Regulatory Matters. (a) Subject to Section 4.4, the Stockholder shall, and shall use their reasonable best efforts to cause their Affiliates to, use their reasonable best efforts, consistent with the time frames set forth in Section 6.4 of the Merger Agreement, to supply and provide information that, to such Stockholder’s knowledge, is complete and accurate in all material respects to any Governmental Authority requesting such information in connection with filings or notifications under, or relating to, applicable laws that are required or advisable as a result of, or pursuant to, the Merger Agreement and the related financings and transactions, including, without limitation, information required or requested to be provided to any antitrust, financial or national security regulatory authorities in connection with any approvals reasonably sought in connection with the consummation of the Merger (collectively, the “Regulatory Filings” and the, “Regulatory Disclosures”, respectively). If any Governmental Authority seeks to prevent the consummation of the transactions contemplated by the Merger Agreement based on the HSR Act or any other Antitrust Laws or based on any other required approval, consent, notice or filing with a Governmental Authority and such actions by the Governmental Authority relate to the activities or investments of such Stockholder or its Affiliates (solely for purposes of this Section 4, an “Affiliate” of the Stockholder shall include any portfolio company in which such Stockholder or any of its Affiliates has made a debt or an equity investment), then if Parent in good faith reasonably determines that such actions by the Governmental Authority will not be resolved sufficiently in advance of the Termination Date, Parent may provide written notice of that determination to the Stockholder, and Parent may elect to terminate the obligations under Section 2 and Section 4.6 of this Agreement (in which case the Stockholder’s obligations under the Equity Commitment Letter shall also automatically terminate) and, in that context, the Stockholder shall be entitled to receive the Per Share Price under the Merger Agreement with respect to its shares of Common Stock; provided, however that Parent shall not terminate the Equity Commitment Letter or the obligations under Section 2 of this Agreement pursuant to this Section 4.3(a) without first obtaining alternative financing arrangements which provide Parent with funds in an amount equal to the Rollover Amount; provided that such alternative financing arrangements (i) provide Parent with sufficient funds, when added to the proceeds of the Equity Financing, Debt Financing and other sources of readily available liquidity of Parent, Merger Sub, the Company and the Company’s Subsidiaries on the Closing Date, to fund the Required Amount and (ii) do not impose new or additional conditions to the receipt of such financing relative to the Commitment Letters that could impair or delay the Closing. Parent shall promptly provide the Company with a copy of any definitive commitment letter or other documentation providing for such alternative financing arrangement. Notwithstanding anything to the contrary herein, the Stockholder may designate any Regulatory Disclosures that contain sensitive, legally privileged, or confidential information in respect of the Stockholder or any of its Affiliates as exclusive to the Stockholder and the Stockholder may provide that any such sensitive, legally privileged, or confidential information may only be provided on a counsel-only basis or directly to the applicable Governmental Authority requesting such information. The Stockholder shall not make any filings, or notifications in connection with the Merger pursuant to any Antitrust Laws without Parent’s prior written consent (not to be unreasonably withheld, delayed or conditioned). Parent or the Company shall not file any Regulatory Filings that contain information with respect to the Stockholder or its affiliates without first providing the Stockholder and its counsel a reasonable opportunity to review and comment thereon, and will give good faith consideration to all reasonable additions, deletions or changes suggested by the Stockholder and its counsel. (b) Each Stockholder hereto represent, warrant and covenant to Parent and to the Company that, to such Stockholder’s knowledge: (i) none of the information supplied in writing by such Stockholder specifically for inclusion or incorporation by reference in the Regulatory Disclosures will contain a material misstatement of fact or a material omission of fact necessary to make the information provided not misleading and (ii) it does not permit any entity under the “control” (defined in Section 721 of the Defense Production Act, as amended, including all implanting regulations thereof) of a People’s Republic of China national, or any entity under the control of a Russian Federation national, to obtain through any Affiliate, control with respect to the Company.
Appears in 6 contracts
Samples: Support Agreement (KnowBe4, Inc.), Support Agreement (KnowBe4, Inc.), Support Agreement (Vepf Vii SPV I, L.P.)
Regulatory Matters. (a) Subject to Section 4.49.1 GTE shall be responsible for obtaining and keeping in effect all FCC, the Stockholder shallstate regulatory commission, franchise authority and shall use their reasonable best efforts to cause their Affiliates to, use their reasonable best efforts, consistent with the time frames set forth in Section 6.4 of the Merger Agreement, to supply and provide information that, to such Stockholder’s knowledge, is complete and accurate in all material respects to any Governmental Authority requesting such information in connection with filings or notifications under, or relating to, applicable laws other regulatory approvals that are may be required or advisable as a result of, or pursuant to, the Merger Agreement and the related financings and transactions, including, without limitation, information required or requested to be provided to any antitrust, financial or national security regulatory authorities in connection with any approvals reasonably sought in connection with the consummation performance of the Merger (collectivelyits obligations under this Agreement. AT&T shall be responsible for obtaining and keeping in effect all FCC, the “Regulatory Filings” state regulatory commission, franchise authority and the, “Regulatory Disclosures”, respectively). If any Governmental Authority seeks other regulatory approvals that may be required in connection with its offering of services to prevent the consummation of the transactions AT&T Customers contemplated by this Agreement. AT&T shall reasonably cooperate with GTE in obtaining and maintaining any required approvals for which GTE is responsible, and GTE shall reasonably cooperate with AT&T in obtaining and maintaining any required approvals for which AT&T is responsible.
9.2 Nothing in this Agreement shall be construed to deny either Party the Merger Agreement based on right to file tariffs from time to time in the HSR Act or normal course of business. Nonetheless, each Party shall be exempt from any other Antitrust Laws or based on any other required approval, consent, notice or filing with a Governmental Authority and such actions tariff change filed by the Governmental Authority relate to other Party during the activities or investments of such Stockholder or its Affiliates (solely for purposes of this Section 4, an “Affiliate” of the Stockholder shall include any portfolio company in which such Stockholder or any of its Affiliates has made a debt or an equity investment), then if Parent in good faith reasonably determines that such actions by the Governmental Authority will not be resolved sufficiently in advance of the Termination Date, Parent may provide written notice of that determination to the Stockholder, and Parent may elect to terminate the obligations under Section 2 and Section 4.6 term of this Agreement (if such change conflicts with a price or other term of this Agreement, except to the extent that this Agreement makes the tariff item being changed determinative of such price or such other term, in which case the Stockholder’s obligations under the Equity Commitment Letter changed tariff shall also automatically terminate) andapply prospectively.
9.3 If any effective legislative, regulatory, judicial or other legal actions, including a change in that contextApplicable Law, the Stockholder shall be entitled to receive the Per Share Price under the Merger Agreement with respect to its shares materially affects any material terms of Common Stock; providedthis Agreement, however that Parent shall not terminate the Equity Commitment Letter or the obligations under Section 2 ability of AT&T or GTE to perform any material terms of this Agreement, such change in law shall apply immediately and the terms and conditions of this Agreement shall be applied and interpreted such that the obligations and requirements applicable to each party under this Agreement shall be consistent with such change in law. AT&T or GTE may, on thirty (30) days written notice (delivered not later than 90 days following the date on which such action has become effective) request that such term(s) be renegotiated, and the Parties agree to so negotiate in good faith such mutually acceptable new term(s). Notwithstanding the above, if the Parties do not agree on the appropriate application of any change in law to this Agreement, either Party may pursue any remedy available to it under Applicable Law.
9.4 This document has been produced by GTE and AT&T pursuant to the arbitration decision (the "Arbitration Decision" in the Commission’s Docket No. 96-AB-005). GTE reserves its position that this Section 4.3(a) without first obtaining alternative financing arrangements which provide Parent with funds in document is the functional equivalent of an amount equal to order by the Rollover Amount; provided Commission and not an agreement entered into voluntarily by the Parties. GTE further reserves its position that such alternative financing arrangements (i) provide Parent with sufficient funds, when added to the proceeds only applicable liability for violations of the Equity Financing, Debt Financing and other sources of readily available liquidity of Parent, Merger Sub, the Company and the Company’s Subsidiaries on the Closing Date, to fund the Required Amount and obligations imposed hereby (iiincluding contractual liability) do not impose new or additional conditions to the receipt of is only such financing relative to the Commitment Letters that could impair or delay the Closing. Parent shall promptly provide the Company with a copy of any definitive commitment letter or other documentation providing for such alternative financing arrangement. Notwithstanding anything to the contrary herein, the Stockholder liability as may designate any Regulatory Disclosures that contain sensitive, legally privileged, or confidential information in respect of the Stockholder or any of its Affiliates as exclusive to the Stockholder and the Stockholder may provide that any such sensitive, legally privileged, or confidential information may only be provided on a counsel-only basis or directly to the applicable Governmental Authority requesting such information. The Stockholder shall not make any filings, or notifications in connection with the Merger pursuant to any Antitrust Laws without Parent’s prior written consent (not to be unreasonably withheld, delayed or conditioned). Parent or the Company shall not file any Regulatory Filings that contain information with respect to the Stockholder or its affiliates without first providing the Stockholder and its counsel a reasonable opportunity to review and comment thereon, and will give good faith consideration to all reasonable additions, deletions or changes suggested imposed by the Stockholder and its counselCommission.
(b) Each Stockholder hereto represent, warrant and covenant to Parent and to the Company that, to such Stockholder’s knowledge: (i) none of the information supplied in writing by such Stockholder specifically for inclusion or incorporation by reference in the Regulatory Disclosures will contain a material misstatement of fact or a material omission of fact necessary to make the information provided not misleading and (ii) it does not permit any entity under the “control” (defined in Section 721 of the Defense Production Act, as amended, including all implanting regulations thereof) of a People’s Republic of China national, or any entity under the control of a Russian Federation national, to obtain through any Affiliate, control with respect to the Company.
Appears in 6 contracts
Samples: Interconnection Agreement, Interconnection Agreement, Interconnection, Resale and Unbundling Agreement
Regulatory Matters. 17.1 The Paying Agent is authorised and regulated by the Central Bank of Ireland (a“CBOI”) Subject and its activities in the UK are subject to Section 4.4, limited regulation by the Stockholder shall, and shall use their reasonable best efforts to cause their Affiliates to, use their reasonable best efforts, consistent with the time frames set forth in Section 6.4 of the Merger Agreement, to supply and provide information that, to such Stockholder’s knowledge, is complete and accurate in all material respects to any Governmental UK Prudential Regulation Authority requesting such information in connection with filings or notifications under, or relating to, applicable laws that are required or advisable as a result of, or pursuant to, the Merger Agreement (“PRA”) and the related financings and transactions, including, without limitation, information required or requested to be provided to any antitrust, financial or national security regulatory authorities in connection with any approvals reasonably sought in UK Financial Conduct Authority (“FCA”).
17.2 In connection with the consummation worldwide effort against the funding of the Merger (collectivelyterrorism and money laundering activities, the “Regulatory Filings” Paying Agent, Transfer Agent and theRegistrar may be required under various national laws and regulations to which they are subject to obtain, “Regulatory Disclosures”verify and record information that identifies each person who opens an account with it. For a non-individual person such as a business entity, respectively). If any Governmental Authority seeks to prevent a charity, a Trust or other legal entity the consummation of the transactions contemplated by the Merger Agreement based on the HSR Act or any other Antitrust Laws or based on any other required approvalPaying Agent, consent, notice or filing with a Governmental Authority Transfer Agent and such actions by the Governmental Authority relate to the activities or investments of such Stockholder or its Affiliates (solely for purposes of this Section 4, an “Affiliate” of the Stockholder shall include any portfolio company in which such Stockholder or any of its Affiliates has made a debt or an equity investment), then if Parent in good faith reasonably determines that such actions by the Governmental Authority will not be resolved sufficiently in advance of the Termination Date, Parent may provide written notice of that determination to the Stockholder, and Parent may elect to terminate the obligations under Section 2 and Section 4.6 of this Agreement (in which case the Stockholder’s obligations under the Equity Commitment Letter shall also automatically terminate) and, in that context, the Stockholder Registrar shall be entitled to receive ask for documentation to verify such entity’s formation and legal existence as well as financial statements, licenses, identification and authorisation documents from individuals claiming authority to represent the Per Share Price under the Merger entity or other relevant documentation.
17.3 The parties to this Agreement with respect to its shares of Common Stock; provided, however acknowledge and agree that Parent shall not terminate the Equity Commitment Letter or the obligations of the Paying Agent, Transfer Agent and Registrar under Section 2 of this Agreement pursuant are limited by and subject to this Section 4.3(a) without first obtaining alternative financing arrangements which provide Parent compliance by them with funds in an amount equal to EU and US Federal anti-money laundering statutes and regulations. If the Rollover Amount; provided Paying Agent, Transfer Agent and Registrar or any of their directors know or suspect that such alternative financing arrangements (i) provide Parent with sufficient funds, when added to a payment is the proceeds of criminal conduct, such person is required to report such information pursuant to the Equity Financingapplicable authorities and such report shall not be treated as a breach by such person of any confidentiality covenant or other restriction imposed on such person under this Agreement, Debt Financing and other sources of readily available liquidity of Parent, Merger Sub, the Company and the Company’s Subsidiaries by law or otherwise on the Closing Datedisclosure of information. The Paying Agent, to fund Transfer Agent and Registrar shall be indemnified and held harmless by the Required Amount Issuer from and (ii) do not impose new or additional conditions against all losses suffered by them that may arise as a result of the agents being prevented from fulfilling their obligations hereunder due to the receipt of such financing relative to the Commitment Letters that could impair or delay the Closing. Parent shall promptly provide the Company extent doing so would not be consistent with a copy of any definitive commitment letter or other documentation providing for such alternative financing arrangement. applicable statutory anti-money laundering requirements.
17.4 Notwithstanding anything to the contrary hereinin this Agreement or in any other agreement, arrangement or understanding among any such parties, each party hereto acknowledges that any liability of any party arising under this Agreement or any such other document, to the Stockholder extent such liability is unsecured or not otherwise exempted, may designate be subject to the write-down and conversion powers of a Resolution Authority and agrees and consents to, and acknowledges and agrees to be bound by:
(a) the application of any Regulatory Disclosures that contain sensitiveWrite-Down and Conversion Powers by a Resolution Authority to any such liabilities arising hereunder which may be payable to it by any party hereto; and
(b) the effects of any Bail-in Action on any such liability, legally privilegedincluding, if applicable:
1. a reduction in full or in part or cancellation of any such liability;
2. a conversion of all, or confidential information a portion of, such liability into shares or other instruments of ownership in such party, its parent undertaking, or a bridge institution that may be issued to it or otherwise conferred on it, and that such shares or other instruments of ownership will be accepted by it in lieu of any rights with respect to any such liability under this Agreement or any other agreement; or
3. the variation of the Stockholder or any terms of its Affiliates as exclusive to the Stockholder and the Stockholder may provide that any such sensitive, legally privileged, or confidential information may only be provided on a counsel-only basis or directly to the applicable Governmental Authority requesting such information. The Stockholder shall not make any filings, or notifications liability in connection with the Merger pursuant to any Antitrust Laws without Parent’s prior written consent (not to be unreasonably withheld, delayed or conditioned). Parent or the Company shall not file any Regulatory Filings that contain information with respect to the Stockholder or its affiliates without first providing the Stockholder and its counsel a reasonable opportunity to review and comment thereon, and will give good faith consideration to all reasonable additions, deletions or changes suggested by the Stockholder and its counsel.
(b) Each Stockholder hereto represent, warrant and covenant to Parent and to the Company that, to such Stockholder’s knowledge: (i) none exercise of the information supplied in writing by such Stockholder specifically for inclusion or incorporation by reference in write-down and conversion powers of any Resolution Authority. For the Regulatory Disclosures will contain a material misstatement purpose of fact or a material omission of fact necessary to make this sub-clause 17.4 the information provided not misleading and (ii) it does not permit any entity under following terms shall have the “control” (defined in Section 721 of the Defense Production Act, as amended, including all implanting regulations thereof) of a People’s Republic of China national, or any entity under the control of a Russian Federation national, to obtain through any Affiliate, control with respect to the Company.following meanings:
Appears in 6 contracts
Samples: Agency Agreement (Booking Holdings Inc.), Agency Agreement (W. P. Carey Inc.), Agency Agreement (W. P. Carey Inc.)
Regulatory Matters. (a) Subject to Section 4.4, 9.1 In the Stockholder shall, and shall use their reasonable best efforts to cause their Affiliates to, use their reasonable best efforts, consistent with event that the time frames set forth in Section 6.4 of the Merger Agreement, to supply and provide information that, to such Stockholder’s knowledge, is complete and accurate in all material respects to FERC takes any Governmental Authority requesting such information in connection with filings or notifications under, or relating to, applicable laws that are required or advisable as a result of, or pursuant to, the Merger Agreement and the related financings and transactions, including, without limitation, information required or requested to be provided to any antitrust, financial or national security regulatory authorities in connection with any approvals reasonably sought in connection with the consummation of the Merger (collectively, the “Regulatory Filings” and the, “Regulatory Disclosures”, respectively). If any Governmental Authority seeks to prevent the consummation of the transactions contemplated by the Merger Agreement based on the HSR Act or any other Antitrust Laws or based on any other required approval, consent, notice or filing with a Governmental Authority and such actions by the Governmental Authority relate to the activities or investments of such Stockholder or its Affiliates (solely for purposes of this Section 4, an “Affiliate” of the Stockholder shall include any portfolio company in which such Stockholder or any of its Affiliates has made a debt or an equity investment), then if Parent in good faith reasonably determines that such actions by the Governmental Authority will not be resolved sufficiently in advance of the Termination Date, Parent may provide written notice of that determination to the Stockholder, and Parent may elect to terminate the obligations under Section 2 and Section 4.6 of this Agreement (in which case the Stockholder’s obligations under the Equity Commitment Letter shall also automatically terminate) and, in that context, the Stockholder shall be entitled to receive the Per Share Price under the Merger Agreement with respect to its shares of Common Stock; provided, however that Parent shall not terminate the Equity Commitment Letter or the obligations under Section 2 of this Agreement pursuant to this Section 4.3(a) without first obtaining alternative financing arrangements which provide Parent with funds in an amount equal to the Rollover Amount; provided that such alternative financing arrangements (i) provide Parent with sufficient funds, when added to the proceeds of the Equity Financing, Debt Financing and other sources of readily available liquidity of Parent, Merger Sub, the Company and the Company’s Subsidiaries on the Closing Date, to fund the Required Amount and (ii) do not impose new or additional conditions to the receipt of such financing relative to the Commitment Letters that could impair or delay the Closing. Parent shall promptly provide the Company with a copy of any definitive commitment letter or other documentation providing for such alternative financing arrangement. Notwithstanding anything to the contrary herein, the Stockholder may designate any Regulatory Disclosures that contain sensitive, legally privileged, or confidential information in respect of the Stockholder or any of its Affiliates as exclusive to the Stockholder and the Stockholder may provide that any such sensitive, legally privileged, or confidential information may only be provided on a counsel-only basis or directly to the applicable Governmental Authority requesting such information. The Stockholder shall not make any filings, or notifications in connection with the Merger pursuant to any Antitrust Laws without Parent’s prior written consent (not to be unreasonably withheld, delayed or conditioned). Parent or the Company shall not file any Regulatory Filings that contain information adverse action with respect to the Stockholder Tariffs or any tariffs that MPL may file in the future, in each case that negatively affects the rights or obligations of MPC under this Agreement, MPL shall diligently defend the Tariffs, including appealing any such adverse action. If any such adverse action is not stayed pending appeal, each Party’s obligations under this Agreement shall be suspended until a stay is implemented or a final, non-appealable decision is rendered with respect to such adverse action. If a final, non-appealable decision is ultimately issued by the FERC and confirmed by a court having final authority in the matter that requires MPL to amend the Tariffs in a manner that is fundamentally contradictory to the provisions of this Agreement, then the Parties shall negotiate in good faith to amend this Agreement to comply with any such judgment and to retain the protections and structures reflected by its affiliates without first providing current terms to the Stockholder and its counsel maximum extent permissible under such judgment. In the event the Parties are unable to reach agreement with respect to such an amendment within a reasonable opportunity period of time (which shall not be less than thirty (30) Days) after the issuance of such final judgment, then either Party may terminate this Agreement upon written notice to review the other Party.
9.2 MPC hereby agrees: (a) to take all such actions and comment thereondo all such things as MPL shall reasonably request in connection with its applications for, and will give good faith consideration to all reasonable additionsthe processing of, deletions or changes suggested by the Stockholder any necessary certificates, approvals and its counsel.
authorizations of any applicable Governmental Authorities; (b) Each Stockholder hereto represent, warrant and covenant at all times to Parent and support the Tariffs specified in this Agreement as a rate that MPC has agreed to pay; (c) not directly or indirectly take any action that indicates a lack of support for the Company that, Tariffs at the terms agreed to such Stockholder’s knowledge: (i) none of the information supplied by MPC in writing by such Stockholder specifically for inclusion or incorporation by reference in the Regulatory Disclosures will contain a material misstatement of fact or a material omission of fact necessary to make the information provided not misleading this Agreement; and (iid) it does not permit to file any entity under action, protest, complaint or other action with the “control” (defined in Section 721 of the Defense Production Act, as amended, including all implanting regulations thereof) of a People’s Republic of China national, or any entity under the control of a Russian Federation national, to obtain through any Affiliate, control FERC with respect to the CompanyTariffs, including any increased rates based on the inflationary index referred to in Section 3.12.
9.3 The Parties acknowledge and agree that MPL operates the Pipeline System as a common carrier, and MPC’s rights as a shipper on the Pipeline System shall be subject to all Applicable Laws related to common carrier pipelines. The terms and provisions of the Tariffs shall apply to the services provided by MPL pursuant to this Agreement.
9.4 In carrying out the terms and provisions of this Agreement, the Parties shall comply with all present and future Applicable Laws of any Governmental Authority having jurisdiction.
Appears in 6 contracts
Samples: Transportation Services Agreement (MPLX Lp), Transportation Services Agreement (MPLX Lp), Transportation Services Agreement (MPLX Lp)
Regulatory Matters. (a) Subject The Parties are entering into this Agreement in reliance upon and shall fully comply with all Applicable Law which directly or indirectly affects the services provided hereunder. Each Party shall be responsible for compliance with all Applicable Law associated with such Party’s respective performance hereunder and the operation of such Party’s facilities. In the event any action or obligation imposed upon a Party under this Agreement shall at any time be in conflict with any requirement of Applicable Law, then this Agreement shall immediately be modified to Section 4.4, conform the Stockholder shallaction or obligation so adversely affected to the requirements of the Applicable Law, and shall use their reasonable best efforts to cause their Affiliates to, use their reasonable best efforts, consistent with the time frames set forth in Section 6.4 of the Merger Agreement, to supply and provide information that, to such Stockholder’s knowledge, is complete and accurate in all material respects to any Governmental Authority requesting such information in connection with filings or notifications under, or relating to, applicable laws that are required or advisable as a result of, or pursuant to, the Merger Agreement and the related financings and transactions, including, without limitation, information required or requested to be provided to any antitrust, financial or national security regulatory authorities in connection with any approvals reasonably sought in connection with the consummation of the Merger (collectively, the “Regulatory Filings” and the, “Regulatory Disclosures”, respectively). If any Governmental Authority seeks to prevent the consummation of the transactions contemplated by the Merger Agreement based on the HSR Act or any other Antitrust Laws or based on any other required approval, consent, notice or filing with a Governmental Authority and such actions by the Governmental Authority relate to the activities or investments of such Stockholder or its Affiliates (solely for purposes of this Section 4, an “Affiliate” of the Stockholder shall include any portfolio company in which such Stockholder or any of its Affiliates has made a debt or an equity investment), then if Parent in good faith reasonably determines that such actions by the Governmental Authority will not be resolved sufficiently in advance of the Termination Date, Parent may provide written notice of that determination to the Stockholder, and Parent may elect to terminate the obligations under Section 2 and Section 4.6 provisions of this Agreement (in which case the Stockholder’s obligations under the Equity Commitment Letter shall also automatically terminate) and, in that context, the Stockholder shall be entitled to receive the Per Share Price under the Merger Agreement with respect to its shares of Common Stock; provided, however that Parent shall not terminate the Equity Commitment Letter or the obligations under Section 2 of this Agreement pursuant to this Section 4.3(a) without first obtaining alternative financing arrangements which provide Parent with funds in an amount equal to the Rollover Amount; provided that such alternative financing arrangements (i) provide Parent with sufficient funds, when added to the proceeds of the Equity Financing, Debt Financing and other sources of readily available liquidity of Parent, Merger Sub, the Company and the Company’s Subsidiaries on the Closing Date, to fund the Required Amount and (ii) do not impose new or additional conditions to the receipt of such financing relative to the Commitment Letters that could impair or delay the Closing. Parent shall promptly provide the Company with a copy of any definitive commitment letter or other documentation providing for such alternative financing arrangement. Notwithstanding anything to the contrary herein, the Stockholder may designate any Regulatory Disclosures that contain sensitive, legally privileged, or confidential information in respect of the Stockholder or any of its Affiliates as exclusive to the Stockholder and the Stockholder may provide that any such sensitive, legally privileged, or confidential information may only be provided on a counsel-only basis or directly to the applicable Governmental Authority requesting such information. The Stockholder shall not make any filings, or notifications in connection with the Merger pursuant to any Antitrust Laws without Parent’s prior written consent (not to be unreasonably withheld, delayed or conditioned). Parent or the Company shall not file any Regulatory Filings that contain information with respect to the Stockholder or its affiliates without first providing the Stockholder and its counsel a reasonable opportunity to review and comment thereon, and will give good faith consideration to all reasonable additions, deletions or changes suggested by the Stockholder and its counselremain effective.
(b) Each Stockholder hereto representIf during the Term, warrant any new Applicable Law becomes effective or any existing Applicable Law or its interpretations is materially changed, which change is not addressed by another provision of this Agreement and covenant which has a material adverse economic impact upon a Party, either Party, acting in good faith, shall have the option to Parent and to the Company that, to such Stockholder’s knowledge: (i) none request renegotiation of the information supplied in writing by such Stockholder specifically for inclusion or incorporation by reference in the Regulatory Disclosures will contain a material misstatement relevant provisions of fact or a material omission of fact necessary to make the information provided not misleading and (ii) it does not permit any entity under the “control” (defined in Section 721 of the Defense Production Act, as amended, including all implanting regulations thereof) of a People’s Republic of China national, or any entity under the control of a Russian Federation national, to obtain through any Affiliate, control this Agreement with respect to future performance. The Parties shall then meet to negotiate in good faith amendments to this Agreement that will conform to the Companynew Applicable Law while preserving the Parties’ economic, operational, commercial and competitive arrangements in accordance with the understandings set forth herein.
(c) If during the Term, the Logistics Entity is required, under Applicable Law, to file one or more tariffs with any Governmental Authority, in order to provide the services provided under this Agreement, the Refining Entity hereby agrees that, if the services to be provided under such tariff or tariffs is provided in conformance with this Agreement, including but not limited to the rates provided hereunder, the Refining Entity will not oppose, or assist any other party in opposing, the filing of such tariff or tariffs.
Appears in 5 contracts
Samples: Pipelines and Tankage Agreement, Pipelines and Tankage Agreement, Pipelines and Tankage Agreement (Delek US Holdings, Inc.)
Regulatory Matters. 17.1. The Paying Agent is authorised and regulated by the Central Bank of Ireland (a“CBOI”) Subject and its activities in the UK are subject to Section 4.4, limited regulation by the Stockholder shall, and shall use their reasonable best efforts to cause their Affiliates to, use their reasonable best efforts, consistent with the time frames set forth in Section 6.4 of the Merger Agreement, to supply and provide information that, to such Stockholder’s knowledge, is complete and accurate in all material respects to any Governmental UK Prudential Regulation Authority requesting such information in connection with filings or notifications under, or relating to, applicable laws that are required or advisable as a result of, or pursuant to, the Merger Agreement (“PRA”) and the related financings and transactions, including, without limitation, information required or requested to be provided to any antitrust, financial or national security regulatory authorities in connection with any approvals reasonably sought in UK Financial Conduct Authority (“FCA”).
17.2. In connection with the consummation worldwide effort against the funding of the Merger (collectivelyterrorism and money laundering activities, the “Regulatory Filings” Paying Agent, Transfer Agent and theRegistrar may be required under various national laws and regulations to which they are subject to obtain, “Regulatory Disclosures”verify and record information that identifies each person who opens an account with it. For a non-individual person such as a business entity, respectively). If any Governmental Authority seeks to prevent the consummation of the transactions contemplated by the Merger Agreement based on the HSR Act a charity, a trust or any other Antitrust Laws or based on any other required approval, consent, notice or filing with a Governmental Authority and such actions by the Governmental Authority relate to the activities or investments of such Stockholder or its Affiliates (solely for purposes of this Section 4, an “Affiliate” of the Stockholder shall include any portfolio company in which such Stockholder or any of its Affiliates has made a debt or an equity investment), then if Parent in good faith reasonably determines that such actions by the Governmental Authority will not be resolved sufficiently in advance of the Termination Date, Parent may provide written notice of that determination to the Stockholder, and Parent may elect to terminate the obligations under Section 2 and Section 4.6 of this Agreement (in which case the Stockholder’s obligations under the Equity Commitment Letter shall also automatically terminate) and, in that contextlegal entity, the Stockholder Paying Agent, Transfer Agent and Registrar shall be entitled to receive ask for documentation to verify such entity’s formation and legal existence as well as financial statements, licenses, identification and authorisation documents from individuals claiming authority to represent the Per Share Price under the Merger entity or other relevant documentation.
17.3. The parties to this Agreement with respect to its shares of Common Stock; provided, however acknowledge and agree that Parent shall not terminate the Equity Commitment Letter or the obligations of the Paying Agent, Transfer Agent and Registrar under Section 2 of this Agreement pursuant are limited by and subject to this Section 4.3(a) without first obtaining alternative financing arrangements which provide Parent compliance by them with funds in an amount equal to European Union and US Federal anti-money laundering statutes and regulations. If the Rollover Amount; provided Paying Agent, Transfer Agent and Registrar or any of their directors know or suspect that such alternative financing arrangements (i) provide Parent with sufficient funds, when added to a payment is the proceeds of criminal conduct, and such person is required to report such information pursuant to the Equity Financingapplicable authorities, Debt Financing and such report shall not be treated as a breach by such person of any confidentiality covenant or other sources of readily available liquidity of Parentrestriction imposed on such person under this Agreement, Merger Sub, the Company and the Company’s Subsidiaries by law or otherwise on the Closing Datedisclosure of information. The Paying Agent, to fund Transfer Agent and Registrar shall be indemnified and held harmless by the Required Amount Issuer from and (ii) do not impose new or additional conditions against all losses suffered by them that may arise as a result of the agents being prevented from fulfilling their obligations hereunder due to the receipt of such financing relative to the Commitment Letters that could impair or delay the Closing. Parent shall promptly provide the Company extent doing so would not be consistent with a copy of any definitive commitment letter or other documentation providing for such alternative financing arrangementapplicable statutory anti-money laundering requirements.
17.4. Notwithstanding anything to the contrary hereinin this Agreement or in any other agreement, arrangement or understanding among any such parties, each party hereto acknowledges that any liability of any party arising under this Agreement or any such other document to which this Agreement relates, to the Stockholder extent such liability is unsecured or not otherwise exempted, may designate be subject to the Write-down and Conversion Powers of a Resolution Authority and agrees and consents to, and acknowledges and agrees to be bound by:
(a) the application of any Regulatory Disclosures that contain sensitiveWrite-Down and Conversion Powers by a Resolution Authority to any such liabilities arising hereunder which may be payable to it by any party hereto; and
(b) the effects of any Bail-in Action on any such liability, legally privilegedincluding any of the following, or confidential information some combination thereof, if applicable:
1. a reduction in full or in part or cancellation of any such liability;
2. a conversion of all, or a portion of, such liability into shares or other instruments of ownership in such party, its parent undertaking, or a bridge institution that may be issued to it or otherwise conferred on it, and that such shares or other instruments of ownership will be accepted by it in lieu of any rights with respect to any such liability under this Agreement or any other agreement; or
3. the variation of the Stockholder or any terms of its Affiliates as exclusive to the Stockholder and the Stockholder may provide that any such sensitive, legally privileged, or confidential information may only be provided on a counsel-only basis or directly to the applicable Governmental Authority requesting such information. The Stockholder shall not make any filings, or notifications liability in connection with the Merger pursuant to any Antitrust Laws without Parent’s prior written consent (not to be unreasonably withheld, delayed or conditioned). Parent or the Company shall not file any Regulatory Filings that contain information with respect to the Stockholder or its affiliates without first providing the Stockholder and its counsel a reasonable opportunity to review and comment thereon, and will give good faith consideration to all reasonable additions, deletions or changes suggested by the Stockholder and its counsel.
(b) Each Stockholder hereto represent, warrant and covenant to Parent and to the Company that, to such Stockholder’s knowledge: (i) none exercise of the information supplied in writing by such Stockholder specifically for inclusion or incorporation by reference in Write-down and Conversion Powers of any Resolution Authority. For the Regulatory Disclosures will contain a material misstatement purpose of fact or a material omission of fact necessary to make this sub-clause 17.4 the information provided not misleading and (ii) it does not permit any entity under following terms shall have the “control” (defined in Section 721 of the Defense Production Act, as amended, including all implanting regulations thereof) of a People’s Republic of China national, or any entity under the control of a Russian Federation national, to obtain through any Affiliate, control with respect to the Company.following meanings:
Appears in 5 contracts
Samples: Agency Agreement (Emerson Electric Co), Agency Agreement (Emerson Electric Co), Agency Agreement (Emerson Electric Co)
Regulatory Matters. (a) Subject 21.1 Notwithstanding anything to Section 4.4the contrary contained in this Agreement or any of the other Security Documents, the Stockholder shallrights of the Pledgee and the other Secured Parties hereunder and under the other Security Documents are subject to all applicable rules and regulations of the FCC and other Governmental Authorities with jurisdiction over Pledgor and its subsidiaries. Without limiting the foregoing, the Pledgee will not take any action (or authorize any other party to take any action on its behalf) which would constitute or result in an assignment or change of control of any governmental permits, licenses, or other authorizations, including without limitation those issued by the FCC, now held by or to be issued to Pledgor or any of its subsidiaries which would require prior notice to or approval from any Governmental Authority, or otherwise take action hereunder which would require prior notice to or approval from any Governmental Authority, in each case without first providing such notice or obtaining such prior approval of the relevant Governmental Authorities.
21.2 Upon and after the issuance of a Default Notice, the Pledgor shall take any action which the Pledgee may reasonably request in the exercise of its rights and remedies under this Agreement in order to transfer or assign the Collateral to the Pledgee or to such one or more third parties as the Pledgee may designate, or to a combination of the foregoing. To enforce the provisions of this Clause 21, upon and after the issuance of a Default Notice, the Pledgee is empowered to seek from the FCC and any other Governmental Authority, to the extent required, consent to or approval of any involuntary assignment or transfer of control of any entity whose Collateral is subject to this Agreement for the purpose of seeking a bona fide purchaser to whom the Collateral will be assigned and control will ultimately be transferred. Pledgor agrees to cooperate with any such purchaser and with the Pledgee in the preparation, execution and filing of any applications and other documents and providing any information that may be necessary or helpful in obtaining the FCC’s or such other Governmental Authority’s consent to the assignment to such purchaser of the Collateral. Pledgor hereby agrees to consent to any such an involuntary transfer of control upon the request of the Pledgee upon and after the issuance of a Default Notice and, without limiting any rights of the Pledgee under this Agreement, to authorize the Pledgee to nominate a trustee or receiver to assume control of the Collateral, subject only to required judicial, FCC or other consent required by Governmental Authorities, in order to effectuate the transactions contemplated in this Clause 21. Such trustee or receiver shall have all the rights and powers as provided to it by law or court order, or to the Pledgee under this Agreement. Pledgor shall cooperate fully in obtaining the consent of the FCC and the approval or consent of each other Governmental Authority required to effectuate the foregoing.
21.3 Upon and after the issuance of a Default Notice, Pledgor shall use their reasonable its best efforts to cause their Affiliates to, use their reasonable best efforts, consistent with the time frames set forth assist in Section 6.4 obtaining consent or approval of the Merger FCC and any other Governmental Authority, if required, for any action or transactions contemplated by this Agreement, to supply and provide information that, to such Stockholder’s knowledge, is complete and accurate in all material respects to any Governmental Authority requesting such information in connection with filings or notifications under, or relating to, applicable laws that are required or advisable as a result of, or pursuant to, the Merger Agreement and the related financings and transactions, including, without limitation, information required or requested to be provided to any antitrustthe preparation, financial or national security regulatory authorities in connection with any approvals reasonably sought in connection execution and filing with the consummation FCC of the Merger (collectively, transferor’s or assignor’s portion of any application or applications for consent to the “Regulatory Filings” transfer of control or assignment necessary or appropriate under the FCC’s rules and the, “Regulatory Disclosures”, respectively). If any Governmental Authority seeks to prevent the consummation regulations for approval of the transactions contemplated by the Merger Agreement based on the HSR Act transfer or assignment of any other Antitrust Laws or based on any other required approval, consent, notice or filing with a Governmental Authority and such actions by the Governmental Authority relate to the activities or investments of such Stockholder or its Affiliates (solely for purposes of this Section 4, an “Affiliate” portion of the Stockholder shall include any portfolio company in which such Stockholder or any Collateral.
21.4 Pledgor hereby acknowledges and agrees that the Collateral is a unique asset and that a violation of its Affiliates has made a debt or an equity investment), then if Parent in good faith reasonably determines that such actions by the Governmental Authority will not be resolved sufficiently in advance of the Termination Date, Parent may provide written notice of that determination Pledgor’s covenant to the Stockholder, and Parent may elect to terminate the obligations under Section 2 and Section 4.6 of this Agreement (in which case the Stockholder’s obligations under the Equity Commitment Letter shall also automatically terminate) and, in that context, the Stockholder shall be entitled to receive the Per Share Price under the Merger Agreement cooperate with respect to any regulatory consents would result in irreparable harm to the Pledgee for which monetary damages are not readily ascertainable. Pledgor further agrees that, because of the unique nature of its shares undertaking in this subclause 21.4, the same may be specifically enforced, and it hereby waives, and agrees to waive, any claim or defense that the Pledgee would have an adequate remedy at law for the breach of Common Stock; provided, however that Parent shall not terminate the Equity Commitment Letter or this undertaking.
21.5 Without limiting the obligations under Section 2 of this Agreement pursuant Pledgor hereunder in any respect, Pledgor further agrees that if Pledgor, upon and after the issuance of a Default Notice, should fail or refuse to this Section 4.3(a) without first obtaining alternative financing arrangements which provide Parent with funds in an amount equal execute any application or other document necessary or appropriate to obtain any governmental consent necessary or appropriate for the exercise of any right of the Pledgee hereunder, Pledgor agrees, to the Rollover Amount; provided extent consistent with applicable law, that such alternative financing arrangements (i) provide Parent with sufficient funds, when added application or other document may be executed on Pledgor’s behalf by the clerk of any court or other forum in any competent jurisdiction without notice to the proceeds of the Equity Financing, Debt Financing and other sources of readily available liquidity of Parent, Merger Sub, the Company and the Company’s Subsidiaries on the Closing Date, to fund the Required Amount and (ii) do not impose new or additional conditions to the receipt of such financing relative to the Commitment Letters that could impair or delay the Closing. Parent shall promptly provide the Company with a copy of any definitive commitment letter or other documentation providing for such alternative financing arrangement. Notwithstanding anything to the contrary herein, the Stockholder may designate any Regulatory Disclosures that contain sensitive, legally privileged, or confidential information in respect of the Stockholder or any of its Affiliates as exclusive to the Stockholder and the Stockholder may provide that any such sensitive, legally privileged, or confidential information may only be provided on a counsel-only basis or directly to the applicable Governmental Authority requesting such information. The Stockholder shall not make any filings, or notifications in connection with the Merger pursuant to any Antitrust Laws without Parent’s prior written consent (not to be unreasonably withheld, delayed or conditioned). Parent or the Company shall not file any Regulatory Filings that contain information with respect to the Stockholder or its affiliates without first providing the Stockholder and its counsel a reasonable opportunity to review and comment thereon, and will give good faith consideration to all reasonable additions, deletions or changes suggested by the Stockholder and its counselPledgor.
(b) Each Stockholder hereto represent, warrant and covenant to Parent and to the Company that, to such Stockholder’s knowledge: (i) none of the information supplied in writing by such Stockholder specifically for inclusion or incorporation by reference in the Regulatory Disclosures will contain a material misstatement of fact or a material omission of fact necessary to make the information provided not misleading and (ii) it does not permit any entity under the “control” (defined in Section 721 of the Defense Production Act, as amended, including all implanting regulations thereof) of a People’s Republic of China national, or any entity under the control of a Russian Federation national, to obtain through any Affiliate, control with respect to the Company.
Appears in 5 contracts
Samples: Agreement of Disclosed Pledge, Agreement of Disclosed Pledge (New Skies Satellites Holdings Ltd.), Pledge Agreement (New Skies Satellites Holdings Ltd.)
Regulatory Matters. (a) Subject to Section 4.4As promptly as practicable following the date of this Agreement, Cascade shall promptly prepare and file with the Stockholder shallSEC the S-4, in which the Joint Proxy Statement will be included. Each of Cascade and Home shall use their its commercially reasonable best efforts to cause their Affiliates to, respond as promptly as practicable to any written or oral comments from the SEC or its staff with respect to the S-4 or any related matters. Each of Home and Cascade shall use their its commercially reasonable best efforts, consistent with efforts to have the time frames set forth in Section 6.4 of S-4 declared effective under the Securities Act as promptly as practicable after such filing and to maintain such effectiveness for as long as necessary to consummate the Merger and the other transactions contemplated by this Agreement. Upon the S-4 being declared effective, Home and Cascade shall thereafter mail or deliver the Joint Proxy Statement to their respective shareholders. Cascade shall also use its commercially reasonable best efforts to obtain all necessary state securities law or “Blue Sky” permits and approvals required to carry out the transactions contemplated by this Agreement, to supply and provide Home shall furnish all information that, to such Stockholder’s knowledge, is complete and accurate in all material respects to any Governmental Authority requesting such information in connection with filings or notifications under, or relating to, applicable laws that are required or advisable as a result of, or pursuant to, the Merger Agreement concerning Home and the related financings and transactions, including, without limitation, information required or holders of Home Common Stock as may be reasonably requested to be provided to any antitrust, financial or national security regulatory authorities in connection with any approvals reasonably sought such action. If at any time prior to the Effective Time any event occurs or information relating to Home or Cascade, or any of their respective affiliates, directors or officers, should be discovered by Home or Cascade that should be set forth in connection an amendment or supplement to either the S-4 or the Joint Proxy Statement, so that either such document would not include any misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, the party that discovers such information shall promptly notify the other party hereto and an appropriate amendment or supplement describing such information shall be promptly filed with the consummation of SEC and, to the extent required by applicable law, disseminated to Home’s shareholders.
(b) In addition to their obligations pursuant to Section 6.1(a), Cascade shall make all necessary filings with respect to the Merger (collectively, and the “Regulatory Filings” and the, “Regulatory Disclosures”, respectively). If any Governmental Authority seeks to prevent the consummation of the other transactions contemplated by this Agreement under the Merger Agreement based on Securities Act, the HSR Exchange Act and applicable foreign or state securities or “Blue Sky” laws and regulations promulgated thereunder and provide Home with copies of any other Antitrust Laws such filings. Cascade shall advise Home, promptly after receipt of notice thereof, of (and provide copies of any notices or based on any other required approval, consent, notice or filing communications with a Governmental Authority and such actions by respect to) the Governmental Authority relate to the activities or investments of such Stockholder or its Affiliates (solely for purposes of this Section 4, an “Affiliate” time of the Stockholder shall include any portfolio company in which such Stockholder or any of its Affiliates has made a debt or an equity investment), then if Parent in good faith reasonably determines that such actions by the Governmental Authority will not be resolved sufficiently in advance effectiveness of the Termination Date, Parent may provide written notice of that determination to the Stockholder, and Parent may elect to terminate the obligations under Section 2 and Section 4.6 of this Agreement (in which case the Stockholder’s obligations under the Equity Commitment Letter shall also automatically terminate) and, in that contextS-4, the Stockholder shall be entitled to receive filing of any supplement or amendment thereto, the Per Share Price under issuance of any stop order relating thereto, the Merger Agreement with respect to its shares of Common Stock; provided, however that Parent shall not terminate the Equity Commitment Letter or the obligations under Section 2 of this Agreement pursuant to this Section 4.3(a) without first obtaining alternative financing arrangements which provide Parent with funds in an amount equal to the Rollover Amount; provided that such alternative financing arrangements (i) provide Parent with sufficient funds, when added to the proceeds suspension of the Equity Financing, Debt Financing and other sources qualification of readily available liquidity of Parent, Merger Sub, the Company and the Company’s Subsidiaries on the Closing Date, to fund the Required Amount and (ii) do not impose new or additional conditions to the receipt of such financing relative to the Commitment Letters that could impair or delay the Closing. Parent shall promptly provide the Company with a copy of any definitive commitment letter or other documentation providing for such alternative financing arrangement. Notwithstanding anything to the contrary herein, the Stockholder may designate any Regulatory Disclosures that contain sensitive, legally privileged, or confidential information in respect of the Stockholder or any of its Affiliates as exclusive to the Stockholder and the Stockholder may provide that any such sensitive, legally privileged, or confidential information may only be provided on a counsel-only basis or directly to the applicable Governmental Authority requesting such information. The Stockholder shall not make any filings, or notifications Cascade Common Stock issuable in connection with the Merger pursuant for offering or sale in any jurisdiction, or of any request by the SEC or its staff for amendment to any Antitrust Laws the Joint Proxy Statement or the S-4, comments thereon from the SEC’s staff and each party’s responses thereto or request of the SEC or its staff for additional information. No amendment or supplement to the Joint Proxy Statement or the S-4 shall be filed without Parent’s prior written consent (the approval of each of Home and Cascade, which approval shall not to be unreasonably withheld, delayed or conditioned.
(c) Subject to the terms and conditions set forth in this Agreement, Cascade and Home shall, and shall cause their respective Subsidiaries to, use commercially reasonable best efforts to take, or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate with the other party in doing, all things necessary, proper or advisable to consummate and make effective, in the most expeditious manner practicable, the transactions contemplated by this Agreement, including (i) the satisfaction of the conditions precedent to the obligations of Home (in the case of Cascade) or Cascade (in the case of Home) to the Merger, (ii) the obtaining of all necessary consents or waivers from third parties, (iii) the obtaining of all necessary actions or no-actions, expirations or terminations of waiting periods under the HSR Act or other antitrust laws, waivers, consents, authorizations, permits, orders and approvals from, or any exemption by, any Regulatory Agencies or other Governmental Entities and the taking of all commercially reasonable steps as may be necessary to obtain expirations or terminations of waiting periods under the HSR Act or other antitrust laws, an approval or waiver from, or to avoid an action or proceeding by, any Regulatory Agency or other Governmental Entity, and (iv) the execution and delivery of any additional instruments necessary to consummate the Merger, the Bank Merger and to fully carry out the purposes of this Agreement. The Parties shall cooperate with each other and use their respective commercially reasonable best efforts to promptly prepare and file, and cause their respective Subsidiaries to prepare and file, all necessary documentation, to effect all applications, notices, petitions and filings, to obtain as promptly as practicable all permits, consents, approvals and authorizations of all third parties, Regulatory Agencies and other Governmental Entities that are necessary or advisable to consummate the transactions contemplated by this Agreement (including the Merger and the Bank Merger), and to comply with the terms and conditions of all such permits, consents, approvals and authorizations of all such third parties or Governmental Entities. Parent or In furtherance (but not in limitation) of the Company foregoing, Cascade shall, and shall not cause Cascade Bank to, use commercially reasonable efforts to file any required applications, notices or other filings with the Federal Reserve Board, the Idaho Department, the Oregon Division and the FDIC within forty-five (45) days after the date hereof. Home and Cascade 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 relating to the confidentiality of information, all the information relating to Home or Cascade, as the case may be, and any of their respective Subsidiaries, that appear in any filing made with, or written materials submitted to, any third party, Regulatory Filings that contain information Agency or other Governmental Entity in connection with the transactions contemplated by this Agreement. In exercising the foregoing right, each of the Parties shall act reasonably and as promptly as practicable. The Parties shall consult with each other with respect to the Stockholder or its affiliates without first providing the Stockholder obtaining of all permits, consents, approvals and its counsel a reasonable opportunity to review and comment thereonauthorizations of all third parties, Regulatory Agencies, and other Governmental Entities necessary or advisable to consummate the transactions contemplated by this Agreement and each party will give good faith consideration keep the other apprised of the status of matters relating to all reasonable additions, deletions or changes suggested completion of the transactions contemplated by the Stockholder and its counselthis Agreement.
(bd) Each Stockholder hereto representof Cascade and Home shall, warrant and covenant to Parent and upon request, furnish to the Company thatother all information concerning itself, its Subsidiaries, directors, officers and shareholders and such other matters as may be reasonably necessary or advisable in connection with the Joint Proxy Statement, the S-4 or any other statement, filing, notice or application made by or on behalf of Cascade, Home or any of their respective Subsidiaries to such Stockholder’s knowledge: any Regulatory Agency or other Governmental Entity in connection with the Merger, the Bank Merger and the other transactions contemplated by this Agreement.
(ie) none Each of Cascade and Home shall promptly advise the other upon receiving any communication from any Regulatory Agency or other Governmental Entity the consent or approval of which is required for consummation of the information supplied in writing transactions contemplated by this Agreement that causes such Stockholder specifically for inclusion Party to believe that there is a reasonable likelihood that any Requisite Regulatory Approval will not be obtained or incorporation by reference in that the Regulatory Disclosures will receipt of any such approval may be materially delayed, or that any such approval may contain a material misstatement of fact or a material omission of fact necessary to make the information provided not misleading and an Unduly Burdensome Condition (ii) it does not permit any entity under the “control” (as defined in Section 721 of the Defense Production Act, as amended, including all implanting regulations thereof) of a People’s Republic of China national, or any entity under the control of a Russian Federation national, to obtain through any Affiliate, control with respect to the Company7.2(e)).
Appears in 4 contracts
Samples: Merger Agreement (Home Federal Bancorp, Inc.), Merger Agreement (Cascade Bancorp), Merger Agreement (Cascade Bancorp)
Regulatory Matters. 18.1 Each Party shall ensure that it, or shall procure that where relevant, its Affiliate, at its or their own cost, obtains and maintains throughout the Term all Governmental Entity certificates, permits, licences or approvals that it (aor the relevant Affiliate) Subject respectively requires for the purposes of this Agreement and for the performance of its obligations (or the obligations of its Affiliates) under this Agreement.
18.2 Without prejudice to Section 4.4clause 18.1, the Stockholder Supplier shall, or shall procure that the Nominated Supplier or Permitted Subcontractor shall, at its own cost, (A) obtain and shall use their reasonable best efforts to cause their Affiliates to, use their reasonable best efforts, consistent with maintain throughout the time frames set forth in Section 6.4 of the Merger Agreement, to supply and provide information that, to such Stockholder’s knowledge, is complete and accurate in all material respects to Term any Governmental Authority requesting such information in connection with filings or notifications under, or relating to, applicable laws that are Manufacturing Licences required or advisable as a result of, or pursuant to, the Merger Agreement and the related financings and transactions, including, without limitation, information required or requested to be provided to any antitrust, financial or national security regulatory authorities in connection with any approvals reasonably sought in connection with the consummation Manufacture of the Merger Products, and (collectivelyB) subject to Applicable Laws, provide to the Purchaser promptly upon reasonable request thereof copies of any documentation relating to such Manufacturing Licenses that are required for the Purchaser (or its Affiliate) to obtain or maintain its Governmental Entity certificates, permits, wholesale distribution licences, licences and approvals, including all Marketing Authorisations, referred to in clause 18.3, or to respond to any official requests or CMC-related questions from any Governmental Entity.
18.3 Without prejudice to clause 18.1, the “Regulatory Filings” Purchaser shall (or shall procure that its Affiliates shall), at its own cost, obtain and themaintain all Governmental Entity certificates, “Regulatory Disclosures”permits, respectively). If wholesale distribution licences, licences and approvals, including all Marketing Authorisations, necessary for the Purchaser’s Group to export from the Delivery site, import to the destination Territory, distribute, sell and otherwise commercialise each Product (or, as applicable, Finished Products manufactured using Products) in the relevant Territory and is responsible for any interaction with the relevant Governmental Entity regarding such certificates, permits, licences and approvals.
18.4 The Supplier shall notify the Purchaser as soon as reasonably practicable of any Governmental Authority seeks to prevent the consummation Entity inspection of the transactions contemplated by the Merger Agreement based on the HSR Act or any other Antitrust Laws or based on any other required approval, consent, notice or filing with a Governmental Authority and such actions by the Governmental Authority relate to the activities or investments of such Stockholder or its Affiliates (solely for purposes of this Section 4, an “Affiliate” of the Stockholder shall include any portfolio company in which such Stockholder or any of its Affiliates has made a debt or an equity investment), then if Parent in good faith reasonably determines that such actions by the Governmental Authority will not be resolved sufficiently in advance of the Termination Date, Parent may provide written notice of that determination to the Stockholder, and Parent may elect to terminate the obligations under Section 2 and Section 4.6 of this Agreement (in which case the Stockholder’s obligations under the Equity Commitment Letter shall also automatically terminate) and, in that context, the Stockholder shall be entitled to receive the Per Share Price under the Merger Agreement with respect to its shares of Common Stock; provided, however that Parent shall not terminate the Equity Commitment Letter or the obligations under Section 2 of this Agreement pursuant to this Section 4.3(a) without first obtaining alternative financing arrangements which provide Parent with funds in an amount equal to the Rollover Amount; provided that such alternative financing arrangements (i) provide Parent with sufficient funds, when added to the proceeds of the Equity Financing, Debt Financing and other sources of readily available liquidity of Parent, Merger Sub, the Company and the Company’s Subsidiaries on the Closing Date, to fund the Required Amount and (ii) do not impose new or additional conditions to the receipt of such financing relative to the Commitment Letters that could impair or delay the Closing. Parent shall promptly provide the Company with a copy of any definitive commitment letter or other documentation providing for such alternative financing arrangement. Notwithstanding anything to the contrary herein, the Stockholder may designate any Regulatory Disclosures that contain sensitive, legally privileged, or confidential information Manufacturing Sites in respect of the Stockholder or any of its Affiliates as exclusive a matter relating to the Stockholder and Manufacture of the Stockholder may provide that Products or of any such sensitive, legally privileged, other regulatory action taken or confidential information may only intended to be provided on taken by a counsel-only basis or directly Governmental Entity in relation to the applicable Governmental Authority requesting such information. The Stockholder shall not make any filings, or notifications Manufacture of the Products in connection accordance with the Merger pursuant to any Antitrust Laws without Parent’s prior written consent (not to be unreasonably withheld, delayed or conditioned). Parent or the Company shall not file any Regulatory Filings that contain information with respect to the Stockholder or its affiliates without first providing the Stockholder and its counsel a reasonable opportunity to review and comment thereon, and will give good faith consideration to all reasonable additions, deletions or changes suggested by the Stockholder and its counselQuality Agreement.
(b) Each Stockholder hereto represent, warrant and covenant to Parent and to the Company that, to such Stockholder’s knowledge: (i) none of the information supplied in writing by such Stockholder specifically for inclusion or incorporation by reference in the Regulatory Disclosures will contain a material misstatement of fact or a material omission of fact necessary to make the information provided not misleading and (ii) it does not permit any entity under the “control” (defined in Section 721 of the Defense Production Act, as amended, including all implanting regulations thereof) of a People’s Republic of China national, or any entity under the control of a Russian Federation national, to obtain through any Affiliate, control with respect to the Company.
Appears in 4 contracts
Samples: Manufacturing and Supply Agreement (Alcon Inc), Manufacturing and Supply Agreement (Alcon Inc), Manufacturing and Supply Agreement (Alcon Inc)
Regulatory Matters. (a) If Aspen or the Reinsurer receives notice of, or otherwise becomes aware of, any written inquiry, investigation, examination, audit, proceeding or action by Governmental Authorities relating to the Subject to Section 4.4Business, the Stockholder shallReinsured Policies or the reinsurance provided hereunder, Xxxxx and the Reinsurer, as applicable, shall promptly notify the other Party thereof to the extent permitted under Applicable Law, whereupon the Parties shall cooperate in good faith to resolve such matter in a mutually satisfactory manner and shall use their reasonable best efforts to cause their Affiliates to, use their reasonable best efforts, consistent with the time frames set forth act reasonably in Section 6.4 light of the Merger Parties’ respective interests in the matter at issue.
(b) Notwithstanding any other provision in this Agreement or any other Transaction Agreement to the contrary, Aspen shall retain ultimate authority with respect to the handling of all regulatory matters in respect of the Subject Business.
(c) At all times during the term of this Agreement, each of Aspen and the Reinsurer, respectively, agrees that it shall hold and maintain all licenses and authorizations required under Applicable Law to supply perform its respective obligations under the Transaction Agreements and provide information that, to such Stockholder’s knowledge, is complete and accurate shall comply in all material respects to any Governmental Authority requesting such information with all Applicable Law in connection with filings its performance of such obligations and the Reinsurer shall not (and shall procure that its Affiliates shall not) cause Aspen to breach Applicable Law through the performance of its (or notifications undertheir) obligations under the Administration Services Agreement.
(d) The Parties agree to work together in good faith to amend the terms of the Transaction Agreements to the extent necessary to comply with Applicable Law or other accounting or regulatory requirements applicable to the Parties; provided, subject and without prejudice to the each Party’s obligations under ARTICLE VIII, that neither Party shall be required to materially alter the terms of the transactions (including the amount of collateral to be provided and the delivery of any guarantee, keep-well or relating to, applicable laws that are required similar agreement) contemplated by this Agreement or advisable as a result of, or pursuant tothe other Transaction Agreements in connection with the foregoing.
(e) Prior to the Closing, the Merger Parties agree to cooperate and amend this Agreement and the related financings form of Administration Services Agreement with respect to the approach to: (i) the administration of Claims; and/or (ii) the type or form of collateral and transactionssecurity, in each case, to reflect any requirements of applicable Governmental Authorities (including, without limitation, information required or requested with respect to be provided step-in rights, termination rights and/or retaining certain assets in the Funds Withheld Account after the Funds Withheld Release Date to any antitrust, financial or national security regulatory authorities in comply with localization of assets and/or retention of title requirements of Applicable Law). In connection with any approvals reasonably sought required amendment described in connection with the consummation of the Merger (collectivelythis Section 10.3(e), the “Regulatory Filings” Parties shall also make any further amendment to this Agreement or any other Transaction Agreement that would be necessary to achieve the original intent and the, “Regulatory Disclosures”, respectively). If any Governmental Authority seeks to prevent the consummation economic effect of the transactions contemplated hereby and thereby to the greatest extent practicable as if such required amendment was not made (including, for example and without limitation, by amending the Merger Agreement based interest rate credited to any assets retained in the Funds Withheld Account after the Funds Withheld Release Date to reflect the profit or loss that would have been earned on such retained amounts had they been released on the HSR Act or any other Antitrust Laws or based on any other required approval, consent, notice or filing with a Governmental Authority Funds Withheld Release Date and such actions by the Governmental Authority relate to the activities or investments of such Stockholder or its Affiliates (solely for purposes of this Section 4, an “Affiliate” of the Stockholder shall include any portfolio company in which such Stockholder or any of its Affiliates has made a debt or an equity investment), then if Parent in good faith reasonably determines that such actions by the Governmental Authority will not be resolved sufficiently in advance of the Termination Date, Parent may provide written notice of that determination to the Stockholder, and Parent may elect to terminate the obligations under Section 2 and Section 4.6 of this Agreement (in which case the Stockholder’s obligations under the Equity Commitment Letter shall also automatically terminate) and, in that context, the Stockholder shall be entitled to receive the Per Share Price under the Merger Agreement with respect to its shares of Common Stock; provided, however that Parent shall not terminate the Equity Commitment Letter or the obligations under Section 2 of this Agreement pursuant to this Section 4.3(a) without first obtaining alternative financing arrangements which provide Parent with funds in an amount equal to the Rollover Amount; provided that such alternative financing arrangements (i) provide Parent with sufficient funds, when added to the proceeds of the Equity Financing, Debt Financing and other sources of readily available liquidity of Parent, Merger Sub, the Company and the Company’s Subsidiaries on the Closing Date, to fund the Required Amount and (ii) do not impose new or additional conditions to the receipt of such financing relative to the Commitment Letters that could impair or delay the Closing. Parent shall promptly provide the Company with a copy of any definitive commitment letter or other documentation providing for such alternative financing arrangement. Notwithstanding anything to the contrary herein, the Stockholder may designate any Regulatory Disclosures that contain sensitive, legally privileged, or confidential information in respect of the Stockholder or any of its Affiliates as exclusive to the Stockholder and the Stockholder may provide that any such sensitive, legally privileged, or confidential information may only be provided on a counsel-only basis or directly to the applicable Governmental Authority requesting such information. The Stockholder shall not make any filings, or notifications in connection with the Merger pursuant to any Antitrust Laws without Parent’s prior written consent (not to be unreasonably withheld, delayed or conditioned). Parent or the Company shall not file any Regulatory Filings that contain information with respect to the Stockholder or its affiliates without first providing the Stockholder and its counsel a reasonable opportunity to review and comment thereon, and will give good faith consideration to all reasonable additions, deletions or changes suggested by the Stockholder and its counsel.
(b) Each Stockholder hereto represent, warrant and covenant to Parent and to the Company that, to such Stockholder’s knowledge: (i) none of the information supplied in writing by such Stockholder specifically for inclusion or incorporation by reference invested in the Regulatory Disclosures will contain a material misstatement of fact or a material omission of fact necessary to make the information provided not misleading and (ii) it does not permit any entity under the “control” (defined in Section 721 of the Defense Production Act, as amended, including all implanting regulations thereof) of a People’s Republic of China national, or any entity under the control of a Russian Federation national, to obtain through any Affiliate, control with respect to the CompanyTrust Accounts).
Appears in 4 contracts
Samples: Reinsurance Agreement (Aspen Insurance Holdings LTD), Reinsurance Agreement (Aspen Insurance Holdings LTD), Reinsurance Agreement (Aspen Insurance Holdings LTD)
Regulatory Matters. (a) Subject Notwithstanding anything in any Credit Document to Section 4.4the contrary, the Stockholder Collateral Agent, on behalf of the Secured Parties, agrees that to the extent prior FCC or State PUC approval is required pursuant to Communications Laws for (i) the operation and effectiveness of any right or remedy hereunder or under any other Collateral Document or (ii) taking any action that may be taken by the Collateral Agent hereunder or under the other Collateral Documents, such right, remedy or actions will be subject to any such prior FCC or State PUC, as applicable, approval having been obtained by or in favor of the Collateral Agent, on behalf of the Secured Parties. Notwithstanding anything herein to the contrary, the Collateral Agent, on behalf of the Secured Parties, acknowledges that, to the extent required by the FCC or any applicable State PUC, the voting rights in the Pledged Securities, as well as de jure, de facto and negative control over all FCC or State PUC authorizations, shall remain with the Grantors even if an Event of Default has occurred and is continuing until the FCC and/or State PUC(s), as applicable, shall have given its prior consent to the exercise of securityholder rights by a purchaser at a public or private sale of the Pledged Securities or to the exercise of such rights by a receiver, trustee, conservator or other agent duly appointed in accordance with the applicable law. The Grantors shall, upon the occurrence and during the continuance of an Event of Default, at the Collateral Agent’s request, file or cause to be filed such applications for approval and shall take such other actions reasonably required by the Collateral Agent to obtain each such FCC or State PUC approval or consent as is necessary to transfer ownership and control to the Collateral Agent, on behalf of the Secured Parties, or their successors, assigns or designees, of the Licenses held by the Grantors. To enforce the provisions of this Section 6.22, the Collateral Agent is empowered to request the appointment of a receiver from any court of competent jurisdiction. Such receiver shall be instructed to seek from the FCC and every applicable State PUC an involuntary transfer of control of any such License for the purpose of seeking a bona fide purchaser to whom control will ultimately be transferred. Upon the occurrence and during the continuance of an Event of Default, at the Collateral Agent’s request, the Grantors shall further use their reasonable best efforts to cause their Affiliates toassist in obtaining approval of the FCC and/or applicable State PUC(s), use their reasonable best effortsif required, consistent for any action or transactions contemplated hereby, including the preparation, execution and filing with the time frames set forth in Section 6.4 FCC and/or applicable State PUC(s) of the Merger Agreement, assignor’s or transferor’s portion of any application for consent to supply and provide information that, to such Stockholder’s knowledge, is complete and accurate in all material respects to the assignment of any Governmental Authority requesting such information in connection with filings License or notifications undertransfer of control, or relating tonotice of such assignment or transfer, as applicable, necessary or appropriate under the FCC’s and/or any applicable laws that are required State PUC(s)’ rules and regulations for approval of the transfer or advisable as a result ofassignment of any portion of the Collateral, or pursuant to, the Merger Agreement and the related financings and transactions, including, without limitation, information required or requested to be provided to any antitrust, financial or national security regulatory authorities in connection together with any approvals reasonably sought in connection with the consummation of the Merger (collectively, the “Regulatory Filings” and the, “Regulatory Disclosures”, respectively). If any Governmental Authority seeks to prevent the consummation of the transactions contemplated by the Merger Agreement based on the HSR Act or any other Antitrust Laws or based on any other required approval, consent, notice or filing with a Governmental Authority and such actions by the Governmental Authority relate to the activities or investments of such Stockholder or its Affiliates (solely for purposes of this Section 4, an “Affiliate” of the Stockholder shall include any portfolio company in which such Stockholder or any of its Affiliates has made a debt or an equity investment), then if Parent in good faith reasonably determines that such actions by the Governmental Authority will not be resolved sufficiently in advance of the Termination Date, Parent may provide written notice of that determination to the Stockholder, and Parent may elect to terminate the obligations under Section 2 and Section 4.6 of this Agreement (in which case the Stockholder’s obligations under the Equity Commitment Letter shall also automatically terminate) and, in that context, the Stockholder shall be entitled to receive the Per Share Price under the Merger Agreement with respect to its shares of Common Stock; provided, however that Parent shall not terminate the Equity Commitment Letter or the obligations under Section 2 of this Agreement pursuant to this Section 4.3(a) without first obtaining alternative financing arrangements which provide Parent with funds in an amount equal to the Rollover Amount; provided that such alternative financing arrangements (i) provide Parent with sufficient funds, when added to the proceeds of the Equity Financing, Debt Financing and other sources of readily available liquidity of Parent, Merger Sub, the Company and the Company’s Subsidiaries on the Closing Date, to fund the Required Amount and (ii) do not impose new or additional conditions to the receipt of such financing relative to the Commitment Letters that could impair or delay the Closing. Parent shall promptly provide the Company with a copy of any definitive commitment letter License or other documentation providing for such alternative financing arrangement. Notwithstanding anything to the contrary herein, the Stockholder may designate any Regulatory Disclosures that contain sensitive, legally privileged, or confidential information in respect of the Stockholder or any of its Affiliates as exclusive to the Stockholder and the Stockholder may provide that any such sensitive, legally privileged, or confidential information may only be provided on a counsel-only basis or directly to the applicable Governmental Authority requesting such information. The Stockholder shall not make any filings, or notifications in connection with the Merger pursuant to any Antitrust Laws without Parent’s prior written consent (not to be unreasonably withheld, delayed or conditioned). Parent or the Company shall not file any Regulatory Filings that contain information with respect to the Stockholder or its affiliates without first providing the Stockholder and its counsel a reasonable opportunity to review and comment thereon, and will give good faith consideration to all reasonable additions, deletions or changes suggested by the Stockholder and its counselauthorization.
(b) Each Stockholder hereto represent, warrant and covenant to Parent and The Grantors acknowledge that the assignment or transfer of Licenses is integral to the Company that, to such Stockholder’s knowledge: (i) none Secured Parties’ realization of the information supplied in writing by such Stockholder specifically for inclusion or incorporation by reference in the Regulatory Disclosures will contain a material misstatement of fact or a material omission of fact necessary to make the information provided not misleading and (ii) it does not permit any entity under the “control” (defined in Section 721 value of the Defense Production ActCollateral, as amendedthat there is no adequate remedy at law for failure by the Grantors to comply with the provisions of this Section 6.22 and that such failure would not be adequately compensable in damages, including all implanting regulations thereofand therefore agree that this Section 6.22 may be specifically enforced.
(c) Notwithstanding anything in this Agreement or in any other Credit Document to the contrary, neither the Collateral Agent nor any other Secured Party shall, without first obtaining the approval of the FCC and/or any applicable State PUC (where required), take any action hereunder or under any other Collateral Document that would constitute or result in any assignment of a People’s Republic License, change of China nationalmaterial control or ownership of any Grantor, or any entity assignment or transfer of the material operating assets of any Grantor if such assignment, change of material control or ownership or assignment or transfer of material operating assets would require the approval of the FCC or any such applicable State PUC under applicable law (including the control of a Russian Federation national, to obtain through FCC’s and any Affiliate, control with respect to the Companysuch applicable State PUC’s rules and regulations).
Appears in 3 contracts
Samples: Second Lien Pledge and Security Agreement (Fusion Connect, Inc.), First Lien Pledge and Security Agreement (Fusion Connect, Inc.), Super Senior Pledge and Security Agreement (Fusion Connect, Inc.)
Regulatory Matters. (a) Subject Following the transfer of an IND to AstraZeneca pursuant to Section 4.42.13, the Stockholder shallAstraZeneca shall be solely responsible for all regulatory filings and communications with each Regulatory Health Authority with respect to that IND, and AstraZeneca shall use their reasonable best efforts to cause their Affiliates to, use their reasonable best efforts, consistent be solely responsible for any and all subsequent filings and communications with the time frames set forth in Section 6.4 of the Merger Agreement, to supply and provide information that, to such Stockholder’s knowledge, is complete and accurate in all material respects to any Governmental Regulatory Health Authority requesting such information in connection with filings or notifications under, or relating to, applicable laws that are required or advisable as a result of, or pursuant to, the Merger Agreement and the related financings and transactions, including, without limitation, for the preparation and filing of all additional INDs (except in relation to such IND(s) as are retained by Ardelyx pursuant to Section 2.13) and for providing, in the format required by Regulatory Health Authorities, the data and information required or requested to be provided submitted to any antitrustsuch Regulatory Health Authorities for Regulatory Approval of Licensed Products, financial or national security regulatory authorities in connection with any approvals reasonably sought in connection with the consummation including without limitation data from all Clinical Trials and all Manufacturing and controls information required for Regulatory Approval of the Merger (collectively, the “Regulatory Filings” and the, “Regulatory Disclosures”, respectively). If any Governmental Authority seeks to prevent the consummation of the transactions contemplated such Licensed Product by the Merger Agreement based on the HSR Act or any other Antitrust Laws or based on any other required approvalRegulatory Health Authorities. AstraZeneca shall, consent, notice or filing with a Governmental Authority and such actions by the Governmental Authority relate subject to the activities or investments of such Stockholder or its Affiliates (solely for purposes of this conditions and within the limitations set forth in Section 4, an “Affiliate” of the Stockholder shall include any portfolio company in which such Stockholder or any of its Affiliates has made a debt or an equity investment4.4(a), then if Parent use Commercially Reasonable Efforts to obtain Regulatory Approval for Licensed Products in good faith reasonably determines that such actions by the Governmental Authority will not be resolved sufficiently in advance of the Termination Date, Parent may provide written notice of that determination to the Stockholder, and Parent may elect to terminate the obligations under Section 2 and Section 4.6 of this Agreement (in which case the Stockholder’s obligations under the Equity Commitment Letter shall also automatically terminate) and, in that context, the Stockholder shall be entitled to receive the Per Share Price under the Merger Agreement with respect to its shares of Common Stock; provided, however that Parent shall not terminate the Equity Commitment Letter or the obligations under Section 2 of this Agreement pursuant to this Section 4.3(a) without first obtaining alternative financing arrangements which provide Parent with funds in an amount equal to the Rollover Amount; provided that such alternative financing arrangements (i) provide Parent with sufficient fundsthe Major Markets, when added to the proceeds of the Equity Financing, Debt Financing and other sources of readily available liquidity of Parent, Merger Sub, the Company and the Company’s Subsidiaries on the Closing Date, to fund the Required Amount and (ii) in any other countries where AstraZeneca determines at its sole discretion that it is commercially viable to do not impose new or additional conditions to the receipt of such financing relative to the Commitment Letters that could impair or delay the Closing. Parent shall promptly provide the Company with a copy of any definitive commitment letter or other documentation providing for such alternative financing arrangement. Notwithstanding anything to the contrary herein, the Stockholder may designate any Regulatory Disclosures that contain sensitive, legally privileged, or confidential information in respect of the Stockholder or any of its Affiliates as exclusive to the Stockholder and the Stockholder may provide that any such sensitive, legally privileged, or confidential information may only be provided on a counsel-only basis or directly to the applicable Governmental Authority requesting such information. The Stockholder shall not make any filings, or notifications in connection with the Merger pursuant to any Antitrust Laws without Parent’s prior written consent (not to be unreasonably withheld, delayed or conditioned). Parent or the Company shall not file any Regulatory Filings that contain information with respect to the Stockholder or its affiliates without first providing the Stockholder and its counsel a reasonable opportunity to review and comment thereon, and will give good faith consideration to all reasonable additions, deletions or changes suggested by the Stockholder and its counselso.
(b) Each Stockholder hereto representDuring the Term, warrant whether through the DCC while such committee is in effect, or by providing Information and covenant Materials directly to Parent Ardelyx after the DCC has been disbanded, AstraZeneca shall report to Ardelyx regarding the status of each pending or proposed IND application or Drug Approval Application covering a Licensed Product in the Territory.
(c) If Ardelyx has exercised the Co-Promote Option (as described in Section 7.1 below) the following shall apply: AstraZeneca shall keep Ardelyx informed on an ongoing basis regarding the schedule and process for the preparation of the Drug Approval Application in respect of the relevant Co-Promote Product in the U.S. Territory, provide final (or close to final) drafts of those sections of the Company thatDrug Approval Application requested by Ardelyx, and permit Ardelyx to review and comment on sections of such Stockholderdrafts in parallel with AstraZeneca’s knowledge: review process and in compliance with the timelines AstraZeneca has stipulated for its internal purposes, and AstraZeneca shall use reasonable efforts to incorporate Ardelyx’s comments therein. Notwithstanding the aforesaid, if the Parties are unable to achieve a consensus regarding any comments made or changes proposed by Ardelyx, AstraZeneca shall make the final determination as to whether and when to file the Drug Approval Application as well as the form and content thereof. The purpose of such foregoing interactions shall be to identify and resolve any potential reasonable concerns of Ardelyx in advance of the proposed filing of such Drug Approval Applications (and in particular the initial Drug Approval Application) in the U.S. Territory. Following the filing of the initial Drug Approval Application in the U.S. Territory, AstraZeneca shall continue to work with Ardelyx in the manner outlined above in this Section 4.6(c) in connection with any subsequent Drug Approval Applications in the U.S. Territory for the Co-Promote Product in respect of which Ardelyx has exercised the Co-Promote Option, and AstraZeneca shall provide Ardelyx with a copy in electronic form of all filings to Regulatory Health Authorities in the U.S. Territory that it makes hereunder in connection with such foregoing Drug Approval Applications. AstraZeneca shall further promptly furnish Ardelyx with copies of all material correspondence or minutes from any material meetings with any Regulatory Health Authority, in each case relating to any such Drug Approval Application in the U.S. Territory.
(d) During the period when the DCC is in effect, AstraZeneca shall notify Ardelyx of any request for [***] and AstraZeneca shall allow [***]. The foregoing shall apply with respect to [***]. AstraZeneca shall as soon as reasonably practicable furnish Ardelyx with copies of all substantive correspondence AstraZeneca has had with any Regulatory Health Authority, and contact reports concerning substantive conversations or substantive meetings with any Regulatory Health Authority, in each case relating to any such IND or Drug Approval Application. As from the date when the DCC is disbanded, Ardelyx’s rights hereunder shall cease, provided, however, that if Ardelyx has exercised the Co-Promote Option, then during the period when the SCC is in effect, Ardelyx shall have the rights set out in this subsection (d) but such rights shall (i) none of be limited to the information supplied in writing by such Stockholder specifically for inclusion or incorporation by reference in U.S. Territory and the Regulatory Disclosures will contain a material misstatement of fact or a material omission of fact necessary to make the information provided not misleading Co-Promote Product and (ii) it does not permit further be limited such that Ardelyx may participate as an observer in any entity under meeting or conference call as set forth above only to the “control” extent invited to do so by AstraZeneca.
(defined e) Ardelyx shall notify AstraZeneca of any request for a meeting or substantive telephone conference call with any Regulatory Health Authority relating to any IND or IND equivalent for which Ardelyx is the sponsor and Ardelyx shall allow one (1) representative of AstraZeneca to participate as an observer in Section 721 of any such meeting or conference call. The foregoing shall apply with respect to meetings or conferences initiated by Ardelyx or by a Regulatory Health Authority. [***] Certain information in this document has been omitted and filed separately with the Defense Production Act, as amended, including all implanting regulations thereof) of a People’s Republic of China national, or any entity under the control of a Russian Federation national, to obtain through any Affiliate, control Securities and Exchange Commission. Confidential treatment has been requested with respect to the Companyomitted portions.
(f) If Ardelyx has exercised the Co-Promote Option, and any Regulatory Health Authority threatens or initiates any action to remove a Licensed Product (in respect of which the Co-Promote Option has been exercised) from the market in the U.S. Territory, AstraZeneca shall notify Ardelyx of such communication within [***] of receipt by AstraZeneca.
Appears in 3 contracts
Samples: License Agreement (Ardelyx, Inc.), License Agreement (Ardelyx, Inc.), License Agreement (Ardelyx, Inc.)
Regulatory Matters. (a) Subject Parent, Merger Sub and the Company shall cooperate in preparing preliminary proxy materials, including the information required by Schedule 13E-3, relating to Section 4.4the Company Meeting (together with any amendments thereof or supplements thereto, the Stockholder “Proxy Statement”) and the Schedule 13E-3. The Company shall, as soon as practicable, file (after receiving Parent’s consent thereto, not to be unreasonably withheld or delayed) the Proxy Statement and Parent, Merger Sub and the Company shall, as soon as practicable, jointly file the Schedule 13E-3. Each of Parent, Merger Sub and the Company shall use their its reasonable best efforts to cause their Affiliates to, use their reasonable best efforts, consistent with the time frames set forth in Section 6.4 respond to any comments of the SEC (after providing Parent and Merger Agreement, to supply and provide information that, to such Stockholder’s knowledge, is complete and accurate Sub (in all material respects to any Governmental Authority requesting such information in connection with filings or notifications under, or relating to, applicable laws that are required or advisable as the case of a result of, or pursuant to, the Merger Agreement and the related financings and transactions, including, without limitation, information required or requested to be provided to any antitrust, financial or national security regulatory authorities in connection with any approvals reasonably sought in connection with the consummation of the Merger (collectively, the “Regulatory Filings” and the, “Regulatory Disclosures”, respectively). If any Governmental Authority seeks to prevent the consummation of the transactions contemplated response by the Merger Agreement based on the HSR Act or any other Antitrust Laws or based on any other required approval, consent, notice or filing with a Governmental Authority and such actions by the Governmental Authority relate to the activities or investments of such Stockholder or its Affiliates (solely for purposes of this Section 4, an “Affiliate” of the Stockholder shall include any portfolio company in which such Stockholder or any of its Affiliates has made a debt or an equity investment), then if Parent in good faith reasonably determines that such actions by the Governmental Authority will not be resolved sufficiently in advance of the Termination Date, Parent may provide written notice of that determination to the Stockholder, and Parent may elect to terminate the obligations under Section 2 and Section 4.6 of this Agreement (in which case the Stockholder’s obligations under the Equity Commitment Letter shall also automatically terminateCompany) and, in that context, the Stockholder shall be entitled to receive the Per Share Price under the Merger Agreement with respect to its shares of Common Stock; provided, however that Parent shall not terminate the Equity Commitment Letter or the obligations under Section 2 of this Agreement pursuant to this Section 4.3(a) without first obtaining alternative financing arrangements which provide Parent with funds in an amount equal to the Rollover Amount; provided that such alternative financing arrangements (i) provide Parent with sufficient funds, when added to the proceeds of the Equity Financing, Debt Financing and other sources of readily available liquidity of Parent, Merger Sub, the Company and the Company’s Subsidiaries on the Closing Date, to fund the Required Amount and (ii) do not impose new or additional conditions to the receipt of such financing relative to the Commitment Letters that could impair or delay the Closing. Parent shall promptly provide the Company with a copy of any definitive commitment letter or other documentation providing for such alternative financing arrangement. Notwithstanding anything to the contrary herein, the Stockholder may designate any Regulatory Disclosures that contain sensitive, legally privileged, or confidential information in respect of the Stockholder or any of its Affiliates as exclusive to the Stockholder and the Stockholder may provide that any such sensitive, legally privileged, or confidential information may only be provided on a counsel-only basis or directly to the applicable Governmental Authority requesting such information. The Stockholder shall not make any filings, or notifications in connection with the Merger pursuant to any Antitrust Laws without Parent’s prior written consent (not to be unreasonably withheld, delayed or conditioned). Parent or the Company shall not file any Regulatory Filings that contain information (in the case of a response by Parent or Merger Sub) with respect to the Stockholder or its affiliates without first providing the Stockholder and its counsel a reasonable opportunity to review and comment thereon) and to cause the Proxy Statement to be mailed to the Company’s stockholders as promptly as practicable after responding to all such comments to the satisfaction of the SEC staff. The Company shall notify Parent and Merger Sub as promptly as practicable of the receipt of any comments from the SEC and of any request by the SEC for amendments or supplements to the Proxy Statement or the Schedule 13E-3 for additional information and shall supply Parent and Merger Sub with copies of all correspondence between the Company or any of its representatives, on the one hand, and the SEC, on the other hand, with respect to the Proxy Statement, the Schedule 13E-3 or the transactions contemplated hereby. The Company will give good faith consideration cause the Proxy Statement and the Schedule 13E-3 (other than portions relating to Parent or Merger Sub) to comply in all reasonable additions, deletions material respects with the applicable provisions of the Exchange Act and the rules and regulations thereunder applicable to the Proxy Statement and the solicitation of proxies for the Company Meeting (including any requirement to amend or changes suggested by supplement the Stockholder Proxy Statement) and its counsel.
(b) Each Stockholder hereto represent, warrant the Schedule 13E-3. Parent and covenant Merger Sub will cause those portions of the Proxy Statement and the Schedule 13E-3 relating to Parent and Merger Sub to comply in all material respects with the applicable provisions of the Exchange Act and the rules and regulations thereunder applicable to the Company thatProxy Statement and the Schedule 13E-3. Without limiting the generality of the foregoing, each party shall furnish to the other such Stockholder’s knowledge: (i) information relating to it and its affiliates and the transactions contemplated hereby and such further and supplemental information as may be reasonably requested by the other party and shall promptly notify the other party of any change in such information. The Company, as to itself and its Subsidiaries, and Parent and Merger Sub, as to themselves and each of their Subsidiaries, agrees that none of the information supplied in writing or to be supplied by such Stockholder specifically it for inclusion or incorporation by reference in the Regulatory Disclosures will Proxy Statement, the Schedule 13E-3 or any amendment or supplement thereto will, at the date of mailing to stockholders and at the time of the Company Meeting, contain (i) any untrue statement of a material misstatement of fact or a omit to state any material omission of fact required to be stated therein or necessary to make the information provided statements therein not misleading and or (ii) it does not permit any entity under statement which, at the “control” (defined time and in Section 721 the light of the Defense Production Actcircumstances under which such statement is made, as amended, including all implanting regulations thereof) of a People’s Republic of China national, will be false or any entity under the control of a Russian Federation national, to obtain through any Affiliate, control misleading with respect to any material fact, or which will omit to state any material fact necessary in order to make the statements therein not false or misleading or necessary to correct any statement in any earlier statement in the Proxy Statement, the Schedule 13E-3 or any amendment or supplement thereto. If at any time prior to the Company Meeting there shall occur any event that should be set forth in an amendment or supplement to the Proxy Statement or the Schedule 13E-3, the Company (or, in the case of the Schedule 13E-3, the Company, Parent and Merger Sub) shall promptly prepare and, to the extent required by law, rule or regulation, the Company shall mail to its stockholders such an amendment or supplement; provided, that no such amendment or supplement to the Proxy Statement or the Schedule 13E-3 will be made by the Company without Parent’s prior consent, not to be unreasonably withheld or delayed.
Appears in 3 contracts
Samples: Merger Agreement (Td Banknorth Inc.), Merger Agreement (Toronto Dominion Bank), Merger Agreement (Toronto Dominion Bank)
Regulatory Matters. (a) Subject to Section 4.4, A copy of each Transfer Letter authorizing the Stockholder shall, and shall use their reasonable best efforts to cause their Affiliates to, use their reasonable best efforts, consistent with the time frames set forth in Section 6.4 transfer of ownership of the Merger Agreement, INDs and CTAs as well as the orphan drug designation owned by Seller to supply and provide information that, to such Stockholder’s knowledge, is complete and accurate in all material respects to any Governmental Authority requesting such information in connection with filings or notifications under, or relating to, applicable laws that are required or advisable as a result of, or pursuant to, the Merger Agreement and the related financings and transactions, including, without limitation, information required or requested to Buyer shall be provided to any antitrust, financial or national security regulatory authorities in connection with any approvals reasonably sought in connection with the consummation of the Merger (collectively, the “Regulatory Filings” and the, “Regulatory Disclosures”, respectively). If any Governmental Authority seeks to prevent the consummation of the transactions contemplated by the Merger Agreement based delivered on the HSR Act or any other Antitrust Laws or based on any other required approval, consent, notice or filing with a Governmental Authority Closing Date and such actions by the Governmental Authority relate to the activities or investments of such Stockholder or its Affiliates within ten (solely for purposes of this Section 4, an “Affiliate” of the Stockholder shall include any portfolio company in which such Stockholder or any of its Affiliates has made a debt or an equity investment), then if Parent in good faith reasonably determines that such actions by the Governmental Authority will not be resolved sufficiently in advance of the Termination Date, Parent may provide written notice of that determination to the Stockholder, and Parent may elect to terminate the obligations under Section 2 and Section 4.6 of this Agreement (in which case the Stockholder’s obligations under the Equity Commitment Letter shall also automatically terminate10) and, in that context, the Stockholder shall be entitled to receive the Per Share Price under the Merger Agreement with respect to its shares of Common Stock; provided, however that Parent shall not terminate the Equity Commitment Letter or the obligations under Section 2 of this Agreement pursuant to this Section 4.3(a) without first obtaining alternative financing arrangements which provide Parent with funds in an amount equal to the Rollover Amount; provided that such alternative financing arrangements (i) provide Parent with sufficient funds, when added to the proceeds of the Equity Financing, Debt Financing and other sources of readily available liquidity of Parent, Merger Sub, the Company and the Company’s Subsidiaries on Business Days after the Closing Date, (a) Seller shall submit the Transfer Letters to fund the Required Amount relevant Governmental Authorities and shall notify Buyer of such submission on the date submitted (providing Buyer an electronic copy of the submission with such notification) and (b) shall provide to Buyer the full regulatory file for the INDs and CTAs held by the Seller, including all available electronic meta data. Upon notification of the Seller’s submission of the Transfer Letter to the relevant Governmental Authorities, Buyer shall execute and submit to the relevant Governmental Authorities letters acknowledging Buyer’s commitment to assume ownership of the INDs and CTAs and the orphan drug designation owned by Seller. As of the Closing Date, except as otherwise set forth in this Section 7.7, Buyer shall be solely responsible for taking any actions necessary to (i) obtain any documentation required to maintain the INDs and CTAs or the orphaned drug designation owned by Seller or obtain any further authorizations under any Applicable Law, and (ii) do not impose new or additional conditions otherwise comply with any Applicable Law with respect to regulatory authorizations. During the receipt of such financing relative to period between the Commitment Letters that could impair or delay the Closing. Parent shall promptly provide the Company with a copy of any definitive commitment letter or other documentation providing for such alternative financing arrangement. Notwithstanding anything to the contrary herein, the Stockholder may designate any Regulatory Disclosures that contain sensitive, legally privileged, or confidential information in respect of the Stockholder or any of its Affiliates as exclusive to the Stockholder Closing Date and the Stockholder may date that is that is eighteen (18) months from the Closing Date, Seller shall provide that any such sensitive, legally privileged, or confidential information may only be provided on a counsel-only basis or directly to the applicable Governmental Authority requesting such information. The Stockholder shall not make any filings, or notifications reasonable assistance as requested by Buyer in connection with Buyer’s fulfilment of its obligations under this Section 7.7. Except as set forth in any further written agreement between the Merger pursuant Parties, as of the Closing Date, Buyer shall be solely responsible for investigating and reporting adverse experiences for the Product to any Antitrust Laws without Parent’s prior written consent (not to be unreasonably withheld, delayed or conditioned). Parent or the Company shall not file Governmental Authorities and addressing any Regulatory Filings that contain information with respect such Governmental Authorities’ inquiries related to the Stockholder or its affiliates without first providing safety of the Stockholder Product; provided, however, that Seller shall provide reasonable assistance and its counsel a reasonable opportunity cooperation to review and comment thereon, and will give good faith consideration to all reasonable additions, deletions or changes suggested by the Stockholder and its counsel.
(b) Each Stockholder hereto represent, warrant and covenant to Parent and Buyer to the Company that, extent any such investigations or inquiries related to such Stockholder’s knowledge: (i) none the manufacture or development of the information supplied Product prior to the Closing Date by or on behalf of Seller. Except as set forth in writing by such Stockholder specifically for inclusion or incorporation by reference in any further written agreement between the Regulatory Disclosures will contain a material misstatement of fact or a material omission of fact necessary to make the information provided not misleading and (ii) it does not permit any entity under the “control” (defined in Section 721 Parties, as of the Defense Production ActClosing Date, as amended, including all implanting regulations thereof) of a PeopleBuyer shall be solely responsible for addressing any Person’s Republic of China national, medical inquiries or any entity under the control of a Russian Federation national, to obtain through any Affiliate, control with respect complaints relating to the CompanyProduct; provided, however, that Seller shall provide reasonable assistance and cooperation to Buyer to the extent any such inquiries or complaints related to the manufacture or Development of the Product prior to the Closing Date by or on behalf of Seller.
Appears in 3 contracts
Samples: Asset Purchase Agreement (Provention Bio, Inc.), Asset Purchase Agreement (Provention Bio, Inc.), Asset Purchase Agreement (Provention Bio, Inc.)
Regulatory Matters. (a) Subject to Section 4.4Licensee shall be responsible for preparing and filing INDs, Registration Applications and other regulatory filings for the Stockholder shallProduct in the Territory through and including Registration, and thereafter shall use their reasonable best efforts to cause their Affiliates tobe responsible for maintaining such Registrations. All such filings shall be in Medistem’s name (or that of its Affiliates, use their reasonable best effortsSublicensees or distributors, consistent with as the time frames set forth in Section 6.4 of the Merger Agreement, to supply and provide information that, to such Stockholder’s knowledge, is complete and accurate in all material respects to any Governmental Authority requesting such information in connection with filings or notifications under, or relating to, applicable laws that are required or advisable as a result of, or pursuant to, the Merger Agreement and the related financings and transactions, including, without limitation, information required or requested to be provided to any antitrust, financial or national security regulatory authorities in connection with any approvals reasonably sought in connection with the consummation of the Merger (collectively, the “Regulatory Filings” and the, “Regulatory Disclosures”, respectivelycase may be). If Licensee shall also obtain any Governmental Authority seeks to prevent the consummation of the transactions contemplated export approvals required by the Merger Agreement based on the HSR Act or any other Antitrust Laws or based on any other required approval, consent, notice or filing with a Governmental Authority and such actions by the Governmental Authority relate Regulatory Authorities to the activities or investments of such Stockholder or its Affiliates (solely for purposes of this Section 4, an “Affiliate” of the Stockholder shall include any portfolio company in which such Stockholder or any of its Affiliates has made a debt or an equity investment), then if Parent in good faith reasonably determines that such actions by the Governmental Authority will not be resolved sufficiently in advance of the Termination Date, Parent may provide written notice of that determination to the Stockholder, and Parent may elect to terminate the obligations under Section 2 and Section 4.6 of this Agreement (in which case the Stockholder’s obligations under the Equity Commitment Letter shall also automatically terminate) and, in that context, the Stockholder shall be entitled to receive the Per Share Price under the Merger Agreement with respect to its shares of Common Stock; provided, however that Parent shall not terminate the Equity Commitment Letter or the obligations under Section 2 of this Agreement pursuant to this Section 4.3(a) without first obtaining alternative financing arrangements which provide Parent with funds in an amount equal to the Rollover Amount; provided that such alternative financing arrangements (i) provide Parent with sufficient funds, when added to the proceeds of the Equity Financing, Debt Financing and other sources of readily available liquidity of Parent, Merger Sub, the Company and the Company’s Subsidiaries on the Closing Date, to fund the Required Amount and (ii) do not impose new or additional conditions to the receipt of such financing relative to the Commitment Letters that could impair or delay the Closing. Parent shall promptly provide the Company with a copy of any definitive commitment letter or other documentation providing for such alternative financing arrangement. Notwithstanding anything to the contrary herein, the Stockholder may designate any Regulatory Disclosures that contain sensitive, legally privileged, or confidential information in respect of the Stockholder or any of its Affiliates as exclusive to the Stockholder and the Stockholder may provide that any such sensitive, legally privileged, or confidential information may only be provided on a counsel-only basis or directly to the applicable Governmental Authority requesting such information. The Stockholder shall not make any filings, or notifications in connection with the Merger pursuant to any Antitrust Laws without Parent’s prior written consent (not to be unreasonably withheld, delayed or conditioned). Parent or the Company shall not file any Regulatory Filings that contain information with respect to the Stockholder or its affiliates without first providing the Stockholder and its counsel a reasonable opportunity to review and comment thereon, and will give good faith consideration to all reasonable additions, deletions or changes suggested by the Stockholder and its counselexport Product.
(b) Each Stockholder hereto representMedistem, warrant or, where required by applicable law, its designees(s) shall own all INDs, Registration Applications, Registrations and covenant other regulatory filings for the Product in the Territory.
(c) In order to Parent assist Licensee in the performance of its obligations under this Section 3.4, Medistem shall provide Licensee or its designee(s) with complete copies (or copies of relevant portions) of, and shall grant Licensee or its designee(s) the right to cross-reference, all of Medistem’s registrations or other regulatory filings made or held in any country for the Product; and shall do all such further acts as promptly as possible after Licensee’s request therefor, that may be necessary or appropriate to effectuate such right.
(d) Licensee shall keep Medistem informed as to the Company thatstatus of all regulatory filings made pursuant to this Section 3.4.
(e) In connection with any IND or Registration Application filed pursuant to this Section 3.4, Licensee shall notify Medistem as soon as reasonably possible of any meeting with the Regulatory Authority in the Territory scheduled by Licensee (which notification shall describe the subject matter of any such meeting), shall permit Medistem to assist Licensee in the preparation for any such Stockholder’s knowledge: (i) none meeting and shall promptly advise Medistem in writing of the information supplied in writing by outcome of any such Stockholder specifically for inclusion or incorporation by reference in the Regulatory Disclosures will contain a material misstatement of fact or a material omission of fact necessary to make the information provided not misleading and (ii) it does not permit any entity under the “control” (defined in Section 721 of the Defense Production Act, as amended, including all implanting regulations thereof) of a People’s Republic of China national, or any entity under the control of a Russian Federation national, to obtain through any Affiliate, control with respect to the Companymeeting.
Appears in 3 contracts
Samples: License Agreement (Medistem Laboratories, Inc.), License Agreement (Medistem Laboratories, Inc.), License Agreement (Medistem Laboratories, Inc.)
Regulatory Matters. (ai) Subject to the terms and conditions set forth in this Agreement, without limiting the generality of the undertakings pursuant to this Section 4.47.4, Trimble, on the Stockholder shallone hand, and shall AGCO, on the other hand, agree to take or cause to be taken the following actions:
(A) as soon as practicable, and in any event, no later than ten (10) Business Days following the date of this Agreement, file the initial pre-merger notifications with respect to this Agreement and the transactions contemplated herein required under the HSR Act for Trimble and AGCO, in each case, requesting early termination of the waiting period with respect to the transactions contemplated hereby;
(B) as soon as reasonably practicable, and in any event, within any applicable deadlines mandated by the jurisdictions set forth in Schedule 7.4(d)(i)(B), file any notification, pre-notification or other form necessary, as the case may be, to obtain any consents, clearances or approvals required under or in connection with any other applicable Laws including FDI Laws, including in the jurisdictions set forth in Schedule 7.4(d)(i)(B);
(C) to promptly provide, and cause each of its Affiliates to promptly provide, to each Governmental Entity with jurisdiction over enforcement of any applicable Antitrust Law (a “Governmental Antitrust Entity”) non-privileged information and documents requested by any such Governmental Antitrust Entity in connection with obtaining any such consent, clearance, approval, or authorization of such Governmental Antitrust Entity that is necessary, proper or advisable to permit consummation of the transactions contemplated hereby, including promptly complying with or modifying any requests for additional information (including any second request) by any Governmental Entity;
(D) with respect to Antitrust Laws, to use their reasonable best efforts to take, and to cause their each of its Affiliates toto take, use their reasonable best effortsany and all actions reasonably necessary to obtain any consents, consistent with the time frames set forth in Section 6.4 of the Merger Agreementclearances, to supply and provide information that, to such Stockholder’s knowledge, is complete and accurate in all material respects to any Governmental Authority requesting such information in connection with filings approvals or notifications under, authorizations required under or relating to, applicable laws that are required or advisable as a result of, or pursuant to, the Merger Agreement and the related financings and transactions, including, without limitation, information required or requested to be provided to any antitrust, financial or national security regulatory authorities in connection with any approvals reasonably sought in connection with the consummation of the Merger (collectively, the “Regulatory Filings” applicable Laws and the, “Regulatory Disclosures”, respectively). If enable all waiting periods under any applicable Laws to expire or otherwise terminate and shall take all actions necessary to avoid or eliminate each and every impediment under any applicable Laws asserted by any Governmental Authority seeks Entity, in each case, to prevent enable the transactions contemplated by this Agreement to occur as promptly as practicable prior to the Outside Date, including consenting to any divestiture, sale, disposition or other structural or conduct remedy in order to obtain clearance from any Governmental Entity, provided, that any such action shall be conditioned on the consummation of the transactions contemplated by the Merger Agreement based on the HSR Act or any other Antitrust Laws or based on any other required approval, consent, notice or filing with a Governmental Authority this Agreement; and such actions by the Governmental Authority relate to the activities or investments of such Stockholder or its Affiliates (solely for purposes of this Section 4, an “Affiliate” of the Stockholder shall include any portfolio company in which such Stockholder or any of its Affiliates has made a debt or an equity investment), then if Parent in good faith reasonably determines that such actions by the Governmental Authority will not be resolved sufficiently in advance of the Termination Date, Parent may provide written notice of that determination to the Stockholder, and Parent may elect to terminate the obligations under Section 2 and Section 4.6 of this Agreement (in which case the Stockholder’s obligations under the Equity Commitment Letter shall also automatically terminate) and, in that context, the Stockholder shall be entitled to receive the Per Share Price under the Merger Agreement with respect to its shares of Common Stock; provided, however that Parent shall not terminate the Equity Commitment Letter or the obligations under Section 2 of this Agreement pursuant to this Section 4.3(a) without first obtaining alternative financing arrangements which provide Parent with funds in an amount equal to the Rollover Amount; provided that such alternative financing arrangements (i) provide Parent with sufficient fundsfurther, when added to the proceeds of the Equity Financingthat, Debt Financing and other sources of readily available liquidity of Parent, Merger Sub, the Company and the Company’s Subsidiaries on the Closing Date, to fund the Required Amount and (ii) do not impose new or additional conditions to the receipt of such financing relative to the Commitment Letters that could impair or delay the Closing. Parent shall promptly provide the Company with a copy of any definitive commitment letter or other documentation providing for such alternative financing arrangement. Notwithstanding notwithstanding anything to the contrary herein, the Stockholder may designate (i) Trimble shall not be required to take any Regulatory Disclosures that contain sensitive, legally privileged, or confidential information in action with respect of the Stockholder to Trimble or any Affiliate or business of its Affiliates as exclusive to Trimble, other than the Stockholder Company and the Stockholder may provide that any such sensitiveTransferred Subsidiaries, legally privileged, or confidential information may only be provided on a counsel-only basis or directly to the applicable Governmental Authority requesting such information. The Stockholder (ii) AGCO shall not make be required to take any filingsaction with respect to AGCO or any Affiliate or business of AGCO, or notifications in connection with the Merger pursuant to any Antitrust Laws without Parent’s prior written consent (not to be unreasonably withheld, delayed or conditioned). Parent or other than the Company and the Transferred Subsidiaries, and (iii) Trimble shall not file be permitted to take any Regulatory Filings that contain information actions with respect to the Stockholder or its affiliates without first providing the Stockholder Company and its counsel a reasonable opportunity to review and comment thereonSubsidiaries without the prior written consent of AGCO, and will give good faith consideration neither Trimble nor AGCO shall be required to all reasonable additions, deletions or changes suggested by the Stockholder and its counsel.
(b) Each Stockholder hereto represent, warrant and covenant to Parent and to the Company that, to such Stockholder’s knowledge: (i) none of the information supplied in writing by such Stockholder specifically for inclusion or incorporation by reference in the Regulatory Disclosures will contain a material misstatement of fact or a material omission of fact necessary to make the information provided not misleading and (ii) it does not permit take any entity under the “control” (defined in Section 721 of the Defense Production Act, as amended, including all implanting regulations thereof) of a People’s Republic of China national, or any entity under the control of a Russian Federation national, to obtain through any Affiliate, control actions with respect to the CompanyCompany and its Subsidiaries if such actions, individually or in the aggregate, would reasonably be expected to have a material adverse effect on the business, financial condition, or prospects of the Company and its Subsidiaries;
(E) with respect to approvals or consents required under applicable FDI Laws, to use reasonable best efforts to take, or cause to be taken, all actions that are reasonably necessary, proper, or advisable to obtain any approvals or consents required under applicable FDI Laws; provided, that any such action shall be conditioned on the consummation of the transactions contemplated by this Agreement; provided, further, that, notwithstanding anything to the contrary herein, (i) Trimble shall not be required to take any action with respect to Trimble or any Affiliate or business of Trimble, other than the Company and the Transferred Subsidiaries, (ii) AGCO shall not be required to take any action with respect to AGCO or any Affiliate or business of AGCO, other than the Company and the Transferred Subsidiaries, and (iii) Trimble shall not be permitted to take any actions with respect to the Company and its Subsidiaries without the prior written consent of AGCO, and neither Trimble nor AGCO shall be required to take any actions with respect to the Company and its Subsidiaries if such actions, individually or in the aggregate, would reasonably be expected to have a material adverse effect on the business, financial condition, or prospects of the Company and its Subsidiaries;
(F) to refrain from, and to cause each of its Affiliates to refrain from, taking any actions or doing, or causing to be done, any things that would be reasonably likely to (1) prevent or materially delay receipt of any governmental approvals, (2) prevent, materially delay or materially impede the Closing, or (3) cause any Governmental Entity to object to such transactions, including by acquiring or agreeing to acquire any assets or businesses engaged in whole or in part in a line of business similar to the Business; and
(G) contest, defend and appeal any Action, whether judicial or administrative, that seeks to prevent the Closing.
(ii) AGCO will not take, or cause to be taken, any actions or do, or cause to be done, any things, in each case, pursuant to this Section 7.4, that would be reasonably likely to materially adversely impact the economic benefits any member of the Trimble Group reasonably expects to receive under this Agreement and the Ancillary Agreements contemplated by this Agreement, taken as a whole, in a manner that is disproportionately adverse in a material respect relative to the corresponding impact on the economic benefits any memner of the AGCO Group reasonably expects to receive under this Agreement and the Ancillary Agreements contemplated by this Agreement, taken as a whole, without the prior written consent of Trimble.
(iii) Trimble will not take, or cause to be taken, any actions or do, or cause to be done, any things that would be reasonably likely to materially adversely affect the economic benefits that any member of the AGCO Group reasonably expects to receive under this Agreement and the Ancillary Agreements contemplated by this Agreement, without the prior written consent of AGCO.
Appears in 3 contracts
Samples: Sale and Contribution Agreement (Trimble Inc.), Sale and Contribution Agreement (Agco Corp /De), Sale and Contribution Agreement (Agco Corp /De)
Regulatory Matters. (a) Subject to Section 4.4, Each of Parent and the Stockholder Company shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to (i) take, or cause their Affiliates toto be taken, use their reasonable best efforts, consistent and assist and cooperate with the time frames set forth other party in Section 6.4 of the Merger Agreementtaking, to supply and provide information thatall actions necessary, to such Stockholder’s knowledge, is complete and accurate in all material respects to any Governmental Authority requesting such information in connection with filings or notifications under, or relating to, applicable laws that are required proper or advisable as a result ofto comply promptly with all legal requirements with respect to the transactions contemplated hereby, including obtaining any third-party consent or pursuant to, the Merger Agreement and the related financings and transactions, including, without limitation, information waiver that may be required or requested to be provided to any antitrust, financial or national security regulatory authorities in connection with any approvals reasonably sought obtained in connection with the consummation transactions contemplated hereby, and, subject to the conditions set forth in Article VII, to consummate the transactions contemplated hereby (including actions required in order to effect the Bank Merger immediately after the Effective Time and to continue any Contract of the Company or its Subsidiaries following the Closing or to avoid any penalty or other fee under such Contracts, in each case arising in connection with the transactions contemplated hereby) and (ii) obtain (and assist and cooperate with the other party in obtaining) any action, nonaction, permit, consent, authorization, order, clearance, waiver or approval of, or any exemption by, any Regulatory Agency or other Governmental Entity that is required or advisable in connection with the transactions contemplated by this Agreement, including the Merger and the Bank Merger (collectively, the “Regulatory Filings” and the, “Regulatory DisclosuresApprovals”, respectively). If any The parties hereto shall cooperate with each other and prepare and file, as promptly as possible after the date hereof, all necessary documentation, and effect all applications, notices, petitions and filings, to obtain as promptly as practicable all actions, nonactions, permits, consents, authorizations, orders, clearances, waivers or approvals of all third parties and Regulatory Agencies or other Governmental Authority seeks Entities that are necessary or advisable to prevent the consummation of consummate the transactions contemplated by this Agreement, including the Merger Agreement based on Regulatory Approvals.
(b) Each of Parent and the HSR Act or Company shall use its reasonable best efforts to resolve any other Antitrust Laws or based on objections that may be asserted by any other required approval, consent, notice or filing with a Governmental Authority and such actions by the Governmental Authority relate to the activities or investments of such Stockholder or its Affiliates (solely for purposes of this Section 4, an “Affiliate” of the Stockholder shall include any portfolio company in which such Stockholder or any of its Affiliates has made a debt or an equity investment), then if Parent in good faith reasonably determines that such actions by the Governmental Authority will not be resolved sufficiently in advance of the Termination Date, Parent may provide written notice of that determination to the Stockholder, and Parent may elect to terminate the obligations under Section 2 and Section 4.6 of this Agreement (in which case the Stockholder’s obligations under the Equity Commitment Letter shall also automatically terminate) and, in that context, the Stockholder shall be entitled to receive the Per Share Price under the Merger Agreement Entity with respect to its shares of Common Stock; provided, however that Parent shall not terminate the Equity Commitment Letter this Agreement or the obligations transactions contemplated by this Agreement. Notwithstanding anything set forth in this Agreement, under Section 2 of this Agreement pursuant to this Section 4.3(a) without first obtaining alternative financing arrangements which provide no circumstances shall Parent with funds in an amount equal to the Rollover Amount; provided that such alternative financing arrangements (i) provide Parent with sufficient fundsbe required, when added to the proceeds of the Equity Financing, Debt Financing and other sources of readily available liquidity of Parent, Merger Sub, the Company and the Company’s its Subsidiaries on the Closing Date, to fund the Required Amount and (ii) do not impose new or additional conditions to the receipt of such financing relative to the Commitment Letters that could impair or delay the Closing. Parent shall promptly provide the Company with a copy of any definitive commitment letter or other documentation providing for such alternative financing arrangement. Notwithstanding anything to the contrary herein, the Stockholder may designate any Regulatory Disclosures that contain sensitive, legally privileged, or confidential information in respect of the Stockholder or any of its Affiliates as exclusive to the Stockholder and the Stockholder may provide that any such sensitive, legally privileged, or confidential information may only be provided on a counsel-only basis or directly to the applicable Governmental Authority requesting such information. The Stockholder shall not make any filings, or notifications in connection with the Merger pursuant to any Antitrust Laws be permitted (without Parent’s prior written consent (not in its sole discretion), to take any action, or commit to take any action, or agree to any condition or restriction, involving Parent, the Company or any of their respective Subsidiaries pursuant to this Section 6.1 or otherwise in connection with obtaining the foregoing actions, nonactions, permits, consents, authorizations, orders, clearances, waivers or approvals, that would have, or would be unreasonably withheldreasonably likely to have, delayed individually or conditioned). in the aggregate, a material adverse effect in respect of Parent and its Subsidiaries, taken as a whole, or the Company shall not file and its Subsidiaries, taken as a whole, in each case measured on a scale relative to the Company and its Subsidiaries taken as a whole (including, for the avoidance of doubt, any determination by any Regulatory Filings Agency or other Governmental Entity that contain the Bank Merger may not be consummated as contemplated herein, including immediately following the Effective Time) (any of the foregoing, a “Materially Burdensome Regulatory Condition”); provided, that, if requested by Parent, then the Company and its Subsidiaries will take or commit to take any such action, or agree to any such condition or restriction, so long as such action, commitment, agreement, condition or restriction is binding on the Company and its Subsidiaries only in the event the Closing occurs.
(c) Subject to applicable Law relating to the exchange of information, Parent and the Company shall, upon request, furnish each other with all information concerning Parent, the Company and their respective Subsidiaries, directors, officers and shareholders and such other matters as may be reasonably necessary in connection with any statement, filing, notice or application made by or on behalf of Parent, the Company or any of their respective Subsidiaries to any Governmental Entity in connection with the transactions contemplated by this Agreement. In exercising the foregoing right, each of the parties hereto shall act reasonably and as promptly as practicable; provided, however, that materials may be redacted (x) to remove references concerning the valuation of the businesses of the Parties and their respective Subsidiaries, (y) as necessary to comply with contractual agreements and (z) as necessary to address reasonable privilege or confidentiality concerns.
(d) Subject to applicable Law (including applicable Law relating to the exchange of information), the Company and Parent shall keep each other apprised of the status of matters relating to the completion of the transactions contemplated by this Agreement. Without limiting the generality of the foregoing, subject to applicable Law, (i) the Company and Parent shall promptly furnish each other with copies of non-confidential notices or other communications received by the Company, Parent or any of their respective Subsidiaries (or written summaries of communications received orally) from any third party or Governmental Entity with respect to the Stockholder or its affiliates without first providing transactions contemplated by this Agreement and (ii) Parent and the Stockholder and its counsel Company shall provide the other party with a reasonable opportunity to review and comment thereonin advance any proposed non-confidential communication to, including any filings with or other non-confidential written materials submitted to, any third party or Governmental Entity, and, to the extent practicable, each will consult the other party on all the information relating to Parent or the Company, as the case may be, and will give good faith consideration to all reasonable additionsany of their respective Subsidiaries, deletions or changes suggested by the Stockholder and its counsel.
(b) Each Stockholder hereto represent, warrant and covenant to Parent and to the Company that, to such Stockholder’s knowledge: (i) none of the information supplied which appears in writing by such Stockholder specifically for inclusion or incorporation by reference in the Regulatory Disclosures will contain a material misstatement of fact or a material omission of fact necessary to make the information provided not misleading and (ii) it does not permit any entity under the “control” (defined in Section 721 of the Defense Production Act, as amended, including all implanting regulations thereof) of a People’s Republic of China nationalfiling made with, or written materials submitted to, any entity under third party or Governmental Entity in connection with the control of a Russian Federation national, to obtain through any Affiliate, control with respect to the Companytransactions contemplated by this Agreement.
Appears in 2 contracts
Samples: Merger Agreement (S&t Bancorp Inc), Merger Agreement (DNB Financial Corp /Pa/)
Regulatory Matters. (a) Subject In the event that the Purchaser in its sole discretion determines, before or after Closing, to Section 4.4acquire or to establish its authority to acquire, or in the Stockholder shallevent the Purchaser may be deemed to acquire, and shall use their reasonable best efforts securities that will amount to cause their Affiliates to, use their reasonable best efforts, consistent with the time frames set forth in Section 6.4 10% or more of the Merger Agreementissued and outstanding shares of any class of securities whose acquisition is or may be subject to regulatory approval, Purchaser may seek approvals (to supply the extent required) and provide information thatwritten confirmation that it shall not thereby be deemed to “control” the Corporation or any Subsidiary after the Closing, from the Federal Reserve for purposes of the Change in Bank Control Act or Sections 3 or 4 of the BHC Act and from the Department under Sections 700-711 and/or 3700-3707, as applicable, of the California Financial Code or other applicable provisions of California law (“California CIBC Law”) (each a “Non-Control Determination”); provided, however, that (A) nothing in this Agreement shall obligate Purchaser to such Stockholder’s knowledge, is complete and accurate in all material respects seek any Non-Control Determination or to any Governmental Authority requesting such information in connection with filings or notifications under, or relating to, applicable laws that are required or advisable as a result of, or pursuant to, purchase shares of the Merger Agreement and the related financings and transactions, including, without limitation, information required or requested to be provided to any antitrust, financial or national security regulatory authorities in connection with any approvals reasonably sought in connection with Corporation following the consummation of this Transaction in excess of the Merger respective amount that Purchaser determines, in its sole discretion, is reasonably likely to be the maximum number of such Purchased Shares that Purchaser may purchase without risk of being required to obtain a Non-Control Determination; and (collectivelyB) if Purchaser in its sole discretion seeks one or more Non-Control Determinations, no such Non-Control Determination shall (i) impose any condition or requirement that would reasonably be expected to be materially burdensome to the Purchaser (including any material constraints or restrictions on the Purchaser’s current business or investments), or (ii) impose any restraint or condition on any limited partner of the Purchaser (including a requirement to file any application or notice under the BHC Act, the “Regulatory Filings” and the, “Regulatory Disclosures”, respectively). If any Governmental Authority seeks to prevent the consummation of the transactions contemplated by the Merger Agreement based on the HSR Change in Bank Control Act or any other Antitrust Laws federal or based on any other required approval, consent, notice or filing with state banking law) (each a Governmental Authority “Burdensome Condition”); and such actions by provided further that the Governmental Authority relate to the activities or investments imposition of such Stockholder or its Affiliates (solely for purposes of this Section 4, an “Affiliate” of the Stockholder shall include any portfolio company in which such Stockholder or any of its Affiliates has made a debt or an equity investment), then if Parent in good faith reasonably determines that such actions by the Governmental Authority will not be resolved sufficiently in advance of the Termination Date, Parent may provide written notice of that determination to the Stockholder, and Parent may elect to terminate the obligations under Section 2 and Section 4.6 of this Agreement (in which case the Stockholder’s obligations under the Equity Commitment Letter shall also automatically terminate) and, in that context, the Stockholder shall be entitled to receive the Per Share Price under the Merger Agreement with respect to its shares of Common Stock; provided, however that Parent shall not terminate the Equity Commitment Letter or the obligations under Section 2 of this Agreement pursuant to this Section 4.3(a) without first obtaining alternative financing arrangements which provide Parent with funds in an amount equal to the Rollover Amount; provided that such alternative financing arrangements (i) provide Parent with sufficient funds, when added to the proceeds of the Equity Financing, Debt Financing and other sources of readily available liquidity of Parent, Merger Sub, the Company and the Company’s Subsidiaries on the Closing Date, to fund the Required Amount and (ii) do not impose new or additional conditions to the receipt of such financing relative to the Commitment Letters that could impair or delay the Closing. Parent shall promptly provide the Company with a copy of any definitive commitment letter or other documentation providing for such alternative financing arrangement. Notwithstanding anything to the contrary herein, the Stockholder may designate any Regulatory Disclosures that contain sensitive, legally privileged, or confidential information in respect of the Stockholder or any of its Affiliates as exclusive to the Stockholder and the Stockholder may provide that any such sensitive, legally privileged, or confidential information may only be provided on a counsel-only basis or directly to the applicable Governmental Authority requesting such information. The Stockholder shall not make any filings, or notifications Burdensome Condition in connection with a Non-Control Determination shall constitute a denial of such Non-Control Determination and the Merger pursuant Non-Control Determination shall be deemed not received for all purposes in this Agreement, including but not limited to any Antitrust Laws without Parent’s prior written consent (not to be unreasonably withheld, delayed or conditionedSection 6.15(b). Parent or the Company shall not file any Regulatory Filings that contain information with respect to the Stockholder or its affiliates without first providing the Stockholder and its counsel a reasonable opportunity to review and comment thereon, and will give good faith consideration to all reasonable additions, deletions or changes suggested by the Stockholder and its counsel.
(b) Each Stockholder hereto represent, warrant of the Corporation and covenant the Purchaser agrees to Parent use its commercially reasonable efforts to take all actions and to do all things necessary, proper or advisable to obtain any authorizations, consents, orders and approvals of all Governmental Authorities necessary for the Company thatPurchaser to purchase the Purchased Shares on the Closing Date on terms consistent with the terms set forth in this Agreement. If the Purchaser determines to seek receipt of a Non-Control Determination from the Federal Reserve or the Department in order to consummate the Transactions contemplated by this Agreement, to such Stockholder’s knowledge: Purchaser will (i) none promptly, and in any event within 20 calendar days of this Agreement submit to the Federal Reserve or the Department, as applicable, a request for Non-Control Determination, (ii) provide (and, if and as required by the Federal Reserve or the Department, as applicable, will cause any of its general partners, managers, managing members or management companies or other controlling entities, as applicable) customary passivity commitments in connection with its request to obtain such determination, and (iii) promptly provide to the Corporation copies of the information supplied public portion of all requests and applications, if any, filed with the Federal Reserve or Department in writing connection with the transactions contemplated by this Agreement, and correspondence to and from the Federal Reserve and Department, as applicable, relating to such Stockholder specifically for inclusion or incorporation by reference requests and applications. The Corporation will, and will cause its Affiliates to, use its commercially reasonable efforts to assist and support the Purchaser’s efforts to obtain a Non-Control Determination in the Regulatory Disclosures will contain event the Purchaser determines to seek such determination.
(c) Purchaser hereby agrees that it shall not seek to “control” or exercise a material misstatement controlling influence over the Corporation or the Bank, for purposes of fact the BHC Act, and, to the extent that and for so long as Purchaser may be bound by a “passivity,” “non-control” or similar agreement required by the Federal Reserve in connection with a material omission Non-Control Determination (a “Non-Control Agreement”), Purchaser shall not take any action the taking of fact necessary to make which is prohibited by any such Non-Control Agreement. Without limiting the information provided not misleading generality of the foregoing, the Purchaser agrees that (i) no officer, director, partner, agent or other representative of Purchaser shall seek or accept representation on the board of directors of the Corporation or any of its Subsidiaries unless nominated by Corporation’s board of directors, and (ii) it does the Purchaser shall not permit any entity under directly or indirectly propose a director or slate of directors in opposition to a nominee or slate of nominees proposed by management or the board of directors of the Corporation.
(d) The Corporation shall use its diligent efforts to obtain and deliver to Purchaser certificates from (i) the Federal Deposit Insurance Corporation (the “control” FDIC”) confirming that the Bank’s deposits are currently insured by the FDIC, (defined in Section 721 ii) the Board of Governors of the Defense Production ActFederal Reserve System (the “Federal Reserve”), certifying that Corporation is a registered bank holding company, and (iii) the California Department of Financial Regulation (the “Department”) certifying that the Bank is duly authorized as amended, including all implanting regulations thereof) of a People’s Republic of China national, or any entity commercial bank under the control of a Russian Federation national, to obtain through any Affiliate, control with respect to the CompanyCalifornia law.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Patriot Financial Partners Lp), Stock Purchase Agreement (Central Valley Community Bancorp)
Regulatory Matters. (ai) Subject There are no pending, or to Section 4.4the Knowledge of Purchaser, the Stockholder shall, and shall use their reasonable best efforts threatened disputes or controversies (including with respect to cause their Affiliates to, use their reasonable best efforts, consistent with the time frames set forth in Section 6.4 capital requirements) as of the Merger Agreement, to supply and provide information that, to such Stockholder’s knowledge, is complete and accurate in all material respects to any Governmental Authority requesting such information in connection with filings or notifications under, or relating to, applicable laws that are required or advisable as a result of, or pursuant to, the Merger Agreement and the related financings and transactions, including, without limitation, information required or requested to be provided to any antitrust, financial or national security regulatory authorities in connection with any approvals reasonably sought in connection with the consummation of the Merger (collectively, the “Regulatory Filings” and the, “Regulatory Disclosures”, respectively). If any Governmental Authority seeks to prevent the consummation of the transactions contemplated by the Merger Agreement based on the HSR Act or any other Antitrust Laws or based on any other required approval, consent, notice or filing with a Governmental Authority and such actions by the Governmental Authority relate to the activities or investments of such Stockholder or its Affiliates (solely for purposes of this Section 4, an “Affiliate” of the Stockholder shall include any portfolio company in which such Stockholder date hereof between Purchaser or any of its Affiliates has made a debt or an equity investment), then if Parent in good faith reasonably determines that such actions by the and any Governmental Authority will not (or any capital plan, supervisory agreement or order with any Governmental Authority entered into or binding upon Purchaser or any of its Affiliates) that (i) would reasonably be resolved sufficiently in advance of the Termination Date, Parent may provide written notice of that determination expected to the Stockholder, and Parent may elect prevent Purchaser from being able to terminate the perform its obligations under Section 2 and Section 4.6 this Agreement or (ii) would reasonably be expected to impair the validity or consummation of this Agreement or the transactions contemplated hereby. As of the date hereof, (x) Purchaser has not received any notice in which case the Stockholder’s obligations under the Equity Commitment Letter shall also automatically terminate) andwriting from any Governmental Authority indicating that such Governmental Authority would oppose or not timely grant or issue its consent or approval, in that contextif requested, the Stockholder shall be entitled to receive the Per Share Price under the Merger Agreement with respect to the transactions contemplated hereby, and (y) Purchaser has no reason to believe that, if requested, any Governmental Authority required to approve the transactions contemplated hereby would oppose or not grant or issue its shares of Common Stock; provided, however that Parent shall not terminate consent or approval.
(ii) Purchaser was rated at least satisfactory following its most recent CRA examination by the Equity Commitment Letter or the obligations under Section 2 of this Agreement pursuant to this Section 4.3(a) without first obtaining alternative financing arrangements which provide Parent with funds in an amount equal regulatory agency responsible for its supervision prior to the Rollover Amount; provided that such alternative financing arrangements date hereof. Purchaser received no written notice prior to the date hereof of any planned or threatened objection by any banking community group to the transactions contemplated hereby.
(iii) As of the date hereof, both currently and after giving effect to the transactions contemplated hereby (on a pro forma basis): (i) provide Parent with sufficient funds, when added Purchaser is and will be at least “well-capitalized” (as that term or any replacement term therefor is defined from time to the proceeds of the Equity Financing, Debt Financing and other sources of readily available liquidity of Parent, Merger Sub, the Company and the Companytime in regulations applicable to Purchaser’s Subsidiaries on the Closing Date, to fund the Required Amount capital); and (ii) do not impose new Purchaser meets all capital requirements, standards and ratios required by each state or additional conditions to the receipt of such financing relative to the Commitment Letters that could impair or delay the Closing. Parent shall promptly provide the Company federal bank regulator with a copy of any definitive commitment letter or other documentation providing for such alternative financing arrangement. Notwithstanding anything to the contrary hereinjurisdiction over Purchaser, the Stockholder may designate any Regulatory Disclosures that contain sensitive, legally privileged, or confidential information in respect of the Stockholder or any of its Affiliates as exclusive to the Stockholder and the Stockholder may provide that including any such sensitivehigher requirement, legally privileged, standard or confidential information may only be provided on a counsel-only basis ratio as applied to Purchaser by state or directly to the applicable Governmental Authority requesting such information. The Stockholder shall not make any filings, or notifications in connection with the Merger pursuant to any Antitrust Laws without Parent’s prior written consent (not to be unreasonably withheld, delayed or conditioned). Parent or the Company shall not file any Regulatory Filings that contain information with respect to the Stockholder or its affiliates without first providing the Stockholder and its counsel a reasonable opportunity to review and comment thereon, and will give good faith consideration to all reasonable additions, deletions or changes suggested by the Stockholder and its counselfederal bank regulator.
(b) Each Stockholder hereto represent, warrant and covenant to Parent and to the Company that, to such Stockholder’s knowledge: (i) none of the information supplied in writing by such Stockholder specifically for inclusion or incorporation by reference in the Regulatory Disclosures will contain a material misstatement of fact or a material omission of fact necessary to make the information provided not misleading and (ii) it does not permit any entity under the “control” (defined in Section 721 of the Defense Production Act, as amended, including all implanting regulations thereof) of a People’s Republic of China national, or any entity under the control of a Russian Federation national, to obtain through any Affiliate, control with respect to the Company.
Appears in 2 contracts
Samples: Sale and Purchase Agreement (Cabela's Master Credit Card Trust), Sale and Purchase Agreement (Cabelas Inc)
Regulatory Matters. (a) Subject to Section 4.4Pernix’s performance of the Services and its responsibility for the operations of the Company as set forth herein, the Stockholder shallCompany under the oversight and supervision of Pernix (through the Company Officers) shall have responsibility and decision making-authority for its regulatory activities, including communications and filings with any Governmental Authorities, with respect to the Product in and out of the Territory. As such pertains to the Corporate Services provided by Pernix, the Company shall promptly share with Pernix any written correspondence and/or communications of any kind that it receives from a Governmental Authority, including but not limited to copies of any and all Regulatory Materials and Regulatory Approvals (including all correspondence with Governmental Authorities) and keep Pernix promptly informed of the submission to Governmental Authorities of any significant Regulatory Materials, meetings with Governmental Authorities, and shall use their reasonable best efforts to cause their Affiliates to, use their reasonable best efforts, consistent with the time frames set forth in Section 6.4 of the Merger Agreement, to supply and provide information that, to such Stockholder’s knowledge, is complete and accurate in all material respects to any Governmental Authority requesting such information in connection with filings or notifications under, or relating to, applicable laws that are required or advisable as a result its receipt of, or pursuant toany material changes to existing, Regulatory Approvals, in the Merger Agreement and case of this clause (ii), for the related financings and transactionsProduct, including, without limitation, information required whether in or requested to be provided to any antitrust, financial or national security regulatory authorities in outside the Territory. In connection with any approvals reasonably sought obtaining and maintaining the Regulatory Approvals in the Territory in connection with the consummation Distribution Service, Pernix shall have the right to reference during the Term any and all of the Merger (collectivelydata submitted in support of the Regulatory Materials and Regulatory Approvals, including any Company Intellectual Property. The Company shall be the legal owner of the Regulatory Approvals associated with the Product in the Territory. At times and upon agreement by the Parties, as part of the Corporate Services, the “Regulatory Filings” and the, “Regulatory Disclosures”, respectively). If any Governmental Authority seeks to prevent the consummation of the transactions contemplated by the Merger Agreement based on the HSR Act or any other Antitrust Laws or based on any other required approval, consent, notice or filing with a Governmental Authority and such actions by the Governmental Authority relate to the activities or investments of such Stockholder or Company may appoint Pernix as its Affiliates (solely for purposes of this Section 4, an “Affiliate” of the Stockholder shall include any portfolio company in which such Stockholder or any of its Affiliates has made a debt or an equity investment), then if Parent in good faith reasonably determines that such actions by the Governmental Authority will not be resolved sufficiently in advance of the Termination Date, Parent may provide written notice of that determination to the Stockholder, and Parent may elect to terminate the obligations under Section 2 and Section 4.6 of this Agreement (in which case the Stockholder’s obligations under the Equity Commitment Letter shall also automatically terminate) and, in that context, the Stockholder shall be entitled to receive the Per Share Price under the Merger Agreement agent with respect to its shares of Common Stock; providedsuch Regulatory Materials and Regulatory Approvals, however that Parent shall not terminate including the Equity Commitment Letter right to file Regulatory Materials or the obligations under Section 2 of take any other actions required by (or advisable under) Applicable Law or this Agreement pursuant to this Section 4.3(a) without first obtaining alternative financing arrangements which provide Parent with funds in an amount equal to the Rollover Amount; provided that such alternative financing arrangements (i) provide Parent with sufficient funds, when added to the proceeds of the Equity Financing, Debt Financing and other sources of readily available liquidity of Parent, Merger Sub, the Company and the Company’s Subsidiaries on the Closing Date, to fund the Required Amount and (ii) do not impose new or additional conditions to the receipt of such financing relative to the Commitment Letters that could impair or delay the Closing. Parent shall promptly provide the Company with a copy of any definitive commitment letter or other documentation providing for such alternative financing arrangement. Notwithstanding anything to the contrary herein, the Stockholder may designate any Regulatory Disclosures that contain sensitive, legally privileged, or confidential information in respect of the Stockholder or any Product in the Territory on behalf of its Affiliates as exclusive to the Stockholder and the Stockholder may provide that any such sensitive, legally privileged, or confidential information may only be provided on a counsel-only basis or directly to the applicable Governmental Authority requesting such information. The Stockholder shall not make any filings, or notifications in connection with the Merger pursuant to any Antitrust Laws without Parent’s prior written consent (not to be unreasonably withheld, delayed or conditioned). Parent or the Company shall not file any Regulatory Filings that contain information with respect to the Stockholder or its affiliates without first providing the Stockholder and its counsel a reasonable opportunity to review and comment thereon, and will give good faith consideration to all reasonable additions, deletions or changes suggested by the Stockholder and its counselCompany.
(b) Each Stockholder hereto representPernix and its Affiliates shall have the responsibility in the Territory for complying with all Applicable Laws, warrant regulatory filings and covenant reporting requirements required to Parent and be undertaken by Pernix acting as a distributor of the Product in the Territory. Pernix shall promptly notify the appropriate, designated persons within the Company of any report of an adverse drug reaction/experience concerning the Product to the extent known by Pernix. Pernix shall cooperate with the Company thatas necessary to report such adverse drug reaction/experience when so required as a distributor of the Product under Applicable Laws. Pernix shall also promptly notify the appropriate, designated persons within the Company of any material complaints related to the Product of which the applicable personnel of Pernix becomes aware regarding problems with the Product other than those associated with adverse drug reactions/experiences. Subject to the foregoing, the Company shall be responsible for the timely reporting of all relevant adverse drug reactions/experiences, Product quality, Product complaints and safety data relating to the #90879273v29 Product to the appropriate Governmental Authorities in and outside of the Territory, all in accordance with Applicable Law and requirements of Governmental Authorities in the Territory or the applicable jurisdiction outside of the Territory, as the case may be. As such Stockholder’s knowledge: pertains to the Corporate Services provided by Pernix, the Company shall promptly share all such reports with Pernix, and in all cases shall use its commercially reasonably efforts to provide such reports to Pernix before or simultaneous to the issuance of such reports to Governmental Authorities.
(c) The Company shall use its commercially reasonable efforts to obtain and maintain all Regulatory Approvals in the Territory. The Company shall be responsible for all Product-related communications with any Governmental Authority in or outside of the Territory regarding the Product, unless previously agreed between the Company and Pernix.
(d) Each Party shall keep the other Party reasonably informed in writing in a timely manner of any information that such Party receives that (i) none raises any material concerns regarding the safety or efficacy of the information supplied in writing by such Stockholder specifically for inclusion or incorporation by reference in the Regulatory Disclosures will contain a material misstatement of fact or a material omission of fact necessary to make the information provided not misleading and Product; (ii) it does not permit any entity under indicates or suggests a potential material liability of either Party to third parties (including Governmental Authorities) in connection with the “control” Product; (defined in Section 721 iii) is reasonably likely to lead to a recall or market withdrawal of the Defense Production ActProduct; or (iv) relates to the Product and is reasonably likely to have a material impact on a Regulatory Approval or the commercialization of the Product.
(e) At the request of designated persons within the Company, as amendedPernix will supply distribution information and other information reasonably requested by the Company, including for the purposes of inclusion into the Company’s Annual Report to FDA.
(f) Pernix shall ensure that the Distribution Service activities of Pernix, its Affiliates, Pernix Parties and sublicensees related to the Product shall be compliant with Applicable Laws. Pernix shall ensure that Pernix, its Affiliates, Pernix Parties and sublicensees shall not use any Promotional Materials not expressly approved for Pernix’s use by the Company Board (or its delegee). “Promotional Materials” means all implanting regulations thereof) of a People’s Republic of China nationalsales representative training materials and all written, printed, graphic, electronic, audio or video matter, including, but not limited to, journal advertisements, sales aids, formulary binders, reprints, direct mail, direct-to-consumer advertising, Internet postings, broadcast advertisements and sales reminder aids (for example, scratch pads, pens and other such items), used or intended for use by in connection with any promotion, distribution, marketing, advertising, importation, use, offer for sale, or any entity under sale of the control of a Russian Federation national, to obtain through any Affiliate, control with respect to the CompanyProduct.
Appears in 2 contracts
Samples: Services Agreement (Pernix Therapeutics Holdings, Inc.), Services Agreement
Regulatory Matters. (a) Subject Parent and the Company shall promptly prepare and file with the SEC the Joint Information Statement/Proxy Statement and Parent shall promptly prepare and file with the SEC the S-4 (not later than 60 days following the date of this Agreement), in which the Joint Information Statement/Proxy Statement will be included as a prospectus. Each of Parent and the Company shall use its commercially reasonable efforts to Section 4.4have the S-4 declared effective under the Securities Act as promptly as practicable after such filing and to keep the S-4 effective for so long as necessary to consummate the transactions contemplated by this Agreement, and Parent and the Company shall thereafter as promptly as practicable mail or deliver the Joint Information Statement/Proxy Statement to their respective stockholders or shareholders (as applicable); provided, however, that Parent may in its sole discretion determine that, in lieu of filing with the SEC the Joint Information Statement/Proxy Statement, (i) Parent shall file with the SEC a written information statement in definitive form of the type contemplated by Rule 14c-2 promulgated under the Exchange Act relating to the adoption of the Merger Agreement by Parent’s stockholders (the “Information Statement”) (it being understood that in such case, the Stockholder Information Statement, rather than the Joint Information Statement/Proxy Statement, shall be mailed or delivered to the stockholders of Parent pursuant to this Section 6.1(a)) and (ii) the Company shall file with the SEC a proxy statement in definitive form relating to the meeting of the Company’s shareholders to be held in connection with this Agreement and the transactions contemplated hereby (the “Proxy Statement”) (it being understood that in such case, the Proxy Statement, rather than the Joint Information Statement/Proxy Statement, shall be included in the S-4 and mailed or delivered to the shareholders of the Company pursuant to this Section 6.1(a)). Parent shall also use its commercially reasonable efforts to obtain all necessary state securities law or “Blue Sky” permits and approvals required to carry out the transactions contemplated by this Agreement, and the Company shall furnish all information concerning the Company and the holders of Company Common Stock as may be reasonably requested in connection with any such action.
(b) The parties hereto shall cooperate with each other and use their commercially reasonable efforts to promptly prepare and file, or cause to be prepared and filed, all necessary documentation, to effect all applications, notices, petitions and filings, to obtain as promptly as practicable all permits, consents, approvals and authorizations of all third parties and Governmental Entities which are necessary or advisable to consummate the transactions contemplated by this Agreement (including the Merger and the Bank Merger), and to comply with the terms and conditions of all such permits, consents, approvals and authorizations of all such Governmental Entities. Without limiting the generality of the foregoing, as soon as practicable and in no event later than thirty (30) business days after the date of this Agreement, Parent and the Company shall, and shall use cause their respective Subsidiaries to, each prepare and file any applications, notices and filings required to be filed with any bank regulatory agency in order to obtain the Requisite Regulatory Approvals. Parent and the Company shall each use, and shall each cause their applicable Subsidiaries to use, commercially reasonable best efforts to cause obtain each such Requisite Regulatory Approval as promptly as reasonably practicable. Parent and the Company 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 relating to the exchange of information, all the information relating to the Company or Parent, as the case may be, and any of their Affiliates respective Subsidiaries, which appears in any filing made with, or written materials submitted to, use their reasonable best efforts, consistent with the time frames set forth in Section 6.4 of the Merger Agreement, to supply and provide information that, to such Stockholder’s knowledge, is complete and accurate in all material respects to any third party or any Governmental Authority requesting such information in connection with filings or notifications under, or relating to, applicable laws that are required or advisable as a result of, or pursuant to, the Merger Agreement and the related financings and transactions, including, without limitation, information required or requested to be provided to any antitrust, financial or national security regulatory authorities in connection with any approvals reasonably sought Entity in connection with the consummation transactions contemplated by this Agreement. In exercising the foregoing right, each of the parties hereto shall act reasonably and as promptly as practicable. The parties hereto agree that they will consult with each other with respect to the obtaining of all permits, consents, approvals and authorizations of all third parties and Governmental Entities necessary or advisable to consummate the transactions contemplated by this Agreement and each party will keep the other apprised of the status of matters relating to completion of the transactions contemplated hereby. Each party shall consult with the other in advance of any meeting or conference with any Governmental Entity in connection with the transactions contemplated by this Agreement and to the extent permitted by such Governmental Entity, give the other party and/or its counsel the opportunity to attend and participate in such meetings and conferences.
(c) In furtherance and not in limitation of the foregoing, each of Parent and the Company shall use its commercially reasonable efforts to 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. Notwithstanding the foregoing, nothing contained in this Agreement shall be deemed to require Parent or the Company to take any action (or permit the Company to, without the prior written consent of Parent, take any action), or commit to take any action, or agree to any condition or restriction that would reasonably be expected to have a Material Adverse Effect on the Surviving Corporation and its Subsidiaries, taken as a whole, after giving effect to the Merger (collectivelya “Materially Burdensome Regulatory Condition”).
(d) Parent and the Company shall, upon request, furnish each other with all information concerning themselves, their Subsidiaries, directors, officers and stockholders or shareholders (as applicable) and such other matters as may be reasonably necessary or advisable in connection with the Joint Information Statement/Proxy Statement (or, if applicable, the “Regulatory Filings” Information Statement and thethe Proxy Statement), “Regulatory Disclosures”the S-4 or any other statement, respectively). If filing, notice or application made by or on behalf of Parent, the Company or any of their respective Subsidiaries to any Governmental Authority seeks to prevent Entity in connection with the Merger, the Bank Merger and the other transactions contemplated by this Agreement.
(e) To the extent permitted by applicable law, Parent and the Company shall promptly advise each other upon receiving any communication from any Governmental Entity whose consent or approval is required for consummation of the transactions contemplated by the Merger this Agreement based on the HSR Act or that causes such party to believe that there is a reasonable likelihood that any other Antitrust Laws or based on any other required approval, consent, notice or filing with a Governmental Authority and such actions by the Governmental Authority relate to the activities or investments of such Stockholder or its Affiliates (solely for purposes of this Section 4, an “Affiliate” of the Stockholder shall include any portfolio company in which such Stockholder or any of its Affiliates has made a debt or an equity investment), then if Parent in good faith reasonably determines that such actions by the Governmental Authority Requisite Regulatory Approval will not be resolved sufficiently obtained or that the receipt of any such approval will be materially delayed. As used in advance of the Termination Date, Parent may provide written notice of that determination to the Stockholder, and Parent may elect to terminate the obligations under Section 2 and Section 4.6 of this Agreement (in which case the Stockholder’s obligations under the Equity Commitment Letter shall also automatically terminate) and, in that contextAgreement, the Stockholder “Requisite Regulatory Approvals” shall be entitled to receive the Per Share Price under the Merger Agreement with respect to its shares of Common Stock; providedmean all regulatory authorizations, however that Parent shall not terminate the Equity Commitment Letter consents, orders or the obligations under Section 2 of this Agreement pursuant to this Section 4.3(a) without first obtaining alternative financing arrangements which provide Parent with funds in an amount equal to the Rollover Amount; provided that such alternative financing arrangements approvals from (i) provide Parent with sufficient funds, when added to the proceeds of the Equity Financing, Debt Financing and other sources of readily available liquidity of Parent, Merger Sub, the Company Federal Reserve Board and the Company’s Subsidiaries on the Closing Date, to fund the Required Amount OCC and (ii) do not impose new or additional conditions any other approvals set forth in Sections 3.4 and 4.4 that are necessary to consummate the receipt of such financing relative to transactions contemplated by this Agreement, including the Commitment Letters that could impair or delay the Closing. Parent shall promptly provide the Company with a copy of any definitive commitment letter or other documentation providing for such alternative financing arrangement. Notwithstanding anything to the contrary herein, the Stockholder may designate any Regulatory Disclosures that contain sensitive, legally privileged, or confidential information in respect of the Stockholder or any of its Affiliates as exclusive to the Stockholder Merger and the Stockholder may provide that Bank Merger, except for any such sensitiveauthorizations, legally privilegedconsents, orders or confidential information may only be provided on a counsel-only basis or directly to approvals the applicable Governmental Authority requesting such information. The Stockholder shall not make any filings, or notifications in connection with the Merger pursuant to any Antitrust Laws without Parent’s prior written consent (not failure of which to be unreasonably withheldobtained would not reasonably be expected to have, delayed either individually or conditioned). Parent or the Company shall not file any Regulatory Filings that contain information with respect to the Stockholder or its affiliates without first providing the Stockholder and its counsel a reasonable opportunity to review and comment thereon, and will give good faith consideration to all reasonable additions, deletions or changes suggested by the Stockholder and its counsel.
(b) Each Stockholder hereto represent, warrant and covenant to Parent and to the Company that, to such Stockholder’s knowledge: (i) none of the information supplied in writing by such Stockholder specifically for inclusion or incorporation by reference in the Regulatory Disclosures will contain aggregate, a material misstatement of fact or a material omission of fact necessary to make Material Adverse Effect on the information provided not misleading and (ii) it does not permit any entity under the “control” (defined in Section 721 of the Defense Production Act, as amended, including all implanting regulations thereof) of a People’s Republic of China national, or any entity under the control of a Russian Federation national, to obtain through any Affiliate, control with respect to the CompanySurviving Corporation.
Appears in 2 contracts
Samples: Merger Agreement (State Bank Financial Corp), Merger Agreement (Cadence Bancorporation)
Regulatory Matters. (a) Subject to Section 4.4, the Stockholder shall, and shall use their reasonable best efforts to cause their Affiliates to, use their reasonable best efforts, consistent with the time frames set forth in Section 6.4 Each of the Merger AgreementCompany, SRH and Parent agrees to supply cooperate in the preparation of (i) the proxy statement and provide information that, to such Stockholder’s knowledge, is complete other proxy solicitation materials of the Company (the "Proxy Statement") and accurate in all material respects to any Governmental Authority requesting such information in connection with filings or notifications under, or relating to, applicable laws that are required or advisable as a result of, or pursuant to, the Merger Agreement and the related financings and transactions, including, without limitation, information required or requested to be provided to any antitrust, financial or national security regulatory authorities in connection with any approvals reasonably sought documents) in connection with the Company Meeting (as defined in Section 7.5) and (ii) an offer document to be filed by Parent and/or Offer Sub with the CSFS and any other applicable Regulatory Authority and/or stock exchange in connection with the Offer (the "Offer Circular"). Provided Parent has cooperated as required above, the Company agrees to file the Proxy Statement in preliminary form with the SEC as promptly as reasonably practicable and to file the final Proxy Statement as soon as reasonably practicable after any SEC comments with respect to the preliminary Proxy Statement are resolved. Parent shall file the Offer Circular with the CSFS and any other applicable Regulatory Authority and/or stock exchange at such time as it shall reasonably determine is necessary in order to consummate the Offer in accordance with Section 7.13. The Company and SRH agree to furnish to Parent all information concerning the Company and SRH, their Subsidiaries, officers, directors and stockholders as may be reasonably requested in connection with the foregoing.
(b) Each of the Company, SRH and Parent agrees, as to itself and its Subsidiaries, that none of the information supplied or to be supplied by it for inclusion or incorporation by reference in (i) the Proxy Statement and any amendment or supplement thereto will, at the date of mailing to stockholders and at the time of the Company, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading or any statement which, in the light of the circumstances under which such statement is made, will be false or misleading with respect to any material fact, or which will omit to state any material fact necessary in order to make the statements therein not false or misleading or necessary to correct any statement in any earlier statement in the Proxy Statement or any amendment or supplement thereto and (ii) the Offer Circular at the date of mailing, and at the time of the consummation of the Offer, will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading. Each of the Company, SRH and Parent further agrees that if it shall become aware prior to the Effective Time (or the consummation of the Offer) of any information furnished by it that would cause any of the statements in the Proxy Statement (or the Offer Circular) to be false or misleading with respect to any material fact, or to omit to state any material fact necessary to make the statements therein not false or misleading, to promptly inform the other party thereof and to take the necessary steps to correct the Proxy Statement (or the Offer Circular).
(c) The Company, SRH and Parent, as appropriate, shall promptly prepare and file all requisite notices and applications with respect to the Merger (collectivelyand the Offer with the Federal Reserve Board, the “CSFS, the FSA, the HKMA, the FBC and any other applicable local, state, federal or foreign Regulatory Filings” Agency and theas required under the HSR Act, “the EC Merger Regulation or any other applicable antitrust laws or merger regulations, and shall seek confirmation that no Regulatory Disclosures”, respectively). If any Governmental Authority seeks Agency objects to prevent the consummation of the transactions contemplated by the Merger Agreement based on the HSR Act or any other Antitrust Laws or based on any other required approval, consent, notice or filing with a Governmental Authority and such actions by the Governmental Authority relate this Agreement.
(d) Subject to proviso to the activities first sentence of Section 7.6, the parties hereto shall cooperate with each other and use their reasonable best efforts to promptly prepare and file all necessary documentation, to effect all applications, notices, petitions and filings, to obtain as promptly as practicable all permits, consents, approvals and authorizations of all third parties and Governmental Entities which are necessary or investments of such Stockholder or its Affiliates (solely for purposes of this Section 4, an “Affiliate” of advisable to consummate the Stockholder shall include any portfolio company in which such Stockholder or any of its Affiliates has made a debt or an equity investment), then if Parent in good faith reasonably determines that such actions transactions contemplated by the Governmental Authority will not be resolved sufficiently in advance of the Termination Date, Parent may provide written notice of that determination to the Stockholder, and Parent may elect to terminate the obligations under Section 2 and Section 4.6 of this Agreement (in which case the Stockholder’s obligations under the Equity Commitment Letter shall also automatically terminate) andincluding, in that contextwithout limitation, the Stockholder shall be entitled Merger and the Offer), and to receive comply fully with the Per Share Price under the Merger Agreement with respect to its shares terms and conditions of Common Stock; providedall such permits, however that Parent shall not terminate the Equity Commitment Letter or the obligations under Section 2 consents, approvals and authorizations of this Agreement pursuant to this Section 4.3(a) without first obtaining alternative financing arrangements which provide Parent with funds in an amount equal to the Rollover Amount; provided that all such alternative financing arrangements (i) provide Parent with sufficient funds, when added to the proceeds of the Equity Financing, Debt Financing and other sources of readily available liquidity of Governmental Entities. Parent, Merger Sub, the Company and SRH shall, to the extent practicable, consult each other on, in each case subject to applicable laws relating to the exchange of information, all the information relating to the Company’s Subsidiaries on , SRH or Parent, as the Closing Datecase may be, to fund and any of their respective Subsidiaries, which appear in any filing made with, or written materials submitted to, any third party or any Governmental Entity in connection with the Required Amount transactions contemplated by this Agreement. In exercising the foregoing right, each of the parties hereto shall act reasonably and (ii) do not impose new or additional conditions as promptly as practicable. The parties hereto agree that they will consult with each other with respect to the receipt obtaining of such financing relative all permits, consents, approvals and authorizations of all third parties and Governmental Entities necessary or advisable to consummate the Commitment Letters that could impair or delay transactions contemplated by this Agreement and each party will keep the Closing. Parent shall promptly provide other apprised of the status of matters relating to completion of the transactions contemplated herein.
(e) Parent, SRH and the Company shall, upon request, furnish each other with a copy of any definitive commitment letter all information concerning themselves, their Subsidiaries, directors, officers and stockholders and such other matters as may be reasonably necessary or other documentation providing for such alternative financing arrangement. Notwithstanding anything to advisable in connection with the contrary hereinProxy Statement, the Stockholder may designate Offer Circular or any Regulatory Disclosures that contain sensitiveother statement, legally privilegedfiling, notice or confidential information in respect application made by or on behalf of Parent, SRH, the Stockholder Company or any of its Affiliates as exclusive their respective Subsidiaries to the Stockholder and the Stockholder may provide that any such sensitive, legally privileged, or confidential information may only be provided on a counsel-only basis or directly to the applicable Governmental Authority requesting such information. The Stockholder shall not make any filings, or notifications Entity in connection with the Merger pursuant to any Antitrust Laws without and the other transactions contemplated by this Agreement.
(f) Parent’s prior written consent (not to be unreasonably withheld, delayed or conditioned). Parent or SRH and the Company shall not file promptly advise each other upon receiving any Regulatory Filings that contain information with respect to the Stockholder communication from any Governmental Entity whose consent or its affiliates without first providing the Stockholder and its counsel a reasonable opportunity to review and comment thereon, and will give good faith consideration to all reasonable additions, deletions or changes suggested by the Stockholder and its counsel.
(b) Each Stockholder hereto represent, warrant and covenant to Parent and to the Company that, to such Stockholder’s knowledge: (i) none approval is required for consummation of the information supplied in writing transactions contemplated by such Stockholder specifically for inclusion or incorporation by reference in the Regulatory Disclosures will contain a material misstatement of fact or a material omission of fact necessary to make the information provided not misleading and (ii) it does not permit any entity under the “control” (defined in Section 721 of the Defense Production Act, as amended, including all implanting regulations thereof) of a People’s Republic of China national, or any entity under the control of a Russian Federation national, to obtain through any Affiliate, control with respect to the Companythis Agreement.
Appears in 2 contracts
Samples: Transaction Agreement and Plan of Merger (Republic New York Corp), Transaction Agreement and Plan of Merger (HSBC Holdings PLC)
Regulatory Matters. (a) Subject Regulatory activities will be jointly carried out by the Parties and the Project Team under the guidance of the JDC in accordance with this Section 3.3.1. The Party responsible for regulatory activities under this Section 3.3.1 will be responsible for keeping the Project Team apprised as to Section 4.4, the Stockholder shall, status of such activities and shall use their reasonable best efforts to cause their Affiliates to, use their reasonable best efforts, consistent consulting with the time frames set forth Project Team as provided herein and the Project Team will be responsible for keeping the JDC apprised as to the status of such activities and consulting with the JDC as provided herein. All regulatory activities will be conducted using [***] standard regulatory operating procedures and systems. [***] = Certain confidential information contained in Section 6.4 this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Merger AgreementSecurities Exchange Act of 1934, to supply and provide information that, to such Stockholder’s knowledge, is complete and accurate in all material respects to any Governmental Authority requesting such information in connection with filings or notifications under, or relating to, applicable laws that are required or advisable as a result of, or pursuant to, the Merger Agreement and the related financings and transactions, including, without limitation, information required or requested to be provided to any antitrust, financial or national security regulatory authorities in connection with any approvals reasonably sought in connection with the consummation amended. Table of the Merger (collectively, the “Regulatory Filings” and the, “Regulatory Disclosures”, respectively). If any Governmental Authority seeks to prevent the consummation of the transactions contemplated by the Merger Agreement based on the HSR Act or any other Antitrust Laws or based on any other required approval, consent, notice or filing with a Governmental Authority and such actions by the Governmental Authority relate to the activities or investments of such Stockholder or its Affiliates (solely for purposes of this Section 4, an “Affiliate” of the Stockholder shall include any portfolio company in which such Stockholder or any of its Affiliates has made a debt or an equity investment), then if Parent in good faith reasonably determines that such actions by the Governmental Authority will not be resolved sufficiently in advance of the Termination Date, Parent may provide written notice of that determination to the Stockholder, and Parent may elect to terminate the obligations under Section 2 and Section 4.6 of this Agreement (in which case the Stockholder’s obligations under the Equity Commitment Letter shall also automatically terminate) and, in that context, the Stockholder shall be entitled to receive the Per Share Price under the Merger Agreement with respect to its shares of Common Stock; provided, however that Parent shall not terminate the Equity Commitment Letter or the obligations under Section 2 of this Agreement pursuant to this Section 4.3(a) without first obtaining alternative financing arrangements which provide Parent with funds in an amount equal to the Rollover Amount; provided that such alternative financing arrangements (i) provide Parent with sufficient funds, when added to the proceeds of the Equity Financing, Debt Financing and other sources of readily available liquidity of Parent, Merger Sub, the Company and the Company’s Subsidiaries on the Closing Date, to fund the Required Amount and (ii) do not impose new or additional conditions to the receipt of such financing relative to the Commitment Letters that could impair or delay the Closing. Parent shall promptly provide the Company with a copy of any definitive commitment letter or other documentation providing for such alternative financing arrangement. Notwithstanding anything to the contrary herein, the Stockholder may designate any Regulatory Disclosures that contain sensitive, legally privileged, or confidential information in respect of the Stockholder or any of its Affiliates as exclusive to the Stockholder and the Stockholder may provide that any such sensitive, legally privileged, or confidential information may only be provided on a counsel-only basis or directly to the applicable Governmental Authority requesting such information. The Stockholder shall not make any filings, or notifications in connection with the Merger pursuant to any Antitrust Laws without Parent’s prior written consent (not to be unreasonably withheld, delayed or conditioned). Parent or the Company shall not file any Regulatory Filings that contain information with respect to the Stockholder or its affiliates without first providing the Stockholder and its counsel a reasonable opportunity to review and comment thereon, and will give good faith consideration to all reasonable additions, deletions or changes suggested by the Stockholder and its counsel.Contents
(b) Each Stockholder hereto represent, warrant All Regulatory Filings and covenant to Parent and Regulatory Approvals that relate to the Company Shared Products shall be filed by and held in the name of [***] or its designated Affiliates, except that, to such Stockholder’s knowledge: (i) none of [***] shall initially hold the information supplied in writing by such Stockholder specifically [***] CTAs submitted for inclusion or incorporation by reference the first Shared Product for beta-thalassemia to Regulatory Authorities in the Regulatory Disclosures will contain [***] in the name of [***] or its designated Affiliates, and, unless the JDC otherwise determines that the transfer of such CTAs to [***] as provided herein [***], shall initiate transfer of such CTAs to [***] within [***] days after approval or rejection of such CTAs in any [***], and thereafter, unless otherwise agreed by the Parties in writing, such CTAs, and any subsequent CTA for a material misstatement Shared Product, shall be held in the name of fact [***] or a material omission of fact necessary to make its designated Affiliate and [***] shall be the information provided not misleading and sponsor for the Initial Clinical Trials; (ii) it does not permit any entity under [***] shall initially hold the first IND submitted for the first Shared Product to the FDA in the name of [***] or its designated Affiliates, and, unless the JDC otherwise determines that the transfer of such IND to [***] as provided herein [***], shall initiate transfer of such IND to [***] no later than [***] after such IND becomes effective or the FDA places a hold on such IND (the “control” IND Transfer Date”), and thereafter, unless otherwise agreed by the Parties in writing, such IND, and any subsequent IND for a Shared Product, shall be held in the name of [***] or its designated Affiliate; and (defined in Section 721 of the Defense Production Act, as amended, including all implanting regulations thereofiii) of a People’s Republic of China national, [***] or any entity under the control of a Russian Federation national, to obtain through any its designated Affiliate, control with respect and thereafter [***] or its designated Affiliate. Each Party agrees to take such further actions as may be reasonably necessary to effect the Company.transfers set forth in this Section 3.3.1(b). The Project Team will oversee, monitor and manage the transfers contemplated by this Section 3.3.1(b). A transfer initiated under this Section 3.3.1
Appears in 2 contracts
Samples: Joint Development and Commercialization Agreement, Joint Development and Commercialization Agreement (CRISPR Therapeutics AG)
Regulatory Matters. (a) Subject to Section 4.4, the Each Stockholder shall, and shall use their its reasonable best efforts to cause their its Affiliates to, use their reasonable best efforts, consistent with the time frames set forth in Section 6.4 6.2 of the Merger Agreement, to supply and provide information that, to such Stockholder’s knowledge, is complete and accurate in all material respects to any Governmental Authority requesting such information in connection with filings or notifications under, or relating to, applicable laws Laws that are required or advisable as a result of, or pursuant to, the Merger Agreement and the related financings and transactions, including, without limitation, all information required or requested to be provided to any antitrust, financial or national security regulatory authorities in connection with any approvals reasonably sought in connection with the consummation of the Merger (collectively, the “Regulatory Filings” and such disclosure, the, “Regulatory Disclosures”, respectively). If any Governmental Authority seeks to prevent the consummation of the transactions contemplated by the Merger Agreement based on the HSR Act or any other Antitrust Laws or based on any other required approval, consent, notice or filing with a Governmental Authority and such actions by the Governmental Authority relate to the activities or investments of such Stockholder or its Affiliates (solely for purposes of this Section 4, an “Affiliate” of the Stockholder shall include any portfolio company in which such Stockholder or any of its Affiliates has made a debt or an equity investment), then if Parent in good faith reasonably determines that such actions by the Governmental Authority will not be resolved sufficiently in advance of the Termination Date, Parent may provide written notice of that determination to the Stockholder, and Parent may elect to terminate the obligations under Section 2 and Section 4.6 of this Agreement (in which case the Stockholder’s obligations under the Equity Commitment Letter shall also automatically terminate) and, in that context, the Stockholder shall be entitled to receive the Per Share Price under the Merger Agreement with respect to its shares of Common Stock; provided, however that Parent shall not terminate the Equity Commitment Letter or the obligations under Section 2 of this Agreement pursuant to this Section 4.3(a) without first obtaining alternative financing arrangements which provide Parent with funds in an amount equal to the Rollover Amount; provided that such alternative financing arrangements (i) provide Parent with sufficient funds, when added to the proceeds of the Equity Financing, Debt Financing and other sources of readily available liquidity of Parent, Merger Sub, the Company and the Company’s Subsidiaries on the Closing Date, to fund the Required Amount and (ii) do not impose new or additional conditions to the receipt of such financing relative to the Commitment Letters that could impair or delay the Closing. Parent shall promptly provide the Company with a copy of any definitive commitment letter or other documentation providing for such alternative financing arrangement. Notwithstanding anything to the contrary herein, the Stockholder may designate any Regulatory Disclosures that contain sensitive, legally privileged, or confidential information in respect of the Stockholder or any of its Affiliates as exclusive to the Stockholder and the Stockholder may provide that any such sensitive, legally privileged, or confidential information may only be provided on a counsel-only basis or directly to the applicable Governmental Authority requesting such information. The Stockholder shall not make any filings, or notifications in connection with the Merger pursuant to any Antitrust Laws without Parent’s prior written consent (not to be unreasonably withheld, delayed or conditioned). Parent or the Company shall not file any Regulatory Filings that contain information with respect to the any Stockholder or its affiliates Affiliates without first providing the such Stockholder and its counsel a reasonable opportunity to review and comment thereon, and will give good faith consideration to all reasonable additions, deletions or changes suggested by the such Stockholder and its counsel.
(b) Each Stockholder hereto representrepresents, warrant warrants and covenant covenants to Parent and to the Company that, to such Stockholder’s knowledge: (i) knowledge none of the information supplied in writing by such Stockholder specifically for inclusion or incorporation by reference in the Regulatory Disclosures will contain a material misstatement of fact or a material omission of fact necessary to make the information provided not misleading misleading.
(c) Notwithstanding the foregoing or anything to the contrary in this Agreement, none of the provisions of this Agreement shall be construed as requiring any Stockholder to (i) make available to Parent any of its internal investment committee materials or analyses or, other than Regulatory Disclosures, any information which such Stockholder considers to be commercially sensitive information or which is otherwise held subject to an obligation of confidentiality; and (ii) it does not permit any entity under the “control” (defined in Section 721 of the Defense Production Act, as amended, including all implanting regulations thereof) of a People’s Republic of China national, or any entity under the control of a Russian Federation national, to obtain through any Affiliate, control with respect to any Regulatory Disclosures, provide, or cause to be provided or agree or commit to provide (A) information where the Companysharing of such information as contemplated would be prohibited by applicable Laws applicable to it or its Affiliates or any Order issued by any court of competent jurisdiction or other legal or regulatory restraint or prohibition applicable to or imposed upon it or its Affiliates; or (B) any non-public information with respect to it or any of its Affiliates other than of the type or to the extent the Stockholders and/or its Affiliates have previously provided to Governmental Authorities in prior transactions under substantially similar standards of confidentiality. Each Stockholder may designate any Regulatory Disclosures that contain sensitive, legally privileged, or confidential information in respect of such Stockholder or any of its Affiliates as exclusive to such Stockholder, and such Stockholder may provide that any such sensitive, legally privileged, or confidential information may only be provided on a counsel-only basis or directly to the applicable Governmental Authority requesting such information.
(d) Each Stockholder agrees to permit the Company to publish and disclose in a Rule 13e-3 Transaction Statement on Schedule 13e-3, which will include the Information Statement as an exhibit (including all documents filed with the SEC in accordance therewith), such Person’s identity and beneficial ownership of Covered Shares or other equity securities of the Company and the nature of such Person’s commitments, arrangements and understandings under this Agreement, in each case, if the Company or Parent reasonably determines it is required by applicable Law or the SEC (or its staff); provided, that the Company has provided such Stockholder and its, his or her counsel with a reasonable opportunity to review and comment on the foregoing documents and given due consideration to all reasonable additions, deletions or changes suggested thereto to the extent such Stockholder is a filer pursuant to Schedule 13e-3.
Appears in 2 contracts
Samples: Support and Rollover Agreement (Powerschool Holdings, Inc.), Support and Rollover Agreement (Powerschool Holdings, Inc.)
Regulatory Matters. 17.1 The Paying Agent is authorized and regulated by the Central Bank of Ireland (a“CBOI”) Subject and its activities in the UK are subject to Section 4.4, limited regulation by the Stockholder shall, and shall use their reasonable best efforts to cause their Affiliates to, use their reasonable best efforts, consistent with the time frames set forth in Section 6.4 of the Merger Agreement, to supply and provide information that, to such Stockholder’s knowledge, is complete and accurate in all material respects to any Governmental UK Prudential Regulation Authority requesting such information in connection with filings or notifications under, or relating to, applicable laws that are required or advisable as a result of, or pursuant to, the Merger Agreement (“PRA”) and the related financings and transactions, including, without limitation, information required or requested to be provided to any antitrust, financial or national security regulatory authorities in connection with any approvals reasonably sought in UK Financial Conduct Authority (“FCA”).
17.2 In connection with the consummation worldwide effort against the funding of the Merger (collectivelyterrorism and money laundering activities, the “Regulatory Filings” and thePaying Agent, “Regulatory Disclosures”, respectively). If any Governmental Authority seeks to prevent the consummation of the transactions contemplated by the Merger Agreement based on the HSR Act or any other Antitrust Laws or based on any other required approval, consent, notice or filing with a Governmental Authority and such actions by the Governmental Authority relate to the activities or investments of such Stockholder or its Affiliates (solely for purposes of this Section 4, an “Affiliate” of the Stockholder shall include any portfolio company in which such Stockholder or any of its Affiliates has made a debt or an equity investment), then if Parent in good faith reasonably determines that such actions by the Governmental Authority will not be resolved sufficiently in advance of the Termination Date, Parent may provide written notice of that determination to the StockholderTransfer Agent, and Parent Registrar may elect be required under various national laws and regulations to terminate which they are subject to obtain, verify, and record information that identifies each person who opens an account with it. For a non-individual person such as a business entity, a charity, a Trust or other legal entity the obligations under Section 2 Paying Agent, Transfer Agent, and Section 4.6 of this Agreement (in which case the Stockholder’s obligations under the Equity Commitment Letter shall also automatically terminate) and, in that context, the Stockholder Registrar shall be entitled to receive ask for documentation to verify such entity’s formation and legal existence as well as financial statements, licenses, identification, and authorization documents from individuals claiming authority to represent the Per Share Price under the Merger entity or other relevant documentation.
17.3 The parties to this Agreement with respect to its shares of Common Stock; provided, however acknowledge and agree that Parent shall not terminate the Equity Commitment Letter or the obligations of the Paying Agent, Transfer Agent, and Registrar under Section 2 of this Agreement pursuant are limited by and subject to this Section 4.3(a) without first obtaining alternative financing arrangements which provide Parent compliance by them with funds in an amount equal to EU and US Federal anti-money laundering statutes and regulations. If the Rollover Amount; provided Paying Agent, Transfer Agent, and Registrar or any of their directors know or suspect that such alternative financing arrangements (i) provide Parent with sufficient funds, when added to a payment is the proceeds of criminal conduct, such person is required to report such information pursuant to the Equity Financingapplicable authorities and such report shall not be treated as a breach by such person of any confidentiality covenant or other restriction imposed on such person under this Agreement, Debt Financing and other sources of readily available liquidity of Parent, Merger Sub, the Company and the Company’s Subsidiaries by law or otherwise on the Closing Datedisclosure of information. The Paying Agent, to fund Transfer Agent, and Registrar shall be indemnified and held harmless by the Required Amount Issuer from and (ii) do not impose new or additional conditions against all losses suffered by them that may arise as a result of the agents being prevented from fulfilling their obligations hereunder due to the receipt of such financing relative to the Commitment Letters that could impair or delay the Closing. Parent shall promptly provide the Company extent doing so would not be consistent with a copy of any definitive commitment letter or other documentation providing for such alternative financing arrangement. applicable statutory anti-money laundering requirements.
17.4 Notwithstanding anything to the contrary hereinin this Agreement or in any other agreement, the Stockholder may designate any Regulatory Disclosures that contain sensitive, legally privilegedarrangement, or confidential information understanding among any such parties, each party hereto acknowledges that any liability of any party arising under this Agreement or any such other document, to the extent such liability is unsecured or not otherwise exempted, may be subject to the write-down and conversion powers of a Resolution Authority and agrees and consents to, and acknowledges and agrees to be bound by:
(a) the application of any Write-Down and Conversion Powers by a Resolution Authority to any such liabilities arising hereunder which may be payable to it by any party hereto; and
(b) the effects of any Bail-in Action on any such liability, including, if applicable:
1. a reduction in full or in part or cancellation of any such liability;
2. a conversion of all, or a portion of, such liability into shares or other instruments of ownership in such party, its parent undertaking, or a bridge institution that may be issued to it or otherwise conferred on it, and that such shares or other instruments of ownership will be accepted by it in lieu of any rights with respect to any such liability under this Agreement or any other agreement; or
3. the variation of the Stockholder or any terms of its Affiliates as exclusive to the Stockholder and the Stockholder may provide that any such sensitive, legally privileged, or confidential information may only be provided on a counsel-only basis or directly to the applicable Governmental Authority requesting such information. The Stockholder shall not make any filings, or notifications liability in connection with the Merger pursuant to any Antitrust Laws without Parent’s prior written consent (not to be unreasonably withheld, delayed or conditioned). Parent or the Company shall not file any Regulatory Filings that contain information with respect to the Stockholder or its affiliates without first providing the Stockholder and its counsel a reasonable opportunity to review and comment thereon, and will give good faith consideration to all reasonable additions, deletions or changes suggested by the Stockholder and its counsel.
(b) Each Stockholder hereto represent, warrant and covenant to Parent and to the Company that, to such Stockholder’s knowledge: (i) none exercise of the information supplied in writing by such Stockholder specifically for inclusion or incorporation by reference in write-down and conversion powers of any Resolution Authority. For the Regulatory Disclosures will contain a material misstatement purpose of fact or a material omission of fact necessary to make this sub-clause 17.4 the information provided not misleading and (ii) it does not permit any entity under following terms shall have the “control” (defined in Section 721 of the Defense Production Act, as amended, including all implanting regulations thereof) of a People’s Republic of China national, or any entity under the control of a Russian Federation national, to obtain through any Affiliate, control with respect to the Company.following meanings:
Appears in 2 contracts
Samples: Agency Agreement (Booking Holdings Inc.), Agency Agreement (Booking Holdings Inc.)
Regulatory Matters. (a) Subject to Section 4.4Parent and the Company shall promptly prepare and file with the SEC, no later than thirty (30) business days after the date of this Agreement, the Stockholder shallJoint Proxy Statement and Parent shall promptly prepare and file with the SEC the S-4, in which the Joint Proxy Statement will be included as a prospectus. The S-4 shall also, to the extent required under the Securities Act and the regulations promulgated thereunder, register the shares of Parent Series A Preferred Stock and depositary shares representing one fortieth of an interest in a share of Parent Series A Preferred Stock that will be issued in the transaction. Each of Parent and the Company shall use their reasonable best efforts to cause have the S-4 declared effective under the Securities Act as promptly as practicable after such filing and to keep the S-4 effective for so long as necessary to consummate the transactions contemplated by this Agreement, and Parent and the Company shall thereafter as promptly as practicable mail or deliver the Joint Proxy Statement to their Affiliates torespective stockholders. Parent shall also use its reasonable best efforts to obtain all necessary state securities law or “Blue Sky” permits and approvals required to carry out the transactions contemplated by this Agreement, and the Company shall furnish all information concerning the Company and the holders of Company Common Stock as may be reasonably requested in connection with any such action.
(b) The parties hereto shall cooperate with each other and use their reasonable best effortsefforts to promptly prepare and file all necessary documentation, consistent to effect all applications, notices, petitions and filings, to obtain as promptly as practicable all permits, consents, approvals and authorizations of all third parties and Governmental Entities which are necessary or advisable to consummate the transactions contemplated by this Agreement (including the Merger and the Bank Merger), and to comply with the time frames set forth in Section 6.4 terms and conditions of all such permits, consents, approvals and authorizations of all such Governmental Entities. Without limiting the generality of the Merger foregoing, as soon as practicable and in no event later than thirty (30) business days after the date of this Agreement, Parent and the Company shall, and shall cause their respective Subsidiaries to, each prepare and file any applications, notices and filings required to supply be filed with any bank regulatory agency in order to obtain the Requisite Regulatory Approvals. Parent and provide information thatthe Company shall each use, and shall each cause their applicable Subsidiaries to use, reasonable best efforts to obtain each such Requisite Regulatory Approval as promptly as reasonably practicable. Parent and the Company shall have the right to review in advance, and, to such Stockholder’s knowledgethe extent practicable, is complete each will consult the other on, in each case subject to applicable laws relating to the exchange of information, all the information relating to the Company or Parent, as the case may be, and accurate any of their respective Subsidiaries, which appears in all material respects to any filing made with, or written materials submitted to, any third party or any Governmental Authority requesting such information in connection with filings or notifications under, or relating to, applicable laws that are required or advisable as a result of, or pursuant to, the Merger Agreement and the related financings and transactions, including, without limitation, information required or requested to be provided to any antitrust, financial or national security regulatory authorities in connection with any approvals reasonably sought Entity in connection with the consummation transactions contemplated by this Agreement. In exercising the foregoing right, each of the parties hereto shall act reasonably and as promptly as practicable. The parties hereto agree that they will consult with each other with respect to the obtaining of all permits, consents, approvals and authorizations of all third parties and Governmental Entities necessary or advisable to consummate the transactions contemplated by this Agreement and each party will keep the other apprised of the status of matters relating to completion of the transactions contemplated hereby. Each party shall consult with the other in advance of any meeting or conference with any Governmental Entity in connection with the transactions contemplated by this Agreement and to the extent permitted by such Governmental Entity, give the other party and/or its counsel the opportunity to attend and participate in such meetings and conferences.
(c) In furtherance and not in limitation of the foregoing, each of Parent and the Company shall use its reasonable best 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. Notwithstanding the foregoing, nothing contained in this Agreement shall be deemed to require Parent or the Company to take any action, or commit to take any action, or agree to any condition or restriction that would reasonably be expected to have a Material Adverse Effect on the Surviving Corporation and its Subsidiaries, taken as a whole, after giving effect to the Merger (collectivelya “Materially Burdensome Regulatory Condition”).
(d) Parent and the Company shall, upon request, furnish each other with all information concerning themselves, their Subsidiaries, directors, officers and stockholders and such other matters as may be reasonably necessary or advisable in connection with the Joint Proxy Statement, the “Regulatory Filings” and theS-4 or any other statement, “Regulatory Disclosures”filing, respectively). If notice or application made by or on behalf of Parent, the Company or any of their respective Subsidiaries to any Governmental Authority seeks to prevent Entity in connection with the Merger, the Bank Merger and the other transactions contemplated by this Agreement.
(e) To the extent permitted by applicable law, Parent and the Company shall promptly advise each other upon receiving any communication from any Governmental Entity whose consent or approval is required for consummation of the transactions contemplated by the Merger this Agreement based on the HSR Act or that causes such party to believe that there is a reasonable likelihood that any other Antitrust Laws or based on any other required approval, consent, notice or filing with a Governmental Authority and such actions by the Governmental Authority relate to the activities or investments of such Stockholder or its Affiliates (solely for purposes of this Section 4, an “Affiliate” of the Stockholder shall include any portfolio company in which such Stockholder or any of its Affiliates has made a debt or an equity investment), then if Parent in good faith reasonably determines that such actions by the Governmental Authority Requisite Regulatory Approval will not be resolved sufficiently in advance of the Termination Date, Parent may provide written notice of obtained or that determination to the Stockholder, and Parent may elect to terminate the obligations under Section 2 and Section 4.6 of this Agreement (in which case the Stockholder’s obligations under the Equity Commitment Letter shall also automatically terminate) and, in that context, the Stockholder shall be entitled to receive the Per Share Price under the Merger Agreement with respect to its shares of Common Stock; provided, however that Parent shall not terminate the Equity Commitment Letter or the obligations under Section 2 of this Agreement pursuant to this Section 4.3(a) without first obtaining alternative financing arrangements which provide Parent with funds in an amount equal to the Rollover Amount; provided that such alternative financing arrangements (i) provide Parent with sufficient funds, when added to the proceeds of the Equity Financing, Debt Financing and other sources of readily available liquidity of Parent, Merger Sub, the Company and the Company’s Subsidiaries on the Closing Date, to fund the Required Amount and (ii) do not impose new or additional conditions to the receipt of any such financing relative to the Commitment Letters that could impair or delay the Closingapproval will be materially delayed. Parent shall promptly provide the Company with a copy of any definitive commitment letter or other documentation providing for such alternative financing arrangement. Notwithstanding anything to the contrary hereinAs used in this Agreement, the Stockholder may designate any “Requisite Regulatory Disclosures that contain sensitiveApprovals” shall mean all regulatory authorizations, legally privilegedconsents, orders or confidential information in respect of approvals from (x) the Stockholder or any of its Affiliates as exclusive to Federal Reserve Board, the Stockholder FDIC and the Stockholder may provide DFS and (y) any other approvals set forth in Sections 3.4 and 4.4 that are necessary to consummate the transactions contemplated by this Agreement, including the Merger and the Bank Merger, except for any such sensitiveauthorizations, legally privilegedconsents, orders or confidential information may only be provided on a counsel-only basis or directly to approvals the applicable Governmental Authority requesting such information. The Stockholder shall not make any filings, or notifications in connection with the Merger pursuant to any Antitrust Laws without Parent’s prior written consent (not failure of which to be unreasonably withheldobtained would reasonably be expected to have, delayed individually or conditioned). Parent or the Company shall not file any Regulatory Filings that contain information with respect to the Stockholder or its affiliates without first providing the Stockholder and its counsel a reasonable opportunity to review and comment thereon, and will give good faith consideration to all reasonable additions, deletions or changes suggested by the Stockholder and its counsel.
(b) Each Stockholder hereto represent, warrant and covenant to Parent and to the Company that, to such Stockholder’s knowledge: (i) none of the information supplied in writing by such Stockholder specifically for inclusion or incorporation by reference in the Regulatory Disclosures will contain aggregate, a material misstatement of fact or a material omission of fact necessary to make Material Adverse Effect on the information provided not misleading and (ii) it does not permit any entity under the “control” (defined in Section 721 of the Defense Production Act, as amended, including all implanting regulations thereof) of a People’s Republic of China national, or any entity under the control of a Russian Federation national, to obtain through any Affiliate, control with respect to the CompanySurviving Corporation.
Appears in 2 contracts
Samples: Merger Agreement (Astoria Financial Corp), Merger Agreement (New York Community Bancorp Inc)
Regulatory Matters. (a) Subject to Section 4.4, Each of Parent and the Stockholder Company shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to (i) take, or cause their Affiliates toto be taken, use their reasonable best efforts, consistent and assist and cooperate with the time frames set forth other party in Section 6.4 of the Merger Agreementtaking, to supply and provide information thatall actions necessary, to such Stockholder’s knowledge, is complete and accurate in all material respects to any Governmental Authority requesting such information in connection with filings or notifications under, or relating to, applicable laws that are required proper or advisable as a result ofto comply promptly with all legal requirements with respect to the Transactions, including obtaining any third-party consent or pursuant to, the Merger Agreement and the related financings and transactions, including, without limitation, information waiver that may be required or requested to be provided to any antitrust, financial or national security regulatory authorities in connection with any approvals reasonably sought obtained in connection with the consummation of Transactions, and, subject to the conditions set forth in Article VII, to consummate the Transactions (including actions required in order to effect the Bank Merger immediately after the Effective Time) and (ii) obtain (and assist and cooperate with the other party in obtaining) any action, nonaction, permit, consent, authorization, order, clearance, waiver or approval of, or any exemption by, any Regulatory Agency or other Governmental Entity that is required or advisable in connection with the Transactions, including the Merger and the Bank Merger (collectively, the “Regulatory Filings” and the, “Regulatory DisclosuresApprovals”, respectively). If The parties shall cooperate with each other and prepare and file, as promptly as possible after the date hereof, all necessary documentation, and effect all applications, notices, petitions and filings, to obtain as promptly as practicable all actions, nonactions, permits, consents, authorizations, orders, clearances, waivers or approvals of all third parties and Regulatory Agencies or other Governmental Entities that are necessary or advisable to consummate the Transactions, including the Regulatory Approvals.
(b) Each of Parent and the Company shall use its reasonable best efforts to resolve any objections that may be asserted by any Governmental Authority seeks to prevent the consummation of the transactions contemplated by the Merger Agreement based on the HSR Act or any other Antitrust Laws or based on any other required approval, consent, notice or filing with a Governmental Authority and such actions by the Governmental Authority relate to the activities or investments of such Stockholder or its Affiliates (solely for purposes of this Section 4, an “Affiliate” of the Stockholder shall include any portfolio company in which such Stockholder or any of its Affiliates has made a debt or an equity investment), then if Parent in good faith reasonably determines that such actions by the Governmental Authority will not be resolved sufficiently in advance of the Termination Date, Parent may provide written notice of that determination to the Stockholder, and Parent may elect to terminate the obligations under Section 2 and Section 4.6 of this Agreement (in which case the Stockholder’s obligations under the Equity Commitment Letter shall also automatically terminate) and, in that context, the Stockholder shall be entitled to receive the Per Share Price under the Merger Agreement Entity with respect to its shares of Common Stock; provided, however that Parent shall not terminate the Equity Commitment Letter this Agreement or the obligations Transactions. Notwithstanding anything set forth in this Agreement, under Section 2 of this Agreement pursuant to this Section 4.3(a) without first obtaining alternative financing arrangements which provide no circumstances shall Parent with funds in an amount equal to the Rollover Amount; provided that such alternative financing arrangements (i) provide Parent with sufficient fundsbe required, when added to the proceeds of the Equity Financing, Debt Financing and other sources of readily available liquidity of Parent, Merger Sub, the Company and the Company’s its Subsidiaries on the Closing Date, to fund the Required Amount and (ii) do not impose new or additional conditions to the receipt of such financing relative to the Commitment Letters that could impair or delay the Closing. Parent shall promptly provide the Company with a copy of any definitive commitment letter or other documentation providing for such alternative financing arrangement. Notwithstanding anything to the contrary herein, the Stockholder may designate any Regulatory Disclosures that contain sensitive, legally privileged, or confidential information in respect of the Stockholder or any of its Affiliates as exclusive to the Stockholder and the Stockholder may provide that any such sensitive, legally privileged, or confidential information may only be provided on a counsel-only basis or directly to the applicable Governmental Authority requesting such information. The Stockholder shall not make any filings, or notifications in connection with the Merger pursuant to any Antitrust Laws be permitted (without Parent’s prior written consent in its sole discretion), to take any action, or commit to take any action, or agree to any condition or restriction, involving Parent, the Company or any of their respective Subsidiaries pursuant to this Section 6.1 or otherwise in connection with obtaining the foregoing actions, nonactions, permits, consents, authorizations, orders, clearances, waivers or approvals, that would have, or would be reasonably likely to have, individually or in the aggregate, a Material Adverse Effect on Parent and its Subsidiaries, taken as a whole, or on the Company and its Subsidiaries, taken as a whole, in each case measured on a scale relative to the Company and its Subsidiaries taken as a whole (not any of the foregoing, a “Materially Burdensome Regulatory Condition”); provided, that, if requested by Parent, then the Company and its Subsidiaries will take or commit to take any such action, or agree to any such condition or restriction, so long as such action, commitment, agreement, condition or restriction is binding on the Company and its Subsidiaries only in the event the Closing occurs.
(c) Subject to applicable Law relating to the exchange of information, Parent and the Company shall, upon request, furnish each other with all information concerning Parent, the Company and their respective Subsidiaries, directors, officers and shareholders and such other matters as may be unreasonably withheldreasonably necessary in connection with any statement, delayed filing, notice or conditionedapplication made by or on behalf of Parent, the Company or any of their respective Subsidiaries to any Governmental Entity in connection with the Transactions. In exercising the foregoing right, each of the parties shall act reasonably and as promptly as practicable; provided, however, that materials may be redacted (x) to remove references concerning the valuation of the businesses of the Parties and their respective Subsidiaries, (y) as necessary to comply with contractual agreements and (z) as necessary to address reasonable privilege or confidentiality concerns.
(d) Subject to applicable Law (including applicable Law relating to the exchange of information), the Company and Parent shall keep each other apprised of the status of matters relating to the completion of the Transactions. Without limiting the generality of the foregoing, subject to applicable Law, (i) the Company and Parent shall promptly furnish each other with copies of non-confidential notices or other communications received by the Company, Parent or the Company shall not file any Regulatory Filings that contain information of their respective Subsidiaries (or written summaries of communications received orally) from any third party or Governmental Entity with respect to the Stockholder or its affiliates without first providing Transactions and (ii) Parent and the Stockholder and its counsel Company shall provide the other party with a reasonable opportunity to review and comment thereonin advance any proposed non-confidential communication to, including any filings with or other non-confidential written materials submitted to, any third party or Governmental Entity, and, to the extent practicable, each will consult the other party on all the information relating to Parent or the Company, as the case may be, and will give good faith consideration to all reasonable additionsany of their respective Subsidiaries, deletions or changes suggested by the Stockholder and its counsel.
(b) Each Stockholder hereto represent, warrant and covenant to Parent and to the Company that, to such Stockholder’s knowledge: (i) none of the information supplied which appears in writing by such Stockholder specifically for inclusion or incorporation by reference in the Regulatory Disclosures will contain a material misstatement of fact or a material omission of fact necessary to make the information provided not misleading and (ii) it does not permit any entity under the “control” (defined in Section 721 of the Defense Production Act, as amended, including all implanting regulations thereof) of a People’s Republic of China nationalfiling made with, or written materials submitted to, any entity under third party or Governmental Entity in connection with the control of a Russian Federation national, to obtain through any Affiliate, control with respect to the CompanyTransactions.
Appears in 2 contracts
Samples: Merger Agreement (SOUTH STATE Corp), Merger Agreement (Park Sterling Corp)
Regulatory Matters. (a) Subject to Section 4.4Promptly after the date of this Agreement, UMB and HTLF shall prepare and file with the Stockholder shallSEC the Joint Proxy Statement, and UMB shall prepare and file with the SEC the S-4, in which the Joint Proxy Statement will be included as a prospectus, and the parties shall use reasonable best efforts to make such filings as promptly as practicable after the date of this Agreement. The S-4 shall also, to the extent required under the Securities Act and the regulations promulgated thereunder, register the shares of UMB Series A Preferred Stock (or depositary shares in lieu thereof) that will be issued in the transaction. Each of UMB and HTLF shall use its reasonable best efforts to have the S-4 declared effective under the Securities Act as promptly as practicable after such filings, and UMB and HTLF shall thereafter mail or deliver the Joint Proxy Statement to their respective shareholders or stockholders, as applicable. UMB shall also use its reasonable best efforts to obtain all necessary state securities law or “Blue Sky” permits and approvals required to carry out the transactions contemplated by this Agreement, and HTLF shall furnish all information concerning HTLF and the holders of HTLF Common Stock as may be reasonably requested in connection with any such action.
(b) The parties hereto shall cooperate with each other and use their reasonable best efforts to promptly (and in the case of the applications, notices, petitions and filings in respect of the Requisite Regulatory Approvals, within forty-five (45) days of the date of this Agreement) prepare and file all necessary documentation, to effect all applications, notices, petitions and filings, to obtain as promptly as practicable all permits, consents, orders, approvals, waivers, non-objections and authorizations of all third parties and Governmental Entities which are necessary or advisable to consummate the transactions contemplated by this Agreement (including the Mergers and the Bank Merger), and to comply with the terms and conditions of all such permits, consents, orders, approvals, waivers, non-objections and authorizations of all such third parties and Governmental Entities. Without limiting the generality of the foregoing, as soon as practicable and in no event later than forty-five (45) days after the date of this Agreement, UMB and HTLF shall, and shall cause their Affiliates respective Subsidiaries to, use each prepare and file any applications, notices and filings required to be filed with any bank regulatory agency in order to obtain the Requisite Regulatory Approvals. UMB and HTLF shall each use, and shall each cause their applicable Subsidiaries to use, reasonable best effortsefforts to obtain each such Requisite Regulatory Approval as promptly as reasonably practicable. UMB and HTLF shall have the right to review in advance, consistent with the time frames set forth in Section 6.4 of the Merger Agreementand, to supply the extent practicable, each will consult the other on, in each case subject to applicable laws relating to the exchange of information, all the information relating to HTLF or UMB, as the case may be, and provide information thatany of their respective Subsidiaries, to such Stockholder’s knowledgewhich appears in any filing made with, is complete and accurate in all material respects to or written materials submitted to, any third party or any Governmental Authority requesting such information in connection with filings or notifications under, or relating to, applicable laws that are required or advisable as a result of, or pursuant to, the Merger Agreement and the related financings and transactions, including, without limitation, information required or requested to be provided to any antitrust, financial or national security regulatory authorities in connection with any approvals reasonably sought Entity in connection with the consummation of the Merger (collectively, the “Regulatory Filings” and the, “Regulatory Disclosures”, respectively). If any Governmental Authority seeks to prevent the consummation of the transactions contemplated by this Agreement. In exercising the Merger Agreement based on the HSR Act or any other Antitrust Laws or based on any other required approvalforegoing right, consent, notice or filing with a Governmental Authority and such actions by the Governmental Authority relate to the activities or investments of such Stockholder or its Affiliates (solely for purposes of this Section 4, an “Affiliate” each of the Stockholder parties hereto shall include any portfolio company in which such Stockholder or any of its Affiliates has made a debt or an equity investment), then if Parent in good faith act reasonably determines that such actions by the Governmental Authority will not be resolved sufficiently in advance of the Termination Date, Parent may provide written notice of that determination to the Stockholder, and Parent may elect to terminate the obligations under Section 2 and Section 4.6 of this Agreement (in which case the Stockholder’s obligations under the Equity Commitment Letter shall also automatically terminate) and, in that context, the Stockholder shall be entitled to receive the Per Share Price under the Merger Agreement with respect to its shares of Common Stock; provided, however that Parent shall not terminate the Equity Commitment Letter or the obligations under Section 2 of this Agreement pursuant to this Section 4.3(a) without first obtaining alternative financing arrangements which provide Parent with funds in an amount equal to the Rollover Amount; provided that such alternative financing arrangements (i) provide Parent with sufficient funds, when added to the proceeds of the Equity Financing, Debt Financing and other sources of readily available liquidity of Parent, Merger Sub, the Company and the Company’s Subsidiaries on the Closing Date, to fund the Required Amount and (ii) do not impose new or additional conditions to the receipt of such financing relative to the Commitment Letters that could impair or delay the Closing. Parent shall as promptly provide the Company with a copy of any definitive commitment letter or other documentation providing for such alternative financing arrangement. Notwithstanding anything to the contrary herein, the Stockholder may designate any Regulatory Disclosures that contain sensitive, legally privileged, or confidential information in respect of the Stockholder or any of its Affiliates as exclusive to the Stockholder and the Stockholder may provide that any such sensitive, legally privileged, or confidential information may only be provided on a counsel-only basis or directly to the applicable Governmental Authority requesting such informationpracticable. The Stockholder shall not make any filings, or notifications in connection parties hereto agree that they will consult with the Merger pursuant to any Antitrust Laws without Parent’s prior written consent (not to be unreasonably withheld, delayed or conditioned). Parent or the Company shall not file any Regulatory Filings that contain information each other with respect to the Stockholder or its affiliates without first providing the Stockholder and its counsel a reasonable opportunity to review and comment thereonobtaining of all permits, and will give good faith consideration to all reasonable additionsconsents, deletions or changes suggested by the Stockholder and its counsel.
(b) Each Stockholder hereto representorders, warrant and covenant to Parent and to the Company thatapprovals, to such Stockholder’s knowledge: (i) none of the information supplied in writing by such Stockholder specifically for inclusion or incorporation by reference in the Regulatory Disclosures will contain a material misstatement of fact or a material omission of fact necessary to make the information provided not misleading and (ii) it does not permit any entity under the “control” (defined in Section 721 of the Defense Production Actwaivers, as amended, including all implanting regulations thereof) of a People’s Republic of China national, or any entity under the control of a Russian Federation national, to obtain through any Affiliate, control with respect to the Company.non-objections and
Appears in 2 contracts
Samples: Merger Agreement (Heartland Financial Usa Inc), Merger Agreement (Umb Financial Corp)
Regulatory Matters. (a) Subject to Section 4.4JPPLP will have control over, and authority and responsibility for, the Stockholder shallregulatory strategies relating to the development and commercialization of all Itraconazole Products. JPPLP shall monitor and coordinate all regulatory actions, communications and shall use their reasonable best efforts filings with and submissions to cause their Affiliates to, use their reasonable best efforts, consistent with the time frames set forth in Section 6.4 of the Merger Agreement, to supply and provide information that, to such Stockholder’s knowledge, is complete and accurate in all material respects (including but not limited to any Governmental supplements and amendments thereof) any Regulatory Authority requesting such information in connection with filings or notifications under, or relating to, applicable laws that are required or advisable as a result of, or pursuant to, the Merger Agreement and the related financings and transactions, including, without limitation, information required or requested to be provided to any antitrust, financial or national security regulatory authorities in connection with any approvals reasonably sought in connection with the consummation of the Merger (collectively, the “Regulatory Filings” and the, “Regulatory Disclosures”, respectively). If any Governmental Authority seeks to prevent the consummation of the transactions contemplated by the Merger Agreement based on the HSR Act or any other Antitrust Laws or based on any other required approval, consent, notice or filing with a Governmental Authority and such actions by the Governmental Authority relate to the activities or investments of such Stockholder or its Affiliates (solely for purposes of this Section 4, an “Affiliate” of the Stockholder shall include any portfolio company in which such Stockholder or any of its Affiliates has made a debt or an equity investment), then if Parent in good faith reasonably determines that such actions by the Governmental Authority will not be resolved sufficiently in advance of the Termination Date, Parent may provide written notice of that determination to the Stockholder, and Parent may elect to terminate the obligations under Section 2 and Section 4.6 of this Agreement (in which case the Stockholder’s obligations under the Equity Commitment Letter shall also automatically terminate) and, in that context, the Stockholder shall be entitled to receive the Per Share Price under the Merger Agreement with respect to its shares of Common Stock; providedany Itraconazole Product. JPPLP shall be responsible for interfacing, however that Parent shall not terminate the Equity Commitment Letter or the obligations under Section 2 of this Agreement pursuant to this Section 4.3(a) without first obtaining alternative financing arrangements which provide Parent corresponding and meeting with funds in an amount equal to the Rollover Amount; provided that such alternative financing arrangements (i) provide Parent with sufficient funds, when added to the proceeds of the Equity Financing, Debt Financing and other sources of readily available liquidity of Parent, Merger Sub, the Company and the Company’s Subsidiaries on the Closing Date, to fund the Required Amount and (ii) do not impose new or additional conditions to the receipt of such financing relative to the Commitment Letters that could impair or delay the Closing. Parent shall promptly provide the Company with a copy of any definitive commitment letter or other documentation providing for such alternative financing arrangement. Notwithstanding anything to the contrary herein, the Stockholder may designate any all Regulatory Disclosures that contain sensitive, legally privileged, or confidential information in respect of the Stockholder or any of its Affiliates as exclusive to the Stockholder and the Stockholder may provide that any such sensitive, legally privileged, or confidential information may only be provided on a counsel-only basis or directly to the applicable Governmental Authority requesting such information. The Stockholder shall not make any filings, or notifications in connection with the Merger pursuant to any Antitrust Laws without Parent’s prior written consent (not to be unreasonably withheld, delayed or conditioned). Parent or the Company shall not file any Regulatory Filings that contain information Authorities with respect to the Stockholder or its affiliates without first providing the Stockholder any Itraconazole Product. JPPLP shall bear all costs relating to such regulatory filings and its counsel a reasonable opportunity to review and comment thereon, and will give good faith consideration to all reasonable additions, deletions or changes suggested by the Stockholder and its counselsubmission.
(b) Each Stockholder hereto representNotwithstanding the provisions of Section 9.1(a) above, warrant and covenant to Parent and to the Company that, to such Stockholder’s knowledge: (i) none of the information supplied in writing by such Stockholder specifically for inclusion or incorporation by reference in the Regulatory Disclosures will contain a material misstatement of fact or a material omission of fact necessary to make the information provided not misleading and (ii) it does not permit any entity under the “control” (defined in Section 721 of the Defense Production Act, as amended, including all implanting regulations thereof) of a People’s Republic of China national, or any entity under the control of a Russian Federation national, to obtain through any Affiliate, control with respect to the Companyfirst NDA (or its foreign equivalent) in a Major Market Country, after its assignment by Barrier to JPPLP, at least thirty (30) days in advance, JPPLP shall notify Barrier of any material meeting with the Regulatory Authority which is for the purpose of obtaining Regulatory Approval of an Itraconazole Product and Barrier may elect to send one person reasonably acceptable to JPPLP to participate as an observer (at Barrier's sole cost and expense) in such meeting. JPPLP shall provide Barrier with drafts of any material documents or correspondence pertaining to such NDA (or its foreign equivalent) and prepared for submission to the Regulatory Authority sufficiently in advance of submission so that Barrier may review and comment on the substance of such material documents or correspondence. JPPLP shall promptly provide Barrier with copies of any material documents or other correspondence received from the Regulatory Authority pertaining to such NDA (or its foreign equivalent). JPPLP agrees to consider Barrier's comments in good faith, however, JPPLP shall not be bound thereby.
Appears in 2 contracts
Samples: Intellectual Property Transfer and License Agreement (Barrier Therapeutics Inc), Intellectual Property Transfer and License Agreement (Barrier Therapeutics Inc)
Regulatory Matters. (a) Subject The Purchaser shall be responsible for all governmental filings and regulatory actions (including, without limitation, drug safety database updates and maintenance) after the Effective Date in accordance with the Pharmacovigilance Agreement it will enter into with Orion. Seller will provide such information and cooperation as may be reasonably be requested by Purchaser in connection with the foregoing (including, but not limited to, by providing such information as may be required by Purchaser for any Annual Report to Section 4.4be submitted to the FDA with respect to the Product. [ * ] = Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Stockholder shallSecurities and Exchange Commission pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended.
(b) Seller may (at its expense) make and retain one (1) electronic copy and photocopy of NDA #20-497 and one (1) copy of other Product Filings for internal archival purposes and for purposes of defending itself in any litigation (which copies shall not be deemed to confer upon Seller any implied licenses, and shall be Purchaser’s Confidential Information).
(c) Without prejudice to what has been agreed between the Parties in this Agreement, if Seller requires access to certain portions of NDA #20-497 and the Product Filings for legal or regulatory purposes (“Seller Purposes”), then upon Seller’s written request, Purchaser shall make such portions available to Seller solely for such Seller Purposes on a temporary basis at a reasonable time and at Purchaser’s facilities. Seller may (at its expense) make and retain copies (in electronic and/or paper copy format) of such portions of NDA #20-497 and the Product Filings and use such copies solely for Seller Purposes. Any such copies of NDA #20-497 or the Product Filings shall be Confidential Information of Purchaser.
(d) If (i) the FDA, or equivalent regulatory authority outside the USA (each, a “Regulatory Authority”), requires access to certain portions of NDA #20-497 and the Product Filings or their reasonable best efforts to cause their Affiliates to, use their reasonable best efforts, consistent with counterparts outside the time frames set forth in Section 6.4 USA for legal or regulatory purposes of the Merger Agreement, to supply and provide information that, to Party that does not own such Stockholder’s knowledge, is complete and accurate in all material respects to any Governmental Authority requesting such information in connection with filings or notifications underitems, or relating to, applicable laws that are required or advisable as a result of, or pursuant to, the Merger Agreement (ii) either Party requires access to certain portions of NDA #20-497 and the related financings and transactionsProduct Filings or their counterparts outside the USA for legal or regulatory purposes of the Party that does not own such items, including, without limitation, information required for making patent-related submissions, then, in either of (i) or requested to be provided to any antitrust(ii), financial Seller or national security regulatory authorities in connection Purchaser (as applicable), shall cooperate with any approvals reasonably sought in connection with such Regulatory Authority or the consummation of the Merger (collectively, the “Regulatory Filings” other Party and the, “Regulatory Disclosures”, respectively). If any Governmental Authority seeks to prevent the consummation of the transactions contemplated by the Merger Agreement based on the HSR Act or any other Antitrust Laws or based on any other required approval, consent, notice or filing with a Governmental Authority and make such actions by the Governmental Authority relate portions available to the activities Regulatory Authority or investments of such Stockholder or its Affiliates (the other Party solely for purposes of this Section 4, an “Affiliate” of such purpose on a temporary basis at a reasonable time and at Seller’s or Purchaser’s facilities.
(e) The Parties shall cooperate and work together to ensure that the Stockholder shall include any portfolio company in which such Stockholder or any of its Affiliates has made a debt or an equity investment), then if Parent in good faith reasonably determines that such actions by the Governmental Authority will not be resolved sufficiently in advance of the Termination Date, Parent may provide written notice of that determination to the Stockholder, and Parent may elect to terminate the obligations under Section 2 and Section 4.6 of this Agreement (in which case the Stockholder’s obligations under the Equity Commitment Letter shall also automatically terminate) and, in that context, the Stockholder shall be entitled to receive the Per Share Price under the Merger Agreement attorney-client privilege is preserved with respect to its shares of Common Stock; providedany documents in NDA #20-497 and the Product Filings, however in each case that Parent shall not terminate the Equity Commitment Letter are subject to such privilege (and any other documents, information, or the obligations under Section 2 of this Agreement pursuant materials that are subject to this Section 4.3(a) without first obtaining alternative financing arrangements which provide Parent with funds in an amount equal such privilege and may be transferred from or disclosed by one Party to the Rollover Amount; provided other under this Agreement). In addition, the Parties acknowledge and agree that such alternative financing arrangements (i) provide Parent with sufficient fundsany discovery by or disclosure to Purchaser of documents, when added information or materials that are not related to the proceeds of the Equity Financing, Debt Financing and other sources of readily available liquidity of Parent, Merger Sub, the Company and the Company’s Subsidiaries on the Closing Date, to fund the Required Amount and (ii) do not impose new or additional conditions to the receipt of such financing relative to the Commitment Letters that could impair or delay the Closing. Parent shall promptly provide the Company with a copy of any definitive commitment letter or other documentation providing for such alternative financing arrangement. Notwithstanding anything to the contrary herein, the Stockholder may designate any Regulatory Disclosures that contain sensitive, legally privileged, or confidential information in respect of the Stockholder or any of its Affiliates as exclusive to the Stockholder and the Stockholder may provide that any such sensitive, legally privileged, or confidential information may only be provided on a counsel-only basis or directly to the applicable Governmental Authority requesting such information. The Stockholder shall not make any filings, or notifications in connection with the Merger pursuant to any Antitrust Laws without Parent’s prior written consent (not to be unreasonably withheld, delayed or conditioned). Parent or the Company shall not file any Regulatory Filings that contain information with respect to the Stockholder or its affiliates without first providing the Stockholder and its counsel a reasonable opportunity to review and comment thereon, and will give good faith consideration to all reasonable additions, deletions or changes suggested by the Stockholder and its counselPurchased Assets is inadvertent.
(b) Each Stockholder hereto represent, warrant and covenant to Parent and to the Company that, to such Stockholder’s knowledge: (i) none of the information supplied in writing by such Stockholder specifically for inclusion or incorporation by reference in the Regulatory Disclosures will contain a material misstatement of fact or a material omission of fact necessary to make the information provided not misleading and (ii) it does not permit any entity under the “control” (defined in Section 721 of the Defense Production Act, as amended, including all implanting regulations thereof) of a People’s Republic of China national, or any entity under the control of a Russian Federation national, to obtain through any Affiliate, control with respect to the Company.
Appears in 2 contracts
Samples: Asset Purchase Agreement, Asset Purchase Agreement (GTX Inc /De/)
Regulatory Matters. The Borrower shall cause (a) Subject (i) the Broker Dealer Regulated Subsidiaries to Section 4.4take all reasonable action to maintain all rights, privileges, broker-dealer licenses and memberships, broker-dealer registrations necessary or desirable in the Stockholder shallnormal conduct of its business, except, in each case, to the extent that failure to do so would not reasonably be expected to have a Material Adverse Effect, (ii) all Broker Dealer Regulated Subsidiaries to comply with all material rules and regulations of the SEC and FINRA applicable to it (including such rules and regulations dealing with net capital requirements) and, to the extent applicable to any Broker Dealer Regulated Subsidiary, all similar, equivalent or comparable foreign statutes, rules, regulations and other regulatory requirements, except, in each case, where the failure to so comply would not reasonably be expected to have a Material Adverse Effect and (iii) all Broker Dealer Regulated Subsidiaries to deliver after the end of each fiscal quarter of each fiscal year of the Borrower or soon after the date such information is filed with the SEC, a copy of each Broker Dealer Regulated Subsidiary’s Financial and Operational Combined Uniform Single Report filed with the SEC for such fiscal quarter, (b) (i) all of its Investment Adviser Companies to take all reasonable action to maintain all rights, privileges and investment adviser registrations necessary or desirable in the normal conduct of its business, except, in each case, to the extent that failure to do so would not reasonably be expected to have a Material Adverse Effect, (ii) all of its Investment Adviser Companies to comply with all material rules and regulations of the SEC applicable to it and, to the extent applicable to any Investment Adviser Company, all similar, equivalent or comparable foreign statutes, rules, regulations, and shall use their other regulatory requirements, except, in each case, where the failure to so comply would not reasonably be expected to have a Material Adverse Effect, and (c) the Bank Regulated Subsidiaries to take all reasonable best efforts action to cause their Affiliates tomaintain all rights, use their reasonable best effortsprivileges, consistent with licenses and memberships, registrations necessary or desirable in the time frames set forth normal conduct of its business, except, in Section 6.4 of the Merger Agreementeach case, to supply and provide information thatthe extent that failure to do so would not reasonably be expected to have a Material Adverse Effect, (ii) all Bank Regulated Subsidiaries to such Stockholder’s knowledge, is complete and accurate in comply with all material respects to rules and regulations of any Governmental Authority requesting or Regulatory Supervising Organization applicable to it (including such information in connection rules and regulations dealing with filings or notifications under, or relating to, applicable laws that are required or advisable as a result of, or pursuant to, the Merger Agreement minimum capitalization ratios and the related financings and transactions, including, without limitation, information required or requested to be provided to any antitrust, financial or national security regulatory authorities in connection with any approvals reasonably sought in connection with the consummation of the Merger (collectively, the “Regulatory Filings” and the, “Regulatory Disclosures”, respectively). If any Governmental Authority seeks to prevent the consummation of the transactions contemplated by the Merger Agreement based on the HSR Act or any other Antitrust Laws or based on any other required approval, consent, notice or filing with a Governmental Authority and such actions by the Governmental Authority relate to the activities or investments of such Stockholder or its Affiliates (solely for purposes of this Section 4, an “Affiliate” of the Stockholder shall include any portfolio company in which such Stockholder or any of its Affiliates has made a debt or an equity investment), then if Parent in good faith reasonably determines that such actions by the Governmental Authority will not be resolved sufficiently in advance of the Termination Date, Parent may provide written notice of that determination to the Stockholder, and Parent may elect to terminate the obligations under Section 2 and Section 4.6 of this Agreement (in which case the Stockholder’s obligations under the Equity Commitment Letter shall also automatically terminaterequirements) and, in that context, the Stockholder shall be entitled to receive the Per Share Price under the Merger Agreement with respect to its shares of Common Stock; provided, however that Parent shall not terminate the Equity Commitment Letter or the obligations under Section 2 of this Agreement pursuant to this Section 4.3(a) without first obtaining alternative financing arrangements which provide Parent with funds in an amount equal to the Rollover Amount; provided that such alternative financing arrangements (i) provide Parent with sufficient fundsextent applicable to any Bank Regulated Subsidiary, when added to the proceeds of the Equity Financingall similar, Debt Financing equivalent or comparable foreign statutes, rules, regulations and other sources of readily available liquidity of Parentregulatory requirements, Merger Subexcept, in each case, where the Company and the Company’s Subsidiaries on the Closing Date, failure to fund the Required Amount and (ii) do so comply would not impose new or additional conditions reasonably be expected to the receipt of such financing relative to the Commitment Letters that could impair or delay the Closing. Parent shall promptly provide the Company with have a copy of any definitive commitment letter or other documentation providing for such alternative financing arrangement. Notwithstanding anything to the contrary herein, the Stockholder may designate any Regulatory Disclosures that contain sensitive, legally privileged, or confidential information in respect of the Stockholder or any of its Affiliates as exclusive to the Stockholder and the Stockholder may provide that any such sensitive, legally privileged, or confidential information may only be provided on a counsel-only basis or directly to the applicable Governmental Authority requesting such information. The Stockholder shall not make any filings, or notifications in connection with the Merger pursuant to any Antitrust Laws without Parent’s prior written consent (not to be unreasonably withheld, delayed or conditioned). Parent or the Company shall not file any Regulatory Filings that contain information with respect to the Stockholder or its affiliates without first providing the Stockholder and its counsel a reasonable opportunity to review and comment thereon, and will give good faith consideration to all reasonable additions, deletions or changes suggested by the Stockholder and its counselMaterial Adverse Effect.
(b) Each Stockholder hereto represent, warrant and covenant to Parent and to the Company that, to such Stockholder’s knowledge: (i) none of the information supplied in writing by such Stockholder specifically for inclusion or incorporation by reference in the Regulatory Disclosures will contain a material misstatement of fact or a material omission of fact necessary to make the information provided not misleading and (ii) it does not permit any entity under the “control” (defined in Section 721 of the Defense Production Act, as amended, including all implanting regulations thereof) of a People’s Republic of China national, or any entity under the control of a Russian Federation national, to obtain through any Affiliate, control with respect to the Company.
Appears in 2 contracts
Samples: Credit Agreement (E TRADE FINANCIAL Corp), Credit Agreement (E TRADE FINANCIAL Corp)
Regulatory Matters. (a) Subject The Company shall promptly prepare and file with the SEC the Proxy Statement and Parent shall provide any information reasonably requested by the Company for inclusion therein. The Company shall use its reasonable best efforts to Section 4.4satisfy any requests of the SEC staff with respect to the filing, form or content of the Proxy Statement or any amendment or supplement thereto and, promptly following the expiration or early termination of the required waiting period, the Stockholder shallCompany shall thereafter mail the Proxy Statement to its shareholders. The Company will advise Parent, promptly after it receives notice thereof, of the issuance of any stop order with respect to the Proxy Statement, of any request by the SEC to amend the Proxy Statement, or of any comments thereon and responses thereto or requests by the SEC for additional information and responses thereto and of the expiration or early termination of the waiting period referred to above. If, prior to the Effective Time of the Merger, any event occurs with respect to the Company or Parent or any change occurs with respect to information supplied by Parent for inclusion in the Proxy Statement that, in any such case, is required to be described in an amendment of, or supplement to, the Proxy Statement, the Company or Parent, as applicable, shall promptly notify the other of them of such event and the parties will cooperate in the prompt filing by the Company with the SEC of any necessary amendment or supplement to the Proxy Statement, and the Company shall promptly disseminate the information in such amendment or supplement to its shareholders.
(b) Parent and the Company shall cooperate with each other and use their reasonable best efforts to cause their Affiliates promptly prepare and file all necessary documentation, to effect all applications, notices, petitions and filings, and to obtain as promptly as practicable all permits, consents, approvals and authorizations of all third parties and Governmental Entities which are necessary or advisable to consummate the transactions contemplated by this Agreement (including the Merger, the Liquidation and the Bank Merger). 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 relating to the exchange of information, all the information which appears in any filing made with, or written materials submitted to, use their reasonable best efforts, consistent with the time frames set forth in Section 6.4 of the Merger Agreement, to supply and provide information that, to such Stockholder’s knowledge, is complete and accurate in all material respects to any third party or any Governmental Authority requesting such information in connection with filings or notifications under, or relating to, applicable laws that are required or advisable as a result of, or pursuant to, the Merger Agreement and the related financings and transactions, including, without limitation, information required or requested to be provided to any antitrust, financial or national security regulatory authorities in connection with any approvals reasonably sought Entity in connection with the consummation transactions contemplated by this Agreement. In exercising the foregoing right, each of the Merger (collectivelyparties hereto shall act reasonably and as promptly as practicable. The parties hereto agree that they will consult with each other with respect to the obtaining of all permits, consents, approvals and authorizations of all third parties and Governmental Entities necessary or advisable to consummate the “Regulatory Filings” transactions contemplated by this Agreement and the, “Regulatory Disclosures”, respectively). If any Governmental Authority seeks each party will keep the other apprised of the status of matters relating to prevent the consummation completion of the transactions contemplated by herein.
(c) Parent and the Merger Agreement based on Company shall, upon request, furnish each other with all information concerning themselves, their Subsidiaries, directors, officers and shareholders and such other matters as may be reasonably necessary or advisable in connection with the HSR Act Proxy Statement, or any other Antitrust Laws or based on any other required approvalstatement, consentfiling, notice or filing with a Governmental Authority and such actions application made by or on behalf of Parent, the Governmental Authority relate to the activities or investments of such Stockholder or its Affiliates (solely for purposes of this Section 4, an “Affiliate” of the Stockholder shall include any portfolio company in which such Stockholder Company or any of its Affiliates has made a debt their respective Subsidiaries to any Governmental Entity in connection with the Merger, the Liquidation and the Bank Merger and the other transactions contemplated by this Agreement.
(d) Parent and the Company shall promptly furnish each other with copies of written communications received by Parent or an equity investment)the Company, then if Parent as the case may be, or any of their respective Subsidiaries, affiliates or associates (as such terms are defined in good faith reasonably determines that such actions Rule 12b-2 under the Exchange Act as in effect on the date of this Agreement) from, or delivered by the Governmental Authority will not be resolved sufficiently in advance any of the Termination Dateforegoing to, Parent may provide written notice of that determination to the Stockholder, and Parent may elect to terminate the obligations under Section 2 and Section 4.6 of this Agreement (in which case the Stockholder’s obligations under the Equity Commitment Letter shall also automatically terminate) and, in that context, the Stockholder shall be entitled to receive the Per Share Price under the Merger Agreement with respect to its shares of Common Stock; provided, however that Parent shall not terminate the Equity Commitment Letter or the obligations under Section 2 of this Agreement pursuant to this Section 4.3(a) without first obtaining alternative financing arrangements which provide Parent with funds in an amount equal to the Rollover Amount; provided that such alternative financing arrangements (i) provide Parent with sufficient funds, when added to the proceeds of the Equity Financing, Debt Financing and other sources of readily available liquidity of Parent, Merger Sub, the Company and the Company’s Subsidiaries on the Closing Date, to fund the Required Amount and (ii) do not impose new or additional conditions to the receipt of such financing relative to the Commitment Letters that could impair or delay the Closing. Parent shall promptly provide the Company with a copy of any definitive commitment letter or other documentation providing for such alternative financing arrangement. Notwithstanding anything to the contrary herein, the Stockholder may designate any Regulatory Disclosures that contain sensitive, legally privileged, or confidential information Governmental Entity in respect of the Stockholder or any of its Affiliates as exclusive to the Stockholder and the Stockholder may provide that any such sensitive, legally privileged, or confidential information may only be provided on a counsel-only basis or directly to the applicable Governmental Authority requesting such information. The Stockholder shall not make any filings, or notifications in connection with the Merger pursuant to any Antitrust Laws without Parent’s prior written consent (not to be unreasonably withheld, delayed or conditioned). Parent or the Company shall not file any Regulatory Filings that contain information with respect to the Stockholder or its affiliates without first providing the Stockholder and its counsel a reasonable opportunity to review and comment thereon, and will give good faith consideration to all reasonable additions, deletions or changes suggested by the Stockholder and its counseltransactions contemplated hereby.
(b) Each Stockholder hereto represent, warrant and covenant to Parent and to the Company that, to such Stockholder’s knowledge: (i) none of the information supplied in writing by such Stockholder specifically for inclusion or incorporation by reference in the Regulatory Disclosures will contain a material misstatement of fact or a material omission of fact necessary to make the information provided not misleading and (ii) it does not permit any entity under the “control” (defined in Section 721 of the Defense Production Act, as amended, including all implanting regulations thereof) of a People’s Republic of China national, or any entity under the control of a Russian Federation national, to obtain through any Affiliate, control with respect to the Company.
Appears in 2 contracts
Samples: Merger Agreement (Gs Financial Corp), Merger Agreement (Home Bancorp, Inc.)
Regulatory Matters. (a) Subject to Section 4.4, the Stockholder shall, Without limiting any particular representations and shall use their reasonable best efforts to cause their Affiliates to, use their reasonable best efforts, consistent with the time frames set forth in Section 6.4 warranties of the Merger Agreementforegoing, (i) the Founder and the Group Companies have obtained any and all material Approvals from applicable Governmental Authorities and have fulfilled any and all material filings and registration requirements with applicable Governmental Authorities necessary with respect to supply the Group Companies and provide information that, their operations; and (ii) all material filings and registrations with applicable Governmental Authorities required with respect to the Group Companies and the Founder have been duly completed in accordance with applicable Laws. No Group Company or Founder has received any letter or notice from any applicable Governmental Authorities notifying it of the revocation of any Approval issued to it or the need for compliance or remedial actions with respect to the activities carried out directly or indirectly by such Stockholder’s knowledge, Person. Each Group Company has been substantively conducting its Business activities within the permitted scope of business or is complete and accurate otherwise operating its Businesses in substantive compliance with all relevant Laws in all material respects to respects. There are no outstanding fines or penalties asserted against the Group Companies by any Governmental Authority requesting such information in connection with filings or notifications underAuthority, or relating to, applicable laws that are required or advisable as a result of, or pursuant to, and none of the Merger Agreement Founder and the related financings Group Companies has reason to believe that any authorization of any Governmental Authority, license or permit required for the conduct of any part of its Business which is subject to periodic renewal will not be granted or renewed by the relevant Governmental Authorities.
(b) The Founder has completed the reporting and transactions, including, without limitation, information required registration requirements for the Founder under Circular 37 or requested to be provided to any antitrust, financial or national security regulatory authorities in connection with any approvals reasonably sought in connection with the consummation of the Merger other applicable SAFE rules and regulations (collectively, the “Regulatory Filings” SAFE Rules and the, “Regulatory DisclosuresRegulations”, respectively). If any Governmental Authority seeks ) in order to prevent the consummation effect his indirect holding of Ordinary Shares of the Company and believes that he can update the Circular 37 Registration in connection with the transactions as contemplated under the Transaction Documents if required by applicable Laws (including the Merger Agreement based SAFE Rules and Regulations) or by SAFE. To the best Knowledge of the Warrantors, each holder of any Equity Securities of the Company (for the avoidance of doubt, excluding the holders of the Preferred Shares and the holders of the preferred shares of the Controlling Shareholder) (each, a “Company Security Holder”), who is a Domestic Resident (or has Domestic Resident(s) as its beneficial owner) and subject to any of the registration or reporting requirements of SAFE Rules and Regulations, will complete such reporting and registration requirements under the SAFE Rules and Regulations in order to effect his or her direct or indirect holding of Ordinary Shares of the Company, prior to the recording to the name of such Company Security Holder on the HSR Act register of members of the Company. Neither the Warrantors nor, to the best Knowledge of the Warrantors, any of the Company Security Holders has received any oral or written inquiries, notifications, orders or any other Antitrust Laws or based on any other required approval, consent, notice or filing with a Governmental Authority and such actions by the Governmental Authority relate to the activities or investments forms of such Stockholder or its Affiliates (solely for purposes of this Section 4, an “Affiliate” of the Stockholder shall include any portfolio company in which such Stockholder official correspondence from SAFE or any of its Affiliates has made a debt or an equity investment), then if Parent in good faith reasonably determines that such actions by the Governmental Authority will not be resolved sufficiently in advance of the Termination Date, Parent may provide written notice of that determination to the Stockholder, and Parent may elect to terminate the obligations under Section 2 and Section 4.6 of this Agreement (in which case the Stockholder’s obligations under the Equity Commitment Letter shall also automatically terminate) and, in that context, the Stockholder shall be entitled to receive the Per Share Price under the Merger Agreement local branches with respect to its shares of Common Stock; providedany actual or alleged non-compliance with the SAFE Rules and Regulations and the Company and, however that Parent shall not terminate the Equity Commitment Letter or the obligations under Section 2 of this Agreement pursuant to this Section 4.3(a) without first obtaining alternative financing arrangements which provide Parent with funds in an amount equal to the Rollover Amount; provided that such alternative financing arrangements (i) provide Parent with sufficient funds, when added to the proceeds best Knowledge of the Equity Financing, Debt Financing and other sources of readily available liquidity of Parent, Merger SubWarrantors, the Company and the Company’s Subsidiaries on the Closing DateSecurity Holders have made all written filings, to fund the Required Amount and (ii) do not impose new registrations, reporting or additional conditions to the receipt of such financing relative to the Commitment Letters that could impair or delay the Closing. Parent shall promptly provide the Company with a copy of any definitive commitment letter or other documentation providing for such alternative financing arrangement. Notwithstanding anything to the contrary herein, the Stockholder may designate any Regulatory Disclosures that contain sensitive, legally privileged, or confidential information in respect of the Stockholder communications required by SAFE or any of its Affiliates as exclusive local branches. The Domestic Company has not conducted any foreign exchange transactions or other transactions subject to Approvals from SAFE. To the best Knowledge of the Warrantors, there exists no grounds on which any of the Group Companies may be subject to liability or penalties for any Person’s failure or defect of registration, misrepresentation or failure to disclose any material information to the Stockholder and the Stockholder may provide that any such sensitive, legally privileged, or confidential information may only be provided on a counsel-only basis or directly to the applicable Governmental Authority requesting such information. The Stockholder shall not make any filings, or notifications in connection with the Merger pursuant to any Antitrust Laws without Parent’s prior written consent (not to be unreasonably withheld, delayed or conditioned). Parent or the Company shall not file any Regulatory Filings that contain information with respect to the Stockholder or its affiliates without first providing the Stockholder and its counsel a reasonable opportunity to review and comment thereon, and will give good faith consideration to all reasonable additions, deletions or changes suggested by the Stockholder and its counselissuing SAFE authority.
(b) Each Stockholder hereto represent, warrant and covenant to Parent and to the Company that, to such Stockholder’s knowledge: (i) none of the information supplied in writing by such Stockholder specifically for inclusion or incorporation by reference in the Regulatory Disclosures will contain a material misstatement of fact or a material omission of fact necessary to make the information provided not misleading and (ii) it does not permit any entity under the “control” (defined in Section 721 of the Defense Production Act, as amended, including all implanting regulations thereof) of a People’s Republic of China national, or any entity under the control of a Russian Federation national, to obtain through any Affiliate, control with respect to the Company.
Appears in 2 contracts
Samples: Series a Share Purchase Agreement (NaaS Technology Inc.), Series a Share Purchase Agreement (NaaS Technology Inc.)
Regulatory Matters. (a) Subject FFY and First Place shall promptly prepare and file with the SEC the Proxy Statement and First Place shall promptly prepare and file with the SEC the S-4, in which the Proxy Statement will be included as a prospectus. Each of FFY and First Place shall use all reasonable efforts to Section 4.4, have the Stockholder shallS-4 declared effective under the Securities Act as promptly as practicable after such filing, and each of FFY and First Place shall thereafter mail the Proxy Statement to each of its respective stockholders. First Place shall also use their all reasonable best efforts to cause their Affiliates to, use their reasonable best efforts, consistent with obtain all necessary state securities law or "Blue Sky" permits and approvals required to carry out the time frames set forth in Section 6.4 of transactions contemplated by this Agreement and the Bank Merger Agreement, to supply and provide FFY shall furnish all information that, to such Stockholder’s knowledge, is complete and accurate in all material respects to any Governmental Authority requesting such information in connection with filings or notifications under, or relating to, applicable laws that are required or advisable as a result of, or pursuant to, the Merger Agreement concerning FFY and the related financings and transactions, including, without limitation, information required or holders of FFY Common Stock as may be reasonably requested to be provided to any antitrust, financial or national security regulatory authorities in connection with any such action.
(b) The parties hereto shall cooperate with each other and use their best efforts to promptly prepare and file all necessary documentation, to effect all applications, notices, petitions and filings, and to obtain as promptly as practicable all permits, consents, approvals reasonably sought and authorizations of all third parties and Governmental Entities which are necessary or advisable to consummate the transactions contemplated by this Agreement (including without limitation the Merger and the Subsidiary Merger) (it being understood that any amendments to the S-4 or a resolicitation of proxies as a consequence of a subsequent proposed merger, stock purchase or similar acquisition by First Place or any of its Subsidiaries shall not violate this covenant). FFY and First Place 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 relating to the exchange of information, all the information relating to FFY or First Place, as the case may be, and any of their respective Subsidiaries, which appears in any filing made with, or written materials submitted to, any third party or any Governmental Entity in connection with the consummation transactions contemplated by this Agreement. In exercising the foregoing right, each of the Merger (collectivelyparties hereto shall act reasonably and as promptly as practicable. The parties hereto agree that they will consult with each other with respect to the obtaining of all permits, consents, approvals and authorizations of all third parties and Governmental Entities necessary or advisable to consummate the “Regulatory Filings” transactions contemplated by this Agreement and the, “Regulatory Disclosures”, respectively). If any Governmental Authority seeks each party will keep the other apprised of the status of matters relating to prevent the consummation completion of the transactions contemplated by herein.
(c) First Place and FFY shall, upon request, furnish each other with all information concerning themselves, their Subsidiaries, directors, officers and stockholders and such other matters as may be reasonably necessary or advisable in connection with the Merger Agreement based on Proxy Statement, the HSR Act S-4 or any other Antitrust Laws or based on any other required approvalstatement, consentfiling, notice or filing with a Governmental Authority and such actions application made by the Governmental Authority relate to the activities or investments on behalf of such Stockholder or its Affiliates (solely for purposes of this Section 4First Place, an “Affiliate” of the Stockholder shall include any portfolio company in which such Stockholder FFY or any of its Affiliates has made a debt or an equity investment), then if Parent in good faith reasonably determines that such actions by the their respective Subsidiaries to any Governmental Authority will not be resolved sufficiently in advance of the Termination Date, Parent may provide written notice of that determination to the Stockholder, and Parent may elect to terminate the obligations under Section 2 and Section 4.6 of this Agreement (in which case the Stockholder’s obligations under the Equity Commitment Letter shall also automatically terminate) and, in that context, the Stockholder shall be entitled to receive the Per Share Price under the Merger Agreement with respect to its shares of Common Stock; provided, however that Parent shall not terminate the Equity Commitment Letter or the obligations under Section 2 of this Agreement pursuant to this Section 4.3(a) without first obtaining alternative financing arrangements which provide Parent with funds in an amount equal to the Rollover Amount; provided that such alternative financing arrangements (i) provide Parent with sufficient funds, when added to the proceeds of the Equity Financing, Debt Financing and other sources of readily available liquidity of Parent, Merger Sub, the Company and the Company’s Subsidiaries on the Closing Date, to fund the Required Amount and (ii) do not impose new or additional conditions to the receipt of such financing relative to the Commitment Letters that could impair or delay the Closing. Parent shall promptly provide the Company with a copy of any definitive commitment letter or other documentation providing for such alternative financing arrangement. Notwithstanding anything to the contrary herein, the Stockholder may designate any Regulatory Disclosures that contain sensitive, legally privileged, or confidential information in respect of the Stockholder or any of its Affiliates as exclusive to the Stockholder and the Stockholder may provide that any such sensitive, legally privileged, or confidential information may only be provided on a counsel-only basis or directly to the applicable Governmental Authority requesting such information. The Stockholder shall not make any filings, or notifications Entity in connection with the Merger pursuant to any Antitrust Laws without Parent’s prior written consent (not to be unreasonably withheld, delayed or conditioned). Parent or and the Company shall not file any Regulatory Filings that contain information with respect to the Stockholder or its affiliates without first providing the Stockholder and its counsel a reasonable opportunity to review and comment thereon, and will give good faith consideration to all reasonable additions, deletions or changes suggested other transactions contemplated by the Stockholder and its counselthis Agreement.
(bd) Each Stockholder hereto represent, warrant First Place and covenant to Parent and to the Company that, to such Stockholder’s knowledge: (i) none FFY shall promptly furnish each other with copies of the information supplied in writing written communications received by such Stockholder specifically for inclusion First Place or incorporation by reference in the Regulatory Disclosures will contain a material misstatement of fact or a material omission of fact necessary to make the information provided not misleading and (ii) it does not permit any entity under the “control” (defined in Section 721 of the Defense Production ActFFY, as amended, including all implanting regulations thereof) of a People’s Republic of China nationalthe case may be, or any entity of their respective Subsidiaries, Affiliates or Associates (as such terms are defined in Rule 12b-2 under the control Exchange Act as in effect on the date of a Russian Federation nationalthis Agreement) from, to obtain through or delivered by any Affiliateof the foregoing to, control with any Governmental Entity in respect to of the Companytransactions contemplated hereby.
Appears in 2 contracts
Samples: Merger Agreement (Ffy Financial Corp), Merger Agreement (First Place Financial Corp /De/)
Regulatory Matters. 7.2.1 As between the Parties, Lilly shall be responsible for holding and applying for any Regulatory Approvals or XXXx.
7.2.2 Lilly (aor one of its Affiliates or Sublicensees) Subject to Section 4.4, the Stockholder shallshall be responsible, and shall use their reasonable best efforts to cause their Affiliates toact as the sole point of contact, use their reasonable best efforts, consistent for communications with the time frames set forth in Section 6.4 of the Merger Agreement, to supply and provide information that, to such Stockholder’s knowledge, is complete and accurate in all material respects to any Governmental Authority requesting such information in connection with filings or notifications under, or relating to, applicable laws that are required or advisable as a result of, or pursuant to, the Merger Agreement and the related financings and transactions, including, without limitation, information required or requested to be provided to any antitrust, financial or national security regulatory authorities in connection with any approvals reasonably sought in connection with the consummation of the Merger (collectivelydevelopment, the “Regulatory Filings” and the, “Regulatory Disclosures”, respectively). If any Governmental Authority seeks to prevent the consummation of the transactions contemplated by the Merger Agreement based on the HSR Act or any other Antitrust Laws or based on any other required approval, consent, notice or filing with a Governmental Authority and such actions by the Governmental Authority relate to the activities or investments of such Stockholder or its Affiliates (solely for purposes of this Section 4, an “Affiliate” of the Stockholder shall include any portfolio company in which such Stockholder or any of its Affiliates has made a debt or an equity investment), then if Parent in good faith reasonably determines that such actions by the Governmental Authority will not be resolved sufficiently in advance of the Termination Date, Parent may provide written notice of that determination to the Stockholdercommercialization, and Parent may elect to terminate manufacturing of Products. During the obligations under Section 2 Development Term and Section 4.6 of this Agreement (in which case the Stockholder’s obligations under the Equity Commitment Letter thereafter, Immunocore shall also automatically terminate) andnot initiate, in that context, the Stockholder shall be entitled to receive the Per Share Price under the Merger Agreement with respect to any Research Plan Compounds or Product, any meetings or contact with regulatory authorities without Lilly’s prior written consent unless such contact or response is required for Immunocore to comply with its shares of Common Stockobligations to regulatory authorities; provided, however that Parent that, in the event of any such required contact or response, Immunocore shall not terminate provide only such information as is necessary to comply with its legal obligations and shall promptly update Lilly regarding any such interactions. To the Equity Commitment Letter extent Immunocore receives any written or the obligations under Section 2 of this Agreement pursuant oral communication from any regulatory authority relating to this Section 4.3(aany Research Plan Compounds or Product, Immunocore shall (a) without first obtaining alternative financing arrangements which provide Parent with funds in an amount equal refer such regulatory authority to the Rollover Amount; provided that such alternative financing arrangements (i) provide Parent with sufficient fundsLilly, when added to the proceeds of the Equity Financing, Debt Financing and other sources of readily available liquidity of Parent, Merger Sub, the Company and the Company’s Subsidiaries on the Closing Date, to fund the Required Amount and (iib) do not impose new or additional conditions to the receipt of such financing relative to the Commitment Letters that could impair or delay the Closing. Parent shall promptly as soon as reasonably practicable (but in any event within [***]), notify Lilly and provide the Company Lilly with a copy of any definitive commitment letter or other documentation providing for written communication received by Immunocore or, if applicable, complete and accurate minutes of such alternative financing arrangementoral communication. Notwithstanding anything At the request of Lilly, Immunocore shall make available to Lilly, [***], a qualified representative who shall, together with the representatives of Lilly, participate in and contribute to meetings with the regulatory authorities with respect to regulatory matters relating to the contrary hereinResearch Plan Compounds, ImmTACs generally, Licensed Intellectual Property or Reserved Activities.
7.2.3 Prior to receipt of Regulatory Approval for a given Joint Selected Candidate (or a Product containing a Joint Selected Candidate):
(a) to the Stockholder may designate any Regulatory Disclosures extent that contain sensitive, legally privileged, Lilly (or confidential information in respect of the Stockholder or any one of its Affiliates as exclusive to the Stockholder and the Stockholder may provide that or Sublicensees) has any such sensitive, legally privileged, or confidential information may only be provided on a counsel-only basis or directly to the applicable Governmental Authority requesting such information. The Stockholder shall not make material communications with any filings, or notifications in connection with the Merger pursuant regulatory [***] relating to any Antitrust Laws without Parent’s prior written consent Joint Selected Candidate (not or a Product containing a Joint Selected Candidate), Lilly shall provide a copy of such communication to be unreasonably withheld, delayed or conditioned). Parent or the Company shall not file any Regulatory Filings that contain information with respect to the Stockholder or its affiliates without first providing the Stockholder and its counsel a reasonable opportunity to review and comment thereon, and will give good faith consideration to all reasonable additions, deletions or changes suggested by the Stockholder and its counsel.Immunocore as soon as reasonably possible; and
(b) Each Stockholder hereto representImmunocore shall be entitled to have a single representative attend[***], warrant material and covenant scheduled meetings, including material and scheduled oral discussions, with regulatory authorities [***] relating to Parent and to the Company that, to such Stockholder’s knowledge: any Joint Selected Candidate (i) none of the information supplied in writing by such Stockholder specifically for inclusion or incorporation by reference in the Regulatory Disclosures will contain a material misstatement of fact or a material omission Product containing a Joint Selected Candidate). For clarity, the Parties’ respective rights and obligations under this Clause 7.2.3 shall expire upon receipt of fact necessary first Regulatory Approval for such Joint Selected Candidate (or a Product containing a Joint Selected Candidate).
7.2.4 Notwithstanding the foregoing, Immunocore shall provide such assistance as may reasonably be requested by Lilly relating regulatory matters (including preparation and filing for any INDs and XXXx and obtaining and maintaining Regulatory Approvals). CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY [***], HAS BEEN OMITTED BECAUSE IT IS BOTH (I) NOT MATERIAL AND (II) IS THE TYPE THAT THE REGISTRANT TREATS AS PRIVATE OR CONFIDENTIAL. 7.2.5 Nothing in this Clause 7.2 shall require Immunocore to make the information provided not misleading and (ii) it does not permit breach its obligations to any entity regulatory authority under the “control” (defined in Section 721 of the Defense Production Act, as amended, including all implanting regulations thereof) of a People’s Republic of China national, or any entity under the control of a Russian Federation national, to obtain through any Affiliate, control with respect to the CompanyApplicable Law.
Appears in 2 contracts
Samples: Development and License Agreement (Immunocore LTD), Development and License Agreement (Immunocore LTD)
Regulatory Matters. (a) Subject to Section 4.4All Permits from, the Stockholder shall, and shall use their reasonable best efforts to cause their Affiliates to, use their reasonable best efforts, consistent with the time frames set forth in Section 6.4 of the Merger Agreement, to supply and provide information that, to such Stockholder’s knowledge, is complete and accurate in all material respects to any Governmental Authority requesting such information in connection with filings or notifications under, or relating to, applicable laws that are required or advisable as a result approvals of, or pursuant todeclarations or filings with, the Merger Agreement and the related financings and transactionsall expirations of waiting periods imposed by, including, without limitation, information required any Governmental or requested to be provided to any antitrust, financial or national security regulatory authorities in connection with any approvals reasonably sought in connection with the consummation Regulatory Authority (all of the Merger (collectivelyforegoing, the “Regulatory Filings” and the, “Regulatory Disclosures”, respectively). If any Governmental Authority seeks to prevent "Consents") which are necessary for the consummation of the transactions contemplated by hereby, other than Consents the Merger Agreement based failure to obtain which would have no Material Adverse Effect on the HSR Act or any other Antitrust Laws or based on any other required approval, consent, notice or filing with a Governmental Authority and such actions by the Governmental Authority relate to the activities or investments of such Stockholder or its Affiliates (solely for purposes of this Section 4, an “Affiliate” consummation of the Stockholder transactions contemplated hereby and no Material Adverse Effect on Parent, S WEST or Global, shall include any portfolio company have been filed, have occurred or have been obtained in which form and under terms and conditions acceptable to U S WEST and Global (all such Stockholder Permits, approvals, declarations, filings and expiration or any lapse of its Affiliates has made a debt or an equity investment), then if Parent in good faith reasonably determines that all such actions by waiting periods being referred to as the Governmental Authority will not be resolved sufficiently in advance of the Termination Date, Parent may provide written notice of that determination to the Stockholder, "Required Regulatory Approvals") and Parent may elect to terminate the obligations under Section 2 and Section 4.6 of this Agreement (in which case the Stockholder’s obligations under the Equity Commitment Letter shall also automatically terminate) and, in that context, the Stockholder all such Required Regulatory Approvals shall be entitled to receive the Per Share Price under the Merger Agreement with respect to its shares of Common Stockin full force and effect; provided, however however, that Parent a Required Regulatory Approval shall not terminate be deemed to have been obtained if the Equity Commitment Letter period for review or the obligations under Section 2 of this Agreement pursuant to this Section 4.3(a) without first obtaining alternative financing arrangements which provide Parent with funds in an amount equal to the Rollover Amount; provided that such alternative financing arrangements (i) provide Parent with sufficient funds, when added to the proceeds of the Equity Financing, Debt Financing and other sources of readily available liquidity of Parent, Merger Sub, the Company and the Company’s Subsidiaries on the Closing Date, to fund the Required Amount and (ii) do reconsideration thereof has not impose new expired or additional conditions to the receipt of such financing relative to the Commitment Letters that could impair or delay the Closing. Parent shall promptly provide the Company with a copy of any definitive commitment letter or other documentation providing for such alternative financing arrangement. Notwithstanding anything to the contrary herein, the Stockholder may designate any Regulatory Disclosures that contain sensitive, legally privileged, or confidential information in respect of the Stockholder or any of its Affiliates as exclusive to the Stockholder and the Stockholder may provide that any such sensitive, legally privileged, or confidential information may only be provided on a counsel-only basis or directly to the applicable Governmental Authority requesting such information. The Stockholder shall not make any filings, or notifications if in connection with the Merger pursuant to grant thereof there shall have been an imposition by any Antitrust Laws without Parent’s prior written consent (not to be unreasonably withheldGovernmental or Regulatory Authority of any condition, delayed requirement, restriction or conditioned). Parent or the Company shall not file any Regulatory Filings that contain information with respect to the Stockholder or its affiliates without first providing the Stockholder and its counsel a reasonable opportunity to review and comment thereon, and will give good faith consideration to all reasonable additions, deletions or changes suggested by the Stockholder and its counsel.
(b) Each Stockholder hereto represent, warrant and covenant to Parent and to the Company that, to such Stockholder’s knowledge: (i) none change of the information supplied in writing by such Stockholder specifically for inclusion or incorporation by reference in the Regulatory Disclosures will contain a material misstatement of fact or a material omission of fact necessary to make the information provided not misleading and (ii) it does not permit any entity under the “control” (defined in Section 721 of the Defense Production Act, as amended, including all implanting regulations thereof) of a People’s Republic of China nationalregulation, or any entity under other action directly or indirectly related to such grant taken by such Governmental or Regulatory Authority, which would reasonably be expected to prevent or materially delay the control consummation of the transactions contemplated hereby or have a Russian Federation nationalmaterial adverse effect on the consummation of the transaction contemplated hereby or a Material Adverse Effect on Parent, Global and its Subsidiaries, taken as a whole, or U S WEST; and provided further, however, that (A) the imposition of conditions by any Governmental or Regulatory Authority relating to obtain through Section 271 Compliance, such as a restriction on the provision of certain services by any AffiliateParty, control with respect or (B) the withholding of approval by any Governmental or Regulatory Authority pending the completion of actions required of any Party to eliminate or resolve any regulatory problems (including, without limitation, any problems regarding Section 271 Compliance), shall not in and of itself be deemed to result in the Company.failure to satisfy the condition set forth in this subsection (d);
Appears in 2 contracts
Samples: Merger Agreement (Global Crossing LTD), Merger Agreement (U S West Inc /De/)
Regulatory Matters. (a) Subject Except as set forth on Schedule 6.11 of the Parent Disclosure Schedule, neither Parent, Merger Sub nor any of Parent’s Subsidiaries nor any of any of their respective properties is a party to Section 4.4or is subject to any order, decree, agreement, memorandum of understanding or similar arrangement with, or a commitment letter or similar submission to, order to cease and desist with, or extraordinary supervisory letter from, any federal or state governmental agency or authority charged with the supervision or regulation of financial institutions or issuers of securities or engaged in the insurance of deposits or the supervision or regulation of it (collectively, the Stockholder shall“Parent Regulatory Authorities”), or is subject to any order or directive specifically naming or referring to Parent or any of its Subsidiaries by, has been required to adopt any board resolution by, any Parent Regulatory Authority which is currently in effect and restricts materially the conduct of its business, or in any manner relates to its capital adequacy, loan loss allowances or reserves, credit policies, management or overall safety and soundness or such entity’s ability to perform its obligations hereunder, and shall use their reasonable best efforts neither Parent nor any of its Subsidiaries has received written notification from any such Parent Regulatory Authority that any such Person may be requested to cause their Affiliates enter into, or otherwise be subject to, use their reasonable best effortsany such commitment letter, consistent with the time frames set forth in Section 6.4 written agreement, memorandum of the Merger Agreementunderstanding, to supply cease and provide information that, to such Stockholder’s knowledge, desist order or any other similar order or directive. Neither Parent nor any of its Subsidiaries is complete and accurate in all material respects a party to any Governmental Authority requesting such information in connection with filings agreement or notifications under, or relating to, applicable laws that are required or advisable as a result of, or pursuant to, the Merger Agreement and the related financings and transactions, including, without limitation, information required or requested to be provided to any antitrust, financial or national security regulatory authorities in connection with any approvals reasonably sought arrangement entered into in connection with the consummation of the Merger (collectively, the “Regulatory Filings” and the, “Regulatory Disclosures”, respectively). If any Governmental Authority seeks a federally assisted acquisition of a depository institution pursuant to prevent the consummation of the transactions contemplated by the Merger Agreement based on the HSR Act or any other Antitrust Laws or based on any other required approval, consent, notice or filing with a Governmental Authority and such actions by the Governmental Authority relate to the activities or investments of such Stockholder or its Affiliates (solely for purposes of this Section 4, an “Affiliate” of the Stockholder shall include any portfolio company in which such Stockholder Parent or any of its Affiliates has made a debt or an equity investment), then if Parent in good faith reasonably determines that such actions by the Governmental Authority will not be resolved sufficiently in advance of the Termination Date, Parent may provide written notice of that determination to the Stockholder, and Parent may elect to terminate the obligations under Section 2 and Section 4.6 of this Agreement (in which case the Stockholder’s obligations under the Equity Commitment Letter shall also automatically terminate) and, in that context, the Stockholder shall be Subsidiaries is entitled to receive the Per Share Price under the Merger Agreement with respect to its shares of Common Stock; provided, however that Parent shall not terminate the Equity Commitment Letter financial assistance or the obligations under Section 2 of this Agreement pursuant to this Section 4.3(a) without first obtaining alternative financing arrangements which provide Parent with funds in an amount equal to the Rollover Amount; provided that such alternative financing arrangements (i) provide Parent with sufficient funds, when added to the proceeds of the Equity Financing, Debt Financing and other sources of readily available liquidity of indemnification from any Governmental Authority. Parent, Merger Sub, the Company Sub and the CompanyParent’s Subsidiaries on the Closing Date, to fund the Required Amount and (ii) do not impose new have paid all assessments made or additional conditions to the receipt of such financing relative to the Commitment Letters that could impair or delay the Closing. imposed by any Parent shall promptly provide the Company with a copy of any definitive commitment letter or other documentation providing for such alternative financing arrangement. Notwithstanding anything to the contrary herein, the Stockholder may designate any Regulatory Disclosures that contain sensitive, legally privileged, or confidential information in respect of the Stockholder or any of its Affiliates as exclusive to the Stockholder and the Stockholder may provide that any such sensitive, legally privileged, or confidential information may only be provided on a counsel-only basis or directly to the applicable Governmental Authority requesting such information. The Stockholder shall not make any filings, or notifications in connection with the Merger pursuant to any Antitrust Laws without Parent’s prior written consent (not to be unreasonably withheld, delayed or conditioned). Parent or the Company shall not file any Regulatory Filings that contain information with respect to the Stockholder or its affiliates without first providing the Stockholder and its counsel a reasonable opportunity to review and comment thereon, and will give good faith consideration to all reasonable additions, deletions or changes suggested by the Stockholder and its counselAuthority.
(b) Each Stockholder hereto representNeither Parent, warrant Merger Sub nor any of Parent’s Subsidiaries has been advised by, and covenant to Parent and to the Company that, to such Stockholder’s knowledge: (i) none of the information supplied in writing by such Stockholder specifically for inclusion or incorporation by reference in the Regulatory Disclosures will contain a material misstatement of fact or a material omission of fact necessary to make the information provided not misleading and (ii) it does not permit have any entity under knowledge of facts which would reasonably be expected to give rise to an advisory notice by, any Parent Regulatory Authority that such Parent Regulatory Authority is contemplating issuing or requesting (or is considering the “control” (defined in Section 721 appropriateness of the Defense Production Actissuing or requesting) any such order, as amendeddecree, including all implanting regulations thereof) agreement, memorandum of a People’s Republic of China nationalunderstanding, commitment letter, supervisory letter or any entity under the control of a Russian Federation national, to obtain through any Affiliate, control with respect to the Companysimilar submission.
Appears in 2 contracts
Samples: Merger Agreement (Falmouth Bancorp Inc), Merger Agreement (Independent Bank Corp)
Regulatory Matters. (a) Subject to Section 4.4, the Stockholder shall, Parent and shall use their reasonable best efforts to cause their Affiliates to, use their reasonable best efforts, consistent with the time frames set forth in Section 6.4 each of the Merger Agreement, to supply and provide information that, to such Stockholder’s knowledge, is complete and accurate in its Subsidiaries hold (i) all material respects to any Governmental Authority requesting such information in connection with filings or notifications underapprovals, or relating toauthorizations, applicable laws certificates and licenses issued by the State Regulators that are required for Parent and each of its Subsidiaries to conduct its business as presently conducted and (ii) all other material regulatory permits, approvals, licenses and other authorizations, including franchises, ordinances and other agreements granting access to public rights of way, issued or advisable granted to Parent or any of its Subsidiaries by a Governmental Entity that are required for Parent and each of its Subsidiaries to conduct its business, as a result of, or pursuant to, the Merger Agreement presently conducted (clause (i) and the related financings and transactions, including, without limitation, information required or requested to be provided to any antitrust, financial or national security regulatory authorities in connection with any approvals reasonably sought in connection with the consummation of the Merger (ii) collectively, the “Regulatory Filings” and the, “Regulatory DisclosuresParent Licenses”, respectively). If any Governmental Authority seeks to prevent the consummation of the transactions contemplated by the Merger Agreement based on the HSR Act or any other Antitrust Laws or based on any other required approval, consent, notice or filing with a Governmental Authority and such actions by the Governmental Authority relate to the activities or investments of such Stockholder or its Affiliates (solely for purposes of this Section 4, an “Affiliate” of the Stockholder shall include any portfolio company in which such Stockholder or any of its Affiliates has made a debt or an equity investment), then if Parent in good faith reasonably determines that such actions by the Governmental Authority will not be resolved sufficiently in advance of the Termination Date, Parent may provide written notice of that determination to the Stockholder, and Parent may elect to terminate the obligations under Section 2 and Section 4.6 of this Agreement (in which case the Stockholder’s obligations under the Equity Commitment Letter shall also automatically terminate) and, in that context, the Stockholder shall be entitled to receive the Per Share Price under the Merger Agreement with respect to its shares of Common Stock; provided, however that Parent shall not terminate the Equity Commitment Letter or the obligations under Section 2 of this Agreement pursuant to this Section 4.3(a) without first obtaining alternative financing arrangements which provide Parent with funds in an amount equal to the Rollover Amount; provided that such alternative financing arrangements (i) provide Parent with sufficient funds, when added to the proceeds of the Equity Financing, Debt Financing and other sources of readily available liquidity of Parent, Merger Sub, the Company and the Company’s Subsidiaries on the Closing Date, to fund the Required Amount and (ii) do not impose new or additional conditions to the receipt of such financing relative to the Commitment Letters that could impair or delay the Closing. Parent shall promptly provide the Company with a copy of any definitive commitment letter or other documentation providing for such alternative financing arrangement. Notwithstanding anything to the contrary herein, the Stockholder may designate any Regulatory Disclosures that contain sensitive, legally privileged, or confidential information in respect of the Stockholder or any of its Affiliates as exclusive to the Stockholder and the Stockholder may provide that any such sensitive, legally privileged, or confidential information may only be provided on a counsel-only basis or directly to the applicable Governmental Authority requesting such information. The Stockholder shall not make any filings, or notifications in connection with the Merger pursuant to any Antitrust Laws without Parent’s prior written consent (not to be unreasonably withheld, delayed or conditioned). Parent or the Company shall not file any Regulatory Filings that contain information with respect to the Stockholder or its affiliates without first providing the Stockholder and its counsel a reasonable opportunity to review and comment thereon, and will give good faith consideration to all reasonable additions, deletions or changes suggested by the Stockholder and its counsel.
(b) Each Stockholder hereto representParent License is valid and in full force and effect and has not been suspended, warrant revoked, canceled or adversely modified, except where the failure to be in full force and covenant effect, or the suspension, revocation, cancellation or modification of which would not reasonably be expected to result in, individually or in the aggregate, a Parent and Material Adverse Effect. No Parent License is subject to the Company that, to such Stockholder’s knowledge: (i) none any conditions or requirements that have not been imposed generally upon licenses in the same service, unless such conditions or requirements would not reasonably be expected to result in, individually or in the aggregate, a Parent Material Adverse Effect, or (ii) any pending regulatory proceeding or judicial review before a Governmental Entity, unless such pending regulatory proceeding or judicial review would not reasonably be expected to result in, individually or in the aggregate, a Parent Material Adverse Effect. To the Knowledge of Parent, there has been no event, condition or circumstance that would preclude any Parent License from being renewed in the ordinary course (to the extent that such Parent License is renewable by its terms), except where the failure to be renewed would not reasonably be expected to result in, individually or in the aggregate, a Parent Material Adverse Effect.
(c) The licensee of each Parent License is in compliance with each Parent License and has fulfilled and performed all of its obligations with respect thereto, including all reports, notifications and applications required by the rules, regulations, policies, instructions and orders of the information supplied in writing by such Stockholder specifically State Regulators, and the payment of all regulatory fees and contributions, except (i) for inclusion exemptions, waivers or incorporation by reference in the Regulatory Disclosures will contain a material misstatement of fact similar concessions or a material omission of fact necessary to make the information provided not misleading allowances and (ii) it does where such failure to be in compliance, fulfill or perform its obligations or pay such fees or contributions would not permit any entity under reasonably be expected to result in, individually or in the “control” (defined in Section 721 of the Defense Production Actaggregate, as amended, including all implanting regulations thereof) of a People’s Republic of China national, or any entity under the control of a Russian Federation national, to obtain through any Affiliate, control with respect to the CompanyParent Material Adverse Effect.
Appears in 2 contracts
Samples: Merger Agreement (Glowpoint, Inc.), Merger Agreement (Glowpoint, Inc.)
Regulatory Matters. (a) Subject Prior to Section 4.4the NDA Transfer Date. Prior to the NDA Transfer Date:
(i) Titan shall own and control all Regulatory Documents relating to a Product in the Territory;
(ii) Titan, at its own cost, shall have sole authority and responsibility for the Stockholder shalltimely preparation, filing, prosecution, and maintenance of all Regulatory Documents relating to a Product in the Territory, including INDs and NDAs for Products and any reports or amendments necessary to maintain Regulatory Approvals, and for seeking any revisions of the conditions of each Regulatory Approval, it being understood, however, that Titan shall use their reasonable best efforts not make any such filing other than the NDA for the Product in the Initial Indication, without the prior written consent of Braeburn;
(iii) Titan and Braeburn shall have joint authority and responsibility to cause their Affiliates toseek and/or obtain any necessary approvals by the applicable Regulatory Authority of any Product Labeling, use their reasonable best effortspackaging, consistent advertising or other promotional or informational materials used in connection with Product and Promotional Materials and for determining whether the same requires Regulatory Approval, and Titan CERTAIN CONFIDENTIAL PORTIONS OF THIS EXHIBIT WERE OMITTED AND REPLACED WITH “[***]”. A COMPLETE VERSION OF THIS EXHIBIT HAS BEEN FILED SEPARATELY WITH THE SECRETARY OF THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO AN APPLICATION REQUESTING CONFIDENTIAL TREATMENT PURSUANT TO RULE 24B-2 PROMULGATED UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED. shall submit all such materials to the applicable Regulatory Authority after approval of both Parties, in accordance with the time frames procedures set forth in Section 6.4 of 5.3;
(iv) Titan shall remain the Merger Agreementprimary contact with Regulatory Authorities and shall be solely responsible for all communications with Regulatory Authorities that relate to any IND, NDA or analogous application relating to a Product in the Territory;
(v) Braeburn shall have the right, but not the obligation, to supply assist and consult with Titan with respect to all regulatory submissions, including applications for Regulatory Approvals, prior to Titan’s making any such submissions. At least ten (10) Business Days prior to the filing of any documents with a Regulatory Authority relating to Products, Titan shall provide Braeburn with copies of all such filings, submissions, authorizations and Regulatory Approvals, including any correspondence related thereto; provided that, if Titan believes it is required by Law to make such submission sooner, Titan shall provide Braeburn with final copies of such submissions as far in advance of such submission as is practicable under the circumstances, but in any event not less than two (2) Business Days prior to filing them with the Regulatory Authority. Titan shall consider in good faith any comments of Braeburn with respect to the foregoing;
(vi) Titan shall provide Braeburn with a copy of all safety data received by Titan regarding Products worldwide;
(vii) Titan shall provide advance notice to Braeburn of any planned meetings, discussions, or other communications with Regulatory Authorities relating to Products. Braeburn shall have the right, but not the obligation, to participate with respect to such meetings, discussions, or other communications; provided that, in providing any such assistance, Braeburn shall not contact a Regulatory Authority without the prior approval of Titan and, if contacted by a Regulatory Authority with respect to Product, shall refer such contact to Titan;
(viii) If contacted by a Regulatory Authority with respect to a Product, Titan shall promptly notify Braeburn of such contact, and provide information that, to such Stockholder’s knowledge, is complete and accurate in all material respects to Braeburn with any Governmental Authority requesting such information in connection with filings or notifications under, or relating to, applicable laws that are required or advisable as related official correspondence received from a result of, or pursuant to, the Merger Agreement and the related financings and transactionsRegulatory Authority, including, without limitationas applicable, information required minutes of any meetings or requested telephone conferences and/or discussions between Titan and the Regulatory Authority. Braeburn shall have a right to be provided participate in and provide comments with respect to any antitrustsubsequent meetings, financial discussions, or national security regulatory authorities other communications with respect to such contact;
(ix) To the extent Braeburn reasonably believes that a filing or submission relating to Products in connection with any approvals reasonably sought in connection with the consummation of the Merger (collectivelyTerritory is required by Law, the “Regulatory Filings” and the, “Regulatory Disclosures”, respectively)Braeburn shall notify Titan. If any Governmental Authority seeks Titan decides not to prevent the consummation of the transactions contemplated by the Merger Agreement based on the HSR Act prepare such filing or any other Antitrust Laws or based on any other required approvalsubmission, consent, notice or filing with a Governmental Authority and such actions by the Governmental Authority relate to the activities or investments Titan shall promptly notify Braeburn of such Stockholder or its Affiliates (solely for purposes of this Section 4, an “Affiliate” of the Stockholder shall include any portfolio company in which such Stockholder or any of its Affiliates has made a debt or an equity investment), then if Parent in good faith reasonably determines that such actions by the Governmental Authority will not be resolved sufficiently in advance of the Termination Date, Parent may provide written notice of that determination to the Stockholder, decision and Parent may elect to terminate the obligations under Section 2 and Section 4.6 of this Agreement (in which case the Stockholder’s obligations under the Equity Commitment Letter shall also automatically terminate) and, in that context, the Stockholder Braeburn shall be entitled to receive the Per Share Price under the Merger Agreement with respect prepare such filing or submission, to its shares of Common Stock; provided, however that Parent shall not terminate the Equity Commitment Letter be filed or the obligations under Section 2 of this Agreement pursuant to this Section 4.3(a) without first obtaining alternative financing arrangements which provide Parent with funds in an amount equal to the Rollover Amountsubmitted by Titan; provided that Braeburn shall use good faith efforts to include any comments of Titan in such alternative financing arrangements filing or submission; and CERTAIN CONFIDENTIAL PORTIONS OF THIS EXHIBIT WERE OMITTED AND REPLACED WITH “[***]”. A COMPLETE VERSION OF THIS EXHIBIT HAS BEEN FILED SEPARATELY WITH THE SECRETARY OF THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO AN APPLICATION REQUESTING CONFIDENTIAL TREATMENT PURSUANT TO RULE 24B-2 PROMULGATED UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.
(ix) provide Parent with sufficient funds, when added Changes to the proceeds Specifications shall be made only by mutual prior agreement of the Equity FinancingParties, Debt Financing and other sources of readily available liquidity of Parent, Merger Sub, the Company and the Company’s Subsidiaries on the Closing Date, to fund the Required Amount and (ii) do not impose new or additional conditions except as required by Law. The Parties shall determine whether any such changes require any supplements to the receipt of such financing relative to the Commitment Letters that could impair or delay the Closing. Parent Product NDA, and each Party shall promptly provide the Company other Party with a copy notice of any definitive commitment letter or other documentation providing for such alternative financing arrangementchanges as soon as practicable. Notwithstanding anything herein to the contrary hereincontrary, Titan shall not file with a Regulatory Authority any regulatory submissions that are intended to change or modify Product Labeling or prescribing information approved by the Stockholder may designate any applicable Regulatory Disclosures that contain sensitive, legally privilegedAuthority for, or confidential information the Indications of, Product in respect the Territory without providing to Braeburn a draft of the Stockholder or any of its Affiliates as exclusive such submission at least ten (10) Business Days prior to the Stockholder and the Stockholder may provide that any such sensitive, legally privileged, or confidential information may only be provided on a counsel-only basis or directly planned submission to the applicable Governmental Regulatory Authority requesting such information. The Stockholder shall not make any filings, or notifications in connection with the Merger pursuant and giving prompt and reasonable consideration to any Antitrust Laws without Parent’s prior written consent (not comments Braeburn may have; provided that, if and to be unreasonably withheld, delayed or conditioned). Parent or the Company shall not extent required by Law Titan is required to file any such submission in less than ten (10) Business Days after notice from the applicable Regulatory Filings that contain information with respect Authority, Titan will notify Braeburn of any such requirement as far in advance of such submission as is practicable under the circumstances, but in any event not less than two (2) Business Days prior to the Stockholder or its affiliates without first providing the Stockholder and its counsel a reasonable opportunity to review and comment thereon, and will give good faith consideration to all reasonable additions, deletions or changes suggested by the Stockholder and its counselsuch submission.
(b) After the NDA Transfer Date. After the NDA Transfer Date:
(i) Braeburn shall own and control all Regulatory Documents relating to a Product in the Territory. Titan hereby assigns to Braeburn all right, title and interest in such Regulatory Documents, effective as of the NDA Transfer Date;
(ii) Braeburn, at its own cost, will be solely responsible for the timely preparation, filing, prosecution, and maintenance of all Regulatory Documents relating to a Product in the Territory, including INDs and NDAs for Products and any reports or amendments necessary to maintain Regulatory Approvals, and for seeking any revisions of the conditions of each Regulatory Approval;
(iii) Braeburn shall have sole authority and responsibility to develop, modify, seek and/or obtain any necessary Regulatory Approvals of any Product Labeling, packaging, advertising or other promotional or informational materials used in connection with Product in the Territory, and Promotional Materials and for determining whether the same requires Regulatory Approval;
(iv) Braeburn will be the primary contact with the Regulatory Authorities and shall be solely responsible for all communications with Regulatory Authorities that relate to any IND, NDA or analogous application relating to a Product in the Territory prior to and after any Regulatory Approval;
(v) Braeburn may, in its sole discretion, file any submissions that are intended to change or modify Product Labeling or prescribing information approved by the applicable Regulatory Authority for, or the Indications of, Product in the Territory provided that, except as required by Law, it provides to Titan a draft of such submission at least ten (10) Business Days prior to planned submission to the applicable Regulatory Authority and gives prompt and reasonable consideration to any comments Titan may have; CERTAIN CONFIDENTIAL PORTIONS OF THIS EXHIBIT WERE OMITTED AND REPLACED WITH “[***]”. A COMPLETE VERSION OF THIS EXHIBIT HAS BEEN FILED SEPARATELY WITH THE SECRETARY OF THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO AN APPLICATION REQUESTING CONFIDENTIAL TREATMENT PURSUANT TO RULE 24B-2 PROMULGATED UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.
(vi) To the extent Titan reasonably believes that a filing or submission relating to Products in the Territory is required by Law, Titan shall notify Braeburn. If Braeburn decides not to prepare such filing or submission, it shall promptly notify Titan of such decision and Titan shall be entitled to prepare such filing or submission, at Braeburn’s sole cost and expense, to be filed or submitted by Braeburn; provided that Titan shall use good faith efforts to include any comments of Braeburn in such filing or submission;
(vii) Each Stockholder hereto representParty shall permit the other Party to access, warrant and covenant shall provide the other Party on a timely basis with the right to Parent cross-reference and use in exercising its rights and performing its obligations hereunder with respect to Product in the Territory and for Titan to use in connection with the development and commercialization of Product in the Titan Territory, any and all Regulatory Documents, owned by the applicable Party. At the request of the other Party and to the Company thatextent legally permitted and in accordance with the terms of this Agreement, to such Stockholder’s knowledge: (i) none each Party shall notify the FDA and the appropriate Regulatory Authorities, as applicable, of the information supplied other Party’s right to reference such Regulatory Documents in writing regulatory submissions filed by such Stockholder specifically for inclusion or incorporation by reference the other Party in the Regulatory Disclosures will contain a material misstatement of fact or a material omission of fact necessary to make the information provided not misleading and (ii) it does not permit any entity under the “control” (defined in Section 721 of the Defense Production Act, as amended, including all implanting regulations thereof) of a People’s Republic of China national, or any entity under the control of a Russian Federation national, to obtain through any Affiliate, control accordance with respect to the Companythis Agreement.
Appears in 2 contracts
Samples: License Agreement (Braeburn Pharmaceuticals, Inc.), License Agreement (Braeburn Pharmaceuticals, Inc.)
Regulatory Matters. (a) Subject to Section 4.4, the Stockholder shall, and shall The Company will use their reasonable best efforts to cause their Affiliates to, use their reasonable best efforts, consistent with the time frames set forth in Section 6.4 of the Merger Agreementprepare and file all necessary documentation, to supply effect all necessary applications, notices, petitions, filings and provide information thatother documents, and to such Stockholder’s knowledgeobtain all necessary permits, is complete consents, orders, approvals and accurate in all material respects to any Governmental Authority requesting such information in connection with filings or notifications under, or relating to, applicable laws that are required or advisable as a result authorizations of, or pursuant toany exemption by, all third parties and Governmental Entities, and expiration or termination of any applicable waiting periods, necessary or advisable to consummate the Merger transactions contemplated by this Agreement and the related financings other Transaction Documents (including with respect to the exercise of the Warrant), to perform covenants contemplated by this Agreement and transactionsthe other Transaction Documents, includingincluding any such applications, without limitationnotices, information petitions or filings required or requested to be provided to any antitrust, financial or national security regulatory authorities in connection made by it with any approvals reasonably sought Governmental Entities in connection with the consummation transactions contemplated by this Agreement and the other Transaction Documents as promptly as practicable, and, without limiting the foregoing, shall assist in making a rebuttal of control submission under the HOLA to the OTS or the Federal Reserve, as applicable, not later than 30 calendar days following the date of this Agreement; provided, that nothing contained in this Agreement shall require either Investor or any of their respective Affiliates to take any action that would (i) result in either Investor or any of their respective Affiliates being deemed to control the Company for purposes of the Merger HOLA or other applicable law or regulation, or (collectively, ii) materially adversely affect in the “Regulatory Filings” and the, “Regulatory Disclosures”, respectively). If any Governmental Authority seeks to prevent Investors’ good faith judgment the consummation economic or other benefits expected by the Investors of the transactions contemplated by the Merger Agreement based on the HSR Act or any other Antitrust Laws or based on any other required approval, consent, notice or filing with a Governmental Authority and such actions by the Governmental Authority relate to the activities or investments of such Stockholder or its Affiliates (solely for purposes of this Section 4, an “Affiliate” of the Stockholder shall include any portfolio company in which such Stockholder or any of its Affiliates has made a debt or an equity investment), then if Parent in good faith reasonably determines that such actions by the Governmental Authority will not be resolved sufficiently in advance of the Termination Date, Parent may provide written notice of that determination to the Stockholder, and Parent may elect to terminate the obligations under Section 2 and Section 4.6 of this Agreement and the other Transaction Documents to either Investor (in which case the Stockholder’s obligations under the Equity Commitment Letter shall also automatically terminate) and, in that context, the Stockholder shall be entitled to receive the Per Share Price under the Merger Agreement with respect to its shares of Common Stock; provided, however that Parent shall not terminate the Equity Commitment Letter or the obligations under Section 2 of this Agreement pursuant to this Section 4.3(a) without first obtaining alternative financing arrangements which provide Parent with funds in an amount equal to the Rollover Amount; provided that such alternative financing arrangements foregoing (i) provide Parent with sufficient funds, when added to the proceeds of the Equity Financing, Debt Financing and other sources of readily available liquidity of Parent, Merger Sub, the Company and the Company’s Subsidiaries on the Closing Date, to fund the Required Amount and (ii) do not impose new a “Burdensome Condition”), and, for the avoidance of doubt, any requirements to disclose the identities of direct or additional conditions indirect limited partners, stockholders or members of an Investor or its Affiliates or its investment advisors shall be deemed a Burdensome Condition unless otherwise determined by such Investor in its sole discretion; and, provided, further, that nothing in this Agreement shall obligate an Investor to the receipt of such financing relative to the Commitment Letters that could impair or delay the Closing. Parent shall promptly provide the Company with a copy of any definitive commitment letter or other documentation providing for such alternative financing arrangement. Notwithstanding anything to the contrary herein, the Stockholder may designate any Regulatory Disclosures that contain sensitive, legally privileged, or confidential information in respect of the Stockholder or any of its, its Affiliates as exclusive to the Stockholder and the Stockholder may provide that any such sensitiveAffiliates’ or their control persons’ or direct or indirect equity holders’ nonpublic, legally privilegedproprietary, personal or otherwise confidential information may only be provided on a counsel-only basis or directly to the applicable Governmental Authority requesting such information. The Stockholder shall not make any filings, or notifications in connection with the Merger pursuant to any Antitrust Laws without Parent’s prior written consent (not to be unreasonably withheld, delayed or conditioned). Parent or the Company shall not file any Regulatory Filings that contain information with respect to the Stockholder or its affiliates without first providing the Stockholder and its counsel a reasonable opportunity to review and comment thereon, and will give good faith consideration to all reasonable additions, deletions or changes suggested by the Stockholder and its counsel.
(b) Each Stockholder hereto representThe Investors will have the right to review in advance and consult with the Company, warrant and covenant subject to Parent and applicable laws relating to the Company thatexchange of information, to such Stockholder’s knowledge: (i) none of the information supplied in writing by such Stockholder specifically for inclusion or incorporation by reference in the Regulatory Disclosures will contain a material misstatement of fact or a material omission of fact necessary to make the information provided not misleading and (ii) it does not permit any entity under the “control” (defined in Section 721 of the Defense Production Act, as amended, including all implanting regulations thereof) of a People’s Republic of China national, or any entity under the control of a Russian Federation national, to obtain through any Affiliate, control with respect to all the Companyinformation relating to the Investors, and any of their respective subsidiaries, which appears in any filing made with, or written materials submitted to, any third party or any Governmental Entity in connection with the transactions contemplated by this Agreement and the Transaction Documents. The Company agrees to keep the Investors apprised of the status of matters relating to completion of the transactions contemplated hereby and by the Transaction Documents. The Company shall promptly furnish to the Investors to the extent permitted by applicable laws copies of written communications received by them or the Company Subsidiaries from, or delivered by any of the foregoing to, any Governmental Entity in respect of the transactions contemplated by this Agreement or by any other Transaction Document.
(c) The Company shall not take any action which would reasonably be expected to pose a risk that either Investor or any of its respective Affiliates will become, or control, a “savings and loan holding company” within the meaning of HOLA, or otherwise be deemed to control the Company or have other adverse consequences to the Investors under applicable law or regulation, including without limitation undertaking any redemption, recapitalization or repurchase of Common Stock, of securities or rights, options, or warrants to purchase Common Stock, or securities of any type whatsoever that are, or may become, convertible into or exchangeable into or exercisable for Common Stock. In the event that the Company breaches its obligations under this Section 3.4(c), or enters into a transaction, contemplates entering into a transaction, or otherwise believes that it will or is likely to breach its obligations under this Section 3.4(c), it shall promptly notify the other parties hereto and shall cooperate in good faith with such parties to make arrangements or take any other action, in each case, as determined by the Investors.
(d) From the date of this Agreement until the earlier of the date of termination of this Agreement and the date when the Stockholder Approval is obtained, the Company shall not, directly or indirectly, amend, modify, or waive, and the Board of Directors shall not recommend approval of any proposal to the stockholders having the effect of amending, modifying or waiving any provision in the Certificate of Incorporation or By-Laws of the Company in any manner adverse to the Investors.
Appears in 2 contracts
Samples: Funding Agreement (Hilltop Holdings Inc.), Funding Agreement (SWS Group Inc)
Regulatory Matters. (a) Subject Notwithstanding anything to Section 4.4the contrary herein or in the Security Documents, the Stockholder shall, Agents and shall use their reasonable best efforts the Lenders hereby agree that they will not take action pursuant to cause their Affiliates to, use their reasonable best efforts, consistent the Security Documents with the time frames set forth in Section 6.4 of the Merger Agreement, to supply and provide information that, to such Stockholder’s knowledge, is complete and accurate in all material respects respect to any item of Collateral associated with or related to any Communications License (i) to the extent such action is not permitted by the FCC or other Governmental Authority requesting such information or any other applicable laws, rules or regulations; or (ii) that would constitute or result in connection with filings an assignment or notifications under, or relating to, applicable laws that are required or advisable as a result of, or pursuant to, the Merger Agreement and the related financings and transactions, change of control of a Communications License (including, without limitation, information required an assignment or requested transfer of control (as those terms are defined by the Communications Act of 1934, as amended, or by the laws of any other Governmental Authority or in the rules or regulations of the FCC)) now held by or to be provided to any antitrust, financial or national security regulatory authorities in connection with any approvals reasonably sought in connection with the consummation of the Merger (collectively, the “Regulatory Filings” and the, “Regulatory Disclosures”, respectively). If any Governmental Authority seeks to prevent the consummation of the transactions contemplated by the Merger Agreement based on the HSR Act or any other Antitrust Laws or based on any other required approval, consent, notice or filing with a Governmental Authority and such actions by the Governmental Authority relate issued to the activities or investments of such Stockholder or its Affiliates (solely for purposes of this Section 4, an “Affiliate” of the Stockholder shall include any portfolio company in which such Stockholder Borrower or any of its Affiliates has made a debt Subsidiaries, or an equity investment)that otherwise would require prior notice to or approval from the FCC or other Governmental Authority, then if Parent without first providing such notice or obtaining such prior approval. The Borrower agrees to take any action which the Administrative Agent may reasonably request consistent with and subject to and in good faith reasonably determines that such actions by accordance with applicable law in order to obtain from the FCC or any other relevant Governmental Authority will not such approval as may be resolved sufficiently in advance of necessary to enable the Termination Date, Parent may provide written notice of that determination Lenders to exercise the full rights and benefits granted to the Stockholder, and Parent may elect to terminate the obligations under Section 2 and Section 4.6 of this Agreement (in which case the Stockholder’s obligations under the Equity Commitment Letter shall also automatically terminate) and, in that context, the Stockholder shall be entitled to receive the Per Share Price under the Merger Agreement with respect to its shares of Common Stock; provided, however that Parent shall not terminate the Equity Commitment Letter or the obligations under Section 2 of this Agreement Lenders pursuant to this Section 4.3(a) Agreement, including the use of the Borrower’s commercially reasonable efforts to assist in obtaining the approval of the FCC or any other relevant Governmental Authority for any action or transaction contemplated by the Security Documents for which such approval is required by law and specifically, without first obtaining alternative financing arrangements which provide Parent limitation, upon request at any time after the occurrence and during the continuance of an Event of Default, to prepare, sign and file with funds in an amount equal the FCC or any other relevant Governmental Authority the assignor’s or transferor’s and licensee’s portions of any application or applications for consent to the Rollover Amountassignment or transfer of control of any Communications License that may be necessary or appropriate under the rules of the FCC or such other Governmental Authority for approval of any sale or transfer of control of the Collateral pursuant to the exercise of the Lenders’ rights and remedies under the Security Documents; provided that Borrower’s failure to obtain any such alternative financing arrangements (i) provide Parent with sufficient fundsapproval shall not constitute a Default or Event of Default. The Borrower further consents, when added subject to obtaining any necessary approvals, to the proceeds assignment or transfer of control of any Communications License to operate to a receiver, trustee, or similar official or to any purchaser of the Equity Financing, Debt Financing and other sources of readily available liquidity of Parent, Merger Sub, the Company and the Company’s Subsidiaries on the Closing Date, to fund the Required Amount and (ii) do not impose new or additional conditions to the receipt of such financing relative to the Commitment Letters that could impair or delay the Closing. Parent shall promptly provide the Company with a copy of any definitive commitment letter or other documentation providing for such alternative financing arrangement. Notwithstanding anything to the contrary herein, the Stockholder may designate any Regulatory Disclosures that contain sensitive, legally privileged, or confidential information in respect of the Stockholder or any of its Affiliates as exclusive to the Stockholder and the Stockholder may provide that any such sensitive, legally privileged, or confidential information may only be provided on a counsel-only basis or directly to the applicable Governmental Authority requesting such information. The Stockholder shall not make any filings, or notifications in connection with the Merger Collateral pursuant to any Antitrust Laws without Parent’s prior written consent (not to be unreasonably withheldpublic or private sale, delayed judicial sale, foreclosure, or conditioned). Parent or the Company shall not file any Regulatory Filings that contain information with respect exercise of other remedies available to the Stockholder or its affiliates without first providing the Stockholder and its counsel a reasonable opportunity to review and comment thereon, and will give good faith consideration to all reasonable additions, deletions or changes suggested Lenders as permitted by the Stockholder and its counselapplicable law.
(b) Each Stockholder hereto represent, warrant and covenant to Parent and to the Company that, to such Stockholder’s knowledge: (i) none of the information supplied in writing by such Stockholder specifically for inclusion or incorporation by reference in the Regulatory Disclosures will contain a material misstatement of fact or a material omission of fact necessary to make the information provided not misleading and (ii) it does not permit any entity under the “control” (defined in Section 721 of the Defense Production Act, as amended, including all implanting regulations thereof) of a People’s Republic of China national, or any entity under the control of a Russian Federation national, to obtain through any Affiliate, control with respect to the Company.
Appears in 2 contracts
Samples: Credit Agreement (Hughes Communications, Inc.), Credit Agreement (Hughes Communications, Inc.)
Regulatory Matters. (a) Subject 8.1. NEVADA shall be responsible for obtaining and keeping in effect all FCC, state regulatory commission, franchise authority and other regulatory approvals that may be required in connection with the performance of its obligations under this Agreement. CLEC shall be responsible for obtaining and keeping in effect all FCC, state regulatory commission, franchise authority and other regulatory approvals that may be required in connection with its obligations under this Agreement, and with its offering of services to Section 4.4CLEC Customers contemplated by this Agreement. CLEC shall reasonably cooperate with NEVADA in obtaining and maintaining any required approvals for which NEVADA is responsible, and NEVADA shall reasonably cooperate with CLEC in obtaining and maintaining any required approvals for which CLEC is responsible.
8.2. To the extent that NEVADA is required by any Governmental Authority to file a tariff or make another similar filing in connection with the performance of any action that would otherwise be governed by this Agreement, the Stockholder terms of this Agreement shall control, unless this Agreement links a term, condition or price in this Agreement to a specific tariff, in which case the terms of the tariff as modified from time to time will apply. If, subsequent to the effective date of any tariff incorporated by reference into this Agreement, NEVADA is ordered not to file tariffs with the state regulatory commission or the FCC, or is permitted not to file tariffs (and elects not to do so), either generally or for specific Network Elements, Ancillary Functions, Combinations, Local Services or other services provided hereunder, the terms and conditions of such tariffs as of the date on which the requirement to file such tariffs was lifted shall, to the degree not inconsistent with this Agreement, be deemed incorporated in this Agreement by reference.
8.3. In the event that any final and nonappealable legislative, regulatory, judicial or other legal action renders this Agreement or any Attachment hereto inoperable, materially affects any material terms of this Agreement, or materially affects the ability of CLEC or NEVADA to perform any material terms of this Agreement, CLEC or NEVADA may, on thirty (30) days written notice (delivered not later than thirty (30) days following the date on which such action has become legally binding and has otherwise become final and nonappealable) require that such terms be renegotiated, and the Parties shall use their reasonable best efforts renegotiate in good faith such mutually acceptable new terms as may be required. In the event that such new terms are not renegotiated within ninety (90) days after such notice, the dispute shall be referred to cause their Affiliates to, use their reasonable best efforts, consistent with the time frames Alternative Dispute Resolution procedures set forth in Section 6.4 of the Merger Agreement, to supply 16 and provide information that, to such Stockholder’s knowledge, is complete and accurate in all material respects to any Governmental Authority requesting such information in connection with filings or notifications under, or relating to, applicable laws that are required or advisable as a result of, or pursuant to, the Merger Agreement and the related financings and transactions, including, without limitation, information required or requested to be provided to any antitrust, financial or national security regulatory authorities in connection with any approvals reasonably sought in connection with the consummation of the Merger (collectively, the “Regulatory Filings” and the, “Regulatory Disclosures”, respectively). If any Governmental Authority seeks to prevent the consummation of the transactions contemplated by the Merger Agreement based on the HSR Act or any other Antitrust Laws or based on any other required approval, consent, notice or filing with a Governmental Authority and such actions by the Governmental Authority relate to the activities or investments of such Stockholder or its Affiliates (solely for purposes of this Section 4, an “Affiliate” of the Stockholder shall include any portfolio company in which such Stockholder or any of its Affiliates has made a debt or an equity investment), then if Parent in good faith reasonably determines that such actions by the Governmental Authority will not be resolved sufficiently in advance of the Termination Date, Parent may provide written notice of that determination to the Stockholder, and Parent may elect to terminate the obligations under Section 2 and Section 4.6 of this Agreement (in which case the Stockholder’s obligations under the Equity Commitment Letter shall also automatically terminate) and, in that context, the Stockholder shall be entitled to receive the Per Share Price under the Merger Agreement with respect to its shares of Common Stock; provided, however that Parent shall not terminate the Equity Commitment Letter or the obligations under Section 2 of this Agreement pursuant to this Section 4.3(a) without first obtaining alternative financing arrangements which provide Parent with funds in an amount equal to the Rollover Amount; provided that such alternative financing arrangements (i) provide Parent with sufficient funds, when added to the proceeds of the Equity Financing, Debt Financing and other sources of readily available liquidity of Parent, Merger Sub, the Company and the Company’s Subsidiaries on the Closing Date, to fund the Required Amount and (ii) do not impose new or additional conditions to the receipt of such financing relative to the Commitment Letters that could impair or delay the Closing. Parent shall promptly provide the Company with a copy of any definitive commitment letter or other documentation providing for such alternative financing arrangement. Notwithstanding anything to the contrary herein, the Stockholder may designate any Regulatory Disclosures that contain sensitive, legally privileged, or confidential information in respect of the Stockholder or any of its Affiliates as exclusive to the Stockholder and the Stockholder may provide that any such sensitive, legally privileged, or confidential information may only be provided on a counsel-only basis or directly to the applicable Governmental Authority requesting such information. The Stockholder shall not make any filings, or notifications in connection with the Merger pursuant to any Antitrust Laws without Parent’s prior written consent (not to be unreasonably withheld, delayed or conditioned). Parent or the Company shall not file any Regulatory Filings that contain information with respect to the Stockholder or its affiliates without first providing the Stockholder and its counsel a reasonable opportunity to review and comment thereon, and will give good faith consideration to all reasonable additions, deletions or changes suggested by the Stockholder and its counselAttachment 3.
(b) Each Stockholder hereto represent, warrant and covenant to Parent and to the Company that, to such Stockholder’s knowledge: (i) none of the information supplied in writing by such Stockholder specifically for inclusion or incorporation by reference in the Regulatory Disclosures will contain a material misstatement of fact or a material omission of fact necessary to make the information provided not misleading and (ii) it does not permit any entity under the “control” (defined in Section 721 of the Defense Production Act, as amended, including all implanting regulations thereof) of a People’s Republic of China national, or any entity under the control of a Russian Federation national, to obtain through any Affiliate, control with respect to the Company.
Appears in 2 contracts
Samples: Service Agreement, General Terms and Conditions (Callwave Inc)
Regulatory Matters. (a) Subject 9.1. PACIFIC shall be responsible for obtaining and keeping in effect all FCC, state regulatory commission, franchise authority and other regulatory approvals that may be required in connection with the performance of its obligations under this Agreement. CLEC shall be responsible for obtaining and keeping in effect all FCC, state regulatory commission, franchise authority and other regulatory approvals that may be required in connection with its obligations under this Agreement, and with its offering of services to Section 4.4CLEC Customers contemplated by this Agreement. CLEC shall reasonably cooperate with PACIFIC in obtaining and maintaining any required approvals for which PACIFIC is responsible, and PACIFIC shall reasonably cooperate with CLEC in obtaining and maintaining any required approvals for which CLEC is responsible.
9.2. To the extent that PACIFIC is required by any Governmental Authority to file a tariff or make another similar filing in connection with the performance of any action that would otherwise be governed by this Agreement, the Stockholder terms of this Agreement shall control, unless this Agreement links a term, condition or price in this Agreement to a specific tariff, in which case the terms of the tariff as modified from time to time will apply. If, subsequent to the effective date of any tariff incorporated by reference into this Agreement, PACIFIC is ordered not to file tariffs with the state regulatory commission or the FCC, or is permitted not to file tariffs (and elects not to do so), either generally or for specific Network Elements, Ancillary Functions, Combinations, Local Services or other services provided hereunder, the terms and conditions of such tariffs as of the date on which the requirement to file such tariffs was lifted shall, to the degree not inconsistent with this Agreement, be deemed incorporated in this Agreement by reference.
9.3. In the event that any final and nonappealable legislative, regulatory, judicial or other legal action renders this Agreement or any Attachment hereto inoperable, materially affects any material terms of this Agreement, or materially affects the ability of CLEC or PACIFIC to perform any material terms of this Agreement, CLEC or PACIFIC may, on thirty (30) days written notice (delivered not later than thirty (30) days following the date on which such action has become legally binding and has otherwise become final and nonappealable) require that such terms be renegotiated, and the Parties shall use their reasonable best efforts renegotiate in good faith such mutually acceptable new terms as may be required. In the event that such new terms are not renegotiated within ninety (90) days after such notice, the dispute shall be referred to cause their Affiliates to, use their reasonable best efforts, consistent with the time frames Alternative Dispute Resolution procedures set forth in Section 6.4 of the Merger Agreement, to supply 17 and provide information that, to such Stockholder’s knowledge, is complete and accurate in all material respects to any Governmental Authority requesting such information in connection with filings or notifications under, or relating to, applicable laws that are required or advisable as a result of, or pursuant to, the Merger Agreement and the related financings and transactions, including, without limitation, information required or requested to be provided to any antitrust, financial or national security regulatory authorities in connection with any approvals reasonably sought in connection with the consummation of the Merger (collectively, the “Regulatory Filings” and the, “Regulatory Disclosures”, respectively)Attachment 3.
9.4. If any Governmental Authority seeks to prevent the consummation of the transactions contemplated by the Merger Agreement based on the HSR Act or any other Antitrust Laws or based on any other required approval, consent, notice or filing with a Governmental Authority and such actions by the Governmental Authority relate Pursuant to the activities or investments of such Stockholder or its Affiliates Decision (solely for purposes of this Section 4, an “Affiliate” of the Stockholder shall include any portfolio company in which such Stockholder or any of its Affiliates has made a debt or an equity investmentat 11-12), then if Parent in good faith reasonably determines that such actions by unless the Governmental Authority will not be resolved sufficiently in advance of the Termination DateParties voluntarily agree otherwise, Parent may provide written notice of that determination to the Stockholder, and Parent may elect to terminate the obligations under Section 2 and Section 4.6 all terms of this Agreement (in which case the Stockholder’s obligations under the Equity Commitment Letter shall also automatically terminate) and, in that context, the Stockholder shall will be entitled subject to receive the Per Share Price under the Merger Agreement with respect to its shares of Common Stock; provided, however that Parent shall not terminate the Equity Commitment Letter or the obligations under Section 2 of this Agreement pursuant to this Section 4.3(a) without first obtaining alternative financing arrangements which provide Parent with funds in an amount equal to the Rollover Amount; provided that such alternative financing arrangements (i) provide Parent with sufficient funds, when added to the proceeds of the Equity Financing, Debt Financing and other sources of readily available liquidity of Parent, Merger Sub, the Company and the Company’s Subsidiaries modification based on the Closing Date, to fund the Required Amount and (ii) do not impose new or additional conditions to the receipt of such financing relative to the Commitment Letters that could impair or delay the Closing. Parent shall promptly provide the Company with a copy of any definitive commitment letter or other documentation providing for such alternative financing arrangement. Notwithstanding anything to the contrary herein, the Stockholder may designate any Regulatory Disclosures that contain sensitive, legally privileged, or confidential information in respect of the Stockholder or any of its Affiliates as exclusive to the Stockholder and the Stockholder may provide that any such sensitive, legally privileged, or confidential information may only be provided on a counsel-only basis or directly to the applicable Governmental Authority requesting such information. The Stockholder shall not make any filings, or notifications in connection with the Merger pursuant to any Antitrust Laws without Parent’s prior written consent (not to be unreasonably withheld, delayed or conditioned). Parent or the Company shall not file any Regulatory Filings that contain information with respect to the Stockholder or its affiliates without first providing the Stockholder and its counsel a reasonable opportunity to review and comment thereon, and will give good faith consideration to all reasonable additions, deletions or changes suggested by the Stockholder and its counselfuture Commission decisions.
(b) Each Stockholder hereto represent, warrant and covenant to Parent and to the Company that, to such Stockholder’s knowledge: (i) none of the information supplied in writing by such Stockholder specifically for inclusion or incorporation by reference in the Regulatory Disclosures will contain a material misstatement of fact or a material omission of fact necessary to make the information provided not misleading and (ii) it does not permit any entity under the “control” (defined in Section 721 of the Defense Production Act, as amended, including all implanting regulations thereof) of a People’s Republic of China national, or any entity under the control of a Russian Federation national, to obtain through any Affiliate, control with respect to the Company.
Appears in 2 contracts
Samples: Service Agreement (CRL Network Services Inc), Service Agreement (CRL Network Services Inc)
Regulatory Matters. (a) Subject Each of Parent and the Investor agrees to Section 4.4, the Stockholder shall, cooperate and shall use their its reasonable best efforts to cause ensure, including by communicating with each other with respect to their Affiliates torespective purchases of Parent Common Stock, use their reasonable best efforts, consistent with that neither the time frames set forth in Section 6.4 Investor nor any of the Merger Agreement, to supply and provide information that, to such Stockholder’s knowledge, is complete and accurate in all material respects to any Governmental Authority requesting such information in connection with filings or notifications under, or relating to, applicable laws that are required or advisable as a result of, or pursuant to, the Merger Agreement and the related financings and transactions, including, without limitation, information required or requested to be provided to any antitrust, financial or national security regulatory authorities in connection with any approvals reasonably sought in connection with the consummation of the Merger (collectively, the “Regulatory Filings” and the, “Regulatory Disclosures”, respectively). If any Governmental Authority seeks to prevent the consummation of the transactions contemplated by the Merger Agreement based on the HSR Act or any other Antitrust Laws or based on any other required approval, consent, notice or filing with a Governmental Authority and such actions by the Governmental Authority relate to the activities or investments of such Stockholder or its Affiliates (solely has “control” of Parent for purposes of the BHC Act (a “Parent Control Effect”).
(b) Parent agrees it will use reasonable best efforts to monitor the ongoing business relationships between Parent and its Affiliates, on the one hand, and the Investor and its Affiliates, on the other hand, and will consult with the Investor periodically in order to facilitate compliance with applicable regulations and the objectives of this Section 41.8. Parent will use reasonable best efforts to calculate the percentage of Parent’s consolidated revenues and expenses generated from business relationships with Investor and Investor’s subsidiaries and provide such information to Investor on a quarterly basis or, an “Affiliate” to the extent required by the Federal Reserve, a different periodic basis.
(c) Without limiting Section 1.8(a) and Section 1.8(b), none of the Stockholder Investor, Parent or any of their respective Affiliates shall include take any portfolio company action which it knows would or would reasonably be expected to cause a Parent Control Effect; provided, that nothing in which such Stockholder this Agreement shall be construed to prohibit Parent or any of its Affiliates has made from undertaking any redemption, recapitalization or repurchase of Parent Common Stock, of securities or rights, options, or warrants to purchase Parent Common Stock, or securities of any type whatsoever that are, or may become, convertible into or exchangeable into or exercisable for Parent Common Stock in each case; provided, further, that if it is reasonably likely that such action would result in a debt Parent Control Effect or an equity investmenta requirement to file a CBC Act notice (a “CBC Act Effect”), then Parent shall give the Investor the right to participate in such redemption, recapitalization or repurchase pro rata (based on Investor’s Investor Percentage Interest or such greater amount as may be required to avoid a Parent Control Effect), it being agreed that the Investor shall promptly inform Parent of its determination as to whether to participate and, if it does not participate, it shall promptly dispose of a number of shares of Parent Common Stock necessary to avoid a Parent Control Effect arising from such redemption, recapitalization or repurchase (in good faith reasonably determines that such actions by one or more Transfers which comply with the Governmental Authority will not be resolved sufficiently in advance of the Termination Date, Parent may provide written notice of that determination to the Stockholder, and Parent may elect to terminate the obligations under Section 2 and Section 4.6 terms of this Agreement (in which case Agreement). For the Stockholder’s obligations under the Equity Commitment Letter avoidance of doubt, Investor shall also automatically terminate) andhave no obligation to dispose of Parent Common Stock or any securities or rights, in that contextoptions, the Stockholder shall be or warrants to purchase Parent Common Stock, or securities of any type whatsoever to avoid a CBC Act Effect and have no obligation to avoid a CBC Act Effect. If Investor is entitled to receive the Per Share Price under the Merger Agreement any Voting Securities from Parent in connection with a stock dividend or similar distribution of Voting Securities in respect to its shares of Parent Common Stock, but Investor’s receipt of all or a portion of such Voting Securities would reasonably be expected to cause a Parent Control Effect or CBC Act Effect, Investor shall receive (in the case of a Parent Control Effect) or shall have the option, in Investor’s sole discretion, to receive (in the case of a CBC Act Effect) Nonvoting Parent Common Stock or rights, options, or warrants to purchase Parent Common Stock, instead of Voting Securities, as necessary to avoid the occurrence of a Parent Control Effect or, in Investor’s sole discretion, a CBC Act Effect (it being understood that such distribution of Nonvoting Parent Common Stock shall be subject to compliance with Applicable Law and Parent’s organizational documents at such time, and may be delayed to the extent necessary to obtain required approvals from any Governmental Authority or any stockholder vote or consent required pursuant to Parent’s organizational documents; provided, however provided that Parent shall not terminate the Equity Commitment Letter use reasonable best efforts to promptly obtain any required approvals from any Governmental Authority or the obligations under Section 2 of this Agreement any stockholder vote or consent required pursuant to this Section 4.3(a) without first obtaining alternative financing arrangements Parent’s organizational documents and if such Nonvoting Parent Common Stock is not distributed to Investor within 90 days following the distribution of Voting Securities in respect of Parent Common Stock to which provide the distribution of Nonvoting Parent with funds Common Stock relates then Parent shall promptly distribute to Investor cash in an amount equal to the Rollover Amount; provided value of the Voting Securities Investor would have received if Investor had received a distribution of Voting Securities, with such value based on the market close price of Parent Common Stock on the date other investors received the distribution of such Voting Securities).
(d) If at any time the Investor reasonably determines in good faith, after consultation with Parent and its outside counsel, that such alternative financing arrangements (i) provide the Investor’s ownership of Parent with sufficient funds, when added to Common Stock has become illegal or in contravention of any order or judgment by a Governmental Authority or the proceeds of the Equity Financing, Debt Financing and other sources of readily available liquidity of Parent, Merger Sub, the Company and the Company’s Subsidiaries on the Closing Date, to fund the Required Amount and Non-Control Determination or (ii) do a Parent Control Effect has otherwise occurred, then, provided the Investor has complied with its obligations under this Section 1.8, if, despite the Investor’s compliance with its obligations set forth in this Section 1.8, such illegality, contravention or Parent Control Effect cannot impose new be cured, Parent and the Investor shall cooperate in good faith to take such actions as are mutually agreeable to cure such illegality, contravention or additional conditions to Parent Control Effect in a manner that best preserves the receipt of such financing relative to parties’ economic expectations under this Agreement and the Commitment Letters that could impair or delay other Transaction Documents, and without limiting the Closing. Parent shall promptly provide the Company with a copy of any definitive commitment letter or other documentation providing for such alternative financing arrangement. Notwithstanding anything to the contrary herein, the Stockholder may designate any Regulatory Disclosures that contain sensitive, legally privileged, or confidential information in respect generality of the Stockholder or any of its Affiliates as exclusive foregoing, if reasonably required in order to the Stockholder and the Stockholder may provide that any such sensitive, legally privileged, or confidential information may only be provided on a counsel-only basis or directly to the applicable Governmental Authority requesting such information. The Stockholder shall not make any filings, or notifications in connection with the Merger pursuant to any Antitrust Laws without Parent’s prior written consent (not to be unreasonably withheld, delayed or conditioned). Parent or the Company shall not file any Regulatory Filings that contain information with respect to the Stockholder or its affiliates without first providing the Stockholder and its counsel a reasonable opportunity to review and comment thereon, and will give good faith consideration to all reasonable additions, deletions or changes suggested by the Stockholder and its counsel.
(b) Each Stockholder hereto represent, warrant and covenant to Parent and to the Company that, to such Stockholder’s knowledge: cure either clause (i) none of the information supplied in writing by such Stockholder specifically for inclusion or incorporation by reference in the Regulatory Disclosures will contain a material misstatement of fact or a material omission of fact necessary to make the information provided not misleading and (ii) it does not permit any entity under above, the “control” (defined Investor shall be entitled to effect a Transfer of the portion of its shares of Parent Common Stock to the extent necessary to cure such illegality, contravention or Parent Control Effect, without compliance with the transfer restrictions in Section 721 of the Defense Production Act2.1, as amended, including all implanting regulations thereofother than Section 2.1(d)(iii) of a People’s Republic of China national, or any entity under the control of a Russian Federation national, to obtain through any Affiliate, control with respect to the Companyand Section 2.1(h).
Appears in 2 contracts
Samples: Investor Rights Agreement (Valley National Bancorp), Merger Agreement (Valley National Bancorp)
Regulatory Matters. (a) Subject to Section 4.4, the Stockholder shalli. The Offering Statement has become qualified, and shall use their reasonable best efforts the Company will file the Final Offering Circular, subject to cause their Affiliates to, use their reasonable best efforts, consistent with the time frames set forth in Section 6.4 prior approval of the Merger AgreementSelling Agent, pursuant to supply Rule 253 of Regulation A, within the prescribed time period and will provide information thata copy of such filing to the Selling Agent promptly following such filing.
ii. The Company will not, during such period as the Final Offering Circular would be required by law to such Stockholder’s knowledge, is complete and accurate in all material respects to any Governmental Authority requesting such information be delivered in connection with filings sales of the Shares in the Offering (whether physically or notifications underthrough compliance with Rules 251 and 254 under the Securities Act or any similar rule(s)), file any amendment or supplement to the Offering Statement or the Final Offering Circular unless a copy thereof shall first have been submitted to the Selling Agent within a reasonable period of time prior to the filing thereof and the Selling Agent shall not have reasonably objected thereto in good faith.
iii. The Company will notify the Selling Agent promptly, and will, if requested, confirm such notification in writing: (1) when any amendment to the Offering Statement is filed; (2) of any request by the Commission for any amendments to the Offering Statement or any amendment or supplements to the Final Offering Circular or for additional information; (3) of the issuance by the Commission of any stop order preventing or suspending the qualification of the Offering Statement or the Final Offering Circular, or relating tothe initiation of any proceedings for that purpose or the threat thereof; (4) of becoming aware of the occurrence of any event that in the judgment of the Company makes any statement made in the Offering Statement, applicable laws that are required or advisable as a result ofthe Preliminary Offering Circular, or pursuant tothe Final Offering Circular untrue in any material respect or that requires the making of any changes in the Offering Statement, the Merger Agreement Preliminary Offering Circular, or the Final Offering Circular in order to make the statements therein, in light of the circumstances in which they are made, not misleading; and (5) of receipt by the related financings and transactions, including, without limitation, information required or requested to be provided Company of any notification with respect to any antitrust, financial suspension of the qualification or national security regulatory authorities exemption from registration of the Shares for offer and sale in connection with any approvals reasonably sought jurisdiction. If at any time the Commission shall issue any order suspending the qualification of the Offering Statement in connection with the consummation offering contemplated hereby or in connection with sales of the Merger (collectively, the “Regulatory Filings” and the, “Regulatory Disclosures”, respectively). If any Governmental Authority seeks Common Stock pursuant to prevent the consummation of the transactions contemplated market making activities by the Merger Agreement based on the HSR Act or any other Antitrust Laws or based on any other required approval, consent, notice or filing with a Governmental Authority and such actions by the Governmental Authority relate to the activities or investments of such Stockholder or its Affiliates (solely for purposes of this Section 4, an “Affiliate” of the Stockholder shall include any portfolio company in which such Stockholder or any of its Affiliates has made a debt or an equity investment), then if Parent in good faith reasonably determines that such actions by the Governmental Authority will not be resolved sufficiently in advance of the Termination Date, Parent may provide written notice of that determination to the Stockholder, and Parent may elect to terminate the obligations under Section 2 and Section 4.6 of this Agreement (in which case the Stockholder’s obligations under the Equity Commitment Letter shall also automatically terminate) and, in that context, the Stockholder shall be entitled to receive the Per Share Price under the Merger Agreement with respect to its shares of Common Stock; provided, however that Parent shall not terminate the Equity Commitment Letter or the obligations under Section 2 of this Agreement pursuant to this Section 4.3(a) without first obtaining alternative financing arrangements which provide Parent with funds in an amount equal to the Rollover Amount; provided that such alternative financing arrangements (i) provide Parent with sufficient funds, when added to the proceeds of the Equity Financing, Debt Financing and other sources of readily available liquidity of Parent, Merger SubSelling Agent, the Company will make every reasonable effort to obtain the withdrawal of any such order at the earliest possible moment. If the Company has omitted any information from the Offering Statement, it will use its best efforts to comply with the provisions of and make all requisite filings with the Commission pursuant to Regulation A, the Securities Act and the Company’s Subsidiaries on Rules and Regulations and to notify the Closing Date, to fund Selling Agent promptly of all such filings.
iv. If at any time following the Required Amount and (ii) do not impose new or additional conditions to the receipt of such financing relative to the Commitment Letters that could impair or delay the Closing. Parent shall promptly provide the Company with a copy distribution of any definitive commitment letter Testing-the-Waters Communication there occurred or other documentation providing for occurs an event or development as a result of which such alternative financing arrangement. Notwithstanding anything to the contrary herein, the Stockholder may designate any Regulatory Disclosures that contain sensitive, legally privileged, Testing-the-Waters Communication included or confidential information in respect would include an untrue statement of the Stockholder or any of its Affiliates as exclusive to the Stockholder and the Stockholder may provide that any such sensitive, legally privileged, or confidential information may only be provided on a counsel-only basis or directly to the applicable Governmental Authority requesting such information. The Stockholder shall not make any filings, or notifications in connection with the Merger pursuant to any Antitrust Laws without Parent’s prior written consent (not to be unreasonably withheld, delayed or conditioned). Parent or the Company shall not file any Regulatory Filings that contain information with respect to the Stockholder or its affiliates without first providing the Stockholder and its counsel a reasonable opportunity to review and comment thereon, and will give good faith consideration to all reasonable additions, deletions or changes suggested by the Stockholder and its counsel.
(b) Each Stockholder hereto represent, warrant and covenant to Parent and to the Company that, to such Stockholder’s knowledge: (i) none of the information supplied in writing by such Stockholder specifically for inclusion or incorporation by reference in the Regulatory Disclosures will contain a material misstatement of fact or omitted or would omit to state a material omission of fact necessary in order to make the information provided not misleading and (ii) it does not permit any entity under statements therein, in the “control” (defined in Section 721 light of the Defense Production Actcircumstances existing at that subsequent time, as amendednot misleading, including all implanting regulations thereof) of a People’s Republic of China nationalthe Company has or will promptly notify the Selling Agent in writing and has or will promptly amend or supplement, at its own expense, such Testing-the-Waters Communication to eliminate or correct such untrue statement or omission.
v. The Company will not at any time, directly or indirectly, take any action intended, or any entity under the control of a Russian Federation nationalwhich might reasonably be expected, to obtain through cause or result in, or which will constitute, stabilization of the price of the Shares to facilitate the sale or resale of any Affiliateof the Shares.
vi. On or before the Closing Date of this Agreement, control with respect the Selling Agent shall have received clearance from FINRA as to the Companyamount of compensation allowable or payable to the Selling Agent as described in the Offering Statement.
Appears in 2 contracts
Samples: Selling Agent Agreement, Selling Agent Agreement (Neurmedix, Inc.)
Regulatory Matters. (a) Subject to Section 4.4, the Stockholder shall, The parties hereto shall cooperate with each other and shall use their all reasonable best efforts to promptly prepare and file following the date of this Agreement all necessary documentation (including assisting each party's stockholders with filing notifications required to be filed by any such stockholder under the HSR Act in connection with the Merger), to effect all applications, notices, petitions and filings, and to obtain as promptly as practicable all permits, consents, approvals and authorizations of all third parties and Governmental Entities which are necessary or advisable to consummate the transactions contemplated by this Agreement (including filing the notification provided for under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the "HSR Act")) in connection with the Merger, and taking all necessary action to provide all information requested by a Governmental Entity and to cause the expiration of the notice periods under the HSR Act with respect to the Merger as promptly as reasonably practicable after the date of this Agreement; provided, however, that nothing in this Section 7.1(a) shall require iPCS or the Company to agree to the imposition of material conditions or any requirement of divestiture of a material asset as a result of antitrust or other regulatory concerns. The Company and iPCS 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 relating to the exchange of information, all the information relating to the Company or iPCS, as the case may be, and any of their Affiliates respective Subsidiaries, which appears in any filing made with, or written materials submitted to, any third party or any Governmental Entity in connection with the transactions contemplated by this Agreement, except for documents filed pursuant to Item 4(c) of the Pre-Merger Notification and Report Form filed under the HSR Act or communications regarding the same or documents or information submitted in response to any request for additional information or documents pursuant to the HSR Act which reveal iPCS' or the Company's negotiating objectives or strategies or purchase price expectations or as otherwise may be prohibited by law or contractual obligation or would contravene existing attorney-client privilege. In exercising the foregoing right, each of the parties hereto shall act reasonably and as promptly as practicable. The parties hereto agree that they will consult with each other with respect to the obtaining of all permits, consents, approvals and authorizations of all third parties and Governmental Entities necessary or advisable to consummate the transactions contemplated by this Agreement and each party will keep the other apprised of the status of matters relating to completion of the notifications, applications or transactions contemplated herein. In the event that either party shall fail to obtain any third party consent described above, such party shall use their its reasonable best efforts, consistent and shall take any such actions reasonably requested by the other party hereto, to minimize any adverse effect upon iPCS and its Subsidiaries and their respective businesses after the Effective Time which results or could reasonably be expected to result from, the failure to obtain such consent.
(b) Promptly after the date hereof, the Company and iPCS shall prepare and file with the time frames set forth in Section 6.4 FCC an application requesting its approval of the Merger Agreement, change of control of the Company License to supply iPCS (the "Approval Application"). The Company and provide information that, to such Stockholder’s knowledge, is complete and accurate iPCS thereafter shall diligently take or cooperate in the taking of all material respects to any Governmental Authority requesting such information in connection with filings or notifications under, or relating to, applicable laws steps that are required necessary or appropriate to prosecute the Approval Application and to obtain the grant of the Approval Application as expeditiously as reasonably practicable. The parties agree to consult with one another as to the approach to be taken with the FCC with respect to obtaining any necessary consent or authority to the transactions contemplated hereby, and each of the parties shall keep the other party reasonably informed as to the status of any such communications with the FCC.
(c) Each of iPCS and the Company shall, upon request, furnish the other with all information concerning themselves, their Subsidiaries, directors, officers and stockholders and such other matters as may be reasonably necessary or advisable as a result of, or pursuant to, the Merger Agreement and the related financings and transactions, including, without limitation, information required or requested to be provided to any antitrust, financial or national security regulatory authorities in connection with any approvals reasonably sought in connection with the consummation of the Merger (collectivelystatement, the “Regulatory Filings” and the, “Regulatory Disclosures”, respectively). If any Governmental Authority seeks to prevent the consummation of the transactions contemplated by the Merger Agreement based on the HSR Act or any other Antitrust Laws or based on any other required approval, consentfiling, notice or filing with a Governmental Authority and such actions application made by or on behalf of iPCS, the Governmental Authority relate to the activities or investments of such Stockholder or its Affiliates (solely for purposes of this Section 4, an “Affiliate” of the Stockholder shall include any portfolio company in which such Stockholder Company or any of its Affiliates has made a debt or an equity investment), then if Parent in good faith reasonably determines that such actions by the their respective Subsidiaries to any Governmental Authority will not be resolved sufficiently in advance of the Termination Date, Parent may provide written notice of that determination to the Stockholder, and Parent may elect to terminate the obligations under Section 2 and Section 4.6 of this Agreement (in which case the Stockholder’s obligations under the Equity Commitment Letter shall also automatically terminate) and, in that context, the Stockholder shall be entitled to receive the Per Share Price under the Merger Agreement with respect to its shares of Common Stock; provided, however that Parent shall not terminate the Equity Commitment Letter or the obligations under Section 2 of this Agreement pursuant to this Section 4.3(a) without first obtaining alternative financing arrangements which provide Parent with funds in an amount equal to the Rollover Amount; provided that such alternative financing arrangements (i) provide Parent with sufficient funds, when added to the proceeds of the Equity Financing, Debt Financing and other sources of readily available liquidity of Parent, Merger Sub, the Company and the Company’s Subsidiaries on the Closing Date, to fund the Required Amount and (ii) do not impose new or additional conditions to the receipt of such financing relative to the Commitment Letters that could impair or delay the Closing. Parent shall promptly provide the Company with a copy of any definitive commitment letter or other documentation providing for such alternative financing arrangement. Notwithstanding anything to the contrary herein, the Stockholder may designate any Regulatory Disclosures that contain sensitive, legally privileged, or confidential information in respect of the Stockholder or any of its Affiliates as exclusive to the Stockholder and the Stockholder may provide that any such sensitive, legally privileged, or confidential information may only be provided on a counsel-only basis or directly to the applicable Governmental Authority requesting such information. The Stockholder shall not make any filings, or notifications Entity in connection with the Merger pursuant and the other transactions contemplated by this Agreement except as may be prohibited by Section 7.1(a), law or contractual obligation or would contravene existing attorney-client privilege.
(d) If at any time prior to the Effective Time any Antitrust Laws without Parent’s prior written consent (not information relating to be unreasonably withheldiPCS or the Company, delayed or conditioned). Parent any of their respective Affiliates, officers or directors is discovered by iPCS or the Company shall not file which should be set forth in an amendment or supplement to any Regulatory Filings that contain information with respect to the Stockholder statement, filing, notice or its affiliates without first providing the Stockholder and its counsel a reasonable opportunity to review and comment thereonapplication made by or on behalf of iPCS, and will give good faith consideration to all reasonable additions, deletions or changes suggested by the Stockholder and its counsel.
(b) Each Stockholder hereto represent, warrant and covenant to Parent and to the Company thator any of their Subsidiaries to any Governmental Entity in connection with the Merger and the other transactions contemplated by this Agreement, to so that any of such Stockholder’s knowledge: (i) none documents would not include any misstatement of the information supplied in writing by such Stockholder specifically for inclusion or incorporation by reference in the Regulatory Disclosures will contain a material misstatement of fact or a would omit to state any material omission of fact required to be stated therein or necessary to make the information provided not misleading and (ii) it does not permit any entity under the “control” (defined statements therein, in Section 721 light of the Defense Production Actcircumstances under which they were made, not misleading, the party which discovers such information shall promptly notify the other parties to this Agreement and an appropriate amendment or supplement describing such information shall be filed as soon as practicable with such Governmental Entity.
(e) Each of iPCS and the Company shall promptly furnish each other with true and correct copies of written communications received by iPCS or the Company, as amended, including all implanting regulations thereof) of a People’s Republic of China nationalthe case may be, or any entity of their respective Subsidiaries or Affiliates from, or delivered by any of the foregoing to, any Governmental Entity in respect of the transactions contemplated hereby, except for documents filed pursuant to Item 4(c) of the Pre-Merger Notification and Report Form filed under the control of a Russian Federation national, HSR Act or communications regarding the same or documents or information submitted in response to obtain through any Affiliate, control with respect request for additional information or documents pursuant to the HSR Act which reveal iPCS' or the Company's negotiating objectives or strategies or purchase price expectations or as otherwise may be prohibited by law or contractual obligation or would contravene existing attorney-client privilege.
Appears in 2 contracts
Samples: Merger Agreement (Ipcs Inc), Merger Agreement (Horizon PCS Inc)
Regulatory Matters. (a) Subject R-Pharm shall be responsible for preparing and filing INDs, Registration Applications and other regulatory filings for the Product in each country in the Territory through and including Registration, and thereafter shall be responsible for maintaining such Registrations. If data originating from Scynexis is used in any regulatory filing, R-Pharm shall inform Scynexis of such use. All such filings shall be in R-Pharm’ name. R-Pharm shall also obtain any export approvals required by the Regulatory Authorities to export Product among the countries of the Territory;
(b) R-Pharm or, where required by applicable law, its designees(s) shall own all INDs, Registration Applications, Registrations and other regulatory filings for the Product in each country in the Territory; [*] = Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.
(c) In order to assist R-Pharm in the performance of its obligations under this Section 4.44.5, Scynexis shall provide R-Pharm or its designee(s), via access to an electronic data room with the Stockholder shallrights to download, save and print all the documents, with complete copies (or copies of relevant portions) of, and shall use their reasonable best efforts grant R-Pharm or its designee(s) the right to cause their Affiliates tocross-reference, use their reasonable best effortsall of Scynexis’ and its Strategic Partners’ (to the extent Scynexis has the right to provide such information to R-Pharm) INDs, consistent registration applications, registrations or other regulatory filings made or held in any country for all products that contain the Compound as an active ingredient. Scynexis shall execute, acknowledge and deliver such further instruments, and shall do all such other acts, reasonably promptly after R-Pharm’s request therefor, that may be necessary or appropriate to effectuate such right; and
(d) R-Pharm shall provide Scynexis with complete copies (or copies of relevant portions) of, and shall grant Scynexis the right to cross reference any INDs, Registration Applications, Registrations or other related data or regulatory filings made or held in each country in the Territory in the name of R-Pharm (or that of its Affiliates), reasonably necessary or useful to enable Scynexis to market products either within the Territory and outside the Field, or outside the Territory. R-Pharm shall execute, acknowledge and deliver such further [*] = Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the time frames set forth in Section 6.4 Securities and Exchange Commission pursuant to Rule 406 of the Merger AgreementSecurities Act of 1933, as amended. instruments, and shall do all such other acts, all as promptly as possible after Scynexis’ request therefor, that may be necessary or appropriate to supply effectuate such right in each such country. R-Pharm shall also provide such copies and provide information that, such right to such Stockholder’s knowledge, is complete and accurate in all material respects cross reference to any Governmental Authority requesting Strategic Partner that grants R-Pharm or its designee(s) the right to cross reference such information Strategic Partner’s INDs, registration application or other regulatory filings made or held in connection with filings or notifications under, or relating to, applicable laws any country for products that are required or advisable contain the Compound as a result of, or pursuant to, the Merger Agreement and the related financings and transactions, including, without limitation, information required or requested to be provided to any antitrust, financial or national security regulatory authorities in connection with any approvals reasonably sought in connection with the consummation of the Merger (collectively, the “Regulatory Filings” and the, “Regulatory Disclosures”, respectively)an active ingredient. If such data is used in any Governmental Authority seeks to prevent the consummation regulatory filing, Scynexis shall inform R-Pharm of the transactions contemplated by the Merger Agreement based on the HSR Act or any other Antitrust Laws or based on any other required approval, consent, notice or filing with a Governmental Authority and such actions by the Governmental Authority relate use.
(e) R-Pharm shall keep Scynexis informed as to the activities or investments status of such Stockholder or its Affiliates (solely for purposes of this Section 4, an “Affiliate” of the Stockholder shall include any portfolio company in which such Stockholder or any of its Affiliates has all regulatory filings made a debt or an equity investment), then if Parent in good faith reasonably determines that such actions by the Governmental Authority will not be resolved sufficiently in advance of the Termination Date, Parent may provide written notice of that determination to the Stockholder, and Parent may elect to terminate the obligations under Section 2 and Section 4.6 of this Agreement (in which case the Stockholder’s obligations under the Equity Commitment Letter shall also automatically terminate) and, in that context, the Stockholder shall be entitled to receive the Per Share Price under the Merger Agreement with respect to its shares of Common Stock; provided, however that Parent shall not terminate the Equity Commitment Letter or the obligations under Section 2 of this Agreement pursuant to this Section 4.3(a) without first obtaining alternative financing arrangements which provide Parent 4.5, shall permit Scynexis to review any revisions to any filings or communications with funds Regulatory Authorities during their preparation and shall confer with Scynexis regarding the preparation of such filings, communications with Regulatory Authorities and other matters pertaining to or affecting the registration process. [*] = Certain confidential information contained in an amount equal this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to the Rollover Amount; provided that such alternative financing arrangements (i) provide Parent with sufficient funds, when added to the proceeds Rule 406 of the Equity FinancingSecurities Act of 1933, Debt Financing and other sources of readily available liquidity of Parent, Merger Sub, the Company and the Company’s Subsidiaries on the Closing Date, to fund the Required Amount and (ii) do not impose new or additional conditions to the receipt of such financing relative to the Commitment Letters that could impair or delay the Closing. Parent shall promptly provide the Company with a copy of any definitive commitment letter or other documentation providing for such alternative financing arrangement. Notwithstanding anything to the contrary herein, the Stockholder may designate any Regulatory Disclosures that contain sensitive, legally privileged, or confidential information in respect of the Stockholder or any of its Affiliates as exclusive to the Stockholder and the Stockholder may provide that any such sensitive, legally privileged, or confidential information may only be provided on a counsel-only basis or directly to the applicable Governmental Authority requesting such information. The Stockholder shall not make any filings, or notifications in connection with the Merger pursuant to any Antitrust Laws without Parent’s prior written consent (not to be unreasonably withheld, delayed or conditioned). Parent or the Company shall not file any Regulatory Filings that contain information with respect to the Stockholder or its affiliates without first providing the Stockholder and its counsel a reasonable opportunity to review and comment thereon, and will give good faith consideration to all reasonable additions, deletions or changes suggested by the Stockholder and its counselamended.
(bf) Each Stockholder hereto representIn connection with any IND or Registration Application filed by R-Pharm pursuant to this Section 4.5, warrant and covenant R-Pharm shall notify Scynexis as soon as reasonably possible of any meeting with the Regulatory Authority in any country in the Territory scheduled by R-Pharm (which notification shall describe the subject matter of any such meeting), shall permit Scynexis to Parent and assist R-Pharm in the preparation for any such meeting, shall permit Scynexis to the Company thataccompany R-Pharm to any such meeting and, if Scynexis does not attend, shall promptly report to such Stockholder’s knowledge: (i) none of the information supplied Scynexis in writing by the minutes of any such Stockholder specifically for inclusion or incorporation by reference in the Regulatory Disclosures will contain a material misstatement of fact or a material omission of fact necessary to make the information provided not misleading and (ii) it does not permit any entity under the “control” (defined in Section 721 of the Defense Production Act, as amended, including all implanting regulations thereof) of a People’s Republic of China national, or any entity under the control of a Russian Federation national, to obtain through any Affiliate, control with respect to the Companymeeting. .
Appears in 2 contracts
Samples: Development, License and Supply Agreement, Development, License and Supply Agreement (Scynexis Inc)
Regulatory Matters. (a) Subject Notwithstanding anything to Section 4.4the contrary herein or in the Security Documents, the Stockholder shall, Agents and shall use their reasonable best efforts the Lenders hereby agree that they will not take action pursuant to cause their Affiliates to, use their reasonable best efforts, consistent the Security Documents with the time frames set forth in Section 6.4 of the Merger Agreement, to supply and provide information that, to such Stockholder’s knowledge, is complete and accurate in all material respects respect to any item of Collateral associated with or related to any Communications License (i) to the extent such action is not permitted by the FCC or other Governmental Authority requesting such information or any other applicable laws, rules or regulations; or (ii) that would constitute or result in connection with filings an assignment or notifications under, or relating to, applicable laws that are required or advisable as a result of, or pursuant to, the Merger Agreement and the related financings and transactions, change of control of a Communications License (including, without limitation, information required an assignment or requested transfer of control (as those terms are defined by the Communications Act of 1934, as amended, or by the laws of any other Governmental Authority or in the rules or regulations of the FCC)) now held by or to be provided to any antitrust, financial or national security regulatory authorities in connection with any approvals reasonably sought in connection with the consummation of the Merger (collectively, the “Regulatory Filings” and the, “Regulatory Disclosures”, respectively). If any Governmental Authority seeks to prevent the consummation of the transactions contemplated by the Merger Agreement based on the HSR Act or any other Antitrust Laws or based on any other required approval, consent, notice or filing with a Governmental Authority and such actions by the Governmental Authority relate issued to the activities or investments of such Stockholder or its Affiliates (solely for purposes of this Section 4, an “Affiliate” of the Stockholder shall include any portfolio company in which such Stockholder Borrower or any of its Affiliates has made a debt Subsidiaries, or an equity investment)that otherwise would require prior notice to or approval from the FCC or other Governmental Authority, then if Parent without first providing such notice or obtaining such prior approval. The Borrower agrees to take any action which the Administrative Agent may reasonably request consistent with and subject to and in good faith reasonably determines that such actions by accordance with applicable law in order to obtain from the FCC or any other relevant Governmental Authority will not such approval as may be resolved sufficiently in advance of necessary to enable the Termination Date, Parent may provide written notice of that determination Lenders to exercise the full rights and benefits granted to the Stockholder, and Parent may elect to terminate the obligations under Section 2 and Section 4.6 of this Agreement (in which case the Stockholder’s obligations under the Equity Commitment Letter shall also automatically terminate) and, in that context, the Stockholder shall be entitled to receive the Per Share Price under the Merger Agreement with respect to its shares of Common Stock; provided, however that Parent shall not terminate the Equity Commitment Letter or the obligations under Section 2 of this Agreement Lenders pursuant to this Section 4.3(a) Agreement, including the use of the Borrower’s commercially reasonable efforts to assist in obtaining the approval of the FCC or any other relevant Governmental Authority for any action or transaction contemplated by the Security Documents for which such approval is required by law and specifically, without first obtaining alternative financing arrangements which provide Parent limitation, upon request at any time after the occurrence and during the continuance of an Event of Default, to prepare, sign and file with funds in an amount equal the FCC or any other relevant Governmental Authority the assignor’s or transferor’s and licensee’s portions of any application or applications for consent to the Rollover Amountassignment or transfer of control of any Communications License that may be necessary or appropriate under the rules of the FCC or such other Governmental Authority for approval of any sale or transfer of control of the Collateral pursuant to the exercise of the Lenders’ rights and remedies under the Security Documents; provided that Borrower’s failure to obtain any such alternative financing arrangements (i) provide Parent with sufficient fundsapproval shall not constitute a Default or Event of Default. The Borrower further consents, when added subject to obtaining any necessary approvals, to the proceeds assignment or transfer of control of any Communications License to operate to a receiver, trustee, or similar official or to any purchaser of the Equity Financing, Debt Financing and other sources of readily available liquidity of Parent, Merger Sub, the Company and the Company’s Subsidiaries on the Closing Date, to fund the Required Amount and (ii) do not impose new or additional conditions to the receipt of such financing relative to the Commitment Letters that could impair or delay the Closing. Parent shall promptly provide the Company with a copy of any definitive commitment letter or other documentation providing for such alternative financing arrangement. Notwithstanding anything to the contrary herein, the Stockholder may designate any Regulatory Disclosures that contain sensitive, legally privileged, or confidential information in respect of the Stockholder or any of its Affiliates as exclusive to the Stockholder and the Stockholder may provide that any such sensitive, legally privileged, or confidential information may only be provided on a counsel-only basis or directly to the applicable Governmental Authority requesting such information. The Stockholder shall not make any filings, or notifications in connection with the Merger Collateral pursuant to any Antitrust Laws without Parent’s prior written consent (not to be unreasonably withheldTable of Contents public or private sale, delayed judicial sale, foreclosure, or conditioned). Parent or the Company shall not file any Regulatory Filings that contain information with respect exercise of other remedies available to the Stockholder or its affiliates without first providing the Stockholder and its counsel a reasonable opportunity to review and comment thereon, and will give good faith consideration to all reasonable additions, deletions or changes suggested Lenders as permitted by the Stockholder and its counselapplicable law.
(b) Each Stockholder hereto represent, warrant and covenant to Parent and to the Company that, to such Stockholder’s knowledge: (i) none of the information supplied in writing by such Stockholder specifically for inclusion or incorporation by reference in the Regulatory Disclosures will contain a material misstatement of fact or a material omission of fact necessary to make the information provided not misleading and (ii) it does not permit any entity under the “control” (defined in Section 721 of the Defense Production Act, as amended, including all implanting regulations thereof) of a People’s Republic of China national, or any entity under the control of a Russian Federation national, to obtain through any Affiliate, control with respect to the Company.
Appears in 2 contracts
Samples: Credit Agreement (Hughes Communications, Inc.), Credit Agreement (Hughes Network Systems, LLC)
Regulatory Matters. (a) Subject to Section 4.4, the Stockholder Each Sponsor shall, and shall cause its Affiliates to, (a) make or assist the Buyer and the Buyer Subsidiary in making, as applicable, all filings and notifications with Governmental Bodies and (b) use their its reasonable best efforts to obtain or assist the Buyer and the Buyer Subsidiary in obtaining, as applicable, all necessary consents, authorizations and approvals of any Governmental Body that, in each case of clause (a) or (b) above, are necessary to consummate the transactions to be effected pursuant to the Stock Purchase Agreement or Purchase Agreement. Without limiting the generality of the foregoing, each Sponsor shall, and shall cause their its Affiliates to, use their reasonable best efforts, consistent with the time frames set forth in Section 6.4 of the Merger Agreement, to (i) supply and provide all information that, to such Stockholder’s knowledge, is complete and (which information shall be accurate in all material respects respects) to any Governmental Authority requesting such information in connection with filings the other Sponsors or notifications underthe Buyer, or relating toas applicable, applicable laws that are is reasonably required or advisable as a result of, or pursuant to, the Merger Agreement and the related financings and transactions, including, without limitation, information required or requested to be provided to any antitrust, financial or national security regulatory authorities in connection with any approvals reasonably sought such filings or notifications or in connection with obtaining any such consents, authorizations or approvals and (ii) cooperate with the consummation other Sponsor and the Buyer in responding to any action taken by any Governmental Body in connection with or in response to any such filings or notifications or any such consents, authorizations and approvals. In connection with and without limiting the foregoing, each Sponsor shall, and shall cause its Affiliates to, take promptly any and all steps necessary to avoid or eliminate each and every impediment under any Regulatory Laws that may be asserted by any federal, state and local and non-United States antitrust or competition authority, so as to enable the parties to the Purchase Agreement to effect the Closing and the PIPE Closing as expeditiously as possible; provided that ECP shall not be required to effect or commit to effect, by consent decree, hold separate orders, trust or otherwise (A) the sale or disposition of any of the Merger assets or businesses of ECP or its Affiliates or (collectively, the “Regulatory Filings” and the, “Regulatory Disclosures”, respectively). If any Governmental Authority seeks to prevent the consummation of the transactions contemplated by the Merger Agreement based on the HSR Act or B) any other Antitrust Laws restriction, limitation or based encumbrance on any other required approval, consent, notice businesses or filing with a Governmental Authority and such actions by the Governmental Authority relate to the activities or investments assets of such Stockholder ECP or its Affiliates (solely for purposes and in no event shall ECP be deemed to be a Defaulting Sponsor by failing to effect, or failing to commit to effect, any such action contemplated by clause (A) or clause (B) above). To the extent that any consent decree, hold separate orders, holding in trust of this Section 4, an “Affiliate” any of the Stockholder shall include any portfolio company in which such Stockholder assets or business or any other restriction, limitation or encumbrance on any businesses or assets other than any sale or disposition of its Affiliates has made a debt any businesses or an equity investment)assets of any Person (collectively, then if Parent in good faith reasonably determines that such actions by but expressly excluding any sale or disposition of any businesses or assets of any Person, the Governmental Authority will not be resolved sufficiently in advance of “Mitigation Actions”) is necessary to avoid or eliminate each and every impediment under any Regulatory Laws and is necessary to consummate the Termination Date, Parent may provide written notice of that determination to the Stockholder, and Parent may elect to terminate the obligations under Section 2 and Section 4.6 of this Agreement (in which case the Stockholder’s obligations Closing under the Equity Commitment Letter shall also automatically terminate) and, in that context, the Stockholder shall be entitled to receive the Per Share Price under the Merger Purchase Agreement with respect to its shares of Common Stock; provided, however that Parent shall not terminate the Equity Commitment Letter or the obligations under Section 2 of this Agreement pursuant to this Section 4.3(aPIPE Closing, DYN shall (1) without first obtaining alternative financing arrangements which provide Parent with funds in an amount equal to the Rollover Amount; provided that such alternative financing arrangements (i) provide Parent with sufficient funds, when added to the proceeds of the Equity Financing, Debt Financing and other sources of readily available liquidity of Parent, Merger Sub, the Company and the Company’s Subsidiaries on the Closing Date, to fund the Required Amount and (ii) do not impose new or additional conditions to the receipt of such financing relative to the Commitment Letters that could impair or delay the Closing. Parent shall promptly provide the Company with a copy of any definitive commitment letter or other documentation providing for such alternative financing arrangement. Notwithstanding anything to the contrary herein, the Stockholder may designate any Regulatory Disclosures that contain sensitive, legally privileged, or confidential information in respect of the Stockholder or any of its Affiliates as exclusive to the Stockholder and the Stockholder may provide that any such sensitive, legally privileged, or confidential information may only be provided on a counsel-only basis or directly propose to the applicable Governmental Authority requesting authority that such informationMitigation Actions be taken by the Company Group or by DYN and its Subsidiaries or both, (2) determine (which determination will be made by DYN in an economically rational manner and assuming that it indirectly owns all of the equity interests of the Company Group) which businesses or assets of the Company Group or DYN or its Subsidiaries, as applicable, will be subject to such Mitigation Actions and which Mitigation Actions will be taken (provided such Mitigation Actions avoid, mitigate or eliminate such impediments) and (3) cause the Company or it or any such DYN Subsidiary, as applicable, to take such Mitigation Action following the Closing under the Purchase Agreement. The Stockholder shall not make To the extent that sales or dispositions of assets or businesses of the Company Group are necessary to avoid or eliminate each and every impediment under any filings, or notifications in connection with Regulatory Laws and are necessary to consummate the Merger pursuant to any Antitrust Laws without Parent’s prior written consent (not to be unreasonably withheld, delayed or conditioned). Parent Closing under the Purchase Agreement or the Company PIPE Closing following the taking of the actions contemplated by the two preceding sentences, DYN shall not file any Regulatory Filings that contain information with respect (x) propose to the Stockholder applicable authority that sale or its affiliates without first providing dispositions of businesses or assets of the Stockholder and its counsel a reasonable opportunity to review and comment thereon, and will give good faith consideration to all reasonable additions, deletions or changes suggested Company Group be undertaken by the Stockholder Company Group, (y) determine (which determination will be made by DYN in an economically rational manner and its counsel.
(b) Each Stockholder hereto represent, warrant and covenant to Parent and to assuming that it indirectly owns all of the equity interests of the Company that, to such Stockholder’s knowledge: (iGroup) none which businesses or assets of the information supplied in writing by Company Group will be sold or disposed (provided such Stockholder specifically for inclusion sales or incorporation by reference in the Regulatory Disclosures will contain a material misstatement of fact dispositions avoid, mitigate or a material omission of fact necessary to make the information provided not misleading eliminate such impediments) and (iiz) it does not permit any entity cause the Company to undertake such sales or dispositions following the Closing under the “control” (defined in Section 721 of the Defense Production Act, as amended, including all implanting regulations thereof) of a People’s Republic of China national, or any entity under the control of a Russian Federation national, to obtain through any Affiliate, control with respect to the CompanyPurchase Agreement.
Appears in 2 contracts
Samples: Interim Sponsors Agreement (Dynegy Inc.), Interim Sponsors Agreement (Dynegy Inc.)
Regulatory Matters. (a) Subject to Section 4.4As of the date of this Agreement, the Stockholder shallshipment of crude petroleum on the Pipeline System from North Dakota origin points to the Mandan Refinery is subject to regulation by the State of North Dakota, and shall use their reasonable best efforts this Agreement is subject to cause their Affiliates tothe rules and regulations of the NDPSC. Accordingly, use their reasonable best efforts, consistent THPP has filed a Rate Tariff and a Rules tariff with the time frames set forth in Section 6.4 NDPSC that governs its intrastate shipments of crude petroleum. In the Merger Agreement, to supply and provide information that, to such Stockholder’s knowledge, is complete and accurate in all material respects to event that the NDPSC takes any Governmental Authority requesting such information in connection with filings or notifications under, or relating to, applicable laws that are required or advisable as a result of, or pursuant to, the Merger Agreement and the related financings and transactions, including, without limitation, information required or requested to be provided to any antitrust, financial or national security regulatory authorities in connection with any approvals reasonably sought in connection with the consummation of the Merger (collectively, the “Regulatory Filings” and the, “Regulatory Disclosures”, respectively). If any Governmental Authority seeks to prevent the consummation of the transactions contemplated by the Merger Agreement based on the HSR Act or any other Antitrust Laws or based on any other required approval, consent, notice or filing with a Governmental Authority and such actions by the Governmental Authority relate to the activities or investments of such Stockholder or its Affiliates (solely for purposes of this Section 4, an “Affiliate” of the Stockholder shall include any portfolio company in which such Stockholder or any of its Affiliates has made a debt or an equity investment), then if Parent in good faith reasonably determines that such actions by the Governmental Authority will not be resolved sufficiently in advance of the Termination Date, Parent may provide written notice of that determination to the Stockholder, and Parent may elect to terminate the obligations under Section 2 and Section 4.6 of this Agreement (in which case the Stockholder’s obligations under the Equity Commitment Letter shall also automatically terminate) and, in that context, the Stockholder shall be entitled to receive the Per Share Price under the Merger Agreement with respect to its shares of Common Stock; provided, however that Parent shall not terminate the Equity Commitment Letter or the obligations under Section 2 of this Agreement pursuant to this Section 4.3(a) without first obtaining alternative financing arrangements which provide Parent with funds in an amount equal to the Rollover Amount; provided that such alternative financing arrangements (i) provide Parent with sufficient funds, when added to the proceeds of the Equity Financing, Debt Financing and other sources of readily available liquidity of Parent, Merger Sub, the Company and the Company’s Subsidiaries on the Closing Date, to fund the Required Amount and (ii) do not impose new or additional conditions to the receipt of such financing relative to the Commitment Letters that could impair or delay the Closing. Parent shall promptly provide the Company with a copy of any definitive commitment letter or other documentation providing for such alternative financing arrangement. Notwithstanding anything to the contrary herein, the Stockholder may designate any Regulatory Disclosures that contain sensitive, legally privileged, or confidential information in respect of the Stockholder or any of its Affiliates as exclusive to the Stockholder and the Stockholder may provide that any such sensitive, legally privileged, or confidential information may only be provided on a counsel-only basis or directly to the applicable Governmental Authority requesting such information. The Stockholder shall not make any filings, or notifications in connection with the Merger pursuant to any Antitrust Laws without Parent’s prior written consent (not to be unreasonably withheld, delayed or conditioned). Parent or the Company shall not file any Regulatory Filings that contain information adverse action with respect to the Stockholder Rate Tariff or Rules Tariff currently on file or a Rate Tariff or Rules Tariff that THPP may file with it in the future, THPP shall diligently defend the Rate Tariff or Rules Tariff, including appealing any such adverse action. If any such adverse action is not stayed pending appeal, each Party’s obligations under this Agreement shall be suspended until a stay is implemented or a final, non-appealable decision is rendered with respect to such adverse action. If a final, non-appealable decision is ultimately issued by the NDPSC and confirmed by the North Dakota courts having final authority in the matter which requires THPP to amend the Rates Tariff or the Rules Tariff in a manner that is fundamentally contradictory to the provisions of this Agreement, then the Parties shall negotiate in good faith to amend this Agreement to comply with any such judgment but still retain the protections and structures reflected by its affiliates without first providing current terms to the Stockholder and its counsel maximum extent permissible under such judgment. In the event the Parties are unable to reach agreement with respect to such an amendment within a reasonable opportunity to review and comment thereonperiod of time after the issuance of such final judgment, and will give good faith consideration to all reasonable additionswhich shall not be less than thirty (30) days, deletions or changes suggested by the Stockholder and its counselthen either Party may terminate this Agreement.
(b) Each Stockholder hereto represent, warrant and covenant to Parent and to the Company that, to such Stockholder’s knowledgeTRMC hereby agrees: (i) none to take all such actions and do all such things as THPP shall reasonably request in connection with its applications for, and the processing of, any necessary certificates, approvals and authorizations of the information supplied in writing by such Stockholder specifically for inclusion or incorporation by reference in the Regulatory Disclosures will contain a material misstatement of fact or a material omission of fact necessary to make the information provided not misleading and Governmental Authorities; (ii) at all times to support the Committed Tariff Rate specified in this Agreement as a rate that it does has agreed to pay; (iii) not permit directly or indirectly take any entity under action that indicates a lack of support for the “control” Committed Tariff Rate at terms agreed to in this Agreement; (defined in Section 721 of iv) not to file any action, protest or complaint with the Defense Production Act, as amended, including all implanting regulations thereof) of a People’s Republic of China national, or any entity under the control of a Russian Federation national, to obtain through any Affiliate, control NDPSC with respect to the CompanyRules Tariff on file as of the date of this Agreement; and (v) not to file any complaint or other action at the FERC with respect to the THPP tariff currently on file with the FERC, including any increased rates based on the inflationary index referred to in Section 5(f) of this Agreement.
(c) THPP operates the Pipeline System as a common carrier, and TRMC’s rights as a shipper on the Pipeline System shall be subject to all Applicable Laws related to common carrier pipelines. The terms and provisions of the Rules Tariff and the Rate Tariff shall apply to the intrastate transportation services provided pursuant to this Agreement.
(d) Each Party, in carrying out the terms and provisions of this Agreement, shall comply with all present and future Applicable Laws of any Governmental Authority having jurisdiction.
Appears in 2 contracts
Samples: Transportation Services Agreement (Tesoro Logistics Lp), Transportation Services Agreement (Tesoro Logistics Lp)
Regulatory Matters. (ai) Subject There are no pending, or to Section 4.4the Knowledge of Seller, the Stockholder shall, and shall use their reasonable best efforts threatened disputes or controversies (including with respect to cause their Affiliates to, use their reasonable best efforts, consistent with the time frames set forth in Section 6.4 capital requirements) as of the Merger Agreement, to supply and provide information that, to such Stockholder’s knowledge, is complete and accurate in all material respects to any Governmental Authority requesting such information in connection with filings or notifications under, or relating to, applicable laws that are required or advisable as a result of, or pursuant to, the Merger Agreement and the related financings and transactions, including, without limitation, information required or requested to be provided to any antitrust, financial or national security regulatory authorities in connection with any approvals reasonably sought in connection with the consummation of the Merger (collectively, the “Regulatory Filings” and the, “Regulatory Disclosures”, respectively). If any Governmental Authority seeks to prevent the consummation of the transactions contemplated by the Merger Agreement based on the HSR Act or any other Antitrust Laws or based on any other required approval, consent, notice or filing with a Governmental Authority and such actions by the Governmental Authority relate to the activities or investments of such Stockholder or its Affiliates (solely for purposes of this Section 4, an “Affiliate” of the Stockholder shall include any portfolio company in which such Stockholder date hereof between Seller or any of its Affiliates has made a debt or an equity investment), then if Parent in good faith reasonably determines that such actions by the and any Governmental Authority will not (or any capital plan, supervisory agreement or order with any Governmental Authority entered into or binding upon Seller or any of its Affiliates) that (i) would reasonably be resolved sufficiently in advance of the Termination Date, Parent may provide written notice of that determination expected to the Stockholder, and Parent may elect prevent Seller from being able to terminate the perform its obligations under Section 2 and Section 4.6 this Agreement or (ii) would reasonably be expected to impair the validity or consummation of this Agreement or the transactions contemplated hereby. As of the date hereof, (x) Seller has not received any notice in which case the Stockholder’s obligations under the Equity Commitment Letter shall also automatically terminate) andwriting from any Governmental Authority indicating that such Governmental Authority would oppose or not timely grant or issue its consent or approval, in that contextif requested, the Stockholder shall be entitled to receive the Per Share Price under the Merger Agreement with respect to the transactions contemplated hereby, and (y) Seller has no reason to believe that, if requested, any Governmental Authority required to approve the transactions contemplated hereby would oppose or not grant or issue its shares of Common Stock; provided, however that Parent shall not terminate consent or approval.
(ii) Seller was rated at least satisfactory following its most recent CRA examination by the Equity Commitment Letter or the obligations under Section 2 of this Agreement pursuant to this Section 4.3(a) without first obtaining alternative financing arrangements which provide Parent with funds in an amount equal regulatory agency responsible for its supervision prior to the Rollover Amount; provided that such alternative financing arrangements date hereof. Neither Parent nor Seller has received any written notice prior to the date hereof of any planned or threatened objection by any banking community group to the transactions contemplated hereby.
(iii) As of the date hereof: (i) provide Parent with sufficient funds, when added Seller is and will be at least “well-capitalized” (as that term or any replacement term therefor is defined from time to the proceeds of the Equity Financing, Debt Financing and other sources of readily available liquidity of Parent, Merger Sub, the Company and the Companytime in regulations applicable to Seller’s Subsidiaries on the Closing Date, to fund the Required Amount capital); and (ii) do not impose new Seller meets all capital requirements, standards and ratios required by each state or additional conditions to the receipt of such financing relative to the Commitment Letters that could impair or delay the Closing. Parent shall promptly provide the Company federal bank regulator with a copy of any definitive commitment letter or other documentation providing for such alternative financing arrangement. Notwithstanding anything to the contrary hereinjurisdiction over Seller, the Stockholder may designate any Regulatory Disclosures that contain sensitive, legally privileged, or confidential information in respect of the Stockholder or any of its Affiliates as exclusive to the Stockholder and the Stockholder may provide that including any such sensitivehigher requirement, legally privileged, standard or confidential information may only be provided on a counsel-only basis ratio as applied to Seller by state or directly to the applicable Governmental Authority requesting such information. The Stockholder shall not make any filings, or notifications in connection with the Merger pursuant to any Antitrust Laws without Parent’s prior written consent (not to be unreasonably withheld, delayed or conditioned). Parent or the Company shall not file any Regulatory Filings that contain information with respect to the Stockholder or its affiliates without first providing the Stockholder and its counsel a reasonable opportunity to review and comment thereon, and will give good faith consideration to all reasonable additions, deletions or changes suggested by the Stockholder and its counselfederal bank regulator.
(b) Each Stockholder hereto represent, warrant and covenant to Parent and to the Company that, to such Stockholder’s knowledge: (i) none of the information supplied in writing by such Stockholder specifically for inclusion or incorporation by reference in the Regulatory Disclosures will contain a material misstatement of fact or a material omission of fact necessary to make the information provided not misleading and (ii) it does not permit any entity under the “control” (defined in Section 721 of the Defense Production Act, as amended, including all implanting regulations thereof) of a People’s Republic of China national, or any entity under the control of a Russian Federation national, to obtain through any Affiliate, control with respect to the Company.
Appears in 2 contracts
Samples: Sale and Purchase Agreement (Cabela's Master Credit Card Trust), Sale and Purchase Agreement (Cabelas Inc)
Regulatory Matters. (a) Subject Each of BHB and its Subsidiaries has timely filed all reports, registrations and statements, together with any amendments required to Section 4.4be made with respect thereto, the Stockholder shallthat it was required to file since December 31, 2012 with any Governmental Authority, and shall use their reasonable best efforts to cause their Affiliates tohas paid all fees and assessments due and payable in connection therewith. Except for normal examinations conducted by any Governmental Authority in the regular course of the business, use their reasonable best efforts, consistent with the time frames and except as set forth in Section 6.4 BHB Disclosure Schedule 4.12(a), no Governmental Authority has initiated any proceeding, or to the Knowledge of BHB, investigation into the Merger Agreementbusiness or operations of BHB and its Subsidiaries, to supply and provide information thatsince December 31, to such Stockholder’s knowledge2012. Other than as set forth in BHB Disclosure Schedule 4.12(a) there is no unresolved violation, is complete and accurate in all material respects to criticism, or exception by any Governmental Authority requesting such information in connection with filings or notifications under, or relating to, applicable laws that are required or advisable as a result of, or pursuant to, the Merger Agreement and the related financings and transactions, including, without limitation, information required or requested to be provided to any antitrust, financial or national security regulatory authorities in connection with any approvals reasonably sought in connection with the consummation of the Merger (collectively, the “Regulatory Filings” and the, “Regulatory Disclosures”, respectively). If any Governmental Authority seeks to prevent the consummation of the transactions contemplated by the Merger Agreement based on the HSR Act or any other Antitrust Laws or based on any other required approval, consent, notice or filing with a Governmental Authority and such actions by the Governmental Authority relate to the activities or investments of such Stockholder or its Affiliates (solely for purposes of this Section 4, an “Affiliate” of the Stockholder shall include any portfolio company in which such Stockholder or any of its Affiliates has made a debt or an equity investment), then if Parent in good faith reasonably determines that such actions by the Governmental Authority will not be resolved sufficiently in advance of the Termination Date, Parent may provide written notice of that determination to the Stockholder, and Parent may elect to terminate the obligations under Section 2 and Section 4.6 of this Agreement (in which case the Stockholder’s obligations under the Equity Commitment Letter shall also automatically terminate) and, in that context, the Stockholder shall be entitled to receive the Per Share Price under the Merger Agreement with respect to its shares of Common Stock; provided, however that Parent shall not terminate the Equity Commitment Letter any report or the obligations under Section 2 of this Agreement pursuant to this Section 4.3(a) without first obtaining alternative financing arrangements which provide Parent with funds in an amount equal to the Rollover Amount; provided that such alternative financing arrangements (i) provide Parent with sufficient funds, when added to the proceeds of the Equity Financing, Debt Financing and other sources of readily available liquidity of Parent, Merger Sub, the Company and the Company’s Subsidiaries on the Closing Date, to fund the Required Amount and (ii) do not impose new or additional conditions to the receipt of such financing relative to the Commitment Letters that could impair or delay the Closing. Parent shall promptly provide the Company with a copy of any definitive commitment letter or other documentation providing for such alternative financing arrangement. Notwithstanding anything to the contrary herein, the Stockholder may designate any Regulatory Disclosures that contain sensitive, legally privileged, or confidential information in respect of the Stockholder or any of its Affiliates as exclusive to the Stockholder and the Stockholder may provide that any such sensitive, legally privileged, or confidential information may only be provided on a counsel-only basis or directly to the applicable Governmental Authority requesting such information. The Stockholder shall not make any filings, or notifications in connection with the Merger pursuant statement relating to any Antitrust Laws without Parent’s prior written consent (not to be unreasonably withheld, delayed or conditioned)examinations of Bar Harbor Bank. Parent or the Company shall not file any Regulatory Filings that contain information with respect to the Stockholder or its affiliates without first providing the Stockholder Bar Harbor Bank is “well-capitalized” as defined in applicable laws and its counsel a reasonable opportunity to review and comment thereonregulations, and will give good faith consideration to all reasonable additions, deletions Bank has a Community Reinvestment Act rating of “satisfactory” or changes suggested by the Stockholder and its counselbetter.
(b) Each Stockholder hereto representBHB has timely filed with the SEC and NYSE all documents required by the Securities Act and the Exchange Act, warrant and covenant such documents, as the same may have been amended, complied, at the time filed with the SEC, in all material respects with the Securities Act and the Exchange Act.
(c) Other than as set forth in BHB Disclosure Schedule 4.12(c), neither BHB, nor any of its properties is a party to Parent and or is subject to any Regulatory Order from any Governmental Authority charged with the Company that, to such Stockholder’s knowledge: (i) none supervision or regulation of the information supplied in writing by such Stockholder specifically for inclusion financial institutions or incorporation by reference issuers of securities or engaged in the Regulatory Disclosures will contain a material misstatement insurance of fact deposits or a material omission the supervision or regulation of fact necessary to make the information provided it. BHB has not misleading and (ii) it does not permit any entity under the “control” (defined in Section 721 of the Defense Production Act, as amended, including all implanting regulations thereof) of a People’s Republic of China nationalbeen advised by, or has any entity under Knowledge of facts which could give rise to an advisory notice by, any Governmental Authority that such Governmental Authority is contemplating issuing or requesting (or is considering the control appropriateness of a Russian Federation national, to obtain through issuing or requesting) any Affiliate, control with respect to the CompanyRegulatory Order.
Appears in 2 contracts
Samples: Merger Agreement (Bar Harbor Bankshares), Merger Agreement (Lake Sunapee Bank Group)
Regulatory Matters. Without limiting the generality of the other undertakings pursuant to this Section 6.3, each of the Company (ain the case of Sections 6.3(g)(i), 6.3(g)(iii) Subject and 6.3(g)(iv)) and Parent Holdco (in all cases set forth below) agrees to Section 4.4take or cause to be taken the following actions, in each case subject to clause (iv) below:
(i) the Stockholder shallprompt provision to each and every federal, state, local or foreign court or Governmental Entity with jurisdiction over enforcement of any applicable antitrust or competition Laws (“Government Antitrust Entity”) of non-privileged information and documents requested by any Government Antitrust Entity or that are necessary, proper or advisable to permit consummation of the transactions contemplated by this Agreement;
(ii) Parent Holdco agrees to, and shall will cause each of its Subsidiaries and Affiliates to, use their its reasonable best efforts to cause their Affiliates toavoid the entry of any permanent, use their preliminary or temporary injunction or other order, decree, decision, determination or judgment that would delay, restrain, prevent, enjoin or otherwise prohibit consummation of the transactions contemplated by this Agreement, which reasonable best effortsefforts shall be deemed to include, consistent with the time frames set forth in Section 6.4 of the Merger Agreement, to supply and provide information that, to such Stockholder’s knowledge, is complete and accurate in all material respects to any Governmental Authority requesting such information in connection with filings or notifications under, or relating to, applicable laws that are required or advisable as a result of, or pursuant towithout limitation, the Merger Agreement and defense through litigation on the related financings and transactionsmerits of any claim asserted in any court, agency or other proceeding by any Person, including, without limitation, information required any Governmental Entity, seeking to delay, restrain, prevent, enjoin or requested to be provided to any antitrust, financial or national security regulatory authorities in connection with any approvals reasonably sought in connection with the otherwise prohibit consummation of the Merger (collectivelysuch transactions and, subject to Section 6.3(g)(iv), the “Regulatory Filings” proffer and theagreement by Parent Holdco of its willingness to sell, “Regulatory Disclosures”lease, respectively). If license or otherwise dispose of, or hold separate pending such disposition, and promptly to effect the sale, lease, license, disposal and holding separate of, such assets, rights, product lines, licenses, categories of assets or businesses or other operations, or interests therein, of the Company, Parent Holdco or any Governmental Authority seeks of their respective Subsidiaries (and the entry into agreements with, and submission to prevent orders of, the relevant Government Antitrust Entity giving effect thereto) if such action should be reasonably necessary or advisable to avoid, prevent, eliminate or remove the actual, anticipated or threatened (x) commencement of any proceeding in any forum or (y) issuance of any order, decree, decision, determination, judgment or Law that would delay, restrain, prevent, enjoin or otherwise prohibit consummation of the transactions contemplated by this Agreement by any Government Antitrust Entity (it being understood that, as it relates to the Merger Agreement based Company and its Subsidiaries, no such action will be binding on the HSR Act Company or its Subsidiaries without the Company’s prior written consent unless it is contingent upon the occurrence of the Closing);
(iii) to take, in the event that any other Antitrust Laws permanent, preliminary or based temporary injunction, decision, order, judgment, determination, decree or Law is entered, issued or enacted, or becomes reasonably foreseeable to be entered, issued or enacted, in any proceeding, review or inquiry of any kind, that would make consummation of the transactions contemplated by this Agreement in accordance with the terms of this Agreement unlawful or that would delay beyond the Outside Date (as defined below), restrain, prevent, enjoin or otherwise prohibit consummation of the transactions contemplated by this Agreement, any and all steps (including, without limitation, the appeal thereof, the posting of a bond or the taking of the steps contemplated by clause (ii) of this paragraph (g)) necessary to resist, vacate, modify, reverse, suspend, prevent, eliminate, avoid or remove such actual, anticipated or threatened injunction, decision, order, judgment, determination, decree or enactment so as to permit such consummation on any other required approval, consent, notice or filing with a Governmental Authority and such actions schedule as close as possible to that contemplated by the Governmental Authority relate this Agreement; and
(iv) notwithstanding anything to the activities contrary contained in this Agreement, including but not limited to Sections 6.3(g)(i)-(iii), Parent Holdco shall not be required to sell, lease, license or investments otherwise dispose of, or hold separate pending such disposition of, any assets, rights, product lines, licenses, categories of such Stockholder assets or its Affiliates (solely for purposes of this Section 4businesses or other operations, an “Affiliate” or interests therein, of the Stockholder shall include any portfolio company in which such Stockholder Company, Parent Holdco or any of its Affiliates has made a debt or an equity investment)their respective Subsidiaries, then if Parent in good faith reasonably determines that such actions by the Governmental Authority will not be resolved sufficiently in advance except any currently (as of the Termination Date, Parent may provide written notice date of that determination to the Stockholder, and Parent may elect to terminate the obligations under Section 2 and Section 4.6 execution of this Agreement (Agreement) marketed products of the Company that collectively generated gross revenues of no greater than $77,000,000 in which case the Stockholder’s obligations under the Equity Commitment Letter shall also automatically terminate) and2014 fiscal year; provided that, in that context, the Stockholder shall be entitled to receive the Per Share Price under the Merger Agreement connection with respect to its shares of Common Stock; provided, however that Parent shall not terminate the Equity Commitment Letter or the obligations under Section 2 of this Agreement any divestiture required pursuant to this Section 4.3(a6.3(g)(iv)) without first obtaining alternative financing arrangements which provide or that Parent with funds in an amount equal Holdco elects to the Rollover Amount; provided that such alternative financing arrangements (i) provide Parent with sufficient funds, when added to the proceeds of the Equity Financing, Debt Financing and other sources of readily available liquidity of Parent, Merger Sub, the Company and the Company’s Subsidiaries on the Closing Date, to fund the Required Amount and (ii) do not impose new or additional conditions to the receipt of such financing relative to the Commitment Letters that could impair or delay the Closing. Parent shall promptly provide the Company with a copy of any definitive commitment letter or other documentation providing for such alternative financing arrangement. Notwithstanding anything to the contrary herein, the Stockholder may designate any Regulatory Disclosures that contain sensitive, legally privileged, or confidential information in respect of the Stockholder or any of its Affiliates as exclusive to the Stockholder and the Stockholder may provide that any such sensitive, legally privileged, or confidential information may only be provided on a counsel-only basis or directly to the applicable Governmental Authority requesting such information. The Stockholder shall not make any filings, or notifications pursue in connection with the Merger pursuant transactions contemplated by this Agreement, the Company will provide all cooperation reasonably requested to any Antitrust Laws without Parentassist Parent Holdco in fulfilling Parent Holdco’s prior written consent obligations at Parent Holdco’s sole cost and expense, including (not a) making available its management team for meetings with prospective acquirers regarding the assets proposed to be unreasonably withhelddivested, delayed or conditioned). Parent or the Company shall not file any Regulatory Filings that contain information with respect to the Stockholder or its affiliates without first providing the Stockholder and its counsel a reasonable opportunity to review and comment thereon, and will give good faith consideration to all reasonable additions, deletions or changes suggested by the Stockholder and its counsel.
(b) Each Stockholder hereto representassisting Parent Holdco in its preparation of marketing materials and (c) otherwise assisting Parent Holdco in facilitating the transaction, warrant and covenant to Parent and to in each case where any such transaction would be contingent upon the Company that, to such Stockholder’s knowledge: (i) none occurrence of the information supplied in writing by such Stockholder specifically for inclusion or incorporation by reference in the Regulatory Disclosures will contain a material misstatement of fact or a material omission of fact necessary to make the information provided not misleading and (ii) it does not permit any entity under the “control” (defined in Section 721 of the Defense Production Act, as amended, including all implanting regulations thereof) of a People’s Republic of China national, or any entity under the control of a Russian Federation national, to obtain through any Affiliate, control with respect to the CompanyEffective Time.
Appears in 2 contracts
Samples: Merger Agreement (Dyax Corp), Merger Agreement (Shire PLC)
Regulatory Matters. (a) Subject to Section 4.4, The Seller Entities and the Stockholder shall, Buyer shall cooperate and shall use their all commercially reasonable best efforts to cause their Affiliates topromptly prepare and file all necessary documentation, use their reasonable best effortseffect all necessary applications, consistent with the time frames set forth in Section 6.4 notices, petitions and filings and obtain all necessary permits, consents, approvals and authorizations of the Merger Agreement, to supply and provide information that, to such Stockholder’s knowledge, is complete and accurate in all material respects to any Governmental Authority requesting such information in connection with filings or notifications under, or relating to, applicable laws that are required governmental authorities necessary or advisable as a result of, or pursuant to, the Merger Agreement and the related financings and transactionsto obtain all required statutory approvals, including, without limitation, information required those described in Section 3(b)(ii) of the Disclosure Schedule and pursuant to the HSR Act. In furtherance of the foregoing, the Seller Entities and the Buyer shall cooperate and use all commercially reasonable efforts to prepare and file any such applications, notices, petitions, filings and other documents no later than ten (10) business days from the date hereof or requested as soon thereafter as practicable and shall thereafter cooperate to diligently prosecute all such applications, notices, petitions, filings and other documents. Each Party shall, consistent with applicable law, before making any applications, notices, petitions or filings, provide a copy thereof to the other Parties for their review and shall consider incorporating the comments of any other Party in good faith. Without limiting the generality of the foregoing, the Buyer shall not take any action, directly or indirectly, that could reasonably be provided expected to cause any governmental authority to withhold or deny any permit, consent, approval or authorization set forth in Section 3(b)(ii) of the Disclosure Schedule. The Seller Entities and the Buyer shall (i) respond as promptly as practicable to any antitrustinquiries received from a governmental authority for additional information or documentation, financial and (ii) not extend any waiting period under the HSR Act or national security regulatory authorities in connection enter into any agreement with any approvals reasonably sought in connection a governmental authority not to consummate the transactions contemplated by this Agreement, except with the prior written consent of the other Parties hereto. The Buyer shall defend through litigation on the merits (including appeals) any claim asserted in any court or quasi-judicial or administrative agency of any federal, state, local, or foreign jurisdiction or before any arbitrator wherein an unfavorable injunction, judgment, order, decree, ruling, or charge would (A) prevent or materially delay consummation of the Merger (collectively, the “Regulatory Filings” and the, “Regulatory Disclosures”, respectively). If any Governmental Authority seeks to prevent the consummation of the transactions contemplated by this Agreement, (B) cause any of the Merger transactions contemplated by this Agreement based to be rescinded following consummation. Each Party shall (i) promptly notify the other Party of any written communication to that Party from any governmental authority 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 in any substantive meeting or discussion with any governmental authority in respect of any filings, investigation or inquiry concerning this Agreement or the transactions contemplated hereby, 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 thereat; and (iii) furnish the other Party with copies of all correspondence, filings, and communications (and memoranda setting forth the substance thereof) between it and its Affiliates and their respective representatives on the HSR Act or any other Antitrust Laws or based on any other required approval, consent, notice or filing with a Governmental Authority and such actions by the Governmental Authority relate to the activities or investments of such Stockholder or its Affiliates (solely for purposes of this Section 4, an “Affiliate” of the Stockholder shall include any portfolio company in which such Stockholder or any of its Affiliates has made a debt or an equity investment), then if Parent in good faith reasonably determines that such actions by the Governmental Authority will not be resolved sufficiently in advance of the Termination Date, Parent may provide written notice of that determination to the Stockholderone hand, and Parent may elect to terminate any government or regulatory authority or members or their respective staffs on the obligations under Section 2 and Section 4.6 of this Agreement (in which case the Stockholder’s obligations under the Equity Commitment Letter shall also automatically terminate) andother hand, in that context, the Stockholder shall be entitled to receive the Per Share Price under the Merger Agreement with respect to its shares of Common Stock; provided, however that Parent shall not terminate the Equity Commitment Letter or the obligations under Section 2 of this Agreement pursuant to this Section 4.3(a) without first obtaining alternative financing arrangements which provide Parent with funds in an amount equal to the Rollover Amount; provided that such alternative financing arrangements (i) provide Parent with sufficient funds, when added to the proceeds of the Equity Financing, Debt Financing and other sources of readily available liquidity of Parent, Merger Sub, the Company and the Company’s Subsidiaries on the Closing Date, to fund the Required Amount and (ii) do not impose new or additional conditions to the receipt of such financing relative to the Commitment Letters that could impair or delay the Closing. Parent shall promptly provide the Company with a copy of any definitive commitment letter or other documentation providing for such alternative financing arrangement. Notwithstanding anything to the contrary herein, the Stockholder may designate any Regulatory Disclosures that contain sensitive, legally privileged, or confidential information in respect of the Stockholder or any of its Affiliates as exclusive to the Stockholder and the Stockholder may provide that any such sensitive, legally privileged, or confidential information may only be provided on a counsel-only basis or directly to the applicable Governmental Authority requesting such information. The Stockholder shall not make any filings, or notifications in connection with the Merger pursuant to any Antitrust Laws without Parent’s prior written consent (not to be unreasonably withheld, delayed or conditioned). Parent or the Company shall not file any Regulatory Filings that contain information with respect to the Stockholder or its affiliates without first providing the Stockholder and its counsel a reasonable opportunity to review and comment thereon, and will give good faith consideration to all reasonable additions, deletions or changes suggested by the Stockholder and its counselAgreement.
(b) Each Stockholder hereto represent, warrant and covenant to Parent and to the Company that, to such Stockholder’s knowledge: (i) none of the information supplied in writing by such Stockholder specifically for inclusion or incorporation by reference in the Regulatory Disclosures will contain a material misstatement of fact or a material omission of fact necessary to make the information provided not misleading and (ii) it does not permit any entity under the “control” (defined in Section 721 of the Defense Production Act, as amended, including all implanting regulations thereof) of a People’s Republic of China national, or any entity under the control of a Russian Federation national, to obtain through any Affiliate, control with respect to the Company.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Checkfree Corp \Ga\), Stock Purchase Agreement (Uil Holdings Corp)
Regulatory Matters. (a) Subject to Section 4.4As between the Parties, the Stockholder shallXXXXXXX will (i) be solely responsible for, and shall use their reasonable best efforts to cause their Affiliates towill solely own, use their reasonable best efforts, consistent with the time frames set forth in Section 6.4 of the Merger Agreement, to supply all applications for Regulatory Approval and provide information that, to such Stockholder’s knowledge, is complete and accurate in all material respects to any Governmental Authority requesting such information in connection with filings or notifications under, or relating to, applicable laws that are required or advisable as a result of, or pursuant to, the Merger Agreement and the related financings and transactions, including, without limitation, information required or requested to be provided to any antitrust, financial or national security regulatory authorities in connection with any approvals reasonably sought in connection with the consummation of the Merger (collectively, the “Regulatory Filings” and the, “Regulatory Disclosures”, respectively). If any Governmental Authority seeks to prevent the consummation of the transactions contemplated by the Merger Agreement based on the HSR Act or any other Antitrust Laws or based on any other required approval, consent, notice or filing with a Governmental Authority and such actions by the Governmental Authority relate to the activities or investments of such Stockholder or its Affiliates (solely for purposes of this Section 4, an “Affiliate” of the Stockholder shall include any portfolio company in which such Stockholder or any of its Affiliates has made a debt or an equity investment), then if Parent in good faith reasonably determines that such actions by the Governmental Authority will not be resolved sufficiently in advance of the Termination Date, Parent may provide written notice of that determination to the Stockholder, and Parent may elect to terminate the obligations under Section 2 and Section 4.6 of this Agreement (in which case the Stockholder’s obligations under the Equity Commitment Letter shall also automatically terminate) and, in that context, the Stockholder shall be entitled to receive the Per Share Price under the Merger Agreement Pricing Approval with respect to its shares of Common Stock; provided, however that Parent shall not terminate the Equity Commitment Letter or the obligations under Section 2 of this Agreement pursuant to this Section 4.3(a) without first obtaining alternative financing arrangements which provide Parent with funds in an amount equal to the Rollover Amount; provided that such alternative financing arrangements (i) provide Parent with sufficient funds, when added to the proceeds of the Equity Financing, Debt Financing and other sources of readily available liquidity of Parent, Merger Sub, the Company and the Company’s Subsidiaries on the Closing Date, to fund the Required Amount a Product and (ii) do not impose new or additional conditions have the sole right and responsibility to the receipt of such financing relative to the Commitment Letters that could impair or delay the Closing. Parent shall promptly provide the Company with a copy of any definitive commitment letter or file all INDs and make all other documentation providing for such alternative financing arrangement. Notwithstanding anything to the contrary herein, the Stockholder may designate any Regulatory Disclosures that contain sensitive, legally privileged, or confidential information in respect of the Stockholder or any of its Affiliates as exclusive to the Stockholder and the Stockholder may provide that any such sensitive, legally privileged, or confidential information may only be provided on a counsel-only basis or directly to the applicable Governmental Authority requesting such information. The Stockholder shall not make any filings, or notifications in connection filings with the Merger pursuant Regulatory Authorities, and to any Antitrust Laws without Parent’s prior written consent (not otherwise seek all Regulatory Approvals and Pricing Approvals for the Products, in the Territory, as well as to be unreasonably withheld, delayed or conditioned)conduct all correspondence and communications with Regulatory Authorities regarding such matters. Parent or Upon the Company shall not file any Regulatory Filings that contain information Effective Date with respect to the Stockholder or Initial Target, and upon MERSANA exercising its affiliates without first providing Option right for a Licensed Target (other than the Stockholder Initial Target) in accordance with Section 2.2(c) during the Term and thereafter as provided in Section 10.3(a)(2), SNFX, on behalf of itself and its counsel Affiliates, shall grant and does hereby grant to MERSANA and its Affiliates a reasonable opportunity non-exclusive, transferable in accordance with Section 11.5, “Right of Reference,” as that term is defined in 21 C.F.R. § 314.3(b) and any foreign counterpart of such regulation, with the right to review grant such a Right of Reference to Sublicensees hereunder (through multiple tiers), to and comment thereonunder all data contained in any Regulatory Documentation Controlled by SNFX that is necessary or useful to Develop, Manufacture, Commercialize or otherwise Exploit a Product in the Field in the Territory, and will give good faith consideration SNFX shall provide a signed statement to all reasonable additionsthis effect, deletions if requested by XXXXXXX, in accordance with 21 C.F.R. § 314.50(g)(3) (or changes suggested by any analogous applicable Law recognized outside of the Stockholder and its counselUnited States).
(b) Each Stockholder hereto representSNFX shall provide MERSANA with reasonable cooperation and assistance in connection with regulatory activities for each Product at MERSANA’s sole cost and expense, warrant and covenant to Parent and to the Company that, to such Stockholder’s knowledge: including (i) none of the information supplied reasonable assistance in writing by such Stockholder specifically for inclusion or incorporation by reference in the Regulatory Disclosures will contain a material misstatement of fact or a material omission of fact preparing filings and submissions necessary to make the information provided not misleading obtain and maintain Regulatory Approval and Pricing Approval (if applicable) for each Product, (ii) it does not permit responding to reasonable requests by MERSANA for additional Regulatory Documentation (and information and clinical data contained therein) related to such Product, and (iii) providing other technical information in SNFX’s Control that is necessary or useful for MERSANA in connection with any entity under application for Regulatory Approval or Pricing Approval for a Product; provided that SNFX’s cooperation is subject to XXXXXXX’s reimbursement of any reasonable out-of-pocket costs incurred by SNFX and [**]. Further, such access shall be requested and coordinated through a single contact person to be designated by SNFX.
(c) MERSANA shall be responsible for ensuring, at its sole expense, that the “control” (defined Development, Manufacturing, Commercialization and other Exploitation of all Products in Section 721 of the Defense Production Act, as amendedapplicable jurisdiction within the Territory are in compliance with applicable Laws in all material respects, including all implanting rules and regulations thereofpromulgated by applicable Regulatory Authorities. Specifically and without limiting the foregoing, MERSANA shall be responsible for filing all compliance filings, certificates and safety reporting for the Products required by applicable Law at its sole expense in the Territory.
(d) XXXXXXX shall be responsible for taking all actions related to adverse event reporting and other regulatory obligations that are legally required of the holder of a People’s Republic of China nationalRegulatory Approval application, license, registration or any entity authorization under the control of a Russian Federation national, to obtain through any Affiliate, control with respect to the Companyapplicable Law.
Appears in 1 contract
Samples: Commercial License and Option Agreement (Mersana Therapeutics, Inc.)
Regulatory Matters. (a) Subject to Section 4.4, the Stockholder shall, and shall use their reasonable best efforts to cause their Affiliates to, use their reasonable best efforts, consistent with the time frames set Set forth in Section 6.4 of the Merger Agreement, to supply and provide information that, to such Stockholder’s knowledge, on Schedule 6.18(a) is a complete and accurate in list as of the Restatement Date of all material respects Regulatory Authorizations relating to Holdings, the Borrower or any Subsidiary and the Products (on a per Product basis). All such Regulatory Authorizations are (i) legally and beneficially owned exclusively by Holdings, the Borrower or one of the Subsidiaries, free and clear of all Liens other than Liens permitted pursuant to Section 8.3, and (ii) validly registered and on file with the applicable Governmental Authority requesting such information or Notified Body, in connection compliance with filings or notifications underall filing and maintenance requirements (including any fee requirements) thereof, or relating toand are in good standing, applicable laws that are required or advisable as a result of, or pursuant to, the Merger Agreement valid and the related financings and transactions, including, without limitation, information required or requested to be provided to any antitrust, financial or national security regulatory authorities in connection with any approvals reasonably sought in connection enforceable with the consummation of the Merger (collectively, the “Regulatory Filings” and the, “Regulatory Disclosures”, respectively). If any applicable Governmental Authority seeks to prevent the consummation of the transactions contemplated by the Merger Agreement based on the HSR Act or any other Antitrust Laws or based on any other required approval, consent, notice or filing with a Governmental Authority and such actions by the Governmental Authority relate to the activities or investments of such Stockholder or its Affiliates (solely for purposes of this Section 4, an “Affiliate” of the Stockholder shall include any portfolio company in which such Stockholder Notified Body. No proceeding is pending against Holdings or any of its Affiliates has made Subsidiaries or, to the Borrower’s knowledge, threatened to revoke or amend any of the Regulatory Authorizations nor are there facts or circumstances of which the Borrower is aware which form a debt or an equity investment), then if Parent in good faith reasonably determines that such actions by the basis upon which a Governmental Authority will not be resolved sufficiently in advance or Notified Body reasonably could seek to revoke or amend any Regulatory Authorization. All required notices, registrations and listings, supplemental applications or notifications, reports (including field alerts, medical device reports or other reports of the Termination Date, Parent may provide written notice of that determination to the Stockholder, and Parent may elect to terminate the obligations under Section 2 and Section 4.6 of this Agreement (in which case the Stockholder’s obligations under the Equity Commitment Letter shall also automatically terminateadverse experiences) and, in that context, the Stockholder shall be entitled to receive the Per Share Price under the Merger Agreement with respect to its shares of Common Stock; provided, however that Parent shall not terminate the Equity Commitment Letter or the obligations under Section 2 of this Agreement pursuant to this Section 4.3(a) without first obtaining alternative financing arrangements which provide Parent with funds in an amount equal to the Rollover Amount; provided that such alternative financing arrangements (i) provide Parent with sufficient funds, when added to the proceeds of the Equity Financing, Debt Financing and other sources of readily available liquidity of Parent, Merger Sub, the Company and the Company’s Subsidiaries on the Closing Date, to fund the Required Amount and (ii) do not impose new or additional conditions to the receipt of such financing relative to the Commitment Letters that could impair or delay the Closing. Parent shall promptly provide the Company with a copy of any definitive commitment letter or other documentation providing for such alternative financing arrangement. Notwithstanding anything to the contrary herein, the Stockholder may designate any Regulatory Disclosures that contain sensitive, legally privileged, or confidential information in respect of the Stockholder or any of its Affiliates as exclusive to the Stockholder and the Stockholder may provide that any such sensitive, legally privileged, or confidential information may only be provided on a counsel-only basis or directly to the applicable Governmental Authority requesting such information. The Stockholder shall not make any filings, or notifications in connection with the Merger pursuant to any Antitrust Laws without Parent’s prior written consent (not to be unreasonably withheld, delayed or conditioned). Parent or the Company shall not file any Regulatory Filings that contain information required filings with respect to the Stockholder or its affiliates without first providing Products have been filed with the Stockholder FDA and its counsel a reasonable opportunity to review all other applicable Governmental Authorities and comment thereon, and will give good faith consideration to all reasonable additions, deletions or changes suggested by the Stockholder and its counselNotified Bodies.
(b) Each Stockholder hereto representExcept as set forth on Schedule 6.18(b) and without limiting the generality of any other representations and warranties made by the Borrower, warrant and covenant to Parent and to the Company that, to such Stockholder’s knowledge: (i) none the Products comply in all material respects with (A) all applicable laws, rules, regulations, orders, injunctions and decrees of the information supplied in writing by such Stockholder specifically for inclusion or incorporation by reference in FDA and other applicable Governmental Authorities, including all applicable requirements of state authorities and the FD&C Act and (B) all Product Authorizations and other Regulatory Disclosures will contain a material misstatement of fact or a material omission of fact necessary to make the information provided not misleading and Authorizations; (ii) it does Holdings, the Borrower, the Subsidiaries and their respective suppliers have not permit received any entity under notification from any Governmental Authority asserting that any 361 Product lacks a required Product Authorization; (iii) there is no pending regulatory action, investigation or inquiry (other than non-material routine or periodic inspections or reviews) against Holdings, the “control” (defined in Section 721 Borrower or any of the Defense Production Act, as amended, including all implanting regulations thereof) of a People’s Republic of China national, Subsidiaries or any entity under the control of a Russian Federation national, to obtain through any Affiliate, control their respective suppliers with respect to the CompanyProducts, and to the Borrower’s knowledge there is no basis for any adverse regulatory action against Holdings, the Borrower or any of the Subsidiaries or, to the knowledge of the Borrower, their respective suppliers with respect to the Products; and (iv) without limiting the foregoing, (A) no product recalls, safety alerts, corrections, withdrawals, marketing suspensions, removals or the like have been voluntarily initiated within the five years preceding the Restatement Date or requested, demanded or ordered by any Governmental Authority with respect to any Products, and there is no basis for the issuance of any such product recalls, safety alerts, corrections, withdrawals, marketing suspensions, removals or the like by any Person with respect to any Products and (B) no criminal, injunctive, seizure, detention or civil penalty actions have at any time been commenced or threatened in writing by any Governmental Authority with respect to or in connection with any Products, there are no consent decrees (including plea agreements) which relate to any Products, and there is no basis for the commencement for any criminal injunctive, seizure, detention or civil penalty actions by any Governmental Authority relating to the Products or for the issuance of any consent decrees. None of Holdings, the Borrower, any of the Subsidiaries or, to the Borrower’s knowledge, any of their respective suppliers is employing or utilizing the services of any individual who has been debarred or temporarily suspended under any applicable law, rule or regulation.
(c) Except as set forth in Schedule 6.18(c), in all material respects with respect to Products, (i) all design, manufacturing, storage, distribution, packaging, labeling, recordkeeping and other supply activities by Holdings, the Borrower, the Subsidiaries and, to the Borrower’s knowledge, their respective suppliers relating to such Products have been conducted, and are currently being conducted, in compliance with the applicable requirements of the FD&C Act and other requirements of the FDA and all other Governmental Authorities, including current good manufacturing practices, cGTPs and quality system regulations, (ii) none of Holdings, the Borrower, any of the Subsidiaries, or, to the knowledge of the Borrower, any of their respective suppliers has received written notice or threat of commencement of action by any Governmental Authority to withdraw its approval of or to enjoin production of the Products at any facility and (iii) all applicable post-approval and post-clearance procedures and activities have been carried out, and have been carried out in accordance with the requirements of the Regulatory Authorizations and all applicable laws, rules and regulations. No Product sold by or in the inventory of Holdings, the Borrower or any of the Subsidiaries is adulterated or misbranded, all labeling, packaging (including inserts), product information, advertising and promotional materials and activities are in compliance in all material respects with applicable FDA and other Governmental Authority requirements, and the Products are in compliance with all classification, registration, listing, marking, tracking and audit requirements of the FDA and any other Governmental Authority.
(d) Except as set forth in Schedule 6.18(d), all activities of Holdings, the Borrower, the Subsidiaries and, to the Borrower’s knowledge, their respective suppliers related to the procurement, use, and transplantation of tissue, including allograft bone tissue, have been conducted, and are currently being conducted in material compliance with the applicable requirements of the National Organ Transplant Act.
(e) The Borrower has made available to the Administrative Agent complete and accurate copies of all Product Authorizations and regulatory dossiers relating thereto, all medical device reports and communications to or from the FDA and other relevant Governmental Authorities and Notified Bodies, including inspection reports, warning letters, and material reports, studies and other correspondence, other than opinions of counsel that are attorney-client privileged, with respect to regulatory matters relating to Holdings, the Borrower or any of the Subsidiaries, the conduct of their business and the Products.
(f) All studies, tests and preclinical and clinical trials conducted relating to the Products, in all material respects, by or on behalf of Holdings, the Borrower and the Subsidiaries and, to the knowledge of the Borrower, their respective licensees, licensors and third party services providers and consultants, have been conducted, and are currently being conducted, in accordance with experimental protocols, procedures and controls pursuant to, where applicable, current good clinical practices and current good laboratory practices and other applicable laws, rules regulations. All results of such studies, tests and trials, and all other material information related to such studies, tests and trials, have been made available to the Administrative Agent. The summaries and descriptions of any of the foregoing provided to the Administrative Agent are accurate and contain no material omissions. None of Holdings, the Borrower, any of the Subsidiaries, or, to the knowledge of the Borrower, any of their respective licensees, licensors or third party services providers or consultants, has received from the FDA or other applicable Governmental Authority any notices or correspondence requiring the termination, suspension, material modification or clinical hold of any studies, tests or clinical trials in any material respect with respect to or in connection with the Products.
(g) There has been no material untrue statement of fact and no fraudulent statement made by Holdings, the Borrower, any of the Subsidiaries, or, to the knowledge of the Borrower, any of their respective agents or representatives to the FDA or any other Governmental Authority, and there has been no failure to disclose any material fact required to be disclosed to the FDA or any other Regulatory Agency.
(h) The transactions contemplated by the Loan Documents (or contemplated by the conditions to effectiveness of any Loan Document) will not impair Holdings’, the Borrower’s or any of the Subsidiaries’ ownership of or rights under (or the license or other right to use, as the case may be) any Regulatory Authorizations relating to the Products in any material manner.
Appears in 1 contract
Regulatory Matters. Within five (a5) Subject to Section 4.4, the Stockholder shall, and shall use their reasonable best efforts to cause their Affiliates to, use their reasonable best efforts, consistent with the time frames set forth in Section 6.4 of the Merger Agreement, to supply and provide information that, to such Stockholder’s knowledge, is complete and accurate in all material respects to any Governmental Authority requesting such information in connection with filings or notifications under, or relating to, applicable laws that are required or advisable as a result of, or pursuant to, the Merger Agreement and the related financings and transactions, including, without limitation, information required or requested to be provided to any antitrust, financial or national security regulatory authorities in connection with any approvals reasonably sought in connection with the consummation of the Merger (collectively, the “Regulatory Filings” and the, “Regulatory Disclosures”, respectively). If any Governmental Authority seeks to prevent the consummation of the transactions contemplated by the Merger Agreement based on the HSR Act or any other Antitrust Laws or based on any other required approval, consent, notice or filing with a Governmental Authority and such actions by the Governmental Authority relate to the activities or investments of such Stockholder or its Affiliates (solely for purposes of this Section 4, an “Affiliate” of the Stockholder shall include any portfolio company in which such Stockholder or any of its Affiliates has made a debt or an equity investment), then if Parent in good faith reasonably determines that such actions by the Governmental Authority will not be resolved sufficiently in advance of the Termination Date, Parent may provide written notice of that determination to the Stockholder, and Parent may elect to terminate the obligations under Section 2 and Section 4.6 of this Agreement (in which case the Stockholder’s obligations under the Equity Commitment Letter shall also automatically terminate) and, in that context, the Stockholder shall be entitled to receive the Per Share Price under the Merger Agreement with respect to its shares of Common Stock; provided, however that Parent shall not terminate the Equity Commitment Letter or the obligations under Section 2 of this Agreement pursuant to this Section 4.3(a) without first obtaining alternative financing arrangements which provide Parent with funds in an amount equal to the Rollover Amount; provided that such alternative financing arrangements (i) provide Parent with sufficient funds, when added to the proceeds of the Equity Financing, Debt Financing and other sources of readily available liquidity of Parent, Merger Sub, the Company and the Company’s Subsidiaries on business days after the Closing Date, Seller shall submit to fund the Required Amount FDA a letter authorizing the transfer of ownership of the NDA from Seller to Buyer (the “Transfer Letter”), attached hereto as Exhibit H. Concurrently with or immediately after Buyer’s receipt of notice from Seller of its submission of the Transfer Letter to FDA, Buyer shall execute and submit to the FDA a letter, accompanied by Seller’s Transfer Letter, acknowledging Buyer’s commitment to assume ownership of the NDA. As of the Closing Date, except as otherwise set forth in this Section 7.7, Buyer shall be solely responsible for taking any actions necessary to (a) obtain any documentation required to maintain the NDA in the Territory or obtain any further authorizations under any Law in the Territory, and (iib) do not impose new or additional conditions to the receipt of such financing relative to the Commitment Letters that could impair or delay the Closing. Parent shall promptly provide the Company otherwise comply with a copy of any definitive commitment letter or other documentation providing for such alternative financing arrangement. Notwithstanding anything to the contrary herein, the Stockholder may designate any Regulatory Disclosures that contain sensitive, legally privileged, or confidential information in respect of the Stockholder or any of its Affiliates as exclusive to the Stockholder and the Stockholder may provide that any such sensitive, legally privileged, or confidential information may only be provided on a counsel-only basis or directly to the applicable Governmental Authority requesting such information. The Stockholder shall not make any filings, or notifications in connection with the Merger pursuant to any Antitrust Laws without Parent’s prior written consent (not to be unreasonably withheld, delayed or conditioned). Parent or the Company shall not file any Regulatory Filings that contain information Law with respect to the Stockholder or its affiliates without first providing Regulatory Authorizations in the Stockholder Territory. As of the Closing Date, Buyer shall be solely responsible for investigating and its counsel a reasonable opportunity reporting adverse experiences for the Product to review any Governmental Authorities in the Territory and comment thereon, and will give good faith consideration to all reasonable additions, deletions or changes suggested by the Stockholder and its counsel.
(b) Each Stockholder hereto represent, warrant and covenant to Parent and addressing any such Governmental Authorities’ inquiries related to the Company that, to such Stockholder’s knowledge: (i) none safety of the information supplied in writing Product; provided, however, that Seller shall provide reasonable assistance and cooperation to Buyer to the extent any such investigations or inquiries related to the sale of Product prior to the Closing Date by such Stockholder specifically or on behalf of Seller. As of the Closing Date, Buyer shall be solely responsible for inclusion addressing any person’s medical inquiries or incorporation by reference complaints relating to the Product in the Regulatory Disclosures will contain a material misstatement of fact or a material omission of fact necessary Territory; provided, however, that Seller shall provide reasonable assistance and cooperation to make the information provided not misleading and (ii) it does not permit any entity under the “control” (defined in Section 721 of the Defense Production Act, as amended, including all implanting regulations thereof) of a People’s Republic of China national, or any entity under the control of a Russian Federation national, to obtain through any Affiliate, control with respect Buyer to the Companyextent any such inquiries or complaints related to the sale of Product prior to the Closing Date by or on behalf of Seller.
Appears in 1 contract
Samples: Asset Purchase Agreement (Apricus Biosciences, Inc.)
Regulatory Matters. (a) Subject to Other than as disclosed in Section 4.43.8 of the Disclosure Schedule, the Stockholder shallGroup Companies have obtained necessary Approvals with respect to their respective operations and the Principal Business and all such Approvals are in full force and effect. The absence, and shall use their reasonable best efforts to cause their Affiliates toor failure of renewal or maintaining, use their reasonable best efforts, consistent with the time frames set forth of such Approvals as disclosed in Section 6.4 3.8 of the Merger AgreementDisclosure Schedule has not resulted in, would not be expected to supply and provide information thatresult in, to such Stockholder’s knowledge, is complete and accurate in all material respects to any Governmental Authority requesting such information in connection with filings or notifications under, or relating to, applicable laws that are required or advisable as a result of, or pursuant to, the Merger Agreement and the related financings and transactions, including, without limitation, information required or requested to be provided to any antitrust, financial or national security regulatory authorities in connection with any approvals reasonably sought in connection with the consummation Material Adverse Effect. None of the Merger (collectivelyGroup Companies has engaged in any insurance or banking business or any financial services, telecommunication, utilities or other regulated business outside the “Regulatory Filings” and the, “Regulatory Disclosures”, respectively)scope of business as currently conducted by such Group Company. If No Warrantor has reason to believe that any Governmental Authority seeks to prevent material Approval required for the consummation conduct of the transactions contemplated by the Merger Agreement based on the HSR Act Principal Business or any other Antitrust Laws or based on any other required approval, consent, notice or filing with a Governmental Authority and such actions by the Governmental Authority relate part thereof which is subject to the activities or investments of such Stockholder or its Affiliates (solely for purposes of this Section 4, an “Affiliate” of the Stockholder shall include any portfolio company in which such Stockholder or any of its Affiliates has made a debt or an equity investment), then if Parent in good faith reasonably determines that such actions by the Governmental Authority periodic renewal will not be resolved sufficiently in advance of the Termination Date, Parent may provide written notice of that determination to the Stockholder, and Parent may elect to terminate the obligations under Section 2 and Section 4.6 of this Agreement (in which case the Stockholder’s obligations under the Equity Commitment Letter shall also automatically terminate) and, in that context, the Stockholder shall be entitled to receive the Per Share Price under the Merger Agreement with respect to its shares of Common Stock; provided, however that Parent shall not terminate the Equity Commitment Letter granted or the obligations under Section 2 of this Agreement pursuant to this Section 4.3(a) without first obtaining alternative financing arrangements which provide Parent with funds in an amount equal to the Rollover Amount; provided that such alternative financing arrangements (i) provide Parent with sufficient funds, when added to the proceeds of the Equity Financing, Debt Financing and other sources of readily available liquidity of Parent, Merger Sub, the Company and the Company’s Subsidiaries on the Closing Date, to fund the Required Amount and (ii) do not impose new or additional conditions to the receipt of such financing relative to the Commitment Letters that could impair or delay the Closing. Parent shall promptly provide the Company with a copy of any definitive commitment letter or other documentation providing for such alternative financing arrangement. Notwithstanding anything to the contrary herein, the Stockholder may designate any Regulatory Disclosures that contain sensitive, legally privileged, or confidential information in respect of the Stockholder or any of its Affiliates as exclusive to the Stockholder and the Stockholder may provide that any such sensitive, legally privileged, or confidential information may only be provided on a counsel-only basis or directly to the applicable Governmental Authority requesting such information. The Stockholder shall not make any filings, or notifications in connection with the Merger pursuant to any Antitrust Laws without Parent’s prior written consent (not to be unreasonably withheld, delayed or conditioned). Parent or the Company shall not file any Regulatory Filings that contain information with respect to the Stockholder or its affiliates without first providing the Stockholder and its counsel a reasonable opportunity to review and comment thereon, and will give good faith consideration to all reasonable additions, deletions or changes suggested renewed by the Stockholder and its counselrelevant Governmental Authorities.
(b) Each Stockholder hereto represent, warrant and covenant to Parent and to registered holder or beneficial owner of any Equity Securities in the Company thatother than the Investors (each, a “Company Security Holder”) who is a Domestic Resident and subject to such Stockholder’s knowledge: (i) none any of the information supplied in writing by registration or reporting requirements of Circular 37 or any other applicable SAFE rules and regulations (collectively, the “SAFE Rules and Regulations”) has complied with such Stockholder specifically for inclusion or incorporation by reference in the Regulatory Disclosures will contain a material misstatement of fact or a material omission of fact necessary to make the information provided not misleading and (ii) it does not permit any entity registration and/or reporting requirements under the “control” (defined in Section 721 of the Defense Production Act, as amended, including all implanting regulations thereof) of a People’s Republic of China national, or any entity under the control of a Russian Federation national, to obtain through any Affiliate, control SAFE Rules and Regulations with respect to its investment in the CompanyGroup Companies. None of the Warrantors, nor, to the Knowledge of the Warrantors, the other Company Security Holders has received any oral or written inquiries, notifications, orders or any other forms of official correspondence from SAFE or any of its local branches with respect to any actual or alleged non-compliance with the SAFE Rules and Regulations and the Company and the Company Security Holders have made all oral and written filings, registrations, reporting and any other communications required by SAFE or any of its local branches applicable to the Group Companies. The WFOE and each Domestic Company has obtained all Approvals necessary under PRC Laws to conduct foreign exchange transactions as now being conducted by it, and has no reason to believe that it cannot obtain all Approvals for the conduct of foreign exchange transactions as now being conducted and planned to be conducted.
Appears in 1 contract
Samples: Series C Preferred Shares Purchase Agreement (Cango Inc.)
Regulatory Matters. (a) Subject 1. Notwithstanding anything to Section 4.4the contrary contained in this Agreement or any of the other Security Documents, the Stockholder shallrights of the Collateral Agent and the other Secured Parties hereunder and under the other Security Documents are subject to all applicable rules and regulations of the FCC and other Governmental Authorities with jurisdiction over Parent and its subsidiaries. Without limiting the foregoing, the Collateral Agent will not take any action (or authorize any other party to take any action on its behalf) which would constitute or result in an assignment or change of control of any governmental permits, licenses, or other authorizations, including without limitation those issued by the FCC, now held by or to be issued to Parent or any of its subsidiaries which would require prior notice to or approval from any Governmental Authority, or otherwise take action hereunder which would require prior notice to or approval from any Governmental Authority, in each case without first providing such notice or obtaining such prior approval of the relevant Governmental Authorities.
2. Upon and after the issuance of a Default Notice, the Parent shall take any action which the Collateral Agent may reasonably request in the exercise of its rights and remedies under this Agreement in order to transfer or assign the Collateral to the Collateral Agent or to such one or more third parties as the Collateral Agent may designate, or to a combination of the foregoing. To enforce the provisions of this clause 20, upon and after the issuance of a Default Notice, the Collateral Agent is empowered to seek from the FCC and any other Governmental Authority, to the extent required, consent to or approval of any involuntary assignment or transfer of control of any entity whose Collateral is subject to this Agreement for the purpose of seeking a bona fide purchaser to whom the Collateral will be assigned and control will ultimately be transferred. Parent agrees to cooperate with any such purchaser and with the Collateral Agent in the preparation, execution and filing of any applications and other documents and providing any information that may be necessary or helpful in obtaining the FCC’s or such other Governmental Authority’s consent to the assignment to such purchaser of the Collateral. Parent hereby agrees to consent to any such an involuntary transfer of control upon the request of the Collateral Agent after and after the issuance of a Default Notice and, without limiting any rights of the Collateral Agent under this Agreement, to authorize the Collateral Agent to nominate a trustee or receiver to assume control of the Collateral, subject only to required judicial, FCC or other consent required by Governmental Authorities, in order to effectuate the transactions contemplated in this clause 20. Such trustee or receiver shall have all the rights and powers as provided to it by law or court order, or to the Collateral Agent under this Agreement. Parent shall cooperate fully in obtaining the consent of the FCC and the approval or consent of each other Governmental Authority required to effectuate the foregoing.
3. Upon or after the occurrence of a Default Notice, Parent shall use their reasonable its best efforts to cause their Affiliates to, use their reasonable best efforts, consistent with the time frames set forth assist in Section 6.4 obtaining consent or approval of the Merger FCC and any other Governmental Authority, if required, for any action or transactions contemplated by this Agreement, to supply and provide information that, to such Stockholder’s knowledge, is complete and accurate in all material respects to any Governmental Authority requesting such information in connection with filings or notifications under, or relating to, applicable laws that are required or advisable as a result of, or pursuant to, the Merger Agreement and the related financings and transactions, including, without limitation, information required or requested to be provided to any antitrustthe preparation, financial or national security regulatory authorities in connection with any approvals reasonably sought in connection execution and filing with the consummation FCC of the Merger (collectively, transferor’s or assignor’s portion of any application or applications for consent to the “Regulatory Filings” transfer of control or assignment necessary or appropriate under the FCC’s rules and the, “Regulatory Disclosures”, respectively). If any Governmental Authority seeks to prevent the consummation regulations for approval of the transactions contemplated by the Merger Agreement based on the HSR Act transfer or assignment of any other Antitrust Laws or based on any other required approval, consent, notice or filing with a Governmental Authority and such actions by the Governmental Authority relate to the activities or investments of such Stockholder or its Affiliates (solely for purposes of this Section 4, an “Affiliate” portion of the Stockholder shall include any portfolio company in which such Stockholder or any Collateral.
4. Parent hereby acknowledges and agrees that the Collateral is a unique asset and that a violation of its Affiliates has made a debt or an equity investment), then if Parent in good faith reasonably determines that such actions by the Governmental Authority will not be resolved sufficiently in advance of the Termination Date, Parent may provide written notice of that determination Parent’s covenant to the Stockholder, and Parent may elect to terminate the obligations under Section 2 and Section 4.6 of this Agreement (in which case the Stockholder’s obligations under the Equity Commitment Letter shall also automatically terminate) and, in that context, the Stockholder shall be entitled to receive the Per Share Price under the Merger Agreement cooperate with respect to any regulatory consents would result in irreparable harm to the Collateral Agent for which monetary damages are not readily ascertainable. Parent further agrees that, because of the unique nature of its shares undertaking in this subclause 4, the same may be specifically enforced, and it hereby waives, and agrees to waive, any claim or defense that the Collateral Agent would have an adequate remedy at law for the breach of Common Stock; provided, however that Parent shall not terminate the Equity Commitment Letter or this undertaking.
5. Without limiting the obligations under Section 2 of this Agreement pursuant Parent hereunder in any respect, Parent further agrees that if Parent, upon or after the issuance of a Default Notice, should fail or refuse to this Section 4.3(a) without first obtaining alternative financing arrangements which provide execute any application or other document necessary or appropriate to obtain any governmental consent necessary or appropriate for the exercise of any right of the Collateral Agent hereunder, Parent with funds in an amount equal agrees, to the Rollover Amount; provided extent consistent with applicable law, that such alternative financing arrangements (i) provide Parent with sufficient funds, when added application or other document may be executed on Parent’s behalf by the clerk of any court or other forum in any competent jurisdiction without notice to the proceeds of the Equity Financing, Debt Financing and other sources of readily available liquidity of Parent, Merger Sub, the Company and the Company’s Subsidiaries on the Closing Date, to fund the Required Amount and (ii) do not impose new or additional conditions to the receipt of such financing relative to the Commitment Letters that could impair or delay the Closing. Parent shall promptly provide the Company with a copy of any definitive commitment letter or other documentation providing for such alternative financing arrangement. Notwithstanding anything to the contrary herein, the Stockholder may designate any Regulatory Disclosures that contain sensitive, legally privileged, or confidential information in respect of the Stockholder or any of its Affiliates as exclusive to the Stockholder and the Stockholder may provide that any such sensitive, legally privileged, or confidential information may only be provided on a counsel-only basis or directly to the applicable Governmental Authority requesting such information. The Stockholder shall not make any filings, or notifications in connection with the Merger pursuant to any Antitrust Laws without Parent’s prior written consent (not to be unreasonably withheld, delayed or conditioned). Parent or the Company shall not file any Regulatory Filings that contain information with respect to the Stockholder or its affiliates without first providing the Stockholder and its counsel a reasonable opportunity to review and comment thereon, and will give good faith consideration to all reasonable additions, deletions or changes suggested by the Stockholder and its counsel.
(b) Each Stockholder hereto represent, warrant and covenant to Parent and to the Company that, to such Stockholder’s knowledge: (i) none of the information supplied in writing by such Stockholder specifically for inclusion or incorporation by reference in the Regulatory Disclosures will contain a material misstatement of fact or a material omission of fact necessary to make the information provided not misleading and (ii) it does not permit any entity under the “control” (defined in Section 721 of the Defense Production Act, as amended, including all implanting regulations thereof) of a People’s Republic of China national, or any entity under the control of a Russian Federation national, to obtain through any Affiliate, control with respect to the Company.
Appears in 1 contract
Samples: Mortgage Agreement (New Skies Satellites Holdings Ltd.)
Regulatory Matters. (ai) Subject Each party hereto agrees to Section 4.4use commercially reasonable efforts to comply with all Laws which may be imposed on such party with respect to the transactions contemplated by this Agreement and the other Transaction Documents. If required by applicable Laws, TowerCo (and/or Sub, as applicable) and Sublessors shall each make an appropriate filing of a Notification and Report Form pursuant to the Stockholder shall, HSR Act as soon as reasonably practicable but in any event no later than twenty (20) Business Days after the date hereof and shall use their reasonable best efforts promptly respond to cause their Affiliates to, use their reasonable best efforts, consistent any request for additional information with the time frames set forth in Section 6.4 respect thereto. Each such filing shall request early termination of the Merger Agreementwaiting period imposed by the HSR Act. TowerCo, Sub and Sublessors will cooperate before and after Closing to supply prevent inconsistencies between their respective HSR Act filings and provide will furnish to each other such necessary information that, to such Stockholder’s knowledge, is complete and accurate in all material respects to any Governmental Authority requesting such information reasonable assistance as the other may reasonably request in connection with its preparation of necessary filings or notifications undersubmissions under the HSR Act. Each of TowerCo and/or Sub, or relating toon the one hand, applicable laws that are required or advisable as a result ofand Sublessors, or pursuant toon the other hand, the Merger Agreement and the related financings and transactions, including, without limitation, information required or requested to be provided to any antitrust, financial or national security regulatory authorities in connection with any approvals reasonably sought shall pay all HSR filing fees payable by such party in connection with the consummation execution of this Agreement.
(ii) Notwithstanding anything else to the Merger (collectivelycontrary contained in this Agreement, the “Regulatory Filings” and thenone of AirTouch nor any other Sublessor shall have any obligation to oppose, “Regulatory Disclosures”challenge or appeal any suit, respectively). If action or proceeding by any Governmental Authority seeks before any court or other Governmental Authority, domestic or foreign, or any order or ruling by any such body (A) seeking to prevent restrain or prohibit or restraining or prohibiting the consummation of the transactions contemplated by the Merger Agreement based on Transaction Documents, (B) seeking to prohibit or limit or prohibiting or limiting the HSR Act leasing, subleasing, occupancy, operation or control by TowerCo or Sub of the Subleased Property or Managed Components (as defined in the Sublease) or (C) seeking to compel or compelling TowerCo, Sub or any other Antitrust Laws or based on any other required approval, consent, notice or filing with a Governmental Authority and such actions by the Governmental Authority relate to the activities or investments of such Stockholder or its Affiliates (solely for purposes of this Section 4, an “Affiliate” of the Stockholder shall include any portfolio company in which such Stockholder Sublessor or any of its their respective Affiliates has made a debt to dispose of, grant rights in respect of, or an equity investment), then if Parent in good faith reasonably determines that such actions by the Governmental Authority will not be resolved sufficiently in advance hold separate any portion of the Termination Datebusiness or assets of TowerCo, Parent may provide written notice of that determination to the Stockholder, and Parent may elect to terminate the obligations under Section 2 and Section 4.6 of this Agreement (in which case the Stockholder’s obligations under the Equity Commitment Letter shall also automatically terminate) and, in that context, the Stockholder shall be entitled to receive the Per Share Price under the Merger Agreement with respect to its shares of Common Stock; provided, however that Parent shall not terminate the Equity Commitment Letter Sub or the obligations under Section 2 of this Agreement pursuant to this Section 4.3(a) without first obtaining alternative financing arrangements which provide Parent with funds in an amount equal to the Rollover Amount; provided that such alternative financing arrangements (i) provide Parent with sufficient funds, when added to the proceeds of the Equity Financing, Debt Financing and other sources of readily available liquidity of Parent, Merger Sub, the Company and the Company’s Subsidiaries on the Closing Date, to fund the Required Amount and (ii) do not impose new or additional conditions to the receipt of such financing relative to the Commitment Letters that could impair or delay the Closing. Parent shall promptly provide the Company with a copy of any definitive commitment letter or other documentation providing for such alternative financing arrangement. Notwithstanding anything to the contrary herein, the Stockholder may designate any Regulatory Disclosures that contain sensitive, legally privileged, or confidential information in respect of the Stockholder Sublessor or any of its Affiliates as exclusive to the Stockholder and the Stockholder may provide that any such sensitive, legally privileged, or confidential information may only be provided on a counsel-only basis or directly to the applicable Governmental Authority requesting such information. The Stockholder shall not make any filings, or notifications in connection with the Merger pursuant to any Antitrust Laws without Parent’s prior written consent (not to be unreasonably withheld, delayed or conditioned). Parent or the Company shall not file any Regulatory Filings that contain information with respect to the Stockholder or its affiliates without first providing the Stockholder and its counsel a reasonable opportunity to review and comment thereon, and will give good faith consideration to all reasonable additions, deletions or changes suggested by the Stockholder and its counseltheir respective Affiliates.
(b) Each Stockholder hereto represent, warrant and covenant to Parent and to the Company that, to such Stockholder’s knowledge: (i) none of the information supplied in writing by such Stockholder specifically for inclusion or incorporation by reference in the Regulatory Disclosures will contain a material misstatement of fact or a material omission of fact necessary to make the information provided not misleading and (ii) it does not permit any entity under the “control” (defined in Section 721 of the Defense Production Act, as amended, including all implanting regulations thereof) of a People’s Republic of China national, or any entity under the control of a Russian Federation national, to obtain through any Affiliate, control with respect to the Company.
Appears in 1 contract
Regulatory Matters. (a) Subject Pledgors shall take, and shall cause the Issuers to Section 4.4take, all action that the Stockholder Agent may request in the exercise of its rights and remedies hereunder, which includes the right to require Pledgors or the Issuers to transfer or assign the Pledged Stock to any party or parties. In furtherance of this right, Pledgors shall, and shall use their reasonable best efforts to cause their Affiliates tothe Issuers, use their reasonable best efforts, consistent with the time frames set forth in Section 6.4 of the Merger Agreement, to supply and provide information that, to such Stockholder’s knowledge, is complete and accurate in all material respects to any Governmental Authority requesting such information in connection with filings or notifications under, or relating to, applicable laws that are required or advisable as a result of, or pursuant to, the Merger Agreement and the related financings and transactions, including, without limitation, information required or requested to be provided to any antitrust, financial or national security regulatory authorities in connection with any approvals reasonably sought in connection with the consummation of the Merger (collectively, the “Regulatory Filings” and the, “Regulatory Disclosures”, respectively). If any Governmental Authority seeks to prevent the consummation of the transactions contemplated by the Merger Agreement based on the HSR Act or any other Antitrust Laws or based on any other required approval, consent, notice or filing with a Governmental Authority and such actions by the Governmental Authority relate to the activities or investments of such Stockholder or its Affiliates (solely for purposes of this Section 4, an “Affiliate” of the Stockholder shall include any portfolio company in which such Stockholder or any of its Affiliates has made a debt or an equity investment), then if Parent in good faith reasonably determines that such actions by the Governmental Authority will not be resolved sufficiently in advance of the Termination Date, Parent may provide written notice of that determination to the Stockholder, and Parent may elect to terminate the obligations under Section 2 and Section 4.6 of this Agreement (in which case the Stockholder’s obligations under the Equity Commitment Letter shall also automatically terminate) and, in that context, the Stockholder shall be entitled to receive the Per Share Price under the Merger Agreement with respect to its shares of Common Stock; provided, however that Parent shall not terminate the Equity Commitment Letter or the obligations under Section 2 of this Agreement pursuant to this Section 4.3(a) without first obtaining alternative financing arrangements which provide Parent with funds in an amount equal to the Rollover Amount; provided that such alternative financing arrangements (i) provide Parent to cooperate fully with sufficient funds, when added the Agent in obtaining all approvals and consents from each Governmental Authority that the Agent may deem necessary or advisable to the proceeds accomplish any such transfer or assignment of any part of the Equity Financing, Debt Financing and other sources of readily available liquidity of Parent, Merger Sub, the Company and the Company’s Subsidiaries on the Closing Date, to fund the Required Amount Pledged Stock and (ii) do not impose new to prepare, execute and file with any Governmental Authority any application, request for consent, certificate or additional conditions instrument that the Agent may deem necessary or advisable to accomplish any such transfer or assignment of any part of the receipt Pledged Stock. If Pledgors fail to execute, or fail to cause the Issuers to execute, such applications, requests for consent, certificates or instruments, the clerk of any court that has jurisdiction over the Loan Documents may execute and file the same on behalf of such financing relative to the Commitment Letters that could impair or delay the Closing. Parent shall promptly provide the Company with a copy of any definitive commitment letter or other documentation providing for such alternative financing arrangement. Notwithstanding anything to the contrary herein, the Stockholder may designate any Regulatory Disclosures that contain sensitive, legally privileged, or confidential information in respect of the Stockholder or any of its Affiliates as exclusive to the Stockholder and the Stockholder may provide that any such sensitive, legally privileged, or confidential information may only be provided on a counsel-only basis or directly to the applicable Governmental Authority requesting such information. The Stockholder shall not make any filings, or notifications in connection with the Merger pursuant to any Antitrust Laws without Parent’s prior written consent (not to be unreasonably withheld, delayed or conditioned). Parent Pledgors or the Company shall not file any Regulatory Filings that contain information with respect to Issuer, as the Stockholder or its affiliates without first providing the Stockholder and its counsel a reasonable opportunity to review and comment thereon, and will give good faith consideration to all reasonable additions, deletions or changes suggested by the Stockholder and its counselcase may be.
(b) Each Stockholder hereto representTo enforce the provisions of this Section 9, warrant the Agent is authorized to request the consent or approval of any Governmental Authority to a voluntary or an involuntary transfer of control of the Issuers of any of the Pledged Stock. In connection with the exercise of its remedies under this Pledge Agreement, the Agent may obtain the appointment of a trustee or receiver to assume, upon receipt of all necessary Judicial or other Governmental Authority consents or approvals, control of the Issuers of any of the Pledged Stock. Such trustee or receiver shall have all rights and covenant powers provided to Parent and it by law or by court order or provided to the Company that, Agent under this Pledge Agreement.
(c) Pledgors acknowledge that the approval of each appropriate Governmental Authority to such Stockholder’s knowledge: (i) none the transfer of control of the information supplied in writing by such Stockholder specifically for inclusion or incorporation by reference in Issuers may be required, that the Regulatory Disclosures will contain a material misstatement of fact or a material omission of fact necessary ownership thereof is integral to make the information provided not misleading and (ii) it does not permit any entity under the “control” (defined in Section 721 Agent's realization of the Defense Production Actvalue of such Pledged Stock, as amendedthat there is no adequate remedy at law for failure by Pledgors and the Issuers to comply with the provisions of this Section 9 and that such failure could not be adequately compensable in damages and, including all implanting regulations thereof) therefore, Pledgors agree that the provisions of a People’s Republic of China national, or any entity under the control of a Russian Federation national, to obtain through any Affiliate, control with respect to the Companythis Section 9 may be specifically enforced.
Appears in 1 contract
Regulatory Matters. Each Company shall cause (a) Subject (i) the Broker-Dealers to Section 4.4take all reasonable action to maintain all rights, privileges, broker-dealer licenses and memberships, broker-dealer registrations necessary or desirable in the Stockholder shallnormal conduct of its business, except, in each case, to the extent that failure to do so would not reasonably be expected to be materially adverse to the Companies, taken as a whole, or any Lender, (ii) all Broker-Dealers to comply with all material rules and shall use their reasonable best efforts to cause their Affiliates to, use their reasonable best efforts, consistent with the time frames set forth in Section 6.4 regulations of the Merger Agreement, SEC and FINRA applicable to supply it (including such rules and provide information that, to such Stockholder’s knowledge, is complete and accurate in all material respects to any Governmental Authority requesting such information in connection regulations dealing with filings or notifications under, or relating to, applicable laws that are required or advisable as a result of, or pursuant to, the Merger Agreement and the related financings and transactions, including, without limitation, information required or requested to be provided to any antitrust, financial or national security regulatory authorities in connection with any approvals reasonably sought in connection with the consummation of the Merger (collectively, the “Regulatory Filings” and the, “Regulatory Disclosures”, respectively). If any Governmental Authority seeks to prevent the consummation of the transactions contemplated by the Merger Agreement based on the HSR Act or any other Antitrust Laws or based on any other required approval, consent, notice or filing with a Governmental Authority and such actions by the Governmental Authority relate to the activities or investments of such Stockholder or its Affiliates (solely for purposes of this Section 4, an “Affiliate” of the Stockholder shall include any portfolio company in which such Stockholder or any of its Affiliates has made a debt or an equity investment), then if Parent in good faith reasonably determines that such actions by the Governmental Authority will not be resolved sufficiently in advance of the Termination Date, Parent may provide written notice of that determination to the Stockholder, and Parent may elect to terminate the obligations under Section 2 and Section 4.6 of this Agreement (in which case the Stockholder’s obligations under the Equity Commitment Letter shall also automatically terminatenet capital requirements) and, in that context, the Stockholder shall be entitled to receive the Per Share Price under the Merger Agreement with respect to its shares of Common Stock; provided, however that Parent shall not terminate the Equity Commitment Letter or the obligations under Section 2 of this Agreement pursuant to this Section 4.3(a) without first obtaining alternative financing arrangements which provide Parent with funds in an amount equal to the Rollover Amount; provided that extent applicable to any Broker-Dealer, all similar, equivalent or comparable foreign statutes, rules, regulations and other regulatory requirements, except, in each case, where the failure to so comply would not reasonably be expected to be materially adverse to the Companies, taken as a whole, or any Lender, (iii) all Broker-Dealers to deliver after the end of each fiscal quarter of each fiscal year of the Borrower or promptly after the date such alternative financing arrangements information is filed with the SEC, a copy of each Broker-Dealer’s Financial and Operational Combined Uniform Single Report filed with the SEC for such fiscal quarter and (iv) all Broker-Dealers to promptly deliver copies of each notice or other correspondence received from the SEC (or comparable agency in any applicable non-U.S. jurisdiction) concerning any investigation by such agency regarding financial or other operational results of any Company, in each case which are reasonably likely to be determined adversely and which if determined adversely, would reasonably be expected to be materially adverse to the Companies, taken as a whole, or any Lender, and (b) (i) provide Parent with sufficient fundsall of its Investment Adviser Companies to take all reasonable action to maintain all rights, when added privileges and investment adviser registrations necessary or desirable in the normal conduct of its business, except, in each case, to the proceeds of extent that failure to do so would not reasonably be expected to be materially adverse to the Equity FinancingCompanies, Debt Financing and other sources of readily available liquidity of Parenttaken as a whole, Merger Subor any Lender, the Company and the Company’s Subsidiaries on the Closing Date, to fund the Required Amount and (ii) do not impose new or additional conditions all of its Investment Adviser Companies to comply with all material rules and regulations of the SEC applicable to it and, to the receipt of such financing relative extent applicable to any Investment Adviser Company, all similar, equivalent or comparable foreign statutes, rules, regulations, and other regulatory requirements, except, in each case, where the failure to so comply would not reasonably be expected to be materially adverse to the Commitment Letters that could impair or delay the Closing. Parent shall promptly provide the Company with Companies, taken as a copy of any definitive commitment letter or other documentation providing for such alternative financing arrangement. Notwithstanding anything to the contrary herein, the Stockholder may designate any Regulatory Disclosures that contain sensitive, legally privileged, or confidential information in respect of the Stockholder or any of its Affiliates as exclusive to the Stockholder and the Stockholder may provide that any such sensitive, legally privileged, or confidential information may only be provided on a counsel-only basis or directly to the applicable Governmental Authority requesting such information. The Stockholder shall not make any filings, or notifications in connection with the Merger pursuant to any Antitrust Laws without Parent’s prior written consent (not to be unreasonably withheld, delayed or conditioned). Parent or the Company shall not file any Regulatory Filings that contain information with respect to the Stockholder or its affiliates without first providing the Stockholder and its counsel a reasonable opportunity to review and comment thereon, and will give good faith consideration to all reasonable additions, deletions or changes suggested by the Stockholder and its counsel.
(b) Each Stockholder hereto represent, warrant and covenant to Parent and to the Company that, to such Stockholder’s knowledge: (i) none of the information supplied in writing by such Stockholder specifically for inclusion or incorporation by reference in the Regulatory Disclosures will contain a material misstatement of fact or a material omission of fact necessary to make the information provided not misleading and (ii) it does not permit any entity under the “control” (defined in Section 721 of the Defense Production Act, as amended, including all implanting regulations thereof) of a People’s Republic of China nationalwhole, or any entity under Lender, and (iii) unless previously delivered, all of its Investment Adviser Companies to promptly deliver copies of each notice or other correspondence received from the control SEC (or comparable agency in any applicable non-U.S. jurisdiction) concerning any investigation by such agency regarding financial or other operational results of a Russian Federation nationalany Investment Adviser Company, in each case which are reasonably likely to obtain through any Affiliatebe determined adversely and which if determined adversely, control with respect would reasonably be expected to be materially adverse to the CompanyCompanies, taken as a whole, or any Lender.
Appears in 1 contract
Samples: Superpriority Secured Debtor in Possession Term Loan Agreement (RCS Capital Corp)
Regulatory Matters. (a) Subject to Section 4.4, the Stockholder Each of Mackinac and Niagara shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to (i) take, or cause to be taken, and assist and cooperate with the other party in taking, all actions necessary, proper or advisable to comply promptly with all legal requirements with respect to the transactions contemplated hereby, including obtaining any third-party consent or waiver that may be required to be obtained in connection with the transactions contemplated hereby, and, subject to the conditions set forth in Article VII, to consummate the transactions contemplated hereby (including, for purposes of this Section 6.1, actions required in order to continue any contract or agreement of Niagara or its Subsidiaries following the Closing or to avoid any penalty or other fee under such contracts and agreements, in each case arising in connection with the transactions contemplated hereby) and (ii) obtain (and assist and cooperate with the other party in obtaining) any action, nonaction, permit, consent, authorization, order, clearance, waiver or approval of, or any exemption by, any Governmental Entity that is required or advisable in connection with the transactions contemplated by this Agreement (collectively, the “Regulatory Approvals”). The parties hereto shall cooperate with each other and prepare and file, as promptly as practicable after the date hereof, all necessary documentation, and effect all applications, notices, petitions and filings, to obtain as promptly as practicable all actions, nonactions, permits, consents, authorizations, orders, clearances, waivers or approvals of all third parties and Governmental Entities that are necessary or advisable to consummate the transactions contemplated by this Agreement, including the Regulatory Approvals. Without limiting the generality of the forgoing, Mackinac will use commercially reasonable efforts to file the required applications seeking approval of the Acquisition with the Federal Reserve, the FDIC, the DIFS, and the DFI no later than 45 days from the date hereof. Niagara Bank will notify the OCC of the Bank Merger within 45 days from the date hereof. Each of Mackinac and Niagara shall use their reasonable best efforts to cause their Affiliates to, use their reasonable best efforts, consistent resolve any objections that may be asserted by any Governmental Entity with respect to this Agreement or the time frames transactions contemplated by this Agreement. Notwithstanding anything set forth in Section 6.4 of the Merger this Agreement, to supply under no circumstances shall Mackinac be required, and provide information thatNiagara and its Subsidiaries shall not be permitted (without Mackinac’s written consent in its sole discretion), to such Stockholder’s knowledgetake any action, is complete and accurate in all material respects or commit to take any action, or agree to any Governmental Authority requesting such information condition or restriction, involving Mackinac, Niagara or their respective Subsidiaries pursuant to this Section 6.1 or otherwise in connection with filings obtaining the foregoing actions, nonactions, permits, consents, authorizations, orders, clearances, waivers or notifications underapprovals, that would have, or relating towould be reasonably likely to have, applicable laws that are required individually or advisable in the aggregate, a Material Adverse Effect or a Mackinac Material Adverse Effect in respect of Mackinac, or Niagara and its Subsidiaries taken as a result ofwhole, in each case measured on a scale relative to Niagara and its Subsidiaries taken as a whole (a “Materially Burdensome Regulatory Condition”); provided that, if requested by Mackinac, then Niagara and its Subsidiaries will take or commit to take any such action, or pursuant to, the Merger Agreement and the related financings and transactions, including, without limitation, information required or requested to be provided agree to any antitrustsuch condition or restriction, financial so long as such action, commitment, agreement, condition or national security regulatory authorities restriction is binding on Niagara and its Subsidiaries only in the event the Closing occurs.
(b) Subject to applicable Laws relating to the exchange of information, Mackinac and Niagara shall, upon request, furnish each other with all information concerning Mackinac, Niagara and their respective Subsidiaries, directors, officers and shareholders and such other matters as may be reasonably necessary in connection with any approvals reasonably sought statement, filing, notice or application made by or on behalf of Mackinac, Niagara or any of their respective Subsidiaries to any Governmental Entity in connection with the consummation transactions contemplated by this Agreement. Mackinac and Niagara 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 relating to the exchange of information, any filing made or proposed to be made with, or written materials submitted or proposed to be submitted to, any third party or any Governmental Entity in connection with the transactions contemplated by this Agreement. In exercising the foregoing right, each of the Merger parties hereto shall act reasonably and as promptly as practicable.
(collectivelyc) Subject to applicable Law (including applicable Laws relating to the exchange of information), Niagara and Mackinac shall keep each other appraised of the “Regulatory Filings” and the, “Regulatory Disclosures”, respectively). If any Governmental Authority seeks status of matters relating to prevent the consummation completion of the transactions contemplated by this Agreement. Without limiting the Merger Agreement based on the HSR Act or any other Antitrust Laws or based on any other required approval, consent, notice or filing with a Governmental Authority and such actions by the Governmental Authority relate to the activities or investments of such Stockholder or its Affiliates (solely for purposes of this Section 4, an “Affiliate” generality of the Stockholder foregoing, subject to applicable Law, (i) each of Mackinac and Niagara shall include any portfolio company in which such Stockholder promptly furnish the other with copies of notices or other communications received by it or any of its Affiliates has made a debt Subsidiaries (or an equity investmentwritten summaries of communications received orally), then if Parent in good faith reasonably determines that such actions by the from any third party or Governmental Authority will not be resolved sufficiently in advance of the Termination Date, Parent may provide written notice of that determination to the Stockholder, and Parent may elect to terminate the obligations under Section 2 and Section 4.6 of this Agreement (in which case the Stockholder’s obligations under the Equity Commitment Letter shall also automatically terminate) and, in that context, the Stockholder shall be entitled to receive the Per Share Price under the Merger Agreement with respect to its shares of Common Stock; provided, however that Parent shall not terminate the Equity Commitment Letter or the obligations under Section 2 of this Agreement pursuant to this Section 4.3(a) without first obtaining alternative financing arrangements which provide Parent with funds in an amount equal to the Rollover Amount; provided that such alternative financing arrangements (i) provide Parent with sufficient funds, when added to the proceeds of the Equity Financing, Debt Financing and other sources of readily available liquidity of Parent, Merger Sub, the Company and the Company’s Subsidiaries on the Closing Date, to fund the Required Amount and (ii) do not impose new or additional conditions to the receipt of such financing relative to the Commitment Letters that could impair or delay the Closing. Parent shall promptly provide the Company with a copy of any definitive commitment letter or other documentation providing for such alternative financing arrangement. Notwithstanding anything to the contrary herein, the Stockholder may designate any Regulatory Disclosures that contain sensitive, legally privileged, or confidential information in respect of the Stockholder or any of its Affiliates as exclusive to the Stockholder and the Stockholder may provide that any such sensitive, legally privileged, or confidential information may only be provided on a counsel-only basis or directly to the applicable Governmental Authority requesting such information. The Stockholder shall not make any filings, or notifications in connection with the Merger pursuant to any Antitrust Laws without Parent’s prior written consent (not to be unreasonably withheld, delayed or conditioned). Parent or the Company shall not file any Regulatory Filings that contain information Entity with respect to the Stockholder or its affiliates without first providing transactions contemplated by this Agreement, (ii) each of Mackinac and Niagara shall provide the Stockholder and its counsel other a reasonable opportunity to review and comment thereonin advance, and will give good faith consideration to all reasonable additions, deletions or changes suggested by the Stockholder and its counsel.
(b) Each Stockholder hereto represent, warrant and covenant to Parent and to the Company that, to such Stockholder’s knowledge: (i) none extent practicable accept the reasonable comments of the other in connection with, any proposed nonconfidential written communication to, including any filings with, any Governmental Entity, in each case subject to applicable Laws relating to the exchange of information supplied in writing by such Stockholder specifically for inclusion or incorporation by reference in the Regulatory Disclosures will contain a material misstatement of fact or a material omission of fact necessary to make the information provided not misleading and (iiiii) it does not permit Niagara shall consider in good faith Mackinac’s views with respect to, and confer in good faith with Mackinac to resolve, any entity under the “control” (defined in Section 721 of the Defense Production Act, disagreement as amended, including all implanting regulations thereof) of a People’s Republic of China national, or any entity under the control of a Russian Federation national, to obtain through any Affiliate, control strategy with respect to any communication by Niagara or any of its Subsidiaries with any Governmental Entity or third party relating to the Companytransactions contemplated by this Agreement. Niagara shall not, and shall cause its Subsidiaries to not, participate in any meeting or substantive discussion, either in person or by telephone, with any Governmental Entity in connection with the proposed transactions unless it consults with Mackinac in advance and, to the extent not prohibited by applicable Law, gives Mackinac the opportunity to attend and participate. Any such disclosures or rights to participate may be made on an outside counsel-only basis to the extent required under applicable Law.
Appears in 1 contract
Samples: Stock Purchase Agreement (Mackinac Financial Corp /Mi/)
Regulatory Matters. (a) Subject to Section 4.4STA shall have the responsibility for preparing, the Stockholder shallobtaining and maintaining Drug Approval Applications and any other Regulatory Approvals and other submissions, and shall use their reasonable best efforts to cause their Affiliates to, use their reasonable best efforts, consistent for conducting communications with the time frames set forth Regulatory Authorities, for the Licensed Product in Section 6.4 the Territory. STA will promptly notify PUMA of the Merger Agreementall such material communications or correspondence with Regulatory Authorities and STA will provide to PUMA copies of all substantive written communications received by STA (or its Related Parties) from any Regulatory Authority, to supply and provide information that, to such Stockholder’s knowledge, is complete and accurate in all material respects or submitted by STA (or its Related Parties) to any Governmental Regulatory Authority. STA shall allow PUMA to participate in meetings with Regulatory Authority requesting such information in connection where permitted by Applicable Laws, and consult with filings or notifications underPUMA, or relating to, applicable laws that are required or advisable as a result of, or pursuant to, the Merger Agreement and the related financings and transactions, including, without limitation, information required or requested to be provided to any antitrust, financial or national security regulatory authorities in connection with any approvals reasonably sought in connection with the consummation of the Merger (collectively, the “Regulatory Filings” and the, “Regulatory Disclosures”, respectively). If any Governmental Authority seeks to prevent the consummation of the transactions contemplated by the Merger Agreement based on the HSR Act or any other Antitrust Laws or based on any other required approval, consent, notice or filing with a Governmental Authority and such actions by the Governmental Authority relate to the activities or investments of such Stockholder or its Affiliates (solely for purposes of this Section 4, an “Affiliate” of the Stockholder shall include any portfolio company in which such Stockholder or any of its Affiliates has made a debt or an equity investment), then if Parent consider in good faith reasonably determines that any comments PUMA may have regarding, any and all such actions communications and correspondence. STA’s responsibility shall be to implement such activities on the basis of materials and documents provided by the Governmental Authority PUMA, and in any case STA will not be resolved sufficiently required to assemble data, conduct trials or the like unless such trial or other activities are specifically requested by an authority within the Territory, in advance of the Termination Date, Parent may provide written notice of that determination which event STA shall be responsible for doing so. All Regulatory Approvals relating to the Stockholder, and Parent may elect to terminate the obligations under Section 2 and Section 4.6 of this Agreement (in which case the Stockholder’s obligations under the Equity Commitment Letter shall also automatically terminate) and, in that context, the Stockholder shall be entitled to receive the Per Share Price under the Merger Agreement with respect to its shares of Common Stock; provided, however that Parent shall not terminate the Equity Commitment Letter or the obligations under Section 2 of this Agreement pursuant to this Section 4.3(a) without first obtaining alternative financing arrangements which provide Parent with funds in an amount equal to the Rollover Amount; provided that such alternative financing arrangements (i) provide Parent with sufficient funds, when added to the proceeds of the Equity Financing, Debt Financing and other sources of readily available liquidity of Parent, Merger Sub, the Company and the Company’s Subsidiaries on the Closing Date, to fund the Required Amount and (ii) do not impose new or additional conditions to the receipt of such financing relative to the Commitment Letters that could impair or delay the Closing. Parent shall promptly provide the Company with a copy of any definitive commitment letter or other documentation providing for such alternative financing arrangement. Notwithstanding anything to the contrary herein, the Stockholder may designate any Regulatory Disclosures that contain sensitive, legally privileged, or confidential information in respect of the Stockholder or any of its Affiliates as exclusive to the Stockholder and the Stockholder may provide that any such sensitive, legally privileged, or confidential information may only be provided on a counsel-only basis or directly to the applicable Governmental Authority requesting such information. The Stockholder shall not make any filings, or notifications in connection with the Merger pursuant to any Antitrust Laws without Parent’s prior written consent (not to be unreasonably withheld, delayed or conditioned). Parent or the Company shall not file any Regulatory Filings that contain information Licensed Product with respect to the Stockholder Territory shall be owned by, and shall be the sole property and held in the name of, STA or its affiliates designated Affiliate or Sublicensee. STA shall have the right to reference any regulatory filings or Regulatory Approvals Controlled by PUMA made or obtained in territories outside the Territory, including without first providing limitation the Stockholder DMF and master files maintained and Controlled by PUMA in territories outside the Territory. PUMA, its Affiliates and its counsel a reasonable opportunity Related Parties shall have the right to review and comment thereon, and will give good faith consideration to all reasonable additions, deletions reference any regulatory filings or changes suggested Regulatory Approvals made or obtained by the Stockholder and STA or its counsel.
(b) Each Stockholder hereto represent, warrant and covenant to Parent and to the Company that, to such Stockholder’s knowledge: (i) none of the information supplied in writing by such Stockholder specifically for inclusion Affiliates or incorporation by reference Related Parties in the Regulatory Disclosures will contain a material misstatement of fact or a material omission of fact necessary to make the information provided not misleading and (ii) it does not permit any entity under the “control” (defined in Section 721 of the Defense Production Act, as amendedTerritory, including all implanting regulations thereof) of a People’s Republic of China national, without limitation the DMF and master files maintained by STA or any entity under the control of a Russian Federation national, to obtain through any Affiliate, control with respect to the Companyits Affiliates or Related Parties.
Appears in 1 contract
Regulatory Matters. (a) Subject to the terms and conditions set forth in this Agreement, without limiting the generality of the other undertakings pursuant to this Section 4.45.6, each of the Stockholder shallCompany (in the case of Section 5.5(e)(i) and Section 5.5(e)(iii) set forth below) and Parent (in all cases set forth below) agree to take or cause to be taken the following actions:
(i) the prompt provision to each and every federal, state, local or foreign court or Governmental Entity with jurisdiction over enforcement of any applicable antitrust or competition Laws (“Government Antitrust Entity”) of non-privileged information and shall documents requested by any Government Antitrust Entity or that are necessary, proper or advisable to permit consummation of the Transactions;
(ii) the prompt use their of its reasonable best efforts to cause their Affiliates toavoid the entry of any permanent, use their reasonable best effortspreliminary or temporary injunction or other order, consistent with the time frames set forth in Section 6.4 decree, decision, determination or judgment that would delay, restrain, prevent, enjoin or otherwise prohibit consummation of the Merger Agreement, to supply and provide information that, to such Stockholder’s knowledge, is complete and accurate in all material respects to any Governmental Authority requesting such information in connection with filings or notifications under, or relating to, applicable laws that are required or advisable as a result of, or pursuant to, the Merger Agreement and the related financings and transactionsTransactions, including, without limitation, information required the defense through litigation on the merits of any claim asserted in any court, agency or requested other proceeding by any Person, including, without limitation, any Governmental Entity, seeking to delay, restrain, prevent, enjoin or otherwise prohibit consummation of such transactions and the proffer and agreement by Parent of its willingness to sell, lease, license or otherwise dispose of, or hold separate pending such disposition, and promptly to effect the sale, lease, license, disposal and holding separate of, such assets, rights, product lines, licenses, categories of assets or businesses or other operations, or interests therein, of Parent, the Company or any of their respective Subsidiaries or Affiliates (and the entry into agreements with, and submission to orders of, the relevant Government Antitrust Entity giving effect thereto) if such action should be provided reasonably necessary or advisable to avoid, prevent, eliminate or remove the actual, anticipated or threatened (x) commencement of any antitrustproceeding in any forum or (y) issuance of any order, financial decree, decision, determination, judgment or national security regulatory authorities in connection with any approvals reasonably sought in connection with the Law that would delay, restrain, prevent, enjoin or otherwise prohibit consummation of the Merger Transactions by any Government Antitrust Entity (collectivelyit being understood that no such action will be binding on the Company, Parent or any of their respective Affiliates unless it is contingent upon the “Regulatory Filings” and the, “Regulatory Disclosures”, respectively). If any Governmental Authority seeks to prevent the consummation occurrence of the transactions contemplated by Closing); provided, that neither the Merger Agreement based on the HSR Act or any other Antitrust Laws or based on any other required approval, consent, notice or filing with a Governmental Authority and such actions by the Governmental Authority relate to the activities or investments of such Stockholder or its Affiliates (solely for purposes of this Section 4, an “Affiliate” of the Stockholder shall include any portfolio company in which such Stockholder or Company nor any of its Affiliates has made a debt shall take or an equity investment)agree to take any such action without the prior written consent of Parent; and
(iii) the prompt use of its reasonable best efforts to take, then if Parent in good faith the event that any permanent, preliminary or temporary injunction, decision, order, judgment, determination, decree or Law is entered, issued or enacted, or becomes reasonably determines foreseeable to be entered, issued or enacted, in any proceeding, review or inquiry of any kind that such actions by the Governmental Authority will not be resolved sufficiently in advance would make consummation of the Termination Date, Parent may provide written notice of that determination to Transactions in accordance with the Stockholder, and Parent may elect to terminate the obligations under Section 2 and Section 4.6 terms of this Agreement unlawful or that would delay, restrain, prevent, enjoin or otherwise prohibit consummation of the Transactions, any and all steps (in which case the Stockholder’s obligations under the Equity Commitment Letter shall also automatically terminate) andincluding, in that contextwithout limitation, the Stockholder shall be entitled to receive appeal thereof, the Per Share Price under the Merger Agreement with respect to its shares posting of Common Stock; provided, however that Parent shall not terminate the Equity Commitment Letter a bond or the obligations under Section 2 of this Agreement pursuant to this Section 4.3(a) without first obtaining alternative financing arrangements which provide Parent with funds in an amount equal to the Rollover Amount; provided that such alternative financing arrangements (i) provide Parent with sufficient funds, when added to the proceeds taking of the Equity Financing, Debt Financing and other sources of readily available liquidity of Parent, Merger Sub, the Company and the Company’s Subsidiaries on the Closing Date, to fund the Required Amount and steps contemplated by clause (ii) do not impose new of this paragraph (e)) necessary to resist, vacate, modify, reverse, suspend, prevent, eliminate, avoid or additional conditions remove such actual, anticipated or threatened injunction, decision, order, judgment, determination, decree or enactment so as to the receipt of permit such financing relative to the Commitment Letters that could impair or delay the Closing. Parent shall promptly provide the Company with a copy of any definitive commitment letter or other documentation providing for such alternative financing arrangement. Notwithstanding anything to the contrary herein, the Stockholder may designate any Regulatory Disclosures that contain sensitive, legally privileged, or confidential information in respect of the Stockholder or any of its Affiliates as exclusive to the Stockholder and the Stockholder may provide that any such sensitive, legally privileged, or confidential information may only be provided consummation on a counsel-only basis or directly schedule as close as possible to the applicable Governmental Authority requesting such information. The Stockholder shall not make any filings, or notifications in connection with the Merger pursuant to any Antitrust Laws without Parent’s prior written consent (not to be unreasonably withheld, delayed or conditioned). Parent or the Company shall not file any Regulatory Filings that contain information with respect to the Stockholder or its affiliates without first providing the Stockholder and its counsel a reasonable opportunity to review and comment thereon, and will give good faith consideration to all reasonable additions, deletions or changes suggested contemplated by the Stockholder and its counselthis Agreement.
(b) Each Stockholder hereto represent, warrant and covenant to Parent and to the Company that, to such Stockholder’s knowledge: (i) none of the information supplied in writing by such Stockholder specifically for inclusion or incorporation by reference in the Regulatory Disclosures will contain a material misstatement of fact or a material omission of fact necessary to make the information provided not misleading and (ii) it does not permit any entity under the “control” (defined in Section 721 of the Defense Production Act, as amended, including all implanting regulations thereof) of a People’s Republic of China national, or any entity under the control of a Russian Federation national, to obtain through any Affiliate, control with respect to the Company.
Appears in 1 contract
Samples: Merger Agreement (Connecture Inc)
Regulatory Matters. (a) Subject to Without modifying or limiting Section 4.411 of the Agreement in any way, the Stockholder shallParties agree:
i. Illumina agrees to provide necessary, reasonable regulatory assistance from an appropriately trained and shall use their reasonable best efforts experienced regulatory professional directly relating to cause their Affiliates to, use their reasonable best efforts, consistent with the time frames set forth in Section 6.4 of the Merger Agreement, to supply and provide information that, to such Stockholder’s knowledge, is complete and accurate in all material respects to any Governmental Authority requesting such information in connection with filings or notifications under, or relating to, applicable laws that are required or advisable as a result of, or pursuant to, the Merger Agreement and the related financings and transactions, including, without limitation, information required or requested to be provided to any antitrust, financial or national security regulatory authorities in connection with any approvals reasonably sought in connection with the consummation of the Merger (collectively, the “Regulatory Filings” and the, “Regulatory Disclosures”, respectively). If any Governmental Authority seeks to prevent the consummation of the transactions contemplated by the Merger Agreement based on the HSR Act or any other Antitrust Laws or based on any other required approval, consent, notice or filing with a Governmental Authority and such actions by the Governmental Authority relate to the activities or investments of such Stockholder Illumina Hardware or its Affiliates (solely Consumables in a submission for purposes Regulatory Approval of this Section 4Xxxxxx IVD Kits [*], an “Affiliate” of the Stockholder shall include any portfolio company in which such Stockholder or any of its Affiliates has made a debt or an equity investment), then if Parent in good faith reasonably determines that such actions by the Governmental Authority will not be resolved sufficiently in advance of the Termination Date, Parent may provide written notice of that determination to the Stockholder, and Parent may elect to terminate the obligations under Section 2 and Section 4.6 of this Agreement (in which case the Stockholder’s obligations under the Equity Commitment Letter shall also automatically terminate) and, in that context, the Stockholder shall be entitled to receive the Per Share Price under the Merger Agreement with respect to its shares of Common Stock; provided, however that Parent shall not terminate the Equity Commitment Letter or the obligations under Section 2 of this Agreement pursuant to this Section 4.3(a) without first obtaining alternative financing arrangements which provide Parent with funds in an amount equal to the Rollover Amount; provided that such alternative financing arrangements (i) provide Parent with sufficient fundsIllumina receives at least [*] prior notice of any such submission, when added to the proceeds of the Equity Financing, Debt Financing and other sources of readily available liquidity of Parent, Merger Sub, the Company and the Company’s Subsidiaries on the Closing Date, to fund the Required Amount and (ii) do If Illumina’s assistance exceeds [*], then Illumina will not impose new be obligated to perform any such excess hours; provided that, Illumina may not refuse to perform such excess hours (at the hourly rate above) [*].
ii. Illumina will not be required under this Agreement to [*].
iii. If requested by Customer, Illumina shall cooperate reasonably with Customer with respect to any information or additional conditions documents that Customer requests that Customer believes are needed to assist Customer in securing Regulatory Approval of any Xxxxxx IVD Kit that is subject to this Agreement. For the avoidance of doubt, such reasonable cooperation shall require Illumina to share any of its information or documents that are required by a governmental regulatory body in order for Customer to secure Regulatory Approval of any Xxxxxx IVD Kit that is subject to this Agreement. However, *CERTAIN INFORMATION HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS. nothing contained herein or in the Agreement shall be construed to require that Illumina disclose any information or document, regardless of whether it is trade secret or other proprietary information (collectively, “Regulatory Information”) directly to Customer if the governmental regulatory body from which Regulatory Approval is sought allows such Regulatory Information to be submitted to the receipt regulatory body in the form of such financing relative a device master file or similar filing to support Regulatory Approval of any Xxxxxx IVD Kit that is subject to this Agreement (collectively, “DMF”). If Illumina submits a DMF to a regulatory body, Illumina shall simultaneously submit a letter to the Commitment Letters that could impair or delay the Closing. Parent shall promptly provide the Company regulatory body, with a copy to Customer, authorizing the regulatory body to refer to that DMF in support of any definitive commitment letter submission for Regulatory Approval by Customer for a Xxxxxx IVD Kit.
iv. Customer will promptly (within [*] of receipt) provide Illumina with [*]of any and all correspondence received from any regulatory authority pertaining to obtaining or other documentation providing maintaining Regulatory Approval for such alternative financing arrangement. Notwithstanding anything a Xxxxxx IVD Kit, but only to the contrary hereinextent such correspondence relates to Products.
v. Illumina will promptly respond to any and all correspondence received from any regulatory authority that would impact Customer’s ability to obtain or maintain or the timelines for obtaining or maintaining Regulatory Approval for a Xxxxxx IVD Kit, the Stockholder may designate any provided that Customer is actively pursuing or maintaining such Regulatory Disclosures that contain sensitive, legally privileged, or confidential information in respect Approvals. Illumina shall notify Customer when it receives such correspondence and when it responds and will provide [*] of the Stockholder or any of its Affiliates as exclusive correspondence and responses, but only to the Stockholder and the Stockholder may provide that any extent such sensitive, legally privileged, or confidential information may only be provided on correspondence relates to a counsel-only basis or directly to the applicable Governmental Authority requesting such information. The Stockholder shall not make any filings, or notifications in connection with the Merger pursuant to any Antitrust Laws without Parent’s prior written consent (not to be unreasonably withheld, delayed or conditioned). Parent or the Company shall not file any Regulatory Filings that contain information with respect to the Stockholder or its affiliates without first providing the Stockholder and its counsel a reasonable opportunity to review and comment thereon, and will give good faith consideration to all reasonable additions, deletions or changes suggested by the Stockholder and its counselXxxxxx IVD Kit.
(b) Each Stockholder hereto represent, warrant and covenant to Parent and to the Company that, to such Stockholder’s knowledge: (i) none of the information supplied in writing by such Stockholder specifically for inclusion or incorporation by reference in the Regulatory Disclosures will contain a material misstatement of fact or a material omission of fact necessary to make the information provided not misleading and (ii) it does not permit any entity under the “control” (defined in Section 721 of the Defense Production Act, as amended, including all implanting regulations thereof) of a People’s Republic of China national, or any entity under the control of a Russian Federation national, to obtain through any Affiliate, control with respect to the Company.
Appears in 1 contract
Samples: Supply Agreement (Natera, Inc.)
Regulatory Matters. (a) Subject to Section 4.4All authorizations, the Stockholder shallconsents, and shall use their reasonable best efforts to cause their Affiliates to, use their reasonable best efforts, consistent with the time frames set forth in Section 6.4 of the Merger Agreement, to supply and provide information that, to such Stockholder’s knowledge, is complete and accurate in all material respects to any Governmental Authority requesting such information in connection with filings orders or notifications under, or relating to, applicable laws that are required or advisable as a result approvals of, or pursuant todeclarations or filings with, the Merger Agreement and the related financings and transactionsall expirations of waiting periods imposed by, includingany governmental body, without limitation, information required agency or requested to be provided to any antitrust, financial or national security regulatory authorities in connection with any approvals reasonably sought in connection with the consummation official (all of the Merger (collectivelyforegoing, the “Regulatory Filings” and the, “Regulatory Disclosures”, respectively). If any Governmental Authority seeks to prevent "Consents") which are necessary for the consummation of the transactions contemplated hereby (including any consents or approvals required by the Merger Agreement based FCC or any state public utility commissions), other than immaterial Consents the failure to obtain which would have no material adverse effect on the HSR Act or any other Antitrust Laws or based on any other required approval, consent, notice or filing with a Governmental Authority and such actions by the Governmental Authority relate to the activities or investments of such Stockholder or its Affiliates (solely for purposes of this Section 4, an “Affiliate” consummation of the Stockholder transactions contemplated hereby and no Material Adverse Effect on Holdings or the Surviving Corporations, shall include any portfolio company have been filed, have occurred or have been obtained (all such permits, approvals, filings and consents and the lapse of all such waiting periods being referred to as the "Requisite Regulatory Approvals") and all such Requisite Regulatory Approvals shall be in which such Stockholder or any of its Affiliates has made full force and effect, provided, however, that a debt or an equity investment), then if Parent in good faith reasonably determines that such actions by the Governmental Authority will Requisite Regulatory Approval shall not be resolved sufficiently in advance of the Termination Date, Parent may provide written notice of that determination deemed to the Stockholder, and Parent may elect to terminate the obligations under Section 2 and Section 4.6 of this Agreement (in which case the Stockholder’s obligations under the Equity Commitment Letter shall also automatically terminate) and, in that context, the Stockholder shall be entitled to receive the Per Share Price under the Merger Agreement with respect to its shares of Common Stock; provided, however that Parent shall not terminate the Equity Commitment Letter or the obligations under Section 2 of this Agreement pursuant to this Section 4.3(a) without first obtaining alternative financing arrangements which provide Parent with funds in an amount equal to the Rollover Amount; provided that such alternative financing arrangements (i) provide Parent with sufficient funds, when added to the proceeds of the Equity Financing, Debt Financing and other sources of readily available liquidity of Parent, Merger Sub, the Company and the Company’s Subsidiaries on the Closing Date, to fund the Required Amount and (ii) do not impose new or additional conditions to the receipt of such financing relative to the Commitment Letters that could impair or delay the Closing. Parent shall promptly provide the Company with a copy of any definitive commitment letter or other documentation providing for such alternative financing arrangement. Notwithstanding anything to the contrary herein, the Stockholder may designate any Regulatory Disclosures that contain sensitive, legally privileged, or confidential information in respect of the Stockholder or any of its Affiliates as exclusive to the Stockholder and the Stockholder may provide that any such sensitive, legally privileged, or confidential information may only be provided on a counsel-only basis or directly to the applicable Governmental Authority requesting such information. The Stockholder shall not make any filings, or notifications have been obtained if in connection with the Merger pursuant to grant thereof there shall have been an imposition by any Antitrust Laws without Parent’s prior written consent (not to be unreasonably withheldstate or federal governmental body, delayed agency or conditioned). Parent official of any condition, requirement, restriction or the Company shall not file change of regulation, or any Regulatory Filings that contain information with respect to the Stockholder other action directly or its affiliates without first providing the Stockholder and its counsel a reasonable opportunity to review and comment thereon, and will give good faith consideration to all reasonable additions, deletions or changes suggested by the Stockholder and its counsel.
(b) Each Stockholder hereto represent, warrant and covenant to Parent and to the Company that, indirectly related to such Stockholder’s knowledge: grant taken by such governmental body, which would reasonably be expected to either (i) none of have a Material Adverse Effect on Holdings or the information supplied in writing by such Stockholder specifically for inclusion Surviving Corporations, or incorporation by reference in the Regulatory Disclosures will contain a material misstatement of fact or a material omission of fact necessary to make the information provided not misleading and (ii) it does not permit any entity under prevent the “control” (defined parties hereto from realizing in Section 721 all material respects the economic benefits of the Defense Production Acttransactions contemplated by this Agreement that such parties currently anticipate receiving therefrom; provided further, however, that until such time as amendedthe Requisite Regulatory Approvals have been obtained, including all implanting there shall be no change in the ownership or management of IWL, the Company or the Partnership and no transfer of control whatsoever over the governmental authorizations held by IWL, the Company or the Partnership except insofar as such change in ownership or management or transfer of control may be completed without obtaining regulatory approval in order to comply with applicable federal, state and local laws, rules, regulations thereof) of a People’s Republic of China national, or any entity under the control of a Russian Federation national, to obtain through any Affiliate, control with respect to the Company.and policies;
Appears in 1 contract
Regulatory Matters. The Agents and the Lenders hereby agree that they will not take action pursuant to the Security Documents with respect to any item of Collateral unless and until such time as all applicable requirements (aif any) Subject of the FCC or other Governmental Authority and the respective laws, rules and regulations thereof have been satisfied or that would constitute or result in an assignment or a change of control of the FCC or other governmental permits, licenses, or other authorizations now held by or to Section 4.4be issued to the Borrower or any of its Subsidiaries, or otherwise would require prior notice to or approval from a Governmental Authority, without first providing such notice or obtaining such prior approval. The Borrower agrees to take any action which the Stockholder shallCollateral Agent may reasonably request consistent with and subject to and in accordance with applicable law in order to obtain from the FCC or any other relevant Governmental Authority such approval as may be necessary to enable the Lenders to exercise the full rights and benefits granted to the Lenders pursuant to this Agreement, and shall including the use their of the Borrower's commercially reasonable best efforts to cause their Affiliates to, use their reasonable best efforts, consistent with assist in obtaining the time frames set forth in Section 6.4 approval of the Merger Agreement, to supply and provide information that, to such Stockholder’s knowledge, is complete and accurate in all material respects to FCC or any other relevant Governmental Authority requesting for any action or transaction contemplated by the Security Documents for which such information in connection with filings or notifications under, or relating to, applicable laws that are approval is required or advisable as a result of, or pursuant to, the Merger Agreement by law and the related financings and transactions, includingspecifically, without limitation, information required or requested upon request, to be provided to any antitrustprepare, financial or national security regulatory authorities in connection with any approvals reasonably sought in connection sign and file with the consummation of the Merger (collectively, the “Regulatory Filings” and the, “Regulatory Disclosures”, respectively). If any Governmental Authority seeks to prevent the consummation of the transactions contemplated by the Merger Agreement based on the HSR Act FCC or any other Antitrust Laws or based on any other required approval, consent, notice or filing with a relevant Governmental Authority the assignor's or transferor's and licensee's portions of any application or applications for consent to the assignment or transfer of control of any FCC or other governmental satellite construction permit, license or other authorization to operate that may be necessary or appropriate under the rules of the FCC or such actions by the other Governmental Authority relate for approval of any sale or transfer of control of the Collateral pursuant to the activities or investments of such Stockholder or its Affiliates (solely for purposes of this Section 4, an “Affiliate” exercise of the Stockholder shall include Secured Creditors' rights and remedies under the Security Documents. The Borrower further consents, subject to obtaining any portfolio company in which such Stockholder necessary approvals, to the assignment or transfer of control of any of its Affiliates has made FCC or other governmental satellite construction permit, license, or other authorization to operate to a debt receiver, trustee, or an equity investment), then if Parent in good faith reasonably determines that such actions by the Governmental Authority will not be resolved sufficiently in advance similar official or to any purchaser of the Termination Date, Parent may provide written notice of that determination to the Stockholder, and Parent may elect to terminate the obligations under Section 2 and Section 4.6 of this Agreement (in which case the Stockholder’s obligations under the Equity Commitment Letter shall also automatically terminate) and, in that context, the Stockholder shall be entitled to receive the Per Share Price under the Merger Agreement with respect to its shares of Common Stock; provided, however that Parent shall not terminate the Equity Commitment Letter or the obligations under Section 2 of this Agreement pursuant to this Section 4.3(a) without first obtaining alternative financing arrangements which provide Parent with funds in an amount equal to the Rollover Amount; provided that such alternative financing arrangements (i) provide Parent with sufficient funds, when added to the proceeds of the Equity Financing, Debt Financing and other sources of readily available liquidity of Parent, Merger Sub, the Company and the Company’s Subsidiaries on the Closing Date, to fund the Required Amount and (ii) do not impose new or additional conditions to the receipt of such financing relative to the Commitment Letters that could impair or delay the Closing. Parent shall promptly provide the Company with a copy of any definitive commitment letter or other documentation providing for such alternative financing arrangement. Notwithstanding anything to the contrary herein, the Stockholder may designate any Regulatory Disclosures that contain sensitive, legally privileged, or confidential information in respect of the Stockholder or any of its Affiliates as exclusive to the Stockholder and the Stockholder may provide that any such sensitive, legally privileged, or confidential information may only be provided on a counsel-only basis or directly to the applicable Governmental Authority requesting such information. The Stockholder shall not make any filings, or notifications in connection with the Merger Collateral pursuant to any Antitrust Laws without Parent’s prior written consent (not to be unreasonably withheldpublic or private sale, delayed judicial sale, foreclosure, or conditioned). Parent or the Company shall not file any Regulatory Filings that contain information with respect exercise of other remedies available to the Stockholder or its affiliates without first providing the Stockholder and its counsel a reasonable opportunity to review and comment thereon, and will give good faith consideration to all reasonable additions, deletions or changes suggested Lenders as permitted by the Stockholder and its counselapplicable law.
(b) Each Stockholder hereto represent, warrant and covenant to Parent and to the Company that, to such Stockholder’s knowledge: (i) none of the information supplied in writing by such Stockholder specifically for inclusion or incorporation by reference in the Regulatory Disclosures will contain a material misstatement of fact or a material omission of fact necessary to make the information provided not misleading and (ii) it does not permit any entity under the “control” (defined in Section 721 of the Defense Production Act, as amended, including all implanting regulations thereof) of a People’s Republic of China national, or any entity under the control of a Russian Federation national, to obtain through any Affiliate, control with respect to the Company.
Appears in 1 contract
Samples: Credit Agreement (Intelsat LTD)
Regulatory Matters. (a) Subject Without limitation of Section 3.1, Gilead, under the oversight of the JDC and with the participation of BMS as described in this Section 3.4, shall have primary responsibility for preparing and filing all necessary Regulatory Documentation and for acting as liaison on behalf of the JV for all communications with the Regulatory Authorities in the Territory relating to Section 4.4the obtaining of approval of the Combination Product in the Field, in the case of the United States, under an NDA separate from the respective NDAs for Sustiva, Viread, Emtriva and Truvada, and in the case of Canada, under an NDS separate from the respective NDSs for Sustiva, Viread, Emtriva and Truvada. Gilead shall prepare and file all Combination Product Regulatory Documentation with Regulatory Authorities in the Territory in the name of the JV. All submissions of Combination Product Regulatory Documentation consisting of any INDs, NDAs, sNDAs, CTAs, NDSs, SNDSs, CMC Data, drug master files and PSURs (collectively, the Stockholder shall“Key Regulatory Submissions”) shall be approved in advance by the JDC (which shall not delegate such approval to any subcommittees or groups referred to in Section 2.6(g)). If permitted by Applicable Law, the label for the Combination Product shall list the agents in the following order: [ * ]. For the avoidance of doubt, this Section 3.4(a) shall not apply with respect to obtaining and maintaining the [ * ].
(b) Gilead shall notify BMS as early as reasonably practicable in advance of all meetings (whether face to face or by teleconference) and communications with representatives of the Regulatory Authorities in the Territory concerning the Combination Product and in order to provide BMS with an opportunity to be present at such meetings and to review and comment on such communications; provided, however, that in no event shall Gilead, [ * ] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED. after using reasonable efforts to provide BMS with an opportunity to be present at any such meeting or to review and comment on such communications, be required to postpone any such meeting to ensure that BMS attends such meeting or to postpone any such communication in order to ensure that BMS’ comments are received by Gilead in advance of its submission to Regulatory Authorities, as the case may be. In order to enhance the efficiency of the Member Parties’ coordination on regulatory matters concerning the Combination Product, and shall use their reasonable best efforts increase the likelihood that BMS will have a meaningful opportunity to participate in such activities, during the term of this Agreement, BMS will cause their Affiliates to, use their reasonable best efforts, consistent one of its employees with the necessary regulatory expertise and decision-making authority to be dedicated on a full-time frames set forth basis to serving as a conduit for BMS’ participation in Section 6.4 such activities. Gilead shall promptly forward to BMS in advance of the Merger Agreement, to supply any such meeting copies of all documents and provide other relevant information that, relating to such Stockholder’s knowledgemeeting. Notwithstanding anything contained in this Agreement to the contrary, is complete and accurate in all material respects to (i) at any Governmental Authority requesting such information in connection with filings or notifications undermeeting with, or relating to, applicable laws that are required or advisable as a result of, or pursuant any such communication to, the Merger Agreement Regulatory Authorities in the Territory concerning the Combination Product, at which BMS and Gilead are present or in which both Member Parties participate, each Member Party shall take the related financings lead on matters relating to its respective Single Agent Product(s) or Double Agent Product and transactions(ii) at any such meeting with, or any such communication to, such Regulatory Authorities concerning the Combination Product, at which only one Member Party meets or in which communication only one Member Party participates (without the other Member Party’s presence or participation), such Member Party shall not engage in any substantive discussions pertaining to the other Member Party’s Single Agent Product(s) or Double Agent Product, as the case may be, including, without limitation, information required with respect to API consisting of EFV, TDF or requested FTC, as the case may be, as it relates to be provided the Combination Product. Notwithstanding anything in this Section 3.4(b) to the contrary, this Section 3.4(b) shall not apply with respect to obtaining and maintaining the [ * ].
(c) Each Member Party shall promptly forward to the other Member Party any antitrustwritten communications received from representatives of the Regulatory Authorities relating to the Combination Product. BMS shall provide Gilead with full access to and copies (including electronic copies if requested) of the BMS Regulatory Documentation, financial or national security regulatory authorities including without limitation the NDA and NDS for Sustiva, as Gilead may reasonably request in connection with any approvals reasonably sought (and solely for the purpose of) the performance of its duties under this Section 3.4. Notwithstanding anything in connection this Section 3.4(c) to the contrary, this Section 3.4(c) shall not apply with respect to obtaining and maintaining the [ * ].
(d) Nothing in this Section 3.4 shall prohibit or restrict either Member Party from communicating with the consummation Regulatory Authorities on matters relating to the Exploitation of any of its respective Single Agent Product(s), Double Agent Product or other pharmaceutical products. Each Member Party shall promptly notify the Merger (collectively, other Member Party of any label change for the “Regulatory Filings” and the, “Regulatory Disclosures”, respectively)first Member Party’s respective Single Agent Product(s) or Double Agent Product that may result in a label change for the Combination Product. If any Governmental Authority seeks communications from Regulatory Authorities regarding potential label changes for the Combination Product are reasonably expected to prevent the consummation of the transactions contemplated by the Merger lead to a label change for a Member Party’s Single Agent Product or Double Agent Product, then, notwithstanding anything in this Agreement based on the HSR Act or any other Antitrust Laws or based on any other required approval, consent, notice or filing with a Governmental Authority and such actions by the Governmental Authority relate to the activities or investments of such Stockholder or its Affiliates (solely for purposes of this Section 4, an “Affiliate” of the Stockholder shall include any portfolio company in which such Stockholder or any of its Affiliates has made a debt or an equity investment), then if Parent in good faith reasonably determines that such actions by the Governmental Authority will not be resolved sufficiently in advance of the Termination Date, Parent may provide written notice of that determination to the Stockholder, and Parent may elect to terminate the obligations under Section 2 and Section 4.6 of this Agreement (in which case the Stockholder’s obligations under the Equity Commitment Letter shall also automatically terminate) and, in that contextcontrary, the Stockholder affected Member Party shall be entitled to receive take the Per Share Price under the Merger Agreement with respect to its shares of Common Stock; provided, however that Parent shall not terminate the Equity Commitment Letter or the obligations under Section 2 of this Agreement pursuant to this Section 4.3(a) without first obtaining alternative financing arrangements which provide Parent with funds lead in an amount equal to the Rollover Amount; provided that such alternative financing arrangements (i) provide Parent with sufficient funds, when added to the proceeds of the Equity Financing, Debt Financing and other sources of readily available liquidity of Parent, Merger Sub, the Company and the Company’s Subsidiaries on the Closing Date, to fund the Required Amount and (ii) do not impose new or additional conditions to the receipt of such financing relative to the Commitment Letters that could impair or delay the Closing. Parent shall promptly provide the Company with a copy of any definitive commitment letter or other documentation providing for such alternative financing arrangement. Notwithstanding anything to the contrary herein, the Stockholder may designate any Regulatory Disclosures that contain sensitive, legally privileged, or confidential information in respect of the Stockholder or any of its Affiliates as exclusive to the Stockholder and the Stockholder may provide that any such sensitive, legally privileged, or confidential information may only be provided on a counsel-only basis or directly to the applicable Governmental Authority requesting such information. The Stockholder shall not make any filings, or notifications in connection dealing with the Merger pursuant to any Antitrust Laws without Parent’s prior written consent (not to be unreasonably withheldRegulatory Authorities on such matter. [ * ] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, delayed or conditioned). Parent or the Company shall not file any Regulatory Filings that contain information with respect to the Stockholder or its affiliates without first providing the Stockholder and its counsel a reasonable opportunity to review and comment thereonMARKED BY BRACKETS, and will give good faith consideration to all reasonable additionsHAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, deletions or changes suggested by the Stockholder and its counselAS AMENDED.
(b) Each Stockholder hereto represent, warrant and covenant to Parent and to the Company that, to such Stockholder’s knowledge: (i) none of the information supplied in writing by such Stockholder specifically for inclusion or incorporation by reference in the Regulatory Disclosures will contain a material misstatement of fact or a material omission of fact necessary to make the information provided not misleading and (ii) it does not permit any entity under the “control” (defined in Section 721 of the Defense Production Act, as amended, including all implanting regulations thereof) of a People’s Republic of China national, or any entity under the control of a Russian Federation national, to obtain through any Affiliate, control with respect to the Company.
Appears in 1 contract
Regulatory Matters. (a) Subject to Section 4.4, the Stockholder Each of Parent and Company shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to (i) take, or cause to be taken, and assist and cooperate with the other party in taking, all actions necessary, proper or advisable to comply promptly with all legal requirements with respect to the transactions contemplated hereby, including obtaining any third-party consent or waiver that may be required to be obtained in connection with the transactions contemplated hereby, and, subject to the conditions set forth in Article VII, to consummate the transactions contemplated hereby (including actions required in order to effect the Bank Merger immediately after the Effective Time and to continue any Contract of Company or its Subsidiaries following the Closing or to avoid any penalty or other fee under such Contracts, in each case arising in connection with the transactions contemplated hereby) and (ii) obtain (and assist and cooperate with the other party in obtaining) any action, nonaction, permit, consent, authorization, order, clearance, waiver or approval of, or any exemption by, any Regulatory Agency or other Governmental Entity that is required or advisable in connection with the transactions contemplated by this Agreement, including the Merger and the Bank Merger (collectively, the “Regulatory Approvals”). The parties hereto shall cooperate with each other and prepare and file, as promptly as possible after the date hereof, all necessary documentation, and effect all applications, notices, petitions and filings, to obtain as promptly as practicable all actions, nonactions, permits, consents, authorizations, orders, clearances, waivers or approvals of all third parties and Regulatory Agencies or other Governmental Entities that are necessary or advisable to consummate the transactions contemplated by this Agreement, including the Regulatory Approvals. Each of Parent and Company shall use their reasonable best efforts to cause their Affiliates to, use their reasonable best efforts, consistent resolve any objections that may be asserted by any Governmental Entity with respect to this Agreement or the time frames transactions contemplated by this Agreement. Notwithstanding anything set forth in Section 6.4 of the Merger this Agreement, to supply under no circumstances shall Parent be required, and provide information thatCompany and its Subsidiaries shall not be permitted (without Parent’s written consent in its sole discretion), to such Stockholder’s knowledge(i) take any action, is complete and accurate in all material respects or commit to take any action, or agree to any Governmental Authority requesting such information condition or restriction, involving Parent, Company or any of their respective Subsidiaries pursuant to this Section 6.1 or otherwise in connection with filings obtaining the foregoing actions, nonactions, permits, consents, authorizations, orders, clearances, waivers or notifications underapprovals, that would have, or relating towould be reasonably likely to have, applicable laws that are required individually or advisable in the aggregate, a material adverse effect in respect of Parent and its Subsidiaries, taken as a result ofwhole, or pursuant toCompany and its Subsidiaries, the Merger Agreement taken as a whole, in each case measured on a scale relative to Company and the related financings and transactions, its Subsidiaries taken as a whole (including, without limitationfor the avoidance of doubt, information required any determination by an Regulatory Agency or requested to other Governmental Entity that the Bank Merger may not be provided consummated as contemplated herein, including simultaneously with the Effective Time (any of the foregoing, a “Materially Burdensome Regulatory Condition”) or (ii) agree to any antitrustLoss Share Agreement Condition; provided that, financial if requested by Parent, then Company and its Subsidiaries will take or national security regulatory authorities commit to take any such action, or agree to any such condition or restriction, so long as such action, commitment, agreement, condition or restriction is binding on Company and its Subsidiaries only in the event the Closing occurs.
(b) Subject to applicable Law relating to the exchange of information, Parent and Company shall, upon request, furnish each other with all information concerning Parent, Company and their respective Subsidiaries, directors, officers and shareholders and such other matters as may be reasonably necessary in connection with any approvals reasonably sought statement, filing, notice or application made by or on behalf of Parent, Company or any of their respective Subsidiaries to any Governmental Entity in connection with the consummation transactions contemplated by this Agreement. In exercising the foregoing right, each of the Merger parties hereto shall act reasonably and as promptly as practicable.
(collectivelyc) Subject to applicable Law (including applicable Law relating to the exchange of information), Company and Parent shall keep each other apprised of the “Regulatory Filings” and the, “Regulatory Disclosures”, respectively). If any Governmental Authority seeks status of matters relating to prevent the consummation completion of the transactions contemplated by this Agreement. Without limiting the Merger Agreement based on the HSR Act or any other Antitrust Laws or based on any other required approval, consent, notice or filing with a Governmental Authority and such actions by the Governmental Authority relate to the activities or investments of such Stockholder or its Affiliates (solely for purposes of this Section 4, an “Affiliate” generality of the Stockholder foregoing, subject to applicable Law, (i) Company and Parent shall include any portfolio company in which such Stockholder promptly furnish each other with copies of nonconfidential notices or other communications received by Company, Parent or any of its Affiliates has made a debt their respective Subsidiaries (or an equity investment), then if Parent in good faith reasonably determines that such actions by the written summaries of communications received orally) from any third party or Governmental Authority will not be resolved sufficiently in advance of the Termination Date, Parent may provide written notice of that determination to the Stockholder, and Parent may elect to terminate the obligations under Section 2 and Section 4.6 of this Agreement (in which case the Stockholder’s obligations under the Equity Commitment Letter shall also automatically terminate) and, in that context, the Stockholder shall be entitled to receive the Per Share Price under the Merger Agreement with respect to its shares of Common Stock; provided, however that Parent shall not terminate the Equity Commitment Letter or the obligations under Section 2 of this Agreement pursuant to this Section 4.3(a) without first obtaining alternative financing arrangements which provide Parent with funds in an amount equal to the Rollover Amount; provided that such alternative financing arrangements (i) provide Parent with sufficient funds, when added to the proceeds of the Equity Financing, Debt Financing and other sources of readily available liquidity of Parent, Merger Sub, the Company and the Company’s Subsidiaries on the Closing Date, to fund the Required Amount and (ii) do not impose new or additional conditions to the receipt of such financing relative to the Commitment Letters that could impair or delay the Closing. Parent shall promptly provide the Company with a copy of any definitive commitment letter or other documentation providing for such alternative financing arrangement. Notwithstanding anything to the contrary herein, the Stockholder may designate any Regulatory Disclosures that contain sensitive, legally privileged, or confidential information in respect of the Stockholder or any of its Affiliates as exclusive to the Stockholder and the Stockholder may provide that any such sensitive, legally privileged, or confidential information may only be provided on a counsel-only basis or directly to the applicable Governmental Authority requesting such information. The Stockholder shall not make any filings, or notifications in connection with the Merger pursuant to any Antitrust Laws without Parent’s prior written consent (not to be unreasonably withheld, delayed or conditioned). Parent or the Company shall not file any Regulatory Filings that contain information Entity with respect to the Stockholder or its affiliates without first providing the Stockholder and its counsel transactions contemplated by this Agreement, (ii) Parent shall provide Company a reasonable opportunity to review in advance any proposed nonconfidential communication to, including any filings with or other nonconfidential written materials submitted to, any Governmental Entity and comment thereon(iii) Parent shall consider in good faith Company’s views with respect to, and will give confer in good faith consideration with Company to all reasonable additionsresolve, deletions or changes suggested by the Stockholder and its counsel.
(b) Each Stockholder hereto represent, warrant and covenant any disagreement as to Parent and to the Company that, to such Stockholder’s knowledge: (i) none of the information supplied in writing by such Stockholder specifically for inclusion or incorporation by reference in the Regulatory Disclosures will contain a material misstatement of fact or a material omission of fact necessary to make the information provided not misleading and (ii) it does not permit any entity under the “control” (defined in Section 721 of the Defense Production Act, as amended, including all implanting regulations thereof) of a People’s Republic of China national, or any entity under the control of a Russian Federation national, to obtain through any Affiliate, control strategy with respect to any nonconfidential communication by Company or any of its Subsidiaries with any Governmental Entity or third party relating to the transactions contemplated by this Agreement. Company and Parent shall not, and shall cause their respective Subsidiaries to not, participate in any meeting or substantive discussion, either in person or by telephone, with any Governmental Entity in connection with the proposed transactions unless it consults with Parent or Company, as applicable in advance and, to the extent not prohibited by applicable Law, gives Parent or Company, as applicable, the opportunity to attend and participate. Any such disclosures or rights to participate may be made on an outside counsel-only basis to the extent required under applicable Law.
Appears in 1 contract
Regulatory Matters. (a) Subject to Section 4.4, A copy of each Transfer Letter authorizing the Stockholder shall, and shall use their reasonable best efforts to cause their Affiliates to, use their reasonable best efforts, consistent with the time frames set forth in Section 6.4 transfer of ownership of the Merger Agreement, INDs and CTAs as well as the orphan drug designation owned by Seller to supply and provide information that, to such Stockholder’s knowledge, is complete and accurate in all material respects to any Governmental Authority requesting such information in connection with filings or notifications under, or relating to, applicable laws that are required or advisable as a result of, or pursuant to, the Merger Agreement and the related financings and transactions, including, without limitation, information required or requested to Buyer shall be provided to any antitrust, financial or national security regulatory authorities in connection with any approvals reasonably sought in connection with the consummation of the Merger (collectively, the “Regulatory Filings” and the, “Regulatory Disclosures”, respectively). If any Governmental Authority seeks to prevent the consummation of the transactions contemplated by the Merger Agreement based delivered on the HSR Act or any other Antitrust Laws or based on any other required approval, consent, notice or filing with a Governmental Authority Closing Date and such actions by the Governmental Authority relate to the activities or investments of such Stockholder or its Affiliates within ten (solely for purposes of this Section 4, an “Affiliate” of the Stockholder shall include any portfolio company in which such Stockholder or any of its Affiliates has made a debt or an equity investment), then if Parent in good faith reasonably determines that such actions by the Governmental Authority will not be resolved sufficiently in advance of the Termination Date, Parent may provide written notice of that determination to the Stockholder, and Parent may elect to terminate the obligations under Section 2 and Section 4.6 of this Agreement (in which case the Stockholder’s obligations under the Equity Commitment Letter shall also automatically terminate10) and, in that context, the Stockholder shall be entitled to receive the Per Share Price under the Merger Agreement with respect to its shares of Common Stock; provided, however that Parent shall not terminate the Equity Commitment Letter or the obligations under Section 2 of this Agreement pursuant to this Section 4.3(a) without first obtaining alternative financing arrangements which provide Parent with funds in an amount equal to the Rollover Amount; provided that such alternative financing arrangements (i) provide Parent with sufficient funds, when added to the proceeds of the Equity Financing, Debt Financing and other sources of readily available liquidity of Parent, Merger Sub, the Company and the Company’s Subsidiaries on Business Days after the Closing Date, (a) Seller shall submit the Transfer Letters to fund the Required Amount relevant Governmental Authorities and shall notify Buyer of such submission on the date submitted (providing Buyer an electronic copy of the submission with such notification) and (iib) do not impose new or additional conditions shall provide to Buyer the full regulatory file for the INDs and CTAs held by the Seller, including all available electronic meta data. Upon notification of the Seller’s submission of the Transfer Letter to the receipt of such financing relative relevant Governmental Authorities, Xxxxx shall execute and submit to the Commitment Letters that could impair or delay the Closing. Parent shall promptly provide the Company with a copy of any definitive relevant Governmental Authorities letters acknowledging Buyer’s commitment letter or other documentation providing for such alternative financing arrangement. Notwithstanding anything to the contrary herein, the Stockholder may designate any Regulatory Disclosures that contain sensitive, legally privileged, or confidential information in respect assume ownership of the Stockholder or any of its Affiliates as exclusive to the Stockholder INDs and CTAs and the Stockholder may orphan drug designation owned by Seller. As of the Closing Date, except as otherwise set forth in this Section 7.7, Buyer shall be solely responsible for taking any actions necessary to (i) obtain any documentation required to maintain the INDs and CTAs or the orphaned drug designation owned by Seller or obtain any further authorizations under any Applicable Law, and otherwise comply with any Applicable Law with respect to regulatory authorizations. During the period between the Closing Date and the date that is that is eighteen (18) months from the Closing Date, Seller shall provide that any such sensitive, legally privileged, or confidential information may only be provided on a counsel-only basis or directly to the applicable Governmental Authority requesting such information. The Stockholder shall not make any filings, or notifications reasonable assistance as requested by Buyer in connection with Xxxxx’s fulfilment of its obligations under this Section 7.7. Except as set forth in any further written agreement between the Merger pursuant Parties, as of the Closing Date, Buyer shall be solely responsible for investigating and reporting adverse experiences for the Product to any Antitrust Laws without Parent’s prior written consent (not to be unreasonably withheld, delayed or conditioned). Parent or the Company shall not file Governmental Authorities and addressing any Regulatory Filings that contain information with respect such Governmental Authorities’ inquiries related to the Stockholder or its affiliates without first providing safety of the Stockholder Product; provided, however, that Seller shall provide reasonable assistance and its counsel a reasonable opportunity cooperation to review and comment thereon, and will give good faith consideration to all reasonable additions, deletions or changes suggested by the Stockholder and its counsel.
(b) Each Stockholder hereto represent, warrant and covenant to Parent and Buyer to the Company that, extent any such investigations or inquiries related to such Stockholder’s knowledge: (i) none the manufacture or development of the information supplied Product prior to the Closing Date by or on behalf of Seller. Except as set forth in writing by such Stockholder specifically for inclusion or incorporation by reference in any further written agreement between the Regulatory Disclosures will contain a material misstatement of fact or a material omission of fact necessary to make the information provided not misleading and (ii) it does not permit any entity under the “control” (defined in Section 721 Parties, as of the Defense Production ActClosing Date, as amended, including all implanting regulations thereof) of a PeopleBuyer shall be solely responsible for addressing any Person’s Republic of China national, medical inquiries or any entity under the control of a Russian Federation national, to obtain through any Affiliate, control with respect complaints relating to the CompanyProduct; provided, however, that Seller shall provide reasonable assistance and cooperation to Buyer to the extent any such inquiries or complaints related to the manufacture or Development of the Product prior to the Closing Date by or on behalf of Seller.
Appears in 1 contract
Regulatory Matters. (a) Subject For the purposes of holding the Shareholders Meeting (as such term is defined in Section 5.7 hereof), and qualifying under applicable federal and state securities laws the HUBCO Common Stock to Section 4.4be issued to CFHC shareholders in connection with the Merger, the Stockholder shallparties hereto shall cooperate in the preparation and filing by HUBCO with the SEC of a Registration Statement including a proxy statement and prospectus satisfying all applicable requirements of applicable state and federal laws, including the 1933 Act, the 1934 Act and applicable state securities laws and the rules and regulations thereunder (such proxy statement and prospectus in the form mailed by CFHC and HUBCO to the CFHC shareholders together with any and all amendments or supplements thereto, being herein referred to as the "Proxy Statement-Prospectus" and the various documents to be filed by HUBCO under the 1933 Act with the SEC to register the HUBCO Common Stock for sale, including the Proxy Statement-Prospectus, are referred to herein as the "Registration Statement").
(b) HUBCO shall furnish CFHC with such information concerning HUBCO and the HUBCO Subsidiaries (including, without limitation, information regarding other transactions which HUBCO is required to disclose) as is necessary in order to cause the Proxy Statement-Prospectus, insofar as it relates to such corporations, to comply with Section 5.6(a) hereof. HUBCO agrees promptly to advise CFHC if at any time prior to the Shareholders' Meeting any information provided by HUBCO in the Proxy Statement-Prospectus becomes incorrect or incomplete in any material respect and to provide CFHC with the information needed to correct such inaccuracy or omission. HUBCO shall furnish CFHC with such supplemental information as may be necessary in order to cause the Proxy Statement-Prospectus, insofar as it relates to HUBCO and the HUBCO Subsidiaries, to comply with Section 5.6(a) after the mailing thereof to CFHC shareholders.
(c) CFHC shall furnish HUBCO with such information concerning CFHC as is necessary to cause the Proxy Statement- Prospectus, insofar as it relates to CFHC, to comply with Section 5.6(a) hereof. CFHC agrees promptly to advise HUBCO if at any time prior to the Shareholders' Meeting, any information provided by CFHC in the Proxy Statement-Prospectus becomes incorrect or incomplete in any material respect and to provide HUBCO with the information needed to correct such inaccuracy or omission. CFHC shall furnish HUBCO with such supplemental information as may be necessary in order to cause the Proxy Statement-Prospectus, insofar as it relates to CFHC and Community to comply with Section 5.6(a) after the mailing thereof to CFHC shareholders.
(d) HUBCO shall as promptly as practicable make such filings as are necessary in connection with the offering of the HUBCO Common Stock with applicable state securities agencies and shall use all reasonable efforts to qualify the offering of such stock under applicable state securities laws at the earliest practicable date. CFHC shall promptly furnish HUBCO with such information regarding the CFHC shareholders as HUBCO requires to enable it to determine what filings are required hereunder. CFHC authorizes HUBCO to utilize in such filings the information concerning CFHC and Community provided to HUBCO in connection with, or contained in, the Proxy Statement-Prospectus. HUBCO shall furnish CFHC's counsel with copies of all such filings and keep CFHC advised of the status thereof. HUBCO and CFHC shall as promptly as practicable file the Registration Statement containing the Proxy Statement-Prospectus with the SEC, and each of HUBCO and CFHC shall promptly notify the other of all communications, oral or written, with the SEC concerning the Registration Statement and the Proxy Statement-Prospectus.
(e) HUBCO shall cause the HUBCO Common Stock issuable pursuant to the Merger to be listed on NASDAQ at the Effective Time. HUBCO shall cause the HUBCO Common Stock which shall be issuable pursuant to exercise of Stock Options to be accepted for filing on the NASDAQ when issued.
(f) The parties hereto will cooperate with each other and use their reasonable best efforts to cause their Affiliates to, use their reasonable best efforts, consistent with the time frames set forth in Section 6.4 of the Merger Agreementprepare all necessary documentation, to supply effect all necessary filings and provide information thatto obtain all necessary permits, consents, approvals and authorizations of all third parties and governmental bodies necessary to such Stockholder’s knowledge, is complete and accurate in all material respects to any Governmental Authority requesting such information in connection with filings or notifications under, or relating to, applicable laws that are required or advisable consummate the transactions contemplated by this Agreement as a result of, or pursuant to, the Merger Agreement and the related financings and transactionssoon as possible, including, without limitation, those required by the FDIC, the FRB, the OCC, the Department and the DEP. Without limiting the foregoing, the parties shall use reasonable business efforts to file for approval or waiver by the appropriate bank regulatory agencies within 45 days after the date hereof. The parties shall each have the right to review in advance (and shall do so promptly) all filings with, including all information required relating to the other, as the case may be, and any of their respective subsidiaries, which appears in any filing made with, or requested to be provided to written material submitted to, any antitrust, financial third party or national security regulatory authorities in connection with any approvals reasonably sought Governmental Entity (including the SEC) in connection with the consummation transactions contemplated by this Agreement.
(g) Each of the Merger (collectivelyparties will promptly furnish each other with copies of written communications received by them or any of their respective subsidiaries from, or delivered by any of the “Regulatory Filings” and theforegoing to, “Regulatory Disclosures”, respectively). If any Governmental Authority seeks to prevent the consummation Entity in respect of the transactions contemplated by hereby.
(h) CFHC acknowledges that HUBCO is in or may be in the Merger Agreement based on the HSR Act or any process of acquiring other Antitrust Laws or based on any other required approval, consent, notice or filing with a Governmental Authority banks and such actions by the Governmental Authority relate to the activities or investments of such Stockholder or its Affiliates (solely for purposes of this Section 4, an “Affiliate” of the Stockholder shall include any portfolio company in which such Stockholder or any of its Affiliates has made a debt or an equity investment), then if Parent in good faith reasonably determines financial institutions and that such actions by the Governmental Authority will not be resolved sufficiently in advance of the Termination Date, Parent may provide written notice of that determination to the Stockholder, and Parent may elect to terminate the obligations under Section 2 and Section 4.6 of this Agreement (in which case the Stockholder’s obligations under the Equity Commitment Letter shall also automatically terminate) and, in that context, the Stockholder shall be entitled to receive the Per Share Price under the Merger Agreement with respect to its shares of Common Stock; provided, however that Parent shall not terminate the Equity Commitment Letter or the obligations under Section 2 of this Agreement pursuant to this Section 4.3(a) without first obtaining alternative financing arrangements which provide Parent with funds in an amount equal to the Rollover Amount; provided that such alternative financing arrangements (i) provide Parent with sufficient funds, when added to the proceeds of the Equity Financing, Debt Financing and other sources of readily available liquidity of Parent, Merger Sub, the Company and the Company’s Subsidiaries on the Closing Date, to fund the Required Amount and (ii) do not impose new or additional conditions to the receipt of such financing relative to the Commitment Letters that could impair or delay the Closing. Parent shall promptly provide the Company with a copy of any definitive commitment letter or other documentation providing for such alternative financing arrangement. Notwithstanding anything to the contrary herein, the Stockholder may designate any Regulatory Disclosures that contain sensitive, legally privileged, or confidential information in respect of the Stockholder or any of its Affiliates as exclusive to the Stockholder and the Stockholder may provide that any such sensitive, legally privileged, or confidential information may only be provided on a counsel-only basis or directly to the applicable Governmental Authority requesting such information. The Stockholder shall not make any filings, or notifications in connection with the Merger pursuant to any Antitrust Laws without Parent’s prior written consent (not such acquisitions, information concerning CFHC may be required to be unreasonably withheldincluded in the registration statements, delayed if any, for the sale of securities of HUBCO or conditionedin SEC reports in connection with such acquisitions. CFHC agrees to provide HUBCO with any information, certificates, documents or other materials about CFHC as are reasonably necessary to be included in such other SEC reports or registration statements, including registration statements which may be filed by HUBCO prior to the Effective Time. CFHC shall use its reasonable efforts to cause its attorneys and accountants to provide HUBCO and any underwriters for HUBCO with any consents, comfort letters, opinion letters, reports or information which are necessary to complete the registration statements and applications or any such acquisition or issuance of securities. HUBCO shall reimburse CFHC for reasonable expenses thus incurred by CFHC should this transaction be terminated for any reason other than Section 7.1(i). Parent or the Company HUBCO shall not file with the SEC any Regulatory Filings that contain registration statement or amendment thereto or supplement thereof containing information with respect to the Stockholder or its affiliates without first providing the Stockholder and its counsel a reasonable opportunity to review and comment thereon, and will give good faith consideration to all reasonable additions, deletions or changes suggested by the Stockholder and its counsel.
(b) Each Stockholder hereto represent, warrant and covenant to Parent and to the Company that, regarding CFHC unless CFHC shall have consented to such Stockholder’s knowledge: (i) none of the information supplied in writing by such Stockholder specifically for inclusion filing, which consent shall not be unreasonably delayed or incorporation by reference in the Regulatory Disclosures will contain a material misstatement of fact or a material omission of fact necessary to make the information provided not misleading and (ii) it does not permit any entity under the “control” (defined in Section 721 of the Defense Production Act, as amended, including all implanting regulations thereof) of a People’s Republic of China national, or any entity under the control of a Russian Federation national, to obtain through any Affiliate, control with respect to the Companywithheld.
Appears in 1 contract
Samples: Merger Agreement (Community Financial Holding Corporation)
Regulatory Matters. (a) Subject The Stockholder shall not, and shall cause its Affiliates and its and their Representatives not to, take any action that would be inconsistent with the Noncontrol Determinations, or that would result in either (i) the Stockholder being deemed to Section 4.4“control” the Company as that term is interpreted by the Federal Reserve Board under the BHC Act or HOLA or (ii) the Company being deemed to be in “control” of any of the TD Subsidiary Banks as that term is interpreted by the Federal Reserve Board under the BHC Act or HOLA (each, a “Control Event”).
(b) In the event of a Control Event, the Stockholder shall, and shall use their reasonable best efforts to cause their Affiliates to, use their reasonable best efforts, consistent with the time frames set forth in Section 6.4 of the Merger Agreement, to supply and provide information that, to such Stockholder’s knowledge, is complete and accurate in all material respects to any Governmental Authority requesting such information in connection with filings or notifications under, or relating to, applicable laws that are required or advisable as a result of, or pursuant to, the Merger Agreement and the related financings Company shall discuss and transactions, including, without limitation, information required or requested negotiate in good faith for a period of three months with respect to be provided to any antitrust, financial or national security regulatory authorities actions that would result in connection with any approvals reasonably sought in connection with the consummation of the Merger (collectively, the “Regulatory Filings” and the, “Regulatory Disclosures”, respectively). If any Governmental Authority seeks to prevent the consummation of the transactions contemplated by the Merger Agreement based on the HSR Act or any other Antitrust Laws or based on any other required approval, consent, notice or filing with a Governmental Authority and such actions by the Governmental Authority relate to the activities or investments elimination of such Stockholder or its Affiliates (solely for purposes of this Section 4Control Event. If, an “Affiliate” of after such three month period, such Control Event has not been eliminated, then the Stockholder shall include (i) agree to modify the Voting Limitation Percentage and governance arrangements under this Agreement and/or the terms of the XXX Amendment, (ii) exercise its rights pursuant to Section 2.03 and/or (iii) Transfer any portfolio company Company Securities, in which such each case to the extent necessary so that (x) the Stockholder is not deemed to “control” the Company as that term is interpreted by the Federal Reserve Board under the BHC Act or HOLA, as applicable, and (y) the Company is not deemed to be in “control” of any of its Affiliates has made a debt or an equity investment), then if Parent in good faith reasonably determines the TD Subsidiary Banks as that such actions term is interpreted by the Governmental Authority will not be resolved sufficiently in advance of the Termination Date, Parent may provide written notice of that determination to the Stockholder, and Parent may elect to terminate the obligations under Section 2 and Section 4.6 of this Agreement (in which case the Stockholder’s obligations Federal Reserve Board under the Equity Commitment Letter shall also automatically terminate) andBHC Act or HOLA, in that contextas applicable. If the Stockholder is required to Transfer any Company Securities pursuant to this Section 5.02(b), the Stockholder shall be entitled to receive Transfer such securities as soon as reasonably practicable (but, in any event, within twelve (12) months) after the Per Share Price under the Merger Agreement with respect to its shares of Common Stock; provided, however that Parent shall not terminate the Equity Commitment Letter or the obligations under Section 2 of this Agreement pursuant to this Section 4.3(a) without first obtaining alternative financing arrangements which provide Parent with funds in an amount equal to the Rollover Amount; provided that such alternative financing arrangements (i) provide Parent with sufficient funds, when added to the proceeds expiration of the Equity Financing, Debt Financing and other sources of readily available liquidity of Parent, Merger Sub, three month period referred to in the Company and the Company’s Subsidiaries on the Closing Date, to fund the Required Amount and second preceding sentence (ii) do not impose new or additional conditions to the receipt of such financing relative to the Commitment Letters but in no manner that could impair or delay the Closing. Parent shall promptly provide the Company with a copy of any definitive commitment letter or other documentation providing for such alternative financing arrangement. Notwithstanding anything to the contrary herein, the Stockholder may designate any Regulatory Disclosures that contain sensitive, legally privileged, or confidential information in respect of would require the Stockholder or any of its Affiliates as exclusive to the Stockholder and the Stockholder may provide that any such sensitive, legally privileged, or confidential information may only be provided on a counsel-only basis or directly to the applicable Governmental Authority requesting such information. The Stockholder shall not make any filings, or notifications in connection with the Merger pursuant to any Antitrust Laws without Parent’s prior written consent (not to be unreasonably withheld, delayed or conditioned). Parent or the Company shall not file any Regulatory Filings that contain information with respect to the Stockholder or its affiliates without first providing the Stockholder and its counsel a reasonable opportunity to review and comment thereon, and will give good faith consideration to all reasonable additions, deletions or changes suggested by the Stockholder and its counsel.
(bincur liability under Section 16(b) Each Stockholder hereto represent, warrant and covenant to Parent and to the Company that, to such Stockholder’s knowledge: (i) none of the information supplied in writing by such Stockholder specifically for inclusion Securities Exchange Act or incorporation by reference in the Regulatory Disclosures will contain a material misstatement of fact or a material omission of fact necessary to make the information provided not misleading and (ii) it does not permit any entity otherwise under the “control” (defined in Section 721 of the Defense Production Act, as amended, including all implanting regulations thereof) of a People’s Republic of China national, or any entity under the control of a Russian Federation national, to obtain through any Affiliate, control with respect to the Companyapplicable securities law).
Appears in 1 contract
Samples: Merger Agreement
Regulatory Matters. (a) Subject For the purposes of holding the Shareholders Meeting (as such term is defined in Section 5.7 hereof), and qualifying under applicable federal and state securities laws the HUBCO Common Stock to Section 4.4be issued to CFHC shareholders in connection with the Merger, the Stockholder shallparties hereto shall cooperate in the preparation and filing by HUBCO with the SEC of a Registration Statement including a proxy statement and prospectus satisfying all applicable requirements of applicable state and federal laws, including the 1933 Act, the 1934 Act and applicable state securities laws and the rules and regulations thereunder (such proxy statement and prospectus in the form mailed by CFHC and HUBCO to the CFHC shareholders together with any and all amendments or supplements thereto, being herein referred to as the "Proxy Statement-Prospectus" and the various documents to be filed by HUBCO under the 1933 Act with the SEC to register the HUBCO Common Stock for sale, including the Proxy Statement-Prospectus, are referred to herein as the "Registration Statement").
(b) HUBCO shall furnish CFHC with such information concerning HUBCO and the HUBCO Subsidiaries (including, without limitation, information regarding other transactions which HUBCO is required to disclose) as is necessary in order to cause the Proxy Statement-Prospectus, insofar as it relates to such corporations, to comply with Section 5.6(a) hereof. HUBCO agrees promptly to advise CFHC if at any time prior to the Shareholders' Meeting any information provided by HUBCO in the Proxy Statement-Prospectus becomes incorrect or incomplete in any material respect and to provide CFHC with the information needed to correct such inaccuracy or omission. HUBCO shall furnish CFHC with such supplemental information as may be necessary in order to cause the Proxy Statement-Prospectus, insofar as it relates to HUBCO and the HUBCO Subsidiaries, to comply with Section 5.6(a) after the mailing thereof to CFHC shareholders.
(c) CFHC shall furnish HUBCO with such information concerning CFHC as is necessary to cause the Proxy Statement-Prospectus, insofar as it relates to CFHC, to comply with Section 5.6(a) hereof. CFHC agrees promptly to advise HUBCO if at any time prior to the Shareholders' Meeting, any information provided by CFHC in the Proxy Statement-Prospectus becomes incorrect or incomplete in any material respect and to provide HUBCO with the information needed to correct such inaccuracy or omission. CFHC shall furnish HUBCO with such supplemental information as may be necessary in order to cause the Proxy Statement-Prospectus, insofar as it relates to CFHC and Community to comply with Section 5.6(a) after the mailing thereof to CFHC shareholders.
(d) HUBCO shall as promptly as practicable make such filings as are necessary in connection with the offering of the HUBCO Common Stock with applicable state securities agencies and shall use all reasonable efforts to qualify the offering of such stock under applicable state securities laws at the earliest practicable date. CFHC shall promptly furnish HUBCO with such information regarding the CFHC shareholders as HUBCO requires to enable it to determine what filings are required hereunder. CFHC authorizes HUBCO to utilize in such filings the information concerning CFHC and Community provided to HUBCO in connection with, or contained in, the Proxy Statement-Prospectus. HUBCO shall furnish CFHC's counsel with copies of all such filings and keep CFHC advised of the status thereof. HUBCO and CFHC shall as promptly as practicable file the Registration Statement containing the Proxy Statement-Prospectus with the SEC, and each of HUBCO and CFHC shall promptly notify the other of all communications, oral or written, with the SEC concerning the Registration Statement and the Proxy Statement-Prospectus.
(e) HUBCO shall cause the HUBCO Common Stock issuable pursuant to the Merger to be listed on NASDAQ at the Effective Time. HUBCO shall cause the HUBCO Common Stock which shall be issuable pursuant to exercise of Stock Options to be accepted for filing on the NASDAQ when issued.
(f) The parties hereto will cooperate with each other and use their reasonable best efforts to cause their Affiliates to, use their reasonable best efforts, consistent with the time frames set forth in Section 6.4 of the Merger Agreementprepare all necessary documentation, to supply effect all necessary filings and provide information thatto obtain all necessary permits, consents, approvals and authorizations of all third parties and governmental bodies necessary to such Stockholder’s knowledge, is complete and accurate in all material respects to any Governmental Authority requesting such information in connection with filings or notifications under, or relating to, applicable laws that are required or advisable consummate the transactions contemplated by this Agreement as a result of, or pursuant to, the Merger Agreement and the related financings and transactionssoon as possible, including, without limitation, those required by the FDIC, the FRB, the OCC, the Department and the DEP. Without limiting the foregoing, the parties shall use reasonable business efforts to file for approval or waiver by the appropriate bank regulatory agencies within 45 days after the date hereof. The parties shall each have the right to review in advance (and shall do so promptly) all filings with, including all information required relating to the other, as the case may be, and any of their respective subsidiaries, which appears in any filing made with, or requested to be provided to written material submitted to, any antitrust, financial third party or national security regulatory authorities in connection with any approvals reasonably sought Governmental Entity (including the SEC) in connection with the consummation transactions contemplated by this Agreement.
(g) Each of the Merger (collectivelyparties will promptly furnish each other with copies of written communications received by them or any of their respective subsidiaries from, or delivered by any of the “Regulatory Filings” and theforegoing to, “Regulatory Disclosures”, respectively). If any Governmental Authority seeks to prevent the consummation Entity in respect of the transactions contemplated by hereby.
(h) CFHC acknowledges that HUBCO is in or may be in the Merger Agreement based on the HSR Act or any process of acquiring other Antitrust Laws or based on any other required approval, consent, notice or filing with a Governmental Authority banks and such actions by the Governmental Authority relate to the activities or investments of such Stockholder or its Affiliates (solely for purposes of this Section 4, an “Affiliate” of the Stockholder shall include any portfolio company in which such Stockholder or any of its Affiliates has made a debt or an equity investment), then if Parent in good faith reasonably determines financial institutions and that such actions by the Governmental Authority will not be resolved sufficiently in advance of the Termination Date, Parent may provide written notice of that determination to the Stockholder, and Parent may elect to terminate the obligations under Section 2 and Section 4.6 of this Agreement (in which case the Stockholder’s obligations under the Equity Commitment Letter shall also automatically terminate) and, in that context, the Stockholder shall be entitled to receive the Per Share Price under the Merger Agreement with respect to its shares of Common Stock; provided, however that Parent shall not terminate the Equity Commitment Letter or the obligations under Section 2 of this Agreement pursuant to this Section 4.3(a) without first obtaining alternative financing arrangements which provide Parent with funds in an amount equal to the Rollover Amount; provided that such alternative financing arrangements (i) provide Parent with sufficient funds, when added to the proceeds of the Equity Financing, Debt Financing and other sources of readily available liquidity of Parent, Merger Sub, the Company and the Company’s Subsidiaries on the Closing Date, to fund the Required Amount and (ii) do not impose new or additional conditions to the receipt of such financing relative to the Commitment Letters that could impair or delay the Closing. Parent shall promptly provide the Company with a copy of any definitive commitment letter or other documentation providing for such alternative financing arrangement. Notwithstanding anything to the contrary herein, the Stockholder may designate any Regulatory Disclosures that contain sensitive, legally privileged, or confidential information in respect of the Stockholder or any of its Affiliates as exclusive to the Stockholder and the Stockholder may provide that any such sensitive, legally privileged, or confidential information may only be provided on a counsel-only basis or directly to the applicable Governmental Authority requesting such information. The Stockholder shall not make any filings, or notifications in connection with the Merger pursuant to any Antitrust Laws without Parent’s prior written consent (not such acquisitions, information concerning CFHC may be required to be unreasonably withheldincluded in the registration statements, delayed if any, for the sale of securities of HUBCO or conditionedin SEC reports in connection with such acquisitions. CFHC agrees to provide HUBCO with any information, certificates, documents or other materials about CFHC as are reasonably necessary to be included in such other SEC reports or registration statements, including registration statements which may be filed by HUBCO prior to the Effective Time. CFHC shall use its reasonable efforts to cause its attorneys and accountants to provide HUBCO and any underwriters for HUBCO with any consents, comfort letters, opinion letters, reports or information which are necessary to complete the registration statements and applications or any such acquisition or issuance of securities. HUBCO shall reimburse CFHC for reasonable expenses thus incurred by CFHC should this transaction be terminated for any reason other than Section 7.1(i). Parent or the Company HUBCO shall not file with the SEC any Regulatory Filings that contain registration statement or amendment thereto or supplement thereof containing information with respect to the Stockholder or its affiliates without first providing the Stockholder and its counsel a reasonable opportunity to review and comment thereon, and will give good faith consideration to all reasonable additions, deletions or changes suggested by the Stockholder and its counsel.
(b) Each Stockholder hereto represent, warrant and covenant to Parent and to the Company that, regarding CFHC unless CFHC shall have consented to such Stockholder’s knowledge: (i) none of the information supplied in writing by such Stockholder specifically for inclusion filing, which consent shall not be unreasonably delayed or incorporation by reference in the Regulatory Disclosures will contain a material misstatement of fact or a material omission of fact necessary to make the information provided not misleading and (ii) it does not permit any entity under the “control” (defined in Section 721 of the Defense Production Act, as amended, including all implanting regulations thereof) of a People’s Republic of China national, or any entity under the control of a Russian Federation national, to obtain through any Affiliate, control with respect to the Companywithheld.
Appears in 1 contract
Samples: Merger Agreement (Hubco Inc)
Regulatory Matters. (a) Subject For a period of ** following the Closing, at Buyer’s expense Seller shall comply with all reasonable requests of Buyer for assistance in its efforts to Section 4.4qualify its manufacturing operation with the FDA and obtain the GEM 21S Manufacturing Approval within ** following the Closing. From and after the Closing, Buyer shall exercise commercially reasonable efforts to satisfy the Stockholder shallconditions precedent to the payments required by Sections 2.1(c)(iii) and (iv).
(b) By no later than **, Seller will provide Buyer with the ** through **, in a form reasonably suitable for Buyer to submit to the FDA in a supplement to the GEM 21S PMA Application.
(c) From and after the Closing, Seller shall use their reasonable best efforts to cause their Affiliates to, use their reasonable its best efforts, consistent with including without limitation undertaking any necessary studies to obtain the time frames set forth in Section 6.4 approval of the Merger Agreement, European Medical Agency (the “EMEA”) for GEM 21S (the “EU Approval”). Buyer will promptly provide to supply and provide information that, to such Stockholder’s knowledge, is complete and accurate in Seller all material respects to any Governmental Authority requesting such information in connection with filings Buyer’s possession reasonably required for Seller to obtain the EU Approval. With the approval of Seller, Buyer may provide its services or notifications under, or relating to, applicable laws that are required or advisable as a result of, or pursuant to, the Merger Agreement and the related financings and transactions, including, without limitation, information required or requested to be provided to any antitrust, financial or national security regulatory authorities in connection with any approvals reasonably sought in connection with the consummation of the Merger (collectively, the “Regulatory Filings” and the, “Regulatory Disclosures”, respectively). If any Governmental Authority seeks to prevent the consummation of the transactions contemplated by the Merger Agreement based on the HSR Act or any other Antitrust Laws or based on any other required approval, consent, notice or filing with a Governmental Authority and such actions by the Governmental Authority relate to the activities or investments of such Stockholder or its Affiliates (solely for purposes of this Section 4, an “Affiliate” of the Stockholder shall include any portfolio company in which such Stockholder or any those of its Affiliates has made a debt or an equity investment), then if Parent consultants to assist Seller in good faith reasonably determines obtaining the EU Approval; it being agreed that Buyer may deduct any reasonable external and internal costs associated with such actions by assistance from the Governmental Authority will not be resolved sufficiently in advance of the Termination Date, Parent may provide written notice of that determination to the Stockholder, and Parent may elect to terminate the obligations under Section 2 and Section 4.6 of this Agreement (in which case the Stockholder’s obligations milestone payments due under the Equity Commitment Letter shall also automatically terminateR&D Termination Agreement.
(d) and, in Seller acknowledges that context, the Stockholder shall be entitled to receive the Per Share Price under the Merger Agreement with respect to its shares of Common Stock; provided, however that Parent shall not terminate the Equity Commitment Letter or the obligations under Section 2 of this Agreement pursuant to this Section 4.3(a) without first obtaining alternative financing arrangements which provide Parent with funds in an amount equal to the Rollover Amount; provided that such alternative financing arrangements (i) provide Parent with sufficient funds, when added to the proceeds of the Equity Financing, Debt Financing from and other sources of readily available liquidity of Parent, Merger Sub, the Company and the Company’s Subsidiaries on the Closing Date, to fund the Required Amount and (ii) do not impose new or additional conditions to the receipt of such financing relative to the Commitment Letters that could impair or delay after the Closing. Parent shall promptly provide the Company with a copy of any definitive commitment letter or other documentation providing for such alternative financing arrangement. Notwithstanding anything , Buyer will create, manage and file in Buyer’s name and subject to the contrary herein, the Stockholder may designate any Regulatory Disclosures that contain sensitive, legally privileged, or confidential information in respect of the Stockholder or any of its Affiliates as exclusive to the Stockholder and the Stockholder may provide that any such sensitive, legally privileged, or confidential information may only be provided on a counsel-only basis or directly to the applicable Governmental Authority requesting such information. The Stockholder shall not make any filings, or notifications in connection with the Merger pursuant to any Antitrust Laws without ParentBuyer’s prior written consent approval (not to be unreasonably withheld) a request with the ** in ** for approval of GEM 21S. ** REPRESENTS MATERIAL WHICH HAS BEEN REDACTED AND SEPARATELY FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 406 UNDER THE SECURITIES ACT OF 1933, delayed or conditioned). Parent or AS AMENDED.
(e) From and after the Company shall not file any Regulatory Filings that contain information Closing, the parties shall:
(i) Upon request provide cross references to each others filings with respect to IDEs, INDAs NDAs, PMAs (and non-US counterparts thereof) and related filings with Governmental Authorities, which will be unrestricted except as to the Stockholder Field of use and any third-party restrictions relating to New Technology;
(ii) be required to assist each other by providing existing documents that might be needed for registration of Licensed Products in the Field (in the case of Seller assisting Buyer) and out of the Field (in the case of Buyer assisting Seller);
(iii) share all information submitted to the FDA or its affiliates without first providing other Governmental Authorities regarding new products with application within the Stockholder and its counsel a reasonable opportunity to review and comment thereonField or with scientific or medical significance within the Field, and will give good faith consideration including information relating to all reasonable additionsclinical studies and pre-clinical testing; and
(iv) cooperate with regard to quality, deletions or changes suggested by the Stockholder pharmacovigilance, product complaint and its counselrecall matters.
(bf) Each Stockholder hereto representFrom and after the Closing, warrant Buyer shall exercise commercially reasonable efforts in developing and covenant to Parent obtaining approval for ** and to GEM ONJ products that will trigger the Company that, to such Stockholder’s knowledge: (ipayments required by Section 2.1(c)(v) none of the information supplied in writing by such Stockholder specifically for inclusion or incorporation by reference in the Regulatory Disclosures will contain a material misstatement of fact or a material omission of fact necessary to make the information provided not misleading and (iivi) it does not permit any entity under and shall provide Seller with reports every ** as to its progress in studying and obtaining approval of these products.
(g) At all times following the “control” (defined Closing, Seller shall provide Buyer with access to and copies of all analytical methods used by Seller in Section 721 of the Defense Production Act, as amended, including all implanting regulations thereof) of a People’s Republic of China national, or any entity under the control of a Russian Federation national, to obtain through any Affiliate, control connection with respect to the CompanyLicensed Products.
Appears in 1 contract
Samples: Asset Purchase Agreement (Biomimetic Therapeutics, Inc.)
Regulatory Matters. (a) Subject to Section 4.4, the Stockholder shall, and shall use their reasonable best efforts to cause their Affiliates to, use their reasonable best efforts, consistent with the time frames set forth in Section 6.4 of the Merger Agreement, to supply and provide information that, to such Stockholder’s knowledge, is complete and accurate in all material respects to any Governmental Authority requesting such information in connection with filings or notifications under, or relating to, applicable laws that are required or advisable as a result of, or pursuant to, the Merger Agreement and the related financings and transactions, including, without limitation, information required or requested to be provided to any antitrust, financial or national security regulatory authorities in connection with any approvals reasonably sought in connection with the consummation of the Merger (collectively, the “Regulatory Filings” and the, “Regulatory Disclosures”, respectively). If any Governmental Authority seeks to prevent the consummation of the transactions contemplated by the Merger Agreement based on the HSR Act or any other Antitrust Laws or based on any other required approval, consent, notice or filing with a Governmental Authority and such actions by the Governmental Authority relate to the activities or investments of such Stockholder or its Affiliates (solely for purposes of this Section 4, an “Affiliate” of the Stockholder shall include any portfolio company in which such Stockholder or any of its Affiliates has made a debt or an equity investment), then if Parent in good faith reasonably determines that such actions by the Governmental Authority will not be resolved sufficiently in advance of the Termination Date, Parent may provide written notice of that determination to the Stockholder, and Parent may elect to terminate the obligations under Section 2 and Section 4.6 of this Agreement (in which case the Stockholder’s obligations under the Equity Commitment Letter shall also automatically terminate) and, in that context, the Stockholder shall be entitled to receive the Per Share Price under the Merger Agreement with respect to its shares of Common Stock; provided, however that Parent shall not terminate the Equity Commitment Letter or the obligations under Section 2 of this Agreement pursuant to this Section 4.3(a) without first obtaining alternative financing arrangements which provide Parent with funds in an amount equal to the Rollover Amount; provided that such alternative financing arrangements (i) provide Parent with sufficient funds, when added to the proceeds of the Equity Financing, Debt Financing and other sources of readily available liquidity of Parent, Merger Sub, the Company and the Company’s Subsidiaries on the Closing Date, to fund the Required Amount and (ii) do not impose new or additional conditions to the receipt of such financing relative to the Commitment Letters that could impair or delay the Closing. Parent shall promptly provide the Company with a copy of any definitive commitment letter or other documentation providing for such alternative financing arrangement. Notwithstanding anything to the contrary hereinset forth in this Agreement or any other Loan Document, the Stockholder may designate Collateral Agent, on behalf of the Secured Parties, acknowledges and agrees that (i) any Regulatory Disclosures that contain sensitive, legally privilegedapproval of the Gaming Authorities of this Agreement, or confidential information in respect any amendment hereto, does not constitute approval, either express or implied, of the Stockholder Collateral Agent to take any actions or exercise any remedies provided for in this Agreement, for which separate prior approval by the Gaming Authorities may be required by the Gaming Laws and for which licensure or suitability of the Collateral Agent and/or the other Secured Parties may be required; and (ii) the Collateral Agent, the other Secured Parties and their respective successors and assigns may be subject to being called forward by the Gaming Authorities, in their sole and absolute discretion, for licensure or a finding of suitability in order to remain entitled to the benefits of this Agreement and the other Loan Documents. Without limitation of the foregoing, the Collateral Agent, on behalf of the Secured Parties, acknowledges and agrees that certain of its Affiliates as exclusive rights, remedies and powers under this Agreement may be exercised only to the Stockholder extent that the exercise thereof does not violate any applicable provisions of the Gaming Laws and only to the Stockholder may provide extent that any such sensitive, legally privileged, or confidential information may only be provided on a counsel-only basis or directly required approvals (including prior approvals) are obtained from the requisite Gaming Authorities. The Collateral Agent agrees to cooperate with the applicable Governmental Authority requesting such information. The Stockholder shall not make any filings, or notifications Gaming Authorities in connection with the Merger pursuant administration of their regulatory jurisdiction over the Grantors, including, without limitation (to the extent not inconsistent with the internal policies of the Collateral Agent or any Antitrust Laws without Parent’s prior written consent (not applicable legal or regulatory restrictions), the provision of such documents or other information as may be requested by any such Gaming Authorities relating to be unreasonably withheldthe Collateral Agent, delayed or conditioned). Parent the Grantors or the Company Loan Documents. Notwithstanding any other provision of this Agreement, each Grantor expressly authorizes the Collateral Agent and the other Secured Parties to cooperate with the applicable Gaming Authorities as described above. The parties acknowledge that the provisions of this Section 12.4(a) shall not file any Regulatory Filings that contain information with respect to be for the Stockholder or its affiliates without first providing benefit of the Stockholder and its counsel a reasonable opportunity to review and comment thereon, and will give good faith consideration to all reasonable additions, deletions or changes suggested by the Stockholder and its counselGrantors.
(b) Each Stockholder hereto representFor the avoidance of doubt, warrant and covenant to Parent and to the Company that, to such Stockholder’s knowledge: (i) none provisions of Section 13.7 of the information supplied in writing by such Stockholder specifically for inclusion or incorporation by reference in Loan Agreement shall apply to all the Regulatory Disclosures will contain a material misstatement terms and provisions of fact or a material omission of fact necessary to make the information provided not misleading and (ii) it does not permit any entity under the “control” (defined in Section 721 of the Defense Production Act, as amended, including all implanting regulations thereof) of a People’s Republic of China national, or any entity under the control of a Russian Federation national, to obtain through any Affiliate, control with respect to the Companythis Agreement.
Appears in 1 contract
Regulatory Matters. (a) Subject to Section 4.4, the Stockholder shall, and shall use their reasonable best efforts to cause their Affiliates to, use their reasonable best efforts, consistent with the time frames set forth in Section 6.4 2.22(a) of the Merger Agreement, to supply Disclosure Schedule sets forth all Governmental or Regulatory Authorities and provide information that, to such Stockholder’s knowledge, is complete and accurate in all material respects to any Governmental Authority requesting such information in connection SROs with filings or notifications under, or relating to, applicable laws that are required or advisable as a result of, or pursuant to, the Merger Agreement and the related financings and transactions, including, without limitation, information required or requested to be provided to any antitrust, financial or national security regulatory authorities in connection with any approvals reasonably sought in connection with the consummation of the Merger (collectively, the “Regulatory Filings” and the, “Regulatory Disclosures”, respectively). If any Governmental Authority seeks to prevent the consummation of the transactions contemplated by the Merger Agreement based on the HSR Act or any other Antitrust Laws or based on any other required approval, consent, notice or filing with a Governmental Authority and such actions by the Governmental Authority relate to the activities or investments of such Stockholder or its Affiliates (solely for purposes of this Section 4, an “Affiliate” of the Stockholder shall include any portfolio company in which such Stockholder Descap or any of its Affiliates has made a debt officers or an equity investment), then if Parent in good faith reasonably determines that such actions by the Governmental Authority will not be resolved sufficiently in advance of the Termination Date, Parent may provide written notice of that determination employees is required to the Stockholder, and Parent may elect to terminate the obligations under Section 2 and Section 4.6 of this Agreement (in which case the Stockholder’s obligations under the Equity Commitment Letter shall also automatically terminate) and, in that context, the Stockholder shall be entitled to receive the Per Share Price under the Merger Agreement with respect to its shares of Common Stock; provided, however that Parent shall not terminate the Equity Commitment Letter or the obligations under Section 2 of this Agreement pursuant to this Section 4.3(a) without first obtaining alternative financing arrangements which provide Parent with funds in an amount equal to the Rollover Amount; provided that such alternative financing arrangements (i) provide Parent with sufficient fundsbe registered, when added to the proceeds of the Equity Financing, Debt Financing and other sources of readily available liquidity of Parent, Merger Sub, the Company and the Company’s Subsidiaries on the Closing Date, to fund the Required Amount and (ii) make filings or applications with or (iii) be a member of, in each case in order to conduct its business. Descap has timely made all such filings, applications and registrations and all amendments thereto required to be made and is a member of each such SRO. All such filings, applications, and registrations (together with all such amendments) and all such memberships are in full force and effect, and, to the knowledge of the Controlling Shareholders, no suspension or cancellation of any of them is threatened or reasonably likely and there are no facts which could reasonably be the basis for any such suspension or cancellation. All such filings, applications and registrations are current and do not impose new or additional conditions need to be amended in any material respect. Prior to the receipt execution of this Agreement, true and complete copies of such financing relative reports, registrations and statements have been delivered or made available to Buyer. Descap has conducted and continues to conduct its business in accordance with all Laws and the rules of all SROs of which it is a member relating to Descap or to the Commitment Letters that could impair or delay the Closing. Parent shall promptly provide the Company with a copy of any definitive commitment letter or other documentation providing for employees conducting such alternative financing arrangement. Notwithstanding anything business, including, but not limited to, Laws and SRO rules and interpretations relating to the contrary herein, the Stockholder may designate any Regulatory Disclosures that contain sensitive, legally privileged, or confidential information in respect of the Stockholder or any of its Affiliates as exclusive to the Stockholder and the Stockholder may provide that any such sensitive, legally privileged, or confidential information may only be provided on a counselxxxx-only basis or directly to the applicable Governmental Authority requesting such information. The Stockholder shall not make any filings, or notifications in connection with the Merger pursuant to any Antitrust Laws without Parent’s prior written consent (not to be unreasonably withheld, delayed or conditioned). Parent or the Company shall not file any Regulatory Filings that contain information with respect to the Stockholder or its affiliates without first providing the Stockholder and its counsel a reasonable opportunity to review and comment thereon, and will give good faith consideration to all reasonable additions, deletions or changes suggested by the Stockholder and its counselups.
(b) Each Stockholder hereto representDescap, warrant as a Broker-Dealer, has not engaged in any business activities for which it is not authorized by any Governmental or Regulatory Authority or SRO to engage or inconsistent with any limitations or restrictions imposed in connection with its registration forms (including Forms BD and covenant NASD Membership Agreements) and reports filed with any Governmental or Regulatory Authorities or SROs. All other reports and statements required to Parent be filed by Descap have been filed and to Descap has paid all fees and assessments due and payable in connection therewith.
(c) The information contained in each registration, form, report, filing or application referenced in paragraphs (a) and (b) above was true and complete in all material respects as of the Company thatdate of the filing thereof, and timely amendments have been filed, as necessary, to correct or update any information reflected in such Stockholder’s knowledge: (i) none registration, form, report, filing or application. Each registration, form, report, filing or application, when filed, complied, and if filed after the date hereof, will comply, with all applicable statutes, rules, regulations and orders of the information supplied in writing by such Stockholder specifically for inclusion Governmental or incorporation by reference in the Regulatory Disclosures Authority or SRO with which it was filed and did not and will not, as applicable, contain any untrue statement of a material misstatement of fact or a omit to state any material omission of fact required to be stated therein or necessary to make the information provided statements therein, in the light of the circumstances under which they were made, not misleading misleading. Each such registration is in full force and effect on the date hereof and does not need to be amended in any material respect. Except as set forth in Section 2.22(c) of the Disclosure Schedule, there are no unresolved exceptions or violations by Descap with respect to any regulatory examinations or audits of Descap.
(d) All of Descap's officers and employees who are required to be licensed or registered to engage in the activities or perform the responsibilities currently assigned to them or otherwise conduct business are, and at all required times have been, duly licensed or registered with each Governmental or Regulatory Authority or SRO in or with which such licensing or registration is required (such officers and employees are collectively, the "Registered Personnel"). Except as set forth on Section 2.22(d) of the Disclosure Schedule, none of the Registered Personnel is or has been subject to any disciplinary or other regulatory compliance proceeding that could prevent, restrict, unduly delay or otherwise limit the transfer from Sellers to Buyer, or the re-licensing or re-registration by Buyer, of the licenses or registrations of such Registered Personnel in any state in which such Registered Personnel are licensed, registered or required to be licensed or registered. Except as set forth on Section 2.22(d) of the Disclosure Schedule, none of the Controlling Shareholders has any knowledge of any facts that could be the basis for any such disciplinary or regulatory proceeding. Except as set forth on Section 2.22(d) of the Disclosure Schedule, none of the Registered Personnel is subject to any "statutory disqualification", as defined in Section 3(a)(39) of the Exchange Act, or to a disqualification that would be a basis for censure, limitations on the activities, functions or operations of, or suspension or revocation of, the registration of Descap, and, to the knowledge of the Controlling Shareholders, there is no Action or Proceeding, pending or contemplated, which could result in any such censure, limitations, suspension or revocation or any facts which could reasonably constitute the basis for any such Action or Proceeding.
(e) Except as set forth in Section 2.22(e) of the Disclosure Schedule, Descap has not received any notification or communication from any Governmental or Regulatory Authority or SRO (i) indicating that it may not be in compliance with any of the statutes, rules, regulations or ordinances of such Governmental or Regulatory Authority or SRO, (ii) it does not permit threatening to revoke, suspend or cancel any entity under license, franchise, permit, seat membership or registration on any stock or commodities exchange or in any SRO, (iii) requiring Descap or any of its owners, managers, supervisors, directors, officers or controlling persons to enter into a cease and desist order, agreement or memorandum of understanding restricting or limiting any activities or authority, or (iv) otherwise restricting or disqualifying the “control” (defined activities of Descap. Prior to the execution of this Agreement, true and complete copies of any such written notification or communication have been provided to Buyer. Except as set forth in Section 721 2.22(e) of the Defense Production ActDisclosure Schedule, as amended, including all implanting regulations thereof) none of a People’s Republic the Controlling Shareholders has any knowledge of China national, any facts that could result in such notification or any entity under the control of a Russian Federation national, to obtain through any Affiliate, control with respect to the Companycommunication.
Appears in 1 contract
Samples: Stock Purchase Agreement (First Albany Companies Inc)
Regulatory Matters. (a) Subject 8.1. NEVADA shall be responsible for obtaining and keeping in effect all FCC, state regulatory commission, franchise authority and other regulatory approvals that may be required in connection with the performance of its obligations under this Agreement. CLEC shall be responsible for obtaining and keeping in effect all FCC, state regulatory commission, franchise authority and other regulatory approvals that may be required in connection with its obligations under this Agreement, and with its offering of services to Section 4.4CLEC Customers contemplated by this Agreement. CLEC shall reasonably cooperate with NEVADA in obtaining and maintaining any required approvals for which NEVADA is responsible, and NEVADA shall reasonably cooperate with CLEC in obtaining and maintaining any required approvals for which CLEC is responsible.
8.2. To the extent that NEVADA is required by any Governmental Authority to file a tariff or make another similar filing in connection with the performance of any action that would otherwise be governed by this Agreement, the Stockholder terms of this Agreement shall control, unless this Agreement links a term, condition or price in this Agreement to a specific tariff, in which case the terms of the tariff as modified from time to time will apply. If, subsequent to the effective date of any tariff incorporated by reference into this Agreement, NEVADA is ordered not to file tariffs with the state regulatory commission or the FCC, or is permitted not to file tariffs (and elects not to do so), either generally or for specific Network Elements, Ancillary Functions, Combinations, Local Services or other 2/25/98 services provided hereunder, the terms and conditions of such tariffs as of the date on which the requirement to file such tariffs was lifted shall, to the degree not inconsistent with this Agreement, be deemed incorporated in this Agreement by reference.
8.3. In the event that any final and nonappealable legislative, regulatory, judicial or other legal action renders this Agreement or any Attachment hereto inoperable, materially affects any material terms of this Agreement, or materially affects the ability of CLEC or NEVADA to perform any material terms of this Agreement, CLEC or NEVADA may, on thirty (30) days written notice (delivered not later than thirty (30) days following the date on which such action has become legally binding and has otherwise become final and nonappealable) require that such terms be renegotiated, and the Parties shall use their reasonable best efforts renegotiate in good faith such mutually acceptable new terms as may be required. In the event that such new terms are not renegotiated within ninety (90) days after such notice, the dispute shall be referred to cause their Affiliates to, use their reasonable best efforts, consistent with the time frames Alternative Dispute Resolution procedures set forth in Section 6.4 of the Merger Agreement, to supply 16 and provide information that, to such Stockholder’s knowledge, is complete and accurate in all material respects to any Governmental Authority requesting such information in connection with filings or notifications under, or relating to, applicable laws that are required or advisable as a result of, or pursuant to, the Merger Agreement and the related financings and transactions, including, without limitation, information required or requested to be provided to any antitrust, financial or national security regulatory authorities in connection with any approvals reasonably sought in connection with the consummation of the Merger (collectively, the “Regulatory Filings” and the, “Regulatory Disclosures”, respectively). If any Governmental Authority seeks to prevent the consummation of the transactions contemplated by the Merger Agreement based on the HSR Act or any other Antitrust Laws or based on any other required approval, consent, notice or filing with a Governmental Authority and such actions by the Governmental Authority relate to the activities or investments of such Stockholder or its Affiliates (solely for purposes of this Section 4, an “Affiliate” of the Stockholder shall include any portfolio company in which such Stockholder or any of its Affiliates has made a debt or an equity investment), then if Parent in good faith reasonably determines that such actions by the Governmental Authority will not be resolved sufficiently in advance of the Termination Date, Parent may provide written notice of that determination to the Stockholder, and Parent may elect to terminate the obligations under Section 2 and Section 4.6 of this Agreement (in which case the Stockholder’s obligations under the Equity Commitment Letter shall also automatically terminate) and, in that context, the Stockholder shall be entitled to receive the Per Share Price under the Merger Agreement with respect to its shares of Common Stock; provided, however that Parent shall not terminate the Equity Commitment Letter or the obligations under Section 2 of this Agreement pursuant to this Section 4.3(a) without first obtaining alternative financing arrangements which provide Parent with funds in an amount equal to the Rollover Amount; provided that such alternative financing arrangements (i) provide Parent with sufficient funds, when added to the proceeds of the Equity Financing, Debt Financing and other sources of readily available liquidity of Parent, Merger Sub, the Company and the Company’s Subsidiaries on the Closing Date, to fund the Required Amount and (ii) do not impose new or additional conditions to the receipt of such financing relative to the Commitment Letters that could impair or delay the Closing. Parent shall promptly provide the Company with a copy of any definitive commitment letter or other documentation providing for such alternative financing arrangement. Notwithstanding anything to the contrary herein, the Stockholder may designate any Regulatory Disclosures that contain sensitive, legally privileged, or confidential information in respect of the Stockholder or any of its Affiliates as exclusive to the Stockholder and the Stockholder may provide that any such sensitive, legally privileged, or confidential information may only be provided on a counsel-only basis or directly to the applicable Governmental Authority requesting such information. The Stockholder shall not make any filings, or notifications in connection with the Merger pursuant to any Antitrust Laws without Parent’s prior written consent (not to be unreasonably withheld, delayed or conditioned). Parent or the Company shall not file any Regulatory Filings that contain information with respect to the Stockholder or its affiliates without first providing the Stockholder and its counsel a reasonable opportunity to review and comment thereon, and will give good faith consideration to all reasonable additions, deletions or changes suggested by the Stockholder and its counselAttachment 3.
(b) Each Stockholder hereto represent, warrant and covenant to Parent and to the Company that, to such Stockholder’s knowledge: (i) none of the information supplied in writing by such Stockholder specifically for inclusion or incorporation by reference in the Regulatory Disclosures will contain a material misstatement of fact or a material omission of fact necessary to make the information provided not misleading and (ii) it does not permit any entity under the “control” (defined in Section 721 of the Defense Production Act, as amended, including all implanting regulations thereof) of a People’s Republic of China national, or any entity under the control of a Russian Federation national, to obtain through any Affiliate, control with respect to the Company.
Appears in 1 contract
Samples: Telecommunications
Regulatory Matters. From the date hereof and continuing until the earlier of the termination of this Agreement and the Initial Funding Date, or to the extent relating to Subsequent Funding, the Subsequent Funding Date:
(a) Subject In connection with the transactions contemplated by this Agreement , Clean Technologies shall cause the Company to cause the Project Company to file (i) any application required to be filed by it with FERC pursuant to Section 4.4203 of the FPA, (ii) any applications, reports or other filings required under any state or local Applicable Laws relating to the Stockholder shallownership and control of the Systems by the Project Company, and shall use their reasonable best efforts to cause their Affiliates to(iii) any further filings [***] Confidential Treatment Requested that may be necessary, use their reasonable best efforts, consistent with the time frames set forth in Section 6.4 of the Merger Agreement, to supply and provide information that, to such Stockholder’s knowledge, is complete and accurate in all material respects to any Governmental Authority requesting such information in connection with filings or notifications under, or relating to, applicable laws that are required proper or advisable as a result of, or pursuant to, the Merger Agreement and the related financings and transactions, including, without limitation, information required or requested to be provided to any antitrust, financial or national security regulatory authorities in connection with any approvals reasonably sought in connection with the consummation of the Merger (collectively, the “Regulatory Filings” and the, “Regulatory Disclosures”, respectively). If any Governmental Authority seeks matters referred to prevent the consummation of the transactions contemplated by the Merger Agreement based on the HSR Act or any other Antitrust Laws or based on any other required approval, consent, notice or filing with a Governmental Authority and such actions by the Governmental Authority relate to the activities or investments of such Stockholder or its Affiliates (solely for purposes of this Section 4, an “Affiliate” of the Stockholder shall include any portfolio company in which such Stockholder or any of its Affiliates has made a debt or an equity investment), then if Parent in good faith reasonably determines that such actions by the Governmental Authority will not be resolved sufficiently in advance of the Termination Date, Parent may provide written notice of that determination to the Stockholder, and Parent may elect to terminate the obligations under Section 2 and Section 4.6 of this Agreement (in which case the Stockholder’s obligations under the Equity Commitment Letter shall also automatically terminate) and, in that context, the Stockholder shall be entitled to receive the Per Share Price under the Merger Agreement with respect to its shares of Common Stock; provided, however that Parent shall not terminate the Equity Commitment Letter or the obligations under Section 2 of this Agreement pursuant to this Section 4.3(a) without first obtaining alternative financing arrangements which provide Parent with funds in an amount equal to the Rollover Amount; provided that such alternative financing arrangements clauses (i) provide Parent with sufficient funds, when added to the proceeds of the Equity Financing, Debt Financing and other sources of readily available liquidity of Parent, Merger Sub, the Company and the Company’s Subsidiaries on the Closing Date, to fund the Required Amount and (ii) do not impose new or additional conditions to the receipt above. Each of such financing relative to the Commitment Letters that could impair or delay the Closing. Parent Clean Technologies and Mehetia shall promptly provide the Company with a copy of make their respective required filings under any definitive commitment letter or other documentation providing for such alternative financing arrangement. Notwithstanding anything to the contrary herein, the Stockholder may designate any Regulatory Disclosures that contain sensitive, legally privileged, or confidential information in respect of the Stockholder or any of its Affiliates as exclusive to the Stockholder and the Stockholder may provide that any such sensitive, legally privileged, or confidential information may only be provided on a counsel-only basis or directly to the applicable Governmental Authority requesting such information. The Stockholder shall not make any filings, or notifications in connection with the Merger pursuant to any Antitrust Laws without Parent’s prior written consent (not to be unreasonably withheld, delayed or conditioned). Parent or the Company shall not file any Regulatory Filings that contain information with respect to the Stockholder or its affiliates without first providing the Stockholder and its counsel a reasonable opportunity to review and comment thereon, and will give good faith consideration to all reasonable additions, deletions or changes suggested by the Stockholder and its counselApplicable Laws.
(b) Each Stockholder hereto representIn connection with the transactions contemplated by this Agreement, warrant Clean Technologies and covenant to Parent Investor shall, and to the Company that, to such Stockholder’s knowledgeshall cause their respective Subsidiaries to: (i) none cooperate with each other in connection with the making of all filings, notifications and any other material actions pursuant to this Section 4.3, including, subject to Applicable Laws, by permitting counsel for the other Parties to review in advance, and consider in good faith the views of the information supplied other Parties in writing by such Stockholder specifically for inclusion connection with, any proposed written communication to any Governmental Authority addressing the terms of this Agreement or incorporation by reference in the Regulatory Disclosures will contain a material misstatement of fact or a material omission of fact necessary to make the information provided not misleading and Company LLC Agreement; (ii) it does not permit furnish to the other Parties such information and assistance as such Parties may reasonably request in connection with (x) the preparation of any entity under submissions to, or agency proceedings by, any Governmental Authority, or (y) obtaining any consents, approvals or waivers required by any Governmental Authority; and (iii) use their commercially reasonable efforts to cause the “control” (defined conditions to the Initial Funding in Section 721 2.5 (in the case of Clean Technologies) and Section 2.6 (in the case of Investor) to be satisfied and, if applicable, to cause the conditions to each Subsequent Funding in Section 2.7 (in the case of Clean Technologies) and Section 2.8 (in the case of Investor) to be satisfied.
(c) Clean Technologies shall cause the Company to cause the Project Company to file a Notice of Exempt Wholesale Generator Status prior to the installation of the Defense Production Act, first System.
(d) Nothing in this section shall (i) limit Investor’s or Clean Technologies’ right to terminate this Agreement pursuant to Section 5.1(a) so long as amended, including such Party has complied in all implanting regulations thereof) of a People’s Republic of China nationalmaterial respects with its obligations under this section, or (ii) require any entity Party to amend this Agreement or to waive or forbear from exercising any of its rights or remedies under the control of a Russian Federation national, to obtain through any Affiliate, control with respect to the Companythis Agreement.
Appears in 1 contract
Samples: Equity Capital Contribution Agreement (Bloom Energy Corp)
Regulatory Matters. (a) Subject to Section 4.4Parent and the Company shall promptly prepare and file with the SEC, no later than thirty (30) business days after the date of this Agreement, the Stockholder shallJoint Proxy Statement and Parent shall promptly prepare and file with the SEC the S-4, in which the Joint Proxy Statement will be included as a prospectus. The S-4 shall also, to the extent required under the Securities Act and the regulations promulgated thereunder, register the shares of Parent Series A Preferred Stock and depositary shares representing one fortieth of an interest in a share of Parent Series A Preferred Stock that will be issued in the transaction. Each of Parent and the Company shall use their reasonable best efforts to cause have the S-4 declared effective under the Securities Act as promptly as practicable after such filing and to keep the S-4 effective for so long as necessary to consummate the transactions contemplated by this Agreement, and Parent and the Company shall thereafter as promptly as practicable mail or deliver the Joint Proxy Statement to their Affiliates torespective stockholders. Parent shall also use its reasonable best efforts to obtain all necessary state securities law or "Blue Sky" permits and approvals required to carry out the transactions contemplated by this Agreement, and the Company shall furnish all information concerning the Company and the holders of Company Common Stock as may be reasonably requested in connection with any such action.
(b) The parties hereto shall cooperate with each other and use their reasonable best effortsefforts to promptly prepare and file all necessary documentation, consistent to effect all applications, notices, petitions and filings, to obtain as promptly as practicable all permits, consents, approvals and authorizations of all third parties and Governmental Entities which are necessary or advisable to consummate the transactions contemplated by this Agreement (including the Merger and the Bank Merger), and to comply with the time frames set forth in Section 6.4 terms and conditions of all such permits, consents, approvals and authorizations of all such Governmental Entities. Without limiting the generality of the Merger foregoing, as soon as practicable and in no event later than thirty (30) business days after the date of this Agreement, Parent and the Company shall, and shall cause their respective Subsidiaries to, each prepare and file any applications, notices and filings required to supply be filed with any bank regulatory agency in order to obtain the Requisite Regulatory Approvals. Parent and provide information thatthe Company shall each use, and shall each cause their applicable Subsidiaries to use, reasonable best efforts to obtain each such Requisite Regulatory Approval as promptly as reasonably practicable. Parent and the Company shall have the right to review in advance, and, to such Stockholder’s knowledgethe extent practicable, is complete each will consult the other on, in each case subject to applicable laws relating to the exchange of information, all the information relating to the Company or Parent, as the case may be, and accurate any of their respective Subsidiaries, which appears in all material respects to any filing made with, or written materials submitted to, any third party or any Governmental Authority requesting such information in connection with filings or notifications under, or relating to, applicable laws that are required or advisable as a result of, or pursuant to, the Merger Agreement and the related financings and transactions, including, without limitation, information required or requested to be provided to any antitrust, financial or national security regulatory authorities in connection with any approvals reasonably sought Entity in connection with the consummation transactions contemplated by this Agreement. In exercising the foregoing right, each of the parties hereto shall act reasonably and as promptly as practicable. The parties hereto agree that they will consult with each other with respect to the obtaining of all permits, consents, approvals and authorizations of all third parties and Governmental Entities necessary or advisable to consummate the transactions contemplated by this Agreement and each party will keep the other apprised of the status of matters relating to completion of the transactions contemplated hereby. Each party shall consult with the other in advance of any meeting or conference with any Governmental Entity in connection with the transactions contemplated by this Agreement and to the extent permitted by such Governmental Entity, give the other party and/or its counsel the opportunity to attend and participate in such meetings and conferences.
(c) In furtherance and not in limitation of the foregoing, each of Parent and the Company shall use its reasonable best 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. Notwithstanding the foregoing, nothing contained in this Agreement shall be deemed to require Parent or the Company to take any action, or commit to take any action, or agree to any condition or restriction that would reasonably be expected to have a Material Adverse Effect on the Surviving Corporation and its Subsidiaries, taken as a whole, after giving effect to the Merger (collectivelya "Materially Burdensome Regulatory Condition").
(d) Parent and the Company shall, upon request, furnish each other with all information concerning themselves, their Subsidiaries, directors, officers and stockholders and such other matters as may be reasonably necessary or advisable in connection with the Joint Proxy Statement, the “Regulatory Filings” and theS-4 or any other statement, “Regulatory Disclosures”filing, respectively). If notice or application made by or on behalf of Parent, the Company or any of their respective Subsidiaries to any Governmental Authority seeks to prevent Entity in connection with the Merger, the Bank Merger and the other transactions contemplated by this Agreement.
(e) To the extent permitted by applicable law, Parent and the Company shall promptly advise each other upon receiving any communication from any Governmental Entity whose consent or approval is required for consummation of the transactions contemplated by the Merger this Agreement based on the HSR Act or that causes such party to believe that there is a reasonable likelihood that any other Antitrust Laws or based on any other required approval, consent, notice or filing with a Governmental Authority and such actions by the Governmental Authority relate to the activities or investments of such Stockholder or its Affiliates (solely for purposes of this Section 4, an “Affiliate” of the Stockholder shall include any portfolio company in which such Stockholder or any of its Affiliates has made a debt or an equity investment), then if Parent in good faith reasonably determines that such actions by the Governmental Authority Requisite Regulatory Approval will not be resolved sufficiently in advance of the Termination Date, Parent may provide written notice of obtained or that determination to the Stockholder, and Parent may elect to terminate the obligations under Section 2 and Section 4.6 of this Agreement (in which case the Stockholder’s obligations under the Equity Commitment Letter shall also automatically terminate) and, in that context, the Stockholder shall be entitled to receive the Per Share Price under the Merger Agreement with respect to its shares of Common Stock; provided, however that Parent shall not terminate the Equity Commitment Letter or the obligations under Section 2 of this Agreement pursuant to this Section 4.3(a) without first obtaining alternative financing arrangements which provide Parent with funds in an amount equal to the Rollover Amount; provided that such alternative financing arrangements (i) provide Parent with sufficient funds, when added to the proceeds of the Equity Financing, Debt Financing and other sources of readily available liquidity of Parent, Merger Sub, the Company and the Company’s Subsidiaries on the Closing Date, to fund the Required Amount and (ii) do not impose new or additional conditions to the receipt of any such financing relative to the Commitment Letters that could impair or delay the Closingapproval will be materially delayed. Parent shall promptly provide the Company with a copy of any definitive commitment letter or other documentation providing for such alternative financing arrangement. Notwithstanding anything to the contrary hereinAs used in this Agreement, the Stockholder may designate any "Requisite Regulatory Disclosures that contain sensitive, legally privileged, or confidential information in respect of the Stockholder or any of its Affiliates as exclusive to the Stockholder and the Stockholder may provide that any such sensitive, legally privileged, or confidential information may only be provided on a counsel-only basis or directly to the applicable Governmental Authority requesting such information. The Stockholder Approvals" shall not make any filings, or notifications in connection with the Merger pursuant to any Antitrust Laws without Parent’s prior written consent (not to be unreasonably withheld, delayed or conditioned). Parent or the Company shall not file any Regulatory Filings that contain information with respect to the Stockholder or its affiliates without first providing the Stockholder and its counsel a reasonable opportunity to review and comment thereon, and will give good faith consideration to mean all reasonable additions, deletions or changes suggested by the Stockholder and its counsel.
(b) Each Stockholder hereto represent, warrant and covenant to Parent and to the Company that, to such Stockholder’s knowledge: (i) none of the information supplied in writing by such Stockholder specifically for inclusion or incorporation by reference in the Regulatory Disclosures will contain a material misstatement of fact or a material omission of fact necessary to make the information provided not misleading and (ii) it does not permit any entity under the “control” (defined in Section 721 of the Defense Production Act, as amended, including all implanting regulations thereof) of a People’s Republic of China national, or any entity under the control of a Russian Federation national, to obtain through any Affiliate, control with respect to the Company.regulatory
Appears in 1 contract
Regulatory Matters. (a) Subject 21.1 Notwithstanding anything to Section 4.4the contrary contained in this Agreement or any of the other Security Documents, the Stockholder shallrights of the Pledgee and the other Secured Parties hereunder and under the other Security Documents are subject to all applicable rules and regulations of the FCC and other Governmental Authorities with jurisdiction over Debtor and its subsidiaries. Without limiting the foregoing, the Pledgee will not take any action (or authorize any other party to take any action on its behalf) which would constitute or result in an assignment or change of control of any governmental permits, licenses, or other authorizations, including without limitation those issued by the FCC, now held by or to be issued to Debtor or any of its subsidiaries which would require prior notice to or approval from any Governmental Authority, or otherwise take action hereunder which would require prior notice to or approval from any Governmental Authority, in each case without first providing such notice or obtaining such prior approval of the relevant Governmental Authorities.
21.2 Upon and after the issuance of a Default Notice, the Debtor shall take any action which the Pledgee may reasonably request in the exercise of its rights and remedies under this Agreement in order to transfer or assign the Collateral to the Pledgee or to such one or more third parties as the Pledgee may designate, or to a combination of the foregoing. To enforce the provisions of this Clause 21, upon and after the issuance of a Default Notice, the Pledgee is empowered to seek from the FCC and any other Governmental Authority, to the extent required, consent to or approval of any involuntary assignment or transfer of control of any entity whose Collateral is subject to this Agreement for the purpose of seeking a bona fide purchaser to whom the Collateral will be assigned and control will ultimately be transferred. Debtor agrees to cooperate with any such purchaser and with the Pledgee in the preparation, execution and filing of any applications and other documents and providing any information that may be necessary or helpful in obtaining the FCC’s or such other Governmental Authority’s consent to the assignment to such purchaser of the Collateral. Debtor hereby agrees to consent to any such an involuntary transfer of control upon the request of the Pledgee upon and after the issuance of a Default Notice and, without limiting any rights of the Pledgee under this Agreement, to authorize the Pledgee to nominate a trustee or receiver to assume control of the Collateral, subject only to required judicial, FCC or other consent required by Governmental Authorities, in order to effectuate the transactions contemplated in this Clause 21. Such trustee or receiver shall have all the rights and powers as provided to it by law or court order, or to the Pledgee under this Agreement. Debtor shall cooperate fully in obtaining the consent of the FCC and the approval or consent of each other Governmental Authority required to effectuate the foregoing.
21.3 Upon and after the issuance of a Default Notice, Debtor shall use their reasonable its best efforts to cause their Affiliates to, use their reasonable best efforts, consistent with the time frames set forth assist in Section 6.4 obtaining consent or approval of the Merger FCC and any other Governmental Authority, if required, for any action or transactions contemplated by this Agreement, to supply and provide information that, to such Stockholder’s knowledge, is complete and accurate in all material respects to any Governmental Authority requesting such information in connection with filings or notifications under, or relating to, applicable laws that are required or advisable as a result of, or pursuant to, the Merger Agreement and the related financings and transactions, including, without limitation, information required or requested to be provided to any antitrustthe preparation, financial or national security regulatory authorities in connection with any approvals reasonably sought in connection execution and filing with the consummation FCC of the Merger (collectively, transferor’s or assignor’s portion of any application or applications for consent to the “Regulatory Filings” transfer of control or assignment necessary or appropriate under the FCC’s rules and the, “Regulatory Disclosures”, respectively). If any Governmental Authority seeks to prevent the consummation regulations for approval of the transactions contemplated by the Merger Agreement based on the HSR Act transfer or assignment of any other Antitrust Laws or based on any other required approval, consent, notice or filing with a Governmental Authority and such actions by the Governmental Authority relate to the activities or investments of such Stockholder or its Affiliates (solely for purposes of this Section 4, an “Affiliate” portion of the Stockholder shall include any portfolio company in which such Stockholder or any Collateral.
21.4 Debtor hereby acknowledges and agrees that the Collateral is a unique asset and that a violation of its Affiliates has made a debt or an equity investment), then if Parent in good faith reasonably determines that such actions by the Governmental Authority will not be resolved sufficiently in advance of the Termination Date, Parent may provide written notice of that determination Debtor’s covenant to the Stockholder, and Parent may elect to terminate the obligations under Section 2 and Section 4.6 of this Agreement (in which case the Stockholder’s obligations under the Equity Commitment Letter shall also automatically terminate) and, in that context, the Stockholder shall be entitled to receive the Per Share Price under the Merger Agreement cooperate with respect to any regulatory consents would result in irreparable harm to the Pledgee for which monetary damages are not readily ascertainable. Debotr further agrees that, because of the unique nature of its shares undertaking in this subclause 21.4, the same may be specifically enforced, and it hereby waives, and agrees to waive, any claim or defense that the Pledgee would have an adequate remedy at law for the breach of Common Stock; provided, however that Parent shall not terminate the Equity Commitment Letter or this undertaking.
21.5 Without limiting the obligations under Section 2 of this Agreement pursuant Debtor hereunder in any respect, Debtor further agrees that if Debtor, upon and after the issuance of a Default Notice, should fail or refuse to this Section 4.3(a) without first obtaining alternative financing arrangements which provide Parent with funds in an amount equal execute any application or other document necessary or appropriate to obtain any governmental consent necessary or appropriate for the exercise of any right of the Pledgee hereunder, Debtor agrees, to the Rollover Amount; provided extent consistent with applicable law, that such alternative financing arrangements (i) provide Parent with sufficient funds, when added application or other document may be executed on Debtor’s behalf by the clerk of any court or other forum in any competent jurisdiction without notice to the proceeds of the Equity Financing, Debt Financing and other sources of readily available liquidity of Parent, Merger Sub, the Company and the Company’s Subsidiaries on the Closing Date, to fund the Required Amount and (ii) do not impose new or additional conditions to the receipt of such financing relative to the Commitment Letters that could impair or delay the Closing. Parent shall promptly provide the Company with a copy of any definitive commitment letter or other documentation providing for such alternative financing arrangement. Notwithstanding anything to the contrary herein, the Stockholder may designate any Regulatory Disclosures that contain sensitive, legally privileged, or confidential information in respect of the Stockholder or any of its Affiliates as exclusive to the Stockholder and the Stockholder may provide that any such sensitive, legally privileged, or confidential information may only be provided on a counsel-only basis or directly to the applicable Governmental Authority requesting such information. The Stockholder shall not make any filings, or notifications in connection with the Merger pursuant to any Antitrust Laws without Parent’s prior written consent (not to be unreasonably withheld, delayed or conditioned). Parent or the Company shall not file any Regulatory Filings that contain information with respect to the Stockholder or its affiliates without first providing the Stockholder and its counsel a reasonable opportunity to review and comment thereon, and will give good faith consideration to all reasonable additions, deletions or changes suggested by the Stockholder and its counselDebtor.
(b) Each Stockholder hereto represent, warrant and covenant to Parent and to the Company that, to such Stockholder’s knowledge: (i) none of the information supplied in writing by such Stockholder specifically for inclusion or incorporation by reference in the Regulatory Disclosures will contain a material misstatement of fact or a material omission of fact necessary to make the information provided not misleading and (ii) it does not permit any entity under the “control” (defined in Section 721 of the Defense Production Act, as amended, including all implanting regulations thereof) of a People’s Republic of China national, or any entity under the control of a Russian Federation national, to obtain through any Affiliate, control with respect to the Company.
Appears in 1 contract
Samples: Agreement of Disclosed Pledge (New Skies Satellites Holdings Ltd.)
Regulatory Matters. (a) Subject 3.8.1. You shall promptly provide such information to Section 4.4us as we may reasonably require in order to satisfy any information reporting, the Stockholder shall, disclosure and shall use their reasonable best efforts to cause their Affiliates to, use their reasonable best efforts, consistent with the time frames set forth in Section 6.4 of the Merger Agreement, to supply and provide information that, to such Stockholder’s knowledge, is complete and accurate in all material respects other related obligations to any Governmental Gaming Authority requesting such information in connection from time to time. You shall cooperate with filings or notifications underrequests, or relating toinquiries, applicable laws that are required or advisable as a result of, or pursuant to, the Merger Agreement investigations and the related financings and transactions, including, without limitation, information required or requested to be provided to like of any antitrust, financial or national security regulatory authorities in connection with any approvals reasonably sought Gaming Authority in connection with the consummation of the Merger (collectively, the “Regulatory Filings” and the, “Regulatory Disclosures”, respectively). If any Governmental Authority seeks to prevent the consummation of the transactions contemplated by the Merger Agreement based on the HSR Act or any other Antitrust Laws or based on any other required approval, consent, notice or filing with a Governmental Authority and such actions by the Governmental Authority relate to the activities or investments of such Stockholder or its Affiliates (solely for purposes performance of this Section 4Agreement, an “Affiliate” including the disclosure of information to any Gaming Authority that would otherwise be considered confidential. For the Stockholder shall include any portfolio company in which such Stockholder or any avoidance of its Affiliates has made doubt, this relates to documentation that can identity you (either as a debt corporate body or an equity investment), then if Parent in good faith reasonably determines that such actions by individual) at the Governmental Authority will not be resolved sufficiently in advance outset of your registration to join the Termination Date, Parent may provide written notice of that determination to the Stockholder, and Parent may elect to terminate the obligations under Section 2 and Section 4.6 of this Agreement (in which case the Stockholder’s obligations under the Equity Commitment Letter shall also automatically terminate) and, in that context, the Stockholder SuperAffs Program.
3.8.2. We shall be entitled to receive the Per Share Price under the Merger Agreement with respect to its shares of Common Stock; provided, however that Parent shall not terminate the Equity Commitment Letter or the obligations under Section 2 of this Agreement immediately on notice to you and withhold any monies then due to you if, in our reasonable opinion: - you are in breach of any relevant advertising law, regulation or codes of practice (including the LCCP, the UK Code of Non-broadcast, Advertising, Sales Promotion and Direct Marketing and the Gambling Industry Code for Socially Responsible Advertising, if applicable) and/or; - the Marketing Guidelines and/or; - you have otherwise acted in a manner which is inconsistent with the licensing objectives and/or; - Any Applicable Law.
3.8.3. Insofar as you carry out activities pursuant to this Section 4.3(aAgreement on behalf of us and such activities are subject to any Gaming Approval issued to us (or any of our Group Companies) without first obtaining alternative financing arrangements from time to time, you shall conduct yourself as if you are bound by the relevant conditions and the relevant codes of practice to which provide Parent we (or any of our Group Companies) are subject pursuant to such Gaming Approval.
3.8.4. You acknowledge that we and our Group Companies conduct business in a highly regulated industry under Gaming Approvals issued by Gaming Authorities. In order to ensure compliance with funds the requirements of Gaming Authorities and to ensure that we are able to maintain such Gaming Approvals, we may evaluate the suitability of our affiliates with which we do business from time to time. If we, acting in an amount equal good faith and in accordance with industry practice, determine you to be Unsuitable (a ” Determination ”), we may terminate this Agreement immediately by giving written notice to the Rollover Amount; provided that such alternative financing arrangements you and withhold any monies then due to you.
3.8.5. No payments or undue financial or other advantage of any kind shall be made by you (i) provide Parent with sufficient fundsor any personnel employed or engaged by you), when added to the proceeds of the Equity Financing, Debt Financing and other sources of readily available liquidity of Parent, Merger Sub, the Company and the Company’s Subsidiaries on the Closing Datedirectly or indirectly, to fund any entity, government, corporation or other person for the Required Amount and (ii) do not impose new purpose of improperly influencing the consideration of applications for a business activity or additional conditions to the receipt of such financing relative any other benefits, including the obtaining or retaining of business. You shall:
(a) comply with all Applicable Laws relating to the Commitment Letters that could impair or delay the Closing. Parent shall promptly provide the Company with a copy of any definitive commitment letter or other documentation providing for such alternative financing arrangement. Notwithstanding anything to the contrary hereinanti-bribery and/or anti-corruption (including, if applicable, the Stockholder may designate any Regulatory Disclosures that contain sensitive, legally privileged, or confidential information in respect of the Stockholder or any of its Affiliates as exclusive to the Stockholder and the Stockholder may provide that any such sensitive, legally privileged, or confidential information may only be provided on a counsel-only basis or directly to the applicable Governmental Authority requesting such information. The Stockholder shall not make any filings, or notifications in connection with the Merger pursuant to any Antitrust Laws without Parent’s prior written consent (not to be unreasonably withheld, delayed or conditionedUK´s Bribery Act 2010). Parent or the Company shall not file any Regulatory Filings that contain information with respect to the Stockholder or its affiliates without first providing the Stockholder and its counsel a reasonable opportunity to review and comment thereon, and will give good faith consideration to all reasonable additions, deletions or changes suggested by the Stockholder and its counsel.;
(b) Each Stockholder hereto representnot engage in any activity, warrant and covenant to Parent and to practice or conduct which constitutes an offence under any applicable anti-bribery and/or anti-corruption legislation (including acts which would constitute an offence under sections 1, 2 or 6 of the Company UK´s Xxxxxxx Xxx 0000 if such activity, practice or conduct had been carried out in the UK); and
(c) notify us immediately if you become aware that, or have reason to such Stockholder’s knowledge: (i) none of the information supplied in writing by such Stockholder specifically for inclusion or incorporation by reference in the Regulatory Disclosures will contain a material misstatement of fact or a material omission of fact necessary to make the information provided not misleading and (ii) it does not permit any entity believe that, you have breached your obligations under the “control” (defined in Section 721 of the Defense Production Act, as amended, including all implanting regulations thereof) of a People’s Republic of China national, or any entity under the control of a Russian Federation national, to obtain through any Affiliate, control with respect to the Companythis clause 3.8.5.
Appears in 1 contract
Samples: Affiliate Agreement
Regulatory Matters. If any of the following occurs: (ai) Subject (A) any Key Permit or any of the Borrower’s or any of Subsidiary’s material rights or interests thereunder is terminated or amended in any manner adverse to Section 4.4the Borrower and its Subsidiaries in any material respect and such termination or amendment is not otherwise revoked within [**] days (or, the Stockholder shallif a resolution to such revocation is being pursued in good faith by appropriate proceedings diligently conducted, and shall use their reasonable best efforts to cause their Affiliates to, use their reasonable best efforts, consistent with solely if the time frames set forth applicable event or circumstance has not actually resulted in Section 6.4 a reduction of revenues that is in excess of the Merger Agreementthreshold described in the definition of Material Impact, an additional [**] days thereafter) after the occurrence thereof; (B) the FDA, CMS, EMA or any other Governmental Authority (x) terminates, or delivers a letter or other written communication to supply and provide information thatthe Borrower or its Subsidiaries asserting that any Specified Product lacks, a required Key Permit, which termination or assertion is not withdrawn or otherwise resolved within [**] days (or, if a resolution to such Stockholderwithdrawal is being pursued in good faith through appropriate proceedings diligently conducted, and solely if the applicable event or circumstance has not actually resulted in a reduction of revenues that is in excess of the threshold described in the definition of Material Impact, an additional [**] days thereafter) after such Person’s knowledgereceipt of such termination, is complete and accurate in all material respects letter or other written communication or (y) initiates enforcement action against or issues a warning letter with respect to the Borrower or any Governmental Authority requesting such information in connection with filings or notifications underof the Subsidiaries, or relating toany of their Specified Products or the Health Care Activities therefor, applicable laws that are required causes the Borrower or advisable as a result such Subsidiary to discontinue or suspend the sale of, or pursuant towithdraw from the market, the Merger Agreement and the related financings and transactions, including, without limitation, information required or requested to be provided to any antitrust, financial or national security regulatory authorities in connection with any approvals reasonably sought in connection with the consummation of the Merger (collectively, the “Regulatory Filings” and the, “Regulatory Disclosures”, respectively). If any Governmental Authority seeks to prevent the consummation of the transactions contemplated by the Merger Agreement based on the HSR Act or any other Antitrust Laws or based on any other required approval, consent, notice or filing with a Governmental Authority and such actions by the Governmental Authority relate to the activities or investments of such Stockholder or its Affiliates (solely for purposes of this Section 4, an “Affiliate” of the Stockholder shall include any portfolio company in which such Stockholder or any of its Affiliates has made Specified Products, which discontinuance, suspension or withdrawal would reasonably be expected to last for more than [**] days (or, if a debt resolution to such discontinuance, suspension or an equity investment), then if Parent withdrawal is being pursued in good faith reasonably determines through appropriate proceedings diligently conducted, and solely if the applicable event or circumstance has not actually resulted in a reduction of revenues that such actions by the Governmental Authority will not be resolved sufficiently is in advance excess of the Termination Datethreshold described in the definition of Material Impact, Parent may provide written notice of that determination to the Stockholder, and Parent may elect to terminate the obligations under Section 2 and Section 4.6 of this Agreement (in which case the Stockholder’s obligations under the Equity Commitment Letter shall also automatically terminatean additional [**] days thereafter) and, in that context, the Stockholder shall be entitled to receive the Per Share Price under the Merger Agreement with respect to its shares case of Common Stock; provided, however that Parent shall not terminate the Equity Commitment Letter or the obligations under Section 2 of this Agreement pursuant to this Section 4.3(a) without first obtaining alternative financing arrangements which provide Parent with funds in an amount equal to the Rollover Amount; provided that such alternative financing arrangements (i) provide Parent with sufficient funds, when added to the proceeds each of the Equity Financingforegoing clauses (A) and (B), Debt Financing and other sources of readily available liquidity of Parentsuch event or circumstance has had, Merger Subor would reasonably be expected to have, the Company and the Company’s Subsidiaries on the Closing Date, to fund the Required Amount and a Material Impact; (ii) do not impose new or additional conditions to the receipt of such financing relative to the Commitment Letters a recall that could impair or delay the Closing. Parent shall promptly provide the Company with a copy of any definitive commitment letter or other documentation providing for such alternative financing arrangement. Notwithstanding anything to the contrary herein, the Stockholder may designate any Regulatory Disclosures that contain sensitive, legally privilegedhas resulted in, or confidential information in respect of would reasonably be expected to result in, a Material Impact; or (iii) the Stockholder Borrower or any of its Affiliates the Subsidiaries enters into one or more settlement agreements with the FDA, CMS, EMA or any other Governmental Authority that results in aggregate liability for all such settlement agreements entered into since the Closing Date in excess of [**] as exclusive to the Stockholder and the Stockholder may provide that any such sensitive, legally privileged, or confidential information may only be provided on a counsel-only basis or directly to of the applicable Governmental Authority requesting such information. The Stockholder shall not make any filings, or notifications in connection with the Merger pursuant to any Antitrust Laws without Parent’s prior written consent (not to be unreasonably withheld, delayed or conditioned). Parent or the Company shall not file any Regulatory Filings that contain information with respect to the Stockholder or its affiliates without first providing the Stockholder and its counsel a reasonable opportunity to review and comment thereon, and will give good faith consideration to all reasonable additions, deletions or changes suggested by the Stockholder and its counsel.
(b) Each Stockholder hereto represent, warrant and covenant to Parent and to the Company that, to such Stockholder’s knowledge: (i) none of the information supplied in writing by such Stockholder specifically for inclusion or incorporation by reference in the Regulatory Disclosures will contain a material misstatement of fact or a material omission of fact necessary to make the information provided not misleading and (ii) it does not permit any entity under the “control” (defined in Section 721 of the Defense Production Act, as amended, including all implanting regulations thereof) of a People’s Republic of China national, or any entity under the control of a Russian Federation national, to obtain through any Affiliate, control with respect to the Company.settlement; or
Appears in 1 contract
Regulatory Matters. If in the reasonable judgment of UPC or a Holder, the Holder's acquisition of Ordinary Shares or other securities of UPC or UGC upon exchange or prepayment of the Note would require a filing under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as xxxxxxx (xxx "XXX Act"), UPC and the Holder each will take such actions as may be required promptly to comply with the requirements of the HSR Act relating to the filing and furnishing of information (an "HSR Report") to the Federal Trade Commission ("FTC") and the Antitrust Division of the Department of Justice ("DOJ"), such actions to include (i) preparing and cooperating with each other in preparing the HSR Report to be filed by or on behalf of each of them so as to avoid errors or inconsistencies between their HSR Reports in the description of the reported transaction and to permit the filing of their HSR Reports in a timely fashion, (ii) complying with any request for additional documents or information made by the FTC or the DOJ or by any court and assisting the other in so complying and (iii) using its reasonable commercial efforts to cause all Persons which are part of the same "person" (as defined for purposes of the HSR Act) as such party to cooperate and assist in such compliance. UPC and the Holder each will pay any costs that it incurs in complying with the obligations set forth in this Section 4.11, except that each will bear one-half of any fee payable in connection with the filing of an HSR Report. It will be a condition precedent to the effectiveness of the exchange or prepayment of the Notes that either (i) no filing under the HSR Act by the Holder would be required in connection with its acquisition of Ordinary Shares or other voting securities upon such exercise, conversion or redemption or (ii) any applicable waiting period under the HSR Act has expired or been terminated. If an acquisition of securities of UPC or of UGC by the Holder upon exchange or prepayment of the Notes requires the filing of an HSR Report, then any time period within which the Holder is required to exchange or to submit for prepayment the Notes will be deemed extended, up to a maximum of 90 days, to permit compliance with the HSR Act, including filing of the requisite HSR Reports and expiration or termination of the applicable waiting period. If the waiting period has not so expired or been terminated prior to the end of such period of extension and of the period within which the Holder is required to exchange the Notes or if the Holder determines to withdraw its HSR Report, then, if either (a) Subject the Holder was the exercising party or (b) UPC was the exercising party and indicates to Section 4.4, the Stockholder shallFTC and DOJ that it no longer intends to complete the proposed transaction, and shall the Holder has advised UPC that it would exercise its exchange rights, if any, under Section 4.1 hereof if UPC rescinded its notice of exchange, UPC will use their reasonable its best efforts to cause their Affiliates toafford to the Holder the benefits intended to be provided by the Notes by (i) granting to the Holder the right to acquire other securities of UPC having the same rights, use their reasonable best effortsprivileges and preferences as the securities originally to be acquired, consistent with except that such other securities will not possess voting rights, or will possess limited voting rights, on the time frames set forth in Section 6.4 same terms as the securities originally to be acquired or (ii) if such replacement right cannot be granted, providing to the Holder such other right as may reasonably represent the value of the Merger Agreementconversion or exercise right required to be foregone. If the Holder, to supply in its sole opinion, considers a request from a governmental agency for additional data and provide information that, to such Stockholder’s knowledge, is complete and accurate in all material respects to any Governmental Authority requesting such information in connection with filings or notifications under, or relating to, applicable laws that are required or advisable as a result of, or pursuant to, the Merger Agreement and the related financings and transactions, including, without limitation, information required or requested to be provided to any antitrust, financial or national security regulatory authorities in connection with any approvals reasonably sought in connection with the consummation of the Merger (collectively, the “Regulatory Filings” and the, “Regulatory Disclosures”, respectively). If any Governmental Authority seeks to prevent the consummation of the transactions contemplated by the Merger Agreement based on the HSR Act or any other Antitrust Laws or based on any other required approvalto be unduly burdensome, consent, notice or filing with a Governmental Authority the Holder may withdraw its HSR Report and such actions by the Governmental Authority relate to the activities or investments of such Stockholder or rescind its Affiliates (solely for purposes of this Section 4, an “Affiliate” exchange of the Stockholder shall include any portfolio company in which such Stockholder or any of its Affiliates has made a debt or an equity investment)Notes, then if Parent in good faith reasonably determines that such actions by the Governmental Authority will not be resolved sufficiently in advance of the Termination Date, Parent may provide written notice of that determination to the Stockholder, and Parent may elect to terminate the obligations under Section 2 and Section 4.6 of this Agreement (in which case its rights will be the Stockholder’s obligations same as existed immediately before such attempted exchange and in addition, the Holder will have the rights described in the preceding sentence. Notwithstanding the foregoing, if it is determined that a filing under the Equity Commitment Letter shall also automatically terminate) and, in that contextHSR Act is required, the Stockholder shall be entitled to receive party exercising the Per Share Price under the Merger Agreement with respect to its shares of Common Stock; provided, however that Parent shall not terminate the Equity Commitment Letter or the obligations under Section 2 of this Agreement exchange right pursuant to this Section 4.3(a) without first obtaining alternative financing arrangements which provide Parent with funds in an amount equal 4.1 or Section 4.2 may withdraw its notice of exchange delivered pursuant to Section 4.1 or 4.2, as the Rollover Amount; provided that such alternative financing arrangements (i) provide Parent with sufficient fundscase may be, when added at any time prior to clearance by the proceeds of the Equity Financing, Debt Financing and other sources of readily available liquidity of Parent, Merger Sub, the Company FTC and the Company’s Subsidiaries on the Closing Date, to fund the Required Amount and (ii) do not impose new or additional conditions to the receipt of such financing relative to the Commitment Letters that could impair or delay the Closing. Parent shall promptly provide the Company with a copy of any definitive commitment letter or other documentation providing for such alternative financing arrangement. Notwithstanding anything to the contrary herein, the Stockholder may designate any Regulatory Disclosures that contain sensitive, legally privileged, or confidential information in respect of the Stockholder or any of its Affiliates as exclusive to the Stockholder and the Stockholder may provide that any such sensitive, legally privileged, or confidential information may only be provided on a counsel-only basis or directly to the applicable Governmental Authority requesting such information. The Stockholder shall not make any filings, or notifications in connection with the Merger pursuant to any Antitrust Laws without Parent’s prior written consent (not to be unreasonably withheld, delayed or conditioned). Parent or the Company shall not file any Regulatory Filings that contain information with respect to the Stockholder or its affiliates without first providing the Stockholder and its counsel a reasonable opportunity to review and comment thereon, and will give good faith consideration to all reasonable additions, deletions or changes suggested by the Stockholder and its counselDOJ.
(b) Each Stockholder hereto represent, warrant and covenant to Parent and to the Company that, to such Stockholder’s knowledge: (i) none of the information supplied in writing by such Stockholder specifically for inclusion or incorporation by reference in the Regulatory Disclosures will contain a material misstatement of fact or a material omission of fact necessary to make the information provided not misleading and (ii) it does not permit any entity under the “control” (defined in Section 721 of the Defense Production Act, as amended, including all implanting regulations thereof) of a People’s Republic of China national, or any entity under the control of a Russian Federation national, to obtain through any Affiliate, control with respect to the Company.
Appears in 1 contract
Samples: Loan Agreement (United Pan Europe Communications Nv)
Regulatory Matters. (a) Subject 6.1 Newco and Xxxxxx Xxxxxxxx agree to Section 4.4work cooperatively and reasonably with each other and their respective advisers towards satisfaction of the Regulatory Conditions as soon as practicable. The Consortium Members, Newco and Xxxxxx Xxxxxxxx agree to co-operate with each other in providing promptly all such information and assistance as may be required in the Stockholder shallpreparation of all submissions to, and shall use their reasonable best efforts to cause their Affiliates tofilings with, use their reasonable best effortsmulti-national, consistent with the time frames set forth national or state competition and regulatory authorities in Section 6.4 respect of the Merger Agreement, Acquisition and/or to supply fulfil promptly any request for information from any such authority and provide information that, generally to such Stockholder’s knowledge, is complete facilitate the satisfaction of the Regulatory Conditions.
6.2 The Consortium Members and accurate in Newco undertake to make all material respects to any Governmental Authority requesting such information filings necessary under the US Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976 in connection with filings the Acquisition on or notifications underbefore 17 November 2004. The Consortium Members and Newco undertake to make all necessary applications to seek early termination of the waiting period in connection with the Acquisition under the US Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976.
6.3 Nothing in this clause 6 will require the Consortium Members or Xxxxxx Xxxxxxxx to agree, or relating to, applicable laws that are required or advisable as a result of, or pursuant to, the Merger Agreement and the related financings and transactions, including, without limitation, information required or requested to be provided to any antitrust, financial or national security regulatory authorities in connection with any approvals reasonably sought in connection with the consummation of the Merger (collectivelyRegulatory Condition, to any disposals, conditions, obligations or undertakings which any multi-national, national or state competition or regulatory authority may prescribe as a basis for giving its consent to, or clearance for, the “Acquisition.
6.4 Each Consortium Member confirms to Xxxxxx Xxxxxxxx that it is not aware of any matter giving rise to a material risk that any Regulatory Filings” and the, “Regulatory Disclosures”, respectively). If any Governmental Authority seeks to prevent the consummation of the transactions contemplated by the Merger Agreement based on the HSR Act or any other Antitrust Laws or based on any other required approval, consent, notice or filing with a Governmental Authority and such actions by the Governmental Authority relate to the activities or investments of such Stockholder or its Affiliates (solely for purposes of this Section 4, an “Affiliate” of the Stockholder shall include any portfolio company in which such Stockholder or any of its Affiliates has made a debt or an equity investment), then if Parent in good faith reasonably determines that such actions by the Governmental Authority Condition will not be resolved sufficiently satisfied.
6.5 Newco undertakes that it shall not, and the Consortium Members undertake that none of Newco’s holding companies shall, acquire or establish any operating business in advance their direct or indirect ownership before the Effective Date.
6.6 Each Consortium Member confirms that it will not acquire or agree to acquire, and will take all steps within its power to prevent companies in which it directly or indirectly holds 50 per cent or more of the Termination Date, Parent may provide written notice of that determination to the Stockholder, and Parent may elect to terminate the obligations under Section 2 and Section 4.6 of this Agreement (in which case the Stockholder’s obligations under the Equity Commitment Letter shall also automatically terminate) and, in that context, the Stockholder shall be entitled to receive the Per Share Price under the Merger Agreement with respect to its shares of Common Stock; provided, however that Parent shall not terminate the Equity Commitment Letter or the obligations under Section 2 of this Agreement pursuant to this Section 4.3(a) without first obtaining alternative financing arrangements which provide Parent with funds in an amount equal to the Rollover Amount; provided that such alternative financing arrangements (i) provide Parent with sufficient funds, when added to the proceeds of the Equity Financing, Debt Financing and other sources of readily available liquidity of Parent, Merger Sub, the Company and the Company’s Subsidiaries on the Closing Date, to fund the Required Amount and (ii) do not impose new votes or additional conditions to the receipt of such financing relative to the Commitment Letters that could impair or delay the Closing. Parent shall promptly provide the Company with a copy of any definitive commitment letter or other documentation providing for such alternative financing arrangement. Notwithstanding anything to the contrary herein, the Stockholder may designate any Regulatory Disclosures that contain sensitive, legally privileged, or confidential information in respect of which it has the Stockholder right to appoint a majority of the board from acquiring or agreeing to acquire rights or other assets or businesses the acquisition of which would diminish to any material extent the likelihood of the Regulatory Conditions being satisfied.
6.7 The Consortium Members agree that they will not adopt any structure (whether through ownership interests or contractually) on or prior to the Effective Date which would result in any of its Affiliates as exclusive the Consortium Members or their affiliates acquiring or intending to acquire control of Xxxxxx Xxxxxxxx within the meaning of the EC Commission notice on the concept of a concentration (OJ C66, 2 March 1998).
6.8 Xxxxxx Xxxxxxxx consents to the Stockholder and disclosure of Evaluation Material (as defined in the Stockholder may provide that any such sensitive, legally privileged, or confidential information may only be provided on a counsel-only basis or directly Confidentiality Agreement) to rating agencies to the applicable Governmental Authority requesting such informationextent necessary for the purposes of Newco or its holding companies seeking to obtain ratings for securities issued to finance or refinance the Acquisition, provided that no disclosure of material non-public information (as that term is commonly used in the US) or of non-public price sensitive information (as that term is commonly used in the UK) to any person who is not a Representative (as defined in the Confidentiality Agreement) is made; for the avoidance of doubt, it is agreed that projections included in materials disclosed to ratings agencies produced by the Consortium Members or derived from Evaluation Material and supporting materials thereto does not fall within this proviso. The Stockholder Consortium Members shall not make any filings, or notifications in connection with the Merger pursuant to any Antitrust Laws without Parent’s prior written consent (not to be unreasonably withheld, delayed or conditioned). Parent or the Company shall not file any Regulatory Filings that contain information with respect to the Stockholder or its affiliates without first providing the Stockholder and its counsel a reasonable opportunity to review and comment thereon, and will give good faith consideration to use all reasonable additions, deletions endeavours consistent with market practice (including without limitation marking documentation proprietary and confidential or changes suggested by similar) to procure that the Stockholder Evaluation Material passed to rating agencies is kept confidential and its counselnot used for any other purpose.
(b) Each Stockholder hereto represent, warrant and covenant to Parent and to the Company that, to such Stockholder’s knowledge: (i) none of the information supplied in writing by such Stockholder specifically for inclusion or incorporation by reference in the Regulatory Disclosures will contain a material misstatement of fact or a material omission of fact necessary to make the information provided not misleading and (ii) it does not permit any entity under the “control” (defined in Section 721 of the Defense Production Act, as amended, including all implanting regulations thereof) of a People’s Republic of China national, or any entity under the control of a Russian Federation national, to obtain through any Affiliate, control with respect to the Company.
Appears in 1 contract
Samples: Second Supplemental Agreement (Warner Chilcott CORP)
Regulatory Matters. (a) Subject to Section 4.4, the Stockholder shall, and shall use their reasonable best efforts to cause their Affiliates to, use their reasonable best efforts, consistent with the time frames set forth in Section 6.4 Each of the Merger AgreementCompany, to supply and provide information that, to such Stockholder’s knowledge, is complete and accurate in all material respects to any Governmental Authority requesting such information in connection with filings or notifications under, or relating to, applicable laws that are required or advisable as a result of, or pursuant to, the Merger Agreement and the related financings and transactions, including, without limitation, information required or requested to be provided to any antitrust, financial or national security regulatory authorities in connection with any approvals reasonably sought in connection with the consummation of the Merger (collectively, the “Regulatory Filings” and the, “Regulatory Disclosures”, respectively). If any Governmental Authority seeks to prevent the consummation of the transactions contemplated by the Merger Agreement based on the HSR Act or any other Antitrust Laws or based on any other required approval, consent, notice or filing with a Governmental Authority and such actions by the Governmental Authority relate to the activities or investments of such Stockholder or its Affiliates (solely for purposes of this Section 4, an “Affiliate” of the Stockholder shall include any portfolio company in which such Stockholder or any of its Affiliates has made a debt or an equity investment), then if Parent in good faith reasonably determines that such actions by the Governmental Authority will not be resolved sufficiently in advance of the Termination Date, Parent may provide written notice of that determination to the Stockholder, and Parent may elect to terminate the obligations under Section 2 and Section 4.6 of this Agreement (in which case the Stockholder’s obligations under the Equity Commitment Letter shall also automatically terminate) and, in that context, the Stockholder shall be entitled to receive the Per Share Price under the Merger Agreement with respect to its shares of Common Stock; provided, however that Parent shall not terminate the Equity Commitment Letter Subsidiaries or the obligations under Section 2 of this Agreement pursuant to this Section 4.3(a) without first obtaining alternative financing arrangements which provide Parent with funds in an amount equal to the Rollover Amount; provided that such alternative financing arrangements Underlying Projects either (i) provide Parent with sufficient funds, when added to is not a “holding company” or a “public-utility company” within the proceeds meaning of the Equity FinancingPublic Utility Holding Company Act of 2005, Debt Financing and other sources of readily available liquidity of Parent, Merger Sub, the Company as amended and the Company’s Subsidiaries on the Closing Date, to fund the Required Amount and implementing regulations of FERC (“PUHCA”) or (ii) do not impose new or additional conditions to the receipt of such financing relative to the Commitment Letters that could impair or delay the Closing. Parent shall promptly provide the Company with a copy of any definitive commitment letter or other documentation providing for such alternative financing arrangement. Notwithstanding anything to the contrary herein, the Stockholder may designate any Regulatory Disclosures that contain sensitive, legally privileged, or confidential information in respect of the Stockholder or any of its Affiliates as exclusive to the Stockholder and the Stockholder may provide that any such sensitive, legally privileged, or confidential information may only be provided on a counsel-only basis or directly to the applicable Governmental Authority requesting such information. The Stockholder shall not make any filings, or notifications in connection with the Merger pursuant to any Antitrust Laws without Parent’s prior written consent (not to be unreasonably withheld, delayed or conditioned). Parent or the Company shall not file any Regulatory Filings that contain information with respect to the Stockholder or its affiliates without first providing the Stockholder and its counsel a reasonable opportunity to review and comment thereon, and will give good faith consideration to all reasonable additions, deletions or changes suggested is exempt from regulation by the Stockholder and its counselFERC under PUHCA.
(b) Each Stockholder hereto representof the Rumford and Ryegate Underlying Projects is a “qualifying facility” (“QF”), warrant within the meaning of PURPA and covenant the rules and regulations promulgated thereunder, and has maintained its status as a QF at all times since its initial certification or self-recertification as a QF, and is not currently subject to Parent any pending inquiry, investigation, or challenge relating to its status as a QF.
(c) Each of the Sweetwater OPs are currently “exempt wholesale generators” (“EWG”) within the meaning of PUHCA and its implementing regulations, and none of them is currently subject to any pending inquiry, investigation, or challenge relating to its status as an EWG. The consummation of the transactions contemplated hereby will not adversely affect the “exempt wholesale generator” status of any of the Sweetwater OPs.
(d) To the Knowledge of the Company, with respect to the Company thatManaged Projects located in the United Kingdom, to such Stockholder’s knowledge: (i) none there are no events or circumstances reasonably likely to result in any of such Managed Projects, upon their completion, not qualifying for receiving or not obtaining “Levy Exemption Certificates” under the information supplied in writing Finance Xxx 0000 and the Climate Change Levy (General) Regulations 2001 as amended by such Stockholder specifically for inclusion or incorporation by reference in the Regulatory Disclosures will contain a material misstatement of fact or a material omission of fact necessary to make Climate Change Levy (General) Regulations 2003 and Climate Change Levy (General) Regulations 2007 and the information provided not misleading related guidance, circulars and similar pronouncements associated therewith and (ii) it does there are no events or circumstances reasonably likely to result in any of such Managed Projects, upon their completion, (A) not permit any entity being eligible or accredited for the “Renewables Obligation” or not being issued “Renewable Obligation Certificates,” in each case as contemplated by The Renewables Obligation Order 2006, as amended by The Renewables Obligation Order 2006 (Amendment) Order 2007 and the related guidance, circulars and similar pronouncements associated therewith, or (B) not being eligible or accredited for the “Scottish Renewables Obligation” or not being issued “Scottish Renewable Obligation Certificates,” in each case as contemplated by The Renewables Obligation (Scotland) Order 2007 and the related guidance, circulars and similar pronouncements associated therewith, as applicable.
(e) None of the Sweetwater OPs is a “public utility” under the “control” (defined in Section 721 FPA, and none of the Defense Production ActRumford and Ryegate Underlying Projects makes any wholesale electric sales subject to regulation under Sections 205 and 206 of the FPA or has on file with FERC any tariff or rate schedule for making such wholesale electric sales.
(f) Each of the Sweetwater OPs and, to the Knowledge of the Company, the Rumford and Ryegate Underlying Projects has made all material filings with each applicable Governmental Body and obtained all material Permits and Orders required to be made or obtained by each of the Company and the Project Company, as amended, including all implanting regulations thereof) of a People’s Republic of China national, or any entity under the control of a Russian Federation nationalapplicable, to obtain through construct, own and operate its respective electric generating facilities and to transmit and sell electric power and renewable energy credits therefrom, as applicable, in compliance with applicable Law, and each such Governmental Approval is validly issued, final and in full force and effect and is not subject to any Affiliatecurrent legal proceeding or to any unsatisfied condition, control and all applicable appeal periods with respect thereto have expired. Each of the Sweetwater OPs and, to the Knowledge of the Company, the Rumford and Ryegate Underlying Projects are in compliance in all material respects with all applicable Governmental Approvals and all applicable Laws.
(g) Each of the Sweetwater OPs and, to the Knowledge of the Company, the Rumford and Ryegate Underlying Projects has made all required material filings and notifications with and is in compliance in all material respects with all requirements of the North American Electric Reliability Corporation.
(h) Each of the Sweetwater OPs has made all material filings and notifications with, entered into all material agreements required by and otherwise is in compliance in all material respects with all requirements of ERCOT for such company to sell electric energy and renewable energy credits in the ERCOT region.
Appears in 1 contract
Regulatory Matters. 6.1 The Referrer must comply with all applicable legal and regulatory requirements in each jurisdiction where it operates and must avoid any actions that may breach the Law.
6.2 The Referrer may only contact Clients or prospective Clients or provide services on the Broker's behalf as stated in this Agreement's Appendix.
6.3 The Referrer must not hold any Client assets or funds, or any funds to be treated as Client's funds by the broker under the regulatory framework.
6.4 The Referrer must inform the Company of any changes to its details.
6.5 Upon reasonable written notice, the Referrer must cooperate with the Regulator in any information gathering exercise, including providing access to books, records, documents, information, and business premises.
6.6 The Referrer must provide the Company and its auditors with access to all relevant books, accounts, records, systems, electronic files, and information within 14 days of notice to ensure compliance with the Law, the AML Law, Applicable Regulations, and this Agreement.
6.7 The Referrer affirms that:
(a) Subject to Section 4.4It possesses all necessary authorizations, the Stockholder shalllicenses, and shall use their reasonable best efforts consents to cause their Affiliates to, use their reasonable best efforts, consistent with the time frames set forth in Section 6.4 of the Merger Agreement, to supply enter into and provide information that, to such Stockholder’s knowledge, is complete and accurate in all material respects to any Governmental Authority requesting such information in connection with filings or notifications under, or relating to, applicable laws that are required or advisable as a result of, or pursuant to, the Merger perform under this Agreement and the related financings and transactions, including, without limitation, information required or requested promises to be provided to any antitrust, financial or national security regulatory authorities in connection with any approvals reasonably sought in connection with the consummation of the Merger (collectively, the “Regulatory Filings” and the, “Regulatory Disclosures”, respectively). If any Governmental Authority seeks to prevent the consummation of the transactions contemplated by the Merger Agreement based on the HSR Act or any other Antitrust Laws or based on any other required approval, consent, notice or filing with a Governmental Authority and such actions by the Governmental Authority relate to the activities or investments of such Stockholder or maintain them during its Affiliates (solely for purposes of this Section 4, an “Affiliate” of the Stockholder shall include any portfolio company in which such Stockholder or any of its Affiliates has made a debt or an equity investment), then if Parent in good faith reasonably determines that such actions by the Governmental Authority will not be resolved sufficiently in advance of the Termination Date, Parent may provide written notice of that determination to the Stockholder, and Parent may elect to terminate the obligations under Section 2 and Section 4.6 of this Agreement (in which case the Stockholder’s obligations under the Equity Commitment Letter shall also automatically terminate) and, in that context, the Stockholder shall be entitled to receive the Per Share Price under the Merger Agreement with respect to its shares of Common Stock; provided, however that Parent shall not terminate the Equity Commitment Letter or the obligations under Section 2 of this Agreement pursuant to this Section 4.3(a) without first obtaining alternative financing arrangements which provide Parent with funds in an amount equal to the Rollover Amount; provided that such alternative financing arrangements (i) provide Parent with sufficient funds, when added to the proceeds of the Equity Financing, Debt Financing and other sources of readily available liquidity of Parent, Merger Sub, the Company and the Company’s Subsidiaries on the Closing Date, to fund the Required Amount and (ii) do not impose new or additional conditions to the receipt of such financing relative to the Commitment Letters that could impair or delay the Closing. Parent shall promptly provide the Company with a copy of any definitive commitment letter or other documentation providing for such alternative financing arrangement. Notwithstanding anything to the contrary herein, the Stockholder may designate any Regulatory Disclosures that contain sensitive, legally privileged, or confidential information in respect of the Stockholder or any of its Affiliates as exclusive to the Stockholder and the Stockholder may provide that any such sensitive, legally privileged, or confidential information may only be provided on a counsel-only basis or directly to the applicable Governmental Authority requesting such information. The Stockholder shall not make any filings, or notifications in connection with the Merger pursuant to any Antitrust Laws without Parent’s prior written consent (not to be unreasonably withheld, delayed or conditioned). Parent or the Company shall not file any Regulatory Filings that contain information with respect to the Stockholder or its affiliates without first providing the Stockholder and its counsel a reasonable opportunity to review and comment thereon, and will give good faith consideration to all reasonable additions, deletions or changes suggested by the Stockholder and its counsel.term;
(b) Each Stockholder hereto representIt will notify the Company immediately of any actual or potential contravention of any legal or regulatory requirement;
(c) It will notify the Company immediately of any judgment, warrant and covenant to Parent and order, disciplinary sanction, action, or claim against it that could have a material adverse effect on its reputation, financial standing, or the Broker;
(d) It has disclosed all material information to the Company thatbefore the execution of this Agreement;
(e) All information provided to the Company is accurate, to such Stockholder’s knowledge: and it will notify the Company of any material changes;
(f) It is solvent;
(g) It will ensure that all individuals employed by it comply with all relevant requirements under this Agreement;
(h) It understands and will comply with all Applicable Regulations; and
(i) none of the information supplied It, its shareholders, directors, and officers have not been involved in writing by such Stockholder specifically for inclusion or incorporation by reference in the Regulatory Disclosures will contain a material misstatement of fact or a material omission of fact necessary to make the information provided not misleading and (ii) it does not permit any entity under the “control” (defined in Section 721 of the Defense Production Actinvestigation, as amendedindictment, including all implanting regulations thereof) of a People’s Republic of China nationalconviction, or civil enforcement action related to money laundering or terrorist financing.
6.8 The Referrer will indemnify the Company and/or the Broker against any entity under the control loss or liability due to any contravention of a Russian Federation nationalany legal or regulatory requirement, to obtain through any Affiliate, control with respect to the Companyeven after this Agreement's termination.
Appears in 1 contract
Samples: Partner Agreement
Regulatory Matters. (a) Subject Except as provided otherwise in this Agreement, from and after the transfer by the Seller to Section 4.4the Buyer of each Governmental Approval pursuant to the terms hereof, the Stockholder shallBuyer, at its cost, shall be solely responsible and shall use their reasonable best efforts to cause their Affiliates toliable for (i) taking all actions, use their reasonable best efforts, consistent paying all fees and conducting all communication with the time frames set forth appropriate Governmental Entity required by Law in Section 6.4 respect of the Merger Agreement, to supply and provide information that, to such Stockholder’s knowledge, is complete and accurate in all material respects to any Governmental Authority requesting such information in connection with filings or notifications under, or relating to, applicable laws that are required or advisable as a result of, or pursuant to, the Merger Agreement and the related financings and transactionsApproval, including, without limitation, information required or requested to be provided to any antitrustsecuring, financial or national security regulatory authorities in connection with any approvals reasonably sought in connection maintaining, and/or amending the National Drug Code for each Product of the Business and preparing and filing all reports (including adverse drug experience reports) with the consummation of the Merger (collectively, the “Regulatory Filings” and the, “Regulatory Disclosures”, respectively). If any appropriate Governmental Authority seeks to prevent the consummation of the transactions contemplated by the Merger Agreement based on the HSR Act or any other Antitrust Laws or based on any other required approval, consent, notice or filing with a Governmental Authority and such actions by the Governmental Authority relate to the activities or investments of such Stockholder or its Affiliates (solely for purposes of this Section 4, an “Affiliate” of the Stockholder shall include any portfolio company in which such Stockholder or any of its Affiliates has made a debt or an equity investment), then if Parent in good faith reasonably determines that such actions by the Governmental Authority will not be resolved sufficiently in advance of the Termination Date, Parent may provide written notice of that determination to the Stockholder, and Parent may elect to terminate the obligations under Section 2 and Section 4.6 of this Agreement (in which case the Stockholder’s obligations under the Equity Commitment Letter shall also automatically terminate) and, in that context, the Stockholder shall be entitled to receive the Per Share Price under the Merger Agreement with respect to its shares of Common StockEntity; provided, however that Parent shall not terminate the Equity Commitment Letter or the obligations under Section 2 of this Agreement pursuant to this Section 4.3(a) without first obtaining alternative financing arrangements which provide Parent with funds in an amount equal to the Rollover Amount; provided that such alternative financing arrangements (i) provide Parent with sufficient funds, when added to the proceeds of the Equity Financing, Debt Financing and other sources of readily available liquidity of Parent, Merger Sub, the Company and the Company’s Subsidiaries on the Closing Date, to fund the Required Amount and (ii) do not impose new or additional conditions to the receipt of such financing relative to the Commitment Letters that could impair or delay the Closing. Parent shall promptly provide the Company taking all actions and conducting all communication with a copy of any definitive commitment letter or other documentation providing for such alternative financing arrangement. Notwithstanding anything to the contrary herein, the Stockholder may designate any Regulatory Disclosures that contain sensitive, legally privileged, or confidential information third parties in respect of the Stockholder or any of its Affiliates as exclusive to the Stockholder and the Stockholder may provide that any such sensitive, legally privileged, or confidential information may only be provided on a counsel-only basis or directly to the applicable Governmental Authority requesting such information. The Stockholder shall not make any filings, or notifications in connection with the Merger Products sold pursuant to any Antitrust Laws such Governmental Approval (whether sold before or after transfer of such Governmental Approval), including, without Parent’s prior written consent (not to be unreasonably withheldlimitation, delayed or conditioned). Parent or the Company shall not file any Regulatory Filings that contain information with respect to the Stockholder or its affiliates without first providing the Stockholder and its counsel a reasonable opportunity to review and comment thereon, and will give good faith consideration responding to all reasonable additionscomplaints in respect thereof, deletions including complaints related to tampering or changes suggested by the Stockholder contamination; and its counsel(iii) investigating all complaints and adverse drug experiences in respect of Products sold pursuant to such Governmental Approval (whether sold before or after transfer of such Governmental Approval).
(b) Each Stockholder hereto represent, warrant and covenant to Parent and to the Company that, to such Stockholder’s knowledge: Except as otherwise provided in this Agreement (i) none from and after the transfer by the Seller to the Buyer of each Governmental Approval pursuant to the information supplied in writing by such Stockholder specifically for inclusion or incorporation by reference in terms hereof, the Regulatory Disclosures will contain Seller shall promptly notify the Buyer if the Seller receives a material misstatement of fact complaint or a material omission report of fact necessary an adverse drug experience in respect of a Product sold pursuant to make the information provided not misleading such Governmental Approval, and (ii) it does not permit any entity under for six (6) months after the “control” (defined in Section 721 transfer by the Seller to the Buyer of the Defense Production ActGovernmental Approvals pursuant to the terms thereof, as amendedthe Seller shall cooperate with the Buyer's reasonable requests and use commercially reasonable efforts to assist the Buyer in connection with the investigation of and response to any complaint or adverse drug experience related to a Product manufactured and released by or on behalf of the Seller.
(c) From and after the transfer by the Seller to the Buyer of each Governmental Approval pursuant to the terms hereof, the Buyer shall control and be responsible for conducting all voluntary and involuntary recalls, Product withdrawals and field alerts of units of Products sold pursuant to such Governmental Approval (whether sold before or after transfer of such Governmental Approval), including all implanting regulations thereof) recalls, Product withdrawals and field alerts required by any Governmental Entity of units of Products manufactured or released by or on behalf of the Seller. The Seller promptly shall notify the Buyer in the event that a People’s Republic recall, Product withdrawal or field alert of China national, any units of Product manufactured and released by or on behalf of the Seller is requested by any entity under Governmental Entity. The Buyer shall consult with the control of a Russian Federation national, to obtain through any Affiliate, control Seller with respect to the Companynecessity and procedures for any recall, Product withdrawal or field alert for which the Buyer is entitled to indemnification under Section 6.1(c).
Appears in 1 contract
Regulatory Matters. (a) Subject Each Partner recognizes and acknowledges that the business conducted by the Partnership and its Subsidiaries is subject to Section 4.4complex regulatory provisions relating to fisheries management, vessel documentation and ownership and other maritime matters. The Partnership is required to satisfy certain foreign ownership requirements that require the Stockholder shallprovision of detailed information and may require alterations in the Partnership's capital structure and/or ownership. Each Partner agrees, at the request of the General Partner, promptly to furnish to the General Partner such information as to such Partner's citizenship, domicile or residence, management, ownership, and shall use their reasonable best efforts to cause their Affiliates to, use their reasonable best efforts, consistent with the time frames set forth in Section 6.4 of the Merger Agreementcapital structure (and, to supply and provide information thatthe extent it is able to obtain it, to such Stockholder’s knowledge, is complete and accurate in all material respects to any Governmental Authority requesting such information as to the citizenship, domicile or residence, management, ownership and capital structure of each Person that holds, directly or indirectly, an equity interest in connection with filings or notifications underother right to Control such Partner) as the General Partner shall request in order to comply, or relating toto evaluate the Partnership's compliance, applicable laws that are required or advisable as a result of, or pursuant to, the Merger Agreement and the related financings and transactions, including, without limitation, information required or requested to be provided to any antitrust, financial or national security with such regulatory authorities in connection with any approvals reasonably sought in connection with the consummation of the Merger (collectively, the “Regulatory Filings” and the, “Regulatory Disclosures”, respectively). If any Governmental Authority seeks to prevent the consummation of the transactions contemplated by the Merger Agreement based on the HSR Act or any other Antitrust Laws or based on any other required approval, consent, notice or filing with a Governmental Authority and such actions by the Governmental Authority relate to the activities or investments of such Stockholder or its Affiliates (solely for purposes of this Section 4, an “Affiliate” of the Stockholder shall include any portfolio company in which such Stockholder or any of its Affiliates has made a debt or an equity investment), then if Parent in good faith reasonably determines that such actions by the Governmental Authority will not be resolved sufficiently in advance of the Termination Date, Parent may provide written notice of that determination to the Stockholder, and Parent may elect to terminate the obligations under Section 2 and Section 4.6 of this Agreement (in which case the Stockholder’s obligations under the Equity Commitment Letter shall also automatically terminate) and, in that context, the Stockholder shall be entitled to receive the Per Share Price under the Merger Agreement with respect to its shares of Common Stock; provided, however that Parent shall not terminate the Equity Commitment Letter or the obligations under Section 2 of this Agreement pursuant to this Section 4.3(a) without first obtaining alternative financing arrangements which provide Parent with funds in an amount equal to the Rollover Amount; provided that such alternative financing arrangements (i) provide Parent with sufficient funds, when added to the proceeds of the Equity Financing, Debt Financing and other sources of readily available liquidity of Parent, Merger Sub, the Company and the Company’s Subsidiaries on the Closing Date, to fund the Required Amount and (ii) do not impose new or additional conditions to the receipt of such financing relative to the Commitment Letters that could impair or delay the Closing. Parent shall promptly provide the Company with a copy of any definitive commitment letter or other documentation providing for such alternative financing arrangement. Notwithstanding anything to the contrary herein, the Stockholder may designate any Regulatory Disclosures that contain sensitive, legally privileged, or confidential information in respect of the Stockholder or any of its Affiliates as exclusive to the Stockholder and the Stockholder may provide that any such sensitive, legally privileged, or confidential information may only be provided on a counsel-only basis or directly to the applicable Governmental Authority requesting such information. The Stockholder shall not make any filings, or notifications in connection with the Merger pursuant to any Antitrust Laws without Parent’s prior written consent (not to be unreasonably withheld, delayed or conditioned). Parent or the Company shall not file any Regulatory Filings that contain information with respect to the Stockholder or its affiliates without first providing the Stockholder and its counsel a reasonable opportunity to review and comment thereon, and will give good faith consideration to all reasonable additions, deletions or changes suggested by the Stockholder and its counselrequirements.
(b) Each Stockholder hereto representPartner agrees that if at any time it or its Affiliates holds an interest in any Person, warrant vessel, processing facility or other assets as a result of which any limitation or restriction is imposed (or but for this provision would be imposed) on the quantity of any fish or shellfish which may be harvested or processed by the Partnership or its subsidiaries and covenant to Parent their successors and to the Company that, to such Stockholder’s knowledge: (i) none assigns under applicable provisions of the information supplied in writing American Fisheries Act and any regulations thereunder or relevant thereto, there shall automatically be redeemed (retroactively as of the date such limitation or restriction would have been applicable) and exchanged for Redemption Securities a number of Units held by such Stockholder specifically for inclusion Partner sufficient to cause such limitation or incorporation by reference in the Regulatory Disclosures will contain a material misstatement of fact restriction not to be applicable or a material omission of fact necessary to make the information provided not misleading and (ii) it does not permit any entity under the “control” (defined in Section 721 further applicable. The principal amount of the Defense Production ActRedemption Securities issued in exchange for Regular Units shall be their Fair Market Value. The principal amount of the Redemption Securities issued in exchange for Junior Preferred Units shall be the face amount of such Junior Preferred Units. No affected Partner shall have any right to oppose, as amendedretard, including all implanting regulations thereof) of a People’s Republic of China nationalobject to or otherwise inhibit such redemption, or any entity under the control of a Russian Federation national, to obtain through any Affiliate, control with respect to the Companywhich shall be automatic and irrevocable.
Appears in 1 contract
Samples: Limited Partnership Agreement (American Seafoods Corp)
Regulatory Matters. (a) Subject For the purposes of holding the Stockholders Meeting (as such term is defined in Section 5.7 hereof), and qualifying under applicable federal and state securities laws the HUBCO Stock to Section 4.4be issued to MSB stockholders in connection with the Merger, the Stockholder shallparties hereto shall cooperate in the preparation and filing by HUBCO or MSB (as applicable) with the SEC of a Registration Statement and a combined proxy statement and prospectus satisfying all applicable requirements of applicable state and federal laws, including the 1933 Act, the 1934 Act and applicable state securities laws and the rules and regulations thereunder (such proxy statement and prospectus in the form mailed by MSB and HUBCO to the MSB shareholders together with any and all amendments or supplements thereto, being herein referred to as the "PROXY STATEMENT-PROSPECTUS" and the various documents to be filed by HUBCO under the 1933 Act with the SEC to register the HUBCO Stock for sale, including the Proxy Statement-Prospectus, are referred to herein as the "REGISTRATION STATEMENT").
(b) HUBCO shall furnish MSB with such information concerning HUBCO and its Subsidiaries (including, without limitation, information regarding other transactions which HUBCO is required to disclose) as is necessary in order to cause the Proxy Statement-Prospectus, insofar as it relates to such corporations, to comply with Section 5.6(a) hereof. HUBCO agrees promptly to advise MSB if at any time prior to the Stockholders Meeting, any information provided by HUBCO in the Proxy Statement-Prospectus becomes incorrect or incomplete in any material respect and to provide MSB with the information needed to correct such inaccuracy or omission. HUBCO shall furnish MSB with such supplemental information as may be necessary in order to cause the Proxy Statement-Prospectus, insofar as it relates to HUBCO and its Subsidiaries, to comply with Section 5.6(a) after the mailing thereof to MSB shareholders.
(c) MSB shall furnish HUBCO with such information concerning MSB as is necessary in order to cause the Proxy Statement-Prospectus, insofar as it relates to MSB, to comply with Section 5.6(a) hereof. MSB agrees promptly to advise HUBCO if at any time prior to the Stockholders Meeting, any information provided by MSB in the Proxy Statement-Prospectus becomes incorrect or incomplete in any material respect and to provide HUBCO with the information needed to correct such inaccuracy or omission. MSB shall furnish HUBCO with such supplemental information as may be necessary in order to cause the Proxy Statement-Prospectus, insofar as it relates to MSB, to comply with Section 5.6(a) after the mailing thereof to MSB shareholders.
(d) HUBCO shall as promptly as practicable make such filings as are necessary in connection with the offering of the HUBCO Stock with applicable state securities agencies and shall use all reasonable efforts to qualify the offering of such stock under applicable state securities laws at the earliest practicable date. MSB shall promptly furnish HUBCO with such information regarding MSB shareholders as HUBCO requires to enable it to determine what filings are required hereunder. MSB authorizes HUBCO to utilize in such filings the information concerning MSB provided to HUBCO in connection with, or contained in, the Proxy Statement-Prospectus. HUBCO shall furnish MSB's counsel with copies of all such filings and keep MSB advised of the status thereof. HUBCO shall file as promptly as practicable, and shall use reasonable business efforts to file within 45 days after the date hereof, the Registration Statement containing the Proxy Statement-Prospectus with the SEC, and each of HUBCO and MSB shall promptly notify the other of all communications, oral or written, with the SEC concerning the Registration Statement and the Proxy Statement-Prospectus.
(e) HUBCO shall cause the HUBCO Common Stock issuable pursuant to the Merger to be listed on the NASDAQ at the Effective Time. HUBCO shall cause the HUBCO Common Stock which shall be issuable pursuant to conversion of New HUBCO Preferred Stock to be accepted for listing on the NASDAQ when issued.
(f) The parties hereto will cooperate with each other and use their reasonable best efforts to cause their Affiliates to, use their reasonable best efforts, consistent with the time frames set forth in Section 6.4 of the Merger Agreementprepare all necessary documentation and applications, to supply effect all necessary filings and provide information thatto obtain all necessary permits, consents, approvals and authorizations of all third parties and governmental bodies necessary to such Stockholder’s knowledge, is complete and accurate in all material respects to any Governmental Authority requesting such information in connection with filings or notifications under, or relating to, applicable laws that are required or advisable consummate the transactions contemplated by this Agreement as a result of, or pursuant to, the Merger Agreement and the related financings and transactionssoon as possible, including, without limitation, those required by the FDIC, the FRB, the OTS, the OCC and the New York Superintendent. Without limiting the foregoing, the parties shall use reasonable business efforts to file for approval or waiver by the appropriate bank regulatory agencies within 45 days after the date hereof. The parties shall each have the right to review in advance (and shall do so promptly) all filings with, including all information required relating to the other, as the case may be, and any of their respective subsidiaries, which appears in any filing made with, or requested to be provided to written material submitted to, any antitrust, financial third party or national security regulatory authorities in connection with any approvals reasonably sought governmental body (including the SEC) in connection with the consummation transactions contemplated by this Agreement.
(g) Each of the Merger (collectivelyparties will promptly furnish each other with copies of written communications received by them or any of their respective subsidiaries from, or delivered by any of the “Regulatory Filings” and theforegoing to, “Regulatory Disclosures”, respectively). If any Governmental Authority seeks to prevent the consummation Entity in respect of the transactions contemplated by hereby.
(h) MSB acknowledges that HUBCO is in or may be in the Merger Agreement based on the HSR Act or any process of acquiring other Antitrust Laws or based on any other required approval, consent, notice or filing with a Governmental Authority banks and such actions by the Governmental Authority relate to the activities or investments of such Stockholder or its Affiliates (solely for purposes of this Section 4, an “Affiliate” of the Stockholder shall include any portfolio company in which such Stockholder or any of its Affiliates has made a debt or an equity investment), then if Parent in good faith reasonably determines financial institutions and that such actions by the Governmental Authority will not be resolved sufficiently in advance of the Termination Date, Parent may provide written notice of that determination to the Stockholder, and Parent may elect to terminate the obligations under Section 2 and Section 4.6 of this Agreement (in which case the Stockholder’s obligations under the Equity Commitment Letter shall also automatically terminate) and, in that context, the Stockholder shall be entitled to receive the Per Share Price under the Merger Agreement with respect to its shares of Common Stock; provided, however that Parent shall not terminate the Equity Commitment Letter or the obligations under Section 2 of this Agreement pursuant to this Section 4.3(a) without first obtaining alternative financing arrangements which provide Parent with funds in an amount equal to the Rollover Amount; provided that such alternative financing arrangements (i) provide Parent with sufficient funds, when added to the proceeds of the Equity Financing, Debt Financing and other sources of readily available liquidity of Parent, Merger Sub, the Company and the Company’s Subsidiaries on the Closing Date, to fund the Required Amount and (ii) do not impose new or additional conditions to the receipt of such financing relative to the Commitment Letters that could impair or delay the Closing. Parent shall promptly provide the Company with a copy of any definitive commitment letter or other documentation providing for such alternative financing arrangement. Notwithstanding anything to the contrary herein, the Stockholder may designate any Regulatory Disclosures that contain sensitive, legally privileged, or confidential information in respect of the Stockholder or any of its Affiliates as exclusive to the Stockholder and the Stockholder may provide that any such sensitive, legally privileged, or confidential information may only be provided on a counsel-only basis or directly to the applicable Governmental Authority requesting such information. The Stockholder shall not make any filings, or notifications in connection with the Merger pursuant to any Antitrust Laws without Parent’s prior written consent (not such acquisitions, information concerning MSB may be required to be unreasonably withheldincluded in the registration statements, delayed if any, for the sale of securities of HUBCO or conditionedin SEC reports in connection with such acquisitions. MSB agrees to provide HUBCO with any information, certificates, documents or other materials about MSB as are reasonably necessary to be included in such other SEC reports or registration statements, including registration statements which may be filed by HUBCO prior to the Effective Time. MSB shall use its reasonable efforts to cause its attorneys and accountants to provide HUBCO and any underwriters for HUBCO with any consents, comfort letters, opinion letters, reports or information which are necessary to complete the registration statements and applications for any such acquisition or issuance of securities. HUBCO shall reimburse MSB for reasonable expenses thus incurred by MSB should this transaction be terminated for any reason other than as described in Section 7.1(f). Parent or the Company HUBCO shall not file with the SEC any Regulatory Filings that contain registration statement or amendment thereto or supplement thereof containing information with respect to the Stockholder or its affiliates without first providing the Stockholder and its counsel a reasonable opportunity to review and comment thereon, and will give good faith consideration to all reasonable additions, deletions or changes suggested by the Stockholder and its counsel.
(b) Each Stockholder hereto represent, warrant and covenant to Parent and to the Company that, regarding MSB unless MSB shall have consented to such Stockholder’s knowledge: (i) none of the information supplied in writing by such Stockholder specifically for inclusion filing, which consent shall not be unreasonably delayed or incorporation by reference in the Regulatory Disclosures will contain a material misstatement of fact or a material omission of fact necessary to make the information provided not misleading and (ii) it does not permit any entity under the “control” (defined in Section 721 of the Defense Production Act, as amended, including all implanting regulations thereof) of a People’s Republic of China national, or any entity under the control of a Russian Federation national, to obtain through any Affiliate, control with respect to the Companywithheld.
Appears in 1 contract
Regulatory Matters. 5.3.1 Prior to the Transfer Date, Cidara shall be the sole holder of Product Filings for the Current Product for the Target Indication or the Additional Indication in the Territory, and Cidara shall, at its sole cost and expense, be responsible for preparing, obtaining, maintaining, and renewing all applicable Product Filings and Marketing Approvals in its own name for the Current Product for the Target Indication or the Additional Indication in the Territory that are necessary for the Commercialization of the Current Product for the Lead Indications in the Territory, including, subject to Melinta’s compliance with its reporting obligations to Cidara under the PV Agreement, complying with all requirements, pre-approval, post-marketing or otherwise, imposed on the holder of such Product Filings to maintain the Marketing Approvals for the Current Product for the Lead Indications in good standing. By way of example, such requirements shall include, but not be limited to, payment of user and filing fees, submission of annual reports, submission of safety reports, and satisfaction of post-marketing requirements and post-marketing commitments. Following the Transfer Date, Melinta shall be the sole holder of the applicable Product Filings in the Territory, and Melinta shall be responsible for preparing, obtaining, maintaining, and renewing all NDAs and Marketing Approvals in its name for the Product in the Territory, including complying with all requirements, pre-approval, post-marketing or otherwise, imposed on the holder to maintain the Marketing Approvals in good standing, at its sole cost and expense (a) Subject but subject to offsetting the Specified Melinta Expenses against royalties pursuant to Section 4.4, the Stockholder shall7.2.1).
5.3.2 Neither party shall take, and shall use their reasonable best efforts to cause their Affiliates to, use their reasonable best efforts, consistent with the time frames set forth in Section 6.4 of the Merger Agreement, to supply and provide information that, to such Stockholder’s knowledge, is complete and accurate in all material respects to any Governmental Authority requesting such information in connection with filings or notifications under, or relating to, applicable laws that are required or advisable as a result of, or pursuant to, the Merger Agreement and the related financings and transactions, including, without limitation, information required or requested to be provided to any antitrust, financial or national security regulatory authorities in connection with any approvals reasonably sought in connection with the consummation of the Merger (collectively, the “Regulatory Filings” and the, “Regulatory Disclosures”, respectively). If any Governmental Authority seeks to prevent the consummation of the transactions contemplated by the Merger Agreement based on the HSR Act or any other Antitrust Laws or based on any other required approval, consent, notice or filing with a Governmental Authority and such actions by the Governmental Authority relate to the activities or investments of such Stockholder or its Affiliates (solely for purposes and Sublicensees not to take, any steps that would be expected to undermine the validity or status of this Section 4, an “Affiliate” of the Stockholder shall include any portfolio company in which such Stockholder or any of its Affiliates has made a debt or an equity investment), then if Parent in good faith reasonably determines that such actions by the Governmental Authority will not be resolved sufficiently in advance of the Termination Date, Parent may provide written notice of that determination to the Stockholder, and Parent may elect to terminate the obligations under Section 2 and Section 4.6 of this Agreement (in which case the Stockholder’s obligations under the Equity Commitment Letter shall also automatically terminate) and, in that context, the Stockholder shall be entitled to receive the Per Share Price under the Merger Agreement with respect to its shares of Common Stock; provided, however that Parent shall not terminate the Equity Commitment Letter or the obligations under Section 2 of this Agreement pursuant to this Section 4.3(a) without first obtaining alternative financing arrangements which provide Parent with funds in an amount equal to the Rollover Amount; provided that such alternative financing arrangements (i) provide Parent with sufficient funds, when added to the proceeds of the Equity Financing, Debt Financing and other sources of readily available liquidity of Parent, Merger Sub, the Company and the Company’s Subsidiaries on the Closing Date, to fund the Required Amount and (ii) do not impose new or additional conditions to the receipt of such financing relative to the Commitment Letters that could impair or delay the Closing. Parent shall promptly provide the Company with a copy compliance of any definitive commitment letter or Marketing Approvals for the Product in the Territory. Without limiting the foregoing, neither party shall withdraw any Marketing Approvals in the Territory for the Product without the other documentation providing for such alternative financing arrangement. Notwithstanding anything to the contrary herein, the Stockholder may designate any Regulatory Disclosures that contain sensitive, legally privileged, or confidential information in respect of the Stockholder or any of its Affiliates as exclusive to the Stockholder and the Stockholder may provide that any such sensitive, legally privileged, or confidential information may only be provided on a counsel-only basis or directly to the applicable Governmental Authority requesting such information. The Stockholder shall not make any filings, or notifications in connection with the Merger pursuant to any Antitrust Laws without Parentparty’s prior written consent (consent, not to be unreasonably withheld, delayed conditioned or conditioned). Parent delayed.
5.3.3 Each party, as the holder of any applicable Product Filings or Marketing Approval for the Company Product in the Territory during the applicable period shall not file send to the other party a copy of any proposed Product Filing to any Regulatory Authority in the Territory no later than [*] prior to submission. Each party shall promptly provide the other party true and complete copies of all applicable Product Filings for the Product in the Territory, and Cidara shall have the right to disclose such Product Filings to Mundipharma pursuant to the Mundipharma Agreement or a Cidara Ex-Territory Licensee pursuant to any Qualified Cidara Out-License. [*].
5.3.4 Each party shall notify the other party of any material communication received from a Regulatory Authority in the Territory no later than [*] from the date of its receipt thereof. Cidara shall notify Melinta of any material communications from any Regulatory Authority outside the Territory for which it becomes aware, including any material communication it receives from Mundipharma from any Regulatory Authority in the Major Markets in the Mundipharma Territory (each as defined in the Mundipharma Agreement) pursuant to the Mundipharma Agreement, solely to the extent such communications is reasonably expected to adversely impact the Product’s labeling or regulatory requirements in the Territory.
5.3.5 Prior to the Transfer Date, Cidara shall (a) provide Melinta with reasonable advance notice of material meetings (including any Advisory Committee Meetings), conferences and discussions (whether in person or by telephonic or video conference) scheduled with FDA concerning the Product; (b) to the extent not prohibited by Applicable Law, grant Melinta and its representatives the right to attend and participate in any such meetings, conferences or discussions (at Xxxxxxx’s cost and expense) and Cidara shall facilitate such participation; and (c) consider in good faith in the preparation of such meetings, conferences or discussion, any reasonable input timely provided by or on behalf of Xxxxxxx. If Melinta elects not to participate in such meetings, conferences or discussions, Cidara shall provide Melinta with written or oral summaries of such meetings, conferences or discussions promptly thereafter, and in all events, no later than [*] after the conclusion thereof.
5.3.6 Each party shall inform the other party of any potential material changes that contain affect the Marketing Approval of the Product in the Territory (“Material Variations”) as soon as such party identifies such Material Variation. Material Variations includes but are not limited to the following: changes to the product labeling related to efficacy or safety, changing or adding a manufacturing site, adding a new manufacturing step, changing the formulation of the Product, changing the specification of the Product, changing the primary packaging, changing storage conditions, changing the API manufacturer, or changing of the manufacturing process.
5.3.7 Each party shall promptly disclose to the other party any information that it receives pertaining to notices from a Regulatory Authority in the Territory of non-compliance with Applicable Law in connection with the Product. Further, each party shall promptly notify the other party of any audit or inspection by a Regulatory Authority in the Territory in connection with the Product and shall provide a copy of any audit or inspection observations to such other party within [*] following receipt. Each party shall have the right, but not the obligation, to participate in such audit or inspection.
5.3.8 Melinta shall use Commercially Reasonable Efforts to provide Cidara with all reasonable cooperation and informal, non-financial assistance and take all actions reasonably requested by Cidara (on behalf of itself or a Third Party licensee or sublicensee, including Mundipharma) that are necessary to enable Cidara or such Third Party licensee or sublicensee to obtain and maintain Regulatory Approvals for the Products outside the Territory (subject to Section 5.1.6), to cooperate with any inspection by any Regulatory Authority relating to the Products outside the Territory, or otherwise as necessary to perform Cidara’s obligations under the Mundipharma Agreement. Melinta shall keep Cidara reasonably informed of the status, progress and results of all regulatory activities related to Product in the Territory, and Cidara shall have the right to disclose such information to Cidara Ex-Territory Licensees, subject to Section 5.1.6.
5.3.9 Subject to Section 5.1.6, Melinta hereby grants to Cidara the Rights of Reference to all Product Filings in the Territory, with the right to sublicense through multiple tiers of sublicense, for the purposes of: (a) obtaining and maintaining Marketing Approvals for Products outside the Territory; (b) conducting or having conducted CMC activities in relation to Products; and (c) complying with applicable pharmacovigilance and other regulatory requirements with respect to Products outside the Stockholder Territory. Melinta shall, promptly upon request of Cidara, file with applicable Regulatory Authorities such letters of authorization, access or cross-reference as may be necessary to accomplish the intent of this Section 5.3.9, which cooperation shall include the provision to Cidara or its affiliates without first providing designee by Melinta of the Stockholder necessary certificates of pharmaceutical product, ancillary documents and its counsel supporting information (e.g., on reference pricing) required or requested by a reasonable opportunity Regulatory Authority outside the Territory. Cidara hereby grants to review and comment thereon, and will give good faith consideration Melinta the Rights of Reference to all reasonable additions, deletions Product Filings Controlled by Cidara or changes suggested any of its Controlled Affiliates or Cidara Ex-Territory Licensee(s) (subject to any applicable exclusions of clinical efficacy data independently generated by such Cidara Ex-Territory Licensee(s)) for the Stockholder purposes of: (a) obtaining and its counsel.
maintaining Marketing Approvals for Products in the Territory; (b) Each Stockholder hereto represent, warrant and covenant conducting or having conducted CMC activities in relation to Parent and to the Company that, to such Stockholder’s knowledge: (i) none of the information supplied in writing by such Stockholder specifically for inclusion or incorporation by reference in the Regulatory Disclosures will contain a material misstatement of fact or a material omission of fact necessary to make the information provided not misleading Products; and (iic) it does not permit any entity under the “control” (defined in Section 721 of the Defense Production Act, as amended, including all implanting regulations thereof) of a People’s Republic of China national, or any entity under the control of a Russian Federation national, to obtain through any Affiliate, control complying with applicable pharmacovigilance and other regulatory requirements with respect to Products in the CompanyTerritory. Cidara shall, and shall cause its Third Party licensee (including Mundipharma) to, promptly upon request of Cidara, file with applicable Regulatory Authorities outside the Territory such letters of authorization, access or cross-reference as may be necessary to accomplish the intent of this Section 5.3.9.
Appears in 1 contract
Regulatory Matters. (a) Subject If counsel to Section 4.4the Agent, the Stockholder shallIssuing Bank or any Lender, as the case may be, reasonably determines that the consent of the FCC, any PUC, or other applicable regulatory authority is required in connection with any of the actions which may be taken by the Agent, the Issuing Bank or any of the Lenders, as the case may be, in the exercise of their rights hereunder or under the other Loan Documents, then the Company, at its sole cost and expense, shall use their reasonable its best efforts to cause their Affiliates to, use their reasonable best efforts, consistent secure such consent and to cooperate fully with the time frames set forth Agent, the Issuing Bank or the Lenders, as the case may be, in Section 6.4 any action commenced by any such Person, to secure such consent. Upon the occurrence and during the continuation of an Event of Default, the Company, subject to the provisions of applicable law, shall promptly execute and file and/or cause the execution and filing of all applications, certificates, instruments and other documents that the Agent, the Issuing Bank or the Lenders deem necessary or advisable to file in order to obtain any governmental consent, approval, or authorization, and if the Company fails or refuses to execute, or fails or refuses to cause another Person to execute, such documents, the clerk of any court with jurisdiction over the Loan Documents may execute and file the same on behalf of the Merger AgreementCompany. The Company recognizes that the FCC Licenses and other Franchises held by the Company and its Subsidiaries are unique assets which may have to be transferred in order for the Lenders and other Senior Secured Parties adequately to realize the value of their security interests. The Company further recognizes that a violation of this covenant would result in irreparable harm to the Lenders and other Senior Secured Parties for which monetary damages are not readily ascertainable. Therefore, to supply and provide information that, to such Stockholder’s knowledge, is complete and accurate in all material respects addition to any Governmental Authority requesting such information other remedy which may be available to the Agent, the Lenders or other Senior Secured Parties, as the case may be, at law or in equity, the Agent, the Lenders or other Senior Secured Parties, as the case may be, shall have the remedy of specific performance of the provisions of this Subsection. To enforce the provisions of this Subsection 9.2.3, the Agent is authorized to request the consent or approval of the FCC, any PUC or other regulatory authority to a voluntary or an involuntary transfer of control of any FCC License or other Franchise. In connection with filings the exercise of its - 91 - remedies under the Loan Documents, the Agent may obtain the appointment of a trustee or notifications underreceiver to assume, upon receipt of all necessary judicial, FCC, PUC or other regulatory authority consents or approvals, control of the Company or any of its Subsidiaries. Such trustee or receiver shall have all rights and powers provided to it by law or by court order or provided to the Agent or the Lenders or other Senior Secured Parties under the Loan Documents. In addition, the Company shall take, or relating tocause to be taken, applicable laws that are required or advisable as a result of, or pursuant toany action which the Agent may reasonably request in order to obtain and enjoy the full rights and benefits granted to the Agent, the Merger Agreement Lenders and other Senior Secured Parties by the related financings and transactionsLoan Documents, including, without limitation, information required or requested to be provided to any antitrust, financial or national security regulatory authorities in connection with any approvals reasonably sought in connection with at the consummation of the Merger (collectivelyCompany's cost and expense, the “Regulatory Filings” and theexercise of its best efforts to cooperate in obtaining FCC, “Regulatory Disclosures”any PUC, respectively). If or other regulatory approval of any Governmental Authority seeks to prevent the consummation of the transactions action or transaction contemplated by the Merger Agreement based on the HSR Act or any other Antitrust Laws or based on any other Loan Documents which is then required approval, consent, notice or filing with a Governmental Authority and such actions by the Governmental Authority relate to the activities or investments of such Stockholder or its Affiliates (solely for purposes of this Section 4, an “Affiliate” of the Stockholder shall include any portfolio company in which such Stockholder or any of its Affiliates has made a debt or an equity investment), then if Parent in good faith reasonably determines that such actions by the Governmental Authority will not be resolved sufficiently in advance of the Termination Date, Parent may provide written notice of that determination to the Stockholder, and Parent may elect to terminate the obligations under Section 2 and Section 4.6 of this Agreement (in which case the Stockholder’s obligations under the Equity Commitment Letter shall also automatically terminate) and, in that context, the Stockholder shall be entitled to receive the Per Share Price under the Merger Agreement with respect to its shares of Common Stock; provided, however that Parent shall not terminate the Equity Commitment Letter or the obligations under Section 2 of this Agreement pursuant to this Section 4.3(a) without first obtaining alternative financing arrangements which provide Parent with funds in an amount equal to the Rollover Amount; provided that such alternative financing arrangements (i) provide Parent with sufficient funds, when added to the proceeds of the Equity Financing, Debt Financing and other sources of readily available liquidity of Parent, Merger Sub, the Company and the Company’s Subsidiaries on the Closing Date, to fund the Required Amount and (ii) do not impose new or additional conditions to the receipt of such financing relative to the Commitment Letters that could impair or delay the Closing. Parent shall promptly provide the Company with a copy of any definitive commitment letter or other documentation providing for such alternative financing arrangement. Notwithstanding anything to the contrary herein, the Stockholder may designate any Regulatory Disclosures that contain sensitive, legally privileged, or confidential information in respect of the Stockholder or any of its Affiliates as exclusive to the Stockholder and the Stockholder may provide that any such sensitive, legally privileged, or confidential information may only be provided on a counsel-only basis or directly to the applicable Governmental Authority requesting such information. The Stockholder shall not make any filings, or notifications in connection with the Merger pursuant to any Antitrust Laws without Parent’s prior written consent (not to be unreasonably withheld, delayed or conditioned). Parent or the Company shall not file any Regulatory Filings that contain information with respect to the Stockholder or its affiliates without first providing the Stockholder and its counsel a reasonable opportunity to review and comment thereon, and will give good faith consideration to all reasonable additions, deletions or changes suggested by the Stockholder and its counsellaw.
(b) Each Stockholder hereto represent, warrant and covenant to Parent and to the Company that, to such Stockholder’s knowledge: (i) none of the information supplied in writing by such Stockholder specifically for inclusion or incorporation by reference in the Regulatory Disclosures will contain a material misstatement of fact or a material omission of fact necessary to make the information provided not misleading and (ii) it does not permit any entity under the “control” (defined in Section 721 of the Defense Production Act, as amended, including all implanting regulations thereof) of a People’s Republic of China national, or any entity under the control of a Russian Federation national, to obtain through any Affiliate, control with respect to the Company.
Appears in 1 contract
Regulatory Matters. 5.1. Within ten (a10) Subject to Section 4.4business days following the execution of this Agreement, the Stockholder shall, and Parties shall use their reasonable best efforts to cause their Affiliates to, use their reasonable best efforts, consistent with the time frames set forth in Section 6.4 of the Merger Agreement, to supply and provide information that, to such Stockholder’s knowledge, is complete and accurate in all material respects to any Governmental Authority requesting such information in connection with filings or notifications under, or relating to, applicable laws that are required or advisable as a result of, or pursuant to, the Merger submit this Agreement and the related financings License and transactions, including, without limitation, information required or requested Supply Agreement to be provided to any antitrust, financial or national security regulatory authorities in connection with any approvals reasonably sought in connection with the consummation Federal Trade Commission of the Merger United States (collectively“FTC”) and the Department of Justice of the United States (“DOJ” and, together with FTC, the “Regulatory Filings” and the, “Regulatory DisclosuresAgencies”, respectively). If any Governmental Authority seeks ) for review pursuant to prevent the consummation Section 1112 of the transactions contemplated by the Merger Agreement based on the HSR Medicare Prescription Drug Improvement and Modernization Act or any other Antitrust Laws or based on any other required approval, consent, notice or filing with a Governmental Authority and such actions by the Governmental Authority relate to the activities or investments of such Stockholder or its Affiliates (solely for purposes of this Section 4, an “Affiliate” of the Stockholder 2003. The Parties shall include any portfolio company in which such Stockholder or any of its Affiliates has made a debt or an equity investment), then if Parent promptly in good faith reasonably determines that coordinate the foregoing filings and respond promptly in good faith to any requests for additional information made by either of such actions by Agencies. Each Party reserves the Governmental Authority right to communicate with the FTC and/or DOJ regarding such filings as it believes appropriate. Each Party will keep the other Parties informed of such responses and communications and shall not disclose any confidential information of the other Parties without such other Party’s consent, which will not be resolved sufficiently in advance unreasonably withheld or delayed. In the event that the FTC or DOJ threatens to institute a judicial or administrative proceeding raising material objections against any Party related to this Agreement or the License and Supply Agreement, or any subpart thereof, the Parties shall use Commercially Reasonable efforts to modify this Agreement and/or the License and Supply Agreement to address the objections raised by the FTC or DOJ while maintaining the material terms of the Termination Date, Parent may provide written notice of that determination transaction.
5.2. If at any time this Agreement is rendered null and void with respect to the StockholderTerritory, and Parent may elect or any portion thereof by the actions of a Third Party or government entity, or if the Parties cannot fulfill their respective obligations with respect to terminate this Agreement, it is the obligations under Section 2 and Section 4.6 intent of this Agreement (the Parties that no Party will be in which case the Stockholder’s obligations under the Equity Commitment Letter shall also automatically terminate) and, in that context, the Stockholder shall be entitled to receive the Per Share Price under the Merger Agreement any way prejudiced with respect to its shares claims, causes of Common Stock; providedaction, however that Parent shall not terminate defenses and counterclaims in the Equity Commitment Letter Actions, and no consent judgment, order or the obligations under Section 2 of this Agreement dismissal entered by a Party pursuant to this Section 4.3(a) without first obtaining alternative financing arrangements which provide Parent with funds Agreement in the Territory or portion thereof, as applicable, will be deemed an amount equal to admission on the Rollover Amount; provided that part of such alternative financing arrangements (i) provide Parent with sufficient fundsParty, when added to the proceeds of the Equity Financing, Debt Financing and other sources of readily available liquidity of Parent, Merger Sub, the Company and the Company’s Subsidiaries on the Closing Date, Parties would be free to fund the Required Amount assert any and (ii) do not impose new or additional conditions to the receipt of such financing relative to the Commitment Letters that could impair or delay the Closing. Parent shall promptly provide the Company with a copy of any definitive commitment letter or other documentation providing for such alternative financing arrangement. Notwithstanding anything to the contrary herein, the Stockholder may designate any Regulatory Disclosures that contain sensitive, legally privileged, or confidential information in respect of the Stockholder or any of its Affiliates as exclusive to the Stockholder all claims and the Stockholder may provide that any such sensitive, legally privileged, or confidential information may only be provided on a counsel-only basis or directly to the applicable Governmental Authority requesting such information. The Stockholder shall not make any filings, or notifications in connection with the Merger pursuant to any Antitrust Laws without Parent’s prior written consent (not to be unreasonably withheld, delayed or conditioned). Parent or the Company shall not file any Regulatory Filings that contain information defenses with respect to the Stockholder reinstated portion of the Actions in any future litigation. In particular, if this Agreement is terminated for any reason: (a) Cumberland will have the right to recommence or its affiliates without first providing refile the Stockholder First Action before the Delaware Court and its counsel a reasonable opportunity to review and comment thereon, and will give good faith consideration to all reasonable additions, deletions or changes suggested by the Stockholder and its counsel.
Second Action before the Illinois Court; (b) Each Stockholder hereto representeach Party consents, warrant and covenant with respect to Parent and to the Company thatany such refiled Action or declaratory judgment action, to such Stockholder’s knowledge: (i) none the jurisdiction of the information supplied in writing by such Stockholder specifically for inclusion or incorporation by reference in the Regulatory Disclosures will contain a material misstatement of fact or a material omission of fact necessary to make the information provided not misleading and (ii) it does not permit any entity under the “control” (defined in Section 721 of the Defense Production Act, as amended, including all implanting regulations thereof) of a People’s Republic of China national, or any entity under the control of a Russian Federation national, to obtain through any Affiliate, control Delaware Court with respect to the Companysubject matter of the First Action and the jurisdiction of the Illinois Court with respect to the subject matter of the Second Action, and irrevocably and unconditionally waives any objection to the laying of venue in such courts or that the Actions or declaratory judgment action have been brought in an inconvenient forum, (ii) waive any statute of limitations defenses in connection with such recommenced or refiled Actions or declaratory judgment action, (iii) the License and Supply Agreement will immediately terminate; (iv) Perrigo and Xxxxxxx will have the right to defend themselves on any basis, including challenging the infringement, validity and enforceability of the Licensed Patents; and (v) the Agreement will not be available as evidence in any proceeding. Termination of this Agreement shall not release any Party from liability (in an action at law or otherwise) for any obligations, liabilities or damages incurred prior to such termination and arising out of a breach of any of its representations, warranties, covenants or agreements set forth in this Agreement. In addition, Article VI shall survive any termination of this Agreement.
Appears in 1 contract
Samples: Settlement Agreement (Cumberland Pharmaceuticals Inc)
Regulatory Matters. (ai) Subject to Section 4.4All approvals, consents, permits and waivers of the Stockholder shall, and shall use their reasonable best efforts to cause their Affiliates to, use their reasonable best efforts, consistent with the time frames set forth Governmental Entities specified in Section 6.4 6.1(d)(i) of the Merger Agreement, to supply and provide information that, to such Stockholder’s knowledge, is complete and accurate in all material respects to any Governmental Authority requesting such information in connection with filings or notifications under, or relating to, applicable laws that are required or advisable as a result of, or pursuant to, the Merger Agreement and the related financings and transactions, including, without limitation, information required or requested to be provided to any antitrust, financial or national security regulatory authorities in connection with any approvals reasonably sought in connection with the consummation of the Merger Company Disclosure Schedule (collectively, the “Requisite Regulatory FilingsApprovals”), shall have been obtained and shall be in full force and effect, and all waiting periods required by Law in connection therewith (including under the HSR Act) shall have expired or been terminated. No such approval, consent, permit or waiver shall contain or impose any condition or restriction that the Purchaser determines, in its reasonable good faith judgment, is materially and unreasonably burdensome or would reduce the benefits of its investment in the Company to such a degree that the Purchaser would not have entered into this Agreement had such condition or restriction been known to it at the date hereof.
(ii) (A) Each of the Bear Stxxxxx Xompanies Inc. (“Bear Stxxxxx”) and each of the investors in Doral GP Ltd. listed in Section 6.1(d)(ii) of the Purchaser Disclosure Schedule shall have received written confirmation, satisfactory to it in its reasonable good faith judgment, from the Federal Reserve Board to the effect that neither it, nor any of its Affiliates (which for purposes of this paragraph shall include all “affiliates” as defined in the BHC Act or Regulation Y of the Federal Reserve Board) shall be deemed to “control” Doral GP Ltd., Parent, the Purchaser or any of its Subsidiaries after the Closing (including the Company, Doral Bank and theDoral Bank, “Regulatory Disclosures”, respectively). If any Governmental Authority seeks to prevent FSB) for purposes of Sections 3 or 4 of the BHC Act by reason of the purchase of the Purchased Stock by the Purchaser and the consummation of the other transactions contemplated by this Agreement and the Merger Agreement based on other Transaction Agreements or the HSR Act or Purchaser Organizational Documents; (B) Bear Stxxxxx xhall have received written confirmation, satisfactory to it in its reasonable good faith judgment, from the Federal Reserve Board that neither it nor any other Antitrust Laws or based on any other required approval, consent, notice or filing with a Governmental Authority and such actions by the Governmental Authority relate to the activities or investments of such Stockholder or its Affiliates (solely which for purposes of this Section 4, an paragraph shall include all “Affiliateaffiliates” as defined in the BHC Act or Regulation Y of the Stockholder shall include any portfolio company in which such Stockholder or any of its Affiliates has made a debt or an equity investment), then if Parent in good faith reasonably determines that such actions by the Governmental Authority Federal Reserve Board) will not be resolved sufficiently in advance of the Termination Date, Parent may provide written notice of that determination cease to the Stockholder, and Parent may elect to terminate the obligations under Section 2 and Section 4.6 of this Agreement (in which case the Stockholder’s obligations under the Equity Commitment Letter shall also automatically terminate) and, in that context, the Stockholder shall be entitled to receive the Per Share Price under exemption set forth in Section 4(f)(1) of the Merger BHC Act by reason of the purchase of the Purchased Stock by the Purchaser and the other transactions contemplated by this Agreement with respect to its shares of Common Stock; provided, however that Parent shall not terminate and the Equity Commitment Letter other Transaction Agreements or the obligations under Section 2 of this Agreement pursuant Purchaser Organizational Documents; and (C) the Purchaser shall have received a written administrative determination, satisfactory to this Section 4.3(a) without first obtaining alternative financing arrangements which provide Parent with funds it in an amount equal its reasonable good faith judgment, from the Commissioner to the Rollover Amount; provided effect that such alternative financing arrangements (i) provide Parent with sufficient funds, when added to the proceeds provisions of the Equity Financing, Debt Financing and other sources of readily available liquidity of Parent, Merger Sub, the Company and the Company’s Subsidiaries on the Closing Date, to fund the Required Amount and (ii) do not impose new or additional conditions to the receipt of such financing relative to the Commitment Letters that could impair or delay the Closing. Parent shall promptly provide the Company with a copy of any definitive commitment letter or other documentation providing for such alternative financing arrangement. Notwithstanding anything to the contrary herein, the Stockholder may designate any Regulatory Disclosures that contain sensitive, legally privileged, or confidential information in respect of the Stockholder or any of its Affiliates as exclusive to the Stockholder and the Stockholder may provide that any such sensitive, legally privileged, or confidential information may only be provided on a counsel-only basis or directly to the applicable Governmental Authority requesting such information. The Stockholder shall not make any filings, or notifications in connection with the Merger pursuant to any Antitrust Laws without Parent’s prior written consent (not to be unreasonably withheld, delayed or conditioned). Parent or the Company shall not file any Regulatory Filings that contain information with respect to the Stockholder or its affiliates without first providing the Stockholder and its counsel a reasonable opportunity to review and comment thereon, and will give good faith consideration to all reasonable additions, deletions or changes suggested by the Stockholder and its counsel.
(b) Each Stockholder hereto represent, warrant and covenant to Parent and to the Company that, to such Stockholder’s knowledge: (i) none of the information supplied in writing by such Stockholder specifically for inclusion or incorporation by reference in the Regulatory Disclosures will contain a material misstatement of fact or a material omission of fact necessary to make the information provided not misleading and (ii) it does not permit any entity under the “control” (defined in Section 721 of the Defense Production Act, as amended, including all implanting regulations thereof) of a People’s Republic of China national, or any entity under the control of a Russian Federation national, to obtain through any Affiliate, control with respect to the Company.change in
Appears in 1 contract
Regulatory Matters. (a) Subject to Section 4.44.3(c), the each Stockholder shall, and shall use their reasonable best efforts to cause their its Affiliates to, use their respective reasonable best efforts, consistent with the time frames set forth in Section 6.4 6.1 and 6.2 of the Merger Agreement, to supply and provide information that, to such Stockholder’s knowledge, is complete and accurate in all material respects to any Governmental Authority requesting such information in connection with filings or notifications under, or relating to, applicable laws (collectively, the “Regulatory Filings”) that are required or advisable as a result of, or pursuant to, the Merger Agreement and the related financings and transactions, including, without limitation, information required or requested to be provided to any antitrust, financial or national security regulatory authorities in connection with any approvals reasonably sought in connection with the consummation of the Merger (collectively, the “Regulatory Filings” and the, “Regulatory Disclosures”, respectively). If any Governmental Authority seeks to prevent the consummation of the transactions contemplated by the Merger Agreement based on the HSR Act or any other Antitrust Laws or based on any other required approval, consent, notice or filing with a Governmental Authority and such actions by the Governmental Authority relate to the activities or investments of such Stockholder or its Affiliates (solely for purposes of this Section 4, an “Affiliate” of the Stockholder shall include any portfolio company in which such Stockholder or any of its Affiliates has made a debt or an equity investment), then if Parent in good faith reasonably determines that such actions by the Governmental Authority will not be resolved sufficiently in advance of the Termination Date, Parent may provide written notice of that determination to the Stockholder, and Parent may elect to terminate the obligations under Section 2 and Section 4.6 of this Agreement (in which case the Stockholder’s obligations under the Equity Commitment Letter shall also automatically terminate) and, in that context, the Stockholder shall be entitled to receive the Per Share Price under the Merger Agreement with respect to its shares of Common Stock; provided, however that Parent shall not terminate the Equity Commitment Letter or the obligations under Section 2 of this Agreement pursuant to this Section 4.3(a) without first obtaining alternative financing arrangements which provide Parent with funds in an amount equal to the Rollover Amount; provided that such alternative financing arrangements (i) provide Parent with sufficient funds, when added to the proceeds of the Equity Financing, Debt Financing and other sources of readily available liquidity of Parent, Merger Sub, the Company and the Company’s Subsidiaries on the Closing Date, to fund the Required Amount and (ii) do not impose new or additional conditions to the receipt of such financing relative to the Commitment Letters that could impair or delay the Closing. Parent shall promptly provide the Company with a copy of any definitive commitment letter or other documentation providing for such alternative financing arrangement. Notwithstanding anything to the contrary herein, the Stockholder Stockholders may designate any Regulatory Disclosures that contain sensitive, legally privileged, or confidential information in respect of the Stockholder Stockholders or any of its their Affiliates as exclusive to the Stockholder Stockholders and the Stockholder Stockholders may provide that any such sensitive, legally privileged, or confidential information may only be provided on a counsel-only basis or directly to the applicable Governmental Authority requesting such information. The No Stockholder shall not make any filings, or notifications in connection with the Merger pursuant to any Antitrust Laws without Parent’s prior written consent (not to be unreasonably withheld, delayed or conditioned). Parent or the Company shall will not file any Regulatory Filings that contain information with respect to the Stockholder Stockholders or its affiliates their Affiliates without first providing the Stockholder and its counsel a reasonable opportunity to review and comment thereon, and will give good faith consideration to all reasonable additions, deletions or changes suggested by the Stockholder Stockholders and its their counsel.
(b) Each Stockholder hereto representrepresents, warrant warrants and covenant covenants to Parent and to the Company that, to such Stockholder’s knowledge: (i) none of the information supplied in writing by such Stockholder specifically for inclusion or incorporation by reference in the Regulatory Disclosures will contain a material misstatement of fact or a material omission of fact necessary to make the information provided not misleading and (ii) it such Stockholder does not and will not permit any entity under the “control” (defined in Section 721 of the Defense Production Act, as amended, including all implanting regulations thereof) of a People’s Republic of China national, or any entity under the control “control” of a Russian Federation national, to obtain through any Affiliate, control with respect to the Company.
(c) The Sponsor and the Stockholders shall (i) promptly notify the other parties of any material communication received by such Person from a Governmental Authority in connection with the Merger and permit the other parties to review and discuss in advance (and to consider in good faith any comments made by the other party in relation to) any proposed draft notifications, formal notifications (provided, however, that filings made under the HSR Act need not be shared), filing, submission or other written substantive communication made in connection with the Merger to a Governmental Authority; and (ii) not independently participate in any meeting (whether in person, by telephone or videoconference) with or before any Governmental Authority in respect of the Merger without giving the other party reasonable prior notice of such meeting and, unless prohibited by such Governmental Authority, the opportunity to attend or participate. However, the Sponsor and the Stockholders may each designate any non-public information provided to any Governmental Authority as restricted to “outside counsel” only and any such information shall not be shared with employees, officers or directors or their equivalents of the other party without approval of the party providing the non-public information; provided, however, that the Sponsor and the Stockholders may each redact any valuation and related information, or information that is protected by legal privilege, before sharing any information provided to any Governmental Authority with the other party on an “outside counsel” only basis.
(d) Notwithstanding the foregoing or anything to the contrary in this Agreement, none of the provisions of this Agreement shall be construed as requiring the Stockholders to (i) make available to Parent any of its internal investment committee materials or analyses or, other than Regulatory Disclosures, any information which the Stockholders consider to be commercially sensitive information or which is otherwise held subject to an obligation of confidentiality; and (ii) with respect to any Regulatory Disclosures, provide, or cause to be provided or agree or commit to provide information where the sharing of such information as contemplated would be prohibited by laws applicable to the Stockholders or their Affiliates or any judgment or order issued by any court of competent jurisdiction or other legal or regulatory restraint or prohibition applicable to or imposed upon it or its affiliates.
Appears in 1 contract
Regulatory Matters. (a) Subject Without limiting clause 3.3, each party:
(i) (applying for Regulatory Approvals) must promptly apply for or file all relevant Regulatory Approvals for which it is the party responsible and provide the other parties with a copy of those applications or notifications (provided that any commercially sensitive information may be redacted from the copy provided);
(ii) (assistance) agrees to Section 4.4, provide reasonable assistance to the Stockholder shall, and shall use their reasonable best efforts other parties in order to cause their Affiliates to, use their reasonable best efforts, consistent with enable the time frames set forth in Section 6.4 other parties to obtain any Regulatory Approvals for which the other party is the party responsible;
(iii) (Regulatory Approvals process) must take all steps it is responsible for as part of the Merger AgreementRegulatory Approval process, including responding to supply requests for information and provide information that, documentary material at the earliest practicable time;
(iv) (representation) has the right to such Stockholder’s knowledge, is complete be represented and accurate in all material respects to make submissions at any meeting with any Governmental Authority requesting such information in connection with filings or notifications under, or relating to, applicable laws that are required or advisable as to a result of, or pursuant to, the Merger Agreement and the related financings and transactions, including, without limitation, information required or requested to be provided to any antitrust, financial or national security regulatory authorities in connection with any approvals reasonably sought in connection Regulatory Approval; and
(v) (consultation) must consult with the consummation of the Merger other parties in advance in relation to all applications and other communications (collectivelywhether written or oral, the “Regulatory Filings” and the, “Regulatory Disclosures”, respectively). If whether direct or via a Representative) with any Governmental Authority seeks relating to prevent any Regulatory Approval and keep the consummation other parties fully informed of progress in relation to the obtaining of the transactions contemplated by Regulatory Approval and:
(A) provide the Merger Agreement based on the HSR Act or other parties with drafts of any applications and other Antitrust Laws or based on any other required approval, consent, notice or filing with written communications to be sent to a Governmental Authority and such actions by make any amendments as the other party reasonably requires; and
(B) provide copies of any written communications sent to or received from a Governmental Authority relate to the activities other parties promptly upon despatch or investments of such Stockholder or its Affiliates receipt (solely for purposes of this Section 4, an “Affiliate” of as the Stockholder shall include any portfolio company in which such Stockholder or any of its Affiliates has made a debt or an equity investmentcase may be), then if Parent in good faith reasonably determines that such actions by the Governmental Authority will not be resolved sufficiently in advance of the Termination Date, Parent may provide written notice of that determination each case to the Stockholder, and Parent may elect extent it is reasonable to terminate the obligations under Section 2 and Section 4.6 of this Agreement (in which case the Stockholder’s obligations under the Equity Commitment Letter shall also automatically terminate) and, in that context, the Stockholder shall be entitled to receive the Per Share Price under the Merger Agreement with respect to its shares of Common Stock; provided, however that Parent shall not terminate the Equity Commitment Letter or the obligations under Section 2 of this Agreement pursuant to this Section 4.3(a) without first obtaining alternative financing arrangements which provide Parent with funds in an amount equal to the Rollover Amount; provided that such alternative financing arrangements (i) provide Parent with sufficient funds, when added to the proceeds of the Equity Financing, Debt Financing and other sources of readily available liquidity of Parent, Merger Sub, the Company and the Company’s Subsidiaries on the Closing Date, to fund the Required Amount and (ii) do not impose new or additional conditions to the receipt of such financing relative to the Commitment Letters that could impair or delay the Closing. Parent shall promptly provide the Company with a copy of any definitive commitment letter or other documentation providing for such alternative financing arrangement. Notwithstanding anything to the contrary herein, the Stockholder may designate any Regulatory Disclosures that contain sensitive, legally privileged, or confidential information in respect of the Stockholder or any of its Affiliates as exclusive to the Stockholder and the Stockholder may provide that any such sensitive, legally privileged, or confidential information may only be provided on a counsel-only basis or directly to the applicable Governmental Authority requesting such information. The Stockholder shall not make any filings, or notifications in connection with the Merger pursuant to any Antitrust Laws without Parent’s prior written consent (not to be unreasonably withheld, delayed or conditioned). Parent or the Company shall not file any Regulatory Filings that contain information with respect to the Stockholder or its affiliates without first providing the Stockholder and its counsel a reasonable opportunity to review and comment thereon, and will give good faith consideration to all reasonable additions, deletions or changes suggested by the Stockholder and its counselso.
(b) Each Stockholder hereto represent, warrant and covenant to Parent and Before providing any document or other information to the Company other parties (in this clause 3.4(b), the “Recipient”) pursuant to clause 3.4(a) or 9.7, a party (in this clause 3.4(b), the “Discloser”) may redact any part of that document, or not disclose any part of that information, which contains or is confidential, non-public information (“Sensitive Commercial Information”) if the Discloser reasonably believes that, to such Stockholder’s knowledge: :
(i) none the Sensitive Commercial Information is of the information supplied in writing by such Stockholder specifically for inclusion or incorporation by reference in the Regulatory Disclosures will contain a material misstatement of fact or a material omission of fact necessary to make the information provided not misleading and commercially sensitive nature; or
(ii) it does not permit any entity under the “control” (defined in Section 721 disclosure of the Defense Production Act, as amended, including all implanting regulations thereof) Sensitive Commercial Information to the Recipient would be damaging to the commercial or legal interests of a People’s Republic of China national, the Discloser or any entity under of its related bodies corporate, and may provide the control of a Russian Federation national, to obtain through any Affiliate, control with respect document or disclose the information to the CompanyRecipient with any Sensitive Commercial Information redacted or excluded, provided that, where Sensitive Commercial Information is so redacted or excluded, the Discloser must provide the Recipient with as much detail about the relevant communication, submission or correspondence (and any other relevant circumstances) as is reasonably possible without disclosing the Sensitive Commercial Information, and provide to the Recipient’s external legal counsel a complete and unredacted version of the document or information, on the basis that the Recipient’s external legal counsel will not share any information that is marked as Sensitive Commercial Information.
Appears in 1 contract
Regulatory Matters. (a) Subject to Section 4.4, the Stockholder The Company and Buyer shall, as soon as practicable and in any event within ten (10) Business Days after the Signing Date, file Notification and Report Forms under the HSR Act (the “HSR Filing”) with the Federal Trade Commission and the Antitrust Division of the United States Department of Justice and, as soon as practicable after the Signing Date, make such other filings, notices, petitions, statements, registrations, submissions of information, applications and other documents as the Parties determine are necessary under applicable Antitrust Law or regulations. The Company and Buyer shall furnish to the other such necessary information and reasonable assistance as the other may request in connection with its preparation of any filing or submission that is necessary under the HSR Act or other applicable Antitrust Law. Each of the Company and Buyer will promptly inform the other Party of any material communication received by such Party from any Governmental Authority relating to the HSR Filing. Each of the Company and Buyer will (i) use their its respective reasonable best efforts to comply as expeditiously as possible with all requests of any Governmental Authority for additional information and documents, including information or documents requested under the HSR Act or other applicable Antitrust Law; (ii) not (A) extend any waiting period under the HSR Act or any applicable Antitrust Law or (B) enter into any agreement with any Governmental Authority not to consummate the Transactions, except, in each case, with the prior consent of the other Parties and (iii) cooperate with the other Parties and use reasonable best efforts to contest and resist any Action, including legislative, administrative or judicial action, and to have vacated, lifted, reversed or overturned any Order (whether temporary, preliminary or permanent) that restricts, prevents or prohibits the consummation of the Transactions. Without limiting the generality of the foregoing, Buyer shall take, and shall cause their to be taken, all actions that are necessary or advisable or as may be required by any Governmental Authority to expeditiously (and in any event, prior to the End Date) consummate the Transactions, including (1) selling, licensing or otherwise disposing of, or holding separate and agreeing to sell, license or otherwise dispose of, any businesses, entities, assets or facilities of the Company after the Closing or any business, entity, facility or asset of Buyer or its Affiliates, (2) terminating, amending or assigning existing relationships and contractual rights and obligations (other than terminations that would result in a breach of a contractual obligation to a third party) and (3) amending, assigning or terminating existing licenses or other agreements of Buyer or any of its Affiliates to(other than terminations that would result in a breach of a license or such other agreement with a third party) and entering into such new licenses or other agreements, use their so long as the aforementioned actions are conditioned upon the Closing. The “reasonable best efforts” of Seller and the Company contemplated by this Section 7.6 shall not require Seller or the Company or any of their Affiliates to expend any money to remedy any breach of any representation or warranty hereunder, consistent with to commence any litigation or arbitration proceeding, to offer or grant or otherwise provide any accommodation (financial or otherwise) to any Person or to provide financing to Buyer for the time frames set forth in Section 6.4 completion of the Merger Agreement, to supply and provide information that, to such Stockholder’s knowledge, is complete and accurate in all material respects to any Governmental Authority requesting such information in connection with filings or notifications under, or relating to, applicable laws that are required or advisable as a result of, or pursuant to, the Merger Agreement and the related financings and transactions, including, without limitation, information required or requested to be provided to any antitrust, financial or national security regulatory authorities in connection with any approvals reasonably sought Transactions. All costs incurred in connection with the foregoing, including the HSR Act filing fee and the Parties’ costs and expenses of complying with a request for additional information or documentary material pursuant to the HSR Act, shall be borne by Buyer.
(b) In the event any Action by any Governmental Authority or other Person is commenced which questions the validity or legality of the Transactions or seeks damages in connection therewith, the Parties agree to cooperate and use reasonable best efforts to defend against such Action and, if an Order is issued in any Action, to use reasonable best efforts to have such Order lifted, and to cooperate reasonably regarding any other impediment to the consummation of the Merger Transactions prior to the End Date.
(collectivelyc) Except as specifically required by this Agreement, Buyer shall not, and shall cause its Affiliates not to, take any action, or refrain from taking any action, the “Regulatory Filings” effect of which would be to delay or impede the ability of the Parties to promptly consummate the Transactions. Without limiting the generality of the foregoing, Buyer shall not, and theshall cause its Affiliates and their respective ultimate parent entities and Subsidiaries not to, “Regulatory Disclosures”acquire or agree to acquire, respectively). If by merging with or into or consolidating with, or by purchasing a portion of the assets of or equity in, or by any other manner, any business or any Person, or otherwise acquire or agree to acquire any assets or equity interests, if the entering into of a definitive agreement relating to, or the consummation of, such acquisition, merger or consolidation would reasonably be expected to: (i) impose any delay in the obtaining of, or increase the risk of not obtaining, any clearance, approval or consents of any Governmental Authority seeks necessary to consummate the Transactions or the expiration or termination of any applicable waiting period, (ii) increase the risk of any Governmental Authority investigating or seeking or entering an Order prohibiting the consummation of the Transactions, (iii) increase the risk of not being able to remove any such Order on appeal or otherwise or (iv) delay or prevent the consummation of the transactions contemplated by the Merger Agreement based on the HSR Act or any other Antitrust Laws or based on any other required approval, consent, notice or filing with a Governmental Authority and such actions by the Governmental Authority relate to the activities or investments of such Stockholder or its Affiliates (solely for purposes of this Section 4, an “Affiliate” of the Stockholder shall include any portfolio company in which such Stockholder or any of its Affiliates has made a debt or an equity investment), then if Parent in good faith reasonably determines that such actions by the Governmental Authority will not be resolved sufficiently in advance of the Termination Date, Parent may provide written notice of that determination to the Stockholder, and Parent may elect to terminate the obligations under Section 2 and Section 4.6 of this Agreement (in which case the Stockholder’s obligations under the Equity Commitment Letter shall also automatically terminate) and, in that context, the Stockholder shall be entitled to receive the Per Share Price under the Merger Agreement with respect to its shares of Common Stock; provided, however that Parent shall not terminate the Equity Commitment Letter or the obligations under Section 2 of this Agreement pursuant to this Section 4.3(a) without first obtaining alternative financing arrangements which provide Parent with funds in an amount equal to the Rollover Amount; provided that such alternative financing arrangements (i) provide Parent with sufficient funds, when added to the proceeds of the Equity Financing, Debt Financing and other sources of readily available liquidity of Parent, Merger Sub, the Company and the Company’s Subsidiaries on the Closing Date, to fund the Required Amount and (ii) do not impose new or additional conditions to the receipt of such financing relative to the Commitment Letters that could impair or delay the Closing. Parent shall promptly provide the Company with a copy of any definitive commitment letter or other documentation providing for such alternative financing arrangement. Notwithstanding anything to the contrary herein, the Stockholder may designate any Regulatory Disclosures that contain sensitive, legally privileged, or confidential information in respect of the Stockholder or any of its Affiliates as exclusive to the Stockholder and the Stockholder may provide that any such sensitive, legally privileged, or confidential information may only be provided on a counsel-only basis or directly to the applicable Governmental Authority requesting such information. The Stockholder shall not make any filings, or notifications in connection with the Merger pursuant to any Antitrust Laws without Parent’s prior written consent (not to be unreasonably withheld, delayed or conditioned). Parent or the Company shall not file any Regulatory Filings that contain information with respect to the Stockholder or its affiliates without first providing the Stockholder and its counsel a reasonable opportunity to review and comment thereon, and will give good faith consideration to all reasonable additions, deletions or changes suggested by the Stockholder and its counselTransactions.
(b) Each Stockholder hereto represent, warrant and covenant to Parent and to the Company that, to such Stockholder’s knowledge: (i) none of the information supplied in writing by such Stockholder specifically for inclusion or incorporation by reference in the Regulatory Disclosures will contain a material misstatement of fact or a material omission of fact necessary to make the information provided not misleading and (ii) it does not permit any entity under the “control” (defined in Section 721 of the Defense Production Act, as amended, including all implanting regulations thereof) of a People’s Republic of China national, or any entity under the control of a Russian Federation national, to obtain through any Affiliate, control with respect to the Company.
Appears in 1 contract
Regulatory Matters. (a) SELLER represents that it currently has, and shall maintain, all regulatory and governmental permits, licenses and approvals that may be necessary to manufacture and ship PRODUCTS to SB. Without limiting the generality of the foregoing, SELLER shall manufacture the PRODUCTS: (i) under conditions that are in accordance with all United States governmental regulatory requirements concerning cGMPs; and (ii) in a facility maintaining drug establishment registration with the U.S. Food and Drug Administration (FDA) as set forth in 21 C.F.R., part 207.
(1) During the term of this Agreement, SELLER will be responsible for any reporting of matters regarding the PRODUCTS to the appropriate governmental authorities in accordance with pertinent laws and regulations. SELLER shall immediately notify SB of any such matter and shall promptly furnish copies of such reports to SB. SELLER shall also advise SB of any occurrences or information which arises out of SELLER's manufacturing activities which have or could reasonably be expected to have regulatory compliance and/or reporting consequences.
(2) SELLER shall be responsible for handling and responding to any appropriate governmental agency inspections with respect to PRODUCTS during the term of this Agreement. SELLER shall provide to SB any information reasonably requested by SB related to the PRODUCTS and all information requested by any governmental agency in connection with any governmental inspection related to the PRODUCTS. SELLER shall immediately advise SB of any requests by any governmental agency for such inspections with respect to PRODUCTS and SB shall cooperate and provide reasonable assistance as requested by SELLER.
(3) During the term of this Agreement, upon reasonable notice, during normal business hours, and no more than once a year, SB shall have the right to inspect and perform Quality Assurance (QA) audits of the SELLER's manufacturing sites where PRODUCTS are manufactured pursuant to this Agreement to assure regulatory compliance with cGMPs. SELLER has the right to accompany SB during the QA audits. Subject to Section 4.43(i), the Stockholder if deficiencies are discovered during these QA audits that would prevent SELLER or third party manufacturers from passing cGMPs, or other relevant regulatory inspections, SELLER shall, and shall following consultation with SB, correct such deficiencies with respect to SELLER's manufacturing sites and, with respect to third party manufacturing facilities, use their its reasonable best efforts to cause their Affiliates to, use their reasonable best efforts, consistent with assure correction of such deficiencies.
(c) SELLER will not modify or change any ingredient used in the time frames set forth in Section 6.4 manufacture of the Merger Agreement, to supply and provide information that, to such Stockholder’s knowledge, is complete and accurate PRODUCTS or in all material respects to any Governmental Authority requesting such information other way deviate from any manufacturing or control process employed in connection with filings or notifications undermanufacturing the PRODUCTS, or relating to, applicable laws that are required change any manufacturing site or advisable as a result of, any supplier or pursuant to, vendor of any ingredient used in the Merger Agreement and the related financings and transactions, including, without limitation, information required or requested to be provided to any antitrust, financial or national security regulatory authorities in connection with any approvals reasonably sought in connection with the consummation manufacture of the Merger (collectivelyPRODUCTS, the “Regulatory Filings” and the, “Regulatory Disclosures”, respectively). If any Governmental Authority seeks to prevent the consummation of the transactions contemplated by the Merger Agreement based on the HSR Act or any other Antitrust Laws or based on any other required approval, consent, notice or filing with a Governmental Authority and such actions by the Governmental Authority relate to the activities or investments of such Stockholder or its Affiliates (solely for purposes of this Section 4, an “Affiliate” of the Stockholder shall include any portfolio company in which such Stockholder or any of its Affiliates has made a debt or an equity investment), then if Parent in good faith reasonably determines that such actions by the Governmental Authority will not be resolved sufficiently in advance of the Termination Date, Parent may provide written notice of that determination to the Stockholder, and Parent may elect to terminate the obligations under Section 2 and Section 4.6 of this Agreement (in which case the Stockholder’s obligations under the Equity Commitment Letter shall also automatically terminate) and, in that context, the Stockholder shall be entitled to receive the Per Share Price under the Merger Agreement with respect to its shares of Common Stock; provided, however that Parent shall not terminate the Equity Commitment Letter or the obligations under Section 2 of this Agreement pursuant to this Section 4.3(a) without first obtaining alternative financing arrangements which provide Parent with funds SB's prior written approval. Should such change or deviation occur, SELLER shall immediately notify SB of such change, giving details of the same.
(d) For all PRODUCTS, SB shall be responsible for all stability testing. Further, SELLER shall have no obligation or responsibility to conduct, maintain, supervise or monitor any stability program for the PRODUCTS unless the Parties otherwise agree in an amount equal a separate writing memorialized by both Parties. From time to time XXXXXX xxx request copies of the stability work being performed by or on behalf of SB and SB shall promptly furnish same to SELLER.
(e) SB shall be solely responsible for all artwork and copy relating to the Rollover Amount; provided final packaging and labeling of all PRODUCTS. SB shall also be solely responsible for the compliance with all federal, state and local laws and regulations concerning packaging and labeling, and for obtaining any necessary regulatory approvals of printed materials, artwork, and copy.
(f) SB agrees that such alternative financing arrangements within one hundred and eighty (i180) provide Parent with sufficient fundscalendar days from the execution by SB of this Agreement, when added to SB will authorize and approve by a duly authorized signatory written copies of production cards, product and packaging specifications, batch formulations, and analytical methods. Further, during the proceeds life of the Equity Financingthis Agreement, Debt Financing and other sources of readily available liquidity of Parent, Merger Sub, the Company and the Company’s Subsidiaries on the Closing Date, to fund the Required Amount and (ii) do not impose new or additional conditions to the receipt of such financing relative to the Commitment Letters that could impair or delay the Closing. Parent SB shall promptly provide the Company with a copy of any definitive commitment letter or other documentation providing for such alternative financing arrangement. Notwithstanding anything to the contrary herein, the Stockholder may designate any Regulatory Disclosures that contain sensitive, legally privileged, or confidential information in respect of the Stockholder or any of its Affiliates as exclusive to the Stockholder and the Stockholder may provide that any such sensitive, legally privileged, or confidential information may only be provided on a counsel-only basis or directly to the applicable Governmental Authority requesting such information. The Stockholder shall not make any filings, or notifications in connection with the Merger pursuant to any Antitrust Laws without Parent’s prior written consent (not to be unreasonably withheld, delayed or conditioned). Parent or the Company shall not file any Regulatory Filings that contain information with respect to the Stockholder or its affiliates without first providing the Stockholder and its counsel a reasonable opportunity continue to review and comment thereon, and will give good faith consideration to all reasonable additions, deletions or changes suggested execute such documents submitted by the Stockholder and its counselSELLER within one hundred eighty (180) calendar days.
(bg) Each Stockholder hereto representWith respect to MENEST, warrant and covenant to Parent and to the Company that, to such Stockholder’s knowledgeSB agrees to: (i) none of rework promptly the information supplied in writing by such Stockholder specifically for inclusion or incorporation by reference in tablet physical appearance to replace the Regulatory Disclosures will contain a material misstatement of fact or a material omission of fact necessary to make the information provided not misleading and imprinting with debossing; (ii) it does promptly develop and change the coating process to use of an aqueous solvent; (iii) eliminate use of methylene chloride from the manufacturing process if practicable; (iv) execute production cards necessary to such changes; and (v) file all necessary supplements, applications, authorizations or other regulatory documents as soon as practicable.
(h) SB agrees to validate the manufacturing processes for the PRODUCTS as soon as practicable. SB and SELLER shall agree to the validation protocol. However, if the parties cannot permit any entity under agree to the “control” (defined in Section 721 of the Defense Production Act, as amended, including all implanting regulations thereof) of a People’s Republic of China nationalvalidation protocol, or any entity under the control element of a Russian Federation nationalvalidation protocol for any PRODUCT, then the Parties agree to obtain through any Affiliatesubmit the proposed protocol for a final determination to a mutually agreeable, control with respect to the Companyindependent third-party consulting company of national reputation and expertise.
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Regulatory Matters. (a) Subject to Section 4.4, the Stockholder shall, and shall use their reasonable best efforts to cause their Affiliates to, use their reasonable best efforts, consistent i. The Company has filed with the time frames set forth in Section 6.4 SEC the Final Offering Circular, subject to the prior approval of the Merger AgreementSelling Agent, pursuant to supply and provide information thatRule 253 of Regulation A.
ii. The Company will not, during such period as the Final Offering Circular would be required by law to such Stockholder’s knowledge, is complete and accurate in all material respects to any Governmental Authority requesting such information be delivered in connection with filings sales of the Shares in the Offering (whether physically or notifications underthrough compliance with Rules 251 and 254 under the Securities Act or any similar rule(s)), file any amendment or supplement to the Offering Circular or the Final Offering Circular unless a copy thereof shall first have been submitted to the Selling Agent within a reasonable period of time prior to the filing thereof and the Selling Agent shall not have reasonably objected thereto in good faith.
iii. The Company will notify the Selling Agent promptly, and will, if requested, confirm such notification in writing: (1) when any amendment to the Offering Circular is filed; (2) of any request by the SEC for any amendments to the Offering Circular or any amendment or supplements to the Final Offering Circular or for additional information; (3) of the issuance by the SEC of any stop order preventing or suspending the qualification of the Offering Circular or the Final Offering Circular, or relating tothe initiation of any proceedings for that purpose or the threat thereof; (4) of becoming aware of the occurrence of any event that in the judgment of the Company makes any statement made in the Offering Circular, applicable laws that are required or advisable as a result ofthe Preliminary Offering Circular, or pursuant tothe Final Offering Circular untrue in any material respect or that requires the making of any changes in the Offering Circular, the Merger Agreement Preliminary Offering Circular, or the Final Offering Circular in order to make the statements therein, in light of the circumstances in which they are made, not misleading; and (5) of receipt by the related financings and transactions, including, without limitation, information required or requested to be provided Company of any notification with respect to any antitrust, financial suspension of the qualification or national security regulatory authorities exemption from registration of the Shares for offer and sale in connection with any approvals reasonably sought jurisdiction. If at any time the SEC shall issue any order suspending the qualification of the Offering Circular in connection with the consummation offering contemplated hereby or in connection with sales of the Merger (collectively, the “Regulatory Filings” and the, “Regulatory Disclosures”, respectively). If any Governmental Authority seeks Common Stock pursuant to prevent the consummation of the transactions contemplated market making activities by the Merger Agreement based on the HSR Act or any other Antitrust Laws or based on any other required approval, consent, notice or filing with a Governmental Authority and such actions by the Governmental Authority relate to the activities or investments of such Stockholder or its Affiliates (solely for purposes of this Section 4, an “Affiliate” of the Stockholder shall include any portfolio company in which such Stockholder or any of its Affiliates has made a debt or an equity investment), then if Parent in good faith reasonably determines that such actions by the Governmental Authority will not be resolved sufficiently in advance of the Termination Date, Parent may provide written notice of that determination to the Stockholder, and Parent may elect to terminate the obligations under Section 2 and Section 4.6 of this Agreement (in which case the Stockholder’s obligations under the Equity Commitment Letter shall also automatically terminate) and, in that context, the Stockholder shall be entitled to receive the Per Share Price under the Merger Agreement with respect to its shares of Common Stock; provided, however that Parent shall not terminate the Equity Commitment Letter or the obligations under Section 2 of this Agreement pursuant to this Section 4.3(a) without first obtaining alternative financing arrangements which provide Parent with funds in an amount equal to the Rollover Amount; provided that such alternative financing arrangements (i) provide Parent with sufficient funds, when added to the proceeds of the Equity Financing, Debt Financing and other sources of readily available liquidity of Parent, Merger SubSelling Agent, the Company will make every reasonable effort to obtain the withdrawal of any such order at the earliest possible moment. If the Company has omitted any information from the Offering Circular, it will use its best efforts to comply with the provisions of and make all requisite filings with the SEC pursuant to Regulation A, the Securities Act and the Company’s Subsidiaries on Rules and Regulations and to notify the Closing Date, to fund Selling Agent promptly of all such filings.
iv. If at any time following the Required Amount and (ii) do not impose new or additional conditions to the receipt of such financing relative to the Commitment Letters that could impair or delay the Closing. Parent shall promptly provide the Company with a copy distribution of any definitive commitment letter Testing-the-Waters Communication there occurred or other documentation providing for occurs an event or development as a result of which such alternative financing arrangement. Notwithstanding anything to the contrary herein, the Stockholder may designate any Regulatory Disclosures that contain sensitive, legally privileged, Testing-the-Waters Communication included or confidential information in respect would include an untrue statement of the Stockholder or any of its Affiliates as exclusive to the Stockholder and the Stockholder may provide that any such sensitive, legally privileged, or confidential information may only be provided on a counsel-only basis or directly to the applicable Governmental Authority requesting such information. The Stockholder shall not make any filings, or notifications in connection with the Merger pursuant to any Antitrust Laws without Parent’s prior written consent (not to be unreasonably withheld, delayed or conditioned). Parent or the Company shall not file any Regulatory Filings that contain information with respect to the Stockholder or its affiliates without first providing the Stockholder and its counsel a reasonable opportunity to review and comment thereon, and will give good faith consideration to all reasonable additions, deletions or changes suggested by the Stockholder and its counsel.
(b) Each Stockholder hereto represent, warrant and covenant to Parent and to the Company that, to such Stockholder’s knowledge: (i) none of the information supplied in writing by such Stockholder specifically for inclusion or incorporation by reference in the Regulatory Disclosures will contain a material misstatement of fact or omitted or would omit to state a material omission of fact necessary in order to make the information provided not misleading and (ii) it does not permit any entity under statements therein, in the “control” (defined in Section 721 light of the Defense Production Actcircumstances existing at that subsequent time, as amendednot misleading, including all implanting regulations thereof) of a People’s Republic of China nationalthe Company has or will promptly notify the Selling Agent in writing and has or will promptly amend or supplement, at its own expense, such Testing-the-Waters Communication to eliminate or correct such untrue statement or omission.
v. The Company will not at any time, directly or indirectly, take any action intended, or any entity under the control of a Russian Federation nationalwhich might reasonably be expected, to obtain through cause or result in, or which will constitute, stabilization of the price of the Shares to facilitate the sale or resale of any Affiliateof the Shares.
vi. On or before the Closing Date of this Agreement, control with respect the Selling Agent shall have received clearance from FINRA as to the Companyamount of compensation allowable or payable to the Selling Agent as described in the Offering Circular.
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Regulatory Matters. (a) Subject to Section 4.4applicable Law, each Party will 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 by this Agreement, and each such party shall promptly inform the other parties hereto of any oral communication with, and provide copies of written communications with, any Governmental Authority regarding any such filings or any such transaction. No Party will independently participate in any formal meeting with any Governmental Authority in respect of any such filings, investigation, or other inquiry without giving the other Parties prior notice of the meeting and, to the extent permitted by such Governmental Authority, the Stockholder shallopportunity to attend and/or participate. Subject to applicable Law, the Parties will consult and shall 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 relating to proceedings with respect to any approvals required in connection with the Transaction. Any party may, as it deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other Parties under this Section 5.10 as “outside counsel only.” Such materials and the information contained therein will 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 or other Representatives of the recipient, unless express written permission is obtained in advance from the source of the materials. The Parties will take reasonable efforts to share information protected from disclosure under the attorney-client privilege, work product doctrine, joint defense privilege or any other privilege pursuant to this Section 5.10 in such a manner so as to preserve any applicable privilege. In the event that any Proceeding is instituted (or threatened to be instituted) by a Governmental Authority challenging the Transaction or any other transaction contemplated by this Agreement, or any other Transaction Document, the Parties will cooperate in all respects with each other and will use their reasonable best efforts to cause their Affiliates tocontest and resist any such Proceeding and to have vacated, use their reasonable best effortslifted, consistent with the time frames set forth in Section 6.4 of the Merger Agreement, to supply and provide information that, to such Stockholder’s knowledge, is complete and accurate in all material respects to any Governmental Authority requesting such information in connection with filings or notifications underreversed, or relating tooverturned any Judgment, applicable laws that are required or advisable as a result ofwhether temporary, preliminary, or pursuant topermanent, the Merger Agreement that is in effect and the related financings and transactionsthat prohibits, includingprevents, without limitation, information required or requested to be provided to any antitrust, financial or national security regulatory authorities in connection with any approvals reasonably sought in connection with the consummation of the Merger (collectively, the “Regulatory Filings” and the, “Regulatory Disclosures”, respectively). If any Governmental Authority seeks to prevent the restricts consummation of the transactions contemplated by the Merger Agreement based on the HSR Act or any other Antitrust Laws or based on any other required approval, consent, notice or filing with a Governmental Authority and such actions by the Governmental Authority relate to the activities or investments of such Stockholder or its Affiliates (solely for purposes of this Section 4, an “Affiliate” of the Stockholder shall include any portfolio company in which such Stockholder or any of its Affiliates has made a debt or an equity investment), then if Parent in good faith reasonably determines that such actions by the Governmental Authority will not be resolved sufficiently in advance of the Termination Date, Parent may provide written notice of that determination to the Stockholder, and Parent may elect to terminate the obligations under Section 2 and Section 4.6 of this Agreement (in which case the Stockholder’s obligations under the Equity Commitment Letter shall also automatically terminate) and, in that context, the Stockholder shall be entitled to receive the Per Share Price under the Merger Agreement with respect to its shares of Common Stock; provided, however that Parent shall not terminate the Equity Commitment Letter or the obligations under Section 2 of this Agreement pursuant to this Section 4.3(a) without first obtaining alternative financing arrangements which provide Parent with funds in an amount equal to the Rollover Amount; provided that such alternative financing arrangements (i) provide Parent with sufficient funds, when added to the proceeds of the Equity Financing, Debt Financing and other sources of readily available liquidity of Parent, Merger Sub, the Company and the Company’s Subsidiaries on the Closing Date, to fund the Required Amount and (ii) do not impose new or additional conditions to the receipt of such financing relative to the Commitment Letters that could impair or delay the Closing. Parent shall promptly provide the Company with a copy of any definitive commitment letter or other documentation providing for such alternative financing arrangement. Notwithstanding anything to the contrary herein, the Stockholder may designate any Regulatory Disclosures that contain sensitive, legally privileged, or confidential information in respect of the Stockholder or any of its Affiliates as exclusive to the Stockholder and the Stockholder may provide that any such sensitive, legally privileged, or confidential information may only be provided on a counsel-only basis or directly to the applicable Governmental Authority requesting such information. The Stockholder shall not make any filings, or notifications in connection with the Merger pursuant to any Antitrust Laws without Parent’s prior written consent (not to be unreasonably withheld, delayed or conditioned). Parent or the Company shall not file any Regulatory Filings that contain information with respect to the Stockholder or its affiliates without first providing the Stockholder and its counsel a reasonable opportunity to review and comment thereon, and will give good faith consideration to all reasonable additions, deletions or changes suggested by the Stockholder and its counselAgreement.
(b) Each Stockholder hereto represent, warrant and covenant to Parent and to the Company that, to such Stockholder’s knowledge: (i) none of the information supplied in writing by such Stockholder specifically for inclusion or incorporation by reference in the Regulatory Disclosures will contain a material misstatement of fact or a material omission of fact necessary to make the information provided not misleading and (ii) it does not permit any entity under the “control” (defined in Section 721 of the Defense Production Act, as amended, including all implanting regulations thereof) of a People’s Republic of China national, or any entity under the control of a Russian Federation national, to obtain through any Affiliate, control with respect to the Company.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Landsea Homes Corp)
