by the HSR Act or in order to respond to any inquiry from any Governmental Authority relating in relation to the Offer HSR Act (except that Parent shall be permitted to remove any commercially sensitive information before sharing with the Representative, 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 Parent’s legal counsel may be made share complete versions on a counsel-only to-counsel basis to with the extent required under applicable Law or as appropriate to protect confidential business information or the attorney client privilege or attorney work product.
Representative’s legal counsel); and (c) Each of Parent, Acquisition Sub and the Company shall cooperate with one another in good faith to (iF) promptly determine whether inform the Representative of any filings not contemplated by Section 8.2(a) are required to be or should be made, material developments 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 keep the Representative reasonably informed of the progress. In the event that any Governmental Authority under issues, or threatens to issue, a Second Request for Information, or any Governmental Authority or other applicable Law in connection with the transactions contemplated herebyPerson institutes, and (ii) promptly make or threatens to institute, 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 suit or action to be taken by either Parent challenging the validity 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 restrictionlegality of, or take or commit seeking to take any action (i) the effectiveness or consummation of which is not conditional on restrain 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 materialityof, 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. , then all costs and expenses (including legal fees and expenses) incurred by the Parties or their respective Affiliates in connection with such Second Request for Information (or similar request under any other antitrust or competition Law), suit or action shall be borne by Parent.
(c) The Company shall agree, if requested by coordinate and cooperate with Parent in writing, to commit to take any exchanging such information and providing such assistance as Parent may reasonably request in connection with all 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 Agreementforegoing.
Appears in 1 contract
Regulatory Filings. From the Execution Date until the Closing, each of Buyer and Sellers 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 Affiliatessuch Party or any of its Affiliates under any applicable Laws, if applicable)including the HSR Act, 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 by this Agreement, and to pay any fees due of it in connection with such filings, as required by the HSR Act promptly as soon as is reasonably practicable from the date following execution and delivery of this Agreement but in no any event later than within ten (10) Business Days following after the execution Execution Date (except for such filings that are customarily made after the assignment of properties similar to the Assets), (b) cooperate with and delivery of this Agreement, assist the other Party and (y) file comparable pre-merger or post-merger notification filings, forms and submissions with any foreign Governmental Authority furnish all information in such Party’s possession that is required by any necessary in connection with such other Antitrust Laws as soon as reasonably practicable Party’s filings and in obtaining the relevant Consent 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 filingsapplicable Governmental Authority, (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 practicable, (including requesting early termination thereof) 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 as promptly as is reasonably practicable, (d) to the HSR extent permitted under applicable Law, promptly inform, and provide copies to, the other Party of any communication from or to, and any other Antitrust Laws with proposed understanding or agreement with, any Governmental Authority in respect of such filings, (e) to which any such filings have been madethe extent permitted under applicable Law, then such party shall use its reasonable best efforts to make, or cause to be made, as soon as reasonably practicable consult and after consultation cooperate in advance with the other party, an appropriate response in compliance with such request. In connection with and without limiting the foregoing, Party prior 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 uponmaking, and consider in good faith the views of the other with respect toParty in connection with, all written communications (including any analyses, appearances, presentations, memoranda, briefs, arguments and opinions) opinions made or submitted by or on behalf of any Party in connection with a all meetings, actions and proceedings with 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 Authorities relating to the Offer or the Mergersuch filings, and (viif) cooperate and provide each other with a reasonable opportunity to participate incomply, and consider in good faith the views of the other with respect toas promptly as is reasonably practicable, 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 requests received by either Parent or the Company to consummate the Offer and the Merger, in no event shall Parent such Party or any of its Subsidiaries Affiliates under the HSR Act and any other Laws for additional information, documents or Affiliates be obligated other materials. Neither Party shall participate in any meeting or discussion with any Governmental Authority with respect to propose such filings 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 writingor enter into any agreement with any Governmental Authority, unless, to commit the extent permitted under applicable Law, it consults with the other Party in advance and, to take the extent permitted by the Governmental Authority, gives the other Party reasonable prior notice of, and an opportunity to attend and participate in, such meeting. Notwithstanding the foregoing, nothing contained in this Agreement shall be construed so as to require Buyer or Sellers, or any of their respective Affiliates, without its written consent, to sell, license, dispose of, hold separate or operate in any specified manner any assets or businesses of Buyer or Sellers (or to require Buyer or Sellers or any of their respective Affiliates to agree to any of the forgoing actions foregoing). The obligations of each party under this Section 6.3 to use commercially reasonable efforts with respect to antitrust matters shall be limited to compliance with the assets or business reporting provisions of the Company in furtherance of HSR Act and other applicable Laws and with its obligations under 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 Agreement6.3.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Azure Midstream Partners, Lp)
Regulatory Filings. (a) Each of Parent The Company and Acquisition Sub (and their respective Affiliates, if applicable), on the one handSeller shall, and shall cause their Affiliates to, (i) promptly make or cause to be made all filings, notices, applications and submissions required to be made under any Laws applicable to the Company, on the other hand, shall (x) file with the FTC Company and the Antitrust Division Seller for the 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, (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 (yiii)(A) file comparable pre-merger or post-merger notification filings, forms supply promptly any additional information and submissions documentary material that may be 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 with make any information further filings 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 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 HSR Filing, within seven 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 “HSR Filing”) and any other material Laws or regulations applicable to the transactions contemplated herein. The Company 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 Purchaser shall be responsible for the extent reasonably practicable filing fees under the 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 To the extent permitted by applicable Law and the applicable Governmental Entity, the Company shall cooperate and the 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 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 1 contract
Samples: Stock Purchase Agreement (Amag Pharmaceuticals Inc.)
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
Samples: Merger Agreement (Q2 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
Samples: Stock Purchase Agreement (Olin Corp)
Regulatory Filings. (a) Each The Company shall make or cause to be made all filings and submissions required of Parent the Company under the HSR Act or any other Laws applicable to the Company and Acquisition Sub its Subsidiaries for the consummation of the transactions contemplated herein (and their respective Affiliatesincluding, if applicable), on the one handas promptly as practicable, and in any event within ten (10) business days after the Companydate hereof, on the other hand, shall (x) file with the FTC and the Antitrust Division an appropriate filing of the DOJ a Notification and Report Form relating pursuant to this Agreement and the HSR Act with respect to the transactions contemplated hereby as hereby), and shall use reasonable best efforts to take or cause to be taken all actions and do or cause to be done all things that are necessary, proper or advisable to obtain all consents and approvals required by the HSR Act as soon as reasonably practicable from the date following execution such filings and delivery submissions.
(b) In furtherance of this Agreement but in no event later than ten (10) Business Days following the execution and delivery of this AgreementSection 6.03(a), 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 respond as promptly as practicable to any information that may be required in order to make such filings, (iii) supply inquiries or requests received from any Governmental Authority for 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 Lawsdocumentation, and (ivii) use reasonable best efforts to take all action necessary to cause the expiration or termination of the applicable waiting periods or other requirements under the HSR Act and all other applicable antitrust and competition laws to terminate or other Antitrust Laws as soon as practicable, and to obtain any required consents under any other Antitrust Laws applicable to expire at 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, earliest possible date (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 filings under the Offer and/or HSR Act, seeking “early termination” of the Merger.
waiting period under the HSR Act). The Company shall (bA) Each of Parent and Acquisition Sub (and their respective Affiliates, if applicable), on promptly notify the one hand, and the Company, on the other hand, shall promptly inform the other Purchaser of any written communication from any Governmental Authority regarding any of to the transactions contemplated by this Agreement in connection with any filings Company 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 its Affiliates from any Governmental Authority with respect to the transactions contemplated by this Agreement pursuant and, subject to applicable Law, permit the HSR or Purchaser to review in advance any other Antitrust Laws with respect proposed written communication 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 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 filings, investigation or inquiry concerning this Agreement unless it consults with the Offer 31 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 it and its Affiliates and their respective representatives on the one hand, and 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 members of its staff on the other with respect tohand, all material deliberations with respect to all efforts to satisfy this Agreement. Notwithstanding the conditions set forth in clauses (A) and (C)(1) of Annex A and Section 9.1(c). Any such disclosuresforegoing, rights to participate or provisions of information by one party prior 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 agreeing to 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 described in or consummation of which is not conditional on the consummation of the Offer and the Merger or (ii) contemplated by this Section 6.03 that individually or in the aggregate (x) is or would reasonably be expected to be materially adverse (with materialityimpact the Company or any of its Subsidiaries after the Effective Time, for purposes of this provision, being measured in relation to the size Company shall obtain the prior written consent 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 AgreementPurchaser. 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.6.04
Appears in 1 contract
Samples: Merger Agreement
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 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 after the date following execution and delivery of this Agreement but in no event later than ten (10) Business Days following hereof, with respect to 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 FTCTransactions, 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 reasonable best 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 6.06; 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 applicable waiting periods to terminate or expire at the earliest possible date. The filing fee for the HSR Act and seek to obtain timely for 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 other Regulatory Approval for the consummation of the Offer and the Merger or (ii) that individually or in the aggregate (x) is or would reasonably Transactions shall 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 paid 100% 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 AgreementPurchaser.
Appears in 1 contract
Samples: Business Combination Agreement (Magnum Opus Acquisition LTD)
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
Samples: Merger Agreement (Chelsea Therapeutics International, Ltd.)
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
Samples: Merger Agreement (Acxiom Corp)
Regulatory Filings. From the Execution Date until the Closing:
(a) Each of Parent Buyer and Acquisition Sub (Seller shall, and shall cause their respective Affiliates, if applicable), on Affiliates to (i) make or cause to be made the one hand, and the Company, on the other hand, shall (x) file filings required of such Party or any of its Affiliates under any Laws 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 by this Agreement, including the HSR Act (to the extent applicable) and to pay any fees due of it in connection with such filings, as required by promptly as is reasonably practicable, and in any event within ten Business Days after the Execution Date (provided that Seller shall pay one-half of the filing fee due in connection with any one filing pursuant to the HSR Act as soon as reasonably practicable from the date following execution and delivery a result of this Agreement but and Buyer shall pay any remaining filing fees due in no event later than ten (10) Business Days following connection with all filings pursuant to 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 filingsHSR Act), (ii) supply cooperate with the other Party and furnish all information in such Party’s possession that is necessary in connection with any information that may be required in order to make such other Party’s 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 Reasonable Efforts to cause the expiration or termination of the applicable notice or 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 as promptly as is reasonably practicable, (iv) promptly inform the other Party of any communication from or to, and any proposed understanding or agreement with, any Governmental Authority in respect of such filings, (v) 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 and proceedings with Governmental Authority Authorities relating to this Agreement such filings, (vi) comply, as promptly as is reasonably practicable, with any requests 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, (vii) use Reasonable Efforts to resolve any objections as may be asserted by any Governmental Authority with respect to the transactions contemplated by this Agreement pursuant Agreement, and (viii) use Reasonable Efforts to the HSR contest and resist any action 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, proceeding instituted (or cause threatened in writing to be made, instituted) by any Governmental Authority challenging the transactions contemplated by this Agreement as soon as reasonably practicable and after consultation with the other party, an appropriate response violative of any Law. If a Party intends to participate 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 any meeting 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 such filings, it shall give 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 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 such meeting.
(b) In connection with any such filings, Buyer shall cooperate in good faith the views of the other with respect to, Governmental Authorities and undertake promptly any and 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 action 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 complete lawfully 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
Samples: Asset Purchase Agreement (Crestwood Midstream Partners LP)
Regulatory Filings. (a) Each of Parent Within twenty calendar days after the date ------------------ hereof, Patriot, 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, Patriot, 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 1 contract
Samples: Merger Agreement (Patriot American Hospitality Operating Co\de)
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 (1) 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, and (2) the applicable Governmental Authority in each of Austria and Germany the notifications as required by 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 AgreementAgreement (with respect to the Notification and Report Form referred to in clause (1) above) or fifteen (15) Business Days following the execution and delivery of this Agreement (with respect to the notifications referred to in clause (2) above), (y) submit to the Israeli Anti Trust Authority (“IAA”) a joint (by Company and Parent) request to exempt the parties from filing a notification under the Israeli Restrictive Trade Practices Law-1988 in connection with the Merger (“Merger Notification”), as soon as practicable after the date of this Agreement but in no event later than five (5) Business Days following the execution and delivery of this Agreement (and, if such joint request is rejected by the IAA, file with the IAA, as soon as practicable after receipt of such rejection by the IAA but in no event later than five (5) Business Days thereafter), such Merger Notification, and (yz) 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 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 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 OCS to comply with applicable Law (if and when required to do so).
(c) As soon as practicable after the date of this Agreement, and no later than five (5) Business Days after the date hereof, the Company shall instruct its Israeli counsel, advisors and/or accountants to prepare and file with the Investment Center an application to obtain the Investment Center Approval. Without limiting the generality of Section 7.2, each of the Company and Parent shall cause their respective Israeli counsel, advisors and accountants to coordinate all activities, and to cooperate with each other, with respect to the preparation and filing of such application and in the preparation of any written or oral submissions that may be necessary, proper or advisable to obtain the Investment Center Approval. The final text of such application shall be subject to the prior written confirmation of Parent or its counsel (which shall not be unreasonably withheld or delayed). The Company and its Representatives shall not make any application to, or conduct any negotiation with, the Investment Center with respect to matters relating to the Investment Center Approval without prior coordination with Parent or its Representatives, and, to the extent practicable, will enable Parent’s Representatives to participate in all discussions and meetings with the Investment Center relating thereto. To the extent that the Parent’s Representatives elect not to participate in any such meeting or discussion, the Company’s Representatives shall provide the Parent’s Representatives a report of the discussions and/or meetings held with the Investment Center. Subject to the terms and conditions hereof, the Company shall use commercially reasonable efforts to promptly take, or cause to be taken, all action and to do, or cause to be done, all things necessary, proper or advisable under applicable Laws to obtain the Investment Center Approval, as promptly as practicable.
(d) 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.
(ce) 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.
(df) 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 materialityg) Without limiting the provisions of Section 7.2(f) 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.
(h) 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 1 contract
Samples: Merger Agreement (Given Imaging 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 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 makeobtain, at its expense, all waivers, permits, consents, approvals or other authorizations from Governmental Authorities, and to effect all registrations, filings and notices with or to Governmental Authorities, as may be required for such party to consummate the transactions contemplated by this Agreement and to otherwise comply with all applicable Laws in connection with the consummation of the transactions contemplated by this Agreement.
(b) Holdco shall cause each Acquired Company to, and each of the Sellers and the Purchaser shall, (i) within five (5) Business Days after the date hereof, make or cause to be mademade all filings and submissions required under the HSR Act (the filing fees to be paid by the Purchaser) and seek “early termination” of the waiting period under the HSR Act, as soon as reasonably practicable and after consultation (ii) make any further filings or information submissions pursuant thereto that may be necessary, proper or advisable; provided, however, that notwithstanding anything to the contrary in this Agreement, the Purchaser shall not be obligated (A) to commence or defend any Legal Proceeding required to obtain any such waiver, permit, consent, approval or other authorization, or (B) to sell or dispose of or hold separately (through a trust or otherwise) any assets or businesses. The Seller Representative 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.
(c) In furtherance of Section 6.03(b), to Holdco shall cause each Acquired Company to, and each of the extent reasonably practicable Sellers and unless prohibited by applicable Law or by the applicable Governmental AuthorityPurchaser shall, the parties hereto agree to (i) give each other reasonable advance notice of all meetings with respond as promptly as practicable to any inquiries or requests received from any Governmental Authority relating to the Offer for additional information or the Mergerdocumentation, and (ii) give use reasonable best efforts to cause the 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, with respect to filings under the HSR Act, seeking “early termination” of the waiting period under the HSR Act). Holdco shall cause each Acquired Company to, and each of the Sellers and the Purchaser shall, (A) promptly notify each other an opportunity of any written communication from any Governmental Authority and, subject to participate in each of such meetingsapplicable Law, (iii) keep permit the other party reasonably apprised with respect to review in 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 party 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 filings, investigation or inquiry concerning this Agreement unless such party consults with the Offer other party in advance and, to the extent permitted by such Governmental Authority, give the other party the opportunity to attend and participate thereat; and (C) furnish 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 the such party and its Affiliates and their respective 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 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 Holdco shall cause each Acquired Company shall agreeto, if requested by Parent in writing, to commit to take any and each of the forgoing Sellers and the Purchaser shall, fully coordinate their efforts and cooperate with regard to any inquiries, requests, suits or actions by a Governmental Authority; provided that if there is a difference of opinion with respect to such matters, the assets or business of Purchaser shall make 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 Agreementfinal decision.
Appears in 1 contract
Regulatory Filings. (a) Each If the parties hereto determine that a filing with the United States Federal Trade Commission and the United States Department of Justice is required under applicable laws with respect to (i) the Shares (or the Parent and Acquisition Sub Series X Shares), (and their respective Affiliatesii) the exercise of Warrants, if or (iii) to permit the exercise of any rights that can be exercised by the holders of the Shares (or Parent Series X Shares) following any Event of Noncompliance or Special Event of Noncompliance (each as defined in the Certificate of Designations or the Parent Certificate of Designations, as applicable), on then the one handparties shall, and the Companyas promptly as practicable, 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 (A) the execution and delivery of this Agreement, and (y) file comparable pre-merger or post-merger notification filings, forms and submissions Agreement 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 respect to the Offer and/or the Merger as soon as practicable, and to avoid any impediment to Shares (or 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 de-SPAC Transactions with respect to the Offer and/or Parent Series X Shares), (B) following notice from Purchaser to the MergerCompany with respect to Purchaser’s planned exercise of the Warrants, or (C) the delivery of the applicable notice of an Event of Noncompliance or Special Event of Noncompliance (each as defined in the Certificate of Designations or the Parent Certificate of Designations, as applicable), as applicable, file or cause to be filed with the United States Federal Trade Commission and the United States Department of Justice, the notification and report form required for the transactions contemplated hereby and any supplemental information requested in connection therewith pursuant to the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended, and the rules and regulations promulgated thereunder (“HSR Act”). Further, if the Purchaser determines that any other filing or approval with or from any Governmental Entity or any other Person is required pursuant to applicable Law or Contract to permit the exercise of any rights that can be exercised by the holders of the Shares (or Parent Series X Shares) following any Event of Noncompliance or Special Event of Noncompliance, then the Company shall, as promptly as practicable following such Event of Noncompliance or Special Event of Noncompliance, take all actions reasonably requested by the Purchaser with respect to such filings or approvals to permit the exercise of any rights that can be exercised by the holders of the Shares (or Parent Series X Shares) following any Event of Noncompliance or Special Event of Noncompliance, including with respect to Aspiration Financial, LLC (or any other Subsidiary of the Company subject to comparable Law), recommending to the board of any registered investment company for which it acts as investment adviser to take or recommend all actions reasonable necessary to effect the foregoing (including calling any requisite meetings, approving any requisite Contracts, approving and mailing requisite proxy materials and recommending approval of the foregoing to applicable shareholders). The parties hereto 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 to effect the foregoing.
(b) Each To effect the foregoing, the parties hereto shall: (i) use their commercially reasonable efforts to promptly obtain any clearance required under the HSR Act, including by requesting the termination or the acceleration of Parent and Acquisition Sub any applicable waiting or review periods thereunder; (and their respective Affiliates, if applicable), on ii) keep each other apprised of the one handstatus of any communications with, and the Company, on the other hand, shall promptly inform the other of any communication inquiries or requests for additional information from any Governmental Authority regarding Entity or any other Person; and (iii) comply promptly with any such inquiry or request and supply to any Governmental Entity or any other Person without undue delay any additional information requested. None of the parties hereto shall participate in any meeting or material discussion with any Governmental Entity or any other Person with respect of any such filings, applications, investigation, or other inquiry without giving the other parties prior notice of the meeting or discussion and, to the extent permitted by the relevant Governmental Entity or other Person, the opportunity to attend and participate in such meeting or discussion (which, at the request of any of the parties, shall be limited to outside antitrust counsel only).
(c) Nothing in this Agreement, including this Section 5.5, shall require the parties hereto or any of their respective Affiliates to: (i) proffer to, agree to, or to sell, divest, lease, license, transfer, dispose of or otherwise encumber or hold separate, before or after the date of this Agreement, any of its assets, or the Shares (or the Parent Series X Shares) (or to consent thereto); (ii) proffer, agree to or implement any changes in (including through a licensing arrangement), or any restrictions on or other impairment of, its ability to use, own, operate or take any other actions with respect to any of its assets, the Shares (or the Parent Series X Shares) or its ability to vote, transfer, receive dividends or otherwise exercise full ownership or other rights with respect to the Shares (or the Parent Series X Shares); or (iii) take any action to overturn, defend against or oppose any action by any Governmental Entity to prohibit the transactions contemplated by this Agreement or prevent, 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 1 contract
Samples: Series X Preferred Stock Purchase Agreement (InterPrivate III Financial Partners 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 and coordinate with Without limiting 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 generality of the applicable waiting periods under the HSR Act or other Antitrust Laws as soon as practicable, parties’ undertakings pursuant to Section 5.2(a) 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 applicableSection 5.2(b), 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 each 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 shall: (i) 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 three (3) 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. Purchaser will shall timely pay any filing fees assessed under the HSR Act or any other applicable Antitrust Laws.
(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 5.2(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 5.2(c), 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 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 1 contract
Regulatory Filings. (a) Each of Parent, Purchaser and the Company shall coordinate and cooperate with one another and shall each use commercially reasonable efforts to (i) comply with, take, or cause to be taken, all appropriate action, and do, or cause to be done, all things necessary, proper or advisable under, and shall each refrain from taking any action that would impede compliance with, all Legal Requirements, (ii) obtain from any Governmental Entities any consents, licenses, permits, waivers, clearances approvals, authorizations or orders required to be obtained or made by Parent and Acquisition Sub (and or the Company or any of their respective AffiliatesSubsidiaries, if applicableor avoid any action or proceeding by any Governmental Entity (including, without limitation, those in connection with the HSR Act), on the one hand, and the Company, on the other hand, shall (x) file 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 and the consummation of the transactions contemplated hereby (10including the Offer and the consummation of the Merger), (iii) Business Days following make or cause to be made the execution and delivery applications or filings required to be made by Parent or the Company or any of this Agreementtheir respective Subsidiaries under or with respect to the HSR Act, the Securities Act, the Exchange Act, or any applicable state or securities or "blue sky" laws or the securities laws of any foreign country, 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 applicable laws in connection with the date following authorization, execution and delivery of this Agreement but and the consummation of the transactions contemplated hereby (including the Offer and the consummation of the Merger), and pay any fees due of it in no event later than ten connection with such applications or filings, as promptly as is reasonably practicable, (10iv) Business Days following comply at the execution earliest practicable date with any request under or with respect to the HSR Act and delivery any such other applicable laws 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 transactions contemplated by this AgreementAgreement (including the Offer and the consummation of the Merger), and (v) coordinate and cooperate with, and give due consideration to all reasonable additions, deletions or changes suggested by the other party in connection with, making (A) any filing under or with respect to the HSR Act or any such other applicable laws and (B) any filings, conferences or other submissions related to resolving any investigation or other inquiry by any such Governmental Entity. Each of Parent and the Company shall will cause all documents that it is responsible for filing with any Governmental Entity under this Section 6.7(a) to comply in all material respects with all applicable Legal Requirements.
(i) cooperate Without limiting the generality of the foregoing, each of the Company and coordinate Parent will file the Notification and Report Forms with the United States Federal Trade Commission ("FTC") and the Antitrust Division of the United States Department of Justice (the "DOJ") as required by the HSR Act on or before the date that is five business days following the public announcement of this Agreement and will promptly file with the appropriate Governmental Entities any other in filings reasonably determined by the making of such filings, parties to be necessary under any other antitrust and trade competition laws; and
(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 Notwithstanding anything set forth in clauses (ASection 6.7(a)(i) 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 consentsprovision hereof, 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 receipt of any filings, furnish information required in connection therewith and seek to obtain timely any such consents, permits, authorizations, necessary governmental approvals or waivers that clearances (including under 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 AgreementHSR Act), in connection with any filing or submission required or action to be taken by either neither Parent or the Company to consummate the Offer and the Merger, in no event shall Parent or nor any of its Subsidiaries shall be required to take any Action of Divestiture (as defined below) which would be reasonably likely to materially and adversely impact affect Parent (together with its Subsidiaries) (a "Restricted Divestiture"). For purposes of this Agreement, an "Action of Divestiture" shall mean any action under which Parent (together with its Subsidiaries) shall be required to sell, hold separate or Affiliates be obligated to propose otherwise dispose of or conduct its business in a specified manner, or agree to accept any undertaking sell, hold separate or condition, to enter into any consent decree, to make any divestiture otherwise dispose of or accept any operational restrictionconduct its business in specified manner, or take permit the sale, holding separate or commit to take other disposition of, 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 assets or the Merger, or (B) Parent’s ownership or operation conduct of any material portion of the its business or assets of the Company and its Subsidiaries, taken as in 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 Agreementspecified manner.
Appears in 1 contract
Samples: Merger Agreement (Acxiom Corp)
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 Xxxx Xxxxx Xxxxxx Antitrust Improvements Act of 1976, as amended (the “HSR Act”) and appropriate filings under any other Laws (including the Xxxxxxx Act, as amended, the Xxxxxxx 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.
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Regulatory Filings. (a) Each During the Interim Period, each of Parent the Sellers and Acquisition Sub (the Buyer 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 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 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 to cause the expiration or termination of the applicable waiting periods under the HSR Act or other Antitrust Laws as soon as practicable, actions and to obtain any required consents under any other Antitrust Laws applicable do, or cause to the Offer and/or the Merger be done, all things reasonably necessary, proper or advisable to consummate and make effective as soon promptly as practicable, and to avoid any impediment to practicable the consummation of the Offer or the Merger under any Antitrust Laws, including using reasonable best efforts to take transactions contemplated by this Agreement; (ii) make 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 filings 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 consummation of the transactions contemplated by this Agreement in connection with required under any filings applicable Law, and any other required filings, notices, applications or investigations with, by or before other submissions required pursuant to 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 applicable Law; (iii) obtain from any Governmental Authority any consents, licenses, permits, waivers, approvals, authorizations, clearances or orders advisable or required to be obtained by the Buyer, the Sellers, the Company or any of their respective Affiliates or Subsidiaries as promptly as reasonably practicable, including under any applicable Law; (iv) as promptly as reasonably practicable, make any other required or advisable registrations, declarations, submissions and filings with respect to the transactions contemplated by this Agreement pursuant required under any applicable Law; and (v) execute and deliver any additional instruments to consummate the transactions contemplated by this Agreement. Without limiting the foregoing, the Buyer shall, as promptly as practicable and in any event prior to the HSR or End Date, obtain the registration of this Agreement with the National Bank of Kazakhstan (and any other Antitrust Laws Kazakhstan currency control requirements as may be applicable to this Agreement) and obtain an evidence of the National Bank of Kazakhstan assigning a record registration number to this Agreement in accordance with respect the applicable Law, either in the form of a stamp on the copy of this Agreement or in other form acceptable to the Sellers. The Buyer shall notify the Agency of the Republic of Kazakhstan for Regulation and Development of the Financial Market within fourteen (14) business days in Kazakhstan (which any such filings have been madeshall mean days on which banks are open for business in Kazakhstan) from the acquisition of the Transferred Shares.
(b) In furtherance, then such party and not in limitation, of the foregoing, the Sellers and the Buyer shall, and shall use its reasonable best efforts cause their respective Affiliates to, (i) furnish to make, or cause to be made, the other Parties as soon promptly as reasonably practicable and after consultation all information required for any application or other filing to be made by the other Parties pursuant to any applicable Law in connection with the transactions contemplated by this Agreement; (ii) promptly notify the other Parties of the making or commencement of any request or proceeding by or before any Governmental Authority, any communication between that Party and any applicable Governmental Authority and of any communication received or given in connection with any claim, action, litigation, proceeding or demand by a private party, an appropriate response in compliance with each case regarding the transactions contemplated by this Agreement (including any communication relating to any potential remedies, commitments or undertakings, the timing of any waivers, consents, approvals, permits, orders, decrees, injunctions or other agreements or authorizations (including the expiration or termination of any waiting periods)); and (iii) keep the other Parties informed as to the status of any such request, proceeding or communications. The Parties may, as they deem advisable and necessary, designate any competitively sensitive materials to be provided, or made available, to the other Parties in writing or orally in discussions, emails, phone calls or meetings or otherwise under this Section 6.3 as “outside counsel only.” 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, officers, or directors of the recipient without the advance written consent of the Party providing such materials, provided that materials provided pursuant to this Section 6.3(b) may be redacted (x) to remove references concerning the valuation of the Company or any of its Subsidiaries, (y) as necessary to comply with contractual obligations, and (z) as necessary to address reasonable privilege concerns. In connection with and without limiting the foregoingaddition, to the extent reasonably practicable and unless prohibited by applicable Law or by acceptable to the applicable Governmental Authority, the parties hereto agree to (i) give each other reasonable advance notice of all discussions, telephone calls, and 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 a Governmental Authority regarding the Offer or transactions contemplated by this Agreement shall include Representatives of both the MergerBuyer (on the one hand) and the Sellers (on the other hand), unless the Buyer (ivon the one hand) and the Sellers (on the other hand) mutually agree otherwise. Subject to applicable Law, the Parties will consult and cooperate with each other in the filing of connection with any analyses, appearances, presentations, memoranda, briefs, arguments, opinions and proposals made or other written communications explaining submitted to any Governmental Authority regarding the transactions contemplated by this Agreement by or defending the Offer on behalf of any Party.
(c) The Buyer and the MergerSellers shall jointly control the strategy for obtaining any consents, articulating any regulatory or competitive argument and/or responding approvals, waivers, Company Permits and other authorizations from all Governmental Authorities in connection with the transactions contemplated by this Agreement and, subject to requests or objections made by any Governmental Authorityapplicable Laws relating to the exchange of information, (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 and conduct all matters, including all correspondence, 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 consistent with their respective obligations hereunder. In exercising the foregoing rights, each Party shall use its reasonable best efforts 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 keep the other with respect to, all material deliberations Parties informed with respect to all filings made under this Section 6.3 and material developments related thereto. The Buyer and the Sellers shall use their reasonable best efforts to satisfy jointly submit the conditions set forth in clauses (A) application for approval by the 30 Turkish Competition Board and (C)(1) the Specified Company Permits pursuant to this Section 6.3, together with all required documentation, data, information and a petition to maintain confidentiality 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 application to the extent required under permitted by the applicable Law or as appropriate Law, to protect confidential business information or the attorney client privilege or attorney work product.
relevant Governmental Authorities, within fifteen (c15) Each Business Days from the date hereof and in no event later than forty-five (45) Business Days from the date hereof unless extended by written agreement of Parent, Acquisition Sub the Buyer 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 herebySellers.
(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 the Buyer or its Affiliates be required to (i) defend or contest through litigation on the merits any claim asserted in court or in another tribunal by any party in order to avoid entry of, or to have vacated or terminated, any order, writ, judgment, injunction, decree, ruling, stipulation, directive, assessment, subpoena, verdict, determination or award issued, promulgated or entered, by or with any Governmental Authority (whether temporary, preliminary or permanent) that would prevent the Closing; (ii) propose, negotiate, commit to, or effect, by consent decree, hold-separate orders or otherwise, the sale, divestiture, license or disposition of any of its assets, properties or businesses or of the assets, properties or businesses to be acquired by it pursuant to this Agreement as are required to be divested in order to avoid the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other Order in any proceeding that would otherwise have the effect of materially delaying or preventing the consummation of the transactions contemplated by this Agreement; (iii) terminate, modify, transfer or take any other action with respect to any existing relationships or contractual rights and obligations of the Buyer or any of its Subsidiaries Affiliates; or Affiliates (iv) in the event that any permanent or preliminary injunction or other Order is entered or becomes reasonably foreseeable to be obligated to propose entered in any proceeding that would make consummation of the transactions contemplated by this Agreement unlawful or agree to accept any undertaking that would prevent or conditiondelay consummation of those transactions, to enter into any consent decreeappeal such an order, to make any divestiture or accept any operational restriction, post a bond or take or commit to take any action of the steps contemplated by clauses (i) – (iii) of this Section 6.3(d) necessary to vacate, modify or suspend such injunction or Order; provided that the effectiveness or consummation Buyer shall, and shall cause its Affiliates to, conduct any actions contemplated by clauses (i) – (iii) of which is not conditional on the consummation of the Offer and the Merger or (iithis Section 6.3(d) that individually or in the aggregate (x) is or would not reasonably be expected to be materially adverse (with materiality, for purposes of this provision, being measured in relation material to the size of the Company and its Subsidiaries taken as a whole) to (A) the Company Buyer 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 wholewhole (any such actions contemplated in this Section 6.3(d), but subject to the proviso contemplated in this Section 6.3(d), a “Burdensome Condition”).
(e) Whether or (y) would reasonably not the Closing occurs, each Party shall bear its own expenses for counsel fees relating to filings or other matters required under any applicable Law and shall be expected responsible for its respective out-of-pocket fees and expenses in responding to deny Parent the material benefit any request for information in connection with obtaining any authorization, consent or approval of the bargains contemplated by any Governmental Authority with respect to the transactions contemplated by this Agreement. The Company shall agree.
(f) During the Interim Period, if requested by Parent in writing, to commit to take any none of the forgoing actions with respect to Sellers or the assets or business Buyer shall, and each of the Company Sellers and the Buyer shall cause its respective Affiliates not to, do anything, including entering into any Competitive Transaction or making any filing under any applicable Law in furtherance of this Section 8.2; provided, howeverconnection with such transaction, that would reasonably be expected to prevent or delay any such action may be conditioned upon filings or approvals required for the consummation of the Merger and other Transactions transactions contemplated by this AgreementAgreement under any applicable Law.
(g) The Sellers and the Buyer shall use their respective best efforts to deliver all documents, materials and information that are necessary to consummate the transactions pursuant to the procedures set forth in items 1 and 2 of Exhibit E, following the satisfaction of the conditions set forth in Section 7.1(b) (Governmental Approvals).
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Regulatory Filings. (a) Each of Parent Parent, the Company and Acquisition Sub the Shareholders (and if necessary) shall (i) make or cause to be made all filings required of each of them or any of their respective Affiliates, if applicable), on the one hand, and the Company, on the other hand, shall Subsidiaries or Affiliates under (x) file the HSR Act or other Antitrust Laws (y) PURA and (z) Section 203 of the Federal Power Act, in each case with respect to the FTC transactions contemplated hereby as promptly as practicable and, in any event, within ten Business Days after the date of this Agreement in the case of (x) and five Business Days after the date of this Agreement in the case of (y) and (z), (b) comply at the earliest practicable date with any request under the HSR Act or other Antitrust Laws for additional information, documents, or other materials received by each of them or any of their respective subsidiaries or Affiliates from the FTC, the Antitrust Division of the DOJ a Notification United States Department of Justice or any other Governmental Body in respect of such filings or such transactions, and Report Form relating (c) cooperate with each other in connection with any such filing (including, to this Agreement 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, the Antitrust Division of the United States Department of Justice or other Governmental Body with respect to any such filing or any such transaction. Each such party shall use its reasonable best efforts to furnish to each other all information required for any application or other filing to be made pursuant to any applicable law in connection with the transactions contemplated hereby as required by this Agreement. Each such party shall promptly inform the other parties hereto of any oral communication with, and provide copies of written communications with, any Governmental Body regarding any such filings or any such transaction. No party hereto shall independently participate in any formal meeting with any Governmental Body in respect of any such filings, investigation, or other inquiry without giving the other parties hereto prior notice of the meeting and, to the extent permitted by such Governmental Body, the opportunity to attend and/or participate. Subject to applicable Law, the parties hereto will consult and cooperate with one another in connection with any analyses, appearances, presentations, memoranda, briefs, arguments, opinions and proposals made or submitted by or on behalf of any party hereto relating to proceedings under the HSR Act Act, other Antitrust Laws, PURA or the Federal Power Act. Any party may, as soon it deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other parties under this Section 6.4 as reasonably practicable “outside counsel only.” Such materials and the information contained therein shall be given only to the outside legal counsel of the recipient and will not be disclosed by such outside counsel to employees, officers, or directors of the recipient, unless express written permission is obtained in advance from the date following execution source of the materials.
(b) Each of Parent and delivery of the Company shall use its reasonable best efforts to resolve such objections, if any, as may be asserted by any Governmental Body with respect to the transactions contemplated by this Agreement but under Antitrust Laws. In connection therewith, if any Legal Proceeding is instituted (or threatened to be instituted) challenging any transaction contemplated by this Agreement as in no event later than ten (10) Business Days following violation of any Antitrust Law, each of Parent and the execution Company shall cooperate and delivery use its reasonable best efforts to contest and resist any such Legal Proceeding, and to have vacated, lifted, reversed, or overturned any decree, judgment, injunction or other order whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents, or restricts consummation of the transactions contemplated by this Agreement, including by pursuing all available avenues of administrative and (y) file comparable pre-merger or post-merger notification filingsjudicial appeal, forms unless by mutual agreement, Parent and submissions with any foreign Governmental Authority the Company decide that litigation is required by any other Antitrust Laws as soon as reasonably practicable from the date following execution and delivery of this Agreement but not in no event later than ten (10) Business Days following the execution and delivery of this Agreementtheir respective best interests. 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 such action necessary as may be required to cause the expiration or termination of the applicable waiting notice 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 such transactions as promptly as possible after the Offer and/or the Merger.
(b) Each execution 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 requestAgreement. In connection with and without limiting the foregoing, each of Parent and the Company agree to the extent use its reasonable best efforts to take promptly any and all steps as reasonably practicable may be necessary to avoid or eliminate each and unless prohibited every impediment under any Antitrust Laws that may be asserted by applicable Law any Federal, state and local and non-United States antitrust or by the applicable Governmental Authoritycompetition authority, so as to enable the parties hereto agree to (i) give each other reasonable advance notice of all meetings with any Governmental Authority relating to close the Offer or the Mergertransactions contemplated by this Agreement as expeditiously as possible; provided however, (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 that neither party, as appropriate) nor any of their respective Affiliates, shall be required to enter into any divestiture agreement to comply 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 obligations hereunder.
(c) Each of Parent, Acquisition Sub and the Company shall cooperate with one another Notwithstanding any provision 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 this Agreement to the contrary contrary, all filing fees 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 respect of any material portion of the business HSR or assets of the Company and its Subsidiaries, taken as a whole, or (y) would reasonably other regulatory filing under Antitrust Laws shall be expected to deny Parent the material benefit of the bargains contemplated borne 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 AgreementParent.
Appears in 1 contract
Regulatory Filings. (a) Each of Parent If either the Company or LEC determines in good faith that a Notification and Acquisition Sub (and their respective Affiliates, if applicable), on Report Forms relating to the one hand, and the Company, on the other hand, shall (x) file transactions contemplated herein with the FTC and U.S. Federal Trade Commission (the “FTC”) or the Antitrust Division of the DOJ a Notification and Report Form relating U.S. Department of Justice (the “DOJ”) is reasonably necessary to this Agreement and the transactions contemplated hereby as required by comply with the HSR Act as or with any Foreign Authorities, the parties hereto shall act in accordance with this Section 6.2. As soon as reasonably practicable from following such determination, the date following execution Company and delivery LEC each shall file such Notification and Report Forms with FTC and DOJ so as to comply with such Law. In addition, to the extent applicable, the parties shall file with the foreign antitrust authorities set forth on Part 6.2 of this Agreement but in no event later than ten the Company Disclosure Schedule (10) Business Days following the execution and delivery of this Agreement“Foreign Authorities”), and (y) file comparable pre-merger or post-notification forms required by the merger notification filings, forms and submissions with any foreign Governmental Authority that is required by or control Laws of any other Antitrust Laws as soon as reasonably practicable from the date following execution applicable jurisdiction. The Company 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 LEC each shall (ia) cooperate and coordinate with the other in the making of such filings, (ii) promptly supply the other party with any information that which may be required in order to make effectuate such filings, (iiib) use reasonable best efforts promptly to cause the expiration or termination of any applicable waiting periods under the HSR Act and any applicable foreign antitrust laws and (c) promptly supply any additional information that which reasonably may be required or requested by the FTC, the DOJ or Foreign Authorities and which 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 parties may reasonably deem appropriate. Each of the applicable waiting periods under Company and LEC will notify the HSR Act or other Antitrust Laws as soon as practicable, and to obtain party promptly upon the receipt of (i) any required consents under comments from any other Antitrust Laws applicable to the Offer and/or the Merger as soon as practicable, and to avoid any impediment to the consummation officials 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 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 Foreign Authorities in connection with any filings made pursuant hereto and (ii) any request by any officials of the FTC, the DOJ or investigations Foreign Authorities for amendments or supplements to any filings made pursuant to, or information provided to comply in all material respects with, any Laws, including the requirements of the HSR Act. Whenever any event occurs that is required to be set forth in an amendment or supplement to any filing made pursuant to this Section 6.2, the Company or LEC, as the case may be, will promptly inform the other party of such occurrence and cooperate in filing with the applicable Governmental Body such amendment or supplement. Each of the Company and LEC shall give the other party prompt notice of the commencement or known threat of commencement of any proceeding 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 Body with respect to the Merger or any of the other transactions contemplated by this Agreement pursuant Agreement, keep the other party informed as to the HSR or any other Antitrust Laws with respect to which status of any such filings proceeding or threat, and in connection with any such proceeding, each of the Company or LEC will permit authorized representatives of the other party to be present at each meeting or conference relating to any such proceeding and to have been madeaccess to and be consulted in connection with any document, then opinion or proposal made or submitted to any Governmental Body in connection with any such party proceeding. Upon the terms and conditions set forth herein, each of the parties shall use its commercially reasonable best efforts to maketake, or cause to be madetaken, as soon as reasonably practicable all actions and after consultation to do, or cause to be done, and to assist and cooperate with the other partyparties in doing, an appropriate response all things, necessary, proper or advisable to make effective as promptly as practicable, but in compliance no event later than the End Date, the Merger and other transactions contemplated hereby in accordance with such requestthe terms hereof, including obtaining HSR clearance and approvals, if any, from the Foreign Authorities. In connection with and without limiting the foregoing, Notwithstanding anything in this Agreement 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 Mergercontrary, in no event shall Parent or any of its Subsidiaries or Affiliates will LEC be obligated to propose (A) propose, or agree to accept accept, any undertaking or condition, to enter into any consent decree, to make any sale, divestiture or disposition, to accept any operational restrictionrestriction (including any requirement to hold separate (including by trust or otherwise) any business, product lines or take or commit to assets), (B) take any other 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 that, in the aggregate (x) is or would reasonably reasonable judgment of LEC, could be expected to be materially adverse (with materialitylimit the right of LEC to operate, for purposes of this provisionown, being measured in relation to the size of the Company and operate or retain 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, business or (BC) Parent’s ownership defend any judicial or operation of administrative action or similar proceeding instituted (or threatened to be instituted) by any material portion of Person in connection with obtaining HSR clearance and approvals from 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 AgreementForeign Authorities.
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 Xxxxxxxxx as soon as practicable, but not more than fifteen (15) days after such variation has become effective.
Appears in 1 contract
Regulatory Filings. (a) Each As promptly as practicable after the execution of Parent this Agreement, each of Buyer and Acquisition Sub Sellers will prepare and file any filings required to be filed by it under the Exchange Act, the Securities Act or any other Laws relating to the transactions contemplated by this Agreement (the “Regulatory Filings”). Buyer and their respective AffiliatesSellers each shall promptly supply the other with any information which may be required in order to effectuate any filings pursuant to this Section 6.2.
(b) To the extent permitted by Law, if applicable)each of Buyer and Sellers 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 Regulatory 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 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 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 AgreementRegulatory Filing. Each of Parent Buyer and Sellers will cause all documents that it is responsible for filing with regulatory authorities under this Section 6.2 to comply in all material respects with all applicable requirements of Law and the Company shall (i) cooperate rules and coordinate with the other 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 Regulatory 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 Buyer 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 anySellers, 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 such occurrence and cooperate in filing such amendment or supplement with any communication from any Governmental Authority regarding any government official.
(c) From and after the date of this Agreement and continuing after the Closing, Sellers agree to cooperate fully with Buyer, so as to enable Buyer to make all Regulatory Filings, including, without limitation, cooperating fully with Buyer’s auditors, providing access and information relating to the Acquired Assets and 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 uponBuyer’s auditors, and consider in good faith the views of the other with respect to, all written communications (including providing any analyses, presentations, memoranda, briefs, arguments and opinions) with a Governmental Authority regarding the Offer and the Merger, (vi) provide each other (representations requested by Buyer’s auditors 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 otherwise requested in connection with the transactions contemplated hereby, and (ii) promptly make Regulatory Filings or 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 other filings required to be or should be made or obtained in connection with filed by Buyer under the transactions contemplated hereby.
(d) Notwithstanding anything to Exchange Act, 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 Securities Act 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 Agreementapplicable Laws.
Appears in 1 contract
Samples: Asset Purchase Agreement (Vistula Communications Services, Inc.)
Regulatory Filings. (a) Each of Parent Antitrust Laws. Purchaser and Acquisition Sub (and their respective Affiliates, if applicable), on Stockholder have made filings under the one handHSR Act. Purchaser shall, and shall cause its Affiliates to, comply at the Companyearliest practicable date with any request under the HSR Act to provide information, on the documents or other handmaterials requested by any Governmental Authority. Purchaser shall, and shall cause its Affiliates to, use their commercially reasonable best efforts to: (xi) file resolve as soon as practicable any objections asserted by any Governmental Authority with the FTC and the Antitrust Division of the DOJ a Notification and Report Form relating respect to this Agreement and or the transactions contemplated hereby as required by and (ii) obtain termination or expiration of the applicable waiting period and all requisite clearances and approvals 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 Agreementpracticable. Purchaser shall, and (y) file comparable pre-merger or post-merger notification filingsshall cause its Affiliates to, forms coordinate and submissions cooperate 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 Stockholder and the Company shall in connection with Purchaser’s and its Affiliates’ efforts to obtain termination or expiration of the applicable waiting period and all requisite clearances and approvals under the HSR Act, including (i) cooperate cooperating in all respects with Stockholder and coordinate the Company in connection with the any investigation or other in the making of such filingsinquiry, (ii) supply keeping Stockholder and 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 Company promptly informed 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, material communication received by Purchaser 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 its Affiliates from any Governmental Authority Authority, including the Federal Trade Commission or U.S. Department of Justice, 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 meetingsAgreement, (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 providing Stockholder 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 Company 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 their advisors 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) review the content of any communication, presentation, white paper or other written materials to be submitted to any Governmental Authority in advance of any such submission, (B) consult with Purchaser prior to any meeting or conference with any Governmental Authority, and (C)(1C) 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 permitted by such Governmental Authority, attend and participate in such meetings or conferences, and (iv) providing such other information and assistance as appropriate to protect confidential business information Stockholder 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 may reasonably request in connection with the transactions contemplated hereby, foregoing. Holdco Seller shall reimburse Purchaser at the Closing for fifty percent (50%) of the filing fee under the HSR Act previously paid by Purchaser 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 each party shall be or should be made or obtained in connection with the transactions contemplated hereby.
(d) Notwithstanding anything to the contrary in this Agreement, responsible for its own legal fees 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 Agreementfiling.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Universal Corp /Va/)
Regulatory Filings. (a) Each of Parent Under the terms and Acquisition Sub (and their respective Affiliates, if applicable), on 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 of this Agreement but in no event later than ten (10) Business Days following the execution and delivery conditions of this Agreement, each of Purchaser 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 Seller 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 (ivshall cause their applicable Affiliates to) use its respective reasonable best efforts to take take, agree to take, or cause to be taken, any and all action necessary actions and to do, or cause the expiration to be done, any and all things necessary, proper or termination of the applicable waiting periods advisable under the HSR Act any Law or other Antitrust Laws otherwise, so as soon to, as promptly as practicable, consummate the transactions contemplated by this Agreement, and each such Party shall, and shall cause its respective Affiliates to, cooperate fully to that end. The failure by Seller to obtain any required consents under any other Antitrust Laws applicable to the Offer and/or the Merger as soon as practicableconsent, and to avoid any impediment to the consummation of the Offer waiver, confirmation, novation 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 approval with respect to any Contract shall not (i) constitute a failure to satisfy any condition set forth in Article 6 or (ii) relieve Purchaser from its obligation to consummate the Offer and/or the Mergertransactions contemplated by this Agreement.
(b) Each Subject to and without limiting the generality of Parent and Acquisition Sub (and their respective Affiliates, if applicableSection 5.4(a), on the one handPurchaser and Seller shall use their reasonable best efforts to obtain any action, and the Companyapproval, on the other handauthorization, shall promptly inform the other clearance, order, Permit or waiver of any communication from any all Governmental Authority regarding any of Authorities required to consummate the transactions contemplated in this Agreement, including but not limited to the Closing Regulatory Approvals (each a “Regulatory Approval”). In connection therewith, Purchaser and Seller shall jointly, subject to applicable Law, as promptly as possible and as required by this Agreement applicable Law, but in any event no later than sixty (60) calendar days from the date hereof, (x) make the filings required by applicable antitrust Laws and (y) make all other Governmental Filings necessary or advisable to make in connection with the Regulatory Approvals, and thereafter promptly make any filings or investigations with, by or before other submissions and responses required under 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 applicable Law 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 requesthereby. In connection with and without limiting furtherance of the foregoing, to each of the extent reasonably practicable and unless prohibited by applicable Law or by the applicable Governmental Authority, the parties hereto agree to Parties shall: (i) give furnish all information reasonably required for any Governmental Filings to be made pursuant to any applicable Law in connection with the transactions contemplated hereby; (ii) keep each other reasonable advance notice Party informed in all material respects of all meetings with any material communication received by any Party from, or given by any other Party to, any Governmental Authority and of any material communication received or given in connection with any proceeding by a private party, in each case, relating to the Offer or the Merger, (ii) give each other an opportunity to participate in each of such meetings, transactions contemplated hereby; (iii) keep the provide each other party reasonably apprised Party with respect to prior notice of any oral communications with communication with, and any proposed understanding, undertaking or agreement with, any Governmental Authority regarding the Offer or the Merger, any such Governmental Filings; (iv) consult and cooperate with each other Party in the filing of connection with any analyses, appearances, | presentations, memoranda, briefs, arguments, opinions and proposals submitted by or on behalf of any Party in connection with proceedings relating to or arising out of such Governmental Filings; and (v) not participate independently in any meeting, or engage in any substantive conversation, with any Governmental Authority in respect of any such Governmental Filings or any investigations or other written communications explaining inquiries relating thereto without giving each other Party prior notice of the meeting or defending the Offer and the Mergerconversation and, articulating any regulatory or competitive argument and/or responding to requests or objections made unless prohibited by any such Governmental Authority, (v) provide each other with a reasonable advance the opportunity to review attend or participate; provided, however, that, notwithstanding anything to the contrary contained herein, (1) information and comment uponmaterials may be redacted or withheld (x) to the extent that they concern or refer to matters other than the Group Companies or the transactions contemplated by this Agreement and (y) as necessary to comply with contractual arrangements and (2) any and all communications, interactions, information or other action of any Party or its Affiliates with respect to Governmental Authorities outside of Costa Rica shall be excluded entirely from this Section 5.4. Seller and Purchaser shall, and consider shall cause their respective Affiliates, Representatives and advisors to, adhere to best corporate practices in connection with the matters set forth in this Section 5.4, including complying at all times with applicable Laws relating to their interaction with Governmental Authorities and their Representatives, as well as cooperate in good faith the views of with the other Party in connection 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 Filings. Purchaser shall be responsible for all filing 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 administrative fees 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 paid in connection with any Governmental Filing, and each Party shall bear its own costs and expenses (including its own attorneys’ fees) in connection therewith. In furtherance of and without limiting the foregoing, Purchaser shall control all filings, communications, defense, litigation, negotiations and strategy relating to applicable Law, the Regulatory Authority or any Governmental Filing, in each case, regarding any of the transactions contemplated hereby, including any actions required to be taken by Purchaser pursuant to Section 5.4(c); provided that each Party will provide such drafts to the other Party in a timely manner, will allow the other Party reasonable time to review and (ii) promptly make comment on such drafts, and Purchaser will take into account any reasonable comments from Seller in connection with any such submissions or material communications. Purchaser shall give good faith consideration to any recommendations or requests made by Seller or Seller’s counsel with regard to any filings, furnish information required communications, defense, litigation, negotiations or strategies relating to applicable Law, the Regulatory Authorities or any Governmental Filing, in connection therewith and seek to obtain timely any such consentseach case, permits, authorizations, approvals or waivers that the parties determine are required to be or should be made or obtained in connection with regarding the transactions contemplated hereby.
(dc) In furtherance and not in limitation of its obligations under this Section 5.4, Purchaser shall at its sole cost: (i) offer and agree to an order or legally enforceable undertaking providing for the divestiture by Purchaser or its Affiliates of such properties, assets, operations or businesses in Costa Rica as are necessary to permit Purchaser fully to complete the transactions contemplated by this Agreement; (ii) offer and agree to hold separate such properties, assets, operations or businesses, pending the satisfaction or termination of any conditions, restrictions or agreements affecting Purchaser’s full rights of ownership of any Group Company (or any portion thereof) as may be necessary to permit Purchaser fully to complete the transactions contemplated by this Agreement; (iii) take or commit to take actions, or agree to or accept any conditions, restrictions, | limitations or requirements imposed by Governmental Authorities with respect to the acquisition of any Group Company that limit Purchaser’s or, following the Closing, the Group Companies’, freedom of action with respect to, or its or their ability to retain, one or more of its businesses, product lines or assets, in each case, as may be necessary to permit Purchaser fully to complete the transactions contemplated by this Agreement; (iv) take, and cause each of its Affiliates to take, any and all actions, including a Remedial Action, to the extent necessary to (1) obtain any Regulatory Approvals and (2) avoid, eliminate or resolve each and every impediment to obtaining any Regulatory Approvals, in each of (1) and (2), so as to cause the transactions contemplated by this Agreement to occur as soon as reasonably possible (and in any event, no later than the End Date); (v) oppose fully and vigorously any litigation relating to this Agreement, or the transactions contemplated hereby, including to appeal promptly any adverse decision, determination or order by any applicable Governmental Authority, it being understood that the costs and expenses of all such legal action shall be borne by Purchaser; and (vi) not consent to any voluntary delay of the consummation of the transactions contemplated hereby at the request of any Governmental Authority without the consent of Seller. Notwithstanding anything to the contrary in this AgreementSection 5.4, in connection with any filing or submission Purchaser shall not be 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 have, individually or in the aggregate, a Material Adverse Effect on the Group Companies or materially adverse adversely affect the business or operations of (with materiality, for purposes of this provision, being measured in relation to the size of the Company x) Purchaser and its Subsidiaries taken as a wholeor (y) to (A) the Company Purchaser and its SubsidiariesSubsidiaries in Costa Rica (including the Group Companies), in each case, taken as a whole, or Parent whole and its Subsidiaries, taken as on 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 Agreementgoing forward basis.
Appears in 1 contract
Samples: Share Purchase Agreement (Liberty Latin America Ltd.)
Regulatory Filings. (a) Each of Parent Buyer and Acquisition Sub (Seller shall cooperate and use their respective Affiliatescommercially reasonable efforts to prepare all documentation, if applicable)to effectuate all filings and to obtain all permits, on the one handconsents, approvals and the Company, on the other hand, shall (x) file with the FTC and the Antitrust Division authorizations of the DOJ a Notification and Report Form relating all Governmental Authorities necessary to this Agreement and consummate the transactions contemplated hereby as required by promptly as practicable. Each party agrees that it shall consult with the HSR Act as soon as reasonably practicable from other party with respect to the date following execution obtaining of all permits, consents, approvals, waivers and delivery authorizations of this Agreement but in no event later than ten all Governmental Authorities necessary or advisable to consummate the transactions contemplated hereby, and each party shall keep the other party apprised of the status of all such matters relating to completion of the transactions contemplated hereby.
(10b) Buyer shall use its commercially reasonable efforts to file an Application Pursuant to California Insurance Code Section 1215.2 (“Form A”) with the California Department within twenty (20) Business Days following the execution and delivery of this Agreement, and .
(yc) file comparable preSeller shall apply for a 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 Closing Dividend in the date following execution and delivery amount of this Agreement but in no event later than ten $150,000,000 within twenty (1020) Business Days following the execution and delivery of this AgreementAgreement and shall use commercially reasonable efforts to obtain approval of such dividend from the California Department. Each of Parent The approval or consent to a dividend in such amount or any lesser amount is not a condition to the Closing.
(d) Seller and the Company shall Buyer agree to make, or cause to be made, if applicable, (i) cooperate an appropriate filing of a notification and coordinate with the other in the making of such filings, (ii) supply the other with any information that may be required in order report form 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, 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 reasonably practicable after the date hereof, but in no event later than twenty (20) Business Days after the date hereof, and to promptly supply any additional information and documentary material that may be requested pursuant to the HSR or Act, and (ii) any other Antitrust Laws filing that may be required under any other antitrust or competition Law or by any other antitrust or competition authority 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, as promptly as reasonably practicable after the date hereof, but in no event later than twenty (20) Business Days after the date hereof, and to promptly supply any additional information and documentary material that may be requested pursuant thereto
(e) Buyer and Seller agree, upon request, to furnish the other parties with all information concerning itself, its Affiliates (if applicable), directors, officers, members and shareholders and such other matters as may be reasonably necessary or advisable in connection with any filing, notice or application made by or on behalf of such other parties or any of their Affiliates (if applicable) to any Governmental Authority; provided, however, Buyer and Seller and their respective Affiliates shall not be required to furnish the other party or any of its Affiliates with any confidential information regarding their future plans, financial projections or biographical information for its directors and officers, except that biographical information shall be provided for any Business Employees to the extent such Business Employees will be officers of the Company or the Agency following the Closing and except to the extent that such information is incorporated in the Form A filing.
(f) Each party shall promptly inform the other party in advance of any proposed meetings, discussions or other material communications with the Federal Trade Commission or the United States Department of Justice or any other Governmental Authority regarding the transactions contemplated hereby (and as soon as practicable following any communication from any such entity).
(g) Notwithstanding anything set forth in this Section 5.2, Buyer shall not be obligated to agree to any agreement, approval or consent that would (i) require Buyer, any Acquired Company and/or Buyer’s Affiliates to maintain a certain number of employees or minimum headcount in any jurisdiction or region (other than requirements to maintain resident directors in accordance with Law), (ii) promptly make require or involve the sale, license, assignment, divestiture, disposition, or separate holding, through the establishment of a trust, or otherwise, of any filingsAcquired Company or its material assets, furnish information required properties or the Business or of any of the material assets, properties or businesses of Buyer or any of its Affiliates, (iii) require or involve the making of any debt, equity investment or capital contribution in connection therewith and seek any Acquired Company, Buyer or any of Buyer’s Affiliates, (iv) require any modification of the existing capital structure of any Acquired Company, Buyer or any of Buyer’s Affiliates, (v) involve any requirement, restriction or limitation on the Business or any business of Buyer or any of its Affiliates, or (v) otherwise be reasonably likely to obtain timely any such consentsadversely impact the economic, permitsTax or business benefits to the Acquired Companies, authorizations, approvals Buyer or waivers that the parties determine are required to be or should be made or obtained in connection with Buyer’s Affiliates of 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 . No party shall be required to the Offer or the Merger, or (B) Parent’s ownership or operation of waive any material portion of the business or assets of the Company and its Subsidiaries, taken as a whole, or (y) would reasonably be expected condition precedent 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 comply 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 Agreement5.2.
Appears in 1 contract
Samples: Securities Purchase Agreement (National General Holdings Corp.)
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
Samples: Asset Transfer Agreement (Reliance Group Holdings Inc)
Regulatory Filings. (a) Subject to the terms and conditions of this Agreement, the Company and Parent shall use their respective commercially reasonable efforts to (i) make or deliver as soon as reasonable practicable after the date hereof (but no later than 10 Business Days after the date hereof) appropriate filings, registrations, applications and notices with all applicable Governmental Entities and obtain all consents, approvals, clearances and authorizations with respect thereto, including notices and filings required under any applicable Antitrust Laws, and thereafter to supply all additional information requested by Governmental Entities in connection therewith; provided that, prior to the date hereof, each of the Company and Parent have made their respective filings of a Notification and Report Form under the HSR Act with respect to the transactions contemplated by this Agreement; (ii) prevent the entry, enactment or promulgation of any threatened or pending injunction or order that would adversely affect the ability of the Parties to consummate the transactions contemplated hereby; (iii) lift or rescind any injunction or order adversely affecting the ability of the Parties to consummate the transactions contemplated hereby; and (iv) take, or cause to be taken, all appropriate action, and do, or cause to be done, all things necessary, proper or advisable to consummate and make effective the transactions contemplated by this Agreement as promptly as practicable.
(b) Each of Parent and Acquisition Sub (and their respective Affiliatesthe Company shall use commercially reasonable efforts to resolve such objections, if applicable)any, on as may be asserted by any Governmental Entity with respect to the one handtransactions contemplated by this Agreement under any applicable Antitrust Laws. In connection therewith, and if any Action is instituted (or, to the Knowledge of Parent or the Knowledge of the Company, on the other handthreatened to be instituted) challenging any transaction contemplated by this Agreement as violative of any Antitrust Law, shall (x) file with the FTC each of Parent and the Antitrust Division Company shall cooperate and use commercially reasonable efforts to contest and resist any such Action and to have vacated, lifted, reversed, or overturned any Order, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents, or restricts consummation of the 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. The Parties will consult and cooperate with one another, and (y) file comparable pre-merger or post-merger notification filingsconsider in good faith the views of one another, forms and submissions in connection with any foreign Governmental Authority that is required analyses, appearances, presentations, memoranda, briefs, arguments, opinions and proposals made or submitted by or on behalf of any other Party in connection with proceedings under or relating to any 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 and the Company shall (i) cooperate specifically request early termination of the waiting period prescribed by the HSR Act and coordinate with the other in the making of shall use commercially reasonable efforts to take such filings, (ii) supply the other with any information that action as 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 practicableall requisite approvals, clearances 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 authorizations with respect to the Offer and/or transactions contemplated hereby under Antitrust Laws as promptly as possible after the Mergerexecution of this Agreement.
(bc) Each From the date of Parent and Acquisition Sub (and their respective Affiliatesthis Agreement until the earlier of the Closing or the termination of this Agreement, if applicable), on the one hand, and the Company, on each Party shall promptly notify the other hand, shall promptly inform the other Party in writing of any communication from pending or, to the Knowledge of such Party, threatened Action by any Governmental Authority regarding Entity or any other Person (i) challenging or seeking material damages in connection with this Agreement or the transactions contemplated hereunder or (ii) seeking to restrain or prohibit the consummation of the transactions contemplated by this Agreement or otherwise limit the right of Parent or its Subsidiaries to own or operate all or any portion of the businesses or assets of the Company. Subject to the cooperation provisions set forth in connection with any filings or investigations withSection 8.3(b), by or before any Governmental Authority relating Parent shall be entitled to this Agreement or the transactions contemplated hereby, including direct 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 negotiations 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 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 by this Agreement, in connection including any such proceedings or negotiations with any filing or submission required or action to be taken by either Parent the Federal Trade Commission 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 Antitrust Division 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 U.S. Department 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 AgreementJustice.
Appears in 1 contract
Samples: Merger Agreement (Cott Corp /Cn/)
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 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 Public Letter. 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, 18 19 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 1 contract
Regulatory Filings. (a) Each of Within ten calendar days after the date hereof, Parent and Acquisition Sub (and their respective Affiliates, if applicable), on the one handwill, and Seller will cause the Companyultimate parent entity of Seller 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 make such filings as may be required by the HSR Act with respect to the consummation of the transactions contemplated by this Agreement. Thereafter, Parent will, and Seller will cause the ultimate parent entity of Seller to, file or cause to be filed as soon promptly as reasonably practicable from with the date following execution United States Federal Trade Commission and delivery the United States Department of this Agreement but in no event later than ten (10) Business Days following Justice any supplemental information which may be requested pursuant to the execution and delivery HSR Act. If applicable to the consummation of the transactions contemplated by this Agreement, Purchaser and (y) file comparable pre-merger or post-merger notification filings, forms Parent will each make such filings and submissions with any foreign Governmental Authority that is use their respective reasonable efforts to obtain all permits required by any other Antitrust Law. Seller will make such filings and use its reasonable efforts to obtain the governmental approvals referred to in Section 2.1.2, and Purchaser and Parent will each make such filings and use their respective reasonable efforts to obtain the governmental approvals 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 as soon as reasonably practicable from pursuant to which they are made.
(b) Without limiting the date following execution and delivery generality or effect of this Agreement but in no event later than ten (10) Business Days following Section 3.3(a), each of the execution and delivery of this Agreement. Each of Parent and the Company shall parties will (i) cooperate use their respective reasonable efforts to comply as expeditiously as possible with all lawful requests of Governmental Entities for additional information and coordinate with documents pursuant to the other in the making of such filingsHSR Act, (ii) supply not (A) extend any waiting period under the other HSR Act or (B) enter into any agreement with any information that may be required Governmental Entity not to consummate the transactions contemplated by this Agreement, except with the prior consent of Seller, in order to make such filingsthe case of Parent and Purchaser, or Parent, in the case of Seller, and (iii) supply cooperate with each other and use reasonable efforts to cause the lifting or removal of any additional information that reasonably temporary restraining order, preliminary injunction or other judicial or administrative order which may be required or requested entered into in connection with the transactions contemplated by this Agreement, including without limitation the execution, delivery and performance by the FTCappropriate entity of such divestiture agreements or other actions, as the DOJ or the Governmental Authorities of any other jurisdiction in which any such filing is made under any other Antitrust Lawscase may be, and (iv) use reasonable best efforts to take all action 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 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
Samples: 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
Samples: Merger Agreement (Biomet Inc)
Regulatory Filings. (a) Each of Parent and Acquisition the Purchaser, Merger 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 promptly shall, 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 case of any other jurisdiction in which any such filing is made under any other Antitrust Laws, premerger notifications and (iv) use reasonable best efforts to take all action necessary to cause the expiration or termination of the applicable waiting periods related documentation required under the HSR Act or any other applicable antitrust or noncompetition Laws or regulations (“Antitrust Laws”), no later than one (1) Business Day from the date hereof, make all filings and submissions necessary, proper or advisable under such 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 approval of any communication from any Governmental Authority regarding any of the transactions contemplated by this Agreement in connection Entity with any filings or investigations with, by or before any Governmental Authority relating to this Agreement or jurisdiction over 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 Each of the other with respect toPurchaser, 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 Merger Sub and the Company shall cooperate with one another in good faith furnish to (i) promptly determine whether the appropriate Governmental Entity all information required for any filings not contemplated by Section 8.2(a) are required application or other filing to be or should be made, and whether made pursuant to 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. Each of the Purchaser, Merger Sub and the Company shall cooperate with the other in promptly filing any other necessary applications, reports or other documents with any Governmental Entity having jurisdiction with respect to this Agreement and the transactions contemplated hereby, and in seeking necessary consultation with and prompt favorable action by such Governmental Entity.
(iib) Each of the Purchaser, Merger Sub and the Company shall promptly make comply with any filingsadditional requests for information that arise following the premerger notifications and related documentation required under the HSR Act filed and submitted pursuant to Section 6.4(a), furnish information required including requests for production of documents and production of witnesses for interviews or depositions by any Governmental Entities. Each of the Purchaser, on the one hand, and the Holder Representative and Company, on the other hand, shall diligently assist and cooperate with the other in connection therewith preparing and seek to obtain timely any such consents, permits, authorizations, approvals or waivers that the parties determine are filing all documents required to be submitted to any Governmental Entities in connection with the transactions contemplated hereby and in obtaining any Governmental Entity or should third party consents, waivers, authorizations or approvals which may be made required to be obtained by the Purchaser, Holder Representative, the Stockholders, the Company or obtained its Subsidiaries in connection with the transactions contemplated hereby.
(d) Notwithstanding anything to the contrary . Nothing contained in this AgreementAgreement shall require or obligate the Purchaser or its Affiliates to divest, in connection with any restrict, alter or otherwise bind the use, ownership or operation, as applicable, of its businesses, operations, organization or assets. The Purchaser and the Company shall each be responsible for one-half of all filing or submission required or action fees under the HSR Act, and other Antitrust Laws. The Purchaser shall cause the filings under the HSR Act to be taken by either Parent or the Company to consummate the Offer and the Merger, in no event shall Parent or any considered for grant 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“early termination.”
Appears in 1 contract
Samples: Agreement and Plan of Merger (ICF International, 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) 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 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 in exchanging such information and providing such assistance as the Company 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 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, within five (5) Business Days after the date hereof, make or cause to be made all filings and Acquisition Sub submissions required of the Purchaser under the HSR Act, Healthcare Laws or other Laws applicable to the Purchaser for the consummation of the transactions contemplated herein. The Purchaser shall be responsible for all filing fees and related expenses under the HSR Act, Healthcare 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.”
(c) The Purchaser shall promptly comply with any formal or informal additional requests for information, including requests for production of documents and their respective Affiliates, if applicable), on the one hand, production of witnesses for interviews or depositions by any Governmental Entities. The Purchaser and the Company, on the other hand, shall promptly inform 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.
(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 entity challenging the validity or legality or seeking to restrain the consummation of the transactions contemplated by this Agreement in connection with any filings or investigations withAgreement, by or before any Governmental Authority relating each of the parties to this Agreement shall use its commercially reasonable efforts to avoid, resist, resolve or, if necessary, defend such suit or action. Each such party 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 to satisfy any conditions imposed by, 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, 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 meetingsproposing and entering into good faith negotiations, (iii) keep the other party reasonably apprised with respect to any oral communications with any Governmental Authority regarding the Offer or the Mergerproviding information, (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 proposals, and consider in good faith the views of the other with respect to, all written communications (including any analyses, presentations, memoranda, briefs, arguments entering into and opinions) with a Governmental Authority performing contracts or submitting to orders 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) the sale, divestiture, licensing, holding separate, or other disposition (and (C)(1whether through the establishment of a trust or otherwise) of Annex A and Section 9.1(c). Any any assets, operations, businesses, divisions, or customers (including, after the Closing, any of such disclosures, rights to participate or provisions items 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 Subsidiaries) of the Purchaser or Affiliates be obligated to propose any of its Affiliates, and/or (B) the termination or agree to accept modification of any undertaking Contract or conditionother business relationship, to enter into any consent decree, to make any divestiture or accept any operational restriction, or take or commit to take including the taking of any action that limits the freedom of action, of the Purchaser or any of its Affiliates (iincluding, after the Closing, the Company or any of its Subsidiaries), and (iii) the effectiveness promptly take and diligently pursue all other actions and do all other things necessary and proper to avoid or consummation of which is not conditional on eliminate each and every impediment under any Law that may be asserted by any Governmental Entity or any other Person to 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 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 applicable Legal Requirements, and as soon as reasonably practicable after the Companydate hereof, on each of Parent, Merger Sub and the other handCompany shall obtain or make all Consents with, shall any Governmental Authority in connection with the Merger and the transactions contemplated hereby, including: (xi) file filing of Notification and Report Form 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 hereof, but in any event no event later than ten (10) Business Days following from the execution and delivery of this Agreement, and date hereof; (yii) file comparable pre-merger or post-merger notification filings, forms and submissions with making any foreign Governmental Authority that is required by filings under any other Antitrust applicable Foreign Merger Laws as soon as reasonably practicable from after the date following execution and delivery hereof, but, with respect to any filing under Foreign Merger Laws of this Agreement but Germany, in any event no event later than ten (10) Business Days following from the execution date hereof; 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 making any additional information that reasonably may be filings required or requested by under the FTCSecurities Act, the DOJ Exchange Act, any applicable state or securities or “blue sky” laws and the Governmental Authorities securities laws 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 DOJforeign country, or any other Governmental Authority or Person may assert under any applicable Antitrust Laws with respect Legal Requirements relating to the Offer and/or the Merger.
(b) . Each of Parent and Acquisition Parent, 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 party. If any party hereto or Affiliate thereof shall receive a request Company will cause all documents that it is responsible 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 filing with any Governmental Authority relating under this Section 7.4(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)applicable Legal Requirements. 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 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(a) are required to be or should be obtained, from any Governmental Authority if requesting early termination of the applicable waiting period 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 HSR Act 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 applicable Foreign Merger Laws 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 Agreementappropriate.
Appears in 1 contract
Samples: Merger Agreement (Emc 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 Hart-Xxxxx-Xxxxxx Xxxitrust 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.
(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
